Attorney Dan Schleck makes a presentation to the Builders Association of the Twin Cities (BATC) on new construction stormwater permitting and regulation in Minnesota

1. Current Developments in
Storm Water Permitting and Enforcement
PRESENTED BY: DANIEL S. SCHLECK
Halleland Habicht, PA
33 South Sixth Street #3900
Minneapolis, Minnesota 55402
612-836-5500
dschleck@hallelandhabicht.com

2. What is Stormwater?
Stormwater is site runoff
or run-on from:
 Rain
 Snow, sleet, hail
 Snowmelt
When contaminated with site materials, stormwater
affects water quality

3. Federal Stormwater Regulation
• The Federal Water Pollution Control Act of 1948 was the first major
U.S. law to address water pollution.
• Growing public awareness and concern for controlling water
pollution led to sweeping amendments in 1972.
• As amended in 1977, the law became commonly known as the
Clean Water Act (CWA).

5. The Clean Water Act of 1977
• Established the basic structure for regulating pollutants discharges into the
waters of the United States.
• Gave EPA the authority to implement pollution control programs such as
setting wastewater standards for industry.
• Maintained existing requirements to set water quality standards for all
contaminants in surface waters.
• Made it unlawful for any person to discharge any pollutant from a point
source into navigable waters, unless a permit was obtained under its
provisions.
• Funded the construction of sewage treatment plants under the construction
grants program.
• Recognized the need for planning to address the critical problems posed by
nonpoint source pollution.

6. Problems can occur

7. MPCA Stormwater Program
• Regulated in Three Parts
– Municipal
– Construction
– Industrial
• Centralized Enforcement
• Encompasses Impaired Waters, TMDL and Non-Degradation
Regulations

9. Stormwater Program
• 1990 - EPA announced Phase I
– 10 categories of industrial activity require a permit and
construction activities over 5 acres require permit
– Minneapolis and St. Paul need individual permits
• 1992 - EPA delegated NPDES permitting authority to MPCA
• 1992 - Phase I industrial stormwater general permit issued
– reissued in 1997
– expired in 2002 at the end of a 5 year term

10. Stormwater Program
1999 - EPA announced Phase II changes to stormwater programs
– Industrial -
• No Exposure exclusion was broadened to all ten categories of industrial
activity
• Municipally owned industrial facilities having transportation maintenance for
certain activities were required to have permit coverage
– Construction –
• Disturbance over 1 acre required individual Permit
• In December 2009, the U.S. Environmental Protection Agency (EPA)
proposed a new construction and development rule for construction activity
(C&D rule) containing non-numeric effluent limitations in order to minimize
erosion and control sediment discharges from construction sites using Best
• Management Practices (BMPs).
– Municipal –
• 233 More Communities are Required to Be Permitted

11. Compliance with Construction
Stormwater Program
To comply, the MPCA addressed the federal C&D rule by making
changes to the Minnesota 2013 Construction Stormwater General
Permit, including:
· Control flow rates and total stormwater volume from site to minimize
downstream impacts. III.D
· Use conveyance channels to route water around un-stabilized areas, including
erosion controls and velocity dissipation devices to limit the potential for
erosion. IV.B.3
· Direct discharges from stormwater controls to vegetated areas and use
velocity devices if necessary to prevent erosion. IV.B.6

12. Compliance with Construction
Stormwater Program (continued)
· Minimize the disturbance of slopes 3:1 or steeper. IV.B.1
· Initiate soil stabilization immediately by taking action as soon as
practicable, but no later than the end of the next work day when
earth-disturbing activities will cease for at least 14 days. (For
stabilization requirements for sites within one aerial mile of a special or
impaired water, see Appendix A.) IV.B.2
· Minimize soil compaction and preserve topsoil at the site. III.A.5.j
· Temporary sediment basin outlet structures must withdraw water from
the surface. III.C.3
· Maintain a 50-foot natural buffer or use redundant sediment controls
near surface waters if a buffer is not feasible. IV.C.9

14. Designing BMPs using site specific
parameters
MPCA has included the following requirements:
The BMPs in the Stormwater Pollution Prevention Plan (SWPPP) include
requirements to control both peak flow rates and total stormwater
volume Therefore, factors to be considered in design of controls
include:
· Stormwater runoff and run-on at the site.
· Expected flow from impervious surfaces, slopes and site drainage
features.
· The expected amount, frequency, intensity and duration of precipitation.
· The SWPPP will also need to address the range of soil particle sizes
expected at the site.

