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Home My WebLink About10A Municipal Separate Storm Sewer System PermitPRIp� U \rNNESa�� 4646 Dakota Street SE Prior Lake. MN 55372 CITY COUNCIL AGENDA REPORT MEETING DATE: SEPTEMBER 6, 2011 AGENDA M 10A PREPARED BY: ROSS BINTNER — WATER RESOURCES ENGINEER PRESENTED BY: ROSS BINTNER — WATER RESOURCES ENGINEER AGENDA ITEM: CONSIDER APPROVAL OF A REPORT ON AN UPDATE TO THE MUNICIPAL SEPARATE STORM SEWER SYSTEM PERMIT AND ADOPTION OF A RESO- LUTION SUPPORTING LMC EFFORTS TO MODIFY MS4 REQUIREMENTS. DISCUSSION: Introduction In early 2012 the Minnesota Pollution Control Agency (MPCA) will issue a revised Small Municipal Separate Storm Sewer Systems (MS4) general permit. The per- mit revision has the potential to change how stormwater is managed in the City and the associated cost for clean water outcomes. History Provisions of the Federal Clean Water Act are administered locally by the MPCA. The MPCA first undertakes a public rulemaking process to determine how to meet state and federal law. After the rulemaking, the MPCA creates and revises per- mits. In regulating MS4 Cities, the MPCA writes a General Permit for all MS4s that specifies the minimum standards each city must meet. To gain coverage un- der the general permit cities prepare a Stormwater Management Plan (SWMP) which details specifically how each requirement will be met. The City of Prior Lake has been permitted under the MS4 General permit since 2003. Current Circumstances The MS4 General Permit expired on May 31, 2011. The MPCA is undertaking a revision of that general permit and has recently completed a public notice com- ment period. The following is a summary of substantive changes to the Permit: • Specifies additional requirements from the previous permit for ordinances that govern new construction activities and land development. • Requires the development of a Stormwater Management Program docu- ment that includes specific enforcement response procedures. • Requires development of an accounting system to track water quality ben- efit of individual treatment practices and programs. • Requires mapping and assessment of individual system components at a new level of detail. • Requires the development of specific standard operating procedures that will govern operations and maintenance actions. The current system of water resource management in the City relies on the Local Surface Water Management Plan, and the plans of local watershed organizations. Development standards are set by local and site specific study and projects and programs go through the budget and capital improvement process. Budget items include programmatic pollution reduction efforts such as street sweeping, source reduction techniques, and planning and new development standards. Capital im- provements include maintenance of existing pollution treatment system and retro- fit of systems to increase pollution removal capacity. The local system of control allows the City flexibility to tailor its water quality system to create an efficient and multipart strategy. ISSUES: The League of Minnesota Cities and their Minnesota Cities Stormwater Coalition (LMC) have submitted formal comments and a contested case hearing petition in response to the draft permit noticed by the MPCA. It is expected that LMC will negotiate numerous aspects of the draft permit language with the MPCA over the next several months. There is hope that progress can be made resolve many of these issues through negotiation, but if there are significant outstanding areas of disagreement at the end of these negotiations, LMC are considering the option of challenging the MS4 permit through as lawsuit that would be filed after the final version of the permit is issued. This issuance is expected in late 2011 or early 2012. The draft permit was reviewed by City Staff and the LMC which Prior Lake is a member. LMC retained the services of the law firm Gray Plant and Moody, to re- view the permit and prepare comments. The review and official comment is a 77- page document. The results of these reviews are summarized below: • The revised permit imposes unreasonable, infeasible or impractical condi- tions that are unsupported by substantial evidence and seemingly arbitrary and capricious. • In prescribing means and methods for low impact development the MPCA exceeds its statutory authority. • In regulating flow and volume rather than pollutants, the MPCA exceeds its statutory authority. • The rule exacerbates redundancies in the construction stormwater pro- gram. • The revised permit impermissibly sets standards that should be part of a rulemaking process. • The permit violates the separation of powers requirement of the Minnesota constitution and unlawfully intrudes on the land use planning authority and enforcement discretion of municipalities. • Costs to comply with the permit are overly burdensome and unreasonable. • The revised permit is biased toward expensive site specific structural stormwater control infrastructure. Attached is the cover letter to the City staff review. The full City staff review and LMC contested case hearing petition are available in the council agenda Laser - fiche folder labeled <110906 ITEM 10A Appendix1.pdf> and <110906 ITEM 10A Appendix2.pdf >, respectively. If the draft MS4 general permit goes into effect without revision, the current sys- tem of water resource management in the City will have to change. The City will be required to perform ordinance revisions and new plan development without re- gard for effectiveness or cost efficiency in promoting clean water outcomes. De- velopment standards will be less flexible and will rely more heavily on expensive structural volume control methods. Staff resources will need to be diverted, or work contracted to model and measure the pond system including: total annual flow, pond volumes, water flow path through the pond, prevent aquatic vegetation cover, and nearby groundwater levels. City staff recommends the attached reso- lution be passed by the City Council in support of LMCs efforts to come to an ami- cable solution, which would accompany a letter to the MPCA Citizens board. Conclusion It appears that the Minnesota Pollution Control Agency staff has overstepped its authority in the proposed revision of the MS4 General Permit. To maintain a local- ly based stormwater treatment system that is tailored to local conditions and opti- mized to function in the most cost effective manner City Staff recommends that the Council pass a resolution in support of the League of Minnesota Cities effort to negotiate revisions to the draft permit consistent with the legal issues spelled out in its contested case petition. FINANCIAL Were the draft permit approved without changes the City would go from paying IMPACT: $30- $300 /lb phosphorus for new treatment to $1000 - $6000 /lb phosphorus de- pending on individual site limitations. This change would significantly slow the pace of clean water system development and would drastically increase long term costs. ALTERNATIVES: 1. Approve a resolution in support of the LMC effort to negotiate changes to the MS4 permit. 2. Table item or deny and provide staff with alternate direction. 3. Do nothing. RECOMMENDED Alternative 1. MOTION: PRl() !� O U �y '\ �4.- S o " , r1VXt �) 4646 Dakota Street SE Prior Lake, MN 55372 RESOLUTION 11 -xx A RESOLUTION REQUESTING MPCA CONSIDERATION OF REVISIONS TO NEWLY PROPOSED MS4 STANDARDS Motion By: Second By: WHEREAS, The City of Prior Lake holds a Municipal Separate Storm Sewer (MS4) Permit; and, WHEREAS, The Minnesota Pollution Control Agency (MPCA) has put a draft revision of the MS4 Permit out for public notice; and, WHEREAS, The draft Permit represents a significant overreach of MPCA authority by spelling out ineffective and burdensome prescriptive standards; and WHEREAS, The League of Minnesota Cities — Minnesota Cities Stormwater Coalition (LMC) has performed a legal review and submitted a petition for a contested case hearing; and, WHEREAS, The LMC has concluded that the draft Permit has numerous and serious flaws; and, WHEREAS, City staff has reviewed the draft Permit and submitted formal comments to the MPCA Commissioner and Citizens Board urging a withdrawal or major revision of the draft Permit. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recitals set forth above are incorporated herein. 2. The City Council asks that the MPCA negotiate in good faith with the LMC to revise the draft MS4 permit to be less burdensome for cities to implement. 3. The City Council asks that the MPCA remove prescriptive standards that do not have direct bearing on clean water outcomes. 4. The City Council asks that the MPCA remove prescriptive standards that may result in inefficient allocation of resources and slow the pace of clean water implementation. PASSED AND ADOPTED THIS 6th DAY OF SEPTEMBER, 2011. YES NO M ser M ser Erickson Erickson - Hedberg Hedber Keeney Keene I- Soukup Souku Frank Boyles, City Manager f � PRjQ� h 4646 Dakota Street SE Prior Lake. MN 55372 July 15, 2011 MPCA Commissioner and Citizens Board c/o Mr. Duane Duncanson Minnesota Pollution Control Agency - Municipal Division MS4 Stormwater Permit Program 520 Lafayette Road North St, Paul, Minnesota 55155 -4194 RE: Small Municipal Separate Storm Sewer System (MS4) General Permit reissuance comments and Petition for the MPCA Citizen Board to consider. Dear Commissioner Aasen and Citizens Board Members, Please accept this comment letter on the MS4 general permit reissuance. After reviewing the draft permit and considering its potential affect on clean water program implementation in the City of Prior Lake; I find that the draft permit is breathtakingly burdensome and completely counterproductive to existing water resources planning and implementation efforts. In my time as the Water Resources Engineer for the City of Prior Lake, I have witnessed a strong and widely held ethic of conservation and stewardship of water resources in the citizens, elected officials and municipal staff in the City of Prior Lake. The City organization demonstrates its commitment to protecting, and when needed, restoring its waters to a clean and unpolluted state through implementation of its many plans dealing with water resources, most notably: The 2030 Vision and Strategic Plan, Comprehensive Plan, Local Surface Water Management Plan, Stormwater Pollution Prevention Plan and Wellhead Protection Plan. In Prior Lake the City does not act alone in the implementation of water resources planning. In partnership with our local Watershed Organizations the City applies a mix of stormwater management controls through the creation of new infrastructure, the rehabilitation, maintenance and retrofit of existing infrastructure and the commissioning of programmatic water resource, natural resource, and pollutant reduction efforts, The whole of the water resource program at the City of Prior Lake goes through a rigorous public process that considers alternatives, and seeks to squeeze the most public benefit out of every tax dollar, in a variety of service areas. The implementation of the MS4 General Permit, as it is currently written, threatens to derail the bottom -up planning effort that engages the passion, imagination, and creativity of so many. I write to you today to plead that the Agency rethink the top -down regulatory paradigm the draft MS4 permit envisions; an approach that is guaranteed to waste tax dollars and slow the pace of local clean -water innovation and implementation. After hearing testimony from affected parties, it is my hope that the MPCA Citizens board and Commissioner will withdraw the current draft permit and direct agency staff to revise it to be less burdensome and not counterproductive to local water resource planning and implementation efforts, Attached please find technical comments to help achieve this end, Sincerely, Ross T. Bintner, P.E. Water Resources Engineer CITY OF PRIOR LAKE Phone 952.447.9800 / Fax 952.447.4245 / www.cityofpriorlake.com The following technical comments on the draft MS4 Permit provided by the City of Prior Lake follow the format pursuant to Minnesota Rules 7001.0110 with the statement of interests and statement of action included in the cover letter. If the statement of action from the cover letter is not pursued, the statement of action is to change the permit language consistent with the complaint and supporting reasons described in each comment, Request for New Public Comment Period: The MPCA announced a notice and public comment period for the Draft Permit beginning on May 31, 2011 and ending on July 15, 2011. Effective June 30th, 2011, however, the MPCA and most of the State of Minnesota (including the State Register's Office) closed their doors and took down their websites, As a result, the public could no longer obtain the Draft Permit or the accompanying documents from MPCA's website, by request to MPCA, or by review in MPCA's offices as provided in the Public Notice. These circumstances effectively eliminated the public's access to what were supposed to be publicly available noticed materials during what was supposed to be an open public comment period. Any stakeholder that had not previously obtained hard copies of or saved electronic copies of the Draft Permit and related documents could no longer obtain them from MPCA for review. This development wholly deprived those stakeholders of their legal right to review and comment on the Draft Permit and its accompanying documents. This flaw in the public notice necessitates that the public notice and comment period be started anew. Based on the facts listed above, the City of Prior Lake requests that the public notice and comment period for the Draft Permit be started anew at a time when the Draft Permit and accompanying documents will be available to the public during the entire comment period. Part I Comments: A.2: This section seems to require an assessment of practices that are very common in Cities and some that are significant contributors to pollution. Is there an opportunity here for the State to do the research /assessment needed on a much more efficient scale? What level or effort is required in conducting this assessment? What is the procedure to follow if one of the sources listed is found to be significant? B.1: How can fill be considered as a non - stormwater discharge? Remove fill from the list. B.3; Define "Operational Control" B.8.a: A TMDL with a pollutant WLA of zero is obviously in error. Including this provision in the "limits on authorization" section makes every MS4 subject to a zero WLA out of compliance, when the mistake is the fault of the TMDL author. Please remove this language from the permit because it is irrelevant. B.9: All treatment of stormwater is chemical. Please clarify the intent. Provisions restricting types of Alum or Iron application might function better outside the "Limitations on Authorization" section, perhaps in the "MCM 5 Section." Part II Comments: C: Do not use the acronym (SWMP) as this is in common usage in stormwater planning. Please change back to SWPPP name and acronym. Part III Comments: 1. Part 3 sets standards and dictates methods that completely obliterates existing clean -water programs that are based on maximizing clean water outcomes and minimizing public expenditures. The paradigm of management envisioned by this permit is wasteful of public resources, burdensome to implement and will slow progress toward clean water outcomes and set back innovation of new management methods and technologies that hold the promise of reducing costs of implementation in the long term. 2. The standards set in part III do not have legal standing because reasonable basis for the requirements of this section have not been demonstrated. The MPCA must provide a Statement of Need and Reasonableness (SONAR) for requirements in the general permit that go beyond those in State and Federal Rules, Many of the requirements of this section are more specific and expansive than the associated Rules and SONAR justification documents. The following documents were reviewed to find evidence of the justification for these widely expanded standards: FACT SHEET (wq- stom4 -59c): MN 7001.0100 Sub 3.0 requires a summary of the basis for the draft permit conditions, including references to applicable statutory or regulatory provisions: wq- strm4 -59c, Section IV only references requirements of Federal 40 CFR 122,123,124 and State Statutes 115 and 116, and Rules 7001 and 7090. State Statutes 115 and 116, and Rules 7001 and 7090 do not document a reasonable basis for the expansive requirements in this section of the draft permit. Federal 40 CFR 122,123,124 does not document a reasonable basis for the expansive requirements in this section of the draft permit. The agency must meet MN 7001.0100 Sub 3.0 by completing a summary of the basis for the draft permit conditions, and include references to applicable statutory or regulatory provisions; the statutory or regulator provisions are not a basis by themselves. NONDEGRADATION (wq- strm4.59d): This document claims that MN 7050.0180 and 7050.0185 Set forth nondegradation standards but that those rules "...were largely developed to address degradation caused by point source discharges.." and "were not well developed ... ... and therefore these rules do not adequately address stormwater discharges." Instead of remedying these inadequacies in a new rulemaking process, wq- strm4 -59d goes on to state that the rationale in wq -strm4 -59d and in the MS4 General Permit together describe the agency's efforts to fulfill the intent of Minnesota Rules. 1. Does the agency claim that the reasonable basis for provisions in the permit to be a fact sheet describing permit provisions and the provision in the same permit? 2. The "Nondegradation Review" section of wq -strm4 -59d claims that loading assessments from the 2006 MS4 General Permit demonstrated that new development and redevelopment will result in new or expanded discharge. This claim is not true. As an owner of one of the 30 nondegradation reviews, I can attest that the Prior Lake assessment showed no increase in loads of the two pollutants that were required to be studied. The volume of storm water runoff is not considered a pollutant under federal or state regulations. 3. The "Nondegradation Review" section of wq -stom4 -59d also claims that "without installation of adequate permanent stormwater controls" most MS4s would have expanded discharges. This review shows serious bias for expensive structural stormwater treatment, and discounts much of the good work cities are doing as part of the water resource planning process to implement nonstructural BMPs that can reduce pollutant loads at a fraction of the cost of structural measures. 4. The "Nondegradation Review" section of wq -strm4 -59d also claims the MPCA "has determined" that "the minimum control measures contained within the MS4 General Permit are also reasonable ... ... and will provide the same level of protection for All Waters." Besides the obvious circular reference and the dispute of the owner of at least one of the loading assessment to the contrary, the MPCA has not published or allowed public review of the reported "Nondegradation Review" summarized here, that justifies these onerous requirements. 5. The "Nondegradation Review" section of wq -strm4 -59d concludes with an alternative path saying if the applicant does not agree to meet all conditions prescribed in the draft MS4 permit the "permit applicant may be required to apply for an individual permit" and provide computer modeling to support the development of an individual permit. While the MPCA is confident in using the 30 Cities loading assessments as basis for General Permit conditions, if the City of Prior Lake chooses to seek an individual permit, we cannot choose to use our own loading assessment because wq -strm4 -59d decrees that "The MPCA would conduct an individualized nondegradation review and would prescribe permit conditions." 6. The "MS4 General Permit Requirements" section of wq -strm4 -59d the first paragraph further reveal the Agency's bias for expensive structural pollution control measures and ties their construction to the process of development and redevelopment. Again the agency seeks to regulate the volume of storm water runoff, even though storm water runoff volume is a very cost - inefficient proxy for actual water quality outcomes, and is not considered a pollutant under federal or state regulations. 7. The second paragraph of wq -strm4 -59d "MS4 General Permit Requirements" section references a "MPCA nondegradation review" that considered environmental, economic, and social considerations and define the objective criteria that determine "prudent and feasible." The criteria describing prudent reads thus: "To be prudent, an alternative must not involve extraordinary economic or social costs." 8. The third paragraph of wq- strm4 -59d "MS4 General Permit Requirements" section claims that the draft MS4 permit provisions are both prudent and feasible. The alternatives analysis included in the "nondegradation review" came to the conclusion that the standards in the draft MS4 permit were both prudent and feasible. As a practitioner with extensive experience in water resources management, I argue that while feasible, the standards in Part III of the draft MS4 permit are not prudent in the least because they have a bias toward site specific, structural BMPs based on volume control. 9. The third paragraph of wq -strm4 -59d "MS4 General Permit Requirements" section claims to give the permittee the flexibility to select its own regulatory approach and choose from a wide range of BMPs. This is patently false. The choice presented in wq- strm4 -59e varies by slight degrees; but each option extraordinarily costly because the method of implementation forced by the draft MS4 permit are 1) site -by -site, 2) structural BMPs, 3) volume proxy. 10. The fourth paragraph of wq -strm4 -59d "MS4 General Permit Requirements" section claims that "in addition to the requirements that the MS4 General Permit places on new development and redevelopment projects, there are many other conditions of the MS4 General Permit which will ensure reductions in stormwater discharges." This seems to show that the development standards in part III are intended to solely meet the nondegradation requirements but it treats the "many other conditions" in the MS4 General Permit as over - and -above treatment that provides a factor of safety. Why after paying so much to meet the requirements of nondegradation, would anything else be required? Why can't the two efforts be mixed to provide for the maximum amount of benefit for the least cost? MCM 5 TECH SUPPORT (wq- strm4.59e): This document does not seem to provide justification for the basis of permit conditions required in MN 7001.0100 Sub 3.C. OVERVIEW (wq- strm4.59q: 1. The first paragraph of the wq- strm4 -59f "MCM 5" section cites 40 CFR 122.45(b)(5) copied below; and claims the MS4 permit guide shows EPA "believes that performance standards can be very effective in order to ensure water quality standards are met" (5) Post - construction storm water management in new development and redevelopment. (i) You must develop, implement, and enforce a program to address storm water runoff from new development and redevelopment projects that disturb greater than or equal to one acre, including projects less than one acre that are part of a larger common plan of development or sale, that discharge into your small MS4. Your program must ensure that controls are in place that would prevent or minimize water quality impacts. (ii) You must: (A) Develop and implement strategies which include a combination of structural and /or non - structural best management practices (BMPs) appropriate for your community,' (B) Use an ordinance or other regulatory mechanism to address post - construction runoff from new development and redevelopment projects to the extent allowable under State, Tribal or local law; and (C) Ensure adequate long -term operation and maintenance of BMPs. Nowhere in this section, or 40 CFR 122,123, or 124 are performance standards required or is a specific BMP such as volume control made compulsory. Please remove compulsory volume control standard. 