Washington State to Update Municipal Stormwater Permits; Comments Due February 3, 2012

The Washington Department of Ecology has released three updated municipal stormwater permits for public review and comment. The draft permits authorize stormwater discharges from public systems in urban areas. The permit updates will take effect in August 2013 and Ecology is accepting comments on the proposed permit modifications until February 3, 2012. Proposed modifications to the existing permits include additional requirements that major Western Washington municipalities use so-called “low impact development” (“LID”) techniques, which will in turn impact local planning and codes. The draft 2013 Phase I and Phase II (Western and Eastern) Stormwater General Permits propose changes in several other areas, including monitoring requirements, structural stormwater controls (Phase I only), requirements for LID applicable to development sites smaller than one-acre (Western Washington Phase II only), and Ecology’s evaluation of possible new permittees. The new permits continue a stormwater management trend toward requiring wider use of methods that allow water to percolate into the ground rather than run through a pipe into streams, rivers, and larger water bodies such as Puget Sound.

Municipal Stormwater Permits in Washington

Most stormwater runoff collected in municipal separate storm sewers and discharged to surface waters is now required to have a National Pollution Discharge Elimination System (“NPDES”) permit under the federal Clean Water Act (“CWA”).[1] In the 1990s, the Environmental Protection Agency (“EPA”) enacted stormwater regulations that established a two phase (Phase I and Phase II) municipal stormwater permit program. EPA has delegated to the Washington Department of Ecology (“Ecology”) the authority to implement the CWA and permit municipal stormwater discharges in Washington State. Additional state authority for the permit program is found in the Washington Pollution Control Act (“WPCA”)[2] and Ecology’s Water Quality Regulations.[3] EPA has identified stormwater discharges as a major source of pollution for all waterbody types in the United States[4] and Ecology has in turn identified stormwater runoff as the state’s largest source of urban water pollution.[5]

In 2007, Ecology revised its existing Phase I Municipal Stormwater General Permit. At the same time, Ecology issued new Phase II Municipal Stormwater General Permits for Eastern and Western Washington impacting 100 cities, 13 counties, and other entities and, for the first time, requiring them to regulate discharges from their stormwater systems. The 2007 Phase I and II Municipal Stormwater permits required municipalities and other public entities to adopt ordinances or otherwise develop and implement stormwater management systems that include stormwater runoff controls from new development, redevelopment, and construction sites; and pollution prevention.[6] For more on Ecology’s 2007 Phase I and II Permits see Washington State Issues New Stormwater Permit Rules Affecting 100 Cities, 13 Counties, Marten Law Environmental News (February 21, 2007).

The 2007 Permits and Hearings Board Litigation

Environmental groups appealed the 2007 Phase I and II permits to the Hearings Board, arguing that they are not sufficiently protective.[7] A number of cities, counties, and other Phase I and II permittees also appealed the permits, contending that they were unduly burdensome.[8] The appeals process resulted in several Hearings Board decisions but did not, however, resolve all issues raised by the appellants and intervenors. During the hearing process, Ecology and the permittees resolved some issues through stipulations and settlements. For example, in March 2008, Ecology reached a settlement with several Phase I permittees modifying the Phase I permit’s stormwater monitoring procedures.[9]

As a result of the Hearings Board’s decisions and settlements reached in the litigation, Ecology took the following steps. First, Ecology modified conditions in all three permits related to compliance with water quality standards; including Total Maximum Daily Load Requirements (water quality cleanup plans); and made related changes in the general conditions in the permits having to do with reporting, definitions, and annual report forms.

Second, Ecology modified the Phase I Permit conditions for construction and post-construction runoff controls related to manual approval and low-impact development. Ecology added Appendix 10 to the permit, which lists the Phase I permittee documents approved by Ecology.

Third, Ecology modified the Western Washington Phase II permit to add reporting requirements on advancing the use of LID. LID includes using porous pavement, vegetated swales, “green” roofs, and rain gardens to help reduce stormwater runoff. For more on LID and stormwater see A Perfect Storm(water), Marten Law Environmental News (March 19, 2008).

Finally, Ecology changed requirements for structural stormwater controls; clarified water cleanup plan requirements in Snohomish County; exempted mitigation sites at the Ports of Tacoma and Seattle from certain requirements; and changed monitoring requirements.

2011 Legislative Changes to Municipal Stormwater Permitting

The 2007 Municipal Permits were set to expire in 2012. The new permits will have new deadlines for municipalities to meet and are expected to be more stringent than the 2007 permits. In 2011, however, Washington passed a new law delaying Ecology’s reissuance of the Municipal Stormwater Permits to August 2013 to give cities and counties fiscal relief during this period of economic downturn.[10] Ecology will, therefore, reissue the current 2007 Permits in July 2012 with no modification. The reissued permits will be in effect through July 2013. Proposed new permits would then be in effect from August 2013 to August 2018. The legislation allows local jurisdictions to continue implementing their current stormwater management programs while giving them an additional year to prepare for the next permit cycle.

Changes Proposed for 2013 Permits

The draft 2013 Phase I and Phase II (Western and Eastern ) Municipal Stormwater General Permits propose changes in several areas, including Low Impact Development (LID), monitoring requirements, structural stormwater controls (Phase I only), requirements for smaller development sites (Western Washington Phase II only), and Ecology’s evaluation of possible new permittees.

