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To: Members & Subscribers
From:National Office
Date:February 25, 1997
Re:RA 97-5

National Water Program Agenda And Draft Proposed Stormwater Phase II Rule

National Water Program Agenda - 1997-1998

Attached is EPA's National Water Program Agenda for 1997-1998, which was released on February 21, 1997. The Agenda focuses on several broad principles including: an increased reliance on "common-sense" approaches to water pollution problems; assurance of the health of watersheds; and, expansion of citizens' right-to-know.

Draft Proposed Storm Water Phase II Rule Language

Attached is EPA's most recent draft proposed storm water phase II rule language, and rule outline which was discussed during a February 20-21 EPA Advisory Subcommittee meeting. EPA also released a copy of a draft preamble to the proposed rule which is not attached (for a copy of the preamble, please call Jeni Tomb, AMSA, (202) 833-3280). One section of the preamble is attached which relates to EPA's intent to regulate separate storm sewer systems within communities which contain both combined and separate sewer systems. EPA has requested comment on the draft proposed rule prior to its submittal to the Office of Management and Budget (OMB) by February 26. AMSA is coordinating comments with other municipal/operator interests on the advisory subcommittee.

If you have major concerns regarding the rule, which are not expressed in the subject areas below, please call Mark Hoeke, AMSA (202) 833-9106. Please note that minor concerns can be raised once EPA solicits comment on the proposed rule in the Federal Register in September 1997.

February 20-21 EPA Stormwater Advisory Committee Meeting Summary

During the first day of a recent two-day meeting of EPA's stormwater phase II advisory subcommittee, municipal and operator representatives of the subcommittee (including AMSA) met separately to discuss serious concerns regarding the revised version of the draft stormwater rule and preamble released February 14. During the separate discussion, the municipal and operator caucus developed a list of priority issues which EPA must address in order for EPA to retain municipal and operator support for the proposed stormwater rule. These issues included:

· Numeric Effluent Limits - References to numeric effluent limits must be removed from the rule language.

· Liability Issues: There needs to be language which limits the exposure of a regulated entity to citizen lawsuits. Current language in the preamble encourages the public to exercise its rights under 505 of the CWA to take civil action against violators of effluent standards or permit conditions. There also needs to be some protection if selected BMPs fail to meet WQS. Also, the caucus feels that the regulated community needs to have the flexibility to implement innovative BMPs and to modify BMPs if they are not effective without being subject to anti-backsliding provisions of 40 CFR Part 122.

· Discretion of the Permitting Authority - Several areas of the rule language (e.g., selection of BMPs, selection of measurable goals (i.e., performance measures), small communities) allow the permitting authority to dictate very specific requirements to the regulated municipality. The municipal caucus feels that the these decisions should be left up to the local government (e.g., which BMPs to use, what goals should be tracked, etc.).

· Limiting Phase II Program to Minimum Measures - The municipal/operator caucus has supported the requirements for municipalities to perform six minimum measures, akin to the CSO policy's nine minimum controls since stakeholder discussions began. However, these six minimum measures for stormwater control have been amended by EPA to include other measures including monitoring and evaluation, and have also been modified to include some prescriptive detailed requirements. Because EPA has yet to make an national evaluation of the benefits of Phase I of the stormwater program, the municipal caucus does not believe that Phase II municipalities should be required to perform more than the minimum controls until the benefits of the entire program have been evaluated and additional requirements can be justified.

· Performance Assessment - The current rule language requires municipalities to perform monitoring and also assess of BMP effectiveness. The municipal caucus believes that these are Federal and state responsibilities. Also, a 10-year sunset provision for the rule had been requested by the municipalities at the last Committee meeting to ensure that EPA would revisit and evaluate the rule after 2 NPDES permit cycles, and make adjustments to the program where necessary. EPA has denied the 10-year sunset request on the belief that it opens the door for third-party lawsuits once the rule expires and municipalities no longer have a permit to discharge. Current language in the rule requires a program reevaluation after 10 years by EPA, but is not specific on the criteria which will be assessed. This language needs to be strengthened.

· Application of the Term "Maximum Extent Practicable" (MEP)- Currently the Phase I program requires municipalities to control stormwater discharges to the maximum extent practicable (MEP). MEP is considered to meet the technology-based standards of the Clean Water Act. EPA proposes to include MEP as a requirement for Phase II municipalities, however, has not included draft language from the Urban Wet Weather Advisory Committee MEP workgroup into the rule. MEP must be defined consistent with the UWWFAC workgroup's recommendations and must be included in the rule.

· Flow/Land Use Issues - The municipal caucus believes that regulation of stormwater volumes or rates, constitute regulation of local land use decisions and cannot be regulated under the Federal stormwater regulations. The draft rule language and preamble make several references to regulation flow and flow rates. These must be deleted.

During the second day of the meeting, the full committee discussed the municipal/operator concerns. EPA had thought it addressed some of the group's major concerns in the revised rule, and others of the Committee expressed optimism that agreement on these issues could be reached. EPA has requested that all FACA members submit significant concerns on the current draft rule and preamble by February 26. Though the municipal/operator caucus has many specific line item concerns with the proposed rule outline and preamble, the caucus decided to develop a coordinated comment response which focuses on the major issues for the February 26 deadline.

ATTACHMENTS:

(Please call AMSA’s National Office at (202)833-AMSA for copies of the Draft Proposed Language and Meeting Summary)