MACo, the Maryland Municipal League, and the Maryland Municipal Stormwater Association submitted joint comments to the Maryland Department of the Environment (MDE) on its proposed reissuance of the Phase II Municipal Separate Storm Sewer System (MS4) permit on March 30. For local governments, Phase I MS4 permits apply to large high-population counties while Phase II MS4 permits apply to smaller counties and municipalities. Currently, 10 of MACo’s county members are subject to a Phase I MS4 permit and 2 are subject to a Phase II MS4 permit. Five additional counties may be subject to the MDE’s new proposed Phase II permit, making 17 of MACo’s 24 members an MS4 jurisdiction.
The comments raise a variety of issues under 4 broad headings, including:
- Many of the small MS4s identified in the draft general permit (GP) are not properly designated
- The impervious area restoration requirement must be right-sized for small MS4s
- The draft GP will require a level of effort that exceeds the “maximum extent practicable” for many permittees
- Comments on specific permit conditions should be revised or clarified
The comments also include a line by line edit of the proposed Phase II permit based on the submitted comments.
Based on the issues raised, the comments call for MDE to consider delaying implementation of the permit in order to consider the suggested changes. From the comments:
The Associations appreciate the opportunity to share our concerns with MDE. We have carefully reviewed the Draft GP and accompanying Fact Sheet. As explained in greater detail below, it is imperative that MDE makes a number of critical changes to these documents before MDE issues the GP in final form. We are concerned that permittees will not be able to reasonably comply with the GP as it is currently written. Furthermore, a number of conditions do not provide clear direction as to what the permit requires. Unless changes are made, MDE will be setting these counties, cities, and towns up for failure. The Associations hope MDE shares the goal of full permit compliance by these smaller MS4 owners and operators.
Our comments follow. Many are related to legal points that are currently under review by various circuit courts across the State. MDE may wish to consider delaying the issuance of the GP until the Department and stakeholders receive some clarity from these courts on specific issues (for example, whether MDE can require that an MS4 permittee address third-party discharges through restoration requirements).
Delay would also allow the Department and interested stakeholders to review the expectations for the permit term before it is imposed on permittees (especially small and/or newly designated MS4s). Respectfully, although permittees value their good relationship with MDE, especially in their roles as coregulators of the E&S and stormwater management programs, this cannot be a “trust me” permit. Because permittees bear the risk of an EPA audit or a citizen suit, the Associations urge MDE to make sure that all GP terms are clear and achievable before issuing the permit. We recommend that MDE hold two to three additional meetings to allow interested participants to step through the Draft GP in detail, to ask questions, and to recommend potential changes. An additional public comment period would be necessary for any substantive changes, although this will likely be needed even without additional meetings.
If MDE chooses not to delay reissuance of the GP, the Associations request that MDE carefully review and adopt the changes we propose in the attached red-lined version of the Draft GP (incorporated by reference to these comments as Attachment A).