February 9, 2010

Glenda L. Dean, Chief
NPDES Permit Branch, Water Division
Russell A. Kelly, Chief
Permits and Services Division
Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, AL 36130-1463

Thomas McGill, Chief, Stormwater and Non-point Source Section
Michael Mitchell, Stormwater and Non-point Source Section
U.S. Environmental Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, GA 30303

Via U.S. Mail and Electronic Mail: mitchell.michael@epa.gov and gld@adem.state.al.us

Re: Draft Phase II MS4 General Permit issued for public comment on January 14, 2010
ADEM Public Notice 605

Dear Ms. Dean, Mr. Kelly, Mr. McGill and Mr. Mitchell:

The Cahaba River Society (“CRS”), the Southern Environmental Law Center ("SELC"), the Black Warrior Riverkeeper, the Mobile Baykeeper, the Choctawhatchee Riverkeeper, River Network, Friends of Shades Creek and the Alabama River Alliance present the following comments on the draft Phase II MS4 General Permit (the “draft GP”) released by ADEM for public comment on January 14, 2010.

The draft GP represents a positive step toward bringing Alabama Phase II communities into compliance with EPA regulations implementing the federal Clean Water Act. While the draft GP needs further improvements as outlined below, we would like our initial comment to be one of commendation for ADEM’s effort.

We are pleased with ADEM’s implicit recognition that it cannot, as a practical matter, fully implement on behalf of Phase II communities the minimum control measures regarding Construction Site Stormwater Runoff and Post-Construction Stormwater Management. As we have noted in many past communications with ADEM and EPA, ADEM has neither the staff nor the local expertise, presence, and involvement with the development review process needed to implement these two minimum control measures on behalf of Phase II MS4s. Although Section IV.A.1 still contemplates the possibility that ADEM might conduct a stormwater management program on behalf of a Phase II MS4, the requirements laid out for Phase II MS4 compliance with the Construction and Post-Construction minimum control measures specify a level of activity that can only be accomplished by local governments.

We also strongly support the draft GP’s recognition of low-impact development (“LID”) stormwater management techniques and the regulatory requirements for greater public participation in Phase II MS4 stormwater management programs. As noted below, the draft GP should be further improved to promote more effectively both LID techniques and the public participation required to ensure that Phase II communities properly implement their programs as required by the General Permit.

Our comments below focus first on LID implementation and then on improvements to public participation requirements -- particularly in the areas of ensuring that public participation in development and amendment of the stormwater management program (“SWMP”) occurs and making documents readily available to the public. Finally, we note specific inadequacies in the permit and recommend additional language needed to make the permit more effective and to bring it into compliance with federal and state laws.

I. The Phase II Permit must ensure that permittees require LID in new development and redevelopment projects because LID is necessary to reduce stormwater discharges to the “maximum extent practicable” (“MEP”).

EPA’s rules promulgated pursuant to 33 U.S.C. § 1342(p) (2006) require regulated entities to “develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants . . . to the maximum extent practicable, to protect water quality, and to satisfy the appropriate requirements of the Clean Water Act.” 40 C.F.R. §122.34(a) (2006) (emphasis added). Based upon existing case law, “maximum extent practicable” means to the fullest degree technologically feasible for protection of water quality, except where costs are wholly disproportionate to the potential benefits. See Haeuser v. Department of Law, 97 F.3d 1152, 1155 (9th Cir. 1996) (“practicable” has been defined as “capable of being done: feasible”); Rybachek v. United States EPA, 904 F.2d 1276, 1289 (9th Cir. 1990) (EPA must select best level of technology unless costs are “wholly disproportionate” to the benefits); Ass’n of Pac. Fisheries v. United States E.P.A., 615 F.2d 794, 805 (9th Cir. 1980). In the stormwater context, these stringent definitions of the term “practicable” are further narrowed by the use of “maximum,” clearly indicating that the measures to be required must be more protective than standard practice, or than ordinary measures, especially where those measures are failing to protect water quality.

