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The Storm Water Log

 

Regulatory, Legislative and Judicial News

By Wendy L. Manley

 

 

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Storm Water Log

 

April 1, 2014

NEW IGP adopted today!!  [no foolin' folks!]  The State Water Board adopted the proposed order circulated in February, along with 9 pages of changes released last Thursday, and a few last minute tweaks. See my summary overview here.

 

March, 2014

EPA Regions 1, 3 & 9 declined to exercise its residual designation authority to designate unregulated commercial, industrial & institutional sites for storm water permit requirements, as requested by petitions from Conservation Law Foundation, NRDC, American Rivers & others.  The agencies cited insufficient data.  Region 1 plans to evaluate specific watersheds to determine whether site-specific information would support such designation.  Had the petitions been granted, presently unregulated sites in these categories (including their rooftops and parking lots) would have been subject to storm water permit requirements.  More on EPA's website:  http://cfpub.epa.gov/npdes/stormwater/petitions.cfm


SWRCB to gain authority over drinking water from Dept. of Public Health.  SWRCB posted the plan to consolidate drinking water and water quality programs under SWRCB as soon as July 2014.  If approved by the legislature, organizing both elements under a single agency is hoped to better connect water quality with the delivery of drinking water, and promote a comprehensive approach to development of community strategies for drinking water, waste water, water recycling, pollution prevention, desalination, and storm water.  See the plan: http://www.waterboards.ca.gov/drinkingwater/

 

March 6, 2014

Final Effluent Limitation Guidelines for Construction - issued by EPA today, formally withdrawing monitoring requirements and the numeric effluent limit for turbidity (stayed in 2011).  Additionally, some minor revisions -- among them the inclusion of a new definition of "infeasible."  This appears to bring to a close, at least for the time being, a regulatory process intertwined with litigation that was set in motion when EPA decided not to issue ELGs for construction in 2004. 

 

February 2014

Final Draft IGP released Feb 19.  Among the changes: the effective date was pushed back to July, 2015; receiving water limitation language has been revised; special training will be required for compliance group leaders; new provisions address facilities that temporarily suspend operations; various tweaking to language related to Exceedance Response Actions.  A redlined version is online:

http://www.waterboards.ca.gov/water_issues/programs/stormwater/industrial.shtml

Comments must be limited to proposed changes since July 19, 2013, and submitted by noon, March 4, 2014 (2 weeks).  Then, tune in for the agency hearing to see if the whole thing turns out to be a masterful hoax when the State Board adopts it on April Fool’s Day.

 

January 13, 2014

GAO tells EPA Expanded Authority & New TMDL Regs are Needed.  In January, the Govt Accountability Office issued a report finding TMDLs lacking in implementation elements and largely ineffective at attaining WQ Stds.  Weak legal authority to compel action from nonpoint sources was identified as a contributing factor.  GAO's recommendation: new TMDL regs and stronger regulatory authority over nonpoint sources are needed to achieve Clean Water Act goals.  http://www.gao.gov/products/GAO-14-80


January 2014

The State just released its Water Action Plan for California, calling for (among other things) an emphasis on incentives & even funding for "multi-benefit projects that promote integrated water management" including storm water permits that emphasize storm water capture and infiltration, which provide both flood protection and groundwater recharge benefits."  Have a look:  http://resources.ca.gov/california_water_action_plan/

Another round: LA Flood Control District files petition in U.S. Supreme Court for review of 9th Circuit's August, 2013 decision finding the District liable for monitoring data that exceeded permit standards.

 

November 2013

The Innovative Stormwater Infrastructure Act of 2013 was introduced in Congress to promote green infrastructure.  It would create 3 to 5 "Centers of Excellence" to conduct research, establish industry standards for innovative infrastructure, develop educational curricula and provide training, develop testing protocols to evaluate infrastructure performance, and compile an electronic clearinghouse of information, among other things. In addition, EPA would provide grants for planning & implementation of innovative stormwater control infrastructure projects.  Watch: S. 1677 (Udall) and HR 3449 (Edwards).

