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Transforming USEPA Support for Green Infrastructure from a Policy Pronouncement into a CSO Consent Decree Priority

Robert A. Weinstock
Barnes & Thornburg LLP

In the world of stormwater and wastewater management, perhaps no concept elicits the universal interest that greets nearly every proposal to use Green Infrastructure ("GI") strategies to capture and manage precipitation before it reaches a sewer collection system.  GI is an attractive solution for utilities and communities with combined sewer systems, because of the multiple environmental and community benefits a single project can offer.  However, GI also presents financial and operational challenges that differ from those presented by gray infrastructure approaches to reduce combined sewer overflows ("CSOs").  Despite widespread endorsement of aggressively incorporating GI in combined sewer system planning, there remain serious and significant obstacles to develop CSO compliance strategies that rely upon GI more prominently. 

Beyond providing stormwater retention and management functions, GI projects simultaneously provide various environmental, community, and economic benefits.  GI installations provide ecological benefits, improve air quality through increased urban vegetative cover, combat urban heat sink issues, and contribute to both climate change mitigation and adaptation.  GI projects also spur job creation, provide neighborhood and aesthetic improvements, reduce life-cycle and energy costs, allow utilities to leverage other municipal resources and address multiple community problems, and can serve as tangible and accessible examples how increased rates are being used to improve neighborhoods and cities.  Enthusiasm for GI is well-founded. 

And for almost a decade, USEPA has shared that enthusiasm.  Through programmatic partnerships, technical guidance documents, and multiple policy memoranda, USEPA has lauded the benefits of GI, offered technical resources and advice on implementing GI, and described how GI can be integrated into communities' ongoing and evolving efforts to comply with Clean Water Act obligations. 

The advantages of prioritizing GI within a balanced plan for wastewater and stormwater management are evident and have been consistently touted by USEPA.  The question, then, becomes:  how does GI fit within the relevant regulatory framework?  To put a fine point upon it in the combined sewer system context:  how does GI fit within the express terms and agency implementation of the 1994 Combined Sewer Overflow Control Policy ("CSO Policy")?  Perhaps more importantly, how should GI be integrated into enforcement and permitting actions based on the CSO Policy?  Thus far, USEPA's answer to that first question has been to graft generalized support for GI atop the existing framework for combined sewer system regulation and preexisting model language for CSO consent decrees.  Given USEPA's long-held support for GI, the Agency should seek a better model; consistent with the goals and structure of CSO Policy, it already has the authority to do so. 

The CSO Policy – perhaps unsurprisingly given its vintage and the relatively recent rise of GI – does not mention GI by name or implication.  The CSO Policy outlines a two-step regulatory program to apply the NPDES point-source permit program to combined sewer system outfalls:  first, combined sewer systems must implement the "Nine Minimum Controls" ("NMC") to optimize existing system performance; then, the utility must develop and implement a "Long Term Control Plan" ("LTCP"), which can involve massive infrastructure investments.  GI can fit into either stage. 

Among the NMC are several priorities advanced by GI, including maximizing use of the collections system for storage and preventing pollution.  The LTCP process involves several phases, most pertinently the evaluation of control alternatives, which can be used by a permittee to include the evaluation of GI strategies to reduce the number and environmental impact of combined sewer overflows.  Thus, while the CSO Policy does not directly address or advance the use of GI, it is important to understand opportunities in the text of that policy for GI to be incorporated in various facets of a community's CSO reduction strategy.

The CSO Policy also instructs USEPA and state regulators to use "enforceable mechanisms" to memorialize each community's NMC and LTCP commitments.  USEPA has utilized a variety of types of "enforceable mechanism," including state judicial decrees, federal and state administrative orders, NPDES permits, and complex, heavily negotiated federal consent decrees.  GI can play a role in any of these frameworks, but consent decrees present unique challenges for GI implementation. 

Several inherent characteristics of GI make it difficult to craft consent decree provisions that allow for the flexible implementation of GI while assuaging regulators' enforcement and compliance concerns.  From the perspective of USEPA and its attorneys at the United States Department of Justice, creating an "enforceable mechanism" in which GI commitments are the primary mode of compliance can be more complicated than memorializing gray infrastructure commitments.  One such complication is that GI approaches are more decentralized than gray infrastructure improvements, both in terms of geographic location and in terms of control and responsibility for maintenance. 

GI is also more variable than gray approaches, with project efficacy depending on site specific factors that require modeling and monitoring to assess and ensure.  For example, it is a (comparatively) simple engineering task to design a single stormwater retention tank or deep tunnel to capture a given volume of stormwater; it is far more complicated to model and validate that a myriad of rain gardens, vegetated swales, or green roofs will prevent the same volume of stormwater from entering the combined sewer system.  Similarly, forecasting the future maintenance issues and expenses is more straightforward for the gray infrastructure than for the fleet of smaller, dispersed GI projects that may be sited on private property or public property managed by departments other than the utility. 