LID practices fall within this category of measures that are more protective than current standard practices and should be required in NPDES Phase I and II stormwater permits. Whereas conventional stormwater controls are designed to collect and convey stormwater off of a site, LID practices are meant to mimic the predevelopment hydrograph on a site using practices, including but not limited to bioretention areas, permeable pavement, stormwater capture and reuse, green roof design, and grassed swales. LID site design also incorporates the protection of wide naturally-vegetated riparian buffers and standards that actually or effectively minimize impervious surface. EPA states that LID practices offer “both economical and environmental benefits.” US EPA, Office of Water, Low Impact Development (LID): A Literature Review, EPA-841-005, at 2 (October 2000). “LID measures result in less disturbance of the development area, conservation of natural features and can be less cost intensive than traditional stormwater control mechanisms.” Id. EPA’s own study, "Reducing Stormwater Costs through Low Impact Development (LID) Strategies and Practices,” U.S. EPA, (December 2007), as well as model projects in our region, prove that LID practices have provided significant cost-savings over conventional storm water practices. Practices that cost less than and reduce pollution more than traditional practices should be required by ADEM in NPDES stormwater permits.

In February 2009, the Washington Pollution Control Hearings Board issued a ruling requiring MS4s around Puget Sound to take more aggressive steps to reduce stormwater runoff. The Board struck down provisions in two Phase II stormwater permits as inadequate and concluded that greater use of "low impact development" techniques is required to meet the Clean Water Act’s MEP standard. Puget Soundkeeper Alliance, et al. v. State of Washington, Department of Ecology, PCHB Nos. 07-022, 07-023, 46-48 (Feb. 2009). The Board concluded that the permits' focus on traditional engineered stormwater management facilities like detention ponds was inadequate to protect water quality and meet Clean Water Act requirements. Id. at 47. The Board further concluded that the permits failed “to require that the municipalities control stormwater discharges to the maximum extent practicable and does not require application of all known, available and reasonable methods to prevent and control pollution, because it fails to require more extensive use of low impact development techniques.” Id.

While we appreciate the LID measures suggested in the draft GP Part III.B.5.b(3) & (4)ii & iii (e.g. encouraging infill development, minimizing impervious areas, building bioretention devices, etc.), we believe that adoption of LID techniques should be mandatory for Phase II permittees in Alabama given the regulatory language, study results, and case law described above. Thus, the introductory language of Part III.B and the language of Part III.B.5.b should require permittees to incorporate LID for new development and redevelopment projects.

To accomplish this, “where feasible” should be replaced by “to the maximum extent practicable” in the first introductory sentence of Part III.B. In addition, this sentence (with “where feasible” replaced by “to the maximum extent practicable”) should be repeated as a minimum requirement in the rationale statement for the post-construction SWMP under Part III.B.5.b, including substitution of this phrase for the vague wording in III.B.5.(b)2. As demonstrated above, the term “maximum extent practicable” is meant to encompass more than just the question of feasibility. Focusing solely on feasibility effectively writes the word “maximum” out of “maximum extent practicable.” LID is an effective and essential way to control stormwater runoff and can result in lower overall costs for the permittee to meet stormwater requirements.

For this reason, we also request that the definition of Low Impact Development found at Part VI.S.6. include an additional sentence as follows: “Because LID design techniques are tested, available and reasonable methods to control and prevent pollution from stormwater run-off, Phase II permittees must ensure that LID techniques are used for on-site management of post-construction stormwater volumes to the maximum extent practicable.”

We further request that Part III.B.5.(a)3 be revised to require the adoption of adequate legal authority to implement LID, with subsequent incorporation of the specific performance standard discussed below.

Finally, we note that Part III.B.5 on the post-construction minimum control measure consistently refers only to water quality. Controlling increases in volume as well as rate of runoff is essential in order to prevent erosion and protect water quality. The permit should specify the necessity to minimize impacts to runoff rate and volume to the maximum extent practicable in III.B.5.(a)1 and III.B.5.(b) 2 and should include this in the measurable goals in III.B.5.(b) 7.

II. The Phase II General Permit should include a timetable for developing a post-construction stormwater volume reduction performance standard that Phase II permittees will be required to implement within two years of issuance of the final General Permit.

