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SWM-SY030301A Guide to Federal Regulations for Municipal Leaders National League of Cities 1301 Pennsylvania Ave., NW Washington, DC 20004 The Federal Regulatory Process No usE The House passes legislation CVZf_TL The Senate passes companion legislation % C3 - A STORMWATER PHASE II REGULATIONS The 1987 Amendments to the Clean Water Act ( §402(p)(3)(A)) mandate that: NPDES' permits for municipal separate storm sewer system discharges (1) may be issued on a system or jurisdictionwide basis; (2) must include a requirement to effectively prohibit non -storm water discharges into the storm sewers, and (3) must require controls to reduce pollutant discharges to the maximum extent practicable. On December 8, 1999, the Environmental Protection Agency published final rules (see the Federal Register, Vol. 64, No. 235, pp. 68721 - 68851) mandating pollution control activities for municipal separate storm sewer systems (MS4s) in cities with populations of 100,000 or less. This program is known as the "Phase II Municipal Stormwater Program." Phase I regulations — promulgated in November 1990 — were applied to cities with populations over 100,000 (as of the 1990 Census) beginning in 1992. Cities whose population will be 100,000 or more beginning with the 2000 Census will not become subject to the Phase I program but will rather remain in the Phase II program. The Phase II regulations will The President signs legislation into law p g g go into effect in March 2003. JAFl 1. FREWiTEXI 0 V% VLV_- b a The House and Senate Compromise The red tape affecting cities becomes final Federal agency issues rules & regulations 'A National Pollutant Discharge Elimination System (NPDES) permit is the mechanism used in implementation of the Clean Water .Act to authorize discharges to waters of the United States. WHO HAS TO COMPLY WITH THE NEW REGULATIONS? • All local governmentsz — States, cities, counties, towns, boroughs, parishes, associations, or other public bodies — which own or operate a municipal separate storm sewer system (MS4) and which are located in an "urbanized area" as defined by the Bureau of the Census.3 • Local governments with populations of 10,000 or more, with population densities of 1,000 persons per square mile which are located outside of an "urbanized area." States will be re- quired to designate these cities as covered jurisdictions by December 2002. If the State decides to issue designation criteria on a watershed basis and a comprehensive watershed plan — including Total Maximum Daily Loads4 (TMDLs) —is in place, the deadline for designation of these cities is December 2004. • Local governments, regardless of population, located outside of an "urbanized area" which are physically interconnected, i.e., whose roads and /or sewer systems drain into a covered local government. There is no deadline for designation of these jurisdictions, but EPA recommends it be done by December 2002. • Any local government determined by the State to be contributing to the impairment of a waterbody. 2 It is the municipal separate storm sewer system (MS4) operator that bears the responsibility for the Phase II stormwater management program. 3 According to the Bureau of the Census an urbanized area "comprises a place and the adjacent densely settled surrounding territory that together have a minimum population of 50,000 people." 4 A TMDL "quantifies the maximum allowable loading of a pollutant to a water body and allocates this maximum load to contributing point and nonpoint sources so that water quality criteria will not be exceeded and designated uses will be protected." • Municipal industrial facilities' in cities under 100,000. • Federal and State facilities such as hospitals, military bases, and highways that own andW operate separate storm sewer systems. WAIVERS A qualifying city, i.e., one located in an urbanized area, with a population of less than 1,000 may obtain a waiver from the Phase II stormwater requirements if it is not contributing substantially to the pollutant loadings of an interconnected separate storm sewer system unless the pollutants have been identified as causing a water quality impairment. The State will be responsible for assessing the impact of a small system's discharges on an, y neighboring jurisdiction. Waivers are not permanent. Any com- munity that has obtained a waiver can, at some subsequent time, be brought back into the program if circumstances change. Cities with populations of less than 10,000 may also qualify for a waiver if the receiving waters have been evaluated and the stormwater discharges neither con- tribute, nor are likely to contribute, to impairment of a waterbody. WHAT ARE THE ]BASIC REQUIREMENTS OF THE STORMWATER PROGRAM? Cities covered by the Phase II stormwater program will be required to implement six minimum measures: 1. PUBLIC EDUCATION AND OUTREACH Cities will be required to provide educational materials to individuals and households about the impact of everyday activities on stormwater discharges and receiving water quality. These materials should provide information on what ' Airports, landfills, and power plants are considered to be municipal "industrial facilities" and were covered under the Phase I rule. There may be other municipal operations that can be classified as "industrial facilities" and these too will largely be covered by individual permits. individuals and households can do to minimize or eliminate their pollutant contributions. The education and outreach requirement can take the form of brochures, presentations at meetings, public service announcements, activities targeted to school children, drain stenciling, etc. that broaden public understanding about the cause and effect of pollutants in stormwater runoff. States may provide educational materials, as may citizen groups or industries, for use by the municipality. Cities are encouraged to make special efforts to reach minority and disadvantaged residents. 