stormwater

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A recent state appellate court decision sharply limited the bases on which Clean Water Act permittees may challenge permitting requirements imposed to comply with a federal Chesapeake Bay “Total Maximum Daily Load” (“TMDL”), often described as a watershed-wide “pollution diet.” The decision directly impacts municipalities with separate stormwater sewer (“MS4”) permits, as well as certain agricultural and other industrial concerns with stormwater requirements.

The Maryland Court of Appeals opinion affirmed water pollution (“NPDES”) permits issued to authorize discharges from two municipal separate storm sewer systems (“MS4s”) to the Chesapeake Bay watershed. Md. Dep’t of the Envt. v. County Comm’rs of Carroll County, Nos. 5 & 7, Sept. Term 2018 (Md. Aug. 6, 2019). The court held that state permits issued by the Maryland Department of the Environment (MDE) are required to conform to the Chesapeake Bay Total Maximum Daily Load (TMDL) issued by the federal Environmental Protection Agency and the Maryland Watershed Implementation Plan (WIP) promulgated by MDE and approved by EPA. The permittee may not challenge permit conditions necessary to meet the requirements of the TMDL or the WIP through judicial review of the permit, but instead must have already sought review in federal court of the TMDL. Moreover, EPA’s interpretation of the TMDL is entitled to Chevron deference.
Continue Reading Maryland Court of Appeals Limits Bases for Challenging CWA Permits under the Chesapeake Bay TMDL

For well over a decade, the U.S. Environmental Protection Agency (EPA) has been in search of a regulatory approach to address post-construction stormwater discharges. In contrast to its regulations for stormwater discharges from construction sites,  this initiative targeted stormwater discharges after a project has been developed or redeveloped. EPA’s efforts to regulate post-construction stormwater discharges made little progress until 2010, when EPA settled a case with the Chesapeake Bay Foundation over water quality impacts to the Chesapeake Bay. As part of that settlement, EPA agreed to issue draft post-construction stormwater regulations by September 2011. These regulations would apply nation-wide and require commercial and residential property owners to manage stormwater discharges once development or redevelopment was completed. The result would be new and potentially substantial operational requirements and costs being imposed on millions of commercial and residential properties across the United States.
Continue Reading EPA Stormwater Regulations Continue to Drift

EPA published its new Construction General Permit. It does not contain numerical turbidity limitations, but otherwise tends to follow the Construction and Development Rule. EPA plans a webinar for March 21.
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Continue Reading EPA Issues 2012 Construction General Permit Without Numeric Turbidity Limit; Hosts Webinar to Introduce Permit Changes