2
The Challenge of Regulating Stormwater

Although stormwater has long been regarded as a major culprit in urban flooding, only in the past 30 years have policymakers appreciated the significant role stormwater plays in the impairment of urban watersheds. This recent rise to fame has led to a cacophony of federal, state, and local regulations to deal with stormwater, including the federal Clean Water Act (CWA) implemented by the U.S. Environmental Protection Agency (EPA). Perhaps because this longstanding environmental problem is being addressed so late in the development and management of urban watersheds, the laws that mandate better stormwater control are generally incomplete and were often passed for other purposes, like industrial waste control.

This chapter discusses the regulatory programs that govern stormwater, particularly the federal program, explaining how these programs manage stormwater only impartially and often inadequately. While progress has been made in the regulation of urban stormwater—from the initial emphasis on simply moving it away from structures and cities as fast as possible to its role in degrading neighboring waterbodies—a significant number of gaps remain in the existing system. Chapter 6 returns to these gaps and considers the ways that at least some of them may be addressed.

FEDERAL REGULATORY FRAMEWORK FOR STORMWATER

The Clean Water Act

The CWA is a comprehensive piece of U.S. legislation that has a goal of restoring and maintaining the chemical, physical, and biological integrity of the nation’s waters. Its long-term goal is the elimination of polluted discharges to surface waters (originally by 1985), although much of its current effort focuses on the interim goal of attaining swimmable and fishable waters. Initially enacted as the Federal Water Pollution Control Act in 1948, it was revised by amendments in 1972 that gave it a stronger regulatory, water chemistry-focused basis to deal with acute industrial and municipal effluents that existed in the 1970s. Amendments in 1987 broadened its focus to deal with more diffuse sources of impairments, including stormwater. Improved monitoring over the past two decades has documented that although discharges have not been eliminated, there has been a widespread lessening of the effects of direct municipal and industrial wastewater discharges.

A timeline of federal regulatory events over the past 125 years relevant to stormwater, which includes regulatory precursors to the 1972 CWA, is shown in Table 2-1. The table reveals that while there was a flourish of regulatory activity related to stormwater during the mid-1980s to 1990s, there has been much less regulatory activity since that time.



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2 The Challenge of Regulating Stormwater Although stormwater has long been regarded as a major culprit in urban flooding, only in the past 30 years have policymakers appreciated the significant role stormwater plays in the impairment of urban watersheds. This recent rise to fame has led to a cacophony of federal, state, and local regulations to deal with stormwater, including the federal Clean Water Act (CWA) implemented by the U.S. Environmental Protection Agency (EPA). Perhaps because this longstand- ing environmental problem is being addressed so late in the development and management of urban watersheds, the laws that mandate better stormwater con- trol are generally incomplete and were often passed for other purposes, like in- dustrial waste control. This chapter discusses the regulatory programs that govern stormwater, par- ticularly the federal program, explaining how these programs manage stormwa- ter only impartially and often inadequately. While progress has been made in the regulation of urban stormwater—from the initial emphasis on simply moving it away from structures and cities as fast as possible to its role in degrading neighboring waterbodies—a significant number of gaps remain in the existing system. Chapter 6 returns to these gaps and considers the ways that at least some of them may be addressed. FEDERAL REGULATORY FRAMEWORK FOR STORMWATER The Clean Water Act The CWA is a comprehensive piece of U.S. legislation that has a goal of re- storing and maintaining the chemical, physical, and biological integrity of the nation’s waters. Its long-term goal is the elimination of polluted discharges to surface waters (originally by 1985), although much of its current effort focuses on the interim goal of attaining swimmable and fishable waters. Initially en- acted as the Federal Water Pollution Control Act in 1948, it was revised by amendments in 1972 that gave it a stronger regulatory, water chemistry-focused basis to deal with acute industrial and municipal effluents that existed in the 1970s. Amendments in 1987 broadened its focus to deal with more diffuse sources of impairments, including stormwater. Improved monitoring over the past two decades has documented that although discharges have not been elimi- nated, there has been a widespread lessening of the effects of direct municipal and industrial wastewater discharges. A timeline of federal regulatory events over the past 125 years relevant to stormwater, which includes regulatory precursors to the 1972 CWA, is shown in Table 2-1. The table reveals that while there was a flourish of regulatory activ- ity related to stormwater during the mid-1980s to 1990s, there has been much less regulatory activity since that time. 47

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48 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES TABLE 2-1 Legal and Regulatory Milestones for the Stormwater Program Rivers and Harbors Act. A navigation-oriented statute that was used in the 1960s and 1886 1970s to challenge unpermitted pollutant discharges from industry. Federal Water Pollution Control Act. Provided matching funds for wastewater treat- 1948 ment facilities, grants for state water pollution control programs, and limited federal au- 1952 thority to act against interstate pollution. 1955 Water Quality Act. Required states to adopt water quality standards for interstate 1965 waters subject to federal approval. It also required states to adopt state implementation plans, although failure to do so would not result in a federally implemented plan. As a result, enforceable requirements against polluting industries, even in interstate waters, was limited. Federal Water Pollution Control Act. First rigorous national law prohibiting the dis- 1972 charge of pollutants into surface waters without a permit. • Goal is to restore and maintain health of U.S. waters • Protection of aquatic life and human contact recreation by 1983 • Eliminate discharge of pollutants by 1985 • Wastewater treatment plant financing Clean Water Act Section 303(d) • Contains a water quality-based strategy for waters that remain polluted after the implementation of technology-based standards. • Requires states to identify waters that remain polluted, to determine the total maximum daily loads that would reverse the impairments, and then to allo- cate loads to sources. If states do not perform these actions, EPA must. Clean Water Act Section 208 • Designated and funded the development of regional water quality man- agement plans to assess regional water quality, propose stream stan- dards, identify water quality problem areas, and identify wastewater treatment plan long-term needs. These plans also include policy state- ments which provide a common consistent basis for decision making. Clean Water Act Sections 301 and 402 1977 • 1981 Control release of toxic pollutants to U.S. waters • Technology treatment standards for conventional pollutants and priority toxic pollutants. • Recognition of technology limitations for some processes. NRDC vs. Costle. Required EPA to include stormwater discharges in the National 1977 Pollution Discharge Elimination System (NPDES) program. Clean Water Act Amended Sections 301 and 402 1987 • Control toxic pollutants discharged to U.S. waters. • Manage urban stormwater pollution. • Numerical criteria for all toxic pollutants. • Integrated control strategies for impaired waters. • Stormwater permit programs for urban areas and industry. • Stronger enforcement penalties. • Anti-backsliding provisions. Table continues next page

