Why Water Quality Is Now Part of Floodplain Management Richard Smith, INCOG 2012 OFMA Annual Conference Tulsa, OK September 17, 2012

Phase I and II Stormwater Basics A true NPDES permitting program with full penalty provisions as other discharge permits. Addresses urban nonpoint source pollution using point source regulations. Phase I (1990): Cities over 100,000 Specific industrial activities Construction ≥ 5 acres Phase II (1999) addresses cities under 100,000: Urbanized Area, Designated, Construction 1-5 acres

Phase II Permitted Cities 5 counties ODOT OTA OU Tinker AFB Fort Sill AB 5-Year waivers were granted to several; reassess in 2013

Population of Phase II Cities in Oklahoma Double Duty for FPAs !

Six Minimum Control Measures Public Education and Outreach Public Participation and Involvement Illicit Discharge Detection and Elimination Construction Site Runoff Control Post-Construction Runoff Control Pollution Prevention and Good Housekeeping

Important EPA Definitions MS4 40 CFR 122.26(b)(8) “municipal separate storm sewer [system] means a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains)…” Illicit Discharge 40 CFR Part 122.26(b)(2) “Illicit discharge means any discharge to a municipal separate storm sewer that is not composed entirely of storm water…”

Common Pollutants in Urban Stormwater Sediment Nutrients Oxygen-Demanding Substances Pathogens Trash Road Salts Oil and Grease Heavy Metals Heat Petroleum Pesticides Other organics

Future Stormwater Rules and Permits EPA Rulemaking: draft in 2013? / final in 2014? Will address NRC criticisms and EPA’s new strategy. Will focus on LID and flow attenuation. General Permits: OKR05 (industrial activities) finalized 9/5/11. OKR10 (construction activities) finalized 9/13/12. OKR04 (Phase II MS4s) finalized in fall 2013?

Impervious Cover & Runoff Quality Slide data courtesy of Nikos Singelis, EPA

LID and GI: EPA’s Silver Bullets Low Impact Development & Green Infrastructure Techniques that manage stormwater on-site and promote infiltration. Results in pollution reduction as well as volume reduction. Usually addressed in terms of “Best Management Practices” (BMPs). Can be regional, but usually are localized to the property (on-site management). Photos courtesy of Nikos Singelis, EPA

NRC Stormwater Program Report to EPA the current regulatory framework for stormwater has suffered from poor accountability and uncertainty about its effectiveness at improving water quality. EPA's current approach is not likely to produce an accurate picture of the extent of the problem, nor is it likely to control stormwater's contribution to impairing water quality. EPA should adopt a watershed-based permitting system that would encompass all discharges -- including stormwater and wastewater. watershed-based permits should be centralized with a lead municipality that would work in partnership with other municipalities. Quotes from NAS’ National Research Council 2008 Press Release

NRC Report to EPA (cont. 1) bringing construction and industrial sites under the jurisdiction of their associated municipalities, referred to as "integration". allow operators of municipal storm sewer systems to act as the first tier of control. stormwater management will be ineffective without also considering land use management. permit programs could be predicated on rigorous projections of future growth and changes in impervious cover. focus less on chemical pollutants and more on the increased volume of water. Quotes from NAS’ National Research Council 2008 Press Release

NRC Report to EPA (cont. 2) The volume of discharges is generally not regulated at all by EPA. little account is given to the cumulative contributions of multiple sources and pollutants in the same watershed. conserving natural areas, reducing hard surface cover such as roads and parking lots that channel stormwater into waterways, and retrofitting urban areas with features that hold and treat stormwater. Richard’s View: The NRC Report has become EPA’s justification for new guidance, MOUs and possible rulemaking. Quotes from NAS’ National Research Council 2008 Press Release

EPA’s New Stormwater Rule Concepts More permittees, larger areas covered by permits. Create federal LID and GI requirements for new development and redevelopment. Same requirements for all MS4s; no more Phase I or II rules. Retrofitting storm systems and drainage areas to reduce runoff. Special stormwater provisions to protect sensitive areas.

EPA Concepts to Reduce Flow Volume Removing impervious cover, Disconnecting impervious cover, Increase use of porous surfaces, Attenuate impervious cover using flow-based LID. Concepts apply to Retrofits and New Development.

EPA’s “Pre-Development” Concept “Pre-development refers to runoff conditions that exist onsite immediately before the planned development activities occur.” “Pre-development is not intended to be interpreted as that period before any human-induced land disturbance activity has occurred.”

EPA’s 2010 ICR* Survey Results Many EPA rule ideas are already employed – encourages EPA to create national standards. 18 States have numeric retention standards – requiring a certain volume of rainfall to be retained on site. 8 states apply MS4 rules statewide – they don’t limit permit coverage to EPA definition of MS4. 2/3 have alternatives such as waivers, appeals, off-site mitigation or in lieu fees. * ICR = Information Collection Rule, a scientific survey of MS4s.

