EPA Proposes Revisions to MS4 Rules

On January 6, 2016, in response to a remand by the United States Court of Appeals for the Ninth Circuit in Environmental Defense Center, et al. v. EPA, 344 F.3d 832 (9th Cir. 2003), EPA proposed (81 Fed Reg 415) revisions to the Municipal Separate Storm Sewer (MS4) rules. EPA notes in the proposal that the decision resulting in the remand held that EPA MS4 regulations failed to provide adequate public involvement and also “failed to require permitting authority review of the best management practices (BMPs) to be used at a particular MS4 to ensure that the small MS4 permittee reduces pollutants in the discharge from their systems to the ‘maximum extent practicable’’ (MEP), the standard established by the Clean Water Act for such permits.”

EPA seeks comment on three Ms4 program options for states; Option 1 is called ‘‘Traditional General Permit Approach,’’ Option 2 is called the “Procedural Option, and Option 3 is called “State Choice Approach.” Under Option 1, each small MS4 permit (individual or general) would include all requirements to meet the “reducing pollutant discharges from the MS4 to the MEP, to protect water quality, and to satisfy the appropriate water quality requirements of the CWA” standard. Permittees would still be required to submit an NOI for general permits and to develop a stormwater management program (SWMP), but NOIs or SWMPs will not function as an individual permit application since the final general permit has already established effluent limits applicable to all MS4 dischargers. In addition, the permittee would no ability to establish its own permit requirements or to modify the permit’s requirements through the NOI or SWMP. EPA’s proposal would revise the small MS4 regulations to ensure that the permitting authority determines the adequacy of BMPs and other requirements and provide public notice and the opportunity to request a public hearing on the requirements for each MS4.

Under Option 2 (“Procedural Option”), the program would retain the existing general permit framework that requires MS4s to submit NOIs that include specific BMPs that the MS4 proposes to reduce discharges to the MEP and establish a second permitting step to incorporate specific details of the MS4’s NOI as enforceable requirements of the general permit. Each NOI would be subject to review and approval by the permitting authority with the purpose of review to ensure that each MS4’s BMPs and measurable goals will meet the regulatory standard. During permitting authority review, changes to the NOI could be required to ensure the adequacy of the MS4’s program, or the MS4 could apply for and individual permit. Following initial approval by the permitting authority, each NOI would be subject to public comment and opportunity for public hearing. A final decision on approval and requirements to meet the MEP standard would be publicly available. EPA says the approach would be similar to the NPDES regulatory process for modifying a permit (40 CFR 124) or for establishing enforceable requirements of nutrient management program for CAFOs.

Under Option 3 (“State Choice”), each permit would be required to establish requirements to reduce discharges to MEP, protect water quality, and satisfy water quality requirements of the CWA. The permitting authority would be able to achieve this through the permit (Option 1), by adopting a procedural mechanism to approve individual MS4 programs (Option 2), or by using a hybrid of the two. This Option would enable the permitting authority to choose the best option for the authority. Using a hybrid approach, a state could develop one permit using an Option 1 approach, and establish a second permit based on the Option 2 approach. The permitting authority could also establish some minimum requirements that meet regulatory standard (Option 1), then choose to rely on the MS4 to propose BMPs and other requirements and conduct another round of public notice and permit authority review (Option 2).

EPA states in its proposal that “[t]he proposal would not establish any new substantive requirements for small MS4s.” However, the proposal states that “[t]he proposed rule for the Traditional General Permit Approach would obligate the permitting authority to establish requirements that are ‘clear, specific, and measurable.’’’ This may be a different interpretation of existing requirements for MS4s, even if not new requirements.

Interestingly, while the proposal seeks comments on the three options, it does not state whether EPA intends to finalize one option, two options, or to allow state programs to include all three.

Comments to Docket ID No. EPA–HQ–OW–2015–0671 must be received on or before March 21, 2016.

Edward L. "Skipp" Kropp focuses his practice in the area of environmental law and is resident in Indianapolis, Indiana. He is a former Chief of the West Virginia Division of Environmental Protection Office of Air Quality and former Deputy Director of the West Virginia Division of Environmental Protection.
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