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Alabama Stormwater Partnership Comments on Draft Phase II General Permit ALR040000

  

 

 
July 23, 2010
Russell A. Kelly, Chief
Permits and Services Division
Alabama Department of Environmental Management
P.O. Box 301463
Montgomery, AL 36130-1463
 
Thomas McGill, Chief, Stormwater and Non-Point Source Section
Michael Mitchell, Stormwater and Non-Point Source Section
U.S. Environmantal Protection Agency, Region 4
61 Forsyth Street, S.W.
Atlanta, GA 30303
 
Via U.S. Mail and E-mail
 
RE:     Comments on Draft Phase II General Permit ALR040000
 
Dear Mr. Kelly and Mr. McGill:
 
            The Alabama Stormwater Partnership submits the following comments concerning the draft Phase II Municipal Separate Storm Sewer System (“MS4”) General Permit (hereinafter the “Draft Permit” or the “Draft GP”). The Alabama Stormwater Partnership includes the Cahaba River Society, Cahaba Riverkeeper, Alabama Rivers Alliance, Black Warrior Riverkeeper, Choctawhatchee Riverkeeper, Mobile Baykeeper, Hurricane Creekkeeper, and Southern Environmental Law Center. Our organizations work throughout Alabama to protect and improve water quality, much of which is negatively affected by municipal stormwater pollution. We have worked extensively with both the Alabama Department of Environmental Management (“ADEM”) and the United States Environmental Protection Agency (“EPA”) to ensure that general permits such as this comply with the mandates of the Clean Water Act (“CWA”), the Alabama Water Pollution Control Act, and federal and state regulations. 
 
            While this version of the Draft Permit is a positive step towards clean water in Alabama when compared with the current Phase II permit, significant revisions are needed to ensure compliance with the CWA. In its current form the Draft Permit contains some serious flaws, several of which render it inconsistent with the provisions of the CWA relating to the protection of water quality generally and the municipal stormwater program specifically. The current Draft Permit is vague in some places to the point of being unenforceable and does not require the control of stormwater discharges to the maximum extent practicable (“MEP”) as required by federal regulation. We also believe the Draft Permit is a significant departure from the draft Phase II permit that was circulated in fall 2009. We submitted extensive comments on that draft on February 9, 2010, which are attached as Exhibit 1. To the extent those comments have not been addressed in the current Draft Permit, we reiterate them in full and incorporate them into this letter.   
 
For all of these reasons, we believe the Draft GP needs significant revision and improvement. Our specific concerns and suggestions our given below. 
 
I.                   The Permit Must Be Revised to Include Clear, Specific, Measurable, and Enforceable Standards.
 
The Draft Permit contains numerous instances of vague language which will complicate the permittees’ compliance with the terms of the permit, as well as ADEM’s and the public’s oversight role in ensuring adherence to the permit. Examples of these ambiguities are listed below. We strongly encourage ADEM and EPA to conduct a thorough review to locate and correct other instances of nonspecific language and to insist that all Phase II entities understand the standards which they are required to meet.[1]
 
In particular, we believe that the Phase II permit must emphasize that all aspects of the storm water management program (“SWMP”) must be implemented to reduce stormwater discharges to the MEP. The current draft of the permit is selective in using this phrase, which is an overarching requirement and should be presented as such to permittees.
 
·         I.C.1.6. The first sentence should be clarified to emphasize that the permit does not authorize discharges that cause or contribute to exceedances of both narrative and numeric water quality standards.
·         I.E.1. The second sentence should be changed to require MS4s to modify their programs if and when water quality considerations warrant greater attention or prescriptiveness in specific components of the municipal program. The word “should” needs to be changed to “shall” or “must.”
·         III.1.(b) ADEM needs to define “full implementation,” which ADEM claims is required within five years of the effective date of the Phase II permit. There has already been a substantial delay in the implementation of key requirements of the CWA due to vagueness in prior versions of the Phase II general permit. ADEM must make clear that all terms of this permit must be complied with as soon as possible and must provide interim dates of compliance so that permittees know that they must meet benchmarks throughout the process.  Otherwise, in five years’ time, ADEM could issue a new Phase II permit, itself with a five-year grace period. The end result is that key aspects of the SWMP are perpetually put off and never actually implemented.
·         III.1.(c) ADEM must define “condition mechanisms” in this section to educate permittees about how to coordinate within the legal bounds of the Phase II permit. 
·         III.B.   ADEM must change “consider the use of” to “use” to require the use of Low Impact Development (“LID”) as a way to meet the MEP standard as described below. ADEM should also replace “where feasible” with “to the maximum extent practicable.”
·         III.B.1.(a) The sentence “This program is the continuous implementation in the areas served by the MS4 as established in the previous permit cycle, if applicable,” needs further clarification.
·         III.B.2.(a) This section is silent about when existing MS4s must comply with its provisions. It speaks only to new MS4s.
·         III.B.2.(b) ADEM says that the permittee “shall consider the development of opportunities” for public participation. This sentence is vague and unenforceable.
·         III.B.2.(b)7. This section should make clear that the Notice of Intent must also be publicly available. Additionally, according to the Draft Permit, the latest annual report “should” be placed on the Permittee’s website; this “should” needs to be changed to a “shall.”
·         III.B.3.(a)2. Permittees should be required to include land uses on the maps referenced in this subsection; currently the language is merely suggestive. Furthermore, when updating maps, the Phase II permit should require the additions listed in this subsection; again, the additions are only suggestive in the current Draft Permit.
·         III.B.3.(a)3. The ordinances referred to in this section “shall be reviewed” and “updated when necessary.” The subsection should both identify who reviews the ordinances (presumably ADEM or the permittee) and the specific factors that would necessitate an update. 
·         III.B.4.(c)1. This subsection gives permittees the ability to self-schedule the development of an ordinance or other mechanism to enforce erosion control measures at construction sites. The Phase II permit should provide a date certain by which this must occur, to be no more than 1 year from finalization of this permit.
·         III.B.5.(a)2. This subsection requires that the volume and velocity of pre-construction runoff from a site is not “significantly” exceeded. This term has no definition and renders the efficacy and enforceability of this subsection questionable.
 
