MS4 Phase II Remand Rulemaking - Information from NMSA - E-mail #2 Greetings, stormwater professionals: I am writing to provide information about the federal MS4 Phase II Remand Rulemaking. This is the second of multiple E-mails that I will be distributing on this topic. Please see the numbering in the E-mail message subject line. This E-mail message and the information in it will be distributed to my stormwater colleagues in Minnesota and a wider group of stormwater professionals nation-wide. A few statements are appropriate, before I get started.

I am not an attorney. I am a civil engineer.

I believe that it is necessary and appropriate to provide information on this topic to the community of MS4 permittees throughout the United States, especially the smaller Phase II MS4 permittees who are directly affected by this new draft rule. Many of these Phase II permittees have very limited staff resources to track this type of issue.

I am the chair for a new national organization comprised of and focused on MS4 permittees, the National Municipal Stormwater Alliance (NMSA). I am also the staff for the Minnesota Cities Stormwater Coalition (MCSC). MCSC and NMSA have not yet developed positions or formal comments regarding this new draft rule.

The term in this E-mail message, “full rule document”, describes multiple versions of the final publication document from the Federal Register that includes the draft rule language and the preamble. This E-mail message is to provide you with concise information about the contents of this new draft rule. I use excerpts from the full rule document as much as possible, with the excerpts in italicized text. This E-mail will focus on the preamble of the full rule document. I will address the draft rule language in a future E-mail message to come soon. Please be warned – this is a long and complex E-mail message. I am not going to apologize for that. This is complex material and over-simplifying it isn’t going to help anyone. I have provided the very specific locations of every preamble excerpt in this E-mail message. If an excerpt catches your attention, I recommend that you look at that section of the full rule document. The court ruling focused on the application process for coverage under MS4 general permits. Therefore, the draft rule focuses on this portion of the entire MS4 permitting process. In particular, it is focused on the NOI (or permit application) and the Stormwater Management Program (SWMP) submitted at the time of application. In Minnesota, these submittals include the permit application form and the Stormwater Pollution Prevention Program (SWPPP) Document.

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I am going to work off of a version of the full rule document that I discussed in the first E-mail in this series. It is the “Public Inspection” version and it is available on the Federal Register Web site. You can find this version here:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-33174.pdf More specifically, I am going to refer to a line-numbered version of this document that I created. I refer to it as the “NMSA line-numbered version of the full rule document”. It was also presented in the first E-mail. You can download this document here: https://dl.dropboxusercontent.com/u/97223896/Rule%20and%20preamble%20-%20plain%20format%20-%20public%20inspection%20-%20NMSA%20line%20numbered.pdf The preamble for the full rule document includes a Table of Contents. I have pasted the full table into the end of this E-mail. Here is an excerpt of the TOC (with page numbers added):

SUPPLEMENTARY INFORMATION: Table of Contents I. General Information

A. Does this action apply to me? (pages 3-4) B. What action is the agency taking? (page 4-5) C. What is the agency’s authority for taking this action? (page 5)

II. Background A. Statutory and Regulatory Overview (pages 6-8) B. MS4 Permitting Requirements (pages 8-9)

III. Judicial Review of the Phase II Rule and Partial Remand A. Decision in Environmental Defense Center et al. v. EPA (pages 10-11) B. EPA Action Following the Partial Remand of the Phase II Rule (pages 11-12)

IV. Scope of this rulemaking (pages 12-13) V. EPA’s evaluation and selection of rulemaking options

A. Current Permitting Authority Practice (pages 13-15) B. Description of process used to evaluate options (pages 15-17) C. Considerations in evaluating options (pages 17-22)

1. Permitting Authority Review (pages 18-19). 2. Public Participation Requirements (page 19) 3. Other factors considered. (pages 19-22)

VI. Analysis of options for proposal (pages 22-39) A. Option 1 - The Traditional General Permit Approach (pages 23-39)

1. Current Examples of Clear, Specific, and Measurable Permit Requirements (pages 28-30) 2. Types of Permit Language Lacking Sufficient Detail to Qualify as Clear, Specific, and Measurable (pages 30-32)

3. Summary/Description of Proposed Rule Changes (pages 32-39) B. Option 2 – Procedural Approach (pages 39-52) C. Option 3 – State Choice Approach (pages 52-55)

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Even before the Table of Contents, there are two important and useful items in the preamble. The first is a summary (page 1, lines 17 – 30)

