Proposed Stormwater Permit will Rain Change for NY Municipalities

It has been more than 10 years since the NYSDEC’s Municipal Separate Storm Sewer Systems (MS4) Permit has undergone substantive change.  Those regulated under the MS4 Permit are currently operating under a permit that was issued in 2015 and was originally set to expire in 2017.  Several factors including opposition by environmental groups and changes to the Federal USEPA stormwater rules have delayed issuance of an updated MS4 Stormwater Permit.  It looks like the time has come for a “new” MS4 Permit (GP-0-22-002) to be released in 2022.  The proposed MS4 Permit has significant changes that will affect the 500+ municipalities and non-traditional MS4s across New York.

For some additional background, a MS4 is a stormwater conveyance system owned or operated by the State, County, Town, City, Village or other public body.  Municipalities are automatically designated a MS4, and are required to comply with the NYSDEC’s Permit, based on population density and proximity to an urbanized area.  Additional non-traditional MS4s, including select Authorities, Districts and transportation agencies are also required to comply with the permit.  As a regulated entity you are required to develop a comprehensive Stormwater Management Program Plan (SWMP) that outlines your processes to meet the MS4 Permit.  A key tenet to any SWMP is meeting the Permit’s 6 minimum control measures focusing on:

• Public Education and Outreach

• Public Involvement/Participation

• Illicit Discharge Detection and Elimination (an illicit discharge is any non-stormwater contribution to the drainage system that contains contaminants or pathogens, e.g. illegal dumping and sanitary cross connections)

• Construction Site Stormwater Runoff Control

• Post-Construction Stormwater Management, and

• Pollution Prevention and Good Housekeeping.

While municipalities have been implementing policies and procedures for the last several years to address these minimum control measures, the new proposed MS4 Permit will require additional efforts.  Key changes for the proposed MS4 Permit enhance many of the prior requirements including:

• Completion of a comprehensive stormwater system map that includes regulated stormwater boundaries, water classifications, tax parcels, roads, topography, and inventory of drainage infrastructure including conveyance type (open vs. closed drainage), material, shape, dimension and contributing drainage area (sewershed);

• Advancing Enforcement Response Plans for municipalities to address violations within their MS4;

• Increased public education and outreach measures to target focus areas, and to stress illicit discharge prevention;

• Increased public involvement/participation requirements including making the SWMP available for public review and comment;

• Public reporting of illicit discharges, additional inventorying of stormwater outfalls, prioritizing outfalls for increased inspection requirements, and development of an illicit discharge track down and elimination program.

• Detailed inventories of active construction projects within your municipality, including new requirements for municipal inspections of active construction projects.

• New inspection and maintenance requirements for both public and private permanent stormwater management practices (i.e. stormwater ponds and other drainage features);

• Requirements for municipal facility inventories to assess the potential for pollutants to be generated from municipal operations (highway garages, parks, waste/recycling operations, salt storage facilities, municipal buildings, etc.);

• Development of Stormwater Pollution Prevention Plans (SWPPPs), site assessments, inspections and monitoring for high priority municipal operations;

• Implementation of catch basin inspection programs.

Stormwater management and drainage have long been a focus for municipal Public Works and Highway Departments.  Many of the former and new proposed MS4 requirements have been conducted by municipal crews for years, however, the current level of recordkeeping and inventorying may not have been required.  The proposed new MS4 requirements will place an increased emphasis on municipal inspections and documentation.  With ever increasing pressures on municipal budgets, the proposed MS4 requirements will create additional demands for stormwater management initiatives.

The public comment period recently closed for the proposed MS4 Permit (GP-0-22-002), and the Final Permit has yet to be issued.  More changes to the proposed Permit may be coming, but we can be assured that municipalities will be faced with the biggest changes to their MS4 programs in the last decade.

For more information regarding the proposed MS4 regulations or stormwater management issues, please contact Barton & Loguidice’s David Hanny.