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THE CHALLENGE OF REGULATING STORMWATER 49 TABLE 2-1 continued EPA’s Phase I Stormwater Permit Rules are Promulgated 1990 • Application and permit requirements for large and medium municipalities • Application and permit requirements for light and heavy industrial facilities based on Standard Industrial Classification (SIC) Codes, and construction activity ≥ 5 acres EPA’s Phase II Stormwater Permit Rules are Promulgated 1999 • Permit requirements for census-defined urbanized areas • Permit requirements for construction sites 1 to 5 acres Total Maximum Daily Load (TMDL) Program Litigation 1997- 2001 • Courts order EPA to establish TMDLs in a number of states if the states fail to do so. The TMDLs assign Waste Load Allocations for stormwater discharges which must be incorporated as effluent limitations in stormwa- ter permits. Section 323 of the Energy Policy Act of 2005 2006- 2008 • EPA promulgates rule (2006) to exempt stormwater discharges from oil and gas exploration, production, processing, treatment operations, or transmission facilities from NPDES stormwater permit program. • In 2008, courts order EPA to reverse the rule which exempted certain ac- tivities in the oil and gas exploration industry from storm water regulations. th In Natural Resources Defense Council vs. EPA (9 Cir. 2008), the court held that it was “arbitrary and capricious” to exempt from the Clean Water Act stormwater discharges containing sediment contamination that con- tribute to a violation of water quality standards. Energy Independence and Security Act of 2007 2007 • Requires all federal development and redevelopment projects with a foot- print above 5,000 square feet to achieve predevelopment hydrology to the “maximum extent technically feasible.” The Basic NPDES Program: Regulating Pollutant Discharges The centerpiece of the CWA is its mandate “that all discharges into the na- tion’s waters are unlawful, unless specifically authorized by a permit” [42 U.S.C. §1342(a)]. Discharges do not include all types of pollutant flows, how- ever. Instead, “discharges” are defined more narrowly as “point sources” of pollution, which in turn include only sources that flow through a discrete con- veyance, like a pipe or ditch, into a lake or stream [33 U.S.C. §§ 1362(12) and (14)]. Much of the focus of the CWA program, then, is on limiting pollutants emanating from these discrete, point sources directly into waters of the United States. Authority to control nonpoint sources of pollution, like agricultural run- off (even when drained via pipes or ditches), is generally left to the states with more limited federal oversight and direction.

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50 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES All point sources of pollutants are required to obtain a National Pollutant Discharge Elimination System (NPDES) permit and ensure that their pollutant discharges do not exceed specified effluent standards. Congress also com- manded that rather than tie effluent standards to the needs of the receiving wa- terbody—an exercise that was far too scientifically uncertain and time- consuming—the effluent standards should first be based on the best available pollution technology or the equivalent. In response to a very ambitious man- date, EPA has promulgated very specific, quantitative discharge limits for the wastewater produced by over 30 industrial categories of sources based on what the best pollution control technology could accomplish, and it requires at least secondary treatment for the effluent produced by most sewage treatment plants. Under the terms of their permits, these large sources are also required to self- monitor their effluent at regular intervals and submit compliance reports to state or federal regulators. EPA quickly realized after passage of the CWA in 1972 that if it were re- quired to develop pollution limits for all point sources, it would need to regulate hundreds of thousands and perhaps even millions of small stormwater ditches and thousands of small municipal stormwater outfalls, all of which met the tech- nical definition of “point source”. It attempted to exempt all these sources, only to have the D.C. Circuit Court read the CWA to permit no exemptions [NRDC vs. Costle, 568 F.2d 1369 (D.C. Cir. 1977)]. In response, EPA developed a “general” permit system (an “umbrella” permit that covers multiple permittees) for smaller outfalls of municipal stormwater and similar sources, but it generally did not require these sources to meet effluent limitations or monitor their efflu- ent. It should be noted that, while the purpose of the CWA is to ensure protec- tion of the physical, biological, and chemical integrity of the nation’s waters, the enforceable reach of the Act extends only to the discharges of “pollutants” into waters of the United States [33 U.S.C. § 1311(a); cf. PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994) (providing states with broad authority under section 401 of the CWA to protect designated uses, not simply limit the discharge of pollutants)]. Even though “pollutant” is defined broadly in the Act to include virtually every imaginable substance added to surface waters, including heat, it has not traditionally been read to include water volume [33 U.S.C. § 1362(6)]. Thus, the focus of the CWA with respect to its application to stormwater has traditionally been on the water quality of stormwater and not on its quantity, timing, or other hydrologic properties. Nonetheless, because the statutory definition of “pollutant” includes “industrial, municipal, and agricultural waste discharged into water,” using transient and substantial increases in flow in urban watersheds as a proxy for pollutant loading seems a reasonable interpretation of the statute. EPA Regions 1 and 3 have con- sidered flow control as a particularly effective way to track sediment loading, and they have used flow in TMDLs as a surrogate for pollutant loading (EPA Region 3, 2003). State trial courts have thus far ruled that municipal separate storm sewer system (MS4) permits issued under delegated federal authority can

