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Related Practices

EPA Seeks Comments on Proposal to Expand Stormwater Regulation at Newly Developed and Redeveloped Sites

Beveridge & Diamond, P.C., January 14, 2010

The U.S. Environmental Protection Agency (“EPA”) recently announced its intention to establish regulations governing stormwater from newly developed and redeveloped properties that could impose significant new requirements on a broad group of stakeholders.  EPA has thus far taken two actions to meet its goal of finalizing this new rule by November 2012.  First, EPA solicited comments on an Information Collection Request (“ICR”) to be sent to all owners, operators, developers, and contractors of developed sites, owners and operators of municipal separate storm sewer systems (MS4s), and states and U.S. territories.  That comment period closed on December 29, 2009.  In a second Federal Register notice on December 28, 2009, EPA articulated and solicited comments on five specific regulatory initiatives under consideration, with written comments due on February 26, 2010, and at several public listening sessions to be held in January 2010.  Several of the listening sessions have already been held, but additional sessions will be held over the next few weeks in Denver, CO, Dallas, TX, and Washington, DC.  A virtual listening session will be held on February 3, 2010.  Go here for more information.

The new rule, permit, or both that emerges from this initiative could affect a substantial number of entities, including entities not primarily engaged in construction.  EPA proposes to send the stormwater ICR to establishments that construct residential, industrial, or commercial buildings; construct highway, streets, or bridges; and other heavy and civil engineering construction firms.  See 74 Fed. Reg. 56191 at 56192.  Because EPA has stated that the proposed stormwater ICR could be sent to any entity that develops or redevelops sites, and because the Agency has historically sought to impose controls on both construction contractors and the owners for which they work, the final stormwater rule could cover a wide range of activities and array of entities, including those not primarily or exclusively engaged in construction. 

The five specific initiatives that EPA is considering and on which it has solicited public comment suggest an ambitious agenda.  First, EPA is considering establishing specific nationally-uniform requirements such as standards to control stormwater from newly developed and redeveloped areas.  These requirements may include an obligation to ensure that post-construction runoff hydrology mimics pre-construction hydrology.  Second, the Agency seeks comments on an expanded scope of regulation that would also require the retrofitting of existing developed property.  Third, the Agency is considering upgrading the regulatory requirements for Phase II Municipal Separate Storm Sewer Systems (MS4s) to make the program for small systems more rigorous and, probably, better able to implement any new substantive requirements.  Fourth, EPA is considering expanding coverage of the federal stormwater program to areas beyond the boundaries of Census urbanized areas.  That is, the Agency is considering a geographical expansion of MS4s to include areas that are subject to rapid development, as well as those that have already been largely developed.  And, finally, EPA is soliciting comments on other potential changes to the current regulatory program, including a new requirement to require National Pollution Discharge Elimination System (NPDES) permits for stormwater runoff from developed or re-developed (and possibly existing developed) sites.  Taken together, these regulatory initiatives would expand EPA’s NPDES program into new areas including, for the first time, the control of runoff management issues that currently are addressed as an element of local land use planning.

More information about this stormwater initiative, including links to the cited Federal Register notices, is available at:  For more information, please contact Richard Davis at (202) 789-6025 ( or Ami Grace-Tardy at (202) 789-6076 (




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