 

September 2013

EPA released a draft Multi Sector General Permit (MSGP), the federal industrial storm water permit.  It applies in few states, but sets the tone and direction for state permits.  The extended comment deadline is Christmas Eve.  More: http://cfpub.epa.gov/npdes/stormwater/msgp.cfm

SWRCB adopts new permit fees.  Fees go up 32%, except IGP NEC drops to $200.  http://www.waterboards.ca.gov/resources/fees/docs/fy13_14_fee_schedule.pdf

 

August 2013

Ninth Circuit decision in NRDC v. LA Flood Control Dist finding the District liable for monitoring data exceedances of standards in the permit.

 

July 2013

The SWRCB posted a “Final Draft” Industrial Storm Water Permit on July 19.  The agency also announced two informal web-based workshops on August 9 and 14, and a hearing in Sacramento on August 21.  As of August 19, the written comment deadline has been extended to September 12 at noon.   At present, staff hope to submit the final permit to the board for adoption in January, 2014, to replace the current, 1997 permit.  The proposed Order provides for an effective date of January, 2015, so the regulated community will have ample time to digest the 200 page document.  As always, check the SWRCB’s website for updates and changes to these dates. Click here for their website.  For a short summary of the new requirements, click here.


April 2013

Construction ELGs:
On  April 1st (no joke), EPA proposed rule changes to formally remove turbidity NELs, add a definition for infeasible, & tweak several provisions related to (mostly) controlling sediment discharges from construction sites.  Comments due by May 31.  See the notice here:
http://www.gpo.gov/fdsys/pkg/FR-2013-04-01/pdf/2013-07097.pdf

 

March 2013

Vineyard Waiver dropped, to be replaced by General WDRs:
On March 8, the SF Regional Water Board announced it would no longer pursue the Vineyard Waiver, citing staff turnover and comments.  In addition to suggested revisions, some commenters complained of inadequate CEQA consideration.  The agency says it intends to adopt General WDRs instead.  Follow developments on the agency website.

 

February 2013

Vineyard Waiver Adoption Hearing March 13 CANCELLED
SF Regional Water Board was poised to adopt the new Vineyard Waiver for Napa and Sonoma watershed on March 13, 2013, but announced cancelation February 11.  The comment period ended February 1.  Follow developments on the agency website.

 

New MGP The SWRCB adopted a new MGP on Tuesday, February 5. The permit is the second generation permit for small MS4s, replacing the first permit adopted in 2003.  This rendition has new requirements and different provisions for traditional and non-traditional MS4s.  See my summary here.

 

January 2013

Supreme Court Ruling in NRDC v. Los Angeles Flood Control District.  On Jan 8, the US Supreme Court unanimously reversed the Ninth Circuit’s 2011 decision.  Adhering to its prior decision in South Florida Water Management District v. Miccosukee Tribe, the high court held that water flowing from an improved portion of a navigable waterway into an unimproved portion of the very same waterway is NOT a "discharge of pollutants" under the CWA.  The decision is narrow and does not resolve concerns about receiving water limitation language and the iterative process in municipal storm water permits.   

Virginia DOT v. EPA. On Jan 3, a U.S. District Court invalidated EPA's TMDL for storm water flows, adopted as a surrogate for sediment. The court ruled that the CWA does not authorize EPA to establish TMDLs for storm water flows since storm water is not a pollutant. The case raises interesting questions about hydromodification restrictions in California MS4 permits.

LA parcel fee to fund storm water put over.  In response to substantial opposition, the LA Board of Supervisors declined Jan 15 to put on the ballot a measure to raise over $275 million a year to fund storm water within the county.  The effort stems from AB 2554 which, in 2010, authorized the Flood Control District to collect a parcel-based fee for storm water projects.  

