Court Finds Industrial Stormwater "Presumptively Dirty"

For a long period of time, U.S. EPA exempted stormwater from coverage under the Clean Water Act. This was largely due to the fact that EPA had enough on to do in simply regulating discharges from traditional point sources of water pollution.  In 1987, Congress gave EPA the authority to regulate stormwater discharges from "presumptively dirty sources" including industrial activity.  See, Ecological Rights Found. V. Pac. Gas and Elec. Co., 713 F. 3d 502, 505 (9th Cir. 2013)

After Congress acted, EPA passed regulations defining which businesses were "presumptively dirty" and needed to get permit coverage to better control discharges of stormwater.  40 C.F.R. Section 122.26(b)(14).  EPA also developed the NPDES Multi-Sector Stormwater Permit and identified eleven different industrial categories that must get coverage under the Multi-Sector NPDES Stormwater Permit. See, 40 CFR 122.26(b)(14)(i)-(xi)

If, despite being associated with an industrial activity as defined in the regulations, stormwater is not actually exposed to industrial materials or activities, the facility may be able to obtain a "conditional no exposure" ("CNE") exclusion from the permit requirement.  

If there is no sampling showing the stormwater contained pollutants is there a violation? 

A facility may be required to obtain a permit because its discharges are "presumptively dirty," however, is there an actual violation for polluting waters if there is no direct evidence that the stormwater discharge actually contains pollutants?  While Congress created the presumption that stormwater from industrial activity was presumptively dirty, the Clean Water Act definition of pollutant went unchanged:

Pollutant- "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemicals wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water."  33 U.S. C. 1362(6)

The Court in Puget Soundkeeper Alliance v. Whitley Manufacturing Co., Inc. (Case No. C13-1690RSL, W.D. Wa., Nov. 9, 2015)  recently found that a Citizen Group did not need to prove stormwater from a business contained actual pollutants before it could assert a violation of the Clean Water Act.  The Citizen Group alleged the company violated the law by discharging stormwater from its business without a permit for a six year period.  

The Court held that because the companies stormwater was associated with industrial activity, the stormwater "is, in and of itself, a pollutant." The Court found that:

"Even if the definition of ‘pollutant’ is strictly and narrowly construed to include only those items specifically listed (a theory that does not have universal acceptance), Congress was well within its discretion to clarify that the phrase ‘industrial, municipal, and agricultural waste’ includes stormwater that comes in contact with those materials...” 

An interesting fact in this case was that in 2014 the facility obtained a CNE exclusion from permitting. However, the Court was still willing to found the company liable for discharging stormwater without a permit for the years prior to the CNE exclusion.

Why this decision is important

  • Companies can be liable for Clean Water Act violations, including significant civil penalties, if they simply discharge stormwater from their business without a permit, even if there is no sampling that shows the stormwater contains contaminants;
  • Companies should evaluate whether permit coverage for stormwater discharges is required for their business or seek a certification that their facility is exempt (i.e. No Exposure Certification- All industrial material are sheltered from exposure to stormwater);
  • This case highlights the fact that companies don't just face potential enforcement from regulators. Any person or entity with standing under the Clean Water Act Citizen Suit provisions can bring an action.

Ohio Supreme Court Invalidates Nearly Two Thousand Water Quality Determinations

The Ohio Supreme Court provided a major set back to the Ohio EPA efforts to establish water quality based discharge limits in its surface water discharge permits (i.e. NPDES permits).  The Court determined in Fairfield County v. Nally that TMDLs must go through formal administrative rulemaking before they can be used to support discharge limits in NPDES permits.

Ohio EPA had argued the TMDLs were just guidance.  The Court rejected the Agency's argument and said that TMDLs establish new legal obligations and, therefore, must go through the formal rulemkaing process contemplated by Ohio Revised Code Chapter 119.

What is a TMDL?

Section 303(d) of the Clean Water Act requires the identification of polluted rivers, streams, lakes and other waterbodies.  Once impaired waterbodies are identified, the Clean Water Act contemplates use of the Total Maximum Daily Load (TMDL) process to determine the maximum amount of a pollutant that may be discharged without causing the receiving body of water to violate water-quality standards.  See, U.S.C. 1313(d)(1)C).

A TMDL is a complex technical analysis of a waterbody.  The analysis includes chemical and biological testing of the waterbody to determine whether it currently doesn't meet water-quality standards.  If the waterbody doesn't meet water-quality standards, the TMDL process determines how much reduction must occur in various pollutants for the waterbody to be able to meet water quality standards.  If the waterbody meets water-quality standards, the TMDL determines how much additional pollution may be discharged to it before it will no longer meet those standards.  

