Maryland Water Laws and Maryland Water Laws and RegulationsRegulations

Water Resources and Water Resources and Stormwater ManagementStormwater Management

Presentation for Halfmoon Presentation for Halfmoon Education, Inc.Education, Inc.

Jessup, MarylandJessup, Maryland

December 10, December 10, 20152015

1000 Fell Street | Baltimore, MD 212311.410.491.2808 | AndrewTDer@comcast.net

Andrew T. Der & Associates, LLCEnvironmental Consulting

Why Are We Here?Why Are We Here?

What HappensWhat Happens

Four Categories of Four Categories of EffectsEffects

• Hydrology

• Geomorphology

• Habitat

• Water Quality

HydrologyHydrology

• Increase in flow and velocities

• Increase in flooding

• Increase in frequency

• Increase in bankfull flows

GeomorphologyGeomorphology

• Stream Widening

• Channel Instability

• Erosion

HabitatHabitat

• Fish Barriers

• Loss of Substrate

• Loss of Riparian Zone

• Loss ofMicro-topography

Water QualityWater Quality• Sediments

Channel erosion can be theprimary sediment source!

• NutrientsMaintained vegetated areas & ag

• TemperatureWarm pavements andpond pools

• OtherOils, Greases, heavy metals,toxics

Water QualityWater Quality

Stream InstabilityStream Instability

Stream InstabilityStream Instability

What is a Regulated What is a Regulated Water?Water?

• Waters of the U. S. limits – affects numerous processes

• Federal definition currently includes tidal navigable water, nontidal navigable water, connecting headwaters, some ephemeral channels, and wetlands adjacent to such waters (why we have 1987 Manual) – but how far up does it go?

• Further defined by Supreme Court ruling – two most significant: “SWAANC” says jurisdiction cannot extend to isolated waters “Rapanos” says jurisdiction cannot be based on a connection

• Determines extent of Clean Water Act (CWA) Sec 401 (Water Quality Certification), 402 (NPDES), and 404 (Dredge and Fill), Section 303 (TMDL), Section 316 Power Plant, and potential basis for state and local criteria

• Maryland includes even more! Keep reading.

How Do the New Rules How Do the New Rules Define it Differently?Define it Differently?

• For complete story, go to MBIA Building Magazine

http://issuu.com/mbia11825/docs/jul_yaug15_final/12?e=15029833/13893638

• Short version is maybe not – that – much difference in Maryland

• Previous regulatory terms such as tributary, neighboring, floodplain, and riparian area now proposed to be defined by rule - may - allow more waters to come under federal authority

• Subjectivity may establish the “nexus” but we had subjectivity before – comes down to reviewer in the field?

• SWM conveyances more regulated?

• Issue likely to be moot now with recent Senate Bill blocking the rules – and NAHB just said “see you in court”.

Worst Case Scenario of Worst Case Scenario of More Regulation?More Regulation?

What is a Regulated What is a Regulated Impact?Impact?• Impacts are discharges and can be out of a pipe

or placement of material and grading for CWA

• Not all impacts created equal. Corps only regulates placement of material –

and excavation if sidecasting or dredge spoil disposal

MDE additionally regulates vegetative clearing and excavation

• Impacts authorized as Individual Permits, General Permits, MD Letters of Authorization, MD Individual Permits, MD Tidal License

Water Quality Standards -Water Quality Standards -Classification of State WatersClassification of State WatersCan affect both various modes of water and discharge permitting

• Use I & I-P: Water Contact Recreation and Protection of Aquatic Life

• Use II: Shellfish Harvesting Waters

• Use III & III-P: Natural Trout Waters

• Use IV & IV-P: Recreational Trout Waters

Two Categories of Water Two Categories of Water Quality StandardsQuality Standards

Numerical• Dissolved Oxygen, Temperature, pH, Turbidity, Fecal Coliform, Toxics

Narrative - includes CWA narrative criteria•...Protection of Aquatic Life ...Fishable ...Swimmable...

• EPA Anti-Degradation Policy (ADP):“...To accomplish the objective of maintaining existing

water quality...Nonpoint sources shall achieve all cost effective and reasonable best management practices for nonpoint source control...”

