Phase II regulations raise questions

At some point around mid-1999, 3,600 cities with populations below 100,000 will be required to participate in EPA’s stormwater protection program. A new EPA rule, published for comment in January, would subject those “Phase II” cities to regulations similar to those that currently apply to Phase I cities with populations over 100,000.

Phase I cities already have obtained, or are in the process of obtaining, EPA-required stormwater permits. The permits, which can be obtained from EPA or from designated states, do not come cheap. EPA estimates that the cost of initial paperwork and followup record-keepingwill be between $1.4 million and $2.8 million for each of the 3,600 Phase II cities.

That is scary, especially since EPA originally estimated that permits would cost Phase I cities between $35,000 and $75,000 per permit. (The actual cost, according to Carol Kocheisen, legislative counsel for the National League of Cities, has been $650,000 per permit.)

To obtain the permits, cities must develop “Best Management Practices” (BMPs) in six areas: educating the community; creating community outreach; controlling illicit discharges into stormwater sewers; instituting erosion control practices on construction sites of between 1 and 5 acres; developing post-construction stormwater management in new development and redevelopment; and preventing pollution.

The development, implementation and enforcement of BMPs will come with a hefty price tag. For example, cities that do not own good street sweepers will have to buy them.

EPA estimates that compliance with BMPs will cost between $19.5 million and $351.4 million annually. The higher figure represents nearly $100,000 per year per small city.

Some cities, like Denver, may have to build stormwater treatment facilities. The Urban Drainage and Flood Control District (UDFCD) covers about 38 cities in the metropolitan Denver area. Three of them, Denver, Lakewood and Aurora, already have applied for Phase I permits.

Ben Urbanas, UDFCD’s chief of master planning, expects the district’s remaining 35 smaller cities to be covered by Phase II. That means the district may have to spend in the neighborhood of $2 billion to $3 billion on projects such as sculpting out land adjacent to the Platte River for use as stormwater settlement basins.

It is unclear how many cities would be similarly affected. For instance, EPA is worried about specific pollutants in stormwater (organic compounds and metals that flow off home and commercial construction sites, and motor oil and grease from service stations), but it is not mandating specific “end-of-pipe” cleanup levels for these pollutants. The emphasis is on the BMPs for the six categories, which each city develops on its own.

While there will not be pollutant-specific water emission ceilings, cities will have to specify “measurable goals” in each of the six areas when they obtain their permits. “Measurable goals” for Phase II have yet to be defined, but some environmentalists view the language of the proposed rule as unacceptably flexible.

Additionally, NLC’s Kocheisen says that, within the next two years, EPA will require states to comply with Total Maximum Daily Loads (TMDLs), or maximum pollutant levels, for rivers, streams and lakes.

That does not directly affect the Phase II program because it is driven by language in the Clean Water Act. However, some states may apply TMDLs to stormwater regardless of the progress of the protection program.