Line 62: | Line 62: | ||
===Addressing future regulated discharges in the WLA=== | ===Addressing future regulated discharges in the WLA=== | ||
Stormwater discharges (pollutant loads) that typically go to the LA can be included in the WLA if the discharge will eventually be regulated under a NPDES permit. Accounting for future growth in this manner potentially provides incentives to MS4s to implement Low Impact Design (LID) Best Management Practices (BMPs) as development occurs. Incorporating future loads into the WLA also reduces the likelihood that pollutant load will have to be transferred from the Load Allocation (LA) to the WLA which can be problematic if the TMDL report does not clearly establish the procedure for LA to WLA transfers. '''NOTE:''' Per EPA’s recent memorandum discussing WLAs for regulated stormwater, LA to WLA transfers are now acceptable without having to re-notice the TMDL, provided the TMDL report explains how the transfer will occur. | Stormwater discharges (pollutant loads) that typically go to the LA can be included in the WLA if the discharge will eventually be regulated under a NPDES permit. Accounting for future growth in this manner potentially provides incentives to MS4s to implement Low Impact Design (LID) Best Management Practices (BMPs) as development occurs. Incorporating future loads into the WLA also reduces the likelihood that pollutant load will have to be transferred from the Load Allocation (LA) to the WLA which can be problematic if the TMDL report does not clearly establish the procedure for LA to WLA transfers. '''NOTE:''' Per EPA’s recent memorandum discussing WLAs for regulated stormwater, LA to WLA transfers are now acceptable without having to re-notice the TMDL, provided the TMDL report explains how the transfer will occur. | ||
+ | |||
+ | MPCA does not advocate individual terms for Reserve Capacity. Reserve Capacity should be built into the WLA or LA. Generally, the WLA will be a lumped total that may include future loads. However, the TMDL can break the WLA down into current and future loads for existing permitted entities. This is not recommended because it makes accounting of loads difficult. | ||
+ | |||
+ | This guidance on future loads applies to nonpoint discharges that currently do not end up in a regulated conveyance system. There are six cases where loads normally put into the LA could be put into the WLA (see below). Note that in all cases, the TMDL report must either assign a WLA to all entities that will come under permit coverage or describe how load transfers will occur once growth occurs. For example, a regulated municipality that will annex a non-regulated township may be given additional WLA to account for growth. If the municipality includes a state highway and a state college, the highway and college should either be given WLAs or the TMDL must describe the mechanism by which WLA will be transferred from the municipality to the other MS4s (see the section on Transfer of Loads). | ||
+ | *'''Extension of an existing conveyance system within a regulated MS4.''' For example, an area of a city that is currently served by private septic systems and that does not have a stormwater conveyance system may be retrofitted and served by a municipal sewer and stormwater system. Once this occurs, the discharge will be to a regulated MS4. City development and land use plans can be used to make this determination. | ||
+ | *'''Annexation.''' Many townships adjacent to the Twin Cities Metro area, and possibly other metro areas in the state, will be partly or fully annexed by a municipality over the next several years. Some of these townships are not currently covered under a NPDES permit. Once annexation occurs by a regulated municipality, any discharge to the municipality’s conveyance will be covered under permit and therefore could be part of the WLA. Orderly annexation plans and to some extent comprehensive land use plans can be used to make this determination. | ||
+ | *'''A non-regulated MS4 meets criteria for NPDES designation.''' Designation criteria are discussed in Minnesota Rule Chapter 7090. For example, the cities of Morris and Thief River Falls both exceeded 5000 in population but were not identified as discharging to an impaired water when the MS4 General Permit was re-issued in 2006. In 2008, discharges from these cities were considered to occur to newly listed impaired waters, so the cities would now meet designation criteria. | ||
+ | *'''A non-regulated MS4 will meet criteria for NPDES designation.''' An example is a city that does not meet designation criteria, discharges to an impaired water, and is projected to meet designation criteria in the future. Prior to release of the 2010 census data, examples included rapidly growing cities in the Twin Cities Metro Area, such as Rogers and Albertville. | ||
+ | **'''NOTE: This guidance document specifically pertains to MS4 stormwater. There may be a situation where a non-regulated point source is identified that is not an MS4 but discharges stormwater. These discharges may be regulated but not under an MS4 permit. These discharges would receive their own WLA. An example would be a pipe that discharges stormwater from a non-regulated, private facility directly to a receiving water.''' | ||
