EPA Remand Rule for small MS4s Characterization of Current State Practices Nelly Smith Municipal Stormwater Coordinator Water Division US EPA Region 6

EDC v. EPA decision (Ninth Circuit, 2003) 1.Lack of permitting authority review:  “In order to receive the protection of a general permit, the operator of a small MS4 needs to do nothing more than decide for itself what reduction in discharges would be the maximum practical reduction.”  “No one will review that operator's decision to make sure that it was reasonable, or even good faith.” 2.Lack of public participation in permit process:  “… we conclude that … EPA’s failure to make NOIs available to the public or subject to public hearings contravene the express requirements of the Clean Water Act.”

NRDC/EDC petition to Ninth Circuit (2014)  Petitioners asked the Ninth Circuit to require EPA to take action to address the 2003 EDC v. EPA ruling  Petition requested the Court to order EPA to propose within 6 months (and finalize within 6 months after that date) a rule revising the Phase II small MS4 regulations to address the “procedural deficiencies” found in the Court’s 2003 order.  EPA and the petitioners signed a settlement agreement on Aug On Sept. 14, the Ninth Circuit entered an order granting the joint motion and setting forth the following schedule to promulgate changes to the Phase II stormwater regulations  By Dec. 17, 2015, EPA shall sign for publication in the Fed. Reg. a notice of proposed rulemaking  By Nov. 17, 2016, EPA shall sign for publication in the Fed. Reg. a final rule

Proposed Rulemaking Options  Option 1 – “Traditional General Permit Approach”  Would clarify that each small MS4 permit must include all requirements necessary to meet the standard of “reducing pollutant discharges from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the CWA”  Option 2 – “Procedural Approach”  Retain the existing general permit framework that requires the MS4 to submit an NOI proposing specific actions to reduce discharges to the MEP  If considered adequate by the NPDES authority, establish a second permitting step that incorporates these specific actions as enforceable requirements of the general permit. This step would include public comment on proposed additional permit requirements and opportunity for public hearing, followed by permitting authority final action incorporating the additional permit requirements.  Option 3 – “State Choice Approach”  State is given the choice of how to establish permit requirements that meet the regulatory standard – the NPDES authority could achieve this exclusively through the permit (Option 1), by adopting a procedural mechanism to approve of individual MS4 programs (Option 2), or by using a hybrid of the two

Characterization of Current State Practices  How many NOIs are received?  Are individual Notices of Intent (NOIs) made available to the public? Does the permitting authority provide an opportunity for public comment on individual NOIs? Are there procedures for permitting authority review of submitted public comments?  Can the public request a hearing on individual NOIs?  Does the permitting authority review the stormwater management program (SWMP) documents? Are these documents approved by the permitting authority prior to discharge?  Does the permitting authority issue individual permits to its small MS4s?  Is there a waiting period after NOI submittal and prior to discharge authorization?  Does the NOI indicate the minimum elements for each minimum control measure?  Is the SWMP required to be submitted with the NOI?

Does the NPDES authority make the NOIs publicly available?  Arkansas : Yes -Copies of the NOIs were posted on the ADEQ website  Louisiana : Yes -All NOIs were public noticed for a minimum of 30 days prior to receiving authorization under the general permit  New Mexico : Yes -Local public notice - newspaper notice, notice at a council meeting, or posting on the internet  Oklahoma : Yes - Copies of the NOIs were posted on the ODEQ website.  Texas: Yes -NOI available for public viewing in the county which the MS4 is located -Public viewing at the TCEQ’s Austin headquarters office.

Does the NPDES authority provide the public an Opportunity to Request a Public Hearing on NOIs?  Arkansas : Yes  Louisiana : Yes -During the 30 day public notice period  New Mexico : Yes - During the 30 day public notice period  Oklahoma : Yes - Texas: Yes -Opportunity for a public meeting (It is consistent with EPA’s definition of a public hearing)

How many NOIs did the NPDES authority receive under its current MS4 general permit?  Arkansas : 58 NOIs  Louisiana : 57  New Mexico : 27 under the expired MS4 permit 16 under the 2014 Middle Rio Grande MS4 Permit  Oklahoma : 43  Texas: 497

Does the NPDES authority review the NOIs?  Arkansas : Yes. Notice of Coverage (NOC). NOC is available on ADEQ website.  Louisiana : Yes. Documentation is publicly available in the Electronic Document Management System (EDMS).  New Mexico : Yes. A letter of administrative completeness (or incompleteness) is issued.  Oklahoma : Yes. ODEQ reviews the NOI and associated information prior to issuing an authorization.  Texas: Yes. The NOI, SWMP, and documentation generated during the review, and issued authorization for each NOI are available to the public for viewing and copying at the TCEQ’s central file room.

Does the NPDES authority approve either the NOI or the permittee’s stormwater management program?  Arkansas : NOI Approval.  Louisiana : NOI Approval. Recommendations for improving the SWMP were included in the general permit authorization letter.  New Mexico : NOI Approval. NOI includes summary of BMPs included the SWMP.  Oklahoma : the NOI Approval and associated information, but not the overall stormwater management program.  Texas: NOI Approval to both the submitted NOI and SWMP.

Do any of the NPDES authorities issue individual permits to their small MS4s?  Arkansas : No.  Louisiana : No.  New Mexico : No.  Oklahoma : No.  Texas: No.

