Urban Stormwater Management in the United States (2009) / Chapter Skim
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2 The Challenge of Regulating Stormwater
2 The Challenge of Regulating Stormwater
Pages 47-128
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From page 47... ...
This chapter discusses the regulatory programs that govern stormwater, particularly the federal program, explaining how these programs manage stormwater only impartially and often inadequately. While progress has been made in the regulation of urban stormwater -- from the initial emphasis on simply moving it away from structures and cities as fast as possible to its role in degrading neighboring waterbodies -- a significant number of gaps remain in the existing system.
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From page 48... ...
Required EPA to include stormwater discharges in the National Pollution Discharge Elimination System (NPDES) program.
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From page 49... ...
2008) , the court held that it was "arbitrary and capricious" to exempt from the Clean Water Act stormwater discharges containing sediment contamination that con tribute to a violation of water quality standards.
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From page 50... ...
for smaller outfalls of municipal stormwater and similar sources, but it generally did not require these sources to meet effluent limitations or monitor their effluent. It should be noted that, while the purpose of the CWA is to ensure protection of the physical, biological, and chemical integrity of the nation's waters, the enforceable reach of the Act extends only to the discharges of "pollutants" into waters of the United States [33 U.S.C.
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From page 51... ...
Specifically, Section 402(p) , introduced in the 1987 Amendments to the CWA, directs EPA to regulate some of the largest stormwater discharges -- those that occur at industrial facilities and municipal storm sewers from larger cities and other significant sources (like large construction sites)
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From page 52... ...
. Second, because of the great variability in the nature of stormwater flow, some sources are not required to monitor the pollutants in their stormwater discharges.
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From page 53... ...
This method typically will protect the highest attainable uses in a state more effectively than having only single uses. The concept of tiered beneficial uses and use attainability is especially important with regard to urban stormwater because of the potential irreversibility of anthropogenic development and the substantial costs that might be incurred in attempting to repair degraded urban watersheds to "swimmable–fishable" or higher status.
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From page 54... ...
Any recommendations for changes in aquatic life uses are subject to public comment when the Ohio WQS are changed. Ohio's water quality standards contain specific listings by stream or stream reach with notations about the appropriate aquatic life use as well as other applicable uses (e.g., recreation)
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From page 55... ...
Ohio has been expanding its use of tiered uses by proposing tiered uses for wetlands (http://www.epa.state.oh.us/dsw/rules/draft_1-53_feb06.pdf) and developing new aquatic life uses for very small (primary headwater, PHW)
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. As described in Box 2-2, Ohio has defined biocriteria in its water quality standards based on multimetric indices from reference sites that quantify the baseline expectations for each tier of aquatic life use.
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. Ohio biocriteria stratified by ecoregion aquatic life use and stream size are depicted in Figure 2-1.
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Biological monitoring approaches are becoming a widespread tool for assessing attainment of aquatic life use designation goals inherent to state water quality standards. Development of biocriteria represents a maturation of the use of biological data and provides institutional advantages for states in addressing pollutants without numeric criteria (e.g., nutrients)
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From page 59... ...
For example, only four states have numeric biocriteria in their state water quality standards, although 11 more are developing such biocriteria based on one or more of the above monitoring approaches (EPA, 2002a)
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From page 60... ...
Total Maximum Daily Load Program and Stormwater The new emphasis on TMDLs and the revelation that impacts are primarily from diffuse sources has increased the attention given to stormwater. If a TMDL assigns waste load allocations to stormwater discharges, these must be incorporated as effluent limitations into stormwater permits.
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From page 61... ...
. Indeed, it almost appears that these case studies represent the universe of efforts to link TMDLs and stormwater management together.
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From page 62... ...
As a result, both the Safe Drinking Water Act and the Endangered Species Act demand more rigorous stormwater management programs to protect this delicate watershed. Stormwater is also regulated indirectly by floodplain control requirements promulgated by the Federal Emergency Management Agency (FEMA)
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From page 63... ...
Localities or other sources that attempt to dispense with their stormwater discharges in this fashion must thus first acquire an NPDES permit. Even without a direct discharge into wetlands, stormwater can indirectly enter wetland systems and substantially impair their functioning.
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. However, those that involve deeper dry wells or infiltration galleries appear to require Class V well permits under the Safe Drinking Water Act.
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From page 65... ...
