Chapter 5 – Legal and Policy Framework
5.1 Federal
National Flood Insurance Program
5.2 State of Washington
Clean Water Act Implementation
Authority to Fix Utility Rates
5.3 City of Olympia and Thurston County
Olympia Stormwater Regulations
Tables
Table 5.1 Legal and Policy Framework for Storm & Surface Water Management
One of the major “Why’s” – the motivations driving the development and management of Olympia’s stormwater system – is the framework of laws, regulations, and policies that the City must adhere to. These laws and regulations became necessary as increasing population and urbanization caused widespread flooding, water quality, and habitat impacts in Washington and across the country. This chapter gives an overview of the major federal, State, and local regulations governing the Utility’s work (Table 5.1).
|
|
Regulations and Statutes |
Plans and Policies |
|---|---|---|
|
Federal |
• Clean Water Act • Endangered Species Act • Surface Water Standards • Tribal Treaty Rights |
|
|
State |
• Phase II Municipal Stormwater Permit (NPDES) • Ecology’s Stormwater Management Manual for Western Washington • Surface Water Quality Standards • Total Maximum Daily Load (TMDL) |
• Puget Sound Partnership Action Agenda |
|
City |
• Olympia Drainage & Erosion Control Manual • Engineering Development and Design Guidelines • Olympia Municipal Code |
• Comprehensive Plan • Storm & Surface Water Plan • Capital Facilities Plan |
5.1 Federal
Two federal laws, the Clean Water Act and Endangered Species Act, and the National Flood Insurance Program guide the management of storm and surface water.
Clean Water Act
The Clean Water Act (CWA), or National Pollution Control Act, enacted in 1972, is the primary federal law protecting the nation’s water quality and aquatic resources.
The CWA establishes requirements for preserving, maintaining, and restoring the quality of surface waters for designated beneficial uses, such as fishing and swimming, as well as protecting wetlands. All waters with a “significant nexus” to “navigable waters” are covered under the CWA. “Navigable waters,” also referred to as “waters of the United States” has been interpreted through law to include water features such as intermittent streams, ephemeral lakes, kettles, sloughs, and wetlands.
The US Environmental Protection Agency (EPA) administers the CWA, with authority delegated to the State of Washington and its Department of Ecology (Ecology) and the US Army Corps of Engineers (Corps). See Chapter 5, Section 5.2 for implementation in Washington through the state Pollution Control Act, Section 303 Water Quality Standards and Total Maximum Daily Load (TMDL) requirements, Section 401 Water Quality Certification, Section 402 National Pollutant Discharge Elimination System (NPDES) permits, and Section 404 Dredge and Fill Permits. Details are in Chapter 7.
Endangered Species Act
The Endangered Species Act (ESA) was enacted in 1973 to protect the nation’s heritage in fish, wildlife, and plants from extinction. In addition, the Act provides for conservation of habitat upon which endangered and threatened species depend. A species is listed under the ESA when declining populations threaten its existence.
The requirements of the ESA apply to urban stormwater management in Puget Sound because stormwater pollution affects multiple species of salmon and resident killer whales that are listed as threatened or endangered; more listings are likely in the future.
Provisions of the ESA that may apply to stormwater management and aquatic habitat stewardship include the Section 4(d) rules, Section 7 consultations, and Section 10 Habitat Conservation Plans. See Chapter 8 for details.
National Flood Insurance Program
The City participates in the Federal Emergency Management Agency’s (FEMA) National Flood Insurance Program, making Olympia property owners eligible for federally subsidized flood insurance. To participate, the City has adopted and enforces a floodplain management ordinance (OMC 16.70) that regulates construction within flood zones established on FEMA flood insurance rate maps. The Community Planning and Development department is responsible for administering the flood plan management regulations. Utility staff provides expertise in interpreting FEMA flood insurance rate maps. FEMA, not the City, develops flood insurance rate maps.
If the City were to undertake NFIP-identified public information and floodplain management activities, the City could participate in the NFIP’s Community Rating System, which would likely reduce flood insurance premium rates because of reduced flood risk.
5.2 State of Washington
The state laws and regulations most relevant to the work of the Utility are the Growth Management Act, Shoreline Management Act, Water Pollution Control Act and other water quality regulations pursuant to the Clean Water Act, State Hydraulic Code, and Salmon Recovery Act. Also, the Revised Code of Washington, Chapter 35 gives the City authority to operate and charge for its storm and surface water utility.
