Court Finds Industrial Stormwater "Presumptively Dirty"

For a long period of time, U.S. EPA exempted stormwater from coverage under the Clean Water Act. This was largely due to the fact that EPA had enough on to do in simply regulating discharges from traditional point sources of water pollution.  In 1987, Congress gave EPA the authority to regulate stormwater discharges from "presumptively dirty sources" including industrial activity.  See, Ecological Rights Found. V. Pac. Gas and Elec. Co., 713 F. 3d 502, 505 (9th Cir. 2013)

After Congress acted, EPA passed regulations defining which businesses were "presumptively dirty" and needed to get permit coverage to better control discharges of stormwater.  40 C.F.R. Section 122.26(b)(14).  EPA also developed the NPDES Multi-Sector Stormwater Permit and identified eleven different industrial categories that must get coverage under the Multi-Sector NPDES Stormwater Permit. See, 40 CFR 122.26(b)(14)(i)-(xi)

If, despite being associated with an industrial activity as defined in the regulations, stormwater is not actually exposed to industrial materials or activities, the facility may be able to obtain a "conditional no exposure" ("CNE") exclusion from the permit requirement.  

If there is no sampling showing the stormwater contained pollutants is there a violation? 

A facility may be required to obtain a permit because its discharges are "presumptively dirty," however, is there an actual violation for polluting waters if there is no direct evidence that the stormwater discharge actually contains pollutants?  While Congress created the presumption that stormwater from industrial activity was presumptively dirty, the Clean Water Act definition of pollutant went unchanged:

Pollutant- "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemicals wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water."  33 U.S. C. 1362(6)

The Court in Puget Soundkeeper Alliance v. Whitley Manufacturing Co., Inc. (Case No. C13-1690RSL, W.D. Wa., Nov. 9, 2015)  recently found that a Citizen Group did not need to prove stormwater from a business contained actual pollutants before it could assert a violation of the Clean Water Act.  The Citizen Group alleged the company violated the law by discharging stormwater from its business without a permit for a six year period.  

The Court held that because the companies stormwater was associated with industrial activity, the stormwater "is, in and of itself, a pollutant." The Court found that:

"Even if the definition of ‘pollutant’ is strictly and narrowly construed to include only those items specifically listed (a theory that does not have universal acceptance), Congress was well within its discretion to clarify that the phrase ‘industrial, municipal, and agricultural waste’ includes stormwater that comes in contact with those materials...” 

An interesting fact in this case was that in 2014 the facility obtained a CNE exclusion from permitting. However, the Court was still willing to found the company liable for discharging stormwater without a permit for the years prior to the CNE exclusion.

Why this decision is important

  • Companies can be liable for Clean Water Act violations, including significant civil penalties, if they simply discharge stormwater from their business without a permit, even if there is no sampling that shows the stormwater contains contaminants;
  • Companies should evaluate whether permit coverage for stormwater discharges is required for their business or seek a certification that their facility is exempt (i.e. No Exposure Certification- All industrial material are sheltered from exposure to stormwater);
  • This case highlights the fact that companies don't just face potential enforcement from regulators. Any person or entity with standing under the Clean Water Act Citizen Suit provisions can bring an action.

Ohio Supreme Court Upholds Sewer District's Stormwater Program

After five years of litigation, the Ohio Supreme Court issued its decision today in Northeast Ohio Regional Sewer District (NEORSD) v. Bath et. al., upholding the District's authority to implement a storm water management program.  The Supreme Court's decision overturns an prior ruling by the Appellate Court which had held NEORSD did not have legal authority to regulate storm water.

The legal issue was rather simplistic- Does the NEORSD grant of authority to control waste water include storm water?

The District authority stems from statute.  R.C. 6119.01 states the authority of the District has either to a) supply water; or b) "provide for the collection, treatment, and disposal of waste water."  R.C. 6119.011(K) defines "waste water" as "any storm water and any water containing sewage or industrial waste or other pollutants or contaminants derived from the prior use of the water."  

The Appellate Court concluded that storm water is only waste water when it is co-mingled with other pollutants or sewage.  If storm water is not co-mingled in this way (i.e. typical storm water runoff), then the Appellate Court held the District has no authority to regulate the runoff.

The Supreme Court held there are two categories of water the District can regulate.  The Court held the category of "waste water" includes:

  1. "storm water;" and
  2. "any water containing sewage or industrial waste or other pollutants or contaminants..."  

After concluding that the Sewer District has authority to implement a regional storm water management system, the Court then reviewed whether the District has authority to assess fees for projects that have yet to be built.  A majority of the Court concluded that the District does have authority to assess fees now to finance future storm water management projects.  

Restarting the Storm Water Fee

As noted in the Cleveland Plain Dealer article discussing the decision, the Common Pleas Court has held $20 million in fees collected prior to the Appellate Court ruling in escrow.  After the Appellate Court ruling, the fees- approximately $35 per household per quarter- were put on hold.  The District now says it will begin to collect fees again as well as ask for release of the funds in escrow.  The District also stated it would not attempt to retroactively collect fees that would have been assessed while the Appellate Court decision was on appeal.

Practical Implications for Industry

The amount of fees paid depends on that amount of impervious surface at the property.  Businesses with large parking lots or buildings could face thousands in storm water fees. The fees will act as a strong financial incentive for businesses to manage storm water at their properties in a different manner, including reducing impervious surface or discharges to storm sewers. 

The District will also be implementing projects in the region, including providing 25% of the fees collected to local governments to implement their own projects.  

Overall, the Supreme Court Decision will clearly have major implications for businesses that operate within the NEORSD service territory.

How Easy is it for Cities to Re-Open their CSO/SSO Consent Decrees?

For over a decade, U.S. EPA has embarked on a national enforcement strategy regarding combined sewer overflows (CSOs) and sanitary sewer overflows (SSOs) from municipal wastewater treatment systems.  As part of the enforcement strategy, U.S. EPA has entered a large number of federal consent decrees which establish deadlines for the elimination of CSOs/SSOs.  These decrees impose costs in the billions of dollars and have compliance schedules that extend over decades.

As part of those decrees, U.S. EPA requires the municipalities to adopt Long Term Control Plans (LTCPs) to address wastewater treatment plan bypasses, SSOs and CSOs.  The standards and deadlines imposed within those LTCPs, in many cases, were based upon U.S. EPA guidance from the 1990s.  

Many national organizations have been sharply critical of U.S. EPA guidance, including:  NACWA (National Association of Clean Water Agencies), Association of Clean Water Administrators (ACWA), Conference of Mayors, National Association of Counties, and the National League of Cities.  These organizations argued the 1990's guidance was outdated and demonstrated significant flaws once implemented in decrees.

Following an outcry by national organizations for municipalities, U.S. EPA revisited a number of their guidance documents to address concerns raised.  As discussed in detail below, new guidance has been released by U.S. EPA in the following areas:

  • Integrated Planning- The cost of meeting both stormwater (MS4) as well as wastewater treatment system compliance requirements;
  • Affordability-  U.S. EPA's guidance was outdated and does not allow municipalities to fully present information regarding the impact of increased sewer rates on municipalities;
  • Green Infrastructure-  U.S. EPA has increasingly supported use of green infrastructure (stormwater retention, reduction of infiltration/inflow, etc.)  to reduce the amount of grey infrastructure (storage tunnels, control strategies, etc.)

Integrated Planning

One of the major criticisms of U.S. EPA national CSO enforcement strategy is that it failed to take a holistic look at all the compliance costs faced by municipalities in meeting Clean Water Act requirements. The most significant of those costs relate to stormwater management.  

U.S. EPA finally acquiesced to this criticism allowing cities to evaluate compliance with both wastewater and stormwater requirements concurrently.  U.S. EPA released new guidance titled  “Integrated Municipal Stormwater and Wastewater Planning Approaches Framework.” Memorandum from Nancy Stoner, Acting Assistant Administrator (June 5, 2012)

While the new guidance was welcomed, many municipalities are already under court orders imposes settlements to did not consider integrated planning.  


In 1997, U.S. EPA finalized specific guidance on assessing community financial capability
titled- “Combined Sewer Overflows- Guidance for Financial Capability Assessment and
Schedule Development”
. The purpose of the guidance was two-fold: 1) identify the types of financial information that was relevant in determining a community’s financial capability; and 2) establish a specific methodology for gauging a community’s financial capability.

The most important methodology utilized by U.S. EPA to evaluate a community's ability to afford the controls and schedule for implementing controls in its LTCP is the "Residential Indicator" (RI) factor. The 1997 guidance established the methodology for calculating RI.  

  • Total annual wastewater and CSO control costs per household as a percent of median household income (referred to as the “Residential Indicator” or “RI”)

Despite statements by U.S. EPA in its 1997 guidance and in subsequent communications that RI is but one factor in evaluating affordability, a review of federal consent decrees clearly demonstrates it is the most heavily relied upon factor in establishing compliance schedules.  

Following calculation of RI, the long term compliance deadlines are established based upon whether the community falls into a "low," "medium," or "high" burden community.  

  1. Low = normal construction schedule for all improvements;
  2. Medium = up to 10 years; and
  3. High = up to 15 years and in some cases 20 years depending upon circumstances.

One of the main criticisms of RI is that it tends to washout or dilute the true impact of higher sewer rates on the lower income segments of the community.  RI only utilizes median household income to determine the percentage of overall income dedicated to paying for sewer service.  

