Phase II School District Questions
DRAFT 10/17/02
The following questions and answers are directed at school districts and local governments [i.e.,
cities, villages, and townships (CVT)]. In practice, any public institution such as a college or
university; or state or federal institution such as a hospital, prison, or military installation; will be
handled in the same manner as a school district.
The answers given here are based on draft Phase II rules and permits, and are subject to change.
Q1.
What do the two permit options say regarding school districts? Are the two permit
options identical in these requirements?
Answer:
The first two following paragraphs are in both draft MS4 general permits
(watershed and jurisdictional). The third paragraph (bold) is only in the jurisdictional permit.
Nested Drainage System Agreements
A city, village, or township (primary jurisdiction) permittee may have, within its political
or territorial boundaries, smaller "nested" drainage systems owned or operated by public
bodies such as school districts, or county, state, or federal agencies. If the primary
jurisdiction and the nested jurisdiction agree to cooperate in carrying out the
responsibilities for control of the drainage system, the nested jurisdiction does not need to
apply for a separate storm water drainage system permit. Otherwise, the nested
jurisdiction shall apply for a permit.
The primary jurisdiction shall submit to the Department: 1) the name and general
description of each nested jurisdictional area or drainage system for which a cooperative
agreement has been reached to carry out storm water discharge responsibilities; 2) the
name of other nested jurisdictional areas or drainage systems within their political or
territorial boundaries for which they have information that indicates a separate storm
water drainage system permit may be required; and 3) documentation of its efforts to
notify the nested jurisdictions that they need to either get their own permits or work
cooperatively under one permit. The primary jurisdiction shall be responsible for
assuring compliance with this general permit for those nested jurisdictions with which
they have entered into an agreement and listed as part of the application for this permit.
A primary jurisdiction is responsible to comply with this general permit for all
drainage system(s) within the regulated areas inside its political or territorial
boundaries, except where notification is received under this part. Regulated areas
include all “urbanized areas” recognized by the U.S. Bureau of Census and any
other areas designated by the Department.
Q2.
What is the CVT’s responsibility to the school district? (e.g. notification) Are there any
required ways of notification?
Answer:
As stated in the permit requirement provided above, the CVT shall notify the
DEQ of all nested jurisdictions (e.g., school districts) with which they have reached a
cooperative agreement to work under one permit, or which they believe will apply for their own
permits. CVTs should not approach the Department with a request that a school district apply
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for its own permit without first notifying the school district of its intentions. Notification to the
school district will provide the district with a chance to enter into discussions with the CVT and
seek a mutually acceptable approach.
There is no notification form designed for the CVT to provide notice to the school district. The
method of notification is left up to the CVT.
Following the notification to the school district, the CVT is required to notify the Department if
it is aware that the school will be seeking its own permit coverage or if there will be a
cooperative agreement. The required way of notification is through the permit application, but
this may not be the final notification because some details may still need to be worked out
between the CVT and the school district. Final notification shall be included with the first
annual report.
Q3.
When does the CVT’s responsibility end and how do they convey this to MDEQ? (e.g.
convey to DEQ at application time that the community’s application doesn’t include the school
district’s property).
Answer:
A CVT shall comply with the Phase II rule. The draft rule says:
A city, village, or township shall comply with the terms and conditions of its
national MS4 permit in all areas within its political or territorial boundaries for
which a permit application is required ……….
This rule applies to all MS4s within the CVT’s boundaries except those where another public
body applies for coverage. The rule further states that the school district has a responsibility to
apply for a permit if they and the CVT cannot reach a cooperative agreement to cover the school
district’s MS4 under the CVT’s permit. Rule 2161(2) reads as follows:
An MS4 owner or operator other than a city, village, or township may cooperate
with a permitted MS4 owner or operator so that the terms and conditions of the
national permit may be met by the permitted MS4 owner or operator for the other
owner or operator’s municipal separate storm sewer system or systems in the
regulated area. In this case, the MS4 owner or operator that is not a city, village,
or township does not need to apply for a national permit. A MS4 owner or
operator, that is not a city, village, or township, that cannot reach a cooperative
agreement with the permitted MS4 owner or operator shall apply for a national
permit for the MS4s it owns or operates.
Because of these rules, there is incentive for the CVT to work with nested jurisdictions and
assure that each nested jurisdiction has the appropriate permit coverage within the CVT.
Q4.
What if the local community doesn’t want to have the schools included in their permit? Would
they be “forced” to include them if the school district would like to be covered by the community?
