North Sound Baykeeper Stormwater Investigations

As North Sound Baykeeper, Wendy Steffensen is responsible for the development, implementation and supervision of the North Sound Baykeeper program. She is the lead for the Baykeeper’s work on cleanups, pollution discharge permits and legal cases.

As North Sound Baykeeper, I’m your advocate for marine and other waters in Whatcom and Skagit County. The North Sound Baykeeper is a program of RE Sources for Sustainable Communities and a member group of the international organization, Waterkeeper Alliance.

Waterkeepers advocate for their waters by actively patrolling their watersheds and investigating and reporting pollution. They also follow the paper trails of permits, variances and cleanup plans, reviewing technical documents and providing comment to the appropriate decision makers. When these methods are not effective, Waterkeepers also use legal action to stop pollution.

The North Sound Baykeeper program started investigating stormwater in 2003 because, according to the Washington State Department of Ecology, stormwater is the leading cause of pollution in Washington’s waters.

The following is an Executive Summary from the North Sound Baykeeper’s June 2008 report, “Stormwater in the North Sound and Straits: Assessing the Impacts and Taking Action.” This report explains the regulatory rubric of stormwater rules, shortcomings of those rules, and the findings of the North Sound Baykeeper’s stormwater investigations.

The North Sound Baykeeper shows in the report, “Stormwater in the North Sound and Straits: Assessing the impacts and taking action,” that government leaders and the Washington State Department of Ecology (Ecology) are not acting to prevent pollution from stormwater. Ecology itself acknowledges that stormwater is the leading contributor to water pollution in our urban waterways, yet does not enforce its own laws to help remedy the problem.

The North Sound Baykeeper has investigated stormwater regulation over the last several years and has documented systemic failures in the construction and industrial permit programs. Ecology issues permits both for construction sites over one acre and for industrial facilities in specified sectors. These permits direct facilities, in specific ways, to limit the amount of pollution they discharge and prescribe that each facility sample for some constituents on a regular basis.

In late 2003, the North Sound Baykeeper formed the Stormwater Team, an organized team of volunteers trained to inspect, document and report the potential for stormwater violations at construction sites. Over the years, the Stormwater Team has visited thousands of construction sites and has reported hundreds of violations to stormwater inspectors from various jurisdictions in Whatcom and Skagit counties.

Since the program’s inception, the North Sound Baykeeper has filed reports on approximately 18 percent of sites assessed by the Stormwater Team. In other words, the Stormwater Team found violations or a substantial potential to pollute at 18 out of 100 construction sites. In some cases, inspectors used this information to seek corrective action, but not in all.

It is the belief of the North Sound Baykeeper that the problems at poorly managed construction sites will continue unless violators are fined for documented violations. Fines for contractors should increase with the number of violations they have received. And the Department of Ecology should post a list of contractors and the frequency with which they are cited for sloppy practices and water quality violations.

In 2005, staff of the North Sound Baykeeper implemented an industrial site assessment program. The goal was twofold. First, document the number of industrial facilities that are required to have an industrial stormwater general permit (ISGP), but do not. Second, ensure that these industrial facilities obtain permits.

Research showed that over 400 sites in Whatcom and Skagit counties possessed the ISGP, but an additional 685 sites were subject to the permit and did not have it. Site visits confirmed that approximately one-third of assessed sites in Whatcom County and one quarter of the assessed sites in Skagit County were likely contributing to stormwater pollution and did not have the required permits. (Sites not contributing to stormwater pollution can get a Certificate of No Exposure or CNE.)

After doing 80 additional comprehensive investigations on un-permitted sites, the North Sound Baykeeper staff reported and/or contacted 51 sites that needed ISGP coverage or a Certificate of No Exposure. At present, Ecology is in the process of responding to the formal complaints and has even done inspections on some of the sites.

Only four sites, however, have actually obtained the appropriate permit coverage. This low response rate by Ecology is alarming. It demonstrates that Ecology is not taking adequate steps to require industries to implement the permit program and adequately enforce even the most basic of its requirements.

The staff of the North Sound Baykeeper program is very concerned that many facilities do not have ISGP coverage. This means that they are operating completely outside of Ecology’s regulatory framework in regards to stormwater pollution. Many facility managers seem to be unaware of the ISGP requirement. Ecology needs to address this problem by launching an outreach program and contacting new industries to make sure they are aware of the law.

Furthermore, Ecology estimated that at least 10 to 15 percent of the permitted facilities have a stormwater discharge that is likely to be causing a measurable environmental problem (Ecology 2007). Research by North Sound Baykeeper staff indicates that a significant number of facilities have never sampled their stormwater for pollutants, or sample much less often than is required by the permit. This discrepancy needs to be corrected and enforced.

In order for the permit system to work, all facilities contributing to pollution need to be permitted, and the permits need to be enforced. Subsequently, limits on discharges need to be set and enforced in order to protect water quality.

The information that the North Sound Baykeeper program gathered is being used to educate local businesses about the need to obtain an ISGP, as well as to alert the Department of Ecology to businesses that should have an ISGP. Unfortunately, the Department of Ecology is often not able to take prompt enforcement action because the department has too few enforcement personnel. Further, it appears that the agency lacks the political will to undertake vigorous enforcement activities.

The stormwater permits issued by Ecology do not prevent pollution — they authorize pollution with certain conditions, but the conditions are not enforced or followed. According to the observations of North Sound Baykeeper staff, a large percentage of the permitted sites do not comply with permit conditions and requirements. Additionally, research shows that many facilities that are covered under the general permits have never even submitted the required sample data.

Stormwater pollution is a serious problem affecting the health of Puget Sound. However, the Department of Ecology is not vigorously implementing or enforcing its stormwater program. At a time when state government is shining a light on the health of the sound and has set an ambitious goal to recover its health by 2020, urgent action is needed to curb stormwater pollution. The following actions are needed to mitigate and reduce the threat of stormwater pollution in the Puget Sound region:

1. Ecology permits need to be strengthened, employing enforceable numerical water quality criteria instead of ambiguous benchmarks.

2. Industries that are likely to be the source of polluted stormwater should be required to have an industrial permit or a certificate that exempts them from the permit.

3. Ecology must ensure that facilities that are required to have permits obtain them.

4. Ecology must enforce permit requirements, including the need for facilities to take required samples.

5. Local governments, including Ecology, need increased financial resources and staff to manage stormwater in their jurisdictions.

6. A special enforcement effort should focus on contractors and industries that repeatedly violate the law.

7. Ecology must be held accountable for enforcing stormwater permits.

Stormwater has been a known source of pollution in Puget Sound for over 20 years. The Washington State Department of Ecology identifies stormwater as the leading contributor to water pollution in our urban waterways (PSAT 2007) – but local and regional laws and current enforcement levels are not protecting our local waters.

The North Sound Baykeeper has shown that industries often do not know about their stormwater responsibilities, and that contractors and industries that do know about their responsibilities often shirk them. It is also the belief of the North Sound Baykeeper that the permit and regulations are not stringent enough. This latter point, however, will remain a matter of contention until regulations are adequately enforced.

Investigations have shown that the public cannot depend on many businesses to follow the law. Thus we must depend on the Department of Ecology to enforce the law. While citizens and nonprofits should do their part to alert regulators to polluting practices and to protect Puget Sound, we need the regulatory agency to be a partner in making the enforcement of its own permits a priority. §