James George III
Environmental Analyst
City of Spokane
cc: Laurie Larson-Pugh, [email protected], Washington Stormwater Center
February 25, 2022
DELIVERED VIA ONLINE PUBLIC COMMENT FORM
Washington Department of Ecology
Water Quality Program – Municipal Stormwater Permitting
300 Desmond Drive SE
Lacey, WA 98503
Re: Phase II Municipal Stormwater Permit Reissuance
Eastern Washington Ad Hoc Work Group Early Comments for the Eastern Washington
Dear Municipal Permit Group,
The Eastern Washington Ad Hoc Work Group was organized to collectively develop suggestions for
the upcoming Eastern Washington Phase II Municipal Stormwater permit reissuance. The Work
Group participants include Eastern Washington municipalities, government agencies, higher
learning institutions, conservation/irrigation districts, and non-government organizations.
Please see the attached Eastern Washington Ad Hoc Work Group permit suggestions document.
The Work Group focused on six topics that were collaboratively discussed, penned and combined
as the attached document. The Work Groups suggestions for the permit are being
submitted for Ecology's consideration of integrating them into the permit during the permit
draft period.
The Ad Hoc Work Group appreciates the opportunity provided by Ecology to participate in
the permit reissuance process. Any feedback on the suggestions provided by the Work Group would
be greatly appreciated. If you have any questions, or would like some additional information,
please feel
free
contact
[email protected],
Laurie
Larson-Pugh
[email protected].
Regards,
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City of Ellensburg
City of Kennewick
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City of Pasco
City of Pullman
City of Richland
City of Selah
City of Spokane Valley
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City of Sunnyside
City of Union Gap
City of Walla Walla
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Eastern Washington Ad Hoc Work Group
Phase II Municipal Stormwater Permit Reissuance
Eastern Washington Ad Hoc Work Group Participant List
Eastern Washington Ad Hoc Work Group
Phase II Municipal Stormwater Permit Reissuance
Construction Site Stormwater Runoff Control Suggestions
Eastern Washington Ad Hoc Stormwater Work Group – Phase II Permit Reissuance
EWA Phase II Permit Construction Site Stormwater Runoff Control Suggestions
Page 1 of 3
EWA Phase II Permit Construction Site Stormwater Runoff Control Suggestions
Eastern Washington Phase II Municipal Stormwater Permit Reissue
Topic: Duplication in Terms of Eastern Washington Phase II Municipal Stormwater and Construction General
Stormwater Permits
Permit Sections: S5.B.4 and Appendix 1
Regulatory Purpose – Construction Site Stormwater Runoff Control
The Construction Site Stormwater Runoff Control Permit section requirements’ purpose is the protection
of water quality. By protecting the Permittee’s regulated municipal separate storm sewer system from
the discharge of pollutants from construction sites, a reduction of the amount of pollutants discharged to
receiving waters may be achieved.
The Construction Site Stormwater Runoff Control Permit requirement describes criteria for meeting the
“Maximum Extent Practicable” standard of the Clean Water Act section 402(p) through the application of
All Known, Available, and Reasonable methods of prevention, control, and Treatment (AKART). The
AKART methods applied are the inspection of the erosion and sediment control (ESC) Best Management
Practices (BMPs) installed by the site operator, and the enforcement of installation and maintenance
requirements by an authorized agency.
Problem Statement – Construction Site Stormwater Runoff Control
The Washington Construction General Stormwater Permit requires site operators to allow agents of the
Department of Ecology to inspect permitted sites. The Eastern Washington Phase 2 Municipal Stormwater
Permit requires Municipal Permittees to create for themselves legal authority to inspect the same
construction sites. This is duplicate regulatory authority.
The Construction General Stormwater Permit requires a permitted site’s Certified Erosion and Sediment
Control Lead (CESCL) to inspect erosion and sediment controls. The Eastern Washington Phase 2
Municipal Stormwater Permit requires inspection of erosion and sediment controls by “qualified
personnel” during construction. Because the site CESCL is “certified,” and thus “qualified” to perform this
inspection, the Municipal Permittee’s inspection is redundant and creates an unnecessary burden to the
Municipal Permittee.