II.                The Draft Permit as Written Does Not Meet the “Maximum Extent Practicable” Standard.
 
                The National Pollutant Discharge Elimination System (“NPDES”) program is a technology-forcing program intended by Congress to ultimately eliminate the discharge of waste into waters of the United States through progressively more advanced technology. See Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498, 1506 (discussing the CWA as requiring progress toward the goal of zero pollution); 33 U.S.C. § 1311(b)2(a).   The language of the federal CWA plainly requires forward progress towards clean water rather than inertia and stagnation, a background principle also evidenced by the CWA’s antidegradation policy. See 33 U.S.C. § 1313(d)(4)(B) (general antidegradation standard of CWA); 33 U.S.C. 1342(o)(1) (anti-backsliding provision of NPDES permit provisions); accord Ala. Code § 22-22-2 (“[It is the] policy of this state and the purpose of this chapter to conserve the waters of the state and to protect, maintain and improve the quality thereof”)(emphasis added). It is important to remember that NPDES stands for National Pollutant Discharge Elimination System; the inclusion of the word “elimination” in the very title of the permitting program clearly evinces Congress’s intent to create an iterative standard for water discharge permits to take more and more steps to clean up waterways. 
 
                The specific method of technology-forcing utilized in the municipal stormwater context is the MEP standard.  EPA’s rules promulgated pursuant to 33 U.S.C. § 1342(p) (2006) require regulated entities to “develop, implement, and enforce a stormwater management program designed to reduce the discharge of pollutants . . . to the maximum extent practicable, to protect water quality, and to satisfy the appropriate requirements of the Clean Water Act.” 40 C.F.R. §122.34(a) (2006) (emphasis added). Based upon existing case law, “maximum extent practicable” means to the fullest degree technologically feasible for protection of water quality, except where costs are wholly disproportionate to the potential benefits. See Haeuser v. Department of Law, 97 F.3d 1152, 1155 (9th Cir. 1996) (“practicable” has been defined as “capable of being done: feasible”); Rybachek v. United States EPA, 904 F.2d 1276, 1289 (9th Cir. 1990) (EPA must select best level of technology unless costs are “wholly disproportionate” to the benefits); Ass’n of Pac. Fisheries v. United States E.P.A., 615 F.2d 794, 805 (9th Cir. 1980). In the stormwater context, these stringent definitions of the term “practicable” are further narrowed by the use of “maximum,” clearly indicating that the measures to be required must be more protective, especially where existing measures are failing to protect water quality.[2]
 
            Like the other technology-based standards for control of point source discharges, MEP is supposed to evolve over time as industries and technologies mature, control costs diminish, and we learn more about stormwater control options and practices.  EPA itself considers MEP an “iterative” standard. See, e.g., April 16, 2004 Memorandum from James A. Hanlon to Water Management Division Directors, Regions I-X, attached as Exhibit XX, at 2. The requirements that first-generation MS4 permits contained are no longer sufficient to meet emerging standards of MEP. As permits expire and new permits are issued, it is no longer acceptable for permit writers and permit holders to simply rely on past techniques that cannot demonstrate successful prevention or reduction of stormwater pollution.  To have any meaning, the MEP standard must evolve to encompass new developments such as numeric effluent limitations and the use of Low Impact Development/Green Infrastructure to reduce stormwater flows at their source.  The MEP standard cannot be satisfied by merely freezing permit requirements to reflect yesterday’s norms.  
 
a.      Incorporating EPA’s “Guidelines” Is Required To Meet MEP.
 
