EPA Pre-Publication of Proposed Phase II MS4 Remand Rule

December 18, 2015

EPA Releases Pre-Publication of Proposed Phase II MS4 Remand Rule

On Dec. 17, the U.S. Environmental Protection Agency (EPA) released its proposed Phase II Municipal Separate Storm Sewer System (MS4) permit remand rule in pre-publication format. The official rule will be published in the Federal Register in the upcoming weeks and will begin a 75-day public comment period. The Water Environment Federation (WEF) has been working with EPA on this rule by facilitating engagement with Phase II communities and providing EPA with input.

The proposed rule is the result of a mid-September settlement approved by the Ninth Circuit U.S. Court of Appeals between EPA and the Natural Resources Defense Council (NRDC) and the Environmental Defense Center Inc. That settlement requires EPA to revise its MS4 Phase II permits, which affect small communities with populations less than 100,000. The agency is obligated to issue a final MS4 rule by November 17, 2016 under the terms of the settlement. EPA also is required to determine by May 26, 2016 if it will regulate stormwater runoff from forest roads.

The settlement resulted in the petitioners agreeing to withdraw a December 2014 lawsuit against EPA. The lawsuit focused on claims that EPA did not implement requirements of a 2003 Ninth Circuit court ruling on Phase II MS4 permits and forest road stormwater runoff. The 2003 ruling required EPA to address procedural issues within the Phase II rule related to issuing Notices of Intent under the small MS4 General Permit option. According to the 2003 case, without public review and approval of permits, the rule lacked assurance that regulated communities would reduce stormwater pollution to the maximum extent practicable as required by the Clean Water Act.

WEF will continue to engage EPA and will provide comments during the rule’s public participation period. WEF will assemble its respective committees to review the rule and provide focused comments designed to improve the proposed rule.

WEF will host a free webcast on January 19, 2016 regarding the MS4 proposed rule and discuss its potential effects on communities throughout the U.S. The webcast also will help increase the knowledge base of the regulated community and public. Look for event registration on the WEF webcast page as it becomes available.


  1. Pre-publication FR notice – This document includes the same content as the document that will be published officially in the FR. 
  2. Strikeout Version of the Modified Phase II Rule Text – This includes a strikeout version of the Option 1 rule text showing how the current Phase II rules (40 CFR 122.33, 122.34, and 122.35) would change under Option 1. The rule changes necessary to implement Options 2 and 3 are described in the applicable sections of the preamble.
  3. Compendium of EPA/State Permit Provisions with Clear, Specific, and Measurable Requirements – Includes provisions from existing and draft permits that exemplify how Option 1 has been implemented in state and EPA permits.