Chapter 3: Regulatory Context

A number of federal and state regulations impact the way Oregon towns and cities manage stormwater.

Stormwater that is discharged to surface waters is regulated by the Federal Clean Water Act (CWA), which is implemented in Oregon by the Department of Environmental Quality (DEQ) with guidance from the federal Environmental Protection Agency (EPA). The National Pollutant Discharge Elimination System (NPDES) program is the fundamental regulatory mechanism of the CWA. It requires anyone discharging a pollutant from a point source into the waters of the nation to obtain an NPDES permit. DEQ manages the NPDES permit program for stormwater runoff from certain municipalities, construction sites, and industrial facilities.

Municipal stormwater permits (MS4)

In 1987, amendments to the CWA required the EPA to address discharges from a municipality’s separate storm sewer systems (MS4). EPA’s urban stormwater program implementation is designed to be phased in over several years. Phase I of the stormwater program, developed by the EPA in 1990, requires permits for stormwater discharges from medium and large MS4s located in incorporated cities or counties with populations of 100,000 or more. In 1995, DEQ began issuing Phase I MS4 NPDES stormwater permits. DEQ has issued six permits that cover 22 municipalities in Oregon and also issued a permit to the Oregon Department of Transportation. In 1999, EPA adopted rules to implement Phase II of the stormwater program for smaller municipalities in urbanized areas. DEQ has issued Phase II MS4 NPDES stormwater permits to 18 municipalities in Oregon. MS4 permittees are required to implement six “minimum control measures” to control stormwater pollution to the “maximum extent practicable.” The minimum control measures include:

• Public education and outreach on stormwater impacts
• Public involvement and participation
• Detection and elimination of illicit discharge
• Construction site stormwater runoff control
• Post-construction stormwater management in new development and redevelopment
• Pollution prevention and good housekeeping for municipal operations
  

Construction stormwater permits (1200-C)

The 1200-C permit applies to construction activities that disturb one or more acres. In addition to obtaining a DEQ permit, projects within MS4 municipalities must also obtain a permit from their local municipality. As a result, these projects are subject to dual regulation by the state and local municipalities. To expedite the permitting process, some municipalities have entered into agreement with DEQ to administer the 1200-C permit on DEQ’s behalf.

2006 Industrial Stormwater Permit Holders

Source: Map prepared by StormwateRx using DEQ data.

Industrial stormwater permits (1200-Z and 1200-COLS)

The 1200-Z permit applies to stormwater runoff from a wide variety of industrial activities throughout the state. The 1200-COLS permit applies to stormwater runoff from industrial activities within the Columbia Slough Watershed. Because this waterbody is listed as impaired on the 303(d) list (see TMDLs below), industrial dischargers in the Columbia Slough watershed have received a watershed-based industrial stormwater permit with additional pollutant parameters and more stringent water quality benchmarks. As with the construction permits, some municipalities have entered into an agreement with DEQ to administer these permits on DEQ’s behalf.

The construction and industrial permits require site operators to implement stormwater best management practices and ensure that stormwater runoff leaving their site does not cause a violation of instream water quality standards.

Total Maximum Daily Loads (TMDLs)

Stormwater management is also influenced by Total Maximum Daily Load (TMDL) regulations. Under Section 303(d) of the Clean Water Act, DEQ is required to develop a list of water bodies that do not meet water quality standards for parameters such as temperature, bacteria, mercury and numerous other pollutants, and submit an updated list to the EPA every two years. When a water body is placed on the 303(d) list, a TMDL must be developed to bring the water body back into compliance with water quality standards. A TMDL process determines the pollutants or stressors causing water quality impairments, identifies permissible loading capacities for the waterbody, and then, for each relevant pollutant, assigns load allocations to each of the different sources. When the TMDL process identifies urban stormwater as a source of pollutants, municipalities with MS4 permits are required to develop performance measures and benchmarks to track progress toward achieving the goals of the TMDL. In addition, smaller municipalities that are not required to obtain a MS4 permit permit must develop a TMDL implementation plan. Most cities in the state of Oregon lie within the watershed of a 303(d) listed stream. In addition, construction sites operating under a 1200-C permit that discharge stormwater to impaired streams that are listed for sediment or turbidity must implement additional best management practices to control erosion and sediment runoff to these streams and/or conduct stormwater turbidity monitoring.