Once the TMDL process determines either the amount of pollutant loading reduction needed or available pollutant loading remaining, the Agency allocates the available pollutant loading among the NPDES permitted dischargers to the surface water body (i.e. wastewater treatment plants, utilities, manufacturers, etc.).  The allocation takes the form of effluent discharge limits for dischargers through NPDES permits.

Impact of Supreme Court Decision on Ohio EPA Discharge Permits

As of May 9, 2013, Ohio EPA has listed approximately 86 watersheds for TMDL development, approximately one half had been completed and approved by U.S. EPA.  While there are 86 watersheds, there may be multiple surface waters in each watershed.  According to information provided by Ohio EPA, the Agency has issued approximately 1,761 TMDLs for watercourses throughout Ohio, including 132 TMDLs to determine phosphorus loading alone.  

The adjacent map is from Ohio EPA's website and shows the current status of the TMDL process for each watershed. The purple areas show those watersheds that have TMDLs that have been approved by U.S. EPA.  The other colors show the progress toward obtaining U.S. EPA's approval of the TMDL.

After the Ohio Supreme Court decision, all of the purple areas will have to through the rule making process before those TMDLs can be used to support discharge limits in NPDES permits for those watersheds. 

Furhtermore, any NPDES permit that currently has a discharge limit based upon a TMDL approved by U.S. EPA is likely not enforceable.  Given the large number of NPDES permits that have been issued in these areas, the Court decision represents a huge setback for the Agency.  

Not only does the decision make it more difficult for the Agency to enforce discharge limits in existing NPDES permits, the Agency will also have to expend significant resources going back through the rule-making process for potentially each the 1,761 TMDLs the Agency had previously considered completed.  

Ohio EPA Begins Policy to Rotate Inspectors

Ohio EPA has recently announced a new policy of rotating personnel within its districts and divisions. The new policy will apply to inspectors and staff, but will not apply to management.  

The policy is intended to provide Ohio EPA staff with a wider range of experience and technical skill.  

This from Director Butler announcing the staff rotation policy:

"As many of you know, creating professional development opportunities in any area of business is essential to maintaining a well-rounded organization.  Many of you in the private sector offer your employees these opportunities and we are implementing a similar strategy in an effort to streamline our operations and improve the depth and breadth our employee's knowledge."

A second letter was sent by the Division of Surface Water announcing how the new policy will impact staff charged with reviewing Permits-to-Install and NPDES permits:

"The Division of Surface Water (DSW) staff assignments will change in the National Pollutant Discharge Elimination System (NPDES) and permit-to-install programs approximately every five years.  For NPDES permittees, this means the same staff person will likely complete one permit renewal since renewals are required every five years."

Having worked with many Ohio EPA inspectors both while at the Agency and since working in the private sector, it will be interesting to see how the new policy is received.  As expected with every large organization, there is array of expertise, temperament and communication styles among inspectors and staff.  

For facilities and business that like the inspector assigned to them, the new policy will likely not be seen as good news, especially if the newly assigned inspector isn't viewed in a positive light.  For those that have been frustrated by their current inspector or permitting staff, they may welcome the change.

While rotating personnel will certainly provide a wider range of experience to staff.  It will also have the effect of shifting institutional knowledge.  Some sites and facilities are very complicated.  It may take a few years for staff to fully understand all the operations or issues.  

Rotating staff could mean that businesses experience some level of frustration when trying to "get the new person up to speed."  Perhaps, Ohio EPA will try and accommodate these situations by maintaining continuity at these more complex sites.

If I had to predict, the Agency will likely get more calls complaining about the policy then praising it. Most people only call when they are frustrated or don't like a change. 

Ohio Looks to Tighten Nutrient Regulation to Address Toxic Algae

Pardon the pun, but toxic algae has been a growing problem in Ohio.  Significant issues with toxic algae have occurred in Lake Erie, Grand Lake St. Marys and elsewhere.  In fact, Ohio EPA recently added a new feature to their webpage in which you can track and identify toxic algae issues around the state:

 On the website, you can now view the whole state and Ohio EPA will identify those waterways in which harmful algae blooms are currently a problem.  

The website includes a list of current public health advisories.  

The increased awareness and issues associated with toxic algae has triggered initiatives to tighten regulations in hopes of eliminating harmful blooms.

Senate Bill 150-  Increased Authority to Regulate Nutrient Discharges from Farms

This summer the Kasich Administration introduced Senate Bill 150, which would provide increased regulatory authority to the Ohio Department of Agriculture and Ohio Department of Natural Resources.  The bill would require farmers to develop "Nutrient Management Plans" that would help ensure best practices were utilized in application of fertilizer to reduce nutrient runoff.  

The bill would also create a fertilizer applicator licensing program with certification and continuing education requirements.  No person could apply fertilizer for agricultural purposes without being properly certified by the state.

The other components of the bill include expansion of the types of fertilizer regulated by the state (current regulatory authority is largely limited to manure).  S.B. 150 would provide regulatory authority over commercially manufactured fertilizers.

