This newsletter is available exclusively to SESWA Members
July 2020
Volume 15, Issue 4

President's Corner
Scott Hofer
As we all continue to weather the storm and follow the guidance of sheltering in place, we have a choice, we can focus on the things we're no longer able to do or we can look ahead to our next big adventure. I invite you to do the later - the future is bright!

SESWA's next big adventure is our upcoming Annual Stormwater Conference. With much thought and deliberation, the Executive Committee has decided to move the Conference to an online format. While we will all miss seeing each other (and we'll certainly miss the Hilton Head beaches), we are excited about the possibilities. The Spring Seminar taught us that participant interaction in a digital platform brings an additional dimension that we had not experienced in person. SESWA is excited to build on what we learned from the Seminar to create a multi-day event for stormwater professionals across the Southeast that will allow you to increase your knowledge while connecting with your colleagues. Stay tuned, you'll be hearing more soon and if you haven't already registered, I invite you to join us online!

Take care. We hope to see you all soon.

Scott Hofer
SESWA President
Association News 
15th Annual Regional Stormwater Conference 
In response to ongoing concerns for the safety and health of all conference participants, the SESWA Annual Conference will be transitioning to an online format. The dates of October 7-9, 2020 will not change. SESWA remains committed to being the preeminent source of stormwater education in the Southeast. We are in the process of transitioning to an online event and will update the Conference webpage as details are finalized. We are excited to be able to offer the same great stormwater education in an online format, provide attendees with access to continuing education credits, provide opportunities for interaction and much more. Stay tuned for more information!
Did You Miss the SESWA Webinar - MS4 Audit Success Stories? 

Preparing for and passing an audit is more than receiving a notice of compliance, it's an opportunity to improve your program and ultimately protect receiving waters. On July 23rd attendees heard from fellow MS4 permittees who shared what to expect before, during and after an audit to better prepare for and get the most out of the experience. If you were unable to attend, the webinar recording is available online! 

The webinar was free to members, thanks to our 2020-2021 Communication Sponsors.

In This Issue
Communications Sponsors

SESWA Board of Directors

Executive Committee

Scott Hofer
Jefferson County DOH, AL

Vice President:
Cory Rayburn
City of Atlanta, GA

W. Dave Canaan
Mecklenburg County, NC

Immediate Past President:
Laurie Hawks
Hawks Environmental

Board Representative:
Synithia Williams
Richland County, SC

To access a full listing of the SESWA Board of Directors, please click here.
SESWA Membership Renewals
Thank you for your membership in the Southeast Stormwater Association!  We understand that these are challenging times. With this in mind, we are extending the deadline for dues payments through the end of the first quarter for fiscal year 2020-21. This year's invoice will reflect a September 30th deadline.  The primary contact for your organization is receiving notices by mail and email.  If you aren't sure who your organization's primary contact is, contact SESWA, we're happy to help.  We look forward to welcoming you back for another year! 
SESWA Job Board - Post Jobs and Resumes!

Are you looking for a change? The SESWA Job Board is an excellent resource for job seekers and employers for stormwater professionals in the Southeast. SESWA members can post job openings on the Job Board for FREE for 30-days! 

Job seekers can also post their resumes for FREE for 30-days. SESWA members will be able to view the resumes and find the best fit for their vacancies! To post your vacancy or resume, visit the SESWA Job Board!
Photo Contest Results

We want to thank all of the members that submitted so many great photographs!  The winning photos are now being featured on the SESWA homepage.  Most of the other submittals can now be seen throughout the website, highlighting the great stormwater projects and programs in the Southeast!  And the winners are...

City of Charlotte, NC -
Reedy Creek Stream Restoration Project
City of Stuart, FL -
Heart of Haney Creek Pedestrian Bridge

Wildlands Consulting -
Reedy Creek Stream Restoration Project
City of Atlanta, GA -
Combined Sewer Brick Trunk Line
Join the Online Community - SESWA's Online Forum 
During this time when many are working from home, take this opportunity to visit the Community Forum and connect with other stormwater professionals.  The Forum is listed under the "Members Only" tab on the SESWA website.  Join this virtual gathering place for members to ask a question or post something that is happening in your area that might be helpful to others. Don't forget to subscribe to get updates!

