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===Addressing future regulated discharges in the LA===
===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. |+|
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
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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).
Summary of guidance
- The Wasteload Allocation (WLA) must include all drainage from within a regulated municipality or township that discharges from a Municipal Separate Storm Sewer System (MS4) owned or operated by the municipality or township. The WLA may include all drainage from within a regulated municipality or township that is likely to be served by a regulated Municipal Separate Storm Sewer System (MS4) in the future and will be owned or operated by the municipality or township.
- For regulated counties, watershed districts, and non-traditional MS4s, the WLA should only include the area of the regulated MS4 (i.e. road right-of-ways) and property owned or operated by the regulated entity.
- Current or future drainage fromoutside a regulated municipality or township must be included in the Load Allocation (LA).
- A separate Reserve Capacity cannot be developed for regulated stormwater. Future discharges may be included in the WLA or the Load Allocation (LA).
- Future discharges from MS4s that are currently permitted can be determined using land use plans or similar documents.
- MS4s not currently under permit coverage but that will be under NPDES permit coverage, based on one or more criteria described later in this document, may be accounted for in the WLA. These MS4s should receive individual WLAs.
- Load may be transferred from either the LA or WLA to a WLA. The TMDL should state that the process for transferring load will be consistent with the method used to establish the TMDL.
- Direct discharges from nonpoint sources to an impaired water cannot be regulated under a NPDES permit. However, for purposes of practicality, loads associated with these discharges may be placed into the WLA if they are not easily quantifiable and constitute a small percentage of the total WLA.
- The WLA for stormwater may include discharges from municipal, construction, and industrial stormwater if all industrial and construction stormwater discharges occur within the current or future boundaries of a regulated municipality or township.
Definition of wasteload allocation
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.
Definition of regulated MS4s
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.
- An MS4 is any publicly owned or operated separate storm sewer system. An MS4 is not a municipality, township, county, etc. – it is the conveyance system owned or operated by one of those public entities.
- Regulated MS4s are those stormwater systems covered under a NPDES permit. MS4s include the following:
- MS4s owned or operated by municipalities – the permit covers any MS4 within the entire jurisdictional area of a regulated municipality;
- MS4s owned or operated by townships – the permit covers any MS4 within the entire jurisdictional area of a regulated township;
- MS4s owned or operated by counties – only MS4s owned or operated by a county within a U.S. Census Bureau Urban Area are covered under permit;
- MS4s owned or operated by a watershed district – only MS4s owned or operated by a watershed district within a U.S. Census Bureau Urban Area are covered under permit;
- MS4s owned or operated by MnDOT (Minnesota Department of Transportation) – only MS4s owned or operated by MnDOT within a U.S. Census Bureau Urban Area are covered under permit; and
- MS4s owned or operated by a nontraditional entity such as a hospital or university – only MS4s owned or operated by a nontraditional entity within a U.S. Census Bureau Urban Area are covered under permit.
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.
- It is only the conveyance system owned or operated by the regulated entity that is covered under permit.
Location of Minnesota's eight urban areas, based on the 2010 U.S. Census.
Definition of conveyance
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.
Discussion of guidance
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.
Which loads should go into the WLA?
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”(). 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 .
The table reveals several complexities. These are discussed below. The flowchart in Figure 1 illustrates a decision process. Examples are provided in Appendix A.
- Any discharge from a regulated stormwater conveyance must go into the WLA. This includes publicly owned or operated pipes and includes drainage from publicly-owned or –operated land (e.g. a city street, sidewalk, park or state college) that enter a regulated conveyance. Ditches should not be considered stormwater conveyances unless the MPCA stormwater program has made a determination that a particular ditch is a conveyance. Nonpoint discharges to ditches should therefore be in the LA.
- Point and nonpoint discharges that receive drainage from land area within the jurisdiction of a regulated municipality or township and that enter the regulated conveyance system must be in the WLA. This includes stormwater runoff from permitted construction projects, permitted industrial facilities, private lawns, agricultural land use, parkland that is not publicly owned, etc. Construction or industrial discharges covered under a NPDES permit may receive a separate WLA or be incorporated into an overall WLA that includes municipal discharges if the construction and industrial discharges are to a regulated MS4.
- If drainage from land outside a stormwater conveyance is to a watershed district, county, or nontraditional MS4 (including MnDOT), and that drainage is not from property owned by one of these entities, the discharge should go into the LA unless the discharge ultimately is to a regulated conveyance owned by a municipality or township and the discharge is comprised of drainage received from land areawithin the jurisdiction of the township or municipality. In this case, the township or municipality receives the WLA, except for the area of the conveyance(s) owned by a watershed district, county, or nontraditional MS4.
- Nonpoint discharges that are not to a regulated conveyance system must be in the LA unless the discharge will, in the future, be to a regulated conveyance owned by a municipality or township. If a future discharge is comprised of drainage from within the jurisdiction of a municipality or township, the discharge may be part of the WLA for the municipality or township. This future discharge may also be part of the LA provided the TMDL report describes a process for transferring pollutant load from the LA to the WLA. The next section discusses future discharges.
