Editor’s note: On paper, you’ve got plenty of time to prepare for U.S. EPA’s new stormwater program. Municipal separate stormwater systems (MS4s) will be phased in when their next five-year permit term begins. If the permit renews in 2015 you’ve got two more years to come up with a plan; if it renews in 2014, seven. And when the permit does renew, rules will be phased in year by year.
But. The legal, financial, and operational changes necessary to implement a compliance program are extremely time-consuming. Launching a stormwater utility, for example, takes an average of five years.
Given the task (or tasks) ahead, now’s the time to begin preparing.
The first in a yearlong series on what the agency’s promulgating, this article explains how the most dramatic proposed changes came to be.
Proposed National Rulemaking to Strengthen the Stormwater Program
Proposed permit: June 10, 2013
Final permit: Dec. 10, 2014
Next month: Designating maintenance yards as industrial sources
Expanding the national stormwater program is extremely difficult because the costs and benefits of both the existing and proposed requirements aren’t easily determined. Not all pollutants — everything from fast food wrappers and animal waste to toxic metals and hazardous waste — are mobilized by rain. Treating runoff near its source is usually the best approach, but it’s expensive and often requires additional land.
For all these reasons, U.S. EPA delayed the Proposed National Rulemaking to Strengthen the Stormwater Program several times since 2009 as stakeholders provided additional input on how to achieve this extremely difficult goal. But finally, over the next two years, the agency’s forging ahead with a program that’s more rigorous than the existing one.
EPA breaks stormwater discharge into three categories: construction activities, industrial activities, and two types of MS4s (municipal separate stormwater systems):
- Large and medium, which consist of entities with 100,000 or more population and are called Phase I MS4s, were regulated in the early 1990s following the Water Quality Act of 1987.
- Regulations for Phase II MS4s, those under 100,000 in population, were issued in 1999 and states and EPA regions subsequently developed general permits.
Phase I permits are individually written and include a monitoring requirement; Phase II are general permits that do not include monitoring. Needless to say, issuing a general permit for an extremely localized problem doesn’t make much sense. While EPA and state regulators have tried to allow for uniqueness, that would require analyzing each permittee’s problems and solutions as well as their benefits and costs.
National Research Council Report
Recognizing the problems inherent in issuing meaningful permits, the agency in 2006 asked the National Research Council of the National Academies to look into the issue. The resulting 598-page report recommends:
- Converting the current piecemeal system into a watershed-based permitting system
- Using an urban stream classification system, such as a regionally adapted version of the impervious cover model, to establish realistic water quality and biodiversity goals for individual classes of subwatersheds
- Having permittees better monitor runoff to determine what outcomes are needed
- Integrating construction and industrial site permits under their associated MS4’s jurisdiction
- Issuing guidance for MS4, MSGP (multisector industrial stormwater general permit), and CGP (construction general permit) permittees on what constitutes a design storm for water quality purposes
- Issuing guidance on methods for identifying high-risk industrial facilities for program prioritization such as inspections
- Compiling a national database of both industrial and stormwater control measure effluent quality
- Developing numerical expressions for maximum extent practicable (MEP).
The report is a scientific review of the issues and problems associated with improving stormwater quality. But it lacks an understanding of the average permittee’s perspective and resources.
In particular, the Clean Water Act includes the caveat that each permittee implement its stormwater program to MEP. But as Urban Stormwater Management in the United States points out, EPA hasn’t provided adequate guidance for defining, measuring, and tracking programs relative to that requirement.
The report also acknowledges that one of its recommendations for defining MEP with numerical expressions — monitoring — is expensive and thus impossible for many permittees: “The challenge of defining MEP as a runoff reduction or pollutant load limit is that considerable scientific and engineering analysis is needed to establish the performance standards, evaluate stormwater control measure (SCM) capability to meet them, and devise a workable computational approach that links them together at both the site and watershed levels.”
Establishing MEP this way may be possible for a large permittee with a real need to do so, but is way beyond the resources of most permittees. Thus, work needs to be done to determine how to make the determination process more practical and achievable for the average permittee.
This is where you come in.
Is MS4 specificity attainable?
Ideally, each MS4 would have a set of solutions tailored to its specific issues and metrics that prove the validity of each measure. Certainly, a small percentage does. But most lack the resources to do so, and are left trying to satisfy the regulations without being able to determine whether and how much their efforts will improve their community’s stormwater quality.
To overcome the lack of research and support, permittees have banded together via professional associations, conferences, magazines, enewsletters, and webinars to promote technology transfer.
Permittees within the same geographic area, under the same regulating agency, have pooled resources to help each other determine the best approaches and advocate for more practical approaches. Such coalitions have been very effective; turn to page 45 to learn how one state’s MS4s influenced nutrient requirements.
Institute for Policy Integrity letter
One of the more significant comments regarding the impending rulemaking was an April 27, 2012, Institute for Policy Integrity letter urging EPA to ensure the new regulations maximize net benefits. Specifically, the agency should:
1. Refine its cost-benefit analysis by considering additional benefits categories, incorporating nonuse values, and accounting for industry adaptation.
2. Analyze whether market-based regulatory approaches can increase the proposed rule’s cost-effectiveness.
3. Minimize economically inefficient grandfathering by adopting a time-limited transition relief scheme.
4. Design the rule to facilitate watershed-based permitting.
5. Structure the rule to maximize public involvement in permitting, monitoring, and enforcement.
The Institute’s summary is directed at EPA in the form of what should be included in the rule. While the agency can certainly deal with some of these issues, wouldn’t it be more beneficial to have the states — which better understand their MS4s’ issues — incorporate the five points into their permits?
Because it’s addressed by both the National Science Council and Institute, watershed-based permitting may make it into the proposed rule. Forming multijurisdictional entitiesm however, presents significant political difficulties. It should instead be a measurable goal to explore such entities with groups of MS4s within the same watersheds.
The market-based approach has merit because funding issues need more attention and permittees can’t provide all the resources. It would allow the private sector to participate in creative, market-driven financing of required practices. And while public involvement has been a staple of the rule for Phase I and Phase II permittees, the process isn’t as robust as it needs to be.
EPA’s Information Collection Request Summary
EPA shared the preliminary results of its Information Collection Request — an effort to document what permittees are doing to improve stormwater quality — at the Water Environment Federation’s Stormwater Symposium in July 2012.
The request was sent to a random sample of about 608 of the nation’s 750 Phase 1 and 6,600 Phase II permittees; responses were received from a combined total of 471. The experience of Phase 1 permittees is particularly informative because they’ve been at this for more than 15 years and have been monitoring receiving waters.
EPA will consider all this information when developing the proposed regulation for publication in June.
Your input is critical. Most permittees simply can’t afford the research necessary to determine the best benefit-costs approaches, so cost-effective solutions must be top priority. Submit comments on the proposed rule on your own or in association with other MS4s in your city, county, or state. Remember: There’s strength in numbers.
— Sorensen (firstname.lastname@example.org) is senior stormwater utility associate in the Environment & Infrastructure group of consulting engineering firm AMEC (www.amec.com).