WET WEATHER LITIGATION AND · PDF fileWET WEATHER LITIGATION AND REGULATION Ted Boggs Vorys, Sater, Seymour & Pease LLP ... Seymour and Pease LLP. All Rights Reserved. Wet Weather

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WET WEATHER LITIGATION

AND REGULATION

Ted Boggs

Vorys, Sater, Seymour & Pease LLP

[email protected]

OHIO WATER ENVIRONMENT

ASSOCIATION

GOVERNMENT AFFAIRS WORKSHOP

MARCH 1, 2012


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


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


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)


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


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.)


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


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


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)


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)


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



• 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



• 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


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



• 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


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


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



― 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



• 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


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




• 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




• 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




• 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


Wet Weather Litigation & Regulation

QUESTIONS?

Thank You

Ted Boggs

[email protected]

Documents

WET WEATHER LITIGATION AND · PDF fileWET WEATHER LITIGATION AND REGULATION Ted Boggs Vorys, Sater, Seymour & Pease LLP ... Seymour and Pease LLP. All Rights Reserved. Wet Weather