2. PUBLIC INVOLVEMENT Citizen participation in the development of the stormwater management program developed by the local government must involve the public to the extent required by State and/or local law. 'While that is the minimum that must be done, EPA will recommend, in subsequent guidance, a number of additional measures to local governments to facilitate meeting the public involvement measure. 3. ILLICIT DISCHARGE DETECTION AND ELIMINATION Illicit discharges are any flows from "a municipal separate storm sewer that [are] not composed entirely of stormwateri6 except those authorized in a permit "and discharges resulting from fire fighting activities." Essentially, illicit discharges are dry weather flows resulting from connec- tions of wastewater piping improperly con- nected to a storm sewer, illegal dumping of such things as used motor oil, paint, cooking grease from restaurants, etc., or infiltration from leaking wastewater pipes. To comply with this requirement, the municipal separate storm sewer systems (MS4s) must: a) develop a storm sewer system map indicating all outfalls and the waters to which they discharge; 6 All materials in "quotes" are from the Federal Register for Dec. 8, 1999 unless otherwise noted. b) prohibit illicit discharges and imple- ment appropriate enforcement actions; c) develop a plan to detect and address illicit discharges, including illegal dumping, to the system; and d) inform the public, as well as businesses and municipal employees, of the haz- ards associated with illegal discharges and improper disposal. This requirement applies to municipalities only to the "extent allowable under State or local law." If a municipality has no author- ity to implement part or all of this re- quirement, it will not be required to do so. States are being encouraged by EPA to revise their statutes to grant local govern- ments the requisite authority to carry out this and subsequent best management practices (BMPs). 4. POLLUTION PREVENTION AND GOOD HOUSEKEEPING IN MUNICIPAL OPERATIONS Municipalities will be required to implement a training program for municipal employees to assure that their actions in carrying out their responsibilities will prevent or reduce pollutants from stormwater runoff from municipal operations. The emphasis in this requirement is on proper operations and maintenance (O &M) and employee training. S. CONSTRUCTION SITE RUNOFF CONTROL While the construction site runoff control program will apply only to runoff affecting a municipal separate storm sewer system, EPA is encouraging local governments to apply their programs throughout the jurisdiction. The regulations recognize and accept that this requirement may — in some States — be the responsibility of another level of government within the State. Municipal stormwater permits in such a State may acknowledge the existence of a State (or other governmental entity) admin- istered program and absolve the local government of responsibility for this activity. In addition, the regulations author- ize the use of existing qualifying State, local or tribal erosion and sediment controls. Construction site runoff controls will apply to all construction sites involving one or more acres, not just those in covered municipalities. Cities must "develop, implement and enforce a pollutant control program to reduce pollutants in any stormwater runoff from construction activities that result in land disturbance of one acre or more." Sites disturbing less than one acre would also be included if such a site is part of a larger development involving one acre or more. Municipalities would be required to develop and implement construction site plans that focus on erosion and sediment controls (e.g., silt fences, temporary detention ponds) as well as good housekeeping activities involving construction site activities (e.g., discarded building materials, cement truck washout, etc.). The municipal plan must also include procedures for site plan review, site inspection and enforcement, and penalties for failure to comply with local require- ments. Small construction sites may be exempted from the requirement where the permitting authority (either a State or EPA) has waived permit requirements because there is little rainfall. This requirement is also limited in its applicability to local governments based on their available authorities (see explanation in last paragraph under "3. ILLICIT DIS- CHARGES," above). 6 POST CONSTRUCTION STORMWA TER MANAGEMENT IN NEW DEVELOPMENT OR REDEVELOPMENT' The regulations will require local govern- ments to develop, implement and enforce a program to address stormwater runoff by: "Redevelopment" means an activity that alters the "footprint" of the site and does not include exterior remodeling. a) developing and implementing strategies which include "a combina- tion of structural and /or nonstruc- tural best management practices (BMPs) appropriate for the commun- ity." Examples of "structural" BMPs include: storage, such as detention ponds; filtration, such as grassy swales; and infiltration, such as infiltration basins and trenches. Nonstructural BMPS include: preventive actions, such as directing growth to specified areas, minimizing impervious surfaces, en- couraging in -fill development, etc. This requirement is intended to maintain predevelopment runoff conditions; b) "using an ordinance, or other regulatory mechanism to address post construction runoff from new de- velopment or redevelopment to the extent allowable under state law; c) insuring adequate maintenance and operation of BMPs; and, d) insuring that controls are in place that would minimize water quality impacts." These provisions would also apply to sites involving one or more acres. This requirement is also limited in its applicability to ]local governments based on their available authorities (see explanation in last paragraph under "3. ILLICIT DIS- CHARGES," above). "EPA envisions, that a BMP -based storm water management program that implements the