A related challenge is that, because GI cannot be directly mandated by USEPA under the NPDES program, a permittee itself must have (and decide to use) the legal authority to affect the implementation of GI projects, either as a direct property owner or as a local land use regulator.  In addition, regulators and enforcers who approve LTCPs and negotiate consent decrees do so based on specific projects proposed and vetted through public participation mechanisms.  GI, which is best implemented through adaptive management and often characterized by small, piecemeal projects implemented as they are identified in an ongoing fashion, does not fit easily within the detailed, upfront approval and notice typically required and developed in the gray infrastructure context.  These complications presented by GI – which are, of course, inherent to GI and highlighted in the USEPA policy memoranda – are particularly troublesome to regulators in enforcement and compliance roles, who are seeking to craft simple and strict terms that they can use to readily determine whether the utility is complying with consent decree requirements. 

That tension, between the recognized benefits of GI and the need for accountability, has given rise to some confusion and inconsistency as to how GI should be incorporated into CSO consent decrees, and certainly has hindered full utilization of GI in this context.  GI projects have been incorporated into CSO consent decrees in five different ways: 

1. Individual GI studies, pilots, and projects have been used as "Supplemental Environmental Projects," which USEPA allows utilities to use to offset portions of monetary penalties assessed for CSO violations. 
2. A utility may decide to advance GI proposals as a part of its evaluation of CSO control alternatives during LTCP development.  The LTCP evaluation of alternatives, however, is static and forward-looking, providing an ill-fit for GI because of the decentralized, variable, and adaptive qualities of GI described above. 
3. In some consent decrees, utilities have simply committed to implement GI plans on their own initiative. 
4. Similarly, some communities have agreed to voluntarily perform early actions such as pilot programs or studies in relation to potential future reliance on GI.
5. Certain consent decrees, particularly for large communities with sophisticated utility management capability, have allowed "green for gray" substitutions, by which the utility may propose specific GI projects to replace concrete gray infrastructure projects planned for in the approved LTCP.  Such substitutions must typically be approved by state and federal regulators and can often only proceed if the GI project will result in the same or better reductions.  Putting that type of equivalency requirement in place can only discourage the implementation of GI projects. 

None of these approaches adequately realizes the potential for GI to transform the way utilities manage stormwater and reduce CSO impacts on the environment.  Nor do these approaches fully honor USEPA's own policy pronouncements related to GI.  Of course, to be the basis of a meaningful consent decree, the specific environmental benefits and economic costs conferred by GI must be predicted (for planning purposes) and confirmed (for compliance purposes).  To better reflect the nature of GI, however, consent decrees should be structured in such a way that allows the utility to meaningfully engage in adaptive management.  

Instead of replacing gray components with green, a consent decree could allow for an initial period of GI development, during which the utility could install GI components and track performance while other LTCP planning components are either proceeding in parallel or deferred until the degree of compliance achievable through GI can be ascertained.  Based on information collected previously or under such a consent decree, a menu of GI techniques could be developed for the specific environmental and sewer system characteristics of a particular community, allowing the utility to streamline planning decisions moving ahead.  In other words, if the utility knows a certain area of porous concrete accomplishes a given level of stormwater infiltration under prevailing weather conditions, it need not engage in separate predictive modeling for each square foot of such concrete used in future parking lot installations.  Instead of being forced to prove that a particular swale replaces a specific set of pipes, the utility could be held to a broader commitment to implement GI projects accomplishing a level of total benefit based on any combination of individual projects from the GI archetypes presented on the menu.  To increase transparency and accountability through regulatory oversight and compliance milestones – and to recognize the need for adaptive management of GI endeavors – this process could be structured as regular periodic commitments (i.e. requiring a degree of stormwater infiltration capacity be added every two years) with an obligation to update the values assigned to given GI approaches on the menu. 

These strategies would still allow for the full range of LTCP considerations and public participation required under the CSO Policy.  However, more than the mechanical application or marginal adjustment of an existing approach is required.  Fulfilling the promise of GI in combined sewer systems calls for more creative, pragmatic and effective approaches for how to sequence and structure those requirements in a particular consent decree. 

Robert A. Weinstock is an associate in Barnes & Thornburg LLP's Chicago, Illinois office and a member of the firm's Environmental Department, which was recently recognized as Tier 1 for national environmental litigation in the annual "Best Law Firms" ranking by U.S. News and Best Lawyers.  For his work in environmental litigation and general environmental law, Rob was named to the Illinois Super Lawyers magazine Rising Stars list in 2016.

Rob has a diverse environmental practice; however, he has developed a particular passion for representing communities and municipal entities around the country in Clean Water Act permitting and enforcement matters ranging from routine permit renewals to complex federal enforcement litigation.  A more extensive biography is available at http://www.btlaw.com/robert-a-weinstock/.

This article should not be construed as legal advice or  legal opinion on any specific facts or circumstances. The contents are intended  for general informational purposes only, and you are urged to consult your own  lawyer on any specific legal questions you may have concerning your situation.  In addition, the views expressed do not necessarily represent the views of  NACWA.