municipal separate storm sewer system npdes/sds general permit

ATTACHMENT 1

Printed on recycled paper containing at least 20% fibers from paper recycled by consumers.

STATE OF MINNESOTA MINNESOTA POLLUTION CONTROL AGENCY

IN THE MATTER OF THE DECISION TO DENY THE PETITIONS FOR A CONTESTED CASE HEARING FROM THE CITY OF EAGAN AND FROM THE LEAGUE OF MINNESOTA CITIES AND MINNESOTA CITIES STORMWATER COALITION AND REISSUE THE GENERAL NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM/STATE DISPOSAL SYSTEM (NPDES/SDS) PERMIT MNR040000 FOR SMALL MUNICIPAL SEPARATE STORM SEWER SYSTEMS (MS4S)

FINDINGS OF FACT CONCLUSIONS OF LAW AND ORDER

The above‐entitled matter came before the Minnesota Pollution Control Agency Citizens’ Board (MPCA) at a regular meeting held in St. Paul, Minnesota, on May 21, 2013. After reviewing the record before it and allowing opportunity for public comment, the MPCA finds, concludes and orders as follows:

FINDINGS OF FACT This matter involves the proposed reissuance of General NPDES/SDS stormwater Permit MNR040000 (Permit) for Small MS4s (appended hereto as Attachment 2). During the initial public comment period, the City of Eagan requested a contested case hearing. Also, during each of two public comment periods on the draft Permit, the League of Minnesota Cities and its Minnesota Cities Stormwater Coalition (collectively referred to as LMC), jointly requested a contested case hearing. The MPCA must decide under applicable statutes and rules: (1) whether to grant or deny, in whole or in part, the requests for a contested case hearing, and (2) whether to reissue the Permit.

Jurisdiction 1. The MPCA is authorized and required to administer and enforce all laws relating to the pollution of

any waters of the state. Minn. Stat. § 115.03, subd. 1(a). 2. The MPCA has authority to issue this Permit and to rule on the contested case hearing request on

the Permit. Minn. Stat. chs. 115 and 116, and Minn. R. chs. 7000, 7001, 7050, 7052 and 7090. 3. Under the federal Clean Water Act (CWA), the MPCA is required to issue NPDES permits for

municipal and industrial stormwater discharges. 33 U.S.C. § 1342 (p). 4. The NPDES permit for small MS4s must require permittees to develop, implement, and enforce a

Stormwater Pollution Prevention Program (SWPPP) that includes best management practices (BMPs) for the six minimum control measures that are set forth in federal regulations at 40 CFR § 122.34 (a) and (b). The U.S. Environmental Protection Agency (EPA) has the authority to review and make objections or recommendations to proposed permits. 40 CFR § 123.44.

5. In 1972, Minnesota received a delegation from EPA to administer the NPDES permit program.

Municipal Separate Storm Sewer System Findings of Fact NPDES/SDS General Permit Reissuance Conclusions of Law Statewide Minnesota And Order

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6. In 1987, Congress amended the CWA to require that EPA develop stormwater regulations. The EPA developed a two‐phase national program for addressing stormwater discharges. Phase I of the two‐phased program developed by EPA required NPDES permits for medium and large MS4s serving populations of 100,000 or more. In Minnesota, this includes only the MS4s for Minneapolis and St. Paul. The MPCA issued the first Phase I MS4 permits to Minneapolis and St. Paul in the early 1990’s and reissued those permits in 2011.

7. In 1999, the EPA promulgated Phase II stormwater regulations as required by the 1987 amendments to the CWA. Phase II expanded the scope of the existing NPDES permit program to include discharges of stormwater from Small MS4s in urbanized areas. The Phase II regulations required that all Small MS4s meeting eligibility criteria obtain NPDES permit coverage by March 10, 2003.

Background 8. On June 25, 2002, the MPCA Citizens’ Board approved the first issuance of the General

Stormwater permit for Small MS4s.

9. On May 6, 2003, the Minnesota Court of Appeals remanded the 2002 permit back to the MPCA to address items cited in a lawsuit. (Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency, 660 N.W.2d 427, 439 (Minn. App.2003)).

10. On June 1, 2006, the MPCA reissued the 2002 General Stormwater Permit for Small MS4s with modifications that addressed the issues identified in the May 6, 2003, Minnesota Court of Appeals’ decision.

11. The MPCA, as the state’s NPDES/SDS permitting authority, last issued a permit for stormwater

discharges from Small MS4s on June 1, 2006. The 2006 permit expired on May 31, 2011, and remains expired.

12. In this immediate matter, the MPCA proposes to reissue the June 1, 2006, General Stormwater

Permit for Small MS4s, NPDES/SDS No. MNR040000.

Environmental Foundation for This Permit Reissuance

13. Arguably, Minnesota’s greatest resource is its lakes, rivers, streams, and wetlands, or otherwise referred to as “waters of the state.” The harmful environmental effects of uncontrolled stormwater discharges are well established as reiterated by EPA in the December 8, 1999, Federal Register for the Phase II stormwater regulations:

Storm water runoff from lands modified by human activities can harm surface water resources and, in turn, cause or contribute to an exceedance of water quality standards by changing natural hydrologic patterns, accelerating stream flows, destroying aquatic habitat, and elevating pollutant concentrations and loadings. Such runoff may contain or


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mobilize high levels of contaminants, such as sediment, suspended solids, nutrients (phosphorous and nitrogen), heavy metals and other toxic pollutants, pathogens, toxins, oxygen‐demanding substances (organic material), and floatables. (U.S. EPA. 1992. Environmental Impacts of Storm Water Discharges: A National Profile. EPA 841–R–92–001. Office of Water. Washington, DC).

14. The MPCA finds it is given and charged with the powers and duties necessary to reissue permits

under such conditions as it may prescribe in order to prevent, control or abate water pollution. (Minn. Stat. § 115.03, subd.1(e).)

115.03 POWERS AND DUTIES.

Subdivision 1. Generally. The agency is hereby given and charged with the following powers and duties:

(a) to administer and enforce all laws relating to the pollution of any of the waters of the state;

(b) to investigate the extent, character, and effect of the pollution of the waters of this state and to gather data and information necessary or desirable in the administration or enforcement of pollution laws, and to make such classification of the waters of the state as it may deem advisable;

(c) to establish and alter such reasonable pollution standards for any waters of the state in relation to the public use to which they are or may be put as it shall deem necessary for the purposes of this chapter and, with respect to the pollution of waters of the state, chapter 116;

(d) to encourage waste treatment, including advanced waste treatment, instead of stream low‐flow augmentation for dilution purposes to control and prevent pollution;

(e) to adopt, issue, reissue, modify, deny, or revoke, enter into or enforce reasonable orders, permits, variances, standards, rules, schedules of compliance, and stipulation agreements, under such conditions as it may prescribe, in order to prevent, control or abate water pollution, or for the installation or operation of disposal systems or parts thereof, or for other equipment and facilities:

(1) requiring the discontinuance of the discharge of sewage, industrial waste or other wastes into any waters of the state resulting in pollution in excess of the applicable pollution standard established under this chapter;

(2) prohibiting or directing the abatement of any discharge of sewage, industrial waste, or other wastes, into any waters of the state or the deposit thereof or the discharge into any municipal disposal system where the same is likely to get into any waters of the state in violation of this chapter and, with respect to the pollution of waters of the state, chapter 116, or standards or rules promulgated or permits issued pursuant thereto, and specifying the schedule of compliance within which such prohibition or abatement must be accomplished;

15. The MPCA finds the primary goal of this Permit is to restore and maintain the chemical, physical,

and biological integrity of Waters of the State through management and treatment of urban stormwater runoff. The purpose of the Permit is to maintain water quality standards where there is compliance, and help bring waters that do not meet water quality standards into compliance.


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This is accomplished by management of MS4s through the permittees’ development, implementation and enforcement of a SWPPP. The SWPPP must include the following federally mandated six Minimum Control Measures (MCMs) and any other requirements the delegated state permitting authority may require in order to prevent, control or abate water pollution and to protect human health and the environment:

Public Education and Outreach

Public Participation/Involvement

Illicit Discharge Detection and Elimination

Construction Site Stormwater Runoff Control

Post‐Construction Stormwater Management

Pollution Prevention/Good Housekeeping for Municipal Operations

The Unique Three‐Part MS4 Permitting Process

16. This general Permit is the first part of a three‐part permitting process.

17. First, applicants apply for coverage under the general Permit and become permittees or they may opt for individual NPDES/SDS permit coverage. Currently all Small MS4s are permitted under the general Permit.

18. Second, permittees under the general Permit, design and tailor their own SWPPP for their specific

needs and requirements at the local MS4 level, using the general Permit for MS4s as the baseline. All permittees previously covered by the 2006 general Permit already have a SWPPP developed under their 2006 permit coverage.

19. Third, similar to all NPDES permits, the permittee must fill out a form and state how it plans to

comply with the permit conditions, and in the case of MS4 applicants, develop their individual SWPPP document. In the case of the MS4 Permit, this form is the SWPPP document. In this third step, MS4 permittees consider their own unique circumstances and determine how they intend to meet the general Permit requirements to the Maximum Extent Practicable (MEP), the standard established in the applicable federal regulations. The SWPPP document is where the individaul MS4 outlines how its current stormwater program (SWPPP) already meets the various permit conditions or how and when their stormwater program will be revised to meet the Permit requirements. Each SWPPP Document is specifically tailored to the unique features, needs, and circumstances of that particular MS4. MPCA staff review the individual SWPPP Document and then it is put on public notice for comment. The MPCA staff responds to the comments received during the comment period, works with the MS4 applicant to make revisions if necessary, and ultimately issues permit coverage to the MS4 under the general Permit. Throughout this process, a contested case hearing may be requested. Thereafter, each MS4 permittee will be subject to the terms of the general Permit and the contents of their individual SWPPP document.


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MPCA Considerations and Influences in the Development of this Permit

20. Legislative directives and new state statutes affected the development of the Permit. For example, Minn. Stat. § 116.03 was amended and requires the MPCA to facilitate permitting efficiency. The Minimal Impact Design Standards (MIDS) legislation requires that the MPCA enable and promote low‐impact development and stormwater management techniques for post‐construction (Minn. Stat. § 115.03, subd. 5c(c)).

21. Minnesota’s Polycyclic Aromatic Hydrocarbon (PAH) legislation requires the MPCA Commissioner to incorporate the requirements for inventory of stormwater ponds, wetlands and natural ponds into this permitting cycle for Small MS4s. 2009 Minn. Laws 2486 (Minnesota Session Laws 2009, CHAPTER 172‐‐H.F.No. 1231, Section 28(d) Prevention of Water Pollution From Polycyclic Aromatic Hydrocarbons).

22. MPCA staff considered the results of scientific studies, such as the 2008 National Research Council (NRC) published report Urban Stormwater Management in the United States (Attachment 5). This report drew several conclusions and provided recommendations on how urban stormwater management could change to better protect our lakes, rivers and streams.

23. MPCA staff also reviewed general permits issued by other delegated state permitting authorities to identify national trends in stormwater management.

24. EPA recommendations were also considered in the development of this Permit, such as The MS4 Permit Improvement Guide published by the EPA in April of 2010. The MS4 Permit Improvement Guide was developed by the EPA for permit writers in delegated states and includes specific recommendations for drafting permit language. In addition, MPCA staff considered comments submitted by EPA on each draft of the Permit.

25. MPCA staff also reviewed MS4 compliance evaluations from the June 1, 2006 permitting cycle. 26. On January 14, 2010, the MPCA began the process of reissuing the 2006 permit by holding the first

of 24 separate stakeholder meetings to solicit input, receive feedback, and/or resolve issues. The MPCA finds the table below to be an accurate description of the stakeholder meetings held. Participants at the various meetings included existing permittees, environmental groups, consultants, and other interested and affected parties. Some meetings were in a large group format while others were much smaller and some focused on specific issues, such as TMDLs.

MS4 PERMIT REISSUANCE: DATES OF STAKEHOLDER MEETINGS

January 14, 2010 ‐ Large group June 9, 2011 ‐ Small group

March 3, 2010 ‐ Small group June 14, 2011 ‐ Large group

March 17, 2010 ‐ Small group June 16, 2011 ‐ Large group

April 6, 2010 ‐ Small group June 23, 2011 – Small group

April 23, 2010 – Small group December 8, 2011 ‐ Large group


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April 29, 2010 ‐ Small group December 14, 2011 ‐ Large group

May 11, 2010 ‐ Small group December 19, 2011 ‐ Small group

June 23, 2010 ‐ Small group February 9, 2012 ‐ Large group

October 7, 2010 ‐ Small group February 23, 2012 ‐ Small group

October 18, 2010 – Small group February 27, 2012 ‐ Small group

February 10, 2011 ‐ Small group March 29, 2012 ‐ Large group

May 3, 2011 ‐ Small group June 21, 2012 ‐ Large group

Procedural History – Public Notice/Public Comment Periods

27. Minn. R. 7001.0100, subp. 4.G., Public notice of permit application and preliminary

determination, requires in relevant part that:

…[t]he public comment period shall be 30 days unless a different public comment period is specifically established by another agency rule.

