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EPA_Response to Notice Regarding Stormwater ManagementMasterpiece on the Mississippi TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Response to EPA Notice re: Stormwater Management DATE: February 23, 2010 Dubuque AHamIca cn hli ll! 2007 City Engineer Gus Psihoyos and Planning Services Manager Laura Carstens are transmitting City staff's comments in response to the U.S. Environmental Protection Agency's Notice regarding Stakeholder Input on Stormwater Management. Overall, the City's response is that stormwater should be managed on a watershed level through partnerships like the one the City has with Dubuque County and the Dubuque Soil and Water Conservation District to collaborate on the Upper Catfish Creek Watershed Project. MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Gus Psihoyos, City Engineer Laura Carstens, Planning Services Manager Michael C. Van Milligen Masterpiece on the Mississippi TO: Michael Van Milligen, City Manager FROM: Gus Psihoyos, City Engineer Laura Carstens, Planning Services Manager - — SUBJECT: Response to EPA Notice re: Stormwater Management DATE: February 23, 2010 cc: Teri Goodmann, Assistant City Engineer Deron Muehring, Civil Engineer Kyle Kritz, Associate Planner Dubuque AM4arka Y 11111 2007 This memorandum transmits the City staffs comments in response to the U. S. Environmental Protection Agency (EPA) Notice re: Stakeholder Input on Stormwater Management, for consideration by the City Council. The enclosed letter from City Engineer Gus Psihoyos to Peter Silva, Assistant Administrator, Office of Water, EPA, will be transmitted via email to Mr. Silva by the comment deadline of February 26, 2010. In reviewing the EPA's notice, City Engineering and Planning Services staff consulted with Dubuque County and the Dubuque Soil and Water Conservation District (SWCD). The City of Dubuque's response reflects the issues, codes, standards, and practices we have or plan to have in the city of Dubuque relative to this notice. Overall, our response is that stormwater should be managed on a watershed level through partnerships like the one the City has with Dubuque County, and the Dubuque Soil and Water Conservation District (SWCD) to collaborate on the Upper Catfish Creek Watershed project Enclosed is a letter of support from the Dubuque SWCD regarding the City of Dubuque's response to EPA. The requested action is for the City Council to receive and file this information. Enclosures Engineering Department City Hall 50 West 13th Street Dubuque, IA 52001 -4864 (563) 589 -4270 phone (563) 589 -4205 fax (563) 690 -6678 TDD engineering@cityofdubuque.org Peter Silva Assistant Administrator, Office of Water U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue, N.W. Washington, DC 20460 Masterpiece on the Mississippi February 23, 2010 VIA EMAIL RE: Response to EPA Notice re: Stakeholder Input on Stormwater Management Dear Mr. Silva, Dubuque bitd TIP 2007 The City of Dubuque, Iowa respectfully submits the following comments in response to the U. S. Environmental Protection Agency (EPA) Notice re: Stakeholder Input on Stormwater Management. In reviewing the EPA's notice, which is duplicated in italics below, the City of Dubuque consulted with Dubuque County and the Dubuque Soil and Water Conservation District (SWCD). The City of Dubuque's response reflects the issues, codes, standards, and practices we have or plan to have in the city of Dubuque relative to this notice. 1. Expand the area subject to federal stormwater regulations. EPA currently requires MS4s within Census - designated urbanized areas to apply for permit coverage (see http : / /www.epa.gov /npdes /stormwater /urban maps (http://www.epa.gov/nDdes/stormwater/urbanmaps) for maps of all urbanized areas). Based on the 1990 Census, there are 405 urbanized areas in the United States that cover 2% of total U.S. land area and contain approximately 63 percent of the Nation's population. Under the present regulations, development that is occurring outside currently regulated MS4s may not be subject to federal controls to protect water quality notwithstanding the fact that the resulting stormwater discharges may be contributing to waterbody impairment. For example, for Phase 11 MS4s, only the portion of the municipal jurisdiction (i.e. township) that is within the Census - designated urbanized ' area is required to be regulated, which may leave stormwater discharges in parts of the jurisdiction unregulated. Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 2 EPA solicits comments and input from the public on the need for expanding the area subject to federal regulation, and, if needed, how to expand the coverage of the federal stormwater program beyond the Census urbanized area boundary. EPA would be interested in views on (1) How to identify the appropriate jurisdictional boundaries for permit coverage, including the township, county, sewer district, or others; (2) how to identify areas that should be covered based on development pressures and to protect water quality; and (3) whether EPA should consider regulating stormwater discharges from particular types or sizes of development that are not covered by an MS4 permit. The City of Dubuque believes that the intent of the MS4 permit is good, and we support federal stormwater regulations. The City of Dubuque is in favor