by Diane G. Kindermann Henderson
Recent state and federal changes to stormwater control requirements have increased the number of development projects subject to permitting requirements and have drawn additional localities into regulation of stormwater runoff.
The design and implementation of effective stormwater quality protection measures are the subject of a recent release of four handbooks by the California Stormwater Quality Association, a consortium consisting of several local governments, Caltrans and the State Water Resources Control Board (“SWRCB”). The Stormwater Best Management Practice Handbooks (January 2003) provide a general framework for choosing and implementing Best Management Practices (“BMPs”) throughout the stages of a project to reduce or eliminate the discharge of pollutants and runoff. The handbooks are divided into the following subject areas: New Development and Redevelopment, Construction, Industrial and Commercial, and Municipal.
Implementation of the Federal Clean Water Act (“CWA”) (33 U.S.C. § 1251 et seq.) and the state Porter-Cologne Act (Cal. Water Code § 13000 et seq.) required stormwater quality protection measures for new development and redevelopment, as well as existing commercial and industrial operations.
Section 402 of the CWA established the National Pollutant Discharge Elimination System (“NPDES”) program to regulate discharges into navigable waters of the United States from point sources. The Porter-Cologne Act is the State’s comprehensive water quality control law and is a complete regulatory program designed to protect water quality and ensure its beneficial use. The Legislature amended the Porter-Cologne Act to give California the authority and ability to administer the NPDES permits program. In 1987, section 402 was amended to require the regulation of storm water runoff under the NPDES program.
Stormwater Management Plans (“SWMPs”) are the basis for California cities’ and counties’ stormwater management programs. Stormwater Pollution Prevention Plans (“SWPPPs”) or Stormwater Pollution Control Plans (“SWPCPs”)are the basis for site-specific runoff control activities. The management plans contain information on the specific pollutants of concern, such as sediment, nutrients, bacteria and viruses, oil and grease, metals, pesticide, organic and vector production. These plans also summarize activities and facilities that are required to properly control stormwater runoff, and provide a mechanism for monitoring, reporting, and stormwater management program evaluation.
Development/Redevelopment and Industrial/Commercial Activities
Phase I of the implementation of the NPDES program, which applies to MS4s (small municipal separate storm sewer systems serving a population of over 100,000), construction sites greater than 5 acres, and certain industrial and commercial activities, requires individual stormwater permits. Developers are required to implement conditions of the permit and cities are required to develop and implement a SWMP to address runoff on a citywide basis. As of this year, Phase II communities (those under 100,000) and construction sites between 1 and 5 acres, are required to satisfy six control measures covered under the General Permit which include: (1) public education and outreach, (2) public participation/involvement, (3) illicit discharge detection and elimination, (4) construction site runoff control, (5) post-construction runoff control, and (6) pollution prevention/good housekeeping. Individual permits and general permits are the only permitting options allowed by federal regulations. SWRCB elected to adopt a statewide general permit for Small MS4s to efficiently regulate numerous storm water discharges under a single permit. Other relevant regulatory programs include CWA Section 404 Dredge and Fill Permits, Section 401 Water Quality Certification, Endangered Species Act, and Total Maximum Daily Loads (“TMDLs”).
The Development and Redevelopment handbook discusses the regulatory environment for stormwater management, permit requirements, integration of BMPs into common site features, and how to develop a SWMP. The handbook also provides guidance on complying with the various regulations and presents helpful checklists, worksheets, and fact sheets specific to each type of BMP. The fact sheets detail planning methods and concepts to be considered by developers during the design phase of the project. Retrofitting BMPs after the fact is much more costly and time-consuming than if they were integrated into the planning and design phases of the project.
Two major types of BMPs exist: “Source Control BMPs” and “Treatment Control BMPs.” Source control measures prevent contact between potential sources of water pollution and stormwater, and may be structural or non-structural. Treatment Control BMPs involve filtering or removing pollutants from stormwater after contamination, and are structural in nature. Structural management practices are those that involve construction of stormwater infrastructure or design solutions to address runoff. Non-structural BMPs include processes, procedures or scheduling of activities to prevent pollutants from entering stormwater.