MS4 permits recently developed in other states include objective performance standards for reducing stormwater runoff volumes. For example, these permits may establish specific percentages of stormwater that must be managed on-site using LID methods, or may designate a maximum amount of allowable impervious area, or may require that post-construction runoff volumes not exceed pre-development runoff volumes. See, e.g., MS4 permits for West Virginia and Ventura County, California.

Such an objective standard would provide a helpful “bright line” measurement tool, necessary to allow Phase II permittees to document compliance as they implement the post-construction program required by Part III.B.5 of the draft GP. ADEM should begin the process of developing such a performance standard appropriate for Alabama and, through the Phase II General Permit, notify permittees that they will be required to institute this performance standard or an equivalent standard appropriate to local conditions within two years. By incorporating a timeline within this Phase II General Permit for performance standard development and permittee adoption thereof, ADEM will ensure that permittees will have time to understand the development standard idea and yet will also ensure that development of such a useful tool will not be delayed until the next Phase II General Permit is issued in 2015 (or later).

The organizations presenting these comments offer their knowledge and support for an ADEM process to develop a feasible performance standard for post-construction.

III. To fulfill their public involvement and participation requirements, Phase II permittees must provide both opportunities for public involvement in SWMP development and easy public access to reports and documents produced to meet General Permit obligations.

A. The General Permit should require permittees to develop opportunities for the public to participate in drafting and updating SWMPs.

In Part III.B.2(b), the draft GP requires permittees to “consider” developing opportunities for the public to participate in SWMP drafting and updating. This word is not strong enough. Permittees can “consider” any number of options without actually allowing public participation to occur. In order to ensure that permittees provide for public participation in the drafting and updating of the SWMP, the Phase II General Permit should delete the word “consider” from the first sentence of Part III.B.2(b) and substitute in its place “shall develop.” Parts III.B.4(b) and III.B.5(b) should also be revised to require that permittees’ rationale statements include information about public involvement procedures used in development of the construction site stormwater control program and the post-constructon SWMP. Finally, we request that Parts IV.B.1 & 2 be revised to require public involvement in annual review of SWMPs and any updates to SWMPs.

B. The General Permit should require permittees to provide public internet access to all reports and documents generated to meet permit obligations.

In the draft GP, ADEM has taken some positive steps to repair a woefully inadequate record of providing public access to documentation generated to meet NPDES requirements. For example, the draft GP implicitly acknowledges that the internet now exists as a medium that can facilitate the distribution of documents to the public. We welcome this acknowledgement because a publicly-accessible internet site is the easiest way for government agencies to provide documents to the public and for members of the public to access those documents.

We applaud ADEM’s steps in the right direction but note several inadequacies and inconsistencies regarding public access to documents that should be corrected in the final General Permit. These corrections are essential for permittees to fulfill their obligations under the second minimum control measure (public participation and involvement), because without easy access to documents such as SWMPs, annual reports, enforcement and monitoring results, and TMDL allocation calculations, the public cannot determine whether or not a Phase II permittee is fulfilling its permit obligations. Adequate and effective public participation is not possible without easy access to relevant information.

For this reason, the following revisions should be made to the draft GP:

1. The draft GP Part III.B.2(b)8 states that permittees shall make their SWMP and annual reports available to the public “when requested.” It states that permittees “should” publish these documents on their website, if available, or else submit the documents to ADEM for electronic distribution in accordance with ADEM’s public records process.

Given the subjective nature of the word “should,” the well-documented difficulties that members of the public have had with past document requests through ADEM’s public records process, and the potential cost of obtaining records through ADEM, this provision is not clear enough or strong enough. It would be much simpler and more forthright for this provision to state simply that permittees shall make their SWMP and annual reports available to the public on a website. Many current Phase II communities already have such websites. See, e.g., www.ci.tuscaloosa.al.us; www.digitaldecatur.com; www.sheffieldalabama.org; www.phenixcityal.us; www.cityoftuscumbia.org. Public posting of such documents on community websites is increasingly the norm throughout the nation. ADEM should not hesitate to require such website posting of Phase II SWMPs and annual reports.

If ADEM believes that it is economically infeasible to require all permittees to develop such websites, then ADEM should categorically state that it will post all SWMPs, annual reports, and contact information for each MS4 on its own website so that the public may review them and easily call the appropriate person with questions -- without having to go through an onerous public records process.