Also, the bill would give regulatory agencies greater enforcement authority.  For example, the Director of Agriculture could revoke a persons fertilizer certification if the failed to comply with the regulations.

Ohio EPA Nutrient Regulation

While S.B. 150 attempts to address nutrient run-off from so called "non-point sources" such as farm fields, Ohio EPA has proposed increased regulation to traditional point sources (i.e. wastewater treatment plants).  This spring Ohio EPA released a proposal to target watersheds that may need to have nutrient permit discharge limits included in NPDES permits.  

Under the proposal, waterways would go through a stream survey evaluation process. The following factors would be evaluated under the Agencies proposed "Trophic Index Criteria:"

  • Dissolved oxygen;
  • Nitrogen and phosphorus concentrations;
  • Algal biomass; and
  • The biological community.

By evaluating these criteria, the Agency will assign the waterway a category of either "Impaired", "Threatened" or "Acceptable."  Impaired waterways would likely see the imposition of nutrients discharge limits in future NPDES permits.  


With increased awareness of toxic algae, it appears the state is moving quickly to try and increase regulation of nutrients.  The state is at the early stages of increased regulation.  New proposal are almost certainly forthcoming. 


NPDES General Permit for Industrial Activities - Feds and States Head toward Numeric Limits in Storm Water NPDES Permits

Traditionally, EPA has regulated storm water differently than point source discharges.  Regulators recognized that it was easier to install new technology to reduce pollutant loading from a specific industrial process with a specific "end of pipe" discharge point.  Storm water was much more unpredictable.

Therefore, U.S. EPA regulated storm water using general NPDES permits without specific numeric limits.  Instead, the general permit would require the development of a storm water pollution prevention plan (SWPPP) which required companies to institute "best management practices" (BMPs) to reduce pollution from run-off.  The effectiveness of BMPs were evaluated by monitoring pollutant levels in run-off. but permits did not contain specific numeric effluent limits that had to be met.

EPA recognized the difficulties in trying to establish a numeric effluent limit for storm water discharges due to the variables involved.  For instance, due to the variability of the size and nature of storm events, the amount of pollutant leaving a site in run-off was difficult to evaluate.

In 2002, EPA issued guidance that stated numeric limits would only be used "rarely" in storm water NPDES permits.  However, EPA believe technology has improved and has signaled a shift toward numeric limits for storm water control. In 2010, EPA issued a controversial revision to that guidance indicated numeric values may be appropriate.  (See, "Guidance on Establishing TMDL Waste Load Allocations for Storm Water Discharges in NPDES Permits"  EPA November 2010)

Benchmarks Versus Numeric Limits

The first step toward numeric limits is EPA's use of "benchmarks" in storm water permits.  EPA makes clear that benchmarks are not effluent limits.  This means an exceedence of the numeric value is not a violation.  However, the exceedence is evidence that BMPs need to be improved to reduce pollutant loading.

In December 2011, Ohio EPA followed U.S. EPA lead and incorporated benchmarks into its final version of the new NPDES General Permit for Industrial Activity.  This permit differs from the previous General NPDES Permit companies  in two significant ways. 

First, the permit contains industry specific requirements (which is why the permit is 141 pages long).  Second, it uses benchmarks tied to specific industrial activity that will be used to determine the effectiveness of BMPs.

Ohio EPA's new General  Permit became effective starting January 1, 2012.   However, facilities will still be covered by their old general permits, as long as they are still effective.  Existing facilities will begin the transition to the new permit upon notification from Ohio EPA. 

Ohio EPA will send written instructions to existing covered facilities on how to continue their general permit coverage with the submittal of a “re-notification” of intent to be covered. The existing facility will have 90 days to submit the re-notification.

Benchmark Monitoring

The new permit is effective for five years.  During the first four years of the permit, facilities to which the industry specific benchmarks apply, will monitor their compliance with the benchmarks.

In the first three years of the permit, monitoring and reporting is required for four out of the 12 quarters.  In year number four, the data is averaged and compared to applicable benchmarks for that industrial activity. If facilities are still exceeding the benchmarks after four years, they will be forced to review their BMPs, storm water control plans and house keeping activities to further reduce pollutant loading.

How Far will Facilities Need to Go to Comply with Benchmarks?

The permit makes very clear that the benchmarks are not enforceable effluent limits.  Therefore, an exceedence is not a violation which could subject the facility to an enforcement action.  However, the expectation is the facility will continue to improve storm water controls if the benchmarks are not met. 

The final permit does contain language that allows faculties to assert they have done all they feasibly can to reduce pollutants.  The permits states that facilities can demonstrate that “no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice to meet the control measures/best management practices (BMPs) in Part 2 of this Permit.”