28. The MPCA finds that no other agency rule establishes a different public comment period for the reissuance of this general Permit.

29. The draft Permit was publicly noticed twice during this reissuance process for a total public notice

and comment period of 129 days.

30. In accordance with Minn. R. 7001.0210, subp. 3, the MPCA finds there are several permit applicants or potential permit applicants who have the same or similar operations, activities, discharges, or facilities.

31. The MPCA also finds the permit applicants or potential permit applicants discharge, handle, or dispose of the same types of waste.

32. The MPCA also finds the operations, activities, discharges, or facilities are subject to the same or substantially similar standards, limitations, and operating requirements.

33. The MPCA finds the operations, activities, discharges, or facilities are subject to the same or substantially similar monitoring requirements.

The First Public Notice and Comment Period 34. First public comment period (66 days): The public comment period started on May 31, 2011, and

was open through the end of business on July 15, 2011. Notice of intent to reissue a general permit and for the public comment period was placed in Volume 35, Number 48 of the State Register on May 31, 2011. This notice and the draft Permit were placed on the MPCA’s website on May 31, 2011, at http://www.pca.state.mn.us/pyrifa0. In addition, interested and affected parites were notified via the Agency’s GovDelivery listserve.


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35. Public informational meetings were noticed in the May 31, 2011, State Register and held as

scheduled on June 14 and 16, 2011. 36. On July 1, 2011, a 21‐day temporary interruption in state service began. The interruption ended on

July 21, 2011. 37. On July 15, 2011, the LMC submitted a petition for a contested case hearing. The petition included

two issues: 1) the cost of compliance with the Permit; and 2) whether the Permit exceeds the MEP standard. The LMC 2011 petition is appended hereto as Appendix G.

38. On July 15, 2011, the City of Eagan (City) submitted a petition for a contested case hearing and

comments on the Permit. The City charged that “the MPCA significantly increased the burden on the City and unecessarily exacerbated the difficulty of the City’s review of the draft permit.” The City claims MPCA staff ceased discussions with regulated cities regarding the draft Permit. The City also claims there was an insufficient time for the City and its residents to review and comment on the draft Permit, due in part to the State of Minnesota shutdown July 1‐15, 2011, and the City’s inability to access State of Minnesota resources.

39. The City’s petition claims a contested case hearing would address the insufficient amount of time

the City and residents had to understand fully and comment appropriately on the draft Permit. The City’s petition is appended hereto as Appendix F.

Extension of the First Public Notice and Comment Period

40. The MPCA finds the temporary interruption in state service did not effect U.S. Mail service to the MPCA. In addition, electronic comments were received in the MPCA computer system. However, because the State of Minnesota web pages were shut down and those interested in providing comment on the draft Permit may not have had access to the necessary materials during the shutdown, as an additional precaution, the MPCA held an extended public comment period on the draft Permit, pursuant to Minn. R. 7001.0110, subp. 4. The MPCA extended the public notice and comment period an additional 21 days from August 9, 2011, through the end of business on August 29, 2011.

41. Notice of the 21‐day extension to the comment period was placed in Volume 36, Number 3 of the

State Register on August 8, 2011. This notice of the extension of the comment period was placed on the MPCA’s website on August 8, 2011, at http://www.pca.state.mn.us/pyrifa0. In addition, interested parites were notified via the MPCA’s GovDelivery listserve.

42. On August 29, 2011, the extended public comment period ended for the draft Permit. The MPCA

received 36 comment letters (Appendix B) and two contested case hearing Petitions (Appendices F and G), one submitted by the City of Eagan, and the other by the LMC.

43. The MPCA made significant revisions to the 2011 draft Permit based on the public comments received. The MPCA publicly noticed the revised Permit and held a second public notice and comment period.


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The Second Public Notice and Comment Period 44. Second public comment period (63 days): The second public comment period was from May 21,

2012, through the end of business on July 23, 2012. Notice of the second comment period and notice of a public informational meeting were placed in Volume 36, Number 44 of the State Register on May 21, 2012. This notice and the revised draft Permit were placed on the MPCA’s website on May 21, 2012, at http://www.pca.state.mn.us/pyrifa0. In addition, interested parties were notified via the MPCA’s GovDelivery listserve.

45. The public informational meeting was held as scheduled on June 21, 2012. 46. On July 23, 2012, the second public comment period ended for the draft Permit. The MPCA

received sixty nine (69) comment letters (Appendix D), (including thirty five (35) duplicate letters). One contested case hearing Petition (Appendix H) was submitted by the LMC, largely based on its 2011 contested case hearing Petition.

47. The MPCA made additional revisions to the 2012 draft Permit based on the comments received during the second public comment period. (See Attachment 3, the redlined version of the 2012 draft Permit.)

48. The MPCA prepared a Response to Comments document for the 2011 draft Permit (Appendix C) and the 2012 draft Permit (Appendix E) that are hereby incorporated by reference into these Findings of Fact.

Specific Topics Raised By Commenters

Providing Special Notice to Potential New MS4s Form Provided by the Commissioner Pond Inventory

Procedures and Schedules for Assessing Stormwater Ponds

Duplication of Construction Stormwater Program

Post‐Construction Stormwater Management Mitigation & Green Infrastructure

Post‐Construction Management of Stormwater Volume

Setting Standards without Rulemaking

Usurping Municipal Land Use and Zoning Authority

Standard Operating Procedures (SOPs) and Enforcement Response Procedures (ERPs)

Total Maximum Daily Loads (TMDLs) and Waste Load Allocations (WLAs)

Municipal Facilities Inventory


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Providing Special Notice to Potential New MS4s 49. Commenters claim the MPCA failed to comply with public notice and comment period

requirements for several Small MS4s that potentially could become covered by the Permit, by not allowing those MS4s adequate opportunity to provide comment on the 2011 or 2012 draft permits. Commenters allege the MPCA officially identified several small MS4 in November of 2011, and others in May of 2012, that met the eligibility criterion established in Minn. R. 7090.1010 and were required to apply for coverage under the general permit; and that they should have been specifically notified, as were existing permittees, of the opportunty to comment on the draft Permits.

50. The MPCA finds the criterion outlined in Minn. R. 7090.1010 that establishes when a Small MS4

must submit an application for permit coverage is, in part, dependent on “the most recent decennial census.” The most recent decennial census is from 2010. The new 2010 census information on urbanized areas was released by the U.S. Census Bureau in March 2012. In response to the new information, the MPCA drafted a list of potential Small MS4s who may be required to seek authorization to discharge stormwater in accordance Minn. R. 7090.1010. Since June 2012, EPA has been working with the Region 5 states, including Minnesota, on finalizing the draft lists of potential new Small MS4s. As of the date of this document, the MPCA and EPA Region 5 have not finalized the list of potential new Small MS4s for Minnesota. In addition, the MPCA has not received any applications from any entity not previously covered by the 2006 permit. Until the MPCA and EPA officially establish the identities of new MS4s required to seek authorization to discharge stormwater under an NPDES permit, the MPCA finds it is premature to identify them as such.

51. The MPCA finds the “designation criteria” under which a new Small MS4 may be designated by the Commissioner is outlined in Minn. R. 7090.1010, subp. 2. A or B. To date, the MPCA has designated only one Small MS4 under these criteria and does not expect to “designate” additional Small MS4s in the foreseeable future. If the MPCA determines that designation criteria is met by a Small MS4 under Minn. R. 7090.1010, subp. 2. A or B, the MPCA will engage in the required “designation process” as outlined in Minn. R. 7090.1010, subp. 3, which includes a 30 day public notice of the Commissioners preliminary determination that one or more Small MS4s meet the “designation criteria.”

52. Once the MPCA and EPA officially establish the identities of new Small MS4’s, based on the most

recent decennial census results, those Small MS4s will be required to submit an application for general or individual permit coverage in accordance with the criterion established in Minn. R. 7090.1010, subp. 1.B.(2) or (3).

53. The MPCA also finds the public notice procedures outlined in Minn. R. 7001, and specifically Minn. R. 7001.0210 General Permits, were followed, which requires the agency to publish the notice of intent to issue a general Permit in the State Register were followed.

54. The MPCA finds through this process, the general public, including future Small MS4s that may choose to apply for Permit coverage if they meet the criteria in Minn. R. 7090.1010, or are designated by the MPCA in the future, were given ample opportunity to provide comment on the


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2011 draft Permit (66 days) and the 2012 draft Permit (63 days). Minn. R. 7001 only requires each draft permit to be publicly noticed for 30 days.

55. Although MPCA staff considered the public notice to be more than adequate to the general public including the “yet to be established or designated” potential new Small MS4s, MPCA staff provided additional notice to the potential new Small MS4s. The MPCA sent a letter to a list of potential new Small MS4s on June 27, 2012, which highlighted that the draft Permit was on public notice for comment through July 23, 2012.

Form Provided by the Commissioner

56. Commenters allege the MPCA uses forms to change permit terms at MPCA’s will, specifically citing

the Annual Report form. Commenters state that any “form provided by the Commissioner” required to be used should be made available for public comment with the draft Permit.

57. The MPCA finds that Minn. R. 7001.0100 requires the MPCA to place proposed permits on public notice and provide opportunity for comment. The public notice requirements for proposed permits do not include permit related documents such as application forms, reporting forms, etc. Since the MPCA makes revisions to the draft Permit based on the comments received, Permit related forms are not finalized until after the public comment period, permit revisions are made, and the Permit is final. Permit forms will not change terms and conditions of the permit.

58. During the 2006 permitting cycle, the MPCA made minor revisions to the Annual Report form to avoid irrelevant questions and unnecessary burdens on permittees. For example, the 2006 permit did not require that the permittee complete an ordinance or other regulatory mechanism to prohibit illicit discharges from entering the Small MS4 until June 30, 2010. Therefore, the MPCA did not ask specific questions on the Annual Report related to illicit discharges until after the deadline for completion of the ordinance or other regulatory mechanism had passed. At that point, the MPCA asserts it was appropriate and reasonable for the MPCA to include new or rephrased questions in order to appropriately evaluate compliance.

59. The MPCA finds the Permit language to be sufficiently transparent in terms of information required to be tracked, documented and potentially submitted by the permittee. There are currently 233 regulated Small MS4s. Using a “form provided by the Commissioner” rather than allowing each permittee to use their own form or format, increases program efficiency and leads to greater consistency in the information received.

60. The MPCA finds that requiring the application, including the SWPPP document, be submitted to the MPCA using a “form provided by the Commissioner” is consistent with Minn. R. 7001.0050, which requires that applicants “shall submit the written application in a form prescribed by the commissioner.” Minn. R. 7001.0050 (2011). Further, requirements to use a “form provided by the Commissioner” enhances permitting efficiency consistent with Minnesota’s Permitting Efficiency law found at Minn. Stat. § 116.03, subd. 2b.


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Pond Inventory

61. Commenters claim Permit conditions requiring each Small MS4 permittee to inventory the stormwater ponds, wetlands, and lakes, within their jurisdiction, that collect stormwater via constructed conveyances, will result in a substantial cost to Small MS4s.

62. The MPCA finds that 2009 Minn. Laws 2486 (Minnesota Session Laws 2009, Chapter 172—H.F. No.

1231 Sec. 28 [PREVENTION OF WATER POLLUTION FROM POLYCYCLIC AROMATIC HYDROCARBONS]), requires the inventory and also requires that the MPCA Commissioner incorporate it into this permitting cycle.

63. The MPCA also finds significant revisions were made to the 2011 draft Permit to reduce the costs and burdens to the permittee to the greatest extent possible while still meeting the Polycyclic Aromatic Hydrocarbons legislative directive.

64. The MPCA finds the revised draft Permit requires each Small MS4 to inventory the ponds,

wetlands and lakes, within the permittee’s jurisdiction, that collect stormwater via constructed conveyances. The inventory is accomplished when the permittee submits the following information to the MPCA for each feature inventoried: 1) a unique ID number assigned by the permittee; 2) a geographic coordinate; and 3) type of feature (i.e., pond, wetland or lake), as determined by the best professional judgment of the permittee.

65. The MPCA finds these requirements in the Permit to be reasonable and in conformity with the legislative directive.

Procedures and Schedules for Assessing Stormwater Ponds

66. Commenters raised concerns that Permit conditions requiring the development of procedures and

a schedule for conducting stormwater pond assessments will be “expensive and time‐consuming, adding yet another burden not required by federal or state law without improving water quality.” Further, commenters allege that “the MPCA is using this permit to compel municipalities to collect information that the MPCA would like to have, but that is not required by law.”

