Idaho Stormwater“MAXIMUM EXTENT PRACTICABLE” ANALYSIS

Idaho Specific Observations:

Tom Dupuis, HDR

Thomas.dupuis@hdrinc.com

(208) 890-0464

Presented by:

Johanna M. Bell, AIC

jbell@idahocities.org

(208) 344-8594, ext. 242

IMPORTANT NOTE: Presentation ‘concept’ and content from November 2018 presentation by Chris Pomeroy (chris@AquaLaw.com; www.AQUALAW.COM) during the NACWA National Clean Water Law & Enforcement Seminar.

ScopeUrban Wet Weather Flows

Regulatory Foundation

MS4 Permits: Water Quality Standards & Total Maximum Daily Loads

Maximum Extent Practicable Analysis (MEPA)

Industrial Stormwater (including Construction)

Municipal Separate Storm Sewer Systems (MS4s)

(Not Combined Sewers)

(Not Nonpoint Source Runoff)

Water Pollution Control

1972 Clean Water Act: 33 USC § 1251

...to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." § 101(a)

✓ mandates technological controls to limit “point source” pollution

✓ applies “threat and promise” of federal grants (i.e., § 319) to States to limit “nonpoint source” pollution

Stormwater NPDES Permitting• EPA originally did not seek the regulation of stormwater under NPDES Program (1973)

• NRDC vs. Costle D.C. Circuit: EPA ordered to regulate stormwater anyway (1977)

• CWA § 402(p) Added (1987): • Basis for Phase I Rule Covering Industry, Plus Large and Medium MS4s

• Basis for Phase 2 Rule for Small MS4s and Small Construction

• Industrial Stormwater requirements linked to attainment of water quality standards.

• Municipal Stormwater requirements linked to Maximum Extent Practicable (MEP).

Key Stormwater §402(p) Rulemakings• 1990 Phase I Rule (55 Fed. Reg. 47990)

– Large & Medium Muni. Separate Storm Sewer Systems (MS4s)

– Industrial Stormwater including Large Construction (> 5 acres)

• 1999 Phase II Rule (64 Fed. Reg. 68722)

– Small MS4s

– Small Construction Sites (1 to 5 acres of disturbance)

• Failed Post-Construction Stormwater Rule

– December 2009 Notice (74 Fed. Reg. 68617)

– September 2010 Information Collection Request

– March 2014 Statement Deferring Rulemaking

Stormwater Associated withIndustrial Activity• Certain Industrial Stormwater Sources Need Permit

– CWA § 402(p)(2)(B), 33 USC § 1342(p)(2)(B)

• Typically Permitted by General Permit (GP)

– EPA Construction General Permit (or State equivalent)

– EPA Multi-Sector General Permit (or State equivalent)

• Most AIC Member Cities Are Regulated (40 CFR § 122.26(b))

– Multi-Sector General Permit◦ Publically Owned Treatment Works (unless all stormwater is directed into head works...)

◦ Airports

– Construction General Permit◦ Disturbance > 1.0 acre

Connection Between Permits & TMDLs• Industrial and Municipal Facilities Can Be Subject to TMDLs

– Stormwater discharge may be identified in TMDL with individual

WLA or included in aggregate WLA

• More Recent Permits Address TMDLs

– Ex: EPA Multi-Sector General Permit, Part 1.1.4.8(c)

• Demonstrate before submitting NOI for new discharges to TMDL water that (1) TMDL WLAs are adequate for this discharge; and (2) Other dischargers are subject to compliance schedules

– Ex: Individual Idaho MS4 Permits

• Stormwater Management Plans and “Alternative Controls” linked to TMDL compliance

• Monitoring also linked to TMDLs and/or receiving State (Washington) TMDLs or criteria

The Idaho MS4 Permits Universe• Twelve Idaho City Areas

– Phase 1: Boise & Garden City

– Phase 2: Ada County, Nampa, Caldwell, Pocatello, Chubbuck, Idaho Falls, Coeur d’Alene, Post Falls, Moscow, and Lewiston.

• Over 40% of Idaho’s Population Lives within an MS4 Area

• Most Idaho MS4 Areas have TMDLs for Nutrients, Bacteria, and Temperature (not Idaho Falls)

Minimizing Risk inAdaptive/Iterative MEP-Based Programs

The MEP Standard: Plain Text“Permits for discharges from MS4s . . . shall require controls to reduce the discharge of pollutants to the maximum extent practicable, including management practices, control techniques and system, engineering and design methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants.”

