36useofstormwater.pdf

The

Use

of

Storm

Water

Rules

to

Protect

Coastal

Waters

Rachael

Franks

Much

of

the aesthetic,

economic and

biologicalsignificance

of

the coastal

zone

is

dependent

onthe

maintenance

of high water

quality.

However,

many

ofthe

ways

in

which

peopleenjoy

and

exploit coastalresourcescreate

disruptionsinthe naturalsystem,jeopardizing

the health

of

the coastalenvironment. Declines

incoastalwaterquality can

have

serious

repercussionsforthe ecologicalintegrity

of

the

coastalzone,aswellas for the coastal

communities

that relyonthe rich resources

found

inthezone. In

North

Carolina, watersthat

supportshellfishbeds

(SA

waters)require the

most

stringent

compliance

with waterquality

standards

—

standardsthatare frequently

violated.

Although

stormwaterplaysan important

and

indisputable roleindeclining

water

quality,

itisavery

ambiguous

culprit. Identifying the

exactsources

of

various pollutantsremains

problematic.

Even

when

thecontaminantsare

properlypinpointed,

managing

thosesourcescan

provedifficult. Existinglegislationclearly

prohibits thedegradationof waterquality,but innovative

enforcement

and

stormwater

management

techniques

have

yettobe

implemented.

One

program

undertaken bythe

EnvironmentalProtection

Agency

(EPA)

has

Rachael

Franks

is

a

master

s

degree

candidate

intheCoastal

Environmental

Management

program

at

Duke

DiversitysNicholas

School

fortheEnvironment.

She

currently holds

an

internship atthe

North

Carolina Coastal Federation.

implemented

storm waterregulationsin

two

sequential stages.

These programs

initiate

requirementstoobtainNationalPollution

Discharge Elimination

System

(NPDES)

permits,

which

carrywith

them

specific responsibilities

forthepermitholder.1

Perhaps

these rulescan

succeed

where

otherpoorly conceived,or.

more

often,

weakly

implemented

waterquality rules

have

failed.

At

a

minimum,

theyshould

encourage

ustoreconsidercurrentwaterquality

management

regimes

(asstates

and

dischargers

considertheir liability

under

theprogram):

and

ideallythey

would

providethenecessarycatalyst for

improvements

instorm water

management

programs,and. ultimately, coastalwaterquality.

The

NPDES

Storm

Water Program

Enacted

by

Congress

in 1987

under

section

402(p)

of

the

Clean

Water

Act.

management

of

storm water discharge

was

totake placein

two

distinct stages.

The

first stage. Phase I.

began

on

November

16. 1990. It incorporatedmunicipal

separatestorm

sewer systems

(MS4s)

serving

largeor

medium

sized

communities

2

and

storm

waterassociatedwith industrial activity intothe

NationalPollutantDischarge Elimination

System.

As

acontinuation

of

theprocess, the

EPA

was

to submitareportto

Congress

assessingthe

remaining

sourcesof discharge

and

establishing

methods

tosufficiently control storm water

discharges

and

protectwaterquality.

The

EPA

was

originallyscheduledto issuesupplemental

regulations

and

tocreatea

comprehensive

regulatory

program no

laterthan

October

1.

1992/ However.

EPA

did notfulfill its

commitment

untilrecently;

Storm

Water Phase

II

Final Rule

was

signed

on

October

29. 1

999 and

December

8.

The

ruletookeffect

on

February7,

2000.

The

second

stage.

Phase

II.

expands

upon

the initiatives setforth in

Phase

I

by

requiringsmall

MS4s

in urbanized areas

and

constructionsites

thatdisrupt

between one and

fiveacres

of

landto participate in

theNPDES

permittingprocess.4

PhaseI

MS4s

may

adoptthe

more

stringent,

updatedregulationsof

Phase

II,buttheyarenot

requiredto

comply

withthe

new

guidelines.5 In

ordertosatisfytheterms

of

the

NPDES

permit.

PhaseIIdischargers

must develop and implement

astormwater

management

program comprised

of

six

components:

/

—

Public

Education

and

Outreach: This

control

measure

has

two complementary

purposes. First, itis

hoped

thatgreaterpublic

awareness

will resultinhigherdegrees

of

support

and

compliance.

The

public will be

more

willing

to

approve

funding proposals

and

volunteertheir servicesiftheyaresupplied withfull information

aboutthe

program and

itsexpected benefits.

Also,

compliance

would

likely

improve

as

individualsthinkabout

ways

in

which

they

might

change

their

own

behaviortoreduce impactsof

stormwaterrunoff.'1

2

—

Public Participation

and

Involvement:

A

number

ofbenefitscouldresult

from

increased

public participation. Forone. involving

community

members

inthedecision-making

processdecreasesthe probability

of

opposition or

legal disputes.

