September 2022, Volume 17, Issue 5

SESWA Forecast Newsletter


Advanced Drainage Systems
Best Management Products
NPDEA Training Institute

President's Corner

I’m so excited to see many of you in beautiful Hilton Head Island, SC this coming week for SESWA’s 17th Annual Conference.  Having been on “in-person” hiatus the past few years, many of you can understand how meaningful and beneficial these networking opportunities are.  Sure, digital forums can deliver a wealth of information to our members as our SESWA management staff have proven during the pandemic, but nothing really replaces the ability to connect with our fellow stormwater brethren in real life.  Since our last in-person conference in Chattanooga in 2019, we’ve witnessed global public health and climate crises that demonstrate the need to work together across industries to solve the challenges of the day and prepare for the future.  With the never-before-seen funding from the Bipartisan Infrastructure Law, stormwater professionals have an important and unique role to secure federal funds for their local programs to address flooding, build resiliency, and improve water quality, and SESWA is here to help!  Be on the lookout for additional information at the 2022 Annual Conference.

Cory Rayburn
SESWA President
City of Johns Creek, GA

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SESWA’s Annual Conference – New This Year

The conference is sold out and we’re expecting a full house for SESWA’s 17th Annual Regional Conference. If you are registered and joining us in Hilton Head, the conference will feature two new activities that you don’t want to miss!

Student Poster Session – Incorporated within the Conference agenda on Thursday afternoon, SESWA will be hosting a special session featuring student poster presentations on stormwater management topics. Attendees can use this one-on-one time with students to learn more, ask questions, and share experiences. We invite you to be part of this unique opportunity to hear from and engage with upcoming stormwater professionals and the academic community.

Service Project – SESWA is excited to offer its second Stormwater Service Project this year! Participants will be bagging recycled oyster shells to be used in shoreline protection and artificial reef projects around Hilton Head Island. The Service Project will take place near the Coastal Discovery Museum on Wednesday, October 5th from 8:30 AM to 11:00 AM Eastern ensuring that you won’t miss out on any SESWA Conference events. All project materials will be provided, there is no cost to participate, however participants must register in advance. A special thanks to the Outside Foundation and the City of Hilton Head Island for supporting this effort!

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Be a Part of Something Great – Join a 2022-23 SESWA Committee! 

SESWA members are encouraged to serve on one of the Association's four programmatic committees: Communications, Conference & Education, Membership, or Stormwater Policy.  Volunteering to serve on a committee is a great way to become more involved in SESWA.  Sign up to join a committee today to have a say in your Association's programs and network with other stormwater professionals throughout the Southeast.  Committee re-appointments are not automatic!  Whether you wish to return to a committee or be appointed for the first time, please complete a Committee Request Form.  The incoming President will be making appointments by early November. 

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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 of the SWU Factsheet today!

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WOTUS Starting to Move
Kurt Spitzer, SESWA

There have been a few important developments regarding EPA’s proposed revisions to the definitions of Waters of the US (“WOTUS”) and related matters.  First, EPA and the Army Corps sent a final draft of the new WOTUS regulations to the White House Office of Management and Budget (OMB) on September 12, 2022 for review.  OMB reviews typically take around 90 days; thereafter, the final rule could be published.  Second, the US Supreme Court (SCOTUS) is scheduled to hear oral arguments on October 3, 2022 in an appeal of a decision of the Ninth Circuit Court 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.  Finally, the Sackett decision could be impacted by the logic contained in a recent decision of SCOTUS limiting the ability of EPA to regulate greenhouse gasses (GHG).  In the GHG decision, SCOTUS struck down recent rules, saying that the GHG policy had significant economic impacts on industry and Congress did not grant specific authority to EPA to adopt such regulations.  Similar arguments might be made with regard to some aspects of the pending WOTUS regulations.  SESWA will continue to monitor WOTUS impacts on stormwater programs and keep members informed. 

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Assessing Needs for Stormwater Systems 
Kurt Spitzer, SESWA 

The deadline for Florida local governments to comply with the first cycle of reporting under the provisions of House Bill 53 (2021 Session) was 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.  There are 67 counties and 410 cities in Florida, plus thousands of special districts – in most cases single purpose local governments created by special acts of the Florida Legislature.  After many follow-up calls to local governments, the Legislature’s Office of Economic and Demographic Research received around 800 responses to its survey instrument, including responses from 53 counties.

