Stormwater

As the nation’s leading advocacy voice for municipal stormwater utilities across the country, NACWA is dedicated to protecting water quality; addressing large scale watershed impacts, such as flooding and erosion; and solving related modern-day challenges, such as water quality impairment from stormwater runoff and land-use impacts.

The Association and its individual members are committed to advancing robust, innovative programs and working collaboratively with regulators and stakeholders. The U.S. Environmental Protection Agency’s (EPA) MS4 General Permit Remand Rule, issued in early 2017, represents a change in the development and issuance of National Pollution Discharge Elimination System (NPDES) permits for small Municipal Separate Storm Sewer Systems (MS4s). And it has coincided with apparent shifts toward more restrictive, water quality-based requirements and away from the more flexible maximum extent practicable (MEP) standard found in the Clean Water Act (CWA).

NACWA supports rational, cost-effective stormwater policies and regulations. Its advocacy efforts include ensuring the availability of adequate funding and financing models for municipalities, as well as being a leading advocate for defending and preserving the MEP standard to which all MS4s are held.

Recent developments suggest municipal stormwater permitting will continue to increase in complexity. For example:

  • Bipartisan federal legislation has been introduced in Congress that would incorporate Integrated Planning and “green infrastructure” into the CWA.
  • Nutrient trading initiatives to reduce phosphorus and nitrogen loadings are becoming a popular solution in the Chesapeake Bay and elsewhere.
  • Increasing attention is being paid to pesticides and other emerging contaminants that are problematic in stormwater runoff.
  • Attempts by EPA are emerging to impose post-construction water quality and quantity controls in MS4 permits.

NACWA members interested in up-to-date information on stormwater issues should join the Stormwater Management Committee for all the latest information and updates.

For more information, contact Emily Remmel, NACWA’s Director, Regulatory Affairs & Outreach.

NACWA Stormwater Resources

In the wake of the final Phase II Remand Rule in 2016, there has been a significant regulatory evolution within EPA’s NPDES permitting program for small MS4s. Given the regulatory uncertainty in the realm of MS4 permitting, and NACWA’s commitment to advancing robust stormwater programs, the Association has developed an MS4 Stormwater Permitting Guide that will aid all municipal stormwater managers—particularly in small and medium-sized communities—as they navigate the stormwater permitting process. The MS4 Permitting Guide is also intended to assist expert stormwater professionals seeking to answer more advanced related stormwater questions. Download the MS4 Stormwater Permitting Guide today!

NACWA also published a document in 2016, entitled Navigating Litigation Floodwaters: Legal Considerations for Enacting, Implementing & Funding Stormwater Programs, which outlines current legal issues associated with user-fee funded, municipal, separate-storm-sewer-systems stormwater programs, and a summary of selected legal decisions and pending cases.  The goal of the publication is to provide greater analysis on the types of legal issues impacting stormwater funding programs – and provide an overview of trends that are emerging based on the outcomes of key cases – to inform and prepare utilities that are creating, implementing or defending a stormwater program, utility or fee.

Join the National Stormwater Advocacy Network!

The National Stormwater Advocacy Network (NSAN) is a coalition of state and local stormwater professionals that regularly coordinate advocacy activities, exchange information, network and receive timely and concise updates on state and federal stormwater policies. NSAN formed in 2015 when state and regional stormwater groups were looking to unite their voices at the national policy level. NACWA organized this grassroots coalition and provided the platform for quarterly meetings designed to provide feedback on, and ultimately influence, national stormwater policy.

Participation in NSAN is free, and benefits include:

  • quarterly conference calls with NSAN and NACWA members;
  • regular electronic updates with information on regulatory, legal, and legislative issues impacting municipal stormwater agencies; and
  • the opportunity to join the collaborative efforts of NACWA on key municipal stormwater advocacy priorities.

For more information, please contact Emily Remmel, NACWA’s Director, Regulatory Affairs & Outreach.

Waters of the United States (WOTUS) – Stormwater Exclusion

NACWA provided initial thoughts in a June 2017 letter to EPA regarding the Agency’s new effort to redefine “Waters of the United States” (WOTUS) under the Clean Water Act. NACWA’s comments on the new definition stresses the importance of maintaining and clarifying the new exclusion, found in the 2015 Clean Water Rule, for stormwater control features that are constructed to convey, treat or store stormwater. This exclusion reflects longstanding agency practice and will lead to more certainty over permitting and maintenance of green infrastructure/low-impact design stormwater features.

MS4 Phase II Remand Rule – Implementation

EPA issued the final MS4 General Permit Remand Rule—selecting the “Permitting Authority Choice” approach—with an effective date of January 2017. This approach allows NPDES permitting authorities to choose between the two types of general permits: one that is comprehensive at the outset, and one that is less detailed but requires submission of comprehensive NOIs which are approved by the agency and subject to public comment. NACWA provided EPA with comments.

As states work to implement the Remand Rule, a tangle of MS4 permit implementation issues are beginning to surface—including a shift away from the CWA’s traditionally flexible MEP mandate. As an example, Oregon recently proposed a draft MS4 Phase II permit for public comment. NACWA is concerned that the draft permit would set a dangerous precedent that will have national implications if finalized “as-is.” The draft Phase II permit fails to mention the MEP standard and requires permittees “not cause or contribute to a violation of a water quality standard.” Read NACWA’s comments here.

If your municipality or stormwater utility is having issues with implementation, please contact Emily Remmel, NACWA’s Director, Regulatory Affairs & Outreach.

Stormwater Litigation

In 2016, EPA Region 1 issued NPDES permits for small MS4s in Massachusetts with an effective date of July 2017. A nearly identical permit was issued by EPA Region 1 for small MS4s in New Hampshire with an effective date of July 2018. Massachusetts and New Hampshire are two of only four states that do not have authority to implement NPDES permits and other CWA programs. Several interested parties appealed in the U.S. Court of Appeals for the First Circuit.

The permits require MS4s to comply with water quality standards, in addition to the requirement to reduce the discharge of pollutants to the maximum extent practicable as required by the Clean Water Act (CWA), and impose strict compliance schedules for doing so.  The permits also attempts to regulate flow, in the form of specific retention requirements, which a federal court has previously held is not within EPA’s authority.

The outcome of this case is therefore likely to set an especially important precedent defining the scope of EPA’s regulatory authority relative to local governments and their MS4s, because the requirements in question were established by EPA itself. The litigation remains in abeyance with the parties continue to mediate the dispute. Read more about the background, permits, and status of the Center for Regulatory Reasonableness v. EPA on NACWA’s Litigation Tracking page.

EPA Long-Term Stormwater Planning Guide

EPA published a document, Community Solutions for Stormwater Management: A Guide for Voluntary Long-Term Planning, in October 2016 to assist states and local governments in developing and implementing effective long-term stormwater plans. (Read NACWA’s comments on the Guide).

Currently, the Guide remains in draft, as five pilot communities across the country navigate through it, along with EPA’s online Stormwater Toolkit. NACWA will continue to provide updates on its progress.

The U.S. Government Accountability Office (GAO) also issued a report in October 2017 entitled Stormwater Management: EPA Pilot Project to Increase Use of Green Infrastructure Could Benefit from Documenting Collaborative Agreements. The Report recommends EPA begin documenting collaborative agreements with the pilot communities and various stakeholders involved in its green infrastructure stormwater program. The GAO report states, “Our prior work has found that agencies that articulate their agreements in formal documents, such as memorandums of understanding, can strengthen their commitment to working collaboratively.” NACWA is tracking EPA’s implementation of this program and its potential impact on municipal stormwater utilities.