Wet Weather Issues
Proposed Stormwater Phase II Regulations
Background: EPA’s proposed stormwater phase II rule regulating stormwater discharges from small municipal separate sewer systems and small construction sites was published in the January 9, 1998 Federal Register. The proposed rule would require smaller municipalities within urbanized areas to apply for NPDES permit coverage by May 31, 2002 and implement a mix of best management practices to "reduce the discharge of pollutants to the maximum extent practicable and protect water quality."
Status: EPA’s Stormwater Phase II Advisory Committee held its final meeting on June 25-26, 1998 to discuss several issues raised during the comment period of the Phase II rule. EPA plans to develop additional technical guidance and fact sheets to assist in the implementation of the rule, which is expected to be finalized in March 1999. CONTACT: George Utting, EPA 202/260-9530 or Mark Hoeke, AMSA 202/833-9106.
EPA to Reconvene SSO Federal Advisory Committee
Background: EPA is crafting a national framework to guide the Agency in revising regulations and guidance to address SSO permitting and enforcement issues. A federal advisory committee, made up of municipal (including AMSA), environmental, EPA, and state interests met from November 1994 to December 1996 to discuss framework and implementation issues.
Status: The Office of Wastewater Management (OWM) is currently developing a draft Federal Register notice that will include: 1) An interim policy statement addressing NPDES permit requirements for municipal sanitary sewer collection systems (the policy will clarify how existing ‘generic’ standard NPDES permit conditions apply to municipal sanitary sewer collection systems); and 2) Proposed modifications to the NPDES regulations which would establish standard permit conditions specifically for municipal sanitary sewer collection systems. These standard permit conditions will address: reporting requirements for sanitary sewer overflows (SSOs); and a prohibition on discharges from municipal sanitary sewer collection systems. The Office of Water currently plans to release a draft of the Federal Register notice to the sanitary sewer overflow (SSO) Federal Advisory Committee for comment before the end of January, 1999. EPA’s OWM wants to ensure its approach is consistent with industry and State practices and guidelines and supported with available data. Key technical issues that EPA is focusing on associated with the development of the interim policy statement and the proposed regulations are: 1) What are the key components of operational, maintenance and remediation programs and what are the major industry practices and guidelines for these measures? 2) How have peak wet weather flow capacity requirements for sanitary sewer collection system rehabilitation projects historically been established? 3) When should treated collection system discharges be included in comprehensive sanitary sewer remediation efforts? OWM has prepared a series of discussion papers to support discussions on these issues which have been distributed to the AMSA membership via Regulatory Alert RA 98-22. The discussion papers identify how municipalities can provide data to support the EPA’s analysis. CONTACT: Kevin Weiss, EPA 202/260-9524, or Mark Hoeke, AMSA 202/833-9106.
EPA Urged to Develop Wet Weather Water Quality Standard Guidance by Congressional Appropriators
Background: Under the 1994 CSO policy, EPA urged states to coordinate the development of local long-term CSO planning with the review and appropriate revision of water quality standards and implementation procedures to ensure that the long-term controls will be sufficient to meet water quality standards. However, after almost five years since the agreement, and with half the CSO communities currently in the long-term planning process, only two states (Maine and Massachusetts) have conducted coordinated water quality standards reviews with long-term CSO planning.
Status: In report language accompanying the 1999 VA, HUD, & Independent Agencies spending bill, congressional appropriators urged EPA to "(1) develop, after a period for public comment, a guidance document to facilitate the conduct of water quality and designated use reviews for CSO-receiving waters; (2) provide technical and financial assistance to states and EPA regions to conduct these reviews; and (3) submit a report to the relevant authorizing and appropriations committees of the House and Senate by December 1, 1999 on the progress of meeting the requirements set forth above." EPA is reportedly trying to determine how it will comply with the language amidst its other priorities and budget cutbacks imposed by the approved spending bill.
