State Authority Can Expand Beyond Federal Mandate

By Charles Rathmann

The Best Management Practices and Minimum Control Measures required of communities under the federal storm water permitting program are something rural, smaller, non-permitted communities need to take a good hard look at.

Why? Because state governments can pull smaller communities into the storm water permitting program or require them to comply with many of the requirements of a storm water permit - regardless of their size or level of development. Whether communities are specifically named in the federal regulation or not, they will need to understand how storm water and nonpoint regulations are changing and how those changes will affect them.

When the EPA Phase I and Phase II stormwater regulations were entered into the Federal Register, specific goals were identified for the program.

In the background section of the Phase II regulation, (Federal Register page 68723), it states that; "Phase I requires NPDES permits for storm water discharges from a large number of priority sources including municipal separate storm sewer systems (MS4s) generally serving populations of 100,000 or more, and several categories of industrial activity, including construction sites that disturb five or more acres of land. (Phase II) ellipse expands the existing program to include discharges of storm water from smaller municipalities in urbanized areas and from construction sites that disturb between one and five acres of land."

Both the Phase I and Phase II rules include a list of communities that would be required to obtain storm water permits, or must be considered by state governing entities for permitting. In some states with more aggressive regulating bodies, however, this list can serve merely as a starting point when it comes to requiring local units of government to apply for permits and conform to their requirements. State agencies can take a much more aggressive stance than required by the EPA when it comes to determining what types of activities are regulated.

The Wisconsin Department of Natural Resources (WDNR) serves as an example of how a state environmental agency can expand beyond the mandate given by the federal government to regulate storm water discharge from municipalities.

"According to the federal Phase I regulation, the only Wisconsin communities required to apply for a storm water discharge permit were the cities of Milwaukee and Madison," said Dr. Willie Gonwa of the civil engineering firm Crispell-Snyder. Crispell-Snyder is based in Lake Geneva, Wis., and serves more than 40 communities in the state as their municipal engineer.

"During the administrative rule writing process, the WDNR used the opportunity to add communities with contaminated sediment in their harbors. They also added municipalities with populations exceeding 50,000 in priority watersheds. In total, the WDNR specified 11 additional communities by name. Then, using a clause in this administrative rule, these communities were able to petition to include their neighboring communities in the permitting program as well," Gonwa said.

Through the petitioning process, both technical reasoning and political forces were brought to bear against communities bordering a permitted municipality. Storm water does not realize when it is crossing jurisdictional lines, and oftentimes, suburbs are urbanized enough that they can contribute significantly to peak flows and contaminant levels in their neighbor's storm water systems. It is also in the interest of permitted communities to see that their neighbors have to require developers to conform to the same standards for post-development performance when it comes to competing for development and redevelopment projects.

Eventually, according to Gonwa, 43 Wisconsin communities were required to apply for Phase I permits in the southeastern region of the state alone. Communities pulled into the permitting program included rural townships, as the WDNR's definition of municipal storm water system includes rural roadside drainage ditches.

"Very few townships and small municipalities successfully fought the petition process during Phase I," Gonwa said. "A very rural Sheboygan County township with about 800 residents, the Town of Mosel, was exempted after the city of Sheboygan sought to bring them in. The town of Raymond, a heavily agricultural Racine County township with about 3,000 residents, was designated as part of the Root River Watershed. But their representation was able to make the case that the intent of the federal permitting regulation was not to force a community of their type to apply for a permit."

Gonwa suspects the WDNR may designate more communities than the 166 cities, villages and towns enumerated by the EPA Phase II document. The clause in the Phase I rule allowing communities to petition to include their neighbors in the permitting program still holds sway. Local officials have reported receiving correspondence indicating that the WDNR may attempt to include additional watershed areas as well. The completion of the 2000 Census will also identify additional municipalities have crested the 10,000 population figure that the Phase II regulation uses as a benchmark for communities to be permitted.

Rule Writing With A Broad Brush

When the Phase II regulation was finalized by the EPA, the WDNR released a proposed rewrite of rules governing nonpoint discharges in the state - except they were not called nonpoint discharges, Gonwa said.

"The WDNR is using the term runoff in its administrative rules dealing with requirements for stormwater management," he said. "This allows them to regulate a much broader spectrum of activities, including agricultural runoff. This way, detrimental practices like allowing cows to defecate in or near streams is regulated - a problem that has long been a sore spot for municipal officials who are forced into expensive treatment plant upgrades."

The WDNR's proposed nonpoint rewrite contains separate proposals for agricultural and nonagricultural lands. The agricultural proposal would require farmers to implement cropland soil erosion control, buffers, manure storage and management and nutrient management programs. However, they are exempted from these provisions unless there is 70 percent cost sharing from the state.

