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Phase II Stormwater Management

What is Phase II?

In 2003, the US EPA's NPDES program for Massachusetts began requiring that municipalities within urbanized areas obtain stormwater discharge permits to better manage their publicly owned stormwater collection and discharge systems from town roads and properties. The objective of these newly issued water quality permits (called the Phase II MS4 permits), is to minimize the impacts to water quality and wetlands from these municipally owned stormwater discharge systems. The 5-year permits issued to the town under this programs, requires that the towns identify illicit discharges of contaminants to stormwater, and to implement programs and practices to reduce the discharge of pollutants.

All Buzzards bay municipalities applied for and received a permit under this program, except the city of New Bedford, which was included in Phase I of the program. The Phase II permits expire and 2008 and the towns will need to submit a new permit application at that time. This web page summarizes some of the salient concerns and issues that relate to MS4 and other Phase II permits.

Alert: Municipal Phase II annual reports are due each May

The Buzzards Bay NEP would like to remind municipalities that their Phase II MS4 annual permit reports are due May 1 of each year. Buzzards Bay municipalities must submit annual reports summarizing municipal progress on implementing their Phase II stormwater management plans. Reports must be submitted both to EPA-NE and DEP, in years 2004 through 2008.

One of the more important tasks in each municipal stormwater management plans is that the town's form a committee composed of representatives from the DPW, planning board, conservation commission, and selectmen, and that they periodically meet to develop complimentary strategies for managing their municipal stormwater systems in their urbanized areas. If this group has not met recently, now would be a good time to schedule a meeting.

Links to EPA's sample reports, forms, and other information can be found at www.epa.gov/NE/npdes/stormwater/ms4-annual-rpt.html.

Manuals and support Links

The Center for Watershed Protection has been researching the most cost effective and efficient discharge detection techniques currently in use around the country, and synthesizes these findings into specific guidelines on illicit discharge identification and removal. The final product of this project is the Illicit Discharge Detection and Elimination Guidance Manual, a comprehensive manual that outlines practical, low cost, and effective techniques to for program managers and practitioners to use. The manual is available for free download in the link above.

Phase II annual reports

Most municipalities in Massachusetts met their May 2003 deadline for submission of their Municipal Phase II Stormwater MS4 permit applications for their first 5-year permit. Each May 1, municipalities must submit annual reports to EPA and DEP on their progress. To assist in filing this information, refer to the sample reporting format is contained on the following EPA Region 1 stormwater website. Scroll down to the subtopic "MS4 Program" and look for "Annual Reporting Requirements Summary NEW".

Municipal coordinators with questions may contact Linda Domizio, Division of Watershed Management, MA Department of Environmental Protection, 627 Main Street, 2nd Floor, Worcester, MA 01608, Tel: 508-849-4005, Fax: 508-791-4131, or Thelma Murphy of the US EPA at 617-918-1615, email: murphy.thelma@epa.gov.

General Construction Permit issued July 2003

EPA's Construction General Permit was published in the Federal Register on July 1, 2003 and remains in effect. The permit regulates all construction activity covering one acre or larger, including cumulative impacts of projects segmented over time. Construction sites that are five acres or larger were regulated previously under Phase I of the program and earlier construction general permits promulgated several years ago. Under this Permit, construction site operators or developers in Massachusetts (and elsewhere) will need to develop and implement stormwater pollution prevention plans and file a "Notice of Intent" form at least 7 days prior to initiation of land-disturbing activities. More information can be obtained at the US EPA website on Construction General Permits . While municipalities are not required to ensure that developers are complying with this federal permit program, EPA hopes that municipal Stormwater Management Programs will somehow ensure compliance.

Background on the Phase II MS4 permit

On December 8, 1999, EPA published in the Federal Register the "Phase II Final Rule" (Phase 2) for the National Pollution Discharge Elimination System (NPDES) program. The rule expanded jurisdiction of who must file permits for stormwater discharges in the NPDES "point source" pollution permit program. In 1992, Phase I of the program required for the first time the permitting of stormwater discharges to federal wetlands. In Phase II of the program, permit coverage expanded to include storm water discharges from: "Certain regulated small municipal separate storm sewer systems (MS4s); and Construction activity disturbing between 1 and 5 acres of land (i.e., small construction activities)" and "revises the "no exposure" exclusion and the temporary exemption for certain industrial activities."

In plain English, the rule required municipalities to submit permit applications for their road stormwater discharges ("MS4s"), as well as "industrial facilities" waste transfer stations, land fills, and sewage treatment plants (separate from the wastewater discharge permit). It has been determined that DPW garages are exempt.