six minimum measures will be the extent of the NPDES permit requirements for the large majority of regulated small MS4s" for the foreseeable future: that is, for the next ten to fifteen years (the 1st two or three permit terms$). If stormwater discharges from these small systems "are determined to cause or contribute to nonattainment of water quality standards, the operator will have to expand or better tailor its BMPs 8 A "permit term" is ordinarily five years. within the scope of the 6 minimum control measures." WHAT TYPES OF PERMITS WILL CITIES NEED TO IMPLEMENT THE PROGRAM? There are two types of permits available to Phase II municipalities to comply with the requirements of the municipal stormwater program: GENERAL PERMITS A general permit is a sirriplified mechanism authorizing the continued discharge of stormwater runoff to waters of the United States and applies to a group of municipal separate storm sewer systems (MS4s). In this case, the general permit will apply to Phase II municipalities — those with populations under 100,000 located in an urbanized area — as well as the other specified municipalities that will be covered by the new program. Municipal officials should be aware that the availability of a general permit is a decision made by the permitting authority (either the State or EPA), not by the municipality. A general permit will explain the steps necessary to obtain authorization to continue to discharge to the nation's waters. It will establish requirements for each of the six minimum control measures, including identification of the municipality's best management practices (BMPs) and devel- opment of its measurable goals. EPA plans to develop guidance (see "TOOL BOX" below) on best management practices and is urging States that exercise permitting authority to do likewise. In most cases, a municipality can apply for a general permit by submitting a Notice of Intent (NOI) to be so covered. The Notice of Intent (NOI) will have to include a list of the best management practices (BMPs) that will be implemented for each of the six minimum measures as well as the measurable; goals for the development and implementation of each of these practices. In addition, the Notice of Intent (NOI) will have to list when (month and year) the best management practices (BMPs) will be undertaken, interim milestones, and frequency of periodic actions, for example, how often streets will be swept. It will also have to include the name of the person or persons responsible for implementing or coordinating the stormwater management program. Cities will have an opportunity to revise their best management practices during the permit term if they determine their original choices are inadequate to meet the goals of the program (reduction of pollutants in stormwater runoff). Municipal separate storm sewer systems (MS4s) will have up to five years from the time a permit is issued to fully develop and implement their stormwater program. While EPA is recommending that permitting authorities use general permits for the municipal stormwater program, the agency is also suggesting that such permits be issued on a watershed basis. Permits developed on a watershed basis must pro- vide for attainment of water quality standards including designated uses (fishable /swimable), allocations of pollutant loads established by a Total Maximum Daily Load (TMDL) and timing requirements for implementation of a TMDL. EPA is also recommending that States authorized to issue NPDES permits follow the agency's guidance with respect to imposing numerical effluent limitations on stormwater discharges. As EPA stated in its August 1996 Interim Permitting Policy, Due to the nature of stormwater discharges, and the typical lack of information on which to base numeric water - quality based effluent limitations (expressed as concentrations and mass), EPA will use... best manage- ment practices (BMPs) in first round stormwater permits, and expanded or better - tailored BMPs in subsequent permits, where necessary, to provide for the attainment of water quality standards. In other words, EPA is not recommending the implementation of end -of -pipe controls for municipal stormwater runoff, unless there is a pollutant budget (TMDLs) in place for sources discharging to an impaired waterbody. State permitting authorities "could allocate waste loads [specific pol- lutant reduction requirements] to MS4s [municipal separate storm sewer systems] as they would to other point sources." City officials should note that the Interim Policy is only policy, not regulation, and that it is binding only on EPA, not States authorized to issue municipal stormwater permits. INDIVIDUAL PERMITS Cities would be required to obtain individual permits if the State does not make general permits available. If the State permitting authority agrees, a local government may choose to seek an individual permit. States authorized to issue NPDES permits are not required to provide local governments with the option of seeking an individual permit. EPA has attempted to simplify individual permits for municipalities subject to the Phase II rule, but the application process, nevertheless, remains significantly more complex than the NOI /general permit a rpp oach. nI addition to the basic re- quirements for a general permit — outfall mapping, a list of best management practices (BMPs) and measurable goals — cities seeking an individual permit would also have to submit an estimate of the square miles served by the city. The permitting authority could also require any additional information it believed necessary. An individual permit need not incorporate all the requirements in the general permit. It may be tailored specifically for each municipality. City officials should be aware, however, that an individual permit is written by the permitting authority — not the city — and is more likely to focus on specific pollutants (rather than practices believed to reduce pollutants) and lead to numerical effluent