1. IMLA New England Regional Land Use Seminar June 21, 2012 Work Session 2. Storm Water Management James N. Katsiaficas, Esq. P.O. BOX 426 PORTLAND, MAINE 04112 www.perkinsthompson.com ATTORNEYS & COUNSELORS AT LAW

2. I.Overview of Presentation. A. The Federal Clean Water Act and stormwater regulation; B. How the Clean Water Act and its stormwater requirements are affecting municipal governments; C. How municipalities are meeting those requirements; and D. How, as a part of meeting those stormwater requirements, some municipalities are restoring “urban impaired streams.” Example of collaborative implementation of a restoration plan for an urban impaired stream – Long Creek.

3. II. The Federal Clean Water Act and Stormwater Regulation. A.The Federal Clean Water Act (CWA, 33 U.S.C. § 1251 et seq.) Generally. 1. Prohibits discharge of any pollutant by any person except in accordance with CWA. 2. Regulates discharges from “point sources.” Dischargers of pollutants to waters must obtain NPDES permits. States to adopt water quality standards. States to prepare priority ranking of impaired waters “303 (d) list”).

4. II. The Federal Clean Water Act and Stormwater Regulation. 3. “Wet Weather source” runoff pollution. Regulation of industrial activities, construction activities and municipal separate storm sewer systems stormwater discharges. Phase I Stormwater Discharges (MS4 municipalities with 100,000 or greater population, larger scale industrial and construction activities over 5 acres). Phase II Stormwater Discharges (Small MS4 municipalities, industrial activities and construction activities over 1 acre).

5. II. The Federal Clean Water Act and Stormwater Regulation. 4. Residual Designation Authority - EPA and delegated state authority to designate additional discharges for NPDES permitting. 5. CWA administration and enforcement authority, delegation. 6. State water laws. 7. CWA Enforcement.

6. II. The Federal Clean Water Act and Stormwater Regulation. B. CWA Administration and Municipal Government Issues. 1. Municipal Stormwater Permits a. MS4s b. Small MS4s, General Permit process 2. Combined Sewer Overflows 3. Nutrient Numerical Criteria 4. Stormwater Utilities/Fees C.Urban Impaired Streams.

7. III.Long Creek Watershed Example. A.Background. 1. Long Creek - stream, four primary branches, seen subwatersheds, covers 3.45 sq. mile area ( acres) 2. Was forest and farm land with swimming and fishing in stream; now a commercial and retail destination (Maine Mall) along with airport and highways. 3. Urban land cover increased by 36% 1952-1995. 4. Fails to meet Maine Class B and C water quality standards – low dissolved O2, high suspended solids, high levels of heavy metals (zinc, lead, and copper) and impaired habitat.

8. III.Long Creek Watershed Example.

9. B.The Long Creek Restoration Project. 1. Watershed includes over 100 properties with impervious area of 1 acre or greater. 2. By 2007, apparent action needed to restore stream or else citizen suit could be filed. Facilitator led meetings of stakeholders: landowners, DEP, EPA Maine DOT and Turnpike Authority, and environmental groups. Once general agreement reached, CLF filed petition with EPA asking it to exercise RDA authority to designate Long Creek as urban impaired stream and require NPDES permitting.

10. III.Long Creek Watershed Example. B.The Long Creek Restoration Project. 3. Restoration Plan issued July, 2009; proposed three tiers of BMPs based upon cost-effectiveness 4. Components include: stream bank and in- stream restoration; new and retrofit BMPs; increased vegetation for shading, erosion control; “good housekeeping”; and education and land use ordinance amendments.

11. III.Long Creek Watershed Example. B. The Long Creek Restoration Project. 5. Implementation of Restoration Plan. 2009, Governing Structure created: Interlocal Agreement and Maine non-profit incorporation – Long Creek Watershed Management District. Participating Landowner Agreement negotiated with public an private landowners. DEP issued General Permit – landowners had election to apply for individual permits or submit Notice of Intent under General Permit; EPA issued RDA designation.

12. III.Long Creek Watershed Example. B. The Long Creek Restoration Project. 6. Cost and time frame: Estimate 10 years and approximately $14 million to implement Restoration Plan and meet State water quality standards. Initial assessment $3,000 per acre of impervious area. Currently, 93% of acreage subject to RDA is under Agreement with LCWMDA

13. Summary Increasing demand on municipal governments to regulate stormwater. Stormwater regulation may require new approaches to fairly share costs of regulation across residential, commercial and industrial sectors. Stormwater regulation may impose additional responsibilities on municipalities such as urban impaired stream restoration. Collaborative approaches and public-private responses may be cost-effective ways to regulate.