Waters, Including Waters, Including Wetlands, Permitting Wetlands, Permitting CriteriaCriteria

U. S. Army Corps of Engineers – most of time separate Corps permit not needed when within the MDSPGP-4

• CWA Section 10 – and - 404 dredge and fill permitCorps Issued MDSPGP to MDE

• Regulates waters of the U. S. only – not isolated waters, some ditches, buffers, or floodplain

• Try to fit waters of U. S. and impact to streamlined permitting categories

• Otherwise Individual Corps permit lengthy requiring additional purpose

and need, alternatives analysis, and federal public notice and interagency

comment

More Permitting CriteriaMore Permitting CriteriaMaryland Department of the Environment Wetlands and

Waterways Program - combines numerous separate state permitting regulations into one Wetlands and Waterways Permit - and adds more jurisdiction

• Nontidal Wetland and Waterways Permit for waters of the U. S. and: 100 yr. FP, isolated waters, 25’ nontidal wetland buffer

By policy can include Tier II Waters Criteria and NTWSSC both of which have own100’ buffer and special NTW E/S BMP Conditions

• Tidal Waters and Wetlands License and Permit (no regulated floodplain

or buffer)

• Coastal Zone Management Act

• Section 401 Water Quality Certification – can impose additional SWM or

BMPs but less common now

But Wait – There’s More!But Wait – There’s More!• MD Chesapeake Bay Critical Area Law

Administered directly for state and federal, but through local zoning and subdivision ordinances for overlay 1,000 feet from shoreline (MHW) and 100’ buffers from waters including wetlands – (and a 10% SWM rule in Intensely Developed Areas)

• MD State Forest Conservation LawAdministered directly for state and federal by MD DNR, but delegated to localities for local and private lands. Requires NRI or FSD which is the mechanism for 100’ or more buffers from waters. Could serve as basis for wetland permit plans as well as first SWM concept under new regulations

• Federal and State projects frequently have own programmatic agreements!

• These processes frequently affect and interface with each other (NRI/FSD, CBCA, NPDES, and state/local SWM) – but how?

And Yet, Still More! - SWMAnd Yet, Still More! - SWMStormwater Management - programs moving tointegrating the ecological and resources within

engineering criteria

• NPDES Phase I and II U. S. EPA delegated to States by GP – regulates new construction AND

existing older stormwater sources – only permitting means to retrofit. New construction = Permitted by GP under Notice of Intent (NOI) Retrofit of old existing discharges = Municipal Separate Storm Sewer

System (MS4)

• DoD and federal facility SWM mandates

• State/local Stormwater Management Regulations – new construction

• State/local Erosion and Sediment Control Regulations – new construction

What are SWM Criteria?What are SWM Criteria?Approved directly by MDE for federal and state projects and triennially approves local ordinances for local regulation and private development

• In MD - primary standard is Environmental Site Design (ESD) to the Maximum Extent Practicable (MEP) to reduce post development runoff to natural “woods in good condition” – need to treat 1 to 2.6 in rainfall depending on site and design conditions

• Virginia - primary standard starting 2014 is TP oriented management of 1 inch runoff of entire site utilizing their Stormwater BMP Clearinghouse also emphasizing nonstructural disconnections

• National – U.S. EPA Stormwater Rule and NPDES Effluent Limitation Guidelines deferred for now in 2014

How is it Applied?How is it Applied?

Two different ways

• State Erosion and Sediment Control Law Temporary practices

• State Stormwater Management Law Permanent practicesMaryland Stormwater Management Act – Incorporates SWM Manual by reference and revised 2007Formalizes “LID-like” or ESD to the MEP – and met if channel stability and predevelopment groundwater recharge rates are maintained and nonpoint source pollution is minimized…. structural stormwater practices may be used only if determined to be absolutely necessary

What Really are Best What Really are Best Management Practices?Management Practices?

Best Management Practices (BMPs) are policies, practices, procedures, or structures implemented to mitigate the adverse environmental effects on surface water quality resulting from development. BMPs are categorized as structural or non-structural. •Early Planning

•Low Impact Development, or Better Site Design, or Environmental Site Design

•Local stream buffers and setbacks

•Minimize or disconnect impervious surfaces sheet flow, open section pavement

•Devices - most significant factor affecting performance is construction and maintenance!

