This newsletter is available exclusively to SESWA Members
March 2019
Volume 14, Issue 2

President's Corner
Laurie Hawks
Spring is around the corner and, if it ever stops raining, I'm sure we will all enjoy the good weather and spring flowers. In that sense of renewal, I am in awe at the growth and improvement efforts currently under way with SESWA:
  • We are pleased to announce that we have exceeded our membership goal for the year! We are growing and now have 174 member organizations represented by over 1,100 individuals; a record number of SESWA members. Thank you Membership Committee!
     
  • The proposed WOTUS replacement rule was published in the Federal Register. SESWA is reviewing the rule and compiling information to provide comments from a regional perspective to EPA on behalf of the organization.
     
  • The Conference & Education Committee has been planning the upcoming Spring Seminar with a focus on Resiliency. This training event is a great opportunity for all communities in the Southeast, from streamline to shoreline, to learn how to prepare for the future.
     
  • The SESWA Stormwater Utility Report is under way and will provide valuable information about rates, services, billing, etc. across the Southeast.

  • Behind the scenes, a major website and membership software system update is now complete. Visit the new and improved SESWA website today! While there check out the refreshed Community Forum and subscribe to the topics of interest to you.
We appreciate all the hard work of SESWA members, volunteers, and management staff to help SESWA continue to grow and blossom.

Happy Spring! 

Laurie Hawks, Brown & Caldwell
SESWA President
Association News 
A New Look!
SESWA is proud to announce the launch of a new and greatly improved website! The site offers a new look, additional features and a wealth of easily accessible information for SESWA members.

The website includes up-to-date information and resources including:
  • Online membership directory;
  • Job Board for stormwater professionals that is FREE to members;
  • EPA Region 4 utility rate sheet;
  • Stormwater Utility Survey Reports;
  • Educational content - Past presentations and future event information for conferences, seminars and webinars;
  • Customizable member profiles with access to your continuing education hours;
  • Online Community Forum to post questions and share information;
  • Access to all future SESWA communications including continuing education certificates and receipts;
    ...and much more!
We are proud to show off the newly enhanced website and hope you like the new format! Visit us at www.SESWA.org and be sure to login to see all the features under the "Members Only" tab!
2019 Stormwater Utility Report - Arrives in April!
SESWA conducts a Survey of Stormwater Utilities practices and trends throughout the Southeast and publishes a Final Report on the results every two years. Data collection for the 2019 Survey is complete and the new report is under construction. The Report provides easy access to questions concerning rates, structure, billing methods, and many other policies and practices in stormwater utilities throughout the Southeast. Information contained in the Report is widely used by local stormwater managers and state policy makers throughout Region 4. One USB Report will be provided to the primary contact within each SESWA member organization and to those non-members who returned a survey. Additional copies will be  available online.
In This Issue
Communications Sponsors






SESWA Board of Directors

Executive Committee

President:
Laurie Hawks
Brown and Caldwell

Vice President:
Scott Hofer
Jefferson County DOH, AL

Secretary-Treasurer:
Cory Rayburn
City of Atlanta, GA

Immediate Past President:
Hillary C. Repik
Town of Mt. Pleasant, SC

Board Representative:
Milton Leggett
City of Stuart, FL

To access a full listing of the SESWA Board of Directors, please click here.
14th Annual Regional Stormwater Conference - Save the Date!
MARK YOUR CALENDARS for October 9-11, 2019 and make plans to attend the best-of-the-best in regional stormwater education in Chattanooga, Tennessee! The 14th Annual Regional Stormwater Conference will focus on stormwater innovations in the Southeast. This conference features an agenda developed by your peers, the best networking opportunities with other stormwater professionals, great keynote and breakout speakers, and the latest technologies displayed in an outstanding Exhibit Hall. Mark your calendar - registration opens in May.
SESWA Spotlight Webinar - Public Education and Outreach
Register today for the May 15th SESWA State Spotlight Webinar. The webinar hosted by SESWA and Tennessee will offer continuing education and focus on public education and outreach programs. Source control is the most cost effective way to improve the quality of our surface waters. Public education and outreach programs have proven to be helpful in improving water quality by changing public behavior so that fewer pollutants enter surface waters. The webinar will review the primary approaches to public education, practices and tools. Case studies of successful public education efforts such as Project WET, the national water education program, and the Nashville Urban Runoff 5K will be included.
Spring Seminar - Are You Registered?
It's not too late to register for the Resiliency for Stormwater Professionals - Streamline to Shoreline Seminar to be held in Atlanta on Friday, April 26th. Stormwater programs across the Southeast are facing the increasing challenge of managing more resilient systems to deliver the anticipated level of service to their community. Disruptions to normal operating practices play a significant role in occupying resources, borrowing available funding, and delaying proposed improvements. Whether it's flooding, droughts, asset failures, or environmental impacts, this seminar will provide experiences and expertise from around the Southeast in incorporating resiliency into operations and practices for your program. Professional Engineers that attend the seminar and complete the required form onsite are eligible for up to six (6) professional development hours. Hurry, this event sells out quickly!
Join the Southeastern Stormwater Community!
Visit the all new Community Forum under the "Members Only" tab on the website. Ask a question or post something happening in your area that might be helpful to others.