The Phase II regulations dictate that stormwater pollution must be controlled to the MEP.  MEP is the standard for measuring how far a municipality must go in preventing stormwater pollution.  MEP means to the fullest degree technologically feasible for the protection of water quality, and its only limit is in those cases where costs are wholly disproportionate to the potential benefits.  The final Phase II rule states that “EPA envisions application of the MEP standard as an iterative process,” 40 Fed. Reg. 68,754. In order to achieve “iterative” progress towards MEP, each subsequent permit must contain successively more stringent requirements to reduce the discharge of pollutants from the MS4.
           
            In previous drafts of the Phase II permit, ADEM made a fair start toward refining what will constitute MEP for the new permit term and we commented accordingly.  We attach that comment letter for your information.  However, the latest Draft GP retreats substantially from those requirements.  Not only are almost none of the constructive comments in our February 9, 2010 letter reflected in the Draft GP; the permit has actually been weakened to such an extent that we must now address issues that appeared to be settled in that earlier draft.  It is important to point out that the Draft GP does not include many of the specific requirements incorporated in the earlier draft; the Draft GP now only vaguely dictates that the required SWMP components be developed and implemented.  As a result, evaluating compliance will be extremely difficult for ADEM, operators and stakeholders alike because there are no specific benchmarks to measure for compliance purposes.  It is the very opposite of the “clear, specific, measurable and enforceable” guidance given by the EPA in its April 15, 2010 letter to James McIndoe, Chief of ADEM’s Water Division.
 
            Because EPA’s recommendations and guidelines are practicable within Alabama, ADEM must incorporate them into the permit in order to meet the MEP standard. ADEM cannot simply reissue a permit which allows Phase II communities to continue to operate at the status quo and expect that this will comply with the Clean Water Act.  New technologies and methods must be adopted into the permit as they become feasible. Because EPA’s guidelines do not represent unachievable goals but rather reasonable methods for reducing pollutants to the MEP, any permit that does not incorporate EPA’s guidelines will not reduce pollutants to the MEP and will therefore be in violation of the Clean Water Act.
 
b.      Clear And Specific Incorporation Of Low-Impact Development Practices Is Required To Meet MEP.
 
            Low-Impact Development (“LID”) practices fall within the category of measures that are more protective than current standard practices and should be required in both NPDES Phase I and Phase II stormwater permits. Whereas conventional stormwater controls are designed only to collect and convey stormwater offsite, LID practices are meant to mimic the predevelopment hydrograph on a site, using practices including but not limited to bioretention areas, permeable pavement, stormwater capture and reuse, green roof design, and grassed swales. LID site design also incorporates the protection of wide naturally-vegetated riparian buffers and standards that actually or effectively minimize impervious surface. EPA states that LID practices offer “both economical and environmental benefits.” US EPA, Office of Water, Low Impact Development (LID): A Literature Review, EPA-841-005, at 2 (October 2000). “LID measures result in less disturbance of the development area, conservation of natural features and can be less cost intensive than traditional stormwater control mechanisms.” Id.  EPA’s own study, "Reducing Stormwater Costs through Low Impact Development (LID)Strategies and Practices,”U.S. EPA, (December 2007), as well as model projects in our region, prove that LID practices have provided significant cost-savings over conventional storm water practices. Practices that cost less than and reduce pollution more than traditional practices must therefore be required by ADEM in NPDES stormwater permits, since they are clearly practicable. 
 
            In February 2009, the Washington Pollution Control Hearings Board issued a ruling requiring MS4s around Puget Sound to take more aggressive steps to reduce stormwater runoff. The Board struck down provisions in two Phase II stormwater permits as inadequate and concluded that greater use of "low impact development" techniques is required to meet the Clean Water Act’s MEP standard. Puget Soundkeeper Alliance, et al. v. State of Washington, Department of Ecology, PCHB Nos. 07-022, 07-023, 46-48 (Feb. 2009). The Board concluded that the permits' focus on traditional engineered stormwater management facilities like detention ponds was inadequate to protect water quality and meet Clean Water Act requirements. Id. at 47. The Board further concluded that the permits failed “to require that the municipalities control stormwater discharges to the maximum extent practicable and [did] not require application of all known, available and reasonable methods to prevent and control pollution, because [they] fail[ed] to require more extensive use of low impact development techniques.” Id.
 
            Here, ADEM has not adequately incorporated LID practices into the draft GP. In fact, in the most recent draft of the permit, LID practices have been reduced to mere suggestions; they were mandated in the earlier draft. Language dictating that MS4s “must develop and implement a plan” for incorporating LID practices was replaced with language encouraging MS4s only to “consider” LID practices. This change in language does not comply with the MEP standard and is in violation of the Clean Water Act. ADEM must revise this section to unequivocally require the use of LID to the maximum extent practicable.
 