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THE CHALLENGE OF REGULATING STORMWATER 51 impose restrictions on flow where changes in flow impair the beneficial uses of surface waters (Beckman, 2007). EPA should consider more formally clarifying that significant, transient increases in flow in urban watersheds serve as a legally valid proxy for the loading of pollutants. This clarification will allow regulators to address the problems of stormwater in more diverse ways that include atten- tion to water volume as well as to the concentration of individual pollutants. Stormwater Discharge Program By 1987, Congress became concerned about the significant role that storm- water played in contributing to water pollution, and it commanded EPA to regu- late a number of enumerated stormwater discharges more rigorously. Specifi- cally, Section 402(p), introduced in the 1987 Amendments to the CWA, directs EPA to regulate some of the largest stormwater discharges—those that occur at industrial facilities and municipal storm sewers from larger cities and other sig- nificant sources (like large construction sites)—by requiring permits and prom- ulgating discharge standards that require the equivalent of the best available technology [42 U.S.C. § 1342(p)(3)]. Effectively, then, Congress grafted larger stormwater discharges onto the existing NPDES program that was governing discharges from manufacturing and sewage treatment plants. Upon passage of Section 402(p), EPA divided the promulgation of its stormwater program into two phases that encompass increasingly smaller dis- charges. The first phase, finalized in 1990, regulates stormwater discharges from ten types of industrial operations (this includes the entire manufacturing sector), construction occurring on five or more acres, and medium or large storm sewers in areas that serve 100,000 or more people [40 C.F.R. § 122.26(a)(3) (1990); 40 C.F.R. § 122.26 (b)(14) (1990)]. The second phase, finalized in 1995, includes smaller municipal storm sewer systems and smaller construction sites (down to one acre) [60 Fed. Reg. 40,230 (Aug. 7, 1995) (codified at 40 C.F.R. Parts 122, 124 (1995)]. If these covered sources fail to apply for a per- mit, they are in violation of the CWA. Because stormwater is more variable and site specific with regard to its quality and quantity than wastewater, EPA found it necessary to diverge in two important ways from the existing NPDES program governing discharges from industries and sewage treatment plants. First, stormwater discharge limits are not federally specified in advance as they are with discharges from manufactur- ing plants. Even though Congress directed EPA to require stormwater sources to install the equivalent of the best available technology or “best management practices,” EPA concluded that the choice of these best management practices (referred to in this report as stormwater control measures or SCMs) would need to be source specific. As a result, although EPA provides constraints on the choices available, it generally leaves stormwater sources with responsibility for

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52 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES developing a stormwater pollution prevention plan and the state with the author- ity to approve, amend, or reject these plans (EPA, 2006, p. 15). Second, because of the great variability in the nature of stormwater flow, some sources are not required to monitor the pollutants in their stormwater dis- charges. Even when monitoring is required, there is generally a great deal of flexibility for regulated parties to self-monitor as compared with the monitoring requirements applied to industrial waste effluent (not stormwater from indus- tries). More specifically, for a small subset of stormwater sources such as Phase I MS4s, some monitoring of effluent during a select number of storms at a select number of outfalls is required (EPA, 1996a, p. VIII-1). A slightly larger number of identified stormwater dischargers, primarily industrial, are only required to collect grab samples four times during the year and visually sample and report on them (so-called benchmark monitoring). The remaining stormwater sources are not required to monitor their effluent at all (EPA, 1996a). States and locali- ties may still demand more stringent controls and rigorous stormwater monitor- ing, particularly in areas undergoing a Total Maximum Daily Load (TMDL) assessment, as discussed below. Yet, even for degraded waters subject to TMDLs, any added monitoring that might be required will be limited only to the pollutants that cause the degraded condition [40 C.F.R. §§ 420.32-420.36 (2004)]. Water Quality Management Since technology-based regulatory requirements imposed on both stormwa- ter and more traditional types of discharges are not tied to the conditions of the receiving water—that is, they require sources only to do their technological best to eliminate pollution—basic federal effluent limits are not always adequate to protect water quality. In response to this gap in protection, Congress has devel- oped a number of programs to ensure that waters are not degraded below mini- mal federal and state goals [e.g., 33 U.S.C. §§ 1288, 1313(e), 1329, 1314(l)]. Among these, the TMDL program involves the most rigorous effort to control both point and nonpoint sources to ensure that water quality goals are met [33 U.S.C. § 1313(d)]. Under the TMDL program, states are required to list waterbodies not meet- ing water quality standards and to determine, for each degraded waterbody, the “total maximum daily load” of the problematic pollutant that can be allowed without violating the applicable water quality standard. The state then deter- mines what types of additional pollutant loading reductions are needed, consid- ering not only point sources but also nonpoint sources. It then promulgates con- trols on these sources to ensure further reductions to achieve applicable water quality goals. The TMDL process has four separate components. The first two compo- nents are already required of the states through other sections of the CWA: (1) identify beneficial uses for all waters in the state and (2) set water quality stan-

