U.S. EPA recently entered into a settlement agreement with public interest groups regarding stormwater permitting requirements that will likely have significant consequences to industrial stormwater dischargers throughout the U.S. 

In states not authorized to issue Clean Water Act permits (currently Massachusetts, New Hampshire, Idaho and New Mexico), USEPA retains responsibility for regulating stormwater discharges associated with industrial activity.  In most instances, these industrial stormwater discharges are authorized and regulated pursuant a series of general permits that are collectively referred to as the Industrial Stormwater Multi-Sector General Permit (MSGP).

After the U.S. EPA reissued the Industrial Stormwater MSGP in June 2015, public interest groups filed lawsuits challenging the permit as failing to adequately protect waterbodies. Last week, the government and the plaintiffs reached a settlement agreement which, while leaving the current Industrial Stormwater MSGP unchanged, will have long-term consequences for industrial stormwater dischargers in the four nondelegated states, as well as in the delegated states (which use the Industrial Stormwater MSGP as a template for their state stormwater permits).

The settlement obligates the U.S. EPA to take a number of actions in connection with reissuing the Industrial Stormwater MSGP at the end of its five-year term. Those actions include funding a study to be conducted by the National Research Council (NRC) which will:

1. Evaluate the effectiveness of the current benchmark monitoring provisions in the Industrial Stormwater MSGP;

2. Evaluate the current numeric retention standards and the relative merits of infiltration versus discharge treatment for improving water quality; and

3. Prioritize industry sectors for the development of numeric effluent limitations or other stormwater control measures, as well as evaluate the need for additional monitoring requirements in certain situations (e.g., discharges to impaired waterbodies).

The target date for completing the NRC study is August 2018, and the U.S. EPA has agreed to consider the NRC’s recommendations when drafting the next version of the Industrial Stormwater MSGP for reissuance. The U.S. EPA has also agreed to evaluate effluent limitations from other jurisdictions prior to finalizing the effluent limitations in the revised Industrial Stormwater MSGP.

Equally important, the settlement agreement establishes a new three-tier structure for responding to exceedances of the benchmark monitoring thresholds. This new structure will require permittees to take more aggressive action (Additional Implementation Measures) to respond to benchmark monitoring exceedances.

Other significant requirements in the settlement agreement include: (i) potentially delaying authorization to discharge stormwater if the facility is subject to a pending stormwater enforcement action (including any citizens suit); (ii) potentially prohibiting stormwater discharges from surfaces paved with coal tar sealant; and (iii) potentially expanding monitoring requirements for discharges to impaired waterbodies.

Finally, the settlement agreement obligates the U.S. EPA to pay $165,000 in attorneys’ fees to the plaintiffs.

Industrial operations that currently discharge, or may in the future discharge, stormwater should recognize that this settlement agreement seeks to ensure that the next iteration of the Industrial Stormwater MSGP will have substantially more stringent stormwater monitoring and control requirements. Members of the regulated community should start to plan for that possibility as they evaluate and update their stormwater management systems. Likewise, they should also anticipate the need to participate vigorously in the public comment process that will precede issuance of the next Industrial Stormwater MSGP to ensure that the U.S. EPA has a complete and balanced administrative record to guide its regulatory decision-making.