Guest Editorial

It’s no surprise to the readers of this magazine that construction-site runoff is ravaging America’s waterways. The plight of Chesapeake Bay—the nation’s largest estuary and our third most productive fishery—is typical. Waterborne sediment has smothered Chesapeake Bay’s vital fish and shellfish habitat, aggravating the collapse of its commercial and recreational fisheries.

While immense in scope, the problem is shockingly easy to solve. Advances in the science of stormwater control have given us the ability to dramatically curb or completely eliminate particulate and colloidal matter and settleable and suspended solids that are transported by rainfall from construction sites. While the science has advanced, our democracy has faltered. The failure to regulate stormwater for the past two decades is not a failure of science, technology, or entrepreneurial energy; it is a failure of leadership and government.

It’s been 20 years since Congress amended the Clean Water Act to direct EPA to create meaningful guidelines to replace the weak and outdated federal regulations governing construction-site stormwater. But EPA has yet to comply. In response to the vacuum created by EPA’s abdication, the states have devised a disparate patchwork of permitting approaches that invariably fall short of their own water-quality and pollution-prevention goals. The state regulatory schemes rely almost universally on obsolete and ineffectual best management practices (BMPs) in lieu of meaningful technology-based standards. The states emphasize self-regulation and self-policing by developers and offer few real incentives for construction firms to employ effective stormwater prevention practices. Lack of oversight and enforcement means that even the weak regulations are routinely ignored by builders and developers.

Photo: David Wallace for South Riverkeeper MD

Aerial view of turbidity

Today, we are at a historic crossroads: After decades of stalling by a recalcitrant EPA, a federal court has ordered the agency to develop effluent limitation guidelines for the construction and development industry. EPA could use the court order as an opportunity to adopt modern pollution controls that reflect the advanced science and technology. In a rational world, EPA would issue technology-based effluent standards and site design principles that address both acute pollution from active construction and chronic post-construction stormwater pollution. But the dysfunctional federal agency—in thrall to the bottom feeders in the development industry—has signaled that it will instead cling to traditional, ineffective Band-Aids that spell doom to America’s lakes, streams, and rivers.

EPA is the poster child for “captive agency phenomena”—the dynamic by which regulatory agencies become hand puppets for the industries they are meant to regulate. The inner beltway omens portend new regulations that will serve the special interests of the most reckless developers, rather than the interests of the American public and the cause of clean water. In January of this year, EPA announced its intention to expedite a construction stormwater rule to ensure its passage under the current administration. For anyone who has been asleep during the past seven years, the Bush administration is notoriously hostile to any regulations that diminish short-term profits of our worst polluters.

Photo: Skip Matheny for French Broad Riverkeeper NC

Inappropriate silt fence

Photo:  Skip Matheny for French Broad Riverkeeper NC

Erosion on a new home lot

While EPA originally petitioned the court for four years—which it claimed would be necessary to develop an effective suite of stormwater controls—it is now rushing to finish the job in just two years, to beat the inauguration of a new president who, God forbid, might actually like clean water. This expedited schedule severely limits EPA’s ability to create well-researched guidelines. In its anxiety to promulgate a rule that pleases the most rapacious developers, EPA will move forward without the guidance of the National Academy of Sciences panel that it commissioned to identify the flaws in the current approach to stormwater regulation and to propose solutions.

EPA is also doing its best to ignore the collective wisdom of progressive states and stormwater industry experts. Rather than participate in a meaningful dialogue with state officials who monitor construction sites and riparian health and the stormwater control industry representatives familiar with the extraordinary potential of today’s highly evolved technologies, EPA has limited state and industry input to the 60-day public comment period, which is unusually short for such a far-reaching national regulation. Many states have valuable experience and expertise that could benefit a strong and successful rulemaking. These states also have much to lose if EPA, as expected, releases a weak rule that undercuts their pollution-control efforts.

EPA is willfully neglecting its legal mandate to require effective construction stormwater control. It’s time for EPA to hear from you—the innovators, service providers, landscape designers, responsible developers, state regulators, and citizens. Tell EPA’s assistant administrator for water, Benjamin Grumbles [grumbles.benjamin@epa.gov or (202) 564-5700], that you expect and deserve better.