On November 24, 2014, U.S. EPA issued new guidance on financial capability assessments- “Financial Capability Assessment Framework for Municipal Clean Water Act Requirements.” Memorandum from Ken Kopics, Deputy Assistant Administrator Office of Water (November 24, 2014).

Under the new guidance, Cities have wider latitude to present information regarding the unique
impacts of CSO/SSO and wastewater treatment compliance costs on the local community.  U.S. EPA argues that the 2014 guidance does not "replace' the 1997 guidance on affordability, it merely clarifies what was allowable under the old guidance all along.  This statement seems disingenuous given how RI has been directly referenced in a large number of SSO/CSO federal decrees.  

Clearly, the new guidance allows cities to present information regarding the impact of sewer rates on segments of its overall population, including lower income residents.  While the guidance clearly allows such information to be presented, it does not provide an strict guidance as to how much of a burden is "too much" for low income residents.  The lack of clear standards for determining unacceptable burdens on lower income residents further complicates the ability of cities to reopen existing CSO/SSO decrees.

Green Infrastructure

Most early efforts to control CSOs utilized “gray infrastructure” which involves the use of pipes,
sewers, and other structures involving concrete and steel. A very common technique to address
CSOs or WWTP bypasses is the use of storage in tanks, basins, or deep tunnels to store wet
weather combined sewer flows. The wet weather related flows can be held in storage until the
wastewater treatment plan has the capacity to treat the stored wastewater.

“Green infrastructure” (GI) use natural processes to reduce the quantity or rate of stormwater
flows into the sewer system. Common techniques are infiltration, evapotranspiration, and
capture and use (i.e. rainwater harvesting). Green infrastructure can be utilized on a small or
large scale. Small scale techniques include rain barrels, bioswales, porous pavements, green
roofs and infiltration planters. Larger scale techniques include wetlands, riparian buffers, open
space or other techniques involving larger tracts of land.

U.S. EPA has increasingly supported the use of green infrastructure to address CSOs and wastewater treatment plant bypasses. October 2013, U.S. EPA Headquarters released the Green Infrastructure Strategic Agenda which directs EPA enforcement personnel to:

  • “Ensure all water enforcement actions consider the use of green infrastructure;” and
  • “Consider green infrastructure approaches in the development of orders and settlements
    related to SSOs, CSOs and MS4s and incorporate green infrastructure as part of
    injunctive relief were appropriate.”

U.S. EPA released additional green infrastructure guidance titled “Greening CSO Plans: Planning and Modeling Green Infrastructure for Combined Sewer Overflow (CSO) Control.” U.S. EPA Publication #832-R-14-001 (March 2014).  The new guidance strongly encourages incorporation of green infrastructure into LTCPs.

While U.S. EPA has moved aggressively toward encouraging uses of green over grey infrastructure, many decrees predated the most recent information on the benefits of green.  Cities that have LTCP that almost exclusively rely upon grey infrastructure will need to make detailed demonstrations that green approaches are equivalent if not better than existing grey infrastructure. 

Re-opening Existing SSO/CSO Consent Decrees

With all the new guidance that has been released since 2013, many municipalities who have been under existing decrees rightfully question whether they have an ability to revisit their settlements. U.S. EPA indicates that it is willing to revisit settlements:

  • U.S. EPA states that remedy and affordability determinations under existing decrees can be reexamined under EPA's new Integrated Planning Approach.  EPA states such requests must be supported "with sufficient information and analysis to determine whether an Integrated Planning Approach makes sense based on sound science and appropriate technical and financial analyses." (See, Integrated Municipal Stormwater and Wastewater Planning Frequently Asked Questions (July 25, 2013))

However, the practical reality is that cities will be required to continue to comply with their existing LTCP while concurrently generating new extensive studies to support reopening their existing decree.  Most decrees also require the municipality to petition the U.S. EPA first before requesting that the court intervene. 

In addition, as highlighted by the City of Akron's recent inability to reopen its CSO decree citing new U.S. EPA guidance, cities face significant challenges.

Nevertheless, U.S. EPA has issued so much new guidance and strongly indicated a willingness to revisit existing settlements, it will be very difficult for the Agency to not acquiesce when cities present a legitimate request that is well supported using the new guidance.  

It will be interesting to see how EPA handles these requests in the next few years given what is at stake in terms of compliance costs.   

Ohio Supreme Court Invalidates Nearly Two Thousand Water Quality Determinations

The Ohio Supreme Court provided a major set back to the Ohio EPA efforts to establish water quality based discharge limits in its surface water discharge permits (i.e. NPDES permits).  The Court determined in Fairfield County v. Nally that TMDLs must go through formal administrative rulemaking before they can be used to support discharge limits in NPDES permits.

Ohio EPA had argued the TMDLs were just guidance.  The Court rejected the Agency's argument and said that TMDLs establish new legal obligations and, therefore, must go through the formal rulemkaing process contemplated by Ohio Revised Code Chapter 119.

What is a TMDL?

Section 303(d) of the Clean Water Act requires the identification of polluted rivers, streams, lakes and other waterbodies.  Once impaired waterbodies are identified, the Clean Water Act contemplates use of the Total Maximum Daily Load (TMDL) process to determine the maximum amount of a pollutant that may be discharged without causing the receiving body of water to violate water-quality standards.  See, U.S.C. 1313(d)(1)C).

A TMDL is a complex technical analysis of a waterbody.  The analysis includes chemical and biological testing of the waterbody to determine whether it currently doesn't meet water-quality standards.  If the waterbody doesn't meet water-quality standards, the TMDL process determines how much reduction must occur in various pollutants for the waterbody to be able to meet water quality standards.  If the waterbody meets water-quality standards, the TMDL determines how much additional pollution may be discharged to it before it will no longer meet those standards.  

Once the TMDL process determines either the amount of pollutant loading reduction needed or available pollutant loading remaining, the Agency allocates the available pollutant loading among the NPDES permitted dischargers to the surface water body (i.e. wastewater treatment plants, utilities, manufacturers, etc.).  The allocation takes the form of effluent discharge limits for dischargers through NPDES permits.

Impact of Supreme Court Decision on Ohio EPA Discharge Permits

As of May 9, 2013, Ohio EPA has listed approximately 86 watersheds for TMDL development, approximately one half had been completed and approved by U.S. EPA.  While there are 86 watersheds, there may be multiple surface waters in each watershed.  According to information provided by Ohio EPA, the Agency has issued approximately 1,761 TMDLs for watercourses throughout Ohio, including 132 TMDLs to determine phosphorus loading alone.  

The adjacent map is from Ohio EPA's website and shows the current status of the TMDL process for each watershed. The purple areas show those watersheds that have TMDLs that have been approved by U.S. EPA.  The other colors show the progress toward obtaining U.S. EPA's approval of the TMDL.

After the Ohio Supreme Court decision, all of the purple areas will have to through the rule making process before those TMDLs can be used to support discharge limits in NPDES permits for those watersheds. 

Furhtermore, any NPDES permit that currently has a discharge limit based upon a TMDL approved by U.S. EPA is likely not enforceable.  Given the large number of NPDES permits that have been issued in these areas, the Court decision represents a huge setback for the Agency.  

Not only does the decision make it more difficult for the Agency to enforce discharge limits in existing NPDES permits, the Agency will also have to expend significant resources going back through the rule-making process for potentially each the 1,761 TMDLs the Agency had previously considered completed.  

Ohio Looks to Tighten Nutrient Regulation to Address Toxic Algae

Pardon the pun, but toxic algae has been a growing problem in Ohio.  Significant issues with toxic algae have occurred in Lake Erie, Grand Lake St. Marys and elsewhere.  In fact, Ohio EPA recently added a new feature to their webpage in which you can track and identify toxic algae issues around the state:

 On the website, you can now view the whole state and Ohio EPA will identify those waterways in which harmful algae blooms are currently a problem.  

The website includes a list of current public health advisories.  

The increased awareness and issues associated with toxic algae has triggered initiatives to tighten regulations in hopes of eliminating harmful blooms.

Senate Bill 150-  Increased Authority to Regulate Nutrient Discharges from Farms

This summer the Kasich Administration introduced Senate Bill 150, which would provide increased regulatory authority to the Ohio Department of Agriculture and Ohio Department of Natural Resources.  The bill would require farmers to develop "Nutrient Management Plans" that would help ensure best practices were utilized in application of fertilizer to reduce nutrient runoff.  

The bill would also create a fertilizer applicator licensing program with certification and continuing education requirements.  No person could apply fertilizer for agricultural purposes without being properly certified by the state.

The other components of the bill include expansion of the types of fertilizer regulated by the state (current regulatory authority is largely limited to manure).  S.B. 150 would provide regulatory authority over commercially manufactured fertilizers.

Also, the bill would give regulatory agencies greater enforcement authority.  For example, the Director of Agriculture could revoke a persons fertilizer certification if the failed to comply with the regulations.

Ohio EPA Nutrient Regulation

While S.B. 150 attempts to address nutrient run-off from so called "non-point sources" such as farm fields, Ohio EPA has proposed increased regulation to traditional point sources (i.e. wastewater treatment plants).  This spring Ohio EPA released a proposal to target watersheds that may need to have nutrient permit discharge limits included in NPDES permits.  

