Storm water

Partnership Addressing Cutting-Edge Municipal Storm Water Control Issues

The Wet Weather Partnership is playing an increasingly prominent role in urban storm water control issues nationally as well as with key regional and local issues. We are especially focusing on the following major issues, many of which are also relevant to CSO control.

Opposing the imposition of NPDES permit requirements that exceed the "maximum extent practicable" standard in the Clean Water Act

EPA Attempting to Impose Unattainable Permit Requirements on the District of Columbia
Opposing Total Maximum Daily Load requirements for municipal storm water that exceed the “maximum extent practicable” standard in the Clean Water Act

Wet Weather Partnership Opposes Unattainable TMDL Requirements for Urban Storm Water.
Obtaining seasonal and annual loading requirements in NPDES permits and TMDLs for storm water discharges to facilitate community compliance

Wet Weather Partnership Defends Annual/Seasonal TMDL Loads for DC Storm Water.

Helping communities ensure their Storm Water Management Plans are consistent with the “maximum extent practicable” requirement

The Wet Weather Partnership’s General Counsel will review your Storm Water Management Plan and offer suggestions about how it compares to other plans from communities across the country.

City of Dallas sued by citizens alleging that the City’s Storm Water Management Plan fails to include best management practices to control storm water to the maximum extent practicable.

Working with States and EPA to establish appropriate designated uses for urban waters during wet weather events.

Wet Weather Partnership secures EPA commitment to add three wet weather designated use reviews to National Designated Use Plan, 2004.
Working with key members of Congress should a clarification to the “maximum extent practicable” language become necessary

Opposing efforts by citizen activists to use storm water control requirements to prevent community growth and development

Control the cost of urban storm water control by holding federal and state mandates to those controls that are affordable, cost-effective, and provide a public benefit while seeking federal and State grant funding to help fund those controls. We firmly believe having federal and state dollars in the storm water program is the best way to control storm water mandates.

Establish a federal environmental trust fund that will provide funding for a wide range of environmental priorities, including storm water control.

Wet Weather Partnership’s Federal Environmental Trust Fund Proposal.

A brief summary of our advocacy relating to many of these issues is provided below.

I. EPA Attempting to Impose Unattainable Permit Requirements on the District of Columbia

EPA has negotiated a proposed settlement with two environmental activist groups that filed an appeal of EPA Region 3’s recent storm water permit for the District of Columbia’s separate storm sewer system. As part of the potential settlement, EPA has agreed to reissue DC’s permit with several more stringent water quality-based effluent limits for storm water.

If the permit is reissued as it has been reproposed, that should moot the original appeal filed by the citizen groups over the original permit.

The Wet Weather Partnership, NACWA, NLC, APWA, NAFSMA, West Virginia Municipal League, Virginia Municipal League, et al have filed joint comments on the permit objecting to the imposition of numeric effluent limits and numeric TMDL-based load limits .

We have also vigorously objected to a requirement that DC’s storm water discharge not cause or contribute to water quality standards violations. That is simply an impossible condition to comply with.

If EPA reissues the permit with the water quality compliance language that is impossible for municipalities to meet, we will likely be compelled to file an appeal (assuming DC and DC WASA concur).

In addition to the water quality compliance language we have objected to, we are also concerned about far too extensive monitoring requirement being imposed by States and EPA. The cost to monitor a substantial number of storm water outfalls is prohibitive. Monitoring of a representative number of outfalls should suffice instead of requiring monitoring at a substantial percentage of a community’s outfalls in any particular rain event.

Here is the relevant water quality requirements from the proposed permit for DC:

PROPOSED EPA MS4 PERMIT FOR DC (PARTS I.C & I.D)

C. Limitations to Coverage

Section 402(p)(3)(B)(ii) of the Clean Water Act specifically prohibits non-storm water entering the MS-4. The Permit does not authorize the Permittee to discharge pollutants from the MS4 as described herein:

1. Non-Storm Water and Phase I and Phase II Storm Water

Discharges of non-storm water (other than those listed in Part I.B. of this permit) are prohibited except where such discharges are:

a. Regulated with a General NPDES permit for Phase I or Phase II storm water discharges, or

b. Regulated with a individual NPDES permit.

