Recommendations for New Metrics Approach for the Phase I MS4 Permit Renewals

PDF Version: Recommendations for New Metrics Approach for the Phase I MS4 Permit Renewals 

August 25, 2017

Lynn Buhl
Assistant Secretary Maryland Department of the Environment
1800 Washington Boulevard
Baltimore, MD 21230

RE: Recommendations for new metrics approach for the Phase I MS4 permit renewals

Dear Assistant Secretary Buhl,

The undersigned members of the Choose Clean Water Coalition would like to thank you and the Water Management Administration for inviting this broad coalition of clean water advocates to help create and comment on the new Phase 1 MS4 permits in Maryland. The Choose Clean Water Coalition consists of over 200 diverse nonprofit organizations throughout the Chesapeake Bay watershed, with over 75 based here in Maryland. The Coalition serves as a strong and united advocate for restoring the thousands of streams and rivers flowing to the Chesapeake Bay by coordinating policy, messages, and accountability for clean water at the federal, state, and local levels. Several of our organizations are involved in the ongoing permit conversations with MDE.

Attached are our recommendations regarding the appropriate metrics to be included in the next iteration of Phase I MS4 permits. These recommendations emphasize developing a new restoration methodology for the next generation of Phase I MS4 permits. These recommended policies will strengthen the connections between the durable impervious surface area restoration requirements and stormwater volumetric focus of the current permits, with the pollutant reductions needed to meet the Chesapeake Bay TMDL and to address local water quality impairments. We seek to establish more relevant goals for the new permits and at the same time, ensure our local government and State Highway Administration (SHA) partners continue improving local waterways and the Chesapeake Bay.

We have been part of a series of meetings with you and your staff to discuss the future of these critically important permits. We thank you and Secretary Grumbles, Lee Currey, and Ray Bahr for your engagement during these discussions.

This submission offers an opportunity to find agreement on the core substance of the new permits. It also offers an important opportunity for MDE to respond to the deficiencies highlighted by the U.S. Environmental Protection Agency in their recent assessment of the performance of the Maryland stormwater sector in meeting expectations under the Bay TMDL.

We understand that recently resolved and continuing litigation over Maryland’s current Phase I MS4 permits create uncertainty, including on some of the topics we have been asked to help address. This has, in some cases, caused us to reconsider previous positions or to replace specific recommendations with somewhat vague suggestions that serve as temporary “placeholders”. We look forward to working with you and your staff to finalize the metrics and issues and to reach agreement on the monitoring and maximum extent practicable issues. For specific questions and concerns, please contact Caitlin Wall at


Anacostia Watershed Society

Audubon Naturalist Society

Audubon Society of Central Maryland

Baltimore Harbor Waterkeeper

Blue Heron Environmental Network, Inc.

Blue Water Baltimore

Chesapeake Bay Foundation

Choose Clean Water Coalition

Citizens for the Preservation of Middletown Valley

Clean Water Action

Conservation Montgomery

Envision Frederick

Frederick Zero Waste Alliance

Friends of Frederick County

Friends of Quincy Run Friends of Sligo Creek

Friends of Ten Mile Creek and Little Seneca Reservoir

Friends of the Nanticoke River

Interfaith Partners for the Chesapeake

Little Falls Watershed Alliance

Lower Susquehanna Riverkeeper

Maryland Conservation Council

Maryland League of Conservation Voters

Maryland Sierra Club

Mattawoman Watershed Society

Neighbors of the Northwest Branch

Potomac Conservancy

Potomac Riverkeeper

Potomac Riverkeeper Network, Inc.

Rock Creek Conservancy

Savage River Watershed Association

Severn River Association

Sierra Club, Catoctin Group

Southern Maryland Audubon Society

South River Federation

St. Mary’s River Watershed Association

WaterKeepers Chesapeake

Watts Branch Watershed Alliance

West Montgomery County Citizens Association

Wicomico Environmental Trust

CC: Benjamin H. Grumbles, D. Lee Currey, Raymond P. Bahr

Section 1: Principles for MDE’s third round of MS4 permits

Overview: With the Stormwater Management Act of 2007, and as an early and innovative adopter of water quality protection charges (WQPCs), MS4 permits, and other key tools, Maryland has long been a leader in stormwater management, addressing legacy impervious surface area and new development.

In the current second round of permits, jurisdictions were required to achieve an additional 20% impervious surface restoration using methodologies including Environmental Site Design (ESD), pond retrofits, and stream restoration. In addition, jurisdictions could implement various practices deemed “equivalent” to impervious surface restoration (as defined in the 2012 Accounting for Stormwater Wasteload Allocations and Impervious Acres Treated: Guidance for National Pollutant Discharge Elimination System Stormwater Permits - “Accounting Guidance”), such as septic system pumpouts and street sweeping.

Jurisdictions are continuously challenged by the increasing demand across the state for qualified contractors and the need for internal project management for this level of infrastructure investment. As a result, Montgomery County did not meet its 20% retrofit requirement and Prince George’s County is experimenting with a new tool, a large public-private partnership (P3) to meet its permit. These two counties, as well as several other jurisdictions (Anne Arundel County, Baltimore City, Baltimore County, Charles County, and Howard County), maintain robust WQPCs despite policy reversals in the General Assembly. Counties without any or insufficient dedicated local funding, such as Carroll County, Harford County, or Frederick County) are even further off track in meeting the 20% retrofit requirement.

