Water Laws

On March 10, 2003, many municipalities and other units of government throughout Minnesota will become subject to an array of new requirements aimed at preventing pollution from stormwater runoff and storm sewer discharges. It is not too soon to begin anticipating how you can most effectively respond to these requirements.

Under the Federal Clean Water Act, the permitting program known as the National Pollutant Discharge Elimination System (NPDES) regulates the discharge of pollutants to surface waters from "point sources," discrete discharges such as those from wastewater treatment plants, industrial processes, and the like. The U.S. Environmental Protection Agency or, more frequently, state environmental agencies applying EPA rules and standards, have applied NPDES to point source discharges since 1972. Progress in controlling pollution from these sources has led over time to an increased focus on "nonpoint sources": urban and agricultural runoff, pollution from construction sites and septic system discharges.

The EPA Storm Water Program

Amendments to the Clean Water Act in 1987 directed the EPA to implement a tiered strategy to address nonpoint source pollution. The Storm Water Program developed by the EPA applies to three sources of nonpoint discharge: industrial sources, construction sites and, in the transparent language for which the EPA unfailingly strives, "municipal separate storm sewer systems," or MS4's. An MS4 is a city or other unit of government that owns or operates a storm sewer system. This includes, for example, counties, road authorities, watershed districts, universities, medical facilities, and other public campuses. Storm sewer systems include both pipes and surfaces ditches.

Who is Subject to NPDES II?
The EPA promulgated the first phase of the Storm Water Program " NPDES I " in 1990. NPDES I has applied to MS4's serving populations of 100,000 people or more. NPDES II substantially expands the universe of MS4's that must obtain nonpoint source permits to include the following:

• MS4's of any size wholly or partially within an "urbanized area" delineated by the U.S. Bureau of the Census pursuant to either 1990 or 2000 census data. A list of 1990 urbanized areas is found at Appendix 6 to the Preamble of the December 8, 1999 Phase II Final Rule. Urbanized areas delineated from 2000 Census data are to become available in April.
• MS4's outside of urbanized areas as designated by the MPCA on the basis of factors such as discharge to sensitive waters, population density, growth potential, and level of pollutant contribution to surface waters;
• Any MS4 outside of an urbanized area but discharging directly into a regulated MS4.

Program Requirements
The Minnesota Pollution Control Agency (MPCA) is the permitting agency for the Storm Water Program. Whereas the larger NPDES I MS4's have received individually negotiated permits, for NPDES II, the MPCA intends to adopt a single "general permit" setting forth requirements that each MS4 must meet. The core of the MS4 permit will be a Storm Water Pollution Prevention Program (SWPPP), a plan that commits the MS4 to an array of obligations in each of six discrete areas:

• Public education and outreach
• Public involvement
• Illicit discharge detection and elimination
• Construction site runoff control
• Post-construction runoff control
• Pollution prevention and housekeeping

While the general permit will specify certain minimum requirements for each of the six areas, each MS4 will have the flexibility to design its own program and specify the program elements of each area.

Under the approach that the MPCA presently contemplates, SWPPP's must be submitted by the March 10, 2003 Federal deadline. On submittal of an SWPPP that identifies program elements, implementation schedules and measurable goals, an MS4 will be deemed to be in compliance until the MPCA subsequently should determine its plan to be inadequate. Each MS4 must report annually to the MPCA on its progress in implementing its SWPPP. Federal rules require full SWPPP implementation by March 2008.

All MS4's are subject to the legal requirement to control nonpoint pollution to the "maximum extent practicable" the "MEP" standard. In contrast to the NPDES point source program, where numerical pollutant limits may be specified and monitored, the EPA and the MPCA will deem MEP to be met when all reasonable Best Management Practices (BMP's) are specified and measurable goals for implementing those BMP's are identified and met. Accordingly, much of the effort by the EPA and MPCA to develop permit requirements is being directed to: (a) cataloguing the various BMP's that may be employed under each of the six areas listed above and (b) specifying obligatory BMP's. The EPA program website contains the "National Menu of Best Management Practices for Storm Water Phase II," fact sheets describing minimal control measures for each of the six areas, and "Measurable Goals Guidance for Phase II Small MS4's." The MPCA website also may be useful.

Partnering
Each MS4 will find that it already has in place programs that will fulfill certain requirements under the NPDES II general permit. In addition, NPDES rules and guidance explicitly recognize a wide range of organizational flexibility that allows an MS4 to cooperate with other MS4's and other public or private organizations to meet its responsibilities. Thus, effective partnering will be an important element of efficiently meeting NPDES II permit responsibilities.