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.
SESWA Job Board - Post for Free!
SESWA members may post position vacancy announcements reaching thousands of qualified stormwater professionals throughout the Southeast at no cost for 30 days! Your listings are accessible by job seekers anywhere.  To post your vacancy, visit the Job Board on the SESWA website!
National and Regional News 
WOTUS - Comments Due on Proposed Replacement Rule
Kurt Spitzer, SESWA 
EPA and the Corps published a proposed WOTUS replacement rule in the Federal Register on February 14, 2019. Publication in the Register started a 60-day timeline during which interested parties may submit comments or recommendations regarding the proposed rule. The deadline for comments is April 15, 2019. 

As promised by the Trump Administration, the proposed rule is a very significant departure from the 2015 Rule and takes federal policy back to that which was in place in 1988. Of note to local governments: EPA is specifically seeking comments on whether stormwater control features and wastewater recycling structures that are proposed to be excluded from federal jurisdiction must be constructed wholly in an upland in order for the exclusion to apply. Also, the Agency requests comments on whether the proposed exclusion for stormwater control features should be expanded or clarified to include permitted MS4s.

Submitting Comments: When submitting comments on the proposed rule, be sure to reference Docket ID No. EPA-HQ-OW-2018-0149. If you have questions concerning the proposed rule or the comment process, contact Michael McDavit at 202-566-2428 or [email protected]. There are two preferred methods of submitting comments:
General information on WOTUS may be found on EPA's WOTUS Rulemaking page and on SESWA's Advocacy Page. You may also watch a recording of the February 14, 2019 Webcast held by EPA on the proposed regulations.
WOTUS - Litigation Update
Kurt Spitzer, SESWA
SESWA and its partner associations filed a Motion for Summary Judgement in the Federal District Court for the Northern District of Florida on March 15, 2019. The Motion asks the Court to invalidate the 2015 WOTUS Rule and was filed in an effort to proactively protect the interests of SESWA members and local stormwater programs in the event that a replacement rule is not adopted and finalized. While SESWA supports the repeal of the 2015 Rule, SESWA's comments to the EPA and the Corps since 2017 have consistently urged the Agencies to retain some of the provisions embedded in the 2015 Rule that recognize the connectivity of certain waters when the replacement rules are adopted.

Meanwhile, EPA has voluntarily withdrawn its appeal of federal district court rulings that struck down its rule delaying the implementation deadline of the 2015 Rule. The "delay rule" was intended to postpone the implementation of the 2015 WOTUS regulations in order to give EPA time to adopt its own set of regulations but were challenged in various federal courts. No explanation was given to the court as to EPA's action. However, doing so has the effect of solidifying (at least for now) a nationwide "patchwork" of WOTUS regulations that will persist until a replacement policy is finally adopted by EPA and upheld in court. Thus, the 2015 rule is in effect in 22 states, while the remaining 28 are subject to the combination of 1980s regulations and subsequent guidance that the newer standard was meant to replace. Within EPA Region 4, the 2015 regulations are effective only in the State of Tennessee.
SCOTUS to Review Case on CWA Liability for Groundwater 
Kurt Spitzer, SESWA
The US Supreme Court has granted a request from municipal interests to review recent circuit court decisions that impose CWA liability for pollution that flows through groundwater into surface waters. The review will take place ahead of EPA's planned policy action on that subject. On February 19, 2019 the Court granted the request to review Hawai'i Wildlife Fund, et al., v. County of Maui, where the County was found liable for pollutants resulting from a wastewater injection well that disposed of treated effluent into groundwater which eventually flowed into the Pacific Ocean.
New Report on Industrial Stormwater Discharges
Kurt Spitzer, SESWA
As part of a Settlement Agreement between EPA and environmental groups on challenges to the Agency's 2015 Multi-Sector General Permit (MSGP), EPA funded a study conducted by the National Academies of Sciences on potential permit improvements, focused primarily on monitoring requirements, for consideration in the next issuance of the MSGP. "Improving the EPA Multi-Sector General Permit for Industrial Stormwater Discharges" examined three topics:
  1. Suggesting improvements to the current MSGP benchmark monitoring requirements
  2. Identifying opportunities for improving industrial stormwater monitoring
  3. Evaluating the feasibility of numeric retention standards for industrial stormwater.
You may download the full report or an abbreviated summary. EPA is currently reviewing the recommendations.
Southeast Legislatures in Session
Kurt Spitzer, SESWA 
Almost all of the State Legislatures in the Southeast are in session at the present time. Most of their legislative websites have great search functions that allow you to query and track legislation containing keywords like "water pollution" or "stormwater." Since legislative policy seems to move from one state to the next, seeing what's being considered in other states can be helpful! If you're interested, visit the legislative websites listed below:  
 
