HomeMy WebLinkAboutLetter_DEQ Response to SWANC_20210921
September 21, 2021
Wendi Hartup
President, Stormwater Association of North Carolina
Sent via email.
RE: Response to SWANC’s Concerns on the MS4 and NCGO1 Programs
Dear Wendi:
Thank you for providing a letter on behalf of SWANC explaining the concerns that you and
your members have regarding the MS4 program. In addition, thank you for arranging the
August 19, 2021 meeting so that the SWANC leadership team could further explain the
concerns that expressed in the letter. The Stormwater Program is always open to your
feedback in the interest of the continuous improvement of the MS4 program.
Below is our response on each of the issues that you raised:
1. Short Cycling of Permits
When the current MS4 audit schedule was created at the end of 2018, it was widely
publicized to permittees across the state. However, at that time no one voiced concerns that
the Stormwater Program would pre-determine MS4 audit results as non-compliant to
justify the decision to short-circuit MS4 permits.
We can assure MS4 permittees that the Stormwater Program enters every audit with an
open mind to observe whether the permittee is Meeting, Partially Meeting, or Not Meeting
each permit condition. The Phase 2 MS4 permit template that the Stormwater Program
uses for audits is derived from MS4 permit conditions. This audit template has been
available on the MS4 web site since 2018, so permittees can prepare to answer the
questions that they will be asked during an audit. The Stormwater Program has worked to
widely publicize the availability of the audit template as well as the other resources
provided on the MS4 web site.
In the audit schedule, the Stormwater Program has tended to short-circuit permits when
there were indications that there might MS4 compliance issues (such as a permittee’s
consistent failure to submit annual reports, etc.). The program’s decision to short-cycle
potentially non-compliant programs was made solely in the interest of protecting the state’s
water quality. Due to this decision, the rate of Notices of Compliance has increased during
each successive year of the revised MS4 program.
2. Training of State staff performing audits.
The Stormwater Program appreciates that SWANC has taken time to compare the audit
process between communities, and we acknowledge that there is room for improvement
regarding audit consistency. As a result of this comment, as well as the program’s own
observations regarding consistency, the Stormwater Program is planning to conduct annual
training for the MS4 audit team that will be recorded in webinar format for future reference
for the state staff.
Although auditor training is a function that will be handled by the Stormwater Program, we
would appreciate feedback from SWANC about specific topics that should be covered. The
training will include the difference between an SOP and a presentation as suggested. Please
provide any other areas of inconsistency that you are currently aware of or become aware
of in the future so they can be covered.
3. Appeals process.
As with all of DEMLR’s inspection reports and compliance notices, the Stormwater Program
is unable to allow MS4 permittees to pre-review or appeal audit findings. However, as part
of the audit process, the auditor is expected to review the audit findings with the permittee
during the audit visit. If the permittee feels that additional information or clarification is
needed to explain any deficient findings, the information can be provided at that time.
Furthermore, if a community disagrees with the findings of an audit, the permittee is
welcome to issue a response memo at a later date. The Stormwater Program will consider
all of the points made in the audit review and response memo and will add the memo to the
official permit record. Please note that MS4 Notices of Deficiency and Violation do not
result in enforcement actions unless the permittee fails to meet the expectations for moving
forward with the permit renewal process. Instead, these notices are intended to be a
springboard for the permittee to create a SWMP that complies with permit conditions,
address any compliance issues, and renew its MS4 permit.
4. DEMLR’s implementation of the NCG01.
During the meeting and in the August 19 memo, SWANC shared the following thoughts:
(a) SWANC believes that MS4 permittees are being required to implement the NCG01
permit. During the August 19 meeting, SWANC stated that some of their members
believe that including permit condition 3.5.5 in the Baseline Phase II Permit Template is
equivalent to requiring MS4 permittees to implement the NCG01 permit. This permit
condition requires the MS4 permittee to develop and implement construction waste
management measures.
The Stormwater Program would like to reiterate that permit condition 3.5.5 has been
added to the Baseline Phase II Permit Template to satisfy 40 CFR §122.34 [Permit
requirements for regulated small MS4 permits]. Specifically, 40 CFR §122.34 Sub-item
(4)(i)(C) requires MS4 permittees to develop and implement requirements for
construction site operators to control waste such as discarded building materials, concrete
truck washout, chemicals, litter, and sanitary waste at the construction site that may
cause adverse impacts to water quality. (Note that this language is reflected verbatim in
permit condition 3.5.5.)
