PWEA Stormwater Workshop. The National Perspective

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2 PWEA Stormwater Workshop The National Perspective November 17, 2015 Claudio H. Ternieden Director of Government Affairs Alexandria, VA

3 Who is WEF? Est.1928/ 34,000+members Local presence: PWEA WEFTEC / Congress Publications Technical/Advocacy

4 The Rise of Nonpoint yrs Point Source vs. Nonpoint Source Water Quality Impairments Source: William Ruckelshaus, A New Shade of Green, The Wall Street Journal, April 17, 2010

5 Wri.org, 2014 Forestsforwatersheds.org, 2014 Compelling Driver for Change? Boston Globe, 2013 NRDC, 2013

6 Property and Infrastructure Damage Flooding Impacts Infrastructure Damage

7 Old Infrastructure?

8 Opportunity for Change! City of Philadelphia, 2013 City of Philadelphia, 2013 pedshed.net, 2013 City of Chicago, 2013

9 The Virginian Pilot December 5, 2010

10 Policy Overview Stormwater Legislation Stormwater Rulemaking(s) Stormwater Utilities Retention, Retrofit Requirements

11 Stormwater and Green Infrastructure Legislation Highway Runoff Management Act, S. 518 (Sen. Cardin (MD)) Requires states to develop a highway stormwater management program consisting of management measures to prevent, reduce, or control highway runoff from federal-aid highway projects. Urban Flooding Awareness Act, H.R (Rep. Quigley (IL)) Directs a study from FEMA and NAS on impacts of urban flooding (non-flood mapped areas). Directs the NAS to evaluate the latest research, laws, regulations, policies, best practices, procedures, and institutional knowledge regarding urban flooding, and provide recommendations. Innovative Stormwater Infrastructure Act, S. 896 (Sen. Udall (NM)) and H.R (Rep. Edwards (MD)) Grants to communities for stormwater control projects Establishs 5 regional stormwater centers of excellence Promote increased support w/in EPA for communities.

12 Overview of Message Points Maintain Funding for Clean Water SRF in FY16 - $1.45 B Funding for Integrated Planning Pilots in FY16 - $13 M Funding for WIFIA Pilots in FY16 - $25 M No Changes to Tax-Exempt Muni Bonds Incentivize Greater Private Investment in Innovation Water Resources Utility of the Future Update Clean Water Act Join the bipartisan Clean Water Caucus Funding for R&D in Clean Water Innovation

13 President s FY16 Budget Request EPA FY 16: $8.581B ($452M increase from FY15 enacted) Bureau of Reclamation: $1.1B for water projects Clean Water SRF FY15 Final bill: $1,448,000,000 (same as FY13, FY14, and FY15) President s FY16 Request: $1,116,000,000 (-$332M/FY15) Drinking Water SRF FY14: $906,896 (same as FY13, Fy14, and FY15) President s FY16 Request: $1,186,000,000 (+$279M/FY15) DELTA: -$53 in SRF Funding for FY16 CONGRESSIONAL ASK: Fund the Clean Water SRF in FY16 at $1.45 Billion

14 President s FY16 Budget cont. WIFIA Pilot Program Budget Request include $5M for the EPA to to begin developing the information necessary to lay the groundwork for a WIFIA program. In FY15 Omnibus, Congress included $2.2M to do similar program development. WIFIA pilot program is authorized to receive $25M in FY16 for loans and loan guarantees for projects. This would fund approximately $250M in projects. CONGRESSIONAL ASK: Include $25 Million in FY16 for WIFIA Loans Tax-Exempt Muni Bonds Budget Request proposes to cap the tax deductibility amount at 28 percent for highincome taxpayers for certain investments, such as tax-exempt municipal bonds. Tax-exempt muni bonds fund over 80% of water infrastructure investments, of which approximate 50% are purchased by high-income earners directly or through mutual funds. Tax reform legislation in Congress in 2015 could potentially include changes to tax-exempt muni bonds. CONGRESSIONAL ASK: Do not make changes to tax-exempt muni bonds.

