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
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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
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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
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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,
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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