            It is important to remember that LID techniques allow for flexibility. Construction sites differ according to soil type, topography, rainfall amount, vegetation, etc., so there is no one-size-fits-all solution when recommending practices to manage stormwater runoff from these sites. LID practices are not intended to hamstring companies into pursuing only a handful of options. Like best management practices generally, LID techniques allow developers to choose the best alternatives that fit their project scope and the individual site conditions. There is no reason why such flexible techniques should not be mandated in this general permit.
 
III.             Several “Minimum Control Measure” Sections in the Draft Permit Require Substantial Revision.
 
a.      Public Involvement/Participation
 
            Citizens must have access to information in order to play a meaningful role in the development and enforcement of stormwater controls.  The proposed requirement that the operator must provide a copy of the SWMP to any member of the public only “when requested,” Draft GP Part II.B.2(b)7,  falls far short of meeting applicable legal requirements for public involvement.  Public availability of the Notice of Intent (“NOI”), SWMP, and annual reports is easily achievable electronically and is critical if the public involvement and participation requirements in the permit are to have any actual meaning.  Making these documents widely available through electronic means will reduce the burden of production on the permittee while facilitating access for the public.  It would be a simple matter -- and should be a permit requirement -- for each MS4 to provide a link to these basic items on its municipal webpage.
 
            Moreover, if an MS4 has any monitoring responsibilities imposed by Part IV.D of the Draft GP, those reports should also be available and accessible to the public.  While the Draft GP states that a monitoring plan is a required part of the SWMP if any part of the MS4 discharges to impaired waters (Part IV.D.1(b), (c), (g) and (h)), there is no mention of making the required monitoring data public.  Making these results available not only helps meet the public involvement requirements of Part IV.D.2(e) of the draft GP, it also allows the public reasonable notice of potential problematic discharges and fosters wider scrutiny to make sure that impaired waterways are not further degraded.
 
b.      Illicit Discharge Detection and Elimination (“IDDE”)
 
This section has undergone substantial revision since the earlier draft Phase II permit was issued. ADEM must reinsert the language reminding permittees that the standard they must meet is MEP, particularly in Part III.B.3.(a)4. In addition, references to federal Clean Water Act regulations have been removed, thus clouding the authority which mandates the IDDE provisions. In III.B.3.(a)4.i., the field assessment results should be publicly available along with the NOI and the other aspects of the SWMP. In III.B.3.(b)3., the permittee should be required to commit sufficient resources in order to be able to fully implement and enforce this provision. 
The most troublesome section concerning IDDE is III.B.3.(a)7., which allows the Permittee itself to identify stormwater discharges that will be exempt from the protections offered by the Phase II permit. This is flatly inconsistent with federal regulations, which do not allow for permittees to make these selections. Moreover, the regulations identify a discrete list of potentially exempt discharges, and the list is exclusive. See 40 CFR § 122.34(b)(3)(iii). Permittees are not given legal leeway to expand this list. This section renders the Draft Permit incompatible with federal law and illegal. 
c.       Construction Site Stormwater Control
 
            This section requires significant revisions to clarify and ensure compliance with federal regulations. Federal regulations require all small MS4s to develop and implement a construction site stormwater regime with six parts: 1) an ordinance or other regulatory mechanism to require erosion and sediment controls, 2) requirements for construction site operators to implement appropriate erosion and sediment control BMPs, 3) requirements for construction site operators to control waste that may cause adverse impacts to water quality, 4) procedures for site plan review which incorporate consideration of         potential water quality impacts, 5) procedures for receipt and consideration of information submitted by the public, and 6) procedures for site inspection and enforcement of control measures. See 40 C.F.R. 122.34(b)(4)(ii)(A-F). This section must be revised to indicate that meeting these requirements is a mandatory responsibility for all small MS4s.
 
            In addition to clarifying the requirements on small MS4s, this section must be revised to indicate that small MS4s may not rely upon ADEM’s statewise construction program for implementation. While federal regulations do provide a mechanism for small MS4s to rely on another entity such as a statewide construction program to fulfill this minimum control measure, there are requirements that must be met first. Specifically, a local MS4 is allowed to rely on another entity’s program only if “that program satisfies all of the requirements of [the Phase II regulations]”. 40 C.F.R. 122.35(b). ADEM’s construction stormwater program does not meet the requirements of the Phase II construction stormwater regulations, and thus cannot be relied on by small MS4s to meet the construction site runoff minimum control measure. See Id.
 
