New Year, New Stormwater Rule?

Recently, NACWA submitted a letter to EPA outlining the Association’s thinking on key issues related to the post-construction stormwater rule under development. The submittal of the letter is timely, as EPA is preparing to move into the final phases of rule development. Under the Agency’s current plan, a draft of the rule is expected for public comment in June 2013, with a final rule expected in December 2014.

Although EPA has been working on the rule proposal for almost three years, the first few months of 2013 will be a critical period in the development process. EPA will make final decisions about the specific content of the draft rule and will complete cost-benefit analyses, and the Office of Management and Budget will conduct a formal review of the rule. EPA also is expected to finish work on and submit to Congress a report detailing the state of the national stormwater program. This report will likely be released before publication of the draft rule.

NACWA has been working with EPA since rulemaking began in early 2010, and has previously blogged about the development process. The Association’s latest comment letter—consistent with previous statements made to EPA—also summarizes NACWA’s thoughts and concerns about the likely content of the proposed rule.

The clean water community understands that addressing water quality impairment caused by urban stormwater runoff is a growing need. In their efforts to manage stormwater and protect the environment, many NACWA utility members have embraced green infrastructure and other low-impact development techniques as a way to improve water quality while providing many additional benefits to their communities. Although it’s great that EPA has recognized the important benefits of green infrastructure, the Agency also needs to appropriately encourage use of green infrastructure in its stormwater rule to support continued application of this tools.

In addition, concerns remain regarding other potential elements of the rule, such as onsite stormwater retention standards for new and redevelopment projects and retrofits requirements for areas of existing impervious surface. As discussed in the comment letter, NACWA believes the ultimate decision on how performance standards should be structured is regional and community-specific, and individual municipalities and stormwater permittees need sufficient flexibility in their development. The differences in existing local stormwater management ordinances across the country are testament to the need for such flexibility.

Any new development and redevelopment requirements included in the stormwater rule proposal must take into consideration the varying geographic, climactic, and hydrologic conditions found in different regions of the country, and allow for the development of new development/redevelopment standards that account for these variations. This is particularly true in states where existing laws are problematic for onsite retention and other runoff minimization practices. NACWA also believes that any standards included in the rule proposal should not specify what types of technologies or approaches must be used to meet the standards; instead, this decision should be left to individual communities and permittees.

There are also significant concerns regarding mandating stormwater retrofits. A “retrofit requirement” should not be included in the rule. Such an approach would be extraordinarily expensive and would place a tremendous economic burden on local communities at a time when many municipalities are dealing with severe economic distress and are already engaged in expensive infrastructure improvement projects to ensure public health and safety. Although NACWA recognizes the need to address existing impervious area as part the effort to reduce stormwater pollution, the best approach is either through a redevelopment standard that addresses these issues through each redevelopment project, or via an “incentive-based” approach already used by many utilities to encourage reduction of impervious surface by property owners.

This year will be an important one for stormwater regulations, as the specifics of the next generation of stormwater requirements are becoming clear. We encourage the clean water community and other interested stakeholders to follow these developments as we work to ensure appropriate and responsible stormwater controls are drafted.

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