Water: Coastal Zone Act Reauthorization Amendments
Chapter 1: Introduction - II. Development of the Management Measure Guidance
Congress established a 6-month deadline (May 5, 1991) for publication of the proposed management measures guidance and an 18-month deadline (May 5, 1992) for publication of the final guidance.
EPA published the proposed guidance on June 14, 1991, and, in the interest of promoting the broadest possible consideration of the proposal by a wide variety of interested Federal and State agencies, affected industries, and citizens groups, provided a 6-month comment period. EPA received 477 public comments on the proposed guidance. In addition, EPA maintained an open process of consultation and discussion with many of the commenters and other experts. EPA's response to those comments, both written and oral, is reflected in the final guidance and is summarized in a separate document available from EPA entitled Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters: Response to Public Comments.
In developing the final guidance, EPA continued to draw upon a diversity of knowledgeable sources of technical nonpoint source expertise by using a work group approach. Since the guidance addresses all nationally significant categories of nonpoint sources that impact or could impact coastal waters, EPA drew upon expertise covering the very wide range of subject areas addressed in this guidance.
Because experts in the field of nonpoint source pollution tend to specialize in particular source categories, EPA decided to form work groups on a category basis. Thus, in consultation with NOAA, the U.S. Fish and Wildlife Service, and other Federal and State agencies, EPA established five work groups to develop this guidance:
- Urban, Construction, Highways, Airports/Bridges, and Septic Systems;
- Marinas and Recreational Boating; and
- Hydromodification and Wetlands.
Each of these work groups held many 1- or 2-day meetings to discuss the technical issues related to the guidance. These meetings, which included State and Federal non-EPA participation, were very helpful to EPA in formulating the final guidance. EPA, however, made all decisions on the final contents of the guidance.
Many categories and subcategories of nonpoint sources could affect coastal waters and thus could potentially be addressed in this management measures guidance. Including all such sources in this guidance would have required more time than the tight statutory deadline allowed. For this reason, Congressman Studds stated in his floor statement, "The Conferees expect that EPA, in developing its guidance, will concentrate on the large nonpoint sources that are widely recognized as major contributors of water pollution."
This guidance thus focuses on five major categories of nonpoint sources that impair or threaten coastal waters nationally: (1) agricultural runoff; (2) urban runoff (including developing and developed areas); (3) silvicultural (forestry) runoff; (4) marinas and recreational boating; and (5) channelization and channel modification, dams, and streambank and shoreline erosion. EPA has also included management measures for wetlands, riparian areas, and vegetated treatment systems that apply generally to various categories of sources of nonpoint pollution.
2. Relationship Between This Management Measures Guidance for Coastal Nonpoint Sources and NPDES Permit Requirements for Point Sources
a. Urban Runoff
Historically, there have always been ambiguities in and overlaps between programs designed to control urban runoff nonpoint sources and those designed to control urban storm water point sources. For example, runoff may often originate from a nonpoint source but ultimately may be channelized and discharged through a point source. Potential confusion between these two programs has been heightened by Congressional enactment of two important pieces of legislation: section 402(p) of the Clean Water Act, which establishes permit requirements for certain municipal and industrial storm water discharges, and section 6217 of CZARA, which requires EPA to promulgate and States to provide for the implementation of management measures to control nonpoint pollution in coastal waters. The discussion below is intended to clarify the relationship between these two programs and describe the scope of the coastal nonpoint program and its applicability to urban runoff in coastal areas.
b. The Storm Water Permit Program
The storm water permit program is a two-phase program enacted by Congress in 1987 under section 402(p) of the Clean Water Act. Under Phase I, National Pollutant Discharge Elimination System (NPDES) permits are required to be issued for municipal separate storm sewers serving large or medium-sized populations (greater than 250,000 or 100,000 people, respectively) and for storm water discharges associated with industrial activity. Permits are also to be issued, on a case-by-case basis, if EPA or a State determines that a storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. EPA published a rule implementing Phase I on November 16, 1990.