Under the proposal, waterways would go through a stream survey evaluation process. The following factors would be evaluated under the Agencies proposed "Trophic Index Criteria:"

  • Dissolved oxygen;
  • Nitrogen and phosphorus concentrations;
  • Algal biomass; and
  • The biological community.

By evaluating these criteria, the Agency will assign the waterway a category of either "Impaired", "Threatened" or "Acceptable."  Impaired waterways would likely see the imposition of nutrients discharge limits in future NPDES permits.  


With increased awareness of toxic algae, it appears the state is moving quickly to try and increase regulation of nutrients.  The state is at the early stages of increased regulation.  New proposal are almost certainly forthcoming. 


Ohio Continues its Efforts to Address Algal Blooms in Lake Erie

Algal blooms in Lake Erie have resurfaced as a major problem in recent years. Large algal blooms can even be viewed from satellite images. (Photo: Courtesy of NOAA)

Considerable effort and funding has been directed at studying the causes of the problem. Efforts are now under way to try and address the issue. One such effort is the Ohio Clean Lakes Initiative, which is under the management of the Ohio Department of Natural Resources, Ohio Department of Agriculture and Ohio Environmental Protection Agency. The purpose of the initiative is to collaborate with farmers and other stakeholders to understand the problem better and develop programs that could address the root causes of algal blooms. 

In an interview with the Ohio Environmental Law Blog, Chris Abbruzzese, Deputy Director of the Ohio Environmental Protection Agency, provided additional background about the Ohio Clean Lakes Initiative.  

From Ohio EPA’s perspective, please provide an explanation of what the Agency believes is happening and where it thinks the problem is coming from?

Thirty years ago farmers, municipalities and industries in the Western Lake Erie Basin made significant efforts to cut the amount of phosphorus and sediment loading into Lake Erie by 50 percent. However, the dissolved form of phosphorus entering Ohio’s waterways from a variety of sources in the area remains an issue, resulting in increased occurrences of algal blooms. Over the last several years the increased frequency of algal blooms has had a significant impact in the Western Basin of Lake Erie, threatening its ecological integrity and creating a more challenging economic climate.

An algal bloom is a rapid increase in the population of algae, often as a result of excess nutrients, primarily phosphorus and nitrogen. Sources of nutrients include fertilizers used on farms and lawns, sewage treatment plants, faulty septic tanks & other home sewage treatment systems and some industrial operations. Some algal blooms can become toxic, potentially making the water unsafe for human contact or consumption. These toxic blooms create nuisance conditions that interfere with recreation and may cause fish kills when dead organic matter decays and depletes oxygen in the water. Public water supplies have water treatment plants that remove algal toxins but high levels of algal organic matter causes taste and odor problems and the formation of harmful by-products that must be controlled. All of this significantly increases the cost of providing safe drinking water supplies.    

 Under the direction of Governor Kasich, the Ohio Department of Natural Resources, Ohio Department of Agriculture and Ohio Environmental Protection Agency established the Clean Lakes Ohio Initiative this year to address these concerns.

What programs will the Ohio Clean Lakes Initiative establish?

The Ohio Clean Lakes Initiative will: educate and encourage farmers to use good nutrient stewardship; expand the use of on-the-ground practices to help control the displacement of agricultural nutrients; expand the frequency and type of soil testing; and create a monitoring network to implement and access the effectiveness of management practices.

How do farmers view the Initiative?

Ohio farmers are stepping up to the plate to learn more about nutrient management and about modern conservation technologies. The Ohio Department of Agriculture is encouraging farmers across the state to adopt the 4R Nutrient Stewardship model to reduce excess nutrients in the state’s waterways. Good nutrient stewardship not only benefits the environment, it also benefits farmers by saving money and time instead of applying unnecessary or excessive fertilizer to the field.

Studies indicate that the timing of fertilizer application and how well it is incorporated into the soil layer can significantly reduce dissolved phosphorus runoff. Being more conscious of what is going into the fields, when it is going into the fields and how it is going into the fields will maintain agricultural integrity while improving water quality.

Such an initiative could be controversial with the agricultural industry. How is the state trying to work with agri-business?

The Ohio Department of Agriculture and Ohio Department of Natural Resources are exploring partnerships with the agribusiness industry to expand the frequency and type of soil testing being used. For example, the Ohio Department of Natural Resources has worked with farmers in Wood, Henry, Hancock, Putnam and Defiance counties to enroll over 18,000 acres of farmland in a new soil testing initiative.

Due to size of the Lake Erie Basin, this seems like it’s more of a regional issue than an Ohio specific issue. Is there anything being done across the region to address the issue?

Yes. The Ohio Department of Natural Resources, Ohio Department of Agriculture and Ohio Environmental Protection Agency directors met last spring with their counterparts from Michigan and USEPA to discuss issues related to improving water quality in the Western Lake Erie Basin. A lot of good ideas were shared and several other organizations are also interested in improving the water quality in Lake Erie. The International Joint Commission Water Quality Board is in the process of developing a plan to improve water quality in Lake Erie.

Also, in August, Ohio joined Indiana and Kentucky in a pilot multi-state water quality trading plan to reduce the run-off of agricultural nutrients. The Ohio River Basin Water Quality Project Pilot Trading Plan is the first consensus plan for interstate trading to reduce nutrients. The agreement provides businesses and municipalities with a more economically viable option to efficiently reduce nitrogen and phosphorus loading in rivers, lakes and streams while providing the agricultural community more resources to implement conservation and best management practices in a watershed. The experience from this pilot plan can be used in the Western Lake Erie Basin.

 [For more information on the initiative please see]


Legislation Introduced to Implement Great Lakes Compact following Governor Kasich Veto

Representative Wachtmann has introduced H.B 473 which will implement Ohio's regulatory program under the Great Lakes Compact.  H.B. 473 follows last summer's veto by Governor Kasich of H.B. 231 which was criticized by environmental groups and former Governor Taft and Senator Voinovich as not protective enough of Lake Erie.

The Great Lakes Compact was passed by the Great Lake states as well as Congress. The Compact sets regional standards governing water withdrawals and diversions from the Great Lakes.  With 20% of the worlds fresh water, the Great Lake states viewed the Compact as critical to protecting their fresh water resource as pressure mounts to divert water to other regions or countries facing dwindling supplies of fresh water.

H.B. 473 certainly marks a significant departure from H.B. 231 on several important points.  The most notable changes relate to the trigger levels for needing a permit and the standard for determining when a withdrawal could have an adverse impact.

Trigger Levels for Permitting

The main criticism of H.B. 231 was that it contained permit trigger thresholds which were higher than most of the other Great Lakes States which have already passed legislation implementing the Great Lakes Compact..  

Trigger Thresholds for Water Withdrawal Permit

(millions gallons per day - MGD)

Triggers H.B. 231 H.B 473
From Lake Erie  5 MGD averaged over 90 days  2.5 MGD
 From Streams that flow into Lake Erie or groundwater  2 MGD averaged over 90 days  1 MGD
From High Quality Streams 300,000 gpd averaged over 90 days 100,000 gpd

H.B. 473 significantly ratchets down the trigger thresholds for needing a water withdrawal permit. Under the bill, Ohio would have lower thresholds than Indiana and comparable to Michigan's.  It will still have higher thresholds than Pennsylvania or New York. 

However, all other states allow averaging over at least 30 day period.  The current version of H.B. 473 does not allow averaging.  This is likely to be an area of debate moving forward. 

The Compact itself allows averaging.  It seems unreasonable to trigger a permit if on one day a pump installed has the capacity to withdrawal 100,000 gpd from a high quality stream regardless of whether that capacity is actually going to be utilized.  This is particularly the case when the permit program exams impacts to Lake Erie and not the stream itself.

Definition of "Adverse Impact"

The State must deny a permit if the water withdrawal is determined to cause an "adverse impact" on Lake Erie.  H.B. 473 eliminated the controversial definition of "adverse impact" that appeared in H.B. 231.

H.B. 231 defined adverse impacts in the negative- anything at or below 90 mgd from the Lake or 45 mgd from groundwater was presumed not to cause an impact.  H.B. 473 leaves the definition up to future rulemaking by the Ohio Department of Natural Resources (ODNR).  The bill calls for a study commission which will make recommendations on a definition to the Legislature. 

Overall, H.B. 473 provides broader rulemaking authority to the ODNR.  This marks a significant departure from H.B. 231 which provided virtually no rulemaking authority.  H.B. 231 was meant to provide clarity by setting forth all the important provisions in statute leaving very little to future rulemaking.

H.B. 473 should be less controversial than H.B. 231 which was vetoed by Governor Kasich after virtually every major in Ohio paper issued editorials opposing the bill.  While certain provisions will be debated, H.B. 473 moves Ohio much closer to the other Great Lakes States in how it regulates future water withdrawals from the Great Lakes Basin.

NPDES General Permit for Industrial Activities - Feds and States Head toward Numeric Limits in Storm Water NPDES Permits

Traditionally, EPA has regulated storm water differently than point source discharges.  Regulators recognized that it was easier to install new technology to reduce pollutant loading from a specific industrial process with a specific "end of pipe" discharge point.  Storm water was much more unpredictable.