2. The Federal guidance that follow section 40 CFR 122.45(b)(5) recommends that the City of Prior Lake participates in locally based watershed planning efforts to choose appropriate BMPs and involve stakeholders including interested citizens. We follow this federal guidance this with great pleasure, making locally tailored solutions that squeeze every benefit out of our limited tax dollars. These locally based watershed planning efforts also include cost effective performance standards. This attempt by the Agency to dictate local standards is counter to federal guidance that seeks to encourage the imagination and creativity of citizens and water resource managers on the local level. Please remove compulsory volume control standard. 3. Federal guidance that follow section 40 CFR 122.45(b)(5) further recommends that requirements be responsive to changes in storm water technologies. This attempt by the Agency to dictate local standards is counter to federal guidance because it chooses specific technologies by mandating volume control. Please remove compulsory volume control standard. 4. The second paragraph of the wq- strm4 -59f "MCM 5" section claims that "Many traditional stormwater management practices have failed to address hydrologic modifications that increase stormwater discharges and cause erosion and stream channel degradation." Through cooperative local planning efforts, the problems of this type that plagued phase I cities have been almost entirely eliminated in the City of Prior Lake and similar cities. BMPs are chosen, including all the BMPs listed in Federal guidance (40 CFR 122.45(b)(5)(iii)) to maximize a variety of levels of service and tailor the solution to the individual catchment. This tailored approach to water resources management is much more cost effective than the blanket approach proposed in part III of the draft permit. Please remove compulsory volume control standard. 5. The third paragraph of the wq- strm4 -59f "MCM 5 section claims the Agency undertook some sort of "benchmarking" exercise to create its narrative standard in part III. Please provide this for review. Part III Comments Continued: 3. Review of the documents released with the draft permit show no reasonable basis or justification for these widely expanded standards in part III. Please provide justification that the proposed standards are not expansive or are reasonable, justified and prudent in meeting water quality outcomes. D.1.a: Mapping swales and conveyances less that 12" in diameter are a waste of time and effort. Please remove this arbitrary requirement because it will not advance clean water outcomes. D.1.b: Mapping the areas that drain to all outfalls is excessive. Please remove this arbitrary requirement because it will not advance clean water outcomes. D.1.d: Mapping all sumps and 'other small BMPs" is excessive. Please remove this arbitrary requirement because it will not advance clean water outcomes. E: Alternatives analyses are a critical part of water resource management and decisions about methods and means of meeting a wide variety of clean water levels of service are highly localized to the individual catchment and watershed in question. It is puzzling why the Agency is pursuing a strategy that takes away so much local control of very local water resources. E.1.a.5: The concept of baseline measurement of this BMP is very theoretical at this time and would be of limited value to most MS4s. Please remove this arbitrary requirement because it will not advance clean water outcomes. E.1.d: Why would the Agency ask MS4s to choose 3 priority areas in E.1, and then assign them in E.U? Remove them from E.1.d and let the individual MS4 choose. E.1.e: The concept of measurement of this BMP is very theoretical at this time and would be of limited value to most MS4s. Please remove this arbitrary requirement because it will not advance clean water outcomes. E.2.a.1: The public participates in development of the local surface water management program (LSWMP) in the City, but it is puzzling why the public would find any utility in participating in "SWMP development' because the SWMP does not need to be "developed" as it is simply a regulatory document that provides the Agency a view on a small subset of activities that already make up the LSWMP. Delete this requirement because it has no utility. EA.a.2.a: Remove this language as it is inappropriate in this MCM, E.5.a,1: Change the words "Green Infrastructure" to "Cost Efficient Practices" E.5.a.1 & b.1: Remove all volume control requirements for the reasons stated in FACT SHEET (wq- strm4 -59c) comments 1 and 2, NONDEGRADATION (wq- strm4 -59d) comments 1 -10, OVERVIEW (wq- strm4 -59f) comments 1 -5 above. E.6.a: "any facility or operation" is immensely broad and "eliminate exposure" is an expansive standard. Please tone this section down and clarify how it relates to water quality outcomes. E.6.b.1.a: Remove the term 'other trash containers" as the standard is unreasonable. E.6.b.2: Please provide more flexibility in this section to manage assets in a more cost effective way. By assigning annual inspections by what is "mapped" is a disincentive to map additional functionalities of the system or to have a redundant mapping system specific for SWMP reporting. E.6.b.3 It is unclear why this assessment is a part of MCM6. Pollution Prevention /Good Housekeeping and b. Standard Operating Procedures when it's about assessment, and all of the components listed are things that would be required and reviewed during the permitting /construction of the feature — not features assessed afterwards. It is unclear why this assessment is considered a local responsibility. The USEPA, the MPCA, Universities, etc, produce the research and guidance that we use to design constructed ponds and wetlands. Local units of government are not research /assessment organizations, Appendix A Comments: Appendix A, Section B: This section requires tens of thousands of data points in the City of Prior Lake. "X" potentially overlapping TMDLs times "Y" multiple outfalls times "Z" pollution reduction BMPs equals an overload of paper work that has zero relevance to clean water outcomes. Appendix B Comments: Appendix B: This section is irrelevant because the MPCA already issues permits for these types of treatment systems envisioned by this section (as described during the informational meeting) and can put on site specific standards in the permit issuance decision. Remove Appendix B as it is expansive and redundant. 500 IDS CENTER ® 80 SOUTH EIGHTH STREET MINNEAPOLIS, MN 55402.3796 MAIN: 611.632.3000 FAX: 612,632.4444 July 15, 2011 Mr. Duane Duncanson Minnesota Pollution Control Agency Municipal Division Stormwater Policy & Technical Assistance Unit 520 Lafayette Road North. St. Paul, MN 55155 -4194 NANCY QUATTLEMM BURKE ATTORNEY DIRECT DIAL 612 632.3029 DIRECT FAX 612.632.4029 NANCY. B UR KE ®GPM LAW . C OM Via U.S. Mail and Email duane.duncanson@state.mn.us Re: Public Comment and Petition for Contested Case Hearing of the League of Minnesota Cities and the Minnesota Cities Stormwater Coalition Dear Mr. Duncanson: Enclosed for service on and filing with the Minnesota Pollution Control Agency (MPCA) in the above matter please find the Public Comment and Petition for Contested Case Hearing of the League of Minnesota Cities and the Minnesota Cities Stormwater Coalition with its attachments. If you have any questions, please do not hesitate to contact me. Very truly yours, GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. ai Nancy Quattlebaum Burke NQB /Imr Enclosures cc: See Attached Service List ms4permitRrogram.pca@state.mn.us John Linc Stine — Deputy Commissioner, MPCA (via email — john.stineCa�state.mn.us Rebecca Flood — Asst. Commissioner for Water Policy, MPCA (via email — rebecca.floodAstate.mmus) Lisa Thorvig, Director, MPCA Municipal Division (via email — Iisa.thorvig(a)-state.mmus David Richfield, Acting Section Head, MPCA Stormwater Section (via email — david.richfield(&-state.mn.us) GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. A FULL - SERVICE LAW FIRM MINNEAPOLIS, MN • S'r. CLOUD, MN . WASHINGTON, DC W W W.GPMLAW.COM Mr. Duane Duncanson Page 2 July 15, 2011 Thomas L. Grundhoefer (via email — TGrundho(c- lmc.org) Jim Hafner (via email — jhafner(cD_ci.blaine.mn.us Randy Neprash (via email — Randy.Neprashftonestroo.com Barbara J. Huberty (via email — BHuberty(a?rochestermn.gov Leslie A. Stowing (via email — LStovrincOedenprairie.org GP:3008715 v1 SERVICE LIST In Re: Public Notice for the National Pollutant Discharge Elimination System/State Disposal System General Permit for Small Municipal Separate Storm Sewer Systems, and Public Notice for the Municipal Storm Water Management Program Public Notice Process (Permit MNR040000) Vicki Schindeldecker, Administrator Paul Aasen, Commissioner - Chair MPCA Citizens' Board MPCA Citizens' Board 520 Lafayette Road North 520 Lafayette Road North St. Paul, MN 55155 -4194 St. Paul, MN 55155 -4194 Via Email and U. S. Mail Via Email and U.S. Mail vcki .schindeldecker(&-state.mn.us paul.aasenO- state.mn.us Chester A. Wilander Brian J. Bensen MPCA Citizens' Board Member MPCA Citizens' Board Permittee 45454 US 71 Committee Chair LaPorte, MN 56461 582347 1h Street SE Via U.S. Mail St. Cloud, MN 56304 Via Email and U.S. Mail brian.bensen[a-co.s herb urne.mn.us Daniel D. Foley, M.D. Eric Gustafson MPCA Citizens' Board Member MPCA Citizens' Board Member 1581 Tamberwood Trail 7223 Lanham Lane Woodbury, MN 55125 Edina, MN 55439 Via U.S. Mail Via U.S. Mail Dennis Jensen, Vice Chair David P. Newman MPCA Citizens' Board MPCA Citizens' Board Member 4219 W Arrowhead Road 437 South Broadway Duluth, MN 55811 Stillwater, MN 55082 Via U.S. Mail Via Email and U.S. Mail daveA Mary Riley Donald Schiefelbein MPCA Citizens' Board Member MPCA Citizens' Board Member 15470 Danville Avenue 34897717 th Avenue Rosemount, MN 55068 Kimball, MN 55353 Via U.S. Mail Via U.S. Mail GP:3009329 v1 In Re: Public Notice for the National Pollutant Discharge Elimination System/State Disposal System General Permit for Small Municipal Separate Storm Sewer Systems, and Public Notice for the Municipal Storm Water Management Program Public Notice Process (Permit MNR040000) AFFIDAVIT OF SERVICE STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) Linda M. Robertson, being first duly sworn, deposes and states that on July 15, 2011, she served the following: Public Comment and Petition for Contested Case Hearing of the League of Minnesota Cities and the Minnesota Cities Stormwater Coalition upon the following: See Attached Service List by arranging for the delivery by email and U.S. mail of such documents to the addresses listed on the attached Service List. Linda M. Robertson Subscribed and sworn to before me this 15th day of July, 2011. jVj �� Lei. • - Nft 3t �Ofs3 Pubfic GP:3011130 vl SERVICE LIST In Re: Public Notice for the National Pollutant Discharge Elimination System/State Disposal System General Permit for Small Municipal Separate Storm Sewer Systems, and Public Notice for the Municipal Storm Water Management Program Public Notice Process (Permit MNR040000) Vicki Sch'indeldecker, Administrator Paul Aasen, Commissioner - Chair MPCA Citizens' Board . MPCA Citizens' Board 520 Lafayette Road. North 520 Lafayette Road North St. Paul, MN.55155 -4194 St, Paul, MN 55155 -4194 Via Email and U. S. Mail Via Email and U.S. Mail ycki.schindeldecker(cD-state.mn.us Pau l.aasen(a)state.mn.us Chester A. Wilander Brian J. Bensen MPCA Citizens' Board Member MPCA Citizens' Board Permittee 45454 US 71 Committee Chair LaPorte, MN 56461 5823 47" Street SE Via U.S. Mail St. Cloud, MN 56304 Via Email and U.S. Mail brian.bensen(a)co.sherburne.mn.us Daniel D. Foley, M.D. Eric Gustafson MPCA Citizens' Board Member MPCA Citizens' Board Member 1581 Tamberwood Trail 7223 Lanham Lane Woodbury, MN 55125 Edina, MN 55439 Via U.S. Mail Via. U.S. Mail Dennis Jensen, Vice Chair David P. Newman MPCA Citizens' Board MPCA Citizens' Board Member 4219 W Arrowhead Road 437 South Broadway Duluth, MN 55811 Stillwater, MN 55082 Via U.S. Mail Via Email and U.S. Mail dave(cD-bancorgroup.com Mary Riley Donald Schiefelbein MPCA Citizens' Board Member MPCA Citizens' Board Member 15470 Danville Avenue 34897717 th Avenue Rosemount, MN 55068 Kimball, MN 55353 Via U.S. Mail Via U.S. Mail GP:3009329 v1 STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY In Re: Public Notice for the National Pollutant Discharge Elimination System /State Disposal System General Permit for Small Municipal Separate Storm Sewer Systems, and Public Notice for the Municipal Storm Water Management Program Public Notice Process PUBLIC COMMENT AND PETITION FOR CONTESTED CASE HEARING OF THE LEAGUE OF MINNESOTA CITIES AND THE MINNESOTA CITIES STORMWATER COALITION The League of Minnesota Cities and its Minnesota Cities Stormwater Coalition (collectively referred to as LMC) submit this Public Comment and Petition for Contested Case hearing in response to the Minnesota Pollution Control Agency's (MPCA) combined Public Notice for the National Pollutant Discharge Elimination System (NPDES) /State Disposal System (SDS) General Permit for Small Municipal Separate Storm Sewer Systems (small MS4s) (hereafter the Draft Permit) and Public Notice for the Municipal Storm Water Management Program Public Notice Process dated May 31, 2011 (the Notice). LMC hereby incorporates by reference the Public Comments and Attachments submitted by the City of Rochester as part of this submittal. LMC anticipates that other cities will independently be commenting on the Draft Permit as well. 1. Statement of Interest in the Permit LMC's membership includes almost all municipalities located in Minnesota. The Draft Permit will apply to over one hundred and sixty (160) of LMC's members, thereby giving rise to LMC's interest in the Draft Permit. In addition, certain of LMC's members 1 with a special interest in stormwater matters have coordinated under the auspices of LMC to form the Minnesota Cities Stormwater Coalition (MCSC), the members of which pay dues that support MCSC's efforts. Over ninety (90) of MCSC's members will be regulated by the Draft Permit. 2. Draft Pe tarted As a preliminary matter, LMC notes that MPCA announced a notice and public comment period for the Draft Permit beginning on May 31, 2011 and ending on July 15, 2011. Effective June 30 2011, however, the MPCA and most of the State of Minnesota (including the State Register's Office) closed their doors and took down their websites. As a result, the Notice was no longer posted on any State website, and the public could no longer obtain the Draft Permit or the accompanying documents from MPCA's website, by request to MPCA, or by review in MPCA's offices as provided in the Notice. These circumstances effectively eliminated the public's access to what were supposed to be publicly available noticed materials during what was supposed to be an open public comment period. Under the Clean Water Act (CWA), "public participation in the development, revision and enforcement of any standard, effluent limitation, plan, or program established by the [United States Environmental Protection Agency (EPA)] or any State under [the CWA] shall be provided for, encouraged and assisted by the [EPA] and the States. "' Similarly, an NPDES permit may be issued under the CWA only "after opportunity for public hearing. "2 To comply with these public participation requirements 33 U.S.C. §1251(e). 2 Id. at §1342(a)(111 system permits). 2 of the CWA, EPA and MPCA promulgated rules and these rules apply to the Draft NPDES Permit. Minnesota Rule 7001.0100, Subpart 4, requires the MPCA to prepare and issue a public notice of the "commissioner's preliminary determination as to whether the permit should be issued or denied." The Commissioner must include in the public notice a statement that the draft permit "will be mailed to any interested person upon the agency's receipt of a written request. n3 Ordinarily, the public comment period is thirty (30) days, however, the Commissioner exercised his discretion here to extend the period to forty -five (45) days or to July 15, 2011, and the public and permittees expected to be able to obtain the Draft Permit during that time. As to the small MS4 stormwater permit program, the Minnesota Court of Appeals upheld the right to public notice and participation in Minnesota Center For Environmental Advocacy v. Minnesota Pollution Control Agency, 660 N.W.2d 427 (Minn. Ct. App. 2003) (MCEA). In MCEA, the court recognized the importance of the public participation requirements of the CWA NPDES small MS4 program. The court required MPCA to meet the public notice and participation requirements of the CWA not only in issuing the general permit, but in approving the small MS4s' stormwater pollution prevention plans (SWPPPs). As a result of the state government shutdown, any LMC member that did not obtain hard copies of or save electronic copies of the Draft Permit and related documents before June 30, 2011, can no longer obtain them from MPCA for review. 3 Minn. R. 7001.0100, Subp. 4.F. " Id. at Subp. 4.G; 7001.0110, Subp. 4 (extension of comment period), & the Notice. 5 Minnesota Center For Environmental Advocacy v. Minnesota Pollution Control Agency, 660 N.W.2d 427, 434 - 435 (Minn. Ct. App. 2003). 6 Id. 3 This development occurred in the middle of the public notice and comment period and continued until its conclusion on July 15 As a result, LMC members were denied their legal right to review and comment on the Draft Permit and its accompanying documents. In the further context of the MPCA's refusal to share a pre- Notice copy of the Draft Permit with any existing or potential permittee, this legal flaw in the public notice is fatal to the permit proceeding and requires that the public notice and comment period be started anew. Reguested Relief LMC asks the MPCA to restart the public notice period to run for forty -five (45) consecutive days as originally provided for in the Notice. 3. Provisions of the Draft Permit Must be Reiected as Contrary to Applicable Law a. The Draft Permit Impermissibly Relies on MPCA- Required Forms to Change Permit Terms at MPCA's Will Under the Draft Permit, small MS4s must provide MPCA information based on to- be- developed MPCA- required forms.' MPCA took advantage of this permit provision to require small MS4s to complete a different required annual report form every year, apparently to suit MPCA's arbitrary preferences. Examples of changing annual report forms are attached to this submittal at Attachment A. By requiring small MS4s to complete a different annual report form each year, MPCA caused them unnecessary effort and expense without any correlating benefit to the environment. To make matters worse, MPCA not only revised the reporting forms each year, it consistently did not distribute the new annual forms until the year they were due. Since each report covers the preceding year's activities, MPCA thus required permittees to report on activities or information they may not have collected and tabulated during the year in which they Draft Permit, Part 11.6 at p. 6; II.0 at p. 6; III.D.2 at p. 2; Appendix A at p. 37; Part III at p. 10. 4 occurred, because the small MS4s received no advance notice they would need to report on those matters. When MPCA prevents the permittees from seeing and commenting on required MPCA - prepared forms, MPCA unlawfully deprives the small MS4s of their right to notice of and public comment on the terms and conditions of the Draft Permit. And, MPCA exacerbates this unlawful deprivation of permittee rights when it repeatedly revamps the prepared forms to require an ever - changing array of information. The pond inventory requirements imposed on small MS4s offer a prime example of MPCA's practices in this regard. In 1999, the Minnesota legislature passed a law directing MPCA to obtain a listing of constructed ponds and wetlands in the State for the purposes of evaluating the scope of potential polycyclic aromatic hydrocarbon (PAH) contaminated sediment removal that may be needed to maintain these ponds. MPCA notified existing small MS4 permit holders in January of 2010 that they must conduct a pond inventory and complete it so as to be able to submit it with their "permit application" for the Draft Permit, on or about June 1, 2011. In so doing, MPCA used a legal pretext to avoid the legislative directive to incorporate the pond inventory requirement "into the next permitting cycle" for MS4s. 10 In this manner, MPCA effectively imposed a brand new permit condition in the middle of the existing permit term that required small MS4s to undertake significant, expensive pond inventory work and reporting. If they did not begin this work, the permittees would miss the unreasonable 30 -day deadline MPCA intended to include e Chapter 172, Section 28(d) of the 2009 Session Laws. 9 MPCA Memorandum to MS4 Permittees, dated January 19, 2010. 10 See Chapter 172, Section 28(d) of the 2009 Session Laws. 5 (and did include) in the Draft Permit." While MPCA may assert that it followed the legislative directive to require the inventory in the "next" MS4 permit cycle, given the MPCA's unachievable 30-day deadline, that claim is nothing but a legal subterfuge. The January 2010 guidance had required the following: (1) unique identification number for the constructed pond /wetland; (2) geographic coordinates (e.g. latitude /longitude) for the pond; (3) description of type of pond; (4) information on the year the pond was built; (5) the water surface area in acres at the normal water level or bottom surface area for dry ponds; (6) the pond owner; (7) the pond maintenance authority; (8) the pond function (water quality, rate control, etc.) and (9) the number of pond inlets and outlets. 12 This inventory went far beyond the legislature's intent to identify the potential overall mass of PAH- contaminated sediment that might need to be removed and disposed. Following receipt of the MPCA's January 10, 2010 guidance and forms, some small MS4s began inventorying their ponds pursuant to those initial "requirements." Information obtained from MCSC members indicates that the original inventory scope work cost between Forty Dollars ($40.00) per pond for a small MS4 with a robust geographical information system (GIS) database, to One Hundred Dollars ($100.00) per pond for a city without a GIS surface water database. Assuming that half the MS4s have good GIS data and half do not, at an average of Seventy Dollars ($70.00) per pond and an estimated 26,667 constructed ponds in the regulated MS4 cities, the cost 11 Draft Permit, Part III.D.2. at p. 12. 12 MPCA Memorandum to MS4 Permittees, dated January 19, 2010. 