The American Society of Civil Engineers (ASCE) recently released an updated assessment of the nation’s infrastructure. Their last report card, released in 2009, gave U.S. infrastructure a cumulative grade of D. This year, the grade improved to D+.

The 2013 Report Card for America’s Infrastructure reviews 16 categories, including water, wastewater, hazardous waste, and energy. Solid waste received the highest grade: B-. Inland waterways and levees received the lowest: D-. No single category received a lower grade than four years ago, but none made significant improvement either. Grades are assigned based on the following criteria: capacity, condition, funding, future need, operation and maintenance, public safety, resilience, and innovation.

Focus on Increasing Funding
The low scores in most categories stem from delayed maintenance and insufficient investment. The ASCE estimates that an investment of $3.6 trillion is needed by 2020 to fund maintenance and improvements to essential infrastructure. Based on current trends, the estimated funding gap is more than $1.6 trillion.

State by State Reports 

For the first time, the report includes infrastructure information for all 50 states. For example, among the key facts listed for Georgia, the state has 484 high hazard dams and only 4% of state regulated dams have Emergency Action Plans. Pennsylvania has nearly twice as many high hazard dams (852), but 96% of them have Emergency Action Plans.

The report estimates that both Maine and neighboring New Hampshire need approximately $1 billion in wastewater infrastructure improvements over the next 20 years. New York and New Jersey are reported to need about $30 billion each to fund wastewater needs. One positive for the “Pine Tree State” was its rank of 11 in production of renewable energy. Massachusetts, by comparison, was ranked 35th, New Hampshire 32nd, Connecticut 44th, New Jersey 46th, and New York a very respectable 4th. 

There’s an App for That 

The complete report card, state by state reports, and more information is available at www.infrastructurereportcard.org. The report can also be accessed via an app for smartphones and tablets. 

On January third, a federal court in Virginia ruled that the U.S. Environmental Protection Agency (EPA) is not authorized under the Clean Water Act (CWA) to impose a flow-based total maximum daily load (TMDL) for Accotink Creek in Fairfax, VA.

This TMDL used stormwater flow rate as a surrogate for sediment loading to the stream. The court decided the case in favor of the plaintiffs, Fairfax County and the Virginia Department of Transportation, who sued EPA on the basis that stormwater runoff is not, itself, a “pollutant” as defined by Congress in the CWA. The court found “Congress’s intent to be clear and unambiguously expressed by the language” of the CWA, stating that “EPA’s authority does not extend to establishing TMDLs for nonpollutants as surrogates for pollutants.” You can read the CWA definition of a pollutant here and the full court decision here.

How will this impact municipal, industrial, and construction stormwater permits and implementation? What about local authority over stormwater? Or already finalized TMDLs? The regulated community is secretly (or not so secretly) hoping that this case will have an impact on stormwater permit conditions, reducing the financial burden of the program through EPA’s generally weakened authority over stormwater.

Not being lawyers, we can’t predict the nuances that may ripple through the legal environment, but upon reviewing the court opinion and talking to regulators, we don’t think the impact on permitees will be dramatic. In our opinion, the scope of this ruling has a fairly narrow focus, impacting EPA’s authority over TMDLs that use “nonpollutants as surrogates for pollutants.” For example, this ruling will likely impact pending flow-based TMDLs in Missouri and Vermont. There is also the potential to impact impervious cover TMDLs. It may also impact the status of EPA’s November 2010 memo on stormwater TMDLs, which recommends using flow as a surrogate for other pollutants or impairments.

If you have questions about how this might impact your community, please contact us.

Autumn is officially here, and just like last year, it’s not too soon to start thinking about your stormwater Annual Report. Yes, you submitted a Year 9 Phase II Small MS4 Annual Report last May and next May feels a long way off, but it’s more than halfway through Permit Year 10.

EPA Region 1 has stated new Small MS4 General Permits will not be finalized anytime soon, which means a Year 10 Annual Report will be due to EPA and MassDEP by May 1, 2013. Click here for EPA’s most recent Small SM4 General Permit Update. 

Now is a great time to check progress on your community’s planned Permit Year 10 stormwater activities. Even though EPA doesn’t appear to be taking the permits seriously, it is increasing focus on municipal stormwater programs, with enforcement activities and comprehensive audits continuing at a relatively high rate, including leveling fines for late or missing Annual Reports. That means it is more important than ever to complete Annual Reports on time. You may also find that as summer construction season winds down, there’s more time to catch up on paperwork and documentation.

What should you do? 

1. Look up your 2012 (Year 9) Annual Report. Most reports are available on EPA's 2003 Permit Archives website. 
2. Review the Annual Report. What did your community promise to do this year? Are you on track? What have you completed and when? What's left to do? 
3. Gather and organize paper records documenting all completed stormwater activities. 
4. Make every effort to complete activities planned for Permit Year 10 by March 31, 2013 and add documentation to your files. 

If you have any questions about EPA’s Stormwater Program, General Permit Requirements, or want guidance on your local stormwater program, please contact us. For resources to help with Permit Year 10 activities and lots more, please visit our Community for Smarter Stormwater Solutions.

The EPA recently announced a new Integrated Municipal Stormwater and Wastewater Planning Framework: EPA Press Release. Here’s some additional context for their approach.

How does it work?  