Lessons learned from these past two rounds of permits led the Maryland stormwater community to prioritize the following principles. We recommend embedding these into the upcoming statewide template and into individual Phase I permits as developed over the next two years:

  • Prioritize durability o Uncertainty, such as budget fluctuations and climate change impacts, requires durable solutions to manage stormwater impacts over time. ESD and other forms of green infrastructure, such as tree plantings, grade contouring, and sustainable wet-pond retrofits that mimic natural wetlands, provide long-lasting solutions. These solutions mimic nature and use their own natural growth processes to adapt to changing conditions over time. Hard, engineered surfaces and treatments (e.g., street sweeping) intended to reduce pollutant loads can never be self-sustaining or adaptive, as they will always require continued capital inputs and maintenance. o Projects must also be legally durable, with instruments such as easements used to ensure that new infrastructure will remain in place for as long as it is designed to do so.
  • Restore both local waterways and the Chesapeake Bay o The challenge of meeting Chesapeake Bay Total Maximum Daily Load (TMDL) 2025 deadlines is immense, and continues to be a substantial driver of stormwater policy (rightfully so, as stormwater is the only growing pollution threat to the Chesapeake Bay). However, many jurisdictions lack local TMDLs for small streams, allowing jurisdictions to use equivalent-acre practices that benefit the Bay (i.e., septic system pumpouts) but don’t protect local waterways. Similarly, many jurisdictions do not use any local prioritizing or targeting in determining where to place their stormwater retrofits, providing benefit for the Bay but not strategically restoring local streams. Conversely, the impervious acreage standard is not quantitatively tied to the Wasteload Allocations (WLAs) required to actually meet the Bay TMDL. Treating impervious acreage alone is 4 an output, not an outcome, standard that does not provide substantial assurance of Bay restoration on a reasonable time frame. o Our metrics proposal (Section 2 of this document) addresses the need to simultaneously focus on local waterways and the Bay.
  • Reduce stormwater volume o The increased energy and velocity of stormwater over impervious surfaces may not be the ultimate cause of the pollutants that affect the Bay (primarily N, P, and TSS), but the volume of stormwater is certainly the vehicle for and the proximate cause of much of this pollution. Practices that promote stormwater on-site retention and infiltration, not just detention, best reduce volume impacts further downstream.
  • Use a treatment-train approach o As stormwater moves downhill, it gathers energy. Treating it as high up in the watershed as possible first, means that there will be less pressure further down the system during storm events. This can also contribute to restoring natural groundwater regimes disrupted by development, by allowing water to naturally filter into the ground throughout the watershed. A successful treatment-train approach requires MS4 permits to incentivize projects on privately-owned land, and perhaps even above the pavement itself (i.e., granting credit for spongy turf and native landscaping practices). Similarly, this principle implies that stream restoration should be closely coupled with a watershed-wide strategy that seeks to restore baseflow to the stream (and modulate peak flows, which could be harmful to the desired stability of the restoration itself). Finally, addressing pollutants farther upstream in the watershed often increases pollution reduction credits at the final downstream location (e.g., the Bay).
  • Incentivize innovation o Innovative jurisdictions, such as Montgomery and Prince George’s Counties, attempting new engineering practices (such as committing to very high levels of green infrastructure) or new business models (such as P3) should be supported and incentivized to continue testing these ideas for the benefit of other jurisdictions. With risk comes the possibility of failure. The MS4 permit template should include an incentive rubric that enables jurisdictions to reap the benefits of innovation: for example, bonus credit given for achieving gains above and beyond the minimum.
  • Provide structure, versatility, and flexibility o Every jurisdiction is different and has different needs. MDE should develop a permit template establishing a framework for desired outcomes that allows flexibility in how to achieve those outcomes; this flexibility should be incorporated into the permit text itself (not open to interpretation as part of the Accounting Guidance). For example, requiring each county to universally retrofit 20% of its impervious surface is inflexible and quite structured, but each county can choose from a very large menu of options on its own regarding how to achieve the 20%. This model results in MDE abdicating its role to enforce any of the other principles outlined above.

