STORMWATER BYLAW & REGULATION QUESTIONNAIRE FOR NEW DEVELOPMENT AND REDEVELOPMENT PROJECTS

With Recommendations for Revisions

Prepared by the Neponset River Watershed Association and the Metropolitan Area Planning Council under a

Massachusetts Community Innovation Challenge Grant

DECEMBER, 2014

TOWN OF MILTONIntroduction

This Questionnaire is designed to evaluate, and make recommendations for improvement of, Massachusetts municipal Stormwater Bylaws and Regulations (covering both construction site sedimentation and erosion controls and post-construction stormwater management), as well as for municipal ordinances banning illicit discharges and connections to Municipal Separate Storm Sewer Systems (MS4s). The Questionnaire assumes that municipalities subject to EPA’s MS4 Permit should:

1. be in compliance with the currently effective 2003 MS4 Permit’s mandatory requirements;2. be prepared to revise their Stormwater Bylaws and other ordinances to achieve compliance with

newly proposed 2014 MS4 permit requirements when these are finalized (expected in late 2015 or early 2016). The new proposed MS4 Permit requirements are indicated by bold and italics. Recommendations in this document regarding these proposed new EPA requirements are tentative, pending finalization of the new MS4 permit;

3. have stormwater provisions that, where appropriate, are as similar as possible to the state Wetlands Protection Act Regulations stormwater provisions, since in most municipalities the Conservation Commission administers both the Wetlands Regulations and the local Stormwater Bylaw; and

4. try to maximize the effectiveness of their stormwater management requirements for new development and redevelopment projects above a specified size threshold. This is very important since the new MS4 permit bans all new discharges from MS4s to waters that do not currently comply with state Water Quality Standards. It may be impossible for towns to meet this requirement if a significant amount of unregulated new impervious surfaces are added by numerous small and medium sized projects.

Accompanying this Questionnaire and Recommendations is a Model Stormwater Bylaw and Regulations. Many of the recommendations in this document refer to language contained in that document. Towns may either use that document to revise their own bylaws and regulations or may wish instead adopt it to replace their current stormwater rules.

A. Permit Thresholds

Question 1. Does your Stormwater Bylaw cover development and redevelopment projects of more than an acre, as required by the existing MS4 permit?

YES__ NO_X_ ALTHOUGH YOUR BYLAW COVERS PROJECTS OVER AN ACRE, IT DOES NOT

SPECIFICALLY COVER REDEVELOPMENT PROJECTS. ALSO, THE BYLAW SHOULD CLEARLY STATE THAT IT IS THE PERMITTING AUTHORITY AND NOT THE PROJECT PROPONENT WHO DETERMINES WHETHER THE PROJECT “DISCHARGES OR PROPOSES TO DISCHARGE WATER OFF THEIR PROPERTY”

If you answered no, you should revise your Bylaw as soon as possible to comply with the current MS4 permit.

Regardless of your answer, we recommend that you revise your definition of ”redevelopment,” if necessary, to be

substantively equivalent to (but clearer than) the Wetlands Reg definition: see Model Bylaw Article I, Section 2 (p.

8) and Model Regulation Section 2 (p. 22) .

Question 2. Do “land disturbing activitiess” trigger jurisdiction under your Bylaw, as required by the existing MS4 permit?

Yes_X_No___ If you answered no, you should revise your Bylaw as soon as possible to comply with the current MS4 permit.

Regardless of your answer, we recommend that you revise your definition of “land disturbing activities,” if

necessary, to include all the activities covered by most stormwater bylaws and regulations. See Model Bylaw

Article I, Section 2 (p. 8) and Model Regulation Section 2 (p. 22).

Question 3. Does your Bylaw apply to projects of one acre or more as required by the proposed new MS4 permit (as opposed to “more than” an acre, as required by the 2003

Yes__ MS4 permit)? No_X_

If you answered no, you’ll have to change your current provision when the new MS4 permit takes effect.

Regardless of how you answered this question, see our recommended permitting size threshold under Question 4, below.

Question 4. Do you require stormwater permits for projects of less than one acre as does Canton (4,000 s.f.), Dedham (no lower limit), Walpole (40,000 s.f.) and Westwood (1/2

Yes___ acre proposed)? If so, what is the permitting threshold?No_X_

Regardless of your answer to Question 4, unless your current permitting threshold is a ½ acre or less, we strongly recommend that you adopt a threshold of either ¼ or ½ acre. Although neither the existing or proposed new MS4 permit requires this, there are very few projects of an acre or more in the relatively densely developed town in the Neponset watershed. Furthermore, the proposed new MS4 permit states: “There shall be no increased discharges from the MS4 to impaired waters … unless the (MS4) demonstrates that there is no net increase in loadings.” [Impaired waters include those not currently meeting with any state Water Quality Standard and those subject to TMDLs.] This new MS4 requirement will be extremely difficult if not impossible to meet if, for example, a few new paved parking lots of just under an acre are built in your town without any stormwater controls. It will also be extremely difficult for towns to comply with the new MS4 permit financially if private parties are not required to treat polluted runoff from new development and redevelopment before it is discharged to your MS4. See Model Regulation Section 5.A.(2) (p.25) for recommended permit thresholds.

