### NACWA Pre-proposal Comments on Phase II Remand Rule October 2, 2015 Page 1 of 3

EXECUTIVE COMMITTEE

PRESIDENT Adel H. Hagekhalil

Assistant Director City of Los Angeles -

LA Sanitation Los Angeles, CA

VICE PRESIDENT Raymond J. Marshall

Executive Director Narragansett Bay Commission Providence, RI

TREASURER Cathy Gerali District Manager

Metro Wastewater

Reclamation District
Denver, CO

SECRETARY
David St. Pierre

Executive Director Metropolitan Water

Reclamation District o f Greater Chicago Chicago, IL

PAST PRESIDENT
Karen L. Pallansch Chief Executive Officer Alexandria Renew Enterprises Alexandria, VA

CHIEF EXECUTIVE OFFICER
Adam Krantz October 2, 2015

Greg Schaner Attorney Adviser, Water Permits Division U.S. EPA, Office of Water 1200 Pennsylvania Avenue, NW Washington, DC 20460 Via Electronic Mail: Schaner.Greg@epa.gov

Dear Greg,

The National Association of Clean Water Agencies (NACWA) appreciates the opportunity to engage with EPA as the Agen cy works to develop modifications to the Phase II municipal separate storm sewer system (MS4) program (referred to by the Agency as the MS4 Remand Rule) in response to the Ninth Circuit’s 2003 Environmental Defense Center (EDC) v. EPA ruling and subsequent 2014 petition. According to the August 2015 settlement agreement, EPA intends to release a draft version of the rule for public comment in December 2015, and the Ag ency will be working to finalize the draft
rule over the next few months. NACWA submits these initia l comments for EPA’s consideration as the Agency complete s its work on the draft proposal.

As the leading national advocacy organiza tion for municipal stormwater utilities, NACWA appreciates the outreach EPA has conducted to MS4s, states, and other stakeholders regarding the rulemaking process. Many of the comments included in this letter are similar to suggestions NACWA has pr eviously made to EPA over the past few months, reflecting feedback from our ut ility members and our state and regional stormwater association colleagues. However, we wanted to provide a summary of our current thinking regarding the potential outcomes as EPA moves into its final development phase. This comment letter w ill provide some general thoughts on the process, as well as comments on specific areas that we understand EPA is reviewing for inclusion in the rule. We appreciate and thank EPA for its consideration.

It is NACWA’s understanding that there ar e essentially three different options under consideration by EPA for the rule proposal. Option 1 would require permitting authorities to more clearly define permit requirements that establish what actions are necessary (including associated deadlines and frequencies) to meet the Clean Water Act’s “maximum extent practicable” (MEP) standard. Option 2 would include requirements for permitting authority review and public notice of “notices of intent”

### NACWA Pre-proposal Comments on Phase II Remand Rule October 2, 2015 Page 2 of 3

(NOIs) from small MS4s for coverage under general Phase II permits, providing the opportunity for the public to request a hearing (if necessary) on individual NOIs. Option 3 would essentially be a hybrid of the first two options, allowing states to choose which approach they believe is best.

NACWA will not be in a position to formally comment or endorse any particular op tion until all options are outlined in the actual rule proposal. However, based on the information we have received from EPA to date and feedback from the MS4 community, we believe Option 1 is worthy of additional consideration. Such an approach, as NACWA understands it, would mainta in sufficient flexibility around the MEP concept – a critically important issue for NACWA. As EPA moves forward, it is essential th at it focuses its efforts on making the mandated changes to the Phase II program without making other substantive ch anges to the current Phase II regulations or imposing additional burdens on the municipal stormwater communi ty. Option 1 would provide for such an approach, as long as it is also structured to meet the requirements of the 2003 EDC case remand.

Regardless of which option is ultimately selected, the EP A’s proposal should take into consideration the follow
factors.

First, any option EPA proposes should have a narrow, pro cedural focus. It should be as narrowly targeted as possible to comply with the remand requirements from the EDC decision, and should not pursue any broader changers to the Phase II or Phase I stormwater programs. This includes addressing issues beyond the scope of the remand, such as specific post-construction standards. While NACWA believes post-construction onsite retention standards may be appropriate in certain circumstances, we do not believe this rulemaking is the right place to address those issues. At the same time, it is critical th e rulemaking meets the court’s remand requirements and not result in additional litigation for falling short of the court’s instructions. Given th e amount of attention and scrutiny that municipal stormwater programs and regulation s are already under around the nation, it is vital that this rule be legally defensible.

Second, EPA should not attempt to define what qualifies as MEP for Phase II permits in the rule. An effort by EPA to provide a strict definition of MEP in a national rulemaking would be legally suspect and open to legal challenge. Instead, EPA should seek to provide sufficient flexibilit y in the rule so that permitting authorities, municipal permittees, and interested stakeholders can have additional dialogues about what requirements constitute MEP on a case-by-case basis.

Third, EPA must recognize the practical realities facing th e Phase II program. It is wi dely acknowledged that the Phase II program is lagging behind its large MS4 sister program. Though the small MS4 program was issued 16 years ago, it still suffers from a lack of funding and staff resources. The Phase II General Permit used by most states is a way to permit thousands of small communities and en sure they undergo stormwater planning. It should not become so unwieldy and cumbersome that it only serves to further delay program implementation. Many Phase II communities lack the ability to generate significant revenue or fund dedicated staff positions, so it is essential that the general permit remain an administratively viable to ol without unnecessary paper work or impracticable public and notice comment procedures. Resource-strapped Phase II programs should spend money on improving water quality, not on more administrative processes.

### NACWA Pre-proposal Comments on Phase II Remand Rule October 2, 2015 Page 3 of 3

NACWA looks forward to working closely with EPA over the next year as the MS4 Remand Rule progresses to ensure that the perspective of municipal stormwater utilit ies is represented. NACWA also looks forward to working with other stakeholders during the rulemaking, including the states and the environmental activist community, to try and craft reasonable solutions that are acceptable to multiple constituencies and that advance our common vision of reducing water quality impairment from stormwater runoff.

NACWA again appreciates the opportunit y to provide these comments. Please do not hesitate to contact me at 202/533-1839 or bmannion@nacwa.org

.

Sincerely,

Brenna Mannion Director of Regulatory Affairs and Outreach