What Is “MEP”?• EPA Has Not Defined MEP

– Intent is for each MS4 to review on case-by-case basis

– For Phase II MS4s: Implementation of 6 minimum controls “constitutes compliance” with MEP

standard (§122.34(a))

• Considerations In Determining Your MEP

– Condition of receiving waters

– Specific local concerns

– Other aspects of comprehensive watershed plan

– MS4 size

– Implementation schedules

– Ability to finance

– Capacity to perform O&M

– Hydrology/geology

“Adaptive / Iterative” MEP Can BeHard to Do in Practice

• Expectations are always increasing in iterative program

• New demands are always emerging

• One person’s adaptation is another’s “backsliding”

• And permits, plans and BMPs are community-specific

• Underlying MS4 regs & even most permits = inherently vague

Maximum Extent Practicable: Possible Approaches

• MS4s Need a Strategy for Managing Vagueness

– “BMPs to the MEP” is Subjective Standard

– Leaves MS4 open to allegations that program is not MEP

• Best Practice: Define MEP Up Front

– Submit complete MEP Analysis with permit re-application

– Begin discussing with regulator early in negotiation stage

• Trade-Off Some Flexibility for Certainty

– Up front MEP determination sets MS4’s obligations

– Minimizes risk of enforcement-based second guessing

Use Plans & Reports• Stormwater Management Plan (SWMP)

– Details BMPs and other measures permittee intends to use to

achieve permit requirements

– Opportunity to clarify vague or unclear permit conditions,

especially by virtue of regulator approving your SWMP

– Be sure to include adaptive management / flexibility◦ Phase I (§122.26(d)(2)(iv)); Phase II (§122.34(a))

• Annual Reports

– Your report of SWMP implementation / compliance status

– Your opportunity to adjust your SWMP

– Your documentation for future inspections or enforcement◦ 40 C.F.R. § 122.42(c); 40 C.F.R. 122.34(g)(3)

Water Quality Standards & TMDL Permit Provisions

Where Do WQS & TMDLs Fit In?• Law Is Still Developing

• Important Note

– To our knowledge no “beyond MEP” level of effort has ever been imposed based on CWA over permittee’s objection that was pursued to completion through appeal process

Leading Case:Defenders of Wildlife v. Browner (9th Cir. 1999)

• Background

– EPA issued 5 NPDES permits to MS4s in Arizona

– Permits did not impose numeric effluent limits to ensure strict compliance

with WQS

– Environmental groups filed suit in Ninth Circuit

• Court Held:

– CWA 402(p)(3)(B)(iii) “replaces the requirements of § 1311 with the

requirement that municipal storm-sewer dischargers ‘reduce the discharge of

pollutants to the maximum extent practicable.’”

– “Congress did not require municipal storm-sewer discharges to comply

strictly with [WQS].” (Case cite: 191 F. 3d 1159 (9th Cir. 1999))

More Questions & Litigation“Although Congress did not require municipal storm-sewer discharges to comply strictly with [WQS], [CWA 402](p)(3)(B)(iii) states that ‘[p]ermits for discharges from municipal storm sewers . . . shall require . . . such other provisions as the Administrator . . . determines appropriate for the control of such pollutants.’ That provision gives the EPA discretion to determine what pollution controls are appropriate.”

AND. . .

“Under that discretionary provision, the EPA has the authority to determine that ensuring strict compliance with state water-quality standards is necessary to control pollutants.”

Fundamental Question Left Open by DefendersIs EPA / States’ discretion to require compliance with

WQS subject to the MEP standard?

In other words, does the CWA authorize EPA/States to impose impracticable burdens on MS4s?

How Can You Deal With WQS & TMDLs inMS4 Permit Negotiations

• Gold Star: MEP Is Overarching Compliance Standard

– Ex: North Carolina (next slide)

• Problematic: “Strict Water Quality Standard Compliance” Requirement

– Many Idaho MS4 permits include this type of language

– Comments seeking removal upon reissuance should be submitted

• The Current Trend: Phased Progress

– A hybrid approaches that start MS4s down TMDL implementation path under adaptive / iterative program

– Key issue here is whether the level of effort required is practicable or not and, if not, what can be done about it …

MS4 Permits: Good Example

*Large MS4 Permit Issued by North Carolina in October 2018

MS4 Permits: Bad Example

*Small MS4 Permit Issued by EPA for NH (July 2017)

Maximum Extent Practicable Analysis

MEP Analysis to Ensure Draft Permit Is/Will Be Practicable• Regulatory Tool for Managing Scope of Permit or TMDL Implementation Requirements

– Announce your MEP and negotiate it with regulators in lieu of a “bigger” permit or plan you cannot reasonably meet

• Create a Framework for Decision

– Must speak up during negotiations if can’t comply with draft

– MEPA gives basis for reasoned discussion with regulator informed by facts

– MEPA show your citizens you tried even if request denied

– MEPA provides basis for appeal if needed

Approaches to MEP Analysis• Analyze Practicability of Draft Permit

– Provision-by-provision

• Example Practicability Issue: Timing Challenges

– Ex: Management program ramp-up demanded too fast

– Ex: Retrofit throughput demand beyond reasonable from staffing, procurement or execution standpoint

• Example Practicability Issue: Unreasonable Cost

– Excessive increase in tax or rate revenue needed

– Continued…

MEP Analysis Cost Example• Estimate Cost of Draft Permit

– Many unknowns, but make reasonable assumptions and do it

– Need to charge regulator with info on cost & rate impacts

• Determine MEP Level of Public Investment

– For developing MS4 Program, plan reasonable increases

• Propose Best Use of Available Funds

– Tailor / scale back appropriately

– Optimize water quality benefits / eliminate wasteful items (e.g., excessive monitoring)

Note: These Same Concepts Can Be Used in TMDL Implementation Plans

“Adequate Progress” Concept• Ultimate Goals

– MS4 permit recognizes WQS and TMDLs but only as long-term (i.e., multi-permit) goals

• Interim Goal

– In each 5-year permit, make reasonable further progress

• Compliance Standard

– MEP standard sets MS4’s level of effort for each permit term

Note: Comments on 2018 Draft Pocatello MS4 Permit took a similar approach.