13 Draft Costs Estimates for Minnesota Stormwater Collection Systems provided by MPCA to Hennepin County (January 7, 2011). In this document, MPCA estimates there are about 20,000 ponds in the seven county metropolitan area. Most of these ponds are in the small MS4s, because most development in Minneapolis and St. Paul (medium MS4s) occurred before ponds came into use for stormwater treatment 6 to comply with the initial scope of the premature, unlawful pond inventory directive equals approximately One Million Eight Hundred Seventy Thousand Dollars ($1,870,000.00). MPCA does not have authority to create new permit conditions in the middle of a permit term that cost cities nearly Two Million Dollars ($2,000,000.00) to implement. These actions defeat the public participation requirements of the CWA program and deprive permittees of their right to comment on or contest a permit condition. To make matters worse, the MPCA then changed the inventory requirements. In the Spring of 2011, MPCA issued a new spreadsheet form for the pond inventory. This form added requirements to identify the outfalls for the stormwater ponds, and to include information on them and their location coordinates. MPCA also issued a document entitled "Stormwater Pond Inventory Guidance," reaffirming its intent that this inventory (now with different and additional requirements) would be due only thirty (30) days after the effective date of the new General Permit (i.e., the Draft Permit). Consequently, small MS4s that performed any pond inventory work pursuant to the initial January 2010 guidance had to re- inventory those ponds to collect the additional information described in the May 2011 guidance. The pond "requirements" continue to be a moving target, making them virtually impossible for small MS4s to satisfy. The May 31 Draft Permit adds substantial information requirements for ponds, allegedly designed to determine their "treatment effectiveness." This information includes: (1) calculation of stormwater volume flowing and flow control. Even where redevelopment occurs in these medium MS4s stormwater ponds are rare because so little space is available and land is so valuable. 14 See Stormwater Pond Inventory Guidance for Municipal Separate Storm Sewer Systems, by MPCA dated May 2011. 7 to best management practice (BMP) based on factors within the watershed including the watershed area, impervious cover, soil types and land use; (2) actual BMP permanent storage volume; (3) actual BMP temporary water quality storage volume (items 2 and 3 to be based on BMP geometry and inlet, outlet and overflow spillway elevations); (4) whether the inlets /outlets are pipes or open channel; (5) diameters of the pipes; (6) the flow path of stormwater through the BMP related to the distance and position of the inlet/outlets; (7) whether there is a fore -bay, sediment basin, or stilling basin at the inlet; (8) the percentage of permanent pool surface covered by aquatic vegetation; (9) whether this is a single or multiple pond /wetland design; and (10) whether the pond/wetland intersects the local ground water table. Apparently, MPCA expects small MS4s to submit the January 2010 and Spring 2011 sets of pond inventory information within an unreasonable thirty (30) days after the effective date of the Final Permit and then to reassess their stormwater management system to obtain the third set of assessment information. And, in its newest requirements, MPCA includes assessment information that is much more sophisticated and expensive to obtain. These new Draft Permit requirements come at a substantial cost to the small MS4s. Preliminary estimates by MCSC members show that the new set of pond information requirements will cost Eight Hundred ($800.00) to One Thousand Dollars ($1,000.00) per pond. MPCA estimates that the seven county metropolitan area where three quarters of the small MS4s are located includes about 15 Draft Permit, Part 111.6.c.3. 16 Attachment B shows one proposal to a small MS4 for a portion of the pond inventory requirements on a portion of the ponds within that city. 8 20,000 ponds." Based on an estimated total of 26,667 ponds in all small MS4s, the resulting cost to comply with the newly added pond assessment requirements ranges from Twenty -One Million Three Hundred and Fifty Thousand Dollars ($21,350,000.00) to Twenty -Six Million Six Hundred and Fifty Thousand Dollars ($26,650,000.00). Requested Relief (1) MPCA needs to allow small MS4s a reasonable amount of time to prepare a limited inventory of constructed ponds and constructed wetlands, as directed by law, after those requirements are made final in an MPCA- issued permit, just as the legislature intended, and in compliance with public participation requirements of the CWA. (2) Since they are permit requirements under the Draft Permit, just like the SWPPPs in the MCEA decision, any mandatory "forms to be provided by the Commissioner ", must be made available now for public review and comment. LMC notes that the Draft Permit contains references to (a) an MPCA permit application form; (b) an MPCA total maximum daily load (TMDL) waste load allocation (WLA) information form; (c) an MPCA annual report form; (d) an MPCA Stormwater Management Plan (SWMP) summary form; and (e) a pond inventory form. (3) Alternatively, the small MS4s should be able to submit only the information required in the final permit and in a format that best suits their stormwater management program document system and framework. (4) Finally, as discussed in later in this submittal and in the Detailed Comments of LMC and the City of Rochester, the new pond inventory/assessment requirements need to be modified to eliminate unnecessary and unduly burdensome requirements, and to make the costs practicable. " Draft Costs Estimates for Minnesota Stormwater Collection Systems provided by MPCA to Hennepin County (January 7, 2011). 9 b. MPCA Needs to Notify MS4s Now That They Will Be Added as Permittees to the Draft Permit The MPCA intends to add cities to the small MS4 permit. However, the list of regulated small MS4s published in the Draft Permit includes only the existing permittees. Nevertheless, MPCA has informed MCSC representatives that the identities of a number of new small MS4s to be regulated under the Draft Permit is known, and the Draft Permit contains a myriad of provisions that apply specifically to "new permittees. " 18 MPCA has not notified any proposed new municipal permittee /small MS4 that it will be regulated under the Draft Permit. Consequently, even though the new permittee identities are known to MPCA, and specific permit requirements apply only to them, this Draft Permit will be imposed on those cities without fair notice of their need to review and comment on the Draft Permit. MPCA is well aware that a city has no reason to comment on a draft permit if the city does not believe the permit applies to it or otherwise affects it or its jurisdiction. MPCA thus acts outside of its own rules by failing to notify the known new permittees that the Draft Permit will regulate their activities. Ironically, MPCA imposes substantial public notice, public participation and public input requirements throughout the Draft Permit on most, if not all, aspects of development and implementation of the small MS4s' stormwater program. Requested Relief Due to its failure to notify the known new permittees that they will be regulated under the Draft Permit, to satisfy the public participation requirements of the CWA and Minnesota law, MPCA needs to restart the public comment period, after providing such notice to the proposed new permittees. t8 Draft Permit, Appendix C.15 at p. 43. 19 Id. at Part 111.E.2. at p. 14. 10 C. The Permit Conditions Impose Unreasonable, Infeasible or Impracticable Conditions that are Unsupported by Substantial Evidence and Seemingly Arbitrary or Capricious The Draft Permit contains a myriad of requirements that impose unreasonable burdens on regulated small MS4s, creates numerous inefficiencies, and requires actions that are not practicable or, in some cases, not feasible, all in violation of Minnesota law. Many of these provisions are commented on in the Detailed Comments discussion included in this submittal and in the City of Rochester's Public Comments (collectively referred to as the Detailed Comments). According to state law, MPCA must consider certain factors in all of its actions, including issuing permits. These considerations include whether MPCA's action is reasonable, practical and feasible under the circumstances. In addition, the legislature specifically directs MPCA to consider the burden on a municipality of any tax that might result from MPCA's proposed actions. Specifically, the applicable statute provides that: In exercising all its powers the Pollution Control Agency shall give due consideration to the establishment, maintenance, operation and expansion of business, commerce, trade, industry, traffic, and other economic factors and other material matters affecting the feasibility and practicability of any proposed action, including, but not limited to, the burden on a municipality of any tax which may result therefrom, and shall take or provide for such action as may be reasonable, feasible, and practical under the circumstances. This statutory language is inclusive and not limiting. Therefore, it would logically require consideration of the burden on a municipality (and its population) of any fee, assessment or other monetary expense resulting from issuance of the Draft Permit. 20 Minn. Stat. §116.07, subd. 6 (italics added). 11 In today's economic times, cities face significant financial hardships and budgetary constraints. These financial conditions require cities to make cuts in important programs including those relating to police and fire protection, public health, safety and the environment. In the context of this economic climate, MPCA now proposes that regulated small MS4s undertake significant additional and expensive responsibilities relating to stormwater discharges. MPCA's public notice materials omit any discussion or evaluation of the compliance costs for the new requirements in the Draft Permit, suggesting that the agency failed to consider the financial burden proposed to be placed on the municipal regulated small MS4s. This omission of cost considerations and cost benefit analysis explains many of the expensive, overly burdensome provisions in the Draft Permit described in the Detailed Comments. Indeed, the Draft Permit imposes information and documentation requirements that far exceed both the federal and state rule requirements applicable to small MS4s. One such example is the mapping requirement proposed in the Draft Permit. The Draft Permit requires small MS4s to create a map depicting all of the following information and features: pipes, ditches, swales (including their flow direction), outfalls, areas that drain to outfalls (including the latitude and longitude for the outfalls and a unique identification number for each), streams, lakes, wetlands, grit chambers, sumps, floatable skimmers, traps, separators, other small treatment BMPs, infiltration BMPs, filtration BMPs, bioretention BMPs, constructed ponds and constructed wetlands . The level of detail required here is enormous in the context of an entire city area. For cities 21 Draft Permit, Part III.D.1 at p. 11. 12 without GIS technology, providing all this longitude and latitude information is nearly impossible and meaningless, given that paper maps provide locations by virtue of addresses, road names, and object positions. In contrast, under the applicable authorizing EPA rule, a small MS4 need only map its outfalls and the names of the receiving waters that receive discharges from those outfalls. EPA recommends in the Preamble to the Phase II stormwater /small MS4 Rule that it may be necessary to map an identified illicit discharge starting from the outfall and working up the MS4 system in order to locate the illicit discharge. While EPA defines an outfall as a location that discharges to a water of the United States ,24 MPCA in contrast, proposes that " outfall" include small MS4 jurisdictional boundaries. In other words, when a ditch crosses a municipal boundary, MPCA treats it as an "outfall" when it is nothing but a continuation of a ditch. Since there are additional requirements for " outfall" inspections, MPCA's overreaching outfall definition adds more time, effort and expense for locations that are not truly outfalls and bear no relationship whatsoever to receiving waters. MPCA not only imposes these types of onerous and needless requirements on small MS4s in the Draft Permit, it shifts its obligations under the CWA to the small MS4s. The Draft Permit in effect requires small MS4s to enforce erosion and sediment control requirements in MPCA's own NPDES /SDS General Construction Stormwater Permit covering owners and operators of construction projects. However, the small 22 40 C.F.R. §122.34(b)(3)(ii)(A). 23 64 Fed. Reg. at 68756. 24 40 C.F.R. §122.26(b)(9). 25 Draft Permit, Appendix C.19 at p. 43. 26 Id. at Part III.E.3.0 at p. 14; Part III.E.6b(2)(a)(1) f. at p. 23. 2' Id. at Part III.E.4.a at p. 16. 13 MS4s do not receive the benefit of the permit fees collected by MPCA or any funding provided to MPCA in connection with that permit. This delegation of the MPCA's own duties to the small MS4 totally contradicts EPA's intent in promulgating the small MS4 rule. In its Preamble to the Phase II Stormwater /small MS4 Rule, EPA said: To the extent possible, NPDES permitting authorities [i.e., MPCA] should provide financial assistance to MS4s, which often have limited resources, for the development and implementation of local programs. . . . In lieu of actual dollars, NPDES permitting authorities can provide cost - cutting assistance in a number of ways. For example, NPDES permitting authorities can develop outreach materials for MS4s to distribute or the NPDES permitting authority can actually distribute the materials. Another option is to implement an erosion and sediment control program across an entire State (or Tribal land), thus alleviating the need for the MS4 to implement its own program. The NPDES permitting authority must balance the need for site - specific controls, which are best handled by a local MS4, with its ability to offer financial assistance. EPA, States, Tribes and MS4s should work as a team in making these kinds of decisions. 28 MPCA did little to coordinate with the small MS4s in developing the Draft Permit, exhibiting a marked lack of teamwork. The small MS4s received their first look at a version of the Draft Permit only after it was placed on public notice. Further, as evidenced by the many new requirements in the Draft Permit, MPCA's efforts focused not on assisting the small MS4s with their programs, but on piling on additional and unnecessarily burdensome mandates. In so doing, MPCA clearly lost sight of the spirit and intent of the small MS4 stormwater program. 28 64 Fed. Reg. at 68747 - 68748 (Dec. 8, 1999) (italics added). 14 Requested Relief MPCA should revise the Draft Permit as requested in the Detailed Comments. MPCA should also work with the small MS4s in a team oriented manner to separate fairly the state versus local duties and authorities to relieve the burdens on small MS4s, and revise the Draft Permit to harmonize with mutual agreements made during that collaboration. d. MPCA Exceeds its Statutory Authority In Prescribing Means and Methods of Low Impact Development The legislature has not authorized the MPCA to dictate how developments should be designed with respect to stormwater. That subject matter - - local land use planning and zoning - - falls within the powers delegated by the legislature to the municipalities. Instead, the legislature provided that MPCA should: Regulation of storm water discharges. (b) Pursuant to this paragraph, the legislature authorizes the agency to adopt and enforce rules regulating point source storm water discharges. No further legislative approval is required under any other legal or statutory provision whether enacted before or after May 29, 2003. (c) The agency shall develop performance standards, design standards, or other tools to enable and promote the implementation of low- impact development and other storm water management techniques.... 30 MPCA's legislative directive is to develop standards that will "enable and promote" low impact development (LID) to occur — not to mandate that it occur. This language stands in contrast to the prior paragraph that authorizes MPCA to "adopt and enforce" 29 VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 507 (Minn. 1983); see Minn. Stat. §462.351 (2004) (stating that the purpose of the Municipal Planning Act is to provide municipalities "with the necessary powers" to conduct and implement municipal planning). 30 Minn. Stat. §1156.03, subd. 5c. 15 rules regulating point source storm water discharges. Nevertheless, in the Draft Permit postconstruction standards provision, MPCA requires the control of total phosphorus (TP), total suspended solids (TSS) and volume in a prescriptive manner that can only be achieved through the widespread implementation of certain limited types of LID BMPs, such as infiltration and bioretention. These postconstruction standards limit the small MS4s' ability to use more flexible and cost effective methods of stormwater pollutant reductions, such as regional approaches to managing stormwater runoff. Requested Relief To be consistent with the Minnesota Statute, the postconstruction standards in the Draft Permit must be revised to be flexible, so as to promote a variety of LID alternatives and to enable local authorities to take creative approaches to LID methods for reducing pollutants in stormwater discharges to the MEP, including regional approaches. e. The Draft Permit Imposes Conditions that Exceed the Applicable Standard of the Maximum Extent Practicable — An Error of Law The Draft Permit cannot impose a higher standard on the MS4s than the Congressionally prescribed Maximum Extent Practicable (MEP) standard. Courts have consistently ruled that MEP is the only standard that MS4 discharges must meet. In 3' Natural Resources Defense Council, Inc. v. U.S. EPA, 966 F.2d 1292, 1308 (9th Cir. 1992) (hereafter NRDC) (CWA §402(p)(3)(B) was modified in 1987 and "retained the existing, stricter controls for industrial stormwater dischargers but prescribed new controls for municipal storm water discharge "); Defenders of Wildlife v. Browner, 191 F.3d 1159, 1165 (9th Cir. 1999) (hereafter Defenders) (CWA §402(p)(3)(B) "replaces" the requirements of §301 with the MEP standard for MS4 discharges, and it creates a "lesser standard" than §301 imposes on other types of discharges); Environmental Defense Center v. EPA, 319 F.3d 398 (9th Cir. 2003), vacated, rehearing denied by, and amended opinion issued at 344 F.3d 832 (9th Cir. 2003) (CWA "requires EPA to ensure that operators of small MS4s 'reduce the discharge of pollutants to the maximum extent practicable "'); Mississippi River Revival, Inc. v. City of St Paul, 2002 U.S. Dist. LEXIS 25384 (D. Minn. 2002) ( "the CWA specifically exempts municipal storm water permittees" from the requirement to ensure that water quality standards are met); MCEA, 660 N.W.2d at 436 (MEP standard applies to small MS4s); Tualatin Riverkeepers v. Oregon Department of Environmental Quality, 235 Ore. App. 132; 230 P.3d 559 (Ct. App. Or. 2010) (permit that ensures TMDL discharges are reduced to the MEP satisfies legal requirements). 16 its use of the term "practicable," MEP considers the resources available to implement various BMPs. Something may be feasible from a technological standpoint, but not practicable given other constraints on the small MS4, such as available funding. Alternatively, something may be affordable but not feasible due to unique local conditions at the small MS4. The requirement to control pollutants to the MEP is a "lesser standard" than the water quality -based effluent limitations imposed by CWA §301(b)(1)(C), because those water quality standards must be met "without regard to the limits of practicability. " This separate standard for MS4 discharges creates an exception to the general rule in CWA §402(a), which states that other types of discharges must meet all applicable requirements of CWA § §301, 302, 306, 307, 308 and 403. In fact, section 402(p)(6) of the CWA which directs EPA to promulgate the Phase II Stormwater Rule, does not even require the EPA to utilize NPDES permits for Phase II of the municipal stormwater program. Congress simply authorizes EPA to develop a "comprehensive program" to regulate Phase II sources, and specifies that the program "may include performance standards, guidelines, guidance, and management practices and treatment requirements, as appropriate. " As EPA observed in the Preamble to the small MS4 1Phase II Stormwater Rule, Congress provided the Agency with "broad discretion" to establish a comprehensive program that either includes or does not include the use of NPDES permits. Since MS4 permits are not required to achieve 32 Defenders, 966 F.2d at 1163, citing Oklahoma v. EPA, 908 F.2d 595, 613 (10" Cir. 1990); Ackels v. EPA, 7 F.3d 862, 865 -66 (9th Cir. 1993). 33 33 U.S.C. §1342(p)(6). 34 See 64 Fed. Reg. 68722, 68741 (Dec. 8, 1999). 17 water quality standards, most requirements in 40 C.F.R. §122.44(d) do not apply to such permits. Congress and EPA intended MEP to be a flexible, non - prescriptive standard that considers local conditions and constraints: EPA has intentionally not provided a precise definition of MEP to allow maximum flexibility in MS4 permitting. MS4s need the flexibility to optimize reductions in storm water pollutants on a location -by- location basis. EPA envisions that this evaluative process will consider such factors as conditions of receiving waters, specific local concerns, and other aspects included in a comprehensive watershed plan. Other factors may include MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance. 36 Despite EPA's and Congress' clear intent to allow small MS4s maximum flexibility to optimize reductions in storm water pollutants on a location -by- location basis and despite the requirement to apply the MEP standard, MPCA introduces a zero discharge requirement in the Draft Permit. Unless and until the small MS4s are able to prevent all rain and snowfall, a zero discharge requirement is unquestionably impossible to meet. Such a requirement is not and cannot meet the MEP standard and must be removed from the Draft Permit. 35 Many of the requirements in 40 C.F.R. §122.44 do not apply to MS4 permits, because the opening sentence of §122.44 states that "each NPDES permit shall include conditions meeting the following requirements when applicable." Inapplicable requirements include those to comply with technology - based effluent limitations and standards promulgated under CWA §301 ( §122.44 (a)); to comply with other effluent limitations and standards under CWA § §301, 302, 307, 318 and 405 ( §122.44(b)); to achieve water quality standards ( §122,44(d)); and to comply with technology -based controls for toxic pollutants ( §122.44(e)). Instead, §122.44(k) applies to MS4 discharges. Section 122.44(k) was amended when the final Phase II regulations were adopted to create a specific subparagraph covering the use of BMPs to achieve compliance with the MEP standard for MS4s. The new §122.44(k)(2) explicitly provided that BMPs shall be included in a permit when "authorized under section 402(p) of the CWA for the control of storm water discharges." See 64 Fed. Reg. 68722, 68847 (Dec. 8, 1999). 