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THE CHALLENGE OF REGULATING STORMWATER 53 dards that correlate with these various uses. The TMDL program adds two components by requiring that states then (3) identify segments where water quality goals have not been met for one or more pollutants and (4) develop a plan that will ensure added reductions are made by point and/or nonpoint sources to meet water quality goals in the future. Each of these is discussed below. Beneficial Uses. States are required to conduct the equivalent of “zoning” by identifying, for each water segment in the state, a beneficial use, which con- sists of ensuring that the waters are fit for either recreation, drinking water, aquatic life, or agricultural, industrial, and other purposes [33 U.S.C. § 1313(c)(2)(A)]. All states have derived “narrative definitions” to define the beneficial uses of waterbodies that are components of all water quality standard programs. Many of these narrative criteria are conceptual in nature and tend to define general aspects of the beneficial uses. For categories such as aquatic life uses, most states have a single metric for differentiating uses by type of stream (e.g., coldwater vs. warmwater fisheries). In general, the desired biological characteristics of the waterbody are not well defined in the description of the beneficial use. Some states, such as Ohio, have added important details to their beneficial uses by developing tiered aquatic life uses that recognize a strong gradient of anthropogenic background disturbance that controls whether a wa- terbody can attain a certain water quality and biological functioning (see Box 2- 1; Yoder and Rankin, 1998). Any aquatic life use tier less stringent than the CWA interim goal of “swimmable–fishable” requires a Use Attainability Analy- sis to support a finding that restoration is not currently feasible and recovery is not likely in a reasonable period of time. This analysis and proposed designa- tion must undergo public comment and review and are always considered tem- porary in nature. More importantly, typically one or more tiers above the opera- tive interim goal of “swimmable–fishable” are provided. This method typically will protect the highest attainable uses in a state more effectively than having only single uses. The concept of tiered beneficial uses and use attainability is especially im- portant with regard to urban stormwater because of the potential irreversibility of anthropogenic development and the substantial costs that might be incurred in attempting to repair degraded urban watersheds to “swimmable–fishable” or higher status. Indeed, it is important to consider what public benefits and costs might occur for different designated uses. For example, large public benefits (in terms of aesthetics and safety) might be gained from initial improvements in an urban stream (e.g., restoring base flow) that achieve modest aquatic use and pro- tect secondary human contact. However, achieving designated uses associated with primary human contact or exceptional aquatic habitat may be much more costly, such that the perceived incremental public gains may be much lower than the costs that must be expended to achieve that more ambitious designation.

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54 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES BOX 2-1 Ohio’s Tiered Aquatic Life Uses “Designated” or “beneficial” uses for waterbodies are an important aspect of the CWA because they are the explicit water quality goals or endpoints set for each water or class of waters. Ohio was one of the first states to implement tiered aquatic life uses (TALUs) in 1978 as part of its water quality standards (WQS). Most states have a single aquatic life use for a class of waters based on narrative biological criteria (e.g., warmwater or cold- water fisheries) although many states now collect data that would allow identification of multiple tiers of condition. EPA has recognized the management advantages inherent to tiered aquatic life uses and has developed a technical document on how to develop the scientific basis that would allow States to implement tiered uses (EPA, 2005a; Davies and Jackson, 2006). Ohio’s TALUs reflect the mosaic of natural features across Ohio and over 200 years of human changes to the natural landscape. Widespread information on Ohio’s natural his- tory (e.g., Trautman’s 1957 Fishes of Ohio) provided strong evidence that the potential fauna of streams was not uniform, but varied geographically. Based on this knowledge, Ohio developed a more protective aquatic life use tier to protect streams of high biological diversity that harbored unique assemblages of rare or sensitive aquatic species (e.g., fish, mussels, invertebrates). In its WQS in 1978, Ohio established a narrative Exceptional Warmwater Habitat (EWH) aquatic life use to supplement its more widespread general or “Warmwater Habitat” aquatic life use (WWH) (Yoder and Rankin, 1995). The CWA permits states to assign aquatic life uses that do not meet the baseline swimmable-fishable goals of the CWA under specific circumstances after conducting a Use Attainability Analysis (UAA), which documents that higher CWA aquatic life use goals (e.g., WWH and EWH in Ohio) are not feasibly attainable. These alternate aquatic life uses are always considered temporary in case land use changes or technology changes to make restoration feasible. The accrual of more than ten years of biological assessment data by the late 1980s and extensive habitat and stressor data provided a key link between the stressors that limited attainment of a higher aquatic life use in certain areas and reaches of Ohio streams. This assessment formed the basis for several “modified” (physical) warm- water uses for Ohio waters and a “limited” use (limited resource water, LRW) for mostly small ephemeral or highly artificial waters (Yoder and Rankin, 1995). Table 2-2 summa- rizes the biological and physical characteristics of Ohio TALUs and the management con- sequences of these uses. Channelization typically maintained by county or municipal drainage and flood control efforts, particularly where such changes have been extensive, are the predominant cause of Modified and Limited aquatic life uses. Extensive channel modification in urban watersheds has led to some modified warmwater habitat (MWH) and LRW uses in urban areas. There has been discussion of developing specific “urban” aquatic life uses; however the complexity of multiple stressors and the need to find a clear link between the sources limiting aquatic life and feasible remediation is just now being addressed in urban settings (Barbour et al., 2006). The TALUs in Ohio (EWH LRW) reflect a gradient of landscape and direct physical changes, largely related to changes to instream habitat and associated hydrological fea- tures. Aquatic life uses and the classification strata based on ecoregion and stream size (headwater, wadeable, and boatable streams) provide the template for the biocriteria ex- pectations for Ohio streams (see Box 2-2). Identification of the appropriate tiers for streams and UAA are a routine part of watershed monitoring in Ohio and are based on biological, habitat, and other supporting data. Any recommendations for changes in aquatic life uses are subject to public comment when the Ohio WQS are changed. Ohio’s water quality standards contain specific listings by stream or stream reach with notations about the appropriate aquatic life use as well as other applicable uses (e.g., rec- reation). Much of the impact of tiered uses on regulated entities or watershed management