With

fewer

impediments

tothe process, implementation of storm water

management

programs

could

occur

in a

more

timely fashion. Public

involvement

couldalso

provide

management

programs

witha

number

of

intangibleresourcesas individualsbringtheir localexpertise, as well astheirprofessionaland

personal experiences, with

them

totheprocess.7

3

—

Illicit

Discharge

Detection

and

Elimination:

Managers

of small

MS4sare

expected toidentifydischargesthatarenot

composed

entirely

of

stormwater.

Non-storm

water

may

enter thesystem in severalways,

includingdirectwastewater connections,

improper

oildisposal, laundrywastewaters,

and

others.

Because

theseparatestorm

sewer

systemsarenot

equipped

toaccept

and

discharge

water

from

theseothersources,

manauers

should

find

ways

toeliminatetheir infiltrationintothe

system.8

4

—

ConstructionSite

Runoff

Control: This

measure

requires

programs

tocontrol

pollutants, particularlysediments, loaded

from

constructionsitesthat

have

adisturbedarea

of

greaterthan orequal to

one

squareacre."

5

—

Post-Construction

Runoff

Control:

Managers of

small

MS4s

must

addressthe

problems

associated withpost-construction

runoff, including both thetype

and

quantity

of

pollutants thatare

exposed

to storm waterfor transport

and

the increaseddelivery

of

storm

wateracrossimpervioussurfaces.

One

of

the

requirements

of

this

measure

isan ordinance

that

mandates

post-construction controlstothe "extentallowable

under

State.Tribal,or Local

law."10

6

—

Pollution

Prevention/Good

Housekeeping:

This

component

may

proveto

bethe

most

importantrequirement

of

the

Phase

II Rule.

Under

thisprovision,

MS4

operators

must

evaluatetheirsystems

and

make

changes

suchthatthere arereductions inthe

amount

and

typeofpollutionthat"(

1)collectson streets,

parkinglots,

open

spaces,

and

storage

and

vehicle

maintenance

areas

and

isdischargedinto local waterways;

and

(2) results

from

actions

suchasenvironmentally

damaging

land

development and

flood

management

practicesor

poor maintenance of sewer

systems."

The

ultimate goalofthe

NPDES

compliant

storm water

management

programs

istoreduce

pollutant runoff.

Each

minimum

control

measure

requires identificationof

one

orseveral

best

management

practicesthatcan be

implemented

toreacheachobjective. Itis

importanttorecognizethatthese

minimum

control

measures

couldserve as a starting point

forstormwater

management

in

communities

that

would

nototherwise be requiredto

participate in the

NPDES

permittingprocess.

A

comprehensive approach

thatbothmitigates the

damage

ofcurrentactivities

and

initiates

measures

topreventpollutant loadingwill prove

effectiveinthe coastalzone.

Because

some

level of

development

alongthecoast is inevitable, itis importantto identifyplanning

conducive

toreductions instorm waterrunoff.

The

Potential for

Phase

II

The

effectivenessofthe PhaseII

Rule

will largely

depend on

to

what

extentstates

choose

to

apply it. Ifthestateand/orlocal

government

takesinitiative

and

applies therequirements

of

Phase

II

more

broadly,itcould be an important

tooltoprotectcoastal waters.

NPDES

permittingauthorities, inthiscase

the State

of

North

Carolina, are notonly required

todesignate

MS4s

in urbanizedareas, but also

must

consider

any

other

system

thataddsa large

amount

ofpollutantstoa physically

interconnected

MS4

thathas already

been

regulated

under

the

NPDES

Storm Water

Program.

Other

systemsareevaluated

by

the

following suggestedcriteria:"

*Dischargetosensitivewaters

*High

populationdensity

*High growth

or

growth

potential

*Contiguitytoan urbanized area

*Significantcontributorofpollutantsto

watersoftheUnited States

and

*_Ineffectivecontrol

of

waterqualityconcerns

by

otherprograms.

These

criteria should not onlybe applied to

MS4s

but shouldalsobeusedtodeterminethe

propriety of

NPDES

permitsforother sources

thatarefoundtocontributetowaterquality

degradation.

The

possibility of applying

NPDES

permitsatthe

community

level, perhapsasan

oversightofland use plans

and

othercity

management

proposals,could be an important

form

ofinter-agency

enforcement

of

water

quality standards.

Concerned

citizenscanalsoinfluencestate

oversightbypetitioning forstrictercontrols

and

invokingthe

NPDES

permitrequirementfor

sourcesthatarenot explicitly regulated

under

Phase

II.

