Residual Designation Authority and Stormwater Pollution: Forcing Agencies to Protect Our Waters

Abstract

In 2003, the Vermont Water Resources Board held that a “suite of pollutants” from urban stormwater runoff into four Burlington-area brooks exceeded what the waters could handle. The decision marked the beginning of a saga that would reveal a groundbreaking legal strategy in fighting stormwater pollution. The situation in Vermont represents a small-scale example of the disastrous stormwater problem facing the United States - where substantial pollution from urban areas, storm sewers, and construction projects remain unregulated under the Clean Water Act. Therefore, the Vermont litigation provides a framework that other citizen groups can use to enforce this provision of the Act. In June 2003, the Conservation Law Foundation (CLF), a New England environmental advocacy group, petitioned the Vermont Agency of Natural Resources (ANR) to recognize that stormwater discharges into these brooks required National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act. The petition called on the state environmental agency to write national permits for discharges that the agency had already determined contributed to water quality standard violations in the brooks. The action spawned more than five years of litigation and culminated in the first time any court had squarely addressed the issue of whether states must exercise their residual designation authority (RDA) under the Clean Water Act once they find discharges “contribute” to water quality standard violations. In Vermont, they do have to exercise this authority once the facts are there to show the connection between the discharge and the water quality violation. The Vermont Environmental Court decided the CLF petition case correctly. Once agencies realize there are discharges that contribute to water quality standard violations, they should write NPDES permits. The Clean Water Act’s goal is to eliminate the discharge of pollutants into our waters, and we cannot do this by ignoring a substantial amount of the problem. For example, in Vermont, the Environmental Court found that the state’s stormwater program would hopefully contribute to solving the water quality problems at hand. However, the reality was that the program was far from fully implemented, and the state could not use it as a shield to guard it from fulfilling its RDA obligations. Comprehensive measures are ultimately necessary to eliminate stormwater pollution. In the interim, citizens should utilize strategies like RDA to control pollution. This article argues that Vermont got it right in finding that agencies must write NPDES permits once they find that point source stormwater discharges contribute to water quality standard violations. Citizen groups should take advantage of this decision and use the momentum to encourage a fresh look at stormwater that provides more action sooner. The article will act as a guide to other citizen groups and inform them what worked and what did not in the CLF litigation so that groups can use a similar strategy themselves. It also recognizes that RDA is only a temporary fix to the problem and land use regulation plays an important role in curing the stormwater problem. Finally, this note advocates widespread use of RDA on a national scale. Part I of this note provides an overview of the water quality problems Vermont faces due to storm water pollution. It also shows where Vermont sits on the national stage and what makes the problems in Vermont different from those in other parts of the country. Part II outlines the litigation surrounding the residual designation authority issue. It explains the cases in Vermont where CLF succeeded in forcing ANR to require individual permits for storm water discharges that contribute to violations of water quality standards. Part III argues that RDA is an effective way to protect against storm water pollution, but agencies should also use other tools, like land use law, to solve the problem. Part IV argues that RDA should be used and is an effective tool to require permits where established violations exist.