On April 3, The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) submitted a proposed rulemaking for final interagency review to revise the definition of “waters of the U.S.” (WOTUS) in the Federal Clean Water Act (CWA). The revisions will affect the circumstances in which permits are needed to disturb and discharge fill material into streams, wetlands, or other waters. The EPA and the Corps jointly released the proposed rule in April 2014 and have since received almost one million public comments. The proposed WOTUS rule expands the types of waters that will be considered jurisdictional and subject to CWA permitting requirements through the use of various opinions from past Supreme Court decisions regarding the connections of drainageways and wetlands to downstream waters, as well as by proposing new WOTUS categories and definitions.
The proposed rule will allow the EPA and the Corps to assert CWA jurisdiction on a categorical and regional basis in cases where jurisdiction is currently questionable (e.g., ephemeral or discontinuous streams, isolated wetlands, and ditches), instead of requiring a case-by-case Significant Nexus Determination (SND) process. This SND process is a result of the 2006 Rapanos v. U.S. Supreme Court (Rapanos) case, which enables EPA and Corps staff to use the SND logic (or just the threat of a formal Jurisdictional Determination) to lay a de facto claim to any tributary streams or adjacent wetlands, including the uppermost extent of dry ephemeral channels and wetlands near, but lacking direct connections to, WOTUS. In most cases, when jurisdiction is in question for a project, applicants relent to the EPA and Corps opinions before the case is subjected to a SND, because the SND process can be time-consuming, cumbersome, and expensive. Therefore in practice, the new rule may have less impact on streams than on ditches, artificial drainageways, and isolated wetlands.
EPA claims that the rule would improve clarity and certainty regarding CWA jurisdiction, and stated in press releases that “confusion has led some people not to apply for permits where in fact they must” and that the rule would extend CWA jurisdiction to an additional 20 million acres of wetlands and more than half of our nation’s streams. However, the inclusion of drainageways and “other waters” into the rule on the basis of any hydrological or ecological connections, not just “significant” connections, would depart drastically from the Rapanos plurality decision that only channels with “relatively permanent” flow should be jurisdictional under the CWA.
The Ditch Issue and CWA Exemptions
Once a ditch or other area is under federal CWA jurisdiction, modifications or disturbance (including routine maintenance) may be subject to CWA Section 404 permitting requirements. Unless the rule is revised and clarified, even constructed drainageways, swales, and similar surface flow conveyances would be considered jurisdictional unless it can be demonstrated that they are not connected to a WOTUS, and that they do not meet the definition of wetlands. This is problematic considering that in many non-arid regions, the recently revised methodology for wetland determination makes it relatively easy to classify even very small, seasonally saturated areas with opportunistic hydrophytic vegetation as wetlands.
The rule appears to lay the burden-of-proof on the applicant to prove a feature is not jurisdictional. Ditches are exempt from regulation under the rule and past Corps regulatory guidance letters if they: 1) are excavated in uplands, drain only uplands, and have less than perennial flow; and 2) do not contribute to flow, either directly or indirectly, to a WOTUS. Since most ditches are constructed to collect and transport runoff to a discharge point at a stream or wetland, only ditches that are wholly disconnected from a watershed and remain dry during most of the year are likely to qualify for these exemptions.
The original CWA also provided conditional exemptions for other activities, detailed at the links below, which are preserved with the new rule. However, use of these exemptions can be contentious in practice and subject to case-by-case evaluation that differs based on the regulatory climate within each Corps District and EPA Region. For more information, see:
- Activities exempted under by CWA Part 232.3 definitions
- More detailed explanation of CWA Section 404(f) exemptions
For example, many Corps reviewers have been apt to reject an exemption for “maintenance of drainage ditches” if vegetation and sediment had accumulated in a constructed channel or basin, on the rationale that this infrastructure was abandoned because of lack of routine maintenance, or if the ditch is in the vicinity of protected wildlife species habitat. The Corps Regulatory Guidance Letter 07-02 discusses ditch maintenance exemption in more detail.
Stormwater and Green Infrastructure Jurisdictional Claims
Stormwater treatment systems and other constructed water treatment systems were traditionally not claimed by the Corps because these systems are designed and maintained to satisfy Section 402 of the CWA (regarding point and non-point discharges and NDPES permitting), thus considered impractical to be regulated as jurisdiction WOTUS under Section 404.