"Any

person

may

petitionthe Director

to require a

NPDES

permit foradischarge

which

is

composed

entirelyof storm water

which

contributestoaviolation

of

awaterquality

standardorisa significantcontributorof

pollutantstothewaters

of

theUnited States. "

,:

Itremainstobe seen

how

the

Phase

II Rule

willbe

implemented

inthestateof

North

Carolina.

The

NC

Division

of

Water

Quality

initiateda

Storm

Water

Projectthat

began

in April

2000

and

willcontinuethroughoutthe

summer.

13

With

thehelp

of

aprofessional

facilitator,multiple stakeholders

have be^n

invitedtovoicetheirconcerns, questionsand,

most

importantly,suggestions about

compliance

withthe

new

rule.

The

goal

of

thiscollaborative projectisto

"develop

a

comprehensive

stormwater

program based upon

the

most

current

and

bestavailablescience."

The

Department of

Environment and

Natural

Resources

(DENR)

hopes

the sessionswill

answer

thefollowing

questions: 1)

How

can

DENR

best protect

surfacewaters

from

adverse

stormwater

impacts?

and

2)

What

central

management

elementsare

needed?

These

meetings should

playan importantrole inshaping

Phase

II

implementation.

The

Future

of

SA

Waters:

A

Question of

PoliticalWill

Storm

wateris a

major

contributortocoastal

waterquality decline.

Because

itsimpactsare

largely afunctionof

cumulative

effects,

more

comprehensive

controls areneeded. Perhaps

controlatthe local levelcontributesto

myopic

planning

and

enforcement. Therefore,

because

waterquality isamatter

of

stateresponsibility.

North

Carolinashould

examine

thediscretionary authoritiesprovided toit, not onlyin

Phase

II.

butinotherrelated waterquality rules.

Voices

from

theenvironmental

and

scientific

communities

contendthatthere are

many

measures

thatcan

and

should be taken toprotect coastalwaterquality.

Most

of

these involve

employing

stringentlanduseplanningrules

and

implementating Best

Management

Practices

before waterquality suffers. Waitinguntil areas

areheavily

developed

and

waterqualityis

severely

degraded

before thinking aboutthe

problem

isnothing

more

thananexpensive

exercisein futility.

In

North

Carolina, local initiativescan be usedto

promote

positive

change

inthe coastal

zone.

However,

creating

and

enforcing those

initiatives will bea

game

of

political will. State-level agenciesin Raleighare reluctantto

become

zoning requirements

and

otherqualitycontrols

on

coastalcommunities.

These communities have

produced

landuse plansin

accordance

withthe

Coastal

Area

Management

Act

(CAMA)

inthe

past.

However,

thefactthatwaterquality

problems

persistin

SA

waters

and

threaten to

make

watersunsuitable

even

for

swimming

shows

thatthose

communities have

either insufficientlyprovidedforwaterquality

maintenance

or

have

chosen

todisregardtheir

plans.

While

land use planningfallssquarelyin

thelocal realm, the responsibilityofprotecting

waterquality lies inthe

hands of

thestate. This

separationof

power

makes

iteasytopoint fingers, butdifficulttoestablish practicesthat

will maintain

and

restore

SA

waters.

Many

solutionswillprovepolitically difficultinthis

grayarea

where

federal, state

and

local authority

overlaps

—

or ratherinthiscase, fallsshort.

Ifthestatewishesto

uphold

itsresponsibility toprotectwaterquality, it

must

provide

incentives foritscoastal

communities

toadopt

and

enforce landuse practicesthatpreventthe

creationof extensive

networks

of impervious

surfaces.

One

powerful incentive

may

bethe

issuanceof

NPDES

permits, asallowed

under

the PhaseII Final Rule.

However,

since

many

of

North

Carolina's seaside municipalitieswillnot

be automatically designated,theRule

may

have

limitedeffect.

North

Carolina has an opportunity

toupholdits legalresponsibility topreserve

waterquality. Issuing

NPDES

permits

would

be

preferabletowaiting foradditionalstorm

water-inducedviolations. Inaddition tothe

environmental benefits

of

betterwaterquality,

stateandlocal

governments

would

enjoythe practical benefitsof reduced legalaccountability

forwaterquality violations

and

more

latitude

than

would

be affordedunder

more

restrictive stipulations.

EPA*s

stated objective

of

the

Storm Water

Phase II Final Rule isto"preserve, protect,

and

improve"

waterquality. Thisobjective

would

be

betterfortified

by

explicitly requiring

NPDES-compliant storm water

programs

asa

component

of approved

land useplans.

Mandatory

issuance

of permits and an enforceable schedulefor

compliance

areimportantsteps

toward

more

comprehensive

and meaningfulregulation.

Strengthening ofthe storm waterrulecould be

incorporated intorevised

CAMA

landuserules

or

accomplished

elsewhereatthestate level.