67. The MPCA finds ponds are a widely used and a traditional approach to manage and treat

stormwater prior to reaching the lakes, rivers, streams and wetlands of Minnesota. Stormwater ponds are large BMPs effective at capturing large quantities of sediment and other pollutants that attach to sediment particles (e.g., mercury, copper, lead, zinc, arsenic, phosphorus and hydrocarbons). If the ponds are not maintained, sediment accumulates in them causing a decrease in treatment effectiveness. As treatment effectiveness decreases, the discharge of pollutants to water resources increases.

68. The MPCA finds land use changes over time tend to increase impervious surfaces and result in

subsequent increases in stormwater discharge quantity. Where a pond was once sized properly given the land use characteristics at that time, the same pond may be rendered ineffective at treating stormwater decades later due to inadequate capacity.


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69. The MPCA finds that a simple visual observation of a stormwater pond is not sufficient to adequately evaluate treatment effectiveness. For example, while a sediment delta at the inlet pipe may be visible, a true calculation of the sediment quantity of the entire pond cannot be determined without using additional techniques. Similarly, while land use in the immediate vicinity can be visually observed, the MPCA finds additional land use evaluations must be done to accurately determine if the pond is appropriately sized.

70. The MPCA finds the Permit conditions require that permittees: 1) develop procedures for

purposes of evaluating the treatment effectiveness of stormwater ponds within their jurisdiction; and 2) develop a proposed schedule for evaluating stormwater ponds. The MPCA finds these Permit conditions are reasonable.

71. The Permit does not prescribe contents of the procedures, or dictate the schedule for conducting assessments. Setting their own schedule allows the permittee to plan and budget. Under the federal MEP standard, the permittee has great latitude to achieve compliance with this Permit requirement. For example, although permittees must develop a schedule for conducting the assessments within the current Permit term, the actual assessments may not start until after this Permit term, depending on what the MEP is for the particular permittee.

Duplication of Construction Stormwater Program

72. Commenters charge the MPCA’s inclusion of language in the draft Permit requiring the development, implementation, and enforcement of a program under 40 CFR 122.34(b)(4) that is “at least as stringent as the Agency’s general Permit to discharge stormwater associated with construction activity No. MN R100001” is an attempt to shift its obligations under the CWA to regulated Small MS4s for the implementation and enforcement of the MPCA’s own NPDES/SDS General Construction Stormwater Permit.

73. The MPCA finds Minimum Control Measure 4, 40 CFR § 122.34(b)(4), Construction site stormwater

runoff control, requires each regulated Small MS4 to: develop, implement, and enforce a program to reduce pollutants in any stormwater runoff to your small MS4 from construction activities that result in a land disturbance of greater than or equal to one acre.

74. Furthermore, 40 CFR § 122.34(b)(4)(ii)(A) – (F) requires permittees to develop and implement:

(A) An ordinance or other regulatory mechanism to require erosion and sediment

controls, as well as sanctions to ensure compliance, to the extent allowable under State, Tribal or local law;

(B) Requirements for construction site operators to implement appropriate erosion and sediment control best manangement practices;

(C) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at at the constuction site that may cause adverse impacts to water quality;


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(D) Procedures for site plan review which incorporate consideration of potential water quality impacts;

(E) Procedures for receipt and consideration of information submitted by the public, and;

(F) Procedures for site inspection and enforcement of control measures.

75. The MPCA finds under federal law, the MPCA is the delegated NPDES permitting authority for construction stormwater permits and has no intention of shifting its obligation under the CWA to regulated Small MS4s for that program.

76. The MPCA finds the phrase “at least as stringent as” sets a minimum bar in the MS4 Permit and develops statewide consistency for local programs and developers and contractors, and enhances local and MPCA program enforceability. The MPCA further finds MS4 permittees may develop a program that is more stringent than the state program, if they choose. The MPCA finds many regulated Small MS4s have already developed local programs that are “at least as stringent” as the state program, thereby, already meeting this requirement.

77. The MPCA finds “site specific controls are best handled by individual MS4s,” as stated by EPA in the Preamble to the Phase II Stormwater Small MS4 regulation. 64 Fed. Reg. at 68747‐68748 (December 8, 1999). However, the MPCA also finds that inclusion of the proposed draft Permit language is reasonable, will improve regulatory consistency, and will ultimately benefit water quality in Minnesota by requiring those Small MS4s with weaker programs to strengthen them to at least a threshold level common with other regulated Small MS4s and the State.

78. The MPCA finds that the proposed Permit language requiring that local programs be “at least as stringent as” Minnesota’s Construction Stormwater Permit for construction activity erosion, sediment and waste controls is consistent with the approach taken by the recently reissued MS4 stormwater permits for Minneapolis and St. Paul. In addition, this language is consistent with the approach taken by other NPDES delegated state permitting authorities, such as Illinois, Indiana, Ohio, Virginia, and Wisconsin.

79. The MPCA finds the foregoing Permit conditions encourage ongoing coordination and

collaboration between state and local regulatory programs in order to provide consistent messages to construction related trades and efficiently utilize limited resources at both the state and local levels. However, this coordination must be within the bounds of federal law, be practical, and provide for environmental protection.

Post‐Construction Stormwater Management Mitigation and Green Infrastructure 80. Commenters argue that the MPCA exceeds its statutory authority by restricting the means and

methods of “green infrastructure” practices via “rigid on‐site driven post‐construction standards and limited mitigation areas.” Commenters also claim the Permit should not require “green infrastructure” practices (a.k.a low‐impact development [LID]) be given highest preference when developing a program for managing post‐construction stormwater discharges.


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81. The MPCA finds its statutory authority in Minn. Stat. § 115.03, subd. 5c(c) which reads:

The Agency shall develop performance standards, design standards, or other tools to enable and promote the implementation of low‐impact development and other stormwater management techniques. For the purposes of this section, "low‐impact development" means an approach to stormwater management that mimics a site's natural hydrology as the landscape is developed. Using the low‐impact development approach, stormwater is managed on‐site and the rate and volume of predevelopment stormwater reaching receiving waters is unchanged. The calculation of predevelopment hydrology is based on native soil and vegetation. Minn. Stat. § 115.03, subd. 5c (c)(2012).

82. The MPCA finds the Permit requires that permittees develop a regulatory mechanism (e.g.,

ordinance) that requires owners and operators of construction activity to give preference to “green infrastructure” practices when managing post‐construction stormwater runoff. However, the Permit is flexible by allowing any combination of BMPs to be used.

83. The MPCA finds the Permit is sufficiently flexible by requiring “the use of any combination of

BMPs, with highest preference given to Green Infrastructure techniques and practices (e.g., infiltration, evapotranspiration, reuse/harvesting, conservation design, urban forestry, green roofs, etc.)” necessary to meet stormwater discharge Permit conditions from new development or redevelopment construction projects. The phrase “highest preference given” means that those practices should be considered first and should be used along with any other volume, Total Suspended Solids (TSS), or Phosphorus (TP) control BMPs. If infiltration practices to control stormwater volume are prohibited or restricted on a construction site, then preference should be given to other green infrastructure practices (e.g., rain harvesting, evapotranspiration, evaporation, etc…). However, any combination of BMPs that can meet the TSS and TP reductions required by this section of the Permit are acceptable.

84. The MPCA finds management of post‐construction stormwater discharges on the site of a construction activity is necessary and prudent to comply with Minnesota’s non‐degradation rules. (See e.g. Minn. R. 7050.0180 non‐degradation for Outstanding Resource Value Waters, Minn. R. 7050.0185 non‐degradation for All Waters, and Minn. R. 7050.0186 Wetland Standards and Mitigation.)

85. However, the MPCA recognizes there are limitations that may make management of all post‐construction stormwater discharges on‐site either impossible, cost prohibitive, or environmentally unsound. Examples of such limitations include, groundwater depth, soil type, proximity to karst features, contaminated soils or groundwater, proximity to drinking water supply management areas, lack of right‐of‐way, or cost effectiveness.

86. In response to concerns raised by stakeholders, the MPCA revised the Permit language to provide flexibility while protecting waters of the state as required by Minnesota’s non‐degradation rules. Permit revisions include the expansion of off‐site mitigation options to address concerns raised


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with Department of Natural Resources (DNR) Catchment Areas, and the use of regional BMPs for mitigation, and the Permit now includes exceptions for stormwater volume control in specific, limited circumstances as described above.

87. The MPCA finds the Permit’s promotion of green infrastructure is statutorily authorized by Minn. Stat. § 115.03, subd. 5c(c), and the Permit revisions allow flexibility for permittees while protecting waters of the state from degradation.

Post‐Construction Management of Stormwater Volume 88. Commenters claim the MPCA exceeds its statutory and regulatory authority by regulating post‐

construction stormwater discharge volume, in addition to its regulation of the pollutants TSS and TP.

89. The MPCA finds volume is not a pollutant and the draft Permit conditions do not regulate it as such. The draft Permit conditions regarding volume are included in the Permit to prevent, control or abate water pollution by promoting the management of stormwater on‐site.

90. The MPCA finds that Permit conditions requiring post‐construction management of stormwater

volume from new development and redevelopment construction activity do not exceed, and are within, Minnesota’s statutory authority based on, but not limited to, the following statutes and rules: A. Minn. Stat. § 103A.205 CONSERVATION POLICY FOR RAINWATER, reads:

It is the policy of the state to promote the retention and conservation of all water precipitated from the atmosphere in the areas where it falls, as far as practicable. Except as otherwise expressly provided, all officers, departments, and other agencies of the state or political subdivisions having any authority or means for constructing, maintaining, or operating dams or other works or engaging in other projects or operations affecting precipitated water shall use the authority, as far as practicable, to effectuate the policy in this section. B. Minn. Stat. § 115.03 (POWERS AND DUTIES), subd. 1, (Generally) , which

reads:

The agency is hereby given and charged with the following powers and duties: (a) to administer and enforce all laws relating to the pollution of any of the

waters of the state; *** (b) to adopt, issue, reissue, modify, deny, or revoke, enter into or enforce

reasonable orders, permits, variances, standards, rules, schedules of compliance, and stipulation agreements, under such conditions as it may prescribe, in order to prevent, control or abate water pollution, or for the installation or operation of disposal systems or parts thereof, or for other equipment and facilities…


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C. Minn. Stat. § 115.03, subd. 5c(c) (Regulation of storm water discharges), specifically refers to managing post‐construction stormwater discharge volume, on‐site, and states:

The Agency shall develop performance standards, design standards, or other tools to enable and promote the implementation of low‐impact development and other stormwater management techniques. For the purposes of this section, "low‐impact development" means an approach to stormwater management that mimics a site's natural hydrology as the landscape is developed. Using the low‐impact development approach, stormwater is managed on‐site and the rate and volume of predevelopment stormwater reaching receiving waters is unchanged. The calculation of predevelopment hydrology is based on native soil and vegetation. D. Minn. Stat. § 115.01, subd. 13(b), specifically defines “water pollution” to

include:

the alteration made or induced by human activity of the chemical, physical, biological, or radiological integrity of waters of the state.

E. Minn. Stat. § 115.03, subd. 5, (Agency authority; national pollutant

discharge elimination system. Powers and Duties), states:

Notwithstanding any other provisions prescribed in or pursuant to this chapter and, with respect to the pollution of waters of the state, in chapter 116, or otherwise, the agency shall have the authority to perform any and all acts minimally necessary including, but not limited to, the establishment and application of standards, procedures, rules, orders, variances, stipulation agreements, schedules of compliance, and permit conditions, consistent with and, therefore not less stringent than the provisions of the Federal Water Pollution Control Act, as amended, applicable to the participation by the state of Minnesota in the national pollutant discharge elimination system (NPDES); provided that this provision shall not be construed as a limitation on any powers or duties otherwise residing with the agency pursuant to any provision of law.

F. Minn. R. 7001.0150 (Terms and conditions of permits), subp. 2, (Special

conditions), states:

Each draft and final permit must contain conditions necessary for the permittee to achieve compliance with applicable Minnesota or federal statutes or rules…and any conditions that the agency determines to be necessary to protect human health and the environment.


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G. Minn. R. 7001.0150 (Terms and conditions of permits), subp. 3.B (General conditions), states:

The agency's issuance of a permit does not prevent the future adoption by the agency of pollution control rules, standards, or orders more stringent than those now in existence and does not prevent the enforcement of these rules, standards, or orders against the permittee.”

H. Minn. R. 7001.1080 (Establishment of special conditions for National

Pollutant Discharge Elimination System permits), subp. 3 (Best Management Practices), states:

If the commissioner finds that it is not feasible to establish an effluent limitation, standard, or prohibition using a numerical value, the commissioner shall establish permit conditions requiring the implementation by the permittee of best management practices. The commissioner may also require implementation of best management practices if the commissioner finds that this requirement is necessary to achieve compliance with an effluent limitation, standard, or prohibition or to comply with Minnesota or federal statutes or rules…. I. Minn. R. 7001.1080 (Establishment of special conditions for National

Pollutant Discharge Elimination System permits), subp. 9 (Conditions in reissued permits) states:

In a reissued permit the commissioner shall establish effluent limitations, standards, or prohibitions that are at least as stringent as the effluent limitations, standards, or prohibitions or conditions in the previous permit unless the commissioner establishes less stringent effluent limitations, standards, or prohibitions in accordance with part 7050.0212.”

