December 2016


EPA Issues Final Rule on Stormwater Permitting for Small Communities

By Julie Ufner
      NACo Associate Legislative Director - Environment, Energy & Land Use


Safety Cert.pngOn November 17, the US Environmental Protection Agency (EPA) published a final rule governing how small municipal separate storm sewer systems (MS4s) obtain coverage under the National Pollutant Discharge Elimination System (NPDES) general permit program. The new rule, which would set clear guidelines for public engagement in the permitting process, is relevant for smaller populated counties that hold federal stormwater permits. Though the final rule provides some additional flexibility for states and local governments, it does not offer the full range of options NACo had requested in our comments.

An MS4 is a conveyance, or a system of conveyances (storm drains, pipes and ditches), owned by state or local governments that collects, transports and discharges stormwater to the “waters of the U.S.” (WOTUS). Because a MS4 may discharge to a WOTUS, the systems are required to obtain federal NPDES permits, which require stormwater management plans as part of the permit. NPDES permits are generally authorized by the states although EPA oversees the program in Idaho, Massachusetts, New Hampshire and New Mexico. This rule deals strictly with small urbanized communities that serve populations below 100,000; it is estimated to impact 6,789 small MS4s.

The final rule derives from a 2003 court decision which stated that the EPA must establish a timeline for updating its rules on Phase II small MS4s. In Environmental Defense Center, et al. v. EPA, 344 F.3d 832 (9th Cir. 2003), the court found that small Phase II MS4 permits did not provide adequate public participation in the permit process and noted there was a lack of oversight by the permitting authority. The court instructed the EPA address these deficiencies and finalize a rule by November 2016.

Under the final rule, EPA is implementing a new requirement, the Permitting Authority Choice Approach, which is a narrower approach than recommended by NACo. The rule allows states and EPA to choose between two alternative means — the “Comprehensive General Permit” or “Two-Step General Permit” — to establish permit requirements for small Phase II MS4s.

The Comprehensive General Permit option is a traditional general permit approach that would include specific public notice and review opportunities within the MS4 general permit.

The Two-Step General Permit, on the other hand, is a procedural approach that would require the permit authority to incorporate additional permitting and public review requirements into the existing regulatory process, rather than in the permit itself.

On March 21 NACo, along with the National League of Cities (NLC) and the US Conference of Mayors (USCM), filed joint comments with the EPA on the proposed National Pollution Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System (MS4) General Permit Remand rule. 

The letter recommended that EPA use a hybrid approach, which would allow states to choose — working closely with their MS4 communities — to issue the MS4 Phase II permits in alignment with the Comprehensive General Permit or the Two-Step General Permit or any combination of the two options.

Reprinted from NACo County News, December 6 issue.


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