Stormwater Rulemaking
Briefing
US Environmental Protection Agency
Overview
• Regulatory framework
• Drivers for present rulemaking
• Rulemaking considerations
• Timeline
– Activities completed to date
– Activities in progress
Regulatory Framework
1972: CWA amendments establish NPDES permit program.
Program does not include stormwater.
All “point” sources
“discharging
pollutants”
into “waters of the
U.S.”
Must obtain an
NPDES permit
from an
authorized
state or EPA
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
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”
Regulatory Framework
1990:EPA promulgates Phase I Stormwater Rules
1999: EPA promulgates Phase II Stormwater Rules
Phase I
Phase II
Municipalities with
populations >
100,000
“Urbanized Areas”
based on decennial
Census & smaller
MS4s designated by
permitting authority
Covers over 5,000
smaller MS4s
Covers over 1,000
MS4s
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 Application requires development of
a stormwater management program a stormwater management program
that includes the six minimum
measures
Monitoring required to characterize Monitoring not required by rule
stormwater discharges
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.
NRC Stormwater Report Findings
• Current approach unlikely to adequately control
stormwater’s 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
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.
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 sites…EPA will
take final action on the regulation by
November 19, 2012.”
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
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
13
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
14
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
15
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
16
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
17
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
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
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
Activities in Progress
• Benchmarking
• Cost Benefit Analyses
• Stormwater Calculator
• Green Infrastructure Database
Anticipated Completion
• Proposal by September 30, 2011
• Final action by November 19, 2012
Questions?