Overview of Legal Authority RE: MS4 Program Requirements

Transcription

1 Ohio Water Law: Overview of Legal Authority RE: MS4 Program Requirements The New Ohio EPA NPDES Permit for Small MS4s What s New and How to Get it Done? April 9, 2014 Louis L. McMahon lmcmahon@mdllp.net l

2 Overview Outline the law in Ohio as it relates to stormwater Evolution of Ohio Water Law Federal v. State regulatory overlay Stormwater specific authorities Why we have a patch-work quilt of regulations and what patches apply to MS4 regulation It depends

3 Civics 101 U.S. Constitution of limited, enumerated powers for federal government (Art. I, Section 8): Commerce Clause: The Congress shall have Power... [to] regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes Includes power to regulate Navigation (Gibbons v. Ogden) Supremacy Clause (Art. 6) States primacy in health, safety and welfare See, e.g., 10 th Amendment; but see, 14 th Amendment Expansion of federal regulatory and judicial jurisdiction during and after WWII overlays existing state law

4 Short History of Ohio Water Events and the Law present Frontier/Canal Era Era of Industrialization/Urbanization Progressive Era Modern Era Water law in Ohio is highly shaped by incremental innovations to meet new emergencies or priorities Beware-- vestiges abound!

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6 Frontier Era Natural Flow theory Private ownership of river beds established, Gavit v. Chambers (1828) 3 Ohio 495 Traditional navigability established subject to state control, Walker v. Bd. Of Public Works (1847) 16 Ohio St Canal Era (1825 Canal Act)

7 What is this Common Law Black s Law Dictionary: In general, it is a body of law that develops and derives through judicial decisions, as distinguished from statutory enactments. Also, all the statutory law and case law background of England and American colonies before the American Revolution Ancient, unwritten law of England derived and applied by judges in property, dispute resolution, remedies... Statutes can shape, extend or obliterate the common law. Judges interpret and apply statutory and regulatory law

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10 Era of Industrialization and Urbanization State authorization of municipal powers Counties and township authority limited Growth causes conflicts under natural flow regime Issues surrounding pollution

11 Drainage & Stormwater Flows Lower Mill Creek Watershed 303 miles of historical streams 75 miles of existing streams, 603 miles of combined sewers

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13 Progressive Era Reasonable use rule established: Mansfield v. Balliet (1902); Canton v. Shock (1902) 1908 Board of Health Law (RC 6109 and 6111) 1912 Home Rule Amendments 1913 Flood;1917 Conservancy Districts created 1917 Fleming Act re: Lake Erie Public trust 1919 Ohio Division of Water created Traditional navigability affirmed East Bay Hunting Club (1927)

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15 Modern Era State machinery increases (ODNR/Soil and Water Conservation Districts; Boards of Health; Ohio EPA) Federal machinery established; definition of navigable expanded Expanded judicial role extensions of reasonable use rule Munn v. Horvitz (1964) McGlashan v. Spade (1980) Changes in limits on sovereign immunity Counties and Townships given additional authority to meet obligations 2000 s- Property rights reaffirmed

16 Short History of Water Events and the Law: Reprise government) Frontier/Canal Era (natural flow, limited state Era of Industrialization/Urbanization (establishment of specified rules, conflicts with old doctrines) Progressive Era (new doctrines, ascendency of municipalities, limited state involvement) 1950-present Modern Era (new state regulatory regimes, federal regulation, explosion of judicial intervention; local governments become regulated by state and federal government)

17 Select Statutory and Regulatory Water Authorities in Ohio Today State Ohio EPA ODNR Local Cities Counties and Townships Zoning, Planning and Stormwater Permits Additional Ohio Political Subdivisions Conservancy Districts RC 6103 City and General Health Districts RC 3709 Port Authorities RC 4582 Regional Water & Sewer Districts RC 6119 Soil and Water Conservation Districts RC 1515

18 Riparian Property Rights A real property right attendant to land that allows the landowner to make use of a body of water City of Mansfield v. Balliet (1932) 65 Ohio St. 451 Examples: domestic use, irrigation, watering livestock, right of ingress and egress, power generation Littoral rights are rights to use a lake, including the right to wharf out to navigable waters. State, ex. rel. Squire, v. City of Cleveland (1943) 150 Ohio St. 303

19 Groundwater Traditionally no property right in groundwater Frazier v. Brown (1861) ( Occult Waters ) Cline v. American Aggregates (1984) (reasonable use) R.C adoption of Rest. (2d) Torts reasonable Use regime McNamara v. Rittman (2005) (property rights) Ohio Constitutional Amendment 2008, Article I, Section 19b

20 Runoff/Drainage Archaic system of dominant and subservient estates McGlashan (1980) reasonable use applies Munn v. Horvitz (1964) (laches, prescriptive rights and other legal concepts apply in the context of reasonable use regime)

21 Reasonable Use and Takings Interference with private property rights in riparian, littoral, groundwater and runoff/surface water judged under reasonable use standard Interference with property rights by a government can constitute a taking subject to compensation

22 Ohio RC Chapter 6111 Expansive Ohio statutes are adapted to implement CWA RC (A) Pollution means the placing of any sewage, industrial waste, or other wastes in waters of the state. RC (D) Other wastes means garbage, refuse, decayed wood, sawdust, shavings, bark, and other wood debris, lime, sand, ashes, offal, night soil, oil, tar, coal dust, dredged or fill material, or silt, other substances that are not sewage or industrial waste, and any other pollutants or toxic pollutants as defined in the Federal Water Pollution Control Act [CWA] that are not sewage or industrial waste.