+ | *'''Expansion of an Urban Area following a new census.''' Urban areas typically expand with each census. New MS4s may be incorporated into the Urban Area as a result. An example is Mankato, which was designated as an Urban Area following the 2010 census. As a result, Skyline and portions of Lime Township, Mankato Township, Blue Earth County, Nicollet County, MnDOT (outstate), and Mankato State University within the Urban Area will come under permit coverage. | ||
+ | *'''Designation through petition process.''' This occurs when MPCA designates an MS4 for permit coverage through the petition process under Minn. R. ch. 7090. There are several criteria that can be used to designate an MS4 through the petition process, including potential for rapid growth, ineffective water quality control(s), or an approved TMDL that requires reduction of a pollutant. Specific MS4s likely to be designated through the petition process cannot be predicted. TMDL writers and Project Managers should consult with Stormwater Program staff to determine if it is appropriate to assign a WLA to an MS4 based on the potential for designation through the petition process. | ||
+ | |||
+ | WLAs assigned for situations 3 through 5 should be individual. WLAs for situation 6 must be individual. Assigning loads for these situations represents an over-allocation based on current land use. The MS4s essentially grow into the allocation. For situations where discharges to impaired waters trigger designation for permit coverage, MPCA’s stormwater program will not designate new MS4s unless they are given a WLA in a U.S. EPA-approved TMDL. | ||
+ | |||
+ | Appendix B contains a list of MS4s that meet designation criteria but have not yet been designated for permit coverage and a list of MS4s that are likely to become mandatory MS4s as a result of a change in an Urban Area. Appendix B is based on 2010 census data. | ||
+ | |||
+ | ===Addressing future regulated discharges in the LA=== | ||
+ | A memo by the U.S. EPA, dated November 26, 2014, indicates that transfers from the LA to the WLA are acceptable ([http://water.epa.gov/polwaste/npdes/stormwater/upload/EPA_SW_TMDL_Memo.pdf]). This represents a change in U.S. EPA guidance. When LA to WLA transfers are allowed, there is no need to identify future growth areas and account for them in the TMDL. LA to WLA transfers are appropriate for addressing any future growth situation. However, the TMDL report must clearly define the process of such a transfer. |
The following guidance, developed by MPCA’s Stormwater Program in conjunction with MPCA’s TMDL Program, discusses recommended procedures for addressing wasteload allocations for current or future municipal stormwater discharges regulated under a National Pollutant Discharge Elimination System (NPDES) permit. The guidance clarifies previous policy for setting wasteload allocations for stormwater and will be modified to address new issues as they arise in TMDLs. The guidance provides clarity about existing stormwater discharges that are covered under a NPDES permit and is specific to municipal stormwater discharges (not industrial or construction).
The Wasteload Allocation (WLA) is the portion of a receiving water's loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based effluent limitation (40 CFR 130.2). NPDES-permitted stormwater discharges must be included in the WLA.
To understand the basis for making decisions about what should or should not go into the WLA, it is necessary to understand the definition of an MS4.
The figure below illustrates the eight Urban Areas that occur in Minnesota based on the 2010 U.S. Census. They include the Twin Cities, St. Cloud, Duluth, Rochester, Mankato, Fargo-Moorhead, Grand Forks-East Grand Forks, and La Crosse-La Crescent metropolitan areas.
Minnesota’s MS4 General Permit defines MS4 as a “conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains)”. This term may lead to confusion, however, since some of these features may also be classified as waters of the state and therefore protected for compliance with water quality standards. Minnesota Rules 7050.0130 Subp. 2 states “… disposal systems or treatment works operated under permit or certificate of compliance of the agency are not "waters of the state." Therefore, an MS4 cannot also be a water of the state. For example, some ditches are assessed as 2B waters and therefore cannot be MS4s. Any waterbody that could be considered a water of the state should be treated as such and therefore be included in the LA unless the MPCA’s stormwater program has made a determination that they are MS4s.
The issuance of a NPDES permit provides reasonable assurance that the WLAs contained in a TMDL will be achieved. This is because 40 C.F.R. 122.44(d)(1)(vii)(B) requires that effluent limits in permits be consistent with "the assumptions and requirements of any available waste load allocation" in an approved TMDL. The MPCA’s Phase 1 permit requires Minneapolis and St. Paul to estimate pollutant loadings and compare those to any applicable WLA. The Phase 2 General Permit requires permittees to demonstrate annual progress toward meeting any applicable WLA to the Maximum Extent Practicable.