The determination must be documented and retained with the (SWPPP, and provide notification of this determination to Ohio EPA at the due date for the next benchmark monitoring report.  Of course, a company's determination as to what is economically practicable may not be the same as the Agency's. 

(For more information on Ohio EPA's NPDES General Permit for Industrial Activity- click here)


U.S. EPA to Start All Over on Numeric Limits for Construction Site Stormwater

 For over three years, U.S. EPA had been moving toward a seismic shift in how it regulated stormwater run-off from construction sites.  For the first time, U.S. EPA tried to impose a numeric permit limit on the turbidity of water (sediment mixed with water) that leaves construction sites following rain events.   EPA 's efforts are the result of a 2004 lawsuit by environmental group who obtained a Court order requiring development of a numeric standard.

Adjacent is a picture which shows bottles containing various amounts of sediment mixed with water.  The more dirt the higher the NTUs.  The picture is a good graphic illustration of EPA's proposed numeric standards.

Historically, U.S. EPA has never tried to impose a numeric limit to control stormwater discharges.   Rather, U.S. EPA  required the use of  "best management practices" (BMPs) as part of NPDES construction stormwater permits.  BMPs were engineering controls that were designed to collect or limit run-off to reduce sediment loading on streams and lakes.

In November 2008, U.S. EPA issued proposed effluent guidelines that contained a numeric turbidity standards of 13 NTUs.  EPA received a flood of comments questioning the data and assumptions behind that proposed standard.

On December 1, 2009, U.S. EPA issued its final effluent guidelines raising the propose numeric turbidity standard to 280 NTUs.  The standard would apply to construction sites 10 acres and larger.  It also included the requirement to take samples throughout the day.  The average of the samples would be compared to the 280 NTU standard for purposes of determining compliance.

Despite the dramatic increase from the proposed effluent guidelines, industry still was deeply concerned with the cost of compliance and questioned the benefits of such a standard.  Two petitions for reconsideration were submitted challenging the 280 NTU standard.  After raising the technical issues raised in those petitions, EPA decided to stay implementation of the provision.

The EPA submitted a proposed rule to revise the turbidity limit to the Office of Management and Budget (OMB) in December 2010. On August 17th, EPA announced it had withdrawn its most proposal from OMB. , EPA decided to seek additional treatment performance data from construction and development sites before proposing a revised numeric turbidity limit. Next step, EPA will publish a Federal Register notice soliciting data in the near future.

The battle over numeric limits is hardly over.  First, EPA still faces a court order to develop a numeric limit,  Second, on November 10, 2010, EPA issued memo that signaled its intention to shift toward numeric limits for most stormwater permits, not just construction sites.  Therefore, numeric limits are only a matter of time. 




Ohio and Pennsylvania Debate Regulation of Hydraulic Fracking Wastewater

Hydraulic fracking provides the opportunity to tap into massive natural gas reserves which is located deep beneath the earth.  In Ohio and Pennsylvania, Marcellus and Utica Shale is sedimentary rock which contains huge quantities of natural gas.

Hydraulic fracking uses water injected at high pressure to break up the rock allowing the gas to be released into wells.  The process uses large amounts of water.  One well may use up to three to eight million gallons of water in about a week. 

Most of the water stays deep underground, but around 10% resurfaces and is called flowback water.  Regulators consider flowback water wastewater from an industrial operation because the water contains total dissolved solids (TDS), salts and metals/oils used to aid in the fracking process.

Disposal of the flowback water has been hotly debated in Pennsylvania where massive quantities of the water have been generated.  Pennsylvania Department of Environmental Protection (Pennsylvania DEP) estimates 235 million gallons of flowback water was generated in 2010.

Methods for Disposal of Flowback Water

The primary method of disposal of flowback water in Pennsylvania was through publicly owned sewage treatment plans (POTWs).  However, concerns emerged that POTWs could only dilute the water, not treat it prior to discharge to streams and rivers. 

Pennsylvania passed regulations establishing effluent standards for treatment of flowback water.  However, the regulations exempted existing loads and only kicked in if a treatment facility was expanding.  Pressure mounted on DEP to regulate disposal of all flowback water.

Industry Voluntarily Ceases Use of POTWs in Pennsylvania

Last week, Pennsylvania DEP announced that the oil/gas industry voluntarily agreed to stop the practice of shipping flowback water to POTWs.  The DEP announcement from last Thursday was covered in

Environmental Protection Secretary Michael Krancer told officials in a meeting in Washington, D.C., on Thursday that drilling wastewater is no longer being discharged to rivers or streams in Pennsylvania without full treatment.

DEP spokeswoman Katy Gresh said the agency has not yet confirmed full compliance with Krancer’s request that drillers voluntarily stop taking the wastewater to such facilities.

But she said it has confirmed that “We’ve gone from millions and millions of gallons being discharged to virtually none.”

