CWEA P3S Committee & WEF Stormwater Regulatory Framework: - - PowerPoint PPT Presentation

Stormwater Regulatory Framework: National Perspective

August 26, 2015

Claudio H. Ternieden Director of Government Affairs Alexandria, VA

CWEA P3S Committee & WEF

Who is ‘WEF’?

• Est.1928/ 35,000+members
• Local presence: CWEA
• WEFTEC / Congress
• Publications
• Technical/Advocacy
• www.stormwater.wef.org
• www.wef.org

Why Stormwater, Why Now?

• Dominant Water Quality Drivers?
• Wet Weather Issues
• Diminishing Returns
• Climate Change Impacts

The Rise of Nonpoint

Source: William Ruckelshaus, A New Shade of Green, The Wall Street Journal, April 17, 2010

Point Source vs. Nonpoint Source Water Quality Impairments

1970 2010

40 yrs

Compelling Driver for Change!

photo credit James Thomas, from Cleveland Press Collection, Cleveland State University Library

From http://crlazlo2.blogspot.com/

Compelling Driver for Change?

Compelling Driver for Change?

NRDC, 2013 Boston Globe, 2013 Forestsforwatersheds.org, 2014 Wri.org, 2014

pedshed.net, 2013

Opportunity for Change!

City of Chicago, 2013 City of Philadelphia, 2013 City of Philadelphia, 2013

What is stormwater or “runoff”?

Stormwater runoff is the excess water that “runs

• ff” the landscape from precipitation inputs after

infiltration and evapotranspiration has occurred

Hydrologic Cycle

Factors Impacting Runoff

Factors:

• Rate/duration of rainfall (Input)
• Topography of the land (Response)
• Dominant soil type/conditions (Response)
• Density/type of vegetation (Response)
• Land use/cover type and distribution (Response)
• Storage (ponds, lakes, etc.) (Response)
• Connectivity of impervious flowpaths (Response)
• Size/shape/slope of watershed (Response)

The Virginian Pilot December 5, 2010

Examples of Pollutant Sources Associated with Stormwater Discharges

• Oil & grease from cars
• Lawn /agricultural

fertilizers

• Animal waste
• Grass clippings
• Failing septic systems
• Sewage & cleaners from

boats

• Household cleaning

products

• Trash / litter

Stormwater Runoff Impacts

Pollution Hydraulic modifications Ecological impacts Property / infrastructure damage Fines and lawsuits Relationship with the public

Pollutants Associated with Runoff

Sediment Soil particles transported from their source Biochemical Oxygen Demand (BOD)

• Oxygen depleting material
• Leaves
• Organic material

Toxics

• Pesticides
• Herbicides
• Fungicides
• Insecticides
• Metals
• Lead
• Zinc
• Mercury
• Petroleum Hydrocarbons

Debris Litter and illegal dumping Nutrients

• Various types of materials that become

dissolved and suspended in water (commonly found in fertilizer and plant material):

• Nitrogen (N)
• Phosphorus (P)

Bacteria/ Pathogens Originating from:

• Pets
• Waterfowl
• Failing septic systems

Thermal Stress Heated runoff, removal

• f streamside

vegetation

Silted up pond

Hydraulic Modification

Impacted channel

What is impervious cover?

Hardscapes and other surfaces that do not allow stormwater to infiltrate into the ground

• Roads, rooftops, parking lots, tennis courts, etc.

Are residential lawns “impervious”?

• Spectrum of perviousness
• Highly compacted soils
• Limited evapotranspiration

Impervious Cover

• Accumulates/stores

pollutants

• Increases runoff

volume

• Reduces recharge of

groundwater

“Natural” conditions

The Impact of Development

• n Stormwater Runoff

The Impact of Development

• n Stormwater Runoff

Low density development

Medium density development

The Impact of Development

• n Stormwater Runoff

Urban development

The Impact of Development

• n Stormwater Runoff

Hydraulic Modification

Particle Size Stream Slope

Flatter Finer

DEGRADATION AGGRADATION

Impervious Cover & Stream Quality

At 10% impervious cover, stream degradation (e.g., changes in the aquatic biological community) is detectable.

• As low as 2% can show impacts as well

At 25-40% impervious cover, streams no longer support biological/human uses.

