1 Schaner, Greg

From: Neprash, Randy <Randy .Neprash@stantec.com>

Sent: Tuesday, November 24, 2015 5:14 PM

To: Schaner, Greg

Subject: RE: MS4 Phase II rulemaking - one more item - and now two more items

Attachments: removed.txt

Hi, Greg:

Thanks for calling back. Perhaps we can talk tomorrow.

Here is the question I have....

A number of MS4 cities are interested in having 120 days to respond to the new draft rule due to be issued by Dec. 17 th

. This interest may take the form of multiple letters from organizations and individual MS4 cities.

The question is when to send these letters in to EPA. Here are two schools of thought.

1. The typical comment period for something like this is 60 days. If we assume this, then we are headed toward

asking for an extension of the comment period. EPA will not consider granting an extension until after the rule,

with its associated comment period timing, is issued. Therefore, we should send our letters asking for the

comment period extension to 120 days after the draft rule is issued.

2. The issuance of the draft rule will include a stated comment period. That length of the comment period is set at

the discretion of EPA. Because the draft rule has not yet been issued, EPA can set the comment period at 60, 90,

120, or any number of days. With that in mind, it is worth the effort to get letters requesting 120 days in to EPA

before the draft rule is issued. If EPA agrees with our request, they can just set the comment period at 120 when

the draft rule is issued.

I lean toward item #2 above, but I have very little experience in matters like this. It seems to me that it may be easier for

EPA to set the comment period at 120 days upon the issuance of the draft rule instead of having to grant a comment

period extension after the draft rule has been issued.

Can you give me some guidance on all this? Which option would be more constructive and productive, in the eyes of

EPA?

Thanks,

Randy

Randy Neprash, PE

Staff, Minnesota Cities Stormwater Coalition

Direct 651

‐ 604

‐ 4703

Cell: 651

‐ 271

‐ 5535

randy.neprash@stantec.com2 From: Schaner, Greg [mailto:Schaner.Greg@epa.gov]

Sent: Friday, November 20, 2015 3:51 PM

To: Neprash, Randy

Cc: Kloss, Christopher; Nagle, Deborah

Subject: RE: MS4 Phase II rulemaking - one more item - and now two more items

Hi Randy

– Thanks for your emails. We appreciate your thoughts and feedback. Greg

Greg Schaner

Attorney Adviser, Water Permits Division

U.S. Environmental Protection Agency

(202) 564

‐ 0721

From: Neprash, Randy [ mailto:Randy.Neprash@stantec.com ]

Sent: Wednesday, November 18, 2015 11:25 AM

To: Schaner, Greg < Schaner.Greg@epa.gov >

Cc: Weiss, Kevin < Weiss.Kevin@epa.gov >; Kloss, Christopher < Kloss.Christopher@epa.gov >; Nagle, Deborah

< Nagle.Deborah@epa.gov >

Subject: MS4 Phase II rulemaking

‐ one more item

‐ and now two more items

I’m sorry about this, Greg, but there are two more items that I should pass on to you, if I may.

1. All of these items from me are from my position as the staff for the Minnesota Cities Stormwater Coalition. They are

based on our permit and experience in Minnesota. These comments should not be considered to be from the

National Municipal Stormwater Alliance (NMSA). I am confident that NMSA will submit formal comments on the

draft rule after it is issued. Those comments will be from the national perspective.

2. I would like to formally request that the comment period for the draft rule be for at least 90 days. There are two

interrelated reasons for this request.

First, if the draft rule is issued by December 17 th

, it will be issued during the height of the holiday season. It is always

a challenge to accomplish complex tasks during this time of the year. Thanksgiving, Christmas, and the New Year

throw everyone’s schedules off and make communication difficult. If the comment period is going to be during the

holiday season, it should be lengthened to at least 90 days.

Second, there is interest in the stormwater community of organizations to share ideas and coordinate our responses

to the draft rule. This coordination will result in stronger and more productive responses to the draft rule. This will

benefit EPA. It also reflects the maturation of stormwater and the organizations involved with it. This type of

coordination and idea sharing takes time. A 90

‐ day comment period would be helpful to allow sufficient time for this

coordination to take place.

Thanks,

Randy

Randy Neprash, PE

Staff, Minnesota Cities Stormwater Coalition

Direct 651

‐ 604

‐ 4703

randy.neprash@stantec.com3 The linked image cannot be displayed. The file may have been moved, renamed, or deleted. Verify that the link points to the co rrect file and location.

Good morning, Greg:

Here is one item that I forgot to include in my message yesterday.

We have an arrangement here in Minnesota, in our MS4 general permit, to address the issues of public

notice/review/comment and agency approval. It is very important to us that the new federal rule not

jeopardize that arrangement. This seems like a reasonable and appropriate expectation.

You are familiar with our arrangement. I have written you describing it and recommended that you look at our

permit carefully.

Our arrangement was born of a lawsuit and court ruling that are very similar to the 9 th Circuit case and ruling.

