The Federal Clean Water Act establishes standards for surface water and makes it unlawful to discharge pollutants into the Waters of the United States, unless permitted. Embedded within this Act and administered by the United States Environmental Protection Agency (EPA) is the National Pollutant Discharge and Elimination (NPDES) permit program which establishes rules and procedures related to the permitting process.
In New York State, the NPDES program is administered by the New York State Department of Conservation (NYSDEC). Called the State Pollutant Discharge and Elimination System (SPDES) permit program, it is known conversationally as the “Speedies program”. Failure to apply for permit coverage or failure to implement permit requirements can result in fines of $37,500 per violation, per day, along with criminal, civil and administrative penalties. Penalties are embedded in Federal law and both EPA and NYSDEC can take action against a polluter. Triggers for enforcement action vary, with observed pollution often the starting point for legal action.
While the content of all SPDES permits includes standard language as required by the Clean Water Act, depending on the type of regulated facility and pollutants to be addressed, permits vary one to another.
The stormwater permits focus on stormwater runoff, which is water from rain or melting snow that doesn’t soak into the ground, but runs off into waterways picking up pollutants as it flows from rooftops, over paved areas, through sloped lawns, and over bare soil. They are general permits which cover a large number of similar dischargers, specifically runoff from industrial facilities (Multi-Sector Permit); discharges from municipal separate storm sewer systems in urbanized areas (MS4 Permit); and discharges related to construction activity disturbing one or more acres of land (Construction Activity Permit).
The MS4 Permit and Construction Activity Permits are of particular interest to regulated municipalities as they are intertwined, with each permit pointing to a mandated task in the other permit. Below is a short summary of each permit; however the permits are best understood by reading each permit carefully.
The NYSDEC SPDES General Permit for Stormwater Discharges from Municipal Separated Storm Sewer System Permit No. GP-0-15-003 includes six minimum control measures: public education and outreach; public involvement/participation; illicit discharge detection and elimination (IDDE); construction site stormwater runoff control; post-construction stormwater management; and pollution prevention/good housekeeping for municipal operations. Regulated entities, often referred to as “MS4s”, need to develop and implement a program which addresses each of those control measures. While there is some program flexibility, there are also specific tasks listed in the permit.
Regulated “municipalities” reside within census designated urbanized areas which are routinely updated every ten years. The “MS4s” include a range of public sector entities; some familiar, such as towns, cities, and villages, others less familiar and seemingly not a “municipality”. They include counties, public universities, public schools, highway authorities, state agencies, such as the Department of Transportation.
The attached set of maps describe the urbanized area statewide as of 2002; the urbanized area in Albany as of 2010; then within Albany County the jurisdictional “MS4” area for towns, village, and cities; the jurisdictional area of non-municipal MS4s; and of the possible MS4s within Albany County a listing of Stormwater Coalition members as of 2016.
Public participation is a key element of the MS4 Permit and as such certain documents are made available for public review. These documents include an annual report which is a standardized form developed by NYSDEC and stormwater management program plan documents. All are available from the permitted entity (MS4).
Annual reports and stormwater program plan documents can be developed and submitted as shared documents from inter-MS4, Coalition organizations. See Coalition Joint Annual Reports and SWMP Plan documentation.
Construction Activity Permit
The NYSDEC SPDES General Permit for Stormwater Discharges from Construction Activity Permit No. GP-0-15-002 requires owner-operators of sites disturbing one or more acres of land to develop a Storm Water Pollution Prevention Plan (SWPPP). SWPPPs describe how storm water runoff will be managed during and post construction. Typically they include site plan drawings; a narrative describing which stormwater practices will be used, when and why; operation and maintenance information pertaining to built stormwater management practices; and other items specific to the site.
Construction site stormwater control must conform to the New York Standards and Specifications for Erosion and Sediment Control, or “Blue Book”; while post-construction practices must conform to a suite of acceptable practices described in the New York State Stormwater Management Design Manual. In 2010, revisions to the Design Manual included runoff reduction requirements to be addressed using listed green infrastructure practices. The Design Manual is often updated and the most current version is dated 2015.