Historical Background States like Florida, Washington, Maryland, Wisconsin, and Vermont and some local municipalities such as Austin, Texas, Portland, Oregon, and Bellevue, Washington, preceded the EPA in implementing programs to mitigate the adverse impacts of stormwater quality and quantity on surface waters. The State of Florida, after a period of experimentation in the late 1970s, adopted a rule that required a state permit for all new stormwater discharges and for modifications to existing discharges if flows or pollutants increased (Florida Administrative Code, Chapter 17-25, 1982)
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From page 66... ...
. EPA reasoned that while these stormwater conveyances were point sources, they were not suitable for end-of-pipe, technology-based controls because of the intermittent, variable, and less predictable nature of stormwater discharges.
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From page 67... ...
Comprehensive revisions to the NPDES regulations were published next, retaining the broad definition of stormwater discharges subject to the NPDES permit program and requiring permit application requirements similar to those for industrial wastewater discharges, including testing for an extended list of pollutants (44 Fed.
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From page 68... ...
Also, sites in relatively dry semi-arid regions had higher concentrations of many pollutants than sites in humid regions. Final Stormwater Regulations EPA issued final regulations in 1990 establishing a process for stormwater permit application, the required components of municipal stormwater management plans, and a permitting strategy for stormwater discharges associated with industrial activities (55 Fed.
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From page 69... ...
Further, the regulations lowered the construction activities regulatory threshold for permit coverage for stormwater discharges from five acres to one acre. To give an idea of the administrative burden associated with the stormwater program and the different types of permits, Table 2-4 shows the number of regulated entities in the Los Angeles region that fall under either individual or general permit categories.
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From page 70... ...
AC 35, 36, 38 Electronic, electrical, photographic, and optical goods (x) Construction activity AD Non-classified facilities designated by Administrator under 40 CFR §122.26(g)
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From page 71... ...
Efforts to meet the six minimum measures are documented in a stormwater management plan. Non-stormwater discharges to the MS4 are prohibited unless separately permitted under the NPDES, except for certain authorized non-stormwater discharges, such as landscape irrigation runoff, which are deemed innocuous nuisance flows and not a source of pollutants.
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From page 72... ...
. The proposed MSGP requires that industrial facility operators prepare a stormwater pollution prevention plan (similar to an MS4's stormwater management plan)
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From page 73... ...
Cu, Zn G Copper ore mining and dressing COD, TSS, nitrate and nitrite N Coal mines and coal mining related H TSS facilities Dimension stone, crushed stone, and non- TSS, Al, Fe J metallic minerals (except fuels) Sand and gravel mining Nitrate and nitrite N, TSS Hazardous waste treatment, storage, or NH3, Mg, COD, Ar, Cd, CN, Pb, K disposal Hg, Se, Ag Landfills, land application sites, and open Fe, TSS L dumps M Automobile salvage yards TSS, Al, Fe, Pb N Scrap recycling Cu, Al, Fe, Pb, Zn, TSS, COD O Steam electric generating facilities Fe Q Water transportation facilities Al, Fe, Pb, Zn S Airports with deicing activities BOD, COD, NH3, pH Grain mill products TSS U Fats and oils BOD, COD, nitrate and nitrite N, TSS Y Rubber products Zn Fabricated metal products except coating Fe, Al, Zn, nitrate and nitrite N AA Fabricated metal coating and engraving Zn, nitrate and nitrite N NOTE: BOD, biological oxygen demand; COD, chemical oxygen demand; TSS, total suspended solids.
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From page 74... ...
. Most of these facilities were covered under individual permits prior to 1987 and are generally required to stay covered under individual stormwater permits.
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From page 75... ...
The construction general permit requires the implementation of stormwater pollution prevention plans to prevent erosion, control sediment in stormwater discharges, and manage construction waste materials. Operators of the construction activity are required to perform visual inspections regularly, but no sampling of stormwater discharge during rainfall events is required.
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From page 76... ...
meeting certain design or performance standards. Effluent limitations may be expressed as SCMs when numeric limits are infeasible or for stormwater discharges where monitoring data are insufficient to carry out the purposes and intent of the CWA [122.44(k)
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From page 77... ...
These individual NPDES permits for industrial stormwater discharges, like traditional individual wastewater NPDES permits, incorporate numerical effluent limits and they impose discharge monitoring requirements to demonstrate compliance. These facilities were selected for permitting before 1990, presumably because of the risk they presented to causing or contributing to the exceedance of water quality standards.
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From page 78... ...
