IMLA New England Regional Land Use
Seminar
June 21, 2012
Work Session 2. Storm Water
Management
James N. Katsiaficas, Esq.
ATTORNEYS & COUNSELORS AT LAW
P.O. BOX 426
PORTLAND, MAINE 04112
www.perkinsthompson.com
I.
Overview of Presentation.
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A. The Federal Clean Water Act and stormwater
regulation;
B. How the Clean Water Act and its stormwater
requirements are affecting municipal governments;
C. How municipalities are meeting those requirements;
and
D. How, as a part of meeting those stormwater
requirements, some municipalities are restoring “urban
impaired streams.” Example of collaborative
implementation of a restoration plan for an urban
impaired stream – Long Creek.
II. The Federal Clean Water Act
and Stormwater Regulation.
A.
The Federal Clean Water Act (CWA, 33
U.S.C. § 1251 et seq.) Generally.
1. Prohibits discharge of any pollutant by any
person except in accordance with CWA.
2. Regulates discharges from “point sources.”
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Dischargers of pollutants to waters must
obtain NPDES permits.
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States to adopt water quality standards.
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States to prepare priority ranking of
impaired waters “303 (d) list”).
II. The Federal Clean Water Act
and Stormwater Regulation.
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3. “Wet Weather source” runoff pollution.
Regulation of industrial activities,
construction activities and municipal separate
storm sewer systems stormwater discharges.
Phase I Stormwater Discharges (MS4
municipalities with 100,000 or greater population,
larger scale industrial and construction activities
over 5 acres).
Phase II Stormwater Discharges (Small
MS4 municipalities, industrial activities and
construction activities over 1 acre).
II. The Federal Clean Water Act
and Stormwater Regulation.
4. Residual Designation Authority - EPA and
delegated state authority to designate additional
discharges for NPDES permitting.
5. CWA administration and enforcement
authority, delegation.
6. State water laws.
7. CWA Enforcement.
II. The Federal Clean Water Act
and Stormwater Regulation.
B. CWA Administration and Municipal
Government Issues.
1. Municipal Stormwater Permits
a. MS4s
b. Small MS4s, General Permit process
2. Combined Sewer Overflows
3. Nutrient Numerical Criteria
4. Stormwater Utilities/Fees
C. Urban Impaired Streams.
III. Long Creek Watershed
Example.
A.
Background.
1. Long Creek - stream, four primary branches,
seen subwatersheds, covers 3.45 sq. mile area ( acres)
2. Was forest and farm land with swimming and
fishing in stream; now a commercial and retail destination
(Maine Mall) along with airport and highways.
3. Urban land cover increased by 36% 1952-1995.
4. Fails to meet Maine Class B and C water quality
standards – low dissolved O2, high suspended solids, high
levels of heavy metals (zinc, lead, and copper) and
impaired habitat.
III. Long Creek Watershed
Example.
III. Long Creek Watershed
Example.
B. The Long Creek Restoration Project.
1. Watershed includes over 100 properties with
impervious area of 1 acre or greater.
2. By 2007, apparent action needed to restore
stream or else citizen suit could be filed. Facilitator led
meetings of stakeholders: landowners, DEP, EPA
Maine DOT and Turnpike Authority, and environmental
groups. Once general agreement reached, CLF filed
petition with EPA asking it to exercise RDA authority to
designate Long Creek as urban impaired stream and
require NPDES permitting.
III. Long Creek Watershed
Example.
B. The Long Creek Restoration Project.
3. Restoration Plan issued July, 2009; proposed
three tiers of BMPs based upon cost-effectiveness
4. Components include: stream bank and instream restoration; new and retrofit BMPs; increased
vegetation for shading, erosion control; “good
housekeeping”; and education and land use
ordinance amendments.
III. Long Creek Watershed
Example.
B. The Long Creek Restoration Project.
5. Implementation of Restoration Plan.
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2009, Governing Structure created: Interlocal
Agreement and Maine non-profit incorporation –
Long Creek Watershed Management District.
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Participating Landowner Agreement
negotiated with public an private landowners.
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DEP issued General Permit – landowners had
election to apply for individual permits or submit
Notice of Intent under General Permit; EPA issued
RDA designation.
III. Long Creek Watershed
Example.
B. The Long Creek Restoration Project.
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6. Cost and time frame:
Estimate 10 years and approximately $14
million to implement Restoration Plan and meet
State water quality standards.
Initial assessment $3,000 per acre of
impervious area.
Currently, 93% of acreage subject to RDA is
under Agreement with LCWMDA
Summary
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Increasing demand on municipal governments
to regulate stormwater.
Stormwater regulation may require new
approaches to fairly share costs of regulation
across residential, commercial and industrial
sectors.
Stormwater regulation may impose additional
responsibilities on municipalities such as urban
impaired stream restoration.
Collaborative approaches and public-private
responses may be cost-effective ways to regulate.