Submit a Presentation and Save the Date for SESWA's Annual Conference!

Make plans to participate in the best-of-the-best in regional stormwater education this year! The 17th Annual Regional Stormwater Conference will be held October 5-7, 2022 at the Hilton Head Marriott in South Carolina. The Conference will feature an agenda developed by your peers, access to continuing education, networking opportunities with other stormwater professionals, great keynote and breakout speakers, and much more. If you would like to contribute to the agenda, it’s not too late – the deadline to submit a presentation is April 1, 2022. 

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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 today!

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New WOTUS Definitions
Kurt Spitzer, SESWA

The comment period on EPA’s recently proposed WOTUS definitions closed on February 7, 2022. (See SESWA’s comments here.)  Prior to that date, the US Supreme Court agreed to hear 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 CWA – possibly complicating EPA’s new rulemaking effort. The issue of whether jurisdiction over wetlands is narrowly or broadly interpreted was the basis of the 2006 SCOTUS decision in Rapanos and one of the primary reasons for the initiatives to revise WOTUS definitions beginning in 2014. Meanwhile, the states of Ohio and Tennessee filed supplemental Briefs in the Ohio District Court on March 10th seeking to have the 2015 WOTUS definitions declared illegal, arguing that there is a “fair prospect” that the already-repealed definitions may be upheld by another court at some point in the future. On March 29th the judge dismissed the challenge as being moot, disagreeing with the state’s arguments and noting that the court does not have jurisdiction over a rule that was already not in effect. Stay tuned for updates from SESWA as details unfold.

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Florida Legislature Challenges Local Authority
Steve Peene, Geosyntec Company

In recent years, there has been a significant uptick in bills coming out of the Florida Legislature that would pre-empt local authority. This type of pre-emptive legislation limits local governments’ ability to address water quality and other stormwater issues by restricting what cities and counties can regulate. In addition, they can increase potential liability from third-party lawsuits. Past bills have pre-empted training and licensing requirements for fertilizer and pesticide applicators, and ordinances limiting fertilizer use. The 2022 Session was no different, with the passage of Senate Bill 620, that created a new basis for businesses to file a challenge against a city or county if an 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 SB 620 (e.g., ordinances are “required” by state or federal programs) many of the exemptions are ill-defined and will be litigated in court for years to come if the Governor does not veto the legislation.

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Roadway Project Silo Busting
Cory Rayburn, Jacobs

Historically, municipal transportation projects have avoided water quality and detention requirements; however, with recent MS4 permits in Georgia clarifying these standards, road widening projects and the like are now having to integrate BMPs typically found on commercial sites into roadway designs. Stormwater BMPs, in general, can be a foreign concept for some transportation engineers. The tendency is to spend limited design resources on proving why these practices are not feasible. Sure, it's easy to show that a traditional above ground detention pond would require purchasing extra right-of-way or that previously compacted soils are not conducive for infiltration. There is, however, a commonsense middle ground for these types of projects, such as underground detention practices that can fit below a roadway shoulder or bioswales that can be integrated into a sidewalk design. Oftentimes, transportation groups within both cities and engineering companies don't coordinate closely with their site development counterparts. These silos can hinder creativity and problem solving, especially around challenging linear sites. Georgia's MS4 requirements provide a great opportunity to share ideas and lessons learned so we can bust these silos down.

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Low-Cost Flood and Surface Water Quality Sensors
Daryl Hammock and Dave Canaan, Charlotte-Mecklenburg, NC

Charlotte-Mecklenburg Storm Water Services (CMSWS) entered a partnership with the United States Department of Homeland Security, Science & Technology Directorate (DHS S&T) in 2018 to help protect the country by researching and organizing scientific, engineering, and technological resources. The goal was to design technology to reduce fatalities from flooding events, reduce property losses from future flood events, support community flood resiliency, and to provide flood predictive analytic tools for FEMA and other stakeholders.

The scope of this project was to investigate community-level flood risk and reduction planning tools and methodologies and low-cost flood sensors integration with local flood information and notification systems, in an efficient, uniform, reproducible, and cost-effective way.

All data reporting capabilities for each sensor type were tested with a focus on data quality, data reporting capacity, sensor reporting interference, and sensor calibration.

