Tucker-Talk

by L. Scott Tucker
Timely Comment from the District's Executive Director

Stormwater Phase II Proposed Rule

The Stormwater Phase II Proposed Rule was signed by EPA Administrator Carol Browner on Monday, December 15, 1997. The rule is scheduled to be printed in the Federal Register on January 9, 1998. A 90-day comment period will begin on the date it is published in the Federal Register, and comments on the proposed rule will be due on April 8, 1998. Following receipt of comments EPA will revise the proposed rule as they think appropriate and finalize it by March 1, 1999.

The proposed rule would expand the existing NPDES Stormwater Program (Phase I) which affects municipalities and counties with populations greater than 100,000 to smaller municipalities and construction sites that disturb one to five acres. Current regulations apply only to construction sites disturbing over five acres. It is estimated that there are some 3,500 communities under 100,000 in population, as well as many construction activities that will be affected by the proposed rule. Municipalities are encouraged to obtain a copy of the Federal Register dated January 9, 1998, review the proposed rule and submit comments to EPA. EPA plans to hold hearings on the proposed rule on the following dates: February 23, 1998 in Washington, DC; February 25, 1998 in Boston, Massachusetts; February 27, 1998 in Atlanta Georgia; March 2, 1998 in Chicago, Illinois; March 4, 1998 in Dallas, Texas; and March 6, 1998 in San Francisco, California. For further information regarding the proposed rule, contact Mr. George Utting, Office of Wastewater Management, Environmental Protection Agency, Mail Code 4203, 401 M Street, SW, Washington, DC 24460; 202-260-5816; SW2@epamail.epa.gov.

The proposed Phase II stormwater regulation is being promulgated pursuant to requirements in the Clean Water Act. The basic goal of the Clean Water Act is to improve the quality of the Nation’s waters. This goal is one that is supported by most, if not all local governments. What is going to be initially required of local governments by the Phase II regulations is reasonable, but by no means trivial. There will definitely be a cost. To some the regulations may be a burden and cause some degree of difficulty. A few entities are already doing some or all of the required activities. As local governments we should support the Nation’s effort to improve water quality. After all it is our citizens who have the most to gain.

Having said that, there are some things that you must understand. This is a mandate. You have no choice. You must comply. Non-compliance can result in penalties for your city or county, and citizens from your community or elsewhere can take you to court if they think you are not complying with your permit requirements. You will not be able to stop or change doing the things that will be in your permit unless you get your permit modified. If you are already doing some of the required activities, cost may not be a factor. However, those measures would no longer be discretionary. You will not be able to cut back if you want to shift efforts to another concern, say police protection, without approval from the NPDES permitting entity.

I make these comments not to be critical, but to be realistic. When reviewing the proposed regulations you must be thinking that we are starting a new way to do business in the public works field; one in which a permitting entity, either EPA directly or through the states, controls through regulation a segment of your public works activity, but you pay for it. The bottom line is that you will need a permit to discharge stormwater from your community and in order to get that permit you must do certain things. And unfortunately, it is a simple fact that when it rains, it discharges. Hopefully, these comments will help local governments understand what is involved with the Phase II stormwater regulations and how they may impact your city, county, or business.

All municipalities under 100,000 population that are located within urbanized areas will be required to have permits. An urbanized area is defined by the Bureau of Census as comprising a place and the adjacent densely settled surrounding territory that together have a minimum population of 50,000 people. All cities and counties that are located within census defined urbanized areas would be required to obtain permits.

Basically all communities, with some minor exceptions, that are located within census defined urbanized areas must seek coverage under either an Individual or General Permit. For those seeking coverage under a General Permit, they will have to submit a Notice of Intent (NOI) to the permitting entity in order to be covered. The General Permit itself will explain the steps necessary to obtain coverage. The states will write the General Permits in about 42 states that have the authority to administer the NPDES Program, and EPA will write the General Permits that will apply to about 10 states. You must apply for coverage within three years and 90 days of the date the final regulation goes into effect which if it goes into effect on March 1, 1999, would be June 1, 2002.

