Many agencies at the federal, state, watershed, and local levels have jurisdiction over surface and ground waters in Minnesota. These jurisdictions can vary and overlap. Multiple agencies involved in managing the same jurisdictional water lead to complex regulations and permitting programs. This complexity is documented in the 2002 report by the Minnesota Planning Department titled: Charting a Course for the Future: Report of the State Water Program Reorganization Project.
This chapter focuses solely on those programs and permits that are specifically tied to stormwater management, though many other programs may exist that have an indirect stormwater connection. Examples include federal and state hazardous waste management, aboveground and underground storage tanks, solid waste management, oil handling and spill prevention, pesticide management, and facility planning and construction. See also File:Issue paper C - stormwater regulatory framework.pdf
This section focuses primarily on description/interpretation of programs and permits at the federal and state levels. Most of the decisions about development and land use however are made at the local level. It is also at the local level that the effects of runoff problems become most apparent and the responsibility for implementing and maintaining the stormwater infrastructure and stormwater management resides. Because of this, many of the federal and state regulatory programs have a large impact on stormwater management responsibilities at the local level. Counties, watershed organizations, regional agencies (Metropolitan Council), municipalities, and townships are all examples of local government groups that may have responsibility for stormwater management.
The implementation vehicle for many local stormwater management programs is through local ordinances. Stormwater management activities may be addressed through specific stormwater ordinances, zoning ordinances or development ordinances and may contain requirements for water quantity, water quality, erosion and sediment control, nonpoint source pollution control, channel protection, and natural area protection. Appendix G contains links to model ordinances for local stormwater management.
While the Manual has no regulatory authority in and of itself, it seeks to provide a sound technical basis for stormwater management design and implementation. This can be coordinated on a statewide level through existing laws and regulations. Table 5 provides a summary of regulatory authorities for some common stormwater management activities. It outlines the agencies with permitting or review authority and those with the ability to set standards or provide enforcement for those programs.
This section is intended to serve as guidance to assist stormwater practitioners and the regulated community in identifying and complying with existing federal, state, and local regulations. Local programs can vary considerably and go beyond the scope of this document to address individually, though several of the major programs implemented at a local level have been summarized here. Contact the local zoning authority for more specific information on requirements for the project area. Table 5 provides an overview of the federal and state stormwater permitting programs. This is followed by summaries of the major stormwater programs at all levels of government. At the end of this section is Table 5.3 which is a worksheet that can be used by stormwater managers or applicants to help identify programs and permits they may need for a particular type of project. The abbreviations contained within these tables are defined in Appendix H.
The following programs are implemented at the federal level.
This program applies to all waters of the United States, including lakes, rivers, ponds, streams, and wetlandsThe Section 404 program regulates the discharge of dredged or fill material into waters of the U.S.
There are several categories of permits and approvals:
An individual permit is required if the proposed work does not meet the requirements of one of the specific general permits or letter of permission.
This program applies to all Navigable Waters of the U.S. Navigable Water designation is based on past, present or potential use for transportation or interstate commerce. The Section 10 program regulates any work in, over or under a Navigable Water of the U.S or work that affects the course, location, condition or capacity of such waters
There are several categories of permits and approvals:
An individual permit is required if the proposed work does not meet the requirements of one of the specific general permits or letter of permission
This program applies to shallow disposal systems that are used to place a variety of fluids, including stormwater, below the land surface. Class V injection wells are defined as any bored, drilled, driven shaft, or dug hole that is deeper than it is wide; any improved sinkhole; or any subsurface fluid distribution system.
The purpose of the program is to prevent the contamination of any underground sources of drinking water. Inventory information must be submitted for any existing Class V injection wells and before installation of new Class V injection wells. However, a permit is not required if it is determined that the well does not endanger underground sources of drinking water.
The program has two requirements:
This is a joint federal, state, and local program, overseen by the National Park Service which provides coordination for 72 miles of the Mississippi River, four miles of the Minnesota River, and 54,000 acres of adjacent corridor lands. The MNRRA Comprehensive Management Plan adopts and incorporates by reference the state Critical Area Program, Shoreland Management Program, and other applicable state and regional land use management programs that implement the plan’s visions.
Enabling Legislation: Minnesota Statutes, Section 116G (Appendix G); Minnesota Rules, Chapter 4410 (Appendix G) Required Permits: NA Regulatory Authority: National Park Service (oversight) (Appendix G); DNR, Division of Waters (Appendix G); Local Government (Appendix G) Applicability: Sections of the Mississippi and Minnesota River and designated corridor Stormwater Relationship: Activities within the national river and recreation area
The following programs are implemented at the state level.
