It rains a lot in Puget Sound. We’re known for our rain and long, cold, wet winters filled with gray skies and endless drizzle. It is not surprising, then, that stormwater is the number-one source of pollution harming Puget Sound.
The Health of Puget Sound
The marine life living in Puget Sound is the ultimate indicator of the health of the sound. According to the “State of the Sound 2007,” (Puget Sound Action Team 2007), the health of Puget Sound species is “troubling.” Forty-three species, including orcas, salmon, groundfish, pinto abalone, and marine birds, are either at risk or threatened or endangered with extinction. The reasons for the decline include untreated stormwater runoff; ongoing toxic contamination from wastewater; historic contamination of sediments, nutrients, and pathogens from human and animal waste; and habitat fragmentation and destruction. Stormwater is identified as the leading contributor to water pollution in urban waterways, eclipsing industrial wastewater and sewage treatment plant pollution.
Sensitivity of Salmon to Metals
Stormwater runoff is a limiting factor in the recovery of three Puget Sound salmon species (Puget Sound steelhead, Hood Canal summer-run chum, and Puget Sound chinook) listed under the Endangered Species Act, and many shellfish harvesting areas are closed because of stormwater pollution.
Copper and zinc are the primary metals of concern in industrial and municipal stormwater, primarily for their impact on salmon. In a recent letter to the EPA, the National Marine Fisheries Service (NMFS) in Seattle reported that “salmon experience adverse effects at 2 μg/L dissolved copper (Hecht et al 2007) and 5.6 μg/L dissolved zinc (Sprague 1968). For copper, these effects include interference with fish sensory systems and important behaviors that underlie predator avoidance, juvenile growth and migratory success. For zinc, these effects include altered behavior, blood and serum chemistry, impaired reproduction, and reduced growth” (Landino 2008).
According to Hecht et al. 2007, copper in the 9- to 57-micrograms-per-liter range is lethal to three species of Puget Sound salmon: chinook, coho, and steelhead. In fact, a three-year study led by the Northwest Fisheries Science Center and Seattle Public Utilities documented that 75% to 89% of female coho salmon returning to urban Longfellow Creek in West Seattle died before spawning. Although we do not know why they died, urban stormwater is the suspected culprit (McCarty et al. 2006).
Widespread Violations of Water-Quality Criteria
Industrial stormwater monitoring data from 2003 to 2005 were compared to hypothetical acute water-quality criteria by Herrera Environmental Consultants (2006) for the Washington State Department of Ecology (Ecology) in 2006. Short-term exposure by aquatic organisms at or above acute criteria is “expected or demonstrated to result in injury or death to an organism as a result of short-term exposure.” Table 1 summarizes the Herrera data and clearly indicates that 95% of copper samples and 84% of zinc samples exceed hypothetical water-quality standards on industrial sites.
Stormwater Regulation in Washington State
Ecology regulates stormwater runoff from primary stormwater sources in the Puget Sound Basin through eight stormwater general permits. Ecology issues general permits to broad categories of stormwater dischargers, rather than customized individual permits, because of the large number of stormwater polluters. More than 6,000 businesses are regulated under the Boatyard, CAFO, Construction, Industrial, and Sand and Gravel general stormwater permits (an estimated 100, 900, 3,000, 1,200, and 960 businesses, respectively). In addition, the municipal Phase I and Phase II stormwater general permits regulate polluted runoff from Snohomish, King, Pierce, and Clark counties as well as the cities of Seattle and Tacoma and 85 smaller jurisdictions. Finally, stormwater runoff from the Washington State Department of Transportation–managed 18,000 lane miles is soon to be regulated under its own separate Phase I stormwater permit.
Despite the growing evidence that stormwater discharges contribute to violations of quality criteria, Ecology continues to issue stormwater permits that fail to effectively require compliance with those criteria. Instead, Ecology relies on benchmarks and action levels for industrial and boatyard sites, as well as narrative standards that are practically unenforceable because of the weakness of the permits’ monitoring requirements. According to Ecology, “Benchmark values are not water quality standards and are not numeric effluent permit limits.” Ecology, in the 2005 Boatyard General Permit, did not require boatyards to comply with water-quality criteria for copper and instead set a non-enforceable benchmark discharge level of 239 micrograms per liter for marine waters. This is almost 50 times the acute marine water-quality standard of 4.8 micrograms per liter.
More recently in the 2008 Public Notice Draft Industrial Stormwater General Permit, Ecology is proposing to reduce the zinc benchmark from 117 to 115 micrograms per liter and the copper benchmark from 63.5 to 20 micrograms per liter. The public notice draft sets thresholds, rather than action levels, at 10 times the benchmarks for copper and zinc. Although the benchmark values for copper and zinc are reduced, the NMFS in its January 10, 2008, letter to the EPA says that “the stormwater discharges authorized under this permit—even though they are a major improvement over current levels—are still at levels likely to have more than minor detrimental effects to ESA listed salmon and critical habitat” (Landino 2008).
Ecology even goes further in the 2007 municipal stormwater general Phase I and II permits, which regulate most urban city and county stormwater runoff. It did not set any benchmarks or water-quality criteria for copper or other stormwater pollutants.
