Water Pollution, Storm Water and Wetlands: Tougher Rules on New Facilities and Retrofitting the Existing Presented by Timothy R. Henderson Rich & Henderson, P.C. Annapolis and Easton, Maryland www.richlaw.com
Transcript
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Water Pollution, Storm Water and Wetlands: Tougher Rules on New
Facilities and Retrofitting the Existing Presented by Timothy R.
Henderson Rich & Henderson, P.C. Annapolis and Easton, Maryland
www.richlaw.com
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Presentation Will Address: Part 1 - Federal and Maryland
wetlands protection programs. Part 2 - Federal, Maryland and local
sediment and stormwater control programs.
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Part I : Wetlands What is a Wetland? 3 indicators Hydrology -
Surface water or waterlogged soils present for periods sufficient
enough to influence soil chemistry and vegetation type. Soil
-Hydric soils, which may contain partially decomposed plant
material, smell of rotten eggs, or may be sandy with a black
surface layer that indicates low oxygen content. Vegetation
-Hydrophytic vegetation common to local wetlands. Rule of thumb: if
one indicator from each of the three categories is present - then
it is a wetland.
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Wetland Delineations Are the wetlands Jurisdictional, i.e. are
they subject to state and/or federal law? The U.S. Army Corps of
Engineers conducts and issues federal Jurisdictional
Determinations; state and local agencies and developers rely on
them. Delineation can make or break a project; they set the stage
for the permitting process. In Maryland, wetlands law is more
expansive than federal law and can include as wetlands those areas
that dont fall under federal jurisdiction.
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Jurisdiction of Wetlands Federal Law Limited to waters of the
United States Navigable Waters and Tidal or non-tidal wetlands
connected to or adjacent to navigable waters of the United States,
but generally not their buffers. Extends to wetlands connected to
or adjacent to navigable waters or their tributaries. Prior to
Supreme Courts decision in Rapanos v. United States (2006), the
Corps defined adjacency based on proximity, not hydrologic
connection. Court determined that the Clean Water Act requires
evidence of hydrologic connection. EPA and USACE issued draft
guidance on Identifying Waters Protected by the Clean Water Act;
proposed rule in the works (sent to OMB Nov. 2013.)
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Jurisdiction of Wetlands Maryland Law Tidal wetlands connected
to tidal waters; no buffers. Divided into state and private
wetlands. State wetlands are below mean high tide, except those
transferred to private landowners. Private tidal wetlands are above
mean high tide or those transferred from the state. Non-tidal -
delineated wetlands, plus a 25 ft. buffer, extending up to a 100
ft. for designated wetlands of special state concern. Tidally
influenced non-tidal - a legal term of art describing a wetland
subject to the ebb and flow of the tide that is afforded the
additional legal protections of a non-tidal wetland.
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Regulated Activities in Wetlands Federal Clean Water Act:
Prohibits the discharge of pollutants'' to navigable waters,
including discharge of dredged or fill materials. In December 2008,
the EPA revised its regulations established under the Clean Water
Act to address recent case law (commonly referred to as Tulloch II)
regarding exactly what constitutes a discharge of pollutants and
the regulatory exception provided for incidental fallback.
Regulated Acts Under the Maryland Tidal Wetlands Act, (Title 16 of
the Environment Article): Tidal Wetlands Law prohibits the dredging
and filling of state wetlands, and calls for the adoption of
regulations to protect against dredging and filling in private
wetlands. Tidal Wetland Regulations expands prohibition to:
draining, constructing structures in, on, over, or under the
wetlands; and destroying the natural vegetation or existing
patterns of tidal flow, or alter the natural and beneficial
character of the tidal wetland. Regulated Acts under the Maryland
Non-tidal Wetlands Act (Title 5, Subtitle 9 of the Environment
Article): Prohibits regulated activities in a nontidal wetland
without a permit, including: (i) removal, excavation, or dredging
of soil, sand, etc.; (ii) changing of existing drainage,
sedimentation, flow, or flood retention characteristics; (iii)
disturbing of the water level or water table by drainage, or
impoundment; (iv) dumping, discharging, or filling with material,
including the driving of piles; (v) altering existing topography;
or (vi) Destroying or removing of plant life
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Exemptions to Regulated Activities "Regulated activity" exempts
agricultural activity or forestry activity and: a.Federal Wetlands:
Normal farming, or ranching activities. Maintenance of dams, dikes,
levees, groins, etc. Construction of farm ponds and sedimentation
ponds. Construction of permanent farms roads and temporary roads
for moving mining equipment b. Maryland Tidal Wetlands: Dredging of
seafood products;. Hunting, trapping, fishing and catching
shellfish. Routine maintenance and repair or replacement of piers,
bulkheads, revetments and other water related structures. c.