Therefore, U.S. EPA regulated storm water using general NPDES permits without specific numeric limits.  Instead, the general permit would require the development of a storm water pollution prevention plan (SWPPP) which required companies to institute "best management practices" (BMPs) to reduce pollution from run-off.  The effectiveness of BMPs were evaluated by monitoring pollutant levels in run-off. but permits did not contain specific numeric effluent limits that had to be met.

EPA recognized the difficulties in trying to establish a numeric effluent limit for storm water discharges due to the variables involved.  For instance, due to the variability of the size and nature of storm events, the amount of pollutant leaving a site in run-off was difficult to evaluate.

In 2002, EPA issued guidance that stated numeric limits would only be used "rarely" in storm water NPDES permits.  However, EPA believe technology has improved and has signaled a shift toward numeric limits for storm water control. In 2010, EPA issued a controversial revision to that guidance indicated numeric values may be appropriate.  (See, "Guidance on Establishing TMDL Waste Load Allocations for Storm Water Discharges in NPDES Permits"  EPA November 2010)

Benchmarks Versus Numeric Limits

The first step toward numeric limits is EPA's use of "benchmarks" in storm water permits.  EPA makes clear that benchmarks are not effluent limits.  This means an exceedence of the numeric value is not a violation.  However, the exceedence is evidence that BMPs need to be improved to reduce pollutant loading.

In December 2011, Ohio EPA followed U.S. EPA lead and incorporated benchmarks into its final version of the new NPDES General Permit for Industrial Activity.  This permit differs from the previous General NPDES Permit companies  in two significant ways. 

First, the permit contains industry specific requirements (which is why the permit is 141 pages long).  Second, it uses benchmarks tied to specific industrial activity that will be used to determine the effectiveness of BMPs.

Ohio EPA's new General  Permit became effective starting January 1, 2012.   However, facilities will still be covered by their old general permits, as long as they are still effective.  Existing facilities will begin the transition to the new permit upon notification from Ohio EPA. 

Ohio EPA will send written instructions to existing covered facilities on how to continue their general permit coverage with the submittal of a “re-notification” of intent to be covered. The existing facility will have 90 days to submit the re-notification.

Benchmark Monitoring

The new permit is effective for five years.  During the first four years of the permit, facilities to which the industry specific benchmarks apply, will monitor their compliance with the benchmarks.

In the first three years of the permit, monitoring and reporting is required for four out of the 12 quarters.  In year number four, the data is averaged and compared to applicable benchmarks for that industrial activity. If facilities are still exceeding the benchmarks after four years, they will be forced to review their BMPs, storm water control plans and house keeping activities to further reduce pollutant loading.

How Far will Facilities Need to Go to Comply with Benchmarks?

The permit makes very clear that the benchmarks are not enforceable effluent limits.  Therefore, an exceedence is not a violation which could subject the facility to an enforcement action.  However, the expectation is the facility will continue to improve storm water controls if the benchmarks are not met. 

The final permit does contain language that allows faculties to assert they have done all they feasibly can to reduce pollutants.  The permits states that facilities can demonstrate that “no further pollutant reductions are technologically available and economically practicable and achievable in light of best industry practice to meet the control measures/best management practices (BMPs) in Part 2 of this Permit.”

The determination must be documented and retained with the (SWPPP, and provide notification of this determination to Ohio EPA at the due date for the next benchmark monitoring report.  Of course, a company's determination as to what is economically practicable may not be the same as the Agency's. 

(For more information on Ohio EPA's NPDES General Permit for Industrial Activity- click here)


Sewer District's Green Infrastructure Program an Opportunity to Soften Impact of New Fee on Businesses

The Northeast Ohio Regional Sewer District (NEORSD) has entered into a settlement with U.S. EPA to fix its combined sewer overflow issues (CSOs).  Included in the settlement is a provision which requires NEORSD to spend $42 million in eight years to eliminate 44 million gallons of storm water from entering its sewer system.  This portion of the settlement is known as the "Green Infrastructure" component.  

At the same time NEORSD entered its settlement with U.S. EPA on CSOs, it has enacted its regional stormwater fee which will begin charging businesses a fee for stormwater that it sends to its collection system.  The fee is meant to create a strong incentive for businesses to implement stormwater projects that will reduce flow to the system.

The Sewer District is performing a large feasibility study to determine areas best targeted for green infrastructure projects.  The District is looking at using the many vacant lots (estimated around 6,000) to possibly perform projects. (See, "Turning huge vacant lots into stormwater areas and neighborhood centerpieces" from GreenCityBlueLake)

Hopefully the District will also see this as an opportunity to partner with businesses who will soon be experiencing the pain of another fee (tax) on their business.  Using the money not just on vacant lots, but with area businesses can help soften the blow of the fee.

If a businesses is going to qualify for a portion of the $42 million in funding available for the NEORSD Green Infrastructure program you must:

  • Be in an area the District is targeting for reducing stormwater flow into its collection system;
  • Eliminate flow that is currently getting into the collection system; and/or
  • For new development projects- go beyond the stormwater controls currently planned
  • Must also agree to provide NEORSD access to the project area if its on your property.

U.S. EPA to Start All Over on Numeric Limits for Construction Site Stormwater

 For over three years, U.S. EPA had been moving toward a seismic shift in how it regulated stormwater run-off from construction sites.  For the first time, U.S. EPA tried to impose a numeric permit limit on the turbidity of water (sediment mixed with water) that leaves construction sites following rain events.   EPA 's efforts are the result of a 2004 lawsuit by environmental group who obtained a Court order requiring development of a numeric standard.

Adjacent is a picture which shows bottles containing various amounts of sediment mixed with water.  The more dirt the higher the NTUs.  The picture is a good graphic illustration of EPA's proposed numeric standards.

Historically, U.S. EPA has never tried to impose a numeric limit to control stormwater discharges.   Rather, U.S. EPA  required the use of  "best management practices" (BMPs) as part of NPDES construction stormwater permits.  BMPs were engineering controls that were designed to collect or limit run-off to reduce sediment loading on streams and lakes.

In November 2008, U.S. EPA issued proposed effluent guidelines that contained a numeric turbidity standards of 13 NTUs.  EPA received a flood of comments questioning the data and assumptions behind that proposed standard.

On December 1, 2009, U.S. EPA issued its final effluent guidelines raising the propose numeric turbidity standard to 280 NTUs.  The standard would apply to construction sites 10 acres and larger.  It also included the requirement to take samples throughout the day.  The average of the samples would be compared to the 280 NTU standard for purposes of determining compliance.

Despite the dramatic increase from the proposed effluent guidelines, industry still was deeply concerned with the cost of compliance and questioned the benefits of such a standard.  Two petitions for reconsideration were submitted challenging the 280 NTU standard.  After raising the technical issues raised in those petitions, EPA decided to stay implementation of the provision.

The EPA submitted a proposed rule to revise the turbidity limit to the Office of Management and Budget (OMB) in December 2010. On August 17th, EPA announced it had withdrawn its most proposal from OMB. , EPA decided to seek additional treatment performance data from construction and development sites before proposing a revised numeric turbidity limit. Next step, EPA will publish a Federal Register notice soliciting data in the near future.

The battle over numeric limits is hardly over.  First, EPA still faces a court order to develop a numeric limit,  Second, on November 10, 2010, EPA issued memo that signaled its intention to shift toward numeric limits for most stormwater permits, not just construction sites.  Therefore, numeric limits are only a matter of time. 




Ohio and Pennsylvania Debate Regulation of Hydraulic Fracking Wastewater

Hydraulic fracking provides the opportunity to tap into massive natural gas reserves which is located deep beneath the earth.  In Ohio and Pennsylvania, Marcellus and Utica Shale is sedimentary rock which contains huge quantities of natural gas.

Hydraulic fracking uses water injected at high pressure to break up the rock allowing the gas to be released into wells.  The process uses large amounts of water.  One well may use up to three to eight million gallons of water in about a week. 

Most of the water stays deep underground, but around 10% resurfaces and is called flowback water.  Regulators consider flowback water wastewater from an industrial operation because the water contains total dissolved solids (TDS), salts and metals/oils used to aid in the fracking process.

Disposal of the flowback water has been hotly debated in Pennsylvania where massive quantities of the water have been generated.  Pennsylvania Department of Environmental Protection (Pennsylvania DEP) estimates 235 million gallons of flowback water was generated in 2010.

Methods for Disposal of Flowback Water

The primary method of disposal of flowback water in Pennsylvania was through publicly owned sewage treatment plans (POTWs).  However, concerns emerged that POTWs could only dilute the water, not treat it prior to discharge to streams and rivers. 

Pennsylvania passed regulations establishing effluent standards for treatment of flowback water.  However, the regulations exempted existing loads and only kicked in if a treatment facility was expanding.  Pressure mounted on DEP to regulate disposal of all flowback water.

Industry Voluntarily Ceases Use of POTWs in Pennsylvania

Last week, Pennsylvania DEP announced that the oil/gas industry voluntarily agreed to stop the practice of shipping flowback water to POTWs.  The DEP announcement from last Thursday was covered in

Environmental Protection Secretary Michael Krancer told officials in a meeting in Washington, D.C., on Thursday that drilling wastewater is no longer being discharged to rivers or streams in Pennsylvania without full treatment.

DEP spokeswoman Katy Gresh said the agency has not yet confirmed full compliance with Krancer’s request that drillers voluntarily stop taking the wastewater to such facilities.