Another key outcome of the partnership was the creation of a Flood Risk Assessment and Reduction Community Guidebook. The Guidebook provides a “data-driven framework” that can be used by other communities to improve community resilience. Since 2021, CMSWS has experimented with cameras to not only view streams during storms, but also to potentially identify pollution sources reaching creeks during ambient conditions. To learn more, visit the Technical Resources webpage. 

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EPA Proposes Revised Draft of Financial Capability Assessment Guidance; Public Comments Sought

In February, the US Environmental Protection Agency (EPA) released its updated Financial Capability Assessment (FCA) Guidance in the Federal Register and is seeking a new round of public comments by April 25, 2022. In light of growing affordability challenges across water, wastewater, and stormwater, NACWA, along with the American Water Works Association (AWWA) and the Water Environment Federation (WEF) prepared summary comments in anticipation of EPA revisiting its dated 1995 and 1997 FCA guidance.

Over the past several decades, communities throughout the United States have experienced significant increases in the cost of providing water, sewer, and stormwater services. Factors contributing to this escalation include challenges associated with aging infrastructure, climate change, increasing regulatory mandates, population declines in urban centers, population growth and shifts to water-strapped areas, and declining demand resulting from conservation efforts, among others. As a result, increased utility costs have resulted in significant increases in water and sewer rates and associated household bills.

Updated FCA Guidance was originally issued in January 2021 by the outgoing Trump Administration and was drafted in close coordination with the water sector and has already been subjected to extensive public comment. However, based on additional comments from within EPA and from external stakeholders, the Biden Administration has reissued its FCA Guidance with significant changes, including a key metric that underlies the entire assessment methodology.

The recently revised draft guidance retains consideration of impacts on the lowest wage earners and prevalence of poverty in a community – key elements that all stakeholders and Congress believe must be part of any new methodology – but has moved away entirely from looking at cost impacts on individual households. Rather than look at costs as a percentage of income (whether that is lowest quintile income, as proposed in January 2021 or the 2% median household income (MHI), as used in the 1997 guidance), the new approach will instead assess a community’s lowest quintile income and how it compares to a national average.

For example, if a community’s lowest quintile income is more than 25% below the national lowest quintile income, the metric would be scored as ‘weak’. The Agency is seeking comment on two options for including this new lowest quintile income element whether it should combine it with poverty indicators to produce a single metric, the Lowest Quintile Poverty Indicator (LQPI) or considering it as a separate metric, the Lowest Quintile Income Indicator (LQII), together with a Poverty Indicator (PI). Only one option will be used in the final document.

In either case, the new metric(s) will be combined with the exiting Residential Indicator and Financial Capability Indicator in an expanded matrix to provide the final FCA score.

The final score or finding of the FCA methodology in this new draft, however, is also influenced by an entirely new requirement, the Financial Alternatives Analysis. If the community’s initial LQPI score, for example, equals a medium or high impact, the utility will be required to perform a Financial Alternatives Analysis before any FCA determination is made.

The new Guidance notes that the analysis should “document whether the community has considered all feasible steps to address impacts to the lowest quintile” as identified in a new Appendix to the Guidance, including the “use of variable rate structures, CAPs [community assistance programs], and applications for grants or subsidies from the CWSRF.” This is a new requirement being imposed on utilities with no information on how the Agency will review the analysis or determine whether the utility has done enough to warrant additional schedule relief.

EPA is also proposing major changes to the scheduling benchmarks, effectively capping all schedules at 20 years with a provision to extend that to 25 years based on undefined ‘additional considerations.’

As in the January 2021 draft FCA Guidance, EPA continues to provide an alternative to the matrix calculations described above. This alternative allows utilities to use financial and rate model analysis and conduct cash flow forecasting to determine the revenue necessary to cover costs associated with the program or new requirements and what impacts those revenue requirements will have on individual households throughout the entire project schedule. Additional information including costs of stormwater can be included and may be considered when negotiating the length of an implementation schedule for a community to meet Clean Water Act obligations.

Inclusion of this type of analysis was a top recommendation of the water sector groups and is what many utilities have used over the last several years to successfully counter EPA’s basic matrix, MHI-based calculation. The formal inclusion of this alternative in the FCA Guidance is significant. However, EPA is adding a requirement for utilities using this approach to also calculate their LQPI and to conduct the Financial Alternatives Analysis if a medium or high impact is indicated.

If you have any questions, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs.

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