Integrating Green Infrastructure into Regulatory Programs

Regulatory drivers can be very effective at providing a foundation for consistent and robust implementation of green infrastructure across a community, state or region. This section focuses primarily on federal regulatory drivers associated with statues such as the Clean Water Act and the Safe Drinking Water Act. Being aware of how to incorporate Green Infrastructure Concepts into Total Maximum Daily Loads (TMDLs) (PDF) (11 pp, 253K) and Stormwater Permits can help reduce pollutant inputs and help restore and maintain the natural hydrology in a watershed. Many federal regulatory programs are administered by state environmental agencies, so some of these examples are also influenced by state regulations. For information on local regulations see the Municipal Handbook section of this website.

• Policy Memos
• Stormwater Permits
• Supplementary Environmental Projects

Policy Memos

Memorandum, Use of Green Infrastructure in NPDES Permits and Enforcement Actions (PDF) (2 pp, 924K) - In August, 2007, EPA issued a memo encouraging the incorporation of Green Infrastructure into NPDES stormwater permits and CSO long-term control plans. Additionally, the memo states that green infrastructure can and will be used in future EPA enforcement activities.

Memorandum, Using Green Infrastructure to Protect Water Quality in Stormwater, CSO, Nonpoint Source and other Water Programs (PDF) (2 pp, 156K) - In March, 2007 Benjamin Grumbles, EPA’s Assistant Administrator for Water, issued this memo to promote green infrastructure as a viable stormwater management solution.

Memorandum, Clarification on which stormwater infiltration practices/technologies have the potential to be regulated as "Class V" wells by the Underground Injection Control Program (PDF) (6 pp, 215K) - In June 2008, EPA issued a memo reaffirming the use of green infrastructure approaches (including infiltration practices that are classified as 'green') for managing stormwater, and providing an overview of UIC program requirements for stormwater infiltration practices that are classified as Class V wells. The memo is supported by a guide describing the major types of stormwater infiltration practices and explaining which practices are generally considered class V wells.

Stormwater Permits

There are a number of ways permitting agencies can advance implementation of green infrastructure practices through stormwater permits. Green infrastructure provisions either directly or indirectly drive practices that infiltrate, evapotranspire and capture and use rainwater, rather than simply treating and discharging it. Green infrastructure provisions can also include specific requirements for natural area preservation or restoration, e.g., floodplains, wetlands, and riparian buffers. Regardless of the form the provision takes, a clear and enforceable objective is critical. The following are examples of green infrastructure provisions from several stormwater permits.. All of these permits have additional provisions to support the language excerpted here.

North Carolina

The North Carolina permit To Construct, Operate and Maintain Impervious Areas and BMPs Associated with Residential Development Disturbing Less Than 1 Acre, includes the following:

Stormwater runoff shall be managed using any one or combination of the following practices:

See: North Carolina General Permit No. SWG050000

New Jersey

The New Jersey Stormwater Management Rules at N.J.A.C. 7:8 require that a "major development" project, which is one that disturbs at least 1 acre of land or creates at least 0.25 acres of new or additional impervious surface, must comply with one of the following two groundwater recharge requirements:

• Demonstrate through hydrologic and hydraulic analysis that the site and its stormwater management measures maintain 100 percent of the average annual preconstruction groundwater recharge volume for the site; or
• Demonstrate through hydrologic and hydraulic analysis that the increase of stormwater runoff volume from pre-construction to post-construction for the two year storm is infiltrated.

The State has a spreadsheet for documenting how the recharge rate requirement is being met. Chapter 6 of the New Jersey Stormwater Best Management Practices Manual discusses the groundwater recharge methodology, the groundwater recharge design storm, and the details of the New Jersey Groundwater Recharge Spreadsheet.

See: New Jersey Department of Environmental Protection Municipal Stormwater Regulation Program

Ohio

The Ohio construction general permit for the Big Darby Creek Watershed near Columbus, where significant growth is projected, includes riparian setback and infiltration requirements. Many additional details are included in this permit (including how pre- and post-development groundwater recharge must be calculated), but the fundamental provisions are as follows:

Riparian Setback Requirements. The SWP3 shall clearly delineate the boundary of required stream setback distances. No construction activity shall occur within the delineated setback boundary except activities associated with restoration or recovery of natural floodplain and channel form characteristics as described in Attachment B and storm water conveyances from permanent treatment practices.

Groundwater Recharge Requirements. The SWP3 shall ensure that the overall site post-development groundwater recharge equals or exceeds the pre-development groundwater recharge. The SWP3 shall describe the conservation development strategies, BMPs and other practices deemed necessary by the permittee to maintain or improve pre-development rates of groundwater recharge. Protection of open space (infiltration areas) shall be by binding conservation easements that identify a third party management agency, such as a homeowners association/condominium association, political jurisdiction or third party land trust.

See: Ohio EPA Modification of NPDES General Permit No. OHC100001

West Virginia

West Virginia DEP has proposed a small MS4 permit with watershed protection elements aimed at large-scale protection of natural resources and hydrologic cycle functions, as well as a performance standard for new and redevelopment projects:

Watershed protection elements. As relevant, policy and/or planning documents must include the following, except where noted:

Performance Standards. The permittee must implement and enforce via ordinance and/or other enforceable mechanism(s) the following requirements for new and redevelopment:

Analysis of 60 years of rainfall data in the state indicated that, on average, 90% of the rainfall events in West Virginia are 1 inch or less. Rainfall patterns do not vary significantly across the state.

