PennFuture legal appeal leads to improvements in Pennsylvania stormwater program

               PennFuture has scored an important win that will help to improve water quality in Pennsylvania. On November 19, PennFuture and the Pennsylvania Department of Environmental Protection (“PADEP”) entered into a Stipulation of Settlement (“Settlement”) that will improve Pennsylvania’s program for preventing stormwater runoff from polluting our streams and rivers. 

Background

               Before we get to the details of the legal case and its settlement, let’s start with a little bit of background. Although it’s easy to overlook, stormwater from rain and snow events is actually a significant cause of water pollution in our streams and rivers. As the precipitation runs down rooftops and over dirty streets and sidewalks, it collects pollutants like oil, fertilizers, litter, and pet waste. In areas that drain to the municipal separate storm sewer systems (“MS4s”) found in many Pennsylvania municipalities, that polluted runoff usually is carried directly into our streams and rivers without being treated.

                Addressing polluted runoff has become a focus of federal and state environmental officials recently. In 2003, the Environmental Protection Agency's (EPA) “Phase II” stormwater program extended stormwater permitting requirements to “Small MS4s,” thereby significantly increasing the number of municipalities required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits for their MS4 systems. EPA has also limited the amount of pollution that certain Small MS4s can discharge into waters that have been classified as impaired. These limits are called wasteload allocations (“WLAs”) and are contained in Total Maximum Daily Load (“TMDL”) reports issued or approved by EPA.

Under Pennsylvania’s MS4 permitting process, municipalities may either apply for an individual MS4 permit or (if they qualify) for coverage under the general permit called PAG-13. Any municipality subject to a WLA is required to submit to PADEP as part of its permit application a “TMDL Plan” to explain how the municipality will comply with the pollutant limits. Under the current system, municipalities are permitted to submit their TMDL Plans in two parts: TMDL Strategies and TMDL Design Details. TMDL Strategies must be submitted with the application or notice of intent (“NOI”) seeking coverage under the permit; TMDL Design Details do not need to be submitted until one year after permit coverage is granted. Under the existing system, the requirement to submit a TMDL Plan does not affect a municipality’s eligibility for coverage under PAG-13.

PennFuture’s Appeal

                In July 2013, PennFuture filed an appeal of PADEP’s approval of coverage under the general permit PAG-13 for Upper Gwynedd Township’s Small MS4. (PA Environmental Hearing Board Docket No. 2013-105-L.) Upper Gwynedd Township had submitted to PADEP its TMDL Strategy and a request for permit coverage under PAG-13. As allowed by PADEP’s permitting procedures, Upper Gwynedd did not have to submit its TMDL Design Details until one year after the Department granted permit coverage, but PADEP’s procedures did not provide a mechanism for the public to provide input on the Design Details submission.

In its appeal, PennFuture objected to both the specifics of the township’s TMDL Strategy as well as deficiencies in PADEP’s MS4 permitting program.  PennFuture’s objections included the following:

• PADEP should not allow the use of a general permit in cases where EPA has determined in a TMDL report that the Small MS4 seeking permit coverage (such as Upper Gwynedd Township), has caused or contributed to listed impairments of surface waters.
• PADEP’s permitting process did not provide an adequate opportunity for public participation because, among other things, it did not allow for the public review and comment on the TMDL Design Details portion of the Township’s TMDL Plan.
• The Township’s method (implicitly approved by PADEP) for amending the allocation of allowable pollutant loads in EPA’s TMDLs (known as “parsing”), did not provide sufficient opportunity for public input or EPA review and approval. 
• Upper Gwynedd’s TMDL Strategy contained significant errors and omissions, and failed to prove that the township would satisfy its TMDL WLA obligations.   
  

