NPDES Phase II: A regional permitting approach

Jennifer A. Hays, P.E.
Associate Civil Engineer
City of Monterey, CA

Robert Jaques, P.E.
Manager of Engineering
Monterey Regional Water Pollution Control Agency

Many NPDES Phase II communities are struggling to fund and implement water quality programs in time for the March 2003 permitting deadline. EPA's guidance to small municipalities calls for minimizing duplication of effort and submitting joint permit applications. Regional permitting is a way to cut costs for municipal permittees and to encourage a watershed approach to permitting.

Some issues that a municipality should evaluate when considering a regional permit include:

  • What should be the boundary for the permit?
  • Who should and should not be included in the permit?
  • How should liability issues be addressed?
  • How should fiscal expenditures be tracked and shared?
  • What will be the key permit elements?
  • Who will be the permit holder?
What should be the boundary for the permit?
The NPDES Phase II Rule identifies municipalities required to obtain a permit by urbanized areas. Urbanized areas are defined by the census as one or more places and the adjacent densely surrounding territory ("urban fringe") that together have a minimum population of 50,000. The urban fringe consists of contiguous territory having a density of at least 1,000 persons per square mile. The permitting authority also has the authority to designate additional areas in which storm water discharges result in, or have the potential to result in, exceedances of water quality standards. Appendices 6 and 7 to the final rule specifically define those areas that must be permitted and those that must be examined for potential designation by the permitting authority.

Though there are specific areas required to be under permit by the Phase II Rule, there is also the opportunity to look at additional areas for inclusion when that seems appropriate in a watershed or jurisdictional context. "EPA encourages NPDES permitting authorities, local governments, and the interested public to work together in the context of a watershed plan to address water quality issues, including those associated with municipal storm water runoff." (FR, Vol. 64, No. 235, p. 68744, II.G.2) Although all portions of a watershed may not be required to be covered by a permit, the flow of runoff does not follow jurisdictional or urbanized area limit lines. It makes sense, especially for the municipality at the downstream end of a storm drain system, to work with upstream municipalities either as joint permittees or through some other form of agreement.

Who should and should not be included in the permit?
The areas to be included in a regional permit should be chosen carefully. Having a permit that includes too many jurisdictions, both incorporated and unincorporated, could make it difficult to manage and administer a regional permit. It could also be difficult to administer and manage a permit covering a very large geographic area. The apparent benefits of having a regional permit appear to be best achieved by including jurisdictions and entities in relatively close proximity to each other, and located in common watersheds.

Depending on the type of permit that is applied for, General or Individual, a decision should be made as to what entities should be included in the regional permit. Permittees may include state and federal facilities such as prisons, universities, airports, school districts, and military installations. In some areas, these installations will choose not to participate in a regional permit. Encouraging these entities to participate in discussions regarding development of a regional storm water permit will help to identify any problems in including them in the permit.

How should liability issues be addressed?
Liability should be addressed for the potential instance when one municipality does not fulfill its obligations under the permit. A succinct liability statement will help to keep those who are fulfilling their obligations out of the action of the permitting authority. There are at least two approaches to dealing with obligations and liabilities in a regional permitting approach: (1) define issues in the permit itself, (2) define issues in a separate agreement between the permittees covered by the permit. Regional permitting concepts from Phase I cities show that liability issues seem to be best addressed by employing both of these approaches, as described below.

In cases where liability language is included in the permit, it may not be as precise as some permittees wish. Permit language is written by the permitting authority, not the permittees themselves, so issues of liability may not be addressed in detail. However, if the needs of the permittees are met by including language in the permit, it could save the time and effort required to address these issues in a separate interagency agreement. Also, by spelling out liability and obligations in the permit itself, the permitting authority would be confirming what those individual responsibilities are. This would be very important in the eventuality of an enforcement action taken against one permittee.

It may be beneficial to also address liability issues in a separate interagency agreement, in which specific details and language would be included. For example, administrative, fiscal, personnel and other issues could be spelled out and even apportioned for reimbursement costs from each permittee. A weakness in this approach would be that any enforcement action by the permitting authority would be separate from obligations defined in the interagency agreement.

The best of both options could be obtained by including liability issues in the permit itself while a separate interagency Memorandum of Agreement could address other matters pertaining to the regional permit including cost sharing, jurisdictional obligations, and program responsibilities.