2. All discharges of pollutants to or from the MS4 system that cause or contribute to the exceedance of the District of Columbia water quality standards are prohibited.

D. Effluent Limits

1. MEP Effluent Limit - The permittee shall implement the controls, Best Management Practices (BMP), and other activities necessary to reduce pollutants as set forth in the Upgraded Storm Water Management Plan dated October 19, 2002. Unless and until modified consistent with Part VII.P (Reopener Clause for Permits) of this Permit, the Upgraded Storm Water Management Plan requirements expressed in the form of BMPs, represent the controls necessary to reduce the discharge of pollutants to the Maximum Extent Practicable in accordance with 40 CFR Part 122.44(k)(2).

2. WQBEL Effluent Limit - The permittee shall implement the controls, Best Management Practices (BMPs), and other activities necessary to reduce pollutants as set forth in the Upgraded Storm Water Management Plan dated October 19, 2002, and all other requirements of this Permit (including but not limited to the narrative prohibition on discharge of pollutants from the MS4 set forth in I.C. of this Permit). EPA reserves the authority to modify this effluent limit as described below in Part VII.P (Reopener Clause for Permits) of this Permit.

3. Effluent Limits Consistent with TMDL WLA - The permittee shall implement controls, Best Management Practices (BMPs), and other activities necessary to reduce pollutants as set forth in the Upgraded Storm Water Management Plan dated October 19, 2002, and to comply with all other requirements of this Permit (including but not limited to the narrative prohibition on discharge of pollutants from the MS4 set forth in I.C. of this Permit). As further described in Part IX.B of this Permit, in addition to complying with the effluent limits I.C and I.D of this Permit, the Permittee is required to submit and implement implementation plans specific to the Anacostia River Total Maximum Daily Load (TMDL) wasteload allocations (WLAs) and Rock Creek TMDL WLAs in accordance with the schedule set forth in Part III.A Table 1 of this Permit.

II. Wet Weather Partnership Opposes Unattainable TMDL Requirements for Urban Storm Water.

The Wet Weather Partnership is aggressively opposing “desk-top” or “drive-by” TMDLs prepared by State agencies and U.S. EPA that impose enormous storm water pollutant loading reduction requirements. Our primary concern is that these reductions are not attainable with best management practices.

Increasingly, we are seeing TMDLs around the country imposing storm water reduction requirements in the 50-99 percent range. These reductions are simply not attainable. Consider that hundreds of TMDLs for bacteria (fecal coliform, enterococcus, or e. coli) impose 50-99% reduction requirements on urban storm water. Communities don’t even try to disinfect urban storm water so how can they possibly attain these reduction levels? In fact, common storm water control practices – such as settling ponds – can exacerbate bacteria levels.

While US EPA has acknowledged the non-attainability of this level of storm water reduction, they continue to impose unattainable reduction requirements in TMDLs. For example, EPA is on record that for all but infiltration technologies, “<30%” reduction in removal of pathogens can be expected from typical storm water BMPs. See Preliminary Data Summary of Urban Storm Water Best Management Practices (EPA-821-R-09-012, August 1999).

Ideally, we would like EPA and the State NPDES permitting agencies to perform a use attainability analysis whenever serious questions about attainability are raised. The UAA process is designed to determine what designated use is attainable during the period in question – especially during wet weather – and the water quality standards that can be met to support the designated uses. Applying dry weather swimming uses and associated standards during wet weather events is highly inappropriate in most situations.

EPA Region IV did exactly this in a recent TMDL for the Savannah River. Because the River is an interstate water separating Georgia and South Carolina, EPA prepared the TMDL. EPA’s TMDL states that in order to meet the existing water quality standard for the River of 3.0 mg/L dissolved oxygen, it would require the elimination of all point source discharges to the river. EPA describes this level of reduction as “neither desirable nor practicable.” Accordingly, EPA recommends that both South Carolina and Georgia adopt a revised standard of 2.3 mg/L as a daily average. At this standard, an attainable thirty percent reduction in dissolved oxygen from the point sources would be required. This is the right way to prepare meaningful TMDLs!

A second approach when current designated uses and WQS are not attainable is to specify what is estimated to be attainable with the implicit understanding that before requirements beyond the attainable reduction will be imposed, the State/EPA will further address the attainability issue. This approach is being taken by the State of Maryland.