MS4 TMDL Implementation Plans• Preserve MEP as the Compliance Standard

• MEP-Like Terminology (Ex: Estimates, Not Hard #s)

• Add Option for Water Quality Trading and Integrated Planning

• MS4 Service Area Jurisdiction Linked to Estimated Waste Load Allocations

• Seek affirmative statements within the TMDL and Implementation Plan(s) that achievement of stormwater Waste Load Allocations (WLAs) will take multiple permit cycles, and may be revised further with additional data in the future.

“Map-to-Minimize” TMDL Liability

Key TMDL Liability Issue: Service Area• Area Is Key Determinant of Compliance Cost

– Particularly for defining TMDL liability under MS4 permits

– Most TMDLs addressing stormwater-based pollutant loads tie pollutant reduction obligations to land area

• Definition of “Point Source” Defines the Applicable Jurisdiction

– As NPDES permit, jurisdiction is limited to “point source” discharges that permittee owns/operates

– Include the MS4 actually owned / operated by the permittee and its contributing drainage area within the local jurisdiction

– Exclude area for which you are not responsible, which also tend to be things you do not control and cannot fix anyway (“compliance trap” if you do not successfully exclude)

Potential Service Area Exclusions• Separately Regulated Systems & Sites

– Other MS4s, incl. DOTs and non-traditional MS4s (e.g., universities, military bases)

– Industrial stormwater permitted facilities

• Large Unpermitted Federal or State Land

• Sewer Sheds for Combined Sewer Systems

• Areas Outside Phase 2 MS4 “Urbanized Area”

– “If your small MS4 is not located entirely within an urbanized area, only the portion that is within the urbanized area is regulated” (40 CFR § 122.32(a)(1))

Carroll County, Maryland Circuit Court (2017)– “As MS4 permits are a subset of NPDES permits, determining the scope of the latter will aid in determining the scope of the former.”

– “[T]he plain language makes clear that a jurisdiction-wide MS4 permit is limited in its scope to the regulation of discharges from MS4s owned or operated by the permittee municipality that are within the geographic area over which the permittee-municipality may exercise its jurisdiction. Because discharges from a MS4 can only originate from stormwater in areas served by that MS4, MS4 permits can only be applied to those areas served by the MS4(s) for which the permit is issued.”

Idaho Specific Observations by Tom Dupuis, HDR◦ “Cause and Contribute” examples: Fola Coal Case Permit as Shield Considerations

◦ Special Conditions for Discharges to Impaired Waters

◦ Monitoring Concerns (PCBs in North Idaho)

◦ General Conditions Not Applicable to Stormwater

“Cause and Contribute” examples:

◦ 12/2012 Boise Area Phase 1 MS4 (Section I.D.2.): “Discharges Threatening Water Quality. Permittees are not authorized to discharge storm water that will cause, or have the reasonable potential to cause or contribute to, and excursion above Idaho water quality standards.”

◦ 2018 Draft Pocatello Phase 2 MS4 (Section 5.): Required Responses to Excursions Above Water Quality Standards:

1. Notification, with EPA/DEQ decision on need for Adaptive Management Report

2. Adaptive Management Report, and EPA/DEQ approval of report

3. Implementation

4. Reporting

5. Permit Revision

Special Conditions for Discharges to Impaired Waters

◦ 2012 Boise Area MS4 Phase 1 (Section II.C.):

1. Associated Monitoring in Part IV.

2. SWMP to include description of how minimum measures ensure that discharges do not “cause and contribute”

◦ 2018 Draft Pocatello Phase 2 (Section 4):

1. Associated monitoring and assessment

2. No “cause and contribute” language

Monitoring Concerns (PCBs)◦ 2018-2019 MS4 Phase 2 Drafts with discharges to rivers in Washington (Spokane River, S.F.

Palouse River)

◦ Washington rivers deemed impaired for polychlorinated biphenyls (PCB), no impairment listings in Idaho

◦ Draft MS4 permits specify Method 1668 (not EPA approved in 40 CFR 136)

1. 1668: high resolution GC/MS analysis, individual 209 congeners at low (ppq) detection levels

2. Incidental contamination in sampling and lab are unavoidable and substantial

3. Spokane River Toxics Task Force QAPP required

4. Lab costs are very high

General Conditions Not Applicable to MS4s (2018 Draft Phase 2 Permits)Wastewater conditions not applicable to MS4s:

◦ Section 7.6 Toxic Pollutants (should delete)

◦ Section 7.7 Planned Changes (should delete)

◦ Section 7.9 24-Hour Notice of Noncompliance Reporting (delete two sub-items)

◦ Section 7.10 Bypass of Treatment Facilities (should delete)

◦ Section 7.11 Upset Conditions (should delete)

THANK YOU!