Cost/Benefit Analysis of CSO Control Utilizing Green Infrastructure

The overflow of sewers that transport both stormwater and human waste is the bane of municipalities throughout the United States and elsewhere in the world. Traditional methods (so-called grey infrastructure) of controlling combined sewer overflows, such as huge containment tunnels, are extremely expensive.  

In recent years, municipalities, state agencies and the U.S. Environmental Protection Agency (EPA) have been studying and implementing green infrastructure (GI), sometimes referred to as low impact development (LID), as an alternative means of controlling sewer overflows.

An August 2013 study by EPA identifies instances of economic benefit derived from such alternative means, as well as methods of evaluating those benefits.

http://water.epa.gov/polwaste/green/upload/lid-gi-programs_report_8-6-13_combined.pdf

“The case studies were selected to represent a variety of analysis methods in different geographic areas of the United States, for different types of municipal programs. The case studies highlight locations where LID/GI applications, in combination with grey infrastructure, were found to be economically beneficial...”

“...Those entities that have begun to analyze their green infrastructure programs and practices
in order to ascertain the cost effectiveness of green infrastructure in comparison to 
grey infrastructure or hybrid systems have used different types of economic analyses, depending upon their objectives, resources, or other considerations.”

For example, the Philadelphia Water Department refers to its study “...as ‘triple-bottom-line’ (TBL) analysis, a term that has become recognized in municipal asset management to emphasize the financial-social-environmental aspects of a complete benefit-cost analysis, rather than only the financial.”

This is a long, comprehensive document.  With the appendix, it runs well over one hundred pages. Nevertheless, political leaders in southeast Michigan and appointees to the new Great Lakes Water Authority would be well advised to study it closely.

OCWRC Answers Blogger's FOIA Appeal

About a month ago, I made a FOIA request to the Oakland County Water Resources Commissioner (OCWRC), as well as the Michigan Department of Environmental Quality (MDEQ), for "...a copy of all records created or obtained by [agency] within the timeframe of January 1, 2014 to present that contain a rationale for the difference between the strict water quality and erosion control enforcement in MEAs [municipal enforcement agencies] and the lax enforcement by OCWRC in its role as CEA [county enforcement agency], as that rationale relates to Michigan waters and the public trust."

Earlier this month, OCWRC responded, "...documents understood to be requested... do not exist..." (emphasis added.) I took that to mean that there was no logical explanation for the double standard in water quality enforcement. But I had requested records, not merely documents. It occurred to me that OCWRC's response was, at least in part, incomplete or non-responsive to my request, so I appealed (see this blog, December 4), offering a little more rope with which to fashion a noose.

The appeal drew a letter from an attorney for the Commissioner, the essence of which was "... there are no records maintained by this office that satisfy your request."

Of course, such a record may have pre-dated January 1, 2014, but I seriously doubt it.

MDEQ: No Rationale for Silt Runoff Disparity

In its FOIA response (sent December 9) below, the Michigan Department of Environmental Quality (MDEQ) seems to concede that it doesn't have a rationale for the double standard it maintains to control silt running off urban construction sites.  

Such runoff clogs sewers, adds to the burden of wastewater treatment plants and, during and after heavy rains, further pollutes combined sewer overflows (CSOs) that contaminate lakes and streams such as the Clinton, Rouge, Huron and Detroit rivers and lakes St. Clair and Erie.

As shown recently on this blog, the Oakland County Water Resources Commissioner (OCWRC) appears to have made the same concession.

The state permits qualifying municipalities to prohibit silt running from construction sites into city sewers.  These cities are referred to as municipal enforcement agencies (MEAs).  

Cities that don't qualify for such independent enforcement have construction site runoff managed by their county, which is referred to as the county enforcement agency (CEA).  State law would seem to limit county control of silt runoff to construction sites within 500 feet of natural water bodies or to sites larger than one acre, so building contractors under CEA supervision don't face a blanket prohibition to discharging silt into city sewers.

