September 2 9 , 2015

Mr. Greg Schaner Construction Stormwater Program Environmental Protection Agency 1200 Pennsylvania Avenue, N.W. Washington, DC 20460

V

ia U.S. Mail & E

- mail (schaner.greg@epa.gov)

Re: Small MS4 Rulemaking : Pre

- proposal comments from en vironmental organizations

Dear Mr. Schaner :

Stormwater is one of the most persistent and significant source s of pollution in our nation’s waterways. As storm water runoff flows over the ground , it accumulates chemicals, sediment, pathogens, nutrients, deb ris, and other contaminants that adversely affect water quality and cause impairments to inland and coastal waters nationwide

. Therefore, EPA’s forthcoming

revisions to the “Phase II” stormwater regulations for “small municipal separate storm sewer
systems ” (small MS4s) provide a critical opportunity to improve water quality nation wide.

The basis for this rulemaking is the 2003 U.S. Court of Appeals for the Ninth Circuit’s

decision Environmental Defense Center v. EPA . I n that ruling, the court held that sev eral aspects

of EPA’s original Phase II Rule violate d the Clean Water Act for a number of reasons

. In particular, the court ruled that the regulations authorized issuance of general permits that fail to
ensure small MS4s reduce pollutant discharge s to the maximum extent practicable (MEP)

. Pursuant to t he Ninth Circuit ’s 2003 Order and O pinion remanding the rule, and that court’s September 14, 2015 order (in Case No. 14

- 80184) establishing a deadline for EPA to revise the

Phase II Rule consistent with the 20 03 remand , EPA must revise the small MS4 permitting regulations to either : 1) conform to the “traditional general permit ting model

, ” in which a general permit identifies the technology

- based requirements and other discharge limitations necessary to
meet th e requirements of the Act , or 2) ensure that individualized S tormwater Management

P rograms designed by regulated parties will be subject to public participation requirements as

well as “ meaningful review by an appropriate regulating entity to ensure that e ach such program reduces the discharge of pollutants to the maximum extent practicable .” 1

On behalf of the twenty

- four undersigned organizations

– including the petitioners in

EDC v. EPA

– w e offer in this letter our recommendations for EPA’s considerati on as the agency develops the proposed rulemaking for publication later this year

.

In sum, we urge EPA to propose specific regulatory language that incorporates the following approach or, at a minimum, solicit public comment on options that include this

a

pproach :

1 Envtl. Def. Center, Inc. v. United States Envtl. Prot. Agency , 344 F.3d 832, 856 (9th Cir. 2003).2 • Establish meaningful substantive requirements for all small MS4 permits

. The rules

should:

o Require that permit terms impose clear obligations on the permittee specifying the pollution control measures th at must be implemented.

o Require that permit s i nclude clear quantitative performance standards and specific deadlines for compliance with each obligation imposed on the permittee.

o Apply the new rules to all types of effluent limitatio ns in small MS4 permits , not only effluent limitations implementi ng the MEP standard

.

o For each minimum control measure, define a “floor” of specific performance standards and obligations that all permitting authorities must include as part of a permit’s specification of the MEP.

o For the “post

- construction” minimum contr ol measure, the EPA

- defined

MEP “floor” should include an on

- site retention standard for both new development and redevelopment.

o Require permitti ng authorit ies to determine whether MEP includes any more stringent pollution control obligations beyond the “f loor” provided

in the rules.

o Require permitting authorities to also determine whether any additional

effl uent limitations are necessary to protect water quality and to satisfy the appropriate water quality requirements of the Clean Water Act

.

o The rule’s pr eamble should state that effluent limitations deemed necessary by the permitting authority

, whether or not they exceed EPA’s MEP “floor,” are effluent limitations imposed pursuant to the permitting authority’s obligations under the federal Clean Water Act

.

o The preamble should state that EPA regional offices are empowered to object to proposed permits that meet EPA’s MEP “floor” where stronger permit terms are necessary to satisfy the MEP standard or to protect water quality and satisfy the appropriate water quality requirements of the Clean

Water Act

.

• Where necessary to establish effective water quality

- based effluent limitations, a llow a “hybrid” approach, whereby permittees are able to propose compliance plans, but with strong procedural safeguards

. The ru le should:

o R equire permittee

- developed plans to be reviewed in the same manner as

pe rmit applications

.

o Specify that plans will be approved only if the permitting authority determines that the plan imposes obligations stringent enough to meet applicable leg al standards

.

o Require that approved plans become enforceable under the permit

.

o Require that approved plans include quantitative performance standards, specific deadlines, and other specific terms as necessary to ensure th at permittees can be held accountab le for any non

- compliance

.

We provide additional detail on these recommendations below.3 Establish Meaningful Substantive Requirements for All Small MS4 Permits

There are essentially three potential options for the rulemaking : 1) requiring that MS4

gener al permits follow the traditional model used for general permits , in which the permit, rather than a Stormwater Management Program developed by a permittee, establishes the specific, binding effluent limitations that satisfy applicable legal standards for stormwater pollution control; 2) defining procedural requirements for how permitting authorities must review permittees’ Notices of Intent and Stormwater Management Programs; or 3) a hybrid option, in

which states can choose between the other options , or c an use elements of both within the same permit

.