After the announcement, its seems clear Pennsylvania is moving toward use of dedicated treatment facilities that can treat the brine and materials in flowback water.  Approximately 25 of these facilities are slated to open. 

Debate over Disposal of Flowback Water Shifts to Ohio

Perhaps seeing the debate unfold in Pennsylvania, Ohio regulators decided they needed to tackle the issue over disposal of flowback water.  In part, the issue was brought to a head by a company, Patriot Energy Partners, who had built and operated a pretreatment center connected to the City of Warren's POTW.  The company also was in process to build and operate facilities in Steubenville and East Liverpool.

On May 16th Ohio EPA issued a letter to the Ohio Department of Natural Resources clarifying regulatory authority over the disposal of flowback water.  In part, the letter was issued to clear up a debate between the Agencies as to who had regulatory authority since ODNR regulates oil & gas drilling and Ohio EPA regulates POTWs through NPDES permits.

The letter set forth the Agencies regulatory determination on several key issues:

  • ODNR has regulatory authority over the disposal of flowback water (letter uses the term "brine")
  • POTWs will not be allowed to accept flowback water for disposal (the City of Warren permit will not be renewed)
  • Current Ohio law (R.C. 1509.22) only allows disposal of flow back water by the following methods:
    • deep well injection into underground formations
    • road surface application
    • catchall: other approved methods by ODNR

For practical purposes, deep well injection will likely be the primary method of disposal in Ohio unless its shown that dedicated treatment facilities are a cheaper disposal option.  Its interesting to note that Pennsylvania has only one commercial deep well and Ohio has approximately 150 wells that may be capable of disposing of flowback water.


Bay Village Debates Riparian Setback Ordinance

Bay Village has been debating establishing a riparian setback for the last few years.  The proposal which began with a 75 foot setback has now been scaled down to 25 feet.  Yet the ordinance is still controversial and City Council decided to delay its vote enacting the provision.

The debate before Council was covered in the West Shore Sun:

Council took the items off the March 21 meeting agenda after hearing concerns voiced by Lake Road resident and attorney, Homer Taft... 

Taft told council he felt the proposed legislation was onerous, would impose unfair hardships on some residents, and could be found unconstitutional.

Residents near creeks wanting to make changes on their property could face thousands of dollars in additional engineering expenses, he said. In addition, some residents could find themselves facing restrictions on developing significant portions of their property.

“I believe this ordinance is unfair to property owners and rather draconian,” Taft said.

He also questioned whether the city is really obligated to pass the legislation.

“I know you are being told the EPA requires this,” Taft said. “I challenge anyone to provide written evidence that’s true.”

Riparian setback ordinances are appearing all over Northeast Ohio due to a strong push by the Northeast Ohio Areawide Coordinating Agency, local officials with Ohio EPA and the Cuyahoga Soil & Water Conservation District.  I am willing to bet that more areas are covered by riparian setback requirements in Northeast Ohio than anywhere else in Ohio.

From the article is appears there is still confusion as to whether Ohio EPA is mandating local municipalities adopt the ordinances to comply with NPDES permit requirements to control stormwater.  As discussed in a previous post, setbacks are but one option municipalities can utilize to meet their stormwater control requirements.

From an environmental standpoint do setback have value?  There is no debate setbacks have value by providing flood retention, filtering of pollutants and habitat to improve water quality.  While there are benefits, they also restrict owners ability to fully utilize their property. 

Many municipalities passed setback ordinances without really understanding what they were placing on their books.  City Councils then faced outraged citizens who complained about "no build zones" on their properties.  Some Boards of Zoning Appeals were faced with controversial variance requests to appease local citizens.  Given the controversy its a good idea that Bay Village is having a robust debate. 


Are Local Government's Mandated to Adopt Riparian Setbacks

Northeast Ohio has led the state in the adoption of ordinances that establish setback requirements from streams and wetlands.  Buried within municipal codes is the requirement to stay out of buffer areas surrounding streams and wetlands. 

Homeowners, businesses and developers often learn of these requirements after they go to the City with their designs for additions, expansions or subdivisions. 

There is a lot of misinformation as to whether cities are required to adopt these ordinances.  Some municipalities are telling citizens and developers they were mandated by Ohio EPA to adopt them. While there was a very big effort to try and push adoption of these ordinances, let's be clear, there is no legal mandate in Ohio at this time to adopt them. 

The two most common model ordinance that many municipalities have adopted are either the Northeast Ohio Storm Water Task Force and Chagrin River Watershed Partners model ordinances.  (The Chagrin River Watershed Partners website provide very good information regarding riparian setbacks and their purpose.)

What are municipalities required to do to control stormwater?