Section 2: Recommendations for a revised MS4 metric

  • Overview: o This methodology combines new WLA reduction requirements with ESD implementation requirements (Part IV. E. 2. Restoration Plans).
  • Proposal: o Develop a new restoration methodology for the next generation of Phase I MS4 permits to combine WLA reduction requirements with durable ESD restoration requirements to meet the Chesapeake Bay TMDL, local TMDLs, and stormwater volumetric reductions.
  • Methodology: 1) MDE conducts a gap analysis to identify pollution reduction requirements needed to meet WLAs (for the Chesapeake Bay TMDL and local TMDLs) for receiving waterbodies within the permittee’s jurisdiction that have been assigned to a Phase I MS4 permittee. These numeric reduction requirements should be explicitly stated in the permits. a) Rationale: MDE (rather than the permittees) developing specific numbers for each permit provides certainty for the permit holder, the regulator, and the public, while avoiding any delay or potential reason for delay by the jurisdiction associated with conducting their own calculations. b) For the Bay TMDL allocation, new tools from the Chesapeake Bay Program are available to use the Phase III WIP methodology, Phase 6 Bay Model, and new CAST and other Bay Program tools. For different pollutants in other TMDLs, there are various other modelling protocols. Rather than allowing different modelling protocols for different permittees, MDE should determine the best methodology for each pollutant and use that to determine the “gap” for each permittee. c) In addition, each permit holder was required to develop watershed assessments and restoration plans. These assessments and plans, and the data used to support them, should be used by MDE over the next 12 to 18 months to perform the gap analyses for meeting WLAs. d) Example: Based on a county’s existing plans and past performance, MDE may determine that 1 million additional pounds of pollution removal is required in order to meet the jurisdiction’s WLA. 2) Permittees must have 100% of the Bay TMDL (or local TMDLs for nutrients and sediment) practices and programs in place by the end of the permit term which includes the year 2025. a) Rationale: 2025 is the end date by which Bay TMDL reductions via WLAs must be achieved at 100%. The MS4 permit must include language prompting jurisdictions to have all practices and programs in place for whichever permit term includes the year 2025. b) For each numeric WLA assigned to each Phase I MS4 permit holder, MDE will use the (1) baseline year and load; (2) the current year load; and (3) the final target load. Then MDE will determine the reductions assigned to specific BMPs or projects that have been implemented to date (even if overall loads have increased across an MS4 county due to growth), as well as the gap between current loads (new baseline) and the final target. 3) Permittees must identify priority local watersheds to focus efforts and meet stormwater WLAs for local TMDLs on a defined timeframe as recommended by MDE in the gap 6 analysis described in Step 1 above.1 Under current permits, the permittees were required to complete watershed assessments that: “identify and rank water quality problems” in every local watershed; “specify pollutant load reductions benchmarks and deadlines” to meet the applicable stormwater WLAs; and, submit a restoration plan “for each stormwater WLA approved by EPA prior to the effective date of the permit.”2 Creating and implementing local WLA plans should be fairly straight-forward, as most of the work was already completed under the current permit. These priority identifications, gap analyses, and plans should be utilized to create enforceable restoration plans and compliance schedules for all local impaired watersheds. These plans must include an identified end date for achievement of local stormwater WLAs, selected using one of these methods: (a) Establishing an end date: ii) Option 1: require the permittees to hold local public hearings to establish an end date for each TMDL within a specified period of time. iii) Option 2: MDE suggests an end date based on the gap analysis, using as benchmarks at least one progress over time scenario. 1. Example: MDE could use the Bay TMDL 2025 scenario to establish a linear progress curve that plots annual progress until the end date is reached (e.g., a line starting at year 1 of the permit with a slope determined by various levels of annual progress). MDE could also develop several curves using alternative scenarios to present a range of options. 4) Permittees must meet a percentage of these reductions through durable ESD restoration techniques. a) Counties can fulfill multiple goals by targeting projects that provide multiple benefits and build more durable means to reach the TMDL or other water quality goals for the county, by emphasizing the use of ESD, and limiting the reliance on projects that provide purely temporary treatment of symptoms without lasting capabilities to improve water quality, such as street sweeping. b) Similarly, MDE should require a minimum percentage of ESD project types that yield durable benefits. For example, two permittees have established ESD goals (Prince George’s County at 100% and Montgomery County at 60%). i) Recognizing the need for a tailored approach based on each jurisdiction’s demographics and geography, the remaining permits should include a goal of 40% ESD as a minimum, with the ability to increase this over time. ii) Low-cost ESD projects, like planting trees and employing compost amendment to turf, should be encouraged and fully accredited in the Accounting Guidance. In addition, the Accounting Guidance should be revised in accordance with current best practice in this rapidly-changing field to ensure that its metrics and equivalencies are as up-to-date as possible and match the expectations included in the new CAST and other Bay models. c) Example: if the gap analysis reveals that the reduction needed to meet the WLA is 1 million pounds of pollution and the permit requires 40% of the reduction to be achieved through durable restoration (using ESD), then the gap to be achieved 1 We recognize that not all local impaired waterways have TMDLs. We caution MDE to remain aware of other waterways which are currently unregulated or without established TMDLs, and to continue to work with the EPA and local authorities to propose and designate local TMDLs accordingly. 2 See Phase I MS4 Permit Part IV.E(1)(b)(iii)-(v) and Part IV.E(2)(b). 7 through ESD is 400,000 pounds of pollution.3 These percentages of the WLA might vary depending on a county’s needs.
  • Discussion:
    • Inclusion of a requirement to meet WLAs with a minimum ESD requirement will support both water quality improvements and runoff reduction for local waterways and the Chesapeake Bay.  The WLA sets the ultimate reduction requirement and the ESD target becomes a technology-based means to achieving that target.  The challenge to introducing a water quality based numeric reduction standard in the new permit is that it is obviously only applicable where a WLA has been assigned to the MS4 permit. Ideally, every watershed would have a WLA for every pollutant for which the watershed is impaired. In reality, most watersheds have few TMDLs and even fewer numeric WLAs assigned to MS4 permits. (Incidentally, this is why additional promotion of ESD restoration is required – it reduces a variety of pollutants whether or not the watershed has a WLA or is considered impaired.)  Under this methodology, the ESD requirement in the next permit would not be a percentage of the county’s impervious surfaces (e.g. 20%) expressed in acreage but rather a percentage of the WLA (e.g. 40%) expressed in pollutant pounds that must come from projects and practices that specifically target stormwater volume and runoff through ESD.4

Small MS4 Rule Letter

March 18, 2016

Mr. Greg Schaner
Office of Wastewater Management
Water Permits Division (M4203)
U.S. Environmental Protection Agency
1200 Pennsylvania Ave. NW
Washington, DC 20460
Submitted via

Re: Comments on Proposed Rule: National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand (Docket ID No. EPA-HQ-OW-2015-0671)

Thank you for this opportunity to comment on the proposed changes to the Environmental Protection Agency (EPA) regulations governing small municipal separate storm sewer system (MS4) permits.[1]  This rulemaking is critically important to improve the regulation of stormwater runoff and protect water quality in the 64,000-square-mile Chesapeake Bay watershed, which comprises parts of six states and all of the District of Columbia.

These comments are submitted on behalf of the undersigned members of the Choose Clean Water Coalition.  Our groups are nationwide, regional, and local environmental organizations working to protect and restore water quality in the Chesapeake Bay region through advocacy, enforcement, and education.  Members of these groups use and enjoy waters adversely affected by small MS4 discharges, including the Chesapeake Bay and its tributaries.

We believe that this rulemaking presents the opportunity to strengthen our nation’s regulatory system for municipal stormwater discharges, particularly through the establishment of “clear, specific, and measurable” permit requirements.  A strong rule is needed to end “self-regulation” by MS4s, many of which throughout the Bay watershed have been inappropriately delegated the responsibility of determining for themselves which actions and policies would meet applicable legal standards.