Growth Management Act
In 1990, the legislature enacted the Growth Management Act (GMA) (36.70A RCW) in response to rapid population growth and concerns about suburban sprawl, environmental protection, quality of life, and related issues. The GMA establishes the primacy of the local comprehensive plan as the starting point for any planning process and the centerpiece of local planning. All development regulations adopted by a jurisdiction, including stormwater regulations, must be consistent with the jurisdiction’s comprehensive plan. The GMA also requires adoption of critical area regulations to protect wetlands, critical recharge areas, important fish and wildlife habitat areas, frequently flooded areas, and geologically hazardous areas.
Shoreline Management Act
Established in 1971, the Shoreline Management Act (SMA) (90.58 RCW) requires each city and county adjacent to shorelines of the state to prepare and adopt a Shoreline Master Program (SMP). Although a SMP must be consistent with SMA requirements, a SMP is tailored to the specific geographical, economic, and environmental needs of the community. The local SMP is essentially a shoreline-specific combination of comprehensive plan, zoning ordinance, and development permit system. SMPs are subject to review and approved by Ecology.
Clean Water Act Implementation
Responsibility for implementing requirements of the federal Clean Water Act in Washington is delegated to the Washington Department of Ecology (Ecology). The Water Pollution Control Act (90.48 RCW) is the principal law governing water quality in Washington State. Water quality standards and implementation of other provisions of the CWA are described below. See Chapter 7, Section 7.4 for the Utility’s role in enforcing these regulations.
Water Pollution Control Act
The Act establishes a comprehensive program to protect water quality and beneficial uses of water and applies to surface waters, wetlands, and groundwater. Under the Act, Ecology is given the authority to control and prevent the pollution of waters of the state, including the ability to issue enforcement orders and civil penalties for causing pollution.
Water Quality Standards
Consistent with the Water Pollution Control Act, Washington Administrative Code (WAC 173-201A) establishes surface water quality standards to sustain public health and public enjoyment of state waters, and for the propagation and protection of fish. Under WAC 173-201A all surface waters are protected by numeric and narrative water quality criteria, a designated use, and an antidegradation policy.
NPDES Municipal Stormwater Permit
To protect water quality, the Clean Water Act establishes a permitting system that regulates the discharge of wastewater and stormwater into “waters of the United States.” This system is called the National Pollutant Discharge Elimination System (NPDES). In western Washington, Ecology administers this system through the Western Washington Phase II Municipal Stormwater Permit (Permit), consistent with WAC 173-226.
The City is subject to the requirements of the Permit. The Permit allows discharges from the City’s municipal separate storm sewer system (MS4) into surface water and groundwater provided certain actions are taken to prevent stormwater pollution. The City has held a Permit since 2007 and reapplies for the revised permit every five years.
The Permit requires the City to create and implement an annual Stormwater Management Program (SWMP), which outlines the City’s plan to develop and implement the following programs and processes:
• Public Education and Outreach
• Public Involvement and Participation
• Illicit Discharge Detection and Elimination
• Controlling Runoff from New Development, Redevelopment and Construction Sites
• Municipal Operations and Maintenance
• Control of stormwater runoff from construction sites
• Operations and maintenance of stormwater facilities after construction
The Permit also includes compliance standards with Total Maximum Daily Load (TMDL), monitoring and assessment, and annual reporting requirements.
Total Maximum Daily Load
The CWA requires states to maintain a list of water bodies that fail to meet water quality standards. In Washington, that list is called the 303(d) List. If a water body is out of compliance with standards for a particular pollutant, the CWA requires that a total maximum daily load (TMDL) of the pollutant be calculated. The TMDL is the maximum amount of the pollutant that can be imposed on the water body without violating the water quality standard for that pollutant.
TMDLs have been established for the Henderson Inlet and Deschutes River watersheds, and are being developed for Budd Inlet and Capitol Lake. See Chapter 7 for Olympia creeks and lakes that are on the state’s 303(d) list, TMDL planning for watersheds in Olympia, and City actions required to ensure TMDL allocations are met.
Section 401 Water Quality Certification
Section 401 of the CWA allows states to approve, condition, or deny projects proposed in waters of the United States, including wetlands. In Washington, Ecology administers this process by issuing 401 Water Quality Certification to projects that can ensure compliance with state water quality standards and other aquatic resource protection requirements.