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Answer:
No, the CVT will not be forced to cover the school district under its permit. The
draft rule requirement shown in #3, above, says that a cooperative agreement is needed between
the CVT and the school district in order for the school district to avoid needing a permit. Lack of
agreement on either side could lead to the need for the school district to apply.
Q5.
If the school district is covered by the CVT, what is meant by MDEQ that the school
district must “cooperate” with the CVT? Beyond participation in the subwatershed planning
effort, does the school need to follow the CVT’s storm water ordinances, natural resources
protection ordinances, installation of Best Management Practices (BMPs), etc. as noted in the
community’s Storm Water Pollution Prevention Initiative (SWPPI)?
Answer: The cooperation must be to the extent that the CVT could comply with its permit on
school properties where there are MS4s. This could mean that the school district would allow
the CVT onto school property, would agree to follow applicable ordinances for storm water
controls on areas of new development or redevelopment, assist in public education efforts, and
agree to implement any other actions necessary to meet watershed goals. Funding by the school
district may also be part of the cooperative agreement.
Q6.
How does it work if the school district is in more than one community and more than one
subwatershed? Would the school district participate in each subwatershed group that is within its
jurisdiction? If there is a specific development project by the school district, would they follow
the SWPPI requirements (e.g. storm water ordinance) of the community in which the new
building would be built?
Answer:
There are two possible answers, depending on whether the school district chooses
to get its own permits or cooperate on the permits held by the local units.
1. If the school district chooses to have its own watershed permit or jurisdictional permit, it
could have one permit to cover its MS4s on multiple campuses. Under the watershed permit,
the school district may choose one or two primary watersheds in which to participate as a full
partner in the planning process (sitting on steering committees, attending meetings, etc). For
the remaining watersheds, the school district must still share information pertaining to its
contributions to the watersheds. It will be required to review and adopt the goals developed
for these other watershed plans and incorporate actions for achieving those goals into its
SWPPI. The school district can develop one SWPPI that addresses all of the goals of the
various watershed plans within its jurisdiction.
If the school district obtains coverage under its own jurisdictional permit, then it would not
need to participate in any watershed planning activities. Under either the watershed or the
jurisdictional permit, the school would be required to develop its own controls to deal with new
development and redevelopment issues consistent with permit requirements, and watershed
goals if applicable. It could opt to follow local ordinances, but would not be required to.
2. Where the school chooses to cooperate with the CVT and not apply for its own permit, the
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Department would prefer that school representatives be involved in subwatershed planning
activities where it operates MS4s, but this can’t be mandated. By involvement in the
subwatershed planning process, schools would have a better understanding of what the goals
of the watershed plan are and what is necessary to meet those goals. The school district could
play an important role in helping the environment and helping the local units comply with
their permits.
Q7.
Would all Phase II requirements apply to all school property or just certain school
property? (e.g. “campus” vs. a single building). Who would determine which school properties
need to comply? Would any development or redevelopment of school property that disturbs over
1 acre be subject to Phase II issues?
Answer:
The Phase II requirements would only apply to certain school property. School
properties subject to permitting would be those with “systems”. Single buildings (e.g.
elementary schools) generally have a few catch basins but not systems. If they don’t have
systems they do not need MS4 permits, whether they are existing schools or are new projects that
disturb more than one acre of land.
Federal and state definitions for “system” are somewhat subjective. Both the federal and state
rules say that “the term (i.e., system) does not include separate storm sewers in very discrete
areas, such as individual buildings” (parentheses added). Under the rules the DEQ has some
flexibility to make final decisions on this, but the DEQ suggests that the school districts avoid
third party liability by taking a close look at their properties and making good faith efforts to
determine which areas are served by systems and need permits.
In general, if there is a network of four or more storm sewer pipes, ditches or other conveyances
that converge to a collector or other central location, and this subsequently discharges to waters
of the state or another MS4, this will be considered a system. Such a network would not likely
be contained in a very discrete area.
If permit coverage is necessary, then new development or redevelopment projects that are one or
more acres in size are subject to the post construction controls under the jurisdictional permit.
There is no minimum project size under the watershed permit. The watershed goals will help
determine when post construction controls are needed.
Construction activities that disturb one acre or more are subject to local soil erosion control and
NPDES permit by rule requirements.
Q8.
Who would be responsible if the school district is under the community permit, but
doesn’t meet certain permit obligations?
Answer:
The permittee is responsible.
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