Scott Smith and I attended the annual Kentucky Stormwater Association conference in Bowling Green this week.  This three day conference included speakers from around the state and country.  MS4 Coordinators from throughout the state were in attendance to learn more about stormwater and how to contol pollution that comes from stormwater.

The hot topic was EPA’s proposed stormwater rule – also known as the national post construction stormwater rule.  We received several different perspectives on what is believed to be contained in the rule.

Mr. Nathan Gardner-Andrews with the National Association of Clean Water Agencies, spoke about the rule.  Mr. Gardner-Andrews said that the rule will be a “game changer” and will shift developers’ mindsets from traditional management to Green Infrastructure/LID.  The rule will change the focus for MS4s from what comes out of an MS4 to what enters in the first place.  Specifics of the rule remain to be seen.  However, most believe that the rule will expand the area that is subject to MS4 jurisdiction through re-evaluating the definition of what is an “urban area.” This could be done by basing the definition on a statistical boundary or a watershed boundary or a hybrid of both.

It is also expected that the rule will establish performance standards for new development and redevelopment projects.  Onsite retention will be a main focus of the rule.  The size threshold for projects requiring retention will be somewhere between 5,000 square feet and 1 acre. The rule will also be flexible in the respect that retention requirements will likely be tied to a percentile storm standard and will not mandate a specific technology and perhaps off-site mitigation.  Phased implementation may also be a possibility.

There may also be an option in which large discharges outside of the regulated MS4 boundaries will be regulated.  This could apply to developments like strip malls and subdivisions.

Mr. Gardner-Andrews also spoke about the timeline for the proposed rule.  As you probably know, the proposed rule is part of EPA’s settlement with the Chesapeake Bay Foundation.  EPA has now been declared in breach of it’s settlement agreement and has entered the 90-day dispute resolution period.   Discussions are said to be slow, but ongoing.  And a rule is coming, we just don’t know when.

Finally, Mr. Gardner-Andrews discussed the potential costs and implications of the rule to municipalities.  He feels that this will have a chilling affect on development and redevelopment and in turn will affect tax revenues.  He also pointed out the fact that municipal agencies often have competing agencies and if ordinance changes are necessary, it will require city-wide efforts – not just the efforts of the MS4 coordinator.

From a Kentucky perspective, Peter Goodmann with Kentucky Division of Water, said that because a new general stormwater permit for Kentucky will be issued in 2018. Because the new federal stormwater rule is looming, it remains to be seen how the federal stormwater rule and the state’s permit will relate to one another.  Because Kentucky subscribes to the “no backsliding” principle, it makes it all the more important for Kentucky’s development community to weigh in on both the federal and state rules and be clear about what’s working and what’s not.  Mr. Goodmann stresses that the state needs flexibility in their approach for dealing with stormwater and stormwater retention.

Both speakers stressed that the timeline for the proposed rule is uncertain.  However, both speakers also stressed that attention be paid as the rule is developed and posted for public comment. Stay tuned for further developments.