Maryland Non-tidal Wetlands: A variety of agricultural and forestry
practices, including repair and maintenance of structures. Approved
mitigation projects. Activities in farmed wetlands and buffers with
14 or fewer consecutive days of inundation during the growing
season.
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Permitting Goal for Construction in Wetlands Area: No Net Loss:
How? Eliminate alternative locations Avoidance Design around or
under wetlands Minimization Replace wetlands impacted
Mitigation
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Permit Process for Construction in Wetlands Area In MD -
applications for federal and/or state permits (general or
individual) is through the: Joint Federal/State Application for the
Alteration of Any Floodplain, Waterway, Tidal or Nontidal Wetland
in Maryland. The application is submitted to the MDE, who will then
forward it to the Corps for review. Both MDE and Corps will issue
separate permits (if a state owned tidal wetland is impacted, it
will be a license issued by the Maryland Board of Public Works- not
a permit). The permits or licenses may be project specific or they
may be general (i.e. found to apply to the type of activity being
conducted as part of the project). State Letters of Exemption for
non-tidal wetlands impacts may be possible.
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Programmatic General Permit MD State Programmatic General
Permit (MDSPGP-4) developed collaboratively by MDE and Corps Covers
Activities with minimal adverse environmental effects: individually
and/or cumulatively impacts not to exceed 1.0 acre (43,560 square
feet) and/or 2,000 linear feet of streams Minor do not need
reporting to the Corps (provided required State and local permits
and required State certifications are obtained), Larger impacts
reviewed by the Corps, and resource agencies. Intended to speed up
permit review and issuance, reduce duplicative reviews, and promote
more efficient use of Corps and MDE resources. Other States May use
Nationwide Permits general permits for small impacts
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Individual Wetlands Permit for Significant Impacts The
Individual Permit process is long and arduous, with multiple agency
reviews and approvals: Both MDE and Corps must issue separate
permits. Corps required to comply with NEPA & NHPA (EA, EIS and
possible archeologic studies.) EPA reviews through Section
404(b)(1) Guidelines. Fish and Wildlife Service examines through
prism of Endangered Species Act and its other non-regulatory
authorities. MD Department of Natural Resources reviews applying
state endangered species and habitat protection principals. MDE
must issue a Section 401 Water Quality Certification to the Corps
certifying the proposed project will not significantly impact water
quality. Note: this may be impacted by the pending efforts to
establish Bay-wide Total Maximum Daly Loads (TMDLs) for all
pollutants.
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General Regulatory Timeline for Permit Processing
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Part 2 Sediment & Stormwater Management
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Soil Erosion & Sediment Control vs. Stormwater Management
Soil Erosion & Sediment Controls govern the processes applied
to projects which disturb the land, attempt to minimize pollutants
in runoff from the projects: land use controls. Regulation
traditionally has ended upon completion of project.
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Soil Erosion & Sediment Control vs. Stormwater Pollution
Control Stormwater management imposes ongoing mitigation procedures
for pollutants picked up in rain or snow runoff from human
activities: water pollution controls.
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What is Stormwater? Rain and snowmelt flowing over the land or
impervious surfaces (paved streets, parking lots, and building
rooftops), accumulates debris, chemicals, sediment or other
pollutants. Surface water generated by precipitation events, such
as rainstorms, which flows over streets, parking lots, commercial
sites, and other developed parcels of land. Whereas natural,
vegetated soil can absorb rainwater and capture pollutants, paved
surfaces and developed land can do neither. When stormwater flows
over urban environs, it collects suspended metals, sediments,
algae-promoting nutrients , floatable trash, used motor oil, raw
sewage, pesticides, and other toxic contaminants. EDF v. EPA, 344
F.3d 382 (9th Cir.) Note: no mention of agricultural runoff.
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Stormwater Regulated as Water Pollution Point source discharges
of stormwater require permits under CWA, the same as for process
discharges 33 U.S.C. 1342(p) required permits for stormwater
discharges from municipal sources (small & large cities) and
industrial sources EPA has Developed Regulations governing both,
(including construction sites in the Phase I & II rules for
municipal discharges) : Adopting regulations (40 CFR 122.26
&.34) difficult, leading to series of court challenges. Most
states implement as part of delegated NPDES permit program; EPA is
permitting authority in a few states, territories and Indian
lands.
