Stormwater Stormwater Management: Management: Past, Present and Past, Present and
FutureFutureJesse W. Poore, CFMJesse W. Poore, CFM
Felsburg Holt & UllevigFelsburg Holt & Ullevig
IECA Conference – Great Rivers IECA Conference – Great Rivers Chapter Omaha, NEChapter Omaha, NE
October 28, 2010October 28, 2010
Presentation OutlinePresentation Outline
The Story of Laws and Litigation
The Rules and the Logic Behind Them
Permits, Standards, and the MS4s Future
The Laws Set the The Laws Set the StorylinesStorylines
1948 Water Pollution Control Act1948 Water Pollution Control Act 1952 and 1955 Amendments1952 and 1955 Amendments 1961 FWPCA Amendments1961 FWPCA Amendments 1965 Water Quality Act1965 Water Quality Act 1966 Clean Water Restoration Act1966 Clean Water Restoration Act 1970 Reorganization Plan # 31970 Reorganization Plan # 3 1970 Water Quality Improvement 1970 Water Quality Improvement
ActAct
1948 Water Pollution Control 1948 Water Pollution Control Act 1952 and 1955 Act 1952 and 1955
AmendmentsAmendments P.L. 80-845 : Prepare plans for eliminating or
reducing the pollution of interstate waters and tributaries and improving the sanitary condition of surface and underground waters.
Plan Goals: improvements necessary to conserve waters for public water supplies, propagation of fish and aquatic life, recreational purposes, and agricultural and industrial uses.
Funding: construct treatment plants
1961 FWPCA 1961 FWPCA AmendmentsAmendments
P.L. 87-88: Federal agencies consider during the planning for any reservoir, storage to regulate stream flow for the purpose of water quality control.
Funding: Research programs related to determining effects of pollutants and treatment methods and to assess water quality in the Great Lakes.
1965 Water Quality Act1965 Water Quality Act
States adopt water quality standards for interstate waters with federal approval.
States adopt implementation plans
Little enforceability, little effectiveness
1966 Clean Water 1966 Clean Water Restoration ActRestoration Act
P.L. 89-753: Comprehensive study of the effects of pollution, including sedimentation
Recommendations for a comprehensive national program
Imposed $100 per day fine for pollution
1970 Reorganization 1970 Reorganization Plan # 3Plan # 3 Created the Environmental Protection
Agency (EPA) Identify pollutants. Trace them through the entire ecological
chain, observing and recording changes in form as they occur.
Determine the total exposure of man and his environment.
Examine interactions among forms of pollution.
Identify where in the ecological chain interdiction would be most appropriate.
1970 Water Quality 1970 Water Quality Improvement ActImprovement Act
P.L. 91-224: Prohibitions on discharges of oil and authorization to determine quantities of oil which would be harmful.
Mandated development of regulations for substances other than oil.
Required performance standards for marine sanitation devices.
FWPCA 1972 FWPCA 1972 AmendmentsAmendments
P.L. 92-500: Restore and maintain the chemical, physical, and biological integrity of the Nation's waters.
“Eliminate all discharges of pollution into navigable waters by 1985”
Extent and complexity of pollution problem far greater than congress could have foreseen
1972 FWPCA Floor 1972 FWPCA Floor DebateDebate
Sen. Joseph Montoya (D-NM): “Your committee has placed before you a tough bill. This body and this Nation would not have it be otherwise. Our legislation contains an important principle of psychology. Men seldom draw the best from themselves unless pressed by circumstances and deadlines. This bill contains deadlines and
it imposes rather tough standards on industry, municipalities, and all other sources of pollution.”
1972 FWPCA 1972 FWPCA AmendmentsAmendments
Shift from state to federal standards by introducing Effluent Limitation Guidelines
Introduction of § 402 – NPDES Permitting Provisions for pollutant discharge:
Point source limits based on State standards State issuance of water quality standards Guidelines to evaluate nonpoint sources Water quality inventory requirements Toxic and pretreatment effluent standards
Important DefinitionsImportant DefinitionsPoint SourcePoint Source
Point Source: “Any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”
Term does not include agricultural stormwater discharges, return flows from irrigated agriculture.