I. Introduction

Pursuant to the ruling by the U.S. Court of Appeals for the Ninth Circuit in Environmental Defense Center v. EPA,[2] EPA must revise the small MS4 regulations so that permitting authorities, not permittees, determine what requirements are needed to reduce pollution to the maximum extent practicable (MEP) and to protect water quality, and so that members of the public have the opportunity to review, submit comments, and request a public hearing on all such requirements.  EPA has proposed three options for complying with this ruling.  Under Option 1, EPA would require permitting authorities to establish within the permit itself all requirements that MS4s must comply with in order to meet legal standards.  Under Option 2, EPA would take a procedural approach, requiring permitting agencies to review all permittees’ proposed pollution control programs to determine their legal sufficiency, along with public comment and the opportunity for a hearing.  Under Option 3, the permitting authority would choose between the first two approaches or implement a combination of the approaches within the same permit.

As an initial matter, we are disappointed that EPA rejected calls to establish substantive requirements for all small MS4 permits through this rulemaking.[3]  In particular, we believe that EPA should have taken this opportunity to establish a nationwide minimum post-construction standard for the on-site retention of stormwater.  The need for such a standard remains great, and we encourage EPA to move forward with establishing one, even if it is through a separate rulemaking.  Within the Bay watershed, post-construction control standards vary from state to state, with differing degrees of stringency and protectiveness.  For example, West Virginia requires on-site retention of 1 inch of rainfall at new development sites and 0.8 inches of rainfall at redevelopment sites.[4]  Maryland, on the other hand, for new development generally requires the capture and treatment (though not necessarily retention) of between one and 2.6 inches of runoff; for redevelopment, Maryland allows either a reduction of existing impervious surfaces by at least 50 percent, or the treatment of runoff from one inch of rainfall for 50 percent of the redeveloped impervious area.[5]  The pending draft permit for Pennsylvania includes a “model ordinance” requiring on-site retention of 1 inch of rainfall at both new development and redevelopment, but only from new impervious surfaces;[6] otherwise, sites must maintain the pre-development runoff volume.[7]  Meanwhile, Virginia takes a different approach, requiring both new development and redevelopment sites to reduce their runoff volume by a unique amount, specific to each site, that will result in compliance with stated phosphorus removal efficiencies.[8]  Instead of this uneven patchwork of varying requirements, a strong uniform standard is needed throughout the watershed so that all jurisdictions do their part to reduce the contributions of urban stormwater runoff to the impairments in the Bay and its tidal tributaries.

As to the proposals that EPA did put forward, our comments follow below.

II. All of the Proposed Options Would Improve the Regulation of Small MS4s in the Chesapeake Bay Watershed.

Compared to current permitting practices, all of the options EPA has proposed would represent an improvement over the status quo in the Chesapeake Bay watershed.  As it stands, none of the Bay watershed states operate small MS4 permitting programs that comply with the Ninth Circuit’s ruling in EDC v. EPA.  (The Bay watershed states with small MS4 general permitting programs are Virginia, Maryland, West Virginia, Pennsylvania, and New York.  Individual MS4 permits are issued in Delaware and the District of Columbia.)

As discussed in more detail below, all of these states’ small MS4 general permits contain many requirements that are vague or broadly worded and delegate discretion to permittees to choose their own pollution control measures.  Yet none of these states’ permits provide for every permittee’s program to be reviewed and affirmatively approved by the state, with full participation by members of the public, to confirm that the permittee’s proposed controls will in fact meet the MEP standard and other legal requirements. 

As acknowledged in the EPA spreadsheet summarizing the current practices of state agencies in administering small MS4 general permits, which was included in the docket for this proposed rule,[9] none of the Bay watershed states provide the opportunity for members of the public to request a hearing on permittees’ notices of intent (NOIs), which describe what the permittee will do in order to comply with the permit.  Only one of the Bay watershed states, New York, even provides the opportunity for members of the public to review NOIs and provide comment to the permitting agency.  And although a few permits, like West Virginia’s, suggest that the state will substantively review NOIs to determine their legal sufficiency, none explicitly confirm outright that all NOIs will indeed be substantively reviewed and approved prior to granting authorization to discharge.  Even if the state agencies were to review NOIs, the requirements for the contents of permittees’ NOIs in all of the watershed states are typically not detailed enough to allow for a full review of what the permittees have proposed to do. 

Consequently, any of the proposed options for this rulemaking would help to end self-regulation by small MS4s in the watershed.  All options would guarantee that the permitting agency, not the permittee, will be the entity who makes the decision about whether the permittee’s pollution control programs comply with the standards established in the Clean Water Act, as required by the EDC ruling.  The options primarily differ with respect to the point in time during the permitting process at which this determination is made.

Under all three proposed options, this rulemaking would also improve small MS4 permitting in the Bay watershed by removing from the current regulations the “guidance” language advising against the inclusion of water quality-based effluent limitations (WQBELs) in small MS4 permits.[10]  We strongly support this proposal.  Water quality-based permit requirements beyond the minimum control measures are necessary throughout the Bay watershed in order to meet the pollutant reductions and deadlines of the Chesapeake Bay Total Maximum Daily Load (TMDL) and to restore impaired waters in the Bay watershed for which TMDLs have not yet been developed.  Years of water quality degradation have proven that the minimum control measures themselves are not strong enough to protect and restore receiving waters. 