Quick Tips to Get the Most Out of Your Forum
  • Subscribe - Subscribe to as many topics as you like. When you subscribe to a topic you will receive email alerts for any activity on that topic.
  • Favorites - Click "Favorite" to add a topic to your "My Favorites" list.
  • Search - Search for topics of interest by entering key words in the website search box at the top of the web page. You must be logged in to use the Search feature. 
  • Post - Click on the "Discussion Threads" link. Go to the "New Topic" button. Be sure to subscribe to this topic to receive automatic updates. 
  • Reply - Click the topic link and then click "Post Reply." Remember, to receive automatic updates you must subscribe to this topic.
Regulatory News 
WOTUS Replacement Rule Effective - For Now 
Kurt Spitzer, SESWA

On June 22, 2020 EPA and the Army Corps of Engineers' "Navigable Waters Protection Rule" became effective.  The rule replaces the 2015 Waters of the United States (WOTUS) definitions.  The 2020 definitions are significantly narrower than both the 2015 definitions and those that proceeded the 2015 amendments.  Many CWA-related permitting programs (e.g. NPDES, dredge and fill, etc.) hinge upon whether a waterbody is or is not subject to federal jurisdiction.  Although technically effective at the present time, there are at least 11 lawsuits filed in federal courts around the US challenging the rule based on its content or the procedure by which it was adopted, including one in South Carolina District Court.  See Case No. 2:20-cv-01687-DCN.  It will be many months before a clear path forward may be seen regarding the new rule.  See SESWA's Advocacy Page for more information.
WOTUS Litigation
Kurt Spitzer, SESWA

Considering the haphazard approach of the federal government toward the WOTUS litigation and rulemaking efforts, SESWA's lawsuit challenging the 2015 WOTUS rule has been continued as an "insurance policy" if current efforts to repeal or replace the 2015 rule are unsuccessful. See how SESWA is looking out for your interests on the Advocacy Page.
EPA's Suspension of Enforcement Activities Ends August 31st
Kurt Spitzer, SESWA

EPA has announced that its temporary policy allowing for discretion in enforcement decisions for noncompliance due to the COVID-19 pandemic will terminate on August 31, 2020. The policy was originally adopted in March 2020 and sought to accommodate the difficulty that some regulated entities might have where compliance was not reasonably practicable due to the virus. The temporary enforcement policy terminates in its entirety at midnight on August 31, 2020 at which time the Agency will no longer exercise enforcement discretion for noncompliance based on the temporary policy.
Groundwater Discharges May Need CWA Permit
Kurt Spitzer, SESWA

The Supreme Court ruled on April 23, 2020 that WWT operations and other dischargers of pollution cannot avoid permitting requirements under the CWA based on the new "functional equivalent" test. In County of Maui v. Hawaii Wildlife Fund, SCOTUS found that the discharge of polluted water into the ground which reaches a nearby jurisdictional water still requires the discharger to comply with the CWA. But the Court rejected the broader standard embedded in the decision of the Ninth Circuit Court that permits are required when pollutants are "fairly traceable," and sent the case back to the Ninth Circuit for further proceedings consistent with its decision.

Under the "functional equivalent" test several factors can be considered, such as: Transit time, distance traveled, the nature of the material through which the pollutant travels, the extent to which the pollutant is diluted or changed, the amount of pollutant entering the navigable waters relative to the amount of the pollutant that leaves the point source, the manner by or area in which the pollutant enters the navigable waters, etc. Time and distance are the most important factors.

The Maui decision will have immediate impacts on similar cases now pending in other US Circuit Courts. See the NACWA article below for details.
Around the Southeast
Project Litter Gitter
Angela Moss, City of Birmingham, AL

Litter Gitters started as a 3-month pilot project between the City of Birmingham, Freshwater Land Trust, Osprey Initiative and the River Network in Boulder, Colorado. The initial cost to rent Litter Gitters is $25,000. The cost covers rental, installation, maintenance, and quarterly data collection for one year. After the first year, the cost to rent and maintain the Litter Gitter is $2,000/mo. Osprey Initiative handled all aspects of installing and maintaining the Litter Gitter. At regular intervals, within 48 hours or after rain events, Osprey emptied the device and provided detailed data on a monthly basis of litter collected. During the pilot phase: 148 pounds of trash/177 cubic feet of litter was removed of which 60 pounds/74 cubic feet was recyclables (i.e. - single use plastic, single use Styrofoam and aluminum).

During the interim, Freshwater Land Trust applied for the EPA's Trash Free Waters Grant with letters of support from partners in the Greater Birmingham area and an emphasis on Litter Quitters (an anti-litter outreach and public awareness campaign to stop littering).

