Cities Likely to ‘Pass the Buck’ to Upstream Construction Sites

AGC recently submitted comments on proposed changes to the U.S. Environmental Protection Agency’s (EPA) stormwater regulations governing municipal separate storm sewer system (MS4) permits. New rules are due out later this year, pursuant to a “sue and settle” agreement with environmental groups, that could force “small” cities (serving populations of up to 100,000 people) to even more stringently regulate runoff from active construction sites and developed properties within their limits. AGC strongly maintains that the final rule must provide federal and state permitting authorities with flexibility in how they control municipal stormwater discharges and, in turn, allow MS4s to choose what best management practices (BMP) to implement locally.

This all stems from a 2003 decision by the Ninth Circuit U.S. Court of Appeals, wherein the court told EPA to “take appropriate action” to address the “procedural issues” with its small MS4 policy and related “Phase II” stormwater rules. Namely, the court took issue with the fact that the notices of intent (NOI) submitted by small MS4s as part of the EPA’s general permitting scheme are not subject to approval by state or federal regulators or public review. The court claimed that this meant there is no guarantee that the cities’ “stormwater management programs” will satisfy the Clean Water Act (CWA) mandate to reduce stormwater pollution to the “maximum extent practicable.”  EPA issued interim guidance in response to the court’s remand but did not pursue a formal rulemaking.

In September 2015, the Ninth Circuit approved a settlement between EPA and the Natural Resources Defense Council (NRDC) and the Environmental Defense Center Inc. that requires EPA to finalize revisions to the rules that govern its “Phase II” stormwater permit program for small MS4s in accordance with the 2003 ruling by Nov. 17, 2016.  Environmental groups want a national rule that (1) requires small cities to detail their strategies for controlling stormwater runoff before they can get NPDES permit coverage, and (2) that requires permitting authorities to provide the public with the opportunity to review, submit comments, and request a public hearing on such strategies and then make a final determination on CWA compliance – all before authorizing the stormwater discharge(s).

EPA published its proposed rules earlier this year, as reported by AGC.  AGC responded with a 15-page letter expressing support for EPA’s longstanding position that MS4s need the flexibility to optimize reductions in stormwater pollutants on a location-by-location basis. AGC pointed out troublesome language in the proposal that would effectively restrict flexibility in MS4 permitting and discourage the use of narrative (non-numeric) BMPs to control urban runoff.  AGC provided strong legal support for the proposition that numeric permit requirements are not required by the CWA or related permitting regulations.  AGC continues to urge EPA to strengthen educational programs and materials on BMP-based stormwater permitting programs and not to burden state regulators, local governments, transportation agencies, construction firms, and others in the business community with rigid numeric standards and monitoring requirements.

Many predict this rule will force cities to put more stringent local ordinances in place to control active construction site runoff. Similarly, it may force cities to more stringently regulate what leaves developed sites – which could include onsite retention standards that restrict stormwater flow and the amount of impervious surface. These types of control measures are already required under the current “Phase II” rules (see box below); however, as explained above, the Ninth Circuit opined that cities have too much discretion to choose their own pollution control measures and that more government oversight is needed, along with public review and input.

AGC will continue to monitor and report on future EPA rulemaking action(s).

For more information, please contact AGC’s Leah Pilconis at pilconisl@agc.org.