July 2022, Volume 17, Issue 4

SESWA Forecast Newsletter


Advanced Drainage Systems
Best Management Products
NPDEA Training Institute

President's Corner

As the year flies by, SESWA continues to identify the needs of our members, and right now, many of us have our eyes on potential funding through the Bipartisan Infrastructure Law (BIL). SESWA is busy researching the ins and outs of BIL to identify what our members need to do to qualify for the nearly $50 billion allocated for water-related projects. Many states will be using the existing SRF (State Revolving Fund) program to distribute the BIL funds, and federal allocations to individual states will be partially based on the outcome of the Clean Watersheds Needs Survey. If you as a stormwater professional have never dealt with either of these, don’t worry! SESWA is working to provide up-to-date guidance on these efforts to ensure that MS4 programs are ready to jump at these historic funding opportunities with all the prerequisites in place. We will be diving into these and other topics at our in-person Annual Conference October 5-7, 2022, in beautiful Hilton Head Island, SC. We have a stellar agenda lined up, so if you haven’t registered, please do so soon. I look forward to seeing you all and learning about the exciting initiatives and projects going on throughout the Southeast!

Cory Rayburn
SESWA President
City of Johns Creek, GA

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Find Solutions and Grow Your Professional Career with SESWA

Active SESWA members will tell you that the benefit of membership includes resources like continuing education, stormwater-specific regulatory updates, and timely online resources.  But beyond the list of benefits, SESWA also offers peer-to-peer networking and mentors that can assist in the growth of your professional career.  By simply getting involved you will discover innovative and cost saving solutions to meet the challenges you face every day.  If you haven’t already renewed for the new year (July-June) you have entered a 30-day Grace Period.  Don’t miss this chance to be part of a growing stormwater community across the Southeast (currently 1,400 individuals) as we find better ways to protect water quality and the environment.  Renewal details have been sent to your organization’s primary contact by email or you can contact SESWA anytime, we’re happy to help!  We look forward to serving you!

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17th Annual Regional Stormwater Conference – Join us in Hilton Head Island, South Carolina!

The 17th Annual Regional Stormwater Conference will be held at the Hilton Head Marriott in Hilton Head Island, SC on October 5-7, 2022.  SESWA offers the only Regional Conference focused solely on stormwater education and challenges in stormwater management.  The comprehensive conference agenda was developed by your peers throughout the Southeast with YOU in mind.  The Conference will feature great keynote and breakout speakers, innovative stormwater products in the exhibit hall, networking opportunities with other stormwater professionals, access to continuing education, and much more.  Register by August 1st to take advantage of discounted early-bird rates!

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Join Us For SESWA’s Next Service Project!

Service Project Group PhotoSESWA is pleased to announce that we will be holding a service project in conjunction with this year's Annual Conference. Join us the morning of Wednesday, October 5th for a South Carolina focused clean up event prior to the start of conference activities. There is no cost to participate but you must register in advance. Details will be emailed to service project registrants as the Conference approaches. Registration is limited, so sign up participate in the service project today to save your spot!

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SESWA’s Free Conference Registration Goes to…”

Thank you to all that participated in the recent membership survey pertaining to SESWA’s services.  We value your feedback!  To show our appreciation, we have awarded a complimentary registration to SESWA’s 17th Annual Regional Stormwater Conference to one lucky survey participant.  Congratulations to Ryan Eaves with Durham County, NC!  We hope you enjoy the conference!

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Did You Miss SESWA's July Webinar?

July 2022 Webinar

If you missed the July webinar but still want to take advantage of this free member benefit, don’t worry.  SESWA members have access to the Leveraging American Rescue Plan Act Funding Opportunities to Support Your Stormwater Program webinar recording and presentation at no cost thanks to our 2022-23 Communications Sponsors! 

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SESWA Photo Contest Winners

We would like to thank all members who participated in the 2022 SESWA Photo Contest! We’re inspired by all of the great photos of stormwater projects and programs around the Southeast. The winning photos are now featured on the SESWA homepage and other submittals can also be seen throughout the website.

The winners of the 2022 SESWA Photo Contest are...

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WOTUS Updates
Kurt Spitzer, SESWA

There have been no developments in the regulatory arena concerning EPA’s proposed new set of WOTUS definitionsSESWA’s comments on the draft rules were submitted in February of this year.  However, two developments in court actions will likely impact future WOTUS policy.  First, the US Supreme Court has scheduled oral arguments (October 3, 2022) on an appeal of a decision of the Ninth Circuit Court of Appeals concerning the tests used to determine whether wetlands are subject to federal jurisdiction under the Clean Water Act (CWA).  Sackett v. EPA asks the Court to clarify its 2006 ruling in Rapanos v. United States regarding the conditions under which wetlands are “jurisdictional.”  A decision from SCOTUS can be expected in early 2023 and will most likely complicate EPA’s WOTUS rulemaking effort.  Second, the logic of a recent decision of SCOTUS limiting the ability of EPA to regulate greenhouse gasses could be applied to other regulatory policies, including those implementing the CWA.  The Court struck down recent EPA policy on greenhouse gases, saying that the policy had significant economic impacts and Congress was not explicit enough in granting EPA authority to take such action.  Court-watchers believe that similar arguments can be made in a number of environmental areas – including water policy.  Stay tuned to for updates from SESWA as details unfold!