SUMMARY: The Environmental Protection Agency (EPA) is proposing changes to the regulations governing small municipal separate storm sewer system (MS4) permits to respond to a remand from the United States Court of Appeals for the Ninth Circuit in Environmental Defense Center, et al. v. EPA, 344 F.3d 832 (9th Cir. 2003). In that decision, the court determined that the regulations for providing coverage under small MS4 general permits did not provide for adequate public notice and opportunity to request a hearing. Additionally, the court found that EPA failed to require permitting authority review of the best management practices (BMPs) to be used at a particular MS4 to ensure that the small MS4 permittee reduces pollutants in the discharge from their systems to the “maximum extent practicable” (MEP), the standard established by the Clean Water Act for such permits. EPA’s proposal would revise the small MS4 regulations to ensure that the permitting authority determines the adequacy of BMPs and other requirements and provides public notice and the opportunity to request a public hearing on the requirements for each MS4. The proposal would not establish any new substantive requirements for small MS4s.

This summary includes five sentences. The first sentence explains that this rulemaking is in response to a court ruling from 2003. The second and third sentences list the deficiencies the court found in the existing regulations. The fourth sentence describes EPA’s intent to address these deficiencies in this proposed rule. It is worth noting that these sentences refer to “public notice and the opportunity to request a hearing” but the draft rule also addresses public comments. The last sentence in this summary is significant. The court found deficiencies in the process used for writing and issuing MS4 general permits. The rulemaking addresses those deficiencies. In this new draft rule, EPA is not creating or establishing any new substantive requirements for small MS4s that must be included in the MS4 general permits. For example, this rulemaking does not include any new requirement that stormwater volume control standards must be included in future MS4 general permits. “the focus of the proposed rule is on the administrative manner in which general permits are issued and/or coverage under those permits is granted.” (page 56, lines 13 – 15) The second important item before the TOC are the instructions for submitting comments and the contact information for the EPA staff person for this rulemaking (page 2, lines 4–19). The first sections of the full rule document provide background information about the history of the MS4 program, the court ruling, and EPA’s process to develop this draft rule.

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The section titled “Scope of this rulemaking” is short and valuable. It reinforces some of the statements in the summary. (pages 12-13)

“IV. Scope of this rulemaking The proposed revisions to the Phase II MS4 NPDES permitting requirements are solely for the purpose of responding to the partial remand of the Phase II rule in Environmental Defense Center v. U.S. Environmental Protection Agency, 344 F.3d. 832 (9th Cir. 2003) with respect to small MS4 general permits. To conform to the court’s decision, the rule needs to ensure that permitting authorities determine what requirements are needed to reduce pollutants from each permitted small MS4 “to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act,” as currently required for small MS4 permits under 40 CFR 122.34(a). The proposed rule must also require NPDES permitting authorities to provide the public with the opportunity to review, submit comments, and request a public hearing on these requirements. EPA is not reopening any of the substantive requirements that were promulgated in the Phase II rule (nor is EPA reopening or seeking comment on any aspect of the Phase I rule, which is described in this preamble for informational purposes only). In addition, EPA will address the other aspect of the Ninth Circuit’s remand regarding possible regulation of stormwater discharges from forest roads in a separate action.”

There is an interesting piece of information on page 14, lines 12-14:

“general permits are used as the permitting vehicle to authorize small MS4 discharges in the vast majority of states (i.e., 43 of 50 states, which represents 94 percent of the 6,789 permitted small MS4s).”

This works out to approximately 6,382 permitted small MS4s. These are the permittees that will be directly affected by this rule. In the section titled “Description of process used to evaluate options”, EPA describes discussions they had with various stakeholder groups. Most of this section focuses on discussions with state permitting authorities. The last paragraph describes conversations with environmental groups. One short paragraph describes input from MS4 permittees (page 16, lines 17-23). NMSA did not exist at the time of these discussions.

“EPA met with organizations representing state and local elected officials, as well as with small MS4 permittees and organizations that include small MS4s as members. MS4s, in particular, are interested in retaining the flexibility of the existing Phase II regulations, where they are able to make decisions on which BMPs are implemented locally based on factors that are unique to their municipality and environmental concerns. At the same time, many of these same MS4s understand the need for permit requirements that are clear to all parties and the public.”

