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January 4, 2013 Via Electronic and First Class Mail Mr. Michael January 4, 2013 Via Electronic and First Class Mail Mr. Michael Richardson Water Management Administration Maryland Department of the Environment 1800 Washington Boulevard Baltimore, Maryland 21230 [email protected] RE: Comments on Draft General Permit for Discharges from Stormwater Associated with Industrial Activities; Discharge Permit No. 12-SW; NPDES Permit No. MDR0000 Dear Maryland Department of the Environment (MDE): Thank you for the opportunity to comment on MDE’s Draft General Permit for Discharges from Stormwater Associated with Industrial Activities (Draft Permit or Permit). These comments are submitted on behalf of Blue Water Baltimore, Inc., the Environmental Integrity Project, as well as the other undersigned environmental non-profit organizations. Blue Water Baltimore is a grassroots environmental organization dedicated to restoring the quality of Baltimore’s rivers, streams and Harbor to foster a healthy environment, a strong economy, and thriving communities. Specifically, the Baltimore Harbor WATERKEEPER program of Blue Water Baltimore is dedicated to stopping water pollution in the Baltimore Harbor watershed through the use of advocacy, enforcement, education, and water quality monitoring. Baltimore is one of Maryland’s main industrial centers, and consequently, members of Blue Water Baltimore use and enjoy waterways adversely affected by the industrial stormwater discharges regulated by the Draft Permit, including the Jones Falls, Gwynns Falls and Direct Harbor within the Baltimore Harbor/ Patapsco River watershed and the Herring Run within the Back River watershed. 1 The Environmental Integrity Project (EIP) is a national non-profit organization dedicated to advocating for more effective enforcement of environmental laws, with a focus on Clean Water Act (CWA) enforcement in the Chesapeake Bay watershed. EIP works to provide objective analysis of how the failure to enforce or implement environmental laws increases pollution and affects the public's health; to hold federal and state agencies, as well as individual corporations, accountable for failing to enforce or comply with environmental laws; and to help local communities obtain the protection of environmental laws. The fundamental purpose of the Draft Permit is to help “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 1 For the reasons discussed in these comments, MDE must revise the Permit in order to achieve this goal and to meet minimum legal requirements for issuing stormwater National Pollutant Discharge Elimination System (NPDES) permits. Introduction I. Cleaning up Maryland’s Waterways Will Require Clear and Enforceable Terms in the Industrial Permit Stormwater runoff from industrial sites is a major source of the pollution degrading Maryland’s waterways. This pollution is one of the main reasons Maryland’s waterways are currently suffering so badly and are often unsafe for residents to swim, fish, and crab in. Pollutants such as nutrients and sediment enter our waterways through industrial stormwater, and contribute to the fish kills and algal blooms that occur across Maryland each year. Toxic metals entering our waterways from industrial stormwater pollution accumulate in the tissue of fish and crabs, leading to human health risks when consumed. The CWA requires that our waterways be restored to fishable and swimmable pollutant levels and the Draft Permit, although a significant improvement over the current permit, must be strengthened in order to do so. The final permit must clearly and unequivocally mandate reductions of stormwater pollution into Maryland’s waterways. Currently, due in part to the lack of specific and enforceable requirements in the existing permit, stormwater pollution regularly fouls Maryland’s waterways and the Chesapeake Bay.2 Maryland’s residents and visitors, who endure unsavory and unsightly surface water conditions, unsafe conditions for water-contact recreation, and health risks associated with subsistence fishing, pay the costs of stormwater runoff.3 The burdens of 1 33 U.S.C. § 1311(a). 2 See list of impaired waterways in Maryland in MDE’s Integrated Report: http://www.mde.state.md.us/programs/Water/TMDL/Integrated303dReports/Pages/Programs/WaterPrograms/TMD L/Maryland%20303%20dlist/index.aspx (last visited 1/1/13). 