Some Bay watershed states (Virginia, Pennsylvania, and New York) have issued small MS4 general permits that include WQBELs for this reason.[11]  As EPA stated in 2010 guidance, following the adoption of the Bay TMDL, “These new reductions of pollutants in stormwater discharges will need to be accomplished, at least partially, through improved effectiveness of MS4 permits.”[12]  Water quality-based requirements in MS4 permits are also specifically mentioned in Bay watershed states’ Watershed Implementation Plans as a key mechanism for achieving the Bay TMDL’s required reductions.[13]  Yet Maryland and West Virginia still lack small MS4 general permits that contain the water quality-based provisions needed to comply with the Bay TMDL.  We strongly support EPA’s decision to delete the “guidance” language from 40 C.F.R. § 122.34(e)(2), making clear that all small MS4 permits must contain requirements more stringent than the minimum control measures when necessary to implement a TMDL or otherwise protect water quality.

III. Under All Proposed Options, EPA Must Clearly Explain How Permitting Authorities Will Determine Whether Requirements Satisfy Legal Standards.

Regardless of the option chosen, pursuant to the ruling in EDC v. EPA the final rule must require the permitting authority to determine which requirements a small MS4 must meet in order to satisfy the regulatory requirement “to reduce the discharge of pollutants from [the] MS4 to the maximum extent practicable, to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act.”[14]  Given that EPA has chosen to allow state permitting agencies to define the level of performance needed to meet the MEP standard and other legal requirements, rather than establishing that definition through this rulemaking, the final rule must ensure that each state makes a rigorous determination.

In the proposed rule preamble, EPA provides a list of factors and sources of information to be considered in making such determinations under Option 1 (i.e., when writing “clear, specific, and measurable” permit language).[15]  This list should be explicitly included in the final rule language.  The final rule should also require permitting agencies to consider the same factors and information sources when making their determinations under Option 2 (i.e., when reviewing permittees’ proposed pollution control programs) or the Option 2 portion of the “hybrid” option (Option 3), if either of those options is adopted in the final rule.

Additionally, the list should be expanded to require permitting agencies to consider the terms of small MS4 general permits in other jurisdictions.  If a more stringent requirement or provision is being implemented in another state, a state’s permitting authority should be required to consider it and either to adopt it or to explain why it would not be practicable within the state.  Such a requirement would help to ensure that permit requirements across the Bay watershed and the country are as consistently strong as possible.  EPA recognizes this potential in the proposed rule preamble, noting that the strategies some states are already implementing could “serve as useful models to those permitting authorities needing advice on how to write their permits under [Option 1],” and further, “as the list of examples of clear, specific, and measurable provisions in general permits grows, presumably other states should be able to take advantage of these ideas for their own permits.”[16]

Because EPA has not previously required states to consider each other’s permits when writing permit conditions or making MEP determinations, Bay watershed states’ small MS4 general permits contain a wide variety of requirements that vary greatly in their specificity and stringency.  For example, Pennsylvania’s pending draft permit will require dry weather outfall screening of each outfall once per permit term (twice if it is the MS4’s first term of permit coverage),[17] and Virginia requires screening of 50 outfalls per year,[18] while West Virginia requires only one “field assessment” (which may include dry weather outfall screening) per year,[19] and Maryland does not establish any required frequency of dry weather outfall screening whatsoever, requiring only that it be conducted “on a consistent basis.”[20] 

Bay watershed states typically do not acknowledge the existence of alternative, potentially stronger permit requirements in other watershed states in their permit fact sheets, much less explain why such requirements could not be incorporated into their own permits.  Adding “other state permits” to the list of factors and information sources that permitting agencies must consider would go a long way to solve this problem.

IV. We Support the Use of Option 1 for Most Permit Requirements.

We believe that Option 1 (the “traditional general permit approach”) is the better choice compared to Option 2 (the “procedural approach”) for most permit requirements, with the exception of requirements to develop watershed-specific pollution reduction plans for attainment of TMDL wasteload allocations (WLAs) and water quality standards, as discussed in more detail below.  Option 1, which would require the permitting agency to establish within the permit what MS4s must do to meet the minimum statutory and regulatory requirements, would help to eliminate the existing disparity among small MS4s’ stormwater programs.  It would also make it easier for citizens and EPA regional offices to weigh in on proposed requirements, as that feedback could be provided once, through comments on the draft permit, rather than dozens or even hundreds of times with regard to individual NOIs.  Finally, permitting agencies’ workload constraints also weigh in favor of Option 1; we believe Option 2 could lead to long delays for approval of permittee programs, or to states failing to perform a truly thorough substantive review of each permittee’s NOI.

We appreciate that, under Option 1, the rule would require permits to “make it clear to all what level of effort is expected of the permittee during the permit term for each permit provision.”[21]  Many requirements in Bay watershed small MS4 permits currently do not meet this standard.

For example:

· The Maryland small MS4 permit contains few requirements that could be described as “clear, specific, and measurable.”  It directs permittees to implement and maintain various programs with almost no objective criteria provided to define the level of effort that is needed to meet legal standards.  For example, the pollution prevention minimum control measure (MCM) requires the use of “runoff controls geared toward fleet yard and building maintenance activities” without any detail whatsoever regarding the types of controls that might satisfy this requirement or the results they must achieve.[22]  And the public education MCM contains no quantifiable requirements such as the frequency of communication with members of the public or the number of people that must be targeted through such communications.[23]

·The pending draft Pennsylvania permit requires permittees to “provide adequate public notice and opportunities for public review, input, and feedback” on ordinances, plans, and reports.[24]  The qualifier “adequate” is the type of “caveat” permit language that EPA specifically calls out in the preamble as language that lacks “the type of detail that would be needed under the proposed rule.”  In another example, the draft permit requires the development of “measures … to encourage retrofitting LID into existing development.”[25]  This provision does not include any specific or measurable requirements, but rather gives the permittee unbridled discretion to choose its own “measures,” without any associated performance metrics.

· West Virginia’s permit requires MS4s to “create opportunities for the public to participate in the decision making processes for developing, implementing and updating the SWMP.”[26]  This requirement lacks any quantifiable metrics, such as the frequency of participation opportunities, or specific details about the acceptable forms the opportunities could take (whether comment opportunities, public hearings, or something else).