36 64 Fed. Reg. at 68754 (Dec. 8, 1999). "Draft Permit, Part I.B.B. 18 Requested Relief Delete any reference in the Draft Permit to a zero discharge requirement, whether associated with an approved TMDL WLA or any other aspect of a small MS4s' discharge. f. The MPCA Exceeds its Statutory and Regulatory Authority By Regulating Flow and Volume Rather than Pollutants Neither the CWA nor the EPA's implementing regulations give MPCA the authority to regulate flow as a surrogate for pollutants. Stormwater flow or volume, while it arguably may contribute to "pollution" within the meaning of §502(19) of the CWA because it contains "pollutants ", is not itself a "pollutant" as defined in §502(6) of the CWA. Similarly, "pollutant ", as defined under Minnesota law in Minn. Stat. §115.05 does not include flow or volume since neither flow nor volume are a waste or a substance. Since volume and flow are not pollutants, they cannot be regulated as stand alone discharge limitations. Nevertheless, the Draft Permit's construction and postconstruction provisions specify standards for flow and volume. 39 Requested Relief Since flow /volume are not "pollutants" for which the MPCA may set discharge standards, the flow and volume discharge limitations should be removed from the Draft Permit. 38 „ pollutant" means any sewage, industrial waste, or other wastes, as defined in this chapter, discharged into a disposal system or to waters of the state. Minn. Stat. §115.01, subd. 12. "Sewage" means the water- carried waste products from residences, public buildings, institutions or other buildings, or any mobile source, including the excrementitious or other discharge from the bodies of human beings or animals, together with such groundwater infiltration and surface water as may be present. Id. at Subd. 17. "Industrial waste" means any liquid, gaseous or solid waste substance resulting from any process of industry, manufacturing trade or business or from the development of any natural resource. Id. at Subd. 8. "Other wastes" mean garbage, municipal refuse, decayed wood, sawdust, shavings, bark, lime, sand, ashes, offal, oil, tar, chemicals, dredged spoil, solid waste, incinerator residue, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, cellar dirt or municipal or agricultural waste, and all other substances not included within the definitions of sewage and industrial waste set forth in this chapter which may pollute or tend to pollute the waters of the state. Id. at Subd. 9. 39 Draft Permit, Part III.E.5.a(1) at p. 18. 19 g. The Draft Permit Impermissibly Sets Standards and Requirements that Should be Part of a Rulemaking Proceeding MPCA's Draft Permit represents an unlawful attempt to avoid a rulemaking proceeding. The Draft Permit sets statewide urbanized area discharge standards for new development and redevelopment projects. These include standards applicable during construction and after construction on a completed project . The Draft Permit also dictates statewide urbanized area standards for enforcement laws and enforcement procedures covering illicit discharges, construction practices, and postconstruction standards. The Minnesota legislature previously authorized MPCA to adopt and enforce rules regulating storm water discharges, and MPCA adopted such rules. With respect to small MS4s, the applicable program requirements of MPCA's current rules provide in total as follows: Subpart 1. Storm water pollution prevention program required. Owners or operators of permitted MS4's must have a storm water pollution prevention program to address environmental concerns related to storm water discharge. The program must address the following minimum measures in accordance with Code of Federal Regulations, title 40, section 122.34(b): A. public education and outreach; B. public participation /involvement; C. illicit discharge detection and elimination; D. construction site runoff control; E. postconstruction runoff control; and 40 Id. at Part III.E.5.a(1) at p. 18; Part III.E.4.a(2)(a) -(g) at pp. 16 -17. 41 Id. at Part 1113 & C at p. 10. 42 Minn. Stat. §115.03. subd. 5c. 20 F. pollution preventiontgood housekeeping. Subp. 2. Record keeping. Owners or operators required to have a storm water pollution prevention program under subpart 1 must maintain a copy of the program and make it available to the agency upon request. Like EPA's rule, this MPCA rule establishes very general requirements for small MS4s based on federal minimum measures. Under both rules, small MS4s address the six general requirements (minimum control measures (MCMs)) by creating their own storm water programs. MPCA exceeds the boundaries of both its and EPA's short, simple rulemakings with its barrage of prescriptive Draft Permit conditions. Instead of following its own stormwater rule or the authorizing federal stormwater rule calling for flexibility and control at the local level, MPCA created a highly prescriptive proposed permit that is a rulemaking in itself. The Draft Permit legislates the future discharge standards for every permittee's urban area development of over an acre of land, both during and after construction. It legislates enforcement ordinances the cities should pass, down to the detail of the hierarchy and type of sanctions that should be included in those local laws. The permit legislates that hundreds of cities must conduct plan approval and site review processes for future construction projects. 45 41 Minn. R. 7090.1040 (italics added). 44 Draft Permit, Part III.B & C, pp. 10 & 11. 45 Id. at Part III.E.4.a & b, pp. 16 & 17. A city cannot take enforcement action against the source of an illicit discharge without some legal authority to so act. Unlike developers, illicit dischargers will not have enforceable agreements, easements or similar regulatory mechanisms that allow the cities to control such discharges. An ordinance setting forth sanctions for illicit discharges will be required, assuming there is legislative authority to enact such a law. Notably, for other environmental programs the legislature has expressly provided for municipalities to adopt specific ordinances or specifically directed an agency to craft ordinances for the municipalities to adopt. See, e.g., Minn. Stat. §115.55, subd 7 (subsurface sewage treatment systems); Minn. Stat. §103F.221 (municipal shoreland management); §103F.335 (wild and scenic river ordinance required). In either case, the original authority to adopt an ordinance derives from the legislature, not an agency. Minn. Const. Art. XII, §3. This is in keeping with the constitutional requirements of separation of powers. Municipal powers under the Minnesota Constitution are derived from the Minnesota Legislature. City of Morris v. Sax Investments, Inc., 749 N.W.2d 1, 6 (Minn. 2008). 21 MPCA sets all these standards for the urban areas of the state without any rulemaking procedure or any comparable federal authority in statute or rule. To do so is improper and contrary to law. Under the Minnesota Administrative Procedures Act (the MN APA), the term "rule" means "every agency statement of general applicability and future effect, ... adopted to implement or make specific the law enforced or administered by that agency. ' The Draft Permit legislates future discharge standards for total suspended solids, total phosphorus and total flow for all significant urban area developments. These standards are requirements of general applicability (they are even in a "general" permit) of future effect, and the standards effectively function as statewide rules. The MN APA requires that "each agency shall adopt, amend, suspend, or repeal its rules in accordance with the procedures specified in sections 14.001 to 14.69, and only pursuant to authority delegated by law and in full compliance with its duties and obligations. " And, the MN APA prohibits agencies from adopting or amending rules except in accordance with its requirements. This need to follow proper procedures is particularly critical here, where an unfunded mandate requires the cities to implement these permitting requirements. If the "standards and regulations" provided for in the Draft Permit were properly The MPCA is an arm of the executive brand of government and may not invade the legislative province b dictating municipal ordinances without authority from the legislative branch of government. 4 Minn. Stat. §14.02, Subd. 4. 47 Draft Permit, Part III.E.5(a)1, p. 18. 48 Minn. Stat. §14.05, Subd. 1. 49 Id. In addition, where as here, an agency has given its regulation a definitive interpretation in the prior permit, and later significantly revises that interpretation, the agency has in effect amended its rule, something it may not accomplish without notice and comment. Alaska Professional Hunters Assn, Inc. v. Federal Aviation Administration, 177 F.3d 1030 (D.C. Cir. 1999); Syncor Intl Corp. v. Shalala, 127 F.3d 90, 94 -95 (D.C.Cir.1997)(modification of an interpretive rule construing an agency's substantive regulation will "likely require a notice and comment procedure "). 22 promulgated by rule, the MPCA would be required to establish their need and reasonableness, including evaluating "the probable costs of complying with the proposed rule, including the portion of the total costs that will be borne by identifiable categories of affected parties, such as separate classes of govemmental units, businesses, or individuals ". The MPCA would also need to provide "an assessment of any differences between the proposed rule and existing federal regulations and a specific analysis of the need for and reasonableness of each difference. 41 Moreover, the cities would have the opportunity to petition for amendment or repeal based on the need for or reasonableness of the rule or less costly or intrusive methods of achieving the purpose of the rule. The MPCA has improperly avoided all such requirements by de facto promulgating rules under the guise of the Draft Permit. Even EPA recognizes that a rulemaking is appropriate at this juncture in order to impose additional requirements on MS4s. On December 28, 2009, EPA published notice of its plans to initiate a national rulemaking "to reduce stormwater discharges from development and redevelopment and make other regulatory improvements to strengthen its stormwater program" (the Notice). The EPA rulemaking anticipates "establishing specific postconstruction requirements for stormwater discharges from, at 50 Minn. Stat. §14.131(5) (italics added). " !d. at (7). 52 The elected governing body of a statutory or home rule city, a county, or a sanitary district may petition for amendment or repeal of a rule or a specified portion of a rule. The petition must be adopted by resolution of the elected governing body and must be submitted in writing to the agency and to the Office of Administrative Hearings, must specify what amendment or repeal is requested, and must demonstrate that one of the following has become available since the adoption of the rule in question: (1) significant new evidence relating to the need for or reasonableness of the rule; or (2) less costly or intrusive methods of achieving the purpose of the rule. Minn. Stat. §14.091(a). 53 74 Fed. Reg. 68617 (Dec. 28, 2009). 23 a minimum, new development and redevelopment. ,54 The Notice asks for input on what standards could apply to new development and redevelopment within MS4s. As evidenced by the Notice, EPA recognizes that its current rules do not provide any standards or specific postconstruction requirements for stormwater discharges from MS4s. The Notice also establishes that EPA recognizes a rulemaking must occur before such standards can be imposed on MS4s. Similarly, MPCA's stormwater rule does not establish standards or specific postconstruction requirements for development and redevelopment projects. Yet MPCA attempts to create such standards by issuing a permit, rather than undertaking the legally required rulemaking. Requested Relief Until such time as EPA amends the federal rules applicable to small MS4s, MPCA either needs to issue a permit that falls within the parameters of the federal rule and its own stormwater rule, or proceed with a state rulemaking to promulgate the standards it attempts to legislate via the Draft Permit and issue a new MS4 permit only after the rulemaking is complete. h. The Permit Violates the Separation of Powers Requirement of Minnesota's Constitution by Unlawfully Intruding on the Municipalities' Land Use Planning Authority and Invading the Domain of their Enforcement Discretion Under the Minnesota Constitution: The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution. 54 Id. at 68620. 55 Id. at 68621. 56 See Minn. Rule 7090.1040. 57 Minn. Const. Art. III, §1. 24 The Minnesota legislature has delegated to municipalities the power to determine and plan the use of land within their boundaries: 48 A comprehensive plan contains "objectives, policies, standards and programs to guide public and ,private land use, development, redevelopment and preservation for all lands and waters within the jurisdiction of the local governmental unit. " Because land use planning and regulation are within a city's legislative prerogative, the city has broad discretion when it makes decisions in that arena. MPCA usurps that authority with its development and redevelopment standards that dictate local post - development land use conditions and prevents cities from adopting regional solutions to stormwater pollutant controls. The Draft Permit includes requirements on the content of enforcement ordinances and enforcement procedures. It requires permittees to use some of MPCA's mandated enforcement tools. It demands that enforcement mechanisms have timing requirements and escalation requirements. It requires written records of oral warnings. All of these attempts by the MPCA, an administrative agency, to control another governmental entities design and enforcement of its own laws invades the province of the municipality. Generally, a prosecutor has broad discretion in the exercise of the charging function and ordinarily, under the separation -of- powers doctrine 58 VanLandschoot v. City of Mendota Heights, 336 N.W.2d 503, 507 (Minn. 1983); see Minn. Stat. §462.351 (2004) (stating that the purpose of the Municipal Planning Act is to provide municipalities "with the necessary powers" to conduct and implement municipal planning). 59 Minn. Stat. §473.859, subd. 1 (stating contents of comprehensive plan). 60 See Honn v. City of Coon Rapids, 313 N.W.2d 409, 414 (Minn. 1981) (stating that "a municipality acts in a legislative capacity" in adopting or amending a zoning ordinance, "regardless of the size of the tract involved "); Mendota Golf, LLP v. City of Mendota Heights, 708 N.W.2d 162, 174 (Minn. 2006) (district court exceeded scope of authority by interfering with exercise of legislative discretion and ordering city to reconcile conflict of laws in certain way). 61 Draft Permit, Part III.C. at p.10 -11. 62 id. 63 id. 64 id. 25 that discretion should not be interfered with. The Minnesota legislature has delegated to municipalities the authority to adopt and enforce their own laws. 66 MPCA should not invade upon this authority. Requested Relief Work with the small MS4s on drafting appropriate postconstruction permit provisions that enable cities to use many different tools to achieve a reduction in pollutants to the MEP. Revise the Draft Permit to allow the cities to craft their own enforcement response mechanisms using the sanctions they deem appropriate for their communities. Revise the Draft Permit to allow cities to exercise complete discretion in determining the enforcement actions to pursue take for any given violation and how it will document those actions. 4. The League of Minnesota Cites Hereby Petitions for a Contested Case Hearing to Resolve the Following Fact Issues a. Material Fact Issue #1: What are the Costs to Comply with the Draft Permit and Are Those Costs Overly Burdensome, Unreasonable and in Excess of Affordability Standards? There are material issues of fact in dispute conceminQ the Draft Permit The MPCA should hold a contested case hearing to address material fact issues raised by the Draft Permit. The first such issue relates to the costs this Draft Permit imposes on the municipal and other local governmental entities it regulates. A second fact issue on the MEP standard is discussed in Section 4b. Before imposing requirements on municipalities of the magnitude set forth in the Draft Permit, the costs should be understood, and once understood, evaluated as to whether they are practicable and affordable by the regulated communities. LMC must assume the MPCA considered the costs to comply with the Draft Permit and determined "State v. Foss, 556 N.W.2d 540 (Minn. 1996). ss Minn. Stat. §360.038, Subd. 3; §462.362. W them to be reasonable; however, there is no indication that MPCA gave any meaningful attention to this issue. LMC asserts the costs to comply with the Draft Permit are excessive, not practicable and not affordable by their citizen populations. With the aid of a trier of fact, the MPCA can make and has jurisdiction to make determinations of cost, feasibility, practicability and MEP: As discussed earlier in this submitta1, the legislature requires MPCA to consider economic factors and other material matters affecting the feasibility and practicability of the Draft Permit conditions. These include the financial burden on any municipality. In addition, cost considerations bear on practicability, which is embodied in the MEP permit standard that applies here. Therefore, the MPCA has jurisdiction to make determinations on whether the Draft Permit compliance costs are reasonable and practicable and whether permit requirements meet MEP. There is a reasonable basis underlying the cost, cost/benetit, cost/practicability and MEP fact issues such that holding a hearing would allow information to be introduced to aid MPCA in resolving these issues: The stormwater program represents one of many unfunded mandates on Minnesota cities. As such, the burdens of compliance fall largely on the municipal population and the permit requirements must be incorporated in the cities' budget. Permit requirements can be funded by a variety of mechanisms, however, they are all subject to affordability limits and community acceptance. While it may be possible to standardize certain costs for purposes of evaluating the impact on cities, MS4s differ significantly. So, although there may be a per pond 67 See infra at 3.c. 68 See Minn. Stat. §116.07, sub. 6. 27 cost to conduct a pond assessment, this burden falls disproportionately on a small MS4 with six hundred (600) ponds, versus a small MS4 with twenty (20) ponds. Absent a correlation in number of households in the small MS4 that could bear the cost burden for the 600 ponds, the assessment may not be feasible, much less reasonable for the small MS4 to undertake. These local disparities need to be presented to a trier of fact, so that they can be understood and considered in evaluating the costs of the Draft Permit and whether its requirements are affordable or whether more flexible, locally driven permit provisions need to be adopted. Small MS4s have been developing and administering their stormwater programs for over seven (7) years and can provide helpful information to understand costs and local variabilities. Testimony from (1) small MS4 finance directors familiar with their small MS4 budgets; (2) small MS4 stormwater program managers who understand the necessary time, resources and administrative burdens associated with the Draft Permit requirements, and (3) experts on the economics of family household incomes and affordability thresholds, will all aid a trier of fact in determining the facts. With respect to water programs, there is an affordability factor beyond which it is not feasible to impose additional financial burdens on Minnesota households. 69 A trier of fact can be informed by testimony from economic experts who offer information on current economic constraints, tax burdens and fees on small MS4 households, income ea In developing national -level affordability criteria, EPA established an affordability threshold of 2.5% of median household income (MHI). E M = A T — B where: EM (Expenditure Margin) is the maximum increase that can be imposed by treatment and still be considered affordable), AT (Affordability Threshold) is the upper limit for the cost of water bills including costs for treatment, distribution, and operation (the current Affordability threshold is 2.5% of Median Household Income — MHI), and B (Baseline component) is from current annual water bills and median household income. If the projected compliance cost for the rule is less than the available expenditure margin then the technology is affordable. Affordability Criteria for Small Drinking Water Systems: An EPA Science Advisory Board Report at 1 (Dec. 2002). 28 trends, and data on affordability based on small MS4 populations, incomes and other pertinent factors. All of this information must be evaluated by MPCA under Minnesota Statutes §116.07, subd. 6. There is a reasonable basis for small MS4s to challenge whether the Draft Permit costs are reasonable, practicable and feasible and whether permit conditions meet the MEP standard. Some preliminary evaluations of the costs to comply with the Draft Permit make it clear that those costs can far exceed the financial capabilities of small MS4s. A cost benefit analysis also supports eliminating certain proposed permit conditions. For example, the Draft Permit requires that stormwater ponds be maintained according to MPCA guidance on "Managing Dredged Materials in the State of Minnesota" (the Guidance). A preliminary analysis of the cost to remove and dispose of the dredged material in only ten percent (10 %) of the ponds in the seven (7) county metropolitan area (or 2000 ponds per MPCA) found that cost to equal One Billion Dollars ($1,000,000,000.00)." This is the cost to maintain only 2000 ponds via sediment removal as required by the Draft Permit. Scaling this down to a per pond basis, a small MS4 that needs to dredge a single PAH- impacted pond may spend Five Hundred Thousand Dollars ($500,000.00). A fair number of small MS4s have hundreds of ponds. Needless to say, an impact of this financial magnitude may bankrupt a city. 70 Currently unavailable —MPCA website inaccessible. 71 Draft Costs Estimates for Minnesota Stormwater Collection Systems provided by MPCA to Hennepin County (January 7, 2011). 72 Draft Permit III.E.6.b at p. 23. 