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Three Options Now we are at the heart of the full rule document. In the preamble, EPA is proposing three different options to address the deficiencies from the court ruling. Option #1: Traditional General Permit approach Option #2: Procedural Approach Option #3: State Choice Approach Here is a very quick and overly-simplistic way to view these options. Option #1: Change how the permits are written to address the deficiencies. Include all the permit requirements in each general permit, in the form of “clear, specific, and measurable” permit requirements. Option #2: Address the deficiencies by changing how the permit submittals are reviewed and public noticed by the permitting authorities. Include provisions for public comments and requests for public hearings during the review of each NOI and SWMP submittal. Option #3: A hybrid approach. “Allow permitting authorities to choose either <Option 1 or Option 2>, some combination of the two as best suits their needs and circumstances.” Excerpt from pages 22 &23:

“EPA is proposing three rule options for public comment, each of which would address the Ninth Circuit remand. Each of these options shares in common the fact that, as a result of the permitting process, the permitting authority must determine which requirements a small MS4 must meet in order to satisfy the Phase II regulatory requirement “to reduce the discharge of pollutants from [the] MS4 to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirement of the Clean Water Act.” The key difference between the options, especially between the “Traditional General Permit Approach” (Option 1) and the “Procedural Approach” (Option 2), is that they make this determination at different points in time during the permitting process. For Option 1 (the “Traditional General Permit Approach”), the determination as to what requirements are needed to reduce the discharge of pollutants to the MEP, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA is made as part of the initial issuance of the general permit. By contrast, under Option 2 (the “Procedural Approach”), the permitting authority would make this determination after reviewing each individual NOI and after public comment and the opportunity for a hearing on the NOI. Each of these options is described more fully in this section, as is a third option (the “State Choice Approach”), which would give the permitting authority the discretion to determine whether it will administer Option1 or Option 2, or a hybrid of options chosen for the final rule.”

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Option #1: Traditional General Permit Approach For reasons that I do not know, EPA chose to provide draft rule language for only one option, Option #1. All three options are described in the preamble. “The “Traditional General Permit Approach” provides a mechanism for addressing the procedural deficiencies identified by the court by requiring all substantive permit requirements to be in the general permit.” (page 23, lines 7-9) All the administrative procedures for public notice, public comments, requests for public hearings, and permitting authority review would apply to the development and issuance of each general permit. The logic is that, because the permit requirements are written into the general permit, the public and agency review administrative procedures for the general permit will satisfy the remand from the court ruling. “Under the proposed Traditional General Permit Approach, the NPDES authority must establish in any small MS4 general permit the full set of requirements that are deemed adequate “to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act,” and the administrative record would explain the rationale for its determination. The permittee would have the opportunity, as it always has had, to provide feedback on what requirements are established in the general permit during the development of the draft permit and to submit comments during the public comment period.” (pages 23 & 24) “Under the proposed Traditional General Permit Approach, 40 CFR 122.34(a) would be revised to expressly require the permitting authority to articulate in sufficient detail in the permit what is required to meet the minimum statutory and regulatory requirements, and to ensure that the applicable requirements are enforceable and understandable to the permittee and the public. A general permit would need to make it clear to all what level of effort is expected of the permittee during the permit term for each permit provision.” (pages 24 & 25) “The proposed rule for the Traditional General Permit Approach would obligate the permitting authority to establish requirements that are “clear, specific, and measurable.” See proposed 40 CFR 122.34(a). The proposed rule further explains that effluent limitations may be expressed as BMPs that include, but are not limited to, “specific tasks, BMP design requirements, performance requirements or benchmarks, schedules for implementation and maintenance, and frequency of actions.” Id. Where permits incorporate clear, specific, and measurable requirements, EPA expects there to be greater certainty and understanding as to what must be accomplished during each permit term.” (page 27, lines 4-11) “a key component of the proposed Traditional General Permit Approach is that permits be written with sufficient clarity and specificity to enable permittees, the public, and regulatory authorities alike to understand what is required to measure progress. EPA acknowledges that meeting the requirement to include more detailed terms and conditions in small MS4 permits