The Notice of Intent must include at a minimum the following:

1. The best management practices (BMPs) you choose to implement for each of six "minimum measures" categories.

2. Measurable goals for each of the minimum measures.

3. The month and year each minimum measure will be started and completed or the frequency of action.

The measurable goals will not be a condition of the permit until EPA or the state has issued a menu of measures they think to be cost effective.

An Individual permit would require the same information required in the Notice of Intent, plus the square miles served by the storm sewer system; a listing of all permits or construction approvals received or applied for; a topo map covering one mile beyond the boundary showing all discharge structures, hazardous waste facilities, surface water bodies, and drinking water wells; and any additional information the NPDES authority requests.

It should also be noted that local governments would need separate NPDES permits pursuant to the Phase I requirements for any municipal-owned industrial facilities. These would include hazardous waste treatment facilities, landfills and dumps that have received industrial waste, steam electric power generating facilities, airport de-icing facilities, sewage treatment facilities that have a capacity greater that 1 mgd, and construction activity greater than one acre.

The basic performance requirement is to develop, implement and enforce a program to reduce the discharge of pollutants in stormwater to the maximum extent practicable (MEP) and to protect water quality. Your stormwater program must satisfy technology requirements including reduction of pollutants to the MEP standard; water quality based requirements of the Clean Water Act; any more specific conditions or limitations to meet water quality standards as may be defined in a total maximum daily load study (TMDL); and reporting requirements.

The major requirement of the program is implementation of management practices in each of six categories of "minimum measures" which are described as follows:

1. Public education and outreach. This will require implementation of an education program to distribute material to your community or conduct outreach about stormwater impacts on water bodies and the steps your citizens can take to reduce stormwater pollution.

2. Public involvement and participation. This requires that you comply with all applicable public notice requirements.

3. Illicit discharge detection and limitation. It requires you to develop a storm sewer system map showing the location of major pipes, outfalls and topography, as well as areas of concentrated activities likely to be a source of stormwater pollution. You must prohibit through ordinance, order, or similar means, illicit discharges into your storm sewer system and implement appropriate enforcement procedures and actions. You must implement a plan to detect and address illicit discharges including illegal dumping into your system. Finally, you must inform public employees, businesses and the general public of the hazards associated with illegal discharges and improper disposal of waste.

4. Construction site stormwater runoff control. This minimum measure will require you to develop, implement, and enforce a program to reduce pollutants in stormwater runoff to your municipal storm sewer system from construction activities that result in land disturbance of greater than one acre. You must use an ordinance or other regulatory mechanism that controls erosion and sediment. You must control other waste at construction sites such as discarded building materials, concrete truck washout, and sanitary waste. Finally, your program must include requirements for construction site owners or operators to implement BMPs, provisions for pre-construction review of site management plans, procedures for receipt and consideration of information submitted by the public, regular inspections during construction, and penalties to ensure compliance.

5. Post construction stormwater management. To comply with this measure, you must develop, implement, and enforce a program to address stormwater runoff from new development and redevelopment projects that result in land disturbances of greater than one acre and that discharge into your storm sewer system. This program must include site appropriate and cost-effective structural and non-structural BMPs and you must ensure adequate long-term operation and maintenance of the BMPs. Your program must ensure that controls are in place that would prevent or minimize water quality impacts.

6. Pollution prevention and good housekeeping for municipal operations. This minimum measure will require you to develop and implement an operation and maintenance program with the goal of preventing and reducing pollutant runoff from municipal operations. The program must include local government employee training to prevent and reduce stormwater pollution from government operations such as park and open space maintenance facilities, fleet maintenance planning, building oversight, and stormwater system maintenance.

Full implementation of your stormwater program will mean doing the six minimum measures and meeting the reporting requirements. Doing this shall constitute compliance with the standard of "reducing pollutants to the maximum extend practicable." You will have five years from the date of issuance of your permit to fully develop and implement a program. Based on June, 2002 as a deadline for permit applications, local governments could have up to June, 2007 to fully implement their programs.

