A meeting of experts from across the country was held on June 21-22 to discuss current and future issues facing the stormwater field. This event was held at the WEF office in Alexandria, Virginia and included input from EPA on the stormwater rulemaking and the recently introduced Green Infrastructure Strategy. Topics covered on the rulemaking included alternatives for the proposed national performance standard, alternatives for MS4 expansions and the development of a separate program for transportation systems.  Participants agreed that a well-defined vision is needed on stormwater as we move forward in the continued development of the national stormwater program. The group will be submitting comments to EPA on the proposed rule based upon input and discussions presented at the meeting.

The House Transportation and Infrastructure Committee held a hearing on June 24 focusing on numeric nutrients standards.  Witnesses in the hearing included  EPA, Environmental Council of States (ECOS), Association of State and Interstate Water Pollution Control Administrators (ASIWPCA), New England Interstate Water Pollution Control Commission (NEIWPCC), Ohio EPA (OEPA), Florida Department of Agriculture and Consumer Services (FDACS), and National Association of Clean Water Agencies (NACWA). The hearing, titled, “Running Roughshod Over States and Stakeholder: EPA’s Nutrients Policies,” examined the use of numeric standards for nutrients and the associated water quality improvements for receiving waters as well as economic burden placed upon on states and localities due to these standards.  Panelists urged EPA not to take a one-size-fits-all approach to reducing nutrient pollution in U.S. waters, because water conditions vary and current science does not support numeric nutrient limits in every instance, is not scientifically defensible and undermines innovative state approaches such as weight of evidence to reducing nutrient pollution. Briefing Memo Testimonies

The U.S. Environmental Protection Agency (EPA) and the U.S.
Army Corps of Engineers have extended the public comment period by 30
days for the draft guidance on Identifying Waters Protected by the Clean
Water Act. In response to requests from state and local officials, as
well as other stakeholders, EPA and the Corps will take additional
comment until July 31, 2011 on this important draft guidance that aims
to protect U.S. waters. These waters are critical for the health of the
American people, the economy and ecosystems in communities across the
country.

This change in the public comment period will not impact the schedule
for finalizing the guidance or alter the intent to proceed with a
rulemaking.

Public input received will be carefully considered as the agencies make
final decisions regarding the guidance.  These comments will also be
very helpful as the agencies prepare a Notice of Proposed Rulemaking.

The original 60-day public comment period was originally set to expire
on July 1, 2011. The agencies will be publishing a notice of this 30-day
extension in the Federal Register.

More information:
http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm

Tish Berge, RMC Water and Environment
Chair of CWEA’s Governmental Affairs Committee

Using Supplemental Environmental Projects to Address Fines

Many cities and agencies within CWEA manage permits issued in accordance with the National Pollutant Discharge Elimination System (NPDES) permit program.  NPDES permits often regulate discharges associated with stormwater, ocean outfalls, or recycled water.  Each NPDES permit includes a section on requirements associated with monitoring and reporting, which potentially requires NPDES permit holders to monitor and report hundreds of compounds and parameters.  As a result, compliance is often a challenge for NPDES permit holders, and violations occasionally happen. NPDES violations could result from a variety of activities ranging from exceedances of a discharge limits, spills, or failure to report constituents.

Upon receiving a Notice of Violation (NOV), the NPDES permit holder is subject to penalties levied by the Regional Water Quality Control Board (RWQCB).  The purpose of fines can be to either initiate corrective action to stop violations, or provide incentives for continuing compliance.  The amount of a fine can be up to $1,000,000 per day for cities and agencies (CA Health & Safety Code §42402) depending upon several factors:

•          Extent of harm caused by violation

•          Nature and persistence of the violation

•          Length of time over which the violation occurs

•          Frequency of past violations

•          Record of maintenance

•          Unproven or innovative nature of control equipment

•          Action taken to mitigate the violation

•          Financial burden to the operator

Once a NPDES permit holder has received an NOV and associated fine, depending upon the amount of the fine, they have the option to either pay the fine or pay the administrative portion of the fine and use the remaining amount to fund a Supplemental Environmental Project (SEP).  The reason the entire value of the fine cannot be applied to the SEP is that the RWQCB incurs administrative costs associated with issuing a NOV, and these costs must be recouped through the fine.  As a result, the amount of the NPDES-related fine will dictate if one has the opportunity to apply for a SEP.

The reasons for pursuing a SEP can be varied, but the main benefit is for communication with the public.  By applying some of the fine to a project that benefits the local environment, a NPDES permit holder provides their elected officials and leaders with a positive story to help counteract the negativism associated with a violation.

There are three requirements for a SEP (www.epa.gov), including:

  1. There must be a relationship between the underlying violation and the human health or environmental benefits that will result from the SEP.
  2. A SEP must improve, protect, or reduce risks to public health or the environment, although in some cases a SEP may, as a secondary matter, also provide the violator with certain benefits.
  3. The SEP must be undertaken in settlement of an enforcement action as a project that the violator is not otherwise legally required to perform.

Based on these requirements, there are several types of SEPs, including:

•          Public Health

•          Pollution Prevention or Reduction

•          Environmental Restoration and Protection

•          Emergency Planning and Preparedness

•          Assessments and Audits

•          Environmental Compliance Promotion

NPDES permit holders that have received a fine and wish to explore the possibility of a SEP are encouraged to work closely with their local RWQCB contact to identify the potential fine amount.  Once the fine amount available to fund a SEP has been determined, NPDES permit holders should then reach out to local groups who may have projects in the works in need of funding.  Some organizations include the following (note that this is not an exhaustive list): Southern California Coastal Water Research Project (SCCWRP), Scripps Institute, Surfrider Foundation, National Fish and Wildlife Foundation, and watershed (lagoon, river, etc.) foundations.

For more detailed information, including application forms for San Diego RWQCB, visit the following websites: