Although the focus and priorities of a new US EPA administration under President-elect Trump remain unclear, regulatory changes may be in the works that could require certain industrial entities to either change how they handle stormwater discharges or face lawsuits brought by environmental groups. As described more fully below, US EPA entered into a settlement agreement on August 16, 2016 with a coalition of environmental organizations related to US EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP). That settlement agreement contemplates changes to US EPA’s next promulgation of the MSGP, which applies to stormwater discharges associated with activities within a wide range of industrial sectors including coal mining, oil and mineral extraction, cement manufacturing facilities, landfills, paper and printing facilities, junk yards, and others.
Regulation of stormwater discharges—and, more particularly, industrial stormwater regulation—in the United States has evolved slowly in comparison to regulation of wastewater discharges. The Federal Water Pollution Control Act Amendments of 1972 (the Clean Water Act) established a prohibition, which remains in effect, on unpermitted discharges of any pollutants from a point source to navigable waters. Despite the fact that many stormwater discharges fall under this prohibition, US EPA primarily targeted municipal and industrial wastewater for regulation in the years following the 1972 Act. By the late 1980s, wastewater discharge regulations had begun to achieve adequate control of these sources of pollution. A 1986 Report to Congress indicated that states had determined that municipal wastewater remained the prominent source of impairment for only 17 percent of impaired river miles (industrial wastewater was only listed as the prominent source of impairment for 9 percent). Thus, when Congress amended the Clean Water Act in 1987, it directed US EPA to regulate stormwater discharges, including those discharges associated with industrial activity (see33 U.S.C. § 1342(p)).
In 1990, US EPA promulgated rules for stormwater permitting in accordance with the Clean Water Act. In order to balance the goals of the Act with the burden of regulating stormwater discharges, the regulation established a combination of individual, group, and general permits for the regulation of stormwater discharges associated with industrial activities. Building off of this rule, in 1995, US EPA issued its first multi-sector general permit for stormwater discharges associated with industrial activities. Industrial facilities covered by the MSGP were required to develop a stormwater pollution prevention plan and to perform some level of monitoring. Since then, most states with Clean Water Act authority have developed their own MSGPs (for example, California, Texas, New York, Ohio). Nevertheless, the current federal MSGP still applies in areas throughout the country (including throughout the states of Idaho, Massachusetts, New Hampshire, and New Mexico) and has been utilized as a template to develop a majority of the state industrial stormwater permits.
Despite objections by environmental groups that US EPA failed to establish numeric discharge limits and failed to update monitoring requirements despite critical conclusions on the MSGP that the National Research Council (NRC) had reached in a 2009 Report, US EPA promulgated the current MSGP on June 16, 2015. The Waterkeeper Alliance, the Conservation Law Foundation, and two other groups ofenvironmental organizations petitioned for review of the MSGP; however, these petitions are unlikely to be litigated on the merits in light of the Waterkeeper Alliance’s announcement in August that a landmark agreement had been reached and the subsequent grant of a motion to hold the cases in abeyance in light of the agreement.
The settlement agreement requires US EPA to fund a new NRC report that will evaluate monitoring changes and numerical limits that might be incorporated into a future MSGP. The required NRC report is expected to be finalized by August 2018. US EPA is also now committed to proposing Additional Implementation Measures requirements in the 2020 MSGP that will require an industrial stormwater discharger to take some form of action in response to an exceedance of a pollutant benchmark concentration. While the agreement leaves the 2015 MSGP in place and does not mandate that US EPA promulgate changes to the 2015 MSGP, industrial entities discharging stormwater under the MSGP should closely monitor US EPA’s actions following the settlement agreement as they may include monitoring changes or the incorporation of numerical limits into the 2020 MSGP.
Following the 2016 election, many environmental regulations seem set to be weakened or overturned by the new administration. For example, President-elect Trump has indicated that he will eliminate “intrusive” rules such as the Obama administration’s “waters of the United States” rule. Additionally, his 100-day action plan promises to eliminate two regulations for each new regulation promulgated. It is unclear precisely the extent to which the August 16, 2016 settlement agreement will result in changes to the MSGP. However, the MSGP settlement agreement requirements may cabin the next administration’s discretion when it re-evaluates the MSGP terms in 2020. Squire Patton Boggs will continue to monitor and provide updates on this issue.