Where substantial attainability questions exist in a TMDL, the Maryland Department of the Environment will identify the “maximum practicable reduction” or “MPR” estimates for multiple sources of the pollutant of concern. Maryland then attempts to allocate load reductions such that sources will not be asked to reduce below the MPR level of reduction. Where reductions beyond the MPR level must be imposed to meet the water quality standard, Maryland will impose the reduction necessary to meet the standard but will acknowledge that this reduction exceed the MPR level. This is not perfect, but at least gives a community something to point to if a citizen group or EPA seeks to require controls to get reductions beyond the MPR level.

Finally, if your State/EPA Regional office won’t take either of the above approaches, you should strive to have them memorialize in the TMDL that the reductions imposed on your storm water discharges are unattainable or at least that a significant question of attainability exists. This could be a critical lifeline for you if someone seeks to force you to reduce your storm water loadings to the levels specified in the TMDL.

III. Wet Weather Partnership Defends Annual/Seasonal TMDL Loads for DC Storm Water.

Earlier this year the Friends of the Earth (FOE) filed an appeal over the very favorable decision last November by Judge Urbina, holding that the CWA does not require that TMDLs express daily loading restrictions for CSO and storm water discharges.

The crux of the challenge by FOE to TMDLs for the Anacostia River was that:

The loadings for BOD were established as ANNUAL loads instead of daily

The loadings for TSS were established as SEASONAL loads instead of daily.

The annual and seasonal loads would not ensure attainment of applicable WQS during wet weather (CSO and storm water) events

The TMDL impermissibly allocates loadings to categories of discharges (storm water and CSO) instead of loadings for individual outfalls.

Judge Urbina rejected all of FOE’s attacks on the TMDL, including their demand that the TMDL impose daily rather than seasonal and annual loads.

In addition to providing key legal arguments in the case, the CSO Partnership and AMSA pointed out to the court that an adverse decision would necessarily overturn numerous (specifically identified) other TMDLs developed over the years for DC waters. These TMDLs included a couple that were litigated on other grounds and upheld by the same District Court. We also noted that an adverse decision would also overturn 20 years of program implementation by EPA using non-daily loads for certain pollutants (i.e., nutrients) and discharges (i.e., wet weather). In at least one place, the Court went out of its way to provide an argument that EPA overlooked in the decision upholding the TMDL. We do not believe the court would have done this if it were not properly worried about the impact of a decision overturning this TMDL. This is another of a line of cases that shows how important it can be for regulated municipalities to participate in selected challenges against EPA to help EPA defend what flexibility and rationality there may be in some of the regulatory programs.

On appeal, FOE has directly attacked Sections 402(p) (storm water) and 402(q) (CSO) as not providing a basis for non-daily load allocations in TMDLs. If we lose this case, it could trigger daily pollutant load requirements that would turn the CSO Policy’s annual average approach to planning on its head. Also, daily TMDL loadings are likely impossible to achieve and, therefore, would be inconsistent with the requirement to control municipal storm water to the “maximum extent practicable.”

IV. City of Dallas sued by citizens alleging that the City’s Storm Water Management Plan fails to include best management practices to control storm water to the maximum extent practicable.

Recently, the City of Dallas was sued by the Environmental Conservation Organization, which alleged that the City has not complied with its storm water management plan. In the complaint, ECO alleges that:

Dallas has “all but ignored its obligations under the SWMP portion of its MS4 permit” and has failed to complete a number of tasks.

Dallas “has submitted false and misleading information to EPA concerning its compliance with the MS4 permit.”

The City’s “reports to EPA did not include accurate information concerning the City’s activities and violations.”

There are two points of concern to Wet Weather Partnership members regarding this suit. First, you can see the risk that your storm water management plans pose to you. Increasingly, citizen groups are seeking to enforce the requirements in those plans either from a concern about receiving waters or as a way to slow/prevent growth.

Second, these allegations are fact-specific. There is no easy, quick or inexpensive way to defeat this type of lawsuit. Because SWMP requirements are usually specified as best management practices, a fact-specific inquiry will result in these types of cases. Moreover, often if the Plaintiffs can prevail on just one issue, they will win their legal fees (typically for all of the issues that they brought even though they may have lost on them).

