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Environmental News 100,000 or more, but less than 250,000 persons) pursuant to the Phase I NPDES stormwater regulations adopted by EPA in the early 1990s. Small MS4s are considered Phase II sources and mean any MS4 not already covered under Phase I of the NPDES stormwater program, including specifically those MS4s serving populations of less than 100,000 in urbanized areas. Under the Phase II rules, small MS4 operators that are fully or partially located within an urbanized area (UAs) as determined by the 2000 Decennial Census conducted by the U.S. Bureau of Census must obtain authorization for their stormwater discharge runoff. Permit coverage is intended to be provided primarily under the small MS4 general permit. While permit coverage also is available under an individual stormwater permit, such coverage is generally undesirable, given the likely time delays and amounts of information that would be required in order to process such a permit. A map detailing UAs located in Texas is available at http://cfpub.epa.gov/ npdes/stormwater/urbanmapresult.cfm?state=TX. In addition, TCEQ has the authority to designate small MS4 operators who are outside an urbanized area as being subject to regulation. This designation may be made by TCEQ on a case-by-case basis only after it conducts an evaluative process using certain enumerated factors, which determines that controls are necessary to protect water quality. MS4 operators designated as being subject to regulation will be notified in writing by TCEQ and must seek coverage under the MS4 general permit or, alternatively, an individual permit. Submitting an NOI and Providing Public Notice Small MS4 operators subject to regulation who are seeking coverage under the small MS4 general permit are required to submit a completed NOI and a SWMP by February 11, 2008. Operators of small MS4s who are subsequently designated by TCEQ to be subject to regulation are required to submit the NOI and SWMP within 180 days of being notified in writing by TCEQ of the need to obtain permit coverage. In addition, as a result of the Environmental Defense Center v. EPA court decision, after submittal of the NOI and SWMP and upon receipt of written instructions from TCEQ, the applicant is now required to publish notice of the executive director’s preliminary determination on the NOI and SWMP in the newspaper. The notice must provide opportunity for the public to submit comments on the NOI and SWMP, which comment period will remain open for a period of 30 days from the first date the notice is published. In addition, the notice must allow the public to request a public meeting. A public meeting will be held if TCEQ determines that there is significant public interest. Discharge authorization begins when the applicant is notified by TCEQ that the NOI and the SWMP have been administratively and technically reviewed and the applicant has followed the applicable public participation provisions. In the event an NOI and SWMP are not submitted until after the February 11, 2008 deadline, authorization by TCEQ will be granted only for discharges that occur after permit coverage is finally obtained. TCEQ reserves the right to take appropriate enforcement actions for any unpermitted discharges. An application fee of $100 must be submitted with each NOI. Moreover, a permittee authorized under the small MS4 general permit must pay an annual Water Quality fee of $100 pursuant to Texas Water Code Section 26.0291 and 30 T.A.C. Chapter 205. SWMP Is Required A critical part of complying with the small MS4 general permit is the development and implementation of a SWMP, which plan is intended to prevent pollution in stormwater to the “maximum extent practicable.” To satisfy this standard, TCEQ requires regulated small MS4 operators to develop and implement, at a minimum, six different programs designed to help in preventing stormwater pollution. These programs, which will require extensive participation by, and support of, the regulated MS4 operators, address: • public education and outreach on stormwater impacts; • public participation and involvement in the stormwater management program development and implementation; • illicit discharges detection and elimination; • construction site storm sewer runoff control; • post-construction stormwater management in new development and redevelopment activities; and • pollution prevention and good housekeeping for municipal operations. Regulated MS4 operators will be required to submit schedules describing the deadlines by which these programs will be implemented over the life of the general permit. The programs must be completely implemented by the expiration date of the small MS4 general permit, which is five years after its issuance (or within five years of a small MS4 operator being designated as being subject to regulation). Implementation of the SWMP is required to commence immediately following receipt of written authorization from TCEQ. 4
As part of its implementation of these six measures, regulated small MS4 operators also will be required to develop a map of their storm sewer system. This map must include the location of all outfalls, the names and locations of all waters of the United States that receive discharges from the outfalls, and any additional information needed by the permittee to implement its SWMP. Waivers From Regulation Under the Small MS4 General Permit Exist Certain operators of small MS4 systems may avoid regulation by means of a waiver authorized by TCEQ. Two forms of waivers exist. Under Waiver Option 1, an operator of an otherwise regulated small MS4 may be excused from performance if the MS4 meets all of the following conditions: • MS4 serves a population of less than 1,000 within an UA; • MS4 does not contribute substantially to the pollutant loadings of a regulated, physically interconnected MS4 (whether small, medium, or large); or • if MS4 discharges any pollutant that has been identified as a cause of impairment to any water body to which the MS4 discharges, stormwater controls are not needed based on the waste load allocation that is part of any EPA-approved or established total maximum daily load (TMDL) for that pollutant. By comparison, under Waiver Option 2, an operator of an otherwise regulated small MS4 may be excused from performance if the MS4 meets all of the following conditions: • the MS4 serves a population of less than 10,000; • TCEQ has evaluated all waters of the United States and has determined that stormwater controls are not needed for any pollutant of concern based on the TMDL or, if the TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutant of concern; or • TCEQ has determined that future discharges from the MS4 do not have the potential to exceed Texas surface water quality standards or cause other significant water quality impacts. If a small MS4 operator is eligible for a waiver under Waiver Option 1, then the operator must complete and submit a waiver certification form. Small MS4 operators seeking to be excused from performance under Waiver Option 2 must contact TCEQ to request a waiver. The waiver exclusion process under Waiver Option 2 will require a comprehensive evaluation of all receiving water bodies and, according to TCEQ, “may be difficult to obtain.” Small MS4 General Permit Workshops Are Being Sponsored by TCEQ TCEQ is currently offering workshops on the newly adopted small MS4 general permit. The workshops will present information on the general permit and application process as well as discussion on components of the SWMP. Seating is expected to be limited and thus interested parties should contact TCEQ at 210.403.4092 to reserve a seat. Two separate workshops will be held in Houston on November 6, 2007 at the Johnson Space Center: 8:30 a.m. to 12:00 p.m. and 1:00 to 4:30 p.m. For a complete schedule, visit the TCEQ website. As stated above, the deadline for submitting an NOI and SWMP is February 11, 2008. It is imperative that small MS4 operators begin planning now in order to meet this deadline. If you have any questions regarding the Small MS4 General Permit or on stormwater permitting in general, please call Vinson & Elkins lawyer Larry Pechacek at 713.758.2004. Greenhouse Gas Update: Massachusetts and Maine Issue Draft Regulations Implementing the Regional Greenhouse Gas Initiative; and Western Climate Initiative Issues Statement of Regional Goal As summer came to a close, several more developments took place with regard to the emerging body of state and regional greenhouse gas (GHG) regulatory initiatives. Massachusetts and Maine issued draft regulations implementing the Regional Greenhouse Gas Initiative (RGGI) and the Western Climate Initiative issued a statement of regional goal. As reported in the July and August 2007 issues of V&E Environmental News, there is a growing list of states, mostly on the east and west coasts, that have decided not to wait on federal GHG legislation but rather to pursue their own regulatory initiatives to control GHG. These state initiatives are viewed as possible models for future federal GHG legislation. 5
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Environmental News - Vinson & Elkins LLP

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