15 President s FY16 Budget cont. Integrated Planning EPA Launches Initiative to Help Communities Meet CWA obligations more affordably EPA provides $335,000 in Technical Assistance to five communities (Durham NH, Burlington VT, Onondaga County NY, Springfield MO, Santa Maria CA) EPA Requests $13 million for competitive grants and technical assistance to help communities develop Integrated Plans CONGRESSIONAL ASK: Appropriate $13 million for Integrated Planning Pilots in FY16

16 National Stormwater Rulemaking Elements Considered Establish first national performance standard for stormwater Standard was to be retention-based Expand MS4 coverage/extents Would have likely NOT addressed retrofits

17 Policy/Legal Updates Stormwater Utilities Retention-based Approach Residual Designated Authority (RDA) Integrated Management Water Quality Trading Others

18 Stormwater Utilities Stormwater Fees Is it a fee or a tax? Confers benefits, scales with service, requires vote by the public, etc.? Michigan and Missouri and others dealing with this Public opinion is tough Los Angeles dealing with this Maryland is a good example

19 Policy - Big Picture What does this point to? Busy (and Exciting)! Nascent / Evolving Field Funding is a Big Issue Regulatory Uncertainty Exists Modernize the CWA? (Ag?) 83% - point source goals TMDLs achieved 20% - nonpoint source goals TMDLs achieved 1,000 years needed to reach goals!!!

20 Innovation in Stormwater

21 Innovation at WEF WEF Stormwater Institute MS4 Awards National Stormwater Green Infrastructure Certification Program STEPP Initiative Stormwater Advocacy Stormwater Publications

22 U.S. EPA, 2000 U.S. EPA, 2000 Innovative Financing/Funding CWA ~ national treatment standard for wastewater Was a PARTIALLY FUNDED mandate (half of total public capital, 1/3 of total capital came from Const. Grants Prog.) EPA stormwater rulemaking ~ national standard for stormwater Will be (would ve been?) an UNFUNDED mandate Private / large local (public) investment will be needed

23 Infrastructure Investment Needs Clean Watershed Needs Survey EPA in 2008 $100B for CSOs / stormwater* (60% / 40%) *Does not include estimates for changing regulations 67% growth in stormwater from 04 to 08 $25.4B in 04 to $42.3B in 08 largest growth sector 7 states reported 85% of needs NJ ($15.6B), PA ($6B), CA ($3.8B), MD ($3.8B), TX ($3.1B), FL ($2.5B), NY ($1.1B) what about others? Other states cited lack of time/budget to document needs or documentation difficulties

24 Innovative Financing/Funding Innovative Approaches Incentive-based (Philadelphia, PA) Market-based (Washington, D.C.) Public-Private Partnership (P3) (Prince Georges County, MD)

25 Innovative Financing/Funding Interest in public-private partnerships (P3s) Privatization message has changed History in transportation sector Entities looking for long-horizons with lowrisk, low returns EPA Region 3 Community-based P3 Prince George s County, MD

26 Agrinews-pubs.com, 2014 Other Issues Big data in stormwater Real-time control / optimization Cost for monitoring dropping Data, data, data Numeric limits? Drones and self-driving cars and stormwater?

27 The Future?

28 Phase II Regulations Small MS4 General Permits (40 CFR ) If you are the operator of a small MS4, you are required to seek coverage under an individual or general NPDES permit Vast majority of small MS4s are permitted under a state general permit To be covered under a general permit: The small MS4 must develop a stormwater management program that is designed to reduce the discharge of pollutants from the MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the CWA. The small MS4 must submit a Notice of Intent (NOI) to the permitting authority The NOI must include (1) information on the BMPs that will be implemented for each of the six minimum control measures, (2) the measurable goals that will be achieved for each of the BMPs (deadlines and interim milestones), and (3) the persons responsible for implementing the MS4 s stormwater management program

29 EDC v. EPA decision (9th Circuit, 2003) Focus of the ruling: Ninth Circuit found deficiencies in the Phase II stormwater regulations regarding the procedures to be used for providing coverage to small MS4s under general permits The court vacated the relevant portions of the Phase II regulations, and remanded to EPA to fix the deficiencies: 1. Lack of permitting authority review: In order to receive the protection of a general permit, the operator of a small MS4 needs to do nothing more than decide for itself what reduction in discharges would be the maximum practical reduction. No one will review that operator's decision to make sure that it was reasonable, or even good faith. 2. Lack of public participation in permit process: we conclude that EPA s failure to make NOIs available to the public or subject to public hearings contravene the express requirements of the Clean Water Act.

