The primary mechanisms for the regulation of water
pollution in Michigan are Part 31 of the Natural Resources and Environmental
Protection Act (NREPA), MCL 324.3101 et
seq., the federal Clean Water Act, 33 USC 1251 et seq., and the rules promulgated under each act. The U.S. Environmental Protection Agency (EPA) oversees the implementation and enforcement of these acts, but the Michigan Department of Natural Resources and Environment (DNRE) has the primary
responsibility and authority to administer Michigan’s federally approved water
program.
This chapter begins by describing the general principles
of the Clean Water Act, such as the National Pollutant Discharge Elimination
System, minimum national effluent standards, and enforcement. The second part
of the chapter discusses Michigan’s water pollution statutes, regulations, and
permitting process. This chapter provides only an overview of the statutes and
regulations relating to water pollution in Michigan. It is therefore important
for the reader to refer to the appropriate statutes, regulations, and case law
for more details.
The Clean Water Act of 1972 (CWA), 33 USC 1251 et seq., was enacted in response to growing awareness and concern for
controlling water pollution. It is currently the primary federal statute
regulating water pollution. The CWA was created to “restore and maintain the
chemical, physical, and biological integrity” of the nation’s waters. 33 USC 1251(a); see also Ass’n of Pacific Fisheries v Environmental
Protection Agency, 615
F2d 794, 801 (9th Cir 1980). To achieve this objective the CWA sets forth two major goals: (1) “water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water”; and (2) the elimination of discharges of pollutants into
navigable waters by 1985. 33 USC 1251(a) et seq. The elimination of pollutants was not attained by 1985, but with federal standards becoming more restrictive and treatment technology improving,
there is still advancement towards the goal of zero discharge of pollutants. To
accomplish these goals, the CWA established a permit program, a system of
minimum national effluent standards, and oil and hazardous waste discharge
reporting requirements.
The National Pollutant Discharge Elimination System
(NPDES) is the CWA’s chief instrument for imposing effluent limitations. 33 USC 1342. The CWA prohibits the “discharge of any pollutant” into “navigable waters” of the United States unless the EPA has issued an NPDES permit. 33 USC 1311; see also 33 USC 1362.
The CWA defines the term “discharge of a pollutant” to
mean “any addition of any pollutant to navigable waters from a point source.”
33 USC 1362(12). The statute does not define the term “addition,” Catskill Mountains Chapter of Trout Unlimited, Inc. v City
of New York, 273
F3d 481, 489 (2d Cir 2001); however, there is case law that provides guidance
as to its meaning.
In National Wildlife Federation v Consumers Power Co,
862
F2d 580 (6th Cir 1988) the defendant withdrew water from Lake Michigan for hydroelectric power generation. The defendant’s withdrawal of water led to the uptake of live fish, which were pureed after passing through
hydroelectric generators. Id. The Sixth Circuit found that “returning
the fish to the lake albeit in a different form, was not an ‘addition’ because
the fish had already been there.” Catskill, 273
F3d 481, 492 (2d Cir 2001) (citing to National
Wildlife Federation for the principle that to constitute “addition” of a
pollutant, something new has to be added to the water).
Pollutant is defined as “dredged spoil, solid waste,
incinerator residue, sewage, garbage, sewage sludge, munitions, chemical
wastes, biological materials, radioactive materials, heat, wreaked or discarded
equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural
waste discharged into water,” 33 USC 1362(6). Courts generally have interpreted the definition of “pollutant” broadly. Rapanos
v United States, 547
US 715, 723 (2006) (noting, “’pollutant’ is defined broadly to include not only traditional contaminants but also solids”).
