Municipal Stormwater Permitting Nancy Stoner Clean Water Project Director Natural Resources Defense Council 1200 New York Ave., NW Washington, DC 20005 (202) 289-2394 nstoner@nrdc.org

Stormwater Program Goals A strong stormwater program achieves water quality goals, including protection of all designated uses, for receiving waters.

Legal Standards Reducing discharges to the “maximum extent practicable” (MEP) Not causing or contributing to violations of water quality standards. Defenders of Wildlife v. Browner, 191 F3d 1159 (9th Cir. 1999). EPA Guidance Establishing TMDL Wasteload Allocations for Storm Water Sources and NPDES Permit Requirements Based on those WLA’s. Clean Water Act Statutory Cites: §403 (p)(3)(B)(iii): a municipal discharge permit “shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, design and engineering methods, and such other provisions as the administrator or the State determines appropriate for the control of such pollutants.” §301 (b)(1)(C): CWA §301(b)(1)(c) mandates compliance with water quality based effluent limitations for any Clean Water Act permit. Clean Water Act Regulations: 40 C.F.R. §122.4(d) mandates without qualification that NPDES ensure compliance with water quality standards.

Implementation: MEP Standard MS4 system must choose the technology that provides the greatest pollutant reduction unless it is determined to be infeasible. Should be applied directly to new and redevelopment proposals, including transportation projects. This is not a fixed standard so as technology progresses, so does the MEP standard.

Implementation: Water Quality Standards Focus attention on areas of greatest/most significant loadings first-TMDL should be designed to facilitate that. Continually upgrade BMPs until WQS are achieved. It may require a compliance schedule if achievement of standards takes more than 5 years.

Procedural Requirements Where general permits are used, Notice of Intent (NOI) outlining MS4 plan for implementing the permit must be approved by permitting authority after opportunity for public comment and a public hearing, if requested. Environmental Defense Center, Inc. v. U.S. EPA, 344 F.3d 832, 858 (9th Cir. 2001). “In sum, we conclude that EPA's failure to require review of NOIs, which are the functional equivalents of permits under the Phase II General Permit option, and EPA's failure to make NOIs available to the public or subject to public hearings contravene the express requirements of the Clean Water Act. We therefore vacate those portions of the Phase II Rule that address these procedural issues relating to the issuance of NOIs under the Small MS4 General Permit option, and remand so that EPA may take appropriate action to comply with the Clean Water Act.” Statutory Cites used in this holding of the EDC v. EPA Case: 33 U.S.C § 1342(j) 33 U.S.C. § 1342(a)(1) 33 U.S.C. § 1251(e)

Implementation of the Chesapeake Bay Agreement on Stormwater MS4 permits should track these commitments Chesapeake Executive Council Directive No. 01-1. Some significant Commitments Include: By 2003, developing and implement procedures to ensure all new developments on public lands provide controls for both stormwater quality and quantity during and following construction. By 2006 install at least 60 innovative stormwater management demonstration projects that strive to achieve no net increase of pollutant loads and mimic predevelopment hydrologic regimes on public lands. By 2008, achieve at least a 30% reduction of chemicals of concern found in stormwater sources from public lands in the three toxic regions of concern (Anacostia River, Baltimore Harbor, and Elizabeth River watersheds). By 2003, each Department of Transportation shall develop a protocol to evaluate stormwater management opportunities for DOT restoration, reconstruction, rehabilitation and new construction projects and by 2006, begin routinely implementing feasible stormwater management practices on such projects.

Other DC MS4 Issues WASA as a Co-Permittee in the DC MS4 permit. DC Stormwater Management Program WASA as a co-permittee: WASA is an operator of discharges from the DC MS4 system and therefore must be either listed as a co-permittee or must obtain its own NPDES permit. By only naming DC government as the sole permittee, EPA has bifurcated responsibility by placing legal responsibility under the District statute with WASA but placing legal responsibility with the District government for permit compliance. WASA as a co-permittee would enhance accountability. Storm water Program-Highlights of Our Comments on the MS4 permit: DC stormwater management plan is vague, inconsistent and inadequate to meet the needs of the District in decreasing storm water pollution. The District should implement low impact development techniques and functional landscaping for road construction redevelopment and retrofitting in order to decrease the amount of stormwater gaining access to the MS4 system from roadways and alleys. The District should institute a downspout disconnection program as well as create greater incentives/encouragement for low impact development on properties city-wide. DC needs a comprehensive floatables control plan that will improve catch basin cleaning and street sweeping programs. Stormwater inspection and enforcement measured must be strengthened to prevent illicit discharges from gaining access to DC waterways.

Funding Stormwater fees must be sufficient to fund the program and include incentives for stormwater minimization. DC Shortfall 1. Flat rate that only generates 3 million dollars a year. 2. According to WASA over 21 million is needed to successfully run their stormwater program. 3. DC WASA has acknowledged that the flat rate was just a start and there is a lack of incentives for property owners to minimize stormwater that flows off of their property with fee credits and/or a reduction in their stormwater fee. Montgomery County, MD 1. Fee is based on impervious surface. Residential properties and all associated nonresidential properties (that discharge into the storm water system) are assessed a fee of $12.75 per Equivalent Residential Unit (ERU). The ERU for each property is defined by the average square footage of the roof, sidewalk and driveway for a single-family dwelling. Montgomery County has assessed this fee based on their growing needs for maintenance and upgrade of their storm water management facilities. See the Montgomery County Water Quality Protection Charge Frequently Asked Questions at http://www.montgomerycountymd.gov/content/dep/SFMP/pdf/faq.pdf and the Water Quality Protection Charge Executive Regulation, No. 6-02 at www.montgomerycountymd.gov/content/dep/SFMP/pdf/execregulation.pdf 2. Even though Montgomery County’s fee structure is equitable (amount of fee increases because of the amount of runoff that is taxing the system for each property) but still need an incentive package for properties that decrease their on-site stormwater by using low impact development, filtration and increased vegetative surfaces to foster percolation.

Conclusion We have to address stormwater pollution if we are going to make progress in urban areas in meeting water quality standards. Stormwater programs must be robust, targeted and continually approved.