2. Other documents, reports and data delineated in the Phase II General Permit should also be made easily electronically available to the public. Revisions to the GP that will require electronic posting of documents should also be made to these sections:

• Enforcement case documentation under Part III.B.4(f);
• Monitoring plans, results, evaluations, and calculations under Part IV.D; and
• Data, documentation and records required under Part V.A & B.

IV. Permittees should be required to develop an enforcement response plan (“ERP”) immediately as part of their SWMP, not within the five year cycle of the permit.

Effective enforcement is an essential part of a successful stormwater management program. Why, under Part III.B.4(d), should permittees be given five years to come up with an enforcement response plan (“ERP”), when, under Part II.A, all other aspects of the SWMP must be developed and submitted with the Notice of Intent (“NOI”) within 90 to 180 days of the date of permit issuance or of designation notification by ADEM? This separate ERP requirement and delayed deadline create confusion as to what enforcement program steps are required of permittees and by what date they must be taken, and would likely lead to a delay in implementation of effective enforcement. For this reason, we request that Part III.B.4(d) be eliminated and the ERP be included as a minimum requirement of the SWMP as outlined under Part III.B.4 (a)(7-9) & (b)(2), consistent with all other aspects of the SWMP.

V. Several additional provisions of the General Permit require clarification or improvement.

The following provisions of the draft GP require clarification or improvement:

A. In Part I.E.1, the phrase “in discharges … to the MS4 to cause or contribute to violations” should be revised to read “in discharges … to the MS4 that cause or contribute to violations…”

B. The deadline for NOI/SWMP submittal by existing Phase II MS4s in Part II.A.1 needs to be clarified. As currently written, this section appears to require existing Phase II MS4s to submit their NOI/SWMP at the end of the five year permit period (“within 90 days before the expiration of this permit”). We assume that the intent is for existing Phase II MS4s to submit a new NOI/SWMP meeting the requirements of the revised General Permit within 90 days of effective date of permit coverage. This needs to be clarified in the wording of Part II.A.1.B.

C. Part II.C.2 should require dischargers to provide a MS4 system map as part of the NOI.

D. As part of the NOI, dischargers should be required in Part II.C.2. to list whether any receiving waters are Outstanding National Resource Waters as described in Ala. Admin. Code r. 335-6-10-.04 and -.12 , Outstanding Alabama Waters as listed in Ala. Admin. Code r. 335-6-11-.02, and other Tier 2 waters as described in 335-6-10-.12.

E. MS4s must demonstrate in their SWMP that they are in compliance with Alabama’s antidegradation policy (Ala. Admin Code r. 335-6-10-.04) and implementation procedures (Ala. Admin Code r. 335-6-10-.12) regarding Tier 1 waters (not harming existing uses classified in Ala. Admin Code r. 335-6-11-.02), Tier 2 waters (including Outstanding Alabama Waters) and Tier 3 waters (Outstanding National Resource Waters – for future designations, since there are currently none in Alabama) as identified in the NOI.

F. So that ADEM can require SWMP updates as state requirements change, Part IV.B.3.(c) should read “… to comply with new Federal or State statutory requirements …”

G. Part III.B.4(a)4 requires that construction program procedures for site plan review must be consistent with Alabama Administrative Code 335-12-6 (the rule that codifies the Construction General Permit (“the CGP”)). As stated in our comment letter on the CGP dated January 27, 2010, we think that the CGP application procedures should be made consistent with the MS4 permits. In other words, MS4s should issue their permits to construction site operators before ADEM approves the operator’s Notice of Intent (“NOI”) and Construction Best Management Practices Plan (“CMBPP”) and allows construction to commence under the CGP. As part of its CGP approval process, ADEM should require construction site operators to submit simultaneously with their NOI and CBMPP a final permit from the relevant MS4 showing that the MS4 has reviewed and approved their construction and post-construction stormwater management plans.

H. Our experience is that many municipal inspectors have not been trained in how to inspect construction sites for stormwater violations. For this reason, we request that minimum certification or training requirements for inspection staff be incorporated into Part III.B.4(c).