EPA's new framework provides guidance on the development of a logical plan to address human health and water quality objectives of the Clean Water Act. The concept is to create one plan incorporating National Pollutant Discharge Elimination System requirements for wastewater treatment and collection systems, Municipal Separate Storm Sewer Systems (MS4s), and Combined Sewer Overflows / Long Term Control Plans. Combining all CWA permits into one plan allows municipalities to prioritize the work needed to comply. 

Elements of an integrated plan include:  

• a description of existing water quality, public health, and regulatory requirements;
• a description of stormwater and wastewater systems; 
• a communication and stakeholder plan; 
• an alternatives analysis and implementation schedule; 
• a method to measure success;
• incorporation of "green" and "sustainable" technologies; and 
• a process to improve the plan throughout implementation.

Opportunity to Maximize Funds   

New stormwater regulations, inflow/infiltration reduction needs, new NPDES permit requirements (especially those related to nutrients), and wastewater treatment plant improvements are all opportunities to create and leverage an integrated plan. Using this approach will help you get the biggest bang for your buck.

An Integrated Plan is Underway  

Woodard & Curran is currently initiating work on one of the first integrated plans in EPA Region 1 (New England) for the Town of Durham, NH and the University of New Hampshire. These proactive stakeholders recognize the value and cost-savings of addressing their stormwater and wastewater needs in one consolidated plan.

An informational webinar from EPA is forthcoming and will be found at the following link when it becomes available: EPA Webcasts.

When Senator Edmund Muskie led efforts to draft the Clean Water Act almost 40 years ago, large rivers like the Androscoggin in his home state of Maine, polluted by industrial discharge, were his inspiration. Today, since point sources have been subject to stringent technology-based effluent limitations for over 30 years, a major source of water pollution comes from the pollutants that stormwater picks up while flowing across our built landscapes. Although point sources are still a major focus of the Clean Water Act, more and more attention is being paid to stormwater and the water resource impacts that stormwater causes. Increasingly, this is requiring property owners to think about costs and the implications of these new regulatory requirements.

Here are three snapshots of recent EPA actions in Region 1 to address water bodies thought to be impaired primarily by stormwater, and the early indication of costs to comply.

Long Creek, Maine

Long Creek is an urban impaired stream with a watershed of approximately 3.5 square miles in and around South Portland, Maine. The watershed is comprised of approximately 30% impervious cover, which has led to an inability to achieve its designated water quality standards. EPA determined, and various studies have corroborated, that stormwater discharges from impervious surfaces equal to or greater than one acre were causing or contributing to water quality violations. This finding allowed EPA to exercise its Residual Designation Authority and require this category of dischargers to obtain NPDES permits. With this designation, approximately 90% of the impervious area in the Long Creek watershed is now under the permitting jurisdiction of the NPDES program. The Long Creek Watershed Management Plan (now a part of the general discharge permit in Long Creek) estimates the costs of the first phases of restoration to be close to $15 million or about $4.3 million per square mile. These costs will be shared by the regulated entities including municipal and state agencies.

Charles River, Massachusetts
In contrast to the relatively small Long Creek watershed, the Charles River drains a watershed area of 310 square miles. However, both watersheds share the similar characteristics of urbanized landscapes and the subsequent impairment largely because of polluted stormwater runoff. In exercising its Residual Designation Authority, EPA determined that stormwater discharges from property containing impervious surfaces equal to or greater than two acres cause or contribute to water quality violations and are therefore subject to NPDES stormwater permitting requirements. EPA has issued a draft NPDES General Permit for three towns in the Charles River Watershed, which would require all impervious surfaces of two or more acres to implement a comprehensive Stormwater Management Plan and a Phosphorous Reduction Plan. Preliminary estimates of cost as developed by EPA in 2009, indicates that the structural management cost of regulated facilities within this watershed is between $60 and $90 million for the 48 square mile regulated watershed area or between $1.3 and $1.9 million per square mile.  These are only construction costs and do not include design, legal, or administrative costs of implementation.

Bartlett, Centennial, Englesby, Morehouse and Potash Brook Watersheds. Chittenden County, Vermont
On July 19, 2009, the Vermont Department of Environmental Conservation gave notice that it was exercising Residual Designation Authority for stormwater discharges to five watersheds in Chittenden County that fail to meet water quality standards, each of which has an EPA-approved TMDL. As was the case in the Long Creek and Charles River watersheds, the cause of impairment in Chittenden County was polluted stormwater runoff that resulted from urbanization and impervious surfaces. The Residual Designation applies to all stormwater discharges from impervious surfaces that are not covered by the MS4 General Permit or another NPDES permit. This is the broadest use of Residual Designation to date, as it applies to every contributor of stormwater, without a size threshold. In order to permit these dischargers, the Vermont Agency of Natural Resources intends to issue a general stormwater permit for dischargers brought under NPDES permitting authority as a result of the designation. Preliminary estimates of compliance costs as reported by the Vermont Agency of Natural Resources are approximately $45 million for the 11 square mile area or $4.12 million per square mile.

Implications for the rest of the country
These examples show that previously unregulated properties that discharge stormwater into impaired waterbodies can easily come within the scope of NPDES permitting requirements and at a significant new cost to private landowners, municipalities and state agencies. These New England developed watersheds are no different from thousands of urbanized watersheds across the country in terms of land cover or impervious cover, it is a reasonable expectation that retroactive and comprehensive stormwater compliance may cost between $2 and $4 million per square mile in developed areas in the first phases of implementation. Are we witnessing the next major phase of the Clean Water Act? Is this the future of watershed management in urbanized areas? Will this approach be effective? More on this topic soon.

Contributed by our Stormwater team