 

November 2012

EPA released new Recreational Water Quality Criteria for pathogens (bacteria) in recreational (both coastal and inland) waters just after Thanksgiving.  The replacement of the 1986 criteria established under the CWA was prompted by the BEACH Act of 2000 and a court order.  The new criteria allow use of a faster analytical method and includes Beach Action Values for public notice programs, among other things.  The RWQC are recommendations to guide states in setting standards for waters used for water-contact recreation.  For more information, visit the EPA's web page on Recreational Water Quality Criteria

Receiving Water Limitation Language Reconsidered by SWRCB: On Nov. 20, the SWRCB held a workshop to take comments on an issue paper offering alternative approaches to revised Receiving Water Limitation language in municipal storm water permits.  The RWL review was prompted by Los Angeles County Flood Control District v. NRDC, which held the flood control district liable for exceedances of receiving water quality standards.  Under NRDC, MS4 permittees are immediately and unavoidably in noncompliance (and more vulnerable to third party lawsuits) when their discharge exceeds water quality standards at the outfall, regardless of their efforts to address such exceedances.  See my article "State Water Board Considering Revision of Receiving Water Limitations in Municipal Storm Water Permits" here.  For more information, visit the SWRCB's website.

Storm Water Regulatory Calendar Update: The SWRCB released the revised draft MGP on November 16, 2012, and pushed off adoption to February 5, 2013. The agency will accept comments on the proposed revisions only, until noon Dec. 17 (30 days).  On Nov. 30, the SWRCB announced a workshop on January 8, 2013.  the The proposed revisions address monitoring, implementation of existing management plans at RWQCB direction, post-construction requirements including incorporation of Central-Coast region requirements, hydromodification and LID, program effectiveness assessment, annual reporting, TMDLs and dispute resolution, among other things. The SWRCB's response to comments on the previous draft are expected to be posted November 28, 2012.  For more information, here's the SWRCB webpage for the Phase II Small Municipal Separate Storm Sewer System Program.

The San Francisco Regional Board released a tentative order for the Conditional Waiver of WDRs for Vineyards in Napa and Sonoma watersheds.  This is a NEW program, requiring vineyards to develop & implement Farm Water Quality Plans to reduce sediment, pesticides and nutrients in their storm runoff.  The Waiver would have far reaching effects on vineyard operations, management and replanting.  As of December 13, the comments deadline has been extended to February 1, 2013 (5:00 p.m.) and the hearing for adoption is now scheduled for March 13, 2013 at 9:00 a.m.  For more information, visit the State's web page dedicated to the Conditional Waiver Program for Vineyard Facilities in the Napa River and Sonoma Creek WatershedsMeanwhile, reissuance of the IGP by SWRCB has been slowed by the MGP; it now appears another draft may not be released until next spring.


Regulatory schedules are subject to change.  Please check the SWRCB and RWQCB websites for the latest information and schedules! 

 

October 2012

SWRCB review of Receiving Water Limitations in Municipal Storm Water Permits:  Following the 9th Circuit decision in NRDC v. County of Los Angeles, the SWRCB is reviewing receiving water limitation language in MS4 permits.  The agency released an Issue Paper entitled, "Municipal Storm Water Permit Receiving Water Limitations." The SWRCB is taking written comments on the Issue Paper until noon, November13, 2012, and will hold a workshop on November 20, 2012 at 9:00 am.  


September 2012

Caltrans SW Permit: SWRCB adopted Caltrans’ statewide storm water permit on September 19, 2012.  For information visit the SWRCB's web page regarding Caltrans.  

 

August 2012

Draft IGP Update: The SWRCB extended the comment deadline 30 days, to noon, October 22.  In addition, the agency scheduled a public hearing on October 17 to receive oral comments, and two more workshops, September 5 and 24, all in Sacramento. The latter workshop will focus on training requirements. The hearing will be webcast and the workshops available by Webex, if you register in advance.  For more information visit the SWRCB web page regarding Industrial Storm Water.

 

July 20, 2012

Draft IGP Out for Public Review: making progress toward reissuing a new industrial storm water permit, now a decade overdue.  There are some significant changes in the draft currently out for public review.  For those not following the play-by-play or planning to read 200 pages before they’re final, see my short summary in "It's Out: The Latest Draft Permit For California Industrial Storm Water Dischargers."