73 When MPCA adopted its stormwater rule, its estimated cost of the MS4 stormwater permit requirements ranged from Ten Dollars ($10.00) to Fifty Dollars ($50.00) per household. At that time, the estimated number of households in the regulated MS4 cities was one million (1,000,000). Therefore, the estimated cost of the MS4 stormwater permit requirements to the permittees was in the range of Ten Million to Fifty Million Dollars ($10,000,000 to $50,000,000). This cost range was judged to be a reasonable burden on the permittees. When this cost is adjusted for inflation using the Consumer Price 29 Similarly, small MS4s have evaluated the estimated costs for the brand new pond assessment provisions of the Draft Permit. As discussed earlier, the estimated cost of that requirement ranges from Twenty -One Million Three Hundred and Fifty Thousand Dollars ($21,350,000.00) to Twenty -Six Million Six Hundred and Fifty Thousand Dollars ($26,650,000.00). To put these two estimated costs in context in terms of the overall Draft Permit requirements, the City of Rochester prepared a spreadsheet showing the tasks and information requirements for the Draft Permit. That spreadsheet is identified as the Permit Workload Table submitted with the City of Rochester's comments that have been incorporated by reference as part of this submittal. The Permit Workload Table demonstrates how overly burdensome the Draft Permit requirements are and provides insight into the near impossibility of substantial, much less complete compliance, with the permit. More specifically, this spreadsheet shows that in addition to implementing the current permit, there are twenty -one (21) major task areas in the Draft Permit. Within the first year alone, there are one hundred and four (104) discrete subtasks that must be completed, of which eighty percent (80 %) are new or expanded requirements. They Index, this cost range would be Twelve Million to Sixty Million Dollars ($12,000,000 to $60,000.000) in 7/N 1 rinlhre Tha Q r)KIAR inch iriari tha fnlinwinn nnaivcic of tha imnart on the regulated cities: Percentage of Cities Impacted at Specified Levels Cost Estimate Proportion of 2002 Revenue Low estimated cost $10 per household High estimated cost $50 per household More than 3% -- 27% 1% to 3% 20% 68% Less than 3% 80% 5 % In re: Proposed Amendments to Minnesota Kules cnapter fuu uoverning oturmwalydi rennus, %�Ilclpwl 7002, Governing Water Quality Permit Fees, and New Rules to be Codified as Chapter 7090, Governing the Stormwater Regulatory Program, Statement of Need and Reasonableness at p. 84 (September 3, 2004). 74 See discussion infra at 3.a. 30 cover a wide range of direct functions including: administrative tasks, planning efforts, review and approval tasks, inspection and enforcement activities, mapping and inventory work, performance assessment, public education and participation, and operations and maintenance of the storm water management system. One MS4 has estimated that the cost to complete just the new administrative tasks alone is approximately Fifty -Seven Thousand Five Hundred Twenty Dollars ($57,520.00) per year. The Draft Permit also indirectly drives additional tasks not accounted for in the permit task list, such as the construction of BMPs. The level of effort for each task is significant and no single task is an incidental effort. In short, complying with the Draft Permit is an intensive, costly and huge undertaking. When evaluating the Draft Permit in terms of costs and their affordability and practicability, all of these requirements need to be accounted for. In summary, the MPCA should hold a contested case hearing to determine issues of fact on MEP as discussed below, and on the Draft Permit compliance costs and whether those costs are practicable, affordable and reasonable. Evidence on the estimated costs, the current economic conditions, the budgets of municipalities, the unique local variabilities among the small MS4 cities, and the anticipated benefit to the environment expected as a result of certain permit conditions will aid a tier of fact in evaluating whether permit conditions can feasibly or reasonably be imposed on the small MS4s or whether a more flexible approach is needed given the huge variability in circumstances among the small MS4s. MPCA has been charged by the Minnesota 75 See Attachment C to this submittal. 31 Legislature and the MEP standard with considering these factors in all of its actions and thus has jurisdiction to do so. b. Material Fact Issue #2: Do the Draft Permit Requirements Exceed the Maximum Extent Practicable Standard? MPCA's contested case hearing should also address the fact issues on whether provisions of the Draft Permit exceed (or even address) the applicable standard to reduce pollutants in stormwater to the MEP. In most cases, the application of the MEP is done on a case -by -case basis, depending on each MS4 permittee's conditions and circumstances. However, here many prescriptive and detailed permit requirements apply "across the board" to all permittees. As a result, aspects of the Draft Permit make compliance in a manner meeting the MEP standard impossible for many or all of the MS4 permittees. These aspects include: • The introduction of a new and different permit standard within the permit itself — "eliminate exposure" rather than an ultimate goal to "reduce or prevent exposure" • Permit requirements that are physically impossible to achieve or standards that are unattainable • Permit requirements that compel the permittees to expend public funds in a wasteful or pointless manner • Permit terms that are so overbroad as to be impossible to understand, rendering compliance unachievable • Permit requirements that do not lead to water quality improvements or pollutant loading reductions • Permit provisions that are overly vague, confusing or contradictory The Specific Comments provide details on the provisions of the Draft Permit where these aspects are evident. 76 See Minnesota Statutes §116.07, subd. 6. 32 In its rules, EPA has intentionally not provided a precise definition of MEP in order to allow maximum flexibility in MS4 permitting. EPA has indicated that WS4s need the flexibility to optimize reductions in storm water pollutants on a location -by- location basis."" EPA envisions that factors such as "conditions of receiving waters, specific local concerns, and other aspects included in a comprehensive watershed plan" will be considered . And, EPA identifies other appropriate considerations to include "MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance. ,79 Consequently, determining MEP is a fact - intensive inquiry that requires consideration of many different factors. In some circumstances, permit conditions that exceed the MEP standard for one small MS4 may not exceed it for a different small MS4. For example, a small MS4 with a relatively low population simply does not have the staffing or other administrative resources to implement many of the Draft Permit requirements. The Draft Permit regulates cities like Centerville and Lauderdale with 2010 census populations of three thousand seven hundred ninety -two (3,792) and two thousand three hundred and seventy -nine (2,379) respectively. Household numbers for these cities are even smaller. How can either of these cities conceivably undertake the over one hundred (100) tasks set forth in this Draft Permit? Cities of this size simply do not have the staffing capabilities to complete this volume of work and have no means of funding the work, given their small populations. The facts will show how the Draft 77 64 Fed, Reg. at 68754 (Dec. 8, 1999) (italics added). 78 Id. 79 Id. (italics added). 33 Permit exceeds the MEP standard for these small MS4s. And, these are just two example cities. MEP also considers the cost benefit of BMPs in reducing pollutants. LMC proposes to offer the testimony of Ross Bintner as one witness to aid the trier of fact in evaluating this aspect of MEP. Mr. Bintner derives cost curves showing the cost versus pollutant removal benefit for tasks his city (Prior Lake) performs to address water quality. Mr. Bintner's cost curve analyses demonstrate that a number of Draft Permit provisions direct funding away from much more cost - effective pollutant removal or reduction strategies. In addition, Mr. Bintner can testify as to how the postconstruction standards exceed MEP for small MS4s similarly situated to Prior Lake. Where a small MS4 has a high density of receiving waters relative to its land area, mitigation within the same drainage area becomes nearly impossible. This occurs because with so much water, the size of each drainage area tends to be quite small. C. Relief Requested in Contested Case Proceeding LMC requests that MPCA use the findings from the hearing before the administrative law judge to revise the Draft Permit: (1) to eliminate provisions that are prohibitively costly or beyond the MEP standard for all MS4s; (2) to eliminate provisions for which the cost/benefit analysis shows no benefit in reducing pollutants to the MEP, or that divert limited resources away from pollutant reduction objectives for no legitimate reason; and (3) to revise provisions that are prohibitively costly or beyond MEP for some small MS4s based on their unique circumstances (e.g., hundreds of ponds, small population, low income population, etc.) to offer flexibility to develop stormwater 34 programs designed to reduce pollutants to the MEP in a manner that small MS4s can accomplish from a resource, cost and feasibility standpoint. 5. LMC's Specific Comments on Draft Permit Provisions and Requests for Action The following specific comments offer more detailed, line -by -line, feedback on the Draft Permit and some of the rationale for those comments. In addition to these specific comments, LMC has incorporated in its submittal the Public Comments and Attachments submitted by the City of Rochester. That submittal also contains line -by- line analyses and requested actions on the Draft Permit, along with supporting reasons. 1. Permit Section: N/A (page 1 of 45) Statement of Action: Change the number of the new draft MS4 permit. Example Supporting Reasons: A different permit number would help in differentiating between the new Draft Permit and the 2006 permit and allow for a definition of "existing permittees" as small MS4s covered under the existing permit number. 2. Permit Section: Part I.A.2. (page 3 of 45) Authorized Non- Stormwater Discharges This permit authorizes the following non- stormwater discharges to enter a small MS4 provided the permittee of that small MS4 has conducted an assessment and found the discharges not to be significant contributors of pollutants to that small MS4: Statement of Action: Revise this section to match the similar language in the 2006 MS4 general permit and the federal rule, including this sentence: "You must address the following categories of non - stormwater discharges or flows only if you identify them as significant contributors of pollutants to your small MS4." Example Supporting Reasons: The proposed language maintains consistency with the 2006 Permit and the requirements of 40 C.F.R. § 122.34(b)(3)(iii). There is no need for existing permitees to spend time and effort assessing non - stormwater discharges if such discharges do not contribute significant pollutants to the small MS4s. The language from the 2006 permit and the federal rule reflect the appropriate requirements as a matter of law. 35 3. Permit Section: Part I.B.1. (page 3 of 45) Non- stormwater discharges, except those described in Part I.A.2. Non - stormwater discharges that are not authorized to be discharged to a small MS4 regulated by this permit include, but are not limited to: combined sewer overflow, noncontact cooling water, sewage, wash water, scrubber water, spills (as defined in Minn. Stat. § 115.061), oil, hazardous substances, fill, commercial equipment/vehicle cleaning and maintenance wastewaters. Statement of Action: Please delete the word "fill" from the list of non - stormwater discharges. Example Supporting Reasons: Fill is commonly understood to be the placement of soils at a construction project for purposes of grading, soil stabilization or building foundation support. The placement of fill is not a form of water discharge. Including the word "fill' on this list of water discharges is inappropriate, confusing and irrelevant. Please delete the reference to fill or revise this word to be more accurate and appropriate. 4. Permit Section: Part I.B.2. (page 3 of 45) Discharges of stormwater to the small MS4 from activities requiring a separate NPDES permit when those activities (e.g., construction activity as defined in 40 C.F.R. § 122.26(b)(14)(x) and (b)(15), and industrial activity as defined in 40 C.F.R. § 122.26(b)(14)(i) -(xi)) are owned and /or operated by the small MS4 authorized under this permit. This permit does not replace or satisfy any other permitting requirements. Statement of Action: Revise this paragraph so it makes sense or delete it. Example Supporting Reasons: The meaning of this language is unclear. Is MPCA telling us that none of the permit requirements, including local standard operating procedures (SOPs) and enforcement response procedures (ERPs) developed under this permit apply to an activity that requires a separate NPDES permit to such discharges? For example, would none of the permit requirements or local SOPs or ERPs developed under the small MS4 permit apply to a city -owned facility, such as an airport, that is covered under an MPCA NDPES /SDS General Industrial Stormwater Permit? Similarly, would none of the construction activity provisions or local SOPs and ERPs developed under the Draft Permit apply to a city -owned construction project covered under the MPCA NPDES /SDS General Construction Stormwater Permit? Perhaps the MPCA really means that if an activity or facility owned or operated by the small MS4 requires a different MPCA NPDES /SDS Permit, the small MS4 must obtain and comply with that permit. If so, say so. 5. Permit Section: Part I.B.8.a. (page 4 of 45) The following discharges or activities are not authorized by this permit: 36 When a United States Environmental Protection Agency (USEPA)- approved Total Maximum Daily Load (TMDL) report includes a Waste Load Allocation (WLA) of zero for the pollutant of concern for the small MS4 Statement of Action: Please delete this paragraph. Example Supporting Reasons: A zero discharge is unattainable for MS4 cities for almost every pollutant. A zero discharge is also inappropriate under the MS4 permit's MEP standard. A TMDL allocating a WLA of zero for a small MS4's stormwater discharge would be in error. Such an error in a WLA should be fixed by changing the WLA, not by causing the permittees to be out of compliance. In addition, it is inappropriate to suggest that a WLA of zero for small MS4 stormwater discharges would be approved by EPA. Putting this provision in the Draft Permit potentially places every affected MS4 out of compliance with this permit. 6. Permit Section: Part I.B.8.b. (page 4 of 45) For which a TMDL report assigns a USEPA- approved WLA to the small MS4 for a pollutant of concern, unless the permittee complies with all terns and conditions of this permit, and Appendix A Statement of Action: Delete "Appendix A" from the phrase "unless the permittee complies with all the terms and conditions of this permit, and Appendix A ". Example Supporting Reasons: Appendix A is part of the terms and conditions of this permit. 7. Permit Section: Part 1.B.9. (page 4 of 45) Discharges from the activity of chemically treating stormwater within a small MS4 to remove phosphorus, unless the permittee complies with Appendix B. Statement of Action: Please revise the term "chemically treating stormwater." Example Supporting Reasons: This term "chemically treated" may apply to a host of activities and is inappropriately broad and nonspecific. It might be interpreted to include iron - enhanced sand filters and other emerging technologies. If MPCA intends to regulate the addition of alum and ferric chloride to stormwater as a treatment methodology then MPCA should describe the activity being regulated as "the addition of alum and ferric chloride to stormwater as a treatment methodology." 8. Permit Section: Part I.C.5. (page 5 of 45) Upon final approval of the application by the Commissioner, applicants are authorized to discharge stormwater from small MS4s under the terms and conditions of this permit 37 Statement of Action: Please revise the phrase "final approval of the application by the Commissioner" to make its meaning clear. Example Supporting Reasons: Is "final approval of the application by the Commissioner" the same as "time of authorization" referred to in other sections of the permit? If yes, use just the latter term. Using different terms to refer to the same thing is confusing. 9. Permit Section: Part II.C. 1. (page 6 of 45) Stormwater Management Program (SWMP) Summary Requirements New permittee's and existing permittee's shall submit a summary of each SWMP component listed below when seeking coverage under this permit. The SWMP summary shall be submitted on a form provided by the Commissioner and shall include, at a minimum, the following: 1. Partnerships: A summary of any partnerships the permittee has entered into, or plans to enter into, in accordance with Part 111.A of this permit. The summary shall include: Statement of Action: Provide a definition for "partnership" as it is used throughout the Draft Permit. Narrow the definition to apply to key collaborations between other organizations on stormwater matters, such as watershed districts. Exclude from the definition contracts with consulting firms or other businesses hired by small MS4s to perform a permit task. Recognize that the collaborations that the permittees have traditionally considered as partnerships often do not include written agreements or formal agreement on how long the collaboration will last and strike requirements in the Draft Permit suggesting otherwise. Example Supporting Reasons: Without a narrow definition, this permit section and others using the word "partnership" are vague and ambiguous and overly burdensome. Please also address Part III.A. — at page 10 of 45. An MS4 may have a significant number of consultants or contractors involved in permit related work or SWMP components. It is burdensome and unreasonable to require that all these relationships be treated as "partnerships" and reported on as part of this permit. 10. Permit Section: Part II.C. 1. (page 6 of 45) Partnerships: A summary of any partnerships the permittee has entered into, or plans to enter into, in accordance with Part 111.A of this permit. The summary shall include: a. The names of organizations with which the permittee has entered into a partnership b. The start and end dates of all partnership agreements and c. The specific activities or requirements of the permit for which each partner has agreed to be responsible 38 Statement of Action: Please provide a narrow definition of "partnership" as described in Comment 10 and omit the suggestion that partnerships need to be documented. Example Supporting Reasons: Do not require so much reporting and documentation that you discourage counties, cities, watershed districts and stormwater associations from collaborating together and coordinating their efforts for the benefit of the environment.. Those types of relationships should be enabled and fostered and left to the small MS4s to pursue without MPCA interfering into the details and demanding documentation. While the MPCA and the public need to know if some other regulated entity has assumed the entirety of responsibility for a permittee's obligation to perform an MCM and the duration of that formal agreement, other relationships do not warrant that level of scrutiny. 11. Permit Section: Part II.C. (page 6 of 45) Stormwater Management Program (SWMP) Summary Requirements New permittee's and existing permittee's shall submit a summary of each SWMP component listed below when seeking coverage under this permit. The SWMP summary shall be submitted on a form provided by the Commissioner and shall include, at a minimum, the following: Statement of Action: Please provide the referenced form to the permittees now for notice and comment since it is a permit requirement. Eliminate all redundancy between the summary of each SWPPP /SWMP component and the SWPPP /SWMP summary, and provide for only one of these obligations to be performed. Example Supporting Reasons: The MCEA decision on an earlier version of this permit treats this summary as part of "the permit" subject to public participation requirements. Redundancy caused by requiring both a summary of each SWPPP /SWMP component and a SWMP summary creates needless work and expense. 12. Permit Section: Part II.C.4. (page 7 of 45) Map and Inventory: A summary that describes the status of the permittee's storm sewer system map and inventory as required by Part III.D of this permit. The summary must indicate whether each requirement stated in Part III.D is "complete" or "not complete ". For each requirement that is designated "not complete'; the permittee shall include Statement of Action: Please change the terms "complete" and "not complete" to "up -to- date" and "not up -to- date ". 39 Example Supporting Reasons: Setting aside for the moment the overly broad mapping requirements that have no support in law, as to this specific requirement, MPCA needs to recognize that MS4s are always changing. Maps of MS4s are, therefore, rarely ever complete. The recommended terms more appropriately reflect day -to -day realities of an MS4 map. 13. Permit Section: Part II.C.5.d. (page 7 of 45) A summary of the following information for each Minimum Control Measure outlined in Part III. E. d. Individuals) responsible for implementing and/or coordinating each component of the Minimum Control Measure Statement of Action: Please revise this section to allow MS4s to provide the title of the staff position rather than the identity of a specific person. Example Supporting Reasons: Allowing the permittee the discretion to designate the title of the staff position instead of the name of an individual person accommodates employee promotion and turnover and avoids the need for repeated revisions to SWMPs /SWPPPs. 14. Permit Section: Part III.A (page 10 of 45) Partnerships The permittee is authorized under this permit to enter into partnerships with other entities on the design, implementation, and enforcement of one or more requirements of this permit. Statement of Action: See the prior comments relating to "partnerships." If MPCA is referring to formal arrangements in which another regulated party assumes the small MS4's obligations to design, implement or enforce an MCM under the Draft Permit, then use that as the definition. In the phrase "design, implementation, and enforcement ", please replace the word "and" with the word "or ". Example Supporting Reasons: MPCA seems to use "partnership" to refer to a myriad of different relationships. This causes confusion, needless effort and does not serve the objectives of reducing pollutants to the MEP. Here, the word "or" is more appropriate because it allow small MS4s greater flexibility in their relationships. 15. Permit Section: Part III.A (page 10 of 45) Partnerships The permittee is authorized under this permit to enter into partnerships with other entities on the design, implementation, and enforcement of one or more requirements of this permit 40 Statement of Action: Please replace the word "design" with the word "development" in this section and throughout the draft permit. Example Supporting Reasons: Programs and actions intended to meet permit requirements are usually developed, rather than designed. This language is consistent with the federal small MS4 rule at 40 C.F.R. §122.34(a). 16. Permit Section: Part III.0 (page 10 of 45) Enforcement Response Procedure (ERP) 1. The permittee shall develop and implement a written Enforcement Response Procedure (ERP) that describes the strategies the permittee will implement to enforce and compel compliance with the Regulatory Mechanism(s) developed by the permittee in accordance with Part 111.8, above Statement of Action: Please revise this section to allow for multiple ERPs, perhaps one for each of MCMs 3, 4, and 5 and move this requirement into the MCM provisions of the Draft Permit where they belong. Example Supporting Reasons: Many permittees will have multiple ERPs, one for each of MCMs 3, 4, and 5. These are components of the MCMs and the requirements should appear in those portions of the Draft Permit. Separating them out suggests these are in addition to the enforcement mechanisms for the MCMs and they are not. Further, different offenses require different enforcement. Illicit discharges, particularly willful and hazardous ones, warrant an entirely different and harsher enforcement mechanism than a construction contractor with a small part of a silt fence that needs repair. 