Once this program becomes implemented a portion of your public works activity will then be mandatory. You will have to implement the six minimum measures included in your Notice of Intent. You will be required to evaluate program compliance, appropriateness of your six minimum measures, and progress toward achievement of your measurable goals. Monitoring may be required by your NPDES permitting authority, but it is not required as part of the proposed EPA regulations. However, reference is made to the potential of monitoring. You must keep records for at least three years. You must submit the records only when specifically asked and you must make records available to the public. It is not clear in the proposed permit what will constitute adequate record keeping.

You must submit an annual report to the NPDES permitting authority for the first permit term. For subsequent terms, you must submit reports in years two and four unless the NPDES authority wants them more often. Your report must include: 1) status of compliance with permit conditions, assessment of appropriateness of your identified BMPs, and progress toward achieving the measurable goal for each of the six minimum control measures; 2) results of information collected and analyzed including monitoring data, if any; and, 3) summary of what stormwater activities you plan to undertake during the next reporting cycle and changes in any identified measurable goals that apply to your program elements.

NPDES permits are federally enforceable. Violators are subject to enforcement actions and penalties of the Clean Water Act. Compliance with the NPDES permits issued under the authority of this rule will be deemed to be in compliance with the Clean Water Act. For the time being, do what you say you will do and you will be okay.

This is just the beginning. While EPA is recommending in the proposed rule that no additional requirements beyond the six minimum control measures be imposed on small regulated municipalities, until they review and evaluate the program, there is a caveat. When adequate information exists in an approved TMDL study to develop more specific conditions or limitations to meet water quality standards, additional requirements can be imposed. There is currently a lot of pressure to conduct TMDL studies. The NPDES permitting system will be used as an enforcement mechanism to implement TMDL recommendations.

There is a concern that the NPDES permitting system will eventually be used to regulate the flow rate and volume of stormwater which in turn translates to land use control. In other words, the NPDES permit may become a vehicle for federal land use control. Local governments should, on their own, attempt to regulate the flow rate and volumes of stormwater, but it should not be a subject of NPDES permitting control.

Your public works program will forever be linked to the federal government and/or state through a regulatory program. They will have the power and authority to force local governments to do what they think is required to meet water quality standards.

The NPDES permitting program is fundamentally a point source program. It is designed for the control and permitting of point sources such as waste treatment plant effluent. Stormwater is a diffuse source of discharges and does not lend itself to point source control. The Clean Water Act needs to be revised to reflect the realities of stormwater.

It is hard to develop partnerships in a command and control environment such as with the NPDES permit system. It is like being a partner with an 800 lb. gorilla. One partner has a definite advantage. Local government is not the gorilla in this case.

There is concern that eventually cities and counties will be forced to meet numerical effluent limitations at the end of their storm sewers. This would be an impossible requirement and would cost local governments a lot of money trying.

In summary, I urge all of you to get a copy of the proposed regulations and comment on them. If you have concerns or suggestions to improve the proposed regulations, let EPA know in writing. What we can all agree on is the goal of reducing pollutants in stormwater. The mechanism congress has chosen, command and control through the NPDES permitting program, may eventually cause problems for local governments. Review the proposed regulations carefully, think in terms of how your local government can respond to the requirements and comment accordingly.

Student Intern Program

Since the late 1970’s, the District has hired students on a part-time basis to assist staff with various activities. The students have come mostly from the University of Colorado at Denver Civil Engineering Program, and the Metro State University Civil Engineering Technology Program. We started with one student in the late 1970’s. At the present time, we have six interns. Three students work in the Maintenance Program, one student is splitting duties between the Construction Program and Floodplain Management Program, and two students are assisting with research, and data collection and evaluation activities. Some 30+ student interns have worked for the District since the program began.

Students typically join the District in their junior year and remain with us for one to two years. The students work about twenty hours a week during the nine months of the school year and up to 40 hours a week during the summer months. As soon as the student graduates, they are no longer eligible for employment at the District under our intern program.

It has been satisfying indeed to see a number of young people join the District as student interns, work productively for the District, graduate, and then enter the work force. Many of the former student interns are now pursuing successful careers and working with local consultants or municipalities throughout the Denver metropolitan area and elsewhere.

This program has been a plus for both the students and the District. The students gain from the experience and contacts they make while they are at the District, and the District gains by employing competent people at reasonable rates.