Here’s the latest addition to our growing archive of Guest Commentaries; this one from a well known and highly respected environmental engineer with almost two decades of experience in the stormwater management  field.

As always, we welcome your comments, and invite you to get in touch with us if you’d like to contribute your thoughts.

Guest Commentary

by Shirley Clark, Ph.D., P.E., D. WRE

One of the most interesting things about teaching stormwater engineering to primarily part-time students is watching students try to incorporate their education with their daily engineering practice. I explain the disconnect between daily practice and textbooks as the following: I teach the theory and why we do what we do and the manuals and guidance documents typically simplify the theory into something that can be easily calculated, reviewed, and field-inspected. An incredibly PC answer to a thorny question, especially in stormwater management.

Stormwater runoff can transport long distances many of the pollutants contained in the air, deposited on the ground, and released from the materials of the transport system, especially in areas where conventional stormwater systems were installed. As the TMDL process has shown, there is a wide variety of pollutants that can lead to water-quality impairment - flow, sediment, nutrients, bacteria/pathogens, organics, oxygen-depleting substances, etc. However, our guidance manuals typically only focus on three to four pollutants, even in this era where we know more about potential sources and expected concentration ranges of many pollutants. As we design stormwater management for land development, we implement our standard techniques to meet regulatory requirements and guidelines without investigating what pollutants we should be trying to control and whether controlling the three to four pollutants listed in the state manuals will provide adequate control of the real problems on our sites.

So I am suggesting a paradigm shift, especially as it relates to stormwater quality control. Rather than focusing on completing standardized forms showing control for TN, TP, and TSS, let us first predict what problems we can anticipate. For example, if our site is a nursery or newly-landscaped area, TN and TP are a concern; construction sites, TSS, TP and potentially TN. However, if it is a gas station or maintenance yard, organics, particularly hydrocarbons, are more likely to be a problem.  Once we define the problem, then we can design our solutions and evaluate the control technologies/devices/strategies that we have in our “toolbox”. I believe that addressing the problems directly is more effective AND economical in the long run and we now have the tools to do it. We should not wait for TMDLs to force this paradigm shift on the engineering design and regulatory community, but should be proactive in this so we can prepare ourselves for the challenges to come.

More later on how to start this paradigm shift. Thanks to stormwaterpa.org for this opportunity to provide a guest editorial on stormwater quality management!

Shirley is an Associate Professor of Environmental Engineering at Penn State Harrisburg. She has over 18 years in stormwater management experience and over 23 years in the environmental engineering field. The opinions expressed here are her own, based on her experience in government, consulting and academia.

admin Guest Commentary bacteria, engineering, flow, nonpoint source pllution, nutrients, pathogens, sediment, stormwater management, stormwater management solutions, stormwater runoff, TMDL

As noted in mid-March, we’ve been reaching out to experts for contributions on key issues — and are looking forward to featuring their commentaries as they come in.

As always, feel free to comment, and/or get in touch with us if you’d like to join our team of Guest Contributors.

This week’s contribution comes from a notable Pennsylvania law firm and should be of interest to stormwater stakeholders. We felt it deserved to be printed in its entirety, and thank Saul Ewing Environment and Natural Resources Practice Group for permission to reprint.

Guest Commentary

by Pamela S. Goodwin, Carl B. Everett and David J. Falcone

“What keeps you up at night?” New concerns arise for developers as the EPA takes aim at stormwater management violations

SUMMARY: A recent EPA settlement with a national residential homebuilder company for alleged stormwater management violations sends a message to residential homebuilders: Be aware of and comply with the EPA’s stormwater and related regulations.

In the midst of countless other current economic struggles, residential home builders must also contend with the EPA and its pursuit of stormwater management violations.

On April 20, 2010, EPA announced a proposed $1 million Clean Water Act settlement with Hovnanian Enterprises, Inc., a builder of residential homes nationwide. Similar penalties have been assessed against other major developers, as we reported in our July 2008 Alert, which can be viewed here .

The Clean Water Act establishes the basic structure for regulating discharges of pollutants into the waters of the United States and establishing surface water quality standards. Under the Act, the EPA has implemented pollution control programs such as setting effluent limits on industrial discharges and requiring states to set water quality standards for all contaminants in surface waters. The discharge of a pollutant from a point source is unlawful unless in compliance with permit requirements. In addition, the Act regulates non point sources and requires owner/ operators of construction sites to obtain permits and implement controls to prevent pollution from being discharged with stormwater into nearby waterways.

The Hovnanian settlement addresses violations in 18 states and the District of Columbia. EPA announced in a recent press release that it intends to use a portion of the settlement proceeds to protect the Chesapeake Bay, where 161 sites covered by the settlement are located.

