The Environmental Protection Agency (EPA) signed new rules for municipal separate
storm sewer systems (MS4s) which preserve the ability of cities to choose from a wide range of options to tackle urban water pollution.
Despite heavy lobbying by environmental groups, EPA failed to use this court-mandated rulemaking as a means to “raise the floor” of the MS4 program by adding more stormwater requirements for small cities.
Options for Cities and States
The broad impact of this rulemaking spans across the nation, as it could have restricted how cities across the nation regulate new and re-development to comply with the Clean Water Act. NAHB petitioned the agency to return the term “narrative” to the rule text, leaving no room for misinterpretation that EPA may only accept numeric post-construction limits when reviewing state-run programs. The agency agreed, reversing its initial proposal to eliminate non-numeric options from the list of approved practices.
Allowing narrative requirements (rather than numeric) for new development is especially important to builders in cities facing expensive federal mandates to upgrade their drinking water, sewer and stormwater programs all at once.
“This rule signals that EPA is open to allowing cities to address pollution by carefully crafting local programs that work with development, rather than against it,” said NAHB Environmental Program Manager Eva Birk.
However, moving forward, state permit writers must incorporate “clear, specific and measurable” permit terms to satisfy the order.
“Many cities are turning to low-cost methods such as street sweeping, lawn fertilizer reduction and flexible installation and maintenance programs to achieve better water quality results over the long term,” Birk said. “Cities are creative. Along with water quality trading and stormwater credits, this language leaves a lot of options on the table for cities to grow market-based programs that really work.”
EPA Administrator Gina McCarthy signed the final MS4 General Permit Remand Rule Nov. 17, satisfying a remand by the U.S. Court of Appeals for the Ninth Circuit in Environmental Defense Center v. EPA, which required that a final rule addressing its remand be issued by no later than that date. The rule will become final 30 days after being published in the Federal Register – or about Dec. 17.
“As builders, we’re committed to finding common sense ways to keep our local streams clean and our communities healthy,” said Nick Cammarota, general counsel for the California Building Industry Association, the state in which the court issued the remand.
“We’re pleased EPA responded not by restricting federal mandates even further, but by preserving flexibility for states and municipalities to find solutions that work best for them,” he said.
EPA’s decision still does not clarify the definition of the “maximum extent possible” limit under this rule, nor how it applies to specific steps MS4s include in their state-mandated stormwater programs. NAHB expects EPA will continue to pressure states to adopt stricter limits for new and re-development. However, under this language, states can still make their own case for how programs will meet clean-water goals.
For additional information, contact Eva Birk at 800-368-5242 x8124.