September 29, 2015

Mr. Greg Schaner

Construction Stormwater Program

Environmental Protection Agency

1200 Pennsylvania Avenue, N.W.

Washington, DC 20460

Via U.S. Mail & E-mail (schaner.greg@epa.gov)

Re: Small MS4 Rulemaking: Pre-proposal comments from environmental organizations

Dear Mr. Schaner:

Stormwater is one of the most persistent and significant sources of pollution in our 

nation’s waterways. As stormwater runoff flows over the ground, it accumulates chemicals, 

sediment, pathogens, nutrients, debris, 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 nationwide.

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

decision Environmental Defense Center v. EPA. In that ruling, the court held that several aspects 

of EPA’s original Phase II Rule violated 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 discharges to the maximum extent practicable (MEP).

Pursuant to the Ninth Circuit’s 2003 Order and Opinion 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 2003 remand, EPA must revise the small MS4 permitting 

regulations to either: 1) conform to the “traditional general permitting model,” in which a general 

permit identifies the technology-based requirements and other discharge limitations necessary to 

meet the requirements of the Act, or 2) ensure that individualized Stormwater Management 

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

well as “meaningful review by an appropriate regulating entity to ensure that each 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 – we offer in this letter our recommendations for EPA’s consideration 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 

approach:

																																																												 1 Envtl. Def. Center, Inc. v. United States Envtl. Prot. Agency, 344 F.3d 832, 856 (9th Cir. 2003).
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• 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 that must be implemented.

o Require that permits include 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 limitations in small MS4 

permits, not only effluent limitations implementing 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 control measure, the EPA-defined 

MEP “floor” should include an on-site retention standard for both new 

development and redevelopment.

o Require permitting authorities to determine whether MEP includes any 

more stringent pollution control obligations beyond the “floor” provided 

in the rules.

o Require permitting authorities to also determine whether any additional 

effluent limitations are necessary to protect water quality and to satisfy the 

appropriate water quality requirements of the Clean Water Act.

o The rule’s preamble 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, allow a 

“hybrid” approach, whereby permittees are able to propose compliance plans, but with 

strong procedural safeguards. The rule should:

o Require permittee-developed plans to be reviewed in the same manner as 

permit applications.

o Specify that plans will be approved only if the permitting authority 

determines that the plan imposes obligations stringent enough to meet 

applicable legal 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 that 

permittees can be held accountable for any non-compliance.

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

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

general 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 can use elements of both within the same 

permit. 

Regardless of the option selected, EPA must ensure that the new rules apply to all types 

of effluent limitations in small MS4 general permits, not merely to those effluent limitations

intended to meet the Clean 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 

standards – pertains equally to all effluent limitations, whether technology-based or waterquality-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. 

We 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, measurable, 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 “selfregulatory,” 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, to 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.
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For each minimum control measure, EPA’s rules should define a “floor” of specific 

performance standards and obligations that permitting 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 requirements; it would also create a level 

playing field so that all small MS4s are using a core set of the most widely-accepted pollution 

control practices, and that residents of all fifty states can expect a robust level of protection 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. This approach is both the most effective means of controlling stormwater 

pollution from developed areas4 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 performance 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 ‘greenfield’ undeveloped locations 

and urban infill settings.”

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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, the 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 control obligations 

beyond the “floor” provided in the rules. The 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 determined not to be more effective than the EPA-defined “floor” or 

determined not to be practicable. Second, the rules should be clear that permitting authorities 

must also determine whether 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-extensive 

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 Research 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 (July 8, 

2011), available at http://w.weftec.org/PostStormwater_ConstructionLtr_070811).
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pursuant to the permitting authority’s obligations under the federal Clean Water Act, not in 

excess of those requirements. Likewise, the preamble should make clear that EPA regional 

offices are empowered to object to proposed permits that meet EPA’s MEP “floor,” if the 

available evidence shows that more stringent standards are necessary to satisfy the MEP 

standard, or 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 meet water quality standards in 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 (WLAs) 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 authorities 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 the permitting procedures in EPA and state NPDES permitting regulations. These 

requirements include public notice by the permitting authority; a period for public comment to 

the permitting authority; EPA review and opportunity for EPA objection; an opportunity 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 authority determines, based on an adequate 

administrative record, that the plan imposes obligations stringent enough to meet applicable legal 

standards. The rules should require that permits include terms stating that, upon approval, the 

plan becomes enforceable under the permit.

Additionally, for this review process to be meaningful and effective, the 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, plans 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 specific 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 recommendations.
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Thank you for your consideration of our comments. We look forward to continued 

engagement with EPA as the agency proceeds with this critical rulemaking. Please contact Larry 

Levine of NRDC (llevine@nrdc.org; 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 Programs 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

Staff 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 Council

Ric Lawson

Watershed Planner

Huron River Watershed Council

Cheryl Nenn

Riverkeeper

Milwaukee Riverkeeper

Lawrence Levine

Senior attorney

Natural Resources Defense Council
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Noemi de la Puente

Executive Director 

New Jersey Environmental Lobby

Andrea 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