Regulatory/Policy/Permits
Evaluation of ESC Program Yields Interesting Insights
Patrick Blandford, HDR 
North Carolina's Joint Legislative Program Evaluation Oversight Committee directed the Program Evaluation Division (PED) to examine the effectiveness and efficiency of the Erosion and Sediment Control program that the State has been administering for over 40 years. Several high level findings were made including satisfactory fulfillment of NPDES regulations by the State program, shortfall of self-supporting funding by program fees, and ineffective inspections leading to a lack of improvement in erosion control. The report also provides recommendations for North Carolina Division of Environmental Quality, General Assembly, and Sediment Control Commission. All information regarding this effort can be reviewed on this site. 
Proposed State Senate Bill to Limit Stormwater Utility Fees
Brian Bates, Woolpert
There has been a bill introduced in the South Carolina Senate that would limit the amount that a stormwater utility could charge a parcel to 15% of the " ad valorem taxes levied." The way the Bill is written, it would provide an exemption from stormwater fees being applied to any tax exempt real property. If there is no property tax levied, then 15% of zero is zero. Therefore, schools, churches, State and Federal properties, etc. would be exempt from stormwater utility fees. Another ramification is a tax exemption or drastic reduction of taxes for new economic development projects. If a local government has chosen to extend a tax break to a large shipping or manufacturing company, the stormwater utility fees will be limited to 15% of the " previous property tax year."
Statewide Bacteria TMDL Approved
Demetria Kimball Mehlhorn, City of Lexington, KY 
Kentucky Division of Water received approval from the EPA for a Statewide Total Maximum Daily Loads (TMDL) for Bacteria-Impaired Surface Waters. 

While past TMDL reports were written at the watershed scale, the recently approved Kentucky Statewide TMDL for Bacteria-Impaired Waters addresses all remaining bacteria-impaired waters for the state in one report. This new method will save thousands of work hours and allow the Division to more quickly address bacteria impairments in more than 400 waterways.

Developing TMDLs has been a substantial undertaking for Division personnel. The process involves spending two to three years in a watershed collecting additional samples, measurements, and data from impaired waters, then writing a detailed report of the findings. By continuing to use this process, it would have taken decades to complete the required TMDLs. The newly approved method will enable the Division to meet its current obligations for bacteria TMDLs in just a few years. This reduction in work years will allow the Division to otherwise use its resources to address a range of water quality issues in Kentucky.

Ultimately, the statewide bacteria TMDL will support local efforts to improve water quality by providing insight into the scope of the problem, raising public awareness of bacteria impairments, and spurring more citizens to play an active role in improving water quality. 
Updating the EPA Water Quality Trading Policy
Mo Minkara, City of Chattanooga, TN
If you could do something better for cheaper, would you? Most of us would say YES! That is the premise behind Water Quality Trading (WQT). When permitted facilities are faced with higher pollution control costs, they can purchase pollution reduction credits at a lower cost from approved sellers. Thus, the same water quality goals may be met with substantial cost savings and properties that can have a bigger impact on water quality. WQT has been used for decades, but has recently received more attention. On February 6th, the EPA released a memorandum updating their policy on WQT. The intent was to reiterate their longstanding support for such water quality mechanisms (see EPA 2003 WQT Policy) and to promote increased adoption of such programs. Six market-based principles were presented in the memo and are summarized below.
  1. WQT is best implemented on a watershed scale
  2. Programs should be adaptive and not rigid
  3. Banking of credits is acceptable to decrease risk
  4. WQT should be flexible and simple
  5. One project can generate credits for multiple markets
  6. Innovative financing and assistance is available
You can find more information and training materials (including videos and fact sheets on WQT) on EPA's website. In addition, EPA Water Infrastructure and Resiliency Finance Center provides advising opportunities and access to information to share community models of financial and partnership success.
Statewide Nutrient Strategy Task Force Forms
Dave Mason, CDM Smith
In February, Tennessee Department of Environment and Conservation invited a group of stakeholders to develop a state-wide task force to lead the development and implementation of a statewide nutrient strategy aimed at reducing Tennessee's loading of nitrogen and phosphorous to the Mississippi River, and ultimately the Gulf of Mexico. The State's Nutrient Reduction Framework was issued in 2015 and includes recommendations for reductions based on the results of USGS Sparrow modeling. The State's mission is to develop low-cost solutions without new regulations.
State Legislation to Support Dam Repair
Stephen Sands, Hazen and Sawyer and Synithia Williams, Richland County, SC
Communities throughout the Southeast have recently experienced severe rainfall and associated flood events that are historically uncharacteristic. These extreme storms resulted in numerous failures of stormwater infrastructure such as culverts, bridges, and dams. Most of these infrastructure elements are maintained by public entities, however, dams are typically owned and operated by private property owners. Repairs of the failed dams have not occurred effectively because the private property owners do not have adequate resources to finance dam repairs. While dams are often seen as providing recreational and aesthetic benefits for the adjacent community, the dams may also provide public benefits such as flood control or water quality treatment to the entire community.