3 See Gibson and McClafferty, Identifying Populations at Risk for Consuming Contaminated Fish in Three Regions of Concern, Results for Baltimore Region of Concern (March 29, 2005) available at http://pbadupws.nrc.gov/docs/ML1005/ML100500321.pdf (last visited 1/1/13); see also Addressing the Risk: 2 excessive stormwater pollution and uncontrolled stormwater flows are also borne by Maryland’s native wildlife, whose health and survival depends on clean water. The deplorable state of Maryland’s water bodies is one of the clearest indications that weak and vague permits issued by MDE in the past simply have not worked. Without clear water quality-based requirements in the Permit, many of the considerable resources that will be expended on Maryland’s stormwater management programs will go to waste. It is therefore imperative to the people, environment and wildlife of Maryland, and of the Chesapeake Bay, that MDE revise the Draft Permit to include enforceable permit terms that reflect the good intentions of MDE in drafting this permit. II. This Permit is an Integral Regulatory Mechanism for Enforcing the Chesapeake Bay TMDLs and Associated Watershed Implementation Plans (WIPs) The Permit is part of the regulatory regime identified in the “Accountability Framework” for implementing the Chesapeake Bay TMDLs, consistent with the legal requirements of the CWA.4 This permit, along with other NPDES permits such as the municipal separate storm sewer system (MS4) permits, are meant to serve as the primary difference between the Bay TMDL and prior Bay agreements, which lacked enforcement and accountability measures and consequently failed to achieve their goals, while wasting taxpayer dollars. The final permit must therefore include a clear and enforceable provision for implementing the wasteload allocations included in the Bay TMDL for nutrients and sediment in stormwater discharges to the Maryland’s waterways.5 III. Adding Clear and Enforceable Terms to the Draft Permit is Imperative if Real Water Quality Improvements Are to be Achieved Congress adopted a national permitting program in order to bridge the gap between the states’ adoption of water quality standards and the continuing lack of tangible improvements in water quality. Permits issued for point source stormwater discharges are required to ensure that the pollution reductions needed to implement Maryland’s water quality standards (WQS) are actually achieved. 6 Accordingly, the final permit must be an enforceable regulatory instrument that ensures compliance with WQS. To this end, MDE should draw from existing guidance and studies discussed below, which identify the critical elements of writing successful stormwater permits. Understanding and Changing Angler’s Attitudes About the Dangers of Consuming Anacostia River Fish available at http://www.anacostiaws.org/userfiles/file/AWS_angling_FINAL_web.pdf (last visited 1/1/13). 4 See EPA, Final Chesapeake Bay Total Maximum Daily Load, 7-1 (Dec. 29, 2010) (hereafter Bay TMDL). 5 See infra Section III.B.2. 6 See Gov’t of the Dist. of Columbia, MS4 System , 10 E.A.D. 323, 335 and 342-43 (2002). 3 In its guidance designed to address stormwater permits in the Chesapeake Bay and Mid- Atlantic region, EPA recommended the following: Issuing Permits with Clear and Measurable Provisions: It is critical that all permit provisions be clear, objective, specific, measurable, and enforceable. Permits should incorporate clear performance standards, include measurable goals or quantifiable targets for implementation and include specific deadlines for compliance . Doing so will clarify expectations for permittees and also allow permitting authorities to more easily assess compliance. These are not elements to be delegated to permittees as part of their stormwater management program planning or updating processes. Practicability determinations are the obligation of the permitting authority not the permittee. Vague phrases such as "as feasible" and ‘as possible’ and ‘practicable’ are to be avoided in a permit because such caveats allow subjective interpretation, result in inconsistent implementation by permittees, and create difficulties in permit authority oversight and enforcement. The permit writer’s role is to determine what is necessary to achieve in effluent controls and to develop clear, enforceable language that conforms to these determinations. 7 Although this guidance was specifically aimed at municipal stormwater permits, it is equally applicable to, and important for, industrial stormwater permits. MDE should integrate this guidance into the Draft Permit by clarifying ambiguous terms such as “feasible.” More recently, EPA has provided updated guidance on “providing numeric water quality- based effluent limitations in NPDES permits for stormwater discharges.” The memo states: The Clean Water Act (CWA) requires that permits for stormwater discharges associated with industrial activity comply with section 301 of the Act, including the requirement under section 301(b)(l)(C) to contain WQBELs for any discharge that the permitting authority determines has the reasonable potential to cause or contribute to a water quality standard excursion. CWA section 402(p)(3)(A),
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