Important DefinitionsImportant DefinitionsDischarge of a PollutantDischarge of a Pollutant
(A) any addition of any pollutant to navigable waters from any point source
(B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.
Important DefinitionsImportant DefinitionsPollutant and PollutionPollutant and Pollution
Pollutant: “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
Pollution: the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water.
TURBIDITY or VELOCITY?
Regulations Define Game Regulations Define Game RulesRules
Maryland v. EPA, 530 F.2d 215 Require states to take on federal standards
Brown v. EPA, 521 F.2d 827 EPA to compel implementation and
enforcement NRDC Inc v. M Costle
Administrative feasibility and Technical feasibility
American Paper 996 F.2d 346 Narrative terms acceptable for ELGs
1977 Clean Water Act1977 Clean Water Act P.L. 95-217: Development of a Best
Management Practices Program as part of the state areawide planning program
Procedures for State assumption of the regulatory program
Updates to Effluent Limitation Guidelines for conventional pollutants and priority toxic pollutants
Funding for national study of urban stormwater runoff apportioned
1983 NURP Study1983 NURP Study 1978-1983 commercial, residential, and light
industrial monitoring sponsored by EPA 28 projects located across the country Analyzed eight conventional pollutants and
three metals. Significant finding pollutants:
Suspended solids – order of magnitude greater COD – comparable to treatment plant Fecals, Hydrocarbons, Metals, Pesticides, PAHs Flows are highly intermittent
1985 ASIWPCA Study1985 ASIWPCA Study
Association of State and Interstate Water Pollution Control Administrators
“America’s Clean Water, The States’ Nonpoint Source Assessment 1985”
Baseline information from 49 states, 3 territories, 3 interstate agencies, and DC.
1985 ASIWPCA Study1985 ASIWPCA Study
1985 ASIWPCA Study1985 ASIWPCA Study
NPS pollution impacted waters: 11% total river miles 30% total lake acres 17% total estuary square miles..
2009: Urban – Related
Impairments
13% Rivers
18% Lakes
32% Estuaries
1985 ASIWPCA Study1985 ASIWPCA Study
VELOCITY?
Clean Water Act 1987Clean Water Act 1987
P.L. 100-4: Provisions included: Continue Chesapeake Bay Program (Auth.
1980)
More updates to Effluent Limitation Guidelines
Manage urban and industry stormwater pollution through NPDES permit mechanism
Strengthen enforcement penalties.
Clean Water Act 1987Clean Water Act 1987
Section 402(p) of the Act placed the focus of urban and industrial stormwater compliance and enforceability on a permit system for point source discharges.
Illegal to discharge pollutants from point sources (e.g., industrial plant pipes, sewage treatment plants, or storm sewers) into the nation’s waters without an NPDES permit.
Clean Water Act 1987Clean Water Act 1987
MS4 is not defined, only population groups Inter-jurisdictionally complex Advantage of system-wide programs for permittee Geographic basis for targeted management Need for reasonable number of permits Congressional intent for jurisdiction-wide program
1988 EPA proposed rule favored municipal systems due to “administrative complexity”
Clean Water Act 1987Clean Water Act 1987 MS4 arguments in comments based upon:
Geographic differences Climatic differences and variation Institutional differences between systems
In the end, “MS4” is a blend of variables that allow EPA and States to define a system that best suits the various political and geographical conditions. Relied on population, census, urbanized areas
and pollution sources within those boundaries
2010 EPA
Proposed Rule
Making
Presentation OutlinePresentation Outline
The Story of Laws and Litigation
The Rules and the Logic Behind Them
Permits, Standards, and the MS4s Future
Phase I NPDES Phase I NPDES RegulationsRegulations
Published November 16, 1990
Prohibit the discharge of any pollutant “to” navigable waters from a point source unless the discharge is authorized by an NPDES permit.
NPDES permits required to: Establish controls to Maximum Extent Practicable
(MEP) Prohibit non-stormwater discharges Contain applicable water quality-based controls
Important DefinitionsImportant DefinitionsNPDES PermitsNPDES Permits
Issue for the “discharge of any pollutant, or combination of pollutants” … upon condition that such discharge will meet either: All applicable requirements for effluent
and water quality based limits, or
such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.