Question 5. Does your Bylaw also apply to discharges that do not go into your MS4, but Yes___ rather go directly or indirectly to wetlands or surface waters?No__X

If you answered no to this question, we believe you should adopt the requirement into your Stormwater Bylaw. This is obviously not an MS4 requirement, but non-MS4 stormwater discharges have the same negative water quality impacts as do ones from MS4s and play an important role in keeping waterways from meeting state Water Quality Standards (WQS). Failure to meet WQS, in turn triggers additional MS4 requirements. Control of non-MS4 runoff is especially important for bacteria; the Neponset Bacteria TMDL sets very tight limits on both direct (from pipes, including MS4s) and indirect (not from pipes) stormwater discharges. See Model Bylaw Article II (p. 11) and Model Regulation Section 5.A. (p. 25) for language on implementing this recommended requirement.

Question 6. Does your Bylaw or Regulations limit exemptions to the following (or less than the following) common ones contained in most stormwater bylaws? If not, what is the rationale for each additional exemption? Projects that develop or redevelop less than 1,000 square feet of impervious surface Projects that alter less than 5,000 sq. ft. of land without creating 1,000 sq. ft. or more of

impervious surface or altering pre-development drainage patterns so as to impact immediately abutting properties)

Normal maintenance and improvement of land in agricultural use as defined in Sec. 10.02 of the Wetlands Protection Regulations

Maintenance of existing landscaping, gardens or lawn areas associated with a single family dwelling

Repair or replacement of an existing roof of a single-family dwelling Construction of any fence that will not alter existing terrain or drainage patterns Construction of utilities other than drainage which will not alter terrain, ground cover or

drainage patterns Emergency repairs to stormwater management facility or practice that poses a threat to the

public health or safety or as deemed necessary by the stormwater permitting authority Any work or projects for which all necessary approvals and permits have been issued before

Yes___ the effective date of this Bylaw.No_X_ WHILE WE BELIEVE THAT SOME OF THE EXEMPTIONS IN YOUR BYLAW

(BEYOND THE ONES LISTED ABOVE) HAVE A LEGITIMATE RATIONALE, WE DO NOT BELIEVE THAT THE FOLLOWING SHOULD BE ENTIRELY EXEMPT FROM LOCAL STORMWATER REVIEW: DPW ICE & SNOW CONTROL; FOUNDATION DRAINS AND CRAWLSPACE DISCHARGES; AND SUMP PUMPS.

If you answer no to this question, we recommend that either you have a very strong rationale for your additional exemptions or else remove them. You might also consider changing the additional exemptions to a possible waiver (see Question 10) or require something less than a permit for it (see Question 29). See Model Regulation Section 5B (p. 28).

Question 7 . If a project obtains a Wetlands Order of Conditions, must it also meet provisions in the Stormwater Bylaw and Regulations that are not included in the

Yes___ Wetlands Protection Act Regulations in order to be in compliance with the Bylaw?No_X_

If you answered no, remember that although there may be no provision in your current Stormwater Bylaw or Regulations that is not also included in the Wetlands Protection Act Regulations, this will definitely not be the case when the new MS4 permit takes effect (see for example Questions 11 -13, below). See Model Regulation Section 5.B.(5) (p. 28) for recommended language.

Question 8. Do projects that are “land uses with higher potential pollutant loads”[LUHPPL], as defined in the Wetlands Protection Act Regulations, have to obtain stormwater permits even though they are below the usual permitting threshold and, if so, what size projects are covered? (310 CMR 10.04 defines land uses with higher potential pollutant loads to include auto salvage yards, auto fueling facilities, commercial parking lots, gas stations; exterior fleet storage and vehicle service and equipment cleaning areas;

Yes___ marinas and boat yards; and confined disposal facilities and disposal sites.)No_X_

Unless you require all LUHPPL projects of any size to obtain permits, you should consider revising your Bylaw or Regulations to require permits for at least some of them. The nature of the land use, rather than the mere size of the land disturbance, is more determinative of the potential pollution problems (and water quality standard violations) it is likely to cause. We recommend that all LUHPPL projects be required to obtain permits. You may, however, wish to set the threshold somewhat higher; e.g., 5,000 sq. ft. See Model Regulation Section 5.A.(2)(b) (p. 26).