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Statewide Stormwater Rule Development
Kurt Spitzer, SESWA 

The Florida Department of Environmental Protection (FDEP) hosted its second workshop on updates to the statewide design criteria for stormwater systems.  Discharges of stormwater 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 based on a 2007 report (finding that the design criteria were not adequate) but were abandoned in early 2010.  The current effort is in response to a legislative directive that passed in 2020.  

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How to Update Old 319(h) Watershed Management Plan BMPs
Demetria Kimball-Mehlhorn, Lexington Fayette Urban County, KY

Through the Lexington, KY MS4 program we are completing an intensive watershed focus monitoring program. Each year a new watershed (we have seven in the urban boundary) is surveyed for several in-stream parameters. This fall the Wolf Run Watershed, a small fully urbanized watershed with the first approved 319(h) plan in Lexington (2012), is being sampled.

Great! But how do we use this data? How about updating the 10-year-old watershed management plan BMP table? Can we do this without updating the entire plan? YES!

The Wolf Run Watershed is in a fully urbanized area and little new development has occurred over the past ten years. However, several BMPs have been installed and the BMP table needs updating. The KY Division of Water has created a guidance document detailing how this can be done. Basically, after field data has been collected and analyzed, the stream pollutant load spreadsheet needs to be updated and load reduction calculated. Then public input regarding the BMP table updated and submitted as an addendum to the original plan.

Lexington, KY will be the first in KY to update an original plan. Wish us luck and look for more articles in the future!

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SC ARPA Funding - Application Deadline Fast Approaching! 
Kevin Kubiak, Berkeley County, SC 

The deadline to apply for American Rescue Plan Act (ARPA) funding is approaching quickly.  Counties, cities and towns in the state of South Carolina have until October 31st to apply for a portion of the $55 million available for stormwater projects through the South Carolina Office of Resilience (SCOR) Infrastructure Program.  Projects do not have to be state managed to be eligible for funding and require no match on behalf of the local body.  Both grey and green infrastructure projects qualify, and projects can be anywhere from conceptual to shovel ready as long as the application packet can demonstrate that the construction of the project can be complete by December 2026.  For more information, FAQ sheets, benefit cost information, or to apply, visit the SCOR ARPA Stormwater Infrastructure Program page.  Be sure to get those applications in by October 31st to avoid missing out! 

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TN Phase 2 MS4 Permit Issues, Quickly Appealed
Dave Mason, CDM Smith

The Tennessee Department of Environment and Conservation (TDEC) issued the NPDES Phase 2 MS4 General Permit on August 1, 2022, after a long delay over disagreements about the Post Construction Runoff language.  The permit now includes language directly from a statewide post construction stormwater rule making process completed during the prior year.  However, this newest permit has been appealed by environmental groups over language included that could exempt rooftop runoff from post construction runoff calculations and that would allow Stormwater Control Measures (SCMs) to be placed within riparian buffers.  No date has been set for the appeal hearing.

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Benthic Macroinvertebrate Population Restored in the McDowell Creek Watershed in Mecklenburg County, NC
Don Ceccarelli, Charlotte-Mecklenburg County, NC

McDowell Creek located in northwest Mecklenburg County, NC was designated as impaired by the North Carolina Division of Water Resources (NCDWR) in 1998 because of poor biological conditions.  Since then, Mecklenburg County Storm Water Services (MCSWS) in partnership with the Towns of Huntersville and Cornelius have implemented programs to restore water quality in the watershed.  A Low Impact Development (LID) ordinance was adopted by the Town of Huntersville in 2003 to mitigate the impact of new development in the watershed.  Eroded streams channels and degraded habitat conditions caused by urbanization are being restored through stream restoration projects and the installation of retrofit stormwater control measures (SCMs).  These efforts have resulted in improvements in stream biology, leading to NCDWR removing McDowell Creek from its impaired designation to meeting its water quality standards and designated uses in 2020.  This is the first time in the history of both Mecklenburg County and the State that such significant improvements in water quality have been attributed to specific enhancement measures.  These improvements have occurred despite an increase in population in the watershed of 138% over the past 20 years and an increase in impervious area of 31% over the past 10 years.

