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Stormwater Regulation Trends presentation made at IECA Great Rivers Chapter and City of Omaha MS4 Conference

Stormwater Regulation Trends presentation made at IECA Great Rivers Chapter and City of Omaha MS4 Conference

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Past Present and Future Trends Past Present and Future Trends Presentation Transcript

  • Stormwater Management: Past, Present and Future Jesse W. Poore, CFM Felsburg Holt & Ullevig IECA Conference – Great Rivers Chapter Omaha, NE October 28, 2010
  • Presentation Outline
    • The Story of Laws and Litigation
    • The Rules and the Logic Behind Them
    • Permits, Standards, and the MS4s Future
  • The Laws Set the Storylines
    • 1948 Water Pollution Control Act
    • 1952 and 1955 Amendments
    • 1961 FWPCA Amendments
    • 1965 Water Quality Act
    • 1966 Clean Water Restoration Act
    • 1970 Reorganization Plan # 3
    • 1970 Water Quality Improvement Act
  • 1948 Water Pollution Control Act 1952 and 1955 Amendments
    • P.L. 80-845 : Prepare plans for eliminating or reducing the pollution of interstate waters and tributaries and improving the sanitary condition of surface and underground waters.
    • Plan Goals : improvements necessary to conserve waters for public water supplies, propagation of fish and aquatic life, recreational purposes, and agricultural and industrial uses .
    • Funding : construct treatment plants
  • 1961 FWPCA Amendments
    • P.L. 87-88 : Federal agencies consider during the planning for any reservoir, storage to regulate stream flow for the purpose of water quality control .
    • Funding : Research programs related to determining effects of pollutants and treatment methods and to assess water quality in the Great Lakes .
  • 1965 Water Quality Act
    • States adopt water quality standards for interstate waters with federal approval.
    • States adopt implementation plans
    • Little enforceability, little effectiveness
  • 1966 Clean Water Restoration Act
    • P.L. 89-753 : Comprehensive study of the effects of pollution , including sedimentation
    • Recommendations for a comprehensive national program
    • Imposed $100 per day fine for pollution
  • 1970 Reorganization Plan # 3
    • Created the Environmental Protection Agency (EPA)
      • Identify pollutants.
      • Trace them through the entire ecological chain, observing and recording changes in form as they occur.
      • Determine the total exposure of man and his environment.
      • Examine interactions among forms of pollution.
      • Identify where in the ecological chain interdiction would be most appropriate.
  • 1970 Water Quality Improvement Act
    • P.L. 91-224 : Prohibitions on discharges of oil and authorization to determine quantities of oil which would be harmful.
    • Mandated development of regulations for substances other than oil .
    • Required performance standards for marine sanitation devices.
  • FWPCA 1972 Amendments
    • P.L. 92-500 : Restore and maintain the chemical, physical, and biological integrity of the Nation's waters.
    • “ Eliminate all discharges of pollution into navigable waters by 1985”
    • Extent and complexity of pollution problem far greater than congress could have foreseen
  • 1972 FWPCA Floor Debate
    • Sen. Joseph Montoya (D-NM): “Your committee has placed before you a tough bill. This body and this Nation would not have it be otherwise. Our legislation contains an important principle of psychology . Men seldom draw the best from themselves unless pressed by circumstances and deadlines. This bill contains deadlines and it imposes rather tough standards on industry, municipalities, and all other sources of pollution.”
  • 1972 FWPCA Amendments
    • Shift from state to federal standards by introducing Effluent Limitation Guidelines
    • Introduction of § 402 – NPDES Permitting
    • Provisions for pollutant discharge:
      • Point source limits based on State standards
      • State issuance of water quality standards
      • Guidelines to evaluate nonpoint sources
      • Water quality inventory requirements
      • Toxic and pretreatment effluent standards
  • Important Definitions Point Source
    • Point Source : “Any discernible, confined and discrete conveyance , including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged.”
    • Term does not include agricultural stormwater discharges, return flows from irrigated agriculture.
  • Important Definitions Discharge of a Pollutant
    • (A) any addition of any pollutant to navigable waters from any point source
    • (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.
  • Important Definitions Pollutant and Pollution
    • Pollutant : “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.”