See: West Virginia General NPDES Water Pollution Control Permit No. WV0116025

California

The California Los Angeles Regional Water Quality Control Board has included the following standard in the draft MS4 permit for Ventura County:

New Development and Redevelopment Performance Criteria

See: California NPDES Permit No. CAS004002

Supplementary Environmental Projects

When an organization or individual has failed to comply with federal environmental laws, the EPA may initiate an enforcement action against them. Enforcement actions are taken in order to compel the individual or company to return to compliance and to deter others from committing similar violations in the future.

As part of a settlement agreement for an enforcement action, an alleged violator may voluntarily agree to undertake a Supplementary Environmental Project, or SEP, in exchange for mitigation of the penalty to be paid. SEPs are projects that are designed to protect and improve the environment and public health beyond that achieved by standard compliance with applicable laws. These projects offer a unique opportunity to further our nation's goals of ensuring clean air and water, safe food, better waste management, and the public's right to know about environmental issues. SEPs have existed since the early 1980s, and since that time their inclusion in EPA's settlement agreements has become more commonplace.

More information on SEPs can be found at: http://cfpub.epa.gov/compliance/resources/policies/civil/seps

In wet weather enforcement actions, a growing number of SEPs have involved the use of green infrastructure techniques to mitigate environmental damage. To date, green infrastructure SEPs have been used in settlements with:

• The Board of Water and Sewer Commissioners of the City of Mobile, Alabama
• The Board of County Commissioners of Hamilton, Ohio and the City of Cincinnati
• The District of Columbia Water and Sewer Authority and the District of Columbia
• The Washington Suburban Sanitary Commission
• Sanitation District No.1 of Northern Kentucky

The Board of Water and Sewer Commissioners of the City of Mobile, Alabama

Consent Decree: http://www.epa.gov/compliance/resources/decrees/civil/cwa/mobile-cd.pdf (104 pp, 338K)
*Information on SEPS is located on p.54-59 and at the end of the document in Appendix A.

SEP Overview: As part of this settlement, $2.5 million was spent on SEPs to fund the acquisition of environmentally sensitive delta habitat along the banks of the Middle River, located in Mobile County. The funds that were raised from these SEPs were directed to the Alabama Forever Wild Program, a state-run program that purchases tracts of land for general recreation, nature preserves, wildlife management areas and state parks.

For more information, visit: Outdoor Alabama Middle River-West Tract

The Board of County Commissioners of Hamilton, Ohio and the City of Cincinnati

Consent Decree: http://www.epa.gov/compliance/resources/decrees/civil/cwa/hamilton-cd2.pdf (191 pp, 6.7MB)
*Information on SEPs is located on p.48-50 and at the end of the document in Exhibit #9.

SEP Overview: As part of this settlement, $5.3 million was spent on a series of SEPs aimed at streambank stabilization, greenway creation, and in-stream restoration. The streambank stabilization project restored approximately 3,850 ft of riparian corridor along Mill Creek, an impaired waterbody where high levels of erosion were contributing to a wide variety of water quality concerns. Another SEP was done to create the Caldwell Seymour Greenway Trail, a 1.5 mile recreational greenway situated along the banks of Mill Creek, while a third project focused specifically on restoring in-stream aquatic habitat via structural changes to the channel of Mill Creek.

For more information, visit: Mill Creek Restoration Project

The District of Columbia Water and Sewer Authority and the District of Columbia

Consent Decree: http://www.epa.gov/compliance/resources/decrees/civil/cwa/dcwasa-cd.pdf (82 pp, 1.2MB)
*Information on SEPs is located on p.27-31 and p.63-65.

SEP Overview: As part of this settlement, the District of Columbia Water and Sewer Authority (WASA) funded a $2 million SEP in which rain gardens, vegetated swales, and other forms of green infrastructure were installed at strategic locations throughout the city. In addition, WASA provided the Chesapeake Bay Foundation with $300,000 to design, build, and monitor a green roof project in the Anacostia River watershed. One of the primary goals of the project is to demonstrate the effectiveness of green roofs in reducing the amount of polluted stormwater runoff that enters the city’s combined sewer system.

For more information, visit: Chesapeake Bay Foundation

The Washington DC Suburban Sanitary Commission

Consent Decree: http://www.epa.gov/compliance/resources/decrees/civil/cwa/wssc072605-cd.pdf (158 pp, 1MB)
*Information on SEPs is located on p.81-85 and p.142-153.

SEP Overview: As part of this settlement, the Washington Suburban Sanitary Commission (WSSC) spent $4.4 million on several SEPs with green infrastructure components. One project involved the purchase of conservation easements and riparian buffer habitat situated along the banks of the Tridelphia and Rocky Gorge Reservoirs. Both of these waterbodies serve as sources of public drinking water, and the land was purchased to preserve and enhance water quality in both reservoirs. In addition, a separate SEP was conducted to assist residents of Montgomery County and Prince George’s County, Maryland with the disconnection of stormwater drains that were carrying excess runoff into the local sewer system. These drains were contributing to sewer overflows and backups within the system during storm events.

For more information, visit: Washington Suburban Sanitary Commission

Sanitation District No.1 of Northern Kentucky

Consent Decree: http://www.epa.gov/compliance/resources/decrees/civil/cwa/dcwasa-cd.pdf (82 pp, 1.2MB)
*Information on SEPs is located on p.27-31 and p.63-65.

SEP Overview: As part of this settlement, Sanitation District No.1 of Northern Kentucky spent roughly $636,000 on land conservation and watershed restoration SEPs. In one project, the District directed $225,000 to the Boone, Campbell and Kenton County Conservancies to purchase land for parks and conservation easement areas. Another project will fund ecological restoration efforts designed to boost biodiversity within the Woolpert Creek watershed.

For more information, visit: Sanitation District No. 1

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Last updated on May 14, 2009 3:55 PM
URL:http://cfpub.epa.gov/npdes/greeninfrastructure/regulators.cfm