Update on Stormwater Regulation

1. Update on Stormwater Regulation League of Cities March 2011 Connie Bosma Chief, Municipal Branch Office of Wastewater Management U.S. Environmental Protection Agency

2. 402(p) of Clean Water Act • Section 402(p) established phased approach to permitting certain stormwater discharges • Section 402(p)(4) required EPA to establish permit application requirements for industrial and large municipal discharges (greater than 100,000 population) • Section 402(p)(5) required EPA to conduct a study to identify other dischargers, assess their pollutant loadings and establish methods to control the pollutants and submit the results in a report to Congress • Section 402(p)(6) provides authority for EPA to regulate other stormwater sources, as presented in the study, “to protect water quality”

3. Phase I Stormwater Regulations • Finalized in 1990 • Regulates stormwater discharges from: • 10 categories of industrial operations • Construction activity disturbing 5 acres or more is one industrial category • Medium and large municipal separate storm sewer systems (MS4s) in areas that serve 100,000 or more people • Established: • Permit application requirements and deadlines • Requirements for a municipal stormwater management plan • Permit exclusion for industrial activities that are not exposed to stormwater • 1,000 Phase I MS4s

4. Phase II Stormwater Regulations • Finalized in 1999 • Regulates stormwater discharges from: • Small MS4s, defined as: • An MS4 not already covered by an MS4 permit and • Located in an “urbanized area” as defined by the Bureau of Census, or • Designated by the NPDES permitting authority on a case-by-case basis if situated outside of urbanized areas. • Construction activities disturbing between one and five acres • Requires NPDES permits for these discharges • Established six minimum control measures for small MS4 permits: • Public Education & Outreach • Public Participation/Involvement • Illicit Discharge Detection & Elimination • Construction Site Runoff Control • Post-Construction Runoff Control • Pollution Prevention/Good Housekeeping • Basis for regulation: 1995 Report to Congress and 402(p)(6) authority

5. Urbanized areas in the U.S. • About 6,000 Phase II MS4s • Urbanized areas cover 2% of total U.S. land area

6. Environmental Problem • Stormwater contains pollutants including: nutrients, heavy metals, bacteria, sediments, trash, salinity, PAHs, temperature and pesticides • Beach closures, prohibition or restrictions of shellfish harvesting, wetland degradation • The velocity of stormwater discharges can cause downstream flooding, infrastructure damage, stream bank erosion and habitat destruction • Low levels of imperviousness directly impact biological condition in receiving waters. There is also loss in base flow in streams and groundwater recharge. 6

7. Impacts of urbanization on stormwater runoff

8. Stormwater Impacts Will Worsen • Nationwide, the amount of land area identified as urban increased nearly 6% between 1990 - 2000, (U.S. Census) • Between 1970 – 2000, there was a 9.4% net increase in urban lands on the East Coast alone (USGS) • Projected Growth • Impervious surfaces covered 97,200 km2 of the conterminous US in 2000. • By 2030, impervious surface from housing development alone will grow 36%. 8

9. Program Challenges • Significant development has occurred outside of regulated areas • Since requirements vary across a state, there is no level playing field, providing an incentive to develop outside of regulated areas • It is more cost-effective to incorporate proper stormwater control measures in the design of a site rather than retrofit controls at a later date • Discharges within regulated areas not adequately controlled • Requirements too vague and unenforceable • Inconsistencies across the nation

10. Big Box Planned Big Box Planned Big Box Big Box Big Box Big Box

11. Options for Performance Standards • Discharges from New Development • Mimic predevelopment hydrology • Exceptions/alternative compliance options • Credits • State flexibility • Discharges from Redevelopment • Additional exceptions/alternative compliance options • State flexibility • Exploring alternative compliance options for roads

12. Discharges from Individual Sites • Benefits • Protects water bodies from stormwater dischargers • Provides level playing field • Assess options for regulating discharges from individual sites • Size thresholds • Location (discharges to the MS4; dischargers directly to waters of the U.S.) • How to regulate (permit and/or direct rule)

13. Regulated MS4 Expansion Options • No change – 2010 Urbanized Area defined by Census • Extend coverage to jurisdiction boundaries of the MS4 rather than urbanized area boundary • Extend coverage to urbanized clusters (Census) • Possible population cutoff • Extend coverage to watershed boundaries (using HUC defined watershed) • Possible population cutoff

14. Existing Discharge Management Plan (Retrofits) • Possible requirements imposed on some MS4s • Develop plan • Implement plan over long period of time • Options for Applicability • Phase I MS4s • Phase I and II MS4s • MS4s that discharge to waters impaired by stormwater

15. Chesapeake Bay Potential specific provisions • Regulate additional MS4s • Apply performance standard to smaller site sizes • Require retrofits of individual sites to better address stormwater discharges • Restrict fertilizers

16. Shift in Paradigm • Traditional approach – convey stormwater quickly from site to waterbody or detention pond • New approach – • view stormwater as a resource • manage on-site using green infrastructure 16

17. Green Infrastructure • Green Infrastructure refers to practices that use or mimic natural processes to infiltrate, evapotranspirate, or harvest stormwater near the site where it was generated. • It differs from traditional approaches to stormwater management which focus primarily on flood control by piping stormwater to central outfalls and discharging to receiving streams or large detention basins • Retaining stormwater discharge volumes on site reduces pollutant loads and stream erosion • Green infrastructure has many other benefits • Recharge groundwater, provide greenspace, improve air quality, reduce heat island effect • Cost-effective • Community liveability

18. Green Infrastructure Approaches Rain garden Green roof Parking lot infiltration island Open swale Rain garden

19. Green Infrastructure Approaches Open swale, Portland, OR Terraced open swale Porous pavers, Philadelphia Porous pavement sidewalk Large cistern, Chicago

20. Green Infrastructure Implementation • States are integrating green infrastructure principles into their permits • Washington, DC - Massachusetts - New York • North Carolina - Montana - Maryland • New Jersey - Oregon - Wisconsin • Ohio - Connecticut - Kansas • West Virginia - Maine - Colorado • California - Vermont - Washington • Communities are adopting green infrastructure approaches • Philadelphia, PA • Milwaukee, WI • Chicago, IL • Portland, OR • Seattle, WA • Kansas City, MO • Louisville, KY • Richmond, VA

21. Schedule • September 2011 – Proposal • November 2012 – Final Action