Stormwater November/December 2011 : Page 8

GUEST EDITORIAL The Role Street Sweeping Must Play in Achieving Numeric Pollutant Limits BY ROGER C. SUTHERLAND R ecently, there have been some significant chang-es in the regulation of pollutants found in ur-ban stormwater. And it appears that more changes are still on the horizon. These changes have been categorized as either the establishment of numeric pollutant standards where narrative ones ex-isted previously or numeric effluent pollutant limits in stormwater discharges. In December 2009, EPA issued a fi nal rule that es-tablished numeric limits in stormwater discharges from construction sites that was to be implemented over a four-year period. However, lawsuits from the National Association of Home Builders and others have forced EPA into rewriting the new rules, which are now expected in 2012. As the result of a 2008 lawsuit from a coalition of environmental groups, EPA fi nalized numeric nutri-ent criteria (NNC) for Florida’s fl owing waters and lakes in November 2010. Additional NNCs are expected in No-vember 2011 for Florida’s estuaries and coastal waters. The NNCs that have been proposed will become the new water-quality standards for those parameters, essentially replac-ing the narrative standards that were previously used. The Conservancy of Southwest Florida noted in its NNC fact sheet that as of 2008, seven other states have already adopted NNCs for estuarine water bodies, 13 have adopted some NNCs for lakes, and nine have adopted some NNCs for rivers. In November 2010, EPA’s Offi ce of Water issued a memorandum en-titled “Revisions to the November 22, 2002, Memorandum Establish-ing Total Maximum Daily Loads (TM-DLs) Waste Load Allocations (WLAs) for Stormwater Sources and NPDES Permit Requirements Based on those WLAs”. The 2010 memorandum ad-dresses the use of water-quality-based effl uent limits in stormwater permits, including the use of sur-rogates such as fl ow or impervious cover. Many stakeholders including the American Public Works Associa-tion (APWA) were concerned that the 2010 memorandum seemed to imply that the National Pollutant Discharge Elimination System (NPDES) permit-ting authorities should impose end-of-pipe limitations on each individual outfall in every municipal separate storm sewer system (MS4). In response to the concerns raised, EPA issued further clarifi cations that the 2010 memorandum was not in-tended to result in the widespread use of numeric end-of-pipe limits in stormwater. In an effort to calm these types of fears, EPA further stated that the term “numeric effl uent limitation” should be read in a broader context than just end-of-pipe limitations and could instead relate to limitations ex-pressed as pollutant reduction levels for parameters that are applied sys-temwide rather than to individual dis-charge locations. Because the courts are likely to be the ultimate interpreter of the meaning of the 2010 memo-randum, these assurances from EPA of how the written words should be interpreted are of little comfort to the MS4s and other NPDES permit holders. In fact, as a result of continued concerns raised by APWA and others, EPA published the 2010 mem-orandum in the Federal Regis-ter as a proposal and accepted written comments on it up to May 16, 2011. EPA anticipates making a decision by Decem-ber 2011 as to whether to retain the memorandum as originally written without change, to reis-sue it with revisions, or to withdraw it altogether. Clearly, all of these actions and others that will follow in the future will have a fi nancial impact on mu-nicipal and industrial NPDES permit holders. But perhaps the greatest fi nancial impact will ultimately re-sult from a March 10, 2011, federal court ruling. This very recent opinion has broad implications for the capital and operational budgets of all MS4s. The Federal Court of Appeals for the Ninth Circuit has reaffi rmed that the Clean Water Act (CWA) requires that stormwater discharge points (e.g., pipes releasing stormwater into riv-ers, wetlands, and lakes) must have an NPDES permit because such dis-charge points are “point sources.” 8 November/December 2011

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