Editor’s Comments: The Stormwater Rule

Aug. 3, 2013

It’s no secret that a revision of the national stormwater rule has been in the works for some time–years, in fact. The direction in which EPA ultimately takes the stormwater program will influence much about the industry, and the way cities across the US manage–and pay for–stormwater management.

The advent of Phase II of the National Pollutant Discharge Elimination System back in 2003, for example, expanded the national program tremendously, bringing new requirements to smaller cities and construction sites and spawning an entire industry–new BMPs and technologies, new service providers, new jobs. It led to the creation of hundreds of completely new or greatly enhanced stormwater programs within the newly regulated cities and counties. The new rule we’re waiting for now will potentially move in quite a different direction, causing cities to rethink their current approach.

EPA had planned to release a draft of the new rule by June 10 of this year–the latest deadline after a series of previous postponements–and that did not occur. (EPA was required to propose a new rule under a 2010 settlement with the Chesapeake Bay Foundation, and it’s reportedly negotiating with the foundation now on a new schedule.) However, in previous statements and in a recent presentation (available on EPA’s site), EPA representatives have given a fairly good idea of what the new rule will contain. It’s almost certain that there will be retention-based performance standards, and that the rule will emphasize the use of green infrastructure and onsite stormwater management–not only for new developments, but also for redeveloped properties, which is, it seems, a sticking point for the development community. EPA has also indicated, however, that there will be some flexibility in meeting onsite retention requirements, taking into account the climate, soil type, and other factors, as well as different ways to reach water-quality goals if infiltration is not an option, such as credit trading programs or offsite mitigation. The agency has also–in previous statements and in its recent presentation–suggested that redeveloped sites will be held to less-stringent standards, thus encouraging developers to take on infill and redevelopment projects instead of opting always for easier-to-develop greenfield sites.

EPA is also expected to emphasize a watershed-based approach to stormwater management–a solution recommended by the National Academies of Sciences in its review of the stormwater program back in 2009–and this is the part of the rule that could, in the long term, affect Phase II cities the most. EPA’s presentation includes phrases like “Encourage MS4s in the same watershed to work together” and “Encourage watershed approaches for managing municipal stormwater discharges.” Encouraging something, though, is a far cry from requiring it, so the exact language of the new rule will be critical to the future of existing programs.

Phase II cities have struggled, over the past decade, to put together and fund workable programs. It’s true that many have participated in a type of watershed-wide management, either by pooling resources with other nearby communities or piggybacking onto a larger and well-established Phase I program to save money and eliminate redundant efforts. True watershed-based stormwater management makes a great deal of sense–stormwater doesn’t recognize political jurisdictions–and well-coordinated watershed management could be far more effective and efficient than the current municipal permitting approach. But switching from one to the other will be tricky. Divvying up responsibilities and funding, especially for those cities that have established stormwater utilities, will require a lot of effort and serious reevaluation of the systems and organizations already in place. The strength of EPA’s encouragement on this score–how thoroughly and how quickly the shift expected to happen, and what incentives exist for cities to change–will have repercussions for the coming decade.

About the Author

Janice Kaspersen

Janice Kaspersen is the former editor of Erosion Control and Stormwater magazines. 

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