In our case, the case was brought by the Minnesota Center for Environmental Advocacy (MCEA). I am

confident that MCEA has reviewed and considered our arrangement here very comprehensively. In the draft

permit and the final permit issued in 2013, MCEA has had several years to consider this arrangement. They

have not challenged it.

I do not know how many other states have MS4 general permit provisions that address these issues. I have

reason to believe there are others.

It is essential that the new federal rule does not put any of those arrangements in peril and open to new

challenges.

This may be a powerful reason for EPA to consider the “hybrid” option put forward in recent presentations.

The “hybrid” option provides for the most flexibility at the level of state permitting authorities. This flexibility

may be the correct approach to protect the standing arrangements and permit provisions at the state level

that are serving permittees, permitting authorities, and environmental groups well.

Thanks for considering this,

Randy

Randy Neprash, PE

Staff, Minnesota Cities Stormwater Coalition

Direct 651

‐ 604

‐ 4703

randy.neprash@stantec.com4 The linked image cannot be displayed. The file may have been moved, renamed, or deleted. Verify that the link points to the co rrect file and location.

Hi, Greg:

I am sorry that this E

‐ mail is coming to you late in the process. These thoughts have taken a while to come

together.

Please note that I am writing from the prospective of the MS4 general permit here in Minnesota.

There is a terminology issue that needs to be addressed before I start. In the Minnesota MS4 general permit,

the Phase II MS4 permittees are required to develop and implement a SWPPP (Stormwater Pollution

Prevention Program). This is the equivalent of what I believe is known as a SWMP (Stormwater Management

Program or Plan) in other parts of the country. I will use the term SWPPP throughout these comments.

We in the Minnesota Cities Stormwater Coalition (MCSC) are concerned about the direction of the new federal

rulemaking to address the MS4 Phase II NOI review and public notice/comment issues. The following items are

a set of ideas and thoughts related to these concerns.

1. Phase II MS4 SWPPPs have become, for many cities, complex programs. This is a good thing and

represents the maturation of the MS4 permitting program. Our permitting authority here, the Minnesota

Pollution Control Agency (MPCA), has stated since the last MS4 general permit issuance that they consider

the SWPPP to be more than a written document. Instead, it is an entire program that reaches across

multiple city departments and includes numerous components, including field elements and regulatory

mechanisms that may be spread throughout city ordinances, design standards, and other elements.

When the MPCA reviews an MS4 city’s SWPPP, it is done through an audit process. When the MPCA audits

an MS4 program, it chooses to audit two, four or all six Minimum Control Measures (MCMs). If all six

MCMs are audited, the audit is a full 2

‐ day process. The audit includes interviews with multiple city staff

from multiple city departments, and a field component. It is close to comparable to an EPA Phase I city

audit.

We offer this to make the point that having MS4 permittees write out their SWPPPs for public review and

comment is unrealistic and not productive. Many SWPPPs are, and many more will be in the future, too

complex to make this a good process.

2. We are frustrated and concerned that we have heard very little, in this entire process, about other

processes for the public notice/review/comment and permitting authority approval of SWPPPs.

One such process is the MS4 program audits run by the MPCA in Minnesota. These audits have been

meaningful and helpful. The audits are rigorous, mature, and comprehensive. They provide for a review at

the appropriate level of detail. The permitting authority has chance to interview the permittee’s staff from5 multiple departments and perform field compliance review. The audits are the most important process for

the MPCA to review a permittee’s entire SWPPP. They are much more effective and appropriate than a

public notice/review/comment process during the application might be.

Other processes, this time for public notice/review/comment and reporting, are written into the MN MS4

general permit:

2. Public Participation/Involvement



### a. New permittee s shall develop and implement, and existing permittee s shall revise their current

program, as necessary, and continue to implement, a Public Participation/Involvement program

to solicit public input on the SWPPP

. The permittee shall:



### 1. Provide a minimum of one (1) opportunity annually for the public to provide input on the

adequacy of the SWPPP

. Public meetings can be conducted to satisfy this requirement

provided appropriate local public notice requirements are followed and opportunity to

review and comment on the SWPPP is provided.



### 2. Provide access to the SWPPP document, Annual Reports, and other documentation that

supports or describes the SWPPP (e.g., Regulatory Mechanism(s), etc.) for public review,

upon request. All public data requests are subject to the Minnesota Government Data

Practices Act, Minn. Stat. § 13.



### 3. Consider public input, oral and written, submitted by the public to the permittee

, regarding

the SWPPP

.



### b. Document the following information:

(1) All relevant written input submitted by person s regarding the SWPPP

(2) All responses from the permittee to written input received regarding the SWPPP

, including

any modifications made to the SWPPP as a result of the written input received

(3) Date(s) and location(s) of events held for purposes of compliance with this requirement

(4) Notices provided to the public of any events scheduled to meet this requirement, including

any electronic correspondence (e.g., website, e

‐ mail distribution lists, notices, etc.)

PART IV. ANNUAL SWPPP ASSESSMENT, ANNUAL REPORTING, AND RECORD KEEPING

A. Annual SWPPP Assessment

The permittee shall conduct an Annual Assessment of their SWPPP to determine program

compliance, the appropriateness of BMPs, and progress towards achieving the measurable

goals identified in their SWPPP document. The Annual SWPPP Assessment shall be performed

prior to completion of each Annual Report.