The Stormwater Program is a comprehensive state stormwater program based on the Federal NPDES program and administered by the MPCA with oversight by the USEPA. The program is based on federal Clean Water Act requirements for addressing polluted stormwater runoff. Stormwater disposal is regulated nationally through the National Pollutant Discharge Elimination System (NPDES) and Minnesota regulates the disposal of stormwater through the State Disposal System (SDS)MPCA issues combined NPDES/SDS permits
A 1987 amendment to the federal Clean Water Act required implementation of a two-phase comprehensive national program to address stormwater runoff. Phase I regulated large construction sites, 11 categories of industrial facilities, and major metropolitan municipal separate storm sewer systems (MS4s), including Minneapolis and St. Paul Phase II includes smaller construction sites, municipally owned or operated industrial activity, and many more municipalities.
Stormwater permits require permittees to control polluted discharges. Regulated parties must develop stormwater pollution prevention plans (or stormwater pollution prevention programs, for MS4s) to address their stormwater discharges. Each regulated party determines the appropriate best management practices (BMPs) to minimize pollution for their specific siteThe three permit types - construction, industrial, and MS4 - have distinct requirements and some regulated parties may require more than one permit
There are two types of NPDES/SDS permits: general permits and individual permits. If work meets the requirements of a specific general permit, an individual permit is not required. Currently there are three categories for stormwater permitting as follows:
The feedlot program regulates the collection, transportation, storage, processing and disposal of animal manure and livestock processing activities, and provides assistance to counties and the livestock industry. The rules apply to all aspects of livestock production areas including the location, design, construction, operation and management of feedlots, feed storage, stormwater runoff, and manure handling facilities.
There are two NPDES/SDS permits for feedlots: general permits for livestock production and individual permits for an animal feedlot or manure storage area. If the proposed facility meets the requirements of the general permit, an individual permit is not required. An individual permit is required if the proposed project does not meet the requirements of a specific general permit due to size or past infractions.
In compliance with Section 303 of the Clean Water Act, this program publishes an updated list of impaired waters every two years. An impaired water does not meet the water quality standards established to protect the designated use (i.e., fishing, swimming, irrigation, etc.) of those waters due to pollutants. The MPCA is required to conduct a TMDL study which identifies both point and nonpoint sources of each pollutant in and impaired water that fails to meet water quality standards. A TMDL specifies the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards, and allocates pollutant loadings among point and nonpoint pollutant sources
Anyone who wishes to obtain a federal permit for any activity that may result in a discharge to a navigable water must first obtain a state 401 water quality certification. This program requires the applicant to demonstrate that a proposed activity will not violate Minnesota’s water quality standards or result in adverse long-term or short-term impacts on water quality. Such impacts can be direct or cumulative with other indirect impacts. Because MPCA staff is no longer assigned to evaluate 401 applications for conformance with water-quality standards, the MPCA has decided to waive its 401 authority in most, but not all, cases. However, this should not be viewed as a waiver from the requirements of MN Rule, Chapter 7050This action does not waive MPCA’s authority to take necessary enforcement actions to ensure that the applicant and the project’s construction, installation, and operation comply with water quality standards, statutes and rules.
Section 319 of the Clean Water Act requires each state to address nonpoint pollution by developing nonpoint source assessment reports that identify nonpoint source pollution problems and the nonpoint sources responsible for the water quality problems. States also adopt management programs to control nonpoint source pollution and then implement the management programs. States, Territories, and Indian Tribes can receive Section 319 grant money which supports a wide variety of activities including technical assistance, financial assistance, education, training, technology transfer, demonstration projects, and monitoring to assess the success of specific nonpoint source implementation projects
Minnesota became part of the national Coastal Management Program after receiving federal approval in July 1999Minnesota’s Lake Superior Coastal Nonpoint Pollution Control Program is designed to reduce nonpoint pollution in the Lake Superior Basin
This program’s mission is to protect the public health by ensuring a safe and adequate supply of drinking water at all public water systems (community and non-community drinking water systems)The program reviews plans for water system improvements, conducts on-site inspections and sanitary surveys, provides training and technical assistance, ensures that water systems are tested for contaminants, and takes action against water systems not meeting standards.
This program applies to drinking water and its sources, which includes rivers, lakes, reservoirs, springs, and ground water wells. The Source Water Protection Program’s purpose is to help prevent contaminants from entering public drinking water sources. There are three different classifications of public water systems: communities, transient noncommunities, and nontransient noncommunities. For groundwater supply areas, each of the public water system categories maintains an inner wellhead management zone, which is a 200-foot radius around wellsIn addition, communities and nontransient noncommunities must also identify capture zones for their wells (wellhead protection areas) and create a formal wellhead protection plan
The Source Water Protection Program consists of three primary parts:
The Minnesota Department of Health is currently developing guidelines for protection plans.
