Small cities await flood of stormwater regulations

On Oct. 1, 1994, 19,000 small cities, 7.5 million commercial and light industrial facilities and countless future small construction sites entered the twilight zone. On that day, a Congressionally imposed moratorium on regulating smaller stormwater discharges expired, leaving many curious and some downright scared.

According to the letter of the law, cities under 100,000 citizens and other facilities previously exempted from what is known as the “Phase II” discharges were then required to apply for NPDES stormwater discharge permits. But in the absence of any guidelines on permitting, it was impossible to submit an application. The U.S. Environmental Protection Agency’s response was, “Don’t worry. We’re not going to ask you to do the impossible.” Still, as cities were quick to point out, even if EPA was not going to enforce the law, city and county governments were liable for lawsuits initiated by citizens demanding cleaner watersheds, a remedy the Clean Water Act (CWA) specifically provides.

Small cities remained in this regulatory limbo for almost a year until EPA published a direct final rule on regulating Phase 11 discharges on Aug. 7, 1995. The rule should give small cities clear direction on their responsibilities as stormwater dischargers.

This is not the way the regulations were developed, however. The rule established a two-tier system: the bad guys and everybody else. The bad guys, defined as dischargers that are “contributing to water quality impairment or are significant contributors of pollutants,” would have to apply for a permit within 180 days. EPA expected this group to be very small. Everybody else — the 19,000 cities, the 7.5 million commercial and light industrial facilities, the countless future small construction sites — was allowed to wait until Aug. 6, 2001, to apply for permits.

Small cities were left hanging once again, not sure of what their responsibilities for stormwater management would be: Questions were on the minds of many city and county officials. Would they have to submit the elaborate permit applications — which can cost $500,000 or more — that larger cities do? Would some categories of dischargers be completely exempted from permitting obligations? Would the Clean Water Act be rewritten by Congress each year? If Congress does rewrite the CWA, it may choose to specify Phase II dischargers and permit requirements rather than leaving the job to EPA.

PHASE I, PHASE II AND THE NEXT PHASE

In 1987, Congress expanded the NPDES program to include stormwater discharges as part of the Clean Water Act amendments because scientists had long suspected that urban stormwater runoff was responsible for a significant chunk of the nation’s water pollution problems.

At that time, Congress asked EPA to concentrate first on the more serious stormwater problems of large (more than 100,000 residents) cities and industrial facilities and imposed a five-year moratorium on regulating all other stormwater discharges.

Phase I, covering medium and large cities and industrial facilities, is nearly complete. A large number of those permit applications have been processed and permits issued.

Originally, EPA was to have issued Phase 11 regulations covering smaller cities, by Oct. 1, 1992, but when it missed this deadline, Congress extended it until October 1994.

Meanwhile, during 1994, Congress was busy rewriting the Clean Water Act, including the provisions affecting the stormwater program and Phase II dischargers.

Although proposed CWA revisions died in both the House and Senate, Congressional efforts were made to give an idea of what regulations may look like if Congress decides to include Phase II dischargers in a revised CWA.

In both Senate and House versions, many small cities in non-urban areas would have been exempted because the proposed legislation only extended stormwater permitting to urbanized areas, which the Census Bureau defines as areas with populations of at least 50,000 and densities of at least 1,000 residents per-square-mile.

In addition, the Senate proposed stormwater permitting for combined sewer-stormwater systems, which were not included in the 1987 CWA amendments. Other proposed measures sought to lighten the compliance burden for small cities. The Senate bill, for example, stipulated that for 10 years, small cities would not be required to comply with numeric effluent limitations.

When the CWA revisions failed to make headway, senators John Chafee (R-R.I.) and Max Baucus (D-Mont.) introduced a last-minute stormwater reform bill (S 2507) that had the support of EPA and many national environmental and municipal organizations. Although this effort also failed, its provisions provide hope for small municipalities because there was much in it that would have relieved the burden of excessive stormwater regulation. The bill would have:

* imposed a 10-year moratorium on any requirement for stormwater to meet water quality standards as well as affect all municipal permits;

* delayed stormwater management. requirements for municipalities surrounding large- and medium-sized cities until the next permit terms began in 1998 and 1999;

* delayed implementation of management programs in urbanized areas of 50,000 residents to 100,000 residents for seven years; and

* permanently exempted all other municipalities.

While Congress was wrestling with the CWA rewrite, which ultimately became trapped in legislative gridlock, EPA was busy developing the direct final rule, first published on Apr. 7, 1995, in which it outlined the two-tiered approach. EPA misjudged its audience, however, because the final rule elicited a storm of protest. Fortunately, the agency had simultaneously published a “proposed” version of Phase 11 regulations, and so the agenda could be open for comments from interested municipalities.

