Ohio Environmental Law Blog : Ohio Environmental Lawyer & Attorney : Joseph Koncelik : Frantz Ward Law Firm : Environmental Regulation, Land Use, Compliance : Cleveland, Ohio

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?

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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

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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. 

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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.

(Photo:tangywolf/everystockphoto.com)

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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.

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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)

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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.

Sincerely,

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

(Photo: flickr vice48sr5005/everystockphoto.com)

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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

STATE WATER QUALITY PERMIT

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.

WASTEWATER DISCHARGE STANDARDS

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. 

MITIGATION FOR STREAM IMPACTS

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.

DRAINAGE DITCHES

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?

NUTRIENT STANDARDS

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.

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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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