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© Copyright 2010, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
WET WEATHER LITIGATION
AND REGULATION
Ted Boggs
Vorys, Sater, Seymour & Pease LLP
OHIO WATER ENVIRONMENT
ASSOCIATION
GOVERNMENT AFFAIRS WORKSHOP
MARCH 1, 2012
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
MS4 Permit Cases
• NRDC v. Los Angeles County (9th Cir.)
― MS4 Permit Covers 84 Cities, County and Flood
Control District
― Many Communities/Land Owners/Industries
contribute flow and pollutants to the MS4
― Up stream drainage flows from channelized portion
into natural portion of stream
― Channels and stream are one big drainage system
― MS4 Permit prohibits discharges that cause or
contribute to WQS violations
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
MS4 Permit Cases
― Compliance monitoring required at location in the
channelized portion before flowing out of the
concrete channel into a natural part of the river
― The two “water bodies/systems” are connected
― MS4 Permittee own/operate the location (concrete
channel) where the flow enters the natural river
― Pollution in the storm water exceeded WQSs at the
monitoring point
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
MS4 Permit Cases
― Is the MS4 Permittee liable for the exeedances
caused by pollution deposited in the drainage
system upstream of its MS4?
― Court of Appeals: yes, MS4 Permit holder is liable
― U.S. Supreme Court Deciding whether to take case
― Is the flow from the MS4 to the river really a
“discharge” ?
― Jan. 2012 Court asked Obama Administration to
file a brief (not filed yet)
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MS4 Permit Cases
• Conservation Law Foundation v. Boston W&S
Commission (U.S. D. Mass.; Dec. 21, 2010)
― Decision on Motion for Summary Judgment
― Court upheld MS4 Permit condition requiring
permittee to select measures to meet WQS
prohibitions so as to not cause a violation of WQSs
― USEPA intervened – evidence of WQS exceedances
was presented
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
MS4 Permit Cases
• Fact question still to be decided: whether MS4
permitee has implemented controls and measures to
reduce storm water discharges to the “Maximum
Extent Practical” (MEP) as required by CWA and MS4
Permit
• Also: whether the MS4 Permitee is responsible for
pollutant sources which may be outside of its legal
authority to regulate (roadways, flood control projects,
pesticide/fertilizer, industrial, etc.)
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MS4 Permit Cases
• Rosemere Neighborhood Assoc. v. Clark
County, Washington (Case C11-5213RBL)
― MS4 Permit requires flow control standard be
adopted (certain post-development flows must be
equal to or less than pre-development flows)
― County failed to adopt the flow standard applicable
to new development and redevelopment
― Late 2011 Court enjoined county from issuing
development permits that violated the MS4 permit
condition
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
MS4 Permit Cases
• Washington DC MS4 Permit (October 7, 2011)
on appeal before the USEPA EAB
― Safe Harbor (compliance w/performance std and
permit provisions shall constitute adequate
progress towards compliance with WQSs & WLAs)
― Long Term Standard: integrate SW mgmt at the
site, neighborhood and watershed level to mimic
pre-development site hydrology through on-site
retention measures
― SWMP determined to comply with MEP
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
MS4 Permit Cases
• TMDLs Using Flow as “surrogate” parameter
to control unidentified source of impairment
(such as sediment) might require MS4
Permitees to reduce flow from their MS4
― City of Columbia, MO, Boone County & Univ of
Missouri (suit filed June 2011)
― City of Springfield, MO (suit filed Sept. 2011)
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Industrial Storm Water Permit Case
• State of Washington Puget Sound Litigation –
Dozens of industrial SW dischargers sued by
environmental groups alleging violations of
the Industrial SW General Permit
― Benchmark exceedances (Zn & Cu targeted)
― Failure to install last resort treatment
― List of Violators obtained from State’s website
― Puget Soundkeeper v. BNSF Railway Company
($1.5 M donation/$1M fees/install remedies)
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Wet Weather Sewer Back Up Cases
• Essman v. City of Portsmouth – 2010 Ohio
4837 - was accepted by the Ohio Supreme
Court in 2011 for decision, but was settled
• Issue: City’s decision to raise or lower a weir
gate at a diversion chamber at WWTP –
lowering it during wet weather causes
incoming flows to back up into sewer main
and sometimes homes, but prevents bypasses
to the river
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Wet Weather Sewer Back Up Cases
• City is potentially liable for decisions in
operating the weir gates if there was evidence
of negligence (none was found here)
• The Essman court held City could not be held
liable for deciding not to upgrade the sewer
system – upgrade is not maintenance,
operator or upkeep (differs from H. Hafner v.
