2010-25318. Stakeholder Input on Stormwater Rulemaking Related to the Chesapeake Bay; Notice of Public Meeting

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Announcement of meeting.

SUMMARY:

The purpose of this document is to announce EPA's intent to hold several public “listening sessions” in October and November 2010 and to request input from the public on Chesapeake Bay-specific provisions of a new stormwater rulemaking. On December 28, 2009, EPA issued a Federal Register Notice announcing EPA's initiation of a national rulemaking to establish a program to better protect waterbodies from the harmful effects of stormwater discharges from new development and redevelopment and make other regulatory improvements to strengthen its stormwater program. A range of public and private stakeholders provided input through both written comments and during a series of public listening sessions.

EPA is now soliciting input specifically on potential provisions of this stormwater rulemaking with respect to the Chesapeake Bay watershed, with several public “listening sessions” to be held in October and November 2010, and an interactive Webcast scheduled for November 16, 2010. EPA seeks input on whether to consider, among other things, the following: Regulating additional stormwater discharges not currently regulated that are causing or contributing to water quality impairments in the Bay watershed; requiring additional measures targeting pollutants including, but not limited to, nitrogen, phosphorus, and sediment in the Chesapeake Bay Watershed; requiring retrofits of stormwater controls for existing development; and applying specific performance standards to discharges from new and redevelopment within the watershed. EPA also seeks input on whether to consider specific evaluation, tracking, or reporting elements. EPA also welcomes any other information that may help EPA develop regulations to better control pollutants in stormwater from the built environment to meet water quality objectives in the Chesapeake Bay Watershed.

As part of the listening sessions, EPA will also address environmental justice considerations and potential impacts and benefits that may arise as a consequence of the rulemaking. EPA invites the public to participate in these environmental justice discussions to provide feedback and share ideas related to stormwater management.

DATES:

Written comments and any supporting data must be submitted on or before December 7, 2010.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2009-0817, by one of the following methods:

• http://www.regulations.gov: Follow the online instructions for submitting comments.
• E-mail: [e-mail], Attention Docket ID No. EPA-HQ-OW-2009-0817.
• Fax: [phone].
• Mail: Water Docket, U.S. Environmental Protection Agency, Mail code: 4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Attention Docket ID No. EPA-HQ-OW-2009-0817.
• Hand Delivery: Water Docket, EPA Docket Center, EPA West Building Room 3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID No. EPA-HQ-OW-2009-0817. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2009-0817. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

FOR FURTHER INFORMATION CONTACT:

For further information on this document, contact Rachel Herbert, EPA Headquarters, Office of Water, Office of Wastewater Management at tel.: [phone] or e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Public Listening Sessions and Webcast: EPA will hold several informal public listening sessions in October and November 2010 and a Webcast on November 3, 2010 to gather input on possible Chesapeake Bay provisions of the new stormwater rulemaking. The public listening sessions will provide a review of potential considerations to strengthen the stormwater program specifically for the Chesapeake Bay watershed. Following the review, brief oral comments (three minutes or less) will be accepted at the sessions, and written statements will be accepted. EPA is also holding a discussion of environmental justice considerations related to these potential Chesapeake Bay specific provisions. See the discussion below for additional information on date, time and location of the listening sessions and webcast. The specific location names and addresses will also be posted on the Internet at http://www.epa.gov/​npdes/​stormwater/​rulemaking no later than October 11, 2010.

Listening Sessions

• October 26, 2010, 2 p.m. to 5 p.m. for the listening session and 6:30 p.m. to 8:30 p.m. for the environmental justice discussion at Radisson Plaza Lord Baltimore 20 West Baltimore Street Baltimore, MD 21201.
• October 28, 2010, 10 a.m. to 1 p.m. for the listening session and 2 p.m. to 4 p.m. for the environmental justice discussion at Hyatt Regency Chesapeake Bay 100 Heron Blvd. Cambridge, MD 21613.
• November 4, 2010, Washington, DC, 10 a.m. to 12 p.m. for environmental justice discussion and 1 p.m. to 4 p.m. for the listening session at 1201 Constitution Avenue, NW., Washington, DC 20004.
• November 9, 2010, 2 p.m. to 5 p.m. for the listening session and 6:30 p.m. to 8:30 p.m. for the environmental justice discussion at Omni Richmond Hotel 100 South 12th Street Richmond, VA 23219.
• November 17, 2010, 2 p.m. to 5 p.m. for the listening session and 6:30 p.m. to 8:30 p.m. for the environmental justice discussion at Forum Building 5th & Walnut Harrisburg, PA.

