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 of

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 Agency 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 Agency will be working to finalize the draft 

rule over the next few months. NACWA submits these initial comments for EPA’s 

consideration as the Agency completes its work on the draft proposal. 

As the leading national advocacy organization 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 previously made to EPA over the past few 

months, reflecting feedback from our utility 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 will 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 are 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 

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(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 option 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 maintain sufficient flexibility around the MEP concept – a critically important 

issue for NACWA. As EPA moves forward, it is essential that it focuses its efforts on making the mandated changes 

to the Phase II program without making other substantive changes to the current Phase II regulations or imposing 

additional burdens on the municipal stormwater community. 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 EPA’s proposal should take into consideration the follow 

factors. 

First, any option EPA proposes should have a narrow, procedural 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 the rulemaking meets the court’s remand requirements and not 

result in additional litigation for falling short of the court’s instructions. Given the amount of attention and 

scrutiny that municipal stormwater programs and regulations 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 flexibility 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 the Phase II program. It is widely 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 ensure 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 tool 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 

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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 utilities 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 opportunity 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