Consent Decree Performance Measures and Schedules April 22-24, 2009 Paul Calamita AquaLaw

1. Consent Decree Performance Measures and Schedules April 22-24, 2009 Paul Calamita AquaLaw

2. Overview CSO/SSO Performance Measures SSO CSO Frequency of Activation Percent Capture Projects & performance Phase/Iterative/Adaptive Other performance Approaches Miscellaneous Considerations

3. Overview Sewer Overflow Control Program Schedules SSO Schedules CSO Schedules Schedules and Rates � Is a level playing field desirable & what would it look like

4. CSO/SSO Performance Measures Comprehensive approaches

5. Comprehensive Approach - SSO Fairly typical approach: No capacity-related overflows to a defined level of service (i.e., 2-year storm) Elimination of constructed outfalls SSES Develop & implement CMOM program Address satellite systems Address excessive inflow & infiltration N.B.: only �excessive� I/I is a regulatory issue and then a gray area

6. Comprehensive Approach - SSO Sometimes annual volume limit Stays out of the details and, instead, focuses on system wet weather performance Volume limits tied to average year

7. CSO Comprehensive Approaches

8. CSO Frequency of Activation Individual commitment for each CSO outfall This is the hardest performance measure to meet both technically and financially Rarely makes sense except in a system with few outfalls which discharge to sensitive waters

9. CSO Frequency of Activation Maximum # that no outfall will exceed, or Average activation number System-wide by tributary NB: Average activation approach is similar in benefits to system-wide percent capture (see below)

10. CSO Frequency of Activation Systems with Few outfalls Solid hydraulic models Few satellite systems to deal with Money (especially if outfall-by-outfall commitment) Sensitive waters and/or small CSO receiving streams Risks having to correct/repeat/reengineer controls non-cost-effectively

11. CSO Percent Wet Weather Capture Overall system wide percent capture (usually by wet weather volume) Systems: Often without sensitive waters Often discharging to larger rivers With limited financial capability NB: Avoids hole-in-the-donut performance risk because if percent capture comes up short you can close the gap with the most cost-effective controls from anywhere in your system.

12. CSO Percent Wet Weather Capture Percent capture is usually coupled with infrastructure construction commitments This applies to both capture of wet weather volume and equivalent mass from 85% of Wet Weather Volume

13. Projects and Performance Criteria Under this approach the LTCP commitment is a list of well-defined projects Specific performance measures are associated with each project such as volume, throughput, time for draining (if a tunnel), etc.

14. Projects and Performance Criteria Attractive approach where a modular program would work Example: series of storage facilities sized and built over time in response to other system improvements Compare: tunnel requiring diameter certainty before construction and which can�t be readily changed after the fact Attractive where system modeling not advanced

15. Phased/Iterative/Adaptive In general: commitment to reasonable further progress given: Community resources Impact of CSOs on receiving waters Sensitive areas, large versus small streams, etc Any meaningful public use Competing environmental/societal needs Impact of other sources/realistic LOCs for same Other considerations

16. Phased/Iterative/Adaptive Commitment to implement a known project or group of projects or a Phase of a community�s LTCP. Followed by additional study and/or implementation of later phases Appropriate where: Community faces significant financial restrictions Program can be iterative - avoids the risk inherent with programs that make programmatic commitments (especially number of activations)

17. Other Performance Approaches Volume reduction of SSO/CSO at key schedule milestones Annual spending commitment with routine reevaluation Level of control with State finding that residual overflows along with public notification won�t interfere with designated uses

18. Other Performance Approaches Green Infrastructure Need LTCP and order/decree language that promotes rather than tolerates green Green acceptance should be on less than an equivalent basis with gray Green provides multiple benefits as to gray

19. Other Performance Approaches Green Infrastructure (con�t) Green needs special accommodations and opportunities for trial and error Where good faith green efforts don�t meet performance measures, more time must be provided to implement gap-filling grey solutions

20. Performance Measures the Agencies Want Frequency of activation in typical year, and As few activations as possible, and Balanced outfall performance Why the above? Ease of verifying system performance Ease of public understanding Nationwide consistency EPA Enforcement consistency (despite CSO Policy call for site-specific CSO solutions)