MS4 permits only cover water in a publicly-owned or -operated conveyance. Discharges to conveyances are not covered under permit. However, the conveyance must be in compliance with requirements of the permit, which means discharges to a public conveyance must also be managed. Municipalities and townships have necessary regulatory tools to control discharges to their system, although these authorities vary widely from location to location. Factors influencing local regulatory authority include local zoning ordinances, county regulations, and ditch law. Other MS4 permittees typically do not have these regulatory authorities.
MPCA policy on setting WLAsprovides a general framework for addressing WLAs, but experience with TMDLs indicated the policy needed updating. The following guidance provides clarification for the policy. The guidance will need to be updated as new TMDLs are developed and new issues arise.
When assessing which pollutant loads should be placed into the WLA, it is necessary to clearly define what is covered under a NPDES permit. Minnesota’s Phase 2 General Permit states “Only your [the permittee’s] system and the portions of the storm sewer system that are under your operational control are authorized by your permit”([1]). MPCA interprets this to mean an MS4 is responsible for ensuring its discharge is in compliance with water quality based effluent limits (WQBELs), since the discharge is within the publicly owned or operated conveyance system. The permittee must take appropriate measures to bring its MS4 into compliance. All drainage discharging from a regulated MS4 or to a regulated MS4 from property owned or operated by the regulated entity are put into the WLA. Other drainage to a regulated MS4 are also put into the WLA when the permittee has regulatory authority to control the discharges.
TMDLs may narrowly define the sources that are part of the WLA. For example, individual pipes can receive a WLA. This typically will not be the case because there is rarely adequate information to assign WLAs this narrowly. WLAs, however, should be defined as narrowly as data allow. The table below summarizes the above discussion for the general case where contributing sources are not narrowly defined. For a list of MS4s covered by permit, see [2].
The table reveals several complexities. These are discussed below. The flowchart in Figure 1 illustrates a decision process. Examples are provided in Appendix A.
Stormwater discharges (pollutant loads) that typically go to the LA can be included in the WLA if the discharge will eventually be regulated under a NPDES permit. Accounting for future growth in this manner potentially provides incentives to MS4s to implement Low Impact Design (LID) Best Management Practices (BMPs) as development occurs. Incorporating future loads into the WLA also reduces the likelihood that pollutant load will have to be transferred from the Load Allocation (LA) to the WLA which can be problematic if the TMDL report does not clearly establish the procedure for LA to WLA transfers. NOTE: Per EPA’s recent memorandum discussing WLAs for regulated stormwater, LA to WLA transfers are now acceptable without having to re-notice the TMDL, provided the TMDL report explains how the transfer will occur.
MPCA does not advocate individual terms for Reserve Capacity. Reserve Capacity should be built into the WLA or LA. Generally, the WLA will be a lumped total that may include future loads. However, the TMDL can break the WLA down into current and future loads for existing permitted entities. This is not recommended because it makes accounting of loads difficult.
This guidance on future loads applies to nonpoint discharges that currently do not end up in a regulated conveyance system. There are six cases where loads normally put into the LA could be put into the WLA (see below). Note that in all cases, the TMDL report must either assign a WLA to all entities that will come under permit coverage or describe how load transfers will occur once growth occurs. For example, a regulated municipality that will annex a non-regulated township may be given additional WLA to account for growth. If the municipality includes a state highway and a state college, the highway and college should either be given WLAs or the TMDL must describe the mechanism by which WLA will be transferred from the municipality to the other MS4s (see the section on Transfer of Loads).
WLAs assigned for situations 3 through 5 should be individual. WLAs for situation 6 must be individual. Assigning loads for these situations represents an over-allocation based on current land use. The MS4s essentially grow into the allocation. For situations where discharges to impaired waters trigger designation for permit coverage, MPCA’s stormwater program will not designate new MS4s unless they are given a WLA in a U.S. EPA-approved TMDL.
Appendix B contains a list of MS4s that meet designation criteria but have not yet been designated for permit coverage and a list of MS4s that are likely to become mandatory MS4s as a result of a change in an Urban Area. Appendix B is based on 2010 census data.
A memo by the U.S. EPA, dated November 26, 2014, indicates that transfers from the LA to the WLA are acceptable ([3]). This represents a change in U.S. EPA guidance. When LA to WLA transfers are allowed, there is no need to identify future growth areas and account for them in the TMDL. LA to WLA transfers are appropriate for addressing any future growth situation. However, the TMDL report must clearly define the process of such a transfer.