Question 9. Does the Bylaw/Regulation authorize the Stormwater permitting authority to require a full permit for projects that normally are exempt or subject to non-permitting requirements, if such project is causing or can reasonably be expected to cause a violation

Yes__ of state water quality standards?No_X

If you answered no to this questions (as you probably did), we recommend that you consider adding the requirement to your Bylaw or Regulations so that your Stormwater Permitting Authority has the capability of responding to unanticipated stormwater problems. This requirement is comparable to the Wetlands Protection Act Regulatory provision allowing Conservation Commissions to take jurisdiction over projects outside wetland resource areas and buffer zones if, during or after construction, they are found to have altered a wetland. We recommend expanding this principal to projects that “can reasonably be expected” to violate a water quality standard. See Model Regulation Section 5.A.(2)(c) (p. 26).

Question 10 . If your Bylaw or Regulation includes a waiver provision, is it limited to projects that can demonstrate that strict application of the Bylaw does not further its purposes or objectives and that the waiver is in the public interest, consistent with the

Yes__ purpose and intent of the Bylaw, and allowed by federal state and local rules and permits?No__NA If you answered no to this question, we believe it is especially important that waivers not be granted unless the applicant

“can demonstrate that strict application of the Bylaw does not further its purposes or objectives.” Without this assurance,

waiver provisions can easily be abused. See Model Bylaw Article I Section 5 (p. 10) and Model Regulation Section 4B (pp. 24-

25).

B. Permit Standards

Question 11. Does your Bylaw contain a requirement “at least as stringent as” the following for projects seeking stormwater permits, as required in the proposed new MS4 permit?

1. Retain the first one (1) inch of runoff from all impervious surfaces on the site, OR2. Provide the level of pollutant removal equal to or greater than the level of pollutant removal provided through the use of biofiltration on the first one (1) inch of runoff from all impervious surfaces on site. This standard shall be met through a combination of practices designed to retain runoff on site (environmentally sensitive site design, low impact development techniques) where technically feasible, and stormwater BMPs designed to treat the remainder of the runoff that cannot be retained on site due to site constraints.

Yes____ The level of pollutant removal from BMPs shall be calculated consistent with No__X_ EPA Region 1’s BMP Performance Extrapolation Tool.

If you answered no to this newly proposed MS4 requirement, as you almost certainly did, you will have

to include it when the new MS4 permit takes effect, unless, of course, EPA revises the provision. Keep in

mind that there are 3 key parts to this proposal that your Bylaw will have to include:

1. It applies to all impervious surfaces on a parcel of land, not just the portion of land that the project will disturb. This applies to both new development and redevelopment. EPA’s proposal is a fairly radical departure from MassDEP’s existing rule for wetland projects.

2. Not retaining the first inch of runoff on site appears to only be an option if full retention is not “technically feasible…due to site constraints.” Only in that case may other, non-retention BMPs be used on the portion of runoff which is infeasible to retain on site, Those non-retention BMPs must achieve a “level of pollutant removal equal to or greater than (that) provided

through the use of biofiltration,” generally believed to be about 70%.

3. The level of pollutant removal from non-retention BMPs must be consistent with EPA Region 1’s BMP Performance Extrapolation Tool. This Tool, however, only calculates pollutant removal from BMPs for nitrogen, phosphorus, zinc and TSS. EPA has said verbally that for other pollutants, including bacteria, non-infiltration BMPs must still be implemented, though precise pollution reductions need not be calculated.

Section 8.C.(1) (p. 34) of the Model Stormwater Regulation, which we recommend you adopt once the new MS4 permit is finalized, meets all three of these proposed MS4 requirements, including what EPA has said verbally. Furthermore, it provides clarity where EPA does has not on how to choose the best non-retention BMPs, if necessary, for pollutants other than TN, TP, TZ and TSS:

Such BMPs must be chosen to maximize reduction of pollutants for which the receiving water exceeds Water Quality Standards, with preference for BMPs that are consistent with any TMDL; and

The effectiveness of the BMPs chosen for each pollutant of concern must be determined in accordance with the Massachusetts Stormwater Handbook, Vol. 2, Ch. 2. The Handbook lists the percentage reduction potential of each BMP for each pollutant.

Finally, but very importantly, we have developed a Model Guidance identifying precisely which BMPs, retention and non-retention, are most effective at removing bacteria from runoff. The identification of these “pathogen-effective” BMPs comes from state Stormwater Handbook as well as guidance issued by the Boston Water & Sewer Commission. Once your revised Bylaws and Regulations are adopted (after the new MS4 permit is finalized in most cases) we urge your Stormwater Permitting Authority to adopt our Guidance as well. See Model Regulation Section 8.C.(1) (p. 34) of the Model Stormwater Regulation,

Question 12. For discharges into waters where phosphorus is a cause of impairment (i.e., where a water body is listed as “impaired” for phosphorus on EPA’s 303 (d) list), does your bylaw require that BMPs be optimized for phosphorus removal, as required by the proposed new MS4 permit? [NOTE: This provision will apply to all Neponset

Yes___ municipalities.] ___

No_X_If you answered no to Question 12, you will have to amend your Bylaw to include it when the new MS4 permit is finalized. See Model Regulations Section 8.C.(1), last paragraph (p.32).