Regardless of the option selected, EPA must ensure that t he new rules apply to all types of effluent limitations in small MS4 general permits, not merely to those effluent limitations

intended to meet the C lean Water Act’s “maximum extent practicable” standard

. Such an approach is critical , as the Act’s prohibition of any “self

- regulatory ” scheme

– e. g. , the Act’s requirements that permit terms must ensure the permittee’s compliance with applicable legal

sta ndards

– pertains equally to all effluent limitations , whether technology

- based or water

quality

- based

. 2

With respect to the three potential options , we strongly prefer the first option

, except (as explained further below) in instances where the needs of a particular water body require water quality based effluent limitations tailored to particular dischargers

.

W e believe the first option provides the best opportunity to ensure that small MS4s will, in fact, be held accountable for implementing such pollution control measures as are necessary to satisfy applicable Clean Water Act standards

.

Building on the principles in EPA’s 2010 “MS4 Permit Improvement Guide,” EPA’s rules should mandate that permit terms shall (a) impose clear, specific, measurabl e, and enforceable obligations on the permittee specifying the pollution control measures that must be implemented; and (b) include clear quantitative performance standards and specific deadlines for compliance with each obligation imposed on the permittee

. 3 To avoid uncertainty and debates about whether proposed permit terms are sufficiently specific, or are rather unlawfully “self

regulatory,” the rules and the explanatory preamble must be crystal clear and detailed about what sorts of permit provisions do and do not meet these standards.

Moreover, t o make the first option truly effective, EPA ’s rules must not only establish general principles about the contents of small MS4 general permits, but need to establish

minimum substantive requirements for the technology

- based effluent limitations that all small

MS4 permits must include

. We believe anything short of such specificity is likely to lead to inconsistent and frequently inadequate protections around the country.

2 See, e.g., Waterkeeper Alliance v. EPA

, 399 F.3d 486, 498

- 99 (2d Cir. 2005) (citing 33 U.S.C. §§ 1342(a)(2) , (b)).

3 EPA, MS4 Improvement Guide (2010), available at http://water.epa.gov/polwaste/npdes/stormwater/upload/ms4permit_improvement_guide.pdf.4 For each minimum control measure, EPA ’s rules should define a “floor” of specific performance standards and obligations that pe rmitting authorities must include as part of a permit’s specification of the MEP . Establishing such a “ floor ” for the MEP would ensure that all permit terms meet the aforementioned specificity requiremen ts ; it would also create a level playing field so that all s mall MS4s are using a core set of the most widely

- acce pted pollution control practices, and that residents of all fifty states can expect a robust level of pro tection for

their cherished local waterbodies

.

As to the “post

- construction” minimum control measure, in particular, the EPA

- defined

MEP “floor” should include an on

- site retention standard for both new development and redevelopment

. T his approach is bo th the most effective means of controlling stormwater pollution from developed areas 4 and is indisputably “practicable” throughout the country, as it has been applied in communities throughout the country. 5 Further, the establishment of such a national per formance standard received widespread support from states, utilities, and environmental organizations when EPA was previously considering updates to its national stormwater regulations

. In a joint letter to EPA, a diverse group of organizations from these

sectors wrote that “ including new development and redevelopment standards for on

- site retention is an important element of the proposed rule and will help to provide much needed reductions in the permanent discharges created by development, both in ‘greenf ield’ undeveloped locations and urban infill settings. ” 6

Critically, however

, EPA’s rules must also be clear that the “floor” is not all that the

Clean Water Act demands

. First, with regard to the MEP standard, t he rules should specifically

mandate that the permitting authority determine whether, based on the best current scientific understanding of stormwater management and the best practices in use in other jurisdictions at the time of permit issuance, the MEP includes any more stringent pollution contr ol obligations beyond the “floor” provided in the rules

. T he rules should specify that the permitting authority’s administrative record supporting the permit must identify more stringent potential permit terms

that were considered and explain why each one was included in the permit or, if it was not included, why it was determin ed not to be more effective than the EPA

- defined “floor” or de termined not to be practicable

. Second , the rules should be clear that permitting authorities

must also determine whethe r any additional effluent limitations are necessary “to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act”

– critical objectives in the existing Phase II MS4 rules that co

- exist with, but are not co

- ext ensive with, the MEP standard.

Consistent with this approach

, the rule’s preamble should unambiguously state that effluent limitations deemed necessary by the permitting authority to meet the MEP standard or “to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act,” whether or not they exceed EPA’s MEP “floor,” are effluent limitations imposed

4 See, e.g., National Resea rch Council, Urban Stormwater Management in the United States (2009).

5 See

, e.g. , EPA , Post

- Construction Performance Standards and Water Quality

- Based Requirements: A Compendium of Permitting Approaches (2014), available at http://water.epa.gov/polwaste/ npdes/stormwater/upload/sw_ms4_compendium.pdf.

