April 9, 2009April 9, 2009

REGULATORY UPDATES REGULATORY UPDATES & INITIATIVES& INITIATIVES

Stormwater ManagementStormwater Management

William Taylor, Esq.William Taylor, Esq.

Why is Stormwater Why is Stormwater Management Management So Important?So Important?

1.1.Other Point Source Discharges Other Point Source Discharges Have Been Subject to Have Been Subject to Permitting and ControlPermitting and Control

2.2.Causes Non Attainment of Causes Non Attainment of WQSWQS

Urban Impaired StreamsUrban Impaired Streams CSO’s – Cost of Treatment and CSO’s – Cost of Treatment and

SeparationSeparation Flooding and ErosionFlooding and Erosion Agricultural RunoffAgricultural Runoff

The Trouble with The Trouble with ImperviousnessImperviousness

Non Attainment IssuesNon Attainment Issues

3.3. If Non Attainment – State Must If Non Attainment – State Must List List

Segment and Develop TMDLSegment and Develop TMDL EPA Must Approve TMDLEPA Must Approve TMDL Must Implement Plan to Correct Must Implement Plan to Correct

ProblemProblem

Non Attainment IssuesNon Attainment Issues

• TMDL’s – Legal Question? TMDL’s – Legal Question? Can An Agency Permit New Can An Agency Permit New Point and Non Point Source Point and Non Point Source Discharges to Non Discharges to Non Attainment Waters?Attainment Waters?

• Can Retrofitting of Existing Can Retrofitting of Existing Development Be RequiredDevelopment Be Required

Stormwater Permitting Stormwater Permitting AuthorityAuthority

• Federal Permitting AuthorityFederal Permitting Authority Point Source Discharge to Waters Point Source Discharge to Waters

of the United Statesof the United States

• State/Local Permitting State/Local Permitting AuthorityAuthority May Include Non Point or Indirect May Include Non Point or Indirect

DischargesDischarges Discharges to Surface and Discharges to Surface and

GroundwaterGroundwater

Types of Stormwater PermitsTypes of Stormwater Permits

• Individual Permits – Large NPDES/SPDES Individual Permits – Large NPDES/SPDES Regulated FacilitiesRegulated Facilities

• Multi-sector PermitsMulti-sector Permits Industrial FacilitiesIndustrial Facilities Municipalities – Separate Storm SewersMunicipalities – Separate Storm Sewers Other Discharges Which May Be Causing Other Discharges Which May Be Causing

Violations of WQS Violations of WQS

33 U.S.C. 33 U.S.C. § 1342(p)§ 1342(p)

• Construction General PermitsConstruction General Permits

• Other State and Local Stormwater LawsOther State and Local Stormwater Laws

Types of Stormwater PermitsTypes of Stormwater Permits

• Individual Permits – Large NPDES/SPDES Individual Permits – Large NPDES/SPDES Regulated FacilitiesRegulated Facilities

• Multi-sector PermitsMulti-sector Permits Industrial FacilitiesIndustrial Facilities Municipalities – Separate Storm SewersMunicipalities – Separate Storm Sewers Other Discharges Which May Be Causing Other Discharges Which May Be Causing

Violations of WQS Violations of WQS

• Construction General PermitsConstruction General Permits

• Other State and Local Stormwater LawsOther State and Local Stormwater Laws

Residual Designation Residual Designation AuthorityAuthority

• Under the Clean Water Act, EPA must Under the Clean Water Act, EPA must exercise permitting authority if an exercise permitting authority if an unpermitted stormwater point source unpermitted stormwater point source is contributing to water quality is contributing to water quality nonattainment.nonattainment.33 U.S.C. 33 U.S.C. § 1342(p)(2)(E)§ 1342(p)(2)(E)

• In delegated states, EPA must act if In delegated states, EPA must act if the state if not permitting the the state if not permitting the sources.sources.

Petition for RDAPetition for RDA

• Any person may petition the Director to Any person may petition the Director to require a NPDES permit for a stormwater require a NPDES permit for a stormwater discharge which contributes to a violation of discharge which contributes to a violation of a water quality standard. a water quality standard.

• There may be a de minimis pollutant level There may be a de minimis pollutant level which would not require a permit.which would not require a permit.

40 CFR 122.26(F)(2)40 CFR 122.26(F)(2)

Status of RDA PetitionsStatus of RDA Petitions

• Charles River – Preliminary Determination Charles River – Preliminary Determination was Issued by EPA on December 28, 2008was Issued by EPA on December 28, 2008

• Long Creek, Maine – Preliminary Long Creek, Maine – Preliminary Determination Issued by EPS on December Determination Issued by EPS on December 31, 200831, 2008

• Burlington, VT –Appeal court requires Burlington, VT –Appeal court requires state to implement permitting program on state to implement permitting program on five Burlington Bay tributariesfive Burlington Bay tributaries

• Rhode Island – Petition to Regulate a Rhode Island – Petition to Regulate a Subdivision’s Discharge to Groundwater – Subdivision’s Discharge to Groundwater – Public Hearings ScheduledPublic Hearings Scheduled

Massachusetts Proposed Massachusetts Proposed Stormwater General PermitStormwater General Permit

1)1) Water QualityWater Quality: ~75% of : ~75% of Massachusetts’ assessed waters Massachusetts’ assessed waters are impaired.are impaired.

2)2) Water QuantityWater Quantity: ~50% of : ~50% of Massachusetts’ assessed Massachusetts’ assessed rivers/streams don’t have enough rivers/streams don’t have enough water during the summer.water during the summer.

In or Out?In or Out?

• ThresholdsThresholds Statewide: > 5 acres impervious Statewide: > 5 acres impervious

areaarea• • Definition of “Regulated Definition of “Regulated Impervious Area”Impervious Area”

• In TMDL Areas: > 2 AcresIn TMDL Areas: > 2 Acres If part in, all in.If part in, all in.

• Aggregate Properties if Managed Aggregate Properties if Managed TogetherTogether

If You’re In…How Do ComplyIf You’re In…How Do Comply With The SWGP? With The SWGP?

• All: Baseline performance Standards All: Baseline performance Standards (aka Good Housekeeping)(aka Good Housekeeping)

• New Developments and New Developments and Redevelopments: install LID Redevelopments: install LID techniques and stormwater BMPstechniques and stormwater BMPs

• In TMDL areas: also meet pollution In TMDL areas: also meet pollution reduction requirementsreduction requirements

• Annual Compliance CertificationAnnual Compliance Certification

Stormwater Utility DistrictsStormwater Utility Districts

• Recover Costs of Handling Recover Costs of Handling SWSW CSO’sCSO’s Infrastructure Infrastructure

Repair/ReplacementRepair/Replacement Sewer SeparationSewer Separation

• Applies to All DischargersApplies to All Dischargers Not a Tax – Service FeeNot a Tax – Service Fee Set Fee by Impervious AreaSet Fee by Impervious Area Different Fees for Different Fees for

Residential/Commercial and Residential/Commercial and IndustrialIndustrial