Environmental Advisory Bulletin
New Stormwater Legislation Will Broadly Impact
Businesses in Washington State
By Richard
W. Elliott and Traci
L. Shallbetter
[May 2004]
On March 31, Governor Gary Locke signed into law ESSB 6415 which
will eventually affect hundreds of industrial facilities and construction
sites across the state that fall within the broad net of stormwater
laws. Although the new legislation takes effect June 10, 2004, actual
implementation will take much longer and raises the prospect of
further litigation.
Background
Stormwater regulations have been around for a long time and find
their legal basis in the federal Clean Water Act and state law.
Under Washington's Water Pollution Control Act (Wash. Rev. Code
Chap. 90.48), the Washington State Department of Ecology ("Ecology")
runs the federal National Pollutant Discharge Elimination System
(NPDES) Program in Washington. A discharger of "pollutants"
(which includes almost anything) must obtain an NPDES waste discharge
permit whenever the discharge is from a "point source"
(e.g., from the end of a pipe) to surface waters. Such
individual NPDES permits most often apply to "process water"
discharged from industrial sources. The state also regulates non-point
sources under its waste discharge permit program.
Stormwater control presents a unique set of challenges. Stormwater
runs off from exposed areas of a facility or site, may or may not
be treated, and generally is discharged through drains to our streams,
rivers and saltwater bodies. The discharges can cause significant
pollution and siltation. Thus, the Clean Water Act was amended in
1990 to require permits for stormwater dischargers. Acting under
its federally delegated authority, Ecology began to regulate some
stormwater discharges by requiring individual NPDES permits. Still,
the task of regulating stormwater remained daunting, due to thousands
of unregulated discharges. Consequently, Ecology published regulations
in 1992 and 1995 establishing a General Stormwater Permit Program.
These General Stormwater Permits potentially apply to industrial
sites and to construction sites of five or more acres (Ecology is
currently working on regulations that will apply to smaller construction
sites). Under the General Permit program, a discharger sends Ecology
a "Notice of Intent" to come within coverage of the applicable
General Permit. If Ecology approves, the agency responds with a
certification of coverage that may contain special conditions. Stormwater
controls are implemented through best management practices (BMPs)
described in a Stormwater Pollution Prevention Plan (SWPPP) most
often developed by the applicant's consultant. Ecology may still
require the discharger to obtain an individual permit if Ecology
feels General Permit coverage will not be effective.
In August 2002, Ecology issued a new version of the Industrial
Stormwater General Permit which included stormwater monitoring and
analysis for representative pollutants, set standards for compliance,
and defined how mixing zones could be applied to achieve compliance
with water quality standards. That General Permit was immediately
challenged by several environmental groups in an appeal to Washington's
Pollution Control Hearing Board (PCHB). The Boeing Company and Snohomish
County also appealed from a different perspective. Finally, the
Association of Washington Business (AWB) joined the fray as an intervenor.
The litigation churned along and came to a head in the summer of
2003 when the PCHB issued two decisions that stunned the business
community:
- In June, the PCHB ruled in favor of the environmental groups
in a partial summary judgment decision on several issues, throwing
out the Permit's provisions on compliance schedules and standard
mixing zones.
- In August, the PCHB issued a similarly activist decision on
the remaining issues, ruling that the Permit's monitoring requirements
were not tough enough, and that the "benchmark" limit
for copper was too lenient for receiving waters listed as impaired
under the Clean Water Act. In the Board's opinion, Ecology's Permit
gave too much control to the dischargers and undermined the Clean
Water Act's (unrealistic) goal of completely eliminating the discharge
of pollutants into the Nation's waters.
The New Stormwater Legislation
As the PCHB's decision went up to the courts on appeal, business,
governmental, environmental, and political leaders began to look
hard at a legislative compromise as an alternative to the risk of
a court decision that could go either way. The AWB played an especially
important role in organizing a bi-partisan legislative effort that
was spearheaded by an Eastern Washington Republican, Sen. Bob Morton,
and a Western Washington Democrat, Rep. Kelli Linville. The effectiveness
of this bi-partisan effort is evidenced by the fact that there was
only one nay vote when the bill came up for final vote in the House
and Senate. The new law applies to both the Industrial and Construction
General Stormwater Permits, and adds considerable specificity where
little or none existed before. By way of very brief summary:
- The law amends the Water Pollution Control Act to make effluent
limitations under the General Permits more specific and rigorous.
