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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Municipalities and counties are utilizing riparian and wetland setbacks in their zoning and planning efforts on a more frequent basis.  Setbacks can be an effective tool to control growth, protect valuable natural resources as well as meet federal and state Phase II stormwater requirements. 

While setbacks are beneficial, officials must understand the level of impact on both large scale and small development within their communities before adopting them.  Are they prepared to require alteration of major new commercial or residential developments?  Are they prepared to face angry residents whose plans for a deck or storage shed are influenced by no build zones?  Do they understand the environmental benefits gained by adopting setbacks?

Some local officials that quickly enacted setbacks without fully comprehending the requirements or educating their residents have faced strong push back.  Some communities have responded by frequently issuing variances that dilute the effectiveness of setbacks. Other communities are delaying action on stormwater ordinances until ordered to by the State.

I have worked with local governments on stormwater ordinances, including setbacks.  In my experience, it is critical for local officials to gain a thorough understanding of the ordinances, how they will be applied, as well as the benefits and consequences of setbacks. 

QUICK PRIMER ON RIPARIAN SETBACKS:

Riparian and wetland setbacks are typically adopted through local ordinance.  The most common form prohibits any development, with narrow exceptions, within specified distances from either wetlands or streams. 

In Northeast Ohio, many communities have used the model ordinances developed by NOACA and the Chagrin River Watershed Partners.  The basic approach used in these ordinances is to establish  "no-build" areas equal to specific distances from all streams or wetland.  The distances in the model ordinances range from 300 ft to 25 ft based on the drainage area of the stream or quality of wetland.  A property owner can try and obtain a variance from the setback requirements by demonstrating hardship.

Some local governments have taken this basic approach much further.  They have invested significant resources to map all of the sensitive environmental resources within their communities.  Once mapped, areas are either designated for planned development or are to be avoided and protected.   

An excellent example of this approach is the Chippewa Creek Balanced Growth Plan developed by the Cuyahoga River Community Planning Organization through a Balanced Growth grant awarded by the Lake Erie Commission.

The map on the left show the entire watershed.  Each color designates a different environmental attribute (such as wetlands, streams or steep slopes) that should be protected.  The map on the right is a satellite image with the critical areas highlighted.  Dark green are "no build zones" (PCAs- Priority Conservation Areas) and light green are designated for future development (PDAs- Priority Development Areas).

Creative approaches can be used to compensate landowners whose land lies in area designated for protection. 

• Transfer of Development Rights- compensating a landowner for the development value of the land that is being preserved by allowing higher density development elsewhere in the community.  (A good primer on Transfer of Development Rights)
• Mitigation Banking- establish wetland or restoration areas that can be used to compensate if an impact occurs to a setback area.  This provides flexibility while ensuring the environmental benefits stay within the watershed.

WHAT TO CONSIDER BEFORE ENACTING SETBACK ORDINANCES

1. Flexibility-  Have you built in a level of flexibility within the ordinance that fits your community's needs?  For instance, will you allow development in a setback if mitigation is provided for the impacts.

2.  Takings-  Do the legal standards for granting a variance provide sufficient protection against taking claims?  Because takings case law is fact specific, requirements within the ordinances must have inherent legal flexibility to avoid providing a basis for a claim.  Application of a setback ordinance that results in a valid takings claims can result in significant compensation to the landowner thus draining local government finances.

3.  Distance of the Setback-  Currently in Ohio there is no minimum setback distance specified in state law.  In addition, there are many different distances utilized.  Some are based upon a formula like the one in the Ohio Department of Natural Resources Rainwater Manual.  Others use standard distances like the approach in the NOACA model ordinance.  The key consideration in choosing a distance is whether it will provide the protection your desire without unnecessarily burdening property owners.

4.  Alternatives to Setbacks-  In Ohio, Phase II stormwater communities must adopt both structural and non-structural "best management practices" as part of their stormwater management plans.  Right now, the State does not mandate adoption of setback ordinances unless the community committed to one in their stormwater management plan.  Would an alternative non-structural BMP requirement, such as mandating use of green infrastructure (green roofs, pervious pavement, rain gardens) be more palatable to residents?

5.  Education-  It is critical that communities use effective public education techniques so citizens understand the value of setbacks.  Good education can be the difference between local governments effective implementation of a setback ordinance or a community that issues frequent variances to avoid confrontation with residents. 

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