The Future of Stormwater Management: MuniCon April 5-8 2021 - Part 2

Aspect is looking forward to discussing key stormwater management issues at this year’s Municipal Stormwater Conference April 5-8, 2021. Please join us in four (virtual) sessions where our stormwater team helps lead the discussion of the future of stormwater management in the Pacific Northwest. Please join us for Aspect presentations three and four (the first two Aspect presentations are summarized here)

 Stormwater Infiltration at Seattle-Tacoma International Airport – April 6

Protecting water quality is a key goal for SeaTac Airport’s stormwater program.

Protecting water quality is a key goal for SeaTac Airport’s stormwater program.

Join Tom Atkins, Principal Engineer, for a discussion on SeaTac Airport’s stormwater infiltration program that extends across 1,600 acres  of drainage area flowing into the Puget Sound and three local streams. The Port of Seattle –the steward for SeaTac Airport -- is interested in stormwater infiltration at STIA to achieve NPDES permit LID and flow control requirements along with GSI sustainability goals. Over the past four years infiltration has been investigated through shallow and deep infiltration feasibility assessments to guide the testing, analysis and design of BMPs for future development. This presentation will summarize the challenges, outcomes and tools that this work has produced, and will describe the deep infiltration testing planned for 2021.

How Shoreline Is Integrating ‘Salmon-Safe’ and the NPDES Phase II Permit – April 7 

In 2019, the City of Shoreline was the first in the state to achieve Salmon-Safe certification.

In 2019, the City of Shoreline was the first in the state to achieve Salmon-Safe certification.

Join Bryan Berkompas, Associate Hydrologist, to learn how Shoreline became the first city in Washington to achieve Salmon-Safe certification and how they are incorporating its requirements in City operations. Salmon-Safe guidelines are rigorous but also complimentary with many of the requirements of the NPDES Phase II permit. This presentation will discuss the process of achieving Salmon-Safe certification, the benefits of Salmon-Safe certification, and designing programs that satisfy the requirements of both the Permit and Salmon-Safe.

Join Aspect Stormwater Experts (Virtually) at NEBC Stormwater Conference Thursday September 10

Touted as “The State’s Largest and Most Comprehensive Stormwater Conference,” the Northwest Environmental Business Council (NEBC) will host the Managing Stormwater in Washington state conference on Thursday, September 10th. For the first time, this conference will be held virtually, and Aspect is proud to be a premier sponsor of the event again.

This focused one-day conference is Washington’s leading stormwater event, convening regulated companies, governments, solution providers, and regulators for learning, networking, and business development. The conference’s educational sessions will cover both fundamental and advanced topics in the areas of industrial, construction, and municipal stormwater management. Aspect’s stormwater professionals Owen Reese, James Packman, John Knutson, and Erik Pruneda and will also be contributing to three of the sessions.

Owen will be part of the panel during the conference’s Featured Plenary Session, The Impact of Third-Party Lawsuits. Clean Water Act lawsuits brought by public interest groups have become an effective enforcement tool for stormwater permit compliance. Functioning as a supplement to agency enforcement efforts and feared by regulated industry, these citizen suits can lead to unwanted scrutiny and often carry stiffer penalties than an agency enforcement action. The panel of experts will shed light on the citizen suit provision of the Clean Water Act, causes and timing, and what you can expect if you find yourself in trouble.

James will moderate the Municipal Fundamentals session, where attendees can gain a thorough understanding of the basic elements of municipal stormwater management including general permit requirements and enforcement; watershed planning; source control; creating Stormwater Pollution Prevention Plans (SWPPPs); proper sampling techniques; and the most common Best Management Practices (BMPs) in municipal settings.

John and Erik will be presenting on the Keys to Successful Infiltration, where they will discuss the recently published Infiltration Standard Operating Procedures (SOPs) that Aspect developed for the Port of Seattle’s Seattle-Tacoma International Airport. The SOPs provide a holistic process for planning infiltration system and dive into the details on field testing and using test information to support design.

Learn more about the conference HERE.