Citizen Involvement in Stormwater Regulation
The Puget Soundkeeper Alliance (PSA) has been involved in stormwater regulation, enforcement, and treatment technology testing for eight years. In fact, stormwater regulation has been the PSA’s number-one priority since its first appeals of the industrial and construction general stormwater permits in 2000. In 2000, the Washington State Department of Ecology reissued the 1995 Industrial Stormwater General Permit with no changes. Outrageously, the 2000 permit did not even allude to compliance with water-quality standards. PSA appealed the permit to the Washington State Pollution Control Hearings Board (PCHB), and so began a legal battle that spanned many years and several permits and resulted in legislation to address permit issues in 2004.
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Photo: Puget Soundkeeper Alliance |
| Freshwater creek entering Puget Sound at Golden Gardens |
As a result of these appeals and legislation, the 2002 Industrial Stormwater General Permit was modified in 2004. Stormwater discharges from more than 1,200 industrial and 3,000 construction sites were required for the first time to comply with narrative water-quality standards; to sample and report stormwater discharges; to implement adaptive management when samples exceed benchmarks or action levels; and to demonstrably apply all known, available, and reasonable methods of prevention, control, and treatment prior to receiving a mixing zone. In addition, the PCHB ruled that copper discharges must be reduced to protect water quality and salmon.
In 2006, the PSA appealed the Boatyard General Permit to the PCHB, challenging Ecology’s failure to require boatyards to comply with water-quality standards for copper. The PCHB remanded the permit to require Ecology to “recalculate and lower the benchmarks for copper” and eliminate dilution zones. We expect this decision to decrease the copper benchmark to an estimated 14 micrograms per liter, which, though an improvement, is still higher than the water-quality criteria. The permit should be modified in 2008.
Finally, the PSA appealed the Phase I and Phase II muncipal stormwater general permits in February 2007 to the PCHB. The permits have no benchmarks, little sampling, and no adaptive mangement process. At the time of this writing, the first hearing on whether municipal stormwater should comply with water-quality critieria is scheduled for April 2008.
Citizen Enforcement Under the Clean Water Act
In spite of the PSA’s best efforts to move stormwater regulation in the right direction, stormwater permits still do not protect water quality or endangered salmon. And, to add insult to injury, compliance with existing stormwater permits is abysmal, and many stormwater dischargers are unpermitted.
Permitted Industrial Sites
Ecology estimates that only 10% of Industrial Stormwater General Permit holders are in full compliance with the permit (Department of Ecology 2007). The PSA’s review of sampling data confirms this.
The PSA focuses its enforcement efforts on high zinc, copper, and lead dischargers. Since the permit lacks numeric effluent limitations, the PSA looks for failures to sample, sites where it never rains (no qualifying storm events in Puget Sound?), inadequate stormwater pollution prevention plans (SWPPPs), and failures to implement the adaptive management process when benchmarks or action levels are exceeded.
The PSA works with the law firm of Smith & Lowney of Seattle to review the permit files and recommend potential enforcement action, which begins with a 60-day notice of intent to sue. The PSA’s goal is on-the-ground implementation of the permit. To resolve these cases without trial, the PSA requires a commitment to permit compliance, which includes development of a SWPPP, stormwater monitoring, adaptive management responses to benchmarks or action level exceedances, and other permit requirements. It also includes a penalty component and recovery of attorney’s fees as expressly authorized by the Clean Water Act. The PSA does not financially benefit from these enforcement actions.
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Photo: Puget Soundkeeper Alliance |
| Parking lot at Golden Gardens |
Table 2 summarizes the permit compliance estimates and efforts of Ecology and the PSA. Since August 2006, the PSA has reviewed 145 permit files and initiated 40 notices of intent to sue. To date, the PSA has settled 16 cases to bring permit holders into compliance and raised $328,500 in penalty money to pay for third-party environmental projects. It is interesting to note that Ecology has issued only 22 penalties in more than five years.
Unpermitted Industrial Stormwater Dischargers
About 1,200 businesses are covered under the current Industrial Stormwater General Permit. According to Ecology, there are an estimated 16,000 additional companies that may qualify for coverage based on Standard Industrial Classification (SIC) codes. Unfortunately, the last time Ecology had the resources to bring unpermitted businesses into the permitting process was in 1995.
Based on PSA and RE Sources evaluations of unpermitted stormwater dischargers in Whatcom County and South and Central Puget Sound, it is estimated that approximately 10%, or 1,600, should have permit coverage but do not. PSA and RE Sources in Whatcom County evaluated 251 unpermitted sites, based on high-priority SIC codes, by driving by the sites. This resulted in 60-day notices of intent to sue sent to 28 businesses, including auto wreckers, metal recyclers, wood products–related companies, and transportation facilities (Table 3). In most instances, the lawsuits were not filed if the business submitted an application for permit coverage to Ecology within the 60 days. This process was quite labor intensive.
Conclusion
The truth about stormwater regulation in Puget Sound is that it is not working. Even though stormwater has been a known source of pollution in Puget Sound for over 20 years and is now recognized as the primary source, Ecology has failed to develop an effective regulatory and enforcement strategy to protect water quality and salmon when it rains.