Storm Water Management Regulations

Introduction

Significant improvements have been achieved in controlling pollutants that are discharged from sewage and wastewater treatment plants. Across the nation, attention is being shifted to other sources of pollution such as stormwater runoff.  Stormwater management, especially in urban areas, is becoming a necessary step in seeking further reductions in pollution in our waterways and presents new challenges. Stormwater runoff normally cannot be treated in the same way as accomplished by sewage and wastewater treatment plants. More often than not, end-of-pipe controls are not the best answer for removing pollutants from stormwater runoff. Pollutants in runoff enter our waterways in numerous ways and the best way of control is usually at the pollutant's source. Sometimes, significant improvements can be made by employing best management practices, or "BMPs". Proper storage of chemicals, good housekeeping and just plain paying attention to what's happening during runoff events can lead to relatively inexpensive ways of preventing pollutants from getting into the runoff in the first place and then our waterways.

The EPA and the NYSDEC are increasing their attention in several ways. Some activities, including construction activities disturbing 5 or more acres, are now required to obtain SPDES permits which authorizes the discharge of runoff to surface waters. There are SPDES General Permits for Stormwater available for this purpose. The general permits require the activity to implement stormwater management measures for controlling pollutants in the stormwater runoff. Although it's only a proposal at this time, the Phase 2 regulations will widen the types of activities needing a SPDES permit to include separate storm water systems in urban areas and construction activities disturbing less than five (5) acres.

Future Stormwater Requirements: (Discussion of Phase I and Phase II)

Point Sources

The 1972 amendments to the Federal Water Pollution Control Act (referred to as the Clean Water Act), prohibit the discharge of any pollutant to navigable waters from a point source unless the discharge is authorized by a National Pollutant Discharge Elimination System (NPDES) permit. Efforts to improve water quality under the NPDES program have traditionally focused on reducing pollutants in discharges of industrial process wastewater and municipal sewage. At the onset of the program in 1972 many sources of industrial process wastewater and municipal sewage were not adequately controlled, and represented addressing environmental problems. In addition, sewage outfall and industrial process discharges were easily identified as responsible for poor, often drastically degraded water quality conditions.

Since enactment of the 1972 amendments to the Clean Water Act, significant progress has been made in cleaning up industrial process wastewater and municipal sewage. Continuing improvements are expected for these discharges as the NPDES program continues to shift to toxic and water quality-based pollution control.

Nonpoint sources

With the vast improvements in pollution control of point source discharges it became evident that more diffuse sources (occurring over a wide area) of water pollution, such as urban runoff, were also a major cause of water quality problems. The focus was beginning to shift to nonpoint source pollution. The appropriate means of regulating storm water discharges within the NPDES program has been a matter of serious concern since implementation of the NPDES program. Each attempt to devise a workable program has been the focus of substantial controversy, in view of the large number of storm water sources, the nature of storm water runoff and the realities of program priorities and resources.

Initial Exemption for Stormwater

In 1973, EPA promulgated its first storm water regulations which exempted urban runoff if it was not contaminated by industrial or commercial activity. Because of the intermittent, variable and unpredictable nature of storm water discharges, EPA reasoned that the problems caused by storm water discharges were better managed at the local level through nonpoint source controls such as the imposition of specific management practices to prevent the pollutants from entering the runoff. The Agency also justified its decision by noting that issuing individual NPDES permits for the hundreds of thousands of storm water point sources in the United States would create an overwhelming administrative burden and would divert resources away from control of industrial process wastewater and municipal sewage, which at the time, were more pressing and identifiable environmental problems.

Phase I

There were a series of legal challenges to EPA's approach to stormwater pollution abatement and the NPDES permit process as it related to nonpoint source pollution. As a result of those legal challenges and comments from various municipalities around the country, the NPDES regulations evolved until the EPA promulgated the final Phase I storm water regulations on November 16, 1990. This final regulation establishes requirements for the storm water permit application process. It also sets forth the required components of municipal storm water as a preliminary permitting strategy for industrial activities. In implementing these regulations, EPA and the States will strive to achieve environmental results in a cost effective manner by placing high priority on pollution prevention activities, and by targeting activities based on reducing risk from particularly harmful pollutants and or from discharges to high value waters.