J. Minn. R. 7090.0010 (SCOPE), reads: This chapter establishes the storm water permit program to regulate discharges of storm water from municipal separate storm sewer systems, construction activities, and industrial activities for purposes of abating water pollution associated with storm water discharges from these sources.

91. In addition, the MPCA also finds a compelling scientific basis to support the inclusion of the permit condition for managing stormwater volume.

92. The MPCA finds in the natural, undisturbed environment, precipitation is intercepted by trees and other vegetation, stored in natural depressions until evaporated, or absorbed by soils and humus on the surface of the ground. This moisture is then used by plants, recharges shallow groundwater that enters streams, lakes and wetlands, or infiltrates more deeply to recharge deeper aquifers. During most storms, very little rainfall becomes stormwater runoff.


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93. The MPCA finds increased volume of stormwater discharges resulting from construction activity related to new development or redevelopment is induced by human activity and alters the physical integrity of waters of the state.

94. The MPCA finds traditional development practices, however, disrupt the water holding capacity of the natural environment. Development results in impervious surfaces such as roads, driveways, sidewalks, and buildings. Remaining soils, even those under vegetated areas, are often heavily compacted and relatively impervious. As a result, even a small rainfall event creates stormwater runoff that is carried away by curb and gutter systems.

95. The MPCA finds the collective force of the increased stormwater flows can scour streambeds, erode stream banks, and cause large pulses of sediment and other entrained pollutants, such as metals, nutrients and trash, to enter downstream receiving waters. The MPCA finds the research shows a high correlation between the area of impervious surface in a watershed and the degree of overall degradation of downstream water quality and aquatic habitats.

96. Over the past three years, MPCA staff examined scientific research and approaches employed by other states and governmental units to determine reasonable performance and design methods that would promote the implementation of low‐impact development that mimics a site’s natural hydrology as the landscape is developed.

97. Conclusions made by MPCA staff of this research was that a variety of methods exist to achieve the proposed Permit conditions to manage stormwater discharge volume on the site of a construction activity. These methods reasonably represent a volume that is fully infiltrated in a modern‐day natural condition and thus should be managed on‐site to restore and maintain the pre‐development hydrology of receiving waters.

98. The MPCA finds the draft Permit requires the permittee incorporate in their Regulatory Mechanism (e.g., ordinance, contracts, permits, etc.) conditions that require owners and operators of construction activity within the permittee’s jurisdiction, and that discharge to the permittee’s MS4, to: 1) address discharges of stormwater volume from new development so there is no net increase (on an average annual basis) from pre‐project conditions, and; 2) address discharges of stormwater volume from redevelopment projects so there is a net reduction (on an average annual basis) from pre‐project conditions.

99. The MPCA finds that the management of this volume is generally feasible, and has been successfully implemented by various cities and water management organizations in the Twin Cities Metro Area and in many locations around the nation, under a wide variety of climates and conditions. However, the MPCA recognizes that for a particular site, a permittee may not be able to comply fully with this Permit condition because of limiting circumstances (e.g., where infiltration is prohibited or limited due to the presence of soil or groundwater contamination, insufficient depth of groundwater, inadequate soils, proximity to active karst features, or lack of right‐of‐way on linear projects). Under these circumstances, a lesser volume control is acceptable under the terms of the Permit as long as other non‐infiltration volume control BMPs are implemented to the MEP.


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100. The research listed in Attachment A. of the 2011 and 2012 Response to Comments (Appendices C and E) of this Board Item, further supports the need for better management of stormwater volume by retention and the MPCA’s proposed Permit conditions for the volume of water that must be managed on‐site.

101. As required by the 1987 ammendments to the CWA, the EPA developed and promulgated

regulations for stormwater discharges (1999) from Small MS4s. Delegated permitting authorities are required to issue permits to Small MS4s that “will require at a minimum that you develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from your MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act”. [40 CFR § 122.34(a)].

102. The MPCA finds the condition in the draft Permit to manage stormwater volume from new development and redevelopment construction activity is authorized by state regulations, is supported by science, and is reasonable.

Setting Standards Without Rulemaking 103. Commenters claim the draft Permit represents an unlawful attempt to avoid rulemaking by:

1) setting statewide discharge standards for new development and redevelopment, both during construction and after construction is complete, in all permitted MS4 cities; and 2) dictating statewide urbanized area standards for enforcement laws and enforcement procedures covering illicit discharges, construction practices, and post‐construction standards. Commenters claim such actions are only properly accomplished through rulemaking.

104. The MPCA finds draft Permit conditions related to new development and redevelopment construction activity, both during construction and after construction is complete (MCM 4 and MCM 5 of the draft Permit), are: 1) consistent with 40 CFR 122.34(b)(4) and (5), and; 2) have been included in the permit in accordace with the plain meaning of federal regulations and Minnesota state authorities as listed in finding # 90.

105. The MPCA finds draft Permit conditions requiring an MS4 permittee to enforce their Regulatory Mechanism(s) for illicit discharges (MCM 3), construction site stormwater runoff (MCM 4) and post‐construction stormwater management (MCM 5), are specifically required by 40 CFR 122.34(b)(3), (4), and (5).

106. The MPCA finds it prudent and reasonable to recognize and address concerns communicated by the regulated community regarding local enforcement of their Regulatory Mechanism(s). Therefore, the MPCA reevaluated draft Permit language to minimize the administrative and cost burdens and maximize flexibility for the permittee. As a result, the MPCA revised the draft Permit language and removed many of the requirements for Enforcement Response Procedure (ERP) development (such as development of specific procedures for timing and escalated tools for enforcement), but did not remove the basic requirement to have written ERPs.

107. The MPCA finds the 2006 MS4 permit conditions and the draft Permit conditions are substantially similar with regard to the permittees’ local enforcement of their Regulatory Mechanism(s).


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108. The MPCA finds the draft Permit conditions are within the MPCA’s delegated NPDES permitting

authority, are specifically included and in accordance with federal regulations and Minnesota law, and do not constitute unpromulgated rulemaking.

Usurping Municipal Land Use and Zoning Authority

109. Commenters claim the MPCA usurps the planning and land use authority of municipalities by

including development and redevelopment standards that “dictate local post‐development land use conditions and prevent cities from adopting regional solutions to stormwater pollutant controls.”

110. Commenters also allege the draft Permit violates Separation of Powers principals by requiring the

development of Standard Operating Procedures (SOPs) and ERPs and requiring the use of certain MPCA “mandated” enforcement tools.

111. The MPCA considered the comments and removed draft Permit conditions requiring development of specific procedures for timing and escalated tools for enforcement by the permittee. However, the MPCA maintained the basic requirement that ERPs be developed, implemented and enforceable to the MEP as required by 40 CFR § 122.34(b)(4), MCM 4. The Permit allows flexibility in that it requires “a regulatory mechanism” which could be an ordinance, a contractural agreement or any other enforceable measure the permittee chooses.

112. The MPCA is mindful of the nondegradation provisions in Minn. R. 7050.0180, 7050.0185, and

7050.0186. The MPCA finds the Permit requirements to drive localized management of stormwater are critical to comply with nondegradation for “ all waters” as required by Minn. R. 7050.0185. Localized, on‐site stormwater management is the most effective approach for the protection of the environment and the nondegradation of the specific waters effected by construction activity. However, the MPCA recognizes the limitations with this approach and has included Permit conditions that allow flexibility while still protecting waters of the state. The Permit requirements allow flexibility where on‐site conditions limit the use of stormwater management BMPs (e.g., soil types, groundwater depth, karst features, contaminated soils and groundwater etc…), such that the permittee may manage stormwater off‐site anywhere within the MS4’s jurisdiction.

113. The MPCA finds the land use and planning authority of the municipal permittees is not

compromised by the Permit requirements which are rooted in the federal regulations at 40 CFR § 122.34(b)(4) and (5), MCMs 4 and 5, and state authorities such as Minn. Stat. § 115.03, subd. 5c(c) and Minn. R. 7090.1040, subp. 1. D and E.

114. The MPCA also finds the Permit requirements to drive localized management of stormwater are in accordance with the policy of the state to promote the retention and conservation of all water precipitated from the atmosphere in the areas where it falls, as far as practicable. Minn. Stat. § 103A.205 CONSERVATION POLICY FOR RAINWATER.


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Standard Operating Procedures (SOPs) and Enforcement Response Procedures (ERPs)

115. Commenters claim Permit conditions requiring the development and implementation of SOPs and ERPs are administravely burdensome, costly, an ineffective use of resources, have no direct effect on water quality and, therefore, should not be enforceable provisions of the Permit.

116. The MPCA finds 40 CFR § 122.34(b)(3) requires a permittee develop, implement and “enforce” a program to detect and eliminate illicit discharges. The permittee must: 1) develop and implement a “plan” to detect and address non‐stormwater discharges, and 2) prohibit non‐stormwater discharges into the MS4 and implement appropriate “enforcement procedures and actions.” 40 CFR § 122.34(b)(3).

117. The MPCA finds 40 CFR § 122.34(b)(4) requires a permittee develop, implement and “enforce” a

program for construction site stormwater runoff control. The permittee must develop and implement: 1) “procedures” for site plan review; 2) “procedures” for receipt and consideration of information submitted by the public; and 3) “procedures” for site inspection and “enforcement” of control measures.

118. The MPCA finds that 40 CFR § 122.34(b)(5) requires a permittee develop, implement and

“enforce” a program for post‐construction stormwater management for new development and redevelopment. The permittee must: 1) “develop and implement strategies” which include a combination of BMPs appropriate for the community; and 2) use a “regulatory mechanism” to address post‐construction stormwater runoff.

119. The MPCA finds Permit conditions requiring the development and implementation of

“procedures” for appropriate program requirements, and “procedures” for appropriate program “enforcement” are consistent with federal regulations and are reasonable.

120. However, the MPCA also finds it prudent to recognize and address concerns communicated by the

regulated community. Therefore, the MPCA reevaluated draft Permit language to minimize the administrative and cost burden and maximize flexibility for the permittee. As a result, the MPCA revised the draft Permit language and removed specific components for ERP development (such as development of specific procedures for timing and escalated tools for enforcement), but did not remove the basic requirement to have ERPs. Furthermore, Permit language was revised to remove all requirements to develop SOPs, but did not remove requirements to develop “procedures” or “written procedures” where federally required or necessary.

Total Maximum Daily Loads (TMDLs) and Waste Load Allocations (WLAs) 121. Commenters raised concerns that the MPCA will be unable to provide applicants with the

necessary information (e.g., titles of EPA approved TMDLs, applicable waste load allocations (WLAs), including units, etc.) required to complete the application and SWPPP document.

122. Further, commenters claim the information required to complete the SWPPP document,

specifically regarding TMDL related information, is complex and will require significantly more time to complete and submit than the Permit schedule allows.


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123. The MPCA finds federal requirements for the incorporation of NPDES Permit conditions to address

EPA approved TMDLs requires an approach to developing discharge requirements consistent with the goals and assumptions of the TMDL [40 CFR 122.44(d)(1)(vii)(B)]. The Permit requires the applicant develop a compliance schedule for WLAs (including target dates for meeting applicable WLAs) that are not being met at the time of application. The compliance schedule must contain interim milestones, which may be expressed as the implementation of BMPs, to be completed in the current five‐year permit term, demonstrating progress in pollutant reduction, consistent with the goals of the TMDL and applicable WLAs. In accordance with the May 6, 2003, Minnesota Court of Appeals decision Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency, (660 N.W.2d 427, 434 ‐ 435 (Minn. App.2003)) it is necessary for this information to be collected at the time of application to ensure the public has the opportunity to provide comment prior to the MPCA extending coverage under this Permit to the applicant.

124. The MPCA finds Minn. R. 7001.0150, subp, 2.A. provides the MPCA with the necessary regulatory authority to include a Permit condition requiring the applicant to propose a compliance schedule for purposes of demonstrating progress in pollutant reduction, consistent with the goals of the TMDL and applicable WLAs.

125. The MPCA also finds in order to significantly reduce the burdens and complexity for applicants in completing the TMDL portion of the SWPPP document, the MPCA will provide the applicant with the core information necessary (i.e., TMDL project name, numeric WLAs including units, type of WLA, pollutant of concern, and applicable flow data for each applicable WLA) to complete the SWPPP document in accordance with the revised Permit language. However, the Permit allows each applicant the flexibility to choose the details of the compliance schedule and what specific BMPs will be used.