Question 13. For discharges into waters where nitrogen is a cause of impairment, does your Bylaw require that BMPs be optimized for nitrogen removal as required by the proposed new MS4 permit? [NOTE: This applies only to Foxborough, Sharon and Stoughton in the Neponset watershed.]

Yes___ No___NA

If you answered no to this question, and your town is Foxborough, Sharon or Stoughton, you will have to amend your Bylaw to include it when the new MS4 permit is finalized. See Model Regulations Section 8.C.(1) (p. 32).

Question 14. Does your Bylaw or Regulation require projects applying for permits to comply with state Stormwater Standards?

Yes_ X YOUR BYLAW SHOULD REFER TO “STORMWATER STANDARDS,” HOWEVER, AS THE STATE “STORMWATER POLICY” NO LONGER EXISTS.

No__If you answered no to this question, we recommend that you make your Stormwater Bylaws consistent with the state Wetlands Protection Act and Water Quality Certification Regulations by amending them. Since in most towns Conservation Commissions implement both the Wetlands Regulations and the local Stormwater Bylaw, the rules for each should be as similar as possible. PLEASE ALSO SEE OUR RECOMMENDATIONS UNDER QUESTIONS 15 – 18, below. And see Model Regulations Section 8.B. (p. 31).

Question 15. Are your Bylaws and Regulations free of provisions that conflict with DEP Stormwater Standards (for example, some local Bylaws allow reduction of 40% of existing impervious surfaces to constitute compliance with DEP redevelopment

Yes_X requirements)?No___

If you answered no to this question, we recommend that you make your Stormwater Bylaws consistent with the state Wetlands Protection Act and Water Quality Certification Regulations by removing conflicting

provisions. PLEASE ALSO SEE OUR RECOMMENDATIONS UNDER QUESTIONS 14, 16, 17 and 18.

Question 16 . Does your Bylaw contain a provision for projects subject to local stormwater permitting that is “at least as stringent as” the following new requirement in EPA’s new MS4 permit proposal?

“All BMPs installed as part of the site’s stormwater management system shall be constructed in accordance with the Massachusetts Stormwater Handbook

Yes___ Volume 2, Chapter2. No__X

Regardless of your answer to this question, we recommend that you make your Stormwater Bylaws consistent with the state Wetlands Protection Act Regulations by having them require that BMPs be “selected” as well as “constructed” in accordance with the Handbook. PLEASE ALSO SEE OUR RECOMMENDATIONS UNDER QUESTIONS 14, 15, 17 and 18. And see Model Regulations Section 8.B. (p. 31).

Question 17. Do your Bylaws or Regulations specifically require projects to comply with the Massachusetts Stormwater Handbook as well as the Stormwater Management Standards (projects subject to the Wetlands Protection Act are required to comply with

Yes___ the entire Handbook, which is much more detailed than the Standards)? No_X_

If you answered no to this question, we recommend that you make your Stormwater Bylaws consistent with the state Wetlands Protection Act and Water Quality Certification Regulations by always referring in your Bylaw and Regulations to the “Stormwater Standards as further defined in the Massachusetts Stormwater Handbook.” Despite the use of that phrase in the Wetlands Protection and Water Quality Certification Regulations themselves, few applicants or Conservation Commissions normally consult the Handbook when they apply the Standards. This is a critically important issue as the Handbook identifies the appropriate BMPs to use to meet Stormwater Standards and it requires applicants to address TMDL pollutants even though the Standards themselves refer only to TSS (see Question 18, below). PLEASE ALSO SEE OUR RECOMMENDATIONS UNDER QUESTIONS 14, 15, 16 and 18. And see Model Regulations Section 8.B. (p. 31).”

Question 18. Are projects that need stormwater permits specifically required to implement BMPs that are “consistent with” any applicable Total Maximum Daily Load(s)? All waters in the Neponset River Watershed are subject to a Bacteria TMDL,

Yes___ and this consistency requirement is included in the MA Stormwater Handbook.No_X_

If you answered no to this question, we strongly recommend that you amend your Bylaw or Regulation as soon as possible to make them consistent with the state Wetlands Protection Act and and Water Quality Certification Regulations. As noted above regarding other Handbook requirements (see Question 17), this one is not generally observed by Conservation Commissions or applicants as it is hidden in Vol. 1, Chapter 2 of the Handbook, far from the explanation of the Stormwater Standards in Chapter 1.