- Discharges comprised of drainage fromoutside the jurisdiction of a municipality or township will be in the LA unless the area will eventually be under the jurisdiction of the municipality or township and the discharge will be to a regulated municipality or township conveyance, in which case the discharge may be part of the WLA. An example would be a regulated city that annexes adjacent land that is not currently covered under a NPDES permit. This load may also be placed in the LA provided the TMDL report describes a process for transferring pollutant load from the LA to the WLA. The next section discusses future discharges.
Flowchart for determining whether a discharge goes into the WLA or the LA.
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.
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 (). 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.
Transfer of loads
Both LA to WLA and WLA to WLA transfers are acceptable. In no case can the overall TMDL change unless the TMDL is resubmitted to the U.S. EPA.
We strongly recommend all TMDL reports describe a process for transferring either LA or WLA to WLA regardless of the likelihood that such transfers will occur. Example language is provided below. Note item 5, which also addresses future point sources that are not MS4s but discharge stormwater.
Future transfer of watershed runoff loads in this TMDL may be necessary if any of the following scenarios occur within the project watershed boundaries:
- New development occurs within a regulated Municipal Separate Storm Sewer Systems (MS4). Newly developed areas that are not already included in the WLA must be transferred from the load allocations (LA) to the WLA to account for the growth.
- One regulated MS4 acquires land from another regulated MS4. Examples include annexation or highway expansions. In these cases, the transfer is WLA to WLA.
- One or more non-regulated MS4s become regulated. If this has not been accounted for in the WLA, then a transfer must occur from the LA.
- Expansion of a US Census Bureau Urban Area encompasses new regulated areas for existing permittees. An example is existing state highways that were outside an urban area at the time the TMDL was completed, but are now inside a newly expanded urban area. This will require either a WLA to WLA transfer or a LA to WLA transfer.
- A new MS4 or other stormwater-related point source is identified and is covered under a NPDES permit. In this situation, a transfer must occur from the LA.
Load transfers will be based on methods consistent with those used in setting the allocations in this TMDL [Specify method, if needed, e.g., “Loads will be transferred on a simple land-area basis.”]. In cases where WLA is transferred from or to a regulated MS4, the permittees will be notified of the transfer and have an opportunity to comment.
The last paragraph in this language indicates the method(s) of transfer will be consistent with the method(s) used to establish the allocations in the TMDL. It is preferred that this methodology be included in the above language. For example, the paragraph may state the following:
Load transfers will be based on the method used in setting allocations in the TMDL. Load transfers will therefore be based on the land area requiring WLA and an assumption that loading rates are equivalent for all land uses in the watershed. For example, conversion of 10 percent of the watershed from LA to WLA will result in a 10 percent decrease in the LA and a 10 percent increase in the WLA. In cases where WLA is transferred from or to a regulated MS4, the permittee(s) will be notified of the transfer.
When feasible, it is best to accommodate future loads in the WLA rather than transfer load from the LA. Having growth accounted for in the WLA does not require re-visiting a TMDL every time growth occurs. Placing future loads into the WLA also may provide a better estimate of ultimate loading for an MS4, which in turn may allow permittees to better plan for future loads and future growth.
When determining WLAs using the above guidance, TMDL authors should use the best available data and professional judgment in making determinations about what goes into a WLA. When appropriate, TMDL authors should consult with Stormwater program staff to ensure consistency across all TMDLs. Some factors that may influence the amount of rigor involved in determining the WLA include the following.
- Limited opportunities for retrofitting. In many cases existing nonpoint discharges to a regulated MS4 can be addressed more effectively than retrofitting. An example would be implementation of BMPs in agricultural areas that discharge to an MS4. Also, in a future load situation, it may be more effective to implement BMPs in newly developing areas than in built-out areas. In these cases, it may be best to place as much load into the WLA as possible.
- Comprehensive land use planning and orderly annexation plans. Many MS4s have comprehensive land use plans and orderly annexation plans. The level of detail in these varies. Plans that illustrate conveyances, often as roads, are more reliable than those that do not. Local planning authorities will often be able to provide insight into likely ownership of conveyances. In the case of annexation, a more conservative approach may be best. Annexation typically will not occur for several years. If an MS4 is provided extra load to accommodate growth that will not occur for many years, the permittee may be discouraged from implementing stormwater management practices.
- GIS may provide valuable insight into drainage patterns within an MS4. Road and DNR catchment coverages may be useful.
In general, we want to avoid a situation where there is a gross over- or under-allocation. An under-allocation occurs when insufficient load is included to accommodate future growth. This forces a permittee to reduce loading from the MS4 within its’ existing area and limits flexibility in choosing BMPs. An over-allocation occurs when too much load is included in the WLA. In this situation, permittees can easily demonstrate they meet their WLA, which results in the permittee not having to implement any BMPs even though their current discharge may contribute to a water quality violation.
Case studies can be found at MPCA’s stormwater webpage ().