Thursday, December 11, 2014

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 
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