Maximizing Stormwater Benefits Via Citizen-State-EPA Oversight

The waters closest to the homes in the darker brown areas are degraded by stormwater pollution and are likely unfit for any human uses.

The 13,000 miles of waters closest to the homes in the brown areas are degraded by stormwater pollution and are likely unfit for any human uses.

The stormwater runoff from suburban-urban lands degrades 13% of the 100,000 miles of waterways making up the Chesapeake Bay system.  This figure could be growing by another 400 miles annually due to new development.  However, all six Bay watershed states and the District of Columbia have adopted innovative methods of managing stormwater that could bring a halt to the annual loss and actually restore waters once thought lost forever.  However, there are a number of If’s that could easily derail future progress.  A major if is whether citizens, the states and EPA will provide the oversight needed to keep progress going.

Maryland Oversight Stalled

The 1982 Maryland Stormwater Management Act required local governments to ensure new development used effective runoff controls.  This same law required the Maryland Department of the Environment (MDE) to review these local programs once every three years.  Through this triennial oversight MDE would verify that each local program had sufficient staff to review proposed development plans, monitor the installation of runoff control measures, then periodically inspect each for maintenance needs.  MDE would also review a small sampling of approved stormwater plans to ensure local programs were requiring the use of the most effective aquatic resource protection measures.  The Department  would inspect a sampling of existing measures to verify that maintenance was being performed.  But for reasons that remain unclear, MDE pretty much stopped the triennial reviews in the 1990s.  Only five of the 24 major programs were reviewed since 2000, the last being Charles County in 2006.   When asked, MDE officials are unclear as to whether they plan to restart the reviews in the near future.   One thing is clear though, we citizen clean water advocates must immediately call upon the Maryland General Assembly and Governor O’Malley to provide MDE with the resources needed to restart this vital oversight.  Other wise we risk more of the clean water setbacks described in the next section of this article.

What Happens When Oversight Stops?

In 2008 a Southern Maryland county was poised to approve a 35-acre shopping center with no onsite stormwater control.  This very serious violation of state law would have had a catastrophic impact on downstream waters.  Fortunately,  local clean water advocates discovered this travesty and won the use highly-effective runoff controls.

Most recently, CEDS found that while Harford, Howard and Montgomery counties are achieving 80% to 100% compliance with Environmental Site Design (ESD) requirements, Baltimore County is only getting 27% compliance.  When fully utilized ESD can halt the degradation of downstream waters and accelerate the recovery of those draining suburban-urban areas.  Without oversight its unlikely anyone will notice these lost opportunities.

In 2001, Anne Arundel County reduced its stormwater staff from seven inspectors to one.  By 2011, the lack of inspections and maintenance resulted in the failure of thousands of runoff control practices.  Fortunately, in 2008 the USEPA conducted a compliance inspection of the Anne Arundel County program which resulted in a fine for deficiencies including too few inspectors.  In 2012, the citizen watershed groups active in Anne Arundel County called upon the County Executive to restore staffing.  Earlier this year the County announced an initial four-fold increase in stormwater inspectors.

An Important Lesson For Citizen Clean Water Organizations

The Anne Arundel case history illustrates why it’s so vitally important that citizens and state-federal agencies provide effective oversight, particularly by reviewing approved plans, assessing maintenance in the field, and carrying out the other steps needed for fully independent verification.  This case history also shows why citizen clean water advocates must use the reviews to identify those jurisdictions requiring additional public support to halt the further loss of waters to new development and restore those degraded by past growth.  Sadly, very few of the nonprofit organizations active in restoring the Chesapeake ever engage in this sort of activity.  Most focus on getting MS4 permits perfect and passing new laws.  While this work is vitally important, what good is a perfect permit or new law if enforcement is lacking?  The net result is that clean water enforcement failures are common in many areas.  These failures may well be a principal reason why 70% of the Bay system still fails to meet water quality standards.  Yet by devoting a small fraction of their resources to oversight, citizen Bay advocates could win quick, dramatic water quality improvements.  Examples of citizen oversight include: Severn Watershed Audit, Montgomery ESD Audit and the James River Association BMP Assessment. For further detail see How You Can Help at the end of this article.

Oversight In Other Chesapeake Bay Watershed States & DC

Through the Municipal Separate Storm Sewer System (MS4) permit program, the USEPA has oversight authority in all six Bay watershed states and the District of Columbia.  Each state MS4 program is required to review counties and municipalities with MS4 permits for compliance with a number of actions collectively intended to halt the further decline of waters due to new development and to accelerate the recovery of waters draining  suburban-urban areas.  The reviews must occur at least once every five years.  The next generation of MS4 permits will require more independent verification such as reviewing a sampling of approved stormwater plans to determine if local jurisdictions are requiring full use of the most effective aquatic resource protection measures and inspecting a sampling of runoff control measures to verify good maintenance.  But the MS4 permits only cover a portion of the six states.  Only two, maybe three Bay watershed states provide the depth of oversight needed to ensure that local stormwater programs are requiring the use of the most effective measures and ensuring each is properly installed then maintained.