15. Other Changes to Construction
Stormwater Permitting
Other changes
· One inch of stormwater runoff from new impervious surfaces will be
held on site via infiltration, harvesting or reuse, unless prohibited.
· Permit applications submitted electronically only. Permit coverage
provided within 7 days.
· Trained individuals attend refresher training every 3 years.
· Filter backwash waters are properly disposed of, returned to the
beginning of the treatment process, disposed of in a sanitary sewer or
incorporated back into the site.
· Soils within 200 feet of a public water (as designated by the Minnesota
Department of Natural Resources) are stabilized within 24 hours
during fish spawning times.
· The permit will allow projects located in an NPDES-permitted Municipal
Separate Storm Sewer Systems (MS4) community to follow the current
MS4 permit permanent treatment requirements.

16. NOTICE !
The New Construction Activity
General Permit is now Effective
Approval of permit: August 1, 2013

17. Stormwater Program for
Construction Activity: Steps to
Construction
Owners/operators of construction activity must
complete several steps before completing a permit
application and beginning construction. These
steps also help owners/operators determine their
eligibility for coverage under the general permit.

18. Step 1. Identify the construction site
boundaries, the latitude and longitude
for the centroid of the site, and the
major phases of the project
Where will the construction occur and what will the project
involve? Identifying the construction site boundaries is
important to determining which environmental resources
may be at risk of being impacted by the project. Identify
opportunities to phase the project so that vegetation will
remain in those areas that will not have construction activity
at the start of the project.

19. Step 2. Determine if additional
permits are needed
Contact other state and federal agencies and local units of
government to determine what permits are required in
addition to the National Pollutant Discharge Elimination
System (NPDES) and State Disposal System (SDS) permit
issued by the Minnesota Pollution Control Agency (MPCA).

20. Step 3. Determine if Environmental
Review is needed
.

21. Step 4. Understand the
requirements of the NPDES/SDS
The general stormwater permit for construction activity
contains many requirements that must be considered
during the planning phase of a construction project.
Decisions made during planning may make the difference
between the project requiring a more onerous individual
permit instead of the general permit.

22. Step 5. Identify waters that have the
potential to receive a discharge of
stormwater runoff or discharge from a
permanent stormwater management system
Are "Special Waters," or “Impaired Waters” as identified
in Appendix A of the General Stormwater Permit for
Construction, located within one mile of the construction
site? If Yes, do the impaired waters identified in Appendix
A have an approved total maximum daily load (TMDL)
implementation plan containing requirements for
construction stormwater discharges? If so, the TMDL
implementation plan must be incorporated in the project
StormWater Pollution Prevention Plan (SWPPP).

23. Step 6. Determine if discharges
from construction site will impact
other protected resources
.

24. Step 7. Prepare a Stormwater
Pollution Prevention Plan (SWPPP)
Develop a SWPPP following the requirements of the
permit. All waters located within one mile (aerial radius
measurement) of the construction site that have the
potential to receive a discharge from the site must be
identified on the site map component of the SWPPP. Be
sure to include any additional requirements needed for
discharges to special waters.

25. Step 8. Identify discharges
Check waters list in Steps 5 and 6 to determine which
special waters, impaired waters have a potential to receive
a discharge after considering water flow and modifications
to the construction plans made for the purpose of
preventing water resource impacts.

26. Step 9. Determine eligibility for the
Construction Stormwater General
Permit
If special waters will receive a discharge within one mile of
the construction site (identified in Steps 5A and 8) and the
requirements (located in Appendix A of the general permit)
for these discharges will not be fulfilled.
You will need an individual NPDES/SDS Construction
Stormwater Permit.

27. • Step 10. Complete online application
form for an MPCA NPDES/SDS
stormwater permit for construction
Gather the following information before entering MPCA Online Services to
apply for a construction stormwater permit. Incomplete applications
cannot be saved or processed.
Project Name and Location
Existing area of impervious surface
Post construction area or impervious surface
Permanent Stormwater Management
Exempt/Not feasible, Exempt/Proximity, Exempt/Right of Way,
Infiltration/Filtration, Regional Ponding or Wet Sedimentation
Water Bodies (within one mile of project)
Special Waters status
Impaired Water status
Construction Dates

28. Step 10b. Projects that require a
paper application
For projects that will disturb 50 acres or more and have a
discharge point on the project that is within one mile of, and
flows to, as special or impaired, or applicants that do not
have internet access call the MPCA

29. Step 11. Submit completed
application form along with the
$400 application fee to the MPCA.
Submittal deadlines:
Projects requiring an individual NPDES/SDS Construction
Stormwater Permit - 180 days before construction start
Projects disturbing 50 acres or more and have a discharge
point on the project that is within one mile of, and flows to,
a special water or an impaired water - 30 days before the
construction start submit application and SWPPP.
All other projects - 7 days before the construction start.

30. Step 12. Begin construction.
.