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Wet Weather Issues


AMSA Developing Draft Wet Weather Legislation

Background: AMSA is aggressively gearing up for the upcoming 106th Congress by taking the lead role in the development of a targeted wet weather bill to amend the Clean Water Act. The draft bill, entitled Urban Wet Weather Watershed Act of 1999, proposes changes to the Clean Water Act to provide a unified mechanism for management of urban wet weather flows, clarifies combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and municipal separate stormwater discharge requirements, and provides a total of $6 billion in funding for wet weather projects over three years. AMSA worked in cooperations with the following groups in the development of the wet weather bill: the American Public Works Association (APWA), CSO Partnership, National League of Cities (NLC), National Association of Counties (NACo), National Association of Flood and Stormwater Management Agencies (NAFSMA), U.S. Conference of Mayors, CSO Partnership, Water Environment Federation (WEF), and Association of Metropolitan Water Agencies (AMWA).

Status: Comments on the final discussion draft legislation were solicited from the membership via AMSA Legislative Alert LA 99-2, resulting in several minor modifications to the bill's language. The bill is currently being modified for the final time in response to comments by AMSA's municipal and other stakeholder partners. The next step following endorsement by the individual organizations is to set in motion a targeted lobbying strategy with the objective of getting the bill introduced during this session and initiating hearings on the bill. When the appropriate time arises, the membership will be asked to write letters in support of the wet weather legislation. CONTACT: Greg Schaner, AMSA 202/296-9836.

Proposed Stormwater Phase II Regulations

Background: EPA's proposed stormwater phase II rule regulating stormwater discharges from small municipal separate sewer systems and small construction sites was published in the January 9, 1998 Federal Register. The proposed rule would require smaller municipalities within urbanized areas to apply for NPDES permit coverage by May 31, 2002 and implement a mix of best management practices to “reduce the discharge of pollutants to the maximum extent practicable and protect water quality.”

Status: AMSA's April 9, 1998 comments to the Agency on the January 9, 1998 “Proposed Regulations for Revision of the Water Pollution Control Program Addressing Storm Water Discharges,” expressed the need to clarify in the rule whether regional wastewater authorities could participate in a Phase II stormwater permit as a co-applicant/co-permittee and implement stormwater program requirements for their respective service areas. On March 10, 1999, AMSA submitted further clarification to its original comments on this matter in the form of suggested regulatory language. AMSA suggests adding an additional section, §122.33(a)(4) to explicitly authorize regional authorities to participate as co-applicants/co-permittees with two or more adjacent or interconnected regulated municipal separate sewer systems, and allow EPA or the state to issue one system-wide permit for the entire service area. EPA and NRDC have negotiated an extension of time for finalizing the Phase II Stormwater Rule. The date for signature by the EPA Administrator has been extended from March 1, 1999 to October 29, 1999. The settlement agreement includes several commitments made by EPA to assuage NRDC concerns regarding implementation of the regulation. These commitments include the following within a year from the date of the final rule: 1) development of a model permit; 2) development of a menu of Best Management Practices (BMPs); and 3) development of guidance on measurable goals. CONTACT: George Utting, EPA 202/260-9530 or Mark Hoeke, AMSA 202/833-9106.

EPA to Reconvene SSO Federal Advisory Committee

Background: EPA is crafting a national framework to guide the Agency in revising regulations and guidance to address SSO permitting and enforcement issues. A federal advisory committee, made up of municipal (including AMSA), environmental, EPA, and state interests met from November 1994 to December 1996 to discuss framework and implementation issues. The Office of Wastewater Management (OWM) is currently developing a draft Federal Register notice that will include: 1) An interim policy statement addressing NPDES permit requirements for municipal sanitary sewer collection systems (the policy will clarify how existing ‘generic' standard NPDES permit conditions apply to municipal sanitary sewer collection systems); and 2) Proposed modifications to the NPDES regulations which would establish standard permit conditions specifically for municipal sanitary sewer collection systems. These standard permit conditions will address: reporting requirements for sanitary sewer overflows (SSOs); and a prohibition on discharges from municipal sanitary sewer collection systems.