Phase II

The U.S. Environmental Protection Agency has recently proposed issuing new construction storm water permits which will increase the scope of the permitting program. Under the proposal the scope of the new permits will extend to specifically designated sites under five acres and expand conditions for protecting endangered species and historic properties. The proposed permit adds requirements for public notification and pollution prevention plan performance objectives.

While the proposed permits will not impose a limitation or performance standard in the permit, EPA said it believes required storm water management measures will remove at least 80 percent of total suspended solids from at construction site run-off. The agency said total suspended solids also provide a parameter for controlling other pollutants, including heavy metals, oxygen demanding pollutants, and nutrients commonly found in storm water discharges.

The agency said the existing permits were first issued in 1992 and most will expire in September 1997. The permits authorize stormwater discharges from construction sites and currently apply to construction sites which are larger than five acres.

The permits call for sediment and erosion controls, storm water management measures; and construction site housekeeping best management plans. EPA said permittees must develop and implement four classes of controls in the pollution prevention plan. The first three include:

* Erosion and Sediment Controls

* Stabilization Practices

* Structural Practices

to divert flows from exposed soils, store flows, or otherwise limit runoff and the discharge of pollutants from exposed areas of the site. For sites with more than 10 disturbed acres at one time and served by a common drainage location will require a temporary or permanent sediment basin.

EPA estimated the cost for providing sediment and erosion controls from $1 to $5 per square foot for seeding mulching and riprap drainage swales. And around $6 pre linear foot silt fences and earth dikes.

Other measures such as traps, sump pits and sediment basins will cost between $500 and $50,000 depending upon application and size.

Lastly, in some cases the Storm Water Management plan will need to cover discharges of pollutants from storm water management structures after construction ceases. EPA pegged the annualized costs of several storm water management of options a between about $3000 for 9 acre developed area to as much as $10,000 for 20 acre developed area.

EPA said it will require all permit applicants to follow procedures to ensure protection of listed species and critical habitat. That requirement will extend to off-site area located in the path through which contaminated point source storm water flows to the point of discharge into the receiving water. EPA is soliciting comment on whether the scope of protection should be broadened to encompass listed species found on the entire construction site and not just those species found "in proximity" as currently defined.

Potential Impact on New York State of Phase II Regulations

There are basically three groups of activities that will be affected by the proposal:

(1) Phase 1 activities;

(2) Construction activities disturbing between 1 and 5 acres ("other" activities); and

(3) "Urbanized" smaller municipalities. These are discussed in greater detail below.

Phase 1 activities

The scope of activities covered by the NPDES regulations under 122.26(b)(14) will be unchanged, maintaining the original eleven categories of activities, including 122.26(b)(14)(x) which pertains to runoff from construction activities that disturb 5 or more acres. There are, however, several impacts that the proposal will have on these existing eleven groups of activities.

The permit exemption for industrial-type activities that are operated by small municipalities will expire. For example, storm water runoff from POTWs and construction activities for small municipalities will need to obtain permit authorization by August 7, 2001.

"Light industry" activities identified under 122.26(b)(14)(xi) which previously didn't have to do anything if materials weren't exposed to storm water will have to provide certifications of "non-exposure" to NYS under the proposal. Non-exposure certifications will need to be submitted for each permit term (i.e. 5 years) and will also be applicable to the other categories of activities listed under 122.26(b)(14) except construction activities under 122.26(b)(14)(x).

"Other" Activities(i.e. construction between 1 and 5 acres)

The proposal establishes a new section, 122.26(b)(15), which deals with construction activities disturbing more than 1 but less than 5 acres. Storm water runoff from these activities will need a permit by May 31, 2002 unless waived by the permitting authority (i.e. DEC).

There are potential waivers based upon certifications to DEC where: (1) the "R" factor (soil erosivity factor) is less than 2; or (2) the soil loss will be less than 2 tons per year; or (3) where storm water controls are not needed based upon TMDLs and watershed plans.

EPA estimates that there are 110,000 of these construction activities nationwide.

Small Municipalities

EPA has amended the stormwater regulations to require that operators of municipal separate stormwater systems ("MS4"s) within "Urbanized Areas" develop programs for the control of stormwater under their jurisdiction. Urbanized Areas are defined by the US Census. New York State has 14 Urbanized Areas. These are:

1.Danbury Connecticut-NY State

2.Stamford Ct - NY State

3.Buffalo - Niagara Falls

4.Glens Falls

5.Albany - Schenectady - Troy

6.Binghamton

7.Elmira

8.Ithaca

9.Newburgh

10.Poughkeepsie

11.Rochester

12.Syracuse

13.Utica - Rome

14.New York City - Northeastern NJ

There are 44 cities, 183 villages and 141 towns within New York State's urbanized areas. All of the MS4s within these urbanized areas must adopt a minimum program (described below).

