Washington to Reissue Municipal Stormwater Permits; Litigation Resolved

Following decisions by the Washington Pollution Control Hearings Board (“Hearings Board”) and settlements reached with municipal stormwater dischargers and environmental groups, Washington will begin modifying municipal stormwater permits initially issued more than two years ago. The proposed modifications include a requirement that certain major Western Washington municipalities use so-called “low impact development” (“LID”) techniques.

Municipal Stormwater Permits in Washington

Most stormwater runoff collected in municipal separate storm sewers and discharged to surface waters is now required to have a National Pollution Discharge Elimination System (“NPDES”) permit under the federal Clean Water Act (“CWA”).[1] In the 1990s, the Environmental Protection Agency (“EPA”) enacted stormwater regulations that established a two phase (Phase I and Phase II) municipal stormwater permit program. EPA has delegated to the Washington Department of Ecology (“Ecology”) the authority to implement the CWA and permit municipal stormwater discharges in Washington State. Additional state authority for the permit program is found in the Washington Pollution Control Act (“WPCA”)[2] and Ecology’s Water Quality Regulations.[3] EPA has identified stormwater discharges as a major source of pollution for all waterbody types in the United States[4] and Ecology has in turn identified stormwater runoff as the state’s largest source of urban water pollution.[5]

Effective February 16, 2007, Ecology revised its existing Phase I Municipal Stormwater General Permit. At the same time, Ecology issued new Phase II Municipal Stormwater General Permits for Eastern and Western Washington impacting 100 cities, 13 counties, and other entities and, for the first time, requiring them to regulate discharges from their stormwater systems. The 2007 Phase I and II Municipal Stormwater permits required municipalities and other public entities to adopt ordinances or otherwise develop and implement stormwater management systems that include stormwater runoff controls from new development, redevelopment, and construction sites; and pollution prevention.[6] For more on Ecology’s Phase I and II Permits see Washington State Issues New Stormwater Permit Rules Affecting 100 Cities, 13 Counties, Marten Law Group Environmental News (February 21, 2007).

The Hearings Board Litigation

Environmental groups appealed the 2007 Phase I and II permits to the Hearings Board, arguing that they are not sufficiently protective.[7] A number of cities, counties, and other Phase I and II permittees also appealed the permits, contending that they were unduly burdensome.[8] Seven appellants and four intervenors participated in the Phase I permit appeal. Five appellants participated in the Western Washington Phase II permit appeal and two appellants participated in the Eastern Washington Phase II permit appeal. The appellants raised more than 40 separate appeal issues.

The Hearings Board conducted pre-hearing conferences, and entered separate pre-hearing orders for the Phase I and Phase II appeals. The Hearings Board consolidated the Western Washington and Eastern Washington Phase II permit appeals for purposes of hearing. The appeals process resulted in several Hearings Board decisions, including separate August 7, 2008 orders on the Phase I permit appeals and permit Special Condition 4.F (“Condition S4.F”) which appears in all three permits, and a February 2, 2009 order on the Phase II permit appeals.

One of the early issues the Hearings Board addressed on appeal was the permits’ Condition S4.F, which sets forth the standards by which Ecology will direct a permittee to adapt its stormwater facility to manage site-specific water quality violations caused by municipal stormwater discharges. Ecology crafted Condition S4.F to protect municipalities from CWA citizen suits, through a permit condition which allowed them an opportunity to identify and report water quality violations, engage in an adaptive stormwater management process with Ecology, and remain in compliance with the permit as long as the municipality is timely complying with the process.[9] On August 7, 2008 the Hearings Board issued a decision that while Ecology’s approach was valid, the permits’ Condition S4.F failed to provide reasonable assurance that permittees will comply with water quality standards because it lacks adequate timelines, standards, and accountability.[10] The Hearings Board, therefore, remanded all three permits to Ecology with specific directions to modify Condition S4.F.[11]

The Hearings Board’s decisions did not, however, resolve all issues raised by the appellants and intervenors. During the hearing process, Ecology and the permittees resolved some issues through stipulations and settlements. For example, in March 2008, Ecology reached a settlement with several Phase I permittees modifying the Phase I permit’s stormwater monitoring procedures.[12]

Municipal Permit Modifications

As a result of the Hearings Board’s decisions and settlements reached in the litigation, Ecology took the following steps. First, Ecology modified conditions in all three permits related to compliance with water quality standards; including Total Maximum Daily Load Requirements (water quality cleanup plans); and made related changes in the general conditions in the permits having to do with reporting, definitions, and annual report forms. Ecology’s proposed modified permits are available here.

Second, Ecology modified the Phase I Permit conditions for construction and post-construction runoff controls related to manual approval and low-impact development. Ecology added Appendix 10 to the permit, which lists the Phase I permittee documents approved by Ecology.

Third, Ecology modified the Western Washington Phase II permit to add reporting requirements on advancing the use of LID. LID includes using porous pavement, vegetated swales, “green” roofs, and rain gardens to help reduce stormwater runoff. For more on LID and stormwater see A Perfect Storm(water), Marten Law Group Environmental News (March 19, 2008).

Finally, Ecology changed requirements for structural stormwater controls; clarified water cleanup plan requirements in Snohomish County; exempted mitigation sites at the Ports of Tacoma and Seattle from certain requirements; and changed monitoring requirements.

The Hearings Board upheld the Eastern Washington Phase II permit as drafted by Ecology. Ecology is, therefore, not required to modify that permit. Ecology has, however, now modified the Eastern Washington Phase II permit to add requirements for the Selah Ditch Total Maximum Daily Load. Those requirements only apply to the City of Selah, Washington.

Low Impact Development Requirements

Probably the most significant new requirement on dischargers resulting from the Hearings Board decisions is the requirement that municipal dischargers adopt LID techniques. Washington is the first state in the nation to require local governments to use LID techniques to control stormwater “where feasible.” The LID requirement first arose from a Hearings Board order that applies to Phase I permittees, including the cities of Seattle and Tacoma, Clark County, King County, Pierce County, and Snohomish County; local governments encompassing western Washington’s most populous areas.[13]

The Hearings Board later issued a decision on the Western Washington Phase II permit that did not require the use of LID by the state’s smaller municipalities but did direct Ecology to modify the permit to encourage broad use of LID on the west side of the state.[14] Ecology also regulates stormwater discharges under several other separate general permits to which Ecology or the Hearings Board could extend LID, including the Industrial Stormwater General Permit and the Construction Stormwater General Permit. For more on Washington’s LID requirement see Washington State First to Require Low Impact Stormwater Management Techniques, Marten Law Group Environmental News (September 3, 2008).

Workshops and Public Hearings

Ecology is seeking input on options for extending interim deadlines in the permit as well as innovative and cost-saving ideas to achieve compliance with the permit at a lower cost. Ecology is also looking for ways to improve performance and reduce costs in light of the economic situation. Ecology does not intend, however, to reduce the permit standards or extend the timelines beyond the current permit cycle, which ends February 16, 2012.

During the public comment period, Ecology will host five workshops and two public hearings. The workshops provide an informal venue in which Ecology will discuss the proposed permit modifications and answer questions about them. The public hearing is a formal hearing process where the public may provide testimony for the official record. Ecology may not respond to questions or comments during the formal hearing. Ecology will issue an official Response to Comments that addresses written comments and oral testimony some time after the close of the public comment period. If public comments cause substantial changes, Ecology may begin another public notice of draft modifications and comment period. Ecology will issue the final permit modifications after it considers all public comments and makes final changes to the draft permit modifications.

For more information on municipal stormwater permits and Marten Law Group’s water quality practice please contact Jeff Kray.