Webcast

• November 16, 2010, 1 p.m. to 4 p.m. EST, Visit http://www.epa.gov/​npdes/​stormwater/​rulemaking to register to participate in the Webcast.

I. General Information

A. How can I get copies of this document and other related information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OW-2009-0817. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although all documents in the docket are listed in an index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Publicly available docket materials are available in hard copy at the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is [phone], and the telephone number for the Water Docket is [phone].

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/​fedrgstr/​. Electronic versions of this notice and other stormwater documents are available at EPA's stormwater Web site http://www.epa.gov/​npdes/​stormwater/​rulemaking.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number. Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Section I.A.1.

3. Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark all of the information that you claim to be CBI. For CBI information on computer discs mailed to EPA, mark the surface of the disc as CBI. Also identify electronically the specific information contained in the disc or that you claim is CBI. In addition to one complete version of the specific information claimed as CBI, you must submit a copy that does not contain the information claimed as CBI for inclusion in the public document. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. It is important to note that EPA's policy is that public input, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the input contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies any input containing copyrighted material, EPA will provide a reference to that material in the version of the document that is placed in EPA's electronic public docket. The entire printed submittal, including the copyrighted material, will be available in the public docket. Documents submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Input that is mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

B. How and to whom do I submit input?

You may submit input electronically, by mail, through hand delivery/courier, or in person by attending one of the five listening sessions. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your input. Please ensure that your input is submitted within the specified comment period.

1. Electronically. If you submit electronic input as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your submittal due to technical difficulties or needs further information on the substance of your input. EPA's policy is that EPA will not edit your input, and any identifying or contact information provided in the body of the text will be included as part of the input that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your submittal due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your input.

i. EPA Dockets. Your use of EPA's electronic public docket to provide input to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/​edocket,, and follow the online instructions for submitting input. Once in the system, select “search,” and then key in Docket ID No. EPA-HQ-OW-2009-0817. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it.

ii. E-mail. Input may be sent by electronic mail (e-mail) to [e-mail], Attention Docket ID No. EPA-HQ-OW-2009-0817. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the submittal that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD-ROM. You may submit input on a disk or CD-ROM that you mail to the mailing address identified in this section. These electronic submissions will be accepted in Microsoft Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send the original and three copies of your input to: Water Docket, Environmental Protection Agency, Mail code: 4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2009-0817.

3. By Hand Delivery or Courier. Deliver your input to: Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2009- 0817. Such deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays).

II. Background Statutory and Regulatory Overview

Under section 402(p) of the Clean Water Act, the Environmental Protection Agency regulates stormwater discharges from municipal separate storm sewer systems (publicly owned conveyances or systems of conveyances that discharge to waters of the U.S. and are designed or used for collecting or conveying stormwater, are not combined sewers, and are not part of a publicly owned treatment works), stormwater discharges associated with industrial activity, and stormwater discharges from construction sites of one acre or larger. See 40 CFR 122.26(a). Under EPA's regulations, these stormwater discharges are required to be covered by National Pollutant Discharge Elimination System (NPDES) permits. EPA developed the stormwater regulations under section 402(p) in two phases, as directed by the statute. In the first phase, under section 402(p)(4), EPA promulgated regulations establishing application requirements for NPDES permits for stormwater discharges from medium and large municipal separate storm sewer systems (MS4s) (serving populations of 100,000 or more) and stormwater discharges associated with industrial activity.

EPA published the final Phase I rule on November 16, 1990 (55 FR 47990). See 40 CFR 122.26. The Phase I rule, among other things, defined “stormwater discharges associated with industrial activity” to include construction sites of five acres or larger. 40 CFR 122.26(b)(14)(x).

