Summary of OWM Discussion with the States

The following is a summary of the discussions OWM staff and Regional stormwater coordinators 

had with the states regarding the buffer requirement, which is included in the draft permit. 

These conversations were held at the request of the Administrator to gauge the States’ level of 

support for the draft permit conditions.

New Mexico

December 2, 2010

Participants: Greg Schaner (OWM), Suzanna Perea (Region 6), Richard Powell (New Mexico)

Summary: Mr. Powell indicated that he liked the idea of providing options for compliance with 

the buffer requirement, and specifically supported the concept of the fallback option of the 50-

foot buffer performance standard. He anticipates that some cities will like the buffer 

requirement because they would like to have such protections; most New Mexico cities and 

towns allow construction at the water’s edge. He also believes that some cities, particularly 

Albuquerque, will be opposed to the concept. He suggested that we look to the Concentrated 

Animal Feeding Operation (CAFO) and the Surface Mining Control and Reclamation Act 

(SMCRA) regulations for support for our draft buffer requirements since these other programs also 

require buffers. Mr. Powell also suggested that we look into how the U.S. Department of 

Agriculture uses buffers. Note: EPA has included information on the CAFO and SMCRA 

requirements, as well as USDA’s Conservation Reserve Enhancement Program, in the Fact Sheet 

that accompanies the permit package.

Idaho

December 2, 2010

Participants: Greg Schaner (OWM), Misha Vakoc (Region 10), Johnna Sandow (Idaho)

Summary: Ms. Sandow was supportive of the draft buffer requirement, and specifically 

indicated that it seemed reasonable to her. She asked if compliance with the buffer 

requirement relieved the construction operator of all other sediment and erosion controls on the 

site. We clarified that the buffer requirement is only one component of the construction site’s 

sediment and erosion control requirements, and that compliance with the permit’s buffer 

condition does not release the permittee from the need to comply with the other sediment and 

erosion control requirements.
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Massachusetts and New Hampshire

December 3, 2010

Participants: Greg Schaner (OWM), Jessica Hing (Region 1), Frederick Civian (Massachusetts), 

Thomas Maguire (Massachusetts), and Amy Clark (New Hampshire)

Summary: Region 1 coordinated this conference call so that both states could participate at 

the same time. Both states explained what requirements currently are in place with respect to 

the buffer area. Both states indicated that the proposed buffer requirement seems reasonable, 

and both were supportive of the requirement. 

Massachusetts was initially concerned that the buffer requirement is exclusive of other sediment 

and erosion controls; we explained that the buffer is one component among a suite of other 

required sediment and erosion control requirements. They also suggested several edits to the 

draft buffer requirement:

1. Ensure that permit language describing undisturbed naturally-vegetated buffer is used 

consistently. They observed that inconsistencies will be interpreted differently by different 

people. Note: OWM edited the buffer language so that it is consistent throughout the 

permit.

2. The permit should require discharges through the buffer areas to be non-concentrated. 

Note: OWM modified the permit to include this requirement; an earlier version of EPA’s 

draft provision included this same requirement.

3. Include a reminder for permittees to comply with local and state requirements affecting 

the buffer. They were concerned that some permittees might try to leverage their 

compliance with the CGP as sufficient to comply with local or state requirements. Note: 

OWM modified the permit to include a requirement to comply with local or state 

requirements affecting the buffer area.

4. The buffer width should vary with the size of the disturbance. They noted that they have 

found that every 1000 square feet of disturbance requires 75 feet of undisturbed land to 

de-concentrate the flow of stormwater. Note: The State has established this relationship 

through the use of a model. OWM has not conducted model runs to support the 

incorporation of such an approach, and questions how this relationship can be 

translated to a permit requirement. OWM believes the requirement in the draft permit to 

de-concentrate any discharges to the buffer adequately addresses the issue brought up 

by Massachusetts.

Massachusetts also recommended that we consider using the Revised Universal Soil Loss 

Equation (RUSLE) for estimating the performance of various buffers. OWM explained that we are 

looking into the use of RUSLE for this purpose.

New Hampshire notes that the slope and soil of the surrounding area as well as the buffer itself 

will affect the sediment removal performance of the buffer. OWM acknowledged this to be the 

case, and explained that the compliance alternative included in the draft permit allowing 

permittees to use a combination of a narrower buffer and other stormwater controls to achieve 

the sediment removal of a 50-foot buffer will likely address this variability in performance. Ms. 

Clark also indicated that she liked the fact that we have adopted a specific buffer requirement. 
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She noted that we should include exceptions for wetland and water crossings, such as for utility 

lines, since these already receive significant levels of review by the state and imposing a buffer 

requirement on these would not be workable. She suggested that we could allow such 

crossings on the condition that disturbance within the buffer is minimized. Note: OWM has 

adopted similar language in its draft requirement.