Does the current MS4 general permit provide for a waiting period between when the NOI is received and when discharges associated with the NOI are authorized? If so, how long?  Arkansas : Yes. 30-day public Notice.  Louisiana : Yes, but no time period is specified. (*)  New Mexico : Yes, but no time period is specified. (*)  Oklahoma : Yes, but no time period is specified. (*)  Texas: Yes, the discharge from the MS4 is authorized when the NOI and SWMP are approved (*) The discharge from the MS4 is authorized when the NOI is approved

Example of small MS4 general permit requirements that are “clear, specific, and measurable.” Option 1

Public Education and Outreach  Vermont – Part IV.H.1 -Maintain a stormwater website and participate in regional stormwater outreach program. -Distribute stormwater related brochures at least twice in the first year and once in subsequent years  New Jersey – Part IV.F.4 & Attachment E - The permit specifies that the public education program must achieve a certain number of points that have been assigned to a variety of department-approved activities described in Attachment E of the permit. - Maintain a stormwater related page on the municipal website and include a link to (1 point) -Present a stormwater related display and materials at any municipal event (e.g., Earth Day, town picnic) or maintain a display at the municipal building (2 points)

Public Involvement  Minnesota – Part 3.D.2 - Provide a minimum of one (1) opportunity annually for the public to provide input on the adequacy of the SWPPP  Vermont – Part IV.H.2 - includes at least three of the following: (1) Form a citizen stormwater advisory panel. (2) Establish or support a water quality monitoring program involving citizen volunteers. (3) Institute an on-going public workshop series on stormwater awareness. (4) Institute a continuing storm drain stenciling project. (5) Sponsor periodic community stream corridor clean-up days. (6) Establish and support a citizen “stormwater watch” group.

Illicit Discharge Detection and Elimination  New Mexico (Middle Rio Grande) – Part I.D.5.(e)(iii) - The permittee must screen the entire jurisdiction at least once every five (5) years and high priority areas at least once every year. High priority areas include any area where there is ongoing evidence of illicit discharges or dumping, or where there are citizen complaints on more than five (5) separate events within twelve (12) months  California – Part E.9.d -Conduct an investigation(s) to identify and locate the source of any suspected illicit discharge within 72 hours of becoming aware of the suspected illicit discharge -Verify that indicator parameters, as specified in Table 2 Action Level Concentrations for Indicator Parameters are not exceeded: Ammonia>= 50 mg/L

Construction Site Runoff  Tennessee – Part The MS4’s Erosion Prevention and Sediment Control (EPSC) requirements shall be consistent with those described in the TDEC Tennessee Erosion Prevention and Sediment Control EPSC Handbook. -Inspectors must maintain certification under the Tennessee Fundamentals of Erosion Prevention and Sediment Control, Level 1 (or equivalent). Construction site plan reviewers must receive a certificate of completion from the Tennessee Erosion Prevention and Sediment Control Design Course, Level 2  Western Washington – S5.C.4.b. -Permit describes when inspections are to take place and specifies that compliance will be determined by achieving at least 80% of scheduled inspections.  New Mexico (Middle Rio Grande) – Part I.D.5(a)(iii) -Permit requires all large (>= 1 acre) sites to be inspected at least once.

Post-construction Runoff  Tennessee – Part Site design standards for all new and redevelopment require, in combination or alone, management measures that are designed, built and maintained to infiltrate, evapotranspire, harvest and/or use, at a minimum, the first inch of every rainfall event preceded by 72 hours of no measurable precipitation. - Payment into Public Stormwater Project Fund: Payment into a public stormwater fund must be at a minimum 1.5 times the estimated cost of on- site runoff reduction controls -Codes and Ordinances Review and Update: Review local codes and ordinances using the EPA Water Quality Scorecard (the scorecard)  Wisconsin – Part Implementation of storm water management practices necessary to achieve a 20% reduction in the annual average mass of total suspended solids discharging from the MS4

Good Housekeeping  Vermont – Part IV.H.6 - The permittee must provide a list of industrial facilities that it owns or operates that discharge to its small MS4 and are subject to an individual NPDES permit or the Agency’s General Permit Multi-Sector General Permit for Stormwater Discharges Associated With Industrial Activity  Western Washington – S5.C.5.d. -Annual inspection of all municipally owned or operated permanent stormwater treatment and flow control BMPs/facilities, and taking appropriate maintenance actions in accordance with the adopted maintenance standards  Maine – IV.H.6.a. - Develop and implement a stormwater pollution prevention plan (“SWPPP”) for the following municipal operations: public works facilities, transfer stations, and school bus maintenance facilities operated by the permittee

Monitoring  Tennessee – Part The permit requires biological stream sampling for each impaired stream segment in a five-year period.  Western Washington – S8.B. - Permit requires certain permittees to conduct status and trends monitoring, stormwater management program effectiveness studies and source identification and diagnostic monitoring.  New Mexico (Middle Rio Grande) – Part III.A.1 - Monitor for TSS, TDS, COD, BOD5, DO, oil and grease, E.coli, pH, total kjeldahl nitrogen, nitrate plus nitrite, dissolved phosphorus, total ammonia plus organic nitrogen, total phosphorus, PCBs and gross alpha.

BMP Manual References  West Virginia -The West Virginia Phase II Permit references and requires the implementation of BMPs which are consistent with the Virginia's Erosion and Sediment Control BMP Manual or other manuals listed in the permit’s Appendix D.  Maine -Permit requires that new permittees utilize the Guidelines and Standard Operating Procedures for Stormwater Phase II Communities in Maine volumes 1 and 2 during the development and implementation of a number of MCMs.  New York -Permit specifies that to meet MEP a post-construction practice must be designed and installed according to NYS Stormwater management Design Manual or equivalent.

Questions? 550 Gallon Rainwater Harvesting Tank Photo Courtesy of John Wright - Querencia Institute