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Regulatory - Alert (RA 99-23)

Member Pipeline - Regulatory - Alert (RA 99-23)

To: Members and Affiliates
Wet Weather Issues Committee
From: National Office
Date: December 8, 1999
Subject: EPA FINAL RULE - PHASE II STORMWATER REGULATIONS / REPORT TO CONGRESS
Reference: RA 99-23

The U.S. Environmental Protection Agency (EPA) issued its final regulations today on the Phase II stormwater program. A copy of the final regulations, as well as EPA's fact sheet, is attached. The stormwater regulations will require more than 5,000 small municipal separate stormwater systems (MS4s) (systems which serve populations under 100,000 that are located in urbanized areas), to implement a stormwater quality management program under a National Pollutant Discharge Elimination System (NPDES) permit. Regulated municipalities will have three (3) years and three (3) months to obtain NPDES permits. The Phase II requirements will also increase the number of construction sites regulated by NPDES permits by lowering the acreage threshold from five 5 acres to one 1 acre.

EPA is emphasizing that the Phase II program will focus on best management practices (BMPs), providing municipalities with the flexibility to decide which practices works best in their particular locality. Municipal Phase II stormwater programs are to be composed of six minimum control measures, including public education and outreach, public involvement and participation, illicit discharge detection and elimination, construction site stormwater runoff control, post-construction stormwater management, and pollution prevention.

The regulations were developed as a result of litigation initiated by the Natural Resources Defense Council (NRDC). Under the court order, the rules were to be developed according to a Federal Advisory Committee (FACA) negotiations process requiring consultation with interested parties. EPA established a Phase II Stormwater FACA Subcommittee in September 1995, and a total of 14 meetings were held ending in June 1998. AMSA participated directly in the FACA negotiations.

AMSA members should note that the Phase II program does not affect POTWs with combined sewers. Because combined sewer systems are subject to EPA's 1994 National Combined Sewer Overflow (CSO) Control Policy, such systems are therefore excluded from the Phase II program. The Phase I NPDES program also excluded combined systems. Those members with both combined and separate systems are regulated by the Phase II program, but the NPDES permit will only affect the areas serviced by separate storm sewers.

In addition, AMSA had previously submitted comments on the draft regulation requesting the addition of language to authorize the State to issue a single permit to a designated regional authority. This regional authority would be responsible for implementing the minimum practices for the affected municipalities. This language was not included as specifically requested by AMSA. The final Phase II rules provide that small MS4s can "work together" to share the responsibilities of a storm water management program either by submitting a joint notice of intent (NOI) for coverage under a general permit (40 CFR § 122.33(b)(1)) or, if allowed by the NPDES permitting authority, by jointly applying to be co-permittees under an individual permit (40 CFR § 122.33(b)(2)(iii)). Section 122.35(a) further provides that the operator of an MS4 may rely on another entity to implement the minimum control measures in the permit. Under the general permit approach, MS4 operators that want to share responsibilities for meeting the minimum measures with other municipalities or government entities must submit an NOI that describes which minimum measures it will implement and identify the entities that will implement the other minimum measures. The structure of the final Phase II rule thus allows a regional authority to act as the permittee only if it is the operator of the MS4. Furthermore, although a group of small MS4s can join together in a regional storm water management plan and share responsibilities for implementing the required minimum measures, this depends on their voluntary decision to submit a joint NOI for coverage under a general permit or to apply jointly as co-permittees on an individual permit. under Section 122.35(a). We are continuing to evaluate this issue. Please contact Greg Schaner at 202/296-9836 to let the National Office know how these permitting options affect your agency.

EPA Responds to Congress' Demand for Information on Phase II
As part of EPA's budget signed by the President on October 2, 1999, Congress included an appropriations rider requiring the Agency to delay the release of the Phase II regulations indefinitely until the issuance of two reports detailing the costs and justifications of the new requirements. The appropriations language directed EPA to submit reports containing an in-depth impact analysis on the effect the final Phase II regulations will have on urban, suburban, and rural local governments subject to the regulations, and an explanation of the Agency's rationale for lowering the construction site threshold from 5 acres to 1 acre. The rider was added to the budget at the request of Senator Kay Bailey Hutchison (R-TX) who is pursuing separate legislation that would affect the stormwater program.

The Agency submitted the reports to Congress on October 28, 1999, the day before the court-ordered deadline to publish the regulations. A copy of the report is attached.


EPA Conference to Focus on Phase II Techniques
As part of its implementation outreach effort, on February 7 - 10, 2000 in Chicago, Illinois, EPA's Office of Wastewater Management and EPA Region V are cosponsoring a national conference, Tools for Urban Water Resource Management & Protection, to highlight various water quality management and protection tools, including a full day pre-conference workshop on various stormwater best management practice (BMP) techniques for Phase II implementation. The conference will also feature several panels on related stormwater topics including stakeholder and community involvement, site planning and design for water quality improvement, and inspection and enforcement tools. For registration information, contact the Chicago Botanic Garden's Education Registrar at 847/835-8365 or email Bob Kirschner at bkirschn@chicagobotanic.org.


AMSA will continue to monitor Phase II requirements during the implementation phase. For copies of the entire Phase II rule package, including the preamble discussion and appendices, visit the Member Pipeline in AMSA's website at http://www.amsa-cleanwater.org, and refer to Regulatory Alert, RA 99-23 for a link to the Federal Register version of the rule. For more information on this rule, contact EPA at 202/260-5816, email your questions to sw2@epa.gov, or visit the Agency's website at http://www.epa/gov/owm/sw/phase2/index.cfml. Alternatively, contact Greg Schaner, AMSA's Manager of Government Affairs at 202/296-9836 or gschaner@amsa-cleanwater.org.

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