RDA – The New Thing in Stormwater (Maybe)

(photo from cbf.org/baydaily)

I was interviewed recently by Water Online regarding the Residual Designation Authority petitions filed this summer by a band of NGOs (see details on this here and here). I thought I was going to be one of several interviewed for the piece, but it turns out that it was only me and Jon Devine, the knowledgeable legal mind on stormwater issues with the Natural Resources Defense Council (NRDC).  The original version of the draft made it look like it was me vs. Jon, but that’s not really the way it was.  To the contrary, my point was that we need more information on the impacts of RDA to the public / municipal sector.  It could well be a boon that forces more equity regarding impacts of existing impervious cover on downstream areas – or it could become another unruly administrative burden for the public sector – consider that many/most (in my opinion) MS4 Phase II communities don’t have enough staff to oversee their own programs – and really this is an endemic problem for environmental programs in general – who has the staff to really do audits and provide enforcement as needed to make these program effective?

I provided comments on this original draft, and the author included these in the final version that can be found here.  This version is much more well-balanced and more accurately reflects the nuances of the issue – one of which is how stormwater fees are handled.  For instance, one could make the argument that those unregulated existing areas of imperviousness whose property owners are paying into a stormwater fee are already addressing their impacts (through said fee).  However, a major difference between RDA and stormwater fees is that RDA is tied to downstream environmental goals/conditions, whereas stormwater fees are tied to a regulatory or programmatic system, which may or may not adequately fund (more often than not, probably doesn’t) programs to the level needed to address the actual impacts of imperviousness.  So the answer from some petitioners has become, “RDA will address the difference between what is actually needed to address impacts and those funds provided by stormwater fees,” which I find a reasonable answer.  But at the end of the day, we need to do some analysis to really look at the impacts – especially on existing fees, as noted, as well as the role of institutional land use (targeted along with commercial and industrial areas in the petition), as institutional land is not well-defined in the Clean Water Act (while commercial and industrial are) and there are public and semi-public institutions that would be impacted by the petitions, depending upon how EPA moves forward with them.  So far, they seem to be punting (probably because they have their hands full with the stormwater rulemaking, which seems to be floundering at this point).  We’ll see how EPA moves forward…