of expanding the reach of federal stormwater regulations to a watershed level so that the problems associated with a specific watershed can be dealt with in both the urban and rural portions of the watershed. In some instances the urban portion of a watershed is significantly less than the rural portion. In this instance it is not logical to pass and enforce regulations for urbanized areas when the health of the watershed is dictated by what happens outside of the urbanized area. For example, only about 5% of the Catfish Creek watershed is within the City of Dubuque. And even though only a small portion of the watershed is within the city, the City of Dubuque is partnering with Dubuque County and the Dubuque SWCD to help manage the health and water quality of this resource at the watershed level. The City, County, and Dubuque SWCD have worked on an ordinance that addresses stormwater management on a County -wide level. Cities and towns in Dubuque County can opt out or choose to participate. Dubuque County is expected to adopt this ordinance soon. In response to EPA's item (1) above as to how to identify the appropriate jurisdictional boundaries for permit coverage, including the township, county, sewer district, or others; the City of Dubuque recommends a joint partnership framework of cities, counties, and state and federal agencies (such as SWCD and NRCS). These offices are in place already, so use them AND provide them with cooperative funding. The City recommends the creation of watershed districts. The health of a watershed can best be managed by a watershed board that has jurisdiction over an entire watershed. The City advocates for a watershed board concept, where this board assumes some of the responsibilities now placed on MS4 cities for managing stormwater and health of a watershed. The City of Dubuque's MS4 permit requires the development of a watershed management plan. While a watershed management plan is a key component to understanding the health of a watershed and its receiving water body, the utility of such a plan developed by a City is severely stunted when the majority of the watershed lies outside of the city limits, outside the jurisdictional control of the city. The City of Dubuque advocates that watershed management plans are prepared by Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 3 an organization that has authority over the entire watershed, both urban and rural portions, so that all residents of a watershed who contribute to the poor health of a watershed are asked to also contribute to helping improve the health of the watershed. The "authority over an entire watershed" should be defined clearly as to the state, federal or other level of government. In response to EPA's item (2) above as to how to identify areas that should be covered based on development pressures and to protect water quality; the City of Dubuque again recommends using the SWCDs. By doing so, EPA creates a "level playing field ". Urban and rural areas both contribute to water quality and stormwater, so EPA should regulate both urban and rural at the watershed level. The City of Dubuque's position is that stormwater should be regulated at the watershed level. EPA has had this position for years; now is the time to act on it. The City of Dubuque supports a partnership approach between cities, counties, and SWCD and NRCS offices. We have this partnership in place for the Upper Catfish Creek in Dubuque County, and it is working. The City of Dubuque recommends that the EPA prioritize watersheds where there is this type of public collaboration in place. The EPA should direct states to address more than just impaired waterways. It is short- sighted to ignore other watersheds until they are degraded to an "impaired" condition. The EPA should expand this program to include MS4 cities, and prioritize to watersheds where a collaborative effort to maintain the integrity of a watershed is in place. The City of Dubuque recommends the equitable application and enforcement of any additional regulations mandated as a result of the EPA stakeholder input. Too often MS4 cities are "islands of regulation in a sea of unenforcement." Stated another way, in some instances developments within an MS4 city must follow more regulations than equivalent developments outside of the MS4. And in some instances citizens within an MS4 face more enforcement of regulations that were meant to apply to all citizens. The City of Dubuque would like to stress to the EPA, the importance of developing regulations and enforcing those regulations equally in urban and rural areas. The standards for development and enforcement are often times higher in cities than in rural communities and unincorporated areas. This puts cities at a disadvantage and consequently promotes sprawl, poor stormwater management, flooding, and poor watershed health. Regulation often occurs in populated areas, but rural development and farms contribute significantly to local, regional and state stormwater and water quality problems. Responsibility and enforcement needs to be shared by all, not just the larger MS4 cities who already are implementing best management practices (BMPs). Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 4 Under the original legislation EPA stormwater regulations should have moved beyond MS4s to counties and onto small cities. At this point, the regulations should be in place for small cities, but EPA is not there yet. Again, the EPA should not start new regulations directed again at the urban level; they should be started at a watershed level to be effective. EPA grants have funded projects that provided models that can direct the regulations, so that the regulations have been based on actual field experience. The City of Dubuque recommends that a percentage of the EPA 319 funds go toward urban storm water. This could be done through a competitive process based on grant criteria for a grant award. In response to EPA's item (3) above as to whether EPA should consider regulating stormwater discharges from particular types or sizes of development that are not covered by an MS4 permit; the City of Dubuque does not have a recommendation, since EPA already regulates down to an acre or more of land disturbing activity. The City of Dubuque does, however, advocate for using urban development BMPs, so that localities can set standards based on local conditions. 2. Establish specific requirements to control stormwater discharges from new development and redevelopment. EPA is considering establishing specific requirements, including standards, to control stormwater discharges from new development and redevelopment. EPA welcomes comments on what standard or standards could apply to new development and redevelopment that promote sustainable practices that mimic natural processes to (1) Infiltrate and recharge, (2) evapotranspire, and /or (3) harvest and reuse precipitation. For example, there could be a national requirement for on -site stormwater controls such that post development hydrology mimics predevelopment hydrology on a site - specific basis. EPA could establish a suite of specific options of standards for meeting such a requirement, for example, on -site retention of a specific size storm event in an area, limits on the amount of effective impervious surfaces (defined as impervious surfaces with direct hydraulic connection to the downstream drainage (or stream) system, also referred to as directly connected impervious area), use of site - specific calculations to determine predevelopment hydrology, and /or use of regional specific standards to reflect local circumstances. EPA could require these standards as part of the MS4 permit on a site- specific basis. EPA is interested in input regarding the need for and the type of standards to set. Should the standard be different for discharges from new development versus redevelopment and, if so, how should it differ? Are there specific circumstances in which (for example) a requirement for new development and redevelopment to maintain pre- development hydrology would not be advisable or would cause other environmental impacts? Finally, EPA is interested in input regarding responsibility for maintaining stormwater control measures that infiltrate, evapotranspirate and/or reuse water. The impacts from stormwater discharges from new and redevelopment occur not only within the MS4 but also from sources outside the MS4 regulated areas. EPA is Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 5 interested in input regarding the appropriate framework for implementing standards for new and redevelopment outside of the MS4 regulations. National standards are difficult to establish because of the vast differences in soils and watershed conditions across the country and within individual states. The City of Dubuque recommends watershed level standards for accommodating different soil and watershed conditions. If EPA is going to establish national standards, they should apply to both urban and rural areas - not be just for MS4s. And standards should be based on a watershed assessment and watershed management plan. What ails one watershed can be significantly different from what ails another watershed even if they are within the same county. If EPA does set national standards, they should be broad - based, flexible enough so that they can be shaped to address the specific needs of each watershed. Again, the standards should be developed at the watershed level. One size will not fit all. With respect to regulating development and redevelopment, the City of Dubuque suggests consideration of our site design standards that promote sustainable measures. In Dubuque, we have a three -tier review process for new development, redevelopment, and special development areas to accommodate different development patterns in the city. Redevelopment on a site with improved real estate, involving partial clearance of 25 percent or more of the building area and /or expansion of 25 percent or more of the building area existing at the time of adoption of this Code, and not in a special development area, must comply with the City's Site Design Standards. But again, if there are similarities or differences between development and re- development requirements they should be based on the health of the specific watershed where the development/re- development is to occur. Infiltration requirements may also be considered in the BMPs. In response to EPA's question as to responsibility for maintaining stormwater control measures, the City of Dubuque advocates that since these are post - construction issues, responsibility for maintenance should be placed on the property owner. Enforcement, which is a separate issue beyond the question of responsibility, should rest with the appropriate jurisdiction — MS4 city, County, State, and /or SWCD. The City of Dubuque supports EPA's position that impacts from stormwater discharges from new and redevelopment occur not only within the MS4 but also from sources outside the MS4 regulated areas. In response to EPA's question as to the appropriate framework for implementing standards for new and redevelopment outside of the MS4 regulations, the City of Dubuque advocates for a framework at the watershed level. And a watershed plan should dictate concern for both water quality and quantity. Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 6 3. Develop a single set of consistent requirements for Phase I and Phase 11 MS4s. EPA's Phase 1 regulations primarily contain application requirements that identify components that must be addressed in permit applications. The Phase 11 regulations establish six "minimum measures" that must be included in an MS4 permit that were more specific than Phase 1. Many Phase 1 and Phase I/ permits address issues that are virtually identical. EPA requests input on whether EPA should modify the regulations to develop a consistent set of requirements that would apply to all regulated MS4s. For example, should EPA apply the six minimum measures to all MS4s? Should EPA add other measures? For instance, Phase 1 MS4s are required to implement a program to control discharges for industrial facilities in their service area. Should this requirement be extended to all MS4s? EPA also requests input on any other modifications to improve the stormwater regulations. The City of Dubuque recommends that EPA treat everyone the same with respect to stormwater regulations, including expansion to the watershed level that would include rural areas. The City of Dubuque objects to the burden of enforcing federal and state regulations; this is an unfunded mandate placed on MS4s. Requiring City's to enforce state and federal regulations would limit enforcement to city boundaries and that there would be a higher level of enforcement in an MS4 than areas outside of the MS4 promoting urban sprawl and unsound land use planning decisions in areas without enforcement of the same regulations. According to your estimate, only 2% of total land area in the USA is being regulated! Do we really expect to impact water quality long -term with regulations for only 2% of the country's land area? This is why the City of Dubuque advocates for stormwater regulations to be at watershed level. Placing the enforcement of state and federal regulations on MS4s would force MS4 cities to become experts regarding state and federal industrial regulations. The City of Dubuque is against Phase II MS4s having to do what Phase I MS4s have to do, but the City is okay with the reverse: Phase I MS4s having to do what Phase II MS4s have to do. It is our understanding that Phase I MS4s are required to implement expensive water quality testing and monitoring, as well as, other expensive stormwater treatment practices that were shown to have no measurable benefit to the health of the receiving water body. The City of Dubuque is against expensive requirements that do not result in a measurable benefit. 4. Require MS4s to address stormwater discharges in areas of existing development through retrofitting of the sewer system, drainage area, or individual structures with improved stormwater control measures. Stormwater discharge from large areas of impervious cover in developed areas is a significant contributor to water quality impairments in the receiving waters of urban areas. Changes to the stormwater management practices in areas of existing development will reduce these impacts. In some states, MS4 permits now require the MS4 to install retrofit practices that infiltrate or otherwise retain stormwater in areas of existing development to reduce these impacts. Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 7 EPA requests input on whether it should consider requirements for the retrofit of existing development to address stormwater. In particular, EPA requests comment on requiring MS4s to develop a long -term retrofit implementation plan that is targeted to addressing stormwater problems in urban waters. The City of Dubuque recommends that the EPA needs to go back to the watershed approach — if we don't know what the water quality issues are, we can't know if the measures suggested above or any other measures will make a difference. Also, these measures are very expensive to install and support. It would be best to know that they will address the identified problems. The City of Dubuque does not believe that it is justifiable to ask citizens to pay higher fees or taxes that would be required to install or implement retrofit practices without an investigation that shows the likely benefits that the retrofit practices would impart to the health of the specific watershed where they are to be placed. If EPA provides funding, the City of Dubuque would be willing to try these measures -- if they are based on the health of the watershed as documented in a watershed assessment and a subsequent watershed plan. 5. Whether EPA should include additional changes to the stormwater regulations (for example, requiring permits to include buffer requirements) in sensitive areas. EPA is interested in views on whether it should consider making