17. Permit Section: Part III.C.1. (page 10 of 45) Enforcement Response Procedure (ERP) 1. The permittee shall develop and implement a written Enforcement Response Procedure (ERP) that describes the strategies the permittee will implement to enforce and compel compliance with the Regulatory Mechanism(s) developed by the permittee in accordance with Part III.B, above. The ERP shall describe procedures and circumstances for the implementation of the following types of enforcement tools, including time frames for escalation of enforcement for continuing violators: Statement of Action: Please delete the phrase "including time frames for escalation of enforcement for continuing violators" from the draft permit. Example Supporting Reasons: Small MS4s need flexibility in developing and enforcing their ERPs. Addressing violations frequently requires different actions based on the specific circumstances. This is embodied in the well established legal principles of prosecutorial discretion and enforcement 41 discretion. Violations are frequently not simple or straight - forward. Dealing with violations is typically not a linear process. For example, there may be multiple but egregious violations by a single contractor on multiple sites or a minor violation on a single site. These merit different enforcement responses. These factors make writing and following a standard schedule or procedure for the escalation of enforcement problematic. We are not aware that the MPCA has a written set of time frames for escalating enforcement under the State construction permit and see no reason that small MS4s should be bound by such restrictions on their local enforcement authority or discretion. 18. Permit Section: Parts III.C.1.a. & b. (page 11 of 45) a. Verbal Warnings — Verbal warnings must specify the nature of the violation and may include verbal corrective actions. b. Written Notices — Written notices must cite the specific violation and the Regulatory Mechanism(s) violated, and must include corrective actions with deadlines. Statement of Action: Eliminate the references to corrective actions in b or change it to "may include" rather than "must include" Example Supporting Reasons: Noncompliance identified during an inspection is sometimes corrected during that inspection. To mandate corrective action in these circumstances is not appropriate. The small MS4 may still wish to provide a written notice based on what was observed, but would not consider it appropriate to include corrective actions in the written notice. MPCA cannot anticipate all the potential circumstances that might be involved in any enforcement related matter. Neither can the MS4. Enforcement mechanisms need to allow flexibility to address the specific circumstances. 19. Permit Section: Part III.C.1.c. (page 11 of 45) c. Escalated Enforcement Measures — The permittee shall employ at least two of the enforcement tools below, to escalate enforcement responses where necessary to address persistent non - compliance, repeat violations, or occurrences of environmental harm: (1) Citations (with fines) (2) Stop work orders (3) Withholding of plan approvals (4) Withholding of funds received through bonding (5) Withholding other authorizations (e.g., certificate of occupancy) (6) Other measures — The permittee may use other measures allowed under local legal authorities. Statement of Action: Please delete the language "employ at least two of the enforcement tools below, to escalate enforcement responses where necessary" and replace it with "consider using the following enforcement tools." 42 Example Supporting Reasons: The MPCA should not mandate the means and methods of the small MS4s' enforcement activities. This is within the MS4s' discretion. The revised language identifies the tools that a small MS4 may use in its enforcement mechanisms and functions as a BMP menu. 20. Permit Section: Part III.C.1.c.4. (page 11 of 45) c. Escalated Enforcement Measures — The permittee shall employ at least two of the enforcement tools below, to escalate enforcement responses where necessary to address persistent non - compliance, repeat violations, or occurrences of environmental harm: (1) Citations (with fines) (2) Stop work orders (3) Withholding of plan approvals (4) Withholding of funds received through bonding (5) Withholding other authorizations (e.g., certificate of occupancy) (6) Other measures — The permittee may use other measures allowed under local legal authorities. Statement of Action: Replace the word "bonding" in this section with the term "financial assurance mechanisms" in its place. Example Supporting Reasons: The term "financial assurance mechanisms" covers a wider range of options that achieve the intended purpose. For example, a letter of credit that can be drawn down would meet the objective. 21. Permit Section: Part III.C.2. (page 11 of 45) All enforcement conducted by the permittee pursuant to the ERP shall be documented. Documentation shall include, at a minimum, the following: Statement of Action: Please revise this section to eliminate written documentation for verbal (oral) warnings. Example Supporting Reasons: This is another example of the Draft Permit including needless work. An oral warning is necessarily not written. Documenting it defeats the purpose of limiting it to an oral warning. Requirements like this waste limited staff and administrative resources. Consider how many more inspections can occur if less documentation is required. 43 22. Permit Section: Part Ill. D.1.a. (page 11 of 45) 1. Mapping New permittee's shall develop, and existing permittee's shall update, a storm sewer system map that depicts the following: a. Any pipes, ditches, and swales, including stormwater flow direction, that are part of the permittee's small MS4 Statement of Action: Remove this requirement from the Draft Permit. In other matters, define a pipe as having a diameter of 12 inches or more and define "pipe" to make it clear that the term "pipes" excludes foundation drain pipes, irrigation pipes, land drain tile pipes, and road subgrade drain pipes. Example Supporting Reasons: Except for the pond inventory legislation, requirements to map anything but outfalls and, for illicit discharges, that portion of the MS4 leading to the outfall in order to locate the source of the discharge is beyond the federal rule and MEP. Pipes under 12" in diameter do not meet a significance threshold it is a waste of limited resources to spend time and effort on them. The term pipes needs to be narrowed to be clear and manageable.. 23. Permit Section: Part III.D.1.a. (page 11 of 45) 1. Mapping New permittee's shall develop, and existing permittee's shall update, a storm sewer system map that depicts the following: b. Any pipes, ditches, and swales, including stormwater flow direction, that are part of the permittee's small MS4 Statement of Action: Please delete or significantly limit the requirement for mapping ditches. Example Supporting Reasons: Except for the pond inventory legislation, requirements to map anything but outfalls and, for illicit discharges, that portion of the MS4 leading to the outfall in order to locate the source of the discharge is beyond the federal rule and MEP. Ditches, in particular, are numerous and very difficult to map. In a single long ditch, the direction of flow may change multiple times. Determining the flow direction for a ditch that is close to flat may be very difficult. In a network of roads with ditches, it may be difficult to determine whether the ditch network is a single ditch or many multiple ditches. Without a size and /or capacity threshold, mapping all ditches may be of little or no value. Mapping ditches should be left to the discretion of the permittees. 24. Permit Section: Part III.D.1.b. (page 11 of 45) c. All outfalls and areas that drain to those outfalls 44 Statement of Action: Please limit the definition of the word "outfall" in this context and throughout the Draft Permit to make it more consistent with the federal rule (40 C.F.R. §122.26(b)(9). Example Supporting Reasons: T he definition of the word "outfall" provided in the Draft Permit is overly broad. It covers jurisdictional boundaries that have nothing to do with waters of the United States. Outfall is defined in the federal rules on MS4s. The definition of the word "outfall" is extremely important. Depending on exactly how the word is defined, an MS4 city may have 6 or 600 outfalls. 25. Permit Section: Part III.D.1.b. (page 11 of 45) b. All outfalls and areas that drain to those outfalls Statement of Action: Please delete the provision that MS4 map the "areas that drain to those outfalls". Example Supporting Reasons: Except for the pond inventory legislation, requirements to map anything but outfalls and, for illicit discharges, that portion of the MS4 leading to the outfall in order to locate the source of the discharge is beyond the federal rule and MEP. For example, many cities have delineated the drainage areas for individual lakes. Each of these lakes may have many individual outfall pipes. Delineating and mapping the drainage areas for every one of these pipes is excessive and requires that MS4s waste limited time, money, and staff resources. 26. Permit Section: Part III.D.1.d. (page 12 of 45) All grit chambers, sumps, floatable skimmers and traps, separators, and other small treatment BMPs that are part of the permittee's small MS4 Statement of Action: Please delete the word "sump" from the list in this section. Example Supporting Reasons: Except for the pond inventory legislation, requirements to map anything but outfalls and, for illicit discharges, that portion of the MS4 leading to the outfall in order to locate the source of the discharge is beyond the federal rule and MEP. Some cities have thousands of sump manholes and catch basin sumps. Mapping all of them is a grossly unreasonable burden. 27. Permit Section: Part III.D.1.d. (page 12 of 45) All grit chambers, sumps, floatable skimmers and traps, separators, and other small treatment BMPs that are part of the permittee's small MS4 Statement of Action: Please delete this section. If it is not deleted, it must be narrowed so it is feasible. 45 Example Supporting Reasons: Except for the pond inventory legislation, requirements to map anything but outfalls and, for illicit discharges, that portion of the MS4 leading to the outfall in order to locate the source of the discharge is beyond the federal rule and MEP. As written, this section could be interpreted to include requirements that an extraordinarily large number of BMPs must be mapped. For example, any and all rain barrels installed by private land owners under an MS4 incentive program could be included. 28. Permit Section: Part III.D.2. (page 12 of 45) Inventory The permittee shall complete an inventory of all constructed ponds and constructed wetlands within the permittee's jurisdiction that collect stormwater via constructed conveyances. Statement of Action: Please revise this sentence to read as follows: 'The permittee shall complete an inventory of all constructed ponds and constructed wetlands within the permittee's jurisdiction that collect stormwater via constructed conveyances that are part of the MS4." Example Supporting Reasons: This would appropriately limit the ponds and wetlands covered by this section to those that receive stormwater from the MS4 and not from other sources. 29. Permit Section: Part Ill. E.1.a.5. (page 13 of 45) a. Identify the following for each priority area selected: (1) The target audience(s) involved (2) Educational goals for each audience (e.g., increased awareness, increased understanding, acquired skills, desired behavior change, etc.) (3) Activities or actions that will take place to reach each educational goal for each audience (4) Activity implementation plans, including responsible department in charge, entities responsible for given activities, and schedules and (5) Performance measures with clearly defined baselines that will be used to assess success in reaching the established educational goals Statement of Action: Please delete the terms "performance measures" and "clearly defined baselines" and replace them with similar terms used elsewhere in the permit (e.g.: measurable goals, timelines, etc.) Example Supporting Reasons: The terms currently used in the Draft Permit are commonly used in public education, social marketing, and environmental psychology. They have widely accepted meanings. The methods to determine "clearly defined baselines" and implement "performance measures" are very technical and expensive and not appropriate for every MS4 under this permit. Even with guidance, it is imprudent to use such terms in this draft permit. In a 46 city with a relatively transient population, establishing a clearly defined baseline may be both impossible and useless and is beyond the MEP. 30. Permit Section: Part III.E.1.c. (page 13 of 45) d. Include actions that citizens, businesses, and other local organizations can take to reduce the contamination of stormwater Statement of Action: Please change the phrase "reduce the contamination of stormwater" to "reduce the discharge of pollutants ". Example Supporting Reasons: This is the standard provided for the MS4 SWMP in Part III of the permit. 31. Permit Section: Part Ill. E.1.e. (page 13 of 45) e. Have a mechanism to evaluate behavior change in the community resulting from the implementation of the education program Statement of Action: Please delete the term "mechanism to evaluate behavior change" and replace it with a more appropriate term as discussed in Comment 29. Example Supporting Reasons: This term used in the draft permit is commonly used in public education, social marketing, and environmental psychology. It has widely accepted meanings. Implementing "mechanisms to evaluate behavior change" is typically very technical and expensive and not appropriate for every MS4 under this permit. Even with guidance, it is imprudent to use such a term in the Draft Permit. 32. Permit Section: Part III.E.2.a.1. (page 14 of 45) 2. Public Participation /Involvement a. The permittee shall develop and implement, or continue to develop and implement, a Public Participation /Involvement program to solicit public input and opinion on the adequacy of the SWMP. For purposes of meeting this requirement, the permittee shall. (1) Provide opportunities for the public to participate in the development, implementation, and review of the SWMP. Statement of Action: Please delete the requirement that the MS4 provide an opportunity for the public to participate in the development and implementation of the SWMP /SWPPP. Example Supporting Reasons: This requirement would make the SWMP /SWPPP significantly more difficult and time - consuming to develop and implement. It is unlikely that an MS4 could develop a SWMP /SWPPP with significant public participation within the time allotted in the draft permit. It is 47 sufficient that the public has opportunities to participate in the review of the SWMPISWPPP. 33. Permit Section: Part III.E.3.c. (page 14 of 45) c. Standard Operating Procedures (SOPs) for conducting on -going inspections, including dry- weather (e.g., periods of 72 or more hours of no precipitation) field screening, for purposes of detecting and eliminating illicit discharges Statement of Action: Please provide more flexibility for these inspection SOPs to allow the inspections to be conducted after a period of twenty -four (24) or more hours of no precipitation.. Example Supporting Reasons: There may be some seasons where there are relatively few periods of 72 hours of no precipitation. Additionally, some cities may need or choose to inspect outfalls during the spring before the outfalls are obscured by vegetation. 34. Permit Section: Part III.E.3.c.1. (page 15 of 45) (1) Outfall prioritization. The permittee shall prioritize outfalls to be inspected for illicit discharges based on, at a minimum, the following factors: (a) Size of the drainage area (b) Population density of the drainage area (c) Traffic density of the drainage area (d) Age of potential sources (e.g., existing infrastructure, industry, buildings, etc.) of illicit discharges in the drainage area and (e) Land use types within the drainage area Statement of Action: Please delete this section. Alternatively, if the MPCA's intent is that small MS4s identify a limited subset of their outfalls for more frequent or otherwise altered inspection schedules are appropriate, please say so. In addition, do not preclude or duplicate an inspection program based on geographic zones. Example Supporting Reasons: For good reason and based on years of experience, almost all city -wide inspection programs are performed based on geographic zones. This is how most MS4 cities perform outfall inspections. This is the most efficient and clear method of structuring an inspection program. Please provide permittees with sufficient flexibility to allow their inspection program to be linked with other city functions and protocols to meet multiple objectives most efficiently. 35. Permit Section: Part III.E.4.a.2.a. & b. (page 16 of 45) (2) Requirements that owners and operators of construction activity incorporate into site plans, appropriate erosion and sediment control BMPs that, at a minimum: (a) Control stormwater discharge volume and velocity within the site to 48 reduce soil erosion (b) Control stormwater discharges, including both peak flow rates and total stormwater volume, to reduce erosion at outlets and to reduce downstream channel and streambank erosion Statement of Action: Please revise these sections to remove the terms "volume" peak flow rates ", and "total stormwater volume ". Example Supporting Reasons: These stormwater discharge parameters are commonly addressed in the context of post- construction runoff controls. They are not addressed in the context of active construction sites and it is inappropriate that they are included under this MCM. 36. Permit Section: Part III.E.4.a.2.g. (page 17 of 45) (g) Include maintaining natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration Statement of Action: Please revise the use of the word "maintaining" or provide additional information to clarify its meaning in this context. Example Supporting Reasons: Throughout this draft permit, the word "maintain" is used in the context of "operations and maintenance ": to keep a facility or BMP in good condition in order to preserve its function. If the intent in this section is that the word "maintain" should mean to preserve existing natural buffers during construction, a different word should be used or additional information should be provided to clarify this intent. 37. Permit Section: Part III.E.4.b. (page 17 of 45) Site plan review The program shall include Standard Operating Procedures (SOPs), including a checklist, for site plan reviews conducted by the permittee to ensure compliance with requirements of the Regulatory Mechanism(s) in Parts III.E.4 and 5. Statement of Action: Please revise this section to remove the reference to site plan reviews for Regulatory Mechanisms under MCM 5. If the intent is that site plan reviews include items required under MCM 5, please include a section to that effect under MCM 5. Example Supporting Reasons: It is confusing to have requirements for MCM 5 embedded in the draft permit section for MCM 4. If the intent is that site plan reviews include items required under MCM 5, a section to that effect should be included under MCM 5. 49 Permit Section: Part III.E.4.b. (page 17 of 45) The site plan review procedures shall also verify the intent of owners and operators of each construction activity to apply for and obtain coverage under the Agency's General Permit to Discharge Stormwater Associated with Construction Activity. Statement of Action: Please revise this sentence to read as follows: "The site plan review procedures shall also include requiring certification from owners and operators of each construction activity of coverage under the Agency's General Permit .... Construction Activity." Example Supporting Reasons: The term "verify the intent" is confusing and not useful. It is impossible for a permittee to verify the owner's /operator's intent. 38. Permit Section: Part III.E.4.d.3. (page 17 of 45) (3) Identify persons within the permittee's organization that is responsible for conducting site inspections Statement of Action: Please revise this section to read as follows: "Identify persons or position titles within the permittee's organization that are responsible for conducting site inspections ". Example Supporting Reasons: At the discretion of the permittee, it may be more effective and useful to provide the title of the staff position instead of the name of an individual person. This would allow for staff turnover and movement in the future. The permit language should clearly allow for this option. 39. Permit Section: Part III.E.5.a.1.a. (page 18 of 45) (a) For new development projects — no net increase (on an annual average basis) of. Statement of Action: Please revise and expand on the term "no net increase" in this section. Specifically, if this term that relies on a beginning and endpoint of comparison ( "increase" from one point in time to another) is used in the draft permit, please provide the appropriate beginning and endpoints for this comparison. Example Supporting Reasons: It is understood that the MPCA's intent is to provide broad language in the permit and a set of compliance options in guidance. The concern, in this case, is that the permit language is so undefined that it is almost meaningless. Such language does not provide sufficient direction or standard for compliance and invites varying interpretation by third parties and courts. 40. Permit Section: Part III.E.5.a.1.b. (page 18 of 45) (b) For redevelopment projects — a net reduction (on an annual average basis) 50 Statement of Action: Please revise and expand on the term "a net reduction" in this section. Specifically, if this term that relies on a beginning and endpoint of comparison ( "reduction" from one point in time to another) is used in the draft permit, please provide the appropriate beginning and endpoints for this comparison. Example Supporting Reasons: It is understood that the MPCA's intent is to provide broad language in the permit and a set of compliance options in guidance. The concern, in this case, is that the permit language is so undefined that it is almost meaningless. Such language does not provide sufficient direction or standard for compliance and invites varying interpretation by third parties and courts. 