“Future Stormwater Permitting Will Change The Focus Of Stormwater Management Programs…WILL YOU BE READY ?”

Presented by: Barton G. Jones, P.E.Strand Associates, Inc.

4433 Professional ParkwayColumbus, Ohio 43125

Email: bart.jones@strand.comPhone: 614.835.0460

Central Ohio Stormwater ExpoColumbus, OhioFebruary 28, 2012

Overview of Presentation

• Significant CWA Milestones Affecting Today’s Discussion• Water Quality Stressors And Pollutant Sources • Future Tensions Affecting Stormwater Management• USEPA Acknowledges MS4/TMDL/NPDES Shortfalls• USEPA’s Reaction Regarding Future Stormwater Control • Resultant Impacts To, And Potential Next Steps For, MS4s• Appeals Court Ruling Respecting Stormwater Management

Significant CWA Milestones(A Brief History Of Time)

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4/19

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Water Quality Stressors Have Shifted Over Time*

* USEPA Office of Science & Technology, Sept. 2010

Stressors Then(Circa 1972~2005)

Stressors Now(Circa 2005~2012)

(1) Conventional and Industrial Pollutants

(1) Nutrients

(2) Pathogens (2) Excess Sedimentation

(3) Degradation Of Riparian Zone(4) Pathogens

Pollutant Sources Have Also Shifted*

* USEPA Office of Science & Technology, Sept. 2010

Sources Then(Circa 1972~2005)

Sources Now(Circa 2005~2012)

(1) Wastewater Point Sources (Municipal and Industrial)

(1) Agriculture (Row Crops and Livestock)

(2) Unsewered Areas (2) Stormwater (MS4 and NPS)(3) Wet Weather Municipal WWTP Effluent, SSOs, CSOs

Why Has Nutrient Impairment Gained Importance ?

• Drinking Water NO3-N Violations Have Doubled Since 2005

• Gulf Of Mexico Hypoxia Zone

• Chesapeake Bay Impairment

NO3-N Drinking Water Concern

Relative Nutrient Source Contributions*

* USEPA Office of Science & Technology, Sept. 2010

Gulf Of Mexico

Crops43%

Livestock37%

Wwtp+Storm 12%

Natural8%

PHOSPHORUS

Crops61%

Livestock5%

Wwtp+Storm9%

Atmosphere21%

Natural4%

NITROGEN

Relative Nutrient Source Contributions*

* USEPA Office of Science & Technology, Sept. 2010

Chesapeake Bay

Crops19%

Livestock26%

Municipal Wastewater21%

Stormwater31%

Natural3%

PHOSPHORUS

Crops17%

Livestock26%

Municipal Wastewater25%

Stormwater11%

Atmosphere21%

NITROGEN

Most Water Quality Pollutants Are Now Delivered By Wet Weather

Rural/Exurban - NPS Urban/Suburban – MS4

Additional Tensions Affecting Future Stormwater Management Programs*• 80% Of U.S. Population Reside on 10% of Land• Population To Increase ~ 135 Million Over Next 40 years• 50% Of Urban Areas Will Be Redeveloped by 2030• 30% Of Future Housing Stock Not Yet Built

* USEPA Office of Science & Technology, Sept. 2010

USEPA Admits Improvement Needed And Will Increase Control Via CWA Authority

Regulated Community Should Expect To See Additional Controls In All NPDES Permits During Subsequent Renewals

Elements Historically Under Utilized

Because, A Lack Of

MS4 Permits Urban Stormwater Controls For Flow, Nutrients And Pathogen Reduction

TMDL Program Limits On All Discharges To Impaired Waters

Technology-Based Numeric Nutrient Criteria in NPDES Permits

Wastewater Treatment Facility Discharge Limits For Nutrients

…So, What’s USEPA’s Reaction ?(A Briefer History Of Time)

CWA

Exis

ting

Use

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10/1

8/7

2

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12/2

2/87

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trol

Po

licy

4/19

/94

CSO

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nce

2/9

7

USE

PA U

AA

Sym

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um

6/0

2

Toda

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2/28

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2

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ns

11/8

/83

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92

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The “Memo”November 12, 2010 USEPA Memorandum Entitled “Establishing TMDL Waste Load Allocations (WLAs) For Stormwater Sources and NPDES Permit Requirements Based On Those WLAs”

