January 2022, Volume 17, Issue 1

SESWA Forecast Newsletter

TABLE OF CONTENTS
President's Corner
SESWA Seminar - Registration Open!
Did You Miss SESWA's January Webinar?
Why Should My Community Consider a SWU? - A SW Utility Factsheet

WOTUS Litigation and Rulemaking

Construction General Permit Finalized

Sustainability and Stormwater

Leveraging Disaster Recovery Grant Funds for SW Infrastructure Projects
Chattanooga Installs Automated High Water Warning System
Assessing Needs for Stormwater Systems
Region 4 Urban Best Management Practices Literature Review

Florida's 2022 Legislative Session Underway

Upcoming Phase 2 Stakeholder Permit "Reading Sessions"
NACWA Corner

 

President's Corner

    Communications   
Sponsors
Cranston
Cultec
NPDEA Training Institute

Happy New Year to the SESWA membership and fingers crossed for a safe and prosperous 2022. This past year, members of SESWA’s leadership took part in a virtual planning session to develop a Strategic Plan for the next five years. Much of the plan centers around ensuring that SESWA provides continued value to our membership while growing and adapting to our changing times.

Over the past two years, SESWA management staff have mastered the virtual format when it comes to delivering insightful and compelling content related to our industry, whether it be through webinars or full-blown conferences. The feedback we’ve received only confirms that as an association, we’ve been able to quickly adapt and maintain a relevant presence in the industry. We’re looking closely at integrating this value-added experience into our networking and educational opportunities for all members, including the next generation of stormwater professionals.

We’ve also witnessed or been impacted by continued rainfall patterns that appear to be the new normal. On average, the metro-Atlanta area receives 50” of rainfall a year. In the past 12 years, we’ve seen close to 70” of rainfall five different times with drought conditions scattered in between. Tropical storms and hurricanes have torn through farmland and cities alike throughout the Southeast. Churchill’s “never let a good crisis go to waste” quote may very well be applicable to our current state of affairs. Our industry must be prepared to offer up real solutions, whether that be setting up a new stormwater utility or securing funds through federal grants for resilience planning or capital improvements. SESWA is here to provide a platform for sharing ideas and developing realistic and protective solutions in each of our hometowns. Please join us for the Spring Seminar in Atlanta on April 22nd where we will dive into the importance of Operations and Maintenance of our stormwater assets. Stay safe, y’all!

Cory Rayburn
SESWA President
Jacobs


SESWA Seminar - Registration Open!

Join us as we explore Operations and Maintenance - Best Practices for your MS4 PermitSESWA’s 17th Annual Regional Stormwater Seminar will be held in Atlanta, GA on April 22, 2022. The Seminar will provide a deep dive into how Operations and Maintenance (O&M) best practices can improve water quality and resiliency, and lower compliance costs for your MS4 permit. The Seminar will review the role of O&M in meeting MS4 permit requirements, in Asset Management, in best practices after construction, in Green Infrastructure practices, and in the use of GIS and databases. Register now to secure your seat. Registration will be limited.


Did You Miss SESWA's January Webinar?

It’s not too late to view the popular Green Stormwater Infrastructure: What's Green Got to Do With It? webinar. Municipalities throughout the Southeast are implementing green stormwater infrastructure design practices, but many developers are not “buying in” to these practices. The perception is that green infrastructure products are too expensive or too expensive to maintain? Are they really? On January 20th attendees learned ways to talk about green infrastructure in “developer” language to encourage developers to use green infrastructure design on their projects. SESWA members can view the webinar recording online at no cost, thanks to the generous support of SESWA’s Communications Sponsors!


Why Should My Community Consider a Stormwater Utility? – A Stormwater Utility Factsheet

SESWA members now have access to a one-page stormwater utility factsheet. This tool is intended to be used as a resource to share with local officials to illustrate the importance and benefit of stormwater utilities. Visit the SESWA website to download your free copy today!


WOTUS Litigation and Rulemaking
Kurt Spitzer, SESWA

Since courts in New Mexico and Arizona vacated (invalidated) the 2020 Navigable Waters Protection (WOTUS) Rule, the Biden Administration has interpreted those decisions as having a nationwide effect and EPA and the Army Corps of Engineers are no longer implementing policy based on the 2020 rule but are reverting to policy as existed in the late 1980s. On December 7, 2021, the Agencies proposed a new set of WOTUS definitions. Comments on the proposed rule must be submitted on or before February 7, 2022 to Regulations.gov. SESWA will be submitting comments on behalf of our members, visit the Advocacy page to learn more about WOTUS. Meanwhile, the U.S. Supreme Court has agreed to hear an appeal of a decision of the Ninth Circuit concerning whether the correct test was used to determine whether wetlands are subject to federal jurisdiction under the CWA. The issue of whether jurisdiction over wetlands is broadly or narrowly interpreted was one of the primary reasons for the initiatives to revise WOTUS definitions since 2014.