For development and redevelopment, Source Control BMPs address site design, construction materials, and design of problem areas on a development site, such as a refueling station. Construction materials, such as alternatives to impervious pavement – pervious concrete or crushed aggregate for designated parking lots or driveways, for example – may be used to control runoff at its source.
Source Control BMPs for commercial or industrial activities offer guidelines concerning non-stormwater discharge management (such as waste dumping), vehicle and equipment management, material and waste management, and building and grounds management. BMPs are categorized by activity, such as vehicle and equipment fueling. Vehicle and equipment refueling BMPs reduce discharge by maintaining off-site fueling stations, educating employees of pollution prevention measures, and focusing activities on oil or gas spill containment. BMPs related to various other activities are also discussed in detail in the handbooks.
Treatment Control BMPs fall into one of two groups: public domain BMPs (controls that are available to the general public) and proprietary, or manufactured, BMPs (commonly patented devices available for purchase from a vendor). The five major categories of treatment control BMPs are: (1) infiltration, (2) detention and settling, (3) biofiltration, (4) filtration, and (5) flow through separation. While the public domain BMPs are available for each category, proprietary BMPs are limited to detention and settling, filtration, and flow through separation. Public domain BMPs include infiltration trenches, infiltration basins, retention/irrigation, wet ponds, constructed wetlands, extended detention basins, vegetated swale, vegetated buffer strips, bioretention, media filters, water quality inlets, and other multiple systems. Private/manufactured BMPs consist of wetlands, media filters, wet vaults, vortex separators, and drain inserts. The handbooks provide Treatment Control BMP fact sheets which cover the advantages and limitations of each control, as well as design guidelines, maintenance and cost.
Monitoring, reporting and program evaluations are important aspects to development and redevelopment, and are required under the state Industrial General Permit. The handbooks supply a set of guidelines to aid in record keeping, conducting monitoring procedures, training appropriate personnel, and performing annual site evaluations. A long-term maintenance program is provided concerning industrial and commercial activities including information on maintenance agreements, public funding sources, and enforcement options.
State, federal, and, increasingly, local regulations intend to prevent not only long-term pollutant loading, but also temporary sediment loading attributable to construction activity. The following six construction BMP categories are discussed in detail in the Construction handbook to aid in choosing the appropriate solution to meet BMP objectives: Erosion Control, Sediment Control, Wind Erosion Control, Tracking Control, Non Stormwater Management, and Waste Management and Materials Pollution Control. Important considerations are the design of stormwater management programs; activities and facilities; the cost and feasibility of various stormwater management strategies; effectiveness of different types of BMPs; long-term maintenance; and any unintended effects. Each BMP category contains specific control BMPs as well as fact sheets that offer the BMPs’ objectives, purpose, suitable applications, limitations, implementation, appropriate materials, and cost.
A construction General Permit has been established by the SWRCB that can be applied to most construction activities in the state. Projects subject to the General Permit include those that disturb one acre or more of earth, or projects that are smaller than one acre in size but are part of a larger development plan. The property owner, who is ultimately responsible for General Permit compliance, is required under the General Permit to prepare a SWPPP. The SWPPP shall apply to all areas that are directly affected by the construction activity, including but not limited to construction staging areas, material borrow areas, and access roads.
The SWPPP considers water pollution control during construction. Before any construction activity begins on the project site, the SWPPP must be completed and BMPs must have been integrated into the project design. The handbook addressing construction provides guidance on SWPPP implementation with discussions on staff training, site inspections, BMP monitoring and maintenance, and stormwater pollution control documentation. It also contains a SWPPP template which gives instructions on how to create and satisfy this requirement.
Recent regulatory changes have resulted in more projects and more communities being subject to stormwater quality control programs. Stormwater quality control requirements are the subject of ongoing litigation in California, and the attention to these issues is likely to become more acute in the future. The recently released Stormwater Best Management Practice Handbooks describe the various regulations that must be met, and offer a range of options for developers, property owners, and municipalities for achieving compliance.
If you are interested in gaining a better understanding of this material, or need advice on complying with Stormwater Best Management Practices, we welcome you to contact us.
Diane Kindermann Henderson is a partner with Abbott & Kindermann, LLP in Sacramento and was assisted by Heather Gerken, a summer law clerk at the same firm. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.