·The Virginia small MS4 permit’s illicit discharge detection and elimination MCM requires MS4s to develop a “time frame upon which to conduct an investigation or investigations to identify and locate the source of any observed continuous or intermittent nonstormwater discharge.”[27]  The permit then provides some instructions for how MS4s should prioritize their investigations, but no criteria by which the adequacy of the permittee’s proposed time frame can be assessed (e.g. a maximum number of days within which an investigation must be initiated).

· Throughout, New York’s permit directs permittees to “select and implement appropriate BMPs and measurable goals” to meet the MEP standard.[28]  Many of its requirements for particular MCMs are vague and lack specific performance metrics, such as a good housekeeping MCM provision requiring “an employee prevention and good housekeeping training program [that] ensures that staff receive and utilize training,” without specifying how much training or what topics should be covered.[29]  Another example is the post-construction MCM requirement to “ensure[] adequate long-term operation and maintenance of management practices . . . , including inspection to ensure that practices are performing properly,” which lacks any objective criteria for the frequency of such inspections.[30]

It is clear that all of these examples would fail to comply with EPA’s proposed Option 1, and the same is true of many other terms within these five permits.  As a result, applying Option 1 to the MCM components of these permits would significantly strengthen stormwater permitting within the Chesapeake Bay watershed.

In contrast to the examples listed above, we would like to highlight some examples of permit terms that we believe would meet the “clear, specific, measurable” standard that EPA did not include in the materials released along with the proposed rule:

·Pennsylvania’s pending draft permit contains some quantifiable, objective requirements for several of the MCMs.  Its public outreach provisions require MS4s to “annually publish at least one issue of a newsletter, a pamphlet, a flyer, or a website.”[31]  Its public involvement MCM requires permittees to “conduct at least one public meeting per year to solicit public involvement and participation from target audience groups on the implementation of the SWMP.”[32]  As mentioned above, its illicit discharge detection and elimination (IDDE) section requires dry weather screening of each outfall once per permit term, or annually if past problems have been reported.[33]


·Virginia’s permit requires MS4s to “participate, through promotion, sponsorship, or other involvement, in a minimum of four local activities annually (e.g., stream cleanups; hazardous waste cleanup days; and meetings with watershed associations, environmental advisory committees, and other environmental organizations that operate within proximity to the operator’s small MS4).”[34]  Its post-construction MCM requires all stormwater management practices to be inspected every five years.[35]  And, as discussed above, its IDDE provisions require that “(i) if the total number of outfalls in the small MS4 is less than 50, all outfalls shall be screened annually or (ii) if the small MS4 has 50 or more total outfalls, a minimum of 50 outfalls shall be screened annually.”[36]

These examples illustrate what our groups believe to be sufficiently specific and detailed to “make it clear to all what level of effort is expected of the permittee during the permit term.”  (We do not, however, concede that all of these examples necessarily meet the MEP standard in that their “clear, specific, measurable” requirements represent the maximum effort that an MS4 can practicably undertake.  We urge EPA to make this distinction in future communications about the “clear, specific, measurable” standard.)  Critically, these examples show that “clear, specific, measurable” permit requirements can practicably be integrated into the MCM provisions of small MS4 general permits throughout the Bay watershed and nationwide.

Another aspect of Option 1 that we support is the proposed requirement for permitting agencies to re-establish the requirements for meeting MEP in each successive permit term (i.e., every five years), by reviewing information relating to permittees’ progress over the previous permit term, compliance problems, effectiveness of activities being implemented, and changes in receiving water quality.[37]  As we have seen in the Bay watershed, in the absence of such a requirement, some permit terms tend to remain relatively static from permit term to permit term rather than growing more effective over time.

Further, we strongly support the proposal under Option 1 to require that “the administrative record [for each permit] would explain the rationale for [the permitting authority’s] determination” that the permit’s requirements meet all applicable Clean Water Act requirements.  This type of explanation is frequently absent from permitting agency fact sheets that accompany MS4 permits in the Chesapeake Bay region.  EPA should incorporate this requirement directly into the text of the final small MS4 rule, rather than including it only in the preamble.  (EPA should also impose the same requirement under Option 2, if that option is selected; permitting agencies should have to provide an administrative record documenting their rationale for approving permittee-proposed pollution controls.)

V.  Option 2 Suffers from Certain Disadvantages, and It Must Be Strengthened If EPA Chooses It.

We do not support the use of Option 2 for most permit requirements, and we believe that this approach should be permitted only in the context of permittee-developed, watershed-specific plans to attain TMDL WLAs and water quality standards (as discussed below in connection with Option 3).

In the Chesapeake Bay watershed, no states clearly require in their small MS4 general permit that proposed control measures must be approved by the permitting agency prior to granting authorization to discharge, with the exception of some permittee plans developed in compliance with WQBELs.  We are not confident that state permitting agencies in the watershed have the staff capacity to perform a thorough review of every MS4’s proposed pollution control program in a timely fashion.  Moreover, many of our own groups lack the capacity to review and comment on every MS4’s NOI or stormwater management plan.  It would be much more efficient both for our groups and for state agencies to consider pollution reduction programs implementing the Minimum Control Measures at the state level within the general permit itself.  As discussed above, this is one reason why we prefer Option 1 for the MCMs.

If EPA chooses Option 2, certain aspects of the proposal must be strengthened.  The preamble to the proposed rule states that under Option 2, the permitting authority “would have the opportunity to require changes” to a permittee’s proposed program before authorizing discharge.[38]  EPA must be clear that the permitting authority has the obligation to require changes to an MS4’s proposed controls if they do not meet MEP and other legal standards.  The preamble separately states that, if proposed management programs are insufficient, the “permitting authority would request supplemental information or revisions as necessary to ensure that the submission satisfies the regulatory requirements.”[39]  Again, EPA should use mandatory language and clarify that the permitting authority must request such revisions in this case.

