Environmental News
February 21, 2007
Special Report on New Stormwater Rules
Washington State Issues New Stormwater Permit Rules Affecting 100 Cities, 13 Counties
By Jeff Kray
Washington State’s Department of Ecology (Ecology) has issued new Phase II Municipal Stormwater General Permits that, for the first time, require 100 cities, 13 counties, and other entities across Washington to regulate discharges from their stormwater systems. Ecology has also revised its Phase I Municipal Stormwater General Permit. Effective February 16, 2007, the new Municipal Stormwater permits require the newly regulated municipalities and other public entities to adopt ordinances or otherwise develop and implement stormwater management systems that include, at minimum: public education and outreach; public participation; illicit discharge detection and elimination; stormwater runoff control from new development, redevelopment, and construction sites; and pollution prevention. Ecology has tailored separate permits for Eastern Washington and Western Washington, each with relatively short compliance deadlines.[1] Operators of regulated systems who failed to apply for coverage by February 16, 2007 may now be violation of the federal Clean Water Act (CWA) and state law. Parties on all sides have already filed appeals. Environmental groups have appealed the new permits contending that they are not protective enough,[2] while cities, counties, and other permittees have appealed the permits arguing that they are unduly burdensome.[3] Meanwhile, the hundreds of affected cities, counties and other entities covered by the law, have to deal with the deadlines and determine what to do.
The Water Quality Permit System
Federal and state water quality laws are primarily directed at the prevention of point source pollution and the reduction of non-point source pollution. The CWA makes it illegal to discharge pollutants from a point source to the waters of the United States without a National Pollution Discharge Elimination System (NPDES) permit.[4] Point sources are discrete conveyances, such as pipes or man made ditches, that discharge pollutants into waters of the United States. NPDES permits set limits on the amount of various pollutants that a source can discharge over a given time and cover industrial and municipal discharges, discharges from storm sewer systems, storm water associated with numerous kinds of industrial activity, runoff from construction sites disturbing more than one acre, mining operations, and animal feedlots and aquaculture facilities above certain thresholds.[5]
The NPDES program is structured to provide permit coverage to point sources in one of two ways: (1) developing a unique “individual” permit for each discharger; or (2) developing a single “general” permit that covers a large number of similar dischargers.[6] Once a general permit is issued, any dischargers that think they meet the general permit criteria can submit a Notice of Intent to the permitting authority requesting coverage and committing to comply with the conditions in the permit. The permitting authority can then either grant coverage or require the facility to apply for an individual permit.
States, territories, and tribes are primarily responsible for enforcing NPDES permits when delegated responsibility by EPA. EPA may still take enforcement action if these entities fail to do so. The NPDES program also promotes compliance assistance, which helps permittees come into, and remain, in compliance with their permit, rather than proceeding immediately to enforcement actions.[7] Enforcement actions include the following:
- Injunctions
- Fines for typical violations (exceed permit limits, failure to report)
- Imprisonment for criminal violations (repeated, willful violations)
- Supplemental environmental projects (SEP)[8]
Citizens can also bring a lawsuit against a violator, but they must provide a 60-day notice to EPA and the state, territory, or tribe to give them time to take action against the violator.
In Washington, Ecology is delegated authority to implement the CWA under the Washington Pollution Control Act (PCA)[9] and Ecology’s Water Quality Regulations which make it illegal to discharge pollutants to “waters of the State”[10] without a permit. Ecology has identified stormwater runoff as the state’s largest source of urban water pollution.[11]
Stormwater and MS4s
Initially, EPA and state water quality agencies focused on point source discharges that were essentially continuous, that is discharging at more or less the same rate year-round. Starting in the mid-1980s, the agencies also directed their attention to point source discharges that occurred only during and after precipitation events–so called “wet weather flows.” These included rainfall-induced runoff from industrial facilities, as well as two types of urban wet weather flows: combined sewer overflows (CSO) and municipal separate storm sewers (MS4).