Either (1) the state legislature should correct this disparity in the statutes, (2) MDEQ should exercise its rule-making authority to require the higher MEA standard applicable to all construction sites, or (3) the courts should be asked to impose the same high standards across the board in furtherance of existing federal and state clean water laws.

*****  *****   *****

          Dear Mr. Lang: 

 SUBJECT:  Request for Disclosure of Official Files – Water Resources Division  

This notice is issued in response to your request for information under the Freedom of Information Act, 1976 PA 442, as amended (FOIA), received on November 13, 2014. You have requested the following information: “A rationale for the difference between the strict water quality and erosion control enforcement in MEAs and the lax enforcement by OCWRC in its role as CEA, as that rationale relates to Michigan waters and the public trust” (FOIA 0832-15).  

The purpose of the FOIA is to provide the public with access to existing, nonexempt public records of public bodies.  Your request to examine or receive a copy of the documents described above is denied.  

To the best of this public body’s knowledge, information, and belief, the public record does not exist under the name given by the requester, or by another name reasonably known to the public body.  

Under section 10 of the FOIA, the DEQ is obligated to inform you of the following:  

1)   Appeal this decision in writing to the Director of the Department of Environmental Quality, P.O. Box 30473, Lansing, Michigan 48909-7973.  The writing must specifically state the word "appeal," and must identify the reason or reasons you believe the denial should be reversed.  The head of the department, or his designee, must respond to your appeal within 10 days of its receipt.  Under unusual circumstances, the time for response to your appeal may be extended by 10 business days.  

2)   File an action in the appropriate court within 180 days after the date of the final determination to deny the request.  If you prevail in such an action, the court is to award reasonable attorney fees, costs, and disbursements, and possible damages.   

[signature omitted] FOIA Coordinator  

Department of Environmental Quality 

800-662-9278 

deqfoia@michigan.gov 

The DEQ strives to continually improve its customer service to FOIA requesters.  To provide input for improvements to the FOIA process, please complete this survey:https://www.surveymonkey.com/s/foiaprocess 

A Peek Inside MDEQ's FOIA Process

A recent FOIA inquiry had to do with the state's double standard for the control of silt runoff from urban construction sites, about which a number of posts have appeared on this blog. My emails below were sent on Monday, December 8, with copies to various MDEQ officials and the Governor's office.

***   ***   ***

Environmental Assistance Center: 

On November 12, 2014, I made a FOIA request to the MDEQ FOIA Coordinator.  The coordinator's initial response is below, as is my email to her today.  Please assist me in determining what's going on in your department and when I can expect compliance with the Michigan Freedom of Information Act.

 -- Jim Lang 

*****   *****   ***** 

Dear Mr. Lang:  

SUBJECT:  Request for Disclosure of Official Files  

This notice is issued in response to your request for information under the Freedom of Information Act, 1976 PA 442, as amended (FOIA), received on November 13, 2014. You have requested information that you describe as “A rationale for the difference between the strict water quality and erosion control enforcement in MEAs and the lax enforcement by OCWRC in its role as CEA, as that rationale relates to Michigan waters and the public trust.”  

Please refer to the following tracking code if you have any questions: FOIA 0832-15.  

Your request will be forwarded to the following divisions: WRD*  

You will be contacted by the division(s) on or before: 11/20/2014  

The Department of Environmental Quality (DEQ) provides online access to several databases that may contain the information you need.   Please click here for the website. 

[signature omitted] FOIA Coordinator  

Department of Environmental Quality 

800-662-9278 

deqfoia@michigan.gov  

*****   *****   *****

Ms. [coordinator's name omitted]:

To date [12-8-14], I haven't  received any mail of any kind concerning FOIA Request #0832-15 from your Water Resources Division, contrary to your statement on December 3d, "the information was sent from WRD yesterday." 

I believe your false representation and WRD's failure to comply with the your first response and the statute qualify as a denial.  I'll proceed as I think most appropriate.

