Commentary

Second Wave of Federal Stormwater Rules on the Way

By Ralph Vasquez

A new wave of federal stormwater regulations — 12 years in the making — is coming to a town nearest you. And with the deadline for compliance merely months away, targeted municipalities are scrambling to get sufficient programming in place.

Since 1990, municipalities nationwide have operated under the National Pollutant Discharge Elimination System (NPDES) stormwater program, part of the federal Clean Water Act set forth by the Environmental Protection Agency (EPA). When the program initially was implemented, commercially available management systems designed to run stormwater programs did not exist.

In early 1998, the EPA proposed the "Phase II" regulations of the NPDES program to expand permitting requirements for certain urbanized areas and construction sites. By March 10, 2003, municipalities falling under the Phase II umbrella must have compliant stormwater programs in place or face potential enforcement from the EPA.

Phase II carries the potential of impacting more than 8,000 municipal and county governments across the U.S. Specifically, Phase II will target the following entities and activities:

• Small municipal separate storm sewer systems (MS4s), which generally serve populations of less than 100,000
• Industrial activities operated by a municipality smaller than 100,000
• Any construction activity disturbing between one and five acres

Who Receives an MS4 Designation?

Phase II requires nationwide compliance by all operators of small MS4s located within the boundaries of "urbanized areas." An urbanized area is a land area comprising one or more locales with a total a residential population of at least 50,000, and an overall population density of at least 1,000 people per square mile.

A typical MS4 is a conveyance or system of conveyances designed or used for collecting or carrying stormwater. MS4s can include roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, manmade channels, and storm drains. They generally are owned or operated by a state, city, borough, Indian tribe, governmental agency, or other public entity.

In addition, the a category of MS4s also refers to a broader and more specific application. Small MS4 owners can include state departments of transportation, local sewer districts, universities, hospitals, military bases, prisons, and other institutional facilities.

December 9, 2002, was the deadline for NPDES permitting authorities to evaluate small MS4s — serving populations of at least 10,000 and with population densities of at least 1,000 people per square mile — for potential designation as a Phase II regulated system.

Although Phase II designation criteria will vary from state to state, key factors likely will include the following:

• Potential for pollutant discharge
• Population density
• Growth potential
• Contiguity to an urbanized area
• Determination of ineffective pollutant protection

Are Waivers Possible for Phase II Requirements?

Two waiver options are available to operators of designated MS4s. However, they must have been granted by an NPDES permitting authority by the same December 9, 2002 "cut-off" date.

The first option applies to MS4s located in urbanized areas serving a population of less than 1,000. The permitting authority must determine that the system is not substantially contributing to pollutant loadings of an interconnected MS4 or water body.

The second option addresses MS4s serving a population of less than 10,000. The permitting authority must determine that stormwater control for pollutant loadings from the MS4 are not needed to comply with water quality standards for current or potential future MS4 discharges.

Required Control Measures

Small MS4s that do not qualify for Phase II waivers must submit Notice of Intent (NOI) forms for coverage under the NPDES Permit by March 10, 2003. Furthermore, targeted MS4s must develop stormwater management plans that incorporate the following six required control measures:

Public education and outreach. Educational information and materials on the impacts of stormwater are distributed to residents and employees.

Public participation and involvement. Opportunities are provided for citizens to participate in program development and implementation.

Illegal discharge detection and elimination. A plan is developed to detect and eliminate illegal discharges into the storm sewer system. The plan should include a system map and tactics for informing the public about hazards associated with illegal discharges and improper waste disposal.

Construction site runoff control. For designated construction activities, pollution controls, site inspections, compliance procedures and best management practices (BMPs) are incorporated.

Post-construction runoff control for new development and redevelopment. BMPs and controls are implemented to respond to the inevitable decrease in water quality and increase in water quantity caused by post-construction runoff.

Pollution prevention/"good housekeeping." A program (i.e., a Stormwater Pollution Prevention Plan) is developed and implemented to prevent or reduce pollutant runoff from municipal operations. Pollutants of concern generally include biochemical oxygen demand (BOD), sediment or a parameter that addresses sediment (i.e., total suspended solids, turbidity or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment in any water body into which the MS4 discharges.

Each of the six required control measures must be accompanied by a narrative of measurable goals, a schedule of implementation, and a list of responsible persons.

Who Can Help?

The EPA has developed a "tool box" to assist MS4 owners and operators subject to the Phase II rule. The tool box includes fact sheets, guidance documents, a menu of BMPs, training and outreach efforts, technical research, an information "clearing house," and compliance monitoring and assistance tools. Click here for EPA's Phase II information.

For compliance assistance, local governments can contact the Local Government Assistance Network at 1-877-TO-LGEAN or www.lgean.org. The American Public Works Association has developed a guidance document, "Designing and Implementing an Effective Storm Water Management Program (2002)," which can be found at www.apwa.net.

For direct one-on-one help, municipalities may want to consider working with a qualified environmental consultant. A number of environmental consulting firms have on-staff stormwater specialists who are experienced and trained to evaluate MS4s for applicability to the Phase II rule. A specialist also can assist with submittal of the NOI form to the permitting authority, as well as help to implement required control measures.

Phase II of the NPDES stormwater program represents the next logical step in the Clean Water Act for addressing non-point source pollution problems. Taking a proactive approach is critical. By doing so, targeted municipalities can breathe a sigh of relief come the March 10, 2003 deadline. In addition to avoiding costly penalties, municipalities will be doing their part to help keep our nation's waters clean.

Ralph Vasquez is a senior regulatory compliance specialist and head of the Storm Water Compliance Group environmental consulting firm Environmental Business Solutions (www.ebsenvironmental.com), an SCS Engineers Company headquartered in San Diego. Copyright by the author.

December 2002