Stormwater Regulation to Impact Nearly 7,000 Communities

by | Sep 30, 2015 | Blog |

By December 17, 2015, many municipalities will have a much better idea of how new stormwater regulations will affect them.  On (or before) this date, the Environmental Protection Agency (EPA) will propose new stormwater management regulations that will affect smaller communities (Phase II MS4s [municipal separate storm sewer systems], which are communities with populations of less than 100,000).  The impact of this rule will be substantially greater than the Phase I MS4 program (populations over 100,000) because, according to the EPA, there are about 750 Phase I MS4s and nearly 7,000 Phase II MS4s.

The issue of regulating stormwater in these “smaller” communities has been in the works for a long time, dating back to at least 1993.  Similar to so many of the other recent environmental regulatory developments, this issue was finally settled by a lawsuit brought on by environmental groups.

MS4 Phase II Litigation

While the battle lines regarding this matter are complex, the case (Environmental Defense Center v. EPA United States Court of Appeals, Ninth Circuit) in September 2003 is the basis of the forthcoming regulations.  This 2003 ruling ordered the EPA to take action on both the Phase II and forest road MS4 programs. The Phase I MS4 program was previously regulated by the EPA.

The contention by the environmental groups who were forcing the EPA to take action was that in spite of, and in violation of, the 2003 ruling, the Phase II MS4 has essentially been self-implemented Best Management Practices (BMPs).  So, on December 18, 2014, a Petition for a Writ of Mandamus was submitted by council for Environmental Defense Center (EDC) and Natural Resources Defense Council (NRDC), Inc., which stated, in part:

“… the Phase II Rule, failed to adequately address these two types of stormwater. First, the court held that the Phase II Rule created an impermissible self-regulatory system for small municipal stormwater systems and failed to provide for public participation in the permitting process for those stormwater systems, as required by the Clean Water Act. … Second, the Court held that EPA failed to explain why the Phase II Rule did not address stormwater from forest roads at all, despite evidence in the record that such roads are a major source of water pollution.”

Not surprisingly, the NRDC was pleased with the settlement.  “This settlement puts an end to more than a decade of foot-dragging on a huge water pollution problem” (NRDC Senior Attorney Larry Levine).

Objections to MS4 Phase II

Among the objections to the MS4 Phase II Rule were The Texas Cities Coalition on Stormwater and the Texas Counties Stormwater Coalition who said that the “EPA lacked authority to require permitting, that its promulgation of the Rule was procedurally defective, that the Rule establishes categories that are arbitrary and capricious, and that the Rule impermissibly requires municipalities to regulate their own citizens (emphasis added) in contravention of the Tenth Amendment and to communicate a federally mandated message in contravention of the First Amendment” (See Environmental Defense Center Inc v. United States Environmental Protection Agency, Background, Facial Challenges to the Phase II Rule).

The court order requires the EPA to update its stormwater permitting rules with a proposed rule by December 17, 2015, and a final rule by November 17, 2016.  The EPA must decide by May 2016 whether regulation of “forest road runoff” is necessary.  If regulated, the EPA could limit forestry activity during certain times of the year or require specific control measures.

What is the impact on municipalities?

If you are one of these nearly 7,000 communities that might be impacted, what should you expect?  As with the existing Phase II MS4 program, the focus will be on any pipe of conveyance that collects or drains water to a “Water of the United States.”  The potential numeric limitations, control measures, and/or exclusions will be spelled out in the coming months.

With most municipalities already running on pretty lean budgets, this is not likely to be received as welcomed news.  Implementing the final rule that will be issued in just over a year might be a significant challenge.

Contact the Environmental Consulting Experts

If you have questions about stormwater management or other environmental compliance matters, please contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228, ext 117.