However, where adequate information existed to develop more specific conditions or limitations to meet water quality standards, these conditions or limitations are to be incorporated into stormwater permits as necessary and appropriate. As permitting authorities began to develop TMDL waste load allocations to address impaired receiving waters, and waste load allocations were assigned to stormwater discharges, EPA issued a TMDL Stormwater Policy.
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From page 79... ...
In addition, some MS4s conducted individual stormwater management activities, such as street-sweeping, household hazardous waste collection, construction site plan review, and inspections, prior to the national stormwater program. These areas are more likely than areas without a stormwater program that predated the EPA program to be successfully meeting the requirements of the current program.
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From page 80... ...
had not developed stormwater management plans, (2) were not properly performing an adequate number of inspections to enforce their stormwater ordinances, and (3)
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From page 81... ...
As expected, the responding states reported that Phase I MS4s are required to sample their stormwater discharges for pollutants, although the frequency of sampling and the number of pollutants being sampled tended to vary. No state reported requiring Phase II MS4s to sample stormwater discharges.
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From page 82... ...
Most of the responding states require the stormwater pollution prevention plans that industrial facilities prepare to be retained at the facility and produced when requested by the state. Only Oregon, Vermont, Washington, and Hawaii required industrial SWPPPs to be submitted to the state when seeking coverage under the MSGP.
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From page 83... ...
. In another study, the California Water Boards with the assistance of an EPA contractor conducted inspections of 1,848 industrial stormwater permittees (21 percent of permitted facilities)
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From page 84... ...
The EPA issued 20 compliance orders for violations of the MSGP, but it did not pursue any action against the MS4s overseeing the industries because it was outside the scope of the EPA audit. LOCAL CODES AND ORDINANCES THAT AFFECT STORMWATER MANAGEMENT Zoning and building standards, codes, and ordinances have been the basis for city building in the United States for almost a century.
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From page 85... ...
to develop a mechanism to identify facilities subject to the industrial stormwater general permit that had not filed an NOI, which involved a comparison of commercially available and agency databases with that maintained by the California Water Boards; (2) to communicate with operators of these facilities to inform them of their responsibility to comply, which was done using post-mail, telephone calls, and filed verification; and (3)
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From page 86... ...
The following sections describe in more detail the codes, ordinances, and standards that affect stormwater and our ability to control it, and alternative approaches to developing new standards and practices that support and encourage effective stormwater management. Zoning The primary, traditional purpose of zoning has been to segregate land uses thought to be incompatible.
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From page 87... ...
It is important to note that the growth management efforts in the two states have no direct relationship to stormwater management. Rather, the laws control development density, which has implications for how stormwater should be managed (see discussion in Chapter 5)
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From page 88... ...
, and how much parking must be provided. Thus, zoning can have a significant impact on the amount of impervious area in a development and on what constitutes allowable stormwater management.
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From page 89... ...
An incentive could be to allow greater building height, and therefore higher density, than under existing zoning, freeing up land area for SCMs that could also serve as a passive park area. Another example would be to allow a higher density on the site and to require not an on-site system but a cash payment to the governing entity to provide for consolidated stormwater management and treatment.
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From page 90... ...
Performance Zoning Performance zoning uses performance-based or goal-oriented criteria to establish review parameters for proposed development projects in any area of a municipality. At its heart, performance zoning deemphasizes the specific land uses, minimum setbacks, and maximum heights applicable to a development site and instead requires that the development meet certain performance standards (usually related to noise, glare, traffic generation, or visibility)
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From page 91... ...
This large amount of open space provides considerable opportunity for the use of consolidated, multifunctional stormwater controls. Form-Based Zoning Form-based zoning relies on rules applied to development sites according to both prescriptive and potentially discretionary criteria.
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From page 92... ...
One result of this preference is that there may be less of the site left potentially available for onsite stormwater detention or infiltration. Integrating stormwater management considerations into form-based codes may require a cash payment system where the developer contributes to financing of a district or regional stormwater treatment facility because on-site solutions are not available.
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From page 93... ...
Like many codes, they were developed over time to address problems such as basement flooding, nuisance drainage problems, maintenance of floodplain boundaries, and protection of infrastructure such as bridges and sewers from storm damage. Local drainage codes, many of which predate the EPA's stormwater program, often involve peak discharge control requirements for a series of design storm events ranging from the 2-year storm up to the 100year event.
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From page 94... ...
Innovations in Codes and Regulations to Promote Better Stormwater Management A number of innovations have been developed in the previously described zoning, building codes, and infrastructure and engineering standards that make them more amenable to stormwater management. These are described in detail below.