    • Pollution : the man-made or man-induced alteration of the chemical , physical , biological , and radiological integrity of water .
    TURBIDITY or VELOCITY?
  • Regulations Define Game Rules
    • Maryland v. EPA, 530 F.2d 215
      • Require states to take on federal standards
    • Brown v. EPA, 521 F.2d 827
      • EPA to compel implementation and enforcement
    • NRDC Inc v. M Costle
      • Administrative feasibility and Technical feasibility
    • American Paper 996 F.2d 346
      • Narrative terms acceptable for ELGs
  • 1977 Clean Water Act
    • P.L. 95-217 : Development of a Best Management Practices Program as part of the state areawide planning program
    • Procedures for State assumption of the regulatory program
    • Updates to Effluent Limitation Guidelines for conventional pollutants and priority toxic pollutants
    • Funding for national study of urban stormwater runoff apportioned
  • 1983 NURP Study
    • 1978-1983 commercial, residential, and light industrial monitoring sponsored by EPA
    • 28 projects located across the country
    • Analyzed eight conventional pollutants and three metals.
    • Significant finding pollutants:
      • Suspended solids – order of magnitude greater
      • COD – comparable to treatment plant
      • Fecals, Hydrocarbons, Metals, Pesticides, PAHs
      • Flows are highly intermittent
  • 1985 ASIWPCA Study
    • Association of State and Interstate Water Pollution Control Administrators
    • “ America’s Clean Water, The States’ Nonpoint Source Assessment 1985”
    • Baseline information from 49 states, 3 territories, 3 interstate agencies, and DC.
  • 1985 ASIWPCA Study
  • 1985 ASIWPCA Study
    • NPS pollution impacted waters:
      • 11% total river miles
      • 30% total lake acres
      • 17% total estuary square miles .
    2009: Urban – Related Impairments 13% Rivers 18% Lakes 32% Estuaries
  • 1985 ASIWPCA Study VELOCITY?
  • Clean Water Act 1987
    • P.L. 100-4 : Provisions included:
      • Continue Chesapeake Bay Program (Auth. 1980)
      • More updates to Effluent Limitation Guidelines
      • Manage urban and industry stormwater pollution through NPDES permit mechanism
      • Strengthen enforcement penalties.
  • Clean Water Act 1987
    • Section 402(p) of the Act placed the focus of urban and industrial stormwater compliance and enforceability on a permit system for point source discharges.
    • Illegal to discharge pollutants from point sources (e.g., industrial plant pipes, sewage treatment plants, or storm sewers) into the nation’s waters without an NPDES permit.
  • Clean Water Act 1987
    • MS4 is not defined, only population groups
      • Inter-jurisdictionally complex
      • Advantage of system-wide programs for permittee
      • Geographic basis for targeted management
      • Need for reasonable number of permits
      • Congressional intent for jurisdiction-wide program
    • 1988 EPA proposed rule favored municipal systems due to “administrative complexity”
  • Clean Water Act 1987
    • MS4 arguments in comments based upon:
      • Geographic differences
      • Climatic differences and variation
      • Institutional differences between systems
    • In the end, “MS4” is a blend of variables that allow EPA and States to define a system that best suits the various political and geographical conditions.
      • Relied on population, census, urbanized areas and pollution sources within those boundaries
    2010 EPA Proposed Rule Making
  • Presentation Outline
    • The Story of Laws and Litigation
    • The Rules and the Logic Behind Them
    • Permits, Standards, and the MS4s Future
  • Phase I NPDES Regulations
    • Published November 16, 1990
    • Prohibit the discharge of any pollutant “ to ” navigable waters from a point source unless the discharge is authorized by an NPDES permit.
    • NPDES permits required to:
      • Establish controls to Maximum Extent Practicable (MEP)
      • Prohibit non-stormwater discharges
      • Contain applicable water quality-based controls
  • Important Definitions NPDES Permits
    • Issue for the “discharge of any pollutant , or combination of pollutants” … upon condition that such discharge will meet either:
      • All applicable requirements for effluent and water quality based limits, or
      • such conditions as the Administrator determines are necessary to carry out the provisions of this chapter.