Additional permit requirements relate to legal accountability, training, and inspection procedures. The purpose of the permit is to avoid a water quality violation and a visible standard is described in the permit.
Construction Activity, MS4 SWPPP Acceptance Form, and Local Laws
While construction activity permit requirements are national in scope and required of any site disturbing one or more acre of land, construction activity in a regulated “MS4” town, village, or city requires an added level of review, as mandated in both the Construction Activity and MS4 permits. This is the case nationally and state-wide.
Specifically, here in New York State owner-operators seeking permit coverage from a MS4 permitted municipality must first obtain an MS4 Permit SWPPP Acceptance Form stating that the municipality has reviewed and accepts the SWPPP. The municipalities, in turn, as stated in their MS4 Permit need to adopt a local law which gives municipal officials the legal authority to review and accept these SWPPPs, thus providing a full vetting of the SWPPP and an informed sign off on the MS4 Permit SWPPP Acceptance Form.
The local law includes enforcement action should the site generate a water quality violation, with that water quality violation often a visual contrast in turbidity related to inadequate control of erosion and sediment during construction. For information about the general content of adopted local laws, see the NYSDEC Model Local Law for Stormwater Management and Erosion and Sediment Control (3/2006). Local laws adopted by “MS4s” do however, vary onto to another and they are typically posted on municipal webpages. See Coalition Member pages for information about member laws.
If the land disturbance takes place in a non-MS4 town, village, or city, when filing for Construction Activity General Permit coverage, the MS4 Permit SWPPP Acceptance Form is not required. The non-MS4 municipality may, however have their own laws related to erosion/sediment control and stormwater management more generally, therefore it is advisable to ask about any local requirements.
If a town, village, or city disturbs more than 1 acre of land, they too as the owner-operator of the site must obtain Construction Activity General Permit coverage. Procedures are typically in place to address their own internal review of the Construction Activity SWPPP.
In addition to the Construction Activity Permit local law, MS4 towns, village, cities, and counties must also adopt the Illlicit Discharge Detection and Elimination or “IDDE” local law. This law empowers a municipality to take legal action should a person discharge pollution into a catch basin, closed pipe, drainage ditch, or other stormwater related infrastructure owned and operated by the municipality.
Typically these pollutants include a broader range of pollutants, not just turbidity with the source of pollutant often associated with a routine human behavior such as pet waste, motor oil, yard debris, and restaurant grease dumped into a catch basin or the overuse of fertilizers and pesticides. Other sources of pollution may be a dated or failing septic systems or the connection of a sanitary line to storm system line.
For information about the general content of these Illicit Discharge Detection and Elimination local laws see the NYSDEC Model IDDE Local Law (2006). For the actual local law, go to the municipal webpage. Coalition member IDDE local laws are included on their member page.
If a municipality fails to adopt any of these local laws and fails to administer related MS4 Permit requirements, they are in violation of their own SPDES permit and subject to Clean Water Act enforcement action. Thus the legal accountability for MS4/municipalities is multi-layered, as is the legal accountability for individuals engaged in construction activity where the project is located in a MS4 town, village, or city.
In 2010 NYSDEC released their Technical Operational Guidance Series 1.4.2 regarding Compliance and Enforcement of SPDES Permits which makes explicit the consequences of non-compliance for all SPDES Permits, not just the MS4 and Construction Activity Permit.
Local SPDES Permits
Here in Albany County, as of 2011, there are 477 active SPDES Permits, and of these 319 focus on stormwater discharges. The remaining permits address discharges from factories, sewage treatment plants, sanitary sewer overflows, and combined sewer overflow systems. This compares with 25 SPDES Permits in 1980 with the majority of SPDES permits then focusing on point discharges from factories and publicly owned sewage treatment plants. (See Table of Albany County SPDES Permits).
This 19 fold increase in regulatory responsibilities represents both an expansion into stormwater related permits and a more informed understanding of what causes our waterways to be polluted. While these SPDES Permits are challenging and often overwhelming, the purpose is to protect the drinking water, fisheries, recreational beaches, and aquatic ecosystems found in our own communities. With this goal in mind, each permit holder has a part to play.