“Navigable waters” is defined as “waters of the United
States, including territorial seas.” 33 USC 1362(7). The Supreme Court in United States v Riverside Bayview Homes, Inc, 474
US 121 (1985), held that non-navigable wetlands, if adjacent to navigable water, are within the jurisdiction of the CWA. The court noted that Congress chose to
define waters covered by the CWA broadly. Id. at 131. In 2001, the Supreme
Court in Solid Waste Agency of Northern Cook County v Army Corps of
Engineers, 531
US 159 (2001), however, limited the CWA’s jurisdiction by concluding that isolated wetlands, i.e., those with no connection to navigable waters, should not be regulated by the CWA merely because migratory birds used that wetland. In Rapanos
v. United States, 547
US 715, 742 (2006) the Supreme
Court held that a determination of whether isolated wetlands fall under the
purview of the CWA relies on a two prong showing that, (1) “the adjacent channel contains a ‘wate[r] of the United
States,’ (i.e., a relatively permanent body of water connected to traditional
interstate navigable waters); and (2), the wetland has a continuous surface
connection with that water, making it difficult to determine where the ‘water’
ends and the ‘wetland’ begins.”. Essentially, the court held that where a
“boundary drawing problem” exists in determining where water ends and abutting/
adjacent wetlands begin, a nexus will be assumed in favor of regulating the
abutting wetland under the jurisdictional purview of the CWA. Id.
“Point source” is defined as “any discernible, confined
and discrete conveyance, including but not limited to any pipe, ditch, channel,
tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated
animal feeding operation, or vessel or other floating craft, from which
pollutants are or may be discharged.” 33 USC 1362(14).
In 2004, the Supreme Court in South Florida Water
Management Dist v Miccosukee Tribe of Indians, 541 US 95 (2004), held that
the definition of a point source as a “conveyance” makes it clear that a point source
need not be the original source of the pollutant, but merely a source that
conveys the pollutant to a new body of water. The CWA, however, exempts
agricultural storm water discharges and return flows from irrigated agriculture
from the definition of “point sources.” 33 USC 1362(14).
On October 17, 1973, the EPA approved Michigan’s NPDES
program and in 1997 approved Michigan’s proposed modification to its program. 62 FR 14844. Although the state is the primary issuer of NPDES permits, the EPA retains some authority. For example, a state permit cannot be issued if the EPA objects within 90 days of receiving notice of the proposed permit. 33 USC 1342(d)(2). NPDES permits ensure that a state’s mandatory standards for clean water and
federal minimum standards are met by specifying acceptable levels of pollutants
in a discharge. The CWA limits the length of NPDES permits to five years, after
which permits can be renewed. U.S. v. Louisville and Jefferson County
Metropolitan Sewer Dist., 983
F.2d 1070 (6th Cir. 1993) (citing to 33 USC 1342(b)(1)(B));
see United States v City of Menominee, 727
F Supp 1110, 1115 (WD Mich 1989).
Permits usually contain five conditions: standard
conditions, technology-based limitations, water quality-based limitations,
monitoring and reporting requirements, and special conditions. The standard
conditions are “boilerplate” in that they must be included in all NPDES
permits. Examples of some standard conditions are: allowing the permitting
authority to inspect the premises, duty to reduce or prevent permit violations
that would adversely affect human health, and duty to properly maintain the
facility. 40
CFR 122.41-.42. Special conditions are site-specific conditions that also may be included in a NPDES permit in addition to the standard conditions.
Some permit conditions may be changed or negotiated to
relax effluent limitation standards on a case-by-case basis. Citizens Coal Council v Environmental Protection Agency, 447
F3d 879, 891 (6th Cir 2006). A permit applicant may receive a permit that
modifies the effluent limitations for a pollutant, other than a toxic
pollutant, provided that “there is no reasonable relationship between the
economic and social costs and the benefits to be obtained . . . from achieving
such limitation.” 33
USC 1312(b)(2)(A). An applicant may obtain a permit that modifies the effluent limitations for toxic pollutants if the applicant can “represent [that]
the maximum degree of control within the economic capability of the owner and
operator of the source” will be attained and will result in “reasonable further
progress” toward water quality goals. 33 USC 1312(b)(2)(B). This type of permit may be granted for a single period that may not exceed 5 years. Id.
The CWA grants the EPA the authority to protect the
interests of downstream states. The EPA may establish a general requirement
that an NPDES permit be conditioned to ensure compliance with downstream water
quality standards. Arkansas v Oklahoma, 503
US 91 (1992).
Stormwater is defined to include stormwater runoff,
snowmelt runoff, and surface runoff and drainage. 40
CFR 122.26(b)(13). In 1987, Congress adopted added the “municipal
and industrial stormwater discharges” section to the CWA. 33 USC 1342(p). This established a phased approach to controlling pollutants discharged via
various forms of stormwater discharge.
a. Phase I §2.7
Phase 1 of the NDPES “municipal
and industrial stormwater discharges” program regulates:
1.