But she said it has confirmed that “We’ve gone from millions and millions of gallons being discharged to virtually none.”

After the announcement, its seems clear Pennsylvania is moving toward use of dedicated treatment facilities that can treat the brine and materials in flowback water.  Approximately 25 of these facilities are slated to open. 

Debate over Disposal of Flowback Water Shifts to Ohio

Perhaps seeing the debate unfold in Pennsylvania, Ohio regulators decided they needed to tackle the issue over disposal of flowback water.  In part, the issue was brought to a head by a company, Patriot Energy Partners, who had built and operated a pretreatment center connected to the City of Warren's POTW.  The company also was in process to build and operate facilities in Steubenville and East Liverpool.

On May 16th Ohio EPA issued a letter to the Ohio Department of Natural Resources clarifying regulatory authority over the disposal of flowback water.  In part, the letter was issued to clear up a debate between the Agencies as to who had regulatory authority since ODNR regulates oil & gas drilling and Ohio EPA regulates POTWs through NPDES permits.

The letter set forth the Agencies regulatory determination on several key issues:

  • ODNR has regulatory authority over the disposal of flowback water (letter uses the term "brine")
  • POTWs will not be allowed to accept flowback water for disposal (the City of Warren permit will not be renewed)
  • Current Ohio law (R.C. 1509.22) only allows disposal of flow back water by the following methods:
    • deep well injection into underground formations
    • road surface application
    • catchall: other approved methods by ODNR

For practical purposes, deep well injection will likely be the primary method of disposal in Ohio unless its shown that dedicated treatment facilities are a cheaper disposal option.  Its interesting to note that Pennsylvania has only one commercial deep well and Ohio has approximately 150 wells that may be capable of disposing of flowback water.


Curious Timing: Ohio EPA Re-Releases Massive Water Quality Rule Package

On December 17th, Ohio EPA re-issued a huge set of rules that impact industry, developers and the farming community.  The surface water quality rule package includes interrelated sets of rules dealing with the following areas of regulation:

  • Stream Mitigation-   Contains an entirely new proposal for how to determine the amount of mitigation required for stream impacts.
  • Section 401 Water Quality Certifications-  Creates an entirely new permit for "isolated stream" (streams that fall outside of federal jurisdiction under Section 404 of the Clean Water Act).
  • Antidegredation-  sets standards for reviewing any impacts that would lower water quality.
  • Water Quality Standards-  establishes new standards for wastewater discharges and other water quality impacts.

The Agency had originally released three of the packages (all except stream mitigation) back in the fall of 2008 (Click here for 2008 post).  In 2008, the rules were deemed highly controversial.  Some industry groups described the package as the largest overhaul of water quality rules in thirty years.

Curious Timing for Re-Release

After a flurry of activity in 2008, the rules were essentially shelved for almost two years.  Ohio EPA made the decision to try and move forward with some of the less controversial components independently. 

Now, the entire package is being re-released with the stream mitigation proposal included.  The Agency has established a public comment deadline of March 8, 2011. 

The Agency's decision to release these rules in late December a few weeks after the election and a few weeks prior to Governor Kasich being sworn in can only be described as curious.  Following the election, Director Korleski submitted his resignation and Governor Kasich has yet to announce a new Director of Ohio EPA.  It is quite possible a new Director could not be named until after March 8, 2011. 

Any new Director will almost certainly want to review, in detail, this massive rule package and understand the issues.  Given this uncertainty why release the rule package now and set an aggressive deadline for public comments?  In my mind, it only sets the stage for the rules to be pulled once again to allow for complete analysis by the new leadership team.

Part II: Risks and Opportunities With Proposed Regional Stormwater Utility

The Board of the Northeast Ohio Regional Sewer District (NEORSD) could vote as soon as the end of this week on whether to create a stormwater utility within its service territory.  Through the imposition of a fee on homeowner's and businesses the District would hope to tackle some of the region's major stormwater issues. 

In my post on Monday I discussed some of the local battles that have emerged over whether the District has the legal authority to move forward with its proposal.  In today's post, I discuss some of the other issues and opportunities that may have gone unnoticed due to the contentious debate that is occurring.

Pro's and Con's of Regional Solution to Stormwater

At its core, the idea of treating stormwater as a regional issue makes sense.  Water does not know any boundaries.  Prioritizing the largest stormwater issues within the area also makes sense.  Some projects would be just too costly to do without aggregating resources.

However, this has to be balanced with making sure certain areas don't receive the lion share of  revenue collected by the Utility.  This is the concern of Summit County who fears revenue will be almost entirely be used to fund projects in Cuyahoga County.

The proposed regulations, especially upon revision, attempt to address this issue by establishing Watershed Advisory Committees.  These Committees would be made up of key local stakeholders in each watershed.  They would provide input into project selection and identification of stormwater issues.

However, even with recent language changes in response to comments, the Committee's are purely advisory.  The District retains the ability to ultimately make all decisions regarding use of the funds it collects.  There must be ways to balance the structure and use of the Committees to provide additional local control over resources.

Impact on Local Stormwater Ordinances Governing Storm Water

In Chapter 6 of the proposed regulations, NEORSD has the authority to establish its own standards for stormwater management.  Those standards must be consistent with Ohio EPA requirements for municipal stormwater systems. However, the District has the authority to impose more stringent requirements than Ohio EPA.  This may set up an interesting battle over ordinances passed by local municipalities within the District's jurisdiction.

The best example of where a potential battle may take place is riparian set back requirements.  Riparian setbacks establish "no build" zones adjacent to streams and wetlands in order to maintain their natural ability to control stormwater and filter run-off. 

Right now riparian setbacks are one option a municipality can choose to implement in meeting Ohio EPA's requirements for municipal stormwater systems.  This option has proved controversial.  Contentious debate has take place, including over the following issues:

  • Size of the Setbacks-  Standards range from 25 feet to 300 feet. This is a very wide range and Ohio EPA has not formally endorsed a specific distance. 
  • Takings- Issues have raised by property owners that the government imposing no-build areas on their property amounts to a "takings" under the Constitution which would entitle them to compensation
  • Variances- What is the process for granting a variance from the set back requirements?  Communities have utilized very different processes in determining whether to grant a variance

Right now municipalities have had the flexibility to determine these and other issues associated with riparian set back on their own.  They can craft their ordinances to deal with local concerns of their constituents. While this has led to variations in standards, some would argue variation may be suitable based upon local conditions.

What if the Sewer District decides riparian set backs are mandatory and imposes certain standards on all communities related to the setbacks?  For example, what if they impose a mandatory 50 to 100 foot setback from all streams and wetlands?  This may lead to significant debate and outcry.

Cost of the Program- Opportunities to Offset CSO Compliance Costs Should Be Explored

One of the other major concerns with the proposal is the imposition of a new fee (tax) during these tough economic times.  Certainly it is a legitimate concern to worry about imposing new costs on businesses after the worst recession in decades. 

However, it is possible the stormwater utility could save money.  The Sewer District is still in a battle with U.S. EPA over its combined sewer overflows (CSOs).  The ultimate fix to those problems runs into the billions of dollars over the next few decades.  This translates into ever escalating sewer rates to pay for those improvements.

It is possible to offset some of the costs through the stormwater utility?  There are opportunities, such as the use of "green infrastructure" to reduce infiltration of stormwater into the Sewer District's system.  Reducing infiltration diminishes the need for costly "grey" infrastructure to hold stormwater to prevent overflows.

The Cincinnati Metropolitan Sewer District faced years of litigation with U.S. EPA over its CSOs.  Ultimately a very costly judicial order was agreed to satisfy the federal agency.  However, built into that Order were unprecedented flexibility to explore the use of  "green infrastructure" instead of constructing deep tunnels to hold stormwater.  Here is an excerpt from a report recently submitted to U.S. EPA regarding viability of green infrastructure to solve CSO issues (Note: while it says for settlement purpose this document is available on the web):

All of the parties clearly desire significant improvement to water quality currently impacted by MSD's CSOs and SSOs. If cost were no object, this could be done by conventional, so-called "grey" methods, such as massive deep storage tunnels. However, as discussed openly among the parties, MSD's service area faces huge economic problems due to its increased urbanization, population and industry losses, and related matters. MSD maintains that the sewer rate increases required through construction of massive "grey" solutions would be economically and socially devastating. This problem has the potential to create a stalemate or gridlock in finalizing the WWIP. It also presents a lose-lose situation where neither side obtains what it wants or needs. As recognized by USEPA, green infrastructure has the potential to provide water quality improvements at a fraction of the cost of "grey" infrastructure projects.--  Cincinnati MSD "Green Infrastructure" Program

Sounds very similar to the issues facing our Region.  Perhaps there is a real opportunity to see if the stormwater utility could be used as a means to reduce the District's compliance costs to solve its CSO problems. 

Has the District even studied or discussed whether a "green infrastructure" program implemented by the proposed utility could be a cost saver versus another tax imposed on businesses and residents?


Local Controversy Intensifies Over Proposed Northeast Ohio Stormwater Utility

The Northeast Ohio Regional Sewer District (NEORSD) is pushing forward with a proposed storm water utility that would extend through out its service area.  The Board is expected to vote on the proposal January 7th.