EPA has also identified another 25 municipalities (cities and villages) which are located outside of an urbanized areas. MS4s within these jurisdictions are potentially subject to permitting under the storm water program because of their population (> 10,000) and density (> 1,000/square mile).

New York State will have to develop and implement criteria and a process for designating additional municipalities for inclusion into the storm water program. Candidates for designation include municipalities described in the previous paragraph, DOT, the NYS Thruway, correctional facilities, universities and military bases. NYS will also need to consider inter-connected systems as well as the possibility of public petitions for designating additional municipal candidates. The deadline for designation is May 31, 2002 or May 31, 2004 where comprehensive watershed plans exist. Permits applications would be required 180 days afterwards.

Waivers would be possible provided that the municipality is small (<1,000 people) and there are watershed plans where TMDLs address the pollutants of concern.

Permits for small municipalities would need to be issued by NYS by March 1, 2002 and would focus on six (6) minimum areas

1.Develop an educational program to encourage public awareness of stormwater issues

2.Increase Public Participation and involvement in decisions involving stormwater

3.Institute a trackdown system to determine the cause of and remedy illicit connections

4.Review development plans to insure the adequacy of construction site runoff controls

5.Inspect stormwater facilities to insure that they are performing as designed

6.Adopt and institute a stormwater management pollution prevention program at facilities operated by the municipality

The resulting local programs would be comprehensive and address a wide range of activities under the control of the municipality such as industrial-type activities, construction, post-construction needs, flood control, salt storage and snow removal, fleet maintenance, parks and golf course management and sewer system maintenance to name just a few.

New York State would need to establish a list of acceptable BMPs and small municipalities would have to report annually to DEC on their implementation. NOITTs would be submitted by May 31, 2002 for review by New York State.

List of NYS Urbanized Communities

Likely Subject to EPA Phase II Regulations (by County)

Please note that the regulations are only PROPOSED at this time.

These communities are located either entirely or partially within one of New York's 14 urbanized areas

MS4s within the urbanized portion of these communities will likely be required to develop Phase II stormwater programs. (Urbanized areas are generally contiguous census blocks with population densities of greater than 1000 persons per square mile.)

EPA defines an MS4 as "...a conveyance or system or conveyances (including roads with drainage systems and municipal streets) that is owned or operated by the Federal government, a State, city, town borough, county, parish, district,association, or other public body designed or used for collecting or conveying stormwater which is not a combined sewer and which is not part of a Publicly Owned Treatment Works as defined at 40 CFR 122.26"

Cayuga Lake Watershed Municipalities Proposed for Coverage Under Phase II

Cayuga Heights (V) Tompkins

Dryden (T) Tompkins

Ithaca (C) Tompkins

Ithaca (T) Tompkins

Lansing (T) Tompkins

Lansing (V) Tompkins

SPDES General Permit for Stormwater Information Background

Passage of the Federal Water Pollution Control Act of 1972, amended later and known as the Clean Water Act (CWA), included the revised permitting program identified as the National Pollutant Discharge Elimination System (NPDES).

The CWA also identified the types of activities that needed authorization for the discharge of pollutants to the nation's waterways and established a hierarchy of standards and deadlines that the discharger had to meet.

The 1987 CWA amendments specifically identified the types of stormwater discharges requiring permit authorization and established deadlines for their achievement. New York State administers its State Pollutant Discharge Elimination System (SPDES) program which serves as the authorizing mechanism for activities in the State to comply with the NPDES program.

Purpose of the Permitting Process

Whenever somebody discharges to a "Water of New York State," they first need authorization to do so, which usually is accomplished by obtaining a SPDES permit from the DEC. This permit contains provisions under which the discharge is allowed to occur. A SPDES permit also satisfies the federal NPDES requirements since the DEC has an approved NPDES program which is administered in lieu of the EPA issuing NPDES permits in New York State.