How are How are EngineeredEngineered BMPs BMPs Really Supposed to be Used?Really Supposed to be Used?Smaller Volumes - try

first“First Flush”Preferred and most compatiblewith ESD at-source and/orpretreatment quality control

• Infiltration– trench/basin

• Filtering– sand filter/bioretention

• Hydrodynamic Devices above or underground– Curb & gutter vortex/filter

basin• “Newer” Technology

– pervious surfaces/green roofs

Larger Volumes – if needed

When preferred is Insufficient for quantity and quality

• Stormwater Ponds– wet pond– wet ED pond– dry ED pond (for cold water

w/ pre-treatment)– multiple pond system

• Stormwater Wetlands– shallow marsh– ED shallow wetland– pond/wetland systems

Erosion and Sediment Erosion and Sediment ControlControlvs. Stormwater vs. Stormwater ManagementManagement

E/S• Construction Phase• Sediments are primary criteria• Can be temporary or “permanent”

SWM• Post-construction• Manages various pollutants• Permanent

Common E/S PracticesCommon E/S Practices• Silt Fence

• Vegetative Stabilization

• Stone lined conveyance

• Temporary Sediment Basin/Trap

• Temporary Use of Permanent Pond or other facility

Common E/S PracticesCommon E/S Practices

Common E/S PracticesCommon E/S Practices

Surface StabilizationSurface Stabilization

Sensitive ResourcesSensitive Resources

Newer TechnologiesNewer Technologies

Common Compliance Common Compliance IssuesIssues

Common Compliance Common Compliance IssuesIssuesSimilar for E/S & SWMSimilar for E/S & SWM

Construction

Maintenance

Common SWM PracticesCommon SWM Practices

• Better/Environmental Site Design

• Sheet flow management – prior to and after conveyance

• Open section surfaces

• Engineered practices

Common “ESD” PracticesCommon “ESD” Practices

The Best BMP - Work with The Best BMP - Work with ForestForest and Wetland Conservation and Wetland Conservation

Work with Site Character Work with Site Character Before DevicesBefore Devices

Bioretention & InfiltrationBioretention & Infiltration

Bioretention & InfiltrationBioretention & Infiltration

Landscaped Bioretention Landscaped Bioretention FacilityFacility

Hydrodynamic DevicesHydrodynamic Devices

Get CreativeGet Creative

Pond and WetlandsPond and Wetlands

Pond and WetlandsPond and Wetlands

Transition HabitatTransition Habitat

Transition HabitatTransition Habitat

SWM & Amenity SWM & Amenity CompatibleCompatible

Detention or Dry Pond – Detention or Dry Pond – Not!Not!

Enhance & Plant Dry Ponds Enhance & Plant Dry Ponds AlsoAlso

Stream Stabilization as a Stream Stabilization as a BMPBMP• Can be effective

watershed sediment control practice

• Can be local approval requirement

• Can be a traded credit

• Can be out-of-kind wetland mitigation

““Newer” TechnologiesNewer” Technologies

What is NPDES?What is NPDES?

• 1972 amendments to the Federal Water Pollution Control Act (Clean Water Act) prohibit the discharge of any pollutant to waters of the United States from a point source unless the discharge is authorized by a National Pollutant Discharge Elimination System (NPDES) permit.

• Past efforts to address stormwater discharges under the NPDES program have generally been limited to certain industrial categories

NPDES BackgroundNPDES Background

• Stormwater out of a pipe was not necessarily a point source discharge

• National Urban Runoff Program (NURP) – first meaningful stormwater study showed stormwater impacts

• In response to water quality concerns, in 1987, the EPA was required to issue regulations addressing stormwater discharges under the NPDES program - Phase I & II Permitting

Phase IPhase I

• NPDES established first regulations in 1990 permit requirements for existing stormwater:

1) existing “medium” and “large” MS4 – individual permits by State to locality with conditions

2) new construction activity disturbing 5 (changed to 1) acres of land or greater – general permits

3) Industrial activities and operations (utilities, plants, maintenance yards, etc.).

• Many continue to operate under Phase I

MDE Phase I Permit MDE Phase I Permit ConditionsConditions• Effectively prohibit pollutants in stormwater discharges

as necessary to comply with water quality standards

• Assess existing programs and ID licit and illicit Sources

• Implement SWM and E/S

• Hot spots, Trash and litter

• Watershed Management and Restoration (often needs its own water and state wetland permit!)