The proposed rule preamble also states that under Option 2, MS4s would be required to submit NOIs but not full stormwater management plans (SWMPs) in order to gain coverage under a permit.[40]  EPA should require that existing permittees applying for renewed coverage submit their full SWMPs to enable a more thorough review of ongoing and proposed programs.  At minimum, EPA must ensure that the NOI is detailed and robust enough to enable the permitting agency to make an informed determination about whether each MS4’s proposed controls meet legal standards.  To that end, EPA should apply the same “clear, specific, measurable” standard to the contents of NOIs that has proposed to apply to permit terms themselves in the context of Option 1.

If Option 2 is selected, it will require states in the Bay watershed to request significantly more information from permittees in order to determine the adequacy of their proposed programs:

· New York’s NOI is a simple form, consisting primarily of a bare-bones checklist, which demands virtually no detail about MS4’s pollution control measures beyond the vague terms set forth in the permit itself.[41]  The substantive portion of the NOI form (i.e., apart from pages seeking basic identifying information about the submitter) paraphrases items (selectively) from the permit’s MCM sections and instructs each MS4 to “[c]heck the management practices that you have selected to meet the requirements for each Minimum Control Measure.”  It requests no narrative explanations, except for a one-third of a page space, for each of the six minimum measures, where the form instructs the MS4 to provide a narrative description of the measurable goals, with start and end dates, that will be used for each best management practice.  Consequently, this form does not request sufficient information to determine the adequacy of an MS4’s pollution control measures, even if the state were to substantively review it prior to granting authorization to discharge.


· Similarly, the NOI form that Pennsylvania has proposed to use along with its pending draft MS4 permit requires permittees to describe their plans for implementing the permit’s requirements in tiny boxes that could not realistically provide sufficient information to support a permitting agency’s substantive review.[42]


·         Maryland and Virginia simply instruct permittees to submit NOIs (or, as Virginia calls them, “registration statements”) containing narratives describing their proposed control measures.[43]  It is difficult to know whether this broad requirement yields NOIs with sufficient information to determine whether an MS4’s proposed program meets MEP and other standards, given that neither state makes NOIs publicly available.


· West Virginia’s NOI form requires no information at all to be submitted in order to gain authorization to discharge.[44]  Permittees are required to submit their SWMPs within six months, but the state does not substantively review those plans before granting coverage under the permit.


If EPA selects Option 2 in the final rule, it should ensure that all states in the Bay watershed and nationwide must revise their NOI forms in order to collect the information needed to make an informed determination about permittees’ proposed management practices and measurable goals.

VI.  We Support a “Hybrid” Approach Under Option 3, Provided That the “Procedural Approach” is Allowed Only for the Implementation of WQBELs.

EPA has proposed a third option in which a permitting authority would be able to choose between Option 1 (the “traditional general permit approach”) and Option 2 (the “procedural approach”), or to implement a combination of these approaches in issuing and authorizing coverage under a general permit.  We do not support allowing a state to choose between the two options at its own discretion because, as discussed above, we believe that Option 1 should be the only allowable approach for the core Minimum Control Measures of small MS4 permits.  However, we do support the use of the procedural Option 2 exclusively within the context of WQBELs that require permittees to develop individualized pollution control plans designed to achieve TMDL WLAs and/or water quality standards in particular receiving water bodies.  The procedural approach is appropriate for these types of requirements because of the highly location-specific nature of watershed-based plans, which are often more effectively developed by permittees (subject to permitting agency approval) because of their detailed knowledge of on-the-ground conditions. 

Thus, if Option 3 is structured as a “hybrid” of Options 1 and 2 within each permit – such that the traditional general permit approach (requiring specific permit terms) is applied to the MCMs, and the procedural approach is allowed exclusively for the implementation of WQBELs – then we would support the selection of Option 3.

Within the Bay watershed, this approach has been used to implement WQBELs in Virginia and Pennsylvania.  If EPA chooses Option 3 to comply with the EDC v. EPA ruling, both states may need to make adjustments to their programs to provide for a full, substantive review of permittee-proposed pollution reduction plans.

· Virginia’s permit imposes different planning requirements for the Chesapeake Bay TMDL, on the one hand, and all other TMDLs on the other.  For the Bay TMDL, MS4s must develop a Chesapeake Bay TMDL Action Plan that is subject to public comment and then submitted to the state agency for its review and approval.  But for all other TMDLs, MS4s’ Action Plans are not required to be submitted to the state or affirmatively approved.[45]  Under a “hybrid” Option 3 in which the procedural approach is applied to WQBELs, both kinds of TMDL Action Plans would need to be subject to public comment and submitted to the state for review and approval.

·Under Pennsylvania’s pending draft general permit, two categories of MS4s are required to develop plans, called Pollutant Reduction Plans, to address water quality impairments: (1) MS4s discharging to receiving waters within the Chesapeake Bay watershed, and (2) MS4s discharging to waters impaired for nutrients and/or sediment but which have not been assigned a wasteload allocation under a TMDL.  These Pollutant Reduction Plans must be submitted to the state along with the permittee’s NOI.[46]  (MS4s with their own WLAs for nutrients and/or sediment must apply for individual permits.)  But the permit does not explicitly provide that the Department of Environmental Protection will substantively review the proposed plans; it only says that a complete NOI, with supporting information, must be submitted in order to gain approval of coverage.  Under a “hybrid” Option 3, the permit would need to clarify that review and affirmative approval of Pollutant Reduction Plans is required.