30 NRDC/EDC petition to Ninth Circuit (2014) Petitioners asked the Ninth Circuit to require EPA to take action to address the 2003 EDC v. EPA ruling Petition requests the Court to order EPA to take the following actions: Immediately revise its Phase II small MS4 regulations include a statement that directs permitting authorities to comply with the 2003 EDC order pending further rulemaking. This action is needed to ensure that state permitting agencies do not continue to mistakenly rely on the vacated rules. Propose within 6 months (and finalize within 6 months after that date) a rule revising the Phase II small MS4 regulations to address the procedural deficiencies found in the Court s 2003 order.

31 EPA Memorandum (2004) Provided recommendations to permitting authorities for how to administer their general permits in light of the EDC v. EPA ruling Public Availability of NOIs: Permits should include language how NOIs will be made available to the public with sufficient time to allow for a meaningful public comment EPA recommendation: make the NOIs available to the public at least 30 days before authorization to discharge Opportunity for Public Hearing: EPA recommendation: include permit language explaining the process for requesting a public hearing on an NOI, the standard by which such requests will be judged, the procedures for conducting public hearing requests that are granted, and the procedures for permitting authority consideration of the information submitted at the hearing Permitting Authority Review of NOIs: Permitting authority needs to conduct an appropriate review of the NOIs to ensure consistency with the permit Official approval of the NOI is not necessary, but the general permits will need to specify when authorization occurs (e.g., after notice from the permitting authority, or after the expiration of a waiting period)

32 Other EPA Guidance MS4 Permit Improvement Guide (2010) Revisions to 2002 Memorandum on TMDLs and Stormwater Permits Recommendation that NPDES permitting authorities establish clear, specific, and measurable permit requirements to implement the minimum control measures in MS4 permits

33 MS4 Permitting Post-EDC Some permitting authorities have modified their small MS4 general permit procedures Provide a waiting period after NOI is submitted for coverage NOIs are public noticed (through website) public can submit comments on individual NOIs and/or request a public hearing Some permitting authorities individually review NOIs and stormwater management programs Some permitting authorities have established more specific permit conditions for individual MS4s within the general permit lessening the importance of the stormwater management program to establishing the substantive requirements Some permitting authorities have decided to individually permit their small MS4s

34 Possible Rule Scenarios to Address MS4 remand

35 Scenario 1: Modify procedural requirements for general permits Include requirements for permitting authority review, public notice of NOIs, and providing the opportunity for the public to request a hearing (if necessary) on individual NOIs/SWMPs Potential rule changes: Include new section with specifics on required procedures Issues: How permit requirements may be changed as a result of permitting authority review and public notice/hearing comments

36 Scenario 2: Clarify permitting authority s role in establishing permit requirements Clarify that permitting authority is responsible for establishing permit requirements that meet the standard of reducing pollutant discharges to the maximum extent practicable and that it has addressed the six minimum measures and other relevant requirements Potential rule changes: Include clarifying language that makes it clear that the general permit is where the enforceable requirements are established Issues: Can the required minimum information in the NOI be streamlined or cut? How does this affect the permit authority review and public participation issues in the remand?

37 The Future? REALLY..

38 One Word Water Quality Criteria for VIRUSES/BACTERIOPHAGE

39 Claudio H. Ternieden Director of Government Affairs WATER ENVIRONMENT FEDERATION 601 Wythe Street Alexandria, Virginia Office: (703) Mobile: (703)