Stormwater Program Rulemaking

State rules governing the National Pollutant Discharge Elimination System (NPDES) Stormwater Regulatory Program were adopted in August 2005 to address the federal Phase II stormwater program requirements. The Stormwater Program is relatively new and by federal design, still evolving. Federal requirements are continually changing. In 2009, the U.S. Environmental Protection Agency (EPA) finalized the Rule on Effluent Guidelines for Discharges from the Construction and Development Industry. The final rule is available on EPA’s Web site.

Currently, federal rulemaking is under way to overhaul the municipal stormwater program; EPA plans to propose rules to control stormwater from, at minimum, newly developed and redeveloped sites. Additionally, the rulemaking may include the merger of the Phase I and Phase II municipal stormwater programs. Final action on this rule is expected by November 2012. See EPA’s Web site for more information. 

The MPCA will need to comply with these new rules, according to the applicable schedules identified in the rules. At minimum, State rules and permits must be as stringent as the new federal regulations. In the interim, permittees should comply with the existing state stormwater rules and NPDES stormwater permits.

Also, plans to revise the rules administering the Clean Water State Revolving Fund (SRF) financial assistance program for wastewater and stormwater infrastructure projects are underway. Revisions are needed to Minnesota Rules Chapter 7077 to address the point system for stormwater projects.  Minnesota Statute § 116.182, which provided certain points for stormwater projects under the financial assistance program, will expire June 2012. See the Wastewater and Stormwater Financial Assistance Web page for information on stormwater related financial assistance.

Stormwater Permit Rule

• Minnesota Rules, Chapter 7090: Stormwater Regulatory Program (effective August 15, 2005)

Rule-Related Link

Under 7090.0060 INCORPORATION BY REFERENCE:

• General Stormwater Permit for Construction Activity (MN R100001) (wq-strm2-51)

Statues Governing Stormwater Rules

• Minnesota Statutes 115.03, subd. 5  

Federal Stormwater Regulations

• Code of Federal Regulations (CFR), Title 40, Parts 122, 123, and 124
• National Pollutant Discharge Elimination System (NPDES) Stormwater Phase II Final Rule

Background

The federal stormwater regulations, which are part of the NPDES permit program, were developed in two phases. The EPA  first promulgated federal regulations establishing the Phase I Stormwater Program in 1990. The Phase I federal regulations required two general categories of stormwater discharges to be covered under a NPDES stormwater permit: 11 regulated categories of industrial activity including construction activity that disturbs five or more acres of land, and municipal separate storm sewer systems (MS4s) serving populations of 100,000 or more. The MPCA promulgated rules to establish the Phase I Stormwater Program at the state level in 1994 and 1995.

The Phase II federal regulations, promulgated in 1999, expanded the scope of the NPDES Stormwater Program to include smaller MS4s in urbanized areas, construction activities that disturb between one and five acres of land, and smaller municipally owned industrial activities. Additionally, the Phase II federal regulations revised the conditional no-exposure exclusion for industrial activities. The MPCA promulgated rules related to the Phase II federal regulations to fulfil federal NPDES delegation responsibilities, see rule description below.

Phased Rulemaking

When the stormwater rulemaking effort to address the federal Phase II requirements was underway, the MPCA   divided that rulemaking into three separate rulemaking activities in order to help the MPCA better manage controversial and complex issues during that rulemaking process. Here is the status of those rulemakings:

• First rulemaking: Rules to establish the NPDES permit requirements needed to administer the Phase II Stormwater Program (Stormwater Permit Rule).  The Stormwater Permit Rules were adopted in 2005.
• Second rulemaking: Amendments to Minnesota Rules Chapter 7050 to address how outstanding resource value waters and non-degradation requirements in state water rules relate to stormwater permits. The non-degradation rulemaking is currently under way.
• Third rulemaking: Rules to potentially establish performance standards and criteria for managing stormwater discharges; and rules to address the remaining Phase II program requirements, such as the federal waiver provision for small MS4s, and the possible merger of the Phase I and II municipal stormwater programs. The MPCA will evaluate this rulemaking when the 2012 federal stormwater rulemaking is complete.

Rule description

The rules address the requirements of both the Phase I and Phase II federal regulations by integrating these regulations into one state Stormwater Regulatory Program under a new chapter of Minnesota Rules, Chapter 7090. The rules establish the NPDES stormwater permit requirements for regulated MS4s, construction and industrial activities. A brief description of the rules is provided below.

• Stormwater Rules: Minnesota Rules 7090 (wq-strm6-01)

MS4 Program

For the MS4 program, the rules establish the requirement for permit coverage for all federally regulated small MS4s and small MS4s designated by the MPCA for permit coverage. Approximately 200 MS4s were mandated by the Phase II federal regulations as requiring NPDES permit coverage; these include municipalities located within the boundaries of an urbanized area

MS4 Designation Process and Criteria

The rules establish criteria to designate additional MS4s for permit coverage under the rules, and criteria that can be applied to designate future MS4s under a designation and petition process identified in the rule. The rule defers the deadline for designated MS4s to obtain permit coverage to within 18 months of designation.

The rules designate approximately 44 small MS4s located outside of the urbanized area; these include municipalities with a current population of 10,000 or more, and municipalities with a population of 5,000 to 10,000 that discharge or have the potential to discharge to a special or impaired water (see lists and maps below). Designating these MS4s provides for the environmental protection of high quality and impaired waters, and allows for those heavily populated and rapidly growing communities to better plan for growth areas instead of needing to retrofit their plans after damage from high growth has occurred. The rules also designate partial MS4s (cities and townships ) which are those MS4s located partially within an urbanized area. See Stormwater Program for Municipal Separate Storm Sewer Systems (MS4)

Construction Program

For the construction program, the rules establish the permit requirements for small construction activity which includes clearing, grading and excavating, that results in the land disturbance of equal to or greater than one acre and less than five acres. Construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one acre.

The rules provide for a notification by the MPCA, of construction stormwater permit coverage for certain emergency and feedlot construction activities. These projects would be covered by the NPDES/SDS construction stormwater general permit without submittal of a permit application, if specific eligibility criteria are met. See Stormwater Program for Construction Activity.

Industrial Program

The permit requirements for industrial activity are also established in the rules; however, no new categories of industrial activity were added under the Phase II regulations.

The rules establish the conditional exclusion for no-exposure of industrial activities. Under Phase II the no-exposure exclusion now applies to all regulated categories of industrial activity listed in the Phase I regulations, except construction activity. The conditional no-exposure exclusion from permitting allows facilities that meet specific eligibility criteria to certify a condition of no-exposure instead of obtaining a NPDES/SDS Industrial Stormwater Multi Sector General Permit. See Stormwater Program for Industrial Activity

Rule-Related Documents

• Notice of Adoption published in the August 8, 2005, State Register 
•  Amended Order Adopting Rules
• Dual Notice published in the State Register October 18, 2004
•  Proposed Permanent Rules Relating to Stormwater Regulatory Program
•  SONAR for Proposed Rules Governing the Stormwater Regulatory Program
•  Appendix K of SONAR
•  Appendix L of SONAR