23 Ohio RC Chapter 6111 Expansive jurisdiction and potential regulation RC (H) Waters of the state means all streams, lakes, ponds, marches, watercourses, waterways, wells, springs, irrigation systems, drainage systems, and all other bodies or accumulations of water, surface and underground, natural or artificial, regardless of depth... Except those private waters that do not effect a junction with natural surface or underground waters. RC Prohibition: No person shall cause pollution or place or cause to be placed any sewage, industrial wastes, or other wastes in a location where they cause pollution of any waters of the state [except without a permit from the director of environmental protection]

24 Civics 101 U.S. Constitution of limited, enumerated powers for federal government (Art. I, Section 8): Commerce Clause: The Congress shall have Power... [to] regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes Includes power to regulate Navigation (Gibbons v. Ogden) Supremacy Clause (Art. 6) States primacy in health, safety and welfare See, e.g., 10 th Amendment; but see, 14 th Amendment Expansion of federal regulatory and judicial jurisdiction during and after WWII overlays existing state jurisdiction

25 History of Federal Water Statutes Rivers and Harbors/Refuse Act of 1899 Federal Water Pollution Control Act of 1948 No prevention or abatement provisions Post WWII expansions of federal jurisdiction to prosecute water pollution matters in federal courts Federal Water Pollution Control Act of 1972, better known as the Clean Water Act. Clean Water Act amendments in 1977, 1987, 1990

26 Purpose and Goals Purpose: Restore and maintain the chemical, physical and biological integrity of the nation s waters Goals Eliminate discharge of pollutants into navigable waters by 1985 Protect fish and wildlife

27 Multi-Layered CWA Authorities Federal Baseline Statute Federal agency (US EPA) to oversee and implement. Delegated authority to pass regulation based on statutory directives Inherent authority to issue policy, guidance, etc. Delegated authority to states, many with pre-existing state statutes State agencies (Ohio EPA) with regulatory authority and inherent power to issue policy, guidance, etc.

28 Universe of the CWA Law Formal Federal and state statutes Federal and state rules and regulations Federal and state precedent Judicial decisions Administrative decisions Consent Decrees and Consent Orders Informal : Administrative policy, guidance, etc.

29 Structure of the CWA Federal prohibition on discharges Federal baseline for limits on discharges and water quality standards State and local regulation may be more stringent standards Federal, state, and local enforcement, including state delegation and implementation in Ohio via Chapter 6111 Local governments become regulated entities (POTWs, then stormwater)

30 Phase I & II Stormwater Regulations Applies to discharges from municipal separate storm sewer system to waters of the state MS4 does not solely refer to municipally owned storm sewer systems, but rather is a term of art with a much broader application that can include [other public entities]. [MS4] is not just a system of underground pipes-it can include roads with drainage systems, gutters and ditches O.A.C (C). [sovereign] state and political subdivisions are regulated entities

31 Phase II Stormwater Regs Operator must develop a stormwater management program with six minimum controls (OAC (C)(2)): Public education Public involvement Illicit discharge detection and elimination Construction stormwater runoff control Post-construction stormwater management Pollution prevention/good housekeeping for municipal operations

32 Local Authority for MS4 Implementation Cities Home Rule authority over sanitary rules Extensive statutory police power Counties RC 6117 (county sewer districts) RC 307 RC (contracts with other units of local government) RC (aids to units of government for water management) RC (county rules on sediment control and water management) Townships RC , RC (erosion control, sediment control and water management including Phase II stormwater compliance) RC Chapter 519 (township zoning)

33 Additional Ohio Regulatory Entities Boards of Health (RC 3709) Soil and Conservation Districts (RC 1515) Regional Water and Sewer Districts (RC 6119) Conservancy Districts (RC 6101) Watershed Districts (RC 6105)

34 A Regulated Sovereign? Local Governments (municipalities, counties and townships) as regulated entities must make business decisions based on uncertainties and ambiguities in the law But decision-making differs from businesses because local government represents an entirety of the public interest, not merely one slice. How do local governments meet all obligations while balancing all public needs & interests? It Depends What about Integrated Planning?

35 2012 Integrated Municipal Planning Framework

36 Integrated Planning Overarching Principles Maintain existing regulatory standards that protect public health and water quality Allow municipalities to balance CWA requirements to address the most pressing public health and environmental issues first Determine appropriate actions after development of a plan, which may include developing requirements and schedules in enforceable documents Encourage use of green infrastructure and innovative technologies as fundamental aspects of integrated solutions.

37 Integrated Planning Guiding Principles Meet water quality standards and other CWA obligations Maximize effectiveness of funds through phasing and selection of alternatives Incorporate effective sustainable technologies Ensure compliance with existing obligations not delayed while addressing community impacts Develop financial strategy, including appropriate fee structures Opportunities for meaningful stakeholder input

38 Integrated Planning Opportunities for Balance Can Integrated Planning provide local government chance to balance? IT DEPENDS! It depends entirely on the local entity to avail itself of the planning Identify and prioritize all CWA obligations and measures to achieve reach compliance Synchronize with other community infrastructure, development and other initiatives to achieve co-benefits It depends also on the regulated entity s ability to negotiate the opportunity to meet its obligations under a defensible timeline.

39 Thank you! Louis L. McMahon l