126. The MPCA also finds the application schedule outlined in the Permit has been revised to allow all applicants with assigned WLAs associated with EPA‐approved TMDLs to have 150 days, after the effective date of the Permit, to prepare and submit the application, which includes the SWPPP document, to the MPCA.

127. The MPCA finds previous Permit language requiring a “description” of applicable WLAs has been removed. The proposed Permit now requires WLA data that will be provided to applicants via guidance materials prepared by the MPCA prior to the effective date of the Permit.

128. The LMC commented that for many TMDLs, “most water quality violations occur during relatively high flows in the receiving water;” “that high flows usually result during periods of significant precipitation or saturated soils,” and; “that most stormwater management techniques are only effective during small storm events or when the soils are not already saturated, especially techniques that address water quality and volume control, such as green infrastructure” (e.g., infiltration BMPs). The LMC claims the Post‐Construction Stormwater Management Permit conditions, emphasizing use of green infrastructure techniques, “leaves a permittee with almost no available stormwater management techniques or strategies to achieve the required load reduction.”


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129. The MPCA finds the Permit does not discourage the use of any BMPs, including regional stormwater ponding for meeting WLAs. The Permit allows the use of any combination of BMPs, with highest preference given to green infrastructure techniques, when meeting the requirement of “no net increase” or a “net reduction” in volume, and for TSS and TP. It is widely recognized that most municipalities have requirements for matching the pre‐construction and post‐construction rates of stormwater runoff for the 100 year storm event for flood control purposes. When used in conjunction with green infrastructure practices, flood control ponds can be smaller in size because less volume from each storm event will make it to the pond. These flood control ponds provide stormwater treatment during high flows which help permittees meet WLAs even in high flow conditions. These practices work together to comprise effective stormwater management for urbanized areas.

130. The MPCA finds the Permit allows an applicant to propose a compliance schedule, including any combination of BMPs reflecting the “maximum extent” that is “practicable” for the applicant, to address pollutants of concern. The MPCA also finds that progress in reducing pollutant loads is the goal. The Permit requires permittees to reduce pollutant loads to the MEP. It is understood that a permittee may not fully achieve the reductions called for in every applicable WLA during this 5 year Permit term.

131. The LMC comments that “TMDL reports frequently provide no guidance or useful information

about how to distribute the WLAs to the individual MS4s listed” and that “there is no existing guidance or experience to guide the process of distributing categorical WLAs.” The LMC also alleges each Small MS4 is required to “derive” its indivdual portion of a categorical WLA, which if determined to be incorrect by the MPCA, would require development of a new SWPPP and SWPPP document.

132. The MPCA finds it is not necessary for categorical WLAs to be distributed individually among the

MS4s included in a categorical WLA. The MPCA will require the same information be submitted regardless of WLA type (i.e., individual or categorical). This includes BMPs to be implemented in the current Permit term, not a specific number, consistent with the assumptions and goals of the TMDL. The MPCA further finds it is not necessary to distribute the loads. In many cases, a percent reduction is applied when a categorical WLA is assigned, and that reduction applies to all permittees and does not require further delineation. The MPCA also finds that an applicant is not required by the Permit to “derive” an individual portion of a WLA while preparing a SWPPP document.

133. The LMC’s comments suggest that TMDLs include WLA “units” in multiple forms, making it difficult

for an applicant to provide a description of each applicable WLA.


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134. The MPCA finds the Permit no longer requires an applicant to provide a “description” of each applicable WLA. Further, the guidance being developed by the MPCA will be made available to the permittee, and will include the necessary information regarding “units” for the applicant to complete the SWPPP document.

135. Commenters express concern and are unclear about the methodology and MPCA expectations with regard to annually estimating cumulative load reductions for each pollutant of concern associated with each applicable WLA.

136. The MPCA finds that estimates of cumulative load reduction will be required at the time of Annual

Report submittal. The MPCA also finds that guidance for estimating cumulative load reductions is currently being prepared and will be made available to regulated Small MS4s prior to the first Annual Report submittal under the reissued Permit. The MPCA expects multiple methods for calculating cummulative load reductions to be acceptable and the guidance will address those methods.

Municipal Facilities Inventory

137. Commenters claim Permit conditions requiring the permittee to inventory municipally owned

“facitlities” is a “superfluous task and only reduces the time being spent in actually implementing on the ground BMPs to protect the resources” and that this requirement should be eliminated from the draft Permit.

138. The MPCA finds 40 CFR § 122.34(b)(6) and 40 CFR § 122.26(d)(2)(iv)(A)) of the federal regulations require a permittee to develop a program to: 1) prevent or reduce the amount of stormwater pollution generated by municipal operations and conveyed into receiving waters; 2) train employees how to incorporate pollution prevention/good housekeeping techniques into municipal operations; and 3) identify appropriate BMPs and measurable goals for preventing or reducing the amount of stormwater pollution generated by municipal operations.

139. The MPCA also finds that in order to develop an effective program to reduce the discharge of pollutants from municipal operations as required by 40 CFR § 122.34(b)(6), MCM 6, a necessary step is to determine which facilities may have negative impacts on water quality and to find solutions (i.e., BMPs) to reduce the discharge of pollutants.

140. Municipally owned/operated facilities serve as hubs of activity for a variety of municipal staff from many different departments. Some municipalities have one property where all activities take place (e.g., the municipal maintenance yard), whereas others have several specialized facilities such as composting, solid waste handling and transfer, pesticide storage, salt storage, etc. An inventory of such facilities will help staff responsible for stormwater compliance build a better awareness of their locations within the MS4 and their potential to contribute pollutants to stormwater runoff. Each municipal facility with the potential to discharge pollutants to stormwater will likely require different strategies (i.e., BMPs) depending on the nature of activities that occur there and the types of materials stored and used.


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141. Taking this into consideration, the MPCA finds it reasonable to include a Permit condition that requires the permittee to develop and maintain an inventory of municipally owned “facilities” that contribute pollutants to stormwater runoff.

Contested Case Hearing Petitions

142. Contested case hearing petitions were received from the City of Eagan (City) and the LMC. 143. The City’s petition (Appendix F) was received on July 15, 2011. 144. By letters dated July 15, 2011, (Appendix G) and July 23, 2012, (Appendix H) the LMC petitioned

the MPCA to hold a contested case hearing on the proposed draft Permits publicly noticed on May 31, 2011, and May 21, 2012, respectively.

Evaluation of the Contested Case Hearing Petitions

145. In order to be valid, contested case hearing petitions on a proposed permit must be received

within the public comment period on the permit. Minn. R. 7000.1800, subp. 1.A. 146. The MPCA finds the City of Eagan’s petition for a contested case hearing dated July 15, 2011, was

timely and in accordance with Minn. R. 7000.1800, subp. 1.A.

147. The MPCA finds the LMC’s petitions for a contested case hearing dated July 15, 2011, and July 23, 2012, were timely and in accordance with Minn. R. 7000.1800, subp. 1.A.

148. Minnesota Rule 7000.1800, subp. 2.A. Contested case petition contents, reads:

A. A petition for a contested case hearing shall include the following

information: (1) a statement of the reasons or proposed findings supporting a board

or commissioner decision to hold a contested case hearing pursuant to the criteria in Part 7000.1900, subpart 1; and

(2) a statement of the issues proposed to be addressed by a contested case hearing and the specific relief sought or requested resolution of the matter.

149. The MPCA finds the City of Eagan’s petition for a contested case hearing dated July 15, 2011,

contains the information required in Minn. R. 7000.1800, subp. 2A.

150. The MPCA finds the petitions for a contested case hearing dated July 15, 2011, and July 23, 2012,

contain the information required in Minn. R. 7000.1800, subp. 2.A. 151. The MPCA notes the information specified in Minn. R. 7000.1800, subp. 2.B. is not required in a

contested case hearing petition, but instead, is information a petition for a contested case hearing may also include, to the extent known by the petitioner. While not required, this is information


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helpful to the MPCA as it considers whether a hearing will aid the MPCA in making a final decision. The information specified in Minn. R. 7000.1800, subp. 2.B. is:

(1) a proposed list of prospective witnesses to be called, including experts, with a brief description of the testimony they will provide or a summary of evidence to be presented at a contested case hearing;

(2) a proposed list of publications, references, or studies to be introduced and relied upon at the hearing; and

(3) an estimate of the time required for the petitioner to present the matter at a contested case hearing.

152. The MPCA finds the City of Eagan’s petition did not include any of the information specified in

Minn. R. 7000.1800, subp. 2.B. 153. The MPCA finds LMC’s petitions include a description of prospective witnesses (some by name,

others by job title) and provide a list of the materials and/or witnesses the LMC would provide at a hearing, in accordance to Minn. R. 7000.1800, subp. 2.B.

154. The criteria for MPCA’s decision whether to grant a petition for a contested case hearing is

governed by Minn. R. 7000.1900, subp. 1, CRITERIA TO HOLD CONSTESTED CASE HEARING, which states:

Subpart 1. Board or commissioner decision to hold contested case hearing. The board or commissioner must grant the petition to hold a contested case hearing or order upon its own motion that a contested case hearing be held if it finds that:

A. there is a material issue of fact in dispute concerning the matter pending before the board or commissioner;

B. the board or commissioner has the jurisdiction to make a determination on the disputed material issue of fact; and

C. there is a reasonable basis underlying the disputed material issue of fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the matter.

155. The burden of proof is on the petitioner to demonstrate that all three criteria have been met.

156. A “material issue of fact” means a “fact question, as distinguished from a policy question, whose

resolution could have direct bearing on a final board or commissioner decision.” Minn. R. 7000.0100, subp. 5b. (2011).

157. The party requesting a contested case hearing has the “burden of demonstrating the existence of

material facts that would aid the MPCA before [it is] entitled to a contested case hearing.” In re Solid Waste Permit for the NSP Red Wing Ash Disposal Facility, 421 N.W.2d 398, at 404 (Minn.App.1988), review denied, (Minn. May 18, 1988).


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158. The MPCA evaluated whether the City’s petition and the LMC petitions met all three criteria in Minn. R. 7000.1900, subp. 1.

City of Eagan’s Petition The City’s Petition Issue One: 159. The City’s first issue claims “the MPCA significantly increased the burden on the City and

unnecessarily exacerbated the difficulty of the City’s review of the draft Permit,” because in October 2010, the MPCA ceased discusssions with regulated cities regarding the draft Permit. The City claims “[t]his decision eliminated what certainly would have been over seven months of the same constructive stakeholder communication that had been successfully occuring for over five years through the Minnesota Cities Stormwater Coalition (MCSC)….”

160. The City’s Petition Issue One continues, “had the process with regulated cities been active the number of comments and requested points of clarification would have been significantly reduced” and the City’s “understanding of the intent and meaning of the draft permit language would have been considerably clearer” and the “MPCA’s public informational meetings June 14th and 16th would have been much more productive.” “As a part of its review, the City has had to work through a very large number of evolving comments and points of clarification that have been shared with the City by the MCSC and other regulated cities.”

161. The MPCA finds the City’s Petition Issue One fails to raise a material issue of fact as required by

Minn. R. 7001.1900, subp. 1, criterion A, and instead raises a policy question. Minn. R. 7000.0100, subp. 5.b. (2011) specifically distinguishes a “material issue of fact” from a policy question. Because the City raises a policy question and does not raise a material issue of fact, the City is not entitled to a contested case hearing.

162. The MPCA finds there was extensive stakeholder involvement for the development of the draft

Permit. The City’s petition acknowledges stakeholder involvement was over a period of years. When MPCA staff began to finalize the 2011 draft permit for public notice, no additional stakeholder meetings were held and none were required under Minnesota statutes or rules.

163. After public comments were received from the 2011 comment period, revisions were made to the

draft permit and additional stakeholder meetings were held. 164. The MPCA notes the City of Eagan did not reiterate its Petition Issue One and did not petition for a

contested case hearing when the revised draft permit was publicly noticed in 2012. 165. The MPCA finds the City’s Petition Issue One also fails to establish Minn. R. 7001.1900, subp. 1,

criterion C, because there is not a “reasonable basis underlying the disputed material issue of fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the matter.”


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The City’s Petition Issue Two:

166. The City claims there was an ”insufficent amount of time for the City and any City residents to review and comment appropriately” on the 2011 draft Permit.

167. The City’s Petition claims a contested case hearing would address the insufficient amount of time

the City and the City’s residents had to understand fully and comment appropriately on the draft permit.

168. The City’s requested relief was a new public notice and comment period for 60 days.

169. The MPCA finds the 2011 draft permit’s public notice and comment period was initially for

45 days. After the City’s petition was received, the public notice and comment period was extended for an additional 21 days, for a total of 66 days.

