The Environmental Protection Agency (EPA) is proposing to update specific data elements within the National Pollutant Discharge Elimination System (NPDES) Electronic Reporting Rule (eRule) published on October 22, 2015 that apply to regulated municipal separate storm sewer systems (MS4).
Under the current rule, NPDES permitting authorities and permittees must replace the paper-based system of reporting permit information and data with an electronic system. The rule also lists specific data elements that must be reported in EPA's national NPDES data system, the Integrated Compliance Information System. Following the issuance of the NPDES eRule, EPA promulgated changes to certain Phase II stormwater permitting requirements related to small MS4s. This rulemaking was published on December 9, 2016 and became effective January 9, 2017.
The Phase II rule changes address a decision by the U.S. Court of Appeals. That court found that EPA regulations for obtaining coverage under a small MS4 general permit did not provide for adequate public notice, the opportunity to request a hearing, or permitting authority review to determine whether the best management practices selected by each MS4 in its stormwater management program (SWMP) met the Clean Water Act requirements, including the requirement to reduce the discharge of pollutants to the maximum extent practicable.
The Phase II rule changes resolved these problems by revising the procedures to be used when issuing and administering small MS4 general permits, and by making it clear that the terms and conditions of the permit are enforceable, not the contents of the permittee-developed SWMP.
Because the description of the MS4-related data elements of the NPDES eRule were based on the regulations in place prior to issuance of the MS4 Remand Rule, it is necessary to update the NPDES eRule to reflect these changes. If left unchanged, the eRule data elements would be inconsistent with the new requirements for small MS4 permits in the Phase II regulations.
The following describes the broad categories of inconsistencies and the types of proposed changes.
Clarifications Concerning the Proper Role of the NPDES Permit as the Correct Source of the MS4's Requirements. The MS4 remand rule modified the Phase II stormwater regulations by, among other things, clarifying that it is the permit that establishes the enforceable requirements for the MS4. Some of the language used for the current data elements does not accurately reflect that the permit terms alone constitute the enforceable requirements of the permit. In order to ensure that reported information related to MS4s accurately reflects the regulations upon which they are based, the EPA proposes to clarify the descriptions of the data elements where necessary to ensure that the requirements that are reported and tracked through electronic reporting are the terms and conditions of the permit.
Corrections to data elements that reference the permittee's intentions as opposed to the permit requirements. Language in the current data elements section that describes the permittee's intentions in implementing the minimum control measure components of its stormwater program is not consistent with the current Phase II regulations. EPA's proposed rule modifies the relevant language for each of the data elements that includes this type of language to reflect that the permit establishes the enforceable requirements.
Corrections to data elements that refer to the MS4's measurable goals as opposed to its permit requirements. EPA's proposed rule removes in the current data elements references to measurable goals and replaces them with language that refers to the specific schedules or deadlines for complying with the relevant requirements of the permit.
Updates to the data elements associated with permit requirements established in addition to the minimum control measure requirements. These changes include updates to the language used for the Data Name and Data Description.
Removing data elements made unnecessary or obsolete by the modified Phase II regulations. One of the current data elements requires information from permittees that is no longer required under the revised Phase II regulations. This data element is redundant of the data element that would now be titled Municipal Separate Storm Sewer System (MS4) Information in NPDES Permit and for that reason may be removed.
To read the proposed rule in its entirety, follow this link: https://www.govinfo.gov/content/pkg/FR-2019-04-30/pdf/2019-08733.pdf.