Category Archives: Stormwater

Who Should Pay for Clean Water?

WaterfallThere's been an ongoing legal dispute in Iowa between the Des Moines Water Works (DMWW) and drainage districts in three Iowa counties to decide who should pay the price to clean up polluted water. It's an interesting case for those of us who are involved in stormwater regulation and water treatment. And it is one more step in the ongoing struggle to determine how best to protect the environment and who is best positioned or most responsible to pay that cost.

Background on the DMWW Case

According to the final ruling document (No. 16-0076), DMWW "is a municipal water utility … that provides drinking water to an estimated half-million Iowans in the Des Moines area." Their water sources are primarily the Racoon and Des Moines Rivers. The watershed for the Racoon River is about 2.3 million acres in size and spans 17 counties in Iowa. DMWW stated in their complaint filed in federal court that "from 1995 to 2014, nitrate concentrations in the Racoon River at the DMWW intake points exceeded the 10 mg/L standard for drinking water at least 1636 days, or 24% of the time." Example concentrations mentioned in the complaint are 11.98 mg/L, 13.23 mg/L, 11.89 mg/L, 13.43 mg/L, and 12.56 mg/L. Therefore in order to provide water to its customers that meets drinking water regulations, DMWW incurred costs at its three treatment plants to reduce this level below the standard. DMWW also noted the need to expend funds in the near future to construct a new facility to handle the continuing elevated levels of nitrate.

In an effort that appears to force a reduction in or capture of these costs, DMWW filed a petition in federal court on March 16, 2015 (Trial Case No. C 15-4020-MWB). According to the Order Certifying Questions to the Supreme Court, the complaint basically alleges the drainage districts, or defendents, are "responsible for the increasing nitrate concentrations in the Racoon River." And because DMWW provides water to its customers from this river, which now has elevated levels of nitrate, it must incur costs it would not otherwise have to in order to reduce these concentrations below regulated standards.

On the defendent side, the drainage districts argued they were not the proper party for this lawsuit. They also indicate that other agencies of the state and federal government are responsible for regulating these matters – not a court of law. In the end, their bottom line was  "the existence and functions of drainage districts are so limited, the Iowa Supreme Court repeatedly, for over a century, has found districts not amenable to suit for damages, i.e., they are entitled to unqualified immunity."

Court Ruling in the DMWW Case

As reported in the online article of the Des Moines Register on Jan. 27, 2017, "the Iowa Supreme Court ruled that Des Moines Water Works cannot win damages under the Iowa Constitution against drainage districts in the three counties it is suing." The article includes an embed of the ruling in case anyone is interested in reading the court's explanation for each count of the complaint. The article also mentions there will be another ruling in June of this year to decide if drainage districts should be considered polluters under the Clean Water Act and subject to those regulations including the need to obtain permits for their discharges.corn

 

Why does this matter?

Water receives contaminants from natural and man-made activity, and removing those contaminants is not free. In the end, someone has to pay the cost, but who? In the Des Moines area, the cost to remove contaminants to provide safe drinking water is currently paid for by the DMWW which most likely passes the costs onto its customers. If the city subsidizes its utility for this purpose then the taxpayers of the city are also paying. But the people paying for that cost are not directly responsible for putting nitrates in the water. Instead studies show elevated contaminants in receiving streams are primarily a result of agricultural operations. (An earlier article in this blog cites a report indicating results of this in Illinois). So should agricultural operators pay the costs to remove contaminants?

Who pays is really what is being decided by lawsuits like the one brought by DMWW. In that case the court's decision leaves those using the water to bear the costs. Whether that is because of the manner in which the complaint was written or the specific defendents named, I cannot really comment on since I am not a lawyer. Articles and opinions I've read on the case indicate the matter is best left to legislators and regulatory agencies. What does seem obvious to me is no matter which entity pays, the cost will always ultimately be passed along to the end user. So whether it is the water or stormwater utility paying or the farmer, it seems we will pay for it through increased water bills to treat our water, taxes to clean our waterways, or grocery bills for increased costs for food production. So really the question should perhaps be How Do We Want to Pay for Clean Water?

 

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Proposed New Rule to Extend Army Corps Jurisdiction and Oversight?

St. Charles on the Fox

According to a recently released Latham & Watkins Client Alert Commentary, the US Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly released a proposed rule on March 25, 2014, which would represent the most sweeping change in a generation to the rules governing federal Clean Water Act (CWA) jurisdiction.

Based on information presented in the commentary, it appears this new rule would expand the definition of "waters of the U.S." which would result in extending the jurisdiction of the Corps to areas not now regulated by this agency. The need for proposing this new rule has been explained by both agencies as necessary to, according to their press release, "clarify protection under the Clean Water Act for streams and wetlands."

The pre-publication version of the new rule (which is at this point a 370-page document) states:

Under the proposed first section of the regulation, section (a), the agencies propose to define the “waters of the United States” for all sections (including sections 301, 311, 401, 402, 404) of the CWA to mean:
• All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
• All interstate waters, including interstate wetlands;
• The territorial seas;
• All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
• All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;
• All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and
• On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate water or the territorial seas.

