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Clean Water Act Amendment May Enhance Local Governments’ Ability to Meet Unfunded Water Quality Mandates
March 14, 2019

By Peter D. Mohr

Local government utility agencies across the country have secured the passage of a bill that may greatly enhance their ability to maintain their wastewater and stormwater treatment systems in compliance with the Federal Water Pollution Control Act (more commonly known as the “Clean Water Act”).  On January 14, President Trump signed into law the Water Infrastructure Improvement Act (H.R. 7279).  Long in the making, and apparently approved with “overwhelming bipartisan support,” the legislation presents a rationale shift to enhance local governments’ ability to fulfill unfunded water quality mandates under the federal Clean Water Act (CWA). 
 
The Problem Sought to be Solved
 
The operation, maintenance, and repair of water and wastewater systems are paid for by ratepayers.  However, in many communities across the country, ratepayers increasingly struggle to meet rising payment obligations as water agencies are compelled to tackle growing lists of deferred maintenance and more frequent emergency repairs.  As local governments look to meet these critical obligations, the resultant rate increases often become unsustainable, often times placing disproportionate pressure on low and fixed income ratepayers.  Add the occurrence of the occasional (or worse) economic downturns, or the decline of once stable industries in certain areas of the country, and the ability for many local governments to stay in or even achieve  compliance begins to look more like a pipe dream.  
 
It is estimated that local governments invest over $123 billion per year to provide safe, reliable, water and stormwater/wastewater services.[1]  These costs account for the operation of pumps, plants, and pipe systems that, even for small communities, can represent many linear miles.  By way of example only, consider the City of Olympia, Washington, which possesses a population of approximately 50,000 people.  To only manage and carry stormwater runoff from roads and other hard surfaces to streams and other water bodies, the City’s public works department maintains over 160 miles of underground pipe (separated sewer), more than 7,400 catch basins, approximately 1,400 manholes, 167 flow control structures, and 129 stormwater treatment facilities.[2]  The annual budget to just operate (to say nothing of maintaining) that system is approximately $6.6 million per year.  Add in the additional costs for maintenance and repair, and then all of the same categories of costs to the operation of area water supply and wastewater treatment systems by other public utilities and that overall number for any municipality or region grows exponentially.
 
Given the complexity and extent of local and regional water, stormwater, and wastewater systems, and the costs incurred in operating, maintaining, and repairing them, EPA’s estimate that more than $700 billion (above existing spending levels) will have to be invested by local governments over the next 20 years to comply with current drinking water and clean water laws hardly seems farfetched.  Do the math and that equates to more than $35 billion that will need to be additionally spent each year during that period to achieve or at least get closer to universal compliance.  That money of course currently does not exist.  However necessary and well-intended, as applied, the CWA water quality standards have simply proven to be a bridge too far for many local water/stormwater/wastewater utilities.
 
The Solution Sought to be Proven
 
Historically, municipalities have sought to satisfy each CWA water quality mandate individually.  They did so not in lieu of other options, but because there was little reason to believe the CWA afforded the pursuit of more efficient or flexible alternatives.  As a result, not only were many local governments struggling to meet a variety of different water quality mandates within their water and wastewater/stormwater systems, but in trying to meet them all with limited resources, compliance often became adequate at best and, in certain cases, unattainable.  In the face of these difficulties, a more adaptive approach slowly emerged among EPA and local water agencies—an approach that, in EPA’s own words, “would avoid the unintended consequence of constraining a municipality from addressing its most serious water quality issues first.”  This approach has now been codified with the passage of the Water Infrastructure Improvement Act (the Act).   
 
The Act authorizes local governments to work with EPA to pursue the development of an integrated planning approach that allows them to, again in EPA’s words, “meet multiple CWA requirements by identifying efficiencies from separate wastewater and stormwater programs and sequencing investments so that the highest priority projects come first.”  This is reflected in  Section 3 of the Act, which expressly authorizes a municipality to seek permitting approval for an integrated plan designed to more effectively and efficiently manage any viable combination of waste streams including combined sewer overflows, sanitary sewer collection systems, municipal storm water discharge, municipal wastewater discharge, and Total Maximum Daily Load water quality requirements.  To help seek more cost efficiencies in the operation of such plans, the Act further encourages the “implementation of projects, including innovative projects, to reclaim, recycle, or reuse water; and green infrastructure.”[3]  Another practical addition is the opportunity for local governments to secure a permitted compliance schedule for any water quality-based effluent limitation that may be implemented over more than one permit term.  Such an option may bode well for local governments that often find themselves constrained by their ability to both timely secure necessary funds and execute capital projects within a typical permit cycle.
 
As EPA states on its website, “The integrated planning approach is not about changing existing regulatory or permitting standards or delaying necessary improvements. It is an option to help municipalities meet their CWA obligations while optimizing their infrastructure investments through the appropriate sequencing of work.”  So while the need for compliance still remains, at least local governments may now enjoy more flexibility to prioritize and manage their most critical water quality challenges first.  Further, the Act may encourage greater innovation in stormwater and wastewater treatment that look to mimic or interface with natural systems or take advantage of reuse opportunities among local water users.  Ideally, any such projects will prove  to be less costly to complete, operate, and maintain, thereby reaping a financial benefit, a portion of which may just be able to trickle down to some of those ratepayers. 

Thank you for your interest in this alert.  The information contained in this alert is for the general interest of our clients and friends and should not be regarded as legal advice.  If you have questions, or to obtain more information on this topic, please contact an attorney in our environmental and natural resources practice group.

Peter Mohr is a lawyer at Jordan Ramis PC with a practice emphasizing environmental, water rights, and energy law. You can contact him at (503) 598-7070 or peter.mohr@jordanramis.com.
 
[1] U.S. Conference of Mayors
[3] Section 5 of the Act amends Section 502 of the CWA to add the following definition:
GREEN INFRASTRUCTURE.—The term ‘green infrastructure’ means the range of measures that use plant or soil systems, permeable pavement or other permeable surfaces or substrates, stormwater harvest and reuse, or landscaping to store, infiltrate, or evapotranspiration stormwater and reduce flows to sewer systems or to surface waters.
 



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