The NPDES program regulates both CSOs and MS4s. Combined sewer systems have one set of pipes to carry both storm water and wastewater. MS4s have separate lines–one set for the storm water and another set for sewage. MS4s that discharge to surface waters are required to get NPDES permits, since they are effectively point source discharges of water mixed with various pollutants–oil and grease, metals, pesticides, pathogens, sediment and nutrients.[12]
Storm and sewer systems are quite different from the point sources covered by “traditional” NPDES permits and, therefore, sewer permits take a different regulatory approach. First, given the large numbers of outfalls in a storm or sewer system, permits for such systems do not usually address outfalls individually. Rather, one permit is issued covering all the outfalls in a city’s CSO or MS4 systems. Second, there are relatively few reliable and cost-effective municipal stormwater treatment methods available to EPA and the states because they have less experience treating pollutants in wet weather-dependent urban discharges and the because the stormwater volume varies greatly.[13] Hence, EPA and the states have found it difficult to predict with any precision what treatment levels can be achieved on a regular basis. Consequently, pollutant-by-pollutant end-of-pipe discharge limits are the exception rather than the rule in NPDES permits for MS4s and CSOs.[14]
One of the most basic requirements in permits for MS4s calls for elimination of all “non-storm water” discharges. The reason for this provision is that if sewage coming from homes, businesses, industries, hospitals, and other facilities goes into a MS4, that sewage will be discharged to a receiving water without going through the municipal sewage treatment plant (because of the basic design of an MS4). Another key requirement is implementation of a program to reduce loadings of pollutants in stormwater runoff from existing sources in all major urban land use categories to the “maximum extent possible” (MEP). Because EPA has not issued detailed, precise regulations or guidance regarding what activities or levels of pollutant removal constitute MEP, this key term is being defined on a MS4-by-MS4 basis.[15]
MS4 communities are also required to develop and implement a program aimed at controlling levels of polluted runoff generated by new development activity. Such controls should not only address runoff during the construction stage, but also post construction runoff.
New Phase I Permit
Ecology’s Phase I Municipal Stormwater permit regulates discharges from municipal separate storm sewers owned and operated by cities and unincorporated portions of counties whose populations exceed 100,000. [16] The Phase I permit covers Clark, King, Pierce, and Snohomish Counties, and the cities of Seattle and Tacoma. It also covers the following “Secondary Permittees:” Ports of Seattle and Tacoma, certain active drainage, diking, flood control districts, and municipal separate storm sewer systems located in Seattle and Tacoma or unincorporated portions of Clark, King, and Pierce Counties. These jurisdictions have been operating under a municipal stormwater permit since July 1995. The original permit expired on July 5, 2000. Ecology administratively extended permit coverage until they issued the revised permit on January 17, 2007.
The Phase I permittees were required to develop and implement detailed stormwater management plans for reducing pollutant loadings into the MS4 and remove what reached their MS4s from any source to the “maximum extent practicable.” These plans included a wide array of information, such as what was then known about separate storm sewer pipes underneath the city and where they emerged as outfalls (discharges to surface waters). The Phase I permittees also had to provide an estimate of the degree of effectiveness of the overall program they proposed, in terms of reduction in pollutant discharges from MS4s and consequent changes in stream conditions.
The new Phase I permit differs from the 1995 permits in two key respects.[17] First, Ecology has abandoned efforts to cover discharges on a watershed basis. Ecology found that it did not have enough resources to support watershed based stormwater permitting and that it can integrate watershed based priorities into a single general Phase I permit. Ecology has, therefore, not reissued watershed based permits. Second, Ecology has established stormwater management program requirements in the new Phase I permit. This differs from Ecology’s and EPA’s prior approach of requiring Phase I permittees to submit proposed stormwater management programs for approval. Thus, Ecology will need fewer resources to administer the new Phase I permit but permittees will have less flexibility to tailor their stormwater programs to local priorities and conditions.
The new Phase I permit took effect on February 16, 2007. It will expire on February 15, 2012.
New Phase II Permits
The Phase II Municipal Stormwater permits will regulate municipalities that were not within the Phase I permit’s scope. The new Western Washington Phase II permit will cover at least eighty (80) cities and five (5) counties.[18] The Eastern Washington Phase II permit will cover twenty (20) cities and eight (8) counties.[19] The Phase II permits will also apply, in certain circumstances, to other public entities such as ports, irrigation districts, drainage districts, schools and universities, and park districts.
The Phase II permits set deadlines for municipalities to adopt ordinances and implement stormwater management programs. Such stormwater management systems must include, at minimum:
- Public education and outreach;
- Public involvement and participation;
- Illicit discharge detection and elimination;
- Controlling runoff from new development, redevelopment, and construction sites, and;
- Pollution prevention and good housekeeping.
The Western Washington permit’s deadline for stormwater management program adoption is July 17, 2009, thirty (30) months after the permit’s effective date.[20] The Eastern Washington permit’s deadline significantly shorter with a deadline of July 17, 2008, eighteen (18) months after that permit’s effective date.[21]
The Phase II permits also cover certain “special purpose districts” operating regulated MS4s. A special purpose district is subject to the Phase II permits if the district’s storm system:
- Is publicly owned;
- Is located within or partially within a census defined urban area of Washington;
- Discharges to surface waters; and
- Serves more than 1,000 people, including resident and commuter population.
Special purpose districts that could be subject to the Phase II permits include public ports, irrigation districts, diking and drainage districts, flood control districts, public schools, public universities, and state agencies. Ecology will regulate special purpose districts subject to the Phase II permits as secondary permittees, generally with reduced permit requirements.
