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 indic ated 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
req uirement 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 i nto 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

Dece mber 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 t he 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 Hi ng (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 requireme nts 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 ex clusive 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 permittee s 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 i nclude 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 undist urbed 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 R evised 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 buf fer 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 in clude 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

cro ssings on the condition that disturbance within the buffer is minimized. Note: OWM has adopted similar language in its draft requirement.