Status: On March 15, 1999, AMSA met with EPA to discuss the status of national SSO policy development. Contrary to the initial impressions of EPA's outline distributed via AMSA Regulatory Alert RA 99-3, EPA indicated that many policy decisions are still being worked out, and that a range of policy/regulatory options are still being considered by its Region/State workgroup. EPA confirmed that a meeting of Regions/States will occur on April 28 in Washington, DC, as a follow up to a similar meeting held on February 9-10, 1999. A subset of the Region/State group met on March 30-31 to discuss alternative approaches from those presented in a December 23, 1998 draft policy/regulations proposal that was distributed to the Regions. EPA hopes to forward the draft policy/regulations document to the SSO federal advisory committee May 1999, and would like to issue a proposed rule/guidance by the end of this calendar year.

Mike Cook, Director of EPA's Office of Wastewater Management, indicated there is general support at EPA for additional reporting and public notification requirements for municipal systems, however, some EPA officials have expressed reluctance in constraining EPA's enforcement discretion as it relates to SSOs. While Cook indicated that a new “upset/bypass” regulatory language specific to the collection systems is being developed, it is still unclear how this “affirmative defense” provision will be implemented. Systems that do not meet some minimum standard of operation, would not likely be eligible for the defense, however, EPA acknowledged its difficulty with defining what minimum standards apply to collection systems.

A review of the technical literature by EPA has not yielded any recent design guidance for new sewer systems. EPA is currently reviewing an American Society of Civil Engineers (ASCE) collection systems management manual that describes various benchmarks for collection system operation. Cook suggested that minimum capacity requirements may be one benchmark for sewer system design (e.g., twice average dry weather flow) that EPA may use, and cautioned that this approach may result in consent decrees for many AMSA members. Cook also indicated his interest in a “code of management practice” approach to resolving collection system problems, whereby a municipalities would develop and follow a management system to identify, correct, and prevent SSOs.

EPA and the States are still actively pursuing a wide range of policy/regulatory approaches to control SSOs from satellite communities. AMSA discussed some of the difficulties with prescribing one approach, as each municipality may have different needs. AMSA also relayed concern regarding EPA's recent statement that “permits for discharges from excess wet weather flow treatment facilities must include effluent limitations based on secondary treatment requirements or more stringent WQBELs” (see AMSA Regulatory Alert RA 99-3). Cook clarified that Regions/States have not ruled out the option of using temporary wet weather facilities to mitigate existing overflows and indicated that such facilities may be subject to what is achievable using high rate settling technologies. CONTACT: Kevin Weiss, EPA 202/260-9524, or Mark Hoeke, AMSA 202/833-9106.

Water Quality Guidance for CSO Receiving Waters

Background: Under the 1994 CSO policy, EPA urged states to coordinate the development of local long-term CSO planning with the review and appropriate revision of water quality standards and implementation procedures to ensure that the long-term controls will be sufficient to meet water quality standards. However, after almost five years since the agreement, and with half the CSO communities currently in the long-term planning process, only two states (Maine and Massachusetts) have conducted coordinated water quality standards reviews with long-term CSO planning. In report language accompanying the 1999 VA, HUD, & Independent Agencies spending bill, congressional appropriators urged EPA to “(1) develop, after a period for public comment, a guidance document to facilitate the conduct of water quality and designated use reviews for CSO-receiving waters; (2) provide technical and financial assistance to states and EPA regions to conduct these reviews; and (3) submit a report to the relevant authorizing and appropriations committees of the House and Senate by December 1, 1999 on the progress of meeting the requirements set forth above.”

Status: EPA is in the process of developing a guidance document to facilitate the conduct of water quality and designated use reviews for CSO receiving waters. EPA has asked for AMSA's assistance in this project. Specifically, EPA would like to identify current barriers to the implementation of the water quality-based provisions of the CSO policy. EPA is planning to host three meetings over the course of the next few weeks with stakeholder groups. The first meeting will be held in Philadelphia, with subsequent meetings in Boston and Chicago. EPA requests that AMSA municipalities plan to attend these meetings and participate in a discussion of the difficulties/impediments to long-term CSO planning as they relate to water quality standards. An EPA staff document titled “Question/Issues on the Impediments/Solutions to the Implementation of the WQ-Based Provisions of the CSO Policy” will be the framework for the discussions (see AMSA Regulatory Alert RA 99-5). Separate meetings for municipalities, regional and state permitting authorities, and environmentalists, will be held at each location. Once EPA has received input from the three regional meetings, it will develop a draft guidance document that will be reviewed by an invited stakeholder group in June or July of 1999. CONTACT: Ross Brennan, EPA 202/260-6928 or Mark Hoeke, AMSA 202/833-9106.

