Halfmoon Education Seminar Presentation

1. Maryland Water Laws andMaryland Water Laws and
RegulationsRegulations
Water Resources and StormwaterWater Resources and Stormwater
ManagementManagement
Presentation forHalfmoon Education, Inc.Presentation forHalfmoon Education, Inc.
Jessup, MarylandJessup, Maryland
December 10, 2015December 10, 2015
1000 Fell Street | Baltimore, MD 21231
1.410.491.2808 | AndrewTDer@comcast.net
Andrew T. Der & Associates, LLC
Environmental Consulting

2. Why Are We Here?Why Are We Here?

3. What HappensWhat Happens

4. FourCategories of EffectsFourCategories of Effects
• Hydrology
• Geomorphology
• Habitat
• Water Quality

5. HydrologyHydrology
• Increase in flow and velocities
• Increase in flooding
• Increase in frequency
• Increase in bankfull flows

6. GeomorphologyGeomorphology
• Stream Widening
• Channel Instability
• Erosion

7. HabitatHabitat
• Fish Barriers
• Loss of Substrate
• Loss of Riparian Zone
• Loss of
Micro-topography

8. WaterQualityWaterQuality
• Sediments
Channel erosion can be the
primary sediment source!
• Nutrients
Maintained vegetated areas & ag
• Temperature
Warm pavements and
pond pools
• Other
Oils, Greases, heavy metals,
toxics

9. WaterQualityWaterQuality

10. StreamInstabilityStreamInstability

11. StreamInstabilityStreamInstability

12. What is a Regulated Water?What is a Regulated Water?
• Waters of the U. S. limits – affects numerous processes
• Federal definition currently includes tidal navigable water, nontidal
navigable water, connecting headwaters, some ephemeral channels,
and wetlands adjacent to such waters (why we have 1987 Manual) –
but how far up does it go?
• Further defined by Supreme Court ruling – two most significant:
“SWAANC” says jurisdiction cannot extend to isolated waters
“Rapanos” says jurisdiction cannot be based on a connection
• Determines extent of CleanWater Act (CWA) Sec 401 (Water
Quality Certification), 402 (NPDES), and 404 (Dredge and Fill),
Section 303 (TMDL), Section 316 Power Plant, and potential basis for
state and local criteria
• Maryland includes even more! Keep reading.

13. How Do the New Rules DefineHow Do the New Rules Define
it Differently?it Differently?
• For complete story, go to MBIA Building Magazine
http://issuu.com/mbia11825/docs/jul_yaug15_final/12?e=15029833/13893638
• Short version is maybe not – that – much difference in Maryland
• Previous regulatory terms such as tributary, neighboring, floodplain, and
riparian area now proposed to be defined by rule - may - allow more waters
to come under federal authority
• Subjectivity may establish the “nexus” but we had subjectivity before – comes
down to reviewer in the field?
• SWM conveyances more regulated?
• Issue likely to be moot now with recent Senate Bill blocking the rules – and
NAHB just said “see you in court”.

14. Worst Case Scenario of MoreWorst Case Scenario of More
Regulation?Regulation?

15. What is a Regulated Impact?What is a Regulated Impact?
• Impacts are discharges and can be out of a pipe or
placement of material and grading for CWA
• Not all impacts created equal.
Corps only regulates placement of material – and
excavation if sidecasting or dredge spoil disposal
MDE additionally regulates vegetative clearing and
excavation
• Impacts authorized as Individual Permits, General Permits,
MD Letters of Authorization, MD Individual Permits, MD
Tidal License

16. WaterQuality StandardsWaterQuality Standards
-Classification of State Waters-Classification of State Waters
Can affect both various modes of water and
discharge permitting
• Use I & I-P:Water Contact Recreation and Protection of
Aquatic Life
• Use II: Shellfish Harvesting Waters
• Use III & III-P: Natural Trout Waters
• Use IV & IV-P: Recreational Trout Waters

17. Two Categories of WaterQualityTwo Categories of WaterQuality
StandardsStandards
Numerical
• Dissolved Oxygen,Temperature, pH,Turbidity, Fecal Coliform,Toxics
Narrative - includes CWA narrative criteria
•...Protection of Aquatic Life ...Fishable ...Swimmable...
• EPA Anti-Degradation Policy (ADP):
“...To accomplish the objective of maintaining existing
water quality...Nonpoint sources shall achieve all cost effective and
reasonable best management practices for nonpoint source control...”