Key U.S. Supreme Court Decision on Groundwater and the Clean Water Act

Groundwater flow path from the County of Maui’s Wastewater Reclamation Facility to the Pacific Ocean. This facility is the subject of the U.S. Supreme Court case. An extensive hydrogeologic study was completed to map how pollutants travel through groundwater to the Ocean. Source: Lahaina Groundwater Tracer Study

On Thursday, April 23, the U.S. Supreme Court ruled in County of Maui v. Hawaii Wildlife Fund, setting an important, but difficult to implement, precedent for determining when National Pollutant Discharge Elimination System (NPDES)[1] permits are required for discharges to groundwater.

How this Case Came to Be

The County of Maui discharges treated municipal wastewater to the ground through four wells about a half-mile from the Pacific Ocean. Multiple environmental groups sued under the Clean Water Act, alleging that the discharge required an NPDES permit.

The U.S. District Court agreed with the environmental groups, concluding that a permit was required because the discharge was “functionally one into navigable water.” The Ninth Circuit Court affirmed, establishing a test that permits are required when “pollutants are fairly traceable from the point source to a navigable water.”

The County appealed to the U.S. Supreme Court. EPA weighed in, offering an Interpretive Statement that concluded that all releases of pollutants to groundwater are excluded from the Clean Water Act’s permitting program, “regardless of a hydrologic connection between the groundwater and a jurisdictional surface water”.

The Supreme Court set aside the prior approaches by the District Court and Ninth Circuit, and did not give deference to EPA’s opinion, instead crafting their own solution that NPDES permits apply “to a discharge (from a point source) of pollutants that reach navigable water after traveling through groundwater if that discharge is the functional equivalent of a direct discharge from the point source into navigable waters.”

In a recent blog post, attorneys from Stoel Rives view the Court’s decision as taking the middle ground, resulting in the need for potentially difficult case-by-case evaluations based on the non-exclusive list of seven factors the Court defined as important for functional equivalence:

  1. Transit time

  2. Distance traveled

  3. The nature of the material through which the pollutant travels

  4. The extent to which the pollutant is diluted or chemically changed as it travels

  5. The amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point sources

  6. The manner by or area in which the pollutant enters the navigable waters,

  7. The degree to which the pollution (at that point) has maintained its specific identity

Hydrogeologic Science to Increase in Relevance

The opinion established time and distance as the most important factors in most, but not all, cases.

This emphasis will likely prove problematic, because time and distance, while important, are often not enough, by themselves, to resolve the question of whether pollutants are being transported to a surface water. Should it matter how close (in time or distance) a discharge is to a surface water, if the subsurface conditions provide adequate treatment? In many cases, the other factors identified by the court may prove more important. These questions will likely only be resolved through hydrogeologic studies, and in many cases litigation, at the expense of the individual dischargers.

Implications for Pacific Northwest Businesses and Municipalities

This decision has relevance to businesses and municipalities in the Pacific Northwest that discharge stormwater or wastewater to ground. We expect to see increased attention from regulatory agencies and environmental groups focused on discharges to groundwater. In particular, facilities that are currently exempt from the Industrial Stormwater General Permit because they only discharge to ground should carefully examine their discharge relative to this decision.

To learn more and discuss the relevance of this case further, contact Senior Associate Water Resources Engineer Owen Reese at oreese@aspectconsulting.com or 206-838-5844.

[1] NPDES is the federal program that regulates the discharge of pollutants to waters of the United States.

A Peek Inside Washington State's Draft Industrial Stormwater General Permit

Stormwater discharges from over 1,200 industrial facilities are covered under Washington’s Industrial Stormwater General Permit (ISGP). The goal of the ISGP is to reduce the discharge of pollutants by improving management of stormwater at industrial sites. It originates from a combination of federal (the Clean Water Act) and Washington state (Water Pollution Control Act) law. Under the ISGP, permittees are required to implement Best Management Practices to reduce stormwater pollution, monitor their stormwater discharges, compare the results with benchmark values, and implement an escalating series of corrective actions depending on the number of times the benchmarks are exceeded. The current permit has brought compliance challenges, including expensive stormwater treatment systems and citizen law suits, to many permittees.