any other changes to the current regulatory program (e.g., specific structural or nonstructural stormwater control measures) in addition to the ones described above to protect waterbodies in sensitive areas. The City of Dubuque recommends that if a watershed assessment and resulting watershed plan dictates a measure, it should be done if it meets a realistic cost - benefit threshold. Stormwater is a non -point source pollutant. It is best addressed at a watershed level. The City of Dubuque recommends that EPA support and enhance existing funds currently available for stormwater projects. ISSUE: existing funds are limited to water quality projects. There are no grants or loan funds available for strictly flood mitigation projects. The City of Dubuque recommends that stormwater management projects be eligible for these funds, or that EPA create a new fund that includes stormwater management as an eligible project. The City of Dubuque believes that stormwater management and floodplain management can and should be addressed together, for both water quantity and water quality. EPA 319 funds would enable MS4s to partner with other agencies outside the city limits to address stormwater on a watershed level. In the past few years, the 319 funds have enabled the City of Dubuque, Dubuque County, and the Dubuque SWCD to collaborate on the Upper Catfish Creek Watershed project. The City of Dubuque recommends that 319 grants should fund these collaborative efforts for all types of Response to EPA Notice re: Stakeholder Input on Stormwater Management Page 8 watersheds, not just impaired waterways. And, this funding should extend to both watersheds and sub - watersheds. This work should be done at the watershed level, not the MS4 level. EPA should direct States to use 319 funds for to allow for the formation of multi jurisdictional partnerships with the sole goal of maintaining or improving the health and integrity of a watershed. The Upper Catfish Creek Watershed project was to be a model for the larger watershed and for the entire County. As a sub - watershed, we developed BMPs, cultivated community engagement, and solicited stakeholder input. These grants should be available to educate the whole community, so entities can self - regulate. Having an MS4 doing education at a watershed level makes sense. The City of Dubuque recommends that EPA direct States to provide 319 funds to SWCDs so they can form watershed partnerships. In this way, the cities benefit, the counties benefit, and most importantly the watersheds benefit. Enclosed is a letter of support from the Dubuque SWCD regarding the City of Dubuque's response to the EPA notice re: stakeholder input on stormwater management. Thank you for consideration of the City of Dubuque's comments. Please feel free to contact me at 563.589.4270 or gpsihovo(cr�cityofdubuque.orq for more information. Sincerely, ,,,,___izcs.,,.,0. .., c--- ) Gus Psihoyos City Engineer Enclosure cc: Michael Van Milligen, City Manager Teri Goodmann, Assistant City Engineer Deron Muehring, Civil Engineer Laura Carstens, Planning Services Manager Kyle Kritz, Associate Planner Eric Schmechel, Upper Catfish Creek Watershed Council, Epworth, IA Michael Felderman, Dubuque County Engineer, Dubuque, IA Theresa Weiss, Dubuque Soil and Water Conservation District, Epworth, IA ' bubuque Soil & Water Conservation bistrict To protect, conserve and restore the natural resources of Dubuque County for present and future generations by actively seeking resources and partnerships to promote Soil Conservation and improve Water Quality. February 23, 2010 To Whom It May Concern: 210 Bierman Epworth IA 52045 -9529 Phone: (563)876 -3418, #3 Fax: (563)876 -3653 www.dubuoueswcd.org On behalf of the Dubuque Soil and Water Conservation District Commissioners, I wish to convey a few comments on the City of Dubuque's response to Mr. Silva on the EPA Notice re: Stakeholder Input on Stormwater Management. As stated in the response, the Dubuque SWCD has been voluntarily cooperating with the City of Dubuque for several years on the Upper Catfish Creek Watershed (a project using both 319 and state of Iowa Watershed Protection Funding and Iowa WIRB funds). We feel the voluntary approach the district uses is still the best way to get conservation practice on the land (both rural and urban) to address soil erosion and water quality through implementation on Best Management Practices. The Soil and Water Conservation Districts in Iowa have no taxing authority, nor desire any. We feel the watershed approach of Watershed Councils (made of city, county, and state authorities) setting standards based on the local conditions will be the best possible way of regulating themselves. The District concurs with the City of Dubuque's statements that the whole watershed with different jurisdictions needs to be part of any watershed assessment and plan for implementation. This may see the need for some kind of organizational plan coordinated by one of the authoritative agencies. The Dubuque SWCD also strongly supports the city's position to encourage EPA to expand their 319 funding priorities from just impaired waterways to also include MS4 City Watersheds where there is a collaborative effort to address water quality in the total watershed being addressed. Sincerely, /s/ Melvin Wilgenbusch Chairperson Equal Opportunity Employer and Provider