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From page 95... ...
Integrated Stormwater Management and Growth Policies In the city of San Jose, California, an approach was taken to link water quality and development policies that emphasized higher density in-fill development and performance-based approaches to achieving water quality goals. The city's approach encourages stormwater practices such as minimizing impervious surface and incorporating swales as the preferred means of conveyance and treatment.
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From page 96... ...
eligibility for cash rewards and qualification for state and federal financial incentives and tax credits if even higher goals are achieved. Developers can earn credits by incorporating enhanced stormwater management and water conservation features into their projects, including the use of green roofs (Wenz, 2008)
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From page 97... ...
There are parallel challenges in the realm of community development and city building that tend to discourage innovative stormwater management policies and practices. Building codes and zoning have evolved to reflect the complex relationship of legal, political, and social processes and frequently do not promote or allow the most innovative stormwater management.
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From page 98... ...
A number of regulatory, institutional, and societal obstacles continue to hamper stormwater management in the United States, as described below. The Poor Fit Between the Clean Water Act's Regulatory Approach and the Realities of Stormwater Management Controlling stormwater discharges with the CWA introduces a number of obstacles to effective stormwater regulation.
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From page 99... ...
Flow provides an inexpensive, convenient, and realistic means of tracking stormwater contributions to surface waters. Congress itself recently underscored the usefulness of flow as a measure for aquatic impairments by requiring that all future developments involving a federal facility with a footprint larger than 5,000 square feet ensure that the development achieves predevelopment hydrology to the maximum extent technically feasible "with regard to the temperature, rate, volume, and duration of flow" (Energy Independence and Security Act of 2007, § 438)
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From page 100... ...
requires that pollutants in stormwater discharges from the MS4 be reduced to the maximum extent practicable and comply with water quality standards (when so required by the permitting authority)
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From page 101... ...
Industrial and Construction Stormwater Permits. The industrial and construction stormwater programs suffer from the same kind of deficiencies as the municipal stormwater program.
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From page 102... ...
Dilemma of Self-Monitoring Unlike the wastewater program where there are relatively rigid selfmonitoring requirements for the end-of-pipe effluent, self-monitoring is much more difficult to prescribe for stormwater discharges, which are variable over time and space. [For example, compare 33 U.S.C.
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From page 103... ...
. A large subset of dischargers -- the remaining industrial dischargers and construction sites -- are subject to much more limited monitoring requirements.
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From page 104... ...
. In its survey of state stormwater programs, the committee asked states how they tracked sources' compliance with the stormwater permits.
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From page 105... ...
found a higher percentage of stormwater dischargers -- between 50 and 80 percent -- had applied for permits by 2004, but they concluded that this was still "highly incomplete" compliance for an established permit program. In 2007, the committee sent a short survey to each state stormwater program inquiring as to whether and how they tracked non-filing stormwater dischargers, but only six states replied to the questions and only two of the six states had any methods for tracking non-filers or conducting outreach to encourage all covered parties to apply for permits (see Appendix C)
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From page 106... ...
. Limited Public Participation Public participation is more limited in the stormwater program in comparison to the wastewater permit program, providing less citizen-based oversight over stormwater discharges.
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From page 107... ...
Heal the Bay was instrumental in passing Proposition O in the City of Los Angeles which sets aside half a billion dollars to improve the quality of stormwater discharges. In the 2007 term of the California Legislature, the organization has sponsored five legislative bills to address marine debris, including plastic litter transported in stormwater runoff, that continues next page
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From page 108... ...
Accounting for Future Land Use One of the challenges of managing stormwater from urban watersheds thus involves anticipating and channeling future urban growth. Currently, the CWA does little to anticipate and control for future sources of stormwater pollution in urban watersheds.
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From page 109... ...
Moreover, if the benefits of stormwater controls are not going to materialize in waters close to or of value to the community instituting the controls, then the costs of the program from the locality's standpoint are likely to outweigh its benefits. Federal financial support for state and local stormwater programs is very limited (see section below)
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From page 110... ...
Box 2-9 highlights the costs of the program for the State of Wisconsin, which has been traditionally strong in stormwater management. Phase I regulations require that a brief description of the annual proposed budget for the following year be included in each annual report, but this requirement has been dispensed with entirely for Phase II.
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From page 111... ...