In the second phase, under section 402(p)(5) and (6), EPA was required to conduct a study to identify other stormwater discharges that needed further controls to protect water quality, report to Congress on the results of the study, and to designate for regulation additional categories of stormwater discharges not regulated in Phase I. EPA promulgated the Phase II rule on December 8, 1999, designating small MS4s in Census Bureau-defined urbanized areas and small construction sites (1-5 acres) and requiring NPDES permits for these discharges. 64 FR 68722.

With respect to MS4s, the Phase I regulations are primarily application requirements that identify components that must be addressed in permit applications from large and medium MS4s. The regulations require these MS4s to develop a stormwater management program (SWMP), track and oversee industrial facilities regulated under the NPDES stormwater program, conduct monitoring, and submit periodic reports. Under the Phase II rule, regulated small MS4s are generally defined as any MS4 that is not already covered by the Phase I program and that are located within the urbanized area boundary as determined by the U.S. Decennial Census. Separate storm sewer systems such as those serving military bases, universities, large hospital or prison complexes, and highways are also included in the definition of “small MS4.” 40 CFR 122.26(b)(16). In addition, a small MS4 located outside of an urbanized area may be designated as a regulated small MS4 if the NPDES permitting authority determines that its discharges cause, or have the potential to cause, an adverse impact on water quality. See 40 CFR 122.32(a)(2), 123.35(b)(3).

Phase II stormwater regulations also require that the MS4, under the permit, implement stormwater management programs (SWMPs), and require that the SWMPs include six minimum control measures. The minimum control measures are: Public education and outreach, public participation and involvement, illicit discharge detection and elimination, construction site runoff control, post construction runoff control, and pollution prevention and good housekeeping. Regulations applicable to Phase II MS4 permits are found in 40 CFR 122.30-122.37. In general, Phase II MS4 permits are general permits, although small MS4s may apply for individual permits under the Phase I rule's application provisions in 40 CFR 122.26(d).

Under section 402(p)(6), EPA is authorized to designate additional stormwater discharges to be regulated other than those already regulated, and to establish a comprehensive program to regulate them. In addition, under EPA's stormwater regulations, EPA (or States authorized to administer the NPDES program) may require NPDES permits for currently unregulated stormwater discharges by designating discharges pursuant to 40 CFR 122.26(a)(9)(i)(C) or (D).

III. Input on Preliminary Considerations for Modifying/Supplementing EPA's Stormwater Regulations in the Chesapeake Bay Watershed

By today's notice, EPA is informing the public of its preliminary considerations for modifying or supplementing EPA's stormwater regulations to specifically address stormwater discharges in the Chesapeake Bay Watershed and soliciting public input on these considerations. EPA is accepting information during the listening sessions and/or by submission of written comments as described above in order to gain early public input on stormwater practices and regulations and to inform the stormwater rulemaking. The following are options that EPA is considering for strengthening the stormwater requirements and for which EPA seeks input. These options are not mutually exclusive and may be considered in combination.

Option 1: Designate Additional Discharges to be Regulated. Stormwater discharge from large areas of impervious cover can be a significant contributor to water quality impairments in the receiving waters. As part of the national rulemaking effort, EPA is considering regulating additional discharges that are not currently regulated, but are causing and/or contributing to the degradation of water quality in the Chesapeake Bay watershed. This option could be achieved in various ways: Expanding the area of coverage for currently regulated MS4s, regulating currently unregulated MS4s, and designating discharges that do not flow through MS4s, including those that discharge to waterbodies directly. EPA is considering the need to further expand the scope of discharges regulated in the Chesapeake Bay watershed beyond those that would be regulated as part of the national rulemaking effort. EPA requests input from the public on (1) How to identify the appropriate jurisdictional boundaries for permit coverage, including the township, county, sewer district, or others; (2) how to identify areas within the Chesapeake Bay watershed that should be covered based on development pressures and to protect water quality; and (3) whether EPA should consider regulating stormwater discharges from particular types or sizes of development that are not covered by an MS4 permit.

