Washington State Decision Makes LID Mandatory
Communities examine the definition of “where feasible.”
Tuesday, June 30, 2009
By Henrietta H. P Locklear
A popular concept among municipal
separate storm sewer systems (MS4s) implementing stormwater regulations—as well
as their regulators, the environmentally concerned, forward-thinking engineers,
developers, and other stakeholders—is that stormwater runoff should be treated
using natural practices or means that mimic natural practices, so that the
natural hydrology of a developed site is maintained. This concept is often
called low-impact development (LID), but it is also referred to under a newer,
broader heading, green infrastructure. In the stormwater world these days, it is
impossible to go far without running into these terms, whether in a discussion
about how a city will implement LID concepts through a new ordinance or at a
national conference on green infrastructure research.
LID is poised to become an even
more ubiquitous term and to be implemented on a more-widespread basis. A
decision in a Washington state lawsuit over National Pollutant Discharge
Elimination System (NPDES) permit language illustrates the increasingly
important role of LID. Issued in August 2008, the ruling concludes that the
Washington “Phase I Permit must be modified to require the use of LID where
feasible, as it is necessary to meet the MEP [maximum extent practicable] and
AKART [all known and reasonable technology] standards of federal and state law,
respectively” (PCHB 2008). The permit provision that was overturned by this
decision simply encouraged LID. Because of the ruling, Phase I permittees in
Washington will now require new developments to implement LID where
feasible.
The Phase I ruling is the first
decision that directly requires LID to be implemented through means of an NPDES
permit. Many see the decision as an important event in the evolution of the
NPDES permitting program. The country will watch as the decision is implemented,
both as an example of how a mandatory LID program works and how several
important matters left unresolved by the decision will be handled.
Another decision, affecting the
Western Washington Phase II permit, was issued in February 2009. While it is
less radical, it too will drive the implementation of LID in Washington.
A History of the Decisions
Washington State’s newest NPDES
permits. The Washington Department of Ecology, the NPDES regulator for the
state, issued the new Phase I and Phase II permits on January 17, 2007. The
permits took effect on February 17, 2007. The Phase I permit covers the cities
of Seattle and Tacoma, Clark County, King County, Pierce County, and Snohomish
County, as well as a number of secondary permittees, including the Ports of
Tacoma and Seattle. There are two Phase II permits, one for the eastern and one
for the western part of the state.
The Environmental Hearings Office
in Washington state is an “independent quasi-judicial state agency” housing
several hearing boards: Pollution Control Hearings Board (PCHB), Shorelines
Hearings Board, Forest Practices Appeals Board, Environmental and Land Use
Hearings Board, and Hydraulic Appeals Board. The PCHB hears “appeals from
decisions and orders made by” the Department of Ecology, local and regional air
boards, and other agencies as specified by state law.
Immediately upon the issuance of
the new permits, a variety of groups appealed them to the PCHB, including
municipalities subject to the permits, environmental groups, and utilities. The
appeals were consolidated into several cases, one of which concerned the issues
associated with the Phase I permit.
One of these Phase I permit
issues: Does the permit fail to require maximum onsite dispersion and
infiltration of stormwater through the use of LID techniques, basin planning,
and other appropriate technologies, and, if so, does that failure unlawfully
cause or contribute to violations of water quality standards? And, if so, does
that failure unlawfully allow permittees to discharge pollutants that have not
been treated with all known AKART, and/or fail to reduce the discharge of
pollutants to the MEP? The decisions issued on the Phase I and II appeals
included the Board’s rulings on LID.
The Phase II permit issues were
heard by the PCHB separately from the Phase I issues. Although the same LID
issue was also raised for the Phase II permit, hearings on the Phase II issues
were not concluded until October 2007. The Phase II ruling was issued February
2, 2009.
The Phase I Decision
As stated in the decision, “the
Board concludes that the Phase I Permit fails to require that the municipalities
control stormwater discharges to the maximum extent practicable, and does not
require application of all known, available, and reasonable methods to prevent
and control pollution, because it fails to require more extensive use of
low-impact development techniques” (PCHB 2008). The board’s line of reasoning is
woven over nearly 20 pages in the decision. Essentially, the board found, from
evidence presented at the hearings, that LID is a “known and available
technology” (ibid). That is, LID is a well-developed technology as evidenced
through guidance, design standards, and other documents. In addition, the board
found that LID is “technologically and economically feasible and capable of
application at the site, parcel, and subdivision level at this time” (ibid). As
an available and feasible technology, LID has become part of the techniques to
control stormwater to the “maximum extent practicable,” according to the board
(ibid).
In accordance with its findings,
the board directed the Department of Ecology to make specific changes to some
provisions in the permit, including its direction to Ecology “to require the
permittees to develop methods for use of low-impact development at parcel and
subdivision levels in their jurisdictions” (PCHB 2008). As stated earlier, the
board concluded that the “Phase I Permit must be modified to require use of LID
where feasible” (ibid).
At the “basin and watershed
level,” the implementation of LID presents some feasibility challenges that the
board did not feel could be overcome immediately. Therefore, the board directs
the Department of Ecology to ready itself to require LID at the basin and
watershed level in the future.