Impervious Cover & Stream Quality

Center for Watershed Protection, 1999

Types of Impacts

Physical

Unstable habitat for fish and macroinvertebrates

Water Quality Impacts

Nutrients

Nutrients Algae Photosynthesis and Respiration

Water Quality Impacts

Nutrients

USGS, 2008

Water Quality Impacts

Nutrients – Dead Zones

Maryland Sea Grant, 2013 Scientific American, 2008 NASA, 2008

• Univ. MD, 2003

Water Quality Impacts

Sediment

Water Quality Impacts

Heavy Metals

Toxic at certain concentrations

Water Quality Impacts

Heavy Metals

Bioaccumulation

Zooplankton (0.123 ppm) Phytoplankton (0.025 ppm) Lake Trout (4.83 ppm) Smelt (1.04 ppm) Herring Gull Eggs (124 ppm)

Water Quality Impacts

Heavy Metals

Bioaccumulation

Water Quality Impacts

Dissolved Oxygen

Dissolved oxygen needed by aquatic

• rganisms

Without dissolved oxygen, heavy metals and toxics can desorb Without dissolved oxygen, organic material will decay to form ammonia

Water Quality Impacts

Dissolved Oxygen

Ecological Impacts

Types of Ecological Impacts

Biological

Trash/debris can harm wildlife Chemical contaminants can harm biota Physical changes can harm biota

Types of Ecological Impacts

Biological

Smother fish eggs Clog and abrade fish gills

Flooding Impacts

Property and Infrastructure Damage

Infrastructure Damage

Policy Overview

• Stormwater Rulemaking
• Stormwater Utilities
• Retention, Retrofit Requirements

National Stormwater Rulemaking

Elements Considered

• Establish first national performance

standard for stormwater

• Standard was to be retention-based
• Expand MS4 coverage/extents
• Would have likely NOT addressed

retrofits

Policy/Legal Updates

• Stormwater Utilities
• Retention-based Approach
• Residual Designated Authority (RDA)
• Integrated Management
• Water Quality Trading
• Others…

Stormwater Utilities

Stormwater Fees

• Is it a fee or a tax?
• Confers benefits, scales with service, requires

vote by the public, etc.?

• Michigan and Missouri and others dealing with this
• Public opinion is tough
• Los Angeles dealing with this
• Maryland is a good example…

Policy - Big Picture What does this point to?

• Busy (and Exciting)!
• Nascent / Evolving Field
• Funding is a Big Issue
• Regulatory Uncertainty Exists
• Modernize the CWA? (Ag?)
• 83% - point source goals TMDLs achieved
• 20% - nonpoint source goals TMDLs achieved
• 1,000 years needed to reach goals!!!

Innovation in Sector

Innovation in Stormwater

Innovative Financing/Funding

• CWA ~ national treatment standard for wastewater
• Was a PARTIALLY FUNDED mandate (half of total public

capital, 1/3 of total capital came from Const. Grants Prog.)

• EPA stormwater rulemaking ~ national standard for

stormwater

• Will be (would’ve been?) an UNFUNDED mandate
• Private / large local (public) investment will be needed

U.S. EPA, 2000 U.S. EPA, 2000

Infastructure Investment Needs

Clean Watershed Needs Survey EPA in 2008

• $100B for CSOs / stormwater* (60% / 40%)

*Does not include estimates for changing regulations

• 67% growth in stormwater from ’04 to ’08
• $25.4B in ‘04 to $42.3B in ’08 – largest growth sector
• 7 states reported 85% of needs
• NJ ($15.6B), PA ($6B), CA ($3.8B), MD ($3.8B), TX

($3.1B), FL ($2.5B), NY ($1.1B) – what about others?

• Other states cited lack of time/budget to document needs
• r documentation difficulties

Innovative Financing/Funding

• Regulations driving demand in sector
• Traditional funding problematic
• It’s not 1972…

Public/traditional funding inadequate to meet needs

Innovative Approaches

• Incentive-based (Philadelphia, PA)
• Market-based (Washington, D.C.)
• Public-Private Partnership (P3) (Prince

Georges County, MD)

Innovative Financing/Funding

Innovative Financing/Funding

Interest in public-private partnerships (P3s)

• “Privatization” message has changed
• History in transportation sector
• Entities looking for long-horizons with low-

risk, low returns

• EPA Region 3 – Community-based P3
• Prince George’s County, MD

Other Innovation

WEF Stormwater Institute

• MS4 Awards
• National Stormwater Green Infrastructure

Certification Program

• Stormwater Advocacy
• Stormwater Publications

www.stormwater.wef.org

Other Issues

• Big data in stormwater
• Real-time control / optimization
• Cost for monitoring dropping
• Data, data, data…
• Numeric limits?
• Drones and self-driving

cars and stormwater?

Agrinews-pubs.com, 2014

The Future?

Phase II Regulations – Small MS4 General Permits (40 CFR 122.33-34)

If you are the operator of a “small MS4”, you are required to seek coverage under an individual or general NPDES permit

• Vast majority of small MS4s are permitted under a state general

permit To be covered under a general permit:

• The small MS4 must develop a stormwater management

program that is designed to reduce the discharge of pollutants from the MS4 “to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the CWA.”