The Agreement

                After over a year of negotiations, PennFuture and the Department agreed upon the Settlement, which addresses PennFuture’s most important objections. The terms of the settlement document cover seventeen pages and are available here, but the highlights are outlined below. Many of the tentative changes below will be officially proposed by PADEP in 2015 and will, themselves, be subject to a public notice and comment period (and possible revision) before being implemented. As a result of the settlement:

• PADEP will propose a revised version of PAG-13 that will exclude from coverage any Small MS4 subject to a nutrient or sediment WLA.  Assuming that the draft PAG-13 is adopted in its proposed form, all of these Small MS4s would be required to obtain individual permits and submit TMDL Plans in the next permit cycle beginning in 2018. 
  • For TMDL Plans (or components thereof – Strategies or Design Details) currently pending, PADEP will require all Small MS4s to: (1) notify the public when such TMDL Plan documents are ready for submission to PADEP; and (2) respond to public comments about the TMDL Plan documents before submitting those documents to PADEP.  These requirements will continue during the next permit cycle.
  • Beginning in the next permit cycle, TMDL Plans must be submitted in a single step, as part of the permit application. Municipalities will no longer be allowed to wait until a year after permit issuance to submit the Design Details.
• PADEP will develop checklists and guidelines for its review of TMDL Plans to ensure the quality of the TMDL Plans and consistency of review.
• PADEP will hold workshops beginning in 2015 to explain the improved MS4 permitting process and to provide guidance for municipalities required to prepare TMDL Plans. PADEP will also provide guidance to municipalities for WLA parsing methods approved by EPA. The public will be able to review each municipality’s WLA parsing calculations as part of the public review of the TMDL Plan.
• For Small MS4s subject to pollutant reduction requirements for pollutants other than nutrients or sediment – mine drainage metals, bacteria/pathogens, and priority organic pollutants – PADEP’s draft revision to PAG-13 will include standardized pollutant reduction requirements geared to each category. This change, which would be implemented during the next permit cycle, would replace the current requirement for each municipality to develop its own reduction plan.
  

The process improvements that result from this case will lead to better municipal plans for stormwater management – and ultimately cleaner waters – for all Pennsylvania citizens.

Mike Helbing is staff attorney for PennFuture and is based in Philadelphia.

Lobsters making the case on warming oceans

Drastic declines in New England lobster larvae over the past year may be linked to rising ocean temperatures, not over-fishing, warns Dr. Rick Wahle of the School of Marine Science at the University of Maine.

Dr. Wahle and his crew of divers, who track lobster harvest data for the American Lobster Settlement Index, have seen a recent “widespread downturn” in the populations of larval lobsters. Although the adult population of lobsters is unchanged, Dr. Wahle’s research suggests that oceanographic changes are responsible for the sudden decline in lobster eggs.

Young lobster populations are approximately 50 percent of what they were in 2007. Recently, summer waters have been warmer than the lobster comfort zone (below 68° F), creating stress for lobsters. Complicating matters for lobster populations, warmer waters off the New England coast also aggravate a shell disease that eats away at lobster shells. The disease can be fatal to the crustaceans or make them unmarketable for selling live. As a result of the temperature changes affecting their habitat, lobster populations have been pushing north into areas that were once too cold for lobsters to thrive. 

Illustration of the water cycle and its interaction with the 

greenhouse effect.  The upper-left insert indicates the 

relative increase of potential water vapor content in the air 

with an increase of temperature (roughly 7% per degree).  

The white curls illustrate evaporation, which is compensated 

by precipitation to dose the water budget.  The red arrows 

illustrate the outgoing infrared radiation that is partly 

absorbed by water vapor and other gases, a process 

that is one component of the greenhouse effect. 

The stratospheric processes are not included in this figure.  

Reproduced with authorization from: Myhre, G., D. Shindell, 

F.-M. Bréon, W. Collins, J. Fuglestvedt, J. Huang, D. Koch, 

J.-F. Lamarque, D. Lee, B. Mendoza, T. Nakajima, 

A. Robock, G. Stephens, T. Takemura and H. Zhang, 

2013: Anthropogenic and Natural Radiative Forcing. 

In: Climate Change 2013: The Physical Science Basis. 

Contribution of Working Group I to the Fifth Assessment 

Report of the Intergovernmental Panel on Climate Change 

[Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, 

J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. 

Cambridge University Press, Cambridge, United 

Kingdom and New York, NY, USA. 

Over the past 50 years, the ocean has borne the brunt of climate change. Sea surface temperature changes are among the dangers associated with climate change. The average temperature of the global ocean has increased down to depths of at least 3,000 meters. See Intergovernmental Panel on  Climate Change (“IPCC”), Contribution of theWorking Group I to the Fourth Assessment Report of the IPCC, 408-21 (S. Solomanet l. eds. 2007).