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THE CHALLENGE OF REGULATING STORMWATER 55 TABLE 2-2 Key features associated with tiered aquatic life uses in the Ohio WQS. SOURCE: EPA (2005a), Appendix B. efforts arises from the tiered chemical and stressor criteria associated with each TALU. Criteria for compounds such as ammonia and dissolved oxygen vary with aquatic life use (see Table 2-2). Furthermore, application of management actions in Ohio, ranging from assigning antidegradation tiers, awarding funding for wastewater infrastructure and other projects, to issuing CWA Section 401/404 permits, are influence by the TALU and the bio- logical assemblages present. Ohio has been expanding its use of tiered uses by proposing tiered uses for wetlands (http://www.epa.state.oh.us/dsw/rules/draft_1-53_feb06.pdf) and developing new aquatic life uses for very small (primary headwater, PHW) streams. Both of these water types have a strong intersection with urban construction and stormwater practices. In Ohio this is es- pecially so because the proposed mitigation standards for steams and wetlands are linked to TALUs (Ohio EPA, 2007). Davies and Jackson (2006) present a good summary of the Maine rationale for TA- LUs: “(1) identifying and preserving the highest quality resources, (2) more accurately de- picting existing conditions, (3) setting realistic and attainable management goals, (4) pre- serving incremental improvements, and (5) triggering management action when conditions decline” (Davies et al., 1999). Appendices A and B of EPA (2005a) provide more detailed information about the TALUs in Maine and Ohio, respectively.

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56 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES Water Quality Criteria. Once a state has created a list of beneficial uses for its waters, water quality criteria are then determined that correspond with these uses. These criteria can target chemical, biological, or physical parame- ters, and they can be either numeric or narrative. In response to the acute chemical water pollution that existed when the CWA was written, the primary focus of water quality criteria was the control of toxic and conventional pollutants from wastewater treatment plants. EPA de- veloped water quality criteria for a wide range of conventional pollutants and began working on criteria for a list of priority pollutants. These were generally in the form of numeric criteria that are then used by states to set their standards for the range of waterbody types that exist in that state. While states do not have to adopt EPA water quality criteria, they must have a scientific basis for setting their own criteria. In practice, however, states have promulgated numerical wa- ter quality standards that can vary by as much as 1,000-fold for the same con- taminant but are still considered justified by the available science [e.g., the water quality criteria for dioxin—Natural Resources Defense Council, Inc. vs. EPA, 16 F.3d 1395, 1398, 1403-05 (4th Cir. 1993)]. The gradual abatement of point source impairments and increased focus on ambient monitoring and nonpoint source pollutants has led to a gradual, albeit inconsistent, shift by states toward (1) biological and intensive watershed moni- toring and (2) consideration of stressors that are not typical point source pollut- ants including nutrients, bedded sediments, and habitat loss. For these parame- ters, many states have developed narrative criteria (e.g., “nutrients levels that will not result in noxious algal populations”), but these can be subjective and hard to enforce. The use of biological criteria (biocriteria) has gained in popularity because traditional water quality monitoring is now perceived as insufficient to answer questions about the wide range of impairments caused by activities other than wastewater point sources, including stormwater (GAO, 2000). As described in Box 2-2, Ohio has defined biocriteria in its water quality standards based on multimetric indices from reference sites that quantify the baseline expectations for each tier of aquatic life use. Antidegradation. The antidegradation provision of the water quality stan- dards deals with waters that already achieve or exceed baseline water quality criteria for a given designated use. Antidegradation provisions must be consid- ered before any regulated activity can be authorized that may result in a lower- ing of water quality which includes biological criteria. These provisions protect the existing beneficial uses of a water and only allow a lowering of water quality (but never lower than the baseline criteria associated with the beneficial use) where necessary to support important social and economic development. It es- sentially asks the question: is the discharge or activity necessary? States with refined designated uses and biological criteria have used these programs to their advantage to craft scientifically sound, protective, yet flexible antidegradation rules (see Ohio and Maine). Antidegradation is not a replacement for tiered

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THE CHALLENGE OF REGULATING STORMWATER 57 BOX 2-2 Ohio’s Biocriteria After it implemented tiered aquatic life uses in 1978, Ohio developed numeric biocrite- ria in 1990 (Ohio WQS; Ohio Administrative Code 3745-1) as part of its WQS. Since des- ignated uses were formulated and described in ecological terms, Ohio felt that it was natu- ral that the criteria should be assessed on an ecological basis (Yoder, 1978). Subsequent to the establishment of the EWH tier in its WQS, Ohio expanded its biological monitoring efforts to include both macroinvertebrates and fish (Yoder and Rankin, 1995) and estab- lished consistent and robust monitoring methodologies that have been maintained to the present. This core of consistently collected data has allowed the application of analytical tools, including multimetric indices such as the Index of Biotic Integrity (IBI), the Inverte- brate Community Index (ICI), and other multivariate tools. The development of aquatic ecoregions (Omernik, 1987, 1995; Gallant et al., 1989), a practical definition of biological integrity (Karr and Dudley, 1981), multimetric assessment tools (Karr, 1981; Karr et al., 1986), and reference site concepts (Hughes et al., 1986) provided the basis for developing Ohio’s ecoregion-based numeric criteria. Successful application of biocriteria in Ohio was dependent on the ability to accurately classify aquatic ecosystem changes based on primarily natural abiotic features of the envi- ronment. Ohio’s reference sites, on which the biocriteria are based, reflect spatial differ- ences that were partially explained by aquatic ecoregions and stream size. Biological indi- ces were calibrated and stratified on this basis to arrive at biological criteria that present minimally acceptable baseline ecological index scores (e.g., IBI, ICI). Ohio biocriteria strati- fied by ecoregion aquatic life use and stream size are depicted in Figure 2-1. FIGURE 2-1 Numeric biological criteria adopted by Ohio EPA in 1990, using three biologi- cal indices [IBI, ICI, and the Modified Index of well-being (Mlwb), which is used to assessed fish assemblages] and showing stratification by stream size, ecoregion, and designated use (warmwater habitat, WWH; modified warmwater habitat-channelized, MWH-C; modified warmwater habitat-impounded, MWH-I; and exceptional warmwater habitat, EWH). SOURCE: EPA (2006, Appendix B). The basis for the Ohio biocriteria and sampling meth- ods is found in Ohio EPA (1987, 1989a,b), DeShon (1995), and Yoder and Rankin (1995).