• The small MS4 must submit a Notice of Intent (NOI) to the

permitting authority

• The NOI must include (1) information on the BMPs that will be

implemented for each of the six minimum control measures, (2) the measurable goals that will be achieved for each of the BMPs (deadlines and interim milestones), and (3) the persons responsible for implementing the MS4’s stormwater management program

EDC v. EPA decision (Ninth Circuit, 2003)

Focus of the ruling: Ninth Circuit found deficiencies in the Phase II stormwater regulations regarding the procedures to be used for providing coverage to small MS4s under general permits The court vacated the relevant portions of the Phase II regulations, and remanded to EPA to fix the deficiencies:

• 1. Lack of permitting authority review:
• “In order to receive the protection of a general permit, the operator
• f a small MS4 needs to do nothing more than decide for itself what

reduction in discharges would be the maximum practical reduction.”

• “No one will review that operator's decision to make sure that it was

reasonable, or even good faith.”

• 2. Lack of public participation in permit process:
• “… we conclude that … EPA’s failure to make NOIs available to the

public or subject to public hearings contravene the express requirements of the Clean Water Act.”

NRDC/EDC petition to Ninth Circuit (2014)

Petitioners asked the Ninth Circuit to require EPA to take action to address the 2003 EDC v. EPA ruling Petition requests the Court to order EPA to take the following actions:

• Immediately revise its Phase II small MS4 regulations include a

statement that directs permitting authorities to comply with the 2003 EDC order pending further rulemaking. “This action is needed to ensure that state permitting agencies do not continue to mistakenly rely on the vacated rules.”

• Propose within 6 months (and finalize within 6 months after that

date) a rule revising the Phase II small MS4 regulations to address the “procedural deficiencies” found in the Court’s 2003 order.

Ninth Circuit has given EPA until June 12 to respond

EPA Memorandum (2004)

Provided recommendations to permitting authorities for how to administer their general permits in light of the EDC v. EPA ruling Public Availability of NOIs:

• Permits should include language how NOIs will be made available to the

public with sufficient time to allow for a meaningful public comment

• EPA recommendation: make the NOIs available to the public at least 30

days before authorization to discharge Opportunity for Public Hearing:

• EPA recommendation: include permit language explaining the process

for requesting a public hearing on an NOI, the standard by which such requests will be judged, the procedures for conducting public hearing requests that are granted, and the procedures for permitting authority consideration of the information submitted at the hearing Permitting Authority Review of NOIs:

• Permitting authority needs to conduct an appropriate review of the NOIs

to ensure consistency with the permit

• Official approval of the NOI is not necessary, but the general permits will

need to specify when authorization occurs (e.g., after notice from the permitting authority, or after the expiration of a waiting period)

Other EPA Guidance

MS4 Permit Improvement Guide (2010) Revisions to 2002 Memorandum on TMDLs and Stormwater Permits

• Recommendation that NPDES

permitting authorities establish clear, specific, and measurable permit requirements to implement the minimum control measures in MS4 permits

MS4 Permitting Post-EDC

Some permitting authorities have modified their small MS4 general permit procedures

• Provide a waiting period after NOI is submitted for coverage
• NOIs are public noticed (through website) – public can submit

comments on individual NOIs and/or request a public hearing Some permitting authorities individually review NOIs and stormwater management programs Some permitting authorities have established more specific permit conditions for individual MS4s within the general permit – lessening the importance of the stormwater management program to establishing the substantive requirements Some permitting authorities have decided to individually permit their small MS4s

Possible Rule Scenarios to Address MS4 remand

Scenario 1: Modify procedural requirements for general permits

Include requirements for permitting authority review, public notice of NOIs, and providing the

• pportunity for the public to request a hearing (if

necessary) on individual NOIs/SWMPs Potential rule changes:

• Include new section with specifics on required

procedures

Issues:

• How permit requirements may be changed as a

result of permitting authority review and public notice/hearing comments

Scenario 2: Clarify permitting authority’s role in establishing permit requirements

Clarify that permitting authority is responsible for establishing permit requirements that meet the standard of reducing pollutant discharges to the “maximum extent practicable” and that it has addressed the six minimum measures and other relevant requirements Potential rule changes:

• Include clarifying language that makes it clear that the

general permit is where the enforceable requirements are established

Issues:

• Can the required minimum information in the NOI be

streamlined or cut? How does this affect the permit authority review and public participation issues in the remand?

The Future?

REALLY…..

One Word……

Water Quality Criteria for…

…VIRUSES/BACTERIOPHAGE…

Contact Information

Claudio H. Ternieden Director of Government Affairs WATER ENVIRONMENT FEDERATION 601 Wythe Street Alexandria, Virginia cternieden@wef.org (703) 501-7871