  • Outfall Line, Point Source Discharge Receiving Stream Classic Point Source Wastewater Discharge Using Traditional NPDES Approach
  • Receiving Stream Facility Boundary Traditional NPDES Discharges Non-Point - Point Source Stormwater Discharge Outfall Line, Point Source Discharge
  • Receiving Stream Facility Boundary Non-Point - Point Source Stormwater Discharge Stormwater Outfalls Traditional NPDES Discharges Outfall Line, Point Source Discharge
  • Traditional NPDES Discharges
  • Traditional NPDES Discharges ≈ 50 acres of disturbance
  • Traditional NPDES Discharges ≈ 50 acres of disturbance Stormwater Outfalls
  • Traditional NPDES Discharges
  • Phase I Final Rule Comments
    • Storm Water Quality Management Plans
      • EPA disagreed with the following comments:
        • “ there is no hard criteria upon which to judge the adequacy of programs.”
        • “ there should be a BAT standard for municipal permits.”
        • “ require specific BMPs that permittee must comply with.”
      • CWA only sets types of controls contemplated due to fundamentally different characteristics of municipalities
      • Regulations may include performance standards, guidelines, guidance and management practices
  • Phase I Final Rule Comments
    • Measures to reduce pollutants in runoff:
      • Pollutants are important, but so is concept of volume leaving urban areas during storm events.
        • “ Large intermittent volumes of runoff can destroy aquatic habitat .”
        • Percentage of paved surfaces seen as indicator meaning “ pollutant loadings associated with stormwater runoff increases as development progresses” and won’t decrease in the future.
    55 FR No. 222 Page 480554 VELOCITY?
  • Phase II NPDES Regulations
    • Published December 8, 1999
    • Outlined the Six Minimum Control Measures
    • EPA estimated 5,040 Phase II MS4s
    • Allowed for case-by-case decision making
      • “ significant contributors to water pollution”
      • Unclear how to define “significant” without rigorous monitoring
    • Permits required by March 10, 2003
  • Phase II Additional Permittees
    • May require NPDES Permit when:
      • storm water controls are needed for the discharge based on wasteload allocations that are part of “total maximum daily loads” ( TMDL ) that address the pollutant(s) of concern
  • 2001 GAO Report to Congress
    • Measurable goals for the program recommended
    • Guidelines for consistent and reliable data , including data on the effects of the program and the costs to these governments
    • Determine whether program goals are being met and to identify the costs of the program
    • Assess whether the agency has allocated sufficient resources to oversee and monitor the program.
    2001 GAO Report to Congress Pg 37
  • Presentation Outline
    • The Story of Laws and Litigation
    • The Rules and the Logic Behind Them
    • Permits, Standards, and the MS4s Future
  • NPDES Permit Structure
  • Effluent Limitation Guidelines
    • Point source-specific water pollution control
    • Established by assessment of:
      • Performance of best pollution control technologies or pollution prevention practices that are available
      • Economic achievability of that technology , while considering costs, benefits, and affordability of achieving the reduction in pollutant discharge
    http://www.epa.gov/waterscience/guide/industry.html
  • Effluent Limitation Guidelines
    • For direct discharges, ELGs apply to:
      • Existing facilities:
        • best practicable technology (BPT),
        • best available technology (BAT), or
        • best conventional pollutant control technology (BCT);
      • Newly constructed facilities (new sources) are governed by new source performance standards (NSPS).
  • Effluent Limitation Guidelines
    • Best Practicable Control Technology Currently Available (BPT)
    • Average of best performance of facilities within industry of various ages, sizes, processes or common characteristics
    • * Narrative arm of new Construction ELGs
  • Effluent Limitation Guidelines
    • Best Available Technology Economically Achievable (BAT)
    • May be based on effluent reductions attainable through changes in a facility’s processes and operations .
