February 2009, Vol. 21, No.2

Stormwater Report: Bold, Complex, Controversial, and Important

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In its review of the U.S. Environmental Protection Agency (EPA) national stormwater program, the U.S. National Academies’ National Research Council (NRC) proposes dramatic change. Chiefly, it says that oversight of stormwater discharges would be better placed at the municipal level in a watershed-based permitting structure.

According to the EPA-commissioned NRC report Urban Stormwater Management in the United States, released in October, watershed-based permitting will make EPA’s stormwater program more effective, and municipalities are the natural lead “because they are the center of land-use decisions throughout the nation.” The report also recommends that cumulative stormwater flow quantities within a watershed be managed under the program, which is a substantial change, considering that stormwater pollutants currently are addressed on a permit-by-permit basis.

Flaws of Current Program
The report, which took the volunteer-based NRC committee nearly 2 years to complete, addresses what the committee saw as major flaws to the current permitting structure. According to the report, “EPA’s current approach to regulating stormwater is unlikely to produce an accurate or complete picture of the extent of the problem, nor is it likely to adequately control stormwater’s contribution to waterbody impairment.”

The report notes that statistics on state program implementation, discharger compliance, and permits with total maximum daily load (TMDL) requirements are “uniformly discouraging.”

The report also cites administrative disadvantages to EPA’s existing program, describing it as “piecemeal” and saying it “falls short” because of separate permitting for municipal, construction, and industrial activities that expire at different times, are not designed for long-term operation of stormwater controls, and do not cover all discharges.

“We look at a lot of water quality problems around the country, and we’re not even solving them,” said Tom Schueler, coordinator at the nonprofit Chesapeake Stormwater Network (Baltimore) and an author of the report.

“It’s too siloed,” said Charles Logue, director of regulatory affairs for Clean Water Services (CWS; Hillsboro, Ore.), of the current stormwater program. Logue, whose agency manages wastewater and stormwater for 12 cities in urbanized Washington County, Ore., under the first watershed-based permit in the country (February 2004), has long been a proponent of watershed approaches and presented to the NRC committee.

“Everyone is implementing their strategy at the microlevel,” Logue said. “How can we move to integrated watershed management? Thirty-five years ago it was fine to put [stormwater management] off for a while.” But now, he added, it is time to make headway on nonpoint sources.

The Wave of Future Permitting
A “better” structure, the NRC report concluded, would be one “where the NPDES [National Pollutant Discharge Elimination System] permitting authority empowers the MS4 [municipal separate storm sewer system] permittees to act as the first tier of entities exercising control on stormwater discharges to the MS4 to protect water quality.”

According to the report, a watershed-based approach would incorporate the full range of municipal and industrial sources, including public streets and highways; municipal stormwater drainage systems, wastewater collection, conveyance, and treatment systems; industrial stormwater and wastewater discharges; residential and commercial property; and construction sites.

“In the end, we were all unanimous,” said Rob Traver, a committee member and professor of civil and environmental engineering at Villanova (Pa.) University, as well as director of the university’s Urban Stormwater Partnership. “I believe [a watershed-based approach is] the only way that it works. You can’t do it in bits and pieces. … With watershed-based permitting we’re connecting goals, challenges, and solutions together.”

Industry, watershed managers, and EPA seem to agree with this basic premise.

“We feel a watershed-based permitting structure is the wave of the future,” said Benjamin Grumbles, who was assistant administrator of EPA’s Office of Water when interviewed in December.

“WEF [Water Environment Federation; Alexandria, Va.] has long supported a watershed approach,” and there are aspects of the report that WEF is supporting, said Brooks Smith, attorney and partner at Hunton and Williams (Richmond, Va.) and co-chair of WEF’s government affairs working group that is reviewing the report.

A watershed-based permitting structure could be effective, Smith said, but quickly added that the flexibility of EPA’s current watershed permitting guidelines should be preserved.

Others feel the report should go further. “It’s a start,” Logue said. “It was needed. But it’s not comprehensive enough.” He added that the report lacks innovative thinking and fails to highlight integrated watershed approaches in its recommendations.

Recommendations
Municipal action levels.
The report recommends that several municipal action levels be established for stormwater outfalls, turbidity standards, impervious cover, and more, Schueler said.

As the report notes, industrial and construction permittees that discharge stormwater via the MS4 are required to implement measures to control pollutants to the “maximum extent practicable” (MEP). This requirement has “resulted in a lack of prioritization of high-risk industrial sources and the purposeless collection of industrial stormwater monitoring data or the poor use of it to strategically reduce the discharge of stormwater pollutants to the MS4,” according to the report.