            ADEM’s construction site regulatory program does not meet or implement many of the requirements that Phase II regulations impose on small MS4s for their construction site runoff programs. Specifically, ADEM’s construction program currently operates under a “notice of registration” (“NOR”) procedure, which does not provide for the site plan review and consideration of water quality impacts required by the Phase II regulations. See Ala. Admin Code r. 335-6-12-.11. When submitting an NOR, most site operators are not even required to include copies of their BMPs, making it impossible for ADEM to review site plans in any meaningful way. See Ala. Admin Code r. 335-6-12-.10 (requiring submittal of BMPs only for construction sites discharging to Tier 1 waters). There is no procedure or opportunity in ADEM’s construction program to consider information submitted by the public, nor are there requirements for the control of waste onsite, both of which are required of small MS4s by Phase II regulations. See 40 C.F.R. 122.34(b)(4)(ii)(C-E). These glaring deficiencies in ADEM’s construction program render the program ineligible under 40 C.F.R. 122.35(b).
 
            In addition to revising the permit to reflect the inability of an MS4 to rely on ADEM’s construction program, ADEM should revise the Draft Permit to include several provisions from the earlier draft Phase II permit. Four sections were removed from the construction section between the current Draft GP and the prior draft released for public comment. These sections covered requirements for an enforcement response plan, inspection frequency guidelines, non-filer referrals, and enforcement tracking. Each of these sections outlined reasonable programs which, when implemented, would significantly enhance any MS4’s construction program and reduce pollutants entering Alabama’s waterways from construction sites. There is absolutely no reason for these provisions to have been removed from the permit, as they represent clear, targeted, reasonable, and effective methods for reducing pollution to the maximum extent practicable. 
 
d.      Post-Construction Stormwater Controls   
 
            The post-construction section contains both encouraging additions and troubling deletions. The revision of the section to add an actual standard that MS4s must meet when designing post-construction stormwater controls represents a significant step towards clear guidance.  A specific technical discussion of the 2yr-24hr storm event as the basis for a standard is attached as Exhibit XX. While the addition of this standard represents significant progress, substantial changes are still needed to make this minimum control measure clear and enforceable:
 
