EPA finalizes Phase II regs
Last December, 10 years after it finalized Phase I of the National Pollutant Discharge Elimination System (NPDES) program, EPA published the Phase II requirements, targeting operators of small municipal separate stormwater systems (MS4s). Encompassing permitting, stormwater management planning, and implementation of best management practices, Phase II will affect more than 5,000 local governments serving populations less than 100,000.
Who does it affect?
The Clean Water Act, as amended by the Water Quality Act of 1987, mandates that EPA develop rules to control water pollution caused by point sources. Phase I of the resulting rules requires NPDES permits for stormwater discharges at medium and large MS4s(i.e., those systems serving populations of 100,000 or more) and for 11 categories of industrial activity, including construction that disturbs 5 acres or more of land. Rather than setting numerical limits, the regulations have established “Maximum Extent Practicable” as the standard for measuring permit performance.
Like Phase I, the latest requirements target MS4s and construction. Both phases also share a focus on best management practices, and EPA is leaving it to the cities to determine what those are. That means that, on a case-by-case basis, the cities can choose their own methods for reducing stormwater runoff and complying with permit requirements. According to EPA, the options are extensive — ranging from filter fences and storm drain inlet protection to public education programs and local stormwater ordinances.
Specifically, the Phase II program requires NPDES permits for regulated small MS4s and construction disturbing 1 to 5 acres of land. It also revises the Phase I requirements, providing conditional exemption to industrial facilities. (If a plant meets “no exposure” criteria — that is, if stormwater is not exposed to industrial processes or materials at the site — the facility operator can submit written certification of that fact in lieu of applying for a permit.)
Operators of MS4s located in urbanized areas (according to the U.S. Census Bureau, areas where the population is greater than 50,000, and density is greater than 1,000 persons per square mile) are automatically subject to the Phase II program, unless they are already participating in Phase I. In addition to small cities, those could include military bases, large hospitals, prisons, universities and sewer districts.
Additionally, EPA has established guidelines for designating other Phase II participants. For example, in jurisdictions with populations greater than 10,000 and densities of 1,000 people per square mile, the NPDES permitting agency has the authority to review systems and determine whether compliance is required. Furthermore, any individual can petition the permitting agency to evaluate a small MS4.
Operators of construction sites that disturb 1 to 5 acres of land are designated automatically as Phase II participants. Also, operators of construction sites disturbing less than 1 acre could receive the designation if the NPDES permitting agency determines that the site could produce a significant level of pollution or contribute to violation of a water quality standard.
The management plan
To comply with Phase II permitting requirements, operators of small MS4s must develop stormwater management programs that reduce stormwater discharge to the maximum extent practicable. (Proposed management strategies are incorporated into each permit. Carrying out the conditions of the permit is, therefore, recognized as reducing stormwater pollutants to the maximum extent practicable.)
Over the next three years, the operators must evaluate their existing systems and plan to address the following minimum control measures.
1. Public education and outreach on stormwater impacts. Phase II participants must determine how to enlist the public in reducing stormwater pollution and then educate the public on the impacts of and solutions to stormwater pollution.
2. Public involvement and participation. During development of their overall management plans, cities must adhere to state and local public notice requirements. EPA recommends that the public be included in the planning phase and that programs be provided to allow for direct participation in pollution prevention activities.
3. Illicit discharge detection and removal. Participants must develop and enforce a program to detect and eliminate illegal connections to storm sewer systems. They must develop maps identifying major outfalls, along with the names and locations of receiving waters, and they must incorporate education elements for public employees, the general public and businesses.
4. Construction site stormwater runoff control. Operators of Phase II construction sites must develop and enforce programs that control stormwater pollutant levels. Their plans must address: * legal mandates to control sedimentation and erosion; * implementation of best management practices on site; * waste management; * site plan review; * site inspection and enforcement of mandates; and * methods for gaining public input on site problems.
5. Post-construction stormwater management in new development and redevelopment. The Phase II program requires the use of local ordinances and permits to establish authority for controls on new development, redevelopment and long-term maintenance. Additionally, operators of MS4s must set guidelines, ensuring that developers maintain best management practices and control runoff after construction is completed. The post-construction control measure has enormous implications for cities; even if the local government does not own or operate the site, the measure will require input from planning and public works departments, as the city is responsible for ordinances, project review, inspections, enforcement and drainage system maintenance.
6. Pollution prevention/good housekeeping for municipal operations. Phase II participants must develop internal programs to train employees and to establish practices that will prevent or reduce pollutant runoff from municipal operations. Specifically, the requirement targets employees involved in parks and open space maintenance, fleet and building maintenance, new construction and land disturbances, and stormwater sewer system maintenance.
EPA emphasizes that cities are not prohibited from using existing programs to satisfy the control measures. Additionally, the Stormwater Management Plan must describe the best management practices and establish measurable and reportable goals. Results must be reported to the permitting agency annually during the first permit period (typically five years), and participants must maintain three years of records that document compliance activities, completion of goals and other information required by the permitting agency.
Permit application
Although cities have until March 10, 2003, to obtain Phase II permits, there are multiple dates that officials will want to track in the meantime. (See the chart on page 48.) For example, NPDES permitting agencies must establish criteria for communities outside urbanized areas, and they must decide whether to use individual or general permits.
EPA is encouraging the use of general permits to streamline the permitting process. (The agency is developing a model permit and a menu of best management practices as part of a toolbox for Phase II communities; see www.epa.gov on the Web.) To apply for a general permit, the city would submit: * a Notice of Intent to comply with the conditions of the general permit; * a Stormwater Management Plan identifying the goals of the city’s program; * a description of best management practices that will be employed; and * a timeline for implementation.
Operators of MS4s and construction sites must complete Phase II implementation before the end of their first permitting period. Although that means that the deadline could be years away for many cities, officials can use that period to produce significant time and cost savings. For example, neighboring cities/jurisdictions can begin planning now for joint ventures and shared resources.
Additionally, the Notice of Intent will commit a community to a course of action that could affect development procedures, design criteria, construction inspections, etc., significantly. Officials can begin analyzing the potential impacts of a program and identifying the interlocal agreements, budgetary needs and regulatory changes necessary to fulfill the plan.
The authors are employed by Ogden Environmental and Engineering Services, Greensboro, N.C. Elizabeth Treadway is senior consultant in the Greensboro office; Andrew Reese is vice president in the Nashville, Tenn., office; and Douglas Noel is technical director in the Louisville, Ky., office.