“The greatest weakness of the current program is the ‘namby-pamby’ nature of the [MEP],” Schueler said.

Smith disagreed. “A number is always easier to assess than a narrative statement,” he said, but for “EPA to define MEP would require a lengthy process,” and it may not be practical for some cases.

By defining MEP with numbers, “we’re going right back to [a] technology-based [approach],” Logue said, advocating for “relatable” goals and management efforts focused on planning. “We have to deal with issues on a priority basis within a watershed, not necessarily by regulatory framework.”

Water quality trading. The report supports exploring water quality trading for stormwater mitigation. It’s harder to meet stormwater requirements in urban areas, Schueler said. “So it’s important to use all economic incentives and tools from the most-developed to least-developed watershed,” he said.

“It’s a key tool in making water quality improvements,” Smith said, adding that in a watershed-based permitting scenario, trading likely would increase.

“It’s one of the benefits of a watershed-based approach,” Logue said. Water quality trading under its watershed-based permit helps CWS’s wastewater treatment plants (WWTPs) meet their obligations, he noted.

Connecting stormwater to land use. The report considers addressing land uses as part of stormwater management and offers strategies from lightly to heavily affected watersheds. In a moderately affected watershed, for example, the lead permittee could “[i]mplement site-based or watershed-based [impervious cover] caps and maximize conservation of natural areas,” according to the report.

“We need to connect our goals with our processes,” Travers said. “If the goal is clean water, then it has to be connected to land use.”

Gray Areas
Funding. The report is vague about how to fund a watershed-based permitting program. “That seems to be the leading weakness in the report,” Smith said.

The report says that “EPA should seek significant congressional funding to support the states and municipalities in undertaking this new program, in the nature of the support distributed to upgrade municipal WWTPs after the 1972 passage of the Federal Water Pollution Control Act.”

According to Schueler, there has been an “abysmal lack of financial support at the EPA and state level,” for Phase 1 and Phase 2 of the NPDES program.

However, some believe the roadblocks to a watershed-based system are more political. “Sometimes I think there is plenty of money being spent on these issues, but it’s so fragmented,” Logue said. “The problem is it is not well coordinated or well prioritized.”

Problematic assumptions. Smith said that a watershed approach with designated lead municipal permit holders is “a little beyond the box right now” and stated that the report glossed over one of the strengths of EPA’s existing program — that it’s been strong administratively and implementable. “I’d hate to lose that,” he said.

In addition, according to Smith, the report notes that federal and state authorities overseeing nonpoint sources do not have and cannot be expected to have enough oversight staff. “There is some implicit belief that enforcement is lax and compliance is lax,” he said, disputing this belief.

The report also claims that all highly developed watersheds produce degraded streams, Smith said. “That struck me as an overly broad assumption we’d want to press back on,” he said.

Existing framework questioned. Logue noted that the report fails to consider underlying program frameworks. “On some level, it still utilizes the existing tools in the existing framework,” he said. For example, “there is some conflict taking dry weather framework [7-day, 10-year low flow] and applying it to wet weather issues within the same permitting framework,” he said. “It’s extremely overprotective. … The criteria would have to deal with higher-flow conditions.”

Agricultural runoff. The report indicates that stormwater-related agricultural discharges have been intentionally left out because, while a very important part of the stormwater picture, they are not regulated by EPA.

Logue said that agriculture-related stormwater runoff management is voluntary. “Until we deal with some of these institutional issues, we’re not going to achieve the progress we want,” he said.

Broad scope. “So many of the recommendations involve many agencies and stakeholders far beyond EPA,” Grumbles said, noting that the committee that wrote the report was not constrained by any statutory or regulatory factors, and though the recommendations are “thoughtful, some will be politically charged as they play out.”

According to Schueler, the committee believes that a transition to watershed-based permitting could be accomplished without reopening the Clean Water Act. However, certain aspects of the recommendations, according to Grumbles and Smith, are likely to need some legislative adjustment.

Challenges for Local Leadership
The recommendation that a lead municipality be designated to oversee all stormwater discharges in a watershed is receiving scrutiny.

“That aspect of the report’s recommendations deserves the most focus and critical eyes,” Smith said. “Some may want it, but it’s a huge shift of authority. ... There are other ways to do it.” He also said he is not certain that municipalities can be designated lead permit holders under current legislation.