A discharge with respect to which a permit has been issued under this
section before February 4, 1987;
2.
A discharge associated with industrial activity;
3.
A discharge from a municipal separate storm sewer system serving a
population of 250,000 or more;
4.
A discharge from a municipal separate storm sewer system serving a
population of 100,000 or more but less than 250,000; and
5.
A discharge for which the Administrator or the State, as the case may
be, determines that the stormwater discharge contributes to a violation of a
water quality standard or is a significant contributor of pollutants to waters
of the United States.
33
USC 1342(p).
Under the EPA’s regulation of the CWA’s “municipal and industrial stormwater discharges” program, there
are eleven categories of industrial activity in the definition of “discharges
associated with industrial activity” that must obtain an NPDES stormwater
permit. See 40
CFR 122.26(b)(14)(i)-(xi); 40
CFR 122.26(g). Stormwater
discharges to a sanitary sewer system or publicly owned treatment works (POTW)
are excluded. 40
CFR 122.3(c). Permits for
discharges of stormwater associated with industrial activity are subject to the
best-available technology/best conventional technology (BAT/BCT) requirements. 33 USC 1314(b)(1)(B)-(b)(4)(B). There are
three permit application options for stormwater discharges associated with
industrial activity: individual permits, group permits, and general permits. Michigan
currently issues only a generic baseline general permit, a generic general
permit with monitoring requirements, and a site-specific individual permit.
The “industrial activity” category includes large
construction activities, i.e., any construction activity disturbing five acres
of land or greater.
40
CFR 122.26(b)(14)(x). Although
construction activity is included in the definition of "stormwater
discharges associated with industrial activity," construction activities require
construction stormwater permits, not industrial stormwater permits, under the
NPDES stormwater program.
57 Fed Reg 41,237 (1992).
Phase I requirements include Notice of Intent (NOI),
development and implementation of a Storm Water Pollution Prevention Plan
(SWPPP) with appropriate BMPs to minimize the discharge of pollutants on site,
and Notice of Termination (NOT). 40
CFR 122. An NOI should include
general information such as the legal name and the address of the owner or
operator, the facility name and address, the type of discharge, and the
receiving stream. 40
CFR 122.21(a). The NOT should be submitted when disturbed soils at
the construction site have been stabilized, or when stormwater discharges have
been eliminated, or when another operator has assumed control of the site.
Phase I regulates large and medium municipal separate
stormwater systems (MS4s).
Systems serving a population of 250,000 or more are “large” MS4s, while
systems serving populations between 100,000 and 250,000 are “medium” MS4s. 40
CFR 122.26(b)(4), (b)(7). Municipal
discharge standards need not meet technology-based requirements, but instead
are required to reduce the discharge to “the maximum extent practicable” (MEP). 33 USC 1342(p)(3)(B)(iii). All Phase I
discharges are required to comply with the conditions
of the permit as expeditiously as practicable, but in no event later than three
years after the date of issuance of the permit. 40
CFR 122.42(d).
In response to Natural Resources Defense Council, Inc v
Environmental Protection Agency, 966
F2d 1292 (9th Cir 1992), the EPA implemented a Phase II stormwater program in 1999. The Phase II program extended NPDES stormwater
permit requirements to include small construction sites and small municipal
separate storm sewer systems (MS4s). Under
Phase II rules, any category of industrial activity (except construction) may
be exempt from permit requirements for discharges composed entirely of storm
water if the operator can certify that no industrial materials and activities
will be exposed to rain, snow, snowmelt or runoff. 40
CFR 122.26(g).