Recently, however, some Corps Districts have already begun claiming stormwater channels and basins on the basis that they are either not regularly maintained or convey flow to/from a wetland or stream, and are thus de facto jurisdictional tributaries. This is a slippery slope; if the mere connection to a stream or wetland is sufficient to claim jurisdiction, rather than considerations of function and form, then most stormwater facilities could be subject to CWA Section 404 permitting requirements.
Additionally, green infrastructure (bioretention basins, rain gardens, vegetated swales, constructed wetlands, etc.) have been widely promoted by EPA and others as an effective solution for stormwater control, water quality, and other issues. Despite appeals by many stakeholders, the EPA and the Corps have declined so far to provide an explicit exemption for green infrastructure—which may have a chilling effect on its use.
What You Can Do to Reduce Exposure to the CWA Proposed Rule
Maintain your drainage ditches…or else! Maintain artificial drainageways by removing accumulated sediment and colonizing vegetation, and controlling fugitive runoff or seepage to prevent the area from meeting the definition of wetlands.
Retain documentation (e.g. design plans, permits, and maintenance records) for water conveyance systems, especially green infrastructure. This documentation may be proof to refute jurisdictional claims in the future and prove that features were excavated in, and drain only, uplands.
Where possible, design drainage controls so that they are “off-line” from the local watershed, and avoid controls that channelize or detain surface flows (e.g., curb/gutter elimination, infiltration, bioretention), to reduce exposure to CWA jurisdictional claims.
Remember, even though you design a system or have a permit, the EPA and the Corps may reevaluate in the future and determine that conditions have changed and your infrastructure is now subject to regulation.
If you have questions on if/how the new WOTUS rule may affect your facility, contact Jonathan Farrell at 412-977-1456 or email@example.com. If you require assistance inspecting and maintaining your stormwater system, contact Rick Celender at (412) 249-2309 or firstname.lastname@example.org. The EPA has established a website dedicated to public outreach at http://www2.epa.gov/cleanwaterrule. We recommend more reading at http://www.naco.org/legislation/Pages/WOUS.aspx.
In 2010, EPA reached a settlement with the Chesapeake Bay Foundation and others to develop additional components of a comprehensive suite of strong regulatory actions that EPA has initiated or pledged to take to restore water quality in the Chesapeake Bay and its tributaries. These actions include a more robust application of stormwater quality requirements to all new development, regardless of thresholds set in the Phase 1 and 2 stormwater requirements.
An initial deadline to propose the new comprehensive stormwater rule was set for April 10, 2012. However, EPA has negotiated several extensions to the deadline (the last deadline was June 10, 2013), and EPA now anticipates a December 2013 date for the draft rule. The rule will apply to all areas – not just large and medium sized municipalities, where Phase 1 and 2 stormwater programs are currently in place.
It is EPA’s goal to incentivize redevelopment in urban built-out areas over new development in undeveloped areas, and this rule is expected to reinforce that goal. Stormwater runoff treatment standards are expected to be more restrictive for greenfield development than redevelopment of urban areas. The treatment standard for greenfield development is most likely to mirror the current Phase 2 stormwater treatment requirement to infiltrate the 80th, 85th or 90th percentile storm event, which is around one inch for many areas, depending on a region’s typical rainfall. Lesser stormwater runoff treatment requirements will be required in redeveloped urban areas to reduce urban sprawl. This new rule has been dubbed “Phase 2 lite”.
EPA has also been considering whether to expand the Stormwater Phase 2 programs to encompass areas likely to develop – not just already developed areas. In keeping with a watershed focus, EPA is also considering applying the rule on a watershed basis. The question is not if the stormwater rule will be promulgated; it is how and where it will be applied.
So, what does all of this mean to you? Our approach to development will have to change. We will be incorporating stormwater infiltration practices into our development plans for new development and redevelopment. The success of infiltration practices relies on subsurface conditions at a site, correct design, correct construction techniques, and long term maintenance. Developers will need to engage designers with expertise in soils, vegetation, hydrology and construction techniques so these practices work properly. An infiltration practice can fail quickly if correct construction techniques are not followed during construction, so it is likely that the design professional will be required to oversee construction. And then the infiltration practice owner (developer or property owner) will be required to maintain these structures perpetually. To reduce the long term burden of monitoring and maintaining structural infiltration practices, our future designs will need to address stormwater as an asset and incorporate its reuse into the overall design for irrigation needs and other non-potable uses.
Additional information on the EPA Stormwater rule is available on EPA’s website. If you have questions regarding the implications of these stormwater rules, please feel free to contact Beth Chesson of CEC’s Nashville office at (800) 763-2326.