Construction General Permit Finalized
Kurt Spitzer, SESWA

EPA has finalized the latest version of its general permit for stormwater discharges at construction sites or “CGP.” The final permit maintains a requirement for turbidity benchmark monitoring of certain discharges and becomes effective on February 17, 2022. The CGP only applies in the three states in which the EPA is the NPDES permitting authority – none are in Region 4, although it does apply to Indian Country lands within some southeastern states. However, many states with delegated permitting programs use the EPA permit as a guide. EPA is hosting a webinar on February 24, 2022 to review the final permit and answer questions.


Sustainability and Stormwater
John Butler, Gwinnett County, GA

As stormwater professionals, much of what we do naturally revolves around sustainability. Protecting stream banks, improving water quality, building aquatic habitat, and infiltrating runoff all help to sustain a high quality of life for our communities and our environment. In Gwinnett County, GA, a new Sustainability Team has been formed to help move the County forward to a more sustainable future. To help measure progress with sustainable initiatives, the Atlanta Regional Commission administers a Green Communities Certification for local governments. The certification manual for this program covers everything from green buildings to transportation. Many items in the program overlap with stormwater principles, but two in particular stand out. Points are awarded for green infrastructure installed at government owned facilities and for education programs that address protection of watersheds. Gwinnett County is currently certified at the Platinum level, the highest level that can be achieved, and is due for recertification in 2022. Green Infrastructure and stormwater education will be a big part of recertifying this year.


Leveraging Disaster Recovery Grant Funds for Stormwater Infrastructure Projects
Synithia Williams, Richland County, SC

After the unprecedented flooding in October 2015 followed by Hurricane Irma in 2016, Richland County’s Stormwater Management Division leveraged Hazard Mitigation Grant Program and Community Development Block Grant-Disaster Recovery funds toward several infrastructure projects. The Division's 25 Year Stormwater Strategic Plan identified high priority projects, which the County submitted for grant funding. Having a strategic plan that identified infrastructure needs resulted in a quick submittal of projects for consideration. Many of the disaster recovery grants require projects that are shovel ready. Because these projects identified were part of the County's Capital Improvement Program, project studies and designs were complete and funding for construction was the next step. Having a cost-benefit analysis as part of every project design can also make an infrastructure project more desirable. A cost-benefit analysis demonstrates the need for the project, and that the project is the best option to mitigate the needs in the area. By identifying infrastructure needs, proceeding with the design of the most crucial projects and proving the selected project is the best option; your organization can be in a better position to leverage disaster recovery grant funds for infrastructure projects.


Chattanooga Installs Automated High Water Warning System
Marie Price, City of Chattanooga, TN

The greatest cause of weather-related deaths in the U.S. is flash flooding; about half of those drownings are vehicle related. In many cases Public Works staff and emergency responders can be found manually placing road closure barricades and signage at inundated crossings, often after business hours and after the roadway is flooded. Through Safeware, the City of Chattanooga, TN used U.S. Communities Contract #4400008468 to procure a High Sierra automated high water warning system with flashers and gates, along with access to Contrail OneRain. The system provides real-time data collection, analysis and management, and advanced alarm and notification. Automation provides benefits such as protection of motorized citizens and first responders. This system gives the City of Chattanooga the ability to gather water level data during events, which aids in mitigation planning, attaining grants, updating impact statements, better flood forecasting and better utilization of city resources. The first installation went live in early 2021. The next installation is forthcoming and involves moving the base station to a more central location as the first installation was proof of concept. Chattanooga plans to install several more at flood prone streets around the city. For more information, contact Maria Price, PE, Engineering Manager, Public Works Department, City of Chattanooga.


Assessing Needs for Stormwater Systems
Kurt Spitzer, SESWA

The deadline for compliance with the first cycle of reporting under the provisions of Florida House Bill 53 (2021 Session) is fast approaching. The legislation requires local governments with wastewater or stormwater management systems to create a 20-year needs analysis, including a description of the system, the number of future residents served, revenues and expenditures, maintenance costs, etc. The compiled information will be filed with the Legislature’s Office of Economic and Demographic Research. The first analysis is due on June 20, 2022 and every five years thereafter. EDR has now released the survey instrument that will be used to gather financial information.


Region 4 Urban Best Management Practices Literature Review
Dave Mason, CDM Smith

In support of the Tennessee Nutrient Task Force BMP working group, EPA HQ and Region 4 provided contract work to compile a comprehensive inventory of scientific literature for urban stormwater BMPs from the Southeast Region of the United States. This literature review includes summaries of loading and removal efficiencies for nutrients, sediment, and other common pollutants, and a summary of the crediting practices and protocols used in the study area. The time span covered in this literature review follows the EPA work on Urban BMPs published in the early 2000s.