    • * Numeric arm of new Construction ELGs
      • 280 NTU limit
  • Effluent Limitations Guidelines
    • New Source Performance Standards (NSPS)
      • Reductions achievable based on best available demonstrated control technology ( no acronym )
      • Most stringent controls attainable
      • *NSPS for Construction established equal to existing sources (BPT and BAT)
  • Effluent Limitation Guidelines
    • Best Management Practices (BMP)
    • Authorize BMPs in NPDES Permits 40 CFR 122.44(k)
    • Control or abate discharge of pollutants when:
      • Numeric effluent limits are infeasible
      • Practices reasonably necessary to achieve effluent limitations and standards or achieve intent of CWA
      • Enforcement of Maximum Extent Practicable (MEP) standard at 402 (p)(3)(B)(iii)
    • Over time, will lead to BPT, BCT, BAT, NSPS
  • Effluent Limitation Guidelines
    • Storm Water Management for Construction Activities: Developing Pollution Prevention Plans and Best Management Practices and Summary Guidance
    • Storm Water Management for Industrial Activities, Developing Pollution Prevention Plans and Best Management Practices and Summary Guidance
    • Guidance Manual for Developing Best Management Practices (BMPs)
  • ELG – Legal Precedent
    • Natural Resources Defense Council et al v. Browner (D.D.C. 89-2980, January 31, 1992 , as amended) – Consent Decree
    • Required EPA to propose effluent guideline regulations and take final action for 20 point source categories.
    • Required EPA to conduct 11 preliminary studies to assist in selecting categories for regulation development.
  • Stormwater ELGs
    • Urban Stormwater BMP Study 1999
    • Construction and Development 2002
      • Proposed and removed in 2004
    • Construction and Development 2008
      • Proposed and issued 2009
    • On hold as of September 2010
      • Pending review
  • Maximum Extent Practicable
    • What is MEP?
      • Section 402(p) introduces term under NPDES
      • Controls that include:
        • management practices,
        • control techniques and system, design and engineering methods, and
        • such other provisions as the Administrator or the State determines appropriate for the control of such pollutants
    • Serious attempt to achieve water quality
    • Has led to a need to justify chosen practices
  • Phase I MEP Standard
    • MEP is contrasted to technology standards of BAT/BCT in Federal Register notice comments and 1994 Clean Water Initiative as more “site-specific and flexible”
    • Guidance: “flexibility in developing permit conditions is encouraged by allowing municipalities to emphasize the controls that best apply to their MS4”
      • Severity of the impairment
      • Effectiveness of alternative approaches
      • Cost of control measures
  • Phase I MEP Standard
    • MEP generally emphasizes pollution prevention and source control BMPs primarily (as the first line of defense)
    • MEP considers economics and is generally, but not necessarily, less stringent than BAT
    • MEP is dynamic; defined by the following process over time:
      • Propose MEP by way of urban runoff management programs
      • Total collective and individual activities conducted becomes their proposal for MEP for overall effort and specific activities
      • In the absence of a proposal acceptable to the Regional Board, the Regional Board defines MEP
    1993 Elizabeth Jennings Memo SWRCB
  • Phase I MEP Standard
    • Effectiveness : Will the BMPs address a pollutant (or pollutant source) of concern?
    • Regulatory Compliance : Is the BMP in compliance with storm water regulations as well as other environmental regulations?
    • Public Acceptance : Does the BMP have public support?
    • Cost : Will the cost of implementing the BMP have a reasonable relationship to the pollution control benefits to be achieved?
    • Technical Feasibility : Is the BMP technically feasible considering soils, geography, water resources, etc?
    1993 Elizabeth Jennings Memo SWRCB
  • Phase II MEP Standard
    • NPDES permitting authority may ask the permittee to revise their mix of BMPs, for example, to better reflect the MEP pollution reduction requirement.
    • Iterative process over 2-3 permit terms to achieve water quality standards
    FR Vol 65 No. 235 Part II(H)(3)(a)(iii)
  • NPDES Permit Structure
  • WQBEL Decision Making Process
    • State defines water quality standards by segmenting water bodies and classifying the beneficial uses of the water bodies.
    • These water quality goals associated with criteria necessary to achieve/protect them.
    • Beneficial uses can be State or local driven
      • Aquatic life, wildlife propagation, primary or secondary recreation, public/agricultural/industrial water supply, navigation are traditional.