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 NACWA Corner

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

What Does EPA’s PFAS Rule Mean for Stormwater Utilities? 

The US Environmental Protection Agency (EPA) took a significant step forward on September 6th in its efforts to regulate per- and polyfluoroalkyl substances (PFAS) with its publication in the Federal Register of a proposal to list two of the most common PFAS compounds as hazardous substances under the federal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposed rule applies to perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), including their salts and structural isomers.

While this rule proposal was not a surprise – EPA had indicated in its PFAS Strategic Roadmap last year that such a rulemaking was planned – it nevertheless is something that all municipal stormwater utilities should take seriously given its potential impacts and liabilities.

The CERCLA law – also known as the Superfund law – is designed to monitor the release of hazardous substances into the environment and to allow for the cleanup of sites that have been contaminated by hazardous substances. PFOA and PFOS have historically been used in a wide range of industries and consumer products including carpets, clothing, food packaging, cookware, firefighting foams, and numerous industrial processes. EPA notes in its proposal that environmental sources of PFOA and PFOS “can include industrial, and inadvertent municipal and agricultural discharges of PFOA and PFOS directly.”

If the proposal to list PFOA and PFOS under CERCLA is finalized, municipal stormwater utilities would face immediate and long-term impacts. In the short term, a final rule would immediately trigger reporting requirements for entities “releasing” one or more pounds of PFOA or PFOS in a 24-hour period. Such “releases” could potentially include stormwater discharges from a permitted municipal separate storm sewer system (MS4) containing PFOA or PFOS.

However, it is unclear whether the one pound per 24-hour requirement would apply to each individual discharge point within an MS4 or if it would apply to the MS4 as a whole. Additionally, the only way to know if PFOS or PFOA was being discharged would be to monitor the stormwater discharges, which would likely require the installation of costly monitoring technology at each discharge point. This would be very challenging for MS4s, and it is unclear if a final designation would require such measures.

Longer term impacts from final CERCLA PFAS designations focus more on potential legal and financial liability for MS4s. CERCLA places liability for cleanups – which can be undertaken voluntarily by both governmental and private parties or compelled by EPA – on entities that released or disposed of hazardous substances, including through past actions. Anyone incurring cleanup costs can seek to recover them from all potentially responsible parties (PRPs), and PRPs can bring other PRPs into suits seeking such costs or contributions. Importantly, because CERCLA is a strict liability law with joint and several liability, utilities do not have to know they were releasing PFAS chemicals to be liable, and even if a utility was only responsible for a fraction of the pollution it could be required to pay for the entire cleanup, particularly where other PRPs cannot be identified.

For MS4s, this means that if PFOA or PFOS are discharged from the MS4 and contribute to downstream contamination, the utility could be brought in as a PRP to pay for all or part of the clean-up costs. And while EPA has indicated that it does not intend to seek CERCLA remediation costs from public clean water utilities, private sector parties can – and often do – bring public utilities into CERCLA cost recovery and contribution actions, where they are subject to the same potential liability as all other PRPs. Even where EPA attempts to limit their exposure, utilities can be forced to spend exorbitant amounts of public funds defending themselves in such actions, even just to prove that they contributed a small amount of a listed substance.

NACWA and other water sector advocates have pushed back strongly against EPA efforts to designate PFAS chemicals under CERCLA without an exemption for municipal stormwater and wastewater utilities, but the Agency had forged ahead with its regulatory process without addressing our concerns. The potential consequences of this action are significant, and NACWA encourages all MS4s to review the proposal, evaluate its possible impacts on your operations and file comments outlining your concerns with EPA. The current public comment period closes on November 7th, although NACWA and others have requested an extension of the deadline.

The challenge posed by PFAS chemicals in the environment is real, and it will almost certainly take new regulations to address it. But these regulations must be developed in a deliberative manner that is based on sound science and takes all potential impacts into account. Unfortunately, EPA has not taken that approach with this proposed rule, which does not bode well for additional PFAS regulations coming in the future.

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