6 Joint letter from NRDC, American Rivers, Association of State and Interstate Water Pollution Control Administrators, National Association of Clean Water Agencies, and Water Environment Federation to EPA (Ju ly 8, 2011)

, available at http://w.weftec.org/PostStormwater_ConstructionLtr_070811).5 pursuant to the permitting authority’s obligations under the federal Clean Water Act, not in excess of those requ irements

. Likewise, t he preamble should make clear that EPA regional offices are empowered to object to proposed permit s that meet EPA’s MEP “floor

, ” if the

available evidence shows that more strin gent standards are necess ary to satisfy the MEP

standard , o r are necessary “to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act.”

Where Necessary to Address Water Quality

- Based Effluent Limitations, Allow a “ Hybrid ” Approach With Strong Procedural Safeguards

In some instances, the needs of a particular water body require that the permitting authority develop water quality

- based effluent limitations tailored to particular MS4 dischargers

. A common example involves obligations to m eet water quality standards i n impaired waters : MS4 permits sometimes direct permittees to develop TMDL implementation plans that identify the measures the permittee will implement to achieve required wasteload allocations ( WLA s ) or, in the absence of applicable WLAs, plans to reduce pollutant loads sufficiently to ensure compliance with water quality standards

. We believe this is an appropriate use of the “hybrid” approach ( the third option above ) , provided that strict procedural safeguards are established to ensure that permitting au thorities do not create an unlawful “ self

- regulatory ” scheme.

Specifically, for such cases, EPA’s new rules should require that permittee

- developed plans shall be reviewed in the same manner as a request for a non

- minor permit modification

, pursuant to th e permit ting procedures in EPA and state NPDES permitting regulations. These requirements include public notice b y the permitting authority; a period for public comment t o the permitting authority ; EPA review and opportunity for EPA objection; an opportuni ty for a public hearing before the permitting authority ; and approval by the permitting authority, with or

without modifications to the permittee’s proposed plan . Further, the new rules should provide

that a plan can be approved only if the permitting auth ority determines, based on an adequate administrative record, that the plan imposes obliga tions stringent enough t o meet applicable legal

standards

. The rules should require that permits include terms stating that , u pon approval

, the plan becomes enforceab le under the permit

.

Additionally, f or this review process to be meaningful and effective , t he rules should require that a full proposed plan (not merely a summary of one, such as a Notice of Intent ) must
be submitted for review. The rules should provide that, to be approvable, plan s must (a) impose clear, specific, measurable, and enforceable obligations on the permittee specifying the pollution control measures that must be implemented ; and (b) include clear quantitative performance standards and specifi c deadlines for compliance with each obligation imposed on the permittee

. The rules should also require that the permit must specify the required elements of an approvable plan and the standard by which the adequacy of the plan will be judged

.

* * * * *

We strongly urge EPA, in the notice of proposed rulemaking to be published this

December , to solicit comments on options including those set forth in this letter

. Moreover, we urge EPA to propose specific regulatory language that incorporates these recomm endations.6 Thank you for your consideration of our comments

. We look forward to continued engagement with EPA as the agency proceed s with this critical rulemaking

. Please contact Larry Levine of NRDC ( llevine@nrdc.o rg ; 212

- 727

- 4548) with any questions.

Sincerely,

Helen Henderson Atlantic Coast Program Manager American Littoral Society

Gary Belan Senior Director, Clean Water Supply Program

American Rivers

Rachel Conn

Executive Director Amigos Bravos

Beth K. Stewart

Executive Director Cahaba River Society

Kim Coble

Vice President Chesapeake Bay Foundation

Michael Helbing Staff Attorney Citizens for Pennsylvania's Future (PennFuture)

Cindy Zipf

Executive Director

Clean Ocean Action

Jennifer Peters

Water Pr ograms Director

Clean Water Action

Roger Reynolds Legal Director

Connecticut Fund for the Environment

Save the Sound Chris Killian Clean Water Program Director

Conservation Law Foundation

John Rumpler Senior Attorney

Environment America

Maggie Hall

S taff Attorney

Environmental Defense Center

Eileen Fielding

Executive Director Farmington River Watershed Association

Matt Rota Senior Policy Director

Gulf Restoration Network

Indra Frank, MD, MPH

Environmental Health Director

Hoosier Environmental Counc il

Ric Lawson

Watershed Planner

Huron River Watershed Council

Cheryl Nenn Riverkeeper

Milwaukee Riverkeeper

La wrence Levine Senior attorney

Natural Resources Defense Council7 Noemi de la Puente

Executive Director New Jersey Environmental Lobby

Andr ea Leshak Staff Attorney NY/NJ Baykeeper Hackensack Riverkeeper

Katherine Baer Director of Science and Policy

River Network Margaret Miner

Executive Director

Rivers Alliance of Connecticut

Sarah Stokes Staff Attorney

Southern Environmental Law Center

Michael L. Pisauro, Jr. Policy Director Stony Brook

- Millstone Watershed

Association