Memorandum Clarifying Tech-Based Requirements and Enforcement Issues for CSOs

Background: To address internal Agency differences regarding whether the Combined Sewer Overflow (CSO) policy's nine minimum controls meet technology-based standards of the Act, EPA is poised to issue a memorandum clarifying appropriate technology-based standards as applied to CSOs, as well as clarifying enforcement issues related to water quality standards. The 1994 CSO Control Policy requires that permittee's “immediately implement BAT/BCT, which at minimum includes the nine minimum controls, as determined on a BPJ basis by the permitting authority.” While the policy acknowledges that nine minimum controls are a minimum standards, the memorandum reportedly clarifies that EPA and states, should evaluate options beyond the nine minimum controls when deciding appropriate BAT/BCT requirements. The memorandum also reportedly acknowledges that, in general, water quality-based controls based upon long-term control plans developed by municipalities, will likely be more stringent than any additional controls (beyond the nine minimum controls) required to meet technology-based standards. The memorandum also discusses the relationship between CSO permitting and enforcement issues. The memorandum reportedly emphasizes that enforcement remedies need to be consistent with permit requirements, and that they must also be consistent with water quality standards. If water quality standards are to be imminently revised so that standards will be less stringent, the memorandum states that enforcement remedies based upon revised standards should be acceptable, in lieu of designing compliance solutions based upon existing standards.

Status: The memorandum was reportedly signed by both the Office of Water and the Office of Enforcement and Compliance Assurance, in late January, however, the Department of Justice is currently reviewing the memorandum prior to its final release. CONTACT: Ross Brennan, EPA 202/260-6928 or Mark Hoeke, AMSA 202/833-9106.

EPA Issues Guidance on Monitoring and Reporting for Storm Water General Permit

Background: The U.S. EPA issued the Multi-Sector Storm Water General Permit (MSGP) for storm water discharges associated with most industrial activities on September 29, 1995. The general permit covers industrial activities (including operation of POTWs) in states and territories that have not been authorized to run the NPDES general permitting program (applicable for POTWs in Alaska, Arizona, District of Columbia, Delaware, Idaho, Puerto Rico, Vermont, and Washington).

Status: EPA recently released guidance titled, “Guidance Manual for the Monitoring and Reporting Requirements of the NPDES Storm Water Multi-Sector General Permit.” The guidance is intended to assist facilities subject to monitoring and reporting requirements under EPA's Multi-Sector General Permit (MSGP) in complying with their visual, analytical, and compliance monitoring requirements, and ensure proper reporting of laboratory results For a copy of the document, CONTACT: Mark Hoeke, AMSA, 202/833-9106.

EPA To Develop Rule Addressing Storm Water Management for Construction Activities

Background: According to a March 30, 1999 Federal Register notice, EPA plans to develop a proposed rulemaking to address storm water discharges associated with construction activities, specifically for new development, as well as to those associated with re-development activities. The regulations would address storm water runoff from construction sites during the active phase of construction, as well as design considerations to minimize the adverse effects of post- construction runoff. According to EPA, entities potentially affected by this rulemaking would include land developers, home builders, builders of commercial and industrial property, and other private and public sector construction site owners and operators. EPA's new rulemaking project for the Construction and Development industry follows the Agency's publication of a Preliminary Data Summary on Urban Storm Water Best Management Practices. (Publication number pending. The report will be available on the EPA Website at http://www.epa.gov/OST/stormwater).

EPA intends to evaluate the inclusion of design and maintenance criteria as minimum requirements for a variety of BMPs which are used at construction sites to prevent or mitigate the impacts of storm water discharges on surface water quality. EPA also intends to develop effectiveness and applicability criteria for BMPs that are used to manage post-construction discharges. The effluent guidelines is expected to enhance the “menu” of municipal BMPs (associated with the proposed construction, as well as development and redevelopment “minimum measures”) scheduled for release by the Agency under the NPDES “Phase II” storm water rule in 2000.

Status: EPA is hosting a public meeting for the Construction and Development rulemaking on April 20, 1999 Washington, DC. A proposed rulemaking is scheduled to be published in December 2000, however, EPA hopes to extend this deadline. CONTACT: Eric Strassler, EPA 202/260-7150 or Mark Hoeke, AMSA 202/833-9106.

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