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Stormwater Program Rulemaking Activity

The Minnesota Pollution Control Agency (MPCA) promulgated rules to address the Phase II federal stormwater program requirements. The purpose of this Web page is to provide basic information about these rules and information about future stormwater program rulemaking activity as it becomes available.

Phased Rulemaking

The stormwater rulemaking effort is separated into three rulemaking activities in order to help the MPCA better manage controversial and complex issues during the rulemaking process. The three separate proposed rulemaking activities are:

• First rulemaking - rules to establish the NPDES permit requirements needed to administer the Phase II Stormwater Program (Stormwater Permit Rule).
• 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.
• Third rulemaking - rules to address the remaining Phase II program requirements such as the federal waiver provision for small MS4s, and potentially, rules to establish performance standards and criteria for managing stormwater discharges.

Stormwater Permit Rule

• Minnesota Rules, Chapter 7090: Stormwater Regulatory Program (effective August 15, 2005)
• Minnesota Rules Chapter 7090: Stormwater Regulatory Program (effective August 15, 2005 ) with changes since initially proposed.
• Fact Sheet: Stormwater Rules: Minnesota Rules 7090

Rule-Related Link

Under 7090.0060 INCORPORATION BY REFERENCE:

• General Stormwater Permit for Construction Activity (MN R100001)

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

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. A brief description of the rules is provided below.

1. NPDES Permit Requirements

The rules establish the NPDES stormwater permit requirements for regulated MS4s, construction and industrial activities.

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.

• List of Mandatory MS4s
• Map of Mandatory MS4s and Minnesota’s Impaired and Special Waters

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 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.

2. 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.

• List of MS4s population 10,000 or more designated by proposed rule
• List of MS4s population 5,000 to 10,000 designated by proposed rule
• Map of proposed designated MS4s and Minnesota’s impaired and special waters

The rules also designate partial MS4s which are those MS4s located partially within an urbanized area and by federal rule do not require permit coverage for the portion of the MS4 located outside of the urbanized area. Many of these MS4s that have a portion of their MS4 located outside of the urbanized area have already submitted a permit application for their entire MS4. See the list and map of mandatory MS4s; this list identifies MS4s that are located wholly and partially within an urbanized area.

3. Notification of Construction Stormwater General Permit Coverage

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.

4. Industrial Activity No-Exposure Exclusion

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 permit.

Stakeholder Involvement and Rule Development

During development of the draft rules, the MPCA held a series of stakeholder meetings to solicit input and gather feedback on several issues that were expected to be controversial or of significant interest during this rulemaking effort. The feedback and comments obtained from these meetings assisted the MPCA in developing the draft rule. A brief description of these issues is provided below.

1. MS4 Designation Criteria

The Phase II federal regulations require the MPCA to establish a process and criteria for designating small MS4s for NPDES/SDS stormwater permit coverage, in addition to the MS4s automatically designated for coverage under federal rule.

• Memorandum to MS4 Stakeholder Group
• MS4 Stakeholder Group
• MS4 Stakeholder Meeting Notes of 1/6/04
• MS4 Stakeholder Meeting Notes of 2/4/04

2. Construction Activity Conditional Exclusion

The MPCA proposed to conditionally exclude certain qualifying feedlot and conservation practice projects from the requirement to apply for NPDES/SDS construction stormwater permit coverage, if certain requirements are met.

• Memorandum to Conditional Exclusion Stakeholder Group
• Conditional Exclusion Stakeholder Group
• Conditional Exclusion Meeting Notes of 2/18/04

3. Construction Activity and Utility Installation

MPCA staff worked with utility representatives to develop rule language that would clearly identify permit requirements and responsibilities for utilities conducting construction activities when they are not the site operator and not required to obtain permit coverage or when they are working under another operators permit. Throughout this process, the MPCA and utility representatives recognized the need for education and outreach in order to accomplish one of the main goals of the Stormwater Program, which is better environmental protection by reducing polluted stormwater runoff. To that end, the MPCA ultimately decided to consider other options rather than rulemaking, such as written guidance or training geared specifically to stormwater management responsibilities and requirements for utility installation during construction activities. The MPCA expects to continue to work with utility representatives on this issue.

• Memorandum to Utility Stakeholder Group
• Utility Stakeholder Group
• Utility Stakeholder Meeting Notes of 10/21/03
• Utility Stakeholder Meeting Notes of 11/18/03

Additional Stakeholder Involvement in Rule Process

The Stormwater Design Team, formed in the fall of 2003 to design a long-term statewide stormwater effort, was tasked with advising the MPCA on the draft rules with emphasis on the three issues identified above. The Stormwater Design Team also played an integral role in providing feedback and comment on the rules as they were being drafted.

• Stormwater Design Team
• Stormwater Design Team Meeting Notes for Rule Discussion of 12/3/03
• Stormwater Design Team Meeting Notes for Rule Discussion of 12/18/03

Links to Additional Information

• National Pollutant Discharge Elimination System (NPDES) Stormwater Phase II Final Rule
• Minnesota State Rules governing the Phase I Stormwater Program
• Stormwater Program for Municipal Separate Storm Sewer Systems (MS4)
• Stormwater Program for Construction Activity
• Stormwater Program for Industrial Activity

Staff Contacts

For more information regarding the Stormwater Program rulemaking activity, please contact the following staff. All MPCA staff can be reached toll free at 800-657-3864.

• Rule Writer & Technical Questions: Mary Hoffman Lynn, 651-757-2439
• Timeline & Administrative Process: Kevin Molloy, 651-757-2577
• Stormwater Program Coordinator: Brian Livingston, 651-757-2532