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Permits for Municipal Separate Stormwater Systems aka MS4s
Large systems (pop. over 100,000) require individual permit EPA
regulations set ground rules for large system permits requiring
them to adopt ordinances Ordinances require inspection, maintenance
of collection systems, fees & inspections from commercial and
industrial discharges to systems, enforcement programs Owned by
public entities, Not combined storm/ sewer systems, Not connected
to POTW treatment systems Small systems (pop. Less than 100,000)
covered by general permits Needs a stormwater management program
which includes the six minimum control measures (next slide) Adopt
and implement appropriate stormwater management controls, or best
management practices (BMPs) Develop measurable goals Post
implementation evaluation of the effectiveness of the program
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Permits for Municipal Separate Stormwater Systems aka MS4s CWA
authorization broader than for industrial sources &
construction activities -- To - require controls to reduce the
discharge of pollutants to the maximum extent practicable,
including management practices, control techniques and system
design and engineering methods, and such other provisions as the
Administrator or the State determines appropriate for the control
of such pollutants. 33 U.S.C. 1342(p)(3)(B).
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Features of Municipal Separate Stormwater Systems Permits
Minimum Control Measures Public Education and OutreachPublic
Participation/InvolvementIllicit Discharge Detection and
EliminationControl Construction Site RunoffControlPost Construction
RunoffPollution Prevention/Good Housekeeping
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Industrial Stormwater Discharges: Recent Analysis of CWA
Industrial Stormwater Discharge Authority -- Decker v. Northwest
Environment Defense Center, 133 S. Ct. 1326 (March 2013) NEDC suit
alleged that Oregon officials and timber companies violated the CWA
by not subjecting all storm water discharges from logging roads to
the industrial stormwater NPDES permit. Issue: Whether storm water
discharge from all logging roads associated with industrial
activity so as to require a NPDES permit?
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Background Silvicultural Rule requires NPDES Permits for
Stormwater Discharges from Certain Logging Operations: Any
discernible, confined, and discrete conveyance related to rock
crushing, gravel washing, log sorting, or log storage facilities
which are operated and from which pollutants are discharged into
the waters of the United States. 40 C.F.R. 122.27(b)(1). 1987
Congress Directs EPA to only require NPDES permits for point source
discharges of stormwater associated with Industrial Activity. 33
U.S.C. 1342 (p)(2)(B). EPA Industrial Stormwater Rule: the
discharge from any conveyance used for collecting and conveying
storm water that is directly related to manufacturing, processing
or raw material storage areas at facilities within SIC 24. 40
C.F.R. 122.26(b)(14). (regulated by Multi-sector permit)
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Procedural History (Circuit Court Ruling) EPA had interpreted
the Industrial Stormwater Rule to include only to SIC 24 facilities
more fixed and permanent than outdoor timber-harvesting operations
like sawmills; not to temporary logging operations. U.S. Court of
Appeals 9th Cir. Disagreed, holding that all stormwater discharges
from facilities in SIC 24, are associated with industrial activity
and require coverage under an NPDES permit. In 2012 and in response
to 9 th Cir. ruling, EPA amended the industrial stormwater rule to
only include those logging facilities within SIC 24 that are
involved in rock crushing, gravel washing, log sorting or log
storage. 77 Fed.Reg. 72974 (2012).
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SCOTUS Holding EPAs interpretation of the Industrial Stormwater
Rule to only include fixed facilities - not plainly erroneous or
inconsistent, therefore entitled to Auer deference by the Court.
EPA could also have reasonably concluded that further federal
regulation in the area of stormwater run-off related to non-fixed
logging operations would be duplicative and or counterproductive.
Implication Industrial Stormwater rule which lists SIC codes only
covers stormwater from the activities within a facility akin to
manufacturing operations, like fixed sawmills within the logging
SIC 24. Dissents by Roberts, Alito & Scalia portend
re-evaluation of the deference (Auer) given to agency
interpretations of their own rules. Scalia soundly criticizes
faulty logic of EPA and says CWA & plain meaning of regs. makes
logging roads a point source associated with an industrial
activity. Note: also ruled that 2012 Rule did not moot case.
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General Stormwater Permits - Federal In 2008 EPA adopted NPDES
general permit for industrial sources the multi-sector permit. Key
tool is the Stormwater Pollution Prevention Plan (SWPPP) Effluent
limits for pollutants specific for industries covered In 2012 EPA
renewed the 2008 NPDES general permit for discharges from
construction projects, 77 Fed. Reg. 12286. Includes new
requirements that affect construction activity, as defined by 40
CFR 122.26(b)(14)(x) [e.g. a turbidity limit] Requires the design,
installation, and maintenance of erosion and sediment controls to
minimize the discharge of pollutants.
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General Stormwater Permits-Federal In September 2013 EPA
proposed a draft NPDES general permit for stormwater discharge
which would replace the Multi-Sector Permit adopted in 2008 Seeks
to provide the public with greater access to the SWPPP Pavement
wash waters must be treated by control measures Adds effluent
limits to supplement BMPs Likely to go final this year
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Maryland Programs Illustrates Complexity The Maryland
Stormwater Management Act of 2007: Requires environmental site
design to the maximum extent practicable, the revision of State
regulations and County ordinances and a comprehensive process to
review and approve grading and sediment control plans and
stormwater management plans. The Act revised existing stormwater
management requirements (which MDE has used to add to changes to
the erosion and sediment control requirements). Erosion and
Sediment Control Regulation passed in January 2012: Requires the
implementation of environmental site design to the maximum extent
practicable, the revision of State regulations and County
ordinances and a comprehensive process to review and approve
grading and sediment control plans and stormwater management plans.