Under the proposal the District would assess the average homeowner $4.75 per month or around $57 per year.  The fees would be aggregated to run a regional storm water program administered by the Sewer District to perform the following activities:

  • Create master storm water plans
  • Inspect and maintain storm water control infrastructure
  • Build storm water control projects
  • Support green infrastructure
  • Restore streams
  • Assist municipalities in complying with Phase II storm water requirements

(click here for NEORSD's power point on the proposed storm water utility)

Recent newspaper articles have discussed battle over the District's legal authority to implement the plan.  The Plain Dealer has had a series of articles discussing the storm water utility proposal in depth as well as an editorial in support. As reported in the Hudson-Hub Times, Summit County has already filed a lawsuit challenging the proposal.

A complaint for declaratory judgment and permanent injunction was filed by Summit County Dec. 30 in the Summit County Court of Common Pleas. Other plaintiffs include Northfield Center and Sagamore Hills townships, the cities of Macedonia, Hudson and Bath, and the villages of Boston Heights and Richfield.

The complaint states, among other allegations, that NEORSD has no authority to impose “stormwater fees, taxes or assessments on Summit County residents” and states the county engineer’s office is better suited to manage stormwater issues in the county.

Communities within Cuyahoga County have also expressed concern.  As reported in theSun-Star Courier, Broadview Heights and Strongsville also have issues with the proposal.

The fee doesn’t sit well with Broadview Heights Mayor Sam Alai either. With the city already having fees in place, residents may be seeing a double charge if the district has their way.

“My opinion is that Broadview Heights has its own sewer fee,” Alai said. “I can’t see us billing our residents twice for the same service.”

Concern has focused mostly on the following issues associated with proposal:

  • Wisdom of imposing a new tax during these tough economic times
  • Legal authority to create the utility
  • Summit County is concerned fees will be assessed in their County for projects in Cuyahoga County
  • Local governments are concerned with infringement upon their authority

These are all serious issues worthy of debate which have already resulted in litigation.   In fact, this list of issues may be so serious that many are not paying close attention to other, more practical, issues associated with the proposal.   

NEORSD just concluded its public comment period and has revised its proposed regulations that would govern the utility.  It is a valuable exercise to review the proposed regulations to get a better understanding of how the District will administer the program. (Click here to see revised regulations)  In future posts I will be discussing some of the issues that perhaps have been overlooked as a result of the debate over legal authority.  These include:

  • Impact on local ordinances governing storm water
  • Proposed use of Watershed Advisory Committees to solicit input on projects and planning
  • Advantages and disadvantages to a regional program to address storm water
  • Green infrastructures relationship to combined sewer overflows


U.S. EPA to Impose Numeric Discharge Limits at Construction Sites

On November 23, 2009, the U.S. Environmental Protection Agency (EPA) finalized new rules intended to control stormwater pollution from construction sites.  The rule takes effect on February 2010 and will be phased in over four years. 

The most significant new requirement is the imposition of numeric discharge limits from larger construction sites.  In the past, U.S. EPA required construction site owners/operators to implement best management practices (BMPs) to control stormwater runoff without monitoring or discharge limits.  Once the new standards are phased in, owners/operators will be required to sample stormwater discharges and comply with a numeric standard for the pollutant turbidity in discharges according to the following schedule:

  • In 18 months (August 2011), construction sites 20 acres or larger will be required to monitor and meet numeric discharge limits
  • In four years, construction sites 10 acres or larger will be required to monitor and meet numeric discharge limits

From the EPA press release:

Owners and operators of sites that impact 10 or more acres of land at one time will be required to monitor discharges and ensure they comply with specific limits on discharges to minimize the impact on nearby water bodies. This is the first time that EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site stormwater discharges.

There are also impacts to smaller construction sites ranging from 1 acre to 10 acres in size.  The rule will impose a series of mandatory Best Management Practices (BMPs) relating to: Erosion and Sediment Controls; Soil Stabilization BMPs; Dewatering BMPs; Pollution Prevention Measures; and Prohibited Discharges.  Previously, owners/operators were allowed to pick and choose their BMPs as long as they met specified engineering requirements.

Stringency of the Numeric Limits

Dirt particles in storm water discharges typically cannot be effectively removed by conventional BMPs (such as sediment basins). In November 2008, U.S. EPA had proposed a numeric limit of 13 nephelometric turbidity units (NTU). To meet the proposed numeric turbidity limit, sites may have been forced to actively treat stormwater.  Active treatment could have included use of chemical treatment and filtration of their storm water discharges.

However, U.S. EPA backed off the stringent 13 NTU proposed limit.  The final rule has a far more relaxed standard of 280 NTU.  EPA decided to increase the limits based upon a flood of comments suggesting the 13 NTU limit would represent less than background levels at some sites and would be nearly impossible to meet.

Even with the high numeric standard, Industry is concerned with the implications of the new rules.  The construction industry is simply not accustomed to being required to take samples and meet specific permit limits.  As detailed on the Associated General Contractors of America, the following could be implications for contractors at larger construction sites:

On all jobsites where the numeric limit applies, the rule requires contractors to collect numerous stormwater runoff samples from all discharge points during every rain event and calculate the NTU level(s). (This may entail taking "grab" samples by hand and performing measurements with a field turbidimeter; however the rule doesn't specify any sort of monitoring protocol or methods - instead EPA is leaving it up to that states to spell that out in their permits.) If the average NTU level of the samples taken over the course of a day exceeds the "daily maximum limit" of 280 NTU on any given calendar day, then the site is in violation of the federal limitation requirement. EPA is also leaving it up to the states to specify applicable requirements for contractors to report on the samples they take of their construction site discharges...

AGC is deeply concerned about the potential impact this rule will have on the construction industry and will provide more information in the near term as we continue to analyze EPA's C&D ELG rulemaking

No doubt the final rule represents a significant increase in the stringency of regulations applicable to the construction industry. 

After the Fire, the Cuyahoga River Clean Up: A Worthy Environmental Achievement Goes "Up in Smoke"

On Monday, the Cleveland Plain Dealer had a picture (above the fold) taken 40 years ago of a man dipping his hand in the Cuyahoga River and having it covered in oil and muck.  In the background is the River that was an oil and waste cesspool, devoid of any life.  Everything was primed for a follow up story in the Plain Dealer today talking about the 40th Anniversary of the famous fire on the Cuyahoga River and show casing Cleveland's massive environmental achievement in cleaning up the River, then in stepped U.S. EPA....

As discussed in detail in the prior postEnding 40 Years of Cleveland Jokes: A River's Recovery, the 40 year clean up of the Cuyahoga River has resulted in an unbelievable achievement.  For most of the forty miles upstream of the navigation channel, the River is teeming with life, including:

  • more than 40 species of fish
  • ten times the amount of fish per kilometer

To show this amazing progress, Ohio EPA and the Cuyahoga RAP submitted a formal request supported with reams of data to U.S. EPA's Great Lakes National Program Office (GLNPO) asking that huge portions of 40 mile stretch be "delisted" or, in other words, taken off the list of the most polluted rivers in the country.  Yesterday, at the Year of the River celebration, local and state politicians, environmental groups and government representatives gathered to receive the good news- U.S. EPA had granted the request.  Only to find out that GLNPO couldn't see past the bureaucratic red tape and essentially denied the request (GLNPO Letter).  Here was is on the Plain Dealer's web page today regarding the Year of the River event:

Fantastic job, Northeast Ohio, really. But even after an incredible 40-year turnaround from fire to fish-friendly, still not enough has been done to bring the Cuyahoga River into environmental compliance.

That was essentially the message the U.S. EPA delivered Monday to officials and environmentalists gathered for 40th anniversary of the last fire on the industrial waterway.

GLNPO did not deny the request because the disagreed with the data that showed a return of fish and aquatic life to the River.  In fact, they sent a letter saying they agreed with the data.  Instead, GLNPO said they just didn't want to delist portions of the River due to internal difficulties in tracking the data.   So all they could send was a letter saying "nice job" and the data shows recovery, but we can't formally recognize anything.

While this may not seem like a big distinction, the fact is the media was all set to portray the story in an extremely positive light.  I talked with a couple of local reporters and press people covering the event.  Some had glowing coverage written and prepared to be released only to rewrite the stories at the last minute once everyone figured out what U.S. EPA had actually done.  What could have been a event garnering regional if not national attention, ended with local news stories discussing the bureaucratic U.S. EPA. 

Having working on Great Lakes issues for a number of years, I am wise enough to know that progress must be documented when pouring millions into improving the Lakes.  U.S. EPA's Great Lakes National Program Office should be trumpeting these successes to gain momentum, not deflating the balloon. 

Let's hope that a lesson can be learned and U.S. EPA will sit down and realize they need to take a fresh look at establishing milestones and formally recognizing achievements.  Otherwise we will have a difficult time ever convincing the Country spending hundreds of millions on the Great Lakes is a wise investment.


Ending 40 Years Of Cleveland Jokes: A River's Recovery

June 22nd will mark the 40 year anniversary of the famous 1969 fire on the Cuyahoga River.  A picture of the fire in Time magazine was credited with bringing national focus to water pollution in the United States.  Here is a quote from a recent Cleveland Plain Dealer Article on the notorious fire:

"The fire did contribute a huge amount to the new environmental movement and it put the issue in front of everyone else, too," said Jonathan Adler, environmental historian and law professor at Case Western Reserve University. "Water pollution became a tangible, vivid thing -- like it had never been on a national level. "There was a sense of crisis at that point. It was: Oh, my God -- rivers are catching on fire.' "

In 1972, Congress passed the Clean Water Act whose stated goal is to make waterways across the country "fishable and swimmable."  Forty years ago, achieving the goal of the Clean Water Act seemed impossible for rivers like the Cuyahoga. 