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118 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES FIGURE 2-5 Trend of lead concentrations in stormwater in EPA rain zone 2 from 1980 to 2001. Although the range of lead concentrations for any narrow range of years is quite large, there is a significant and obvious trend in concentration for these 20 years. SOURCE: National Stormwater Quality Database (version 3). FIGURE 2-6 Trend of the organophosphate pesticide diazinon in MS4 discharges that flow into a stormwater basin in Fresno County, California, following a ban on the pesticide. The figure shows the significant drop in the diazinon concentration in just four years to levels where it is no longer toxic to freshwater aquatic life. EPA prohibited the retail sale of diazi- non for crack and crevice and virtually all indoor uses after December 31, 2002, and non- agriculture outdoor use was phased out by December 31, 2004. Restricted use for agricul- tural purposes is still allowed. SOURCE: Reprinted, with permission, from Brosseau (2007). Copyright 2006 by Fresno Metropolitan Flood Control District.

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THE CHALLENGE OF REGULATING STORMWATER 119 bution to stormwater pollution. The EPA’s authority to prioritize and target products that increase pollutants in runoff, both for added testing and regulation, seems clear from the broad language of TSCA [15 U.S.C. § 2605(a)]. The un- derutilization of this national authority to regulate environmentally deleterious stormwater pollutants thus seems to be a remediable shortcoming of EPA’s cur- rent stormwater regulatory program. CONCLUSIONS AND RECOMMENDATIONS In an ideal world, stormwater discharges would be regulated through direct controls on land use, strict limits on both the quantity and quality of stormwater runoff into surface waters, and rigorous monitoring of adjacent waterbodies to ensure that they are not degraded by stormwater discharges. Future land-use development would be controlled to prevent increases in stormwater discharges from predevelopment conditions, and impervious cover and volumetric restric- tions would serve as a reliable proxy for stormwater loading from many of these developments. Large construction and industrial areas with significant amounts of impervious cover would face strict regulatory standards and monitoring re- quirements for their stormwater discharges. Products and other sources that contribute significant pollutants through stormwater—like de-icing materials, urban fertilizers and pesticides, and vehicular exhaust—would be regulated at a national level to ensure that the most environmentally benign materials are used when they are likely to end up in surface waters. In the United States, the regulation of stormwater looks quite different from this idealized vision. Since the primary federal statute—the CWA—is con- cerned with limiting pollutants into surface waters, the volume of discharges are secondary and are generally not regulated at all. Moreover, given the CWA’s focus on regulating pollutants, there are few if any incentives to anticipate or limit intensive future land uses that generate large quantities of stormwater. Most stormwater discharges are regulated instead on an individualized basis with the demand that existing point sources of stormwater pollutants implement SCMs, without accounting for the cumulative contributions of multiple sources in the same watershed. Moreover, since individual stormwater discharges vary with terrain, rainfall, and use of the land, the restrictions governing regulated parties are generally site-specific, leaving a great deal of discretion to the dis- chargers themselves in developing SWPPPs and self-monitoring to ensure com- pliance. While states and local governments are free to pick up the large slack left by the federal program, there are effectively no resources and very limited infrastructure with which to address the technical and costly challenges faced by the control of stormwater. These problems are exacerbated by the fact that land use and stormwater management responsibilities within local governments are frequently decoupled. The following conclusions and recommendations are made.

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120 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES EPA’s current approach to regulating stormwater is unlikely to pro- duce an accurate or complete picture of the extent of the problem, nor is it likely to adequately control stormwater’s contribution to waterbody im- pairment. The lack of rigorous end-of-pipe monitoring, coupled with EPA’s failure to use flow or alternative measures for regulating stormwater, make it difficult for EPA to develop enforceable requirements for stormwater discharg- ers. Instead, under EPA’s program, the stormwater permits leave a great deal of discretion to the regulated community to set their own standards and self- monitor. Implementation of the federal program has also been incomplete. Current statistics on the states’ implementation of the stormwater program, discharger compliance with stormwater requirements, and the ability of states and EPA to incorporate stormwater permits with TMDLs are uniformly discouraging. Radi- cal changes to the current regulatory program (see Chapter 6) appear necessary to provide meaningful regulation of stormwater dischargers in the future. Future land development and its potential increases in stormwater must be considered and addressed in a stormwater regulatory program. The NPDES permit program governing stormwater discharges does not provide for explicit consideration of future land use. Although the TMDL program ex- pects states to account for future growth in calculating loadings, even these more limited requirements for degraded waters may not always be implemented in a rigorous way. In the future, EPA stormwater programs should include more direct and explicit consideration of future land developments. For example, stormwater permit programs could be predicated on rigorous projections of fu- ture growth and changes in impervious cover within an MS4. Regulators could also be encouraged to use incentives to lessen the impact of land development (e.g., by reducing needless impervious cover within future developments). Flow and related parameters like impervious cover should be consid- ered for use as proxies for stormwater pollutant loading. These analogs for the traditional focus on the “discharge” of “pollutants” have great potential as a federal stormwater management tool because they provide specific and measur- able targets, while at the same time they focus regulators on water degradation resulting from the increased volume as well as increased pollutant loadings in stormwater runoff. Without these more easily measured parameters for evaluat- ing the contribution of various stormwater sources, regulators will continue to struggle with enormously expensive and potentially technically impossible at- tempts to determine the pollutant loading from individual dischargers or will rely too heavily on unaudited and largely ineffective self-reporting, self- policing, and paperwork enforcement. Local building and zoning codes, and engineering standards and prac- tices that guide the development of roads and utilities, frequently do not promote or allow the most innovative stormwater management. Fortu-