Since 1975, SPDES permits have been issued mostly on a site-specific basis and have been tailored to an individual activity which often has been either a sewage or wastewater treatment facility. These individual, site-specific SPDES permits contain limits on the quantity and quality of the discharge. Permits often requite self-monitoring in order to facilitate and enable the permittee to gauge compliance with his/her effluent limits. Individual SPDES permits also contain other appropriate provisions for safeguarding the receiving waters.

More recently, another type of SPDES permit has emerged; a general permit which is issued to a class (or category) of similar activities. Instead of an application for an individual SPDES permit, eligible dischargers may obtain the authority to discharge by submitting a completed Notice of Intent, Transfer or Termination (NOITT) form. Just like any other permit, activities which are covered under the general permit are required to comply with the provisions of the general permit. The most notable provision of the general permits for stormwater is the implementation of a pollution prevention plan that is tailored to the specific site and continually updated. The plan is made up of various Best Management Practices (BMPs), inspections and other requirements, each of which is aimed at controlling pollutants at their potential source(s).

As of this writing, there are two SPDES general permits for stormwater in effect. Another general permit for concentrated animal feeding operations (CAFOs) was issued in early July 1999. There are bound to be even more general permits in the future, especially when the Phase 2 regulations become final. General permits provide an alternative to individual SPDES permitting and are available to any discharge which meets the eligibility provisions contained in the general permit. A discharger may have appropriate authority to discharge stormwater under either type of SPDES permit. Although the DEC would prefer that a facility have a single SPDES permit addressing all discharge sources, the recent federal regulations and associated deadlines have made it necessary for some activities to obtain SPDES authorization for a portion of its discharges under an individual permit and some stormwater discharges under the general permit. In time, however, it is the intent of DEC to amalgamate SPDES authorization under a single permit.

Advantages of a General Permit

Simple NOITT form

Quicker availability

Permit provisions

Lesser annual regulatory fee

General Construction Activity Stormwater Permit

(GCSP) application process begins with the filing of a Notice of Intent, Transfer or Termination (NOITT). The NOITT consists of a two page application and a letter size map. There is no filing fee, but a fee of $50. per year is charged by NYSDEC. Bills for this fee are scheduled to be sent out in June or July of each year. Do not send money until you are billed to do so.

NOITT's are to be sent to:

NOITT

NYSDEC

50 Wolf Road

Albany NY 12233-3505

Who, When, and Why

Owners of lands which discharge stormwater associated with construction activity must apply for a permit if activities involve the disturbance of five (5) acres or more. Construction activity that results in a land disturbance of less than five (5) acres, but which is part of a larger common plan of development or sale, must also be covered by a permit.

Construction activities do not include routine maintenance performed by public agencies, or their agents, to maintain original line and grade, hydraulic capacity, or original purpose of facility, or emergency construction activities required to protect public health and safety.

Owner(s) of new construction must file an NOITT prior to commencement of clearing, grading, or excavation.

Owners of ongoing construction must file an NOITT along with a letter of explanation for late filing. For ongoing construction activity involving a change of ownership, the new owner must submit a new NOITT within 30 days or ownership.

Permit Conditions and Requirements

The GCSP prohibits the discharge of materials other than storm water and all discharges which contain a hazardous substance in excess of reportable quantities established by 40 Code of Federal Regulations (CFR) 117.3 of 40 CFR 302.4, unless a separate NPDES permit has been issued to regulate those discharges.

Permits for storm water discharges associated with construction activity must meet all applicable provisions of Sections 301 and 402 of the CWA.

After submitting an NOI and receiving notification of coverage under the GCSP, you must do the following:

Develop and implement a Stormwater Pollution Prevention Plan (SWPPP) as described in Section A of the GCSP.

Develop and implement a Monitoring Program as described in Section B of GCSP.

Retain all records for a period of at least three (3) years after construction is completed.

Penalties

For falsification of reports, penalties of no more than $10,000 and/or imprisonment of no more than two (2) years.

For violations of permit conditions, penalties are a fine of no more than $25,000 per day as well as any other sanction provided by Section 309 of the Clean Water Act (CWA).

Other Stormwater Management & Erosion Control Permit Information

General Permit for Stormwater Discharges Associated with Industrial Activity from Construction Activities

Stormwater Permits for Industrial and Commercial Properties

General Permit for Construction Activities Erosion and Sediment Control Guidelines

General Permit for Construction Activities The Stormwater Management and Erosion Control Plan

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