Recently promulgated stormwater-quality regulations, impacting an estimated 4,000-6,000 communities throughout the United States, are a challenge to regulators and regulated communities alike.

By Elizabeth Treadway, Andrew J. Reese, and Douglas C. Noel

The Environmental Protection Agency (EPA) has published the long-anticipated second phase of stormwater regulations under the National Pollutant Discharge Elimination System (NPDES) program, which impacts communities, contractors, developers, military installations, and other owners and operators of stormwater systems in urbanized areas throughout the nation. (Editor’s note: See the "Storm Warning" article in this issue for the details of Phase II, who it covers, and the six minimum measures to meet permit requirements.) It had been nine years since the Phase I rules were published, and several actions in the mid-1990s set the stage for the finalization of the Phase II program. EPA established an advisory committee to assist in the drafting of these rules, having established an interim deadline of August 2001 for compliance. A couple of years of negotiation and collaboration followed, with a court order to issue the rules by March 1999, and the publication of the draft rules occurred in January 1998. As expected, the March 1999 date came and went, with the need to address all comments received during the public comment period, and Phase II was signed in October and published in December of last year. (The final rules of Phase II can be found at EPA’s Web site: www.epa.gov/owm/sw/phase2.)

Program Impacts

Many small municipal stormwater management programs have no current components geared to the management of stormwater runoff quality. Some have pieces of a program, such as recycling or public education, that were developed to satisfy other initiatives. Early in the process of implementing a stormwater-quality management program, a great deal of effort will be expended in developing the administrative, legal, and technical framework.
      A best management practices (BMP) program that meets the requirements of Phase II’s six minimum controls is intended to show measurable impacts on the quality of receiving waters soon after it is implemented. Data collection and BMP performance evaluations will be input into a comprehensive planning process that will result in adjustments to the permitted community’s stormwater management plan and will set the priorities for the ongoing program. Through this process the permittee will eliminate ineffective program elements and implement those that are effective jurisdictionwide.
      In some instances specific elements of the required stormwater management program will have a negligible impact on the permittees. For instance, many states have had land use and technical controls in place in water-supply watersheds or in the coastal zone for a number of years. Municipalities in these areas are likely to have strong postconstruction control programs in place already. In other states there are mandatory sediment and erosion control programs that are at least as stringent as the Phase II requirements. These sediment and erosion control programs can satisfy the Phase II requirements with the approval of the permit writer.

Flexibility and Regulatory Planning

Flexibility was identified as an important factor to be included in this phase of the NPDES program so that designations for regulatory control could be addressed without EPA having to name every site for regulation. It creates an uncertainty, however, while states with delegated authority - along with EPA - work through the requirements to establish designation criteria, create regulatory structure, and in some cases obtain legislative authorizations. The regulations provide permitting authorities up to three years to meet their obligations to designated permittees, establish rule structure, identify BMPs, and issue general permits. Under the schedule for regulatory compliance, even if a permitting authority takes three years to complete its work, the regulated community has 90 days to submit an application for a permit or a Notice of Intent (NOI) to comply with a general permit. Those most familiar with the planning and budgeting processes of local, state, and federal governments know that 90 days is not much time to react.
      This first year of implementation is an education, planning, and development year. EPA is mandated to issue a BMP menu by October 2000 and is developing guidance for the permit writer as well as for the regulated community. A periodic review of EPA’s Web site is recommended, as it expands its resources to educate the impacted entities and guide the development of the program. There are other resources being developed to assist as well. States with delegated authority are working through their plans to incorporate these new rules into existing regulatory structure. There are states that incorporated into their own rule structure the federal rules, by a broad reference to 40 CFR Parts 122 and 123, when the Phase I program was created. This action minimizes the need to create new rules each time an amendment occurs, unless it is necessary to address some specific condition or action. Many states, however, must obtain changes in legislative authority to establish the Phase II program.
      Within the rules is an opportunity to address the Phase II initiative within a comprehensive water-quality strategy. The rules allow for acknowledgement of compliance with existing programs, such as erosion control activities, so that duplicate or significantly overlapping programs will not be required. They give permitting agencies the flexibility to develop permits on a watershed basis, providing additional time for full compliance with the program. The challenge for the permitting agencies is to craft a permit that addresses the pollutant contributions from stormwater while recognizing other water-quality initiatives within the individual state. When this approach is considered, the three-year window for establishing Phase II regulatory structure is limiting.

North Carolina's Approach to Integrated Water-Quality Management

In March, the Environmental Management Commission and the Department of Environment and Natural Resources initiated a planning effort to integrate stormwater programs into a comprehensive vision focused on improving and protecting the water resources within the state of North Carolina. Recognizing that this is a significant task, the Division of Stormwater Quality developed a strategy that provides facilitated stakeholder input based on Enlibra, a shared doctrine for environmental management established by the National Governors’ Association (NGA). This doctrine defines a series of interdependent principles that guide natural resource and environmental policy. North Carolina’s Governor James Hunt supports the initiative underway to create an integrated stormwater program using this approach.
      According to the policy statement of the NGA, Enlibra is based on eight principles that are critical to the success of any new program:

1. National Standards, Neighborhood Solutions. Assign responsibility at the right level.
2. Collaboration, Not Polarization. Use collaborative processes to break down barriers and find solutions.
3. Reward Results, Not Programs. Move to a performance-based system.
4. Science for Facts, Process for Priorities. Separate subjective choices from objective data gathering.
5. Markets Before Mandates. Replace command and control with economic incentives whenever appropriate.
6. Change a Heart, Change a Nation. Ensure environmental understanding.
7. Recognition of Benefits and Costs. Make sure environmental decision-makers are fully informed.
8. Solutions Transcend Political Boundaries. Use appropriate geographic boundaries for environmental problems.

currently within North Carolina, there are multiple layers of regulation for stormwater and related programs that address:

• water-supply watershed protection,
• coastal-region development controls,
• a nutrient-sensitive waters (NSW) strategy for the Neuse River,
• a NSW strategy that is in draft (due for finalization this year) for the Tar-Pamlico River Basin for nitrogen and phosphorus,
• NPDES industrial stormwater requirements,
• NPDES Phase I and Phase II stormwater requirements,
• sedimentation and erosion control regulations,
• various river-basin management strategies for all basins.

The plan is to engage the stakeholders in a six-month collaborative process with the goal of drafting a comprehensive, statewide stormwater management program that will address the integration of specific controls and program elements for conditions that vary across the state. The challenge before the stakeholders is to reach consensus on programmatic elements that will address the unique needs across the state in a logical and cost-effective manner.
      Understanding the varied nature of the environment in which the water-quality program must exist is important to the process. North Carolina has varied geographic conditions. From the western region within the Appalachian Mountains to the coastal plains with the outer banks, it is a mix of geology, weather, and population densities. Receiving waters vary from pristine, high-quality, wild rivers to heavily impacted, industrialized ports. It is a state with significant rural agricultural activities, a fishing industry, and large metropolitan centers. Tourism is an important economic base tied to the water resources of the coastal region as well as the mountainous Piedmont region. Improving and protecting water is a high priority within the state, as demonstrated by the recent voter-approved state bond program of $1 billion.
      The stakeholders will be challenged to balance the needs of potentially conflicting interests to ensure that the overall vision for protection of important resource waters is met. If you are interested in learning more about the North Carolina experience, contact Susan Massengale, DENR, Division of Water Quality at 919/733-5083 or susan.massengale@ncmail.net.

Training on Phase II Requirements

This is a year for training, and many opportunities are being provided. For those who are interested in training activities, check out EPA’s Web site as well as the sites for organizations that represent impacted entities such as the National League of Cities (www.ncl.org), the National Association of Counties (www.naco.org), the American Public Works Association (www.apwa.org), and the National Association of Flood and Stormwater Management Agencies (www.nafsma.org). Local chapters are usually involved in providing training opportunities. Contact your permitting agency for additional information on its planning efforts and schedule for implementation.

Planning Ahead

There are steps that a local government should take now to prepare itself for the regulations and to position itself to meet compliance in the most cost-effective manner. These steps can be performed by the municipality’s designated program manager as part of a Phase II action plan:

1. Assess Your Status. Ask yourself if your municipality is "in," "potentially in," or "out."
2. Get to Know the Permit Writers. Find out what the expectations of the permit writers are for your compliance program. Find out their ideas about what is important in the permit, what their special interests are, if they strongly support the permit, and so on. Plan to establish an ongoing dialogue.
3. Assess Your Surface Waters. Find out if there are any ongoing actions that might designate surface waters in your jurisdiction as not meeting water-quality standards. See if there are any planned watershed assessments or total maximum daily load requirements coming in the future.
4. Assess Your Own Program. How much of your stormwater program looks like the regulations, even with some minor modifications? What can you take credit for that you are already doing, with or without modification?
5. Check Out Your Neighbors. Are there some other programs nearby that might result in savings to you? Can you simply be covered under another program? Can parts of the requirements be waived because they are already being done by someone else? Can you plan to be part of a regional permit? Can you split the permit requirements with an adjacent entity and perform them together at savings to both of you?
6. Get a Team Together. Once you have answered some of these questions, it is time to pull the action team together. This may include your own staff, a multidisciplinary staff within your own jurisdiction, or a multijurisdictional or regional team. Get together to brainstorm and come up with a proposal to the permit writer for mutual benefit. Remember, permit writers are being encouraged by EPA to think regionally and on a watershed basis.
7. Develop an Action Plan. Once you have a team, it is time to have a plan. Formulate what you will need to do to apply for the permit and carry it out. What might a stormwater program that meets the requirements for the six minimum controls look like in your community? Can you begin the program transformation process now? Are there some things you can do over several years that you cannot afford to do in any one year or that will take too long to get going if you wait until the permit is upon you? What about data collection and mapping? Are there other uses for any data you will collect that will create synergy?
8. Get Started. Some things are best started early. But do not jump the gun by committing resources in areas that are not yet firm. Ask the permit writer for his or her opinion. If you determine that you will need help in applying for the permit or defining a stormwater management program that satisfies the six minimum controls, line it up soon. With 4,000 communities preparing NOIs or applications in two years it may be difficult to find qualified outside help at the last minute.

Elizabeth Treadway is senior consultant; Andrew J. Reese, P.E., is vice president; and Douglas C. Noel, P.E., is national technical director at Ogden Environmental and Engineering Services Inc. in Greensboro, NC.