This program, begun in 1937, regulates water development activities below the ordinary high water level (OHWL) in public waters. The Public Waters Work Permit Program applies to those lakes, wetlands, and streams identified on DNR Public Water Inventory maps. Proposed projects affecting the course, current, or cross-section of these water bodies may require a Public Waters Work Permit from the DNR
There are two types of Public Waters Work Permits: general permits and individual permits. If work proposed in public waters or public waters wetlands meets the requirements of a specific general permit, an individual permit is not required. Currently there are five categories of general permits as follows:
An individual permit is required if the proposed work does not meet the requirements of a specific general permit. There are also deregulated activities for which no permit is required.
This program was created in response to legislation requiring DNR to balance competing management objectives that include both development and protection of Minnesota’s water resources. The Water Appropriations Permit Program applies to all users withdrawing more than 10,000 gallons of water per day or 1 million gallons per year. Proposed projects withdrawing this amount of water or more may require a Water Appropriations Permit from the DNR
There are several types of water appropriations permits including general permits and individual permits for both irrigation and non-irrigation purposes. Several exemptions apply for domestic uses serving less than 25 people, test pumping of a groundwater source, reuse of water already authorized by a permit, and for certain agricultural drainage systems. If appropriations meet the requirements for one of the general permits then an individual permit is not required.
Currently there are two categories of general permits:
If the proposed appropriation does not meet the requirements of a specific general permit or is not exempt, an individual permit is required.
Calcareous fens are classified as outstanding resource value waters (ORVWs) and are protected under the restricted discharge provisions of the MPCA water quality standards in Minnesota Rule 7050.0180 Subp6In addition, calcareous fen protections were also put in place in 1991 with the passing of the Wetland Conservation Act and regulate activities that may alter or degrade calcareous fens. Calcareous fens are the rarest wetland community in Minnesota and may not be drained or filled or otherwise altered or degraded except as provided for in a management plan approved by the commissioner.
This program was created in 1978 in response to the federal Dam Safety Act and regulates the repair, operation, design, construction, and removal of public and private dams. The program sets minimum standards for dams regarding safety, design, construction, and operation and it classifies dams into three dam hazard classes. Proposed projects for construction, alteration, repair, removal or transfer of ownership of a regulated dam may require a Public Waters Work Permit
Public Waters Work Permit
The Mississippi River Critical Area Program is a joint local and state program that provides coordinated planning and management for 72 miles of the Mississippi River, four miles of the Minnesota River, and 54,000 acres of adjacent corridor lands
In Minnesota, the Department of Natural Resources maintains the state Wild and Scenic River Program and cooperates with the Wisconsin Department of Natural Resources and the National Park Service for management of the lower St. Croix River, which is part of the National Wild and Scenic Rivers Program. The purpose of the Wild and Scenic Rivers Programs is to preserve select rivers with outstanding scenic, recreational, geologic, fish and wildlife, historic, cultural or other important values in a free-flowing condition.
Six rivers in Minnesota have segments, which are designated as wild, scenic, or recreational under the state program in addition to the federally designated lower St. Croix River. These seven rivers are also designated as Outstanding Resource Value Waters (ORVWs) in Minnesota. Each of the seven designated river segments in Minnesota has a management plan, which outlines the rules and goals for that waterway. These rules work together with local zoning ordinances to protect the rivers from pollution, erosion, over-development, and degradation factors, which undermine the wild, scenic, and recreational qualities for which they were designated
Minnesota participates in the federal Coastal Zone Management program through the Lake Superior Coastal Program. Local issues that the program helps to address include: shoreline erosion, inadequate sewage and stormwater systems, local watershed and land use planning, habitat restoration, waterfront revitalization, and water access. The program was developed to encourage greater cooperation, to encourage simplification of governmental processes, and provide tools to implement existing policies, authorities and programs within the area defined by the program boundary. Lake Superior is designated as an ORVW in Minnesota.
The National Flood Insurance Program (NFIP) enables property owners in participating communities to purchase insurance protection against losses from flooding. Participation in the NFIP is based on an agreement between local communities and the federal government that states if a community will adopt and enforce a floodplain management ordinance to reduce future flood risks to new construction in Special Flood Hazard Areas, the federal government will make flood insurance available within the community as a financial protection against flood losses. In Minnesota, the National Flood Insurance Program is administered by the Minnesota Department of Natural Resources. By state law, all flood prone communities in the state are required to participate in the program.