• Utilize current collected best management practice (BMP) data to modify and improve programs

• Monitoring and mapping

• Reduction in impervious surfaces

• Fiscal Analysis and Annual Reports

Phase IIPhase II

• In 1999, new rule automatically covers on a nationwide basis all existing small MS4s located in urbanized areas and new construction activities of 1 acre or more

• Most localities already complying

• Can authorize industries or facilities

• Have more flexible permitting optionsUtilizing existing programs in placeCombine with other Phase IICombine with a Phase I

Six Requirements of Six Requirements of Phase IIPhase II

• Personnel education/outreach• Public involvement/participation• Illicit discharge detection elimination• Construction site stormwater runoff

control (E/S)• Post construction stormwater

management• Pollution prevention/good housekeeping

Phase II Can be Phase II Can be SubjectiveSubjective• Monitoring, public outreach and BMPs can be flexible as

long as:

– Reduces pollutants to the maximum extent practical

– Protects water quality

– Satisfies CWA

– Many existing SWM programs are satisfactory

– Newer MS4 permits will be templates

How does NPDES Affect How does NPDES Affect New Construction?New Construction?• Compliance via NOI with NPDES Stormwater

permits is primarily through BMP implementation

• While congruent in many ways, E/S and SWM plans are not necessarily the same as NPDES compliance from a regulatory perspective

• In MD E/S and SWM plans can usually serve as compliance with NPDES requirements – but not always!

How is NPDES Similar or How is NPDES Similar or Different than SWM?Different than SWM?

• NPDES Compliance is more than SWM and accomplished by NOI if one acre or more disturbance along with Stormwater Pollution Prevention Plan (SWPPP) – what is it and when is one required?- Includes E/S and SWM plans (structural) but also includes ESD and nonstructural including other pollutant management considerations (spillage, storage, litter), monitoring records – E/S monitoring

- In MD, SWPPP not typically required under general permit for development, but is for plants, industrial activities, institutional property – special rules and additional discharge compliance monitoring

• Potential vs. Actual Discharges – treated the same?!

How Does New How Does New Construction Comply Construction Comply with NPDES?with NPDES?Compliance with NPDES General Permit (GP) requires,

in addition to customary E/S plans:

• Water quality and sensitive construction techniques for waters with an established Total Maximum Daily Load (TMDL)

• If significant sediment discharge, then additional inspection, evaluation and installation of site controls

• Control measures that minimize pollutants as necessary to meet applicable water quality standard

• Conduct weekly inspections and the next day (changed from next business day) after a rainfall event resulting in runoff

• If there is “an excursion” above any applicable water quality standard, modify controls to indicate receiving water is attaining water quality standards

• Hot topic - Potential for flocculent or turbidity controls?

Construction ComplianceConstruction Compliance

• Usually oriented to E/S compliance

• Locality is primary inspector

• State (and occasionally EPA – yikes!) inspect also for NPDES, E/S and Wetland and Waterways Permit

• Corps inspects for Wetland and Waterways Permit

Newer Compliance Newer Compliance RequirementsRequirements

• Usually oriented to post-construction assessment

• Third party quality control construction monitoringExample = SHA – exceeds SWM and NPDES

• Specific SWM device maintenance conditions

• Post-construction BMP performance can be required

• Industrial site SWPPP have more effluent monitoring

• Used also for MS4 and Point Source Compliance

• Can be state requirement

• Preconstruction, construction and post-construction

• Macroinvertebrate Studies (from WWTP & mining)

• Chemistry• Geomorphology• Groundwater

Post-Construction BMP and Post-Construction BMP and Water Quality MonitoringWater Quality Monitoring

What does a TMDL What does a TMDL Really Mean for Really Mean for Goodness Sake?Goodness Sake?• CWA Section 303 mandates a

“pollution diet” for the Chesapeake Bay for N & P – what does this mean for SWM?

• Largest most complex TMDL in the country, covering the 64,000 s. m. watershed in six states & DC = Watershed Implementation Plans (WIP) in progress now

• In-kind and out-of-kind mitigation – this combined with local NPDES MS4 compliance and permit mitigation drive much of stream restoration and SWM retrofit today – but who is tracking?

Watershed Implementation Watershed Implementation PlansPlans

Chesapeake Bay Chesapeake Bay SegmentshedsSegmentsheds

Hot Issues under Hot Issues under Deliberation NowDeliberation Now• What should be most sound

priorities of focus? Sediments, P, O, Flow?

• ESD (and LID) versus Smart Growth versus impervious surface criteria?

• TMDL model assumptions challenged - litigation

• Financing TMDL WIPs (rain tax)

• TMDL AFG Offset credits vs. existing SWM criteria

• Nutrient trading

ResourcesResources• Maryland Department of the

EnvironmentFirst stop for NPDES Phase I and II, MS4 Permits, Construction Permits, Industrial Discharge Permits, Waterway and Wetland Permits

• MD DNR Forestry

• MD DNR Critical Areas Commission

• Local governments

• If individual permit, U. S. Army Corps of Engineers

• MD DNR for Rare Species, Habitats, Stream Biomonitoring data

• U.S. EPA for national standards and effluent guidelines