The legal requirement for local governments to adopt various stormwater control ordinances stems from Ohio EPA's implementation of the MS4 program (Small Municipal Separate Storm Sewer Systems).  Each local government that has ownership and control over an MS4 is required to develop a Stormwater Management Program (SWMP).  There are certain required elements of the SWMP, including the adoption of certain storm water ordinances, including:

  • Pre-construction stormwater controls
  • Post-construction stormwater controls
  • Illicit discharge, detection and elimination
  • Erosion and sediment controls

As part of the post-construction stormwater program, the municipality must include information on any non-structural stormwater requirements it has imposed.  One possible non-structural stormwater control technique can be wetland and stream setbacks (buffers). 

Where are Ohio EPA's legal requirements specified?

Ohio EPA's NPDES General Permit for the MS4 program permit (Permit #OHQ000002) only requires a rational statement that discusses what non-structural BMPs were selected, including BMPs designed to protect riparian areas and buffers protecting sensitive water bodies. See, Section III.B.5.e.iii of Permit #OHQ00002. Ohio EPA's permit  does not require the MS4 community to adopt riparian setbacks.

OAC Chapter 3745-39, which establishes the minimum regulatory requirements for MS4 program, does not mandate adoption of setbacks. It only discusses setbacks as one option for implementing non-structural stormwater controls. Ohio EPA's comment below the regulation establishing minimum requirements for MS4 communities:

Non-structural best management practices are preventative actions that involve management and source controls such as: policies and ordinances that provide requirements and standards to direct growth to identified areas, protect sensitive areas such as wetlands and riparian areas, maintain or increase open space (including a dedicated funding source for open space acquisition), provide buffers along sensitive water bodies, minimize impervious surfaces, and minimize disturbance of soils and vegetation; policies or ordinances that encourage infill development in higher density urban areas, and areas with existing infrastructure; education programs for developers and the public about project designs that minimize water quality impacts; and measures such as minimization of per cent impervious area after development and minimization of directly connected impervious areas.

In other words, communities are free to consider a mix of non-structural controls which could include riparian setbacks.

What about distances of setbacks?

Model ordinances have between 25 - 300 feet as required buffers.  Does Ohio EPA mandate a specific distance?  No.

Ohio EPA has only included setbacks in a couple NPDES General Permits for specific sensitive water bodies (the Big Darby and the Olentangy). Here is the requirement from the Big Darby general construction stormwater permit:

The stream setback corridor (calculated using one of the methods in Part III.G.2.b of this permit) consists of up to 3 zones.  Zone 1 extends from 0 to 25 feet from the stream edge. Zone 2 extends from 25 to 100 feet from the stream edge, and Zone 3 extends from 100 feet to the outer edge of the setback corridor.

There is a formula for determining the stream setback corridor.  Then the Agency divides up the setback area into three zones.  Each zone has its own mitigation requirements.

While Ohio EPA has selected two sensitive rivers to mandate riparian setbacks, it is still not determined a minimum setback distance.  The NPDES General Permit for the MS4 program does not establish a minimum setback distance if a community elects to utilize this non-structural BMP.

OAC Chapter 3745-39 does not contain a rule specifying minimum distances for riparian or wetland setbacks. 

(For more information on the purpose of Riparian Setbacks, click here)

U.S. EPA to Impose Numeric Discharge Limits at Construction Sites

On November 23, 2009, the U.S. Environmental Protection Agency (EPA) finalized new rules intended to control stormwater pollution from construction sites.  The rule takes effect on February 2010 and will be phased in over four years. 

The most significant new requirement is the imposition of numeric discharge limits from larger construction sites.  In the past, U.S. EPA required construction site owners/operators to implement best management practices (BMPs) to control stormwater runoff without monitoring or discharge limits.  Once the new standards are phased in, owners/operators will be required to sample stormwater discharges and comply with a numeric standard for the pollutant turbidity in discharges according to the following schedule:

  • In 18 months (August 2011), construction sites 20 acres or larger will be required to monitor and meet numeric discharge limits
  • In four years, construction sites 10 acres or larger will be required to monitor and meet numeric discharge limits

From the EPA press release:

Owners and operators of sites that impact 10 or more acres of land at one time will be required to monitor discharges and ensure they comply with specific limits on discharges to minimize the impact on nearby water bodies. This is the first time that EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site stormwater discharges.

There are also impacts to smaller construction sites ranging from 1 acre to 10 acres in size.  The rule will impose a series of mandatory Best Management Practices (BMPs) relating to: Erosion and Sediment Controls; Soil Stabilization BMPs; Dewatering BMPs; Pollution Prevention Measures; and Prohibited Discharges.  Previously, owners/operators were allowed to pick and choose their BMPs as long as they met specified engineering requirements.

Stringency of the Numeric Limits

Dirt particles in storm water discharges typically cannot be effectively removed by conventional BMPs (such as sediment basins). In November 2008, U.S. EPA had proposed a numeric limit of 13 nephelometric turbidity units (NTU). To meet the proposed numeric turbidity limit, sites may have been forced to actively treat stormwater.  Active treatment could have included use of chemical treatment and filtration of their storm water discharges.