18. Waters, Including Wetlands,Waters, Including Wetlands,
Permitting CriteriaPermitting Criteria
U. S.Army Corps of Engineers – most of time separate Corps
permit not needed when within the MDSPGP-4
• CWA Section 10 – and - 404 dredge and fill permit
Corps Issued MDSPGP to MDE
• Regulates waters of the U. S. only – not isolated waters, some ditches,
buffers, or floodplain
• Try to fit waters of U. S. and impact to streamlined permitting categories
• Otherwise Individual Corps permit lengthy requiring additional purpose
and need, alternatives analysis, and federal public notice and interagency
comment

19. More Permitting CriteriaMore Permitting Criteria
Maryland Department of the EnvironmentWetlands and
Waterways Program - combines numerous separate state
permitting regulations into oneWetlands andWaterways
Permit - and adds more jurisdiction
• Nontidal Wetland and Waterways Permit for waters of the U. S. and:
100 yr. FP, isolated waters, 25’ nontidal wetland buffer
By policy can includeTier IIWaters Criteria and NTWSSC both of which
have own100’ buffer and special NTW E/S BMP Conditions
• Tidal Waters and Wetlands License and Permit (no regulated floodplain
or buffer)
• Coastal Zone Management Act
• Section 401Water Quality Certification – can impose additional SWM or
BMPs but less common now

20. But Wait – There’s More!But Wait – There’s More!
• MD Chesapeake Bay Critical Area Law
Administered directly for state and federal, but through local zoning and
subdivision ordinances for overlay 1,000 feet from shoreline (MHW) and 100’
buffers from waters including wetlands – (and a 10% SWM rule in Intensely
Developed Areas)
• MD State Forest Conservation Law
Administered directly for state and federal by MD DNR, but delegated to
localities for local and private lands. Requires NRI or FSD which is the
mechanism for 100’ or more buffers from waters. Could serve as basis for
wetland permit plans as well as first SWM concept under new regulations
• Federal and State projects frequently have own programmatic agreements!
• These processes frequently affect and interface with each other (NRI/FSD, CBCA,
NPDES, and state/local SWM) – but how?

21. And Yet, Still More! - SWMAnd Yet, Still More! - SWM
Stormwater Management - programs moving to
integrating the ecological and resources within engineering
criteria
• NPDES Phase I and II
U. S. EPA delegated to States by GP – regulates new construction AND existing
older stormwater sources – only permitting means to retrofit.
New construction = Permitted by GP under Notice of Intent (NOI)
Retrofit of old existing discharges = Municipal Separate Storm Sewer System (MS4)
• DoD and federal facility SWM mandates
• State/local Stormwater Management Regulations – new construction
• State/local Erosion and Sediment Control Regulations – new construction

22. What are SWMCriteria?What are SWMCriteria?
Approved directly by MDE for federal and state
projects and triennially approves local ordinances for
local regulation and private development
• In MD - primary standard is Environmental Site Design (ESD) to the
Maximum Extent Practicable (MEP) to reduce post development runoff
to natural “woods in good condition” – need to treat 1 to 2.6 in rainfall
depending on site and design conditions
• Virginia - primary standard starting 2014 isTP oriented management of
1 inch runoff of entire site utilizing their Stormwater BMP Clearinghouse
also emphasizing nonstructural disconnections
• National – U.S. EPA Stormwater Rule and NPDES Effluent Limitation
Guidelines deferred for now in 2014

23. How is it Applied?How is it Applied?
Two different ways
• State Erosion and Sediment Control Law
Temporary practices
• State Stormwater Management Law
Permanent practices
Maryland Stormwater Management Act – Incorporates SWM Manual by
reference and revised 2007
Formalizes “LID-like” or ESD to the MEP – and met if channel stability and
predevelopment groundwater recharge rates are maintained and nonpoint
source pollution is minimized…. structural stormwater practices may be used
only if determined to be absolutely necessary

24. What Really are Best ManagementWhat Really are Best Management
Practices?Practices?
Best Management Practices (BMPs) are policies,
practices, procedures, or structures implemented to
mitigate the adverse environmental effects on
surface water quality resulting from development.
BMPs are categorized as structural or non-structural.
•Early Planning
•Low Impact Development, or Better Site Design, or Environmental Site Design
•Local stream buffers and setbacks
•Minimize or disconnect impervious surfaces sheet flow, open section pavement
•Devices - most significant factor affecting performance is construction and
maintenance!