The government alleges in the complaint that Hovnanian failed to obtain permits or to do so timely. Violations alleged at permitted sites included failure to prevent or minimize the discharge of pollutants such as silt and debris in stormwater runoff.

By entering into the settlement Hovnanian is agreeing to develop improved pollution prevention plans for each of its construction sites, to conduct additional site inspections and to expeditiously correct problems. In addition, the developer has committed to provide training to its construction managers and designate trained staff for each site. Further, it has agreed to implement a reporting system to improve its oversight of operations and submit an annual report to EPA.

The settlement is reflected in a consent decree lodged in the U.S. District Court for the Eastern District of Pennsylvania. It is subject to public comment and court approval.

This and prior consent decrees like it are the result of the EPA’s Stormwater Initiative. Given the significant monetary consequences of government enforcement, developers should be mindful of stormwater issues and related regulations that pertain to any development. As this latest case shows, it is relatively simple for the EPA or a state to adapt the template used in similar consent decrees to enforce alleged stormwater violations anywhere in the country.

It is important to note that consent decrees typically contain “No Admission” clauses and do not detail alleged violations. Instead, consent decrees act as a vehicle to avoid “wrongdoing” designations. Nevertheless, each of the home builder stormwater consent decrees has averred that the respective defendant violated the Clean Water Act and various state laws principally related to stormwater discharges, as well as land disturbance. In short, a consent decree is an agreement, approved by the court, pursuant to which the defendant, in this case the developer, ceases activities alleged by the government to be illegal in exchange for the government dropping its action. Often, as in the case with Hovnanian, the consent decree sets forth guidelines that outline the steps that must be taken by a defendant to correct any alleged violation. It is not uncommon for these corrective measures to exceed the regulatory requirements under law.

In addition to the federal government, the District of Columbia, the states of Maryland and West Virginia have joined the Hovnanian settlement and will share in the penalty proceeds.

This Alert was written by Pamela S. Goodwin and Carl B. Everett, members of the Environment and Natural Resources Practice Group, and David J. Falcone, a member of the Real Estate Department. Pamela can be reached at 609.452.3109 or pgoodwin@saul.com; Carl can be reached at 215.972.7171or ceverett@saul.com and David can be reached at 610.251.5752 or dfalcone@saul.com. This publication has been prepared by the Environment and Natural Resources Practice Group for information purposes only. The provision and receipt of the information in this publication (a) should not be considered legal advice, (b) does not create a lawyer-client relationship, and (c) should not be acted on without seeking professional counsel who have been informed of the specific facts. Under the rules of certain jurisdictions, this communication may constitute “Attorney Advertising.”

© 2010 Saul Ewing LLP, a Delaware Limited Liability Partnership. ALL RIGHTS RESERVED.

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Guest Commentary, submitted by

Mindy Lemoine,
Watershed Programs Manager
Pennsylvania Environmental Council

Implementing a sediment TMDL is a challenge because of the high cost of control measures and the weak legal mechanisms that drive implementation. When the sediment originates in stormwater runoff from numerous land developments and other municipal sources, as in the case of the Wissahickon Creek sediment TMDL, implementation can be particularly complex.

PADEP’s PAG-13 draft permit for MS4 municipalities requires that each MS4 in a TMDL watershed prepare a Stormwater TMDL plan. The draft permit provides some guidance on how to prepare an adequate plan, stating that two of seven recommended control measures should be implemented in the five-year permit period. The draft permit also states that “the Stormwater TMDL Plan shall demonstrate that the required pollutant load reductions will be achieved to the maximum extent practicable, consistent with the TMDL.”  That’s where municipalities get nervous. Neither EPA nor PADEP guidance tell them what is considered maximum extent practicable.

Pennsylvania Environmental Council (PEC) obtained funding from EPA to design a market-based approach to implementing the sediment TMDL in the Wissahickon. PEC believes that employing market mechanisms will support municipalities in achieving the  environmental objectives of the TMDL at the least cost.

PEC’s approach relies on two key assumptions. First, volume is an appropriate surrogate for sediment in urban stormwater. Second, a specific volume of stormwater retention must be established in the MS4 permit as the trigger for trading, and to give municipalities confidence that they can achieve compliance. This volume defines maximum extent practicable in the first five year cycle.

