States, Municipalities Ask EPA to Consider Costs Associated With Stormwater Regulation

Environment Reporter™ keeps you fully up to date on rapidly changing developments in courts, Congress, federal agencies, state legislatures, industry, and environmental organizations.

State and municipal officials are urging the Environmental Protection Agency to consider costs and encourage flexibility as it develops a rule that would regulate stormwater runoff for development and redevelopment.

The National Association of Clean Water Agencies, which represents municipal wastewater treatment plants, and the Environmental Council of States have submitted comments to the agency summarizing their views following EPA's consultation with state and local officials in December aimed at obtaining their input prior to proposing a rule.

The agency is developing a major stormwater rule that would set numeric limits for pollution from construction related to new development and redevelopment. The rule is expected to be proposed in September 2011 and finalized in 2012.

In December 2009, EPA announced its intention to begin rulemaking to strengthen its stormwater program under the Clean Water Act, particularly by reducing the impact of stormwater discharges from developed sites to the nation's waters. The agency followed up with several “listening sessions” around the country to obtain public input (74 Fed. Reg. 68,61; 41 ER 73, 1/8/10).

EPA in 2010 also sent multiple survey questionnaires to property owners and developers, municipal sewer system authorities, state regulators, and EPA regional offices to obtain their input (41 ER 1140, 5/21/10).

'Unique Standard.'

NACWA said in a letter Jan. 21 it wants to “remind” EPA in developing the rule that Clean Water Act provisions addressing municipal stormwater runoff set a unique standard for municipalities to reduce pollutants in stormwater known as the “maximum amount practicable” standard.

“This standard was different from the technology-based standard required of industrial stormwater dischargers and recognized the unique challenges faced by municipal dischargers in controlling urban runoff, particularly with regard to cost,” wrote Nathan Gardner-Andrews, NAWCA general counsel.

The maximum amount practicable standard “is still the law of the land,” and thus the cost for municipalities to meet new standards must be considered, the letter said.

NACWA also called it “critical” that performance standards designed to reduce stormwater runoff be flexible so communities can create requirements appropriate to their stormwater needs.

Concerns About Retrofit Provision.

In addition, the association expressed “significant concerns” over a retrofit provision EPA is considering for inclusion in the rule, saying its expense “would place a tremendous economic burden on local communities at a time when many municipalities are dealing with a period of severe economic distress. Imposing a massive mandatory retrofit requirement for stormwater on top of these existing mandates may prove more expensive than many communities can afford.”

NACWA said many cities already are conducting infrastructure improvement projects to address sewer overflows and improve nutrient controls, which have resulted in sewer rate hikes for local residents.

If EPA does choose to include a retrofit requirement in the rule, NACWA said, it “strongly encourages” EPA to give municipalities enough time--at least five years--to develop and implement a plan. In addition, the association said EPA should provide funding. NACWA expressed support for an option discussed by EPA in December that only would require retrofits where municipal separate storm sewer systems (MS4s) discharge to waters impaired for stormwater, instead of making it a requirement for all MS4 permittees.

When EPA first announced it was considering proposing a rule, it said one provision could be requiring MS4s to address stormwater discharges in areas of existing development through retrofitting the sewer system, drainage area, or individual structures with improved stormwater control measures.

NACWA added it is particularly supportive of expanding the National Pollutant Discharge Elimination System stormwater program to currently unregulated areas “if it is done as part of an overall watershed approach to permitting” that includes agricultural runoff.

ECOS Wants Cost Calculations.

The Environmental Council of States also cited cost as a key issue in initial comments submitted to EPA Jan. 14. ECOS asked the agency to provide it with a determination of how it plans to calculate the overall costs of the rule or to hold a briefing on how it determined the cost estimate.

States may incur slightly different implementation costs for each new rule, depending on legislative and community differences. ECOS requested that EPA consider the “full range of implementation cost items” in its estimates before a final rule takes effect. In addition, the state council requested that EPA seek to secure federal funding for states to help cover implementation costs and to consider funding other activities.

The state council also had questions on enforcement related to green infrastructure and numeric standards.

“In the event that local governments follow EPA and state guidance in compliance with this rule, but find that use of green infrastructure has not met the requirements of the rule, what will EPA's enforcement reaction be? Would, for example, EPA side with states and local governments against citizens' suits in such cases,” said the letter signed by ECOS Executive Director R. Steven Brown.

ECOS stressed that while it supports green infrastructure, EPA's planned proposed rule would feature it as a central preferred method for compliance with the proposed rule. In addition, the letter said, the agency has indicated it expects states “to establish specific numeric standards that ensure compliance with the requirement.”

The state's council also questioned whether it is EPA's intent to broaden the scope of the rule beyond areas of dense human population.

The Association of State and Interstate Water Pollution Control Officials plans to submit comments Jan. 28 to EPA, ASIWPCA Executive Director and General Counsel Alexandra Dunn told BNA. Dunn said the preliminary comments will summarize several recent calls with EPA addressing the planned proposed stormwater rule.

By Linda Roeder

Comments submitted to EPA by NACWA can be accessed at

Comments submitted by ECOS are available at