To

date,localplanners

have

insufficientlyprepared

forthe effectsof storm waterpollution,

evidenced

by

developments

that

have

quite

literally

paved

the

way

for

poor

coastal water

quality.

Many

peoplefeel that the

Phase

II Ruleis a

positive

and

importantstepin storm water

regulation.

One

of

greatestbenefitsofthe ruleis

thenecessaryre-evaluation

of

existing policies

and programs and

incorporation ofthe

Phase

II

requirements.

Even

inareas

where

the

NPDES

permitwill notbe invoked,thestate

may

see fit

torequire thesix

minimum

control

measures

asa

way

of

ensuringthat

SA

standardsaremet.

Agencies

withthe specificcharge

of

maintaining

coastal waterquality

would

benefit

by

expanding

Phase

II-type

programs

tofulfilltheir

responsibilitytoprotect

and

restoreshellfish

watersin

compliance

with statestandards.

The

Phase

II guidelinescould be an importantset

of

rules,providinga

comprehensive,

feasibleset

of

BMPs

thataredesignedtonot onlyresolve

existingstorm water runoff problems,but also to

preventpollution. Pollutionpreventioncan be

achieved through structural best

management

practices,zoningactivities, land acquisition,

and

perhaps

most

importantly; through

changes

in

personalphilosophythatrecognizethe roleeach

of

usplays incontributingtostorm water

pollutionthroughourdailylifestyles.©

Notes

1

The

National Pollution Discharge Elimination

System isa program for"issuing, modifying,

revoking and reissuing, terminating, monitoring,

and enforcing permits, and imposing and enforcing pretreatment requirements." All pointsourcesof

pollution must attain or maintain the specific applicable waterquality standards oftheregion in orderto receive

NPDES

permits.

The

program

requiresthat states issuepermitsto limit effluents,

includingthe quantity discharge rate, and

concentration ofeach pollutant.

The

issuanceof

NPDES

permits usually

means

a collaboration at the

state and federal level.

The

permits mustbe consistent with theguidelines ofboth, but

monitoring and compliance requirements

may

differ.

General Services Administration, "Effluent

i

m

c

oo

m

O

Tl 00

H

o

XI

m

71

X

c

I—

m

w

o

>

m

Z

Limitationsandthe

NPDES."

December

1998. http://'gsa.gov/pbs/pt/_{call-in/factshet}/_1298a'

12_98a_13.html.

:

"Municipal separate stormsewer"' as definedin40

CFR

Chapter 1 § 122.26(b)(8)isaconveyanceor system of conveyances(includingroadswith drainage systems, municipal streets, catch basins. curbs, gutters, ditches,

manmade

channels, orstorm drains). Large communities are thosewith greater

than 250.000 inhabitants:

medium

sized

communities have greaterthan 100.000 residents

and less than 250.000.

3

"The

program isrequiredto establish: (1) priorities: (2) requirements forState storm water

management

programs; and(3) expeditious deadlines." EPA, "Chapter4:

Management

Measures for

Urban

Areas."

www.epa.gov/OWOW

NPS/MMGI/Chapter4

ch4-l.html.

J

Small

MS4s

arethose serving communitiesofless

than 100.000 residents, http://www.epa.gov/owm/sw/

phase2 index.htm Urbanized areas are definedas"a

land area comprising one or

more

places

—

central place(s)

—

andtheadjacentdensely settled

surrounding area

—

urban fringe

—

thattogether have

a residential populationofat least 50.000 and an overall populationdensity ofat least 1.000 per square mile." Determination of populationand

densityis basedoncensus blocks. "Urbanized

Areas: Definition and Description."

EPA

833-F-OO-004. Fact Sheet2.2.

5

"Storm Water Phase II Final Rule."

EPA

833-F-00-001. FactSheet 1.0. January 2000.

6

"Public Education andOutreach

Minimum

Control Measure,"

EPA

833-F-00-005. Fact Sheet 2.3.

January 2000.

'

"Public Participation and Involvement

Minimum

Control Measure."

EPA

833-F-00-006. Fact Sheet

2.4. January 2000.

8

"Illicit Discharge Detection and Elimination

Minimum

Control Measure."

EPA

833-F-00-007. Fact Sheet2.5. January 2000.

9

"Construction Site RunoffControl

Minimum

Control Measure."

EPA

833-F-00-008. FactSheet

2.6. January 2000.

10

"Post-Construction RunoffControl

Minimum

Control Measure."

EPA

833-F-00-009. FactSheet

2.7. January 2000.

11

"ProposedStorm Water Program Coverage for

Regulated Small MS4s." http://wwvv.epa.gov owmit.net/sw/rns4/srnalLcoverage index.html.

12

EPA

40

CFR

Chapter I _§

12226

(0(2).

13

"N.C. Divisionof WaterQuality Stormwater