U.S. Army Corps of Engineers Modifies NWP 26 Proposal and Extends Timeline for Comments
Background: On July 1,1998, the Army Corps of Engineers provided notice of proposed changes to its Nationwide General Permit Program. The public comment period on the Corps proposal closed on August 31, 1998. That notice responded to the Corps 1996 commitment that it would phase out Nationwide permit 26 (NWP 26), which authorized discharges into headwaters and isolated wetlands, and replace it with a set of ``activity based'' NWPs. In its July 1, 1998 notice, the Corps proposed to replace NWP 26 by issuing six new NWPs and to modify six existing NWPs to become effective when NWP 26 expired. In the proposal, a nationwide permit will be available for new stormwater facilities that do not cause the loss of greater than 2 acres of non-tidal wetlands, and where the permittee has developed a compensatory mitigation proposal that will offset the loss of waters of the United States (if the facility causes a loss of greater than 1/3 an acre). The Corps also proposes changes to NWP 7 which includes permitting of activities related to the construction of outfall structures, and maintenance excavation around outfall structures; and NWP 12, which includes permitting of activities related to the excavation, backfill, or bedding of utility lines, and the construction, maintenance, or expansion of associated pumping stations.
Status: The Corps is proposing additional changes proposed NWPs published on July 1, 1998. For example, the Corps is announcing its decision to withdraw the proposed NWP B for master planned development and proposing the addition of a restriction on the use of certain NWP's in the 100-year flood plain. The Corps is also proposing to exclude NWPs in designated critical resource waters and in impaired waters. In addition, the Corps has revised its schedule for developing the NWPs to provide for additional public comment. This will result in a delay in the schedule for issuing the new and revised NWPs. Consequently, the Corps is also announcing its decision to delay the expiration of NWP 26, so that it will not expire before the proposed new and revised NWPs are issued. The revised schedule provides for the new and revised NWPs to be issued and for NWP 26 to expire on September 15, 1999. The Corps is accepting comments on the proposal by November 30, 1998. CONTACT: David Olson USACE 202/761-0199 or Mark Hoeke, AMSA 202/833-9106.
U.S. Court of Appeals Denies Cincinnati Stormwater Fees From Federal Entity
Background: In recent litigation, the City of Cincinnati contended that the National Institute of Occupational Safety and Health (NIOSH) owed more than $60,000 in storm drainage service charges to the city. A city ordinance provides for a "storm drainage service charge" to be imposed on property owners within the city in order to pay the expenses of the stormwater management system. The amount of the assessment against each property owner is a function of the size of the property and its "intensity of development." The general goal of the assessment formula is to impose higher assessments on properties that are expected to produce more stormwater runoff, such as commercial or industrial properties, and to impose lower assessments on properties that are expected to produce less stormwater runoff, such as residential or undeveloped properties. NIOSH has declined to pay the assessments, contending that the storm drainage service charge amounts to an unconstitutional tax on a federal entity. The City filed suit in the Court of Federal Claims to recover the assessed charges, arguing that the storm drainage charge is not a tax, but a charge for services that the United States, like any other user of city services, is required to pay. The Court of Federal Claims dismissed the complaint for failure to state a claim upon which relief could be granted. In a thorough opinion, the court noted that the federal government can properly be charged for services that it purchases from local governmental entities, such as water or other utility services. The court held, however, that the storm drainage charge, which was imposed on all property owners within the city and was not the product of a voluntary purchase decision by the federal government, constitutes a tax, not a fee for services, and therefore could not be exacted from a federal entity such as NIOSH. The City appealed this decision to U.S. Court of Appeals for the Federal Circuit.
Status: On September 1, 1998 the U.S. Court of Appeals for the Federal Circuit (City of Cincinnati v. United States #98-5039), upheld Federal Claims court decision citing that the city's complaint runs aground on a preliminary matter: It fails to establish the elements of an implied contract between the city and the United States and therefore fails to state a claim upon which the Court of Federal Claims may grant relief. For that reason, the Appeals Court affirmed the judgment of the trial court dismissing the complaint. For full text of the decision, see http://www.law.emory.edu/fedcircuit/sept98/index.cfml