Under the partnering options of the EPA framework, an MS4 may:

• Reference a "qualifying local program." The MPCA may recognize an existing local, state or Federal requirement with which the MS4 already is complying as adequate to meet an NPDES II requirement.
• Rely on a recognized NPDES-regulated entity. The MPCA may recognize the NPDES-required program of another body that operates within MS4 boundaries, and relieve the MS4 of responsibility for that part of its general permit obligations covered by the existing program.
• Rely on another entity. An MS4 may arrange with another public or private entity to carry out certain permit responsibilities within its boundaries.
• Share a permit with other Phase I- or Phase II-permitted MS4's. Permit responsibilities would be allocated by agreement between or among participating MS4's.

While these options allow an MS4 to relieve itself of primary responsibility for certain elements of its NPDES II permit, in each case it would remain responsible to the MPCA for compliance if its partner failed to perform its obligations. In some cases, it would remain liable as well to enforcement actions, including fines and penalties. Thus, an MS4 should ensure that any agreement for sharing its NPDES II permit responsibilities includes terms to protect it in the event that another party to the agreement does not fulfill its obligations.

Several clear cases for partnering immediately suggest themselves:

• Adjacent or interconnected MS4's.
• Non-municipal MS4's (e.g., road authorities, educational and medical campuses) situated within a municipal MS4.
• An MS4 within the boundaries of which a non-MS4 (e.g., a state or county agency, watershed district, conservation district or educational non-profit) carries out a nonpoint source program.

Partnering arrangements may be established through a binding written agreement such as a joint powers agreement, a contract, or a memorandum of agreement, or by establishment of a special unit of government such as a storm sewer district. Particular thought should be given to financing arrangements. As a general matter, municipalities and other units of government have statutory authority to use a number of funding mechanisms for capital and operational expenses, including municipal general funds, grants and loans, general and revenue bonds, special municipal-wide levies, special assessments, connection and user fees, and developer fees.

"Extra Credit"?
This also may be the occasion to create innovative partnerships that include the private sector as well. Major developers and commercial property owners with large stormwater management concerns may have an interest in helping to promote BMP and citizen education efforts. There are endless opportunities to integrate active private sector participation in storm sewer improvements, updated stormwater management plans, and water resources education.

Current Program Status
Applicable deadlines do not allow the luxury of delay. The MPCA presently is developing its proposed general permit through internal and informal stakeholder discussions. It intends to publish the proposed permit for public comment and EPA review in March 2002, to hold hearings, and to adopt the permit by December 9, 2002. That will leave just 90 days for MS4's to prepare and submit SWPPP's by the March 10, 2003 deadline.

A critical event before potential MS4's may determine their NPDES II status and proceed to the nuts and bolts of their SWPPP's is the U.S. Census Bureau delineation of urbanized areas from 2000 census data. Significant remaining tasks for the MPCA include:

• Establishing general permit requirements;
• Identifying criteria to designate additional regulated MS4's, applying those criteria and specifying dates by which designated MS4's must submit SWPPP's. In particular, the MPCA must determine how NPDES II will apply to small, rapidly growing urban fringe communities.
• Determining waivers for small MS4's within urbanized areas.
• Specifying parameters for required storm sewer system mapping.
• Finalizing revision of NPDES nonpoint permit requirements for construction sites. MS4's probably will wish their requirements for construction site and post-construction runoff control to be consistent with these.

What You Might Be Doing
It is not too soon to begin work on the SWPPP. If you are a city or other government unit likely to be subject to NPDES II, the following are steps you can take:

• Determine if your system is located entirely or partially within a 1990 urbanized area, or is likely to be located within a 2000 urbanized area.
• Assess whether as an MS4 you may qualify for a waiver or, conversely, if you are not in an urbanized area, whether you may be subject to MS4 designation by the MPCA.
• Review EPA and MPCA information to become familiar with the nature of compliance responsibilities under NPDES II.
• Assess your existing organizational capacity for stormwater management and assign internal responsibility for NPDES II program development and implementation.
• Inventory existing nonpoint programs such as housekeeping, ordinances and development controls, storm sewer maintenance programs, education and public involvement;
• Consider potential private sector stakeholders that may have an interest in nonpoint programs;
• Inventory existing fiscal mechanisms and procedural requirements to create others;
• Identify and undertake communications with adjacent or interconnected MS4's for potential partnering;
• Identify nonpoint programs within your boundaries carried out by other public or private entitles;
• Review the MPCA proposed general permit carefully and participate fully in the public review process.

Conclusion
NPDES II is a substantial expansion of Federal oversight over local nonpoint source regulation. Many communities, particularly in targeted urban areas, already are quite active in this area. However, the NPDES II program will call for a greater coordination of effort, both within and among municipalities and other public bodies. The municipal challenge is to broadly review programs, capabilities and fiscal mechanisms and diligently explore water resource partnerships with others. The hoped for outcomes are better, more innovative and more cost-effective protection of our lakes, streams and wetlands, as well as stronger local collaborative relationships toward those goals.

—Chuck Holtman is actively participating in the MPCA's development of NPDES II program requirements.