By Rich Anderson
July 18, 2011

EPA issued a joint Office of Water (OW) and Office of Enforcement and Compliance Assurance (OECA) Memorandum to the EPA Regional Administrators and the water permitting and compliance enforcement divisions in those regional offices on April 20 to promote green infrastructure in permits and enforcement actions. Cities have been urging the EPA to do this for the last several years as a way to lower the high cost of compliance with the Clean Water Act, especially with regard to consent decrees addressing Combined Sewer and Sanitary Sewer Overflows (CSOs/SSOs). Cities have met resistance from the EPA’s Regional Offices when they proposed to substitute “green for grey.” EPA officials often cite the lack of demonstrated experience, difficulty with quantifying effectiveness, and concerns over long-term maintenance of green infrastructure. The U.S. Conference of Mayors has been engaged in a dialogue with EPA since 2009 to increase the use of green infrastructure.

The Conference of Mayors convened a group of city water professionals and their consulting engineers in 2009 to develop a series of policy recommendations to the EPA, (Local Government Recommendations to Increase CSO/SSO Flexibility in Achieving Clean Water Goals, October 28, 2010). A series of examples were described in that document where cities attempted to incorporate green infrastructure as part of the long-term control plans to comply with CSO/SSO consent decrees, but found EPA regional officials reluctant to allow substituting green for grey solutions. City water officials made a strong case for including the green infrastructure because it could lower the extremely high cost of compliance, and achieve a higher level of environmental benefits. The Conference of Mayors convened a series of meetings between EPA and member mayors to pursue changes in how the agency’s regional offices were conducting the consent negotiations. Mayors recommended changes to how EPA considers “affordability” (how much cities should pay to comply with the CSO/SSO policy); compliance schedules that result in extremely high financing costs; EPA stipulating an arbitrary number of overflows per year but rather focus on achieving real improvements to water quality that are affordable and sustainable; and, EPA should encourage cities to incorporate green infrastructure in long-term control plans in tangible ways that allows experimentation and flexibility.

While the discussions between mayors and EPA advanced, EPA Deputy Administrator Bob Perciasepe formed an agency-wide steering committee and work group in late 2010 “…to encourage and support implementation of green infrastructure solutions.”

The Memorandum provides clarification on that the Office of Water and the Office of Enforcement and Compliance are committed to working with communities to “…successfully incorporate green infrastructure into National Pollutant Discharge Elimination (NPDES) permits, as well as remedies designed to address non-compliance with the CWA to better manage stormwater runoff and sewer overflows.” This Memorandum, sent to the regional offices and staff dealing with permits and enforcement, indicates that EPA headquarters wants to promote green infrastructure in the regions. The Memorandum further states, “We encourage you and your staff to contact OW’s Green Infrastructure Coordinator, Chris Kloss at kloss.christopher@epa.gov and OECA’s Green Infrastructure Coordinator, Mahri Monson at monson.mahri@epa.gov with questions, comments and information on green infrastructure in permitting and enforcement.”

The Memorandum cites several examples of stormwater runoff and sewer overflow enforcement actions that have allowed green infrastructure solutions to be credited toward compliance, (Attachment A). The sewer overflow examples include: Cincinnati (OH); Cleveland (OH); Kansas City (MO); and, Louisville (KY). In each of these cases the respective consent agreements allow substituting “green for grey” infrastructure, and in each case there is a cost'savings value to the city.

While the new flexibility of allowing credit for green infrastructure is embraced by the EPA, the agency does not intend to defer on compliance requirements. The Memorandum states, “…permits and enforcement agreements that incorporate green or gray infrastructure solutions require enforceable performance criteria, implementation schedules, monitoring plans and protocols, progress tracking and reporting, and operation and maintenance requirements. Regardless of the technology used, EPA looks for a demonstration of sound modeling and technical approaches as well as planning for overall wet weather control approaches to satisfy regulatory requirements.”

A copy of the Memorandum “Protecting Water Quality with Green Infrastructure in EPA Water Permitting and Enforcement Programs” can be downloaded at www.epa.gov/greeninfrastructure. Attachment B lists the green infrastructure regional liaisons for both the water and the enforcement programs.