MSDGC 1997 decision)
• Good language for Cities in Essman
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
Wet Weather Sewer Back Up Cases
• Inland Products, Inc. v. City of Columbus –
2011 Ohio App.3d 740 (2011)
― Isolation/shut off gates inoperable during storm
caused flooding of business – 4.94”/3 days; river
crested at a 37-yr river stage
― Appeals Court: actions taken to operate sewer
system whether pursuant to or in deviation of an
operational plan are not protected by sovereign
immunity
― Consistent with MSDGC & Portsmouth cases
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Wet Weather Sewer Back up Cases
― Jury trial Feb. 2012 - City found negligent in
failing to repair or maintain isolation gates;
negligent in operating the sewer system on the day
in question
― Damages awarded for lost revenue and loss of value
in sale of the business
― Trial court allowed immunity for City’s
development of Wet Weather Operational Plan,
Interim Interconnector SOP, City’s failure to
perform a hydraulic grade line analysis when
developing the WWOP and SOP and for not
redesigning the sewer system in response to
construction of a flood wall
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
Wet Weather Sewer Back Up Cases
• Coleman v. Portage County Engineer - 2010
Ohio 6255; Storm Water Pipe/Flooding Case
― Recurring flooding at undersized culverts
― Issue: whether the County Engineer was negligent
in the maintenance of the storm sewer system (not
protected from sovereign immunity)
― Issue: whether failure to upgrade a known
inadequate storm sewer system is a type of failure
to maintain or upkeep
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Wet Weather Back Up Cases
― Appeals Court: failure to maintain includes failure to
inspect, clean, repair, and otherwise ensure installed
system is operating properly
― Followed MSDGC, 118 Ohio App.3d 792 (1997): failure
to upgrade 1950’s sewers despite 11 yrs of notice of
inadequacy is a failure to maintain or upkeep the
sewer (WWTP sluice gate closed during major wet
weather in 1994 caused back up overflows through
MHs and flooded two acres 20-30” deep)
― Ohio Supreme Court deciding whether to case
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Governmental Flooding Case
• Doner v. Zody, 130 Ohio St.3d 446 (2011) –
ODNR modified dam spillway and lake draw
down procedure – caused intermittent flooding
of downstream farmland – flow modeling
inadequate
― Public Authorities can be compelled to appropriate
property when an involuntary taking occurs
― Any direct encroachment upon land that subjects it
to a public use that excludes or restricts a land
owner’s dominion and control is a taking and
compensation is required
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Governmental Flooding Case
― Govt. induced flooding is either intended or is the
direct natural or probable result of the govt.
authorized activity and is either a permanent
invasion or creates a permanent liability because of
intermittent but inevitably recurring overflows
― Gilbert v. Cincinnati – 125 Ohio St.3d 385 (2010)
City required to initiate appropriation case to pay
land owner for temporary physical taking caused
by 79 SSOs over 10 yr from a bypass at an
inadequate regional pump station
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Governmental Flooding Case
• Could holding could be applied to large green
infrastructure CSO projects or storm water control
structures with operating procedures?
• Dikes, weirs and impoundments
• Two potential liability paths: governmental taking
and negligent operation/maintenance
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USEPA Proposed Integrated
Planning & Permitting Framework
• Burdens increasing on communities to
implement Clean Water Projects (separate
sewer systems, CSOs, MS4, WWTPs)
• IP2: goal to allow communities to propose an
“integration plan” for CWA projects to
increase efficiencies for overlapping and
competing requirements, including how best
to make capital investments and sequencing of
work
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USEPA Proposed Integrated
Planning & Permitting Framework
• Communities will be able to balance CWA
obligations and address most pressing public
health or environmental protection issues first
• Incorporate flexibility and innovation
• Improve sustainability while decreasing cost
• Maintain existing regulatory standards
• USEPA just completed listening sessions
• Comments due February 29, 2012
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USEPA Proposed Integrated
Planning & Permitting Framework
• Five Planning Elements Required:
― Description of the WQ, HH and regulatory issues
― Description of existing systems, incl. deficiencies
― A process for public participation
― A process for alternative analyses, selection of final
approach, schedules, asset mgmt., financial
strategy, and capability assessment
― Performance criteria and measures of success, incl.
monitoring program & effectiveness evaluation
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USEPA Proposed Integrated
Planning & Permitting Framework
• Implementation through permits and
enforcement (consent decrees/orders)
• Issue: length of time and compliance schedules
• Issue: determining minimum measures,
standards and criteria for success
• Issue: including non-enforcement related
innovative projects in a binding enforcement
mechanism with schedules
© Copyright 2009, Vorys, Sater, Seymour and Pease LLP. All Rights Reserved.
Wet Weather Litigation & Regulation
QUESTIONS?
Thank You
Ted Boggs