» Advocacy Alerts Archive 

On December 18, EPA released a draft of its highly anticipated Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule. The proposed rule would modify the Agency's stormwater regulations that apply to Phase II MS4 communities covered under general permits. EPA will accept comments up to 75 days after the rule is published in the Federal Register, which NACWA anticipates will occur sometime in the next 7-10 days.

The rule describes options to amend the Phase II MS4 regulations to address a judicial court order mandating that the regulations provide adequate public notice, the opportunity to request a hearing, and adequate permit authority review to ensure the permit meets the Clean Water Act's (CWA)  requirements for municipal stormwater discharges to control pollutants to the maximum extent practicable (MEP). This rulemaking also has the potential to impact how the MEP standard is applied to the entire stormwater program, including Phase I permits. Accordingly, it is important that all municipal stormwater agencies, not just those covered by Phase II general permits, review the proposal and consider how it could impact their communities or the stormwater regulatory landscape more broadly.

This Advocacy Alert provides a brief background and summary of EPA Phase II efforts and NACWA's engagement, outlines the key components of the proposal, and requests member input to assist NACWA in developing comments on the proposal in early next year.

Background

Issued in 1999, the national Phase II stormwater regulation requires regulated small MS4s in urbanized areas to obtain National Pollutant Discharge Elimination System (NPDES) permit coverage for their stormwater discharges. 43 of 50 states use general permits to authorize small MS4 discharges, covering 94 percent of the roughly 6,800 permitted small MS4s nationwide. A number of interested stakeholders, including the Natural Resources Defense Council (NRDC), filed legal challenges to the Phase II regulations after they were promulgated.  In 2003 the U.S. Court of Appeals for the Ninth Circuit remanded certain portions of the regulations back to EPA for reconsideration.  Specifically, the Ninth Circuit found that the notices of intent (NOIs) filed by regulated entities under the Phase II rules needed to undergo public notice and comment, and that the regulatory agencies overseeing the Phase II program needed to ensure that each regulated entity would meet the MEP standard for controlling MS4 discharges.  EPA, however, took no official action to address the court's remand.

In December 2014, NRDC and the Environmental Defense Center (NGOs) filed a petition  for a writ of mandamus with the Ninth Circuit to enforce the 2003 decision regarding the Phase II MS4 rule. Among other things, the NGOs alleged that EPA must promulgate a rule to require NPDES permitting authorities to review all NOIs submitted by small MS4s as part of the general permitting scheme and provide opportunity for public review and comment on NOIs. EPA and the activist groups reached a joint motion and proposed settlement agreement  in August 2015. The proposed settlement agreement required EPA to propose a rule with changes to the Phase II program by December 17, 2015 – a deadline the Agency has now met – and to finalize the rule by November 17, 2016. This is an aggressive schedule and EPA has spent the past 6 months developing the rule proposal and engaging with stakeholder groups.

Pre-Proposal Engagement on the Rule

The NACWA Stormwater Management Committee held a virtual meeting (slides ) on Sept. 9 focused on EPA's work to develop the proposed rulemaking. During the meeting, the Committee discussed background to the rule and reviewed a number of potential options EPA was considering. The Committee considered the advantages and disadvantages of each option and provided feedback. Committee members were joined by the National Stormwater Advocacy Network (NSAN) organizations on the call, and raised questions and potential concerns with aspects of EPA's two potential approaches.

NACWA filed pre-proposal comments with EPA in early October which noted that the proposal should be as narrowly tailored as possible and should not attempt to define the MEP standard for municipal stormwater dischargers. NACWA also encouraged EPA to ensure that any changes to the Phase II program do not significantly change the current Phase II regulations or impose additional administrative burdens on the broader municipal stormwater community, including Phase I permittees. The request for flexibility was echoed by state regulators and other permit authorities.

Amidst conversations with the municipal community on the rule, EPA was also working with environmental stakeholders. The original petitioners, led by NRDC, were joined by a coalition of environmental groups to file pre-proposal comments on the rule encouraging EPA to require that Phase II permits include more quantitative and measurable obligations for permittees as part of this rulemaking.

NACWA subsequently invited NRDC to participate in a conference call with the NSAN and additional conversations with NACWA staff. These discussions revealed that NRDC is particularly interested in using this rulemaking to further define, in specific terms, what the MEP standard requires MS4 utilities to achieve with regard to meeting MS4 permit requirements. In particular, NRDC and other activist groups would like to see a rulemaking that does not simply address procedural notice and review issues with regard to the Phase II program, but instead would like to see a more specific, detailed definition of MEP that could also potentially be applied to Phase I programs.

Proposal Overview and Initial Observations

The rule proposes to revise the small MS4 regulations in an effort to ensure that permitting authorities determine the adequacy of best management practices (BMPs) and other requirements to meet MEP, while also ensuring there is sufficient public notice and the opportunity to provide input on Phase II general permits.