How should fiscal expenditures be tracked and shared?
The main benefit of a regional permit is cost and workload savings to the entities that participate in it. There are many opportunities for sharing resources while carrying out the activities required in the Phase II program. A lead agency or consultants may be asked to perform a variety of services to achieve compliance, and equipment and existing services can be shared between agencies. Costs for services, publications, educational materials, and equipment must be tracked and apportioned to co-permittees in an appropriate manner.

The Storm Water Management Plan will identify what activities need to be done, by whom, and costs to get them done. Tracking of costs should be done in a manner that segregates costs between each of the "Six Minimum Measures" (see sidebar), to facilitate annual fiscal reporting. Several approaches for cost sharing should be considered to decide the method most appropriate for each activity.

Impervious area calculations have a rational nexus between assessment of storm water fees and the amount of runoff that is generated from a given parcel. A drawback to using this approach is that this data is not readily accessible without the effort of measuring from aerial photographs or in the field. Residential and employee population does not have an obvious correlation with storm water discharge volume, but it may be appropriate for public education activities. Length of storm water conveyance system and number of appurtenances has a high correlation with costs for capital improvement and replacement. User categories including residential, business, hotel, restaurant, etc. could be used to apportion inspection costs.

Each of the apportionment methods listed above is appropriate for some part of the storm water program. The Storm Water Management Plan planning process will help to make decisions as to which method works best for each activity.

What will be the key permit elements?
The NPDES Phase II rule contains six minimum measures that small communities must implement to be in compliance with the program. EPA and state permitting authorities are expected to have draft General Permits distributed by Fall 2001. Until draft General Permits are distributed for review, the best indication of the types of requirements that will be included in Phase II permits is provided by the "Six Minimum Measures."

Though exact permit language has not been drafted, it is important to begin the planning process. In March 2003, a Notice of Intent and a Storm Water Management Plan must be submitted by each designated municipality. The deadline for implementation of the entire plan is five years from the date of permit issuance. With all of the logistics of putting together a program, regional or individual, five years is not very much time.

Who will be the permit holder?
When discussing the options for a regional permit, the discussion of organization is important. Will there be one lead agency that administrates the permit, with many co-permittees? Will there be a Joint Powers Authority that serves as the lead, or will an existing regional agency be used? The pros and cons of each option will vary in different areas. All of the potential permittees should be involved in making this decision, as this will determine the logistics of the overall program.

Planning a strategy in advance for compliance with the NPDES Phase II Permit is the best way to ensure that you have input into the final product. Regional permitting should be considered as one of your options for potential cost savings and regional coordination of water quality issues.

Web sites with additional information:

For more information, contact Jennifer Hays at 831-646-3920 or HAYS@ci.monterey.ca.us, or Robert Jaques at 831-645-4607 or bobj@mrwpca.com.

Six Minimum Measures of an NPDES Phase II Program

1. Public Education and Outreach

  • Inform residents and businesses of regulations and Best Management Practices to comply
  • Develop and distribute educational materials
  • Direct information to specific industries and groups
2. Public Involvement and Participation
  • Involve the public in the development and implementation of the Storm Water Management Program
  • Hold public hearings
  • Work with volunteers (storm drain stenciling, etc.)
3. Illicit Discharge Detection and Elimination
  • Prepare storm water system maps
  • Adopt ordinances to prevent discharge of pollutants
  • Enforce the ordinance
  • Implement a plan to detect illicit discharges and illegal dumping
  • Educate employees and the public
4. Construction Site Storm Water Runoff Control
  • Develop, implement, and enforce a pollution reduction program for construction activities
  • Require construction site owners to implement Best Management Practices
  • Review site plans and inspect work sites during construction
5. Post-Construction Storm Water Management in New Development and Redevelopment
  • Develop, implement, and enforce a program to address storm water runoff from new development and redevelopment projects
  • Require storm water BMPs in design and operation of projects (structural and source control measures)
6. Pollution Prevention/Good Housekeeping for Municipal Operations
  • Develop and implement infrastructure and operations and maintenance programs to prevent or reduce pollutant runoff from municipal operations
  • Provide employee training on storm water pollution prevention
  • Assess water quality and perform periodic inspections of facilities