170. In addition, revisions were made to the 2011 draft permit and then the 2012 draft Permit was on

public notice for 63 days. The MPCA further finds the public notice and comment periods were in addition to the multiple stakeholder meetings that occurred before and after the 2011 public notice period. The stakeholder meetings provided additional opportunities for commenting and seeking clarifications.

171. The MPCA finds the City did not reiterate Petition Issue Two and did not petition for a contested case hearing in regard to the 2012 draft Permit.

172. The MPCA finds the City and its residents had adequate opportunity to review and comment

appropriately on the 2011 draft permit and the 2012 draft Permit.

173. The MPCA finds the City’s Petition Issue Two fails to meet Minn. R. 7001.1900, subp. 1, criterion A, because it fails to raise a material issue of fact.

174. The MPCA also finds the City’s Petition Issue Two fails Minn. R. 7001.1900, subp. 1, criterion C, because there is not a “reasonable basis underlying the disputed material issue of fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the matter.”

The LMC’s Petitions

175. Both of the 2011 and 2012 LMC Petitions for a contested case hearing raise two alleged material issues of fact.1 The first issue concerns the cost of compliance to individual MS4 permittees. The second issue is whether the Permit requirements exceed the MEP standard. While the MPCA

1 The LMC’s 2011 petition for a contested case hearing begins at page 26 of its “Public Comment and Petition for Contested Case Hearing” (Appendix G). The LMC’s 2012 petition for a contested case hearing begins at page 35 of its 2012 submittal bearing the same title (Appendix H). The LMC’s petitions contain various subissues within each issue’s explanatory paragraphs and these findings use corresponding subheadings.


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notes a few changes to the supporting paragraphs between the two LMC Petitions, the alleged material issues of fact in each contested case hearing petition are substantially similar.

LMC Petitions Issue One: 176. LMC Petitions Issue One: “What are the Costs to Comply with the Draft Permit and Are Those

Costs Overly Burdensome, Unreasonable and in Excess of Affordability Standards?” 177. The LMC’s petitions state “before imposing requirements on municipalities of the magnitude set

forth in the Draft Permit, the costs should be understood, and once understood, evaluated as to whether they are practicable and affordable by the regulated communities.” The LMC asserts “the costs to comply with the draft permit are excessive, not practicable and not affordable by their citizen populations.”

178. There is no dispute that the costs associated with compliance should be understood before

requirements are imposed upon municipalities. This aspect of Petition Issue One fails to meet criterion A. of Minn. R. 7000.1900, subp. 1, because it does not raise a dispute concerning a material issue of fact.

179. Similarly, there is no dispute that costs should be evaluated to determine whether they are practicable and affordable by the regulated communities. This aspect of Petition Issue One fails to meet criterion A. of Minn. R. 7000.1900, subp. 1, because it does not raise a dispute concerning a material issue of fact.

‐‐‐ THE UNIQUE NATURE OF THE MS4 GENERAL PERMIT/DETERMINATION OF MEP FOR EACH INDIVIDUAL PERMITTEE ‐‐‐

180. The MPCA finds the unique nature of the MS4 Permit program requires that costs are considered when determining MEP and when the permittee develops their individually tailored program to reduce the discharge of pollutants to stormwater. The application, including the SWPPP document submitted by each permittee, proposes what that permittee views as the MEP. The SWPPP document is reviewed by the MPCA and placed on public notice for comment. Therefore, the MPCA finds the MS4 Permit program itself mandates and incorporates the case‐by‐case consideration of MEP for each Small MS4 applicant during the processing of each MS4’s application.

181. The MPCA finds the extent to which a regulated Small MS4 develops and implements their SWPPP, depends on that permittee’s individual analysis of such factors as the: conditions of receiving waters, specific local concerns, and other aspects included in a comprehensive watershed plan. Other factors may include MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance. [64 Fed. Reg. 68754 (1999)].


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182. The MPCA finds the extent to which a regulated Small MS4 can develop, implement and enforce a SWPPP to meet Permit requirements will vary, because one permittee’s “MEP” is not necessarily equal to anothers.

183. The MPCA finds that stormwater Permit applicants will propose a SWPPP document, including BMPs, that reflects the applicant’s MEP to meet each of the federally required six MCMs and other SWPPP requirements. Applicants will consider costs as their individual SWPPP document is prepared for submittal to the MPCA for review and public comment. The MPCA finds that each applicant’s ability to finance the program, and any strain put on the community served by that individual applicant to finance the program, will be examined under the context of MEP as the SWPPP document is prepared for submittal to the MPCA.

184. Each regulated Small MS4 itself determines what BMPs it will incorporate to meet Permit conditions. Each Small MS4 examines its ability to finance the program as part of the basis for what it submits to the MPCA for review as its SWPPP document. Based on the unique MS4 permitting process, the MPCA finds that LMC’s Issue One does not raise a dispute concerning a material issue of fact and, therefore, fails to meet criterion A of Minn. R. 7000.1900, subp. 1.

185. The MPCA further finds that the individual SWPPP document and the individual determination of MEP for each permittee, examines and resolves the issue of what a flexible and specifically tailored program would be for each permittee.

186. The MPCA finds that holding a contested case hearing to examine the practicability and affordability of the costs to each regulated Small MS4 would not aid the MPCA in determining whether to reissue this general Permit. The issue of cost has been a paramount consideration for the purposes of reissuing the general Permit. The issue of cost will also be vetted on a case‐by‐case basis, for each regulated Small MS4, in the public notice and comment process regarding each Small MS4’s proposed SWPPP document. The MPCA, therefore, finds the LMC’s Petition Issue One also fails to meet criterion C. of Minn. R. 7000.1900, subp. 1.

187. The MPCA finds the unique MS4 general permit process insures that Permit requirements will not

be imposed on municipalities until the costs to comply with the draft Permit are evaluated for each MS4 permittee on an individual basis, specifically regarding whether the costs are practicable and affordable by that regulated community.

‐‐‐ MPCA CONSIDERATION OF COSTS OF COMPLIANCE FOR PERMIT ‐‐‐

188. In Petition Issue One, the LMC states, “The LMC must assume the MPCA considered the costs to comply with the Permit and deemed them to be reasonable, however, there is no indication that the MPCA gave any meaningful attention to this issue.”

189. The MPCA finds this aspect of Issue One does not meet criterion A. of Minn. R. 7000.1900, subp. 1,

because it does not raise a dispute concerning a material issue of fact. The LMC’s unsubstantiated assertions that “there is no indication that MPCA gave any meaningful attention to this issue” and “the costs to comply with the draft permit are excessive, not practicable and not affordable by their citizen populations” do not raise a material issue of fact in dispute.


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190. A review of the record reflects substantial support that the MPCA considered the costs to comply

with the Permit requirements. The MPCA finds the cost of compliance with Permit conditions was considered and discussed, both overall and on an individual permittee level, throughout the stakeholder and Permit development processes. The MPCA staff met with stakeholders on 24 occasions and met with representatives of the Minnesota Legislature. Cost was a paramount consideration for stakeholders and emphasized to some degree in every context. The Responses to Comments (Appendices C and E) and the many revisions to the Permit further demonstrate the MPCA’s attention to stakeholder cost‐related concerns.

191. The MPCA further finds for the purpose of reissuing of this Permit, the “due consideration”

required by Minn. Stat. § 116.07, subd. 6, does not mandate that the MPCA determine the cost of compliance for every individual Small MS4 permittee to comply with every Permit condition.

192. The MPCA finds the federal MEP standard includes consideration of affordability issues for each Permit applicant. EPA has intentionally not provided a precise definition of MEP to allow maximum flexibility in MS4 permitting. MS4s need the flexibility to optimize reductions in storm water pollutants on a location‐by‐location basis. EPA envisions that this evaluative process will consider such factors as conditions of receiving waters, specific local concerns, and other aspects included in a comprehensive watershed plan. Other factors may include MS4 size, climate, implementation schedules, current ability to finance the program, beneficial uses of receiving water, hydrology, geology, and capacity to perform operation and maintenance. [64 Fed. Reg. 68754 (1999)]

193. The MPCA finds the LMC has not satisfied its burden in providing new evidence unknown to MPCA

in support of its contesed case hearing request. The MPCA also finds that Issue One does not meet criterion C. of Minn. R. 7000.1900, subp. 1, because the holding of a contested case hearing to examine the practicablity and affordability of the costs to individual permittees would not aid the MPCA in making a final decision whether to reissue the draft Permit. ‐‐‐ JURISDICTION ‐‐‐

194. The petitions for a contested case hearing claim the MPCA has jurisdiction under Minn. Stat.

§ 116.07, subd. 6 (Pollution Control Agency; exercise of powers), which reads:

In exercising all its powers the Pollution Control Agency shall give due consideration to the establishment, maintenance, operation and expansion of business, commerce, trade, industry, traffic, and other economic factors and other material matters affecting the feasibility and practicability of any proposed action, including, but not limited to, the burden on a municipality of any tax which may result therefrom, and shall take or provide for such action as may be reasonable, feasible, and practical under the circumstances.


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195. The MPCA finds it has jurisdiction based on Minn. Stat. § 116.07, subd. 6, to consider the economic feasibility and practicability of the Permit and provide for such action as may be reasonable, feasible and practical under the circumstances.

‐‐‐ COST FEASIBLITY ‐‐ COST/PRACTICABILITY ‐‐ COST/BENEFIT ‐‐‐

196. The LMC proposes to aid the MPCA, as the trier of fact, in making determinations of cost,

feasibility, and practicability based upon the MEP standard.

197. The LMC claims it has a reasonable basis underlying the cost, cost/benefit, cost/practicability and MEP fact issues such that holding a hearing would allow information to be introduced that would be helpful to MPCA in resolving these issues.

198. The MPCA finds the unique MS4 permitting process will consider cost, feasibility, cost/benefit and

cost practicability issues based on the MEP standard that are raised by a permittee. For the purpose of reissuing the general permit, the MPCA finds it is not necessary to go into the specific detail of these issues for all permittees. Therefore, the MPCA finds the LMC’s petitions do not present a reasonable basis underlying the disputed material issue of fact or facts such that the holding of a contested case hearing would not aid the MPCA in resolving the disputed facts in making a final decision whether to reissue the Permit.

‐‐‐ LOCAL DISPARITIES AMONG MS4s ‐‐‐

199. The LMC claims local disparities among MS4s need to be presented to a trier of fact so that they can be understood and considered in evaluating the costs of the Permit and whether its requirements are affordable or whether more flexible, locally driven Permit provisions need to be adopted.

200. The MPCA finds the unique MS4 Permit process insures Permit requirements will not be excessive,

will be practicable, and will be affordable by the applicable MS4s citizen population, based upon the application of the MEP standard. As the MS4 Permit process includes a case‐by‐case, applicant‐by‐applicant analysis of the MEP standard, including affordability issues, providing testimony of local disparities would not be helpful to the MPCA in determining whether to reissue this Permit and would be repetitious of the MEP process as applied to each individual permittee. Therefore, this aspect of Petition Issue One fails to meet criterion C. of Minn. R. 7000.1900, subp. 1.

201. The MPCA finds whether more flexible, locally driven Permit provisions need to be adopted is a

policy question and not dispute concerning a material issue of fact. Therefore, this aspect of Petition Issue One fails to meet criterion A. of Minn. R. 7000.1900, subp. 1, because it does not raise a dispute concerning a material issue of fact.

202. The LMC suggests testimony from (1) Small MS4 finance directors, (2) Small MS4 program managers, and (3) experts on economics of family household incomes and affordability issues will aid the trier of fact in determining the facts.


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‐‐‐ COST BENEFIT ANALYSIS ‐‐‐

203. The LMC also claims a cost benefit analysis supports eliminating certain Permit conditions and provides the example of the maintenance of stormwater BMPs and documentation of pond sediment removal activities.

204. The MPCA finds a cost benefit analysis will undoubtedly be conducted by many, if not all, MS4 applicants in determining what they propose to undertake that constitutes the MEP for that applicant to meet Permit conditions.

205. The MPCA further finds the flexibility of the Permit which allows each Small MS4 applicant to

conduct a cost benefit analysis, may be discouraged or compromised if MPCA conducted such analyses at a hearing. The MPCA also finds a cost benefit analysis would not aid the MPCA in determining whether to reissue the Permit, and there is no reasonable underlying basis to hold a hearing for that testimony. Therefore, the MPCA finds the LMC’s Petition Issue One fails to meet Minn. R. 7000.1900, subp. 1, criterion C.

206. Similarly, the MPCA finds the testimony of the witnesses LMC’s petition proposes to provide at a

hearing would not aid the MPCA in determining whether to reissue the Permit. The MPCA further finds there is no reasonable underlying basis to hold a hearing for that testimony. Any such testimony would be duplicative of the MS4 permit process which considers each permittee’s proposal for MEP in light of any affordability issues. Based upon this, the MPCA finds the LMC’s Petition Issue One fails to meet Minn. R. 7000.1900, subp. 1, criterion C.