41. Permit Section: Part III.E.5.a.1.b. (page 18 of 45) (b) For redevelopment projects — a net reduction (on an annual average basis) of: 1) Stormwater discharge Volume, unless precluded by the stormwater management limitations outlined in Part lll. E.5. a. (2) (a) 2) Stormwater discharges of Total Suspended Solids (TSS) and 3) Stormwater discharges of Total Phosphorus Statement of Action: Please revise this section to allow for a different protocol in cases where the pre - redevelopment site conditions meet one or more of the new development standards for stormwater controls. Example Supporting Reasons: In some cases, the stormwater controls on a site due for redevelopment will be of such a high standard that they meet one of more of the new development control standards. In these cases, it is inappropriate to expect that the redevelopment project meet a net reduction standard. This section should be revised to allow for such cases. 42. Permit Section: Part III.E.5.a.1.c. (page 19 of 45) (c) For new development or redevelopment projects, a reduction or matching of peak flow rates from the existing 1, 2, 10 and 100 year, 24- hour, storm events on the site of each construction activity Statement of Action: Please revise this section to include the starting and end points for estimating a "reduction of matching of peak flow rates ". Example Supporting Reasons: This guidance is necessary and should be in the draft permit language. 43. Permit Section: Part III.E.5.a.2.a.1.d. (page 19 of 45) d) Areas where high levels of contaminants (as defined by the Agency) exist in the soil through which infiltration will occur 51 Statement of Action: Please provide additional information regarding the phrase °as defined by the Agency ". Please provide information about existing programs, standards, or data sources that the Agency intends to use in defining and listing appropriate contaminants and high levels. Example Supporting Reasons: Without this information, it is impossible for the permittees to understand, evaluate, or comply this draft permit section. 44. Permit Section: Part III.E.5.a.2. (page 19 of 45) (2) Stormwater management limitations and exceptions (b) Exceptions for meeting the volume control standard Statement of Action: Please provide provisions for reduced or limited volume - controls in drainage areas where the increase in stormwater discharge volumes because of urbanization or redevelopment will not result in the degradation of the receiving water. The areas would include those that discharge to high order rivers and streams (4 order and above), large lakes, and large wetland system (where the resulting increase in "bounce" would be negligible). Example Supporting Reasons: There may be situations where imposing volume controls in areas where they are not necessary will result in waste and inefficiencies. 45. Permit Section: Part III.E.5.a.2.a.2. (page 19 of 45) 2) The permittee's Regulatory Mechanism(s) shall restrict the use of infiltration techniques to achieve the standards outlined in Part 11LF.5.a.(1), sufficient to provide a functioning treatment system and prevent adverse impacts to groundwater, when the infiltration device will be constructed Statement of Action: Please clarify the word "restrict ". If the intent is that a higher level of design or review is needed before infiltration is used under the listed circumstances, please state this in the permit language. Example Supporting Reasons: Without additional information and clarification, it is very difficult to understand the meaning of the word "restrict" in this context. 46. Permit Section: Part III.E.5.a.2.a.2. (page 19 of 45) 2) The permittee's Regulatory Mechanism(s) shall restrict the use of infiltration techniques to achieve the standards outlined in Part III.F.5.a.(1), sufficient to provide a functioning treatment system and prevent adverse impacts to groundwater, when the infiltration device will be constructed Statement of Action: Please replace "Part III.F.5.a.(1)" with "Part III.E.5.a.1. ". Example Supporting Reasons: Internal accuracy 52 47. Permit Section: Part III.E.5.a.2.a.2.b. (page 19 of 45) 2) The permittee's Regulatory Mechanism(s) shall restrict the use of infiltration techniques to achieve the standards outlined in Part III.F.5.a.(1), sufficient to provide a functioning treatment system and prevent adverse impacts to groundwater, when the infiltration device will be constructed in: a) Areas of predominately Hydrologic Soil Group D (clay) soils b) Areas within 1,000 feet up- gradient, or 100 feet down - gradient of active karst features c) Areas within a Drinking Water Supply Management Area (DWSMA) as defined in Minn. R. 4720.5100, subp. 13 d) Areas where soil infiltration rates are more than 8.3 inches per hour Statement of Action: Please clarify the term "active karst features ". Please include the multiple parameters that are widely accepted to define active karst features and clarify that all or most of these parameters must be satisfied before an area of land is considered to be an active karst feature. Please provide information about existing data sources that are available to determine the locations of active karst features. Example Supporting Reasons: Without additional information, this permit provision is not useful and compliance will be very difficult. 48. Permit Section: Part III.E.5.a.2.a.2.b. (page 19 of 45) b) Areas within 1,000 feet up- gradient, or 100 feet down - gradient of active karst features Statement of Action: Please revise this section to allow an MS4 permittee to use an alternative geologic assessment method, at their discretion. Example Supporting Reasons: This is a reasonable degree of flexibility for this permit section. 49. Permit Section: Part III.E.5.a.3. (page 20 of 45) (3) Mitigation provisions for circumstances where the permittee or other owners and operators of a construction activity cannot meet the TSS and/or Phosphorus standards of Part 111.E.5.a (1) (a) or (b) on the site of the original construction activity. For this purpose, the permittee shall identify priority areas within the watershed where mitigation projects can be completed. Statement of Action: Please revise the phrase "the permittee shall identify priority areas within the watershed where mitigation projects can be completed" to provide for circumstances under which the MS4 permittees may require or request that the owners /operators of a construction activity identify areas that are suitable for mitigation. 53 Example Supporting Reasons: It is common and appropriate for MS4 cities to require or request that the owners /operators of a construction activity identify areas that are suitable for mitigation. This draft permit section should specifically provide for this option. 50. Permit Section: Part III.E.5.a.3.(page 20 of 45) (3) Mitigation provisions for circumstances where the permittee or other owners and operators of a construction activity cannot meet the TSS and/or Phosphorus standards of Part 11LE.5.a (1) (a) or (b) on the site of the original construction activity. For this purpose, the permittee shall identify priority areas within the watershed where mitigation projects can be completed. Statement of Action: Please revise the phrase "cannot meet" to include examples of the circumstances to which this standard would apply. Specifically, please include exceptional cost as a reason that satisfies the "cannot meet" standard and can be used as a trigger of mitigation. Example Supporting Reasons: Without clarification and examples, "cannot meet' could be interpreted to mean that it must be physically impossible to meet the TSS and /or TP standards. It is appropriate that exceptional cost be included as an acceptable trigger for mitigation. 51. Permit Section: Part III.E.5.a.3.a. (page 20 of 45) (a) Mitigation may be implemented at a location separate from the original construction activity, but must be in the same drainage area and yield benefits to the same receiving water. Statement of Action: Please clarify the meanings of the terms "same drainage area" and "same receiving water ", specifically address the question of scale. Please provide an option for circumstances where the mitigation may be provided in the land area outside the drainage area for the first receiving water, at the discretion of the permittees. Example Supporting Reasons: Without clarification regarding scale, this standard is unclear and difficult to understand. In many cases, the drainage area for the first receiving water will be very small (one acre of less), thus severely limiting mitigation options. It is appropriate and necessary to allow the MS4 permittees to allow mitigation, at their discretion, in the land area outside the drainage area for the first receiving water. 52. Permit Section: Part III.E.5.a.3.b. (page 20 of 45) (b) Mitigation projects must involve the creation of new structural treatment BMPs or the retrofit of existing structural BMPs Statement of Action: Please revise this section to provide for the use of non- structural BMPs to be used as mitigation; including strategies such as buffers, 54 higher levels street sweeping, open or green space, Audubon standards for golf courses, and others, at the discretion of the permittees. Please provide definitions for the terms "non- structural BMPs" and "structural BMPs ". Example Supporting Reasons: There will be cases where non - structural BMPs will be appropriate and cost - efficient options for mitigation. The MS4 permittees should have the flexibility to use these options, at their discretion. 53. Permit Section: Part III.E.5.a.3.d. (page 20 of 45) (d) Mitigation projects shall be completed within 12 months after the initiation of the original construction activity Statement of Action: Please change "12 months" to "18 months ". Example Supporting Reasons: 18 months is a more appropriate and reasonable time period to allow for the completion of mitigation projects. Given the time needed to identify and arrange for a mitigation projects combined with the seasonal nature of much of the mitigation project work, 12 months is not a sufficient amount of time for completion of these projects. 54. Permit Section: Part III.E.5.a.4.a. (page 20 of 45) The maintenance agreement or other legal mechanism shall include provisions that, at a minimum: (a) Allows the permittee to conduct inspections of BMPs not owned or operated by the permittee, perform necessary maintenance, and assess costs for those BMPs when the permittee determines that the owner or operator of that BMP has not conducted maintenance adequate to meet the goals of this permit Statement of Action: Please provide for alternatives to the items currently listed in this section. Provide for other options, including further measures to compel the owner or operator of the BMP to conduct the appropriate maintenance. Example Supporting Reasons: Some cities do not wish to include these options as part of their Regulatory Mechanisms. The goals of this section can be achieved through other options, including additional measures to compel the owner /operator to comply and perform necessary maintenance. This draft permit section is an inappropriate infringement on local regulatory discretion. 55. Permit Section: Part III.E.5.a.4.a. (page 20 of 45) The maintenance agreement or other legal mechanism shall include provisions that, at a minimum: (a) Allows the permittee to conduct inspections of BMPs not owned or operated by the permittee, perform necessary maintenance, and assess costs for those BMPs when the permittee determines that the owner or operator of 55 that BMP has not conducted maintenance adequate to meet the goals of this permit Statement of Action: Please clarify the term "goals of this permit ". Example Supporting Reasons: The goals of this permit are not stated in this permit. 56. Permit Section: Part III.E.6.a. (page 21 Of 45) Where any facility or operation contributes pollutants to stormwater runoff, the permittee shall, to the MEP, design and implement BMPs that eliminate exposure of stormwater to potential pollutants. Statement of Action: Please revise the phrase "where any facility or operation contributes pollutants to stormwater runoff' to read as follows: "where any facility or operation owned and operated by the permittee contributes pollutants to stormwater runoff'. Example Supporting Reasons: The permittees should not be held responsible for facilities or operations they do not own and operate. 57. Permit Section: Part III.E.6.a. (page 21 Of 45) Where any facility or operation contributes pollutants to stormwater runoff, the permittee shall, to the MEP, design and implement BMPs that eliminate exposure of stonmwater to potential pollutants. Statement of Action: Please revise the phrase "eliminate exposure of stormwater to potential pollutants" to "have the ultimate goal of preventing or reducing pollutant runoff from municipal operations" as per federal rule at 40 C.F.R. part 122.34(b)(6)(i). Example Supporting Reasons: The phrase "eliminate exposure" adds a new, different, and inappropriate standard to this permit (beyond MEP). 58. Permit Section: Part III.E.6. (page 21 of 45) 6. Pollution Prevention /Good Housekeeping For Municipal Operations Existing permittee's shall continue to develop and implement, and new permittee's shall develop and implement, an operation and maintenance program designed to prevent or reduce the discharge of pollutants from permittee owned and /or operated facilities and operations. Statement of Action: Please provide specific example to clarify the meaning of the term "facilities and operations ". Example Supporting Reasons: Without such examples, understanding this term and compliance with this permit section is difficult. 56 59. Permit Section: Part III.E.6.b.1.a. (page 22 of 45) b. Standard Operating Procedures (SOPs) for. (1) Pollution Prevention /Good Housekeeping. (a) Areas where dumpsters or other trash containers are located Statement of Action: Please revise or delete the term `other trash containers ". Example Supporting Reasons: Every city owns and maintains very large numbers of trash containers, both indoors and outdoors. Those numbers make this provision an unreasonable burden on the MS4s. 60. Permit Section: Part III.E.6.b.1.c. (page 22 of 45) b. Standard Operating Procedures (SOPs) for. (1) Pollution Prevention /Good Housekeeping. (c) Areas where loading or un- loading of potential pollutants occur Statement of Action: Please revise the term "potential pollutants ". Example Supporting Reasons: This term is far too broad for use in this context. 61. Permit Section: Part III.E.6.b.1.g. (page 22 of 45) b. Standard Operating Procedures (SOPs) for: (1) Pollution Prevention /Good Housekeeping. (g) The proper cleaning of maintenance equipment, building exteriors, trash containers and the disposal of associated waste and wastewater Statement of Action: Please delete the word "proper ". Please revise the term "trash containers ", as per item 59 above. Example Supporting Reasons: The word "proper ", in this context, is vague and too broad. Please see the earlier comment on "trash containers" above. 62. Permit Section: Part III.E.6.b.1.h. (page 22 of 45) b. Standard Operating Procedures (SOPs) for (1) Pollution Prevention /Good Housekeeping. (h) The proper use, storage, and disposal of chemicals Statement of Action: Please revise the word "chemicals ". Example Supporting Reasons: The definition of this word is far too broad to be useful in this context. Water is a chemical (HzO). 63. Permit Section: Part III.E.6.b.2. (page 22 of 45) (2) Inspections and Maintenance (a) Inspections 57 The pennittee shall conduct inspections of structural stonmwater management facilities to determine structural integrity, effectiveness, proper function and maintenance needs. Statement of Action: Please clarify stormwater management facilities ". BMPs, please state this in the permit. the meaning of the phrase "structural If the meaning of this phrase includes Example Supporting Reasons: Without clarification, this term is confusing. 64. Permit Section: Part III.E.6.b.2.a.1. (page 23 of 45) a) Ditches and swales as mapped in accordance with Part 111. D.1. a. b) Small stormwater treatment BMPs mapped in accordance with Part III.D.1.d c) Infiltration, filtration, and bid- retention BMPs mapped in accordance with Part Ill. D.1. e d) All flow control structures that are part of the permittee's small MS4 Statement of Action: For the items listed in sections a through d above in the draft permit, please provide estimates of the numbers of each type of items that the MPCA believes a typical city owns and operates. Example Supporting Reasons: The MS4 permittees need these estimates to determine whether the provisions of this section impose an inappropriate burden on the MS4 permittees. 65. Permit Section: Part III.E.6.b.2.a.1. (page 23 of 45) a) Ditches and swales as mapped in accordance with Part 111. D.1. a. b) Small stormwater treatment BMPs mapped in accordance with Part Ill. D.1. d N Infiltration, filtration, and bio- retention BMPs mapped in accordance with Part III. D. 1.e d) All flow control structures that are part of the permittee's small MS4 Statement of Action: For the items listed in sections a through d below in the draft permit, please revise the inspection frequency for these items to once every permit term (5 -year permit cycle). Please provide for more frequent inspections, at the permittee's discretion, if complaints or problems indicate that a greater frequency is appropriate. Example Supporting Reasons: This frequency is sufficient and cost - effective. The suggested revision allows for more frequent inspections, if needed and appropriate. 66. Permit Section: Part Ill. E.6.b.2.a.1.d. (page 23 of 45) d) All flow control structures that are part of the pennittee's small MS4 58 Statement of Action: Please clarify the term "flow control structures ". Please provide a list of examples. Example Supporting Reasons: Without clarification, this term is confusing. 67. Permit Section: Parts III.E.6.b.2.a.1.e. & f. (page 23 of 45) e) A sufficient number of constructed ponds and constructed wetlands (as inventoried in accordance with Part 111.D.2) such that each device is inspected at least once during the permit term and 0 A sufficient number of outfalls such that each outfall is inspected at least once during the permit term. These inspections may be combined with the outfall inspection requirements of Part 111. E.3 (illicit discharge detection). Statement of Action: Please put these sections in a separate part of the permit that is appropriate for their frequency schedule. Example Supporting Reasons: This revision will make the draft permit more readable and clear. 68. Permit Section: Part III.E.6.b.2.a.2.b. (page 23 of 45) 2) A minimum of one quarteriy inspection of. a) All stockpile areas (e.g., de -icing materials, street sweepings, snow, etc.), that are owned and /or operated by the permittee b) All storage and material handling areas that are owned and /or operated by the permittee Statement of Action: Please revise the phrase "all storage and material handling areas ". Example Supporting Reasons: This phrase is far too broad for this context. The number of such areas that a typical city owns and operates is very large. 69. Permit Section: Part III.E.6.b.2.b.1. (page 23 of 45) 1) Routine maintenance (e.g., vegetation management, debris or trash removal, sediment removal, etc.). Routine maintenance SOPs must also include proper disposal of all waste removed from the small MS4, specifically addressing proper disposal methods of sediment removed from all sediment - capturing BMPs. Sediment removed from the small MS4 shall be managed consistent with "Managing Dredged Materials in the State of Minnesota" guidance published by the Agency Statement of Action: Please delete the portion of this section that references the "Managing Dredged Materials in the State of Minnesota" guidance. Example Supporting Reasons: It is not appropriate to incorporate guidance material into a permit through direct reference. 59 70. Permit Section: Part III.E.6.b.2.c. (pages 23 and 24 of 45) (c) Inspection and Maintenance Frequency Adjustments If pattems of maintenance become apparent after two years of inspections conducted in accordance with the requirements above, the permittee may adjust the frequency of inspections as follows: 1) If maintenance or sediment removal is required as a result of each of the first two annual or quarterly inspections, the frequency of inspections shall be increased as needed to prevent carry-over or washout of pollutants from BMPs or stored materials, to reduce the discharge of pollutants to stormwater. 2) If maintenance or sediment removal is not required as a result of the first two annual or quarterly inspections, the permittee is authorized to reduce the frequency of inspections to once every two (2) years, and every other quarter, respectively. Statement of Action: Please provide language in the draft permit allowing the permittees to use their inspection records under the 2006 permit to determine the inspection frequencies under this permit. Example Supporting Reasons: This is appropriate and cost - effective. This provision needs to be included in permit language, rather than guidance. 71. Permit Section: Part III.E.6.b.2.c.1. (page 24 of 45) 1) If maintenance or sediment removal is required as a result of each of the first two annual or quarterly inspections, the frequency of inspections shall be increased as needed to prevent cant' -over or washout of pollutants from BMPs or stored materials, to reduce the discharge of pollutants to stormwater. Statement of Action: Please provide an amount threshold for sediment removal. Example Supporting Reasons: As written, this section creates an incentive for a permittee to not remove small amounts of sediment. This is an unintended and undesirable consequence of the current draft permit language. 72. Permit Section: Part III.E.6.b.3. (page 24 of 45) The assessment process shall include procedures that incorporate the following data collection components: (a) Calculation of the stormwater volume flowing to the BMP based on factors within the watershed including the watershed area, impervious cover, soil types, and land use (b) Actual BMP volumes including both the permanent storage volume and temporary water quality storage volume based on the BMP geometry and inlet, outlet (invert), and overflow spillway elevations (c) Whether the inlets and outlets of the BMP are pipes or an open channel and the diameters of any pipes 60 (d) The flow path of stormwater through the BMP related to the distance and position of the inlet(s) and outlet(s) (e) Whether there is a fore -bay, sediment basin, or stilling basin at the inlet to the BMP (t) The percentage of the permanent pool surface area which is covered by aquatic vegetation (g) Whether the BMP is a single or multiple pondAvetland design (h) Whether the BMP intersects the local ground water table Statement of Action: Please provide an estimate of the cost to fulfill the MPCA's expected data & information collection, calculation, geometric analysis, and documentation processes for all the listed items in this section. Example Supporting Reasons: Without this estimate, the MS4 permittees cannot evaluate the burden placed on them by this permit section. Where the estimated cost for compliance may be significant, it is reasonable to request that the MPCA provide this estimated cost. The MS4 cities are concerned that the cost may be immense. 73. Permit Section: Part III.E.6.b.3.b. (page 24 of 45) (b) Actual BMP volumes including both the permanent storage volume and temporary water quality storage volume based on the BMP geometry and inlet, outlet (invert), and overflow spillway elevations Statement of Action: Please provide information about the methodology that the MPCA expects each permittee to use to calculate the permanent storage volume on every constructed pond and constructed wetland. Example Supporting Reasons: Without this information, the MS4 permittees cannot accurately determine the burden placed on them by this permit section. Without this information, the permittees do not have sufficient information to achieve permit compliance. 