limitations on end of pipe discharges. CO- PERMITS Municipal separate storm sewer systems (MS4s) will also have an opportunity to seek to be "co- perrnittees" with Phase I communities for some or all of the requirements under the Phase II rule — assuming the Phase I community agrees. The preponderance of Phase I permits were issued as individual NPDES permits. While the application (for a permit) requirements for a Phase II community have been simplified, joining; with a Phase I commun- ity will require compliance by the Phase II community with the terms and conditions of the Phase I permit. If a particular best management practice or practices are included in the city's permit, the city remains responsible for imple- mentation of that measure or measures, even if another entity has agreed to perform the function for the city. If, however, a city's permit recognizes that another permittee (e.g., a contiguous local government such as a Phase I community, holding a stormwater permit) is implementing a control measure, then the other permittee assumes respon- sibility for its implementation. The latter applies only when dealing with entities required to have NPDES permits. JOINT PERMITS Cities may also join with each other in securing stormwater permits. Phase II com- munities may join together or may join with Phase I communities in securing permits. As indicated above, it will be important to define — in the permit or Notice of Intent (NOI) — which entity is responsible for which activities. WHAT IS "MEP" AND WHY IS IT IMPORTANT? The 1987 Amendments to the Clean Water Act ( §402(p)(3)(B)(iii)) require . . controls to reduce the discharge of pollutants to the maximum Extent practicable. . However, "EPA has intentionally not provided a precise definition of MEP [maxi- mum extent practicable] to allow maximum flexibility in MS4 permitting." NLC is seeking legislation which will define "maxi- mum extent practicable" to mean: the greatest degree of pollutant reduction achievable through the application of the best available, technically feasible, cost - effective, and economically achievable storm water control prac- tices, technologies, pro- cesses, siting criteria, operating methods, or other alternatives that do not require the construc- tion of treatment works.9 Factors that EPA lists in the rule for consideration in determining "maximum extent practicable" include: condition of the receiving waters; specific local concerns; and other factors such as, "size, climate, implementation schedules, current ability to finance the program, beneficial uses [fishable /swimable] of the receiving water, hydrology, geology and capacity to perform O &M." "MEP" is important because it is the standard by which compliance with best management practices will be judged. In other words, maximum extent practicable is the standard by which the city will be judged to determine if it is implementing its best management practices (BMPs) as com- 9 See H.R. 3570, the Urban Wet Weather Priorities Act of 2000. pletely and thoroughly as necessary to affect the quality of the receiving waters. WHAT OTHER REQUIREMENTS WILL A PHASE H COMMUNITY HAVE TO IMPLEMENT? EVALUATION AND ASSESSMENT Municipal separate storm sewer systems will be required to "evaluate the appropriateness of their identified BMPs (best management practices) and progress toward achieving their measurable goals." The rules will not require end -of -pipe monitoring but rather encourage the permitting authority to determine if there are improvements in the receiving waters. While EPA is not requiring end -of -pipe monitoring, city officials should be aware that State environmental protection departments are not precluded from assigning such a responsibility to local governments. RECORDKEEPING The extent of any recordkeeping requirements will largely be up to the permitting authority (EPA or the State). EPA requires permitting authorities to include "at least minimum appropriate recordkeeping conditions in each permit. In addition, the rule requires that the municipal separate storm sewer system operator keep such records for at least three years and make them available to the public during normal business hours. REPORTING During the first permit term — that is, from March 2003 through March 2008 — cities will be required to file annual reports with the permitting authority. In subsequent per- mit terms reports will be due every other year, unless the permitting authority deter- mines to require more frequent reports. Reports must include: a) "the status of compliance with permit conditions, an assessment of the appropriateness of the identified best management practices (BMPs) and progress toward achieving the measur- able goals for each minimum measure; b) results of information collected and analyzed, including monitoring data, if any, during the reporting period; c) a summary of what storm water activities the permittee plans to under- take during the next reporting cycle; and d) any changes in an identified measurable goal(s) that apply to the program elements." Permitting authorities are encouraged to provide a brief two -page reporting form. WHAT IS IN THE TOOL BOX THAT WILL ASSIST CITIES IN COMPLYING WITH THE PHASE H STORMWATER REQUIREMENTS? EPA is continuing to work on a "tool box" to provide ideas to cities on how to develop and implement a stormwater management program. The agency's preliminary version of the tool box is available on their web page at: wivw.epa.gov /owm/sw /toolbox. EPA plans to continue to add to and update the tool box and is encouraging States to develop similar mechanisms that may have more local validity. The current federal tool box includes: fact sheets, guidances, a menu of best management practices (BMPs) for the six minimum measures, an information clearinghouse, training and outreach efforts, technical research, and compliance monitor- ing/ assistance tools. For additional information please contact: Carol Kocheisen at NLC at (202) 626 -3020.