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Proposed rulemaking for stormwater management under the Clean Water Act

published in McAfee & Taft RegLINC | January 1, 2011

By Jessica John Bowman

The Environmental Protection Agency has solicited public input concerning potential regulations intended to (1) reduce stormwater discharges from new development and redevelopment and (2) otherwise strengthen the stormwater program. In order to collect information to inform its analyses of a possible rulemaking proposal, the EPA has solicited written comments, held a series of public listening sessions, and issued a series of questionnaires to selected entities and permitting authorities.

The EPA anticipates that the proposed regulations may have a significant economic impact on a number of small business entities. It therefore expects to convene a Small Business Advocacy Review Panel that will provide input into the rulemaking process and ensure that the concerns of small entities are carefully considered by the EPA. The EPA issued a formal notification concerning the panel on August 17, 2010.

After all comments are received, the EPA will determine whether, and to what extent, existing stormwater regulations should be revised. If the EPA decides to revise its regulations, the regulations may include the following changes, among others:

  • Expanding the scope of stormwater discharges regulated under the CWA;
  • Establishing national standards for stormwater discharges from newly developed and redeveloped sites;
  • Strengthening existing requirements for discharges from municipal separate storm sewer systems (MS4s);
  • Revising existing MS4 regulations to set out the requirements for MS4 permits together in one place (as opposed to separate Phase I and Phase II rules);
  • Revising existing MS4 regulations to include requirements for retrofitting stormwater controls at existing developed sites that discharge to an MS4; and
  • Including specific regulatory provisions for stormwater discharges in the Chesapeake Bay watershed.

If new regulations are issued, the general public will have the opportunity to submit comments during the standard public comment period, which commences after the publication of the notice of proposed rulemaking in the Federal Register.