1. Stormwater Management William Taylor New Hampshire Wastewater Control Association June 13, 2013

2. 2 Clean Water Act – Section 402 All “point” sources discharging “pollutants” into “waters of the U.S.” must obtain an NPDES permit or state permit

3. Legislative History  Before 1987 stormwater was not generally regulated  Water Quality Act of 1987 required NPDES permitting of certain stormwater discharges by  Existing permitted facilities  Industrial activities  Large and medium MS4s  Others as determined by permitting authority 3

4. Residual Designation Authority (RDAs) Stormwater discharges not otherwise required to obtain a permit can be designated as requiring a permit under certain conditions. 40 CFR § 122.26(a)(D). 4

5. RDAs in Region 1 Charles River RDA o Pollutant – Phosphorus o Draft permits – 2008 and 2010 o Final permit not issued o 2 acre IC threshold Long Creek RDA o Metals, solids, temperature, chlorides o Permit issued in 2009 o 1 acre IC threshold Burlington/Lake Champlain o Pollutant - phosphorus o Permit issued in 2009 o 1 acre IC threshold 5

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7. Long Creek Watershed  Long Creek is 1 of 31 urban impaired streams in Maine  Impairment due to:  High water temperatures  High pollutant loads (toxics, PAH, chlorides)  Stream channel instability and sedimentation  Stressed/degraded habitats 7

8. Watershed Statistics Total Watershed Acreage = 2240 (3.5 sq miles) Total Impervious Acreage = 739 (33%) Total Miles of Streams ~ 10 miles 8

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10. Section 303(d) List – 2000  Community-Based Restoration Project Convened  US EPA Grant to Establish Watershed Group and Begin Development of Management Plan  TMDL Deferred  Management Plan Completed 2009 10

11. Residual Designation Petition CLF filed an RDA petition with EPA in March 2008 Requested a determination that: Certain unpermitted stormwater discharges are contributing to violations of water quality standards in Long Creek. Therefore, these “contributing discharges” require a NPDES permit in order to restore and protect the water quality of Long Creek. 11

12. EPA’s Designation Decision Final decision to designate published on 10/28/09 Requires permits for discharges from property with at least 1 acre of impervious surface Maine DEP to administer permit program 12

13. Permitting Requirements Under RDA About 120 parcels with more than 1 acre of impervious surface – pavement, rooftops, etc. Owners of parcels less than 1 acre are not currently required to obtain a permit 13

14. Options for Landowners  Challenge RDA Decision  No Precedent  Forum  Costs  No Permit Shield – No TMDL  State Authority to Regulate Existing Sources  Basis for Appeal?  Arbitrary 1 Acre Threshold  Already Permitted 14

15. Options for Landowners  Proceed with Permit Development Under RDA and Obtain Permit Shield  Continue Implementing Management Plan and Restore Long Creek 15

16. Permitting Options Long Creek General Permit  Must Participate in and Comply with Long Creek Watershed Management Plan Enter into Agreement with Management District Make payments ($3,000 per acre per year) Grant Easements Comply with Monitoring and Housekeeping Requirements  Five year permit 16

17. Assessment Statistics o $3,000/impervious acre/year o Credits provided for stormwater treatment and good housekeeping activities on own parcel 17

18. Interlocal Agreement Provides Legal Structure Long Creek Watershed Management District established through interlocal agreement between watershed municipalities Interlocal agreement allows for public and private governing board members who will be protected under Tort Law 18

19. Goal: Meet Water Quality Standards by 2020  Treat 150 impervious acres 26.33 acres treated (18%)  Implement stream habitat mitigation 2 out of 10 sites completed  Implement non-structural measures Good housekeeping – in progress Targeted education – in progress 19

20. Monitoring Summary The data collected to date suggest the following: Temperature and dissolved oxygen are issues in the upper portion of the watershed. Chloride is an issue in the south and north branches. Metals and nutrients are issues throughout the watershed. Water quantity is a known issue throughout the watershed and is being analyzed further. 20

21. Merrill’s Wharf 254 Commercial Street Portland, ME 04101 William Taylor, Esq. wtaylor@pierceatwood.com PH/ 207.791.1213