However, U.S. EPA backed off the stringent 13 NTU proposed limit.  The final rule has a far more relaxed standard of 280 NTU.  EPA decided to increase the limits based upon a flood of comments suggesting the 13 NTU limit would represent less than background levels at some sites and would be nearly impossible to meet.

Even with the high numeric standard, Industry is concerned with the implications of the new rules.  The construction industry is simply not accustomed to being required to take samples and meet specific permit limits.  As detailed on the Associated General Contractors of America, the following could be implications for contractors at larger construction sites:

On all jobsites where the numeric limit applies, the rule requires contractors to collect numerous stormwater runoff samples from all discharge points during every rain event and calculate the NTU level(s). (This may entail taking "grab" samples by hand and performing measurements with a field turbidimeter; however the rule doesn't specify any sort of monitoring protocol or methods - instead EPA is leaving it up to that states to spell that out in their permits.) If the average NTU level of the samples taken over the course of a day exceeds the "daily maximum limit" of 280 NTU on any given calendar day, then the site is in violation of the federal limitation requirement. EPA is also leaving it up to the states to specify applicable requirements for contractors to report on the samples they take of their construction site discharges...

AGC is deeply concerned about the potential impact this rule will have on the construction industry and will provide more information in the near term as we continue to analyze EPA's C&D ELG rulemaking

No doubt the final rule represents a significant increase in the stringency of regulations applicable to the construction industry. 

Ohio EPA's Overhaul of Water Regulations

This fall Ohio EPA Division of Surface Water (DSW) has been releasing a series of intertwined rule packages that govern streams and discharges to waterways.  Some business groups have said that the packages represent the most significant overhaul of water regulations in thirty years.

  To date, 3 out of 4 packages have been released:

  1. Antidegredation Rule
  2. Water Quality Standards
  3. Section 401 Water Quality Certification Rule
  4. Stream Mitigation Rule (to be released in early 2009)

No doubt the packages are highly technical and cover a myriad of issues.  But what are the implications for businesses in Ohio?

 Boiling down the packages, here are the major changes:

  • Creation of a new State Water Quality Permit for impacts to streams
  • Complete overhaul of mitigation requirements for stream impacts
  • Comprehensive tightening of standards for discharges to water ways (will result in more stringent discharge permits for businesses)
  • Standards for drainage ditch maintenance
  • Phase out of open lake disposal for dredged sediment from ship channels by the Army Corps of Engineers
  • Introduction of a nutrient standard for newly constructed or modified wastewater treatment plants


I already discussed the new State Water Quality Permit in a prior post.  I believe Ohio would be the first state in the Country to create a state permit for impacts to streams that are not covered by the Clean Water Act.  The State is reacting to a series of Supreme Court decisions which have reduced federal jurisdiction over waterways and wetlands.


Ohio EPA is proposing to tighten standards for some 135 chemicals.  They are also proposing to revise the human health criteria applied to NPDES discharge permits.  The more stringent standards will be incorporated into NPDES permits after they are renewed (NPDES permits have a 5 year life cycle).  Depending on the business and the nature of their discharge, the tighter standards could result in significant upgrades to wastewater treatment plants. 

The biggest question from business groups regarding the strengthening of water quality standards is....Why  now?   Many of the revised standards were part of U.S. EPA updates from 2000. 


For wetland impacts, Ohio mitigation requirements are very straightforward and are set forth in rules.  The ratios for required mitigation and the quality of wetland mitigation is all tied to the class of wetland impacted (Ohio classifies wetlands as either Class I, II or III).

Stream mitigation requirements are not straightforward.  Ohio EPA's stream mitigation requirements have been described by developers as a "black box."   The fact is mitigation is decided on a case by case basis, and lack of consistency is a legitimate concern.  To address this longstanding issue, Ohio EPA is attempting to clearly defined mitigation requirements for streams. 

Each of the four packages contain some aspect that is relevant to stream mitigation requirements.  However, until Ohio EPA releases the main rule package on stream mitigation requirements it will be difficult to see how the pieces fit together.  However, certain aspects of the rules that have been release foreshadow what is coming:

  • Primary Headwater Habitat Designation- Ohio EPA creates this new designation and creates three classes based on the quality of the stream.  For lower classes, the focus of the designation is hydrology and not aquatic life.  This sets up mitigation requirements.  If you impact a Class I stream by moving or filling it, you will have to restore the hydrology lost as part of your mitigation.
  • "Upland Drainage" and "Water Conveyance" Designations- applies to drainage ditches (or what Ohio EPA refers to as "historically channelized watercourses").  The purpose of these new designations for ditches is to encourage better management practices, such as natural stream design when performing maintenance on ditches.  
  • "No Net Loss" Principle Applied to Streams-  A legal issue surrounds the amount of impacts that are allowed under antidegredation principles to streams versus wetlands.  For wetlands, there has been a "no net loss" that actually allows destroying an entire wetland if its value is replaced through mitigation.  There is an open legal question as to whether the same flexibility exists for streams.  Ohio EPA is proposing to settle that issue by bringing the "no let loss" principle to streams.


