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Stormwater Permit Rules for Municipal and Industrial Facilities

Winter 1995

I. INTRODUCTION.
On November 1, 1994, NR 216, the final rules covering stormwater discharges at sites throughout the state became effective. Section NR 216 of the Wisconsin Administrative Code was prompted by the requirements of the Federal Water Pollution Control Act of 1972 (the "Clean Water Act"). NR 216 brings Wisconsin into compliance with the federal mandate of regulating all point source discharges of pollutants to navigable waters. With the addition of NR 216, the state’s stormwater permitting scheme will be expanded to include "General" (i.e., NR 216) permits as well as the "Individual" WPDES permits already regulated under NR 200. Thus, many facilities that have not previously come under the WPDES Individual permitting requirements will now be regulated under the "General" permits of NR 216.

The rule is broken into three sub-chapters addressing Municipal, Industrial, and Construction Site stormwater discharges. Municipal and industrial permit requirements are discussed below.

II. MUNICIPALITIES.
Municipal permits will be required for specific classes of municipalities including: municipalities with a population greater than 100,000 (i.e., Milwaukee and Madison); municipalities located in "Great Lakes Areas of Concern" (including Green Bay, Allouez, Ashwaubenon, DePere, Marinette, Sheboygan, and Superior); and municipalities in "Priority Watersheds" (including Eau Claire, Racine, West Allis, and Waukesha).

Importantly, many municipalities not listed above will also be permitted as "designated municipalities." Under this provision, permitted municipalities, or the "public," may petition the DNR requesting that a municipality be required to obtain a permit. If it can be demonstrated that the municipality is either contributing runoff to a larger (permitted) municipality, or is directly discharging pollutants into the state’s navigable waters, a permit will be required. It is highly likely that many of the surrounding suburbs of Milwaukee and Madison will need to comply with NR 216. This is true even if such a "designated" community would not otherwise be regulated.

NR 216 provides that such "designated" municipalities will be the first to be notified by DNR, beginning August 1, 1995. Such municipalities will then have until January 1, 1996 to complete a "pre-application process," which requires municipalities to provide specified information pertaining to stormwater planning, municipal legal authority, and fiscal resources.

Once the DNR approves of a "Pre-application," a municipality will have 24 months, and in some instances 36 months, in which to submit a completed application. The full "Application" will need to detail the steps that the municipality plans to take to mitigate and control identified stormwater runoff problems at a particular site or throughout a municipality. More particularly, the "Application" must include elements specified in the regulations.

After submission of the "Application," DNR will approve, with modifications, or disapprove within 12 months. While this deadline seems distant, communities will need to spend this interim period identifying current practices and runoff patterns as well as preparing to deal with potential legal issues (i.e., defending a "designation" or amending city ordinances to create authority to implement plans).

The time available may actually become brief, as the rule is designed to encourage municipalities to join together into "regional authorities" and complete what is essentially a joint application covering an entire watershed or sub-watershed. A watershed is the geographic region whose topography is such that all the rainwater it receives flows by gravity (whether over streets, through pipes, or through streams and ditches) and outlets through a single or limited number of discharge points, and thus can contain a number of municipalities.

Pursuing such a watershed-wide application allows an applicant to extend the time for submission of a completed "Application" (and thus a completed management plan design) from 24 months to 36 months. Potentially more beneficial is that trading of pollutant discharge loadings will be allowed within watershed-wide management plans.

III. INDUSTRIAL FACILITIES.
Industrial facilities are divided into three "Tiers" based on industry type and proximity to the state’s navigable waters.
Tier 1 facilities are considered "heavy manufacturers" not currently regulated under an individual WPDES permit. The rule identifies general categories of facilities and specifies covered facilities based on SIC Code.

Tier 2 facilities are characterized as "light manufacturers." Again, the rule describes general categories of covered facilities and provides a list of SIC Codes included in this tier.

Tier 3 facilities include remaining commercial and other businesses.
Facilities begin compliance by submitting an application to the WDNR. Technically these should have been submitted as of November 1, 1994; whether or not WDNR has notified a Tier 1 or Tier 2 facility, all facilities should proceed to submit an application as soon as possible.

All facilities, including Tier 3 facilities, will need to submit an application. This is designed to help the WDNR identify Tier 3 facilities. However, in the case of some Tier 2 facilities, a permit is required only if operation of the facility results in contaminated storm water discharges. DNR can make a final determination of this issue based on information within a formally submitted application.

After submitting an application, WDNR will issue provisional "permits." The date of these permits is the "effective date" for the facility. WDNR began the process of issuing Tier 1 permits starting in December of 1994 and is beginning the process of issuing Tier 2 permits. Once a permit has been issued, existing Tier 1 and Tier 2 facilities are required to develop a Stormwater Pollution Prevention Plan (SWPPP). The contents of the SWPPP roughly follow those for municipal stormwater control plans described above. A summary of the SWPPP must be submitted to DNR within twelve (12) months of the effective date of the issued permit. Significantly, newly constructed facilities (i.e., after November 1, 1994) will need to meet this requirement prior to initiating construction, in addition to obtaining a construction site permit.

Continuing compliance with a permit requires that all Tier 1 and Tier 2 facilities keep their SWPPP on site and available for DNR inspection. Additional compliance requirements are set for each of these tiers.

Tier 3 facilities will be required to maintain annual reports verifying that stormwater discharges are not contaminated.

Compliance for many Tier 2, and all Tier 3 facilities, is anticipated as involving minimal or no site re-engineering or legal expense. However, many Tier 1 and some Tier 2 facilities will have potentially difficult materials storage issues and may find themselves facing expensive site redesign requirements in order to obtain SWPPP approval. While these problems will be solved mostly through re-engineering, a variety of legal questions may present themselves during this process.

Media Contact 

If you have a media request or need an attorney with particular knowledge for comment, please contact Susan Steberl, Director of Marketing, at 414.287.9556 or ssteberl@gklaw.com.

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