State legislators recognize the challenges associated with property owners who operate the dams and have introduced legislation that supports methods for communities to pool resources more effectively. The South Carolina State Legislature introduced HB 4994 (Session 121 - 2015-2016) which authorizes counties and municipalities to create special tax districts to address public and private infrastructure damaged by the flooding event in October 2015. The North Carolina State Legislature introduced HB 281/SB 190 which expands the authority of counties to levy special assessments for dam and lake upkeep. The bills have not been ratified as law.
NACWA Corner 
Provided by the National Association of Clean Water Agencies
Emily Remmel, Director of Regulatory Affairs 
 
A Duo of Favorable Stormwater Cases and Another to Keep a Close Eye On 
NACWA keeps track of a variety of stormwater challenges surfacing around the country which could have persuasive power in municipal stormwater litigation elsewhere. There are two recent cases to highlight with favorable outcomes and an interesting case unfolding in Washington state to keep an eye on.
 
Fees vs. Tax: Local governments across the country are battling it out over how best to leverage dollars to manage stormwater. In a recent case, the Fourth Circuit held that the City of Roanoke's stormwater management charge is a fee, and not a tax. In Norfolk Southern Railway Co v. City of Roanoke, the Court applied a three part framework that looks at 1) what entity is imposing the charge; 2) what population is subject to the charge; and 3) what purposes are served by the use of the monies obtained by the charge to decide whether the municipal stormwater management charge is a fee or a tax.  
 
The Court reasoned that the "charge is part of a regulatory scheme, rooted in the Clean Water Act (CWA), whose purpose is to remedy the environmental harms associated with stormwater and to hold stormwater discharges responsible for footing the bill." As a result, the Court concluded the charge is a fee. 
 
CWA's anti-backsliding provision: Another favorable stormwater case out of California's Second District Court of Appeals found that the CWA's anti-backsliding provisions do not apply to municipal stormwater discharges. In Natural Resources Defense Council v. State Water Resources Board, the Court was tasked with deciding whether Los Angeles County's 2012 MS4 General Permit violates the CWA's anti-backsliding provision.  
 
The question pivoted on whether the Watershed Management Plan (WMP) and the Enhanced Watershed Management Program (EWMP) - components of the 2012 permit - allow permittees to delay compliance with water quality standards and are therefore less stringent than the previous permit issued in 2001. The Court specifically held that anti-backsliding provisions do not apply to MS4 permits. After clearing up some procedural issues, the Court remanded to the trial court to conduct an independent judicial review of the State Water Resources Board's findings. 
 
Non-permit holder liability: The case to keep an eye on is an industrial stormwater case, Puget Soundkeeper Alliance v. Total Terminals Int'l, decided March 4, 2019 in the U.S. District Court for the Western District of Washington. The issue before the Court was whether the Port of Seattle - owner of a marine cargo terminal and a non-CWA permittee - can be held liable for ongoing stormwater discharges that exceed the tenant's industrial stormwater permit terms and conditions. The Court held that, in addition to permit holders, "other persons can also be liable for permit violations if plaintiff establishes that, through their acts or omissions, the non-permittee violated effluent standards or limitations specified in the permit." Reasoning that the language of the CWA and the majority of caselaw and policy considerations favor this outcome for those "who control the polluting activities".

 

Contact Emily Remmel , NACWA's Director of Regulatory Affairs, for more information or with any questions . 
Don't see news from your state?
Please contact us with your news or share your comments on our newsletter by emailing us at [email protected].

Southeast Stormwater Association
(866) FOR-SESWA (367-7379)
 

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