21. Miscellaneous Performance Measure Considerations Where percent capture has been proposed, sometimes EPA seeks frequency of activation at the end of the day Sometimes EPA has sought BOTH frequency of activation and percent capture

22. Miscellaneous Performance Measure Considerations NB: CSO Policy says pick �any� of the three presumptive criteria and they are listed as (1) frequency of activation, OR (2) percent capture by volume, OR (3) capture of equivalent pollutant load for volumes captured in (2). NB: ALCOSAN decree got this right (�or� not �and�)

23. Miscellaneous Performance Measure Considerations Sewer separation remains controversial. Cost Disruption Residual state-of-the-art storm water delivery system Nevertheless, targeted separation can be important

24. Miscellaneous Performance Measure Considerations CSO communities often end up capturing and treating large volumes of municipal storm water CSO communities often have smaller wet weather water quality impacts than sanitary systems because of uncontrolled MS4 discharges

25. SSO Schedules � Federal and State

26. Federal SSO Schedules US EPA OECA still pushing for consent decrees with fixed end dates for construction before the plan is known EPA OECA trying to hold everyone to 15 years or less NB: EPA CSO financial capability guidance still being asserted as the basis for schedules

27. Federal SSO Schedules Some have gotten 20 years but mostly where mixed CSO/SSO Some have negotiated spending ceilings over a fixed period of years with possibility of additional time if costs exceed the threshold Usually, OECA wants something (higher level of control) in exchange for more time

28. Federal SSO Schedules OECA �Leap before you look� approach Trend: communities saying �no� and only entering decrees once plan is approved EPA FCA guidance is inadequate

29. State SSO Schedules States almost always require schedule and plan development together Rarely is there an arbitrary fixed end date up front States allow greater schedule flexibility � embrace reasonable further progress rather than getting hung up on predicting exactly where and when a system will finish

30. CSO Schedules

31. CSO Schedules OECA still wants everyone done in 20 years OECA resisting any schedule reopeners � you will have to �pay� for any additional time they may decide to give you

32. CSO Schedules EPA more willing to make concessions on level of control rather than 20 year schedule Reflects reality that CSO control during larger storms generally yields little real benefits Nagging concern that they will give on LOC now only to come after you again later�.

33. CSO Schedules Economy is forcing communities to resist risk of arbitrary EPA schedules and be certain of scope of program before signing federal decree Communities seek longer than 20 years as there is limited ability to raise rates during the next several years �

34. CSO Schedules EPA being pressed for schedules > 20 years EPA will either have to: Concede to longer schedules Take another path (such as reasonable further progress) Sue communities Federal Courts are likely to be sympathetic to communities Economy is historically weak DOJ�s popularity with the courts has ebbed

35. CSO Schedules States allow greater schedule flexibility � willing to embrace reasonable further progress rather than predicting exactly where and when a system will finish States also more willing to accept rate commitment approach

36. Schedules and Rates Do We Really Want a Level Playing Field?

37. Level playing field for sewer overflow control? Do we really want this? Current approach is community-specific and complicated Complicated facilitates differing impacts/commitments One (fully adjustable) size-fits-all approach would level the national playing field

38. Proposal: Sewer rates raised up to a presumptive 1.5% MHI Based on 5,000 gallons monthly usage for residential Ceiling for PILOT All funds raised spent on sewer programs. Regional systems 1.5% of core city higher rates, if necessary, for satellites based on cost of service Variance for systems with non-rate funding streams

39. Funding/Schedule Proposal Advantages: Simplicity: 1.5% using LAST year�s MHI Reasonable (but tough) Equitable (esp. with adjustment where rates are subsidized by other funding sources) Avoids schedule fights Disciplines the regulators

40. Public Financial Safeguard 1.5% MHI approach ensures as expeditious as possible. But excellent financial safeguard against weak economic times Rate increases track MHI so flat or falling MHI means no rate increase until MHI rebounds

41. Other Performance Measure or Schedule Issues?