The proposal discusses three regulatory options, with the third option being a hybrid of the first two:

• The first option (called the "Traditional General Permit Approach") requires the permitting authority to establish within a Phase II general permit all requirements that MS4s must meet (including to reduce pollutants to MEP, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA), which would be subject to public notice and comment and an opportunity to request a hearing as part of the initial issuance of the general permit. EPA released a strikeout version  showing how the 40 CFR 122 sections would be changed under the first option, as well as a compendium that illustrates existing and draft state general permit provisions they believe may demonstrate "clear, specific, and measurable" requirements sufficient to meet the requirements of Option 1.
• The second option (called the "Procedural Approach") would add procedural requirements to the existing Phase II regulations requiring permitting authorities to publicly notice and take comment on the proposed NOIs submitted by Phase II MS4s. The Procedural Approach is the most literal response to the Ninth Circuit decision, where the permitting authority reviews each NOI and incorporates specific conditions that are considered by the permitting authority to be necessary to comply with the requirement to reduce pollutants to the MEP, to protect water quality, and to satisfy the water quality requirements of the CWA. Prior to authorizing an MS4's discharge, the permitting authority must also provide the public with an opportunity to comment on the proposed authorization, including the additional permit terms that the MS4 will be required to meet and to request a hearing, if applicable.
• The third option (called the "State Choice Approach") would enable the permitting authority, typically a state, to choose between the Traditional General Permit and Procedural Approaches, or to implement a combination of these approaches in issuing and authorizing coverage under a general permit.

Option 2 is narrowly focused and is the most consistent with the court's decision. However, requiring permitting authorities to review each individual NOI and provide the opportunity for public comment and public hearing on each NOI could be onerous on state permitting authorities. This in turn could lead states to pass the obligation for publicly noticing the permits and responding to comments on to small communities, many of which would be ill-equipped to handle this responsibility. For this reason, NACWA has significant concerns with Option 2.

EPA seems to favor Option 1 and believes this option satisfies the Ninth Circuit's public notice and review requirements by mandating that the permitting authority clearly define in the Phase II General Permit what requirements must be met to satisfy MEP and compliance with water quality standards, and then allowing the public to comment on those requirements. EPA is clear in the rule proposal, however, that it is not specifying in the rule what MEP means, but is instead allowing permit authorities to delineate those requirements.

NACWA believes this approach, which allows individual permitting authorities to define MEP for the purposes of Phase II General Permits, may be the most reasonable approach for Phase II MS4s. However, there are also some concerns with this approach based on EPA's proposed revisions to the existing regulatory language. For instance, on page 3 of EPA's strikethrough version of 40 CFR 122, the word "narrative" is removed, suggesting that narrative effluent limits would no longer be a valid mechanism to meet MEP. Many general permits rely on narrative limits to allow flexibility across a wide variety of communities, and the notion that narrative limits could be eliminated in favor of more "measurable" limits is problematic.

NACWA is concerned that MEP is consistently referred to as an "iterative standard" in the proposed rule, especially with regard to Option 2. While EPA has long held MEP to be iterative, many NACWA members have also argued that MEP is a statutory term, and is not open to EPA interpretation. This is ultimately an argument that is best left to resolution by Congress or the courts, not to EPA regulatory action.

NACWA also has concerns whether Option 1 would adequately respond to the Ninth Circuit's remand requirements. While NACWA would likely still favor Option 1 over Option 2, EPA must ensure whichever Option it chooses is legally defensible.
NACWA looks forward to further conversation with the Stormwater Management Committee on which option(s) would be appropriate for NACWA to support in its comments on the proposed rule. 

Specific Requests for Comment from EPA

EPA highlights a number of specific requests for comment in the rule proposal. NACWA is further reviewing each of these requests, but welcomes any specific thoughts members have on them.  The requests are as follows:
Option 1 – Traditional General Permit Approach

• EPA requests comment on what additional examples should be highlighted as being clear, specific, and measurable in current small MS4 general permits – as part of Option 1.
• EPA seeks comment on whether to provide in the regulations the option for modifying the general permit under the minor modification procedures in 40 CFR 122.63 for "nonsubstantial revisions" to BMPs, similar to changes for the terms of a concentrated animal feeding operation's (CAFO's) nutrient management plan that are considered "not substantial" under 40 CFR 122.42(e)(6).
• EPA also seeks comment on what criteria should apply for distinguishing between when a change to BMPs is "substantial" requiring a full public participation process or "not substantial" that would be subject to public notice but not public comment under a permit modification process similar to the process in 40 CFR 122.42(e)(6).

Option 2 – Procedural Approach

• In addition to comments on the merits of Option 2, EPA solicits comments recommending specific regulatory text for this "Procedural Approach" option.
• EPA seeks comment on whether a rule establishing a procedural approach should enable permitting authorities that rely on the MS4 to public notice its NOI to be able to use this approach to satisfy the public notice requirement for the individual NOIs. If allowed, should it be limited to when the State clearly makes the ultimate decisions about what requirements are sufficient to meet the MEP, to protect water quality, and to satisfy the appropriate water quality requirements of CWA?
• EPA requests comment on whether the Agency should adopt as its final rule option the procedural approach for permitting small MS4s.

Option 3 – State Choice Approach

• EPA also separately requests comment on whether the final rule should give permitting authorities a choice of which approach, either the Traditional General Permit Approach or the Procedural Approach, to adopt for their permitting program, or whether there is support for allowing permitting authorities to use a combination of these two approaches.
• Additionally, with respect to this concept of specifying which aspects of the small MS4 regulations must be incorporated into permits using the Option 1 approach, while allowing some permit conditions to be developed using the Option 2 approach, EPA requests comment on which permit requirements should be required to be established using Option 1 and which should be given the flexibility to be established using Option 2.

Member Input Requested on Proposal

NACWA will be convening the Stormwater Management Committee in the new year to further analyze the proposed rule and potential impacts. NACWA intends to submit comments on the draft rule and requests that any member with thoughts, questions, or reactions to the document please provide input to help inform the Association's comment effort. Comments should be sent to Brenna Mannion at  This e-mail address is being protected from spambots. You need JavaScript enabled to view it  by January 29, 2015. Members are also encouraged to submit their own comments directly to EPA via the instructions provided on the proposal.