    40 CFR 131.2 WQ Standards
  • WQBEL Decision Making Process
    • Numeric Criteria have specific concentrations or measures of toxic effect or waterbody health
    • Narrative Criteria are statements of desired state of a waterbody (i.e. “free from”)
    • Issued for:
      • Aquatic Life
      • Human Health
      • Others (Wildlife, Sediment, other local)
      • Biological Health
    40 CFR 131.2 WQ Standards
  • WQBELs for Stormwater
    • Water Quality Based Effluent Limits can be imposed in an NPDES permit if:
      • A water quality model indicates the anticipated discharge could not achieve water quality standards for the receiving stream, or
      • An impairment has been identified with a TMDL that has been issued for the receiving water
  • WQBELs for Stormwater
    • EPA adopted an interim-permitting approach
      • Know urban stormwater runoff is impairing uses
      • Narrative BMPs are acceptable; maybe sufficient
      • Typically lack information to base numeric water quality-based effluent limits
      • Where data exists, numeric limits are possible
      • Pollutants may not be only thing impacting use
      • Adequate effluent characterization difficult
      • Receiving water exposure assessment difficult
    1996 WQBEL for Stormwater Memo
  • WQBELs for Stormwater
    • EPA adopted an interim-permitting approach
      • Pointed to CSO policy as potential model
      • Presumptive Approach: If the EPA policy (Long Term Control Plan) is met, the effort invested is presumed to be compliant with Water Quality Standards
      • Demonstrative Approach: Permit holder demonstrates controls meet Water Quality Standards
    1996 WQBEL for Stormwater Memo
  • WQBELs for Stormwater
    • EPA adopted an interim-permitting approach
      • Called for improving approaches for monitoring storm water and the potential effects upon water quality
      • Environmental indicators are designed to be more meaningful monitoring tools that storm water dischargers can use to conduct storm water monitoring
      • Center for Watershed Protection – Impervious Cover Model (ICM) was born out of this call
    1996 WQBEL for Stormwater Memo VELOCITY?
  • Future of the MS4 Permits
    • Higher focus on measurable results and use of software to generate outputs
    • Segregation of performance measures from effectiveness measures
    • Transition to a combination of environmental indicators as surrogates for water quality.
  • National Research Council Report
    • “ A straightforward way to regulate stormwater contributions to waterbody impairment would be to use flow or a surrogate , like impervious cover, as a measure of stormwater loading ….”
    • “ Efforts to reduce stormwater flow will automatically achieve reductions in pollutant loading . Moreover, flow is itself responsible for additional erosion and sedimentation that adversely impacts surface water quality.”
    2008 NRC Urban Stormwater Report
  • Environmental Indicators
    • Water Quality Indicators
      • Water quality pollutant constituent monitoring
      • Toxicity testing
      • Non-point source loadings
      • Exceedance frequencies of water quality standards
      • Sediment contamination
      • Human health criteria
  • Environmental Indicators
    • Physical and Hydrological Indicators
      • Stream widening/downcutting
      • Physical habitat monitoring
      • Impacted dry weather flows
      • Increased flooding frequency
      • Stream temperature monitoring
  • Environmental Indicators
    • Biological Indicators
      • Fish assemblage
      • Macro-invertebrate assemblage
      • Single species indicator
      • Composite indicators
  • Bio-assessment and Bio-criteria
    • Explains stream quality in terms of fish and aquatic insects supported by the stream.
    • Describes how habitat, water quality, and upland watershed conditions all impact the biological life.
    EPA Biocriteria Website
  • Bio-assessment and Bio-criteria Ohio EPA Biocriteria Pg 30-31
  • Environmental Indicators
    • Social Indicators
      • Public attitude surveys
      • Industrial/commercial pollution prevention
      • Public involvement and monitoring
      • User perception
  • Environmental Indicators
    • Programmatic Indicators
      • Number of illicit connections identified/corrected
      • Number of BMPs installed, inspected and maintained
      • Permitting and compliance
      • Growth and development
  • Environmental Indicators
    • Site Indicators
      • BMP performance monitoring
      • Industrial site compliance monitoring
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  • EPA Water Quality Scorecard 2009 EPA Water Quality Scorecard
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  • Parting “Principle of Psychology”
    • Unless someone like you cares a whole
    • awful lot, nothing is going to get better.
    • It's not.
    • Dr. Seuss ~ The Lorax