Stormwater Rulemaking Briefing

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Stormwater RulemakingBriefing

• US Environmental Protection Agency

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Overview

• Regulatory framework
• Drivers for present rulemaking
• Rulemaking considerations
• Timeline
• Activities completed to date
• Activities in progress

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Regulatory Framework
1972 CWA amendments establish NPDES permit
program. Program does not include stormwater.
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Regulatory Framework

• 1983 Nationwide Urban Runoff Program finds urban
  runoff a significant source of pollution
• 1987 CWA amendments direct EPA to regulate
  stormwater discharges under NPDES
• Amendments recorded in section 402(p)
• 402(p) establishes phased approach to stormwater
  permitting

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Regulatory Framework

• Section 402(p)(4)
• Required EPA to establish permit application
  requirements for industrial and medium and large
  municipal separate storm sewer discharges
• Section 402(p)(5)
• Required EPA to conduct a study to identify other
  stormwater discharges, assess associated
  pollutant loads, and submit the results in a
  report to Congress.
• Section 402(p)(6)
• Provides authority for EPA to regulate other
  stormwater sources, based on the study, to
  protect water quality

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Regulatory Framework
1990EPA promulgates Phase I Stormwater
Rules 1999 EPA promulgates Phase II Stormwater
Rules
Phase I Phase II
Municipalities with populations gt 100,000 Urbanized Areas based on decennial Census smaller MS4s designated by permitting authority
Covers over 1,000 MS4s Covers over 5,000 smaller MS4s
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Regulatory Framework
Phase I Phase II
Typically covered by individual permits Typically covered by general permits
Must reduce the discharge of pollutants to the maximum extent practicable (MEP) Must reduce the discharge of pollutants to the maximum extent practicable (MEP)
Application requires development of a stormwater management program Application requires development of a stormwater management program that includes the six minimum measures
Monitoring required to characterize stormwater discharges Monitoring not required by rule
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Drivers of Rulemaking

• October 2008 National Research Council Report.
  EPA commissioned NRC to
• Review its current permitting program for
  stormwater discharges under the CWA
• Provide suggestions for improvement
• May 2011 settlement in Fowler vs. EPA. Plaintiffs
  claimed EPA failed to take adequate measures to
  protect and restore the Chesapeake Bay.

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NRC Stormwater Report Findings

• Current approach unlikely to adequately control
  stormwaters contribution to waterbody impairment
• Requirements leave a great deal of discretion to
  dischargers to ensure compliance
• Poor accountability and uncertain effectiveness
• A more straightforward way to regulate stormwater
  contributions to waterbody impairment would be to
  use flow or a surrogate, like impervious cover,
  as a measure of stormwater pollutant loading

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NRC Stormwater Report Findings

• Efforts to reduce stormwater flow will
  automatically achieve reductions in pollutant
  loading
• Flow is itself responsible for additional erosion
  and sedimentation that adversely impact surface
  water quality.
• Stormwater control measures that harvest,
  infiltrate, and evapotranspirate stormwater are
  critical to reducing the volume and pollutant
  loading of small storms.

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Fowler vs. EPA

• EPA agreed to settlement with Chesapeake Bay
  Foundation and others in May 2011
• By September 30, 2011, EPA will propose a
  regulation under section 402(p) of the Clean
  Water Act to expand the universe of regulated
  stormwater discharges and to control, at a
  minimum, stormwater discharges from newly
  developed and redeveloped sitesEPA will take
  final action on the regulation by November 19,
  2012.

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Rulemaking Considerations

• Establishing substantive post-construction
  requirements for new and redevelopment
• Expanding the universe of regulated discharges
  beyond the urbanized area
• Addressing stormwater discharges from existing
  development through retrofitting
• Establishing specific requirements for
  transportation
• Establishing specific provisions for the
  Chesapeake Bay

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Post-Construction Requirements

• Objective is to maintain or restore receiving
  water form and function by reducing pollutant
  loads and stream channel erosion
• Preferred approach is to require
  post-construction hydrology to mimic natural
  hydrology

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Post-Construction Requirements

• Standard could include
• On-site retention of a certain size storm event
  determined by EPA
• On-site retention of a certain size storm event
  determined by permitting authority
• Other approach determined by permitting authority
  and consistent with objective

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Post-Construction Requirements

• EPA will consider
• Whether the standard should be different for
  discharges from new development vs. redevelopment
• What flexibility must be included to account for
  local variability, site constraints and water
  rights law
• Whether unique standards be developed for
  transportation

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Defining Regulated Discharges

• All discharges from new development and
  redevelopment of a certain size could be subject
  to a federal/state standard
• Regulated MS4s could be required to apply the
  standard to applicable discharges to their system
  
• Only discharges beyond the MS4 could be subject
  to a federal/state standard
• Combination of the above

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Addressing Discharges from Existing Development

• Retrofit requirements could
• Require MS4s to develop a retrofit implementation
  plan
• Require the MS4s to implement the plan over a
  certain time period

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Specific Provisions for the Chesapeake Bay

• Over 64,000 square miles of land drain into the
  Chesapeake Bay or its tributaries
• Major urban areas include
• Baltimore, MD - DC
• Harrisburg, PA - Annapolis, MD
• Richmond, VA
• Hampton Roads, VA

• EPA plans to include in this proposed rulemaking
  a separate section containing additional
  stormwater provisions for the Chesapeake Bay
  watershed

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Activities Completed to Date

• January March 2010
• Conducted five listening sessions and national
  webcast (2,000 participants)
• August 2010
• Distributed questionnaires to regulated MS4s,
  transportation-related MS4, unregulated MS4s,
  NPDES permitting authorities and owners of
  developed sites to gather information
• www.epa.gov/npdes/stormwater/rulemaking

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Activities Completed to Date

• September November 2010
• Conducted site visits with state and local
  stormwater managers, developers, engineers, and
  environmental advocates throughout the Northeast,
  Midwest, Southwest, Northwest and Southern
  California
• October November 2010
• Conducted five listening sessions on Chesapeake
  Bay specific provisions
• Monthly meetings with States

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Activities in Progress

• Benchmarking
• Cost Benefit Analyses
• Stormwater Calculator
• Green Infrastructure Database

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Anticipated Completion

• Proposal by September 30, 2011
• Final action by November 19, 2012

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• Questions?