Outfall Line, Point Source
Discharge
Receiving Stream
Classic Point Source Wastewater Discharge
Using Traditional NPDES Approach
Receiving Stream
Facility Boundary
Traditional NPDES Discharges
Non-Point - Point Source Stormwater Discharge
Outfall Line, Point Source
Discharge
Receiving Stream
Facility Boundary
Non-Point - Point Source Stormwater Discharge
Stormwater Outfalls
Traditional NPDES Discharges
Outfall Line, Point Source
Discharge
Traditional NPDES Discharges
≈ 50 acres of disturbance
Traditional NPDES Discharges
≈ 50 acres of disturbance
Stormwater Outfalls
Traditional NPDES Discharges
Traditional NPDES Traditional NPDES DischargesDischarges
Phase I Final Rule Phase I Final Rule CommentsComments
Storm Water Quality Management Plans EPA disagreed with the following comments:
“there is no hard criteria upon which to judge the adequacy of programs.”
“there should be a BAT standard for municipal permits.”
“require specific BMPs that permittee must comply with.”
CWA only sets types of controls contemplated due to fundamentally different characteristics of municipalities
Regulations may include performance standards, guidelines, guidance and management practices
Phase I Final Rule Phase I Final Rule CommentsComments
Measures to reduce pollutants in runoff: Pollutants are important, but so is concept of
volume leaving urban areas during storm events.
“Large intermittent volumes of runoff can destroy aquatic habitat.”
Percentage of paved surfaces seen as indicator meaning “pollutant loadings associated with stormwater runoff increases as development progresses” and won’t decrease in the future.
55 FR No. 222 Page 480554
VELOCITY?
Phase II NPDES Phase II NPDES RegulationsRegulations
Published December 8, 1999 Outlined the Six Minimum Control
Measures EPA estimated 5,040 Phase II MS4s Allowed for case-by-case decision making
“significant contributors to water pollution” Unclear how to define “significant” without
rigorous monitoring Permits required by March 10, 2003
Phase II Additional Phase II Additional PermitteesPermittees
May require NPDES Permit when: storm water controls are needed for the
discharge based on wasteload allocations that are part of “total maximum daily loads” (TMDL) that address the pollutant(s) of concern
2001 GAO Report to 2001 GAO Report to CongressCongress
Measurable goals for the program recommended
Guidelines for consistent and reliable data, including data on the effects of the program and the costs to these governments
Determine whether program goals are being met and to identify the costs of the program
Assess whether the agency has allocated sufficient resources to oversee and monitor the program.
2001 GAO Report to Congress Pg 37
Presentation OutlinePresentation Outline
The Story of Laws and Litigation
The Rules and the Logic Behind Them
Permits, Standards, and the MS4s Future
NPDES Permit StructureNPDES Permit Structure
Effluent Limitation Effluent Limitation GuidelinesGuidelines
Point source-specific water pollution control
Established by assessment of: Performance of best pollution control
technologies or pollution prevention practices that are available
Economic achievability of that technology, while considering costs, benefits, and affordability of achieving the reduction in pollutant discharge
http://www.epa.gov/waterscience/guide/industry.html
Effluent Limitation Effluent Limitation GuidelinesGuidelines
For direct discharges, ELGs apply to: Existing facilities:
best practicable technology (BPT), best available technology (BAT), or best conventional pollutant control
technology (BCT); Newly constructed facilities (new
sources) are governed by new source performance standards (NSPS).
Effluent Limitation Effluent Limitation GuidelinesGuidelines
Best Practicable Control Technology Currently Available (BPT)
Average of best performance of facilities within industry of various ages, sizes, processes or common characteristics
*Narrative arm of new Construction ELGs
Effluent Limitation Effluent Limitation GuidelinesGuidelines
Best Available Technology Economically Achievable (BAT)
May be based on effluent reductions attainable through changes in a facility’s processes and operations.