Florida’s 2022 Legislative Session Underway
Kurt Spitzer, SESWA

Florida’s 60-day Legislative Session began on January 11th. Continuing a trend that began a few years ago, local governments’ authority to initiate programs and policy independently remain under attack in a variety of ways:

  • Assessment of Costs against Local Governments (SB 280) - Expands the types of conditions under which civil actions may be filed and awarded against local governments.
  • Business Damages (SB 620) - Creates a new basis for lawsuits against a city or county by businesses if an ordinance or charter provision causes a 15% drop in the business’s profits.
  • Agricultural Nutrient Application Rates (SB 1000) - Authorizes the use of nutrient rate tailoring when recommended by certified professionals and exempts such agricultural properties from Basin Management Action Plans.
  • Development of Agricultural Land (SB 1210) - Provides that the application of pesticides as part of agricultural operations is presumed to be a lawful application under certain circumstances and is exempt from regulation by state environmental agency.

Upcoming Phase 2 Stakeholder Permit "Reading Sessions"
James Moore, Georgia Association of Water Professionals

Benjamin Franklin famously said, “By failing to prepare, you are preparing to fail.” Georgia’s Phase 2 MS4 Permit will be coming up for reissuance in 2022. In preparation of this, the Georgia Association of Water Professionals (GAWP) is preparing to host a stakeholder draft permit “reading session” once the stakeholder draft permit has been released. Representatives of all interested Phase 2 permittees will have the opportunity to gather at GAWP’s facility in Marietta or join remotely.

A guided read-through of each section of the draft permit will be carried out, with attendees allowed to discuss each section with the group. The goal is to allow permittees the opportunity to thoroughly understand the contents and potential impacts of the proposed permit while benefiting from the knowledge and experience of their peers. These discussions can then guide each permittees’ efforts in preparing their comments to the Georgia Environmental Protection Division, if they so choose. Even those permittees choosing not to comment may benefit from being part of the discussion. The date of the reading session has not been determined and will be based on the release date of the stakeholder draft Phase 2 permit. Contact James Moore for additional information.


 NACWA Corner

Provided by the National Association of Clean Water Agencies
Emily Remmel, Director of Regulatory Affairs

WOTUS Comment Deadline Nears, Unclear if Proposal Will Be the Last

In early December 2021, U.S. EPA and the U.S. Army Corps of Engineers (USACE) published a proposed rulemaking for a “Revised Definition of Waters of the United States.” Rather than repealing and then replacing the previous administration’s Navigable Waters Protection Rule, the Biden administration has instead directly proposed a revised WOTUS definition that, if finalized, would replace the current regulations.

Even so, EPA and USACE have signaled that this rulemaking may not be the last definition this Administration proposes. For instance, EPA and USACE state they “will also consider changes through a second rulemaking which they anticipate proposing in the future, which would build upon the foundation of this proposed rule.”

The proposed definition reflects the original 1986 WOTUS regulations, with modifications intended to address subsequent U.S. Supreme Court precedent in the cases of Riverside Bayview, SWANCC, and Rapanos.

Specifically, the proposed rule would include within the definition of WOTUS: traditional navigable waters, interstate waters and the territorial seas (and their adjacent wetlands), as well as other waters and tributaries (and their adjacent wetlands) that are relatively permanent or that either alone or in combination with similarly situated waters significantly affect the chemical, physical, or biological integrity of the foundational waters. The definition would also include most impoundments.

Notably, while the proposal would keep the longstanding exclusions for waste treatment systems and prior converted croplands codified in EPA and USACE’s regulations, it would not retain the existing exclusions for stormwater control features, water recycling structures, and groundwater. Those exclusions were first codified in the 2015 Clean Water Rule and were retained in the 2020 Navigable Waters Protection Rule.

The proposed reasoning for omitting the additional exclusions is that they were not included in the “familiar and longstanding framework” in place prior to the 2015 rule, and therefore are not “consistent with the goal of returning” to that framework. However, the proposal does note that the Agencies “expect to implement the proposed rule consistent with longstanding agency practices,” in which they have “generally not asserted jurisdiction” over features such as stormwater control features, water recycling structures, and groundwater.

NACWA has long advocated for key exclusions in the WOTUS definition that support the work done by the clean water community in advancing the purposes of the CWA. The clean water community was successful in securing the codification of such exclusions in previous WOTUS revisions and are working towards obtaining the same clear and defensible outcome for our organizations in the current definitional rewrite. Direct input from utilities and stormwater agencies potentially impacted by this proposed rewrite will be critical.

NACWA has requested an additional 30-days to gather comments and compile a meaningful and helpful comment letter that reflects the concerns with this approach as well as other concerns like the omission of certain jurisdictional exclusions. In NACWA’s viewpoint, this is inadequate given the complexities inherent to defining a WOTUS and novel approaches the Agencies are pursuing including the relatively permanent standard or the significant nexus standard from U.S. Supreme Court precedent.

If SESWA members have questions, please contact Emily Remmel NACWA’s Director of Regulatory Affairs.


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