Section 404 Dredge and Fill Permit
Section 404 of the CWA establishes a program to regulate the discharge of dredged or fill materials into waters of the United States, including wetlands. The US Army Corps of Engineers administers this program. It requires showing that steps have been taken to avoid impacts to wetlands, streams, and other aquatic resources; minimize potential impacts; rectify temporary impacts after the project is completed; and provide compensation for all remaining unavoidable impacts.
Hydraulic Project Approval
To implement a construction activity or other work that uses, diverts, obstructs, or changes the natural flow or bed of state waters requires a Hydraulic Project Approval (HPA). Activities ranging from work on bulkheads, piers, and docks to culvert cleaning, repair and replacement all require a HPA. The Washington State Department of Fish and Wildlife administers the HPA program under the state Hydraulic Code (77.55 RCW).
Salmon Recovery Act
In 1998, the Washington State Legislature enacted the Salmon Recovery Act (RCW 77.85) to empower citizens at the community level to engage in salmon recovery through locally driven habitat protection and restoration programs. The Act calls for the designation of lead entities to coordinate local efforts by soliciting, developing, prioritizing, and submitting salmon habitat and restoration projects within specified Water Resource Inventory Areas (WRIAs).
In Washington, the Department of Fish and Wildlife administers grants to the lead entities with funds provided by the Salmon Recovery Funding Board. Locally based citizen and technical advisory committees identify projects that are both scientifically sound and in alignment with the needs of the community. Thurston Conservation District is the lead entity for WRIA 13, Deschutes watershed, which includes Olympia. Utility staff participate on the technical committee (see Chapter 8).
Authority to Fix Utility Rates
RCW Chapter 35 (RCW 35.67.20) authorizes cities to “fix, alter, regulate, and control the rates and charges for their” systems of sewerage, defined in RCW 35.67.010 to also include stormwater management. Further, RCW 35.67.20 requires rates to be reduced by “a minimum of ten percent for any new or remodeled commercial building that utilizes a permissive rainwater harvesting system.” RCW 35.67.20 specifies that all public property “shall be subject to rates and charges for storm water control facilities to the same extent private persons and private property are subject to such rates and charges.” Finally, capital, or general, facilities charges are authorized for cities under RCW 35.92.025. See Chapter 12 for a discussion of Utility rates.
5.3 City of Olympia and Thurston County
The City is required to manage storm and surface water to protect public and environmental health and property, and to maintain compliance with the federal and State regulations described above. Many of these require the City to adopt specific local regulations. The local policies and regulations that impact the Utility are the Comprehensive Plan and development regulations, Shoreline Master Program, and stormwater regulations, and Thurston County Noxious Weed Board regulations.
Comprehensive Plan
The City of Olympia Comprehensive Plan underwent a major update in 2014, with over 1,500 community members participating. It conveys the community’s values and vision for the future, particularly for the next 20 years. Its goals and policies give high-level direction for actions the City and other community members may take to realize the values and vision. The goals and policies also guide City budgets, development regulations, and utility management plans.
Comprehensive Plan goals and policies that have helped guide the direction of this Storm and Surface Water Plan are those in the Natural Environment and Utilities chapters. Goals are listed below, and the complete set of related goals and policies are in Appendix 1.
Natural Environment
GN2 Land is preserved and sustainably managed.
GN4 The waters and natural processes of Budd inlet and other marine waters are protected from degrading impacts and significantly improved through upland and shoreline preservation and restoration.
GN5 Ground and surface waters are protected from land uses and activities that harm water quality and quantity. Healthy aquatic habitat is protected and restored.
GN11 All members of the community can experience the natural environment through meaningful volunteer experiences, active recreation, and interactive learning opportunities.
Utilities
GU1 Utility and land use plans are coordinated so that utility services can be provided and maintained for proposed future land uses.
GU2 Reliable utility service is provided at the lowest reasonable cost, consistent with the City’s aims of environmental stewardship, social equity, economic development and the protection of public health.
GU3 Utilities are developed and managed efficiently and effectively.
GU10 The frequency and severity of flooding are reduced and hazards are eliminated, except during major storm events.
GU11 The City uses best available information to implement a sea level rise management plan that will protect Olympia’s downtown.