A source of major controversy in Ohio has been poorly maintained drainage ditches (see the Ohio Environmental Council web page).  Through mother nature's influence over time, drainage ditches can become valuable headwater streams. The controversy occurs when a farmer or County engineer wants to dredge a ditch for drainage or flood control that has not been maintained for many years.  Will the rules even allow them to perform that work if the stream has become a valuable resources, such as a warmwater habitat stream?


For the first time in Ohio, the Agency is proposing to require treatment standards for nutrients.  Nutrients, such as phosphorus and nitrogen, are one of the most significant causes of water quality impacts in the State (U.S. EPA Nutrient Website for background).  The Agency is proposing to take a step in the direction of regulating this pollutants by requiring treatment for nutrients as part of Best Available Demonstrated Control Technology (BADCT) that will apply to new wastewater treatment plants or modifications to the biological treatment process of an existing plant.

(August 08) Ohio Environmental Regulatory and Incentive Update

PTIO Program is Launched-  Effective June 30, 2008 Ohio EPA finalized this new permit program which combines the Permit to Install (PTI) and Permit to Operate (PTO) into a single permit for non-Title V facilities.  Facilities will no longer have to apply for a separate PTO.  This program is intended to deal with Ohio EPA's backlog of PTOs which is in the thousands.  Ohio EPA's new PTIO application is up and must be used for new permits.

Electronic Reporting through Air Services- Effective June 30, 2008 Ohio EPA transitioned from its STARship electronic air reporting software to Air Services.  Air Services is part of Ohio EPA's larger effort to transition to more web based business interaction with the regulated community.  Following the release of the Air Services software, both Title V and Synthetic Minor Title V facilities will be required to use the eBusiness Center: Air Services for all emissions reporting, Title V Annual Compliance Certifications, Title V and other permitting applications.

Electronic Reporting of Surface Water Reports-  If you are using paper reporting or SWIMware to submit monthly-operating-reports (MORs) for NPDES permit compliance you need to quickly transition to Ohio EPA's new electronic reporting system.  Ohio EPA indicates it expects to cease accepting MORs by "end of the  summer". SWIMware has been replaced by the new online system called e-DMR, Electronic Discharge Monitoring Reporting System. The term, MORs (Monthly Operating Reports) is now being referred as DMRs (Discharge Monitoring Reports). The new reporting system is entirely web-based and accessible via any internet connection.

Ohio Diesel Grant Awards Announced-  On July 29th the Ohio Department of Development announced the recipients of the grants for diesel retrofit and repower projects for vehicles and fleets.  The award recipients originally submitted applications back in February.  The implementation of the Diesel Emission Reduction Grant (DERG) program was plagued with a number of issues that resulted in the rejection of a large number of applications and delay in announcing awards.  The Ohio Diesel Coalition is working in conjunction with the various State agencies to improve the grant process in the second round.  The Department of Development is expected to release the second request for proposals (RFP) in August. 

Brownfield Redevelopment- Clean Ohio Assistance Fund (COAF)-  As of July 1, 2008 the Ohio Department of Development has begun accepting applications for COAF grants to pay for Phase II site assessments (up to $300,000) and clean ups (up to $750,000) of brownfield properties.  ODOD has approximately $11.4 million to award.  To qualify the property must be in a designated priority investment area (see map).

Update: Shrinking Jurisdiction Leads EPA to Drop Hundreds of Clean Water Act Cases

In a prior post discussing the impact of the Supreme Court's rulings limiting federal jurisdiction over waterways, I discussed how state's may feel increasing pressure to fill the gaps in federal authority.  A recent article in the Boston Globe on diminished EPA enforcement suggests the states are probably dusting off their legal theories as we speak. The Globe reported the following: 

The Bush administration didn't pursue hundreds of potential water pollution cases after a 2006 Supreme Court decision that restricted the Environmental Protection Agency's authority to regulate seasonal streams and wetlands.

From July 2006 through December 2007 there were 304 instances where the EPA found what would have been violations of the Clean Water Act before the court's ruling, according to a memo by the agency's enforcement chief.

Two questions I have relative to this story.  First, does this foretell a strange trend where US EPA starts referring cases to the states for enforcement?  Second question- when will the battle shift to permitting?  It cannot be long before a company challenges federal authority to require an NPDES permit.  The most likely candidate in my mind will be something like the requirement to obtain a permit for construction activities.