For the Neponset, this is partly because MassDEP refuses to say which BMPs are, in fact, consistent with our Bacteria TMDL. However, as mentioned in our recommendations under Question 11, above, we have developed a Model Guidance identifying precisely which BMPs, are most effective at removing bacteria from runoff. The identification of these “pathogen-effective” BMPs comes from state Stormwater Handbook as well as a Guidance issued by the Boston Water & Sewer Commission. However, your Bylaw or Regulations must require that BMPs be consistent with TMDL(s) before you can adopt this Guidance, which we hope you will. PLEASE ALSO SEE OUR RECOMMENDATIONS UNDER QUESTIONS 14 – 17, above. And see Model Regulations Section 8.B. (p. 31) for the precise language that we recommend you use.

Question 19. If your town has construction standards that apply to stormwater management measures, are they consistent with the BMP design standards and criteria

Yes___ contained in Vol. 2, Ch. 2 of the MA Stormwater Handbook?No_X_ SEE QUESTION 17.

If you answered no to this question, you should speak to whatever town official, department, of board issued the construction standards to discuss how they could be revised (or be waived, if necessary) so as not to be inconsistent with the Stormwater Handbook, which applicants must follow under the Stormwater Bylaw. This is equally relevant for projects that file Wetland Protection Act Notices of Intent.

Question 20. Does your Bylaw contain a provision for projects subject to local stormwater permitting that is “at least as stringent as” the following new requirement in EPA’s 2014 MS4 permit proposal?

“Stormwater management systems designed on sites with documented soil contamination or management systems designed on industrial sites shall not include BMPs that promote infiltration and shall instead require use of

Yes____ treatment BMPs on site.”No_X_

We make no recommendation on this proposed new MS4 requirement until it is clarified by EPA. However, we have included this requirement, copied verbatim from the proposed new MS4 permit at Model Regulation Section 8.C.(2) (p.32).

Question 21. Does your Bylaw contain a provision for projects subject to local stormwater permitting that is “at least as stringent as” the following new requirement in EPA’s 2014 MS4 permit proposal?

“Stormwater management systems designed to include infiltration near environmentally sensitive areas, including public water supplies and any other sensitive area as determined and documented by the (stormwater authority) shall incorporate designs that allow for shutdown and containment where

Yes___ appropriate to isolate the system in the event of an emergency spill or other No_X_ unexpected event.”

If you answered no to this question, you will have to amend your bylaw when the new MS4 permit is finalized. We also recommend, as EPA does in the proposed MS4 permit, that owns identify additional “sensitive areas,” in their Bylaws or Regulations such as specific public water supply protection areas, swimming beaches and cold water fisheries. See Model Regulations Section 8.C.(3) (p.32).

C. Sedimentation and Erosion Control

Question 22. Does your Bylaws contain the following three requirements for construction site stormwater runoff bylaw provisions, as required in the existing MS4 permit?

• construction activities which result in a land disturbance of an acre or more must implement erosion and sediment controls at construction sites which include Best Management Practices appropriate to site conditions, including efforts to minimize the area of land disturbance;

• they must control of wastes including discarded building materials, concrete truck wash-out, chemicals, litter, and sanitary wastes; and

• the town must possess the authority to implement sanctions to ensure

Yes___ compliance?No__X_ YOUR BYLAW DOES NOT REQUIRE MINIMIZATION OF LAND DISTURBANCE OR SPECIFY

THE TYPES OF WASTE THAT MUST BE CONTROLLED.

If you answered no, you should revise your Bylaw immediately to comply with current MS4 permit. Also see Model Regulation Section 9.D. (p. 36) and (regarding sanctions) Model Bylaw Article III.8.D. (p. 16).

Question 23. Does your Bylaw contain a provision for projects subject to local stormwater permitting that is “at least as stringent as” the following proposed new MS4 permit provision?

“Stormwater management systems shall be designed to avoid disturbance of Yes___ areas susceptible to erosion and sediment loss.”No__X_

Unless your current Bylaw or Regulation lists the areas that are susceptible to erosion and sediment loss, you should answer “no” to this question. We recommend that to the greatest extent practicable, permit applicants to required to avoid disturbing thickly forested areas, steep slopes (e.g., 15% or greater) and areas within floodplains. And see Model Regulation Section 9.D. (p. 36).

D. Operation & Maintenance Requirements

Question 24. Do you require development and redevelopment projects seeking stormwater permits to have long-term operation and maintenance (O&M) plans for post-construction stormwater management systems as required in the current MS4 permit?

Yes_X_No___

If you answered no, revise your Bylaw immediately to comply with current MS4 permit. See Model Regulation Section 10 (pp. 38-40).

Question 25. Does the O&M Plan required in your Bylaw for projects subject to local stormwater permitting include a provision that is “at least as stringent as” the following new requirement in EPA’s 2014 MS4 permit proposal?

