Environmental Regulations Dealing with Water Quality

1
Environmental Regulations Dealing with Water
Quality
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Laws and Regulations

• Clean Water Act
• Safe Drinking Water Act
• Coastal Zone Act
• Endangered Species Act
• OAR 340 Division 41 State-Wide Water Quality
  Management Plan
• OAR 340 Division 44 UIC rules

3
Clean Water Act

• There are 3 elements that may influence how a
  project deals with stormwater
• NPDES Permits
• TMDL/303(d) Water Quality Limited Streams
• Section 401 Clean Water Certification

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NPDES Permits

• The two permits of greatest applicability are
• Municipal Separated Storm Sewer (MS4)
• Erosion control on construction sites (1200C/CA)

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NPDES Permits

• MS4
• Not an individual project permit
• Authorizes stormwater discharges from the storm
  drain system
• Required for cities and jurisdictions within
  urbanized areas
• Conditions include developing a comprehensive
  stormwater management plan

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NPDES Permits Erosion Control

• Permits issued either to
• Construction agencies for all of their projects
  (1200-CA), or
• For individual projects (largely private
  development)

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NPDES Permits Erosion Control

• Requires the development and implementation of
  erosion and sediment control plans
• Projects using a 1200-C permit have their erosion
  and sediment control plans reviewed and approved
  by DEQ
• Agencies with 1200-CA permits are essentially
  self-authorizing

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NPDES Permits Erosion Control

• Each of ODOTs 5 Regions has its own 1200-CA
  permit
• Local Agencies that do not have their own 1200-CA
  may be covered under the ODOT Region permit, if
  the funding comes via ODOT

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Clean Water ActWater Quality Limited Streams

• Streams designated by DEQ
• 303(d) list Streams with identified problems,
  the first step in setting
• Total Maximum Daily Load (TMDL)
• Limits set on pollutants from each source
• Management plan developed and implemented

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Clean Water ActWater Quality Limited Streams

• 303(d) Streams
• Projects are not allowed to increase the load of
  listed pollutants

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Clean Water ActWater Quality Limited Streams

• Total Maximum Daily Load (TMDL)
• Additional load of TMDL pollutants allowed within
  limits if the management plan is being followed

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Clean Water ActSection 401 Certification

• Certification that a project will not result in
  violation of water quality standards
• Administered by DEQ under the authority delegated
  by EPA
• Very similar to Stormwater Management Plan
  approval for DSL Removal/Fill permits

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Coastal Zone Management ActCoastal Non-Point
Source Pollution

• Mandates that communities and States within the
  Coastal Zone implement non-point source pollution
  controls
• No project specific review

14
Safe Drinking Water Act

• Provides for establishment of national drinking
  water standards
• Basis for UIC program to protect the quality of
  groundwater.
• Administered by DEQ via OAR 340-044

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Endangered Species Act

• Water Quality not a specific part of the ESA
• Water resources regulated by Resource Agencies
  (NOAA Fisheries and USFWS) via Effects
  Determinations

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Statewide Water Quality Management Plan (OAR 140
Div 41)

• Sets Water Quality Standards for each watershed
  in Oregon
• Identifies especially valuable watersheds with
  heightened protection
• Basis for the 303(d) list, CWA 401 Clean Water
  Certification, and DSL Removal/Fill Permit Water
  Quality approval

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ODOTs PD-05

• Project Delivery Leadership Team
• Operational Notice PD-05
• Project stormwater must not cause violations of
  State water quality standards
• Project stormwater will not increase the
  pollutant load
• Projects will decrease the pollutant load

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ODOTs PD-05

• PD-05 applies to both ODOT projects and to ODOT
  funded Local Agency projects

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Handles,Or, How do they get to regulate you

• If a project needs a CWA Section 404 permit,
  then
• DEQ will have to issue a 401 Clean Water
  Certification
• The project is subject to the Endangered Species
  Act

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Handles,Or, How do they get to regulate you

• If the project requires a DSL Removal/Fill
  permit, then
• DEQ will review the stormwater management plan

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Handles,Or, How do they get to regulate you

• If a project receives federal dollars
• The project is subject to the Endangered Species
  Act

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Handles,Or, How do they get to regulate you

• If the project will disturb one or more acres of
  ground, then
• The project requires an NPDES erosion control
  permit (1200-C/CA)

