No National Stormwater Rule, Now What?


Warmer temperatures have broken out in most of the country, thankfully putting a lid on the bitter chill of winter. While others were deep in hibernation, U.S. Environmental Protection Agency (EPA) was busy making announcements that will significantly affect the trajectory of stormwater regulation around the country. In late March, EPA’s Office of Water released an official statement that it is deferring development of a National Post-Construction Stormwater Rule in lieu of more targeted, locally-driven efforts to help municipalities better control stormwater runoff. Additionally, three petitions submitted by NGO groups to EPA Regions 1, 3, and 9, requesting they use their residual designation authority (RDA) under the Clean Water Act to regulate additional sources of stormwater discharges into impaired waters, were denied. These decisions suggest that EPA is moving away from top down, national regulatory approaches to stormwater management regulation, instead focusing on providing more support to local programs. At the same time, permitting authorities will likely leverage existing requirements to ratchet down on municipal stormwater permits.

Despite the lack of a national rule, regulatory agencies and environmental activists are not giving stormwater a pass. In fact, States and permitting authorities are focusing more and more on regulating and reducing stormwater flow, akin to the what the now-defunct national rule was expected to do. Stormwater performance requirements are being built into individual permits around the country. We are seeing “second generation” permits, as they are affectionately called, for those MS4’s discharging into waters under a total maximum daily load (TMDL) which include tighter water quality standards or may have impervious surface retrofit requirements. In addition to intensifying individual permits, many communities and states have recently sped up development of local stormwater standards incorporating the concept of on-site retention requirements which EPA was pursuing in the rulemaking.  In the absence of a broad national rule, we expect this trend to continue.

The over 7,000 phase I and II MS4 communities should be aware of this type of permit-by-permit approach, which makes it harder to establish a national regulatory baseline. On the other hand, due to the localized nature of unique stormwater issues, local efforts to regulate stormwater may ultimately be more appropriate than a one-size-fits all national rule. NACWA has worked cooperatively – with EPA, the NGO community, and other municipal interests — to improve water quality by addressing urban stormwater runoff, but in a way that recognizes the decentralized nature of the problem and the mounting costs faced by utilities. We will continue these collaborative efforts, as stormwater remains one of the leading water quality challenges facing the nation.  As more utilities are confronted with stringent stormwater local regulations and permits, we encourage utilities to use all available tools, including the Agency’s Integrated Planning Framework, to pursue smarter and more cost-effective stormwater solutions for their communities.  Given EPA’s move away from a national stormwater rule and towards a renewed commitment to reinforce the existing stormwater program through more localized means, 2014 will likely mark a turning point in the direction of stormwater regulation in individual communities around the country.

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