Some who questioned EPA’s legal authority to extend the moratorium for Phase 11 permitting to 2001 were concerned that cities might still be vulnerable to citizen lawsuits, and commentators charged that the rule was an unfunded mandate. Also, there were complaints that the term “significant contributors of pollution,” the criteria used to designate Tier I institutions, was too vague.

EPA responded to these comments, sticking to its interpretation of authority under the Clean Water Act and acknowledged that the wording of the term was deliberately vague to give permitting authorities more flexibility. The unchanged final rule was issued on Aug. 7, 1995.

WHAT LIES AHEAD

The final rule postpones permit applications for Phase 11 dischargers until 2001, and under a consent agreement with the National Resources Defense Council, EPA is obligated, in the interim, to propose the supplemental Phase II rule by Sept. 1, 1997, with a final rule by Mar. 1, 1999. This supplemental rule will outline what the specific responsibilities of Phase 11 dischargers, including small cities, will be.

EPA set up a committee of Phase 11 stakeholders, including representatives of state, local tribal and federal government, environmentalists and industry, to help develop the supplemental rule. The group, Stormwater Phase 11 Federal Advisory Subcommittee, was directed to develop proposals by late Spring 1996 and deliver final recommendations to EPA by the end of the year.

The committee reviewed a number of approaches for controlling Phase 11 discharges, including ideas from the rewritten House-approved Clean Water Act bill (HR 961), the Clinton Administration Clean Water Initiative of February 1994 and a package of options proposed by EPA in 1993. Draft proposals were scheduled for public release at the upcoming April 1996 committee meeting. Stormwater dischargers will be placed into three categories:

* Tier I — includes all municipalities associated with Phase I that serve populations over 100,000;

* Tier II — includes municipalities in urbanized areas with populations of 50,000 or more and with population densities of 1,000 per square mile not associated with the first phase of the stormwater permitting program; and

* Tier III — includes all remaining municipalities.

EPA will develop criteria to determine which discharger, such as those with significant water quality impact, would be covered. Stormwater management plans and monitoring requirements for Tier II would be less intensive than Tier I, and Tier III dischargers would only have to address the specific problems that trigger their inclusion in the permitting program,

NOT WAITING FOR EPA

It is apparent that cities cannot act on the basis of regulations that are a long way from being finalized. Smaller cities, in fact, may not even be included in the permitting program at all.

But many other small cities and counties, particularly those in urbanized areas, would do well to begin thinking about what it will take to satisfy potential NPDES stormwater permit requirements. There are steps — such as locating and organizing all the data, system maps and industrial inventories that are already available — cities can take right now.

For example, although Charlotte County, Fla., just squeaked in under the 100,000 population mark in the 1990 census and was not required to apply for a stormwater permit in Phase I, Charlotte County staff decided to go ahead with developing a stormwater master plan. “We knew we were going to have to do it sooner or later, so why not start now,” says Jay Johanson, project manager for the county’s capita improvements program.

“One step is to get baseline information about the geography of the drainage basins and another is to help identify sources of runoff that are adversely affecting Charlotte Harbor. The sooner we start tackling some of these flooding issues and some of the water quality issues in the harbor, the better.” Like many smaller jurisdictions, Charlotte County did not have the type of detailed infrastructure mapping required for stormwater permits. The county is updating all the hard copy maps and locating other existing map products. This information is translated into a GIS format, which will help prioritize drainage basins both from a water quantity and water quality perspective.

A pollutant loading model for existing and future land use conditions will also be constructed, and 10 basins with high stormwater pollution potential will be examined, with Best Management Practices suggested to address any problems. The master plan will help Charlotte County establish a stormwater utility. Also, with the help of the Gis-based stormwater management system, the county will be able to keep track of storm sewer system inventory, illicit discharge reports and tracking efforts, provide industrial pollutant reports, develop a stormwater facility management system, review water quality monitoring data and create water quality modeling. Besides paying for stormwater control measures, the utility will finance preparation of future NPDES permit applications. “I’m confident that pursuing this master plan will put us in a much better position when we finally have to get our permit,” Johanson says.

FUTURE IN QUESTION

As most historians acknowledge, it is easy to explain the past, but difficult to predict the future. Stormwater permits and regulations required by EPA are no exception. Congress might pass a modified Clean Water Act, but then again, it might not. EPA is obligated to issue draft regulations for Phase 11 dischargers by Sept. 1, 1997, but, then again, changes may occur. And, if EPA is suddenly required to fulfill proposed new requirements for cost /benefit analyses for all its activities, most of the rule-making will come to a grinding halt.

It makes sense for cities that are potential permitees in a Phase II stormwater program to keep their ears to the ground and find out what they can do to get ready now. Because like death and taxes, the regulations are not going to go away.

Steve Veal is vice president, Carter and Burgess, Fort Worth, Texas.