“I’m not sure it has to be the municipality,” Logue said. “Not all watersheds follow municipal boundaries. I like the aggregation of authority, but it might not be at the municipal level.”

Logue also raised a strong point about local politics. “One of the constraining factors is the competition between cities for economics and jobs,” he said, describing how one city might see watershed projects as taking its budget to fund another’s jurisdiction.

There is also state authority to consider. While the report defines a strong role for states in this new watershed-based scenario, some regions of the country will have more positive reactions than others, Schueler said. The Midwest may be slower to adopt, he said, but in the West, “they are beginning to understand it’s a very appropriate way to manage stormwater.”

“Progressive states will jump to this,” according to Travers.

For CWS, Oregon is supportive. CWS lobbied for a watershed permit because, in 2004, “the stars were aligned,” Logue said. All four of its WWTP permits and its Phase 1 permit were expiring, and it had been gathering monitoring data since establishing its first TMDL in 1988. Also, Logue said, county government had the ability to surpass political and institutional roadblocks and oversee the watershed.

At first, Logue said, Oregon’s Department of Environmental Quality was skeptical, but now it embraces the project and is trying to “get other dischargers to respond the same way.”
 
Interim Measures and Next Steps
The report calls for a transition within a 5- to 10-year timeframe and recommends that certain interim measures be implemented in the next 1 to 2 years.

“Such measures should be applied to each land-use and impact-source category,” says the report, which calls for effective impervious area limits, requirements to maintain predevelopment recharge to the subsurface zone, advanced source control performance standards for existing development, and the rotating basin approach, which entails state agencies delineating watershed boundaries and implementing watershed management processes on a rotating schedule.

Schueler said that even if the interim measures alone were implemented, “we’d have significant water quality improvements over the current program.”

Pilot programs. The report acknowledges that the current system, with numerous uncoordinated permits, challenges the development of a watershed-based approach and recommends that EPA start with pilot projects.

“The shift of responsibility for stormwater regulation to municipalities under the watershed-based approach may lead to some surprises in implementation and enforcement,” the report says. “Primarily because of this, EPA is well advised to institute a pilot program that provides some experience in municipality-based stormwater regulation before instituting a nationwide program.”

The report also says that while pilot programs are developing and details of NRC’s recommendations are addressed by EPA, the current stormwater program still can be improved continuously over time through the interim measures and widespread adoption of integrated watershed approaches.

EPA is exploring pilot projects because they will help determine how best to implement changes to the current stormwater program, Grumbles said.

For now, supporting pilot programs may be “the thing to rally around,” Smith said. “Figuring out where the gaps are” is the next step, because there are many details in the report, and “we certainly want to understand where EPA is on them,” he said.

However, “what has come out is a lot of people want to roll up their sleeves because they think this report is important,” Smith said.

Work groups formed. EPA has formed a work group that meets weekly to review the recommendations. WEF also recently formed a committee to review the report and at press time had requested to meet with EPA’s work group. EPA agreed, and both the agency and WEF say they also intend to reach out to municipal groups and watershed associations.

Andrea Fox, WE&T



The Nutrient Trade
Market-based solutions offer alternative ways for municipalities to meet water quality objectives, but a proposed environmental initiative could undermine certain programs

As nutrient effluent limits become more stringent, many wastewater treatment facilities are faced with the prospect of costly construction and chemical-processing upgrades. This can be a difficult proposition, especially considering that many utilities’ revenues are declining and financing is increasingly limited.

As an alternative to performing costly facility retrofits, nutrient trading has emerged as a mechanism for municipalities to meet permit requirements and still accommodate growth. This market-based approach essentially allows communities the chance to reduce their nutrient discharge loads by paying other communities located in the same watershed to “over-remove” nutrients beyond their permit requirements.
According to Don Vandertulip, a principal at CDM (Cambridge, Mass.), U.S. opportunities for nutrient trading should grow as tighter total maximum daily load (TMDL) nutrient limits are established. This option would be especially viable for smaller utilities that lack the financial resources to expand their treatment facilities.

“Because of the sheer scale of the operation, it is much easier and less of a financial burden for larger utilities to improve their systems in order to meet tighter requirements for nutrient removal,” Vandertulip said. “This also translates to less of a financial impact on the individual ratepayer living in a larger community, as compared to the person in a smaller city.”

For individual communities, the decision to participate in nutrient trading ultimately will be determined by many factors, such as cost, permit requirements, and the desire to maintain control of their own effluent quality.

