Running head: MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

The Case for Mandating Low Impact Development Techniques Emily C. Anderson Northeastern University

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

Abstract This paper explores the federal protections offered to our water sources due to the Clean Water Act of 1972 and seeks to extend those protections to non-point sources of stormwater runoff. The CWA significantly improved water quality after it was passed in 1972, despite continuous population and industry growth. Despite its successes, however, the CWA was not all reaching. It did not have regulatory power over non-point sources, which today have grown to be a major portion of water pollution, especially in urban areas. These non-point sources have traditionally been managed with detention basins and ponds, which were not the most effective method of reducing contamination. Low Impact Development techniques are a promising look to the future of stormwater management, where runoff is treated as a resource rather than a waste stream. LID practices are effective and aesthetically pleasing due to their use of natural resources to reduce contamination. Environmental stewardship is among the most pressing concerns of the 21st century. Combative and partisan legislatures should not overshadow the importance of protecting the natural world for future generations. The NPDES permit should be amended for the use of LID techniques to manage the runoff from non-point sources. Keywords: Low Impact Development, NPDES, Clean Water Act

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

The Case for Mandating Low Impact Development Techniques

Low Impact Development (LID) is an emerging field in stormwater management. It utilizes green technologies and techniques to reduce pollution in stormwater runoff from nonpoint sources such as parking lots, roads, and roofs. If existing legislation is amended to mandate the use of LID techniques, the water quality of Americas rivers, lakes, oceans and wetlands could improve dramatically. This should not be a partisan debate; the environment is a resource shared with the world and the health of future generations of Americans depends on our swift actions. Without a government mandate, voluntary adoption of LID technologies is unlikely due to their unfamiliarity and higher initial cost, leaving our national waters in danger of high levels of pollution. The Environmental Protection Agency should amend the National Pollution Discharge Elimination System (NPDES) permit to mandate the use of Low Impact Development techniques to manage stormwater runoff from non-point sources. A Brief History of Federal Water Quality Regulation Prior to the environmental movements of the 1960s and 70s, there was little activism surrounding water quality. Pollutants commonly entered American waters from factories and sewage plants dumping waste into our harbors and rivers, with the thought that the water would eventually purify itself (Shifrin, 2005, p. 677). The Cuyahoga River in Ohio was so polluted that it caught fire at least thirteen times between 1868 and 1969, when the situation indicative of a larger problem finally caught national attention (Adler, 2002, p. 93). Adler (2002) commented that A river on fire was a symbol of earth in need of repair, and federal regulation was the reparative tool of choice (p. 91). Spurred on by this fire, among other environmental warning signs, Congress passed the Clean Water Act (CWA) in 1972, overriding President Nixons veto.

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

The Clean Water Act included pollutant limits, treatment standards and a permit system for every point source discharge in the US (Shifrin, 2005, p. 681). This permit system is called the National Pollutant Discharge Elimination System, or NPDES for short. NPDES required for the first time that all point discharges of wastewater be permitted. These permits were meant to ensure that the levels of contaminants in the wastewater were below the regulated limit. Early versions of NPDES focused on BOD, suspended solids, nutrients, bacteria, heat, pH (Shifrin, 2005, p. 683), at the time the most concerning elements of water pollution. As water testing has become more precise and the effects of other chemical compounds have been discovered, the EPA has continued to set new maximum containment levels; today, approximately 90 chemicals, microorganisms and more are regulated by the EPA (Shifrin, 2005, p. 683). The effectiveness of this permit system can be seen in the continuously improving quality of American lakes, rivers and streams, though changes were slow to take hold. Environmentalists of the 1980s were disappointed by the seeming lack of progress toward cleaner water; the most that could be said at the time was that water quality had not deteriorated since 1972 (Andreen, 2004, p. 565). This has not remained true, however. Despite continual growth of industry since the passage of the Clean Water Act, the quantities and concentrations of the contaminants regulated by the EPA has been sharply curtailed. The quantity of Biological Oxygen Demand (BOD) one of the EPAs conventional pollutants discharged dropped 93% between 1973 to 1987 alone (Andreen, 2004, p. 569). Andreen (2002) reported, however, that other contaminants are more difficult to measure due to a lack of consistency in state reporting (p. 566). For these dramatic pollution decreases, the Clean Water Act has been called one of the greatest successes in environmental law (Salzman, 2012).

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

Non-Point Sources and Low Impact Development The power of the Clean Water Act was limited, however, by politics. To ensure that the legislation would make it through both houses of Congress, the NPDES system did not require permits for water used agriculturally (Salzman, 2012). This runoff, which gathers pesticides, fertilizers and manure before discharging into surface water, comes from what is referred to as a non-point source. These sources include not only farmland, but also more urban features such as roads, roofs and parking lots. When stormwater runs over these elements, it gathers pollutants, trash, bacteria and heavy metals before finally finding its way back into the water table (Low impact, 2014). In contrast to a natural environment, where 50% of stormwater is infiltrated into the ground below and only 10% continues on as runoff, a heavily urban environment will nearly reverse those numbers: only 15% is infiltrated, while 55% continues as runoff (Prince George's County, 1999, p. 4). The more impervious surfaces that runoff travels over, the more pollutants that enter the water system. Non-point sources are more difficult to regulate than point sources, which has hampered the progress of providing clean water for all. The pollutants carried by non-point sources do not come from a single, easily identified source; for example, oil may enter stormwater runoff from any number of different cars which use the road. This stormwater from non-point sources is a major cause of urban water pollution (Low impact, 2014) that the EPA does not yet regulate. Conventional detention methods, which are designed to allow this runoff to sit in large basins and hopefully infiltrate the ground, were not effective in reducing the quantities of all the target pollutants. Suspended solids, for example, were removed from the water fairly effectively, but dissolved metals and bacteria were not dissipated so easily (Wulkan, 2010, p. 1187).

