EPA Releases Proposed Phase II MS4 Remand Rule

The U.S. Environmental Protection Agency (EPA) has released its proposed Phase II Municipal Separate Storm Sewer System (MS4) permit remand rule. The proposed rule addresses how small MS4s seek and incorporate public comment and agency reviews into their permits. The official proposed rule was published in the Federal Register Jan. 6, beginning a 75-day public comment period that will conclude on March 21. The Water Environment Federation (WEF) has been working with EPA on this rule by facilitating engagement with Phase II communities and providing EPA with input.

The proposed rule is the result of a mid-September settlement approved by the Ninth Circuit U.S. Court of Appeals between EPA and the Natural Resources Defense Council (NRDC) and the Environmental Defense Center Inc. That settlement requires EPA to revise its MS4 Phase II permits, which affect small communities with populations less than 100,000. The agency is obligated to issue a final MS4 rule by November 17, 2016 under the terms of the settlement. EPA also is required to determine by May 26, 2016 if it will regulate stormwater runoff from forest roads.

The settlement resulted in the petitioners agreeing to withdraw a December 2014 lawsuit against EPA. The lawsuit focused on claims that EPA did not implement requirements of a 2003 Ninth Circuit court ruling on Phase II MS4 permits and forest road stormwater runoff. The 2003 ruling required EPA to address procedural issues within the Phase II rule related to issuing Notices of Intent under the small MS4 General Permit option. According to the 2003 case, without public review and approval of permits, the rule lacked assurance that regulated communities would reduce stormwater pollution to the maximum extent practicable as required by the Clean Water Act.

WEF will continue to engage EPA and will provide comments during the rule’s public participation period. WEF will assemble its respective committees to review the rule and provide focused comments designed to improve the proposed rule.

WEF will host a free webcast on Jan. 19 from 1:00 to 2:30 Eastern entitled “Perspectives on the Potential Impacts of the Proposed Phase II MS4 General Permit Remand Rule.” Expert speakers will provide background and details on the proposed rule and its potential effects on communities nationwide.

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