Air Force Petition Questions Retention Standard and Other Aspects of Stormwater Permit

The Air Force is challenging the ability of the U.S. Environmental Protection (EPA) to require strict stormwater retention requirements for runoff and seeks to clarify the EPA’s mandate to reduce pollutant discharges to the maximum extent practicable. The Buckley Air Force Base’s Municipal Separate Storm Sewer System (MS4) Permit requires the Air Force to reduce runoff to predevelopment levels by retaining stormwater onsite. However, the Air Force contends that it is unable to achieve this level of runoff retention at the Buckley base.

In an Environmental Appeals Board petition, re: Buckley Air Force Base Municipal Separate Storm Sewer System, the Air Force attempts to litigate these issues. This comes at a time when EPA is planning to require retention standards in new MS4 permits. According to the Air Force, EPA does not have the authority to impose a retention standard. It is looking to a precedent set by a Jan. 3 ruling in Virginia Department of Transportation (VDOT), et al. v. EPA, which said that EPA could not use flow as a surrogate for other pollutants. Further, similar to the decision in Iowa League of Cities v. EPA, the Air Force argues that EPA is trying to enforce a policy that has not been officially promulgated via the stormwater rulemaking, which is still underway.

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