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The EPA’s Integrated Stormwater and Wastewater Planning Approach Framework: What does your municipality need to know?

On June 12, the Environmental Protection Agency unveiled its final Integrated Stormwater and Wastewater Planning Approach Framework. The framework is intended to provide EPA regional offices and state governments with guidance in helping cities plan wastewater and stormwater infrastructure improvements that are needed to prevent sewer overflows and other pollution releases. The framework identifies the operating principles and essential elements of which municipalities must be aware when creating a voluntary integrated plan under the Clean Water Act (CWA).

Integrated plans

An integrated plan is intended to be a municipality’s starting point for the development of appropriate implementation actions. According to the framework, an integrated plan can provide information to inform permit and enforcement processes. It can also support the development of conditions and requirements for permit and enforcement orders. As such, under the framework, an integrated plan should identify:

  • the respective municipality’s relative priorities for projects;
  • a description of how the proposed priorities reflect the relative importance of adverse impacts on human health and water quality; and 
  • the municipality’s financial capability.

Benefits of the framework for municipalities

The major benefit underlying the framework is that it allows municipalities to modify permits, plans and enforcement orders to allow better management of stormwater and sewer overflows. As such, it gives municipalities more flexibility to modify plans to suit their needs, rather than being locked into long-term plans.

Flexibility through qualitative considerations

The EPA has incorporated flexibility into the framework by broadening the qualitative consideration taken into account when reviewing the economic circumstances of a city or town. The framework articulates that a community’s assessment of financial strategy and capability should take several factors into account, including:

  • current sewer rates;
  • stormwater fees and other revenue;
  • planned rate or fee increases; and 
  • any relevant factors impacting the utility’s rate base, including the costs, schedules and anticipated financial impacts to the community of other planned stormwater or wastewater expenditures.

This is an expansion in the number of qualitative considerations the EPA will weigh in assessing a municipality’s ability to finance infrastructure improvements.  

Incorporation of adaptive management approaches

The EPA also built flexibility into the framework by adopting adaptive management approaches. The framework supports the use of adaptive management approaches to facilitate a utility’s ability to comply with permit and enforcement requirements. Most importantly, this allows plans to be amended if what was originally agreed to becomes inefficient or nonsensical. Inclusion of the adaptive management language will likely be welcomed by municipalities, as it shows the EPA understands that technological breakthroughs or budgetary constraints can cause circumstances affecting a project to change.

Inclusion of green infrastructure role

The framework articulates the use of green infrastructure approaches and related innovative practices as a means of meeting the requirements of the CWA. Benefits of green infrastructure approaches include lower cost than more traditional infrastructure, increased sustainability and reduced impacts on the environment.

Potential drawbacks

Several potential drawbacks present themselves alongside these benefits. Municipalities must be aware of these issues as they develop integrated plans.

First, the framework does not limit the use of enforcement mechanisms as infrastructure plans are implemented. A recent panel discussion of the U.S. Conference of Mayors revealed that cities have ongoing frustration with the way the EPA is implementing the CWA. The cities contend that the “EPA should be partners, not prosecutors.” The EPA largely ignored this sentiment, as the framework allows for the utilization of both permits and enforcement actions in the integrated planning approach. In support of this position, the draft framework references the decision in In Re: Star-Kist Caribe, Inc. as the foundation for its decision to address pollution control issues with enforcement actions.

Additionally, the framework does not set a definitive cap in relation to the maximum cost of infrastructure upgrades. This conflicts with the discussion of the U.S. Conference of Mayors, which demonstrated that cities want an imposed cap on overall water compliance costs. The framework does, however, cite the EPA’s “CSO Guidance for Financial Capability Assessment and Schedule Development” (FCASD) as an authority that municipalities can use for further guidance when resolving a Combined Sewer Overflow (CSO). Application of the FCASD could be interpreted as implying that municipalities should be prepared to pay up to 2 percent of a service area’s median household income to resolve CSOs.

Going forward

Municipalities should not suspend current permit and implementation activities while an integrated plan is being developed. It also is important to note that state permitting officials are expected to initiate discussions with the EPA that address issues in conjunction with integrated plans and ongoing federal enforcement actions, as well as situations in which a permit may potentially present a novel approach.

The EPA has committed to publishing practical examples of how the framework can be implemented by municipalities on its website as they become available. The EPA says it will also continue to afford opportunities for stakeholder input during the implementation of the framework, as well as develop case studies and best practices to provide additional support to municipalities.

If you have questions about how the framework may impact your municipality and its integrated plan, please contact a member of the Environmental and Natural Resources Practice Group at Bingham Greenebaum Doll LLP.

DISCLOSURE REQUIRED BY CIRCULAR 230.  This Disclosure may be required by Circular 230 issued by the Department of Treasury and the Internal Revenue Service.  If this article, including any attachments, contains any federal tax advice, such advice is not intended or written by the practitioner to be used, and it may not be used by any taxpayer, for the purpose of avoiding penalties that may be imposed on the taxpayer.  Furthermore, any federal tax advice herein (including any attachment hereto) may not be used or referred to in promoting, marketing or recommending a transaction or arrangement to another party.  Further information concerning this disclosure, and the reasons for such disclosure, may be obtained upon request from the author of this article. Thank you.



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