Small construction sites are defined as sites that cover
between one and five acres of land, but can also be part of a larger common
plan that covers more than one acre, e.g., the
operator is building on two half-acre lots in a four-acre development. 40
CFR 122.26(b)(15). Unlike large construction sites regulated under
Phase I, NPDES permitting authorities may provide a waiver from the
requirements to operators of small construction sites who certify one of two
conditions: (1) low predicted rainfall potential, i.e., construction activity
occurs during a negligible rainfall period, where the rainfall erosivity factor
(“R” in the Revised Universal Soil Loss Equation (RUSLE)) is less than five
during the period of construction activity; or (2) a determination that
stormwater controls are not necessary based on either (a) Total Maximum Daily
Load (TMDL) that addresses the pollutant(s) of concern for construction
activities, or (b) an equivalent analysis that determines allocations are not
needed to protect water quality based on consideration of in-stream
concentrations, expected growth in pollutant concentrations from all sources,
and a margin of safety. 40
CFR 122.26(15)(b)(i).
The Phase II program also regulates small MS4s, that is,
all MS4s not already covered by the Phase I program that are located within a
census-determined “urbanized area.” All MS4s located within an urbanized area
are required to obtain an NPDES permit. These
permits will require the small MS4 to implement and enforce a stormwater
management program that must include control measures addressing: (1) public
education and outreach, (2) public participation or involvement, (3) illicit
discharge detection and elimination, (4) construction site runoff control, (5) post-construction
runoff control, and (6) pollution prevention and good housekeeping. 40
CFR 122.34(b). The permit deadline for most MS4s was March 10,
2003. 40
CFR 122.26(e)(9)(i). However, MS4s with populations less than 10,000
must have obtained a permit by March 8, 2007 under the permitting authority’s
discretion. 40
CFR 123.35(d)(3).
The CWA requires the EPA to establish effluent limitations
for specific pollutants that may be discharged by municipal sewage plants and
industrial facilities. A list of these specific
pollutants is found at 40
CFR 410.15. The approach in setting such limitations includes:
(1) creating a nationwide, base-level treatment through an assessment of what
is technologically and economically achievable for a particular industry; and
(2) requiring more stringent levels of treatment for specific facilities to
achieve water quality objectives. The EPA has
employed technology-based effluent limitations, water quality-based standards
and, in a small number of cases, health-based effluent standards.
Direct dischargers must use Best Available Technology
(BAT) for toxic pollutants and for nontoxic-nonconventional pollutants, e.g.,
iron, chlorine, color, phenols. Direct dischargers must use Best Conventional
Technology (BCT) for conventional pollutants, e.g., pH, total suspended solids,
fecal coliform, oil, and grease. 33 USC 1311(b)(2).
a. New
sources §2.11
New sources are subject to more stringent effluent
limitations. 33 USC 1316(a)(2). A “new source” is defined as any building, structure, facility or installation,
from which there is or may be a discharge of pollutants, that is constructed:
(1) after promulgation of standards of performance applicable to such source,
or (2) after proposal of such standards, but only if the proposed standards are
actually promulgated within 120 days of their proposal. 40
CFR 122.2 – 40
CFR 122.29(b); Natural Resources Defense Council, Inc v Environmental Protection Agency, 822
F2d 104 (DC Cir 1987). A new discharger and a new source, for NPDES purposes, are treated the same since a new discharger is defined as “any building structure, facility, or installation (1) from which there is or may be a
discharge of pollutants; (2) that did not commence the discharge of pollutants
at a particular site prior to August 13, 1979; (3) which is not a “new source;”
and (4) has never received a finally effective NPDES permit for discharges at
that site.” 40
CFR 122.2. New sources are to meet New Source Performance Standards (NSPS), which may apply to any pollutant (conventional, nonconventional, or toxic). NSPS
not only consider pollution control standards under 33 USC 1311, but also reflect a great degree of effluent reduction through alternative production
processes and operating methods. 33 USC 1316(a)(1). NSPS are at least as stringent as BAT, with the possibility of being even more
stringent. American Iron & Steel Institute v Environmental Protection
Agency, 526
F2d 1027 (3d Cir 1975).
The EPA has implemented pretreatment standards for those
who introduce any pollutant into a Publically Owned Treatment Work (POTW). 33 USC 1317(b). These standards are designed to prevent pass-through or interference with the treatment processes of the POTW by such indirect dischargers. Definitions of “pass-through” and “interference” can be found in 40
CFR 403.3(p) and 40 CFR 403.3(k) respectively. There “pass through” is defined as “[d]ischarge
which exits the POTW into waters of the United States in quantities or
concentrations which, alone or in conjunction with a discharge or discharges
from other sources, is a cause of a violation of any requirement of the POTW's
NPDES permit (including an increase in the magnitude or duration of a
violation).”40
CFR 403.3(p); whereas “interference “ is
defined as [d]ischarge which, alone or in conjunction with a discharge or
discharges from other sources… [i]nhibits or disrupts the POTW, its treatment
processes… and [t]herefore is a cause of a violation of any requirement of the
POTW's NPDES permit . . . .” 40
CFR 403.3(k).