Permit Application Delays

The implementation of the Phase II program was delayed for a number of reasons. One issue was that the US Census Bureau's redefined the criteria for "urbanized areas" in the 2000 Census. Because urbanized areas were the basis of whether or not a municipality had to comply with the program, many communities learned for the first time in September 2002 that they must comply with the program by May 2003. . In the Buzzards Bay watershed, all 15 mainland municipalities had to submit a Phase II MS4 permit, but nine of these municipalities, (Mattapoisett, Marion, Rochester Wareham, Carver, Middleboro, Plymouth, Bourne, and Falmouth), were added to the program in late 2002.

EPA did not release the draft Phase II MS4 permit until September 2002, with a projected final permit guidance to be issued on December 8, 2002. However, the draft permit raised several questions, requiring EPA to provide additional guidance. Certain issues took a long time to resolve, and the final permit forms were delayed until the May 2003. This caused a rescheduling of the application deadline until July 30, 2003. The final permit, released at that time and still in effect, can be viewed at:

http://www.epa.gov/region01/npdes/permits/permit_final_ms4.pdf.

The official notice of its publication appeared in the Federal Register on May 1, 2003 can be viewed at http://a257.g.akamaitech.net/7/257/2422/14mar20010800/edocket.access.gpo.gov/2003/03-10762.htm

If municipalities submitted a Notice of Intent (NOI) to DEP and EPA before the May 1, 2003 publication of the final permit guidance, it was considered not valid, and they were asked to submit a new application signed after the May 1st. The delays by EPA on the issuance of the permit were actually due in part to a 9th Circuit Court decision, which affirmed EPA legal authority to require Phase II permits, but also required meaningful review of the applications. Read this March 7, 2003 California newspaper article explaining the case.

Commentary

Besides the MS4 permit, most municipalities were already aware that they must also file permits for "industrial facilities" (waste transfer stations, salt storage areas, etc.) by the March 10 2003 deadline, whether or not they are in an urbanized area. In 2003, EPA concluded that DPW garages were exempt from the process because these facilities were not listed in the Federal Register when the permit was published. These municipal "multi-sector permits" also require development of separate "Stormwater Pollution Prevention Plans."

BBP Technical Assistance

To assist municipalities in the development of their permits, the BBP collected the essential information to make municipal Stormwater Management Programs a success, and mailed that information to them on CDs and established this web page.

Notice dated July 29, 2002 to Buzzards Bay municipalities notifying them of the newly designated urbanized areas. (78 kb pdf)

DEP Stormwater Permit Application Forms

EPA's "Recent Additions" page for the NPDES program

Application Process

Municipalities had to submit Phase II MS4 permit applications (called a Notice of Intent or NOI) to both DEP and EPA. Both agencies jointly issue the Phase II stormwater permit, and DEP issues the companion 404 water quality certification. DEP and EPA jointly developed a common eight-page NOI permit application form that meets both agency submission requirements. The application form requires no submission of maps or specific details of the municipalities' stormwater management program. This application would be supported by the actual Management Plan on file at town hall or the DPW offices. After the town's submit their NOI, EPA would award the town a permit for its discharges.

Your Stormwater Management Program

The Stormwater Management Program plan submitted in 2003 should be considered an interim or "living document" that will be enhanced and refined over the next five years. In many respects, the town's NOI application was a commitment to develop and implement a municipal stormwater management program. For example, because most town's have not yet inventoried all their stormwater discharges, the town's NOI submission should have described how the town will go about inventorying all wetland stormwater discharges, implement a public outreach program, and implement management strategies for the next five years.

By the Fall of 2003, Boards of Selectmen, DPW Directors, or other designated municipal program coordinator should have established a municipal stormwater management committee composed of a representative from the Planning Board, Conservation Commission, Board of Health, Board of Selectman or Mayor's office, the Building Inspector, and interested citizens. This group will guide the development and implementation of the municipal stormwater program. (A smaller steering committee should have been established in the spring of 2003 to decide what commitments were to be included in the NOI permit application and Stormwater Management Program.) Very few municipal actions were required by the regulatory agencies for the town's management program, but whatever was stated in the municipalities plan and NOI has become a commitment under the terms of the permit.

Who Does What?

