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Friday, February 21, 1997
Municipalities Identify 'Dealbreakers' to Stormwater Agreement
The U.S. Environmental Protection Agency's (EPA) Phase II Stormwater Federal Advisory Committee reached a critical juncture this week, as AMSA and other committee members representing municipalities and operators skipped the first day of this week's two-day meeting to review a Feb. 14 draft rule and develop a set of issues considered to be "dealbreakers." The municipal/operators caucus returned to the table today to present presented its "major issues of concerns" to the committee.
The municipal caucus prefaced their list of issues as follows: "Early on, the municipal caucus agreed that the NPDES permit process (general and individual permits) was acceptable for several reasons:
1. It provided uniformity (a seamless program local government could support)
2. It could provide flexibility and opportunity for local government
3. It provided for accountability and enforceability
As much as we supported this approach and wanted it to work, EPA staff has failed to provide a rule that met these requirements. We are not sure why this has occurred except to conclude that EPA staff appears to have constraints that preclude the use of general or individual NPDES permits in the flexible manner we had envisioned.
Unless EPA staff can demonstrate that a general or individual permit can address our concerns, we must now demand an alternative approach."
The municipal caucus's recommendations include: 1) Deleting references to numeric effluent limits; 2) Restricting citizen lawsuit liability and providing protection for municipalities should best management practices (BMPs) fail to meet water quality standards; 3) Limitations on permitting authority discretion; 4) Limiting the Phase II program to minimum measures; 5) Making performance assessment a federal and state responsibility, and providing a 10-year sunset provision for the rule; 6) Defining "Maximum Extent Practicable" in a manner consistent with prior recommendations; and, 7) Removing references to regulation of stormwater volumes or rates.
In addition to the dealbreaking issues the municipal caucus also recommended a permit-by-rule approach which includes the six minimum measures (selected at local discretion), a required 10-year national program evaluation, and no additional requirements beyond minimum measures until a program reevaluation is completed (for both Phase I and II).
EPA has requested that all FACA members submit significant concerns on the current draft rule and preamble by February 26. The municipal/operator group informally presented its major list of issues to the committee this morning, where they received thoughtful consideration by advisory committee members. Though the caucus has many specific line item concerns with the proposed rule outline and preamble, the caucus has developed a coordinated comment response focusing on the major "dealbreaking" issues for the February 26 deadline. The municipal caucus plans to meet with EPA to discuss the major concerns sometime in mid-March. If EPA is non-responsive to the caucus's recommendations, the caucus has suggested it will not support the draft rule and may actively solicit member/constituent pressure for both regulatory and legislative fixes to the stormwater program. EPA is under court order to propose a Phase II rulemaking by September 1997. The advisory is scheduled to meet two more times, once in April and again in June. Should EPA not endorse the caucus recommendations it is doubtful that anyone in the caucus will participate in those meetings.