Stormwater Rulemaking Briefing US Environmental Protection Agency

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

1972:CWA amendments establish NPDES permit program. Program does not include stormwater. Regulatory Framework All “point” sources “discharging pollutants” into “waters of the U.S.” Must obtain an NPDES permit from an authorized state or EPA

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”

1990:EPA promulgates Phase I Stormwater Rules 1999: EPA promulgates Phase II Stormwater Rules Regulatory Framework Phase IPhase II Municipalities with populations > 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

Regulatory Framework Phase IPhase II Typically covered by individual permits Typically covered by general permits 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

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.

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. NRC Stormwater Report Findings

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.” Fowler vs. EPA

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 Rulemaking Considerations

13 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

14 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

15 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 Post-Construction Requirements

16 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

17 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

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

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?