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EPA proposes new stormwater rule; despite good effort, confusion abounds.

The U.S. Environmental Protection Agency's proposed Rule and accompanying Preamble on the Phase II stormwater program represents both an effort on the part of EPA to accommodate the concerns of the nation's cities and a confusing set of directives that leaves the reader in a quandary about the real purposes and requirements of the new program.

The proposed Rule outlines a modest program of six minimum measures (see box) that would comprise a municipal stormwater program. Newly covered cities would have to implement a minimum of one Best Management Practice (BMP) for each of the six minimum measures and describe a measurable goals for each measure (e.g., a minimum measure could be street sweeping; a measurable goal for this measure could be twice a month).

Of most significance to NLC's members is EPA's deferral of requirements for stormwater discharges from the nation's smaller cities (cities with populations of less than 100,000 located in urbanized areas) to meet numerical effluent limitations -- a requirement facing the Phase I communities (cities over 100,000 population) the feasibility of which has yet to be determined.

In addition, EPA's proposal encourages the 46 States that oversee Clean Water Act programs to issue simplified general permits (essentially a simple form listing the required minimum measures and the city's plans for implementation of the requirements [e.g., what will be done, when will it begin, how often, etc.]) requiring municipalities to submit only a Notice of Intent (NOI) to use tints instrument to cover their stormwater discharges. The general permit is an alternative to the onerous individual permits required of the cities over 100,000 population (which cost an average of $650,000). The proposed Rule also urges the States to the extent possible to provide both financial and technical assistance to smaller cities in the development and implementation of their stormwater program.

The proposed Rule also authorizes intergovernmental cooperation by allowing the nation's small cities to participate in parts of, or the entire stormwater program being implemented by a neighboring Phase I city, and/or by relying on other governments (e.g., the county, or the State) for implementation of select minimum measures (e.g., public education, controls on construction activities) where appropriate.

If this were the sum and substance of the proposed Rule, we could declare victory and applaud EPA for having developed a cost-effective, environmentally protective municipal initiative that cities could wholeheartedly support. But, unfortunately, what EPA gives with one hand, it rescinds with the other. To wit:

* Minimum measures -- EPA states that newly covered local governments can have up to five years to develop and implement their six minimum measure However, if EPA or the State permitting authority has issued a menu of "regionally appropriate, cost-effective (at least in their view)" Best Management Practices (BMPs), a local government's options will immediately be restricted, it will be required to select from this menu and its measurable goals for implementing the selections will be enforceable.

* Numeric effluent limitations -- EPA states that for the foreseeable future (i.e., the first two permit terms or the first ten years of the program's life) implementation of the best management practices to the Maximum Extent Practicable (MEP) will be deemed compliance with the requirements of the permit.

However, if the State has developed a watershed plan or if the State has developed a Total Maximum Daily Load (TMDL -- a system for allocating specific responsibility to point and non-point sources for reductions in pollutants to receiving waterbodies) for an impaired waterbody, the stormwater permit will require compliance with the TMDL -- in all likelihood a numerical effluent limit.

* Local flexibility -- While EPA describes the proposed Rule as providing significant flexibility for local governments, in reality the flexibility resides in the permitting authority. It is the decision of the permitting authority (either the delegated State or EPA) whether to issue general or individual permits; the five-year time frame for development of a municipal stormwater program can be curtailed by permitting authorities; monitoring requirements, which EPA recommends initially be minimal, will be determined by the permitting authority.

* Municipal "industrial" facilities -- EPA states in the proposed Rule that the agency agrees with local government representatives, that so-called municipal "industrial" facilities (e.g., transportation or public works facilities/activities) should not be required to have a separate individual permit.

Yet, the proposed Rule makes no definitive recommendation to include these facilities under the purview of the local government's permit, raises the issue as a question to be addressed by commentors, and suggests that any coverage of these facilities in a general permit would have to include all the requirements in an individual permit applicable to similar public and/or private sector activities. The coverage issue makes inclusion of these activities in the local government's general permit almost ("almost" because the application requirements for an individual permit would not apply) as onerous as requiring an individual permit. NLC has argued that a local government responsible for the quality of its stormwater runoff will look first to its own activities for pollutant reductions and that specific permit requirements for these facilities are redundant.

The proposed Preamble also states that EPA believes Congress gave the agency "broad discretion in establishing the structural framework" for the Phase II program. We agree.

But we do not agree that this discretion includes unfettered authority to establish parameters for local land use planning, to control growth, or to impose effluent limitations through TMDLs or other mechanisms -- all of which we believe the proposal tries to do.

EPA moves in the direction of intrusion into local land use planning activities by suggesting that the creation of new, or major revisions to existing (changes in the "footprint") impervious surfaces should not affect the rate of runoff by more than 20 percent. The agency moves in the direction of controlling growth by encouraging permitting authorities to extend the Phase II program to cities in non-urbanized areas that have population over 10,000 with densities of 1,000 persons per square mile and/or a growth rate in excess of 10 percent over ten years.

NLC has argued strenuously, that these concepts vastly exceed EPA's authority and pre-empt unique local government prerogatives.

EPA will review comments received by the April 9 deadline. A final Rue will be promulgated in March 1999; States will have 3 years to develop a program based on the requirements in the final rule; and, local governments will be required to seek permits in May 2002.

RELATED ARTICLE: What Makes A Stormwater Program:

The following minimum measures would comprise a stormwater program:

1. public education,

2. public involvement in program development,

3. elimination of illicit discharges [either improper wastewater connections to a separate storm sewer system or illegal dumping],

4. controls on new construction erosion and sediment controls as well as good housekeeping requirements),

5. post-construction management of wet weather runoff, and,

6. implementation of good housekeeping activities in municipal operations

Mayor Jim Naugle is chair of the EENR Committee and NLC's representatives on the Stormwater Phase II FACA.
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Title Annotation:proposed Rule and Preamble for the Phase II stormwater program contains confusing directives
Author:Naugle, Jim
Publication:Nation's Cities Weekly
Date:Apr 6, 1998
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