“Smaller communities that decide to compensate a larger municipality to over-remove [nutrients] will have increased monthly charges, but those costs will be considerably less as compared to the capital investment needed for a facility upgrade, in addition to higher operating expenses,” Vandertulip said. “However, there can be overriding circumstances. For example, if a community has a treatment plant that has been pushed to the limit and needs to build a new facility in order to meet a permit requirement, then it might be more cost-effective to modify their design and add the necessary technology.”

According to the Environmental Trading Network (Kalamazoo, Mich.), nine states currently have statewide nutrient trading programs in place, six states are reviewing the process, and two states — Minnesota and Florida — are developing nutrient trading rules. Additionally, the Water Environment Research Foundation (Alexandria, Va.) has funded five watershed-based trading programs that include nutrient credit trading in Chesapeake Bay, nitrogen credit trading in Long Island Sound, and phosphorus credit trading in the Cherry Creek, Kalamazoo River, and Fox–Wolf basins.

While nutrient trading between point and nonpoint sources has been discussed, more stringent regulations would have to be imposed on nonpoint dischargers before this could take place, Vandertulip said. “From a regulatory standpoint, documenting and quantifying the runoff quality from thousands of farms and individual properties would present an enormous burden,” he said. “With more pressing issues facing regulators and utilities, this task would most likely take a back seat.”

Wastewater as a Resource
According to Alan Rimer, director of water reuse at Black and Veatch (Kansas City, Mo.), wastewater treatment plants in select regions are finding a market for reclaimed water with a high nutrient content. For instance, grain farmers are turning to wastewater treatment facilities to supply treated effluent, which provides sufficient amounts of phosphorus and nitrogen. “In this sense, reclaimed water is starting to be viewed as more of a resource,” Rimer said. “Many communities currently give their treated reclaimed water away by discharging it when, in fact, they could attach a price and sell it.”

This process is beneficial to the farming community, because instead of going to market for their phosphorus and nitrogen needs, farmers can get these nutrients from wastewater treatment plants at a considerably lower cost. “This could also reduce nutrient loading to open waters while presenting a partial solution for wastewater utilities that need to comply with new regulations,” Rimer said.

While using wastewater for growing crops is common practice in many developing countries, this practice is limited in developed countries because of environmental and human health concerns. But selling treated effluent to farmers could help alleviate the financial and regulatory pressures placed on municipalities to meet stricter nutrient discharge requirements. “For a wastewater facility, reducing nutrient levels as much as ten- or twentyfold over current levels is a considerable expense,” Rimer said.

Although this form of nutrient trading is taking place in regions across the United States where it has been marketed appropriately, such as Colorado, Florida, and soon Texas, there is still much room for this market to grow. “This is more of an entrepreneurial approach for dealing with nutrient-rich effluent,” Rimer said. “Most of the smaller-size wastewater plants, which treat a majority of the wastewater in the United States, are less up to speed with these kinds of approaches.”

Environmental Opposition
In November 2007, the Natural Resources Defense Council (NRDC; New York) filed a petition with the U.S. Environmental Protection Agency (EPA) to modify current regulations for wastewater treatment plants. According to Chris Hornback, senior director of regulatory affairs at the National Association of Clean Water Agencies (NACWA; Washington, D.C.), NRDC’s efforts are aimed at point source discharges because they are the most reliable target in the system for addressing nutrient-related water quality problems.

“There are essentially two approaches for addressing water quality issues under the Clean Water Act,” Hornback said. “The technology-based approach requires all facilities to treat to the same level based on a particular technology’s performance, while the water quality approach considers what reductions are necessary for a particular water and can encompass more collaborative programs, such as nutrient trading. The NRDC believes that the water quality-based approach is not working well enough and that states are not developing adequate water quality criteria and TMDLs as quickly as they should. They see nutrient trading as a way of pushing off responsibility to somebody else.”

While Hornback acknowledged that nutrients are not easy to regulate, he said that NRDC’s petition to require all publicly owned treatment plants to meet effluent discharge requirements would preclude effective water quality programs, such as nutrient trading. “The NRDC’s one-size-fits-all approach is simply aimed at getting the biggest reduction possible at all point sources,” Hornback said. “However, it would short-circuit the benefits of nutrient trading and eliminate any incentives for reducing nutrient discharges from nonpoint sources. The beauty of trading is that it allows municipalities to get the biggest bang for their buck.”

At press time, EPA was reviewing the petition and still owed NRDC a response. According to Hornback, NACWA is anticipating that the issue will end up in the court system.

Jeff Gunderson, WE&T


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