EPA Proposes More Stringent Stormwater Rules for Municipal Stormwater Programs

Washington, D.C. – February 18, 2016 – (RealEstateRama) — May Force Cities to Further Restrict Runoff from Construction and Development The U.S. Environmental Protection Agency (EPA) is accepting public comments until March 21 on proposed changes (link is external) to its general permit program for operators of municipal separate stormwater sewer systems (MS4s), which will ensure that cities are reducing pollutants in their runoff to the “maximum extent practicable” (MEP). 

The proposed rule addresses how small MS4s seek and incorporate public comment and agency reviews into their permits. The proposal would significantly change how cities obtain Clean Water Act (CWA) authorization to discharge stormwater from their systems and may force cities to further limit runoff from active construction sites and developed properties. Most notably, the proposal would broaden requirements for public notice in order to allow citizen groups or individuals to voice concerns through comments and public hearings whenever small cities (serving <100,000 people, commonly called “Phase II” MS4s) seek coverage under a stormwater permit. 

This broadening may prove to be yet another way (absent a national “post-construction” rule) to force cities to even more stringently regulate what leaves developed sites – which could include things like restrictions on flow and the amount of impervious surface, etc.  Similarly, cities may be forced to put even more stringent ordinances in place to control active construction site runoff within their city limits. 

Specifically, EPA sets out three options for new, binding oversight of small MS4s’ water pollution controls, all of which are subject to public notice, comment and an opportunity to request a public hearing.  The agency is considering a mandate for general permits to specifically list allowed compliance methods/deadlines rather than letting individual facilities develop their own strategies; continuing to allow system-specific plans but requiring formal review and approval by state or federal regulators; or a hybrid approach that would give states a choice on whether to use either option or elements from each.  AGC will continue to engage with EPA on stormwater issues that impact construction and will provide comments during this rule’s public participation period.

To submit comments online by the March 21st deadline, visit EPA’s official on-line comment system at Regulations.gov (link is external) and follow the instructions for submitting comments on Docket ID No. EPA–HQ– OW–2015–0671. 

EPA’s latest stormwater action stems from a 2003 ruling by the U.S. Court of Appeals for the Ninth Circuit, wherein the court told EPA to revise its small MS4 policy and related stormwater rules.  The court held that because EPA’s permit rule does not subject small cities’ stormwater management plans to public review or agency approval, there is no guarantee that the plans actually satisfy the MEP standard, which is the standard established by CWA. 

However, EPA did not begin crafting a rule until environmentalists brought another lawsuit and subsequently reached a settlement. EPA is required to finalize its new stormwater rule by Nov. 17, 2016, under the terms of the settlement.  For more information, please contact Leah Pilconis, senior environmental advisor to AGC, at (link sends e-mail).

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