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ARPA and BIL Funding for Stormwater Projects in NC
Dave Canaan, Raftelis Financial Consultants

North Carolina Department of Environmental Quality (NC DEQ), Division of Water Infrastructure has announced that the first round of ARPA funding for stormwater projects (administered through the State Revolving Fund program) is this fall with a grant submission deadline of September 30, 2022. NC DEQ is providing training sessions from August 2nd to August 10th at six locations across the State. The August 10th session will be hosted both in-person and online. These sessions will also cover the availability of Bipartisan Infrastructure Law (BIL) funding. If you have an interest in learning more, go to NC DEQ's funding page for valuable information on the training sessions (including the recording of the August 10th session), submittal requirements, etc.

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Bridge Investment Program Funding Opportunity
Daryl Hammock, City of Charlotte, NC

The Bipartisan Infrastructure Law authorized funding for the Bridge Investment Program.  Funding opportunity guidance has been released for assets listed in the National Bridge Inventory and includes funding for the rehabilitation and replacement of larger culverts.  The minimum award is $2.5 million, and projects are ranked on numerous conditions, their mobility, and several economic factors.  Applications are due September 8, 2022. 

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Governor Vetoes Florida SB 620
Kurt Spitzer, SESWA, FL

Florida Governor Ron DeSantis has vetoed Senate Bill 620 which passed during Florida’s 2022 Legislative Session.  The Florida Stormwater Association, many local governments and several environmental organizations had asked the Governor to veto the legislation.  Senate Bill 620 created a new cause of action that businesses may bring against local governments if a city or county ordinance or charter provision caused a 15 percent drop in the business's profits.  While there are several types of ordinances that are exempt from the provisions of the legislation (e.g., ordinances that are “required” by state or federal programs) many of the exemptions are ill-defined, set a bad precedent for pollution control programs and will likely be litigated in court for years to come.  In his veto message, the Governor cited the uncertainty surrounding the impacts of the legislation and the potential for numerous lawsuits if the bill was allowed to become law.

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Two States in the Region Develop Statewide Bacteria TMDLs

Draft Statewide Bacteria TMDLs in Florida
Kurt Spitzer, SESWA, FL

Florida’s Department of Environmental Protection (FDEP) announced a public meeting to present and receive public comments on draft fecal indicator bacteria TMDLs on a statewide basis. The original intent is to adopt rules for certain impaired surface waters in Southwest Florida not meeting applicable criteria for Escherichia coli, enterococci, or fecal coliform bacteria. Thereafter, similar rules would be developed for a uniform approach to address fecal indicator bacteria impairments statewide. The concern of most local stormwater interests is that the proposed rules tend to place most of the burden to prove or disprove the actual source of bacterial pollution on the MS4 permit holder. FDEP is now having more conversations with affected stakeholders concerning the best approach to address the bacteria pollution problem. More information on the proposed TMDLs and draft Reports may be found on the FDEP’s Bacteria TMDL page.

First Statewide Bacteria TMDL Completed in Kentucky
Demetria Kimball-Mehlhorn, Lexington Fayette Urban County, KY

In 2018 the Kentucky Division of Water (KDOW) completed its first statewide E. coli TMDL based on streams that are on the 303(d) approved list. They created a Bacteria TMDL core document showing how the TMDL information was gathered, what assumptions were made, factors considered, etc. Then every year an appendix detailing further stream segments within the major state watersheds (i.e., Kentucky River, Ohio River Tributaries, Big/Little Sandy, etc.) is completed and added to the core document.

During a presentation made to the Kentucky Stormwater Association, KDOW indicated that this method gave more flexibility when collecting samples and where the information was gathered (MS4 programs, KPDES requirements, volunteer activities, etc.); noting it is highly efficient because additional data was not required to be collected; and aligns with permitting programs. However, with such a broad implementation method there is a significant loss of watershed/stream segment specifics and no thought on how the restoration process should begin.

KDOW feels this is a streamlined approach that will allow allocated resources to be used for implementation of water quality projects and not just research. In addition, it will assist in moving forward with restoring impaired waters (see graphic below).

TMDL KY Graphic

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Assessing Needs for Stormwater Systems in Florida
Kurt Spitzer, SESWA, FL

The deadline for compliance with the first cycle of reporting under the provisions of House Bill 53 (2021 Session) is July 30, 2022. The legislation requires local governments with wastewater or stormwater management systems to create a 20-year needs analysis for each system, including a description of the system, the number of future residents served, revenues and expenditures, maintenance costs, etc. In June, cities (there are 410 in Florida) were required to submit their data to the county in which they were located. The county would then compile the municipal data and its own before sending it to the Legislature by the end of July. As of publication of this edition of the newsletter, 24 counties (out of 67) have submitted their compiled survey instrument to the Legislature’s Office of Economic and Demographic Research.