25. How areHow are EngineeredEngineered BMPs ReallyBMPs Really
Supposed to be Used?Supposed to be Used?
Smaller Volumes - try first
“First Flush”
Preferred and most compatible
with ESD at-source and/or
pretreatment quality control
• Infiltration
– trench/basin
• Filtering
– sand filter/bioretention
• Hydrodynamic Devices above or
underground
– Curb & gutter vortex/filter
basin
• “Newer” Technology
– pervious surfaces/green roofs
Larger Volumes – if needed
When preferred is Insufficient
for quantity and quality
• Stormwater Ponds
– wet pond
– wet ED pond
– dry ED pond (for cold water w/
pre-treatment)
– multiple pond system
• StormwaterWetlands
– shallow marsh
– ED shallow wetland
– pond/wetland systems

26. Erosion and Sediment ControlErosion and Sediment Control
vs. StormwaterManagementvs. StormwaterManagement
E/S
• Construction Phase
• Sediments are primary criteria
• Can be temporary or “permanent”
SWM
• Post-construction
• Manages various pollutants
• Permanent

27. Common E/S PracticesCommon E/S Practices
• Silt Fence
• Vegetative Stabilization
• Stone lined conveyance
• Temporary Sediment Basin/Trap
• Temporary Use of Permanent Pond or other facility

28. Common E/S PracticesCommon E/S Practices

29. Common E/S PracticesCommon E/S Practices

30. Surface StabilizationSurface Stabilization

31. Sensitive ResourcesSensitive Resources

32. NewerTechnologiesNewerTechnologies

33. Common Compliance IssuesCommon Compliance Issues

34. Common Compliance IssuesCommon Compliance Issues
SimilarforE/S & SWMSimilarforE/S & SWM
Construction
Maintenance

35. Common SWMPracticesCommon SWMPractices
• Better/Environmental Site Design
• Sheet flow management – prior to and after conveyance
• Open section surfaces
• Engineered practices

36. Common “ESD” PracticesCommon “ESD” Practices

37. The Best BMP- Workwith ForestThe Best BMP- Workwith Forest
and Wetland Conservationand Wetland Conservation

38. Workwith Site CharacterBeforeWorkwith Site CharacterBefore
DevicesDevices

39. Bioretention & InfiltrationBioretention & Infiltration

40. Bioretention & InfiltrationBioretention & Infiltration

41. Landscaped Bioretention FacilityLandscaped Bioretention Facility

42. Hydrodynamic DevicesHydrodynamic Devices

43. Get CreativeGet Creative

44. Pond and WetlandsPond and Wetlands

45. Pond and WetlandsPond and Wetlands

46. Transition HabitatTransition Habitat

47. Transition HabitatTransition Habitat

48. SWM& Amenity CompatibleSWM& Amenity Compatible

49. Detention orDry Pond – Not!Detention orDry Pond – Not!

50. Enhance & Plant Dry Ponds AlsoEnhance & Plant Dry Ponds Also

51. StreamStabilization as a BMPStreamStabilization as a BMP
• Can be effective
watershed sediment
control practice
• Can be local
approval
requirement
• Can be a traded
credit
• Can be out-of-kind
wetland mitigation

52. ““Newer” TechnologiesNewer” Technologies

53. What is NPDES?What is NPDES?
• 1972 amendments to the Federal Water Pollution Control
Act (Clean Water Act) prohibit the discharge of any
pollutant to waters of the United States from a point
source unless the discharge is authorized by a National
Pollutant Discharge Elimination System (NPDES) permit.
• Past efforts to address stormwater discharges under the
NPDES program have generally been limited to certain
industrial categories

54. NPDES BackgroundNPDES Background
• Stormwater out of a pipe was not necessarily a point
source discharge
• National Urban Runoff Program (NURP) – first
meaningful stormwater study showed stormwater
impacts
• In response to water quality concerns, in 1987, the
EPA was required to issue regulations addressing
stormwater discharges under the NPDES program -
Phase I & II Permitting

55. Phase IPhase I
• NPDES established first regulations in 1990 permit requirements for
existing stormwater:
1) existing “medium” and “large” MS4 – individual permits by State to
locality with conditions
2) new construction activity disturbing 5 (changed to 1) acres of land
or greater – general permits
3) Industrial activities and operations (utilities, plants, maintenance
yards, etc.).
• Many continue to operate under Phase I

56. MDE Phase I Permit ConditionsMDE Phase I Permit Conditions
• Effectively prohibit pollutants in stormwater discharges
as necessary to comply with water quality standards
• Assess existing programs and ID licit and illicit Sources
• Implement SWM and E/S
• Hot spots,Trash and litter
• Watershed Management and Restoration (often needs its own water and state
wetland permit!)
• Utilize current collected best management practice (BMP) data to modify and
improve programs
• Monitoring and mapping
• Reduction in impervious surfaces
• Fiscal Analysis and Annual Reports

57. Phase IIPhase II
• In 1999, new rule automatically covers on a nationwide basis all
existing small MS4s located in urbanized areas and new
construction activities of 1 acre or more
• Most localities already complying
• Can authorize industries or facilities
• Have more flexible permitting options
Utilizing existing programs in place
Combine with other Phase II
Combine with a Phase I

58. Six Requirements of Phase IISix Requirements of Phase II
• Personnel education/outreach
• Public involvement/participation
• Illicit discharge detection elimination
• Construction site stormwater runoff control (E/S)
• Post construction stormwater management
• Pollution prevention/good housekeeping