• Providing Numeric WQBELs in NPDES Permits For Stormwater Discharges Into Impaired Waters

• Disaggregating Stormwater Sources In A WLA

• Using Surrogates For Pollutant Parameters When Establishing Targets For TMDL Loading Capacity

• Designating Additional Stormwater Sources To Regulate

New Regulatory Framework Publication Of Draft Stormwater Rule Has Been Postponed Multiple

Times From October 2011. New Schedule Expected In March 2012 With Draft Rule Anticipated To Be Released This Fall

Expected To Address The 4 Broad Categories Identified In USEPA’s November 12, 2010 Memo; Plus No Distinction Between Phase 1 and 2 Communities; And No Combined Sewer System Exclusion…”Devil In The Details”

By Court Order, Final Stormwater Rule To Be Published In November 2012. Now Expected To Slip With Court’s Approval.

USEPA/USCOE (With Court Approval) Attempting To Expand Definition of “TNW” Which Is The Legal Threshold For CWA Protection

What Does This Mean For Stormwater Management Programs ?

1. Paradigm Shift From The Technology-Based 6 Minimum Control Measures (MCMs) Implemented To The Maximum Extent Practical (MEP) To Water Quality-Based Performance Standards, Such As:

End of Pipe Discharge Limits Mandated Use of Green Infrastructure Flow Control (Pre-development Hydrology) Impervious Area Budgets

2. Beginning With MS4 Permit Renewals

} Pollutant Surrogates

What Does This Mean For Stormwater Management Programs ?3. Stormwater Management Costs Are Expected To Escalate Each Permit Cycle ($<$$<$$$...<$n)

4. Significant Revisions To Stormwater Management Programs And Ordinances Will Be Necessary To Meet New Regulations

5. Consider Creating A Stormwater Utility To Pay For New Stormwater Management Responsibilities

6. Consider Developing And Implementing A Wet Weather Water Quality Monitoring Plan To Document Baseline Conditions Now And Compliance With Water Quality Standards In Future

What Does This Mean For Stormwater Management Programs ?7. For Impaired Waters, Consider Development of 3rd Party TMDLs Or Peer Review TMDLs Developed By OEPA Or OEPA’s Contractor(s)

8. Consider Need To Install Green Infrastructure Now, Particularly As Pilot Projects, To Document Efficiency And O & M Costs Which Will Support Alternatives Analyses Using Business Case Evaluation Techniques

9. Consider Performing Stormwater Infrastructure Inventory And Condition Assessments Now In Order To Develop And Implement A Stormwater Asset Management Program

Appellate Court Ruling May Further Impact Stormwater Management

March 10, 2011; U.S. Court of Appeals For The 9th Circuit Ruling: Affirmed by Court on July 13, 2011

Court Agreed That MS4s Are Responsible For All Pollutants Discharged From The System, Even Those That Originate Outside the MS4

Court Agreed That MS4s Are Bound By Pollution Limits In Their MS4 Permits And TMDLs

The Stormwater Management Psychological DichotomyFrom The Regulators Perspective…

To Dream The Impossible Dream*To Fight The Unbeatable FoeTo Bear With Unbearable SorrowTo Run Where The Brave Dare Not Go “Quixotic” - adj. Striving for visionary ideals. To Right The Unrightable WrongTo Love Pure And Chaste From AfarTo Try When Your Arms Are To WearyTo Reach The Unreachable Star* Lyrics By Joe Darion

From The Regulated Communities Perspective…

There Is Nothing More Difficult To Take In Hand, More Perilous To Conduct, Or More Uncertain In Its Success, Than To Take The Lead In The Introduction Of A New Order Of Things*

* Niccolo Machiavelli

QUESTIONS ?

Presented by: Barton G. Jones, P.E.Strand Associates, Inc.

4433 Professional ParkwayColumbus, Ohio 43125

Email: bart.jones@strand.comPhone: 614.835.0460