The bottom line is that everyone should ensure they have updated SWMPs, to the extent you are required to have one. Moreover, your plans should be carefully written and reviewed by senior management to ensure you have set up your program in a way that you can demonstrate compliance.

The only good news for Dallas is that this case does not present a challenge to the City’s discharges as violating water quality standards. That may come later…

V. Wet Weather Partnership secures EPA commitment to add three wet weather designated use reviews to National Designated Use Plan, 2004.

After considerable urging, EPA’s Assistant Administrator for Water has included three wet weather designated use reviews as part of EPA’s National Designated Use Plan, released in 2004. These wet weather use reviews hold great promise for establishing a workable precedent to refine designated uses to accommodate wet weather realities. This is especially critical for urban streams.

The three initial use reviews are underway and will address the following waters: Christina River, Wilmington, Delaware; Ohio River in Wheeling, West Virginia, and various waters in Allegheny County, Pennsylvania.

The Wet Weather Partnership will continue to track and support these and other wet weather use reviews. We believe that if we can get several of these use reviews moving forward, EPA and the States will work to ensure they achieve a reasonable and workable result with regard to wet weather discharges (CSO and urban storm water).

VI. Wet Weather Partnership’s Federal Environmental Trust Fund Proposal.

The Wet Weather Partnership has developed a Federal Environmental Trust Fund proposal. The Fund would be supported by a very modest monthly environmental fee imposed on all residential and business energy bills.

Energy use is directly related to environmental impacts such as mercury deposition, nitrogen deposition in the Chesapeake Bay, acid rain, storm water runoff, thermal discharges, and acid mine drainage. Energy use imposes substantial atmospheric, aquatic, and thermal environmental impacts that are not captured through existing energy charges.

This federal fund is necessary and appropriate to help local governments and states to fund federal environmental mandates.

SCOPE

Fund would be used initially to address water infrastructure funding gap. A specific five-year priority would be included to address sewer overflows. Sewer overflows occur in every community across the country.

Subsequently, the Fund would be a true, national environmental trust fund available to address almost any state environmental priority, including but not limited to: water quality infrastructure (sewer overflows, nutrient removal, security, etc.), land acquisition and conservation, brownfield redevelopment; everglades, estuary programs, Great Lakes, low impact development, storm water management, mercury minimization plans etc.

FEE

Collected by electric providers through existing billing systems (they already collect other state and federal taxes/fees)

$0.50 per month per residential account

$1 per month for non-residential account

Fee would not be imposed on “special” residential accounts (i.e., accounts for poor/elderly that are either subsidized by the Electric company or a governmental entity) or other such accounts.

Fee would likely raise approximately $2 billion annually.

STRUCTURE

Each electric bill would include a line item “environmental restoration fee”.
Collected by electric providers and paid to US Treasury along with other federal charges.
Transferred to Clean Water Act revolving Fund Account in US Treasury
99 cents on the dollar collected distributed back to states from which the money was generated; no reallocation between states
Admin fees for electric utilities (0.5%) and EPA/States (0.5%)
Funds available through State SRF programs to be distributed as grants.
No state matching requirement for these grants in order to facilitate State support
States allocate available grants through SRF program according to State priorities, subject to an initial priority for five years to address sewer overflows.
After initial five years of the Fund:

SRF would be divided into loan side and grant side.

Loan side will protect SRF loan program fund to be used for historical sewer-related purposes.

Grant side will be vehicle to distribute ongoing grant Fund to States. Uses of Grant Fund would be expanded to encompass all environmental restoration.

KEY FEATURES

Fee applied widely so that individual impacts are very small

No new bureaucracies

Streamlined collection and distribution through existing efficient programs (SRF)

Very high return to each state on each dollar sent to DC (likely 98-99%)

No formula/reallocation issues

Would raise $1-3 billion annually

Flexible source of grants to address state environmental priorities

Long-term fund that would be a significant legacy for Congress and the Administration

Protection clause so that impoverished people who get reduced or no electric bills could be exempted from paying

Other Possible Revenue Sources:

Annual congressional earmarks from EPA’s budget bill

Environmental fines and stipulated penalties collected each year pursuant to federal consent decrees, administrative enforcement actions and stipulated penalties that are paid to the federal treasury.