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40 CHAPTER 1 INTRODUCTION 1.1. REGULATORY ENVIRONMENT FOR STATE DEPARTMENTS Laws and Regulations Affecting Department of Trans- OF TRANSPORTATION portation Water Quality Management The National Environmental Policy Act and the Clean Runoff water quality from highways and developed land Water Act of 1972, as amended. These acts hold federal is an environmental concern for federal, state, and local agen- decision makers accountable for activities having the poten- cies involved in the planning, design, construction, and main- tial to impact features of the natural environment--in par- tenance of transportation facilities. As conveyances of urban ticular, water quality (Bank et al., 1995). stormwater runoff, state department of transportation (DOT) The National Pollutant Discharge Elimination System. facilities carry suspended metals, sediments, algae-promoting This program requires discharge permits for industrial and nutrients (nitrogen and phosphorus), floatable trash, used municipal (point source) effluents containing pollutants. motor oil, raw sewage, pesticides, and other toxic contami- Effluent regulations include characterization of stormwater nants into streams, rivers, lakes, and estuaries across the runoff, possibly originating directly from highways and the United States (64 CFR 68,722,4,7, Dec. 8, 1999). In 1985, construction and maintenance of the highway systems. 75% of the states surveyed cited urban stormwater runoff The Nonpoint Source Management Programs, Title 3, as a major cause of waterbody impairment, and 40% reported Section 319. This program also promotes the implemen- construction site runoff as a major cause of impairment (64 tation of best management practices regarding highway CFR 68,726). runoff, as a potential nonpoint source pollutant of surface Congress enacted the Clean Water Act (CWA) in 1948 to and ground water. "restore and maintain the chemical, physical, and biological The Department of Transportation National Transpor- integrity of the Nation's waters" [33 USC 1251(a)] (origi- tation Policy, the Federal Highway Administration nally codified as the Federal Water Pollution Control Act, 62 Environmental Policy Statement, and the Intermodal Stat 1155). The CWA prohibits the discharge of pollutants Surface Transportation Efficiency Act. These policies from a "point source" (any discernible, confined, and discrete and acts specify increased environmental responsibilities conveyance) into the waters of the United States without a per- for policies and programs developed by federal and state mit issued under the terms of the National Pollutant Discharge transportation agencies. Elimination System (NPDES) [33 USC 1311(a), 1342]. The Coastal Zone Reauthorization Amendment. This An NPDES permit requires dischargers to comply with amendment regulates highway runoff water quality and its technology-based pollution limitations (generally accord- environmental impacts in coastal areas. ing to the "best available technology [BAT] economically achievable") [33 USC 1311(b)(2)(A)]. Other legislation--such as the Safe Drinking Water Act, Storm sewers are established point sources subject to the Endangered Species Act, the Resource Conser- NPDES permitting requirements [Natural Res. Def. Council vation and Recovery Act, and the National Wild and Scenic Rivers Act--also contains provisions that may v. Costle, 568 F.2d 1369, 1379 (DC Cir 1977)]. In 1987, to pertain to the water quality of highway runoff. better regulate pollution conveyed by stormwater runoff, Con- gress enacted CWA 402(p), 33 USC 1342(p), Municipal and Industrial Stormwater Discharges. Sections 402(p)(2) and 402(p)(3) mandate NPDES permits for stormwater dis- control them as "necessary to mitigate impacts on water qual- charges "associated with industrial activity," discharges from ity" [33 USC 1342(p)(5)]. large and medium-sized municipal storm sewer systems, and For municipal-type stormwater systems, the technology- other activities, including construction sites. In CWA 402(p), based requirements in the federal stormwater regulations call Congress also directed a second stage of stormwater regula- for the implementation of controls [procedures and best man- tion by ordering the Environmental Protection Agency (EPA) agement practices (BMPs)] to reduce the discharge of pollu- to identify and address sources of pollution not covered by tants to the maximum extent practicable (MEP). In Septem- the Phase I Rule and to establish procedures and methods to ber 2003, the Ninth Circuit Court of Appeals amended an