Stormwater Runoff Is Not a Pollutant
The precedent has been set: water cannot qualify as a pollutant in Richmond, Virginia. Attorney General Ken Cuccinelli and Governor Bob McDonnell are rejoicing, as a federal judge ruled that the Environmental Protection Agency may not regulate stormwater runoff as a pollutant. The EPA sought to restrict the flow of stormwater into Accotink Creek to deal with sediment.
“The EPA’s thinking here was that if Congress didn’t explicitly prohibit the agency from doing something, that meant it could, in fact, do it,” Cuccinelli said. “Logic like that would lead the EPA to conclude that if Congress didn’t prohibit it from invading Mexico, it had the authority to invade Mexico.”
The judge agreed with Cuccinelli, and said, “Stormwater runoff is not a pollutant, so the EPA is not authorized to regulate it.”
McDonnell said in a statement that the EPA’s stance would have required the Virginia Department of Transportation to spend at least an additional $70 million to retrofit facilities and redesign new projects to comply with the regulations. He added that Fairfax County would have had to spend more than $300 million to comply.
Grants for Water Protection
Protecting bodies of water is becoming a priority for localities across the country, with many funding projects costing millions of dollars. Most recently, the Minnesota Board of Water and Soil Resources (BWSR) has awarded more than $18 million in grants to local governments for projects that will protect and restore Minnesota’s streams, rivers, lakes and groundwater.
Cleaning up the Pomme de Terre River, treating urban stormwater and protecting the city of Faribault’s drinking water supply are just a few of the projects that were selected to receive clean water funding.
The Clean Water Legacy funds target polluted and at-risk waters throughout the state. Some funded projects will create catchment areas to slow down water, allowing pollutants to filter out before reaching a lake or stream. Others will improve livestock waste management, filter water entering drainage systems, protect drinking water wells and reduce soil erosion.
“Sponge” filtration systems are becoming more common for cleaning stormwater. One such system has been installed in the Village of Lindenhurst, New york. The stormwater system cost $50,000 and is designed to help cleanse storm runoff headed for an important local pond.
The system, installed by Bimasco, filters incoming water as it heads down stormdrains towards the outlet at the pond. The water filter blocks more than just large objects like cans and leaves; smaller contaminants like oil, dirt and gasoline are soaked up by interior sponges, leaving purified water to exit the drain to the pond.
The filters are easily accessible and allow the repair of any potential problems, as well as keeping a village landmark from being contaminated. The sponges require a once-a-year replacement.
“The whole system is pretty impressive,” said Grant Hendricks, CEO of Bimasco. “It’ll help keep the pond clean.”
Inequitable Stormwater Treatment Fees
The city of Waterville, Maine, is looking to cut stormwater treatment fees out of its expenses. City Manager Michael Roy says that the city has been overcharged by the Waterville Sewerage District for more than 25 years, and that changing the fee could save the city up to $271,000 a year.
The Waterville Sewerage District routes the city’s sewer water to the Kennebec Sanitary Treatment District—another entity that is completely separate from the sewerage district—and manages stormwater and catch basins. More than half of the sewer flow to the treatment plant (54 percent) is stormwater, including rainwater and groundwater that gets into the sanitary system through cracks in the pipes, basements and roof drains.
“We’re paying a portion of the cost of treating the stormwater that’s in the flow,” he said. “They decided our fee is $271,000.”
Roy said users include all property owners in the city: homeowners and non-taxpaying entities. But the city is being singled out to pay a huge part of the bill, which is in conflict with state law. That law says that districts must be uniform in their charges and rates, he said. “It’s not a fair and equitable fee, because we’re the only customer being charged.”
Court Ruling Misses The Point
Los Angeles County received a reprieve when the U.S. Supreme Court overturned a ruling previously won by environmentalists.
The ongoing dispute between the county and environmentalists concerns who is responsible for pollution from stormwater. The court’s decision misses the larger point of dealing with the problem of stormwater and urban runoff flowing into the region’s waterways.
