Ensuring Accountability and Public Participation in Stormwater Permitting

As spring rains approach, the need for more stringent stormwater controls comes into sharper focus. Rain is a life-giver, of course, but in our ever more paved environment, it’s also a conveyance for water pollution. Stormwater runoff in urban areas travels across rooftops, roads, sidewalks and eventually into a municipal storm sewer system, all the while accumulating a cocktail of various pollutants that includes oil residue from roads, pesticides and excess fertilizer from lawns and farms, and more. These pollutants flow into in local streams and have a direct — and sometimes severe — impact on the water quality and local aquatic ecosystems.

Regulation of Municipal Separate Storm Sewer Systems (MS4s) is critical to improving water quality as envisioned by the Clean Water Act (CWA). Unfortunately, management of stormwater is not a “one size fits all” problem. Controlling runoff of sewage and trash, which are major pollutants in Baltimore City, requires fundamentally different controls than addressing runoff of nitrogen and phosphorous, the major sources of stormwater pollution on the Eastern Shore of Maryland. In addition, the extent of development, and the resulting differences in how much area is covered with pavement and other impervious surfaces, affect how localities can effectively mitigate pollution from stormwater runoff.

In 1999, EPA expanded its original MS4 regulations (“Phase I”) to extend beyond large counties and municipalities to apply to smaller jurisdictions — “Phase II” jurisdictions in EPA parlance. By using best management practices that include such things as posting signs to encourage people to clean up after their dog, to street sweeping, to the installation of green infrastructure practices designed to retain rainfall and pollutants, Phase II MS4s must reduce pollution from stormwater discharges to the “maximum extent practicable.” Unfortunately, the Phase II regulations finalized by EPA sacrificed two foundational underpinnings of the CWA in the name of administrative efficiency: regulatory oversight and public participation.

When the Environmental Defense Center challenged the rule, the U.S. Court of Appeals for the Ninth Circuit recognized as much, holding that the Phase II regulations circumvented the CWA requirement for a permitting authority to review and approve an MS4 permit for each MS4 permit applicant, including any jurisdiction seeking coverage via a “notice of intent” (NOI) under a general permit. The effect of which, as the Ninth Circuit observed, is that the NOI becomes the “functional equivalent” of a general permit and the MS4 “needs to do nothing more than decide for itself what reduction in discharges would be the maximum practical reduction.” The court also held that self-regulation by MS4s offends the public participation requirements under the CWA. The court wrote that under the rule “nothing prevents the operator of a small MS4 from misunderstanding or misrepresenting its own stormwater situation and proposing a set of minimum measures for itself that would reduce discharges by far less than the maximum extent practicable.” Such self-regulation is contrary to the CWA requirement that NPDES permits “require” controls to reduce pollutants to the “maximum extent practicable.”

Going back to the drawing board, EPA issued a new proposed rule in January 2016 and requested comment from the public on how best to restructure the permitting scheme covering Phase II MS4s. EPA’s goal is to address the two central concerns raised by the Court of Appeals for the Ninth Circuit.

EPA’s new proposed rule offers three permitting scheme options. The first option, the “traditional general permit approach,” reflects a traditional permitting scheme under which general permits are issued. The second option, the “procedural approach,” proposes to codify the permitting scheme challenged in the Environmental Defense Center case, but requires a second round of notice and comment for each proposed NOI under a previously approved general permit. The third option, the “state choice approach” presents the states with an option to choose either the traditional general permit approach, the procedural approach, or states can develop a hybrid of the two.   

In response to EPA’s request, CPR has submitted comments urging EPA to reject any Phase II permit process that grants blanket approval, and instead require that “clear, specific and measurable” requirements be incorporated into every permit. CPR proposes one way to accomplish this would be adoption of a checklist similar to one currently in use in Minnesota for Industrial Stormwater permits. Such a measure at the outset of the permitting process would take into account the necessary specificity to address the wide range of unique conditions that exist for each individual permit applicant, rather than treating each jurisdiction as if they face the same water quality challenges. Additionally, a checklist would provide the permitting authority with an additional but streamlined method of oversight.

Additionally, the comments urge EPA to adopt a scheme that includes meaningful public participation as required under the CWA. Under the procedural approach, this necessarily requires a second round of notice and comment. Since the Ninth Circuit’s remand of the Phase II regulation in 2003, the Court of Appeals for the Seventh Circuit has held that this additional administrative burden on EPA “eviscerates the administrative efficiency inherent in the general permitting concept.” (Texas Independent Producers and Royalty Owners Assn v. EPA, 410 F.3d 964, 978 (7^th Cir. 2005). On the contrary, as held by the Court of Appeals for the Second Circuit, a rule governing discharges under the CWA that does not require public review of indispensible implementation plans, “deprives the public of the opportunity for the sort of regulatory participation that the Act guarantees.” (Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 503 (2^nd Cir. 2005). In short, the public’s statutory right to participate in the adoption of MS4 permit requirements is not outweighed by any anticipated administrative efficiencies.

CPR’s full comment submission reflecting these observations can be found here.