CGP amended in response to the court's invalidation of the NELs.  The revisions essentially transformed the NELs into receiving water monitoring triggers.

An Ounce of Prevention.  CA Dept of Pesticide Regulation new regs identify pesticides with a high potential to contaminate surface water in nonagricultural settings, and require pest control applicators and maintenance gardeners to take actions to minimize that contamination.  DPR Regulation No. 11-004.

 

June 30, 2012

Storm Water Cases Go Up to the US Supreme Court: The highest court agreed to review two Ninth Circuit storm water decisions.  In Northwest Environmental Defense Center v. Brown, the court decided storm water runoff from forest roads is subject to CWA permit requirements.  In NRDC v. County of Los Angeles, the court found the county flood control district responsible for pollutants in storm runoff released to the LA and San Gabriel Rivers.

 

June 29, 2012

CGP Modification Update:  The SWRCB has posted a revised proposal to modify the CGP.

See more at the Water Board's website.

 

May 19, 2012

Draft MGP Out for Public Review:  The SWRCB released a draft permit for small municipalities yesterday.  Workshops will be held in June, and comments are due July 23 at noon.  The Board will take oral comments at a hearing August 8, and tentatively plans to adopt the new permit in October 2012.

 

April 2012

Revised Draft CalTrans Permit Released for Public Comment: Comments due June 26, noon.  Tentative adoption date: September 19, 2012.

See more at the Water Board's website.

 

April 2012

SWRCB proposes to modify the CGP The SWRCB has proposed to modify the CGP to convert invalidated NELs to receiving water monitoring triggers.  Comment deadline May 14 at noon. 

See more at the Water Board's website.

 

January 2012

CGP NELs Invalidated: Just as 2011 came to a close, a Superior Court invalidated the numeric effluent limits in the CGP (California Building Industry Ass’n et al. v. SWRCB).  ATS NELs remain in effect, but NELs for Level 3 sites are no longer enforceable.  Watch for a proposal from the SWRCB to modify the permit.

 

October 2011

 New Storm Runoff Requirements for Vineyards in the Works:  Framed as a permit waiver, the requirements aim to reduce sediment is storm runoff to improve the water quality of Sonoma Creek and the Napa River.  The RWQCB is preparing a draft for public review. 

Read more in the article "Stringent Requirements for Vineyards on the Horizon to Address Water Quality in the Napa and Sonoma Watersheds," by Wendy Manley.

 

August 2011

Construction ELGs - The Latest in the EPA Saga: EPA has withdrawn its proposed rule that would have revised the enforceable numeric effluent limits for turbidity in runoff from construction sites. 

 

November 2010

SWRCB modifies the CGP Modification allows shift of permit responsibility from property owner to project proponent.  

Read more in the article "State Water Board Modifies the Construction General Permit," by Wendy Manley. 

 

October 2010

Storm Water Concerns to be Addressed During Project Design.  Read more in the article "Storm Runoff - A Bigger Issue for Project Design," by Wendy Manley.

 

February 2010

EPA Looks to Revamp Federal Storm Water Rules.  Read the article "Expansion of Storm Water Regulation Underway," by Wendy Manley.

 

October 2009

SB 310 signed by the Governor:  Authorizes public MS4s to develop a watershed improvement plan to address major sources of pollutants in receiving water, storm water, & urban runoff, and impose fees to pay for it.  Regional Boards must approve such plans if they facilitate compliance with water quality requirements.   

Read the bill:  SB 310 [PDF] 

 

Those Pesky Acronyms  (sure save a lot of space, though!)

ATS Active Treatment Systems
BMP Best Management Practices
CWA Clean Water Act
ELG Effluent Limitation Guidelines
CGP Construction General Storm Water Permit
IGP Industrial General Storm Water Permit
NEL Numeric Effluent Limit
MGP Municipal General Storm Water Permit (for small MS4s)
MS4 Municipal Separate Storm Sewer System
RWQCB Regional Water Quality Control Board
SWRCB State Water Resources Control Board
SB Senate Bill
SW Storm Water
WDRs Waste Discharge Requirements