 -- Jim Lang

***   ***   ***

Tomorrow: MDEQ responds

OCWRC Denies FOIA Request (No Such Documents); Appeal

[The Oakland County Water Resources Commissioner's FOIA Coordinator denied my request for certain records having to do with construction site silt runoff (nearly identical to the one posted here November 21, 2014).  The following is my appeal of that denial.  

Bear in mind, however, that the main point is that there can be no rational justification for the double standard of erosion control enforcement being practiced in Oakland County municipalities.]

***   ***   ***

WR Commissioner Nash:

By letter via U.S. Postal Service dated December 2, 2014, your FOIA Coordinator...denied my FOIA request for certain records* with the statement that "The documents understood to be requested either do not exist or are not maintained by the Oakland County Water Resources Commissioner's office.  Therefore, your request for public documents...is denied."

Sorry to put so fine a point on it, but I requested records, not merely documents.  This is my appeal.

The FOIA statute begins, "AN ACT to provide for public access to certain public records of public bodies; to permit certain fees; to prescribe the powers and duties of certain public officers and public bodies; to provide remedies and penalties; and to repeal certain acts and parts of acts."  The statute further provides: 

15.232 Definitions.

(e) “Public record” means a writing prepared, owned, used, in the possession of, or retained by a public body in the performance of an official function, from the time it is created. Public record does not include computer software...

(h) “Writing” means handwriting, typewriting, printing, photostating, photographing, photocopying, and every other means of recording, and includes letters, words, pictures, sounds, or symbols, or combinations thereof, and papers, maps, magnetic or paper tapes, photographic films or prints, microfilm, microfiche, magnetic or punched cards, discs, drums, or other means of recording or retaining meaningful content.

The Michigan Attorney General wrote,

 http://www.michigan.gov/documents/ag/FOIA_Pamphlet_380084_7.pdf

(p.5) "It does not matter what form the record is in." 

For example (p.44):

Oakland County Treasurer v Title Office, Inc, 245 Mich App 196; 627 NW2d 317 (2001).

"Electronic records are writings as defined by the FOIA. Public bodies are required to provide public records in the format requested. If there is no explicit statutory language that provides fees for electronic records, the records must be provided using the FOIA fee requirements." 

I believe video and audio recordings are accessible as well.

Please grant my appeal, reverse the determination of your FOIA Coordinator and furnish me with copies of the requested records.

-- Jim Lang

(address and phone)

* Summarized as "...a copy of all records created or obtained by OCWRC within the timeframe of January 1, 2014 to present that contain a rationale for the difference between the strict water quality and erosion control enforcement in MEAs and the lax enforcement by OCWRC in its role as CEA, as that rationale relates to Michigan waters and the public trust." (See your file for the complete request.)

FOIA Requests Dangle and Other Earth-Shaking News

UPDATING the post here November 21, 2014, I’m still waiting for substantive responses to FOIA requests I directed to the Michigan Department of Environmental Quality (MDEQ) and the Oakland County Water Resources Commissioner (OCWRC) concerning inconsistent soil erosion standards at construction sites.

*****   *****   *****

For years, SCIO TOWNSHIP near Ann Arbor has considered leaving the Ann Arbor wastewater treatment system and building its own wastewater treatment plant.  The subject has come up again recently.  If the township proceeds, it could be a trend-setter in the region.  It will be interesting to see which treatment technology they adopt and what the cost projections are.

*****   *****   *****

Last month, I was astounded to learn that the estimated cost of a tree planting project, intended to reduce combined sewer overflows (CSOs), coordinated by the Southeast Michigan Council of Governments (SEMCOG) for the Detroit Water and Sewerage Department (DWSD), was $6 per gallon diverted.  CSOs can run in the billions of gallons per year!  Who’s got that kind of money?  Not DWSD, that’s for sure.  What was SEMCOG thinking?  Tree planting is an essential part of CSO control, but not the way SEMCOG planned it.