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Charlotte's Lessons Learned from an MS4 Permit Program Third-Party Audit
Craig Miller, City of Charlotte, NC

While the City of Charlotte has an award-winning MS4 permit program, we know there's always room for improvement. In 2020, we hired a consultant to help us prepare for an upcoming State audit. The process allowed us to receive an objective, unbiased perspective and uncover issues staff were not aware of. The main lessons learned and advice from our experience include:

  • Hire a third-party audit team with broad backgrounds and experiences with MS4 permit programs and conducting audits.
  • Include all relevant municipal staff in the audit process so they are better prepared for the real thing.
  • In terms of audit findings, proper documentation of permit requirements is vital. If you say you've done something, be able to show it with hard copy or electronic records.
  • Write standard operating procedures for all major permit requirements and make sure they're updated regularly.
  • Be able to describe permit program goals and why you chose certain metrics to measure success in reaching those goals.
  • Make sure your records are well-organized, so you don't fumble around trying to find items.
  • Determine priorities, a plan of action, and deadlines to complete corrective actions in the gap analysis report.

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Statewide Stormwater Rule Development
Kurt Spitzer, SESWA, FL

The Florida Department of Environmental Protection (FDEP) continues to move forward with updates to the statewide design criteria for stormwater systems. Discharges from projects that are constructed in a manner that is consistent with the design criteria are presumed to comply with water quality standards. Attempts were initiated to update the criteria beginning in 2007 but were abandoned in early 2010. The current effort is in response to a legislative directive that passed in 2020. For more information visit FDEP’s Cleanwaterways Act Rulemaking Workshops page. FDEP’s next workshop is tentatively scheduled for the week of August 22nd.

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NACWA Corner

Provided by the National Association of Clean Water Agencies
Nathan Gardner-Andrews, Chief Advocacy & Policy Officer

Infrastructure Dollars Start Flowing, But EPA Waivers Muddy the Waters

The federal government has started to dole out billions of dollars that were approved in last year’s landmark bipartisan infrastructure bill. For the U.S. Environmental Protection Agency (EPA), this means that hundreds of millions of dollars will soon start flowing to state and local governments around the country for water projects. But a little-known element of the law is causing confusion as these new financial resources hit the ground.

Tucked into the massive spending bill was something called the Build America, Buy America Act (BABAA), which requires that any project using federal money must use only materials made in America. There have been existing “buy America” requirements for iron and steel for many years, but BABAA expands these requirements to manufactured products such as electronics. For the water sector, these expanded requirements are potentially problematic since many of the pumps, control equipment and other electronics used in water management projects are made (or have internal components that are made) overseas.

Given the potential negative impacts BABAA could have on water projects, many in the water sector have asked EPA to consider waivers to the BABAA requirements. EPA has responded, but unfortunately in a way that has created more confusion and angst.

EPA has issued three BABAA waivers for water funding in recent months. One is for projects funded through the Water Infrastructure Finance and Innovation Act (WIFIA) program, one is for projects funded through the State Revolving Fund (SRF) program and one is for all other EPA water funding programs. Only the WIFIA waiver has been finalized, while the ones for the SRF and other funding programs have been released in draft form for public comment.

Unfortunately, instead of using the same waiver process for all of its programs, EPA has created three different approaches – sowing confusion for both states and local governments. The WIFIA waiver has widely been viewed as the best of the three. It exempts from BABAA those projects seeking WIFIA funding that initiated design planning prior to the date BABA went into effect, which was May 14, 2022. It takes a flexible approach to “grandfathering in” projects that were in the planning stages before BABAA went into effect, recognizing that without an exemption, utilities may be forced to go back to the drawing board on their projects or face potential delays and cost increases they could not have foreseen.

By contrast, the proposed SRF waiver is significantly narrower and would only exempt from BABAA those projects seeking SRF funding that submitted engineering plans and specifications to an appropriate state agency prior to May 14, 2022. The waiver for EPA’s other funding programs – including the Sewer Overflow and Stormwater Reuse Grant Program – is for six months from the May 14th BABAA effective date, meaning it stretches to November 14, 2022. This means any projects funded before November 14th would be exempt from BABAA, but projects funded after would be subject to full BABAA requirements.

NACWA and others in the water sector have strongly advocated that the SRF waiver be similar to WIFIA and exempt all projects from BABAA that initiated design planning before May 14, 2022.

The bottom line for utilities looking to use federal funding is that BABAA and its related waivers add a new layer of complexity to be factored into project funding. Hopefully these complexities will be smoothed out and simplified over time, but it may be a bumpy road at first. Even with these challenges, federal dollars can still play a critical role in clean water and stormwater management projects. But as the old saying goes, there is no such thing as a free lunch!

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