In developing the Baseline Phase II Permit Template, Stormwater Program staff
discussed whether the NCG01 permit could continue to be considered as a Qualifying
Alternative Program (QAP) to meet the construction waste provision of 40 CFR §122.34
Sub-item (4)(i)(C) as it has in past permit cycles. The Stormwater Program decided not
to continue allowing the NCG01 permit to serve as a QAP for the construction waste
requirement because this type of waste is widespread, has significant potential to
impact water quality and is often episodic in nature. In addition, Stormwater Program
staff believed that it was appropriate to follow EPA’s lead in including construction
waste management requirements in both the MS4 and the NCG01 permits.
Local governments in North Carolina already have a unique option to use the state’s
Erosion and Sediment Control Program as a QAP for reviewing, approving, and
enforcing Erosion and Sediment Control Plans. The Stormwater Program is not aware
of any other states where MS4 permittees have this option. However, in North Carolina,
fewer than 25 percent of MS4 permittees handle Erosion and Sediment Control Plans
within their jurisdictions and instead elect to have the state or a county Sediment
program handle this on their behalf.
Many MS4 permittees may already be addressing construction waste management
under their illicit discharge detection and elimination programs, and that is an
acceptable option for meeting permit requirement 3.5.5.
(b) SWANC suggested that DEMLR provide an option to delegate implementation of the
NCG01 permit to local governments. DEMLR does not intend to delegate the NCG01
permit to local governments at this time. This would add an additional layer of
complexity to the NCG01 permitting process without a commensurate improvement to
either the service that is provided to permittees, the protection or water quality, or to
the overall NCG01 program. In addition, the EPA reporting requirements associated
with the NCG01 permit are highly technical and cannot be met by local governments
simply providing a spreadsheet to DEMLR.
During our follow up meeting, some of the SWANC representatives said that they are
inundated with permittee questions about the NCG01 permit. The Stormwater Program
would be happy to assist with permittee outreach if we are made aware of the
questions.
(c) SWANC suggested that DEMLR allow primary and secondary permittees for the
NCG01 permit. The NCG01 program is required to meet federal rules that dictate that
the NCG01 permit be held by either the owner or operator of the construction activity.
Within this framework, the Stormwater Program has created a way for homebuilders to
obtain one NCG01 permit for an entire subdivision rather than covering each lot under a
separate NCG01 permit. This option was developed in cooperation with stakeholders
and has been approved by the EPA.
5. Requests and requirements.
During the August 19 meeting, SWANC explained that the concern about distinguishing
between requests and requirements pertains solely to the NCG01 permit. The intent of
NCG01 permitting process was not to create additional work for either the state or local
government Sediment Programs. The only requirements for local government Sediment
Programs regarding the NCG01 permit are as follows:
• Fully meet the requirements of their sediment delegation,
• Inform permittees in sediment plan approval letters they need to apply for coverage
under the NCG01 permit, and
• Inform permittees in sediment plan close-out documentation that they need to
terminate their coverage under the NCG01 permit.
The Stormwater Program’s electronic Notice of Intent form for the NCG01 permit requires
that applicants upload documentation of the approval of the Erosion and Sediment Control
Plan. Because of that, DEMLR learned after the NCG01 permit went into effect that some
local governments were providing insufficient documentation under the state delegation of
their Sediment Program (such as omitting dates, project names, signatures, or, in some
cases, not providing any documentation). DEMLR believes that nearly all the issues with
insufficient documentation have now been addressed.
The NCG01 permitting process has raised awareness of the way local governments
administer erosion and sediment plans on single-family lots. In some cases, local sediment
programs had not been providing appropriate documentation when lots are transferred
from developer to homebuilder as is required under their Sediment Program delegation.
The Stormwater Program has worked with local governments in these cases so that
homebuilders have the documentation they need to carry out NCG01 permit file updates.
The Stormwater Program agrees that delegated local governments are not responsible for
ensuring their permittees obtain NCG01 permit coverage.
The Stormwater Program has presented on the NCG01 Permit at the local government
program workshop every year since 2017. In addition, the Stormwater Program has
created a detailed web site as a resource for permittees and local governments and have
frequently provided frequent guidance to local governments on the NCG01 Permit via email
and phone calls. The Stormwater Program is open to suggestions from SWANC on how we
can better communicate the expectations to local governments.
Again, thank you for sharing SWANC’s feedback on the MS4 and NCG01 programs. If you
wish to discuss these matters further, please follow up with me no later than September 30,
2021.
Sincerely,
Annette M. Lucas, PE
Stormwater Program Supervisor
cc via email: Daniel Colavito, Holly Springs
Daryl Norris, Greenville
Ben Brown, Raleigh
Beth McLaughlin
Sarah Collins, NC League of Municipalities
Karen Waddell, NC League of Municipalities
Jeanette Powell, DEMLR Stormwater Program
Toby Vinson, DEMLR
Brian Wrenn, DEMLR