Under Phase II, EPA is to prepare two reports to Congress that assess the remaining storm water discharges; determine, to the maximum extent practicable, the nature and extent of pollutants in such discharges; and establish procedures and methods to control storm water discharges to the extent necessary to mitigate impacts on water quality. Then, EPA is to issue regulations that designate storm water discharges, in addition to those addressed in Phase I, to be regulated to protect water quality, and EPA is to establish a comprehensive program to regulate those designated sources. The program is required to establish (1) priorities, (2) requirements for State storm water management programs, and (3) expeditious deadlines.
These regulations were to have been issued by EPA not later than October 1, 1992. Because of EPA's emphasis on Phase I, however, the Agency has not yet been able to complete the studies and issue appropriate regulations as required under section 402(p).
c. Coastal Nonpoint Pollution Control Programs
As discussed above, Congress enacted section 6217 of CZARA in late 1990 to require that States develop Coastal Nonpoint Pollution Control Programs that are in conformity with this management measures guidance published by EPA.
d. Scope and Coverage of This Guidance with Respect to Storm Water
EPA is excluding from coverage under this section 6217(g) guidance all storm water discharges that are covered by Phase I of the NPDES storm water permit program. Thus EPA is excluding any discharge from a municipal separate storm sewer system serving a population of 100,000 or more; any discharge of storm water associated with industrial activity; any discharge that has already been permitted; and any discharge for which EPA or the State makes a determination that the storm water discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. All of these activities are clearly addressed by the storm water permit program and therefore are excluded from the coastal nonpoint pollution control program.
EPA is adopting a different approach with respect to other (non-Phase I) storm water discharges. At present, EPA has not yet promulgated regulations that would designate additional storm water discharges, beyond those regulated in Phase I, that will be required to be regulated in Phase II. It is thus not possible to determine at this point which additional storm water discharges will be regulated by the NPDES program and which will not. Furthermore, because of the great number of such discharges, it is likely that it would take many years to permit all of these discharges, even if EPA allows for relatively expeditious State permitting approaches such as the use of general permits.
Therefore, to give effect to the Congressional intent that coastal waters receive special and expeditious attention from EPA, NOAA, and the States, storm water runoff that potentially may be ultimately covered by Phase II of the storm water permit program is subject to this management measures guidance and will be addressed by the States' Coastal Nonpoint Pollution Control Programs. Any storm water runoff that ultimately is regulated under an NPDES permit will no longer be subject to this guidance once the permit is issued.
In addition, it should be noted that some other activities are not presently covered by NPDES permit application requirements and thus would be subject to a State's Coastal Nonpoint Pollution Control Program. Most importantly, construction activities on sites that result in the disturbance of less than 5 acres, which are not currently covered by Phase I storm water application requirement, are covered by the Coastal Nonpoint Pollution Control Program. Similarly, runoff from wholesale, retail, service, or commercial activities, including gas stations, which are not covered by Phase I of the NPDES storm water program, would be subject instead to a State's Coastal Nonpoint Pollution Control Program. Further, onsite disposal systems, which are generally not covered by the storm water permit program, would be subject to a State's Coastal Nonpoint Pollution Control Program.
Finally, EPA emphasizes that while different legal authorities may apply to different situations, the goals of the NPDES and CZARA programs are complementary. Many of the techniques and practices used to control urban runoff are equally applicable to both programs. Yet, the programs do not work identically. In the interest of consistency and comprehensiveness, States have the option to implement management measures in conformity with this guidance throughout the State's 6217 management area, as long as NPDES storm water requirements continue to be met by Phase I sources in that area. States are encouraged to develop consistent approaches to addressing urban runoff throughout their 6217 management areas.