The draft permits propose monitoring requirements to answer questions about stormwater impacts and the effectiveness of stormwater management practices. Ecology proposes that permittees work together to conduct regional studies to evaluate the use of specific requirements in the permit and related stormwater management manual. In Western Washington, Ecology has worked since October 2008 with a group of permittees and other interested parties in Puget Sound to design a Regional Stormwater Monitoring Program (RSMP). The consensus-recommended program defines several components included in the draft Western Washington Phase II permit:

• Receiving waters: Puget Sound permittees will collect information on the status and trends in water quality and habitat in small streams and marine near shore areas affected by stormwater and prioritize monitoring questions during the coming permit term. The permits will not require southwest Washington permittees to conduct receiving water monitoring during this permit term.
• Program effectiveness: Permittees will conduct regional studies of stormwater practices to collect information that will improve their programs and future permit requirements.
• Source identification: Permittees will develop an information repository that will serve as an illicit discharge detection and elimination (IDDE) manual for Western Washington.
• Data management and analysis: The regional program monitoring data will be publicly accessible. Permittees will fund the data management and analysis. Ecology proposes that Phase I permittees be required to upload data collected under their current permits into publicly accessible databases.
• RSMP administration: The stakeholder group recommended that Ecology serve as the RSMP administrator for this permit term. This means each permittee will pay their share of costs to Ecology, which will conduct open competitive proposal processes to contract with multiple entities in the region to conduct the monitoring.

Ecology also proposed revisions to the Phase I Structural Stormwater Controls Program requirements. This program requires permittees to identify municipal stormwater projects such as facilities retrofits that improve water quality or flow control. The proposed changes include incentives for projects based on type, project size, and water quality benefits. The changes also improve reporting on measurable benefits, which will help Ecology make decisions and build a more objective program in the future.

Phase II Possible New Permittees

Ecology is evaluating new, additional jurisdictions for possible permit coverage in the reissued WWA Phase II permit. The federal rule for the NPDES program requires that Ecology evaluate cities that have grown to over 10,000 since the last permit. The 2010 U.S. Census identifies those cities as:

• Snoqualmie in King County.
• Lynden in Whatcom County.
• Grandview in Yakima County.

Ecology is also evaluating for coverage the following unincorporated Urban Growth Areas (UGAs) around the following cities with populations over 10,000:

• Island County for the Oak Harbor UGA.
• Clallam County for the Port Angeles UGA.
• Lewis County for the Centralia UGA.
• Kittitas County for the Ellensburg UGA.
• Yakima County for the Sunnyside UGA.

Low Impact Development Requirements

Probably the most significant new requirements on municipal dischargers are the further requirements that municipal dischargers adopt LID techniques. Washington is the first state in the nation to require local governments to use LID techniques to control stormwater “where feasible.” The LID requirement first arose from a Hearings Board order that applies to Phase I permittees under the 2007 Permit, including the cities of Seattle and Tacoma, Clark County, King County, Pierce County, and Snohomish County, local governments encompassing western Washington’s most populous areas.[11]

The Hearings Board later issued a decision on the 2007 Western Washington Phase II permit that did not require the use of LID by the state’s smaller municipalities but did direct Ecology to modify the permit to encourage broad use of LID on the west side of the state.[12] Ecology also regulates stormwater discharges under several other separate general permits to which Ecology or the Hearings Board could extend LID, including the Industrial Stormwater General Permit and the Construction Stormwater General Permit. For more on Washington’s LID requirement see Washington State First to Require Low Impact Stormwater Management Techniques, Marten Law Environmental News (September 3, 2008).

The draft 2013 Permits propose further requirements for LID stormwater techniques in new development and redevelopment. Ecology drafted these requirements to address 2008 and 2009 rulings by the Pollution Controls Hearing Board (PCHB). LID stormwater designs are intended to mimic the natural drainage processes by using site design and best management practices that retain vegetation, limit impervious surfaces, and infiltrate runoff on-site. The proposed LID requirements are based on input from a 2009-2010 LID advisory group as well as informal public comments on preliminary draft requirements in May and June of 2011.

Ecology drafted the requirements to set goals and standards with flexible and variable tools to meet them, including:

• Site and subdivision standards including a hydrologic performance standard and a menu of approved LID best management practices to meet the standard. All sites are subject to feasibility review that can lessen the LID requirements, such as where soils are too poor to soak up the runoff.
• Updated development codes to achieve LID goals of retaining vegetation and limiting paved areas. Examples include reducing hardened surface areas through clustered developments, smaller parking spaces, narrower roads, and landscaping with plants that filter pollutants from the runoff.

To align these with the Phase I permit requirements and the Ecology stormwater manual, the Western Washington Phase II draft permit also proposes a requirement to apply these standards to sites smaller than one-acre. Ecology proposes that Phase I cities and counties adopt and begin implementing the LID site requirements by December 31, 2014, which includes both site requirements and an update of broader development codes. Phase II communities would have until December 31, 2015, to adopt the site-scale standards and December 31, 2016, to update broader development codes.

Workshops and Public Hearings

Ecology is seeking input on options for extending interim deadlines in the permit as well as innovative and cost-saving ideas to achieve compliance with the permit at a lower cost. Ecology is also looking for ways to improve performance and reduce costs in light of the economic situation. Ecology does not intend, however, to reduce the permit standards or extend the timelines beyond the current permit cycle, which ends February 16, 2012.

During the public comment period, Ecology will host workshops and public hearings. The workshops provide an informal venue in which Ecology will discuss the proposed permit modifications and answer questions about them. The public hearing is a formal hearing process where the public may provide testimony for the official record. Ecology may not respond to questions or comments during the formal hearing. Ecology will issue an official Response to Comments that addresses written comments and oral testimony some time after the close of the public comment period. If public comments cause substantial changes, Ecology may begin another public notice of draft modifications and comment period. Ecology will issue the final permit modifications after it considers all public comments and makes final changes to the draft permit modifications. Ecology expects to issue the final permits in June 2012.

For more information on municipal Stormwater permits and Marten Law’s water quality practice please contact Jeff Kray.