Stormwater RulemakingBriefing

US Environmental Protection Agency

Overview

• Regulatory framework

• Drivers for present rulemaking

• Rulemaking considerations

• Timeline– Activities completed to date– Activities in progress

1972: CWA amendments establish NPDES permit program.

Program does not include stormwater.

Regulatory Framework

All “point” sources

“discharging pollutants”

into “waters of the U.S.”

Must obtain an NPDES permit from an authorized state or EPA

1983: Nationwide Urban Runoff Program finds urban runoff a significant source of pollution

1987: CWA amendments direct EPA to regulate stormwater discharges under NPDES

• Amendments recorded in section 402(p)

• 402(p) establishes phased approach to stormwater permitting

Regulatory Framework

Regulatory FrameworkSection 402(p)(4) Required EPA to establish permit application requirements for industrial and medium and large municipal separate storm sewer discharges

Section 402(p)(5) Required EPA to conduct a study to identify other stormwater discharges, assess associated pollutant loads, and submit the results in a report to Congress.

Section 402(p)(6) Provides authority for EPA to regulate other stormwater sources, based on the study, “to protect water quality”

1990:EPA promulgates Phase I Stormwater Rules

1999: EPA promulgates Phase II Stormwater Rules

Regulatory Framework

Phase I Phase II

Municipalities with populations

> 100,000

“Urbanized Areas” based on

decennial Census &

smaller MS4s designated by

permitting authority

Covers over 1,000 MS4s

Covers over 5,000 smaller

MS4s

Regulatory Framework

Phase I Phase IITypically covered by individual permits

Typically covered by general permits

Must reduce the discharge of pollutants to the maximum

extent practicable (MEP)

Must reduce the discharge of pollutants to the maximum

extent practicable (MEP)

Application requires development of a stormwater

management program

Application requires development of a stormwater management program that includes the six minimum

measures

Monitoring required to characterize stormwater

discharges

Monitoring not required by rule

Drivers of Rulemaking

• October 2008 National Research Council Report. EPA commissioned NRC to

• Review its current permitting program for stormwater discharges under the CWA

• Provide suggestions for improvement

• May 2011 settlement in Fowler vs. EPA. Plaintiffs claimed EPA failed to take adequate measures to protect and restore the Chesapeake Bay.

• Current approach unlikely to adequately control stormwater’s contribution to waterbody impairment

• Requirements leave a great deal of discretion to dischargers to ensure compliance

• Poor accountability and uncertain effectiveness

• A more straightforward way to regulate stormwater contributions to waterbody impairment would be to use flow or a surrogate, like impervious cover, as a measure of stormwater pollutant loading

NRC Stormwater Report Findings

• Efforts to reduce stormwater flow will automatically achieve reductions in pollutant loading

• Flow is itself responsible for additional erosion and sedimentation that adversely impact surface water quality.

• Stormwater control measures that harvest, infiltrate, and evapotranspirate stormwater are critical to reducing the volume and pollutant loading of small storms.

NRC Stormwater Report Findings

• EPA agreed to settlement with Chesapeake Bay Foundation and others in May 2011

• “By September 30, 2011, EPA will propose a regulation under section 402(p) of the Clean Water Act to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites…EPA will take final action on the regulation by November 19, 2012.”

Fowler vs. EPA

• Establishing substantive post-construction requirements for new and redevelopment

• Expanding the universe of regulated discharges beyond the urbanized area

• Addressing stormwater discharges from existing development through retrofitting

• Establishing specific requirements for transportation

• Establishing specific provisions for the Chesapeake Bay

Rulemaking Considerations

13

Post-Construction Requirements

• Objective is to maintain or restore receiving water form and function by reducing pollutant loads and stream channel erosion

• Preferred approach is to require post-construction hydrology to mimic natural hydrology

14

Post-Construction Requirements

• Standard could include:– On-site retention of a certain size storm

event determined by EPA– On-site retention of a certain size storm

event determined by permitting authority– Other approach determined by permitting

authority and consistent with objective

15

EPA will consider– Whether the standard should be

different for discharges from new development vs. redevelopment

– What flexibility must be included to account for local variability, site constraints and water rights law

– Whether unique standards be developed for transportation

Post-Construction Requirements

16

Defining Regulated Discharges

• All discharges from new development and redevelopment of a certain size could be subject to a federal/state standard

• Regulated MS4s could be required to apply the standard to applicable discharges to their system

• Only discharges beyond the MS4 could be subject to a federal/state standard

• Combination of the above

17

Addressing Discharges from Existing Development

Retrofit requirements could:

• Require MS4s to develop a retrofit implementation plan

• Require the MS4s to implement the plan over a certain time period

Specific Provisions for the Chesapeake Bay

• Over 64,000 square miles of land drain into the Chesapeake Bay or its tributaries

• Major urban areas include:– Baltimore, MD - DC– Harrisburg, PA - Annapolis, MD– Richmond, VA– Hampton Roads, VA

• EPA plans to include in this proposed rulemaking a separate section containing additional stormwater provisions for the Chesapeake Bay watershed

Activities Completed to Date

• January – March 2010Conducted five listening sessions and

national webcast (2,000 participants)

• August 2010Distributed questionnaires to regulated

MS4s, transportation-related MS4, unregulated MS4s, NPDES permitting authorities and owners of developed sites to gather information

www.epa.gov/npdes/stormwater/rulemaking

Activities Completed to Date• September – November 2010Conducted site visits with state and local

stormwater managers, developers, engineers, and environmental advocates throughout the Northeast, Midwest, Southwest, Northwest and Southern California

• October – November 2010Conducted five listening sessions on

Chesapeake Bay specific provisions

• Monthly meetings with States

Activities in Progress

• Benchmarking

• Cost Benefit Analyses

• Stormwater Calculator

• Green Infrastructure Database

Anticipated Completion

•Proposal by September 30, 2011

•Final action by November 19, 2012

Questions?