The River was virtually dead from the release of industrial wastes and untreated sewage along with intensive urban and industrial development.  I remember talking with some of the original employees of the Ohio EPA who described the rivers like the Cuyahgoa and the Mahoning were virtually boiling from steel mills and other industrial sources that did not cool their water prior to discharging into the River.      

Flash forward to 2009, we are about to celebrate the anniversary of the fire by marking a significant achievement  in its recovery.  The Cuyahoga River Remedial Action Plan along with Ohio EPA has submitted a request U.S. EPA to take official action by removing most of the river  from list of the most polluted rivers in the Great Lakes (delisting request).  As the Chairman of the Cuyahoga RAP, I was lucky enough to sign the letter submitting the official request to U.S. EPA. 

The area of recovery stretches from Akron to 50 miles down the River to its navigation channel.  A once dead River is now teaming with life.  The River so notorious for its fire is now become a favorite for steelhead fly fishing. 

Perhaps no aspect of the recovery tells the story better then the return of fish to the River. The chart to the left is part of the delisting request to U.S. EPA.  It is a compilation of years of data collection from the River.  The horizontal axis is the miles of the River.  The vertical axis is the number of fish species. 

1969 is represented by the nearly flat purple line across the bottom indicatng virtually no life in the River except for its upper most reaches.  The green line across the top is 2008 which shows between 15 to 25 species living in the River.  (The dip in the green line is the Route 83 dam which shows how dams can have dramatic impacts on water quality)

What an amazing recovery.  From dead in 1969 to a River that has a wide variety of species and healthy fish in 2008.  Here are some more details on the return of fish to the River:

  • In 1984 the relative number of fish caught per kilometer was 53. In 2008 the relative number was 657 fish per kilometer. 
  • Total species in 1984 was 28, compared to 43 in 2008 with ¼ fewer sites. 
  • In 1984 there was only 1 individual of a sensitive species. In 2008 there were 10 sensitive species comprising 1412 individuals (31% of the total catch). 
  • In 1984 there were only 8 bass caught. In 2008 there were 221 bass caught, with the dominant species being Smallmouth Basin. 
  • In 1984 there was only 1 darter individual collected. In 2008 there were 5 species of darters (228 individuals). 
  • In 1984 there were no redhorse species (sensitive) in the entire reach. In 2008 there were 3 species (96 individuals). 

What are the reasons behind the miraculous recovery of the Crooked River?  It took a combination of major investment, successful environmental regulation and protecting the sensitive corridors along its banks. 

  1. Major investment by private industry and municipal wastewater treatment facilities- the North East Ohio Regional Sewer District and Akron's wastewater system have invested billions of dollar upgrading treatment.  Industry along the river has invested millions in new treatment wastewater treatment technology and improved business practices.
  2. Environmental regulation- Often maligned, the recovery demonstrates that regulation can be effective.  The Clean Water Act brought permits to all the major discharges to the River.  Overtime, as technology improved, the permits ratcheted down how much pollution dischargers could put into the river.
  3. The Cuyahoga Valley National Park and Cleveland Metroparks- Maintaining natural vegetation along the banks of rivers and streams has major benefits to water quality.  This vegetation operates as filters-absorbing non-point pollution before  it can impact waterways.  It also provide habitat for important bugs and critters that breathe life into streams.  The Cuyahoga Valley National Park protects 33,000 acres along the banks of the Cuyahoga River.  The park system operates as a massive riparian corridor along the River. 

Local news coverage of the remarkable comeback of the burning River has been good.  The Cleveland Plain Dealer has a series dedicated to the Year of the River.  But this deserves to be a national story.  So often the Midwest and Cleveland seem to be the epicenter of bad news- from a down economy to the housing crisis.  Don't get me started on the sports teams. 

What once brought Cleveland into the national spotlight for all the wrong reason should now bring attention for the rights ones.  How great would it be to see Time Magazine revisit the River forty years later!  Maybe with a picture of some fly fishing on the River.  Another reason to highlight the recovery nationally, the Obama Administration has requested $475 million in funding for the Great Lakes. What a better poster child for showing investment in the Great Lakes can work than the Cuyahoga.

If you want to do your part to help the river, you can purchase t-shirts and mugs embossed with the four fish graphic at the beginning of this post.   Money raised will be used to support on-going efforts to restore the River.  If you happen to be in the Cleveland area come down to the River on the 22nd and celebrate this amazing story or re-birth.  You can get details form of the events planned from the Cuyahoga RAP's website.


Riverkeepers: Is Weighing the Cost and Benefits of Environmental Regulations Really "Back On The Table"

On April 1st, the U.S. Supreme Court issued its decision in Entergy v. Riverkeepers which examined whether a cost benefit analysis is appropriate under certain provisions of the Clean Water Act, specifically Section 316(b) of the Act. As detailed below, there has been wide ranging debate over the significance of the decision.

At issue are large power plant cooling water intakes.  In the course of operation of these intakes large amounts of fish are pinned against the screens (called "impingement") or sucked into the plant (called "entrainment").  Due to the harmful effect to aquatic ecosystems, the intakes are subject to EPA regulations.  The CWA requires the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact. 

EPA adopted regulations applicable to existing plants.  The regulations included the option for plants to obtain a variance from the requirement to install specified technology.  To obtain a variance the plant would need to demonstrate:

  1. costs of compliance are “significantly greater than” the costs considered by the agency in setting the standards, 40 CFR §125.94(a)(5)(i), or
  2. costs of compliance “would be significantly greater than the benefits of complying with the applicable performance standards,” §125.94(a)(5)(ii).

Where a variance is warranted, the permit-issuing authority must impose remedial measures that yield results “as close as practicable to the applicable performance standards.” 

Environmental groups challenged the ability to obtain a variance after performing a cost-benefit analysis.  The groups challenging EPA's rule argued that Section 316(b) is silent on the use of cost as a factor in setting forth the "best technology available" standard.  Because the statute is silent, the groups challenging the regulation argued the variance provision was illegal. 

Justice Scalia wrote the opinion for the Court which rejected the argument that 316(b)'s  silence means costs cannot be considered.  However, Justice Scalia did point to other language in the statute that the Court believed indicates costs could be considered.

the statute's use of the less ambitious goal of “minimizing adverse environmental impact” suggests, we think, that the agency retains some discretion to determine the extent of reduction that is warranted under the circumstances. That determination could plausibly involve a consideration of the benefits derived from reductions and the costs of achieving them.

There has been significant debate over the importance of the ruling.  (See New York Time- Groups Debate Supreme Court's Power Plant Ruling.  In the NYT's article, some argue the door is now open to increased use of cost-benefit analysis in environmental regulatory decision-making:

"While the Entergy decision rests on close analysis of the statutory language of a particular Clean Water Act provision, it is likely to be highly influential in granting EPA discretion to use cost-benefit analysis more generally when statutory language does not preclude it," said Tim Bishop, a partner in the Supreme Court and appellate practice at Mayer Brown.

The Wall Street Journal comments that the decision will have significant impact on future regulations:

The ruling addresses a huge question in the energy and environment battle raging right now—namely, how to strike the balance between environmental protections and safeguarding the economy. It also brings the field of cost-benefit analysis squarely back into the environmental debate.

The statements appearing in the Wall Street Journal dramatically overstate the impact of the decision.  The decision was based upon a very close analysis of the language in one specific provision of the Clean Water Act.  The Court avoided wide pronouncements regarding the use of cost benefit analysis in environmental decision making.

Even more importantly, silence alone was not enough.  Justice Scalia found other language in the statute- "minimizing"- as suggesting Congress intended costs to be considered. There are plenty of instances where environmental statutes strictly forbid considerations of costs.  In fact, Justice Scalia in his opinion cites to several other Clean Water Act sections that he deems to prohibit cost considerations. 

For cost-benefit analysis to really become a major factor in environmental policy, Congress will have to insert affirmative language into environmental statutes to allow for costs to be considered.  Something that appears unlikely given the current make up of Congress.

 (Photo: flickr mcgervey)

Push for Great Lakes Restoration Funding in the Economic Stimulus Package

Senators Stabenow and Feingold are trying to build support for Great Lakes funding in the economic stimulus package being developed.  The following letter is being circulated as a way of showing support for inclusion of funding. 

The letter highlights the traditional areas identified for Great Lakes Restoration- contaminated sediment, combined sewer overflows and eco restoration. 


Dear Majority Leader Reid and Minority Leader McConnell:

As you move forward with an economic recovery package for our nation, we strongly urge that you include funding that will protect and promote jobs by restoring and protecting one of our most important natural resources – the Great Lakes. In particular, we urge you to provide funding for the Great Lakes Legacy Act, the Clean Water State Revolving Fund, and the Great Lakes Fish and Wildlife Restoration Act. These investments will put people to work cleaning up toxic sediments in our region’s rivers and harbors, ending decades of sewer overflows into 95 percent of our nation’s fresh surface water, and restoring hundreds of acres of vital wetlands and habitat.