‐‐‐ POND SEDIMENT EXCAVATION AND REMOVAL ACTIVITIES ‐‐‐

207. The LMC also claims the requirements to perform maintenance of stormwater BMPs and pond sediment removal activities are cost prohibitive.

208. The MPCA finds Permit requirements to perform maintenance of stormwater BMPs, including pond sediment removal activities, are performed to the MEP for each permittee and, therefore, will not be cost prohibitive.

‐‐‐ POND ASSESSMENTS ‐‐‐

209. The MPCA finds the 2012 draft Permit was revised regarding pond assessments.

210. The MPCA finds the Permit requires permittees to develop procedures and a schedule for the

purpose of conducting pond assessments. The procedures and schedule will be developed by the permittee in consideration of the MEP standard. The MPCA finds the Permit does not require that actual pond assessments be done during this five year Permit term, unless the schedule developed by the permittee, in light of the MEP standard, dictates otherwise.


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‐‐‐ ATTACHMENT K AND ATTACHMENT L/ESTIMATED COSTS ‐‐‐ 211. The MPCA record includes both Attachments K and L, and both were reviewed and considered by

the MPCA. 212. The LMC’s 2012 petition included Attachment K, a spreadsheet prepared by the City of Rochester

and identified as the “Draft MS4 Permit Workload Summary,” which purports to show new tasks and information requirements under the 2012 draft Permit.

213. The MPCA finds recent information presented by the Ramsey‐Washington Metro Watershed District

to the MPCA at the Minnesota Stormwater Steering Committee meeting on January 17, 2013, indicates cost to the Rochester community for MCM expenditures, given 2011 population estimates, is approximately $13.75/capita/year.

214. The MPCA finds any increases in cost of approximately $13.75/capita/year to the Rochester

community, that may be affiliated with new conditions in the draft Permit, is not overly burdensome on its face. Considering Permit revisions since the submittal of Attachment K, the MPCA finds anticipated cost increases to be even less.

215. The LMC’s 2012 petition included Attachment L, which the LMC describes as a conservative estimate of the costs to complete the internal administrative tasks associated with Permit conditions as over a half million dollars, or $500,000 for the life of the five‐year Permit.

216. The MPCA finds the majority of administrative tasks listed in Attachment L are not new as they

were required under the 2006 MS4 permit. Thus, many tasks should already have been completed by those MS4s required to reapply for coverage under the reissued Permit or should be second nature to permittees. The MPCA finds existing MS4 permittees should already be in compliance with the core requirements found in the draft Permit.

217. Further, the MPCA finds the most recent revisions to the 2012 draft Permit have significantly

addressed many perceived cost increases associated with new administrative tasks. For example, Permit revisions eliminated the following requirements: 1) development of Standard Operating Procedures; 2) specific components of Enforcement Response Procedures; 3) development of three high priority areas for public education; and 4) specific components of pond assessment procedures. The MPCA finds any new administrative tasks remaining in the draft Permit are essential to an effective program. In light of the Permit revisions, the MPCA finds the estimate of admininstrative costs would be significantly reduced.

‐‐‐ THE DRAFT PERMIT IS A REISSUANCE AND IS A CONTINUATION OF THE GROUND WORK PREVIOUSLY UNDERTAKEN BY PERMITTEES COVERED UNDER THE 2006 GENERAL PERMIT ‐‐‐

218. The MPCA acknowledges there are new conditions proposed in this Permit, including those

mandated by the directive of the Minnesota Legislature and in statute, and those authorized by the MPCA’s own statutory authorities (e.g., pond inventory, pond assessment procedures and schedule, written enforcement response procedures, management of stormwater volume, etc.), which will require expenditures by each MS4 permittee.


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219. The MPCA further finds many new Permit conditions are administrative in nature, such as program

documentation, written inventories, and proposing schedules, and as such, typically cost less to perform.

220. The MPCA finds the Permit requirements should not increase costs beyond what is affordable for individual Small MS4s.

221. The MPCA finds the LMC has not identified any information which the MPCA does not already have that would be presented if a contested case hearing were held. As a result, the LMC fails to demonstrate a hearing would allow for the introduction of new information that would be helpful to the MPCA in reaching a decision in this matter. Therefore, the MPCA finds the LMC’s Petition Issue One also fails to meet Minn. R. 7000.1900, subp. 1, criterion C.

‐‐‐ OVERALL PRACTICALITY/ AFFORDABILITY AND REASONABLENESS OF PERMIT ‐‐‐

222. The MPCA finds the Permit sets the minimum bar for all permittees to achieve. The MPCA further finds the Permit was developed with the intention that permit conditions should be affordable and achievable at their most basic level by all permittees.

223. The MPCA notes the LMC’s Petitions acknowledge permit requirements can be funded by a variety

of mechanisms. 224. The MPCA finds application for this general Permit is voluntary and general permittee applicants

may request an individual permit. See Minn. R. 7001.0210, subp. 6.

225. The MPCA finds at the time of Permit application, a Small MS4 applicant will develop its individual

SWPPP document and propose what is the MEP for each of the SWPPP requirements.

226. Similarly, the MPCA finds that MEP, and specifically affordability issues, will be considered by the permittee and the MPCA on a case‐by‐case, applicant‐by‐applicant basis through the unique MS4 permitting process. The MPCA further finds there is no reasonable basis to hold a hearing to allow such information to be presented prior to the reissuance of this general Permit. Therefore, the MPCA finds the LMC’s Petition Issue One also fails to meet Minn. R. 7000.1900, subp. 1, criterion C.

‐‐‐ LOW IMPACT DEVELOPMENT AND LIMITATIONS ON MITIGATION AREAS ‐‐‐

227. The LMC asserts the costs to comply with the draft Permit are excessive, not practicable and not

affordable by their citizen populations. While the contested case hearing request does not specifically substantiate these claims, LMC refers back to the arguments in its submittals regarding post‐construction stormwater mitigation area limitations and on low‐impact development.


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228. The MPCA revised the Permit conditions for post‐construction stormwater mitigation. The Permit now reflects an expansion of mitigation options. The Permit requires the Regulatory Mechanism developed by each regulated Small MS4 to address stormwater management of TSS and TP in the following order of perference: 1) on‐site, unless determined to not be “cost effective;” 2) locations that yield benefits to the same receiving water that receives runoff from the original construction activity; 3) locations within the same DNR catchment area as the original construction activity; 4) the next adjacent DNR catchment area up‐stream; and 5) anywhere within the permittee’s jurisdiction.

229. The MPCA finds the Permit revisions provide additional relief sought by the LMC, on the issue of post‐construction stormwater mitigation for TSS and TP.

‐‐‐ LOW IMPACT DEVELOPMENT MEASURES/TP, TSS AND VOLUME SITE SPECIFIC CONTROLS ‐‐‐

230. The LMC claims the Permit requires control of TP, TSS and volume in a prescriptive, site specific manner.

231. The MPCA finds the Permit requires the permittee to consider low‐impact development measures

first in addressing post‐construction stormwater runoff on‐site and prefer those measures as options to enable and promote low impact development (LID) BMPs per Minn. Stat. § 115.03, subd. 5c(c).

232. The MPCA further finds the Permit does not mandate specific LID BMPs be used. The Permit promotes, but does not require the use of LID BMPs such as bioretention and infiltration. The Permit requires permittees to give LID BMPs highest preference, but allows any combination of BMPs to be used to meet the post‐construction stormwater manangement Permit conditions.

LMC Petitions Issue Two: 233. LMC Petitions Issue Two: “Do the Draft Permit Requirements Exceed the Maximum Extent

Practicable Standard?” 234. The MPCA finds the MEP standard is applied to all SWPPP requirements in the draft Permit. 235. Issue Two of the LMC’s 2012 Petition claims the provisions of the Permit exceed (or may not even

address) the applicable federal standard to reduce pollutants in stormwater to the MEP. The LMC asserts that “aspects of the draft permit make compliance in a manner meeting the MEP standard impossible for many or all of the MS4 permittees. These aspects include:

Permit requirements that are physically impossible to achieve or standards that are unattainable.

Permit requirements that compel the permittees to expend public funds in a wasteful or pointless manner.

Permit terms that are so overbroad as to be impossible to understand, rendering compliance unachievable.

Permit requirements that do not lead to water quality improvements or pollutant loading reductions.

Permit provisions that are overly vague, confusing or contradictory.”


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236. The MPCA finds the explanation of the LMC’s Petition Issue Two includes characterizations of Permit requirements based upon the LMC’s opinion.

237. The LMC has not identified any specific material issues of fact which the MPCA disputes. Widespread disagreement with Permit requirements does not qualify as a disputed material issue of fact. As a result, this is not an issue that is appropriate for resolution through a contested case hearing under Minn. R. 7001.1900, subp. 1, Criterion A.

238. The 2011 version of LMC’s Petition Issue Two also includes the following statement; “The

introduction of a new and different permit standard within the permit itself – “eliminate exposure” rather than an ultimate goal to “reduce or prevent exposure.”

239. The MPCA finds the 2011 draft Permit was revised to remove the reference “eliminate exposure.”

The MPCA notes the 2012 version of LMC’s Petition eliminated this bulleted item. The MPCA finds this is not a material issue of fact in dispute, and the LMC’s Petition Issue Two fails to establish criterion A. of Minn. R. 7000.1900, subp. 1.

240. The MPCA further finds the 2012 Permit was also revised in light of the comments received. The

MPCA finds the revisions address many of the LMC’s concerns raised in its Petition Issue Two.

241. Petitioners contend a “Contested Case Hearing should also address the fact issues on whether

provisions of the Draft Permit exceed (or even address) the applicable standard to reduce pollutants in stormwater to the MEP.”

242. In accordance with 40 CFR § 122.34(a), the MPCA finds the draft Permit requires at a minimum

that the permittees develop, implement and enforce a stormwater management program designed to reduce the discharge of pollutants from the permittee’s MS4 to the maximum extent practicable. 40 CFR § 122.34(a).

243. Issue Two of the LMC’s Petitions claim “in most cases the application of the MEP standard is done

on a case‐by‐case basis, depending on each MS4 permittee’s conditions and circumstances. However, here there are many prescriptive and detailed permit requirements that apply “across the board” to all permittees. As the result, aspects of the Draft Permit make compliance in a manner meeting the MEP standard impossible for many or all of the MS4 permittees.”

244. Issue Two of the LMC’s Petitions claim “the specific comments provide details on the provisions on the draft permit where these aspects are evident.”

245. The MPCA finds the LMC’s 2011 comment submittal is 72 pages in length and its 2012 comment submittal is 45 pages in length. The MPCA further finds Issue Two of the LMC’s Petitions fail to specify the material issue(s) of fact in dispute.

246. The MPCA finds the majority of the LMC’s comment submittals argue MPCA policy and do not raise disputed issues of material fact. Accordingly, the MPCA finds Issue Two of LMC’s Petitions fails to establish criterion A. of Minn. R. 7000.1900, subp. 1.


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247. The MPCA also finds Issue Two of the LMC’s Petitions fails to provide information for the MPCA to conclude there is a reasonable basis underlying their belief that permit conditions exceed or fail to address the applicable standard to reduce pollutants in stormwater to the MEP.

248. Based upon this, the MPCA finds Issue Two of the LMC’s Petitions does not satisfy criterion C. of

Minn. R. 7000.1900, subp. 1 and, therefore, the LMC is not entitled to a contested case hearing. 249. Issue Two of the LMC’s Petitions claim that cities such as Centerville, population 3,792, and

Lauderdale, population 2,379, “simply do not have the staffing capabilities to complete this volume of work and have no means of funding the work, given their small populations.”

250. The MPCA finds the Permit contains conditions that apply to all regulated Small MS4s. 251. Issue Two of the LMC’s Petitions draws conclusions about cities such as Centerville and

Lauderdale, but fails to explain what “work” under the Permit is too voluminous for their staff or too expensive for the cities. The MPCA finds Issue Two of the LMC’s Petitions fails to present a material issue of fact in dispute and fails to meet criterion A. of Minn. R. 7000.1900, subp. 1.

252. In addition, the MPCA finds Issue Two fails to provide enough information demonstrating a

reasonable basis underlying the disputed material facts or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the matter. Therefore, a contested case hearing must be denied under Minn. R. 7000.1900, subp. 1, criterion C.

253. The MPCA further finds this Permit allows each regulated Small MS4 the flexibility to develop and propose a SWPPP document, under the federal MEP standard, that meets the Permit conditions. The MPCA further finds the Permit allows MEP to be determined for each Small MS4 on a case‐by‐case basis depending on each regulated Small MS4’s conditions and circumstances.

254. The MPCA finds the application of the MEP standard accounts for the small budgets of some Small

MS4 permittees.