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THE CHALLENGE OF REGULATING STORMWATER 121 nately, a variety of regulatory innovations—from more flexible and thoughtful zoning to using design review incentives to guide building codes to having sepa- rate ordinances for new versus infill development can be used to encourage more effective stormwater management. These are particularly important to promoting redevelopment in existing urban areas, which reduces the creation of new impervious areas and takes pressure off of the development of lands at the urban fringe (i.e., reduces sprawl). EPA should provide more robust regulatory guidelines for state and lo- cal government efforts to regulate stormwater discharges. There are a num- ber of ambiguities in the current federal stormwater program that complicate the ability of state and local governments to rigorously implement the program. EPA should issue clarifying guidance on several key areas. Among the areas most in need of additional federal direction are the identification of industrial dischargers that constitute the highest risk with regard to stormwater pollution and the types of permit requirements that should apply to these high-risk sources. EPA should also issue more detailed guidance on how state and local governments might prioritize monitoring and enforcement of the numerous and diverse stormwater sources within their purview. Finally, EPA should issue guidance on how stormwater permits could be drafted to produce more easily enforced requirements that enable oversight and enforcement not only by gov- ernment officials, but also by citizens. Further detail is found in Chapter 6. EPA should engage in much more vigilant regulatory oversight in the national licensing of products that contribute significantly to stormwater pollution. De-icing chemicals, materials used in brake linings, motor fuels, asphalt sealants, fertilizers, and a variety of other products should be examined for their potential contamination of stormwater. Currently, EPA does not appar- ently utilize its existing licensing authority to regulate these products in a way that minimizes their contribution to stormwater contamination. States can also enact restrictions on or tax the application of pesticides or even ban particular pesticides or other particularly toxic products. Austin, for example, has banned the use of coal-tar sealants within city boundaries. States and localities have also experimented with alternatives to road salt that are less environmentally toxic. These local efforts are important and could ultimately help motivate broader scale, federal restrictions on particular products. The federal government should provide more financial support to state and local efforts to regulate stormwater. State and local governments do not have adequate financial support to implement the stormwater program in a rig- orous way. At the very least, Congress should provide states with financial sup- port for engaging in more meaningful regulation of stormwater discharges. EPA should also reassess its allocation of funds within the NPDES program. The agency has traditionally directed funds to focus on the reissuance of NPDES

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122 URBAN STORMWATER MANAGEMENT IN THE UNITED STATES wastewater permits, while the present need is to advance the NPDES stormwater program because NPDES stormwater permittees outnumber wastewater permit- tees more than five fold, and the contribution of diffuse sources of pollution to degradation of the nation’s waterbodies continues to increase. REFERENCES Athayde, D. N., P. E. Shelly, E. D. Driscoll, D. Gaboury, and G. Boyd. 1983. Results of the Nationwide Urban Runoff Program—Volume 1, Final report. EPA WH-554. Washington, DC: EPA. Barbour, M. T., J. Diamond, B. Fowler, C. Gerardi, J. Gerritsen, B. Snyder, and G. Webster. 1999a. The status and use of biocriteria in water quality moni- toring. Project 97-IRM-1. Alexandria, VA: Water Environment Research Foundation (WERF). Barbour, M. T., J. Gerritsen, B. D. Snyder, and J. B. Stribling. 1999b. Rapid Bioassessment Protocols for Use in Streams and Wadeable Rivers: Periphy- ton, Benthic Macroinvertebrates, and Fish. Second Edition. EPA/841-B-99- 002. Washington, DC: EPA Office of Water. Barbour, M. T., M. J. Paul, D. W. Bressler, A. H. Purcell, V. H. Resh, and E. Rankin. 2006. Bioassessment: a tool for managing aquatic life uses for ur- ban streams. Research Digest #01-WSM-3 for the WERF. Beckman, D. 2007. Presentation to the NRC Committee on Reducing Storm- water Discharge Contributions to Water Pollution, December 17, 2007. Bouma, K. 2007. Agency may lose 40% of budget. The Birmingham News. January 18, 2007. Brosseau, G. 2007. Presentation to the NRC Committee on Reducing Stormwa- ter Pollution, December 17, 2007, Irvine, CA. Summarizing the Report: Fresno-Clovis Stormwater Quality Monitoring Program—Evaluation of Ba- sin EK Effectiveness—Fresno Metropolitan Flood Control District, No- vember 2006. CA SWB (California State Water Board). 1999. Storm Water General Indus- trial Permit Non-Filer Identification and Communication Project: Final Re- port. CA SWB. 2006. Storm Water Panel Recommendations—The Feasibility of Numeric Effluent Limits Applicable to Discharges of Storm Water Associ- ated with Municipal, Industrial, and Construction Activities. City of Austin. 2004. The Coal Tar Facts, available at http://www.ci.austin. tx.us/watershed/downloads/coaltarfacts.pdf. Last accessed August 20, 2008. Connecticut DEP. 2007. A Total Maximum Daily Load Analysis for Eagleville Brook, Mansfield, CT, Final. 27 pp. CWP (Center for Watershed Protection). 1998. Better Site Design: A Hand- book for Changing Development Rules in Your Community. Ellicott City, MD: CWP.