Pursuant to the Michigan Freedom of Information Act (FOIA), I asked DWSD to furnish me with copies of all COST/ BENEFIT ANALYSES prepared or obtained by DWSD in connection with the aforementioned tree planting project, which is part of the National Pollution Discharge Elimination System (NPDES) green infrastructure provisions in DWSD’s discharge permit.

The reply was that such cost/benefit analyses did not exist.  WHY NOT?

(Incidentally, earlier this year, Tetra Tech, Inc. replaced SEMCOG as DWSD’s consultant on NPDES green infrastructure implementation.)

FOIA Request Seeks Explanation of Inconsistent Erosion Control Standards

Fourth in a Series

Five or six months ago, I observed a puzzling dichotomy in the enforcement by public officials of soil erosion controls at construction sites in several nearby communities.  The justification for the divergent standards remains unclear.

The following Freedom of Information Act (FOIA) request was sent to the Michigan Department of Environmental Quality (MDEQ) on November 12, 2014. A nearly identical request was emailed to the Oakland County Water Resources Commissioner (OCWRC) the same day.  As of this writing, no substantive response has been received from either.

FOIA Coordinator  

Michigan Department of Environmental Quality

deqfoia@michigan.gov

Sir/Madam:

One of my interests is water quality.  Last spring, I visited construction sites in a number of Oakland County municipalities to observe the extent of soil erosion.

Some of those municipalities are recognized by the State of Michigan as Municipal Enforcement Agencies (MEAs) as concerns silt runoff.  In the other municipalities, the Oakland County Water Resources Commissioner (OCWRC) administers the state erosion control program as County Enforcement Agency (CEA).

What was remarkable to me was that the MEAs had required silt fence at most if not all construction sites, while cities under OCWRC supervision had little if any silt fence deployed.

It might appear to some that building contractors working in municipalities subject to OCWRC oversight have a license to pollute.

Pursuant to the Michigan Freedom of Information Act, please furnish me with a copy of all records created or obtained by your department within the timeframe of January 1, 2014 to present that contain a rationale for the difference between the strict water quality and erosion control enforcement in MEAs and the lax enforcement by OCWRC in its role as CEA, as that rationale relates to Michigan waters and the public trust.

Thanks in advance for your assistance.

-- Jim Lang

(address and phone)

I encourage readers to make inquiries of their own about Michigan soil erosion prevention and enforcement practices.

MDEQ recently posted its 2015 Soil Erosion & Construction Storm Water Training Schedule.  Go to their soil erosion home page at www.michigan.gov/soilerosion and click the first link under the training header, or click on: http://www.michigan.gov/deq/0,4561,7-135-3311_4113-267079--,00.html.  

The Duty of Enforcement Agencies to Inspect Construction Site Runoff

Third in a Series

The Michigan Department of Environmental Quality (MDEQ) had written me (see yesterday’s post),

“The Part 91 agency is required to enforce Part 91, as appropriate, when they become aware of unpermitted sites that are failing to comply with Part 91.  Citizen tips, like yours, identifying noncompliance on unpermitted sites are often how Part 91 agencies become aware of this non-compliance if they have not personally driven by the site.”

I wrote back on November 12, 2014, in part:

I’m troubled by this “when they become aware” and “if they have not personally driven by” standard.  Isn’t there an affirmative duty on the part of a Part 91 [municipal or county] agency to have a representative visit these sites routinely to determine whether or not the [erosion control] statute is being violated?  

Consider that, in all of these cases, the municipality will have a building inspector at the site on a  regular basis throughout the construction process. The building inspector can monitor disturbed soil erosion. It doesn’t take any special expertise to recognize evidence of silt runoff.

Neither MDEQ nor CEAs nor MEAs should rely on the chance that casual passersby will report violations.

So far, MDEQ hasn’t responded.

An October 2003 revision to Oakland County’s Soil Erosion Program provides:

http://www.oakgov.com/water/Pages/services/soil_erosion.aspx

“Each site classification has an associated inspection frequency as indicated on the following table.”