Model Soil Erosion and Sediment Control Ordinance Published in
February 2012: Guidance provided to assist counties in creating
their own stormwater regulations Stormwater Management Design
Manuel Revised May 2009: Single comprehensive design manual for
engineers and plan reviewers.
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Maryland General Permit for Stormwater Associated with
Construction Activity Subject to public notice and comment to the
Maximum Extent Practicable (MEP). Requires Environmental Site
Design (ESD) At least a 30-day waiting period for MDE authorization
to discharge under the permit. MDs 2009 General Permit incorporates
both CWA requirements & MD land use controls CWA 402(p) point
source limits MD Stormwater law & reg. requirements ESD to the
MEP and Stormwater Plans Local Sediment and Erosion Control
requirements imposed by State Law
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Environmental Site Design Remember that ESD is new to everyone
and that there is room for flexibility and innovative solutions to
unique problems. Dont be afraid to push for something new!
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Complying with Environmental Site Design Use of Green Roofs
Plants as Shingles
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ESD Credits by Increasing the Hydrologic Function of Urban
Turf
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Permeable Pavements
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General Permit for Stormwater Associated with Industrial
Sources Replaces 2008 Permit and Adds Features from EPA 2008
Multi-Sector Permit Comment deadline January 4 th 2012. Included
controversial reduction of impermeable surface obligation. During 5
year life of permit, covered sources need to implement plan to
remove 20% of paved/ impermeable surfaces, find alternative
locations or pay in lieu of fees. Local governments need to approve
alternative location or in lieu of fees. Finalized in November
2013; effective date 1/1/14 Proposes two other controversial
changes: 1.Erosion control features - a) attenuating flow using
vegetative swales and natural depressions; b) restoring riparian
buffers; c) bio- retention cells and d) green roofs. 2.Classifying
Plans and Training as enforceable effluent limits i.e. Good
Housekeeping, Maintenance, Spill Prevention and Response
Procedures, and Employee Training.
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General Permit for Stormwater Associated with Industrial
Sources Basically adopting Environmental Site Design features in
form of retrofit requirements and redefining of planning tools as
effluent limitations to improve the hydrology of the local
watershed by reducing volume of runoff, reducing nutrients,
sediment and other pollutants, and allowing greater groundwater
recharge. These are sediment & erosion control requirements not
CWA discharge permit controls. Confusing if not impermissible
blending.
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MD Rain Tax: Conflict between Large Municipal MS4 &
Industrial Source Stormwater Management In 2012, the Maryland
Legislature added watershed protection & restoration to MD
stormwater law, directing large municipalities (9 counties and
Baltimore City) to adopt a stormwater remediation fee. Md. Code
Ann., Env. 4-202.1. Goal? to aide counties in complying with EPA
TMDL for sediment & nutrients -- imposes costly clean up
measures for all sources within Chesapeake Bay watershed. The
Counties shall set a stormwater remediation fee for property in an
amount that is based on the share of the stormwater management
services related to the property provided by the county or
municipality. Md. Code Ann., Env. 4- 202.1 (e)(3)(i).
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County Interpretation of the Law: Example -Anne Arundel County
Bill 2-13 Interprets State mandate for stormwater remediation fee
to authorize regulation of all properties; ignores based on the
share of the stormwater management services limitation in state
law. Fee/ tax based on area of impervious surface on a property
(e.g. surfaces which prevent water from seeping into the water such
as roofs, driveways or sidewalks). 2,800 sq. ft. of impervious
surface= 1 equivalent residential unit (ERU) 1 ERU = $85
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Result? Double Regulation of Stormwater from Industrial Sources
Properties which treat and discharge stormwater pursuant to an
NPDES permit to waters of the state with no connection to county or
municipality stormwater treatment services, expected to pay. County
laws provide for reduction in fee for such properties; owners
assert county laws violate state law.
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Summary Federal and State Control of Land Use Expanding under
the Guise of Water Quality Protection Stormwater management
considerations a growth area for legal and technical advisors to
developers Recognize that the permit process for construction
projects impacted by wetlands and stormwater regulations will
likely be lengthy and involve multiple agencies. Recognize the
opportunities for creative environmental site design to cut through
the regulatory maze.
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If you would like a copy of this presentation, email me at:
[email protected] Wetland and Storm Water Regulations
Applicable to the Construction Industry