B. Annual Reporting

The permittee shall submit an Annual Report to the Agency by June 30 th of each calendar year.

The Annual Report shall cover the portion of the previous calendar year during which the

permittee was authorized to discharge stormwater under this permit. The Annual Report shall6 be submitted to the Agency, on a form provided by the Commissioner, that will at a minimum,

consist of the following:

1. The status of compliance with permit terms and conditions, including an assessment of the

appropriateness of BMPs identified by the permittee and progress towards achieving the

identified measurable goals for each of the MCMs in Part III.D.1

‐ 6. The assessment must be

based on results of information collected and analyzed, including monitoring (if any),

inspection findings, and public input received during the reporting period.

2. The stormwater activities the permittee plans to undertake during the next reporting cycle

3. A change in any identified BMPs or measurable goals for any of the MCMs in Part III.D.1

‐ 6

4. Information required in Part III.E, to demonstrate progress in meeting applicable WLAs

5. Information required to be recorded or documented in Part III

6. A statement that the permittee is relying on a partnership(s) with another regulated Small

MS4(s) to satisfy one or more permit requirements (if applicable), and what agreements the

permittee has entered into in support of this effort

This requirement provides for a very effective and frequent process for the public review and comment on

an MS4 permittee’s SWPPP. It allows the MS4 staff to present information about their program at an

annual meeting. It is held at the local level, but is open to any individual or organization, statewide or

nationally. The reporting requirement means that the comments and responses are available to any

individual or organization that seeks them. All this information can be and frequently is part of an MPCA

program audit.

Taken together, these processes provide very robust mechanisms for public notice, public comment, and

agency review and approval for MS4 SWWPPPs. We believe that these processes should be considered as

models for the new rule. We also believe that these processes should be included in written materials

produced by EPA on these issues.



### 3. The MN MS4 general permit includes an innovative provision creating and requiring the submittal of an

alternative document

– the SWPPP Document

– with the permit application (NOI). This has been an

effective approach here in Minnesota. For a number of reasons, it is not appropriate to ask or require an

MS4 to submit their entire SWPPP with their application. The SWPPP Document is simpler and more

concise than the entire SWPPP, but provides sufficient information to meet the legal standard for this

permit. This approach was, in part, the product of a lawsuit in 2003 by the MN Center for Environmental

Advocacy (MCEA). This approach has not been challenged by MCEA.

We believe that this approach can be a useful model for EPA is resolving the issues related to this current

lawsuit and rulemaking. We also believe that this approach should be included in written materials

produced by EPA on these issues.



### 4. The MS4 program was designed with a large degree of flexibility provided for the permittees in developing

and implementing their SWPPPs. This has proved to be appropriate. Here in Minnesota, this flexibility has

not meant that the MS4 general permit requirements are without rigor and effectiveness.

We believe that reducing this flexibility and seeking much more specificity in the MS4 general permit

requirements will not be effective or productive. The variation in situation, conditions, and capacity among7 MS4 permittees is simply too great to make such specificity practical. There is too much variation between

the operational details, structures, and procedures within public works and other city departments.

Modern city public works departments, along with the other departments with responsibilities under the

MS4 SWPPPs, are complex and sophisticated operational structures. MS4 permitting authorities do not

have sufficient understanding or knowledge about these organizations to effectively write specific general

permit requirements to mandate actions and measures by these organizations to manage and control

stormwater.

As stated earlier, MS4 SWPPPs are already too complex to be well

‐ suited to be defined or constrained by

specific permit requirements. Specific permit requirements will almost certainly reduce innovation in local

approaches to stormwater management challenges.

Finally, we simply do not sufficiently understand stormwater management challenges or solutions to rely

on specific permit requirements yet. Permits are clumsy and slow

‐ moving regulatory tools. Specific permit

requirements would not allow for the appropriate course corrections and adaptive management that is

still necessary for effective stormwater management and control.



### 5. There are numerous permit requirements in the most recent MN MS4 general permit. For many of these

requirements, the schedule for compliance was 12 months from the date that a permittee was notified of

application acceptance and permit coverage. This was necessary and appropriate. Many of these

requirements, such as the development of local regulatory mechanisms, were of a type that demanded

this length of time for local compliance. The items developed and implemented to meet these permit

requirements became components of each MS4 permittee’s SWPPP.

This meant that it was impossible for any of the MS4 permittees to submit a fully compliant SWPPP at the

time of permit application. Instead, the permit applications included the SWPPP Documents and the stated

processes and commitments to meet the permit requirements as per the permit compliance schedule.

This makes the idea of submitting a full SWPPP for public notice and comment at the time of permit

application unreasonable and impractical. This is a factor that must be considered in developing this new

federal rule.

I hope these comments are useful.

Randy Neprash

Randy Neprash, PE

Direct 651

‐ 604

‐ 4703

randy.neprash@stantec.com

The linked image cannot be displayed. The file may have been moved, renamed, or deleted. Verify that the link points to the co rrect file and location.