2012 Deadlines and New Requirements Established in Ohio’s New General Permit for Industrial Storm Water Discharges
Ohio EPA recently issued its new Multi-Sector General Permit (MSGP) for Industrial Storm Water Discharges (Ohio EPA General Permit Number OHR000005). The existing general permit expired at the end of May 2011, and Ohio EPA spent several months soliciting input from industry and regulatory groups to develop a permit that is consistent with US EPA’s MSGP. There are 2012 deadlines for submittals associated with coverage under the new MSGP, along with a series of new requirements. The remainder of this blog describes the deadlines for submittals required to maintain coverage under the new MSGP, and the new permit requirements.
The new MSGP is a significant shift from the previous general permit. The new MSGP has grown from 36 pages to more than 140 pages. The previous permit included broad, non-facility specific, monitoring and recordkeeping requirements. The new MSGP establishes industry-specific requirements for managing and monitoring storm water discharges. The new MSGP contains new requirements that were contested by industry groups, including the establishment of benchmarks, quarterly visual sampling, and submittal of an annual report. The new MSGP places additional burdens on both industry and the regulators by requiring virtually every facility in the state to re-apply for a storm water permit, and to revise or update Stormwater Pollution Prevention Plans (SWPPPs).
The effective date of the new MSGP is January 1, 2012. Individual facilities were to be notified by letter, which Ohio EPA should have mailed prior to December 31, 2011. Ohio EPA indicates that if you do not receive a letter by January 13, 2012, you should immediately contact the agency.
No action is needed by current permit holders until the letter is received from Ohio EPA. Important submittal deadlines are:
- Existing permit holders are to submit a Notice of Intent (NOI) within 90 days after receiving written notice from Ohio EPA.
- SWPPPs for existing permit holders are to be updated within 180 days of the effective date of the General Permit.
- For facilities not covered under a prior NPDES permit, a SWPPP needs to be prepared before submitting a NOI. The NOI is to be submitted at least 180 days prior to discharge.
All facilities are required to design, install, and implement control measures (including Best Management Practices (BMPs)), and describe them in their SWPPP. As part of the SWPPP, facilities are required to identify a storm water pollution prevention team. Annual training will also be required, and the facility will need to maintain documentation concerning the training.
The three types of inspections required by the new MSGP include:
- Routine facility inspections that are to be conducted at least quarterly, and in some cases more frequently (i.e., monthly). Documentation of the inspections will need to be maintained on-site as part of the SWPPP.
- Quarterly Visual Assessments of storm water quality. This consists of collecting a sample during the first 30 minutes of discharge from a storm event. The sample is to be visually inspected for color, odor, floatables, foam, oil, etc. Documentation will need to be maintained on-site with the SWPPP.
- Comprehensive Site Inspections that are to be conducted annually. Documentation of the inspections will need to be maintained in the SWPPP and recorded in an Annual Report (Ohio EPA will provide the form).
Two types of monitoring are included in the new MSGP: Benchmark Monitoring and Effluent Limitations Monitoring. The types of monitoring and individual parameters are specified for each of the specific industry sectors within the new MSGP. Benchmark Monitoring is required for 13 of the Industry Sectors. The purpose for benchmark monitoring is for evaluating the overall effectiveness of control measures and to know when additional actions are necessary to comply with BMPs. Effluent Limitations Monitoring is required for five (5) industry sectors. This monitoring is an annual event that is for the most part consistent with the prior permit, but with differences in monitoring parameters.
The new MSGP includes an exemption for monitoring multiple outfalls that are “substantially identical outfalls”. If a facility has two or more outfalls that discharge substantially identical effluent and drainage areas, there is a provision to monitor only one of the outfalls and report that the results apply to the other substantially similar outfalls. This exemption does not apply to outfalls covered by numeric effluent limits.
There has also been a minor change in the definition of a “measurable storm event” from the prior permit. A measurable storm event is defined as a storm event that results in discharge from the facility and follows the preceding measurable storm event by 72 hours (3 days). There is also a provision for monitoring snowmelt.
The new MSGP contains an exemption to the monitoring requirements for inactive and unstaffed sites. This exemption applies to benchmark monitoring, quarterly visual inspections, and routine facility inspections. It will be necessary to make a demonstration, and then certify there are no industrial materials exposed to storm water. The exemption applies differently to certain industry sectors.
For more information, see the dedicated page on Ohio EPA’s website.
If you have questions on how the requirements of the new MSGP may apply to your facility(ies), or require assistance updating your facility’s SWPPP, contact Andy McCorkle at 888-598-6808 or by email at email@example.com.