On May 1, 2019, the Washington State Department of Ecology (Ecology) published a draft of the next ISGP for public comment. Owen Reese, PE, Aspect’s stormwater practice lead, offers this synopsis:

What Won’t Change

Many of the key permit provisions will not change. The five core water quality benchmarks—turbidity, pH, oil sheen, copper and zinc—remain the same, and the requirements and deadlines for implementing corrective actions if those benchmarks are exceeded remain unchanged.

Proposed Changes

Increasing Focus on Infiltration to Groundwater – The most significant proposed changes relate to discharges to groundwater. Ecology is proposing changes to groundwater-related provisions that leave the impression that they intend to increasingly regulate infiltration of stormwater under the ISGP. This sets Ecology on a divergent course from the US Environmental Protection Agency (EPA), who recently issued an interpretative statement that discharges to groundwater are categorically excluded from the permitting requirements of the Clean Water Act. The interpretative statement does not apply to Washington and other states in the 4th and 9th Districts while Hawai’i Wildlife Fund v. County of Maui is pending before the Supreme Court. 

Ecology has also struck language from the permit in several locations, including key groundwater-related provisions, without identifying it as a change—which could be problematic for reviewers.

Adding Two New Industries – Ecology proposes to add two new industries to ISGP coverage: marine construction and certain heavy equipment rentals. Neither of these industries are currently required to have NPDES coverage for stormwater discharges under the Clean Water Act. What activities qualify as “marine construction” can also be challenging to define as it does not fall within easily definable Standard Industrial Classification (SIC) or North American Industry Classification System (NAISC) code, and Ecology confounds this issue by not including the definition of marine construction in the draft ISGP.

Identifying Industries by NAICS Codes – Ecology proposes to identify industries that require ISGP coverage by NAICS code, instead of SIC code. The Clean Water Act remains based on SIC codes, and there is a not a one-to-one relationship between the two codes. As a result, Ecology’s translation of SIC codes to NAICS appears to have included, perhaps inadvertently, several business sectors that previously did not require permit coverage, such as:

  • Miniwarehouses and Self-Storage Units (NAICS 531130)

  • Scenic and Site Seeing Transportation (NAICS 487990)

  • Commercial Air and Rail Equipment Rental (NAICS 532411)

Puget Sound Sediment Cleanup Sites – Ecology has re-upped the requirements that permittees discharging to a Puget Sound Sediment Cleanup site (such as the Duwamish, Elliott Bay, Commencement Bay, Port Gardner Bay, or Bellingham Bay) will need to sample stormwater sediments and clean their pipes at least once in the next 5-year permit cycle. It was not clear in the prior permit that these would be recurring obligations.

Annual Sampling to Confirm Consistent Attainment – Under the draft permit language, facilities that have achieved consistent attainment by meeting water quality benchmarks would be required to collect one sample per year (in the fourth quarter). Any exceedance of a benchmark would bump the facility out of consistent attainment and require resuming quarterly sampling.

Sampling First Fall Storm Earlier – Ecology proposes to shift the requirement to sample the first flush a month earlier, to beginning September 1 of each year. We’ll likely see more third quarter benchmark exceedances as a result, as there are fewer summer storms to sample to average with the first flush.

What the Proposed Changes Could Mean

Although ostensibly aimed at providing clarity, the revisions incorporated into draft ISGP actually increase the opportunity for confusion. If the draft ISGP language is implemented, we may see more citizen suits, particularly related to the use of NAICS codes and stormwater discharges to groundwater. Ecology could remedy some of these concerns by clearly identifying which provisions of the ISGP are based in federal law, and which originate at the state level.

Comments on the draft permit are due on June 29 and can be submitted online at: http://ws.ecology.commentinput.com/?id=k3Zx2. Ecology is also hosting three more public hearings where comments can be given in person:  

Contact Owen Reese at 206-838-5844 or oreese@aspectconsulting.com with any questions on the proposed changes and implications.

Aspect personnel collecting a sediment sample at an industrial site.