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THE CHALLENGE OF REGULATING STORMWATER 123 Davies, S. P., L. Tsomides, J. L. DiFranco, and D. L. Courtemanch. 1999. Biomonitoring Retrospective: Fifteen Year Summary for Maine Rivers and Streams. Maine DEP (DEP LW1999-26). Davies, S. P., and S. K. Jackson. 2006. The biological condition gradient: a descriptive model for interpreting change in aquatic ecosystems. Ecological Applications 16(4):1251–1266. Davies, S. P., and L. Tsomides. 1997. Methods for Biological Sampling and Analysis of Maine's Inland Waters. MDEP, revised June 1997. Davis, W. S. (ed.). 1990. Proceedings of the 1990 Midwest Pollution Control Biologists Meeting. U. S. Environmental Protection Agency, Chicago, Illi- nois. EPA 905/9-89-007. Davis, W. S. 1995. Biological assessment and criteria: building on the past. Pp. 15–30 In: Biological Assessment and Criteria: Tools for Water Re- source Planning and Decision Making for Rivers and Streams. W. Davis and T. Simon (eds.). Boca Raton, FL: Lewis Publishers. DeShon, J. D. 1995. Development and application of the invertebrate commu- nity index (ICI). Pp. 217–243 In: Biological Assessment and Criteria: Tools for Risk-Based Planning and Decision Making. W. S. Davis and T. Simon (eds.). Boca Raton, FL: Lewis Publishers. Driscoll, E. D., P. E. Shelley, and E. W. Strecker. 1990. Pollutant loadings and impacts from highway stormwater runoff volume III: analytical investiga- tion and research report. Federal Highway Administration Final Report FHWA-RD-88-008, 160 pp. Duke, D. 2007. Industrial Stormwater Runoff Pollution Prevention: Regula- tions and Implementation. Presentation to the NRC Committee on Reduc- ing Stormwater Discharge Contribution to Water Pollution, Seattle, WA, August 22, 2007. Duke, L. D., and C. A. Augustenborg. 2006. Effectiveness of self-identified and self-reported environmental regulations for industry: the case of storm- water runoff in the U.S. Journal of Environmental Planning and Manage- ment 49:385. Duke, L. D., and K. A. Shaver. 1999. Industrial storm water discharger identi- fication and compliance evaluation in the City of Los Angeles. Environ- mental Engineering Science 16:249–263. EPA (U.S. Environmental Protection Agency). 1996a. Overview of the Storm- water Program. EPA 833-R-96-008. Available at http://www.epa.gov/ npdes/pubs/owm0195.pdf. Last accessed August 20, 2008. EPA. 1996b. Biological Criteria: Technical Guidance for Streams and Rivers. EPA 822-B-94-001. Washington, DC: EPA Office of Science and Tech- nology. EPA. 2000a. Stressor Identification Guidance Document. EPA 822-B-00-025. Washington, DC: EPA Offices of Water and Research and Development. EPA. 2000b. Report to Congress on the Phase I Storm Water Regulations. EPA-833-R-00-001. Washington, DC: EPA Office of Water.

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THE CHALLENGE OF REGULATING STORMWATER 125 EPA Region 9. 2005. Press Release: EPA Orders Oakland Facility to Comply with its Stormwater Permit. Gallant, A. L., T. R. Whittier, D. P. Larson, J. M. Omernik, and R. M. Hughes. 1989. Regionalization as a Tool for Managing Environmental Resources. EPA/600/3089/060. Corvallis, OR: EPA Environmental Research Labora- tory. General Accounting Office (GAO). 1989. EPA Action Needed to Improve the Quality of Heavily Polluted Waters. GAO/RCED 89-38. Washington, DC: GAO. GAO. 2000. Water quality: Key EPA and State Decisions Limited by Inconsis- tent and Incomplete Data. GAO/RCED-00-54. Washington, DC: GAO. GAO. 2005. Storm Water Pollution: Information Needed on the Implications of Permitting Oil and Gas Construction Activities. GAO-05-240. Washing- ton, DC: GAO. Available at http://www.gao.gov/new.items/d05240.pdf. Last accessed August 20, 2008. GAO. 2007. Report to Congressional Requesters, Further Implementation and Better Cost Data Needed to Determine Impact of EPA’s Storm Water Pro- gram on Communities. GAO-07-479. Washington, DC: GAO. Hawkins, C. P., R. H. Norris, J. N. Hogue, and J. W. Feminella. 2000. Devel- opment and evaluation of predictive models for measuring the biological in- tegrity of streams. Ecological Applications 10:1456–1477. Hill, B. H., F. H. McCormick, A. T. Herlihy, P. R. Kaufmann, R. J. Stevenson, and C. Burch Johnson. 2000. Use of periphyton assemblage data as an in- dex of biotic integrity. Journal of the North American Benthological Society 19(1):50–67. Hilsenhoff, W. L. 1987. An improved biotic index of organic stream pollution. Great Lakes Entomology 20:31. Hilsenhoff, W. L. 1988. Rapid field assessment of organic pollution with a family-level biotic index. Journal of the North American Benthological So- ciety 7:65. Houck, O. 1999. TMDLs IV: the final frontier. Environmental Law Reporter 29:10469. Hughes, R. M., D. P. Larsen, and J. M. Omernik. 1986. Regional reference sites: a method for assessing stream potentials. Environmental Manage- ment 10:629–635. Karr, J. R. 1981. Assessment of biotic integrity using fish communities. Fish- eries 6(6):21–27. Karr, J. R., and E. W. Chu. 1999. Restoring Life In Running Waters: Better Biological Monitoring. Washington, DC: Island Press. Karr, J. R., and D. R. Dudley. 1981. Ecological perspective on water quality goals. Environmental Management 5:55–68. Karr, J. R., K. D. Fausch, P. L. Angermeier, P. R. Yant, and I. J. Schlosser. 1986. Assessing biological integrity in running waters: a method and its ra- tionale. Illinois Natural History Survey Special Publication 5.

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