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and to ensure, among other things, that the permit terms satisfy the regulatory requirement to reduce pollutant discharges from the MS4 to the MEP (and meet the requirement to protect water quality and meet the appropriate water quality requirements of the CWA) will not be easy for some states.” (page 28, lines 17-24) If the permit requirements are to be written into each general permit, there is concern about retaining the local flexibility that is one of the hallmarks of the MS4 permitting program. EPA says the following. “the permittee could continue to have flexibility in determining how it will implement the permit requirements based on considerations such as pollutant removal and cost effectiveness.” (page 24, lines 1-3) “permitting authorities may find that subcategorizing MS4s by experience, size, or other factors, and creating different requirements for each subcategory, may be desirable. Permitting authorities may also consider whether watershed-wide general permits may be an option, especially where the receiving waters are impaired.” (page 29, lines 5-9) It is somewhat helpful to look at how the NOI and SWMP are considered under this option. “the SWMP implemented by the MS4 would be a planning and programmatic document that the MS4 would be able to update and revise during the permit term as necessary to comply with the terms of the permit. In other words, this option would make it clear that the SWMP document would not contain enforceable requirements. Likewise, it would be unnecessary for the NOI to identify the BMPs selected in the SWMP for each minimum control measure nor for it to undergo public or permitting authority review prior to discharge authorization under the general permit.” (page 25, lines 16-22) “The NOI would no longer be required to include information on the MS4’s BMPs and measurable goals.” (page 32, lines 23-24) “In the proposed regulatory text, the small MS4 operator is still required to develop a SWMP; however, the stated purpose of the SWMP is clarified to emphasize the fact that it is a tool for describing how the permittee will comply with the permit requirements implementing the six minimum control measures, and does not contain effluent limitations or permit conditions.” (page 36, lines 13-17) “preserve the SWMP as a tool for permittees to describe [in more detail] how the MS4 will implement the BMPs required by the permit and to document updates to the SWMP as needed during the permit term if changes are called for to comply with the permit.” (page 36, lines 21-24) The concept of MS4 general permit requirements that are sufficiently “clear, specific, and measurable” is very important under this option. This is discussed in pages 28 – 30 of the full

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rule document. Additionally, EPA has created and provided a 41-page document of illustrative examples titled “MS4 General Permits and the Six Minimum Control Measures: A Compendium of Permit Requirements”. This document can be found at this Web hyperlink: http://www.epa.gov/sites/production/files/2015-12/documents/epa_compendium_of_ms4_general_permit_requirements_2015.pdf On pages 30 – 32 of the full rule document, EPA has provided a section titled “Types of Permit Language Lacking Sufficient Detail to Qualify as Clear, Specific, and Measurable”. This is worth reading and comparing with your state’s general permit provisions. EPA also cites California and Washington as two states that have existing general permits that resemble Option #1.

“rather than requiring NOIs with information on BMPs and measurable goals, California and Washington include in their general permits the specific tasks, milestones, and schedules that are to be met by each permittee. Therefore, once coverage under the general permit in these states is authorized, the enforceable components of the permit are locked in place for each permittee, and the permitting authority is no longer required to review the information submitted by individual MS4s prior to authorizing the discharge. What matters is whether the permittee is complying with the specific requirements of the permit.” (page 15, lines 5-11)

Are you confused and/or overwhelmed yet? Now we’re ready to move on to Option #2. Option #2: Procedural Approach “Another option, called the “Procedural Approach,” for which EPA requests comment would address the remand by incorporating additional permitting authority and public review steps into the existing regulatory framework for providing coverage to small MS4s under general permits. EPA is not proposing specific regulatory text for this option, but has included a detailed description of how the Procedural Approach would work.” (pages 39 – 40) “Under the Procedural Approach, once an MS4 operator submits its NOI requesting coverage under the general permit, an additional step would take place in which the permitting authority would review, and the public would be given an opportunity to comment and request a hearing on, the merits of the MS4’s proposed BMPs and measurable goals for complying with the requirement to reduce discharges to the MEP, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA.” (page 40, lines 7-12) <Bullets added for clarity> “The process would occur in the following sequence:

Following the receipt of an NOI for coverage under the general permit, the permitting authority would review the NOI to assess whether the proposed BMPs and measurable

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goals meet the requirements to reduce pollutants to the MEP, protect water quality, and satisfy the water quality requirements of the CWA.

o If not, the permitting authority would request supplemental information or revisions as necessary to ensure that the submission satisfies the regulatory requirements.

Once satisfied with the submission, the Procedural Approach would require the permitting authority to provide public notice of the NOI and an opportunity to request a hearing on the NOI, in accordance with 40 CFR 124.10 through 124.13.

After consideration of comments received and a hearing, if held, the permitting authority would provide notice of its decision to authorize coverage under the general permit and with the specific requirements each MS4 must meet, in accordance with 40 CFR 124.15, or as provided by state law for providing notice of a final permit decision in authorized states.

Upon completion of this process, the MS4-specific requirements in the NOI, together with the terms and conditions set forth in the general permit, would be incorporated as requirements of the permit for the particular MS4.” (page 41, lines 3-17)

The full rule document cites Minnesota and Texas as having permit review and issuance procedures that resemble Option #2. These are discussed on pages 42, 43, and 45. I am quite familiar with the Minnesota procedure. Option #2 is seen as preserving greater local flexibility.

