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
Presentation Will Address:
• Part 1 - Federal and Maryland wetlands protection
programs.
• Part 2 - Federal, Maryland and local sediment and
stormwater control programs.
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.
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 don’t fall under federal
jurisdiction.
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 Court’s 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– EPA and USACE issued draft guidance on Identifying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.)
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.
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
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.
Permitting Goal for Construction in Wetlands Area: No
Net Loss: How?
Avoidance
• Eliminate alternative locations
Minimization
• Design around or under wetlands
Mitigation
• Replace wetlands impacted
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.
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
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.
General Regulatory Timeline for Permit
Processing
Part 2 – Sediment & Stormwater Management
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.
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.
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.
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.
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
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).
Features of Municipal Separate Stormwater Systems
Permits
Minimum Control Measures
Public Education and Outreach
Public Participation/Involvement
Illicit Discharge Detection and Elimination
Control Construction Site Runoff
ControlPost Construction Runoff
Pollution Prevention/Good Housekeeping
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?
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)
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 9th 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).
SCOTUS Holding
•
EPA’s 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.
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.
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
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.
Maryland General Permit for Stormwater Associated with
Construction Activity
At least a 30-day
waiting period for
MDE
authorization to
discharge under
the permit.
Requires
Environmental
Site Design (ESD)
to the Maximum
Extent Practicable
(MEP).
Subject to public
notice and
comment
CWA §402(p) point source limits
MD’s 2009 General
Permit incorporates
both CWA
requirements & MD
land use controls –
MD Stormwater law & reg.
requirements – ESD to the MEP and
Stormwater Plans
Local Sediment and Erosion Control requirements
imposed by State Law
Environmental Site Design
•
Remember that ESD is new to everyone and that there is room for flexibility and
innovative solutions to unique problems. Don’t be afraid to push for something new!
Complying with Environmental Site Design
• Use of Green Roofs
– “Plants as Shingles”
ESD Credits by Increasing the Hydrologic
Function of Urban Turf
Permeable Pavements
General Permit for Stormwater Associated with Industrial
Sources
Replaces 2008 Permit and Adds Features from EPA 2008 Multi-Sector
Permit
• Comment deadline January 4th 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.
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.
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. §4202.1 (e)(3)(i).
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
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.
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.
Wetland and Storm Water Regulations
Applicable to the Construction Industry
• If you would like a copy of this presentation, email me
at:
thenderson@richlaw.com