Option 2: Require Additional Chesapeake Bay-only MS4 Provisions. EPA is considering adding new minimum measures or more specificity to the six existing minimum control measures to reduce the discharge of pollutants. The additional minimum measures could include requiring controls related to turf management, pesticide usage, fertilizer usage, and buffer widths. These additional minimum measures could be applied to all MS4s, to selected MS4s using a tiered approach based on the size of the MS4, or focused in those subwatershed or tributaries where these additional controls that are determined to be necessary to protect water quality. More specificity of the minimum control measures could include considerations for nitrogen, phosphorus and sediment, to strengthen the stormwater management programs in the Chesapeake Bay watershed and to further the implement of the Chesapeake Bay TMDL.

Option 3: Require Retrofitting of Stormwater Management Controls with Improved Stormwater Control Measures. EPA is considering adding a requirement that would make retrofitting structural stormwater controls mandatory for existing development that discharges through an MS4 and/or for large-scale development that does not discharge through an MS4. In its national stormwater rulemaking, EPA is considering a retrofit component that would apply nationally to MS4s. However, EPA seeks public input on whether to consider establishing either more stringent requirements for MS4s in the Chesapeake Bay watershed or a specific retrofit provision for discharges that discharge directly to waterbodies within the Chesapeake Bay watershed. Additionally, EPA requests information related specifically to stream and floodplain restoration as well as buffer requirements so that the rulemaking can address the physical impacts of stormwater to streams to improve overall stream functionality.

Option 4: Establish New and Redevelopment Standards. As part of the national stormwater rulemaking, EPA is considering a number of options to improve stormwater quality through standards for newly developed and redeveloped sites. In the Federal Register Notice published December 28, 2009, EPA had requested comments on what standard(s) could be applied to new development and redevelopment that would promote sustainable practices and mimic natural processes through (1) Infiltration and recharge, (2) evapotranspiration, and/or (3) precipitation harvesting and reuse. With respect to the Chesapeake Bay watershed, EPA is considering whether to set distinct parameters to these standards for discharges from newly developed and redeveloped sites. For example, if EPA promulgates a rule with a national standard, one option could be to apply that standard to more sites than would be regulated under a national rule, such as sites smaller than the minimum size that may be specified in the national rule. Another option could be a Chesapeake Bay watershed-specific performance standard that differs from the national standard.

IV. Environmental Justice Considerations

As part of the listening sessions, EPA will also address environmental justice considerations and potential impacts that may arise as a consequence of the Chesapeake Bay watershed provisions under consideration in the new rulemaking. Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. To help achieve EPA's goals for environmental justice, EPA places particular emphasis on the public health of and environmental conditions affecting minority, low-income, and indigenous populations.

EPA solicits comment for these preliminary Chesapeake Bay watershed specific provisions to assess whether they will have a disproportionately high and adverse human health or environmental effects on minority or low-income populations. The Agency plans to discuss ways that local communities can identify areas of concern and incorporate “low impact development” (LID) or “green infrastructure” practices into their stormwater management regimes. These practices, such as rain gardens, bioswales, green roofs, and pervious pavements, use infiltration, evapotranspiration, and stormwater capture and reuse to maintain or restore natural hydrologies, in order to lessen the environmental impacts of stormwater and improve public access to clean waters to improve livability. EPA is working with all stakeholders to strengthen its stormwater program and support communities in efforts to restore and maintain their urban waterbodies. Priorities for this effort include helping communities—especially underserved communities—access, improve, and benefit from their waters and the surrounding land.

EPA requests that participants in the listening sessions' environmental justice component share their ideas on the following questions focusing on stormwater issues:

• Stormwater Benefits and Challenges— What do you see as effective and ineffective strategies for managing stormwater in communities?
• Federal Government Role—How can the federal government be a more effective partner in helping to manage stormwater in your community?
• Tools—What additional tools and resources would help your efforts to successfully address the impact of stormwater in your community?

Dated: October 1, 2010.

Deborah Nagle,

Associate Director Water Permits Division.