I. Part III.B.5(b)5 requires permittees without existing regulatory mechanisms addressing post-construction runoff to describe “a plan and a schedule” for developing that regulatory mechanism. In order to minimize delays in developing this essential part of the post-construction requirements, we request that Part III.B.5(b)5 state a deadline for development and implementation of that mechanism, e.g. within 18 months of the effective date of permit coverage. Because the draft GP already gives permittees one year to develop a post-construction program under Part III.B.5, permittees should require no more than an additional six months to develop and implement their regulatory mechanism.

J. Part IV.C requires substantial revision. The title of this section is “Discharge Compliance with Water Quality Standards.” Given the title, it seems only logical that the section would require discharges to comply with applicable water quality standards. As it’s written however, the section seems to exempt compliance with applicable water quality standards if a permittee has implemented BMPs. A so called “BMP defense” is in direct violation of both federal and state laws, which prohibit the issuance of an NPDES Permit that will “cause or contribute to a violation of water quality standards.” 40 C.F.R. § 122.4(i); Ala. Admin Code r. 335-6-6-.04(i); see also Ala. Admin Code r. 335-6-10-.06 (describing the minimum conditions applicable to all state waters “at all times and at all places”). This section should be revised to read as follows: “No discharges authorized by this permit shall cause or contribute to a violation of Alabama’s water quality standards, as provided by Ala. Admin Code r. 335-6-10.”

K. Part IV.D. should have more specifics about the timing and procedures regarding necessary adjustments to the SWMPs and actual enhancements of BMPs when discharge is to impaired or TMDL waters and current practices are resulting in violations of water quality standards.

L. Part IV.D.1. states that the permit does not authorize discharges into impaired waters and defines such waters as those identified on the State’s 303(d) list. However, waters with an adopted TMDL are removed from the 303(d) list. For this reason, the following final clause should be added to the second sentence of Part IV.D.1: “or for which an EPA-Approved TMDL has been developed.”

M. Part IV.D.2(h) requires permittees with discharges into impaired waters to follow the process outlined in Part IV.D.2(d-h) until an approved monitoring plan shows that TMDL allocations are being met for “two continuous monitoring cycles.” The duration of those monitoring cycles is unclear. We request that the time allotted for a monitoring cycle be clearly stated in the General Permit. We also request that some monitoring still be required after an approved monitoring plan shows that TMDL allocations are being met. This would assure that TMDL allocations continue to be met over time rather than only once. Part IV.E. should also include a provision that allows any interested person to petition the Director to require any discharger to apply for and obtain an individual NPDES permit, as provided in 40 C.F.R. § 122.28(b)(3).

N. Part V.A.1 states that permittees discharging into impaired waters “may” have monitoring requirements. This conflicts with Part IV.D.1 (b) & (c) which state that such permittees “must” include monitoring plans in their SWMPs. For this reason, we request that “may” be eliminated from the second sentence of Part V.A.1. Monitoring will be necessary to evaluate the effectiveness of control measures for impaired waters.

O. Because pollution from in-stream erosion caused by increased volumes of stormwater runoff is a major problem in many impaired Alabama watersheds, we request that Part V.A include requirements for monitoring and assessing stream geomorphology and stability changes.

P. Part V.B.1 requires permittees to retain required records for three years or “the term of this permit, whichever is longer.” Given ADEM’s history of delay in reissuance of general permits, this language should be revised to state “the term of this permit, including any administrative continuation, whichever is longer.”

Q. Under Part V.C.1(p), permittees who claim that they do not have adequate legal authority to implement any part of the Phase II MS4 permit requirements must submit to ADEM “written notification based on applicable State Law precluding implementation of any minimum measure or component” of the Phase II permit. We request further clarification in the Phase II permit as to how ADEM will respond to any such “written notification” by a permittee. We also caution that if there are any such barriers in State Law preventing permittees from meeting permit requirements that are also minimum requirements under the Clean Water Act, this is grounds for withdrawal of delegation of the water program. ADEM should take action expeditiously to cure any such barriers to permittee compliance.

We thank you for taking these comments on the draft Phase II MS4 General Permit into consideration. We are pleased with the progress that this draft shows over the last Phase II permit and look forward to seeing an effective final permit that will help us to protect and restore Alabama’s water resources.

Sincerely,