The Construction General Stormwater Permit requires installation of erosion and sediment controls to
protect operable drain inlets; these are inlets to the “storm sewer system that drains to surface waters of
the State,” which is the regulated municipal separate storm sewer system (MS4). Core Element 2 of
Appendix 1 of the Eastern Washington Phase 2 Municipal Stormwater Permit includes Stormwater
Pollution Prevention Plan element seven, “protect drain inlets.” This is an example of the redundancies
that exist between the Construction General Stormwater Permit requirements and the Eastern
Washington Phase 2 Municipal Stormwater Permit requirements.
Eastern Washington Ad Hoc Stormwater Work Group – Phase II Permit Reissuance
EWA Phase II Permit Construction Site Stormwater Runoff Control Suggestions
Page 2 of 3
Permit Revision Suggestions
The regulatory duplication present in the Construction General Stormwater Permit and the Eastern
Washington Phase 2 Municipal Stormwater Permit regarding Stormwater Pollution Prevention Plan
review and Erosion and Sediment Control BMP inspection fails to comply with the intentions of RCW
34.05.328. Revised Code of Washington section 34.05.328 requires the Department of Ecology to
“coordinate implementation and enforcement of [a] rule with the other federal and state entities
regulating the same activity or subject matter” and “determine … that the rule being adopted is the least
burdensome alternative for those required to comply with it that will achieve the general goals and
specific objectives stated” [for the rule]. The Construction General Stormwater Permit General Condition
G3 authorizes the Department of Ecology to inspect any site under coverage by the Construction General
Stormwater Permit. The Eastern Washington Phase 2 Municipal Stormwater Permit requires Permittees
to inspect construction sites meeting the regulatory threshold, which is the identical threshold for
Construction General Stormwater Permit coverage. Per RCW 34.05.328, the Department of Ecology
Construction General Stormwater Permit issuer should coordinate with the Department of Ecology
Municipal Stormwater Permit issuer to remove the burden of construction site inspection from Eastern
Washington Phase 2 Municipal Stormwater Permittees.
Title 40 CFR 122.34 requires the inclusion of “procedures for site inspection and enforcement of control
measures” for construction sites as a minimum control measure in compliant State-issued Permits. This
minimum control measure may be considered with regard to section 122.35(b), which declares that
“In some cases, the NPDES permitting authority may recognize, either in your individual
NPDES permit or in an NPDES general permit, that another governmental entity is
responsible under an NPDES permit for implementing one or more of the minimum
control measures for your small MS4 or that the permitting authority itself is responsible.
Where the permitting authority does so, you are not required to include such minimum
control measure(s) in your storm water management program.”
In this instance, the Washington Department of Ecology implements inspection of erosion and sediment
control measures and enforcement of installation and maintenance standards on construction sites as
part of its NPDES Construction Stormwater General Permit. Per Title 40 CFR section 122.35(b), the Eastern
Washington Phase 2 Municipal Stormwater Permittee should not bear the same obligation.1 (see footnote)
The terms of the Eastern Washington Phase 2 Municipal Stormwater Permit should be revised. The
responsibility for the inspection of erosion and sediment control BMPs on construction sites should not
be held by two separate parties – the Department of Ecology for Construction General Stormwater
Permits and the Permitted jurisdiction for the Eastern Washington Phase 2 Municipal Stormwater Permit.
The Washington Department of Ecology has the authority to release the Municipal Permittee from the
requirement to inspect ESC BMPs because it is already performing this minimum control measure for
another NPDES Permit (40 CFR 122.35).
1 Footnote: It is acknowledged that some jurisdictions may wish to serve their constituents by establishing a “qualifying
local program,” whereby compliance with such a program by a site operator would satisfy some or all of the requirements
to meet minimum control measures of the Construction General Stormwater Permit. For this case it is an additional
suggestion of this Work Group that clarifying reference to this policy be included in the Construction General Stormwater
Permit or that a guidance document similar to EPA Factsheet 2.6 Stormwater Phase II Final Rule Construction Site Runoff
Control Minimum Control Measure (September 2018) be issued by the Washington Department of Ecology.
