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.

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          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.

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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.

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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.)