“Long term operation and maintenance plans must include a requirement to “inspect and repair installed BMPs to ensure they are functioning according to

Yes_X__ manufacturer or design specifications.” No____

If you answered no to this question, you will have to amend your Bylaw or Regulation when the new MS4 permit is finalized. HOWEVER, we suggest that you deal with this new requirement by adopting the recommendations we make under Question 26, below.

Question 26. Does your O&M “Program” (not necessarily your Stormwater Bylaw or Regulations) have “procedures to ensure adequate long-term O&M, as required in the new MS4 permit proposal ?” Note that the proposed new permit also requires that MS4s “report in the annual report on the measures that they have utilized to meet this requirement.” The proposed new MS4 permit goes on to say these procedures may include:

the use of dedicated funds or escrow accounts for development projects the acceptance of ownership by the permittee of all privately owned BMPs. the development of maintenance contracts between the owner of the BMP

and the permittee. the submission of an annual certification documenting the work that has

been done over the last 12 months to properly operate and maintain the Yes____ stormwater control measures.No__X_

We believe this is an extremely important and wise proposal, as towns currently have virtually no capability (given staff and funding restraints) of ensuring that O&M Plans are being complied with in the years after project completion. In addition to the four procedures listed above that EPA says towns “may use,” we recommend consideration of two additional options: annual certifications of compliance (which MassDEP has found to be very effective) and recording of O&M Plans at the Registry of Deeds (so that potential property buyers will know of their O&M obligations in advance of purchase).

Regardless of your answer to this question, you should consider making the six O&M “procedures” listed above into regulatory requirements, since they appear to apply only to projects with stormwater permits. We recommend that your Bylaw direct the Stormwater Permitting Authority to require one or more of these options at their discretion. In addition, we believe that application fees ought to cover, among other things, the cost of developing a computer program to track compliance with O&M requirements and issue regular reports on violations. See Question 41, below, on establishment of permitting fees. See Model Stormwater Regulations Section 10.(6) (pp. 40-41) for the precise language that we recommend you use.

E. Bans on Illicit Discharges and Connections

Question 27 Do you have a provision in your Stormwater Bylaw or other municipal ordinance that prohibits non-stormwater discharges to your MS4 and enables you to take enforcement action against any such “illicit” discharge or connection, as required by the current MS4 permit?

Yes_X However, your Bylaw should not contain this prohibition solely in Section 1 No____ (Purposes) and Section 3 (Applicability). The ban should be stated directly.

If you answered no to this question you should revise your Bylaw immediately to comply with current MS4 permit requirements. See also recommendations under Question 28.

Question 28 Does your Stormwater Bylaw or other municipal ordinance provide “adequate legal authority to accomplish the following tasks (in addition to prohibiting illicit discharges and taking appropriate enforcement action, as required in the 2003 MS4 permit): investigate suspected illicit discharges to the MS4; eliminate such discharges, including those from properties not owned or controlled by the MS4;” and “notify all responsible parties for any such discharge and require immediate

Yes___ cessation, as required in the proposed new MS4 permit? No_X_

If you answered no to this question, you will have to amend your bylaw or regulations to comply with the new MS4 permit is finalized. This provision will need to be quite detailed. See Model Bylaw Article II Section 2 (pp. 11-12) for appropriate language. Also see Model Bylaw Article III Section 8 (pp. 15-16) regarding enforcement.

F. Review of Projects Below Permitting Thresholds

Question 29. Are there any requirements for projects that are too small to need a full stormwater permit and if so, what size and type of projects do they apply to?

Yes_X 7,500 s.f.No___

If you answered no to Question 29, we strongly recommend that you adopt at least some requirements for non-exempt that are too small to require permits.. As stated in our recommendations under Question 4, it will be very difficult for towns to comply with some of the new MS4 requirements (such as bans on new or increased MS4 discharges) if small projects do not have to institute even the cheapest and most

reasonable of stormwater management measures. Many towns in the Neponset Valley do have some stormwater requirements for projects that don’t need stormwater permits.

We recommend that some level of review and approval less stringent than that required of permitted projects be required for all non-exempt projects that disturb 5,000 sq. ft. of more of land or which develop or redevelop 1,000 sq. ft. or more of impervious surface. See Stormwater Regulation Section 5.A.(1) (p. 25) for appropriate language.

Question 30 If the answer to Question 29 is yes, do these projects have to meet specificYes_X design or performance standards , and if so, what are they? No___

If you answeryes to Question 29 but no to Question 30, we would argue that some regulatory standards for covered projects are essential. Such standards should be modest for covered projects associated with single family homes, but should be somewhat tougher for small projects on large commercial or industrial parcels. We recommend that covered projects be required to:

• retain the first 1 inch of rainfall on site or, if that is not possible due to site constraints, • comply with the state Stormwater Standards to the maximum extent practicable.