In most Buzzards Bay towns, the breakdown of responsibility for actions in the stormwater management program will vary, but most typically will be as follows:

• The DPW will map storm drains and catch basins
• The Board of Health and DPW will detect and remove existing illicit connections to the stormwater system
• The Conservation Commission and Planning Board will better manage future stormwater discharges by amending regulations or proposing new bylaws (if necessary), to ensure adequate stormwater treatment and management to meet the federal permit thresholds (alteration of 1 acre or more of land)
• The Town Administrator will oversee the public outreach requirement and ensure compliance with the Public Meeting laws
• The Board of Selectmen will establish a Stormwater Management Committee of town officials and interested residents to guide and refine the program during the next five years

Sample Stormwater Management Program

The eight page NOI permit application, should have included reference to a Stormwater Management Program (SMP), but the SMP did not need to be submitted. The SMP should be located at town hall or the DPW garage, and should be readily available for inspection by DEP, EPA, or members of the public. Applications submitted in Massachusetts varied greatly. In the Spring of 2003, the Buzzards Bay NEP prepared a sample document (for the mythical town of "Compliance, MA") to illustrate the essential elements that should be included in municipal SMPs to make them a success and to comply with state and federal requirements.

Sample Phase II Stormwater Management Program for the Town of Compliance, MA (157 kb MS Word document, draft date: 3/7/03)

Municipal Industrial facilities
All DPW "Industrial facilities", whether or not they are in the Phase II area must file a similar NOI NPDES permit form (called a Multi-sector General Permit or MSGP) were supposed to be submitted by March 10, 2003. We believe some municipalities in Massachusetts have not met this deadline for all their industrial activities. The application must be supported by a DPW Storm Water Pollution Prevention Plan (SWPPP) to be on file by the March 10 deadline. This NOI application is required if the stormwater enters a surface water, wetland, other MS4, or conveyance system to a wetland. Check with EPA for the criteria, but the permit may be required for wastewater treatment plants over 1 MGD, waste transfer stations, garages with fueling and washing, salt storage, etc. Municipalities had been exempted from this requirement in the past, but now most municipal facilities were to apply for a MSPG permit by March 10th. If any of your facilities are now covered in the program, you must file a separate MSGP permit NOI and prepare a separate SWPPP for each facility. If you missed the deadline, you should still submit an application. Follow this link to theUS EPA Industrial permits, who's covered page (general info for the public and private sectors).



DPW Garages
EPA has exempted DPW facilities because the "SIC codes" published in the federal register do not specifically list state and municipal public works garages. In March 2003, EPA withdrew its page "Do you need a permit for your municipal industrial activity?" because of unresolved issues relating to the failure to include DPW type garages in the SIC codes. Ultimately by the summer of 2003, EPA determined that, because of the omission, municipalities did not have to file MSGPs for DPW garages.

More Background Info:

The Buzzards Bay NEP's slide show to municipalities on Phase II from January 2003. (3 MB pdf file)

A fact sheet on Phase II NPDES stormwater permits due March 2003.
What do towns have to do, and will Phase II improve water quality? This 128 Kb PDF file tries to answer these questions.

BBP exclusive: ArcView coverages of Census 1990, Census 2000, and Phase 2 combined areas for Massachusetts.
Data from US Census. Coverages include Rhode Island and certain areas adjacent to Massachusetts.

Massachusetts Attorney General's sample local stormwater bylaw.

The US EPA's website on the Phase I and II Storm Water programs.

MA DEP's Phase II Storm Water Information Page.

US EPA page to show detailed maps by town in Massachusetts of Phase II areas, with streets.
Note: All Cape Cod towns and Buzzards Bay towns west to Marion are lumped in the urbanized area for the "Town of Barnstable". Most other Buzzards Bay towns (Mattapoisett to Dartmouth) are lumped in the map of the New Bedford urbanized area. The Town of Westport is in the Providence, Rhode Island urbanized area. The overview maps are around 300 kb, the detailed road maps are around 1-2 MB.

State and Federal Phase II Contacts

US EPA
Office of Ecosystem Protection, EPA-Region I, Boston, MA
Thelma Murphy, (617) 918-1615
David Gray, (617) 918-1577

MA DEP
Linda Domizio at (508) 849-4005

Municipal Phase II Permit Primary Contacts in the Buzzards Bay Watershed

• Acushnet: Daniel Henzlinger, Public Works Superintendent
• Bourne: William Griffin, Town Manager
• Carver: William Haunen, DPW Director
• Dartmouth: David Hickox, Public Works Assistant Superintendent
• Fairhaven: John Charbenneau, Highway Superintendent
• Fall River: Charles Boulay, Sewer Commission Stormwater Coordinator
• Falmouth: Steven Pisch, Assistant Town Engineer
• Marion: Robert Zora, DPW Director
• Mattapoisett: Michael Bothello, Town Administrator
• Middleborough: Jack Healy, Town Manager
• New Bedford: Ronald Labelle, Director, Water and Sewer Department
• Plymouth: Saeed Kashi, Town Engineer
• Wareham: Michael Hartman, Town Administrator
• Westport: Harold Sisson, Highway Surveyor

Please go to our Stormwater Management Page for more information about other programs and initiatives from the Buzzards Bay NEP.

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