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Handles,Or, How do they get to regulate you

• If a project intends to get rid of its stormwater
  by putting it in a hole in the ground
• The project must get a UIC permit from DEQ

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What must be done Basic Steps

• Determine what the sensitive issues are with the
  receiving water.
• TMDLs
• 303(d) listings
• Endangered species
• Wellhead protection zones

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What must be done Basic Steps

• Determine the potential impact of the project on
  the water resources
• Pollutant types
• Pollutant loads and concentrations
• Changes in hydrology
• Riparian impacts

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What must be done Basic Steps

• Set treatment targets and goals
• Develop the stormwater management plan, based on
  treatment targets
• DEQ requirements are to meet State water quality
  standards and to treat the stormwater to the
  maximum extent practicable

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What must be done Basic Steps

• The ODOT Hydraulics Manual, Chapter 14
  (forthcoming) will provide guidance on the
  selection and design of water quality facilities

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401 Certification and Stormwater Management Plan
Approvals

• The SWMP is submitted to DEQ for review and
  approval
• The DEQ website for 401 certifications provides a
  checklist for submittals

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401 Certification and Stormwater Management Plan
Approvals

• The SWMP approval is only a part of the 401
  certification review
• DEQ looks at the project as a whole to determine
  if it protects water resources, including
  wetlands, riparian impacts, and hydrologic
  effects.

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Endangered Species Act

• Stormwater impacts and mitigation must be
  addressed in the Biological Assessment

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Endangered Species Act

• From the water resources side, the BA covers
• Pollutant loads and concentrations
• Hydrologic changes that may affect
• Channel form
• Habitat availability

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Endangered Species Act

• Projects that increase pollutant loads or
  concentrations in discharges stormwater are going
  to be Likely to Adversely Affect
• Projects that discharge pollutants as
  concentrations above levels of concern may be
  Likely to Adversely Affect
• LAAs will lengthen the project time-line

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Safe Drinking Water Act

• New UICs must be registered and permitted
• Evidence that surface discharge is not practical
• Permits require treatment of stormwater prior to
  discharge to groundwater
• Monitoring of the discharged water
• The lead time on a permit is 60-120 days

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Things that may drive you nutsESA

• NMFS does not consider Oregons water quality
  standards to be strict enough
• Effects determinations based on stormwater are in
  flux
• The NMFS HCD Stormwater Guidance is slowly fading
  away without a formal replacement

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Things that may drive you nutsESA

• Dissolved Copper
• Extremely low levels shown to harm juvenile
  salmonids
• Driving ESA effects determinations
• Residual amounts of copper in stormwater after
  treatment enough to result in a Likely to
  Adversely Affect determination

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Things that may drive you nutsESA

• ODOT is working with NMFS, USFWS, FHWA, EPA and
  DEQ to develop a process to select stormwater
  treatment techniques for projects

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Things that may drive you nutsESA

• The resulting guidance will assist in selecting
  the most appropriate treatment strategy for a
  project
• Following the guidance and procedure will be
  accepted as showing the project is addressing
  stormwater in a feasible and prudent manner,
  and will receive a BO

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Things that may drive you nuts401 Cert/SWMP
Approval

• The level of detail required for stormwater
  management plans appears to be excessive for
  small projects
• The ODOT checklist for SWMPs is detailed
• DEQ guidance can be interpreted to be quite
  strict

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Things that may drive you nuts401 Cert/SWMP
Approval

• The stormwater management plans detail and
  complexity should match the size and complexity
  of the project.
• DEQ is working on updated guidance on the level
  of detail needed for projects of different sizes

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Things that may drive you nuts

• Hydrology requirements
• Not just flood control now maintain natural flow
  regime.
• There is an expectation that flood duration and
  frequency will be maintained for everything from
  the 2 year to the 50 flood.

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Things that may drive you nutsHydrology

• ODOT and the regulatory and resource agencies are
  examining the basis for the end points, and will
  modify them as supported by current knowledge.

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Things that may drive you nuts Safe Drinking
Water Act

• The definition of UICs is sometimes confusing.
• Infiltration basins are not generally considered
  UICs
• Infiltration trenches with outflows to surface
  water are generally not considered UICs
• French drains are generally considered UICs
• If it is deeper than it is wide, it is probably a
  UIC