New Local Govt. Requirements Coming to More Development and Construction Sites

If you plan to disturb land-i.e. develop land or operate a construction site-in one of the areas listed below, the local storm sewer operator will very soon have some new requirements for you to meet.

In North Central Texas, the affected operators are:

Argyle                   Bartonville                Celina
Cross Roads        Cross Timber             Fate
Ferris                    Hackberry                 Haslet
Joshua                  Lakewood Village     Lavon
Lincoln Park         Little Elm                  McLendon-Chisholm
Melissa                 Midlothian                Mobile City
Northlake             Oak Point                  Princeton
Prosper                Royse City                 Springtown
Wilmer

These operators obtained waivers for these requirements previously, but must re-apply for a waiver, and may not qualify anymore:

Briaroaks                 Copper Canyon        Hebron
Kaufman County    Lowry Crossing         New Hope
Oak Leaf                   Pecan Hill                 Sanctuary
St. Paul                     Waxahachie             Westlake
Westover Hills         Wise County

Basically, federal environmental law puts the squeeze on the states, the states put the squeeze on storm sewer operators, and those operators put the squeeze on the construction and development community.  In this case it’s time to update the squeeze.

The squeeze starts at the federal level.  The Clean Water Act requires Texas, which acts through the Texas Commission on Environmental Quality (TCEQ), to set water quality conditions for surface water in Texas, known as Texas Surface Water Quality Standards (TSWQS).  These standards establish pollutant discharge limits in wastewater and stormwater discharge permits (TPDES and NPDES permits), set instream water quality goals for Total Maximum Daily Loads of substances, and provide water quality targets to assess water quality and identify impaired water bodies.  EPA and TCEQ identification of water bodies as “impaired” is a distinction that makes a difference, as explained below.  The Clean Water Act also requires Texas to review its TSWQSs every three years.  To meet this requirement, the TCEQ just revised its TSWQSs on March 6, 2014.

In order to meet those TSWQSs, the TCEQ requires developers and contractors to obtain TPDES permits for the discharges from work sites, and to mange their sites to reduce or eliminate the pollutants in those discharges.  Similarly, the TCEQ also requires operators of municipal separate storm sewer systems (known as an MS4) to obtain TPDES permits for their storm sewer system discharges into surface water (e.g. rivers).  So the state squeezes the local MS4 operators.

But TPDES permits for MS4 operators are different than the normal TPDES permits obtained directly by developers and contractors.  Their permits impose different requirements on the MS4 operator depending on the size of population they serve, and whether or not they are in an urbanized area.  The U. S. Bureau of the Census updated the urbanized area maps in 2012, based on the 2010 Decennial Census.  The list of operators at the beginning of this post comes from these 2012 changes to the urbanized area maps.

On December 13, 2013, the TCEQ adopted a new TPDES general permit for MS4 operators. The new regulation adopting this updated permit is 471 pages long, and the permit itself is 64 pages long.  Designated MS4s must develop a stormwater management program that includes certain minimum control measures.  Minimum control measures include requiring developers and contractors in the area served by the MS4 to implement particular construction and development site management techniques, to further reduce or eliminate the discharge of pollutants from the site into the MS4 system.

These minimum control measures end up in ordinances and regulations, which is how MS4 operators put the squeeze on contractors and developers.  They are separate, and in addition to, any requirements in a TPDES permit obtained by contractors and developers for a construction site.  But in particular instances, NPDES and TPDES permits obtained by contractors and developers may provide a basis to avoid some of these regulations from MS4 operators.  This will be determined on a case-by-case basis, and is too complex to address in this post.

And so, on or before June 11, 2014, every MS4 which must have a permit to discharge their stormwater runoff into surface waters of Texas must file with the TCEQ a Notice of Intent to operate under this new general TPDES permit (or seek a waiver), along with a new or revised Stormwater Management Program.  The list of MS4 operators listed above will have to obtain a TPDES permit for the first time and are on this schedule.  If they discharge into a water body that has been identified as “impaired” by the EPA and TCEQ, they are not eligible for a waiver.

Developers and contractors should expect to see cities and counties in urban, suburban and ex-urban areas adopt and enforce new ordinances and regulations applicable to their activities at job sites in urban areas.  Developers and contractors have the ability to affect the substance of new regulations adopted by these MS4 operators.  These MS4s Stormwater Management Plans, and any ordinances they propose to adopt, will be announced in draft form, and a comment period provided.  Contractors and developers are strongly encouraged to read these drafts and understand the additional costs they impose, and then work as needed with the MS4 operator to revise the drafts as desired.

I have prepared an excerpt of provisions in this new MS4 TPDES permit that are specifically applicable to construction and development sites.  For a free copy please Email me a request, to mark@texasenvironmentallaw.com.  And please contact me with any other questions or if I may be of service to you in this area.

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