59. Phase II Can be SubjectivePhase II Can be Subjective
• Monitoring, public outreach and BMPs can be flexible as long as:
– Reduces pollutants to the maximum extent practical
– Protects water quality
– Satisfies CWA
– Many existing SWM programs are satisfactory
– Newer MS4 permits will be templates

60. How does NPDES Affect NewHow does NPDES Affect New
Construction?Construction?
• Compliance via NOI with NPDES Stormwater permits is
primarily through BMP implementation
• While congruent in many ways, E/S and SWM plans are not
necessarily the same as NPDES compliance from a
regulatory perspective
• In MD E/S and SWM plans can usually serve as compliance
with NPDES requirements – but not always!

61. How is NPDES SimilarorHow is NPDES Similaror
Different than SWM?Different than SWM?
• NPDES Compliance is more than SWM and accomplished by NOI if
one acre or more disturbance along with Stormwater Pollution
Prevention Plan (SWPPP) – what is it and when is one required?
- Includes E/S and SWM plans (structural) but also includes ESD and
nonstructural including other pollutant management considerations
(spillage, storage, litter), monitoring records – E/S monitoring
- In MD, SWPPP not typically required under general permit for
development, but is for plants, industrial activities, institutional
property – special rules and additional discharge compliance
monitoring
• Potential vs.Actual Discharges – treated the same?!

62. How Does New ConstructionHow Does New Construction
Comply with NPDES?Comply with NPDES?
Compliance with NPDES General Permit (GP) requires, in
addition to customary E/S plans:
• Water quality and sensitive construction techniques for waters with an establishedTotal
Maximum Daily Load (TMDL)
• If significant sediment discharge, then additional inspection, evaluation and installation of
site controls
• Control measures that minimize pollutants as necessary to meet applicable water quality
standard
• Conduct weekly inspections and the next day (changed from next business day) after a
rainfall event resulting in runoff
• If there is “an excursion” above any applicable water quality standard, modify controls to
indicate receiving water is attaining water quality standards
• Hot topic - Potential for flocculent or turbidity controls?

63. Construction ComplianceConstruction Compliance
• Usually oriented to E/S compliance
• Locality is primary inspector
• State (and occasionally EPA – yikes!) inspect also for
NPDES, E/S and Wetland and Waterways Permit
• Corps inspects for Wetland and Waterways Permit

64. NewerComplianceNewerCompliance
RequirementsRequirements
• Usually oriented to post-construction assessment
• Third party quality control construction monitoring
Example = SHA – exceeds SWM and NPDES
• Specific SWM device maintenance conditions
• Post-construction BMP performance can be required
• Industrial site SWPPP have more effluent monitoring

65. • Used also for MS4 and Point
Source Compliance
• Can be state requirement
• Preconstruction, construction
and post-construction
• Macroinvertebrate Studies
(from WWTP & mining)
• Chemistry
• Geomorphology
• Groundwater
Post-Construction BMPandPost-Construction BMPand
WaterQuality MonitoringWaterQuality Monitoring

66. What does a TMDL ReallyWhat does a TMDL Really
Mean forGoodness Sake?Mean forGoodness Sake?
• CWA Section 303 mandates a
“pollution diet” for the
Chesapeake Bay for N & P – what
does this mean for SWM?
• Largest most complexTMDL in
the country, covering the 64,000 s.
m. watershed in six states & DC =
Watershed Implementation Plans
(WIP) in progress now
• In-kind and out-of-kind mitigation –
this combined with local NPDES MS4
compliance and permit mitigation
drive much of stream restoration and
SWM retrofit today – but who is
tracking?

67. Watershed Implementation PlansWatershed Implementation Plans

68. Chesapeake Bay SegmentshedsChesapeake Bay Segmentsheds

69. Hot Issues underDeliberationHot Issues underDeliberation
NowNow
• What should be most sound
priorities of focus? Sediments, P, O,
Flow?
• ESD (and LID) versus Smart
Growth versus impervious surface
criteria?
• TMDL model assumptions
challenged - litigation
• Financing TMDL WIPs (rain tax)
• TMDL AFG Offset credits vs.
existing SWM criteria
• Nutrient trading

70. ResourcesResources
• Maryland Department of the Environment
First stop for NPDES Phase I and II, MS4 Permits,
Construction Permits, Industrial Discharge Permits,
Waterway and Wetland Permits
• MD DNR Forestry
• MD DNR Critical Areas Commission
• Local governments
• If individual permit, U. S.Army Corps of Engineers
• MD DNR for Rare Species, Habitats, Stream Biomonitoring data
• U.S. EPA for national standards and effluent guidelines