MS4 permits and TMDLs are designed to be flexible, so that when local jurisdictions develop a stormwater management plan, they can identify the best management practices that are appropriate for their local conditions. As a result, local stormwater programs vary from city to city.

It is interesting to note that some New England states are developing TMDLs for hydrology due to the widespread recognition that an altered hydrologic regime is one of the contributing factors to stream degradation . Oregon DEQ only develops TMDLs for pollutants.

Oregon Municipal Stormwater Permit Holders

Surface water and groundwater are hydrologically linked. When stormwater is discharged below the ground in injection systems such as sumps, floor drains, trench drains and drywells, it is covered by the federal Safe Drinking Water Act (because groundwater is a source of drinking water). DEQ implements these regulations in Oregon via its Underground Injection Control (UIC) program. Many cities use injection systems to discharge stormwater from roads and publicly owned facilities. Private businesses may also use injection systems to dispose of stormwater runoff from parking lots or other impervious areas. These discharges may pollute groundwater if there is no pre-treatment such as natural or engineered filtration. As a result, owners must register their injection systems with DEQ. Depending on whether the injection systems meet certain requirements, they may be either authorized by rule or required to obtain a permit.

Under section 4(d) of the Endangered Species Act, if an action will adversely impact a federally listed threatened or endangered species, then an incidental “take” permit from the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service (NOAA Fisheries) is required. Numerous species are listed in parts of the state, such as Chinook salmon and steelhead trout. Stormwater Management Plans are a component of municipalities’ efforts to avoid harming endangered species.

Every city and county is required to have a comprehensive plan and accompanying development ordinance to be in compliance with state land use planning goals, as determined by the state Land Conservation and Development Commission (LCDC). Goals 5 and 6 have a direct connection to water quality.

Goal 5 is “to protect natural resources and conserve scenic and historic areas and open spaces.” It requires jurisdictions to inventory wildlife habitat and open spaces, including riparian areas, and develop a plan for protecting them.

Goal 6 is “to maintain and improve the quality of the air, water and land resources of the state.” Local governments have a wide degree of control over how to protect these resources in their community.

According to this law, "The Legislative Assembly declares that it is the goal of the people of the State of Oregon to prevent contamination of Oregon's ground water resource while striving to conserve and restore this resource and to maintain the high quality of Oregon's ground water resource for present and future uses." Programs developed under the Groundwater Quality Protection Act primarily focus on area-wide contamination resulting from non-point source pollution of groundwater.

Oregon's law does the following:

• Establishes DEQ as the coordinating agency for groundwater management.
• Spells out the procedure for establishing Maximum Measurable Levels (MML) of contaminants in Oregon's groundwater.
• Establishes a groundwater monitoring and assessment program.
• Defines a program to address areas where groundwater contamination is identified.
• Requires DEQ to report to the Legislature in January of every odd-numbered year. These Biannual Groundwater Quality Reports to the Legislature provide a thorough review of groundwater conditions and program activities within the state.
  

Oregon drainage law, which originates from common law or case law, has developed without legislative action, and it is embodied in the decisions of the courts. There are no Oregon Revised Statutes pertaining to drainage law.

Oregon has adopted the civil law doctrine of drainage. Under this doctrine, adjoining landowners are entitled to have the normal course of natural drainage maintained. The lower owner must accept water which naturally comes to his land from above, but he is entitled not to have the normal drainage changed or substantially increased. The lower landowner may not obstruct the run-off from the upper land, if the upper landowner is properly discharging the water.

For a landowner to drain water onto lands of another in the State of Oregon, two conditions must be satisfied initially: 1) the lands must contain a natural drainage course; and 2) the landowner must have acquired the right of drainage supported by consideration.

In addition, three basic elements must be followed:

1. A landowner may not divert water onto adjoining land that would not otherwise have flowed there. "Divert water" includes but is not necessarily limited to: 1) water diverted from one drainage area to another; and 2) water collected and discharged which normally would infiltrate into the ground, pond, and/or evaporate.
2. The upper landowner may not change the place where the water flows onto the lower owner's land (Most of the diversions not in compliance with this element result from grading and paving work and/or improvements to water collection systems).
3. The upper landowner may not accumulate large quantities of water, then release it, greatly accelerating the flow onto the lower owner's land. This does not mean that the upper landowner can not accelerate the flow of water at all; experience has found drainage to be improper only when acceleration and concentration of the water were substantially increased.