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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.
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