            (1) Specifically incorporate LID to meet Maximum Extent Practicable                          standard.
As noted above, LID must be required to reduce stormwater pollution to the MEP. To achieve this the following sentence should be inserted as a new second sentence in Part III.B.5(a): “You shall incorporate the use of Low Impact Development(LID)/Green Infrastructure to the maximum extent practicable to attain these elements.” Low Impact Development practices are highly effective to achieve post-construction stormwater management; are reasonable, available and known technology; and should be specifically required in this section.
            (2) Replace many conflicting, vague performance standards with one MEP                             standard as the overall objective.
 According to ADEM’s Permit Rationale, this draft added “… that the overarching objective of the post-construction program is to establish controls that will, to the maximum extent practicable, ensure the maintenance of site hydrological conditions from pre- to post- construction phases.” This is good, clear language. However, that clear language is not in Part III.B.5 of the permit, which instead includes multiple different, even conflicting statements of the overall objective, and thus the permit is not clear, specific, measurable and enforceable. One performance standard needs to be stated and used throughout.
            For instance, III.B.5(a)2 has this wording: “that the volume and velocity of pre-construction stormwater runoff is not significantly exceeded.” The terms “volume and velocity” are more limited than “hydrological conditions” (from the permit rationale). While volume and velocity are key components, the “hydrological conditions” term captures all of the 5 potential hydrologic changes due to urban stormwater that can degrade water quality and designated uses (see Attachment XX). Also, this is not a clear, specific, enforceable performance standard because “significant” is not defined. Who defines it – the permittee or site operator? How would their individual definitions of “significant” relate to avoidance of damage to water quality or designated uses of streams? The first sentence of this section should be revised to read “… to the maximum extent practicable, ensure the maintenance of site hydrological conditions from pre- to post- construction phases, including but not limited to volume and velocity of runoff.”   
            The following sections of the post-construction provisions all have different, and potentially conflicting, performance standard language and should be revised: 
            5.(a)1 – “… prevent or minimize water quality impacts…” Water quality impacts alone do not encompass all damaging post-construction stormwater impacts. Controlling increases in volume as well as rate of runoff is essential in order to prevent erosion and protect water quality, instream habitat, and designated uses (Attachment XX). “Prevent or minimize” is vague and undenfoceable; the word “prevent” is negated by “or minimize.” MEP is not included.
             5(b)2 – “… attempt to maintain predevelopment runoff conditions.” The use of the vague word “attempt” is unenforceable – what level of an attempt is sufficient? The MEP standard needs to be referenced. This section, as well as 5(b)3.iii, also is too limited in referring only to “… minimize water quality impacts.”
            5(b)3 - “including, as appropriate” is vague and unenforceable. If no non-structural BMPs are deemed “appropriate” by the permittee, is that acceptable? Most Low Impact Development practices are non-structural BMPs, and as noted above, LID is necessary to meet MEP. Replace this language with “… any nonstructural BMPs in the program as required to achieve the post-construction objective and performance standard in III.B.5(a)2.”
            Each of these sections needs to be revised to include the above recommended language or to refer back to the section of the permit containing such language.
                  (3) Include proposed 2 yr 24 hr storm as an initial specific post-construction                             performance standard and undertake process to improve that standard                                   within 2 years.
Our comments on the previous draft recommended that ADEM begin the process for developing a performance standard thatwould provide a clear, specific measurement tool necessary to allow Phase II permittees to implement post-construction controls and document compliance. ADEM has included the beginning basis of such a standard in this second draft in III.B.5(a)2, stating that a design rainfall event with an intensity up to that of a 2 yr-24 hr storm shall be the basis for design and implementation of BMPs. This is a significant, important and needed addition to the permit. However, as currently drafted the standard has some vagueness and is open to different interpretations. This will make the standard difficult to implement and enforce.
EXHIBIT XX includes technical comments concerning this proposed standard. Hydrology is complex, and the objective to maintain natural hydrology to the MEP requires a more complex standard. EXHIBIT XX supports the inclusion of the proposed 2 yr-24 hr storm, with improved explanation for greater clarity, as an initial standard that must be in the final permit to allow adequate initial implementation of post-construction controls. However, the appendix also documents scientific research and on-the-ground practices that establish the need for a standard that more fully encompasses both the frequent storms that deliver channel-shaping flow ( such as the 2 yr-24 hr storm) and the larger, less frequent storms that have potential for intensive stormwater impacts and hydrologic changes that impact water quality and designated uses. 
EXHIBIT XX also acknowledges the challenges of maintaining natural hydrology between pre- and post-construction and the importance of the MEP concept as a target for performance. We recognize that practices aiming to achieve this objective, such as Low Impact Development, have changed and improved significantly within the past 5 years and will continue to improve significantly within the term of the adopted Phase II permit. The costs of these practices have become reduced within the past few years and will continue to come down. Thus the MEP practices will be a moving target over the permit term. The standard in the permit needs to have the flexibility to respond to this forward evolution.
We recommend and request that the 2 yr-24 hr storm be included in this permit and clarified as requested in EXHIBIT XX, with the understanding that ADEM will begin the process of developing a more thorough and inclusive performance standard appropriate for Alabama and, through the Phase II General Permit, notify permittees that they will be required to institute this performance standard or an equivalent standard appropriate to local conditions within two years. The timeline will ensure that further development of this useful tool will not be delayed until the next Phase II General Permit is issued in 2015 (or later). The organizations presenting these comments offer their knowledge and support for an ADEM process to develop a more thorough, feasible performance standard for post-construction. 
                  (4) Ensure adoption of adequate legal authority within 18 months. 
            We note that III.B.5(a)3 has been revised in this draft to change “Adopt or amend an ordinance …” to read “Use an ordinance ….” With this revision the effect of the section remains that the MS4 must have the legal authority to implement these requirements on the books. Typical existing ordinances dealing with stormwater retention or detention for flood management purposes alone will not be sufficient to achieve MEP post-construction performance standards.  Revision of zoning, subdivision, and stormwater codes at least will be needed.  
            As with the sections noted above, this section has vague and unenforceable language, “… to address post-construction runoff … to the extent allowable under State law.” There is no reference to implementation of an enforceable performance standard, and the permittee appears to be exempt from the most basic requirement to actually implement this section – having legal authority to do so – if it can be claimed that State law does not allow it or limits the extent to which this minimum control measure can be met. Also, there should be a clear timeline for having legal authority in place.  The MS4s have not been required to implement the entire post-construction minimum control measure in the past. Implementation is past due, streams are being severely degraded due to the lack of effective post-construction stormwater control, and this minimum control measure urgently needs to be implemented. This section should be revised as follows: “Use an ordinance or other regulatory mechanism to achieve the performance objective and standard of Part III.B.5(a)2 and the provisions of III.B.5. The regulatory mechanism shall be effective within 18 months of the effective date of permit coverage.” 
            (5) Improve requirements to ensure long-term maintenance of post-                                         construction BMPs.
III.B.5(a)4 requires the MS4 to “ …ensure long-term operation and maintenance of BMPs.” This is extremely important, as some post-construction BMPs require regular clean-out or use plant materials as essential elements that require maintenance over the long term. These BMPs can cease to function or have reduced function if not properly maintained. A proper program for long-term maintenance must address (1) the party legally obligated to maintain, (2) the methods of maintenance, and (3) the oversight by the MS4 to ensure maintenance actually occurs. Without these elements the maintenance will fail.
            ADEM must include the language that was contained in the previous draft of this permit in section III.B.5.b.6. This language called for “ordinances establishing requirements for owner/operators of privately owned storm water controls and new or re-development sites to ensure that such controls are maintained and repaired as necessary during the operational life of such controls.” The requirements discussed in this language are essential to ensuring the working of the post-construction section. Requiring landowners to maintain and repair stormwater control structures throughout their operational life will ensure that post-construction controls are effective and that target discharge amounts and flow are maintained. Any set of post-construction requirements which does not require the maintenance of control structures is entirely ineffective.
            (6) Improve information about non-structural BMPs, evaluation of program             effectiveness, and opportunities for public involvement. 
While it is a good start that III.B.5(b)3 includes a list of nonstructural BMP practices, many typical and effective practices, such as pervious or permeable paving, need to be added to that list. Reference should be added in this section to the terms “Low Impact Development” and “Green Infrastructure”, as well as links to websites or guidance that better describes the full array of potential practices.
            The specific requirements from III.B.5(b)7 outlining an effective evaluation program should be reinstated. The language in the previous draft that was deleted from this section ensured that the evaluation process developed by the Permittee will result in specific measures to satisfy the performance objectives. Without an effective and simple means of evaluation, there will be no way to measure progress and make improvements upon MS4 post-construction programs. In addition to evaluation, this section should be revised to add a provision for public participation, similar to that found in the construction minimum control measure.
IV.             The Draft Permit Creates Unlawful Defenses To Pollution And Non-Compliance With Federal Law.
 