Class	Description	Inspection Frequency
Class 5	Project on a lake/ stream/ wetland/ open water of any kind and has a slope or discharge to these waters.	2 weeks
Class 4	Project on a lake/ stream/ wetland/ open water of any kind and has no slope (2% or less)	3 weeks
Class 3	Project is on a dry/wet detention basin with a sediment filter or on a retention pond	6 weeks
Class 2	Project is over 225 square feet and does not meet the requirements found in above Classes	7 weeks
Class 1	Minor Changes under 225 square feet of disturbance:  additions, decks, etc.	8 weeks

The positions of the state and county depend on the false assumption that silt runoff from construction sites into municipal sewers does no significant harm.  That assumption overlooks the loss of topsoil at the construction site and the costly consequences of sediment in the sewers, at the wastewater treatment plant and in natural water bodies receiving combined sewer overflows (CSOs).  

Those results are ongoing violations of the national Clean Water Act.  EPA and MDEQ ought to revisit this subject and require more frequent inspections and more stringent sanctions for violations.

*****   *****   *****

Next: Bringing the Issue into Focus with a FOIA Request

MDEQ Response to Blogger's Inquiry about Construction Site Runoff

Second in a Series

Below is the November 5, 2014 response of a Soil Erosion and Construction Storm Water Specialist of the Michigan Department of Environmental Quality (MDEQ) to my inquiry (see yesterday’s blog post) about silt runoff at construction sites:

Mr. Lang,

Thank you for your question regarding the legislative intent of Part 91, Soil Erosion and Sedimentation Control, as it relates to overflowing sewers and triggering Part 91, soil erosion permits.

I understand that you shared you’re [sic] the photos you shared with me with our Water Resources Division in Southeast Michigan earlier this summer.  [An MDEQ rep in southeast Michigan] indicated in her response to you that she referred the sites you identified to the appropriate soil erosion agencies for follow up.  [The rep] also indicated that the sites were not under permit because they were more than 500 feet away from a lake or stream and were less than 1 acre in total earth disturbance.  [The rep’s] note further indicated that the local enforcing agency was following up with those sites to ensure compliance with Part 91, but had indicated that the area was a combined sewer area; therefore the sediment reaching the road was being treated prior to reaching a lake or stream.

The Part 91 permit triggers identified Part 91 and the Rules promulgated thereunder are very specific and are identified in the Part 17 rules under Rule 1704(1) which states:

“a landowner or designated agent who contracts for, allows, or engages in, and earth change in this state shall obtain a permit from the appropriate enforcing agency before commencing an earth change which disturbs 1 or more acres of land, or which is within 500 feet of the water’s edge of a lake or stream, unless exempted in R 323.1705”

Rule 1701(d) and (k) go on to provide a definition for lake and stream as follows:

“Lake means the Great Lakes and all natural and artificial inland lakes or impoundments that have definite banks, a bed, visible evidence of a continued occurrence of water, and a surface area of water that is equal to, or greater than, 1 acre.  Lake does not include sediment basins and basins constructed for the sole purpose of storm water retention, cooling water, or treating polluted water.”

“Stream means a river, creek, or other surface watercourse which may or may not be serving as a drain as defined in Act No. 40 of the Public Acts of 1956, as amended, being 280.1 et seq of the Michigan Compiled Laws, and which have definite banks, a bed, and visible evidence of the continued flow or continued occurrence of water, including connecting waters of the Great Lakes.”

Given the precision of the language provided in the law and the rules in this regard, Part 91 does not generally require that a Soil Erosion Permit be obtained when working in proximity to storm drains or sanitary sewer drains.  Counties and municipalities may voluntarily elect to require permits in such cases by being more restrictive than Part 91, but must do so through an approved Soil Erosion Ordinance.  Some municipalities choose to do this by requiring permits within a certain proximity to a storm or sanitary drain.