Ideally, a regulatory agency would  establish the level of control required, in this case, PADEP. As PEC’s report was released, PADEP was not prepared to set a number for the required level of control. In the absence of PADEP guidance, PEC examined how aggressively reductions could be obtained.  PEC has estimated the cost of fully implementing the sediment TMDL in the Wissahickon Creek to be between $106 and $230 million.  In the absence of very significant federal or state funding, it is unrealistic to expect municipal taxpayers to shoulder that burden in only one or a few 5-year NPDES permit cycles. Consequently, PEC sought to develop a reduction target that the municipalities and the Pennsylvania Department of Environmental Protection (PADEP) could both embrace. The report recommends that 267,064 cubic feet (also referred to as sediment credits) of new stormwater retention volume be used as the target for the first five-year cycle. PEC envisions that this capacity would create a quantifiable sediment load reduction within the first permit cycle.

The target volume is allocated to municipalities according to their percentage of the total WLA as determined in the TMDL. For example a municipality that contributes 17% of  the total WLA would be responsible for 17% of 267,064 cubic feet, equaling 45,428 cubic feet. That municipality would commit in its stormwater plan to identify a site and to design, construct and maintain 45,428 cubic feet of permanent retention. In each permit cycle, PADEP would assign a new target volume number.

PEC also recognized that stormwater retention is less expensive in some municipalities within the watershed than in others.  By allowing trading contracts between the municipalities, it would be possible for a municipality with high costs to purchase sediment credits from a municipality with low costs i.e. to implement stormwater retention within a neighboring municipality’s boundaries.  This market mechanism approach would reduce the overall cost of sediment reduction, and may encourage municipalities to work more formally.

The Wissahickon Creek Municipal Credit System is an innovative approach to controlling sediment loading carried by stormwater runoff.  PEC will be working with the Wissahickon municipalities to help them implement the system.

PEC’s report on the Wissahickon Creek Municipal Credit System was issued in January.
You can Download it Here or visit PEC’s site for more information.

Mindy Lemoine is one of PEC’s two Watershed Program Managers in the Philadelphia office. Mindy is “on loan” to PEC for about two years from the U.S. Environmental Protection Agency though an Interagency Personnel Agreement. In her work at EPA, Mindy coordinated local government partnerships for the Environmental Assessment and Innovation Division, the Chesapeake Bay Program and the Delaware Estuary Program. Mindy also worked as Regional Environmental Officer for the US Department of Commerce’s Economic Development Administration, and as Natural Resources Specialist and Regional Coordinator for the Louisiana Department of Natural Resources, Coastal Zone Management Program.

Mindy leads PEC’s Wissahickon Roundtable project, which will seek consensus from municipalities, developers and other stakeholders on land use practices that help manage stormwater. She will also manage PEC’s nutrient trading project in the Wissahickon and PEC’s multi-municipal stormwater project in the Pennypack watershed.

admin Guest Commentary, NPDES / MS4 MS4, PA DEP, sediment control, stormwater legislation, stormwater runoff, stormwater standards, TMDL, volume control, watershed protection

As noted in mid-March, we’ve been reaching out to experts for contributions on key issues — and are looking forward to featuring their commentaries as they come in.

As always, feel free to comment, and/or get in touch with us if you’d like to join our team of Guest Contributors.

Guest Commentary, submitted by

John A. Miller, P.E., CFM
Water Resources Engineer
Certified Floodplain Manager

To be perfectly blunt, I am very glad that some site engineers did not become structural engineers.  Why?  Because, if they had, we would have buildings, bridges and other structures falling down around us.  Too many site engineers do not consider Factor of Safety.  Let me explain.

Factor of Safety in structural engineering is used to compensate for variations of materials, oversight in production and assembly, construction workmanship, simplification in design and future unknown loads that a structure may experience beyond its initial design.  Think of a commercial building, where a room is converted from office space to file storage.  The dead load or weight of the contents of the room dramatically increases with the addition of dozens of file cabinets, filled to bursting.  In most cases this change of use does not lead to failure, as the original design anticipated, using a Factor of Safety, that an alteration might be made at some time in the future.    (NB: As a professional engineer, I suggest that if you are making this magnitude of change, you consult a structural engineer to verify the structure’s ability to support the increased load).

A site engineer may say that using a Factor of Safety in stormwater management design is “over-engineering,” since the consequences of failure or partial failure are not as significant.  And to boot, I have often heard a site engineer testify that his or her design produces “better than before conditions” when meeting the applicable regulations (unfortunately, for many reviews I have conducted, in truth, the design doesn’t even meet the minimum standards.)

There are a number of consequences for failing to design stormwater management systems with a proper Factor of Safety.  For structural engineers, injury or death and major financial loss can occur at the design site.  “Luckily” for site engineers and their clients, the consequences may be less clear.  Stormwater runoff is not so easy to see as a building falling down, and the damage can occur further downstream, maybe in another municipality or even another state.  Unintentional results such as stream channel erosion, degradation of water quality, or a drop of the groundwater table can all arise from disregarding the incorporation of a Factor of Safety.  In the most extreme cases, flooding can result in death and major financial loss on downstream properties.