In April 2020, Freshwater Land Trust was one of 17 recipients to receive the EPA Trash-Free Waters $500,000 grant for a period of three years. The grant covers the Litter Gitter devices, signage and outreach/education.
Asset Management for Green Infrastructure
Cory Rayburn, City of Atlanta, GA

Earlier this year, City of Atlanta staff took part in a Green Infrastructure Asset Management workshop hosted by the University of New Mexico's Southwest Environmental Finance Center (SWEFC). Stakeholders from around the country met and shared their experience in an effort to help integrate traditional asset management strategies (for gray infrastructure) into the way we manage and maintain natural and engineered green infrastructure (GI) assets. The goal of asset management is to establish a strategic framework for providing excellent service at the lowest cost. By quantifying the current state of your assets and establishing levels of service, criticality, life cycle costing and long-term funding, utilities can plan for maintenance expenditures and the eventual replacement of infrastructure. This approach is hard enough for traditional stormwater assets, but with the increased number of GI being constructed in public spaces, a merging of the two strategies may be the solution. The SWEFC published a report summarizing these discussions while outlining challenges that will need to be addressed to make this strategy a success. A copy of the report can be found on the SESWA Community Forum
Virtual Training and Certifications
Chuck Jarman, Clemson Extension, SC

During these unusual times, providing training and certification programs has created unique challenges. It is important to remember the value of these educational and certification programs. As everyone is adapting to virtual environments there are unique requirements that need to be considered.  Virtual programs are being required to utilize various software platforms which may include specific computer hardware, and internet requirements. In addition, remote proctoring and attendance verification can add challenges. Today we need to be prepared to adapt to the requirements as virtual education, training and certification courses are not going away. A workshop addressing this topic in more detail will be on the agenda at the SESWA Annual Conference in October.
Easing Back Into Public Engagement
John Butler, Gwinnett County, GA

Putting aside the decisions over requiring masks or opening schools, we still need to educate the public about stormwater. The May ForeCast newsletter discussed going virtual and producing videos to keep the public engaged during the pandemic. Now, it seems there is a push, and even support for holding events again. The question is how to do this safely? 

Georgia Adopt-a-Stream (GA AAS) has added specific COVID-19 Guidelines to their website to help volunteers monitor safety. GA AAS has also given each Community Coordinator a set of guidelines for holding certification classes to keep those volunteers up-to-date and active. These guidelines include:
  • utilizing outdoor classrooms or open spaces for trainings, or
  • combining a virtual classroom portion and a hands-on field portion;
  • limiting group size to five individuals;
  • providing more opportunities for questions; 
  • having enough equipment for each participant.
In addition to these guidelines, wearing masks, maintaining social distance, and sanitizing everything is encouraged. These guidelines can be applied to many different public education or involvement activities to get your programs up and running in the community again.
NACWA Corner
Provided by the National Association of Clean Water Agencies 
Emily Remmel, Director of Regulatory Affairs

Practical Considerations Emerge After Highest Court's Maui Decision Sinks In
Three months after the U.S. Supreme Court issued its opinion in County of Maui v. Hawaii Wildlife Fund -one of the most significant Clean Water Act (CWA) decisions in decades - many questions are emerging with respect to how permitting agencies and lower courts will apply the Court's new "functional equivalent" test to various types of discharges. 

In its 6-3 opinion, the Court created a new test to determine when discharges originating from a "point source" - such as a pipe or underground injection well - but making their way only indirectly into surface waters regulated by the CWA (the so-called "waters of the United States," or WOTUS) are subject to National Pollutant Discharge Elimination System (NPDES) permitting requirements. This test calls for an examination of whether these indirect discharges are the "functional equivalent" of direct discharges from the point source into a WOTUS, looking at factors such as the time and distance the discharges travel before reaching the WOTUS and the extent to which pollutants are diluted or chemically altered in transit. As the Court noted, whether pollutants from a point source that reach a WOTUS indirectly, such as through groundwater or other media, are subject to NPDES permitting requirements "depends upon how similar to (or different from) the particular discharge is to a direct discharge."

There are many unanswered questions about what this new "functional equivalent" test means, and NACWA has had concerns with how this new standard could impact discharges from clean water utilities and stormwater agencies -- particularly with respect to green infrastructure and water reuse/recycling for aquifer recharge initiatives. NACWA maintains that any discharges reaching surface waters from these types of water management and recycling activities are not the "functional equivalent" of direct point source discharges and should not require NPDES permits under the Court's new standard.

While ongoing and future litigation may result in further clarification with respect to what the "functional equivalent" test covers under specific fact patterns, the Supreme Court expressly noted that EPA can also "provide administrative guidance (within statutory boundaries)," such as through a guidance or rulemaking effort. EPA, however, has made no decisions yet on how it will proceed. 

If you have questions, please contact Emily Remmel, Director of Regulatory Affairs, NACWA.
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