They are required to use an urban runoff model, such as WinSLAMM or P8, to do the pollutant load analysis. As the permitted municipalities comply with the six minimum control measures and submit the stormwater plans for their developed area urban areas, the WDNR is learning how much it is going to cost to achieve the requirements in the stormwater discharge permits.
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From page 112... ...
TABLE 2-9 Planning-Level Capital Cost Estimate to Meet 40 Percent TSS Reduction Avg. Cost per Capita Number Average Minimum Maximum Population per Year over 5 of Cities Cost ($)
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From page 113... ...
In fact, in those states where fees cannot be levied against permittees, the stormwater programs appear to be both underfinanced and understaffed. Some municipalities have even experienced political backlash because of the absence of a strong state or federal program requiring them to engage in rigorous stormwater management (see Box 2-10)
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From page 114... ...
It is ironic that stormwater management agency fees are very small compared to these other urban water agency fees per household by orders of magnitude. The $12 per year stormwater fee was used to justify the dismantling of an agency that was doing its job and identifying CWA violators.
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From page 115... ...
and the American Society for Civil Engineers (ASCE) are co-authoring an update of the WEF/ASCE Manual of Practice "Design of Urban Runoff Controls" that integrates quality and quantity, after years of issuing separate manuals of design and operation for the water quality and water quantity elements of stormwater management.
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From page 116... ...
The City of Austin's encounter with coal tar-based asphalt sealants provides an illustration of the types of products contributing toxins to stormwater discharges that could be far better controlled at the production or marketing stage. Through detective work, the City of Austin learned that coal tar-based asphalt sealants leach high levels of polycyclic aromatic hydrocarbons (PAHs)
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From page 117... ...
For example, in the mid-1990s, numerous scientific studies conducted in California by stormwater programs, wastewater treatment plants, the University of California, California Water Boards, the U.S. Geological Survey, and EPA showed widespread toxicity in local creeks, stormwater runoff, and wastewater treatment plant effluent from pesticide residues, particularly diazinon and chlopyrifos (which are commonly used organophosphate pesticides available in hundreds of consumer products)
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From page 118... ...
The figure shows the significant drop in the diazinon concentration in just four years to levels where it is no longer toxic to freshwater aquatic life. EPA prohibited the retail sale of diazinon for crack and crevice and virtually all indoor uses after December 31, 2002, and nonagriculture outdoor use was phased out by December 31, 2004.
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From page 119... ...
CONCLUSIONS AND RECOMMENDATIONS In an ideal world, stormwater discharges would be regulated through direct controls on land use, strict limits on both the quantity and quality of stormwater runoff into surface waters, and rigorous monitoring of adjacent waterbodies to ensure that they are not degraded by stormwater discharges. Future land-use development would be controlled to prevent increases in stormwater discharges from predevelopment conditions, and impervious cover and volumetric restrictions would serve as a reliable proxy for stormwater loading from many of these developments.
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From page 120... ...
These analogs for the traditional focus on the "discharge" of "pollutants" have great potential as a federal stormwater management tool because they provide specific and measurable targets, while at the same time they focus regulators on water degradation resulting from the increased volume as well as increased pollutant loadings in stormwater runoff. Without these more easily measured parameters for evaluating the contribution of various stormwater sources, regulators will continue to struggle with enormously expensive and potentially technically impossible attempts to determine the pollutant loading from individual dischargers or will rely too heavily on unaudited and largely ineffective self-reporting, selfpolicing, and paperwork enforcement.
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From page 121... ...
State and local governments do not have adequate financial support to implement the stormwater program in a rigorous way. At the very least, Congress should provide states with financial support for engaging in more meaningful regulation of stormwater discharges.
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From page 122... ...
Summarizing the Report: Fresno-Clovis Stormwater Quality Monitoring Program -- Evaluation of Ba sin EK Effectiveness -- Fresno Metropolitan Flood Control District, No vember 2006. CA SWB (California State Water Board)
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From page 123... ...
2007. Industrial Stormwater Runoff Pollution Prevention: Regula tions and Implementation.
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From page 124... ...
General Permit for Stormwater Discharges from Industrial Activi ties, 70 Fed.
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From page 125... ...
2005. Storm Water Pollution: Information Needed on the Implications of Permitting Oil and Gas Construction Activities.
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From page 126... ...
1987. Biological Criteria for the Protection of Aquatic Life: Volume II.
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From page 127... ...
2006e. Assessment Report of Tetra Tech's Support of California's Municipal Stormwater Program.
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From page 128... ...
2005. Oregon and Washington to release tougher standards for stormwater permits.
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