Since 2002, cleanups funded under the Great Lakes Legacy Act have removed nearly a million cubic yards of toxic sediments from rivers and harbors in the Great Lakes. These cleanups—a priority under the Great Lakes Regional Collaboration plan—are creating thousands of jobs and opportunities for additional economic development in Detroit, Cleveland, Milwaukee, Buffalo, Gary, Duluth and other Midwest urban areas. By investing $262.0 million in 2009 and an additional $240.0 million in 2010 for toxic sediment cleanup projects, which were identified by our states, we can put thousands of people to work in struggling urban areas throughout our region. According to our states, these projects are ready to go and spending these funds can immediately begin to create jobs and economic activity in our region, with lasting impacts.

Another job-generating opportunity is investing in the Clean Water State Revolving Fund. By investing in clean water infrastructure, we can put people to work tackling an important challenge of our times: aging water infrastructure and associated environmental, public health, and economic costs. It is estimated that for each $1 billion invested in clean water infrastructure, 47,000 jobs are generated. We recommend that the recovery package invest $10 billion in the Clean Water State Revolving Fund, resulting in 470,000 jobs nationally. In the Great Lakes region alone, a $10 billion national investment translates into $3.7 billion for the region and over 170,000 jobs that can establish a modern and environmentally sound water infrastructure system.

The negative economic impacts of aging infrastructure are well documented throughout the region and nation: from sewage-related closures every summer at Great Lakes beaches and water-borne illnesses and deaths to road damage, such as sinkholes caused by breaking water infrastructure. Old and ailing waste water treatment facilities are the cause of more than 23 billion gallons of raw sewage entering the Great Lakes in 2006. Stresses on our aging infrastructure are further compounded—until Congress acts—by reduced stream and wetland protections under the Clean Water Act as a result of recent Supreme Court decisions, further taxing water infrastructure that must compensate for lost natural filtration and water storage functions, for example. Also, climate change is expected to bring heavier rains that will inundate overtaxed waste water systems and lead to increased untreated sewage overflows in the Great Lakes. Addressing all of these threats will ensure the economic vitality of the Great Lakes and the nation’s resources, which we all depend on for jobs, drinking water, and quality of life.

We also support investing in ecosystem restoration programs, such as the U.S. Fish and Wildlife Service’s Great Lakes Fish and Wildlife Restoration Act program, to fund wetlands and habitat projects. Restoring habitat, aquatic ecosystems, and wetlands not only can reduce the overall cost of water infrastructure projects; they also contribute to our state’s hunting, fishing, and wildlife watching economies. These projects will also immediately generate jobs on par with other infrastructure pursuits--a $130 million dollar investment in ready-to-go restoration projects in the Great Lakes region will generate nearly 3,000 jobs.

We look forward to supporting legislation that builds economic opportunity and puts people back to work while enhancing environmental quality. Investing in clean water infrastructure, toxic sediment remediation, and habitat restoration accomplishes all three goals. We urge you to include these investments in the recovery package that we will consider next year.


cc: Senator Boxer, Chairman, Environment and Public Works
Senator Inhofe, Ranking Member, Environment and Public Works

(Photo: flickr vice48sr5005/

Ohio EPA's Overhaul of Water Regulations

This fall Ohio EPA Division of Surface Water (DSW) has been releasing a series of intertwined rule packages that govern streams and discharges to waterways.  Some business groups have said that the packages represent the most significant overhaul of water regulations in thirty years.

  To date, 3 out of 4 packages have been released:

  1. Antidegredation Rule
  2. Water Quality Standards
  3. Section 401 Water Quality Certification Rule
  4. Stream Mitigation Rule (to be released in early 2009)

No doubt the packages are highly technical and cover a myriad of issues.  But what are the implications for businesses in Ohio?

 Boiling down the packages, here are the major changes:

  • Creation of a new State Water Quality Permit for impacts to streams
  • Complete overhaul of mitigation requirements for stream impacts
  • Comprehensive tightening of standards for discharges to water ways (will result in more stringent discharge permits for businesses)
  • Standards for drainage ditch maintenance
  • Phase out of open lake disposal for dredged sediment from ship channels by the Army Corps of Engineers
  • Introduction of a nutrient standard for newly constructed or modified wastewater treatment plants


I already discussed the new State Water Quality Permit in a prior post.  I believe Ohio would be the first state in the Country to create a state permit for impacts to streams that are not covered by the Clean Water Act.  The State is reacting to a series of Supreme Court decisions which have reduced federal jurisdiction over waterways and wetlands.


Ohio EPA is proposing to tighten standards for some 135 chemicals.  They are also proposing to revise the human health criteria applied to NPDES discharge permits.  The more stringent standards will be incorporated into NPDES permits after they are renewed (NPDES permits have a 5 year life cycle).  Depending on the business and the nature of their discharge, the tighter standards could result in significant upgrades to wastewater treatment plants. 

The biggest question from business groups regarding the strengthening of water quality standards is....Why  now?   Many of the revised standards were part of U.S. EPA updates from 2000. 


For wetland impacts, Ohio mitigation requirements are very straightforward and are set forth in rules.  The ratios for required mitigation and the quality of wetland mitigation is all tied to the class of wetland impacted (Ohio classifies wetlands as either Class I, II or III).

Stream mitigation requirements are not straightforward.  Ohio EPA's stream mitigation requirements have been described by developers as a "black box."   The fact is mitigation is decided on a case by case basis, and lack of consistency is a legitimate concern.  To address this longstanding issue, Ohio EPA is attempting to clearly defined mitigation requirements for streams. 

Each of the four packages contain some aspect that is relevant to stream mitigation requirements.  However, until Ohio EPA releases the main rule package on stream mitigation requirements it will be difficult to see how the pieces fit together.  However, certain aspects of the rules that have been release foreshadow what is coming:

  • Primary Headwater Habitat Designation- Ohio EPA creates this new designation and creates three classes based on the quality of the stream.  For lower classes, the focus of the designation is hydrology and not aquatic life.  This sets up mitigation requirements.  If you impact a Class I stream by moving or filling it, you will have to restore the hydrology lost as part of your mitigation.
  • "Upland Drainage" and "Water Conveyance" Designations- applies to drainage ditches (or what Ohio EPA refers to as "historically channelized watercourses").  The purpose of these new designations for ditches is to encourage better management practices, such as natural stream design when performing maintenance on ditches.  
  • "No Net Loss" Principle Applied to Streams-  A legal issue surrounds the amount of impacts that are allowed under antidegredation principles to streams versus wetlands.  For wetlands, there has been a "no net loss" that actually allows destroying an entire wetland if its value is replaced through mitigation.  There is an open legal question as to whether the same flexibility exists for streams.  Ohio EPA is proposing to settle that issue by bringing the "no let loss" principle to streams.


A source of major controversy in Ohio has been poorly maintained drainage ditches (see the Ohio Environmental Council web page).  Through mother nature's influence over time, drainage ditches can become valuable headwater streams. The controversy occurs when a farmer or County engineer wants to dredge a ditch for drainage or flood control that has not been maintained for many years.  Will the rules even allow them to perform that work if the stream has become a valuable resources, such as a warmwater habitat stream?


For the first time in Ohio, the Agency is proposing to require treatment standards for nutrients.  Nutrients, such as phosphorus and nitrogen, are one of the most significant causes of water quality impacts in the State (U.S. EPA Nutrient Website for background).  The Agency is proposing to take a step in the direction of regulating this pollutants by requiring treatment for nutrients as part of Best Available Demonstrated Control Technology (BADCT) that will apply to new wastewater treatment plants or modifications to the biological treatment process of an existing plant.

Important Issues Unaddressed After Passage of Great Lakes Compact

With Michigan and Pennsylvania's passage of the Compact, all of the Great Lake States have now endorsed it.  The next step is to go to Congress for ratification.   While the press has almost exclusively concentrated on the diversion aspects of the Great Lakes Compact, there are other provisions that could have important ramifications for businesses.  Ohio has yet to pass enabling legislation that will grant authority to the Ohio Department of Natural Resource to implement other important aspects of the Compact, most notably regulation of water withdraws. 

The driving force behind the Compact was to ban diversions to other States and Countries.  But the Compact also requires each of the eight states to establish a regulatory program for new or increased withdraws from the Great Lakes basin. Ohio's enabling legislation will decide critical issues such as- how much water must be withdrawn before a permit will be required?  The Compact sets a default number of 100,000 gallons per day (gpd).  Other states have established higher thresholds, such as 1,000,000 gpd.

Another critical question - what type of review is required if a business triggers the need for a withdraw permit?  The Compact contains very broad language that requires a review of impacts to the Great Lake basin from which the withdraw takes place.  However, the Compact grants the states a tremendous amount of discretion to establish the level of review associated with new withdraws.  For example, Ohio could prohibit issuance of a withdraw permit if the proposed project would result in decreased flow in a tributary of Lake Erie.  Ohio could also require a detailed review of the impacts to the ecosystem if a withdraw is allowed.

While focus has rightfully been on protecting this tremendous freshwater resource from being diverted elsewhere, there are important policy questions that still remain unanswered.  How Ohio and the other Great Lake States regulate withdraws within their states will arguably have a more direct and immediate impact on its constituents. 

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