74. Permit Section: Part III.E.6.b.3.b. (page 24 of 45) (b) Actual BMP volumes including both the permanent storage volume and temporary water quality storage volume based on the BMP geometry and inlet, outlet (invert), and overflow spillway elevations Statement of Action: Please provide information about the methodology that the MPCA expects each permittee to use to calculate the temporary water quality storage volume on every constructed pond and constructed wetland. Additionally, please provide an explanation of how the storage volume between the normal water level and the overflow spillway elevation in a typical constructed stormwater pond or wetland affects water quality. 61 Example Supporting Reasons: Without this information, the MS4 permittees cannot determine the burden placed on them by this permit section. Without this information, the permittees do not have sufficient information to achieve permit compliance. The temporary storage volume of a typical constructed stormwater pond or wetland serves only flood control and /or rate control functions. If this volume does not serve water quality functions, estimating and recording these volumes is a waste of the permittees' staff time and resources. 75. Permit Section: Part III.E.6.b.3.d. (page 24 of 45) (d) The flow path of stormwater through the BMP related to the distance and position of the inlet(s) and outlet(s) Statement of Action: Please delete this section. Example Supporting Reasons: It is wasteful and inappropriate to require every MS4 to determine all the flow paths of stormwater between every inlet and outlet of constructed ponds and wetlands. 76. Permit Section: Part III.E.6.b.31 (page 24 of 45) (t) The percentage of the permanent pool surface area which is covered by aquatic vegetation Statement of Action: Please delete this section. Example Supporting Reasons: It is wasteful and inappropriate to require this determination for every constructed pond and wetland. The extent of surface area coverage by aquatic vegetation does not affect water quality. The permit is not specific about when, in the year, this determination must be made. 77. Permit Section: Part Ill.E.6.b.3.h. (page 24 of 45) (h) Whether the BMP intersects the local ground water table Statement of Action: Please delete this section. Example Supporting Reasons: It is wasteful and inappropriate to require this determination for every constructed pond and wetland. 78. Permit Section: Part III.E.6.b.4. (page 25 of 45) (4) Employee Training The permittee shall develop and implement a training program for employees whose job function is related to compliance with this permit. The program shall include a schedule that establishes training at least annually and shall include recurring training for employees as needed to address changes in procedures, techniques, or requirements. 62 Statement of Action: Please revise this section to provide the flexibility so that the permittees may tailor their training programs to the job functions of each employee. Example Supporting Reasons: It is not appropriate or necessary for the training for every employee to include all the items listed under Parts III.E.6.b.4.b.l. through 5. 79. Permit Section: Part III.E.6.b.5.a. (page 25 of 45) (5) Operation and Maintenance Program Documentation The permittee shall document the following information as part of this program: (a) Sediment dredging activities Statement of Action: Please revise this section to include a size threshold to trigger the requirements in this section. Example Supporting Reasons: These requirements are not appropriate or necessary for small dredging projects. 80. Permit Section: Part III.E.6.b.5.c. (page 26 of 45) (c) Employee training events, including a list of topics covered, dates of each event, and number of attendees for each event Statement of Action: Please revise this section to include a much broader range of training options beyond "events ". Example Supporting Reasons: There are many types of training options that are not events. 81. Permit Section: Part III.E.6.F.c. (page 26 of 45) F. Stormwater Management Program (SWMP) Modification Requirements 1. The Commissioner may require the permittee to modify the SWMP as needed, in accordance with the procedures of Minn. R. ch. 7001, and may consider the following factors: a. Discharges from the storm sewer system are impacting the quality of waters receiving the discharges b. More stringent requirements are necessary to comply with state or federal regulations c. ' Additional conditions are deemed necessary to comply with the goals and requirements of the Clean Water Act or water quality standards Statement of Action: Please replace the words "comply with the goals and requirements of the Clean Water Act or water quality standards" with "protect water quality ". 63 Example Supporting Reasons: This would match language form the recent Minneapolis and Saint Paul MS4 permits and align with recent court rulings. 82. Permit Section: Part W.B. (page 27 — 33 of 45) Statement of Action: Please clarify the meaning of the terms "Year 1 ", "Year 2 ", and etc. throughout this section. Please coordinate these terms with the cities' budgeting process. Please also coordinate these terms with the date of discharge authorization. Example Supporting Reasons: MS4 cities cannot, in a fiscally responsible manner, make budget commitments until they are authorized to discharge. An initial suggestion is as follows: a. If the permittee's date of discharge authorization is within the first three months of a calendar year, Year 1 shall be the calendar year of the permit's effective date. This will provide sufficient time for MS4 cities to plan and budget for the program implementation expenses they will incur in Years 2 through 5. If the permittee's date of discharge authorization is January, February, or March 2012, Year 1 would be 2012. If the permittee's date of discharge authorization is January, February, or March 2013, Year 1 would be 2013. b. If the permittee's date of discharge authorization is in the last nine months of a calendar year, Year 1 shall be the following calendar year. City planning and budgeting for implementation could not be done within the same calendar year if the permittee's date of discharge authorization is this late in the year. If the permittee's date of discharge authorization is between April and December 2012, Year 1 would be 2013. If the permittee's date of discharge authorization is between April and December 2013, Year 1 would be 2014. 83. Permit Section: Appendix A (page 37 of 45) If the small MS4 discharges to an impaired water for which a USEPA- approved TMDL includes a WLA(s) for that small MS4, the WLA is a discharge requirement for the permittee. The permittee shall demonstrate continuing progress toward meeting that WLA. Statement of Action: Please revise this section to provide for the following circumstance: An MS4 has implemented all the appropriate measures to meet a WLA from an approved TMDL and has achieved the WLA in its stormwater discharges. For reasons beyond the control of the MS4, the receiving water is still impaired and is not delisted, and the WLA is not modified. The MS4 will maintain all the measures it implemented to meet the WLA, but it should not be expected to "demonstrate continuing progress toward meeting the WLA". The requirements for schedules and documentation should be significantly reduced under this circumstance. 64 Example Supporting Reasons: The circumstance listed above is expected to occur in multiple TMDLs. Provisions should be made for reasonable permit requirements for this circumstance. Other predictable circumstances should also be discussed and considered, in cooperation with the MS4 cities. 84. Permit Section: Appendix A, Part A.1. (page 37 of 45) A. Schedules 1. For each applicable WLA approved prior to the permittee's authorization to discharge stormwater under this permit, the permittee shall comply with Part B of this Appendix no later than 12 months after the permittee is authorized to discharge stormwater under this permit. Statement of Action: Please change the compliance schedule of 12 months after permittee authorization to 24 months. Example Supporting Reasons: In cases where a TMDL has just recently been approved, the schedule in the draft permit would require compliance by the MS4s very close to the possible release of the TMDL Implementation Plan. If the TMDL Implementation Plan release is delayed beyond the intended time of 12 months after the approval of the TMDL, this schedule would require compliance by the MS4s before the completion of the TMDL Implementation Plan. 85. Permit Section: Appendix A, Part A.2. (page 37 of 45) 2. For each applicable WLA approved after the permittee is authorized to discharge stormwater under this permit, the permittee shall comply with Part B of this Appendix no later than 12 months after approval of the WLA. Statement of Action: Please change the compliance schedule of 12 months after approval of the TMDL to 24 months. Example Supporting Reasons: The schedule in the draft permit would require compliance by the MS4s very close to the possible release of the TMDL Implementation Plan. If the TMDL Implementation Plan release is delayed beyond the intended time of 12 months after the approval of the TMDL, this schedule would require compliance by the MS4s before the completion of the TMDL Implementation Plan. 86. Permit Section: Appendix A, Part B.1. (page 37 of 45) B. Documentation - The permittee shall: 1. List all existing BMPs to be applied to each applicable WLA. The list shall also include any BMPs specifically outlined for the small MS4 in the TMDL report. 65 Statement of Action: Please provide the MPCA's estimate of the number of BMPs in a typical MS4 city for which the requirements of this section would apply. Please provide the MPCA's estimate of the cost to collect and list the required information for a typical MS4 city. Example Supporting Reasons: This information is needed for MS4 permittees to estimate the cost and burden of compliance with this permit. The MS4 cities are concerned that the number of BMPs and, therefore, the cost for compliance will be significant. 87. Permit Section: Appendix A, Part B.3. (page 37 of 45) 3. During the required Annual Assessment in Part IV.A, up -date the estimated cumulative reductions in loading for each pollutant of concern associated with an applicable WLA. Statement of Action: Please explain the methods the MPCA expects each MS4 permittee to use to estimate the "cumulative reductions in loading for each pollutant of concern ". Please indicate whether and when the MPCA will provide sufficient guidance to link all the types of BMPs required and /or promoted by this permit to corresponding estimated load reductions. Example Supporting Reasons: For many of the types of BMPs required and /or promoted by this permit, there are not any widely- accepted methods to estimate the resulting load reductions. 88. Permit Section: Appendix B. (page 38 of 45) Requirements for Chemical Treatment of Stormwater for Phosphorus Removal If the activity of chemically treating stormwater to remove phosphorus occurs within the permittee's small MS4 Statement of Action: Please see Comment # 7. GENERAL COMMENTS 89. Permit Section: N/A Statement of Action: At multiple locations in the new draft permit, there are the following phrases: • existing permittees, • existing permit, • existing Regulatory Mechanism, or • existing SWMP Please revise these phrases throughout the draft permit. 66 Example Supporting Reasons: These phrases have meaning now, when this permit is in draft form and not yet issued. Upon issuance, the meaning of these phrases will change completely. 90. Permit Section: N/A Statement of Action: Please correct the word "permittees' " to "permittees" throughout the draft permit where appropriate. Example Supporting Reasons: Correct errors 91. Permit Section: N/A Statement of Action: Please change the name and acronym of the proposed StormWater Management Program (SWMP). Please use the term and acronym used under the 2006 permit: StormWater Pollution Prevention Program ( SWPPP). Example Supporting Reasons: The acronym SWMP is currently widely used by cities in the context of stormwater management and water planning. The introduction of this name and acronym in this permit will cause significant confusion for many of the permittees. The term Stormwater Pollution Prevention Program and acronym SWPPP are preferable because the MS4 cities have become accustomed to them. The term "storm water pollution prevention program" is a minimum requirement for an MS4 permit under MN Rule 7090.1040. This term is also include in MN Rule 7002.0254. Using the name StormWater Pollution Prevention Program and the acronym SWPPP will provide continuity for the stormwater permitting program at the state and local levels. 92. Permit Section: N/A Statement of Action: Please revise the use of the word "swale" throughout this permit, or provide additional clarification as to its meaning. Example Supporting Reasons: The term "swale" has many meanings in the context of site grading and stormwater; ranging from sideyard and backyard depressions designed to convey very small amounts of stormwater to carefully designed and constructed BMPs intended to provide infiltration and /or filtration of stormwater. In the case of sideyard and backyard depressions, a single MS4 city may have thousands of such "swales ". The time and effort to map, document, or report on such "swales" would be significant and pointless. 67 93. Permit Section: N/A Statement of Action: Please clarify the definition of the word "outfall" throughout the permit. Example Supporting Reasons: The definition of the word "outfall" provided in the draft permit is not sufficiently clear. In particular, the term "receiving waters" is open to multiple interpretations. The definition of the word "outfall" is extremely important. Depending on exactly how the word is defined, an MS4 city may have 6 or 600 outfalls. 94. Permit Section: N/A Statement of Action: Please clarify the term "constructed wetlands" throughout the permit. Example Supporting Reasons: Just as "natural ponds" may have stormwater discharged to them from pipes and ditches that are part of the MS4, "natural wetlands" (distinguished from "constructed wetlands ") may have stormwater discharged to them via the M84. The term "constructed wetlands" should be defined as wetlands constructed and operated for water quality treatment, and distinguished from natural wetlands. 95. Permit Section: N/A Statement of Action: G. Please provide a complete list of the: • submittal documents, and • items and documents that the MPCA intends to be produced and summarized or submitted as part of the annual reporting process, and • items and documents that the MPCA intends should be produced by the permittees and made available during a permit audit or other program review, under the provisions of this permit. Please provide a schedule for when each item and document is required to be completed and submitted by the permittees. Please provide an estimate of the cost to the permittees to generate these items and documents. Example Supporting Reasons: These items are information that the permittees need in order to evaluate, respond to, and comply with the draft permit. 96. Permit Section: N/A Statement of Action: Please revise the use of the terms "facilities" and "BMPs" in the permit section for MCM 6, Pollution Prevention /Good Housekeeping. Example Supporting Reasons: As written, these terms are very confusing. In some cases, inspections are required for BMPs and, in others, inspections are 68 required for facilities. Under common usage, a maintenance garage is a facility and a pond is a BMP. This does not appear to be the intent as the section is currently written. It is unclear whether other components of the MS4 should be considered to be BMPs, facilities, or both. 97. Permit Section: N/A Statement of Action: Please provide definitions for the words "pipes ", "ditches ", and "swales" as they are used throughout the draft permit. Please work with the regulated parties in developing these definitions. Example Supporting Reasons: Clear understandings of these words are essential for compliance with this permit. The definitions for these words will have a significant impact on the scope and burden of this permit for the regulated parties. The regulated parties have operations experience and expertise that should be drawn on in the development of these definitions. 98. Permit Section: MCM 4 Statement of Action: Under MCM 4, this draft permit appears to require that MS4 permittees create local construction site regulatory programs that completely duplicate the State construction site permitting program ( "that is at least as stringent as the Agency's CGP "). Eliminate these requirements. Example Supporting Reasons: The approach for MCM4 under the Draft Permit is a significant new regulatory burden for the cities. MPCA is already responsible for permitting and enforcement under its CGP, receives funding for that work, and should retain the responsibility or turn over the funding. MPCA should relieve local MS4s of any responsibility to adopt or enforce MPCA's CGP.. 99. Permit Section: N/A Statement of Action: Please provide additional information about the new MS4s that may be regulated under the Draft Permit at any time during its effective period. Please address the following items in your response to these Comments: • Under what circumstances will new permittees be designated as MS4s? What criteria will be used? • At what point will new permittees be informed of their designation as MS4s? Please provide this information for each designation criterion. • For MS4s that MPCA knows may be regulated under this Draft Permit (within 5 years of its anticipated effective date) notify these entities that they may be so regulated and then restart the forty-five day notice and comment period. 69 Example Supporting Reasons: New MS4s will be regulated under this new draft MS4 permit. If the MPCA knows of entities that will be new MS4s in the foreseeable future, the Agency must notify these entities of the new draft MS4 permit and provide them with an opportunity to review and comment on the new draft MS4 permit. 100. Permit Section: N/A Statement of Action: Please revise the entire draft permit to significantly reduce the number and extent of changes from the 2006 MS4 general permit. Example Supporting Reasons: The MPCA has not demonstrated or reported on program gaps or insufficiencies that justify the number or extent of changes between the 2006 permit and this draft permit. MPCA should complete the following work before significantly changing the MS4 permit: • Review all the annual reports submitted under the 2003 and 2006 MS4 permits and summarize the findings • Review the nondegradation submittals under the 2006 permit, and summarize the findings • Complete MS4 program audits of a statistically significant number of and variety of small MS4s and summarize the findings • Proposed and adopt rules to address new requirements MPCA finds are needed to the small MS4 stormwater program just as EPA is doing for its MS4 program 101. Permit Section: N/A Statement of Action: Please clarify and expand information about the Maximum Extent Practicable (MEP) standard that applies to this entire permit. Please make it clear that the MEP standard applies to all aspects of the permit, and not just the SWMP. Please address MEP before page 10 of the draft permit. Please make it clear that the MEP standard applies to all the measures required in Appendix A. Please make it clear that the MEP standard applies to reporting, documentation, inventories, assessments, and every other requirement listed in the draft permit. Example Supporting Reasons: The Federal Rule includes the following text: "Maximum extent practicable (MEP) is the statutory standard that establishes the level of pollutant reductions that operators of regulated MS4s must achieve." This is the fundamental standard that applies to all aspects and requirements of the MS4 permit. This must be made clear in the permit. 70 102. Permit Section: MCM 4 Statement of Action: Please respond to the following statement: In seeking to determine the appropriate level of program development for construction site stormwater runoff control, the MS4 permittees will look to the State permitting program, especially in light of the permit requirement that the permittees establish a regulatory mechanism that "is at least as stringent as the Agency's General Permit to Discharge Stormwater Associated with Construction Activity ". In developing an acceptable local program, it is reasonable to match multiple aspects of the State permitting program, including: • Relationship of number of FTEs for staff to perform site visits and inspections to the number of active construction sites • Number and frequencies of site visits and inspections • Percentage of active construction sites with permit and program coverage. Example Supporting Reasons: It appears to be reasonable that the MS4 look to the State construction site program as guidance in developing their local programs. Matching the relationships, numbers, frequencies, and percentages listed above should be sufficient to develop an adequate local program. If the MPCA believes this is not the case, please provide an explanation as to why matching these program parameters is not sufficient. 103. Permit Section: N/A Statement of Action: Please revise the draft permit to provide for waivers from the requirements of and coverage under the MS4 general permit as per 40 C.F.R. § 122.32.c., d., and e. Example Supporting Reasons: The federal rule provides for waivers in specific circumstances. The draft permit should be aligned with the federal rule and also provide for those waivers. 6. Conclusion The Draft Permit imposes a host of new expensive and burdensome requirements on small MS4s. It does so in the absence of any formal assessment of the efficacy of the existing permit and in the absence of audits of a statistically significant number of small MS4s. There is no evidence that the existing system is broken and needs to be fixed. In addition, because the MPCA did not work with the 71 MS4s to draft the permit provisions, the requirements in the Draft Permit exhibit a true lack of any understanding of the practical realities of managing a small MS4. LMC asks that MPCA take the requested actions set forth in this submittal. LMC further requests that MPCA consider the general and specific comments raised in this submittal and the City of Rochester's submittal and revise the Draft Permit. Finally, LMC respectfully requests that MPCA hold a contested case hearing to understand and address the serious issues raised on the compliance costs for the Draft Permit and whether permit conditions meet the MEP standard for all permittees. Dated: July 15, 2011. GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A. By: Nancy Quattlebaum Burke Attorney No. 0161044 500 IDS Center 80 South Eighth Street Minneapolis, MN 55402 Telephone: 612- 632 -3029 Attorneys for The League of Minnesota Cities and its Minnesota Cities Stormwater Coalition GP:2999162 72