a.      The Draft Permit Must Be Revised To Remove The “BMP Defense.”
 
            Part IV.C requires substantial revision. The title of this section is “Discharge Compliance with Water Quality Standards.” Given the title, it seems only logical that the section would require discharges to comply with applicable water quality standards. As it is written, however, the section seems to exempt compliance with applicable water quality standards if a permittee has implemented BMPs. A so-called “BMP defense” is in direct violation of both federal and state laws, which flatly prohibit the issuance of an NPDES Permit that will “cause or contribute to a violation of water quality standards.” 40 C.F.R. § 122.4(i); Ala. Admin Code r. 335-6-6-.04(i); see also Ala. Admin Code r. 335-6-10-.06 (describing the minimum conditions applicable to all state waters “at all times and at all places”). Even if the BMP defense is recognized in the context of compliance with a Phase II permit, it does not extend to the overriding and more universal prohibition against violating narrative and numeric water quality standards. This section should be revised to read as follows: “No discharges authorized by this permit shall cause or contribute to a violation of Alabama’s water quality standards, as provided by Ala. Admin Code r. 335-6-10.”
 
b.      The Draft Permit Should Clarify The Legal Authority Available To And Requirements On Permittees.
           
            The draft GP must provide the necessary legal authority for MS4s to develop and enforce a stormwater management program with the six minimum control measures required by law.  40 C.F.R. § 122.34.  If there is any uncertainty about the legal authority of MS4s to meet these minimum requirements, then ADEM must resolve those legal issues (whether legislatively or otherwise) before issuing the permit.
 