“Under the Procedural Approach, EPA would preserve one of the core attributes of the existing regulations, that is the flexibility afforded the MS4 to identify the BMPs that it determines are needed to meet the minimum regulatory requirements to reduce pollutant discharges to the MEP, to protect water quality, and to satisfy the water quality requirements of the CWA in its SWMP. This approach may appeal to states that accept the notion that the MS4 should have the initial opportunity to propose the BMPs that it believes will meet the regulatory requirements, and that each program may differ substantially from MS4 to MS4.” (page 43, lines 12-18)

There is concern that this process will place an additional administrative workload on the permitting authorities.

“However, the need to undergo a second round of public notice and comment at the state level, in addition to the one provided for the general permit, for approximately 6800 small MS4s, may be seen as a drawback due to the additional workload placed on permitting authorities that do not already follow this approach.”(page 43, lines 19-22)

The staff time needed for this process is estimated at 24 hours per permittee (page 46, lines 4-8). “Among the concerns EPA has with choosing Option 2 for the final rule is the increase in workload for permitting authorities that would be associated with reviewing and approving, and providing for notice and comment, and providing public hearing opportunities, on each individual NOI. For many permitting authorities, the advantage of providing flexibility to MS4s

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to propose what they believe will meet the applicable regulatory standards will be outweighed by the resource-intensive procedures that this approach requires. In EPA’s discussions with state permitting authorities, the Agency heard a number of concerns about their ability to implement new procedures such as these from a staff and resource perspective. Permitting authorities are also concerned about making individual decisions on what set of MS4 actions are sufficient to meet the regulatory requirements without the benefit of established standards to assist them in making these determinations. Concerns were also raised by many MS4 permittees, who emphasized the effects of these procedures on the timeliness of their discharge authorization, and the fear that states will turn to MS4s to conduct more notice and comment procedures on their behalf. EPA notes that there are also those states that are supportive of making the procedural approach a part of the final rule in some way or form.” (page 50, lines 3-17) Option #3: State Choice Approach This is the hybrid option. This option “would allow permitting authorities to choose either the Traditional General Permit Approach or the Procedural Approach, or some combination of the two as best suits their needs and circumstances.” (page 52, lines 11-13) EPA envisions at least two ways this option could be implemented.

“For example, a state could choose to use Option 1 for small MS4s that have fully established programs and uniform core requirements, and Option 2 for MS4s that it finds would benefit from the additional flexibility to address unique circumstances, such as some non-traditional MS4s.” (page 52, lines 13-16) “Alternatively, a state could apply a hybrid of the two approaches within one permit by defining some elements within the general permit, which are deemed to reduce the discharge of pollutants to the MEP, to protect water quality, and to satisfy the water quality requirements of the CWA, and enabling other elements to be established through a separate process that allows for more MS4-specific actions, using the Procedural Approach.” (page 52, lines 16-21)

“The benefit of the State Choice Approach is that the fundamental CWA requirements of permitting authority review and public participation would be met irrespective of whether this occurs as a result of the permit issuance itself or whether these procedures take place in a second step that occurs after permit issuance but before the MS4 is authorized to discharge under the permit. This approach would provide for more options for permit development other than traditional individual or general permits. EPA will continue to encourage greater specificity in establishing clear, specific, and measurable permit terms and conditions in the general permit itself, and expects to provide guidance to assist permitting authorities in accomplishing this objective. Nevertheless, the Agency recognizes that permitting authorities may prefer some flexibility in determining the balance between the efficiencies of a general permit and the

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desirability of providing maximum flexibility to small MS4s in how they will meet the MEP standard.”(page 53, lines 7-18) “The particular balance between specificity and flexibility a state chooses could evolve over time as the program continues to mature. The benefit of this option may be that it is the least disruptive to how state programs operate now and would impose the least burden on state permitting authorities” (page 53, lines 19-22) ______________________________________________________________________________ This is the second of multiple E-mails messages on the topic of this new draft rule. The next E-mail will have information about the proposed rule language. I am offering this information as part of my work with the National Municipal Stormwater Alliance (NMSA). NMSA is a new national organization comprised of and focused on issues of concern for MS4 permittees. If you are interested in this new draft rulemaking and want to get information from or work with NMSA, please use the Web hyperlink below to go to a very short survey form to give us your contact information. You will have the chance to tell us at what level you want to participate in NMSA’s work on responding to this draft rule. You can also tell us that you would just like to have the basic information about the new draft rule sent to you by NMSA. https://www.surveymonkey.com/r/TMFC2CM Please feel free to forward this message to your stormwater colleagues. Thanks,

Randy Neprash, PE National Municipal Stormwater Alliance, Chair Direct 651-604-4703 Cell: 651-271-5535 randy.neprash@stantec.com

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