EPA Solicits Comments on Updates to Stormwater Regulations
Stemming from a 2003 court decision, the U.S. Environmental Protection Agency (EPA) has established a timeline for updating its Phase II stormwater regulations regarding the procedures to be used for providing coverage to small municipal separate storm sewer systems (MS4s) under general permits.
The purpose of this rulemaking is to fix certain deficiencies that the Ninth Circuit Court of Appeals found in the permitting process for small MS4s covered under general permits, namely the lack of permitting authority review and the lack of public participation in the permitting process. This rulemaking applies to operators of a "regulated small MS4," of which 94 percent are permitted under a state general permit. There are 6380 small MS4s covered by general permits nationwide.
Under the recently negotiated timeline, EPA will published a proposed rule by Dec. 17, 2015 and a final rule by Nov. 17, 2016. In the forthcoming proposed rule, EPA will solicit comments on one of the three options currently under consideration, however, communities are invited to provide feedback by early October on the options ahead of the proposed rule.
The options that EPA is considering are:
- A traditional General Permit approach whereby the General Permit includes clear, specific and measurable provisions and the permittee is required to submit a Notice of Intent that the requirements will be met (current examples include Western Washington Small MS4 General Permit and California Small MS4 General Permit and EPA Region 6 Middle Rio Grande MS4 General Permit);
- A procedural approach whereby the permit authority establishes a mechanism to approve individual MS4 programs (current examples include Minnesota and Texas); or
- A state choice approach whereby the permit authority can chose to follow either option one or two or a hybrid of the two.
Additionally, seven states do not issue general permits, but rather individually permit their small MS4s and would therefore not be affected by this rulemaking: Delaware, North Carolina, Michigan, Iowa, Alaska, Idaho (EPA is the permitting authority), and Oregon.