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

Unsatisfied with existing stormwater management techniques such as these simple detention basins, some forward-thinking municipalities began to incorporate what are called Low Impact Development techniques into their stormwater management plans. Low Impact Development (LID) works with nature to manage stormwater as close to its source as possible (Low impact, 2014). This can be done by reducing the area of impervious surfaces by adding a green roof, or by utilizing new methods such as bioretention basins, rain gardens and rain cisterns to capture and store stormwater as a resource rather than a waste product (Low impact, 2014). The natural world offers many unique solutions to reduce contamination in runoff. For example, phytoremediation is a growing LID practice where plant roots degrade, extract, contain, or immobilize contaminants such as metals, pesticides, explosives, oil, excess nutrients, and pathogens from soil and water (Ruby & Appleton, 2010, p. 324). In addition to being more effective than traditional detention, Ruby and Appleton have also cited phytoremediation as being a more cost effective, noninvasive, natural, and publicly acceptable method (2010, p. 324). In areas with high adoption of LID techniques, success stories are already being shared. For example, a street redesign in the Seattle/Puget Sound region found that after reducing the total impervious surface and adding a bioretention basin, approximately 99% of surface runoff was retained on site. Permeable pavers in the same region were found to offer excellent removal of metals and hydrocarbons (Wulkan, 2010, p. 1187). Over time, it seems certain that broad adoption of LID practices will continue to improve water quality where the Clean Water Act has left off.

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

NPDES Amendment Though Low Impact Development techniques have proven to be effective as well as aesthetically pleasing, universal implementation of these practices seems unlikely; in many cases, the upfront costs of installing a LID system of bioretention ponds and swales will be higher. This is due to the costs of plant material, site preparation, soil amendments, underdrains and connections to municipal stormwater systems, and increased project management (Low impact, 2014). Though the environmental benefits outweigh this cost in the long run, developers will not be eager to implement LID practices while they are more expensive than their counterparts. As with the revolutionary Clean Water Act, government intervention will be necessary to further improve American water quality. The support for such a measure should be bipartisan, given the support that the Clean Water Act received when it passed in 1972. Ironically enough, however, the success of the CWA may be its downfall in this regard. When the CWA was passed, water quality was visibly and tangibly poor; Salzman (2012) recounts going to the doctor for a rash after falling into the Charles River in Boston while sailing. Spontaneous fires in rivers much like the Cuyahoga loomed over the heads of Congress; after President Nixon vetoed the Act due to budgetary concerns, it passed the Senate 52-12 to override the veto and the House 247-23. The support was truly bipartisan. Congress today is more likely to see legislation proposed that seeks to dismantle the powers of the CWA by handing the regulatory power back to the states, such as the proposed H.R. 1948: Clean Water Cooperative Federalism Act of 2013. Some states may beat Congress to the punch particularly those who have already seen successes using Low Impact Development techniques. In the Puget Sound region of the Pacific Northwest, LID practices have been in use for more than a decade. They are a popular and

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

effective method of protecting the water resources in the area, which for the most part eventually drain to the Puget Sound. Whereas previous versions of the NPDES permit required that permittees allow for the use of LID, a Washington state Board ruled that the permit must be rewritten to require LID techniques (Wulkan, 2010, p. 1190). Conclusion The EPA should amend the NPDES permit to mandate the use of Low Impact Development techniques to manage stormwater runoff from non-point sources. In order to repair the American waters still categorized as impaired about half of our rivers and streams, onethird of lakes and ponds, and two-thirds of bays and estuaries (Salzman, 2012) we cannot afford to wait for gradual voluntary adoption. The American people must follow the lessons set forth with the success of the CWA and act quickly to extend the protection of precious water resources. Low Impact Development techniques, while still a relatively new technology, offer an effective, aesthetically pleasing, non-invasive, and publically accessible way to improve water quality. Regulators should follow the example being set in the Puget Sound region and mandate LID practices for all non-point sources of stormwater runoff.

MANDATING LOW IMPACT DEVELOPMENT TECHNIQUES

References Alder, J. (2003). Fables of the Cuyahoga: Reconstructing a history of environmental protection. Fordham Environmental Law Journal, 14, 89-146. Andreen, W. (2004). Water quality today - has the clean water act been a success?. Alabama Law Review, 55, 537-593. Low impact development (LID). (2014, February 25). Retrieved from http://water.epa.gov/polwaste/green/ Prince George's County, Maryland Department of Environmental Resources, Programs and Planning Division. (1999). Low-impact development hydrologic analysis. Retrieved from website: http://water.epa.gov/polwaste/green/upload/lid_hydr.pdf Ruby, M., & Appleton, B. (2010). Using landscape plants for phytoremediation. In S. Struck & K. Lichten (Eds.), Low Impact Development 2010: Redefining Water in the City (pp 323332). American Society of Civil Engineers. Salzman, J. (2012, December 10). Why rivers no longer burn. Slate, Retrieved from http://www.slate.com/articles/health_and_science/science/2012/12/clean_water_act_40th _anniversary_the_greatest_success_in_environmental_law.html Shifrin, N. (2005). Pollution management in the twentieth century. Journal of Environmental Engineering, 131(5), 676-691. Wulkan, B. (2010). Evolution of low impact development in the Puget Sound region. In S. Struck & K. Lichten (Eds.), Low Impact Development 2010: Redefining Water in the City (pp. 1184-1195). American Society of Civil Engineers.