TCEQ Releases Draft Phase II MS4 General Permit

Texas Commission on Environmental Quality (TCEQ) has announced that it received EPA approval of the draft general permit for Phase II (Small) MS4s on July 31, 2018. The public notice was published in the Texas Register and 13 newspapers across the state Friday, August 24, 2018. The draft permit and fact sheet have been released, initiating the 30-day public review and comment period (August 24, 2018-September 24, 2018).

TCEQ has stated that it is still trying to meet the December 2018 deadline for permit renewal, which would create a June 2019 deadline for MS4 operators to submit updated SWMPs and NOIs. These dates are tentative and may be pushed back after feedback is received during the public comment period.

Several proposed changes to the permit apply to all Phase II MS4s, regardless of size. These include:

1. Impaired Waters Review and SWMP Update within Permit Term – MS4s will be required to perform an annual review to determine if any impaired waterbody within its permitted area has been added to the latest list of impaired or threatened waters (305(b)/303(d) list). If so, the MS4 must implement the impaired waters components of the permit within two years.
    
2. Annexed Land SWMP Update within Permit Term – If an MS4 annexes land, the MS4 must develop a plan within 90 days to implement the SWMP in the new areas within three years.
    
3. SWMP and Annual Reports on Web Site – MS4s will be required to publish the SWMP and annual reports on its public website.
    
4. Public Notice on Web Site for Significant NOCs – Major modifications to the SWMP, including delays of more than 120 days in BMP activities will require a public notice in addition to the existing requirement of a Notice of Change. The public notice may be published on the MS4’s public website.
    
5. NPDES Electronic Reporting Rule – EPA will the modify existing e-reporting system to accept applications and reports from Phase II MS4s by December 2020. Language was added to the permit to include new e-reporting requirements for Phase II MS4s.
    
6. Standard Operating Procedures – TCEQ is putting additional emphasis on the development of documented procedures for activities required as part of the stormwater management program.
    
7. Clear, Specific, Measurable Language – Effective January 9, 2017, the Phase II MS4 Remand Rule requires that Phase II MS4 general permits include language that is “clear, specific, and measurable” and use “mandatory” terms. TCEQ has removed terms from the permit such as “as necessary”, “should”, “encouraged to”, and defined the term “infeasible” to mean “not technologically possible or not economically practicable and achievable in light of best industry practices.” TCEQ noted that SWMPs will be expected to provide clear, specific and measurable goals for BMPs that are tailored specifically to the MS4.

Level 4 MS4s have several new requirements. These proposed requirements mirror requirements typical for Phase I MS4s, including:

1. Control of Floatables – Develop a program to control the discharge of floatables.
    
2. Evaluation of Water Quality Components for Flood Control Projects – Evaluate new and existing flood management projects to determine their impact on water quality. This introduces the concept of retrofitting existing flood control facilities, such as detention ponds, to include water quality protection measures.

FNI has provided Phase II MS4 program consulting services for more than 15 years since the inception of proposed permit requirements to meet EPA stormwater quality protection mandates for smaller cities, counties and other public entities. FNI has since grown to be an expert in MS4 program management, assisting clients with SWMP development, permit renewal, development of standard operating procedures for stormwater program activities, inspections, ordinance development, public outreach and education, employee training, annual reporting, agency inspection coordination, and more. FNI is closely monitoring developments relating to TCEQ’s renewal of the Phase II MS4 permit and is fully prepared to assist cities with Stormwater Management Program updates relating to changes in permit requirements. 

Review the draft permit and fact sheet, and see additional information on the TCEQ website.

If you have any questions, please contact Trey Shanks (ts@freese.com, 214-217-2221) or Wylie Gorup (wylie.gorup@freese.com, 214-217-2262).

More on TCEQ Phase II MS4 Permit
TCEQ Provides Update on Phase II MS4 Permit Renewal