ENB - STATEWIDE NOTICES

        
Completed Applications Consolidated SPDES Renewals
Public Notice

The Department of Environmental Conservation has completed the process of proposing actions aimed at implementing the federal NPDES Phase II stormwater regulations and is issuing the: General Permit for Small Municipal Separate Storm Sewer Systems (MS4s), MS4 Designation Criteria, General Permit for Construction Activity and Re-Issuing of General Permit GP-93-06 (Phase I Construction). Coverage under the General Permit for Small Municipal Separate Storm Sewer Systems (MS4s) and General Permit for Construction Activity is required by March 10, 2003.

Background

Clean Water Act (CWA) - The 1987 CWA contained provisions that were aimed at launching a national effort to regulate the discharge of pollutants into waterways during runoff events. The CWA identifies specific activities which, before discharging stormwater runoff to a "Water of the United States," need authorization under Section 402 of the CWA (the NPDES program). New York State is a NPDES-approved state, having its SPDES program first approved by the EPA in 1975 and is thus charged with administering this program in the state.

Phase I - EPA published stormwater regulations on November 16, 1990. These Phase I regulations focused on large and medium municipalities and stormwater runoff from certain specified types of activities and required that they obtain NPDES authorization ( coverage under a permit issued pursuant to the NPDES program) by October 1, 1994. As the NPDES permitting authority, the Department issued two general permits in 1993, one dealing with industrial site runoff and another addressing stormwater runoff from construction projects involving a disturbance of five (5) or more acres.

Phase II - EPA’s Phase II stormwater regulations were promulgated on December 8, 1999. They significantly expanded the scope of activities that are subject to NPDES permitting and set March 10, 2003 as the date after which new Phase II construction activities would need to obtain a permit. The Phase II regulations reduced the threshold for construction activities from five (5) to one (1) or more acres of disturbance. The Phase II regulations also identified publicly owned and/or operated separate storm sewer systems (MS4s) which lie within areas designated as urbanized (as defined by the United State Census) as automatically needing a permit under the NPDES program. States are expected to augment this automatic list to include additional separate storm sewer systems on the basis of state specific designation criteria designed to address their particular areas of concern. These regulated MS4s must submit a Notice of Intent (NOI) by March 10, 2003. The NOI outlines how they will adopt appropriate measures to address stormwater within these systems. Collectively, the "automatics" and the state designated systems are "regulated MS4s" under the federal Phase II stormwater program.

New York State has made significant progress in improving the State’s water quality. The new federal stormwater control program builds on New York’s successful efforts. In spite of our headway, water quality problems remain, and stormwater is one of the major challenges we still face. Water from rain or melting snow runs off land, carrying litter, eroding soil, bacteria and other pollutants into our bays, rivers and lakes. This pollution results in closed beaches and shellfish beds, spoiled fishing and swimming, excessive weed growth, and destruction of aquatic habitat. Large amounts of stormwater rushing off paved surfaces can flood yards, streets and basements. The new stormwater program will help correct these problems, protecting and restoring our valuable environmental resources. More than 90% of remaining water quality problems resulting from nonpoint sources with stormwater runoff the major source of impairment after atmospheric deposition.

While the Department recognizes that further control of polluted stormwater runoff is a major concern in New York, the Department is concerned that no additional resources were provided by EPA to implement this expanded program. In 2002, $3.4 million was earmarked under the State Environmental Protection Fund to assist municipalities with design and implementation of programs required by the federal regulations. In addition, the Department is re-allocating more than $1 million in partnership funding towards this effort. The Department greatly appreciates all the assistance our partners have provided in working to make this program a success.

Public Notice - On September 18, 2002, the Department proceeded to public notice with four (4) proposed actions in association with its responsibility, as the NPDES permit-issuing authority, to implement the federal Phase II stormwater regulations. The proposed actions included general permits for both of the Phase II activities identified in the regulations:

  1. Construction activities involving a disturbance of one (1) or more acres; and
  2. Regulated MS4s.

  3. The Department also proposed two additional actions:

  4. Designation Criteria which would add additional MS4s to the Phase II program primarily because of water quality concerns; and
  5. An extension to the existing Phase I general permit for construction activities for a short transition period.

Response to Public Notice - The Department provided a sixty (60) day comment period and solicited comments until November 18, 2002. In all, the Department received several hundred pieces of correspondence in the form of postcards, letters, faxes, and e-mails. A large portion of the responses were identical in content. Several responses arrived late, but generally contained the same comments that were cited in responses which were received on or before the deadline.

The Department’s proposed MS4 designation proposal drew the greatest attention, especially with regard to support of the East of Hudson (EOH) portion of the New York City Watershed. Many parties advocated designating MS4s throughout the entire EOH watershed and developing additional criteria for construction activities in the EOH watershed. The Department has responded to both concerns. The entire EOH watershed is designated. The Department anticipates that the EOH watershed is the primary candidate for developing a more stringent watershed-specific permit. The Center for Watershed Protection, a nationally recognized stormwater management firm, has been working with Department staff and watershed stakeholders to recommend permit requirements beyond those outlined in the statewide program needed to achieve the Total Maximum Daily Load (TMDL)-mandated phosphorus reductions for the EOH watershed.

A large number of responses were received from the Soil and Water Conservation community which centered primarily around the Department’s proposal to issue a general SPDES stormwater permit for construction activities of one (1) or more acres of disturbance. The Department currently permits nearly 2,000 Phase I construction activities (5 or more acres of disturbance) and expects that Phase II construction activities will amount to four to five times as many as permitted under Phase I . There is a significant need to provide expertise to the regulated public, and we anticipate help from our partners at the county Soil and Water Conservation Districts. As expected, there was also a considerable response from local government and agencies which will be subject to the Phase II regulations by virtue of their being regulated MS4s.

In response to the comments that were made during the public notice period, the Department has prepared a responsiveness summary having five components, one for each of the four proposed actions and another component which addresses comments made that could not be readily associated with any specific proposed action, but were more general in nature. For example, comments were made which address funding and training needs, and other comments dealt with procedural and policy matters and were addressed as general comments. Also, there were comments received which pertained to more than single proposal so the reader of the responsiveness summary is encouraged to examine all five components for complete responses to all of the issues that were raised.

There were many valuable comments received which have resulted in some changes to the Department’s proposals and will be valuable to the Department in the ongoing development of this program. The Department is appreciative of those who made an effort to help the Department begin implementation of the federal Phase II regulations under tight time constraints.

The review of comments received as a result of the September 18, 2002 public notice was conducted in a manner that involved a diversity of Department staff and included specialists, attorneys, engineers, permit writers and others. The general permits are "first generation" Phase II permits not only in New York State but also throughout the country. The Department recognizes that this is the first step in an evolving program and hopes to–with the assistance of our partners–use experiences learned to further refine the program in the future as EPA’s guidance develops and New York State’s experience expands.

Copies of the new SPDES general permits for stormwater runoff, the Designation Criteria and the Responsiveness Summary will be available from the Department’s website or by calling 518-402-8109.