Municipalities and other parties within the Phase II permits’ scope apply for coverage by filing a Notice of Intent (NOI). The NOI filing deadline was February 16, 2007. Operators of regulated MS4s who failed to timely submit an NOI could be in violation of the CWA and Washington water quality laws for discharging without a permit. Permittees who missed the NOI deadline should consider applying as soon as possible to minimize the risk of being out of compliance.
Ecology Assistance
The State of Washington is working to help permittees comply with the new Phase II permits. Washington Governor Christine Gregoire’s proposed 2007-08 budget requests more than $26 million for stormwater, including $9 million to help local governments comply with the new Phase II stormwater requirements.[22] In March 2007, Ecology is offering introductory municipal stormwater permit workshops in eastern and western Washington to help permit holders understand the permit requirements. Ecology is also offering workshops targeted at secondary permittees. For more information on the workshops see Ecology’s website.
Appeals
Ecology issued the new permits on January 17, 2007. Any interested party that wished to appeal the new permits must have done so by filing with the Washington Pollution Control Hearings Board (PCHB) within (30) days, or by February 16, 2007. On February 15, 2007, environmentalists filed an appeal challenging the permits as insufficiently protective.[23] On the other side of the issue, in January 2007 the Association of Washington Cities (AWC) issued an “alert” outlining its concerns about staffing and infrastructure costs and possible legal liabilities associated with the new permits.[24] Echoing issues raised in that alert, on February 15-16, 2007, numerous cities, several counties, the Port of Seattle, and Washington State University all filed appeals challenging portions of one or more of the permits as overly protective. Parties that did not timely appeal may still wish to file amicus briefs.
Conclusion
Newly regulated municipal stormwater system operators will need to make initial investments of time and money to comply the new Municipal Stormwater permits. To begin, these newly regulated municipal stormwater systems should determine whether they fall within the Phase I or II permits, and promptly file a Notice of Intent.
While the appeals process proceeds, these new regulations are in effect. For more information about them, as well as other water quality issues, please contact Jeff Kray.
[1] Ecology’s Phase II Municipal Stormwater Permit for Eastern Washington is here. Ecology’s Phase II Municipal Stormwater Permit for Western Washington is here.
[2] Earthjustice has filed appeals of both the Phase I Municipal Stormwater Permit and the Phase II Municipal Stormwater permits on behalf of People for Puget Sound and Puget Soundkeeper Alliance.
[3] The City of Tacoma, Clark County, Snohomish County, and the Port of Seattle have appealed the Phase I Municipal Stormwater Permit. Whatcom County, the City of Pacific, Washington State University, the Sammamish Plateau Water and Sewer District, and a “Coalition of Governmental Entities” have appealed the Phase II Municipal Stormwater Permit. The “Coalition” members are the cities of Anacortes, Auburn, Bellevue, Bellingham, Bothell, Bremerton, Buckley, Burien, Burlington, Camas, Des Moines, Ellensburg, Everett, Federal Way, Fircrest, Kennewick, Kent, Longview, Marysville, Mount Vernon, Normandy Park, Orting, Port Angeles, Pullman, Puyallup, Renton, Richland, Sammamish, SeaTac, Sumner, University Place, and Vancouver, and Kitsap County.
[4] 33 U.S.C. § 1251 et seq. Point sources must obtain an NPDES permit from the proper authority (usually a state, sometimes EPA, or a tribe).
[5] See U.S. EPA’s “Watershed Academy Web.”
[7] See U.S. EPA’s “Watershed Academy Web.”
[8] With a SEP, instead of simply paying a fine to the federal or state treasury, the violator must spend more money than the amount of the fine on a relevant environmental project, such as wetlands restoration or abandoned mine cleanup.
[11] See Ecology’s January 16, 2007 News Releases “State takes aim at #1 urban water quality problem – stormwater (for Western Washington)” and “State takes aim at #1 urban water quality problem – stormwater (for Eastern Washington).”
[12]See U.S. EPA’s “Watershed Academy Web.”
[13] Id.
[14] Id.
[15] Id.
[16] Ecology’s “Phase I Municipal Stormwater Permit.”
[17] See Ecology’s March 22, 2006 “Fact Sheet” for the new Phase I permit.
[18] “Municipal Stormwater Permits.”
[19] Id.
[20] Phase II Municipal Stormwater Permit for Western Washington.
[21] Phase II Municipal Stormwater Permit for Eastern Washington.
[22] See Ecology’s January 16, 2007 News Release “State takes aim at #1 urban water quality problem – stormwater (for Western Washington)”.
[23] See Gene Johnson, “Stormwater rules fail, say conservationists,” The News Tribune February 15, 2007.
[24] AWC’s January 2007 Issue Alert “Municipal Phase II NPDES Permit.”
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