Proactive Approach

Well before the release of the final Phase II rule, Gonwa had been encouraging Wisconsin communities to enact ordinances and develop storm water management plans based on the content of the proposed EPA regulation. This turns out to have been good advice, as communities now required to obtain permits are that much closer to fulfilling the numerical goals for pollution reduction.

"By revising their ordinances and practices to meet the stormwater quality and quantity standards required of permitted communities, non-permitted communities are getting ahead of the trend," Gonwa said. "It is a lot less expensive to design new developments right the first time than to retrofit existing developments down the road. Several communities in our area have done an outstanding job of preparing for the future of storm water regulation, more out of a desire to protect their water resources than out of fear, however."

Walworth County, in southeastern Wisconsin, is the fastest-growing county in the state. Both the county and the communities surrounding Geneva Lake, a famous resort destination, have adopted special regulations to require improvements in the quality of storm water discharged into the environment.

Two Crispell-Snyder clients, the City of Lake Geneva and the Village of Williams Bay, were among the communities that adopted a model storm water ordinance for communities that border the lake.

"The model ordinance adopted by Geneva Lake communities is very similar to the Walworth County Land Disturbance, Erosion Control and Storm Water Management ordinance, which governs all non-incorporated areas in Walworth County," Gonwa said. These ordinances meet or exceed most of the requirements of the Phase II regulation. The county rule is backed up by zoning provisions, which can have as much impact on water quality as anything else."

The County ordinance was passed in 1991, and has been updated several times.

"That's when the WDNR encouraged communities to pass construction site erosion control ordinances, and the first model ordinance was made available to counties," Walworth County Land Conservation Department Urban Programs Manager Fay Amerson said. "We also were anticipating several large construction projects adjacent to our important water bodies."

These projects included Geneva National, a major golf and resort complex on Geneva Lake, and a number of large developments on Delavan Lake, according to Amerson.

"The amended ordinance regulates all new construction creating impervious conditions of an acre and a half," Amerson said. "Peak discharges during two-, 10- and 100-year 24 hour storm events must mimic peak flow under natural conditions. 'Natural conditions' does not mean poor crop management conditions - but rather pre-settlement conditions." The revision also addressed water quality standards.

"The water quality components in stormwater practices for a new development must, by design, capture at least the 15 micron particle size," Amerson said. "We are thinking of reducing this to 5 microns."

Amerson said she prefers this approach over the 80 percent sediment removal required under Phase II. "We specify a particle size and require you to capture 100 percent, as opposed to requiring 80 percent of what?" she said.

An additional area where the Walworth County ordinance may be revised is volume. "Our ordinance is currently catch-and-release," Amerson said. "Hopefully, we can look at storing some water and really reducing the volume of water released from a site. We could also look at infiltrating roof water. Roof water contains few contaminants and could be returned to the water table."

The City of Lake Geneva has been particularly vigilant in protecting the water quality of Geneva Lake.

The city relies heavily on tourists drawn to the sparkling waters of Geneva Lake for its economic vitality. So as concern grew about discharges from a storm sewer outfall at Library Park, just yards from the city's popular beach, the problem was quickly evaluated and an action plan developed.

Crispell-Snyder, engineers to the City, developed a plan to sharply reduce the water quality impacts from the large storm sewer outlet through a combination of cleansing the water before discharge and redirecting it to a less sensitive body of water. As an additional benefit, implementation of the program will eliminate frequent street flooding in the central business and adjacent historical neighborhood districts. The program, in effect, would reduce urban discharge to Geneva Lake by a calculated 74 percent in the 510-acre area served by the 54-inch Library Park sewer.

"The concentration of nutrients, sediments and pathogens in stormwater discharged in Library Park is 24 times the average concentration of runoff entering Geneva Lake," Crispell-Snyder President Douglas Mushel said. "And it is entering the lake precisely where we didn't want it to - in a public park in the downtown. Because lake-oriented tourism brings millions of dollars into the region annually, protecting this resource is a major priority."

Crispell-Snyder designed two facilities - a wet-bottom pond and an enhanced dry basin - that will remove pollutants and increase water quality in two different sub-basins of the watershed. These ponds are now completed and functioning. Water is being held long enough for contaminants and sediments to settle. The ponds also reduce peak flows that could overwhelm existing and proposed storm sewer capacity and lead to flooding. Upon completion of the second phase of the project later this year, the treated water would travel through 5,400 feet of storm sewer to the White River, a less sensitive body of water.