 

After reading through the pre-publication version and the Client Alert Commentary mentioned above, you might be left wondering just what area through which water can flow would not potentially be subject to the Corps jurisdiction. The proposed rule offers these exceptions:

  • Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
  • Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.
  • Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.
  • Ditches that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas or an impoundment of a jurisdictional water.
  • The following features:
    • artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;
    • artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;
    • artificial reflecting pools or swimming pools created by excavating and/or diking dry land;
    • small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;
    • water-filled depressions created incidental to construction activity;
    • groundwater, including groundwater drained through subsurface drainage systems; and
    • gullies and rills and non-wetland swales.
       

The reactions I've read to this proposed rule have been mixed. Some people in the industry are understandably concerned by what they believe to be an expansion of powers by both agencies and by the impacts the rule may have on project timelines and costs. Kevin Kelly, president of the National Association of Home Builders was quoted in the Wall Street Journal as saying, "EPA has added just about everything into its jurisdiction by expanding the definition of a 'tributary,' "  However environmental groups have stated this proposed rule does not extend either agency's jurisdiction or regulation over any waters not currently covered by the Clean Water Act.

I would encourage everyone to perform their own review of the proposed rule and related literature and discuss it with the legal counsel for your agency, and then to comment once the proposed rule is officially published. Below are just a few links with additional information:

EPA Waters of the U.S. Website

Wall Street Journal Article: EPA, Army Corps Propose New Rules Limiting Discharges

AGC News

WEF Stormwater Report

 

 

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WATERCON2014

This year I am fortunate to again have the opportunity to attend WATERCON in Springfield, Ill.It's amazing how every year the conference offers so many great sessions, and the exhibitors always have such interesting displays and information. In addition to attending sessions and talking with vendors, I'll be posting as much as I can on several social media sites so that all of you can follow as much of the conference as possible. Because most of these sites are already listed in a blog post over at the Watercon blog site, I won't list them again here. Instead I encourage you to visit over there. And if you're attending too, I'll be looking for your own posts and photos from the event!

One added treat is a virtual expo we set up to try out that technology. Here's an image of the entry screen – you can find the link to visit the expo over on the Watercon site.

Watercon Virtual Expo Image 

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Infographic of the Month – March 2014 (FEMA Flood Maps!)

This month's infographic comes from FEMA – our friendly folks who work to keep us safe and help us when there's a disaster. One of FEMA's tasks is to develop flood maps which show us where flooding is most likely to occur. There's a lot that goes into determining flood boundaries and making these maps so FEMA prepared an infographic to help us better visualize the process. Because this infographic is produced by the U.S. government, there is no copyright. Therefore, any agency or company can print this out to either create a poster to hang in an office to show people who have questions about the process or to print out and make available to citizens as handouts. 

You can always find out more about this process by visiting the FEMA website: http://www.fema.gov/blog/2014-02-21/what-goes-flood-map-infographic

 

FEMA Infographic - Flood Mapping Process

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Encouraging Dog Owners to Pick up Pet Waste

The video below was created by McCann Madrid for the Brunete Council in Spain to showcase their program for encouraging dog owners to clean up after their pets. It sounds like the town was having quite a problem with dog owners leaving their pet's waste lying everywhere. So they hired McCann to develop a program where volunteers approached the owners of dogs who had left waste in a public area. By talking with the owner, they were able to find out the dog's name. The volunteer then collected the dog's waste and accessed the town's database of dog registrations to find out the owner's name and address. Then they shipped the offensive waste back to the owner. Based on the video, it appears this method reduced violations by 70%. 

 

The USEPA has more information about pet waste management here: EPA Stormwater BMPs – Pet Waste Management

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Quick Stormwater Regulation Update in Illinois

Stormwater flowing into inletJust wanted to post a few quick thoughts/information about the status of the recent efforts to impose additional stormwater regulations throughout Illinois. Currently the task force we wrote about last year (Illinois Considers New Stormwater Regulations) is still meeting to discuss the comments they received. They have been working on addressing and looking into the issues everyone pointed out. And it appears the input they received is typical of what is being heard through the U.S. The bottom line is that imposing flow-based regulations related to stormwater will significantly increase costs with no guarantee of comparable benefits.

The other factor that seems to be related to all of this is a decision that was handed down to the EPA earlier this year by a Federal court. Here is an excerpt from the conclusion of that document (my emphasis added):

"Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it via TMDL. Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of EPA's TMDL authority. Whatever reason EPA has for thinking that a storm water flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, EPA cannot be allowed to exceed its clearly limited statutory authority." – Virginia DOT vs EPA ruling, full document

The critical point to know in all this is that while the USEPA has been told they cannot regulate stormwater flow as a method of regulating pollutants, states might be allowed to do so based on their own constitutions. Perhaps this is one reason the USEPA is so interested in getting states to pass these regulations – they know they cannot force this issue but are trying to convince the states to do so as a way to circumvent this restriction on their powers. Although at least one task force member did not seem to realize this – I was told last year by that member that during the facilitation of the proposed regulations, the USEPA representative told them they have to pass something so it is in place in time to meet the USEPA requirements. I am not sure if that representative truly believed that or not, but based on this ruling, it appears this would no longer be the case.

So why are we hurrying to pass a regulation that has not been developed or reviewed by a wide group of stakeholders who completely understand stormwater and its regulation and one that the majority of professionals in the industry has found to have significant problems? Perhaps it is time to take a step back and start again at the beginning by including on the task force people who truly understand stormwater, have decades of experience designing and regulating stormwater systems, and know the impacts of its regulation.

 

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