V.                The Draft Permit Must Provide Strong Protections for Impaired Waters
We strongly support the continued inclusion of the section regarding completion of Total Maximum Daily Loads (“TMDLs”) and point out that water quality restoration for impaired waters will only be effectivewhere TMDLs have been developed or approved by EPA. It is vitally important for ADEM to expeditiously complete TMDLs for impaired waters.
The draft Sediment TMDL for the Cahaba River was issued in October of 2003. We do not see any legitimate reason why this TMDL has not been finalized in 6 ½ years, and both ADEM and EPA should make this a high and immediate priority. We ask for ADEM’s commitment to a completion date certain within 2010.
With regard to Section IV.D.2.(g), concerning monitoring cycles for achieving TMDL water quality goals, we question whether two cycles are sufficient in order for monitoring to determine whether the TMDL allocations are being met, especially considering the great variation in flow volumes that Alabama has experienced in wet and dry years. How long is an adequate monitoring cycle? If the permit is not revised to be more clear and specific, then demonstration of compliance with TMDL targets over a ten-year period should be required rather than over just 2 monitoring cycles.
VI.             Miscellaneous Recommendations
In addition to the specific comments above, we have the following suggestions for improvements to the Draft Permit:
  • I.E.2. This section needs to be expanded to include violations of water quality standards that may not be reflected on the 303(d) list or covered by a TMDL. While both the 303(d) list and TMDLs provide clear indications of water quality violations, they are not meant to be exclusive.
  • II.B.3. Delete the word “permit” from “formal permit decision.”
  • III.B.1.(a) There is a typographical error in the last sentence; change “implementation on” to implementation of.”
  • III.B.3.(a) Delete “the Permittee must” at the beginning of this subsection.
  • III.B.3.(a)2. Change “maintained by boundaries of the Permittee’s watershed” to “maintained within the boundaries of the Permittee’s watershed.” Delete “following” and “as” in the last sentence.
  • III.B.3.(a)4. Change “their” to “its” in the first sentence.
  • III.B.3.(a)5. Add “The Permittee shall” at the beginning of the first sentence.
  • III.B.3.(a)6. Add “The Permittee shall” at the beginning of the first sentence.
  • III.B.3.(b)1. Change “location of all receiving waters” to “locations of all receiving waters.”
  • III.B.4.(a) Change “land disturbance or greater than or equal to one acre” to “land disturbance of greater than or equal to one acre.” 
  • III.B.4.(a)1. Change “pollutant” to “pollutants.”
  • III.B.4.(b) Add the word “must” after “Permittee” in the final sentence.
  • III.B.4.(c) Change the subsection from (a) to (c).
  • III.B.4.(c)2. Change “such a stop work orders” to “such as stop work orders.”
  • III.B.5.(b)3.iv. Add “of” after “thought.”
  • III.B.6.(b)3.iv. Change “additional water quality protection devices or practices” to “additional devices or practices where necessary to protect water quality.”
  • IV.A. The heading should be in bold.
  • IV.B.2.(b) The first sentence should be rewritten to read “Changes replacing an ineffective or unfeasible component, control measure, or requirement specifically identified in the SWMP, with an alternate component, control measure, or requirement may be requested at any time.” 
  • IV.B.2.(b)1. Change “components, control measures, or requirements” to “component, control measure, or requirement.”
  • IV.B.2.(b)2. Change “Expectations on” to Expectations of.”
  • IV.B.4.(b) This subsection should be its own number (5) since it is not related to the transfer of ownership, operational authority, or responsibility for SWMP implementation.
  • IV.D.1. Delete “listed as” and “listed” in the last sentence.
  • IV.D.1.(c) Change “notify the Department on how” to “notify the Department as to how.”
  • VI.P.3. In the last sentence, the reference should be to Part VI.P. of the permit, not Part VI.O.
  • VI.T.(15) “Priority developments” is undefined.
Conclusion
            Thank you for your consideration of these comments. We ask that ADEM and EPA provide written responses to these comments and notify us of further revisions or drafts of this General Permit. We look forward to continued participation in this important process. 

Sincerely,
                                                 
Gilbert B. Rogers 
Senior Attorney                         
Southern Environmental Law Center
127 Peachtree Street, Ste. 605
Atlanta, GA 30303
 
 
Beth K. Stewart                                            
Executive Director                                         
Cahaba River Society
2717 7th Avenue South                                 
Birmingham, AL 36233

 
Donna Jordan
Program Director
Mobile Baykeeper 
300 Dauphin Street, Suite 200
Mobile, AL 36602
 
Michael Mullen
Riverkeeper and Executive Director              
Choctawhatchee Riverkeeper
P.O. Box 6734
Banks, AL 36005
 
Gayle Killam                                                                                    
Program Director
River Network                                                           
520 SW Sixth Ave, Suite 1130                      
Portland, Oregon 97204  
                              
Mitch Reid
Program Director
Alabama Rivers Alliance
2027 2nd Avenue North
Birmingham, AL 35203
                                             
Nelson Brooke
Riverkeeper                                                    
Black Warrior Riverkeeper 
712 37th Street South                                     
Birmingham, AL 35222                                

 


Wendy Smith
Director
World Wildlife Fund Southeast Rivers and Streams Program
2021 21st Ave. S, Ste. 200
Nashville, TN 37212
 
 


Pat Feemster
President
S.O.U.R.C.E
P.O. Box 182
Clay, AL 35408

 


 
John Wathen                        
Hurricane Creekkeeper
Friends of Hurricane Creek
5600 Holt-Peterson Rd.
Tuscaloosa, AL 35404
 
Myra Crawford
Executive Director
Cahaba Riverkeeper
4650 Old Looney Mill Road
Birmingham, AL 35243

cc:        Chip Crockett
            NPDES Compliance & Enforcement
            ADEM
 
            Michael Mitchell
            EPA Region 4
 


[1] See Ross Neely Express, Inc. v. ADEM, 437 So.2d 82, 85 (Ala. 1983). In examining the phrase “reasonable precautions” in an ADEM regulation, the Alabama Supreme Court noted that “the regulation before us is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” The same holds true for vague terms like “significant” in the Draft Permit.
[2]Such a definition would also comport with the Ninth Circuit decision interpreting Phase II program requirements. The court there stated that the “maximum extent practicable” standard requires more of permittees than mere compliance with water quality standards or numeric effluent limitations designed to meet such standards. Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 853-56 (9th Cir. 2003)(noting that although general permits will explicitly require compliance with numeric effluent limitations designed to ensure compliance with water quality standards, additional review of permittees’ notices of intent to be covered under a general permit is required to ensure that permittees have also designed programs that do in fact reduce their stormwater pollution to the maximum extent practicable). 
 
 
 
 

 

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