For example, the current Industrial General Permit contains various
"benchmark" values for metals and other pollutants which
are usually set considerably above the applicable water quality
criteria. The new law requires pollutant-specific effluent limitations
in General Permits "if there is a reasonable potential to
cause an excursion of state water quality standards."
- The law contains an important concession to business interests:
compliance with water quality standards through implementation
of BMPs is now the general rule for dischargers under
a General Permit. BMPs vary according to the category of discharger,
and Ecology has published manuals with specific guidance for certain
industries. The law also endorses an adaptive management
approach which essentially means "learn as you go" through
use of performance standards.
- However, numeric effluent limits are required under
certain circumstances. For example, the state and EPA have classified
a number of Washington's waters as "impaired" under
Section 303(d) of the Clean Water Act, due to development or even
natural conditions. The PCHB wrestled with how stormwater regulations
should interface with such "Section 303 waterbodies."
In a compromise that satisfied both sides, the legislation provides
that numeric effluent limits for impaired waterbodies will only
be set after the EPA has established total daily maximum loads
(TMDLs) for the waterbody.
- In response to the PCHB's criticism of compliance schedules
in the current permit, the new law grants existing dischargers
until May 1, 2009, to come into full compliance with numeric effluent
limits for discharges to an impaired waterbody. This provides
some breathing room to identify and implement the technology and
BMPs needed to meet new TMDL-based discharge limits.
- The new law flatly states that industrial and construction discharges
under a General Permit "must not cause or have reasonable
potential to cause" a violation of an applicable water quality
standard. Whether such "reasonable potential" exists
may in many cases be left to the vagaries of computer modeling.
Ecology may use this provision to rule out General Permit coverage
for certain dischargers.
- In another compromise, the new law does not flatly require that
stormwater discharges meet water quality standards at the "end
of the pipe." The law authorizes use of mixing zones that
meet the requirements of Ecology's water-quality regulations.
Use of a mixing zone may be the only way that a discharger can
demonstrate that it is not likely to cause "excursions"
or "violations" of water quality or sediment standards.
Preservation of the mixing zone option was a key industry goal.
- Finally, the new amendments grant Ecology increased powers to
set permit fees, conduct inspections and carry out enforcement
actions. The amendments also address the PCHB's concerns about
inadequate monitoring by directing Ecology to report to the legislature
by the end of 2006 on measures to beef up monitoring requirements.
The Road Ahead
- The new legislation brings more certainty to developers, businesses,
and municipalities in Washington State, and should make it less
difficult for them to quantify the impacts and costs of stormwater
compliance. The law also provides much needed clarification of
how stormwater discharges to Section 303(d) impaired waterbodies
will be regulated.
- The law is for the most part not self-implementing. Dischargers
who are already covered by a General Permit may continue to discharge
under the current terms and conditions. In the meantime, Ecology
staff are working on revisions to the Industrial and Construction
General Permits that will incorporate changes required by the
new law or required by settlements reached in the PCHB litigation
discussed above.
- After Ecology completes its revisions, the General Permits will
go through a public comment and hearing process before becoming
final. Since the new law is relatively complex and open to some
interpretation, there is the possibility that parties may appeal
the revised Permits. Hopefully, the compromises and settlements
that led to the new law will minimize this possibility. Once the
General Permits become final, Ecology will notify covered dischargers
and provide them with a copies of the revised Permit. Dischargers
will then become subject to the new law and may appeal from the
terms and conditions of their specific Permit coverage.
- Dischargers who obtain General Permit coverage under the new
law probably stand a better chance than before of successfully
staving off third-party lawsuits, known as "citizen's suits,"
alleging violations of the federal Clean Water Act.
- According to sources within the state, the new law will be used
as the basis for settling the appeal of the current Industrial
General Permit. This is good news for all concerned, although
due credit should still be given to the PCHB for being the catalyst
that drove the legislative compromise.
- The law places Washington on a more even footing with other
states that have NPDES stormwater programs. In the long term,
this is probably good for jobs and Washington's competitive position.
- Although the new law appears to be a viable compromise between
different interest groups, it is anything but a "Free
Pass" for the regulated community. It is complex and,
in many respects, more rigorous than what existed before.
For further information please
feel free to contact us:
This Environmental Law Advisory is a publication
of the Environmental Law Department of Davis Wright Tremaine LLP.
Our purpose in publishing this Advisory is to inform our clients
and friends of recent developments in environmental law. It is not
intended, nor should it be used, as a substitute for specific legal
advice as legal counsel may only be given in response to inquiries
regarding particular situations.
Copyright © 2004, Davis Wright Tremaine
LLP.
return to Advisory Bulletins
main page
|