If EPA selects Option 3, it must clarify that all of the requirements for Option 2, including the necessary strengthening improvements described above, would apply to the WQBEL portions of the permit that are subject to the procedural approach.  In addition, EPA should require a full watershed-based pollution reduction plan designed to implement a WQBEL to be submitted for permitting agency review, not just a summary of such a plan (analogous to an NOI).

Thank you again for the opportunity to provide these comments on the proposed rule.  Please do not hesitate to contact Peter Marx ( or Rebecca Hammer ( with any questions.

Respectfully submitted,

American Rivers

Anacostia Watershed Society

Audubon Naturalist Society

Cecil Land Use Association

Chesapeake Bay Foundation

Citizens for Pennsylvania's Future

Coalition for Smarter Growth

Delaware Nature Society

Earth Forum of Howard County

Friends of Accotink Creek

Friends of Lower Beaverdam Creek 

Groundwork Anacostia River DC

Interfaith Partners for the Chesapeake

James River Association

Maryland League of Conversation Voters

Mattawoman Watershed Society

Middle Susquehanna Riverkeeper

Natural Resources Defense Council

Nature Abounds

Pennsylvania Council of Churches

Potomac Conservancy

Prince William Conservation Alliance

Savage River Watershed Association

South River Federation

St. Mary's River Watershed Association

Virginia Conservation Network

Waterkeepers Chesapeake

West Virginia Rivers Coalition

[1] 81 Fed. Reg. 415, Proposed Rule—National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand (Jan. 6, 2016).

[2] 344 F.3d 832 (9th Cir. 2003).

[3] See “Small MS4 Rulemaking: Pre-Proposal Comments from Environmental Organizations,” letter from 24 environmental organizations to Greg Schaner, EPA (Sept. 29, 2015).

[4] West Virginia Department of Environmental Protection, General NPDES Permit for Stormwater Discharges from Small MS4s, Permit No. WV0116025, at 24 (July 2014), available at

[5] Maryland Department of the Environment, General Permit for Discharges from Small MS4s, Permit No. MDR055500, at 5 (Apr. 2003), available at (cross-referencing, and requiring compliance with, state statutes and regulations).

[6] For purposes of this calculation, a percentage of existing impervious surface must be considered “meadow in good condition.” 

[7] Pennsylvania Department of Environmental Protection, NPDES Stormwater Discharges from Small MS4s, Model Stormwater Management Ordinance (DRAFT) (May 2015), available at

[8] Virginia Department of Environmental Quality, General VPDES Permit for Discharges of Stormwater from Small MS4s, Permit No. VAR04, 9 VAC 25-890-40 (permit by rule), at II.B.5.b (July 2013), available at (cross-referencing standards established in 9 VAC 25-870-63-66).

[9] EPA, “Current NPDES Authority Practices in Administering Small MS4 General Permits” (spreadsheet) (Jan. 2016), available at!documentDetail;D=EPA-HQ-OW-2015-0671-0022.

[10] 81 Fed. Reg. at 425.

[11] We do not necessarily concede that these WQBELs are sufficient to comply with all legal requirements.

[12] U.S. EPA Region 3, “Urban Stormwater Approach for the Mid-Atlantic Region and the Chesapeake Bay Watershed” at 4 (July 2010), available at

[13] See, e.g., Commonwealth of Virginia, Chesapeake Bay TMDL Phase I Watershed Implementation Plan, at 91 (Nov. 2010), available at

[14] 40 C.F.R. § 122.34(a).

[15] 81 Fed. Reg. at 422.

[16] Id. at 422, 428.

[17] Pennsylvania Department of Environmental Protection, PAG-13 Authorization to Discharge Under NPDES General Permit for Stormwater Discharges from Small MS4s (DRAFT), at 19 (May 2015), available at

[18] Virginia Small MS4 Permit, supra note 8, at II.B.3.c.1.b.

[19] West Virginia Small MS4 Permit, supra note 4, at 17.

[20] Maryland Small MS4 Permit, supra note 5, at 4.

[21] 81 Fed. Reg. at 421.

[22] Maryland Small MS4 Permit, supra note 5, at 6.

[23] Id. at 3.

[24] Pennsylvania Small MS4 Permit (Draft), supra note 17, at 17.

[25] Id. at 22.

[26] West Virginia Small MS4 Permit, supra note 4, at 13.

[27] Virginia Small MS4 Permit, supra note 8, at II.B.3.c.1.d.

[28] See, e.g., New York State Department of Environmental Conservation, SPDES General Permit for Stormwater Discharges from MS4s, Permit No. GP-0-15-003, at 31, 35, 37, 41, 45, 48 (May 2015, modified Jan. 2015), available at

[29] Id. at 48.

[30] Id. at 45.

[31] Pennsylvania Small MS4 Permit (Draft), supra note 17, at 16.

[32] Id. at 17.

[33] Id. at 19.

[34] Virginia Small MS4 Permit, supra note 8, at II.B.2.b.

[35] Id. at II.B.5.c.1.b.

[36] Id. at II.B.3.c.1.b.

[37] 81 Fed. Reg. at 421-22.

[38] 81 Fed. Reg. at 416.

[39] Id. at 426.

[40] Id. at 425-26.

[41] New York State Department of Environmental Conservation, Phase II SPDES General Permit for Storm Water Discharges from MS4s: Notice of Intent, available at

[42] Pennsylvania Department of Environmental Protection, PAG-13 Notice of Intent (DRAFT) (May 2015), available at

[43] Maryland Small MS4 Permit, supra note 5, at Appendix D; Virginia DEQ, General Permit Registration Statement for Stormwater Discharges from Small MS4s (VAR04), available at

[44] West Virginia Small MS4 Permit, supra note 4, at Appendix A.

[45] Virginia Small MS4 Permit, supra note 8, at I.B-C.

[46] Pennsylvania Small MS4 Permit (Draft), supra note 17, at 25, Appendix D-E.