Shoreline Master Program
The 2015 Shoreline Master Program (SMP) regulates the management and protection of Olympia’s shorelines and ensures compliance with the Washington State Shoreline Management Act (90.58 RCW). The Olympia shorelines falling under the program include Grass Lake, Capitol Lake, Ward Lake, Ken Lake, Percival Creek, and marine shorelines.
The State implementing code (WAC 173-26) gives preference to shoreline uses that: depend on proximity to the shoreline; protect biological and ecological resources, water quality, and the natural environment; and preserve and enhance public access or increase recreational opportunities for the public along shorelines.
The Olympia SMP protects and encourages enhancement and restoration of shoreline ecological functions, values, and ecology, paralleling the mission of the Utility to improve and protect aquatic habitats.
Critical Areas Ordinance
The State GMA requires every jurisdiction to adopt a critical areas ordinance (CAO) to protect critical areas and their function. Critical areas include many aquatic habitats (streams, wetlands, lakes, and their buffers). These areas provide many natural flood control and water quality functions, habitats for fish and wildlife, and buffer functions around these habitats.
In response to GMA requirements, Olympia’s environmental protection regulations were overhauled as Olympia’s first CAO in 1992 and most recently updated in July 2016. The primary set of regulations on development to protect critical areas is codified as OMC 18.32. There are specific regulations for frequently flooded areas (OMC 16.70), marine and freshwater shorelines (OMC 18.20), and erosion hazards (OMC 13.16).
Olympia Stormwater Regulations
The City is required by its NPDES Phase II Municipal Stormwater Permit to implement an ordinance or other enforceable mechanism that addresses management of stormwater runoff from new development, redevelopment, and construction projects (2013 Permit, S5.C.4.a). The City meets this requirement by enforcing applicable sections of the Olympia Municipal Code (OMC), which include other stormwater standards and manuals by reference, as described below.
Utility Minimum Standards and Rates
The Storm and Surface Water Utility section of Olympia Municipal Code (OMC 13.16) identifies the minimum standards for connection, permitted usage, and charges for using the utility. Storm and Surface Water utility rates are discussed in further detail in the Olympia Municipal Code Title 4 – Fees and Fines.
Drainage Design and Erosion Control Manual
The 2016 Olympia Drainage Design and Erosion Control Manual (DDECM) was adopted by City Council and made effective on December 1, 2016 (Ordinance 7027); it was adopted by reference in OMC 13.16.017. The DDECM is the primary mechanism for ensuring project compliance with the Permit. All new development, redevelopment, and construction projects must conform to the requirements of the DDECM. See details in Chapter 6.
The City’s core requirements and standards for design, construction, and management of stormwater facilities meet or exceed the requirements listed in Appendix 1 of the NPDES Permit and Ecology’s 2012 Stormwater Management Manual for Western Washington. The DDECM is divided into five volumes and defines numerous best management practices (BMPs) for development projects:
• Volume I – Core Technical Requirements and Site Planning
• Volume II – Construction Stormwater Pollution Prevention (Sediment and Erosion Control BMPs)
• Volume III – Hydrologic Analysis and Flow Control BMPs
• Volume IV – Permanent Stormwater Site Management
• Volume V – Stormwater Treatment BMPs (including Low Impact Development practices)
Engineering Design and Development Standards
The most recent City of Olympia Engineering Design and Development Standards (EDDS) were adopted by City Council, and made effective December 13, 2016 (Ordinance 7045); it was adopted by reference in OMC 12.02.020. All public and private development projects must be designed to these standards. Chapter 5 of the EDDS gives specific guidance for the design and installation of stormwater infrastructure constructed in the right-of-way.
Thurston County Noxious Weed Board
Washington State Noxious Weed laws and regulations (RCW 17.10, WAC 16-750, and WAC 16-752) establish that all property owners are responsible for helping to prevent and control the spread of noxious weeds. The Utility is responsible for controlling noxious weeds on City-owned property managed by the Utility.
In Thurston County, the Thurston County Noxious Weed Board (Weed Board) is authorized to adopt rules and regulations as necessary for an effective county weed control or eradication program. The County employs a weed coordinator to inspect property for noxious weeds. If a landowner does not control noxious weeds after receiving several notices, the Weed Board may come and control the weeds and bill the landowner for its work, or it may issue a civil penalty.