*Numeric arm of new Construction ELGs 280 NTU limit
Effluent Limitations Effluent Limitations GuidelinesGuidelines
New Source Performance Standards (NSPS) Reductions achievable based on best
available demonstrated control technology (no acronym)
Most stringent controls attainable
*NSPS for Construction established equal to existing sources (BPT and BAT)
Effluent Limitation Effluent Limitation GuidelinesGuidelines
Best Management Practices (BMP) Authorize BMPs in NPDES Permits 40 CFR
122.44(k) Control or abate discharge of pollutants when:
Numeric effluent limits are infeasible Practices reasonably necessary to achieve effluent
limitations and standards or achieve intent of CWA Enforcement of Maximum Extent Practicable
(MEP) standard at 402 (p)(3)(B)(iii) Over time, will lead to BPT, BCT, BAT, NSPS
Effluent Limitation Effluent Limitation GuidelinesGuidelines
Storm Water Management for Construction Activities: Developing Pollution Prevention Plans and Best Management Practices and Summary Guidance
Storm Water Management for Industrial Activities, Developing Pollution Prevention Plans and Best Management Practices and Summary Guidance
Guidance Manual for Developing Best Management Practices (BMPs)
ELG – Legal PrecedentELG – Legal Precedent
Natural Resources Defense Council et al v. Browner (D.D.C. 89-2980, January 31, 1992, as amended) – Consent Decree
Required EPA to propose effluent guideline regulations and take final action for 20 point source categories.
Required EPA to conduct 11 preliminary studies to assist in selecting categories for regulation development.
Stormwater ELGsStormwater ELGs Urban Stormwater BMP Study 1999
Construction and Development 2002 Proposed and removed in 2004
Construction and Development 2008 Proposed and issued 2009
On hold as of September 2010 Pending review
Maximum Extent Maximum Extent PracticablePracticable
What is MEP? Section 402(p) introduces term under NPDES Controls that include:
management practices, control techniques and system, design and
engineering methods, and such other provisions as the Administrator or the
State determines appropriate for the control of such pollutants
Serious attempt to achieve water quality Has led to a need to justify chosen practices
Phase I MEP StandardPhase I MEP Standard MEP is contrasted to technology standards of
BAT/BCT in Federal Register notice comments and 1994 Clean Water Initiative as more “site-specific and flexible”
Guidance: “flexibility in developing permit conditions is encouraged by allowing municipalities to emphasize the controls that best apply to their MS4” Severity of the impairment Effectiveness of alternative approaches Cost of control measures
Phase I MEP StandardPhase I MEP Standard MEP generally emphasizes pollution
prevention and source control BMPs primarily (as the first line of defense)
MEP considers economics and is generally, but not necessarily, less stringent than BAT
MEP is dynamic; defined by the following process over time: Propose MEP by way of urban runoff management
programs Total collective and individual activities conducted
becomes their proposal for MEP for overall effort and specific activities
In the absence of a proposal acceptable to the Regional Board, the Regional Board defines MEP
1993 Elizabeth Jennings Memo SWRCB
Phase I MEP StandardPhase I MEP Standard Effectiveness: Will the BMPs address a pollutant (or
pollutant source) of concern?
Regulatory Compliance: Is the BMP in compliance with storm water regulations as well as other environmental regulations?
Public Acceptance: Does the BMP have public support?
Cost: Will the cost of implementing the BMP have a reasonable relationship to the pollution control benefits to be achieved?
Technical Feasibility: Is the BMP technically feasible considering soils, geography, water resources, etc?
1993 Elizabeth Jennings Memo SWRCB
Phase II MEP StandardPhase II MEP Standard
NPDES permitting authority may ask the permittee to revise their mix of BMPs, for example, to better reflect the MEP pollution reduction requirement.
Iterative process over 2-3 permit terms to achieve water quality standards
FR Vol 65 No. 235 Part II(H)(3)(a)(iii)
NPDES Permit StructureNPDES Permit Structure
WQBEL Decision Making WQBEL Decision Making ProcessProcess
State defines water quality standards by segmenting water bodies and classifying the beneficial uses of the water bodies.
These water quality goals associated with criteria necessary to achieve/protect them.
Beneficial uses can be State or local driven Aquatic life, wildlife propagation, primary or
secondary recreation, public/agricultural/industrial water supply, navigation are traditional.
