In compliance with EPA’s Phase II stormwater regulations, New York State Department of Environmental Conservation (DEC) issued two new Draft General Permits for Municipal Separate Storm Sewer Systems (MS4s) and Construction Activities. In November 2007, we joined with the Waterkeeper Alliance and nine other regional Keeper organizations to collectively review and analyze provisions of both draft permits.

The Draft MS4 Permit

The previous MS4 permit was issued in 2002, and in October 2004, Riverkeeper submitted written comments advocating for a number of improvements and also recommendations that heightened standards be considered for adoption in a separate Heightened East-of-Hudson Phase II permit. We were pleased to note that many of our recommendations were incorporated in new state-wide Draft MS4 Permit, and that heightened conditions now apply to a number of sensitive waterbodies, including the East-of-Hudson Watershed. These changes will enhance protection of watershed resources and alleviate many of the inconsistencies in local MS4 stormwater management plans and annual reports.

Notwithstanding certain improvements to the MS4 permit conditions, the Keeper coalition identified deficiencies that undermine the permit’s its ability to fully comply with relevant provisions of the Clean Water Act and New York State laws and regulations. Some of these deficiencies include the Draft Permit’s failure to provide a meaningful opportunity for public review and comment on stormwater management plans, a lack of measures to ensure compliance with phosphorus total maximum daily loads (TMDLs), and a lack of specific guidance for regulated MS4s. We noted these deficiencies in our written comments to DEC and included recommendations that the MS4 Permit should require smart growth, better site design, and low-impact development practices to reduce municipal stormwater pollution.

The Draft Construction Permit

While several improvements in the new Draft General Permit for Construction Activities will be important assets in DEC’s efforts to protect the State’s waters from construction site runoff, we again noted some deficiencies that impede the effectiveness of the permit to adequately prevent or control stormwater discharges from active construction sites. Among these deficiencies is the Draft Permit’s reliance on a modeling standard (approved stormwater management practices that are assumed to perform) rather than an objective standard (monitoring and measuring turbidity levels in stormwater discharges for actual performance) to comply with the terms of the Permit. Consequently, in our written comments we proposed that numeric effluent limits are necessary to ensure compliance with the Permit. We also noted that where construction sites are located in watersheds identified as impaired by construction-related pollutants, DEC cannot issue coverage under the General Permit without first ensuring that discharges will not cause or contribute to further water quality violations. And, as with our comments on the Draft MS4 Permit, we again urged DEC to include in the Draft General Permit for Construction Activities a requirement for environmental site design principles to reduce runoff during and after construction and improve water quality protection.