255. The MPCA also finds that smaller communities generally have smaller storm sewer systems to address under this Permit. Therefore, the MPCA finds that by virtue of a smaller MS4 size, less developed area, lower population, fewer economic resources, etc., MEP for those regulated Small MS4s is anticipated to be less than for larger Small MS4s with greater size, developed area, population and more economic resources.

256. The MPCA further finds the MPCA’s municipal stormwater program conducted an audit of the Mankato MS4 on November 27, 2012. The audit verified Mankato’s compliance with the 2006 MS4 Permit. The MPCA finds Mankato’s MS4 SWPPP is being administered largely by one individual.

257. The City of Mankato has a larger storm sewer system, greater developed area, and higher population than many regulated Small MS4s.


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258. The MPCA finds Mankato’s audit demonstrated compliance and in many ways was exceptional.

259. The MPCA finds as Mankato’s SWPPP is administered largely by one individual, the administrative functions required by the 2006 Permit could, in fact be successfully implemented by one individual.

260. The MPCA further finds application for a general permit is voluntary and that Small MS4

permittees may request an individual permit, even if they previously applied for a general permit. See Minn. R. 7001.0210, subp. 6 (2011).

261. Issue Two of the LMC’s Petitions states, “…determining MEP is a fact‐intensive inquiry that requires

consideration of many different factors. In some circumstances, permit conditions that exceed the MEP standard for one small MS4 may not exceed it for a different small MS4.”

262. The MPCA finds that because MEP is considered on an individual basis for each permittee, the

inquiry sought by the LMC in Issue Two already occurs as part of the MS4 permitting process. Therefore, the MPCA finds there is not a reasonable basis underlying the disputed material facts or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the reissuance of this general Permit. Therefore, a contested case hearing must be denied under Minn. R. 7000.1900, subp. 1, criterion C.

263. The MPCA finds that the federal standard of MEP is applied and considered throughout the

general permitting process in the following five ways:

A. Permit development.

During development of this Permit, the MPCA met with stakeholders and the public at large on 24 separate occasions to solicit input, receive feedback, or resolve issues and considered verbal and written comments. In addition, as part of the two public comment periods, MPCA staff carefully considered all comments received, the vast majority of which related to MEP and cost to comply with draft Permit conditions. Through this process, revisions were made to the Permit in recognition of, and to address, unique circumstances or challenges that individual regulated Small MS4s face.

"In issuing the general permit, the NPDES permitting authority will establish requirements for each of the minimum control measures.” [64 FR at 68754]

B. The applicant’s development and submittal of a SWPPP document to the MPCA as part of the

application process.

Each applicant is able to tailor their SWPPP document to comply with the core provisions of the general Permit as their individual and unique circumstances dictate. The MPCA recognizes that Small MS4s subject to permitting requirements face individual challenges. Unique factors that an applicant may consider while developing their SWPPP document may include:


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conditions of receiving waters, specific local concerns, and other aspects included in a comprehensive watershed plan. Other factors may include MS4 size, climate, implementation schedules, current ability to finance the program, beneficial use of receiving water, hydrology, geology, and capacity to perform operation and maintenance…. [64 FR at 68754] EPA has intentionally not provided a precise definition of MEP to allow maximum flexibility in MS4 permitting. MS4s need the flexibility to optimize reductions in stormwater pollutants on a location‐by‐location basis. [64 FR at 68754 (1999)] Compliance with the conditions of the general permit and the series of steps associated with identification and implementation of the minimum control measures will satisfy the MEP standard… [64 FR at 68754 (1999)].

C. The MPCA review of the application (including the applicant’s SWPPP document).

The MPCA is required to conduct a meaningful review of all applications submitted, including the SWPPP document. During this review, the MPCA recognizes the concept of MEP in determining whether the applicant’s SWPPP document meets the provisions of the general Permit and whether the applicant’s SWPPP document reflects a strategy, tailored to the circumstances of the applicant, that will reduce the discharge of pollutants from their Small MS4 to the “maximum extent” and that is “practicable” for that applicant.

Permits typically will require small MS4 permittees to identify in their NOI the BMPs to be performed and develop the measurable goal by which implementation of the BMPs can be assessed. Upon receipt of the NOI from a small MS4 operator, the NPDES permitting authority will have the opportunity to review the NOI to verify that the identified BMPs and measureable goals are consistent with the requirement to reduce pollutants under the MEP standard. [64 FR at 68754]

D. Public notice of an applicant’s SWPPP Document.

The MPCA is required to public notice all SWPPP documents and respond to public comment before the MPCA can extend permit coverage to an MS4 general permit applicant. (See Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency, 660 N.W.2d 427, 434 ‐ 435 (Minn. App. 2003).)

During this process, the public is given an opportunity to review the SWPPP document that is submitted to the MPCA by an applicant, and submit comments. As part of this public review, a commenter may propose that additional or alternative actions be taken by the applicant to reduce the discharge of pollutants from the Small MS4. The applicant and MPCA are afforded


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the opportunity to review and respond to all public comments and further evaluate what is the “maximum extent” that is “practicable” for the applicant.

E. MPCA audits of a permittee’s SWPPP.

The MPCA is required, under its federal delegation, to conduct program audits of Small MS4s to evaluate if the permittee is reducing the discharge of pollutants from their Small MS4 to the “maximum extent” that is “practicable” for that permittee.

264. The MPCA finds the application of the MEP standard through the entirety of the MS4 permit

process determines what is the “maximum extent practicable” that permittee can do. The MPCA further finds the MEP standard is applied individually to each MS4 that a permittee takes into account for their specific circumstances. The MS4 permit process ensures that the general Permit conditions will not exceed the federal standard of MEP. Petition Issue Two fails to meet criterion A. of Minn. R. 7000.1900, subp. 1 as it fails to raise a material issue of fact in dispute.

265. The MPCA finds the LMC petitions present no reasonable basis underlying the disputed material

issue of fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the MPCA in resolving the disputed facts in making a final decision whether to reissue the Permit.

266. Similarly, the MPCA finds that while the MEP process allows permittees to consider the

cost/benefit of BMPs in reducing pollutants, that is not a necessary inquiry for the MPCA when deciding whether to reissue this general Permit. Therefore, the MPCA finds, the LMC’s Petition Issue Two fails to meet criterion C. of Minn. R. 7000.1900, subp. 1 and a contested case hearing is not warranted.

267. The MPCA, therefore, finds the LMC’s Petition Issue Two, whether the Permit conditions exceed

MEP is not a material issue of fact in dispute, and fails to establish Criterion A. of Minn. R. 7000.1900, subp. 1.

268. The MPCA finds it has jurisidiction over the issue of whether Permit conditions exceed the MEP

standard. 269. The MPCA also finds that the holding of a contested case hearing on this issue would not allow the

introduction of information that would aid the MPCA in resolving the disputed facts in making a final decision on the matter whether to reissue this Permit. Thus, the LMC’s Petition Issue Two fails to establish criterion C. of Minn. R. 7000.1900, subp. 1.

270. The LMC suggests the testimony of Ross Bintner as a witness to aid the trier of fact in

demonstrating “cost curves showing the cost versus pollutant removal benefit for tasks Prior Lake performs to address water quality. Mr. Bintner’s cost curve analyses demonstrate that a number of Draft Permit provisions direct funding away from much more cost‐effective pollutant removal or reduction strategies.”


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271. The MPCA finds the draft Permit allows permittees to develop and propose a SWPPP designed to reduce the discharge of pollutants from their MS4 to the maximum extent practicable. The MPCA further finds permittees may consider cost curves, cost‐versus‐pollutant‐removal benefit and/or cost‐effective pollutant removal or reduction strategies.

272. The MPCA finds a hearing including testimony regarding costs curves showing cost‐versus‐

pollutant‐ removal‐benefit or costs‐effective pollutant removal or reduction strategies is not information that would aid the MPCA in determining whether to reissue the general Permit. The MPCA, therefore, finds Issue Two of LMC’s Petitions fails to satisfy criterion C. of Minn. R. 7000.1900, subp. 1.

273. The LMC Petitions also state “Mr. Bintner can testify as to how the post‐construction standards

exceed MEP for small MS4s similarly situated to Prior Lake. Where a small MS4 has a high density of receiving waters relative to its land area, mitigation within the same catchment area becomes nearly impossible. Catchment areas are the building blocks used to define watersheds, and thus they have no minimum size and can be quite small.” Mr. Bintner is identified in the LMC’s Petitions as a former employee of the City of Prior Lake.

274. The MPCA finds that MPCA staff revised the Permit language on the matter of post‐construction

stormwater management Permit conditions related to mitigation and the use of DNR catchment areas. Specifically, the Permit language has been revised to require that the Regulatory Mechanism developed by each regulated Small MS4 address stormwater management of TSS and TP in the following order of perference: 1) on‐site, unless determined to not be “cost effective;” 2) Locations that yield benefits to the same receiving water that receives runoff from the original construction activity; 3) locations within the same DNR catchment area as the original construction activity; 4) the next adjacent DNR catchment area up‐stream; and 5) anywhere within the permittee’s jurisdiction.

275. The MPCA finds there is no need for the introduction of LMC’s proposed testimony as the revised

Permit language provides relief on the concern raised. Therefore, the MPCA finds there is no “reasonable basis underlying the disputed issue of material fact or facts such that the holding of a contested case hearing would allow the introduction of information that would aid the board or commissioner in resolving the disputed facts in making a final decision on the matter.”

276. The MPCA, therefore, finds LMC’s Petition Issue Two fails to satisfy criterion C. of Minn. R.

7000.1900, subp. 1.

Issuance of the Permit The MPCA's decision to issue the Permit is governed by its permit rule, Minn. R. 7001.0140 and the general permit rule, Minn. R. 7001.0210. Minn. R. 7001.0140 provides:

Subpart 1. Agency action. Except as provided in subpart 2, the agency shall issue, reissue, revoke and reissue, or modify a permit if the agency determines that the proposed permittee or permittees will, with respect to the facility or activity to be permitted, comply or will undertake a schedule of compliance to achieve compliance with


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all applicable state and federal pollution control statutes and rules administered by the agency, and conditions of the Permit and that all applicable requirements of chapter 116D and the rules adopted under chapter 116D have been fulfilled.

Minn. R. 7001.0210, General Permits, reads in relevant part:

Subpart 2. Determination by agency. If the agency finds that it is appropriate to issue a single permit to a category of permittees whose operations, emissions, activities, discharges, or facilities are the same or substantially similar, the agency shall proceed under Subparts 3 to 6. This permit is known as a general permit.

Subpart 3. Requirements. The agency shall not issue a general permit unless the agency finds that:

A. there are several permit applications or potential permit applicants who have the same or similar operations, emissions, activities, discharges, or facilities;

B. the permit applicants or potential permit applicants discharge, emit, process, handle, or dispose of the same types of waste;

C. the operations, emissions, activities, discharges, or facilities are subject to the same or substantially similar standards, limitations, and operating requirements; and

D. the operations, emissions, activities, discharges, or facilities are subject to the same or substantially similar monitoring requirements.

Subpart 4. Notice of intent. The applicant and the agency shall follow the same procedures to issue a general permit as are required for the issuance of an individual permit. However, to comply with part 7001.0100, subpart 3, item C, the agency shall publish notice of intent to issue a general permit in the State Register.

Subpart 5. Geographical area. A general permit issued by the agency must state specifically the geographical area covered by the permit.

Subpart 6. Issuance of individual permit. If a permit applicant who is eligible to be covered by a general permit requests an individual permit, the agency shall process the application as an application for an individual permit…. ***


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CONCLUSIONS OF LAW Any findings that might properly be termed conclusions and any conclusions that might properly be termed findings are hereby adopted as such. The MPCA has jurisdiction to issue this Permit and to rule on the contested case hearing requests.

Adequate and timely public notice of the Permit reissuance was given in accordance with Minn. R. 7001.0100 and 7001.0210.

The criteria of Minn. R. 7000.0190, subp. 1, for granting contested case hearing requests have not been met with respect to the issues raised in the petitions by the city of Eagan and/or by the LMC for a contested case hearing.

The requirements of Minn. R. 7001.0140 for issuance of a Permit have been met and there are no grounds for denial. The requirements of Minn. R. 7001.0210 for issuance of a General Permit have been met and there are no grounds for denial. Proper implementation of the control measures in accordance with the conditions of the Permit issued by this order will achieve compliance with applicable state and federal pollution control statutes and rules and the conditions of the Permit. Implementation of the requirements of this Permit will achieve greater environmental protection.

ORDER The Minnesota Pollution Control Agency denies the Petitions for a contested case hearing by the city of Eagan and also by the LMC and authorizes the issuance of the National Pollutant Discharge Elimination System/State Disposal System General Stormwater Permit, MNR040000 for Small Municipal Separate Storm Sewer Systems.

IT IS SO ORDERED __________________________________ Commissioner John Linc Stine Chair, Citizens’ Board Minnesota Pollution Control Agency __________________________________ Date

municipal separate storm sewer system npdes/sds general permit

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