Delaware May Have Best State Oversight

Delaware state law allows the Department of Natural Resources & Environmental Control (DNREC) to delegate implementation of the sediment and stormwater program to conservation districts, counties, municipalities, or other state agencies.  Currently there are eight delegated agencies in the State of Delaware.  Delegation shall not exceed 3 years, at which time delegation renewal is required.   According to DNREC Environmental Program Manager Jamie Rutherford:. “We meet with our delegated agencies on a regular basis and continually evaluate their program  implementation. ”  DNREC’s Tri-Annual Review covers four areas: Plan Review, Construction Review, Maintenance Inspection and Training.  The review begins with a detailed questionnaire covering all four of these areas.  Most importantly, “as part of the re-delegation review,” Ms. Rutherford noted, “We do review a sampling of approved stormwater plans to verify compliance with State requirements.”  As will be seen in the remainder of this article, Delaware appears to have the most comprehensive review process of all six Bay watershed states, though Virginia may be catching up.

Virginia Oversight Is Also Pretty Good

Virginia’s 1988 Chesapeake Bay Preservation Act (Bay Act) required counties and cities in the Tidewater region to implement stormwater management requirements for new development and redevelopment.  In 2014, new requirements (separate from the Bay Act) go into effect that will bring stormwater management to all Virginia counties, cities and MS4 towns (those within urbanized areas).  The Virginia Department of Environmental Quality (DEQ) reviews local Bay Act programs every five years.  The review focuses on 32 CBLAB Approved Compliance Evaluation Review Elements.  A table headed Status of Localities Compliance shows how each program was rated following reviews dating back to 1994.  Once newly required statewide stormwater management becomes operational in 2014, DEQ will also begin independent verification of program effectiveness, including an examination of a sampling of approved stormwater plans to verify compliance with State stormwater guidance.

New York Initially Finds 60% of Chesapeake MS4s Satisfactory

According to Carol Lamb-LaFay, the “NYSDEC (New York Department of Environmental Conservation) conducts audits of local stormwater programs for compliance with the SPDES General Permit for Stormwater Discharges from Municipal Storm Sewer Systems (MS4 General Permit).  The workplan for the Chesapeake Bay Watershed specifies 12 audits per year.  The audits are done by Regional Staff with information entered into our data base.”  Results of the most recent reviews of MS4 jurisdictions in the Chesapeake Bay watershed of New York show 60% rated satisfactory and the rest marginal.  Typically when NYSDEC assigns a marginal or unsatisfactory rating to an audit, the audit report will list the deficiencies and corrective actions needed along with a schedule for making changes to their program.  In some cases this may be in the form of an inspection letter or administrative order on consent. Since the audits are based on information submitted to NYSDEC, it may not include a review of approved stormwater plans.  This final step – comparing a small sampling of approved plans for adherence to State guidance – is crucial to ensuring the most effective runoff controls are being used.

Pennsylvania

In 1978, the Pennsylvania legislature adopted Act 167 requiring that all counties and municipalities implement stormwater management programs for new development.  Unfortunately, Act 167 did not authorize a State agency to review local programs.  But the Act did require submission of an annual report from each local program, though compliance with this requirement was spotty and ended in 2010.  Pennsylvania Department of Environmental Protection staff do inspect stormwater practice installation but do not review approved stormwater plans.  There are 300 municipalities in the Chesapeake Bay watershed that have MS4 permits.  The Chesapeake Bay Agreement requires a more thorough review of these 300 MS4 jurisdictions in the future.  For further detail see Pennsylvania DEP comments.

West Virginia

According to Dr. Sebastian Donner, of the West Virginia Department of Environmental Protection, “DEP regulates three (3) MS4s within the [Chesapeake] watershed and ensures adherence to the WV NPDES general permit requirements.  As for non-regulated areas, collaboration between WV state agencies, local government, NGOs, and communities has identified a number of stormwater related opportunities within our watershed on which we have been working.  Being a headwater state to the Chesapeake Bay aided the development of a WV Watershed Implementation Plan (WIP) and subsequent revisions.  The WIP includes an inventory of current stormwater regulations and programs in both regulated and non-regulated sectors.  The Phase II WIP was finalized in 2012 and can be downloaded at www.wvca.us/bay along with a number of other interesting documents.  New insights and developments will be incorporated into the 2015 Phase III WIP.”  Dr. Donner also said that at this time West Virginia does not have statewide post-construction stormwater requirements outside of MS4 areas, and therefore does not review locally approved stormwater plans.

How You Can Help

CEDS just posted a 34-minute narrated PowerPoint presentation on YouTube explaining how to locate runoff control measures in your area then determine if they are being properly maintained.  Further detail is provided in our publication Auditing Chesapeake Bay Watershed Stormwater Best Management Practices.  The presentation includes guidance for the other Big Six Bay pollution sources: new development, construction sediment pollution, point source discharges, cropfields and pastures.   With these guidance materials you’ll find it very easy to assess how well your local stormwater program is doing.  If you find problems then these free guidance materials also explain how to resolve each by working cooperatively with property owners, enforcement agencies and elected officials.  But if you run into difficulty contact CEDS at 410-654-3021 or Help@ceds.org.

Also, take a moment to visit the website for the groups you support and see  what oversight they provide of local stormwater programs.  If stormwater isn’t really part of the groups’ mission then take a look at other clean water enforcement issues which may be more relevant.  If you don’t see much then offer to help them do an assessment.

For further detail visit these CEDS webpages: Watershed Audits, Environmental Site Design, Equitable Solutions, and Smart Legal Strategies.

About Richard Klein

President of Community & Environmental Defense Services (ceds.org)
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