That being said, regardless of where an earth change is conducted in Michigan and whether or not a permit is triggered, individuals conducting an earth change must comply with the provisions of Part 91 which generally require that erosion and sediment is minimized and prevented from depositing off-site or to waters of the state.  The Part 91 agency is required to enforce Part 91, as appropriate, when they become aware of unpermitted sites that are failing to comply with Part 91.  Citizen tips, like yours, identifying noncompliance on unpermitted sites are often how Part 91 agencies become aware of this non-compliance if they have not personally driven by the site.  As [the rep] indicated, the Part 91 agencies for the sites you identified are following up on the information you provided to obtain compliance with Part 91.

I hope this helps answer your question.  For questions related to the cost of treatment and/or maintenance of combined sewer systems receiving uncontrolled sediment, I would direct you to [a 2nd rep] with the Southeast Michigan Office, as combined sewer systems are outside of my area of expertise.  

[Signature omitted]

www.michigan.gov/soilerosion

*****   Tomorrow: Is there a duty on the part of enforcement agencies to inspect sites?   *****

Correspondence with MDEQ about Construction Silt Runoff

SILT RUNOFF FROM CONSTRUCTION SITES

First in a Series

In late October, I wrote the Michigan Department of Environmental Quality (MDEQ) as follows:

Last spring, I did a survey of construction sites to determine whether silt fence had been deployed at urban (mostly residential) construction sites and whether there were signs of silt runoff to city drains.

Of the municipalities surveyed, the two MEAs [municipal enforcement agencies], Birmingham and Troy, had generally good compliance with strict local silt fence requirements.  The remaining municipalities, all CEAs [county enforcement agency], had virtually no silt fence at construction sites, and most sites showed evidence of heavy silt runoff to nearby sewers.

As to the latter, the explanation I was given was that the sewers led to a wastewater treatment plant where the silt was removed, so there was no harm done to natural water bodies.

That idea is patently false.

First of all, a deluge sufficient bring silt off of construction sites clogs the sewers with sediment, requiring later removal by vacuum pumpers.  Second, the sediment that does get through to the treatment plant adds a costly burden to the plant in removing it.  Third, the volume of water in such a deluge will, more often than not, cause sewer overflows, taking sediment directly into lakes and streams.

In those circumstances, sewers are merely underground extensions of natural bodies of water.

One of your department's webpages quotes the pertinent statute:

Part 91, Soil Erosion and Sedimentation Control, of the Natural Resources and Environmental Protection Act (NREPA) (Part 91) provides for the control of soil erosion and protects adjacent properties and the waters of the state from sedimentation.

A permit is generally required for any earth change activity which disturbs one or more acres of land or which is within 500 feet of a lake or stream.

My question to you is, does MDEQ acknowledge that, given the legislative intent, overflowing sewers are indistinguishable from lakes and streams (i.e., are one and the same), thus requiring a permit and abatement of silt runoff [at construction sites]?

Tomorrow: MDEQ’s response.

Stormwater Success Story

Low Impact Urban Stormwater Retrofit

The 200 acres and 400 homes comprising the Towar neighborhood in E. Lansing and Meridian Twp. (Ingham County) Michigan experienced flooded yards, roads, and basements for more than 80 years, even during modest rains. The area is very flat.

http://www.semcog.org/data/lid.report.cfm?lid=189

Several years ago, approximately 150 rain gardens featuring native plants were created, in total occupying five and a half acres.  Most are situated along roads. Several miles of expanded county drains augment the project.  The gardens themselves run from patio-sized to the better part of an acre.

Concrete pipes (up to 24”) along the roads divert stormwater to the rain gardens, preventing residential flooding.  The gardens are built on layers of sand and aggregate and have 12” perforated underdrains that accommodate filtration and slow progress downstream.  The system is thought to be sufficient to handle a 100-year rainstorm.

http://www.mi-wea.org/docs/Towar%20Rain%20Garden%20Drains.pdf

The cost of construction was not quite $10 million, about half of traditional drainage improvements. The county drain commissioner maintains the system.

http://www.awra.org/meetings/Summer2011PP/doc/abs/Sess%203%20abs.pdf