The definition of “practicable,” which we took from the Riverfront Area provisions of the Wetlands Protection Regulations(310 CMR 10.58(4)(c)1.) is critical to establishing a limit on what can be expected from non-permit projects. Practicable should be defined as “available and capable of being done after taking into consideration costs, existing technology, proposed use, and logistics in light of overall project purposes. Project purposes shall be defined generally (e.g., single family home or expansion of a commercial development).” See Model Stormwater Regulation Sec.6.B.(2) (pp. 27-28) for precise language to use.

Question 31. If the answer to Question 29 is yes, are these projects required to go through some level of town review before construction may begin (and if so, what is the

Yes_X nature of the review)?No___

If you yes to Question 29 and 30 but no to this question, we would suggest that compliance with even the most modest performance standards cannot be ascertained without some level of local review. We recommend that applications for such projects be required to submit only the following:

a modest site drawing including existing conditions and areas of proposed land disturbance;

proposed stormwater management measures (construction site and post-construction)

basic erosion and sedimentation controls a simple Operation & Maintenance Plan acknowledgement that the applicant will submit as-built

drawings upon project completion.See Model Stormwater Regulation Sections 6A. and 6B.(1) (pp. 26-27).

G. Miscellaneous Bylaw/Regulatory Provisions

Question 32. Does your stormwater bylaw authorize the issuance of regulations? Yes_X_No____

If you answered no to Question 32, we recommend that you amend your Bylaw so that it authorizes the Stormwater Authority to establish detailed requirements for appropriate stormwater management measures by Regulation. Regulations do not need approval from Town Meeting and thus can be revised much more easily. Many of the recommendations in this document don’t need to be in Bylaws (which should generally be kept short) if the Bylaw authorizes the Stormwater Authority to deal with them in Regulations. See Model Bylaw Article I Section 6 (p. 10) and Model Regulation Section 4.C. (p. 25) on how to establish this authority.

Question 33. If so, have you adopted Regulations?Yes__No_X_

If you answered no to this question, see recommendation under Question 32, above.

Question 34. Does your Stormwater Bylaw or Regulation provide credits or other incentives for use of Low Impact Development (LID) techniques, as delineated in the

Yes__ Massachusetts Stormwater Handbook? No_X_

If you answered no to this question, you should seriously consider adopting provisions such as the ones in the Wetlands Protection Regulations that require applicants to “consider” and give preference to Low Impact Development (LID) techniques. Such techniques are the

most effective method of reducing runoff and its pollutant levels and are often cheaper for developers to use than conventional techniques. Many developers feel, however, that even if they use LID they’ll still have to comply with normal Stormwater Standards. Credits for LID techniques, and the methods for calculating them,can allay those fears. It is especially easy to include them in your Stormwater Bylaw by simply by referencing the Stormwater Standards and Handbook. See Model Regulation Sec. 11.A.(3) (pp. 41-42).

Question 35. Do the permit application filing requirements of your Bylaw or Regulation include at a minimum all the information and materials (other than those specific to wetlands) listed on the Wetlands Notice of Intent and Stormwater Checklist forms? If not

YES__ what is left out?No_X_

MassDEPs Wetlands Program has very comprehensive permit filing requirements, including a Stormwater Checklist. If you answered no to this question, why reinvent the wheel when you can simply use DEP’s filing rules. See Model Regulations Sections 7A (p. 29), 8A (p. 31), 8.D. (pp. 38-40), 9 (pp. 36-38), and 10 (pp. 38-40).

Question 36. Does your Stormwater Bylaw, Regulation or other procedure “require, at a minimum, the submission of as-built drawings no later than one year after completion of construction projects (that) depict all on site controls, both structural and non-structural, designed to manage the stormwater associated with the completed site, as required in the proposed new MS4 permit?”

Yes__No_X_

If you answered no, you’ll have to change your current provision when the new MS4 permit takes effect. See Model Regulations Sec. 8.C.(7) (p. 33).

Question 37. Does your Bylaw/Regulation require a Certificate of Compliance (or Yes__ something similar)? No_X_

If you answer no to this question, we recommend using this very sensible requirement of the Wetlands Regulation to ensure that projects have actually been built as permitted. See Model Regulations Section 15, (p. 46).

Question 38. Must the Certificate of Compliance (CoC), if any, or the Operation and Maintenance Plan be recorded at the Registry of Deeds (the Wetlands Protection Act

Yes__ Regulations require that CoCs be recorded)?No___NA If you answered no to this question, you may wish to follow the example of the Wetlands Protection Act Regulations by doing

so. That way, potential property buyers will know of their ongoing stormwater management obligations in advance of

purchase. We recommend requiring the recording of the Operation & Maintenance Plan as an alternative way to accomplish

this (see Question 26).