This is a licensing program for the passage of any utility over, under or across any state land or public waters.
The Board of Water and Soil Resources (BWSR) oversees the adoption and implementation of comprehensive local water management plans, which are voluntary plans created by counties outside the seven-county metropolitan areaThe Act, passed in 1985 encourages counties outside the metropolitan area to protect water resources through the adoption and implementation of local water management plans that are based on local priorities.
The Board of Water and Soil Resources oversees the adoption and implementation of comprehensive surface water management plans, which are created by watershed districts, watershed management organizations, or county/city/township joint powers organizations within the seven-county metropolitan area
After local, regional, and agency review, plans are approved by the Board of Water and Soil Resources. The WMO/WD/JPO then formally adopts the plan and requires each city or township within the WMO/WD/JPO to create and implement their own local water management plan consistent with the WMO/WD plan. Updates are required every 5-10 years.
Many programs are administered at the local level. Some of those are discussed below.
This program, begun in 1991, regulates drainage, fill, or excavation of wetlands in the state. Proposed projects are required to demonstrate through sequencing requirements that the project first seeks to avoid disturbing the wetland; second try to minimize any impact on the wetland; and finally, when impact is unavoidable, replaces any lost wetland acres, functions, and values. Certain wetland activities are exempt from the act, allowing projects with minimal impact or projects located on land where certain pre-established land uses are present to proceed without regulation
There are two categories for WCA permits:
Projects disturbing wetlands may also require permits or approvals from the Department of Natural Resources, U.S Army Corps of Engineers, and Minnesota Pollution Control Agency. A joint application form has been developed that may be used for application to all of these agencies.
This program regulates and monitors industrial discharges into the Metropolitan Disposal System (public sanitary sewer system) to ensure compliance with local and federal regulations. Industrial users discharging wastewater into public sewers are required to apply for an industrial waste permit
There are three categories for industrial waste permits:
Below is a summary
Public drainage administrative oversight is provided by designated Drainage Authorities. Drainage Authorities may be a County Board, a Joint Ditch Authority composed of representatives from multiple counties, a Watershed District or a Water Management Organization. Drainage law applies to public ditches and conveyance systems and consists of four elements; legal, engineering, environmental, and economic. The Drainage Authority has general authority for regulating and maintaining the public drainage system as it was designed. In accordance with M.S103E.411 Subp 2, the MPCA must approve any plan for connection or outlet of a municipal drainage system to a county drainage system.
This program was created in 1969 in response to the Shoreland Management Act and applies to all land within a Shoreland District. Shoreland Districts are defined as lands within 1,000 feet of a lake which is greater than 25 acres (10 acres in municipalities) or within 300 feet of a river with a drainage area two square miles or greater and its designated floodplain defined from the ordinary high water level (OHWL)Local units of government are required to adopt the DNR minimum or stricter standards into their zoning ordinances and permit programs for the use and development of shoreland property. This includes a sanitary code, minimum lot size, minimum water frontage, building setbacks, building heights, land use, BMPs, shoreland alterations, subdivision, and PUD regulations
This program was created in 1969 in response to the State Floodplain Management Act and regulates the construction of structures, roads, bridges or other facilities located within the 100-year floodplain areas
Local units of government for flood prone communities are required to adopt the DNR minimum standards, or stricter, for floodplain management into their ordinances and permit programs. They are also required to enroll and maintain eligibility in the DNR administered National Flood Insurance Program (NFIP), to protect new development and modifications to existing development from flood damages when locating in a flood prone area cannot be avoided.
Local citizen initiatives can petition counties to create lake improvement districts in order to address specific concerns within a lake watershed that cannot be addressed under normal governmental actions. Citizens and counties willing to undertake such initiatives gain greater local involvement in the management of their own lakes
Table 5.3 is a permitting worksheet that is designed to aid the user in determining which permits they may need for a specific project and which agencies to contact for more information. This worksheet should not be viewed as a definitive list but rather as a resource to point the user in the right direction. This worksheet is provided as a means of organization and information gathering. Applicants should always check with their local zoning authority for more information on local requirements
Appendix F includes a links to more information about Special Waters in Minnesota. If a project is in, near, or draining to a Special Water then additional permit conditions designed to preserve and protect the quality and character of these unique waters will apply.
Appendix G includes additional regulatory information that may be useful:
The Manual Sub-Committee prepared an “Overlaps and Gaps Analysis: Stormwater Regulatory Framework Supplement” as part of its work on assessing the regulatory programs in Minnesota. This report in Appendix J contains information from regulated parties and regulatory agencies and should be used when future regulatory updates are considered.