Eastern Washington Ad Hoc Stormwater Work Group – Phase II Permit Reissuance
EWA Phase II Permit Construction Site Stormwater Runoff Control Suggestions
Page 3 of 3
We propose that the terms of the renewed Eastern Washington Phase 2 Municipal Stormwater Permit
should clarify the respective responsibilities of the Department of Ecology and the Municipal Permittee.
We propose that the Department of Ecology should recognize that its inspections and enforcements of
construction site erosion and sediment controls within the boundaries of the construction site defined by
the Department of Ecology-issued Construction General Stormwater Permit terms implements the
minimum control measure for Construction Site Runoff Control and satisfies the requirements of the
Eastern Washington Phase 2 Municipal Permit Special Conditions S5.B.4.c.i.(b),(c).
We propose that the Permittee should continue to be required to inspect the regulated MS4 for discharge
of pollutants, including sediment-laden runoff from construction sites. The Permittee should have the
legal authority to inspect construction sites if inspection of the MS4 indicates that the construction site is
a possible source of pollutants. The Permittee should only be required to inspect erosion and sediment
controls within the boundaries of the construction site if inspection of the regulated MS4 indicates that
the construction site is a possible source of pollutants.
By distinguishing inspection responsibility based on the boundary of jurisdictional responsibility – the
Permittee has established legal authority over its MS4, and the Department of Ecology establishes its
inspection authority in the Construction General Stormwater Permit terms – redundancy is removed and
compliance may be achieved with greater efficiency.
Eastern Washington Ad Hoc Work Group
Phase II Municipal Stormwater Permit Reissuance
Effectiveness Study Requirements Permit Suggestions
Eastern Washington Ad Hoc Stormwater Work Group – Phase II Permit Reissuance
Page 1 of 3
EWA Phase II Permit Effectiveness Study RequirementsSuggestions
Eastern Washington Phase II Municipal Stormwater Permit Reissue
Topic: Phase II Permit Conditions to Perform Effectiveness Studies
Permit Section: Section S8.A.1
Regulatory Purpose – Stormwater Program Research
The purpose of the effectiveness study permit requirements are to require the municipalities to conduct
studies to determine the effectiveness of undemonstrated operational, structural, and/or education and
outreach activities with respect to stormwater program management. As we understand it, this
requirement was implemented in lieu of requiring ‘end-of-pipe’ stormwater discharge monitoring to
determine effectiveness of the Eastern Washington Phase II Municipal Stormwater permit.
The goal of the effectiveness study permit condition, as we understand it, is to have municipalities
cooperatively develop sound operational, structural, and/or education and outreach practices that can be
formalized and made available to all Eastern Washington stormwater permittees.
Problem Statement(s)
Eastern Washington municipalities generally lack research expertise and resources
Eastern Washington municipalities are generally not organized to be able to efficiently perform the tasks
inherent to a research study, and are also unlikely to have staff with the skill sets needed to perform an
Ecology approved effectiveness study. The gaps that exist between the effectiveness study permit
conditions, and municipal organizations and employee expertise, can be barriers to successful
coordination, design, performance, and documentation of a research study project. The work to perform
a value-added effectiveness study approved by Ecology often has to be hired out to a qualified consultant.
Many Eastern Washington jurisdictions do not have permanent staff available, or the funds necessary, to
lead a thorough and meaningful effectiveness study. In order to maintain compliance, some Eastern
Washington municipalities must compete with similarly permitted jurisdictions for Ecology administered
funding to be able to perform an effectiveness study on a topic in which they are not knowledgeable,
using methods they are unfamiliar with. Additionally, Ecology must approve the proposed effectiveness
study topic, which creates an awkward scenario where the municipality ultimately functions as an
implementation tool for Ecology desired studies, as well as a pass through mechanism for funds from
Ecology to a consultant.
Smaller municipalities are disproportionately impacted by the effectiveness study requirement due to
having one or less fulltime employees dedicated to managing the stormwater program, in addition to
having limited funding and a lack of expertise.1 (see footnote)
1 Footnote: It is acknowledged that an Eastern Washington ad hoc work group participant feels that the system demands
placed on larger jurisdictions are proportionally greater, and as such the…