Question 39. Does your Stormwater Bylaw or other municipal ordinance provide authority to enforce and issue fines for violation of the Stormwater Bylaw or Regulation,

Yes_X as required by the current MS4 permit?No___

If you answered no to this question because and you don’t have the authority to enforce your Bylaw,, then you should establish enforcement authority as soon as possible to comply with a requirement of the existing MS4 permit. If you answered no to this question because you don’t have the authority to issue fines, we recommend establishing that authority as one of the most effective ways to enforce your Bylaw. As stated in the question above, however, the authority to enforce and issue fines for violation of your Wetlands Bylaw does not have to be in the Stormwater Bylaw itself but may be contained in another general town ordinance. See Model Bylaw Article III Section 8 (pp. 15-16).

Question 40. Does your Stormwater Bylaw or other municipal ordinance provide Yes___ authority to require surety bonds to guarantee performance of the work as permitted?No_X_

If you answered no to this question, you may want to consider adding this authority to your Bylaw as another way, along with requirement to obtain a Certificate of Compliance, of ensuring that work performed is the same as the work permitted. Surety bonds may not be necessary in many cases, but they are a good tool for Stormwater Auathorities to have, for example, for large projects or developers who have violated their permit in the past. See Model Bylaw Article III Section 6 (pp. 14-15).

Question 41. Do you have authority under your Stormwater Bylaw or under another municipal ordinance to collect application and consultant fees which can be used to

Yes___ enhance the effective implementation of the Stormwater Bylaw and Regulations?No_X_

If you answered no to this question, we highly recommend that you adopt application and consultant fees. Application fees should be set to offset town costs of administering its stormwater permitting program. Consultant fees gives the Stormwater Authority the ability to obtain expertise for a particular case on which the Authority may not have adequate expertise to evaluate a particular proposed project. Consultant fees need not, of course, be collected or used for proposals except as necessary. See Model Regulations Sections 6A (p. 27) and 7D (p. 29) .

Question 42. Do you have a requirement, in your Stormwater Bylaw, Regulations or Yes___ otherwise, that dog poop be picked up and properly disposed of?No_X_ YOUR WEBSITE HAS A “Q & A ABOUT THE PROPOSED STORMWATER BYLAW”

WHICH SAYS: “IT WOULD BE IDEAL IF POLLUTANTS LIKE PET WASTE WERENOT LEFTO ON LAWNS OR SIDEWALKS, BUT THIS IS DIFFICULT TO ACCOMPLISH & ENFORCE. THE TOWN WILL NOT FINE RESIDENTS.” FOR THIS.

If you answered no to this question, you should seriously consider adopting this requirement, as many other towns like yours have done. The requirement is especially critical in towns like those in the Neponset watershed which are subject to Bacteria TMDLs. Dog waste is a major source of bacteria in stormwater runoff and some aspects of proper dog waste management are covered in both the existing and proposed MS4 permits (though they do not require adoption of a dog waste ordinance). See Model Bylaw Article II Section 3 (p. 12)..

Question 43. If so, are there fines for violation of this requirement? Yes___No____NA If you answered no to this question and you’re having problems with dog poop in parks, lawns or streets (or

If dog poop is sometimes picked up, bagged, and thrown down a storm drain), you may want to authorize fines.

This can include warnings for first offenders. See Model Bylaw Article III Section 8 (pp. 15-16).

H. Non-bylaw Internal Coordination Question

Question 44. Do you consider there to be a good level of coordination and cooperation among the stormwater permitting authority and other local boards and officials whose

Yes__ permits may impact stormwater management? If not, do you consider the level of No_X coordination to be fair or poor, and why?

If you answered no to this question, you probably have some important work to do. Establishing a close level or cooperation within a town is not, of course, primarily a matter that can be dealt with in a Bylaw, though agreement by boards and officials about what should be included in various Bylaws, and making sure that Bylaw requirements don’t contradict other Bylaw requirements, is essential. Having stormwater management systems meet Planning Board requirements when those requirements differ from the Stormwater Permitting Authorities is, of course, a waste of everyones time.

In addition, you may want to consider adopting a Stormwater Bylaw or Regulatory provision that says:

“Persons required to obtain a stormwater permit under this Bylaw (or Regulation) shall obtain such permit before receiving any other building,grading or other development permit.”

We also recommend that you consider:• providing (or requiring applicants to provide) copies of

stormwater permit applications to all other relevant town boards, commissions, departments and officers, and giving them a reasonable amount of time to comment before a public hearing is held;

• having a single staff person or consultant with stormwater expertise working with all the relevant town boards and staff; and/or

• establishing a committee of relevant town board members and employees to set consistent permitting rules and procedures.

cic stormwater grant/Dec 10, 2014 DRAFT final questionnaire with recommendations.milton2.docx