The Natural Resources Defense Council and Santa Monica Baykeeper (now Los Angeles Waterkeeper) sued the flood control district in 2008, citing illegally high pollution readings at monitoring stations in the county’s rivers.
Last year, the U.S. 9th Circuit Court of Appeals ruled that the county was liable for the pollution, and referred to the water flowing from the “concrete channels” into the natural part of the lower river as discharges of pollutants. Recently, the Supreme Court reversed that ruling and said that the water flowing from one “concrete” section of the river to another section cannot be deemed a “discharge” of pollutants: “No pollutants are ‘added’ to a water body when water is merely transferred between different portions of that body,” Justice Ruth Bader Ginsburg said.
County officials argue, in their defense, that the flood control district is not primarily to blame for the pollution in the rivers, because there are dozens of cities discharging polluted runoff upstream from the monitoring sites. With only one monitoring station in each river, it is difficult to find the original source of the pollution. The Supreme Court insisted that the county nevertheless needs to find a better way of monitoring stormwater runoff.
Two-Year Project Underway
To address the flooding in Ann Arbor, Michigan, the city has launched a two-year initiative to monitor and evaluate stormwater behavior throughout the city.
By completing a comprehensive stormwater inventory and creating a calibrated model, city staff will have a full understanding of how the system functions during significant weather events.
During the next two years, their plan is to simulate and measure real-world conditions. This intensive data gathering will help finetune the existing stormwater model. The newly calibrated model will then be used to improve the city’s stormwater system.
Master Stormwater Plan
Community leaders in Northbrook, Illinois, are looking for ways to increase development. The town’s recent projects include a stormwater utility fund and a master stormwater management plan.
“The stormwater utility fund is $1 per 1,000 gallons of water, which will be used to pay for the stormwater projects. We have about 20 of them on the books, costing about $20 million,” said Sandy Frum, president of the Northbrook Chamber of Commerce and Industry.
The pipes will hold one million gallons of water, as part of the stormwater detention plan. The village has authorized a study to determine if it’s practical to create a major stormwater basin behind the village hall, she added. “We need more detention for our downtown to increase development and this might be a way of creating it. If the study shows that it will not provide the detention we need, we won’t do it.”
EPA Proposes Stormwater Treatment Rules
Sixty New Hampshire communities may have to pay for stormwater treatment and monitoring programs. The EPA is proposing a Municipal Separate Storm Sewer System, (MS4) permit. Under this permit, the new regulations could cost municipalities, on average, between $78,000 and $829,000 per year. This cost would be charged over the length of time the permits are in effect.
The permits require communities to develop stormwater management programs, perform water testing to control pollutants, start a public education program, search for illicit discharge and implement “good housekeeping” in municipal operations.
The EPA will also require communities to upgrade infrastructures. The permits protect water quality and satisfy appropriate requirements of the federal Clean Water Act.
EPA Mandate Overturned
In a highly impactful ruling, Virginia Federal Judge Liam O’Grady has overturned the Environmental Agency’s definition of ‘stormwater’ as a pollutant. The ruling frees Virginia communities of $300 million in unfunded stormwater mandates.
“The EPA is authorized to set Total Maximum Daily Loads (TMDLs) to regulate pollutants,” wrote O’Grady, “and pollutants are carefully defined. Stormwater runoff is not a pollutant, so the EPA is not authorized to regulate it via TMDL. Claiming that the stormwater maximum load is a surrogate for sediment, which is a pollutant and therefore regulable, does not bring stormwater within the ambit of the EPA’s TMDL authority.”
He continues, “Whatever reason the EPA has for thinking that a stormwater flow rate TMDL is a better way of limiting sediment load than a sediment load TMDL, the EPA cannot be allowed to exceed its clearly limited statutory authority.”
The ruling may now affect the EPA’s stormwater directive, which would cost the city of Huntington, West Virginia, $800 million to replace the current combined sewer system with separate ones for sewage and stormwater.
Both the city of Huntington and the Virginia District Court are within the jurisdiction of the U.S. Court of Appeals for the Fourth Circuit.