past present and future trend

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.


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


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.


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.


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

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


Discharge

Receiving Stream

Facility Boundary

Non-Point - Point Source Stormwater Discharge

Stormwater Outfalls



Discharge

≈ 50 acres of disturbance


≈ 50 acres of disturbance

Stormwater Outfalls


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

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


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).


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


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)


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


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


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



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


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


Physical and Hydrological Indicators Stream widening/downcutting Physical habitat monitoring Impacted dry weather flows Increased flooding frequency Stream temperature monitoring


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


Social Indicators Public attitude surveys Industrial/commercial pollution

prevention Public involvement and monitoring User perception


Programmatic Indicators Number of illicit connections

identified/corrected Number of BMPs installed, inspected

and maintained Permitting and compliance Growth and development


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

past present and future trend

Documents

water quality actstates

water quality improvement

pollution of interstate

public water supplies

discharges of pollution

elgs1977 clean water

effects of pollution

navigable waters