Pretreatment programs give the POTWs legal authority to
control and enforce requirements over indirect dischargers. 40
CFR 403.8(f). The processes for POTWs to receive pretreatment program approval are explained under 40
CFR 403.8 – 40
CFR 403.11. For an industrial user to discharge to a POTW, it must first show that it fits under a specific category of industry. 40
CFR 403.6. The industrial user must additionally present baseline
monitoring reports, compliance reports, and periodic reports containing the
nature and concentration of the pollutant being discharged. 40
CFR 403.12.
The purpose of implementing water quality standards is to
obtain the CWA’s goal of swimmable and fishable waters. 33 USC 1251(a). To achieve this goal the water quality based treatments and strategies go beyond
the technology-based levels of treatment required by Sections 301(b) and 306 of
the CWA. 40
CFR 131.2. Water quality standards submitted by states to the EPA for review must include designated use of a water body, water quality criteria sufficient to protect the waters, and an anti-degradation policy. 40
CFR 131.6. Although the EPA has procedures and criteria for reviewing state-proposed water quality standards, states are principally responsible for developing water quality standards pertinent to state waters. See 40
CFR 131.
States must develop Total Maximum Daily Loads (TMDLs) for
all waters in which technology based effluent limits are not stringent enough
to achieve the water quality standards set for those waters. 33 USC 1313(d)(1). A TMDL is a numerical quantity determining the present and near future maximum
load of pollutants from all sources to receiving bodies of water that will
still meet water quality standards with an adequate margin for safety. A TMDL
has two basic parts: a Waste Load Allocation (WLA) from point sources and Load
Allocations (LA) from nonpoint sources and natural background conditions.
Each state must identify “impaired” waters, which are
waters that fail to meet water quality standards despite compliance by NPDES
permitted dischargers. 40
CFR 130.7(b)(1). The state must then prioritize its impaired waters, taking into account the severity of the pollutant and the uses of the water
body. The priority-ranking list should specifically include the identification
of the waters targeted and the identity of the pollutant causing the
impairment. 40
CFR 130.7(b)(4). In Michigan, there are a total of seventy-six water bodies with developed and approved TMDLs. The list can be found on the DNRE
Website under Water Quality Monitoring | Assessment of Michigan Waters | TMDLs.
After making the priority-ranking list, a state must
establish TMDLs for the water quality limited segments and submit them to the
EPA for approval. TMDLs may be established using a pollutant-by-pollutant
approach, bio monitoring approach, or in some cases both. 40
CFR 130.7(c)(1)(i). The EPA will then either approve or disapprove the listings and the loadings within 30 days of the state’s submission. If the EPA
approves the plans, the state can incorporate them into its water quality
management program. If the EPA disapproves the plan, however, it will establish
its own list or TMDLs for such waters within the same 30 days. 40
CFR 130.7(d). Failure of the state or the EPA to meet the deadlines for the submission and approval of the lists of impaired waters and TMDLs
have led to successful citizen led lawsuits. Friends of the Wild Swan v
Environmental Protection Agency, 74
F Appx 718 (9th Cir 2003).
In 1997, the EPA released a guide for the TMDL program in
response to issues raised throughout the program’s development. Regarding
achievement of a nationally consistent scheme for developing and implementing
TMDLs, the guide recommended: (1) states develop schedules for establishing
TMDLs promptly, generally within 8-13 years of a particular water body being
listed as impaired; (2) EPA regions have documented written agreements with
other individual states about the schedules; and (3) factors to be considered
in developing the schedule, which include, but are not limited to: the number
of impaired segments, number and complexity of the TMDLs, proximity of listed
waters to each other, availability of monitoring data, and significance of the
environmental harm. In addition, states have the discretionary authority to
implement load