To design with a Factor of Safety, the reviewing agency or board would be more confident with the inaccuracies in the Curve Numbers or runoff coefficients, time of concentration, the accounting of the change in soils with construction compaction and other variables used in modeling the design or the modeling technique itself.  One has to ask, has the engineer considered changes in rainfall intensity and totals and antecedent watershed conditions?  Is the design fully mimicking the preexisting conditions for peak runoff, water quality treatment and groundwater recharge through the range of future precipitation?  And what about excess runoff volume - has that been managed?  Is there sufficient Factor of Safety if one or a few of the engineer’s generalizations is off the mark or misunderstood?

So, the next time you hear testimony, even by a licensed professional engineer, that the design is “better than current conditions,” take a moment and ponder if sufficient Factor of Safety is built in to make that so.  Don’t take the regulations for granted.  Ask yourself and then the engineer - does the design adequately consider and mitigate the water resource impacts from the current proposed and future land use changes and variability in precipitation?  Is there a Factor of Safety incorporated into the design to protect the areas downstream of the site?

John A. Miller, P.E., CFM is an Associate Water Resources Engineer with Princeton Hydro, LLC in Ringoes, New Jersey.

admin Guest Commentary BMPs, peak rate, stormwater best management practices, Stormwater Regulations, stormwater system design, volume control, water quality

In an effort to continue to meet the needs of our many “stormwater stakeholders” and engage the larger water resource community, we’ve been reaching out to a number of experts for contributions on key issues — and have been thrilled with the response. Following is the first “Guest Commentary” in what we expect is going to become a very active part of the Blog.

As always, feel free to comment, and/or get in touch with us if you’d like to join our team of Guest Contributors.

Guest Commentary, submitted by

John A. Miller, P.E., CFM
Water Resources Engineer

I never thought that the US Army Corps of Engineers would use the word ‘holistic’, but a Corps Colonel did just that in a January 15, 2010 Engineering Circular 1105-2-411 and it demonstrates that the federal focus continues to change from myopic, project-specific planning, to a broader, watershed perspective.  This updated approach for the Corps formalizes watershed planning that will consider the context of the problem they have been asked to address, wherein the Corps will

1.    Work collaboratively with a broad range of stakeholders to help solve water resources problems in an integrated and sustainable manner;
2.    Use systems approaches to understand the connection between natural and man-made systems;
3.    Analyze water resources problems on larger geographic scales; and
4.    Strive to achieve multiple goals and functions using water and related resources in a balanced manner.

Are these the words you expected from the Corps?  As stormwater managers at a local level, it can feel like the rest of the world is finally catching up with us.  We face a host of problems due to the past lack of a watershed perspective; we should welcome the Corps to our broader way of thinking - one that recognized the multitude of uses and threats to our watersheds.

You can access the Complete Army Corps Circular on Watershed Planning here.

We welcome your thoughts.

John A. Miller, P.E., CFM is an Associate Water Resources Engineer with Princeton Hydro, LLC in Ringoes, New Jersey.  In that capacity, Mr. Miller manages projects involving stormwater, floodplain and wastewater management.  His interests include stormwater management planning and policy; floodplain management, analysis, mitigation and policy; land use, especially with regard to water resources and open space; forensic analysis; and expert testimony.  He has been qualified as an expert in stormwater and floodplain management by courts in Pennsylvania and New Jersey.

Mr. Miller is a licensed professional engineer in five (5) states that include Pennsylvania, New Jersey, New York, Delaware and Maine.  He is a Certified Floodplain Manager as administered by the national Association of State Floodplain Managers (ASFPM).  A graduate of Villanova University with honors, he promotes the importance of continuing education for professionals.  Mr. Miller serves as a member of the City of Lambertville Planning Board, the City of Lambertville Emergency Management Council and as an alternate member of the Hunterdon County Planning Board.  By Resolution in January 2010, the City of Lambertville formally recognized Mr. Miller’s “dedication to the various projects and committees he serves” and “for his input and contributions to the flood water management programs, grants, and guidance offered to the City of Lambertville.”

In addition, Mr. Miller is very active in national and state professional organizations.  He is a Past Chair and founder of the New Jersey Association for Floodplain Management (NJAFM), a chapter of ASFPM.  He served as the Region II Director for ASFPM and is active with the leadership and staff of the Association on national floodplain management policy and issues.  He is the Immediate Past President of the New Jersey Section American Water Resources Association (NJ-AWRA) and helped enhance this organization in his tenure as Secretary and Vice President.  He has received the 2006 NJAFM Founders Award and the 2008 NJ-AWRA President’s Award acknowledging his leadership, time and dedication to the organizations.

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