The Phase II Decision
The board’s decision on LID for
Phase II communities applies to the Phase II permit for the western part of the
state only. While resting on the findings of the Phase I decision concerning the
availability and feasibility of LID, the recent decision draws a distinction
between how quickly Phase I and Phase II communities will be required to
implement LID, because Phase II communities vary widely in technical and
financial resources. The decision “concludes that the current language of the
Phase II permit, which requires adoption of ordinances or other enforceable
mechanisms to allow for LID, is permissible, but requires Ecology to define in
the Permit further steps to advance LID by the Phase II jurisdictions. The Board
concludes that Ecology must modify the permit to require permittees to identify
barriers to implementation of LID and identify actions taken to remove those
barriers, to establish goals regarding the future use of LID, and to require
other specific actions on reasonable and flexible time frames, both during this
permit cycle and in anticipation of future permits” (PCHB 2009).
LID and Its Integration Into Stormwater
Regulations
LID is defined in the Washington
Phase I permit as “stormwater management and land development strategy applied
at the parcel and subdivision scale that emphasizes conservation and use of
onsite natural features integrated with engineered, small-scale hydrologic
controls to more closely mimic pre-development hydrologic functions” (PCHB
2008). LID was pioneered in Prince George’s County, MD, in the 1990s (EPA 2000).
Its goals and principles focus on protecting receiving waters through improved
stormwater treatment technology and encouraging environmental stewardship
through environmentally sensitive development (Prince George’s County 1999). The
county’s LID manual describes practices and design elements to implement LID,
such as reduced impervious surfaces, functional grading and open channel
sections, disconnection of hydrologic flowpaths, bioretention/filtration
landscape areas, microstorage, functional landscaping, increased runoff travel
time, and so forth.
While local governments struggle
with the implementation challenges that come with encouraging stormwater
solutions that touch individual lots in subdivisions, more and more regulations
and design standards encourage or require LID. The trend is found at the
national, state, and local levels.
At the top of the NPDES permitting
chain, the EPA is moving toward LID. The Washington decision itself notes that
the EPA has not required LID, but is increasingly supporting it through
publications, fact sheets, and its Web site (PCHB 2008). In addition, through
its Green Infrastructure Initiative, the EPA is undertaking concrete steps to
promote development that uses natural practices. The EPA signed an agreement in
April 2007 to “promote green infrastructure as an environmentally preferable
approach to stormwater management,” along with four other groups (EPA 2008).
Early in 2008, the groups published their Action Strategy for Managing Wet Weather
with Green Infrastructure, which outlines a comprehensive set of objectives
and strategies to further research, acceptance, and implementation of green
infrastructure. Among the objectives under the “Clean Water Act Regulatory
Support” area is the objective: “Develop model permit language for MS4 permits
that will specifically incorporate green infrastructure management practices
into municipal stormwater programs. Conduct pilot tests of the model language in
permits, as appropriate.” The model permit language is to focus “on processes of
infiltration, reuse and evapotranspiration, and simultaneously consider both
site design and community design/regional issues.” According to the strategy
document, pilots are underway with the Tennessee and Virginia permit language.
Because the EPA directs the NPDES program carried out at the state permitting
and local level, the EPA’s focus on this manner of stormwater treatment is
significant. The EPA’s direction will be felt at the state and local levels.
In other quarters, LID appears in
manuals and regulations as either a mandatory or preferred approach. At the
state level, Washington’s own manuals are just one example. The Puget Sound
Action Team’s manual, published in 2005, is a “comprehensive, technical guidance
manual for the use of LID in the Puget Sound area” (PCHB 2008). In Maryland, LID
is the preferred stormwater management approach. Among local governments, the
city of Salinas, CA, published its Development Standards Plan: LID Practices
for Urban Storm Drainage Management, in 2005, in accordance with the
California State Water Resources Control Board’s policy that sustainability be
considered in all policies, guidelines, and regulations. And Warsaw, VA,
requires LID as the standard stormwater management method. In the Washington
state decision, the preponderance of guidance and technical information that is
available, like the guidance mentioned here, was used as part of the board’s
argument that LID is MEP (PCHB 2008).
The Definition of Maximum Extent
Practicable
By specifying that the MEP
standard is not met without a
requirement for LID, the PCHB made an important impact upon the definition of
MEP for stormwater. A guidance document on NPDES permit writing states, “MEP has
not been defined by EPA, but is intended to be flexible to allow the
development of site-specific permit conditions based on the best professional
judgment of the permit writer” (Gentile et al. 2003). The MEP standard has been
described as a “flexible technology-based standard” (Debo 2003).
Through this decision, LID makes
the leap from its innovative roots to become standard stormwater management. If
this kind of change becomes widespread, as the EPA’s path indicates it will, the
response of regulators and the regulated community will be fascinating to watch.
How will permitting and regulation change to focus on parcel-level treatment?
What new methods for treating stormwater may emerge?
Unresolved Issues
Because the decision contains
language that is yet to be interpreted, the implementation of the permit will
also be of interest. For instance, one attorney pointed out that the definition
of the term “where feasible” will have a significant impact upon the eventual
LID standards in Phase I communities (Kray 2008).
The Phase II decision sheds some
light upon how issues are being addressed. The Department of Ecology is working
on defining detailed LID requirements and possibly a performance standard.
Ecology is considering convening a workgroup that “would attempt to reach
consensus on aspects of LID” (PCHB 2009). According to the decision, the details
will be worked out in the next 12 to 24 months, nearing the end of the permit
term.
The implementation of mandatory
LID in the revised Phase I permit will pioneer the concept among NPDES permits.
The country will watch with interest as the Department of Ecology, permittees,
and stakeholders work through the details.
Author's Bio: Henrietta H. P. Locklear is with AMEC Earth and Environmental Inc. in Raleigh, NC. |
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