EPA’s 2010 Survey Results (cont.) Most MS4s do not have authority to maintain private systems. Most MS4s have authority to inspect and require owner to operate and maintain systems. Many States have undertaken LID / GI, but found barriers in local codes such as: prohibiting standing water (mosquitoes) minimum parking lot sizes minimum street widths

EPA 2002 Memorandum From EPA Memorandum, November 22, 2002, “Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs” “EPA expects that most [water quality-based effluent limits] … will be in the form of BMPs, and that numeric limits will be used only in rare instances.” “EPA’s policy recognizes that …storm water discharges are … not easily characterized, only in rare cases will it be feasible or appropriate to establish numeric limits for municipal and small construction storm water discharges.”

EPA 2010 Memorandum “Since 2002, States and EPA have obtained considerable experience in developing TMDLs and WLAs …. The technical capacity to monitor stormwater and its impacts …has increased.” Where discharges have the reasonable potential to cause water quality problems, permits should contain numeric effluent limitations. Measurable Goals should be enforceable provisions. PAs should consider BMP numeric benchmarks and monitoring for estimating BMP effectiveness. The 2010 EPA Memorandum was recently pulled for further consideration due to nationwide concerns.

Examples of Current Standards for New Development Volume Retention Data from 2010 EPA PowerPoint

OKR04’s Aquatic Resources of Concern Special BMPs required by MS4s This map will likely be changed to the new OKR10 map.

OKR10’s Aquatic Resources of Concern Special Construction BMPs required

How the December 2009 ELG Changed 2010 court agreement – EPA withdrew 280 NTU (poor science). All other “non-numeric” provisions of ELG still apply: Erosion & sediment controls, Soil stabilization, Dewatering, Pollution prevention measures, Prohibited discharges, Surface outlets. EPA will publish new numerical criteria in 2012 ? Can avoid all NTU requirements if disturbance “at any time” never exceeds acre thresholds (20 acres by 8-11; 10 acres by 2-14). No ELG provisions must be met until revisions to OKR04 and OKR10.

OKR04’s Post-Construction Concerns Of the six MCMs, this one has been the most confusing and contentious nation-wide. Fears of EPA forcing unwanted changes to local zoning and land use codes. Too narrow streets for fire trucks. No sidewalks for residential safety. No curbs and gutters. Forcing a “green philosophy” on cities not desiring such. Requirements vs. Recommendations…

Present OKR04 Post-Construction Text [must]…”Develop, implement and enforce a program to address stormwater runoff from new development and redevelopment projects that disturb greater than or equal to one acre…” [must]…”Develop and implement strategies which include a combination of structural and/or non- structural…BMPs …” [must]…”Use an ordinance…to address post-construction runoff…” [must]…”Ensure adequate long-term operation and maintenance of BMPs.”

OKR04 Examples of Structural BMPs Wet ponds Extended-detention outlet structures Grassed swales Bio-retention cells Sand filters Filter strips Infiltration basins and trenches From Present ODEQ MS4 General Permit (OKR04)

OKR04 Examples of Non-Structural BMPs Policies and ordinances that: Direct growth to identified areas. Protect sensitive areas (e.g. wetlands, riparian areas). Maintain or increase open space. Provide buffers along sensitive water bodies. Minimize impervious surfaces. Minimize disturbance of soils and vegetation. Encourage infill development in higher density urban areas. From Present ODEQ MS4 General Permit (OKR04)

Proposed OKR04 Text and LID / GI Part IV.C.4.b. MCM 4th Construction – Recommendations (2) Develop outreach program for the local development community, including incentives for developers/builders, such as “green developer” recognition. Part IV.C.5.a. MCM 5th Post-Construction – Requirements (4) You must review local ordinances and regulations, and identify the barriers to Low Impact Development (LID). Develop a schedule to remove those barriers that prohibit LID practices in the permit term. (6) You must include an education component for developers and the public about project designs that minimize water quality impacts, including LID strategies.

Proposed OKR04 Text and LID / GI Part IV.C.4.b MCM 5th Post-Construction – Recommendations (2) Consider requirements …to direct growth to identified areas, protect sensitive areas …increase open space … provide buffers … minimize impervious surfaces, …encourage infill development …   (3) Assess … street design and parking lot guidelines … that affect …impervious cover. Determine if …standards … can be modified to support LID design options. (4) Complete an inventory of impervious area …determine the areas that may have the potential to be retrofitted with BMPs (such as LID) … to reduce the frequency, volume and peak intensity of storm water runoff to and from your MS4.

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