In its most recent report, the IPCC estimated that oceans absorb approximately 90 percent of the heat added to the climate system, and the multinational experts report with high confidence that it is very likely that the increase in global ocean heat content observed has a substantial contribution from human activity. See IPCC, Climate Change 2013: The Physical Science Basis, Ch. 10.901-03 (Cambridge University Press 2013).  

Humans have an impact on water temperature in ways that extend beyond climate change as well.  When an industry uses water for processes such as cooling, the facility often discharges water that is hotter than the temperature of the receiving waters. When a power plant, for example, discharges heated water to a river, it can create a thermal plume or area of elevated temperature within that river. This human-caused change in the temperature of surface water is known as thermal industrial pollution. The combination of thermal industrial pollution with other forms of water pollution such as chemical or biological contamination can create severe stresses on aquatic ecosystems. See IPCC 2013, Ch. 10, at 869-928. In local areas, it can also intensify the effects of higher temperatures caused by climate change.

The EPA has the power to limit thermal industrial pollution because heat is defined under the Clean Water Act as a pollutant. 33 U.S.C. § 1362 (6).  Section 301(a) of the Clean Water Act prohibits the discharge of any pollutant by any person unless otherwise permitted under the Act. 33 U.S.C. § 1311(a). 

In order to qualify to release these pollutants, a discharger must obtain a National Pollutant Discharge Elimination System (NPDES) permit approved by EPA or a qualified state agency.  33 U.S.C. § 1342. The NPDES permit contains limitations on the quantity or concentration of pollutants, including heat, which the facility can discharge into a natural water body. 33 U.S.C. § 1342. 

Courts have recognized the importance of the direct effects of thermal industrial pollution in reversing approval of a permit for construction of two nuclear power plants. Duke Power vs. Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (1978), citing United States v. SCRAP, 412 U.S. 669, 686-87 (1973). (“Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes in the vicinity of the disputed power plants is the type of harmful effect which has been deemed adequate in prior cases to satisfy the ‘injury in fact’ standard.”)  

In order to fully account for the harm to water bodies from the effects of higher temperatures, it is important to consider the effects of both climate change and thermal industrial pollution together. Fortunately, federal law requires EPA to do just that when it conducts environmental reviews as part of its NPDES permitting process for new sources. For industrial facilities considered “new sources” under the Clean Water Act, 33 U.S.C. § 1316(a)(2), EPA must conduct an environmental review under the National Environmental Policy Act (NEPA). 33 U.S.C. §1371(c)(a). NEPA requires the federal agencies to fully consider the environmental impact of actions it permits by considering, among other things, the “cumulative impacts” of all actions that could impact the environment. 40 C.F.R. Parts 1500-1508; see 42 U.S.C. § 4332.

In a draft guidance document published in 2010, the Council on Environmental Quality recognized the importance of incorporating the effects of climate change on the environment when conducting an environmental review under NEPA. Council on Environmental Quality, 2010. DraftNEPA Guidance on consideration of climate change and GHG emissions.  Unfortunately, the cumulative effect of the impact of climate change is not always fully analyzed in NEPA reviews. See Patrick Woolsey, Consideration of Climate Change in Federal EISs, 2009-2011, Centerfor Climate Change Law, Columbia Law School, July 2012, at 15-16. By incorporating a robust analysis of the effects of climate change into its NEPA analysis for NPDES permitting decisions, EPA can better ensure that thermal industrial pollution does not compound the effects of climate change and exacerbate the plight of lobsters and other plants and animals that rely on a stable environment. 

Leading British economist Lord Nicholas Stern warns that we “grossly underestimate” the economic damage wrought by climate change. Indeed, lobsters are not the only aquatic organism that is sensitive to water temperature. The trout species that call Pennsylvania’s streams and rivers home also suffer stress at higher water temperatures. And, in fact, warming waters are but one of many of the impacts of climate change that can adversely affect both our environment and our economy.

To minimize those negative effects, we must not only address the direct causes of climate change, but we must also minimize other activities having negative effects on ecosystems. Although it will not stop climate change, if EPA closely monitors offshore and coastline discharges of heated water or other pollutants throughout the East Coast, it may improve the likelihood of survival for temperature-sensitive species like the New England lobster and Pennsylvania’s trout species.