40 CFR 131.2 WQ Standards
WQBEL Decision Making WQBEL Decision Making ProcessProcess
Numeric Criteria have specific concentrations or measures of toxic effect or waterbody health
Narrative Criteria are statements of desired state of a waterbody (i.e. “free from”)
Issued for: Aquatic Life Human Health Others (Wildlife, Sediment, other local) Biological Health
40 CFR 131.2 WQ Standards
WQBELs for StormwaterWQBELs for Stormwater
Water Quality Based Effluent Limits can be imposed in an NPDES permit if:
A water quality model indicates the anticipated discharge could not achieve water quality standards for the receiving stream, or
An impairment has been identified with a TMDL that has been issued for the receiving water
WQBELs for StormwaterWQBELs for Stormwater
EPA adopted an interim-permitting approach Know urban stormwater runoff is impairing uses Narrative BMPs are acceptable; maybe sufficient Typically lack information to base numeric water
quality-based effluent limits Where data exists, numeric limits are possible Pollutants may not be only thing impacting use Adequate effluent characterization difficult Receiving water exposure assessment difficult
1996 WQBEL for Stormwater Memo
WQBELs for StormwaterWQBELs for Stormwater EPA adopted an interim-permitting
approach Pointed to CSO policy as potential model
Presumptive Approach: If the EPA policy (Long Term Control Plan) is met, the effort invested is presumed to be compliant with Water Quality Standards
Demonstrative Approach: Permit holder demonstrates controls meet Water Quality Standards
1996 WQBEL for Stormwater Memo
WQBELs for StormwaterWQBELs for Stormwater
EPA adopted an interim-permitting approach Called for improving approaches for
monitoring storm water and the potential effects upon water quality
Environmental indicators are designed to be more meaningful monitoring tools that storm water dischargers can use to conduct storm water monitoring
Center for Watershed Protection – Impervious Cover Model (ICM) was born out of this call
1996 WQBEL for Stormwater Memo
VELOCITY?
Future of the MS4 Future of the MS4 PermitsPermits
Higher focus on measurable results and use of software to generate outputs
Segregation of performance measures from effectiveness measures
Transition to a combination of environmental indicators as surrogates for water quality.
National Research National Research Council ReportCouncil Report
“A straightforward way to regulate stormwater contributions to waterbody impairment would be to use flow or a surrogate, like impervious cover, as a measure of stormwater loading ….”
“Efforts to reduce stormwater flow will automatically achieve reductions in pollutant loading. Moreover, flow is itself responsible for additional erosion and sedimentation that adversely impacts surface water quality.”
2008 NRC Urban Stormwater Report
Environmental IndicatorsEnvironmental Indicators
Water Quality Indicators Water quality pollutant constituent
monitoring Toxicity testing Non-point source loadings Exceedance frequencies of water
quality standards Sediment contamination Human health criteria
Environmental IndicatorsEnvironmental Indicators
Physical and Hydrological Indicators Stream widening/downcutting Physical habitat monitoring Impacted dry weather flows Increased flooding frequency Stream temperature monitoring
Environmental IndicatorsEnvironmental Indicators
Biological Indicators Fish assemblage Macro-invertebrate assemblage Single species indicator Composite indicators
Bio-assessment and Bio-Bio-assessment and Bio-criteriacriteria
Explains stream quality in terms of fish and aquatic insects supported by the stream.
Describes how habitat, water quality, and upland watershed conditions all impact the biological life.
EPA Biocriteria Website
Bio-assessment and Bio-Bio-assessment and Bio-criteriacriteria
Ohio EPA Biocriteria Pg 30-31
Environmental IndicatorsEnvironmental Indicators
Social Indicators Public attitude surveys Industrial/commercial pollution
prevention Public involvement and monitoring User perception
Environmental IndicatorsEnvironmental Indicators
Programmatic Indicators Number of illicit connections
identified/corrected Number of BMPs installed, inspected
and maintained Permitting and compliance Growth and development
Environmental IndicatorsEnvironmental Indicators
Site Indicators BMP performance monitoring Industrial site compliance monitoring
EPA Water Quality EPA Water Quality ScorecardScorecard
2009 EPA Water Quality Scorecard
Parting “Principle of Parting “Principle of Psychology”Psychology”
Unless someone like you cares a whole
awful lot, nothing is going to get better.
It's not.
Dr. Seuss ~ The Lorax
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