Another specific overlap between the storm water program and the coastal nonpoint source programs under CZARA occurs in the case of marinas (addressed in Chapter 5 of this guidance). In this guidance, EPA has attempted to avoid addressing marina activities that are clearly regulated point source discharges. Any storm water runoff at a marina that is ultimately regulated under an NPDES permit will no longer be subject to this guidance once the permit is issued. The introduction to Chapter 5 contains a detailed discussion of the scope of the NPDES program with respect to marinas and of the corresponding coverage of marinas by the CZARA program.
f. Other Point Sources
Overlapping areas between the point source and nonpoint source programs also occur with respect to concentrated animal feeding operations. Operations that meet particular size or other criteria are defined and regulated as point sources under the section 402 permit program, while other confined animal feeding operations are not currently regulated as point sources. Other overlaps may occur with respect to aspects of mining operations, oil and gas extraction, land disposal, and other activities.
EPA intends that the Coastal Nonpoint Pollution Control Programs to be developed by the States, and the management measures they contain, apply only to sources that are not required under EPA's current regulations to obtain an NPDES permit. For any discharge ultimately covered by Phase II of the storm water permitting program, the management measures will continue to apply until an NPDES permit is issued for that discharge. In this guidance, EPA has attempted to avoid addressing activities that are regulated point source discharges.
Each category of sources (agriculture, forestry, etc.) is addressed in a separate chapter of this guidance. Each chapter is divided into sections, each of which contains (1) the management measure; (2) an applicability statement that describes, when appropriate, specific activities and locations for which the measure is suitable; (3) a description of the management measure's purpose; (4) the basis for the management measure's selection; (5) information on management practices that are suitable, either alone or in combination with other practices, to achieve the management measure; (6) information on the effectiveness of the management measure and/or of practices to achieve the measure; and (7) information on costs of the measure and/or practices to achieve the measure.
b. What "Management Measures" Are
Each section of this guidance begins with a succinct statement, set off in bold typeface in a box, that specifies a "management measure." As explained earlier, "management measures" are defined in CZARA as economically achievable measures to control the addition of pollutants to our coastal waters, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives.
These management measures will be incorporated by States into their coastal nonpoint programs, which under CZARA are to provide for the implementation of management measures that are "in conformity" with this guidance. Under CZARA, States are subject to a number of requirements as they develop and implement their Coastal Nonpoint Pollution Control Programs in conformity with this guidance and will have some flexibility in doing so. The application of these management measures by States to activities causing nonpoint pollution is described more fully in Coastal Nonpoint Pollution Control Program: Program Development and Approval Guidance, published jointly by EPA and NOAA.
c. What "Management Practices" Are
In addition to specifying management measures, this guidance also lists and describes management practices for illustrative purposes only. While State programs are required to specify management measures in conformity with this guidance, State programs need not specify or require the implementation of the particular management practices described in this document. As a practical matter, however, EPA anticipates that the management measures typically will be implemented by applying one or more management practices appropriate to the source, location, and climate. The practices listed in this document have been found by EPA to be representative of the types of practices that can be applied successfully to achieve the management measures. EPA has also used some of these practices, or appropriate combinations of these practices, as a basis for estimating the effectiveness, costs, and economic impacts of achieving the management measures. (Economic impacts of the management measures are addressed in a separate document entitled Economic Impacts of EPA Guidance Specifying Management Measures for Sources of Nonpoint Pollution in Coastal Waters.)
EPA recognizes that there is often site-specific, regional, and national variability in the selection of appropriate practices, as well as in the design constraints and pollution control effectiveness of practices. The list of practices for each management measure is not all-inclusive and does not preclude States or local agencies from using other technically sound practices. In all cases, however, the practice or set of practices chosen by a State needs to achieve the management measure.
EPA recognizes as well that many sources may already achieve the management measures, or that only one or two practices may need to be added to achieve the measures. Existing NPS progress should be recognized and appropriate credit given to those who have already made progress toward accomplishing our common goal to control NPS pollution. There is no need to spend additional resources for a practice that is already in existence and operational. Existing practices, plans, and systems should be viewed as building blocks for these management measures and may need no additional improvement.