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NYSDEC PHASE II STORM WATER REGULATIONS

The New York State Department of Environmental Conservation (NYSDEC) Phase II
stormwater regulations became effective on March 10, 2003.  To effectively understand the intent of these new regulations that have impacted municipalities and construction activities in New York State, it is important to understand the prior history and developments related to the creation of the new regulations.

The Phase II stormwater regulations were enacted under the Clean Water Act (CWA).  The Clean Water Act was enacted with the intent of restoring and maintaining the chemical, physical and biological integrity of the waters of the United States.  The CWA established a number of requirements, prohibitions and programs to achieve this end.  The agency having regulatory authority over the Clean Water Act is the Environmental Protection Agency (EPA).  In New York State, the New York State Department of Environmental Conservation is the regulatory authority.

The 1972 amendments to the Federal Water Pollution Control Act established Section 402 of the Clean Water Act also known as the National Pollutant Discharge Elimination System (NPDES) permit program to control discharges of pollutants from point sources, which focused on industrial process wastewater and municipal sewage.  In New York State, this permit program is known as the State Pollutant Discharge Elimination System (SPDES) Permit.

Amendments to the Clean Water Act in 1987 devised a compromise whereby the EPA would issue permits for stormwater discharges, but would initially focus on the most contaminated stormwater discharges.  The 1987 amendments created a new section in the act devoted to stormwater permitting.  Section 402(p) provided that five (5) categories of stormwater discharges, considered to represent the most significant stormwater sources of pollution, were subject to immediate permitting.  Those five (5) categories, also known as the Phase I facilities, were:

  • Facilities already covered by a NPDES permit for stormwater;
  • Facilities that engage in industrial activity (including heavy manufacturing facilities, large construction sites and transportation facilities, etc.);
  • Large (>250,000 population) municipal separate storm sewer systems (MS4’s);
  • Medium (100,000> population <250,000) municipal separate storm sewer systems (MS4’s);
  • Facilities that the EPA administrator determined to have stormwater discharges contributing to a violation of water quality, or that are “significant contributors” of pollutants to waters of the United States.

In the fall of 1992, the EPA issued two baseline general permits, one for industrial discharges and one for construction activities which established general permit requirements for facilities in states where the EPA implements the storm water program.  Construction operations that resulted in the disturbance of an area equal to or greater than five (5) acres of land were subject to the Phase I Regulations.  These general permits also have been used by states with NPDES permitting authority to establish state permit requirements, which must be at least as stringent as those established by the EPA.  This again is the case in New York State, with the NYSDEC being the permitting authority.

The NPDES requirements apply only to discharges of stormwater either directly or through a municipal separate storm sewer system (MS4) to waters of the United States.

As noted above, the Phase I Stormwater regulations targeted “point source” discharges.  As point source discharges were brought increasingly under control, stormwater discharges from “non-point sources” became the focus of greater attention, thus leading to the Phase II Stormwater regulations.

In 1995, the EPA issued a final rule for phase II dischargers.  The rule originally stated that all phase II dischargers must apply for permits by August 7, 2001, if the regulatory program in place at that time requires permits.

However, the Phase II rule did not become effective until March 10, 2003 at which time designated Small MS4’s in New York State were required to submit a Notice of Intent (NOI) for coverage under a SPDES General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems (MS4s) also initially known as General Permit GP-02-02, and is currently designated as General Permit GP-0-15-003.

A “Small” MS4 is defined as any MS4s that was not already designated and regulated as large or medium under Phase I, i.e. those less than 100,000 in population.  MS4s were also designated by location in an urbanized area based upon population density, or those designated by the NYSDEC due to a discharge into a MS4 or as a known as a source of contaminants or pollutants.

The objectives and standards of the Phase II Municipal requirements are as follows:

  • Reduce the discharge of pollutants to the “maximum extent practicable” (MEP), protect water quality and satisfy the water quality requirements of the CWA.
  • Provide a comprehensive Stormwater Management Program (SWMP).
  • Address stormwater activities not covered by Phase I
  • Watershed Management

As small construction sites were also determined to be a major source of pollutants into waters of the United States, the Phase II Rule also affects any construction activities that disturbs an area equal to or greater than one (1) acre of land, dropping the threshold from the previous five (5) acres of disturbance.  In New York State, this permit initially was known as NYSDEC SPDES General Construction Permit GP-02-01, and is currently designated as General Construction Permit GP-0-15-002.  Therefore, all construction activities throughout New York State, whether located in a designated MS4 or not, are required to submit a Notice of Intent (NOI) to the NYSDEC to obtain permit coverage under General Construction Permit GP-0-15-002.  Under SPDES General Construction Permit GP-0-15-002, the MS4 is now responsible for review and approval of Stormwater Pollution Prevention Plans (SWPPPs) prior to issuance of an “Acknowledgement of Coverage” from the NYSDEC prior to commencement of construction activities.  The MS4 is also responsible for SWPPP compliance inspections of active construction permits under NYSDEC coverage.

Effective March 10, 2003, municipalities designated as Small MS4s have faced a new objective and are now required to comply with the rule governing use of land and water resources.  Hundreds of municipalities and “construction site operators” in the state of New York have come face to face with a facet of the Clean Water Act (CWA) administered by the Environmental Protection Agency (EPA) known as Phase II of the National Pollutant Discharge Elimination System (NPDES) permit program.  Local governments have incorporated informational and educational components, as well as construction site erosion and sediment control and post construction storm water management into their programs.  The Phase II Rule requires controls on storm water discharges from a broad spectrum of municipalities, industries and “construction site operators”.  The Phase II Rule has had both a direct and indirect impact on many municipalities in New York State by increasing requirements for the allocation of funds, the implementation of new ordinances and staffing.

The objectives and standards of the Phase II municipal requirements are to reduce the discharge of storm water pollutants to the “maximum extent practicable” (MEP), protect water quality and satisfy the requirements of the CWA.

Designated Small MS4s have obtained a SPDES General Permit, have developed a SWMP Plan, implemented the SWMP utilizing appropriate Best Management Practices (BMP), developed measurable program goals, evaluated and assessed their program effectiveness and developed a program for record keeping and reporting.

As designated MS4s in New York State have submitted their NOI based upon the March 10, 2003 deadline for designated Small MS4s in New York State to submit their NOI for a General Permit, municipalities have begun to, and must continue to work on an outline for their Six Minimum Control Measures and BMPs appropriate to their respective municipality.  Every municipality has differing existing conditions and community issues to consider.  It requires an overall participation and cooperation effort between elected municipal officials, Town Attorneys, Planners, Engineers, Consultants, Planning Boards, Building Departments, Code Enforcement Officers, Highway Departments, community groups and individual citizens to effectively address compliance within the MS4 under the Phase II Rule.

Given drainage areas and watersheds do not end or begin at municipal boundaries, it is prudent to develop cooperation in the ongoing development of the MS4s SWMP with adjacent and adjoining municipalities to share resources.  In addition, as the cost to implement an effective SWMP is of great concern to municipalities given this rule is an unfunded mandate from New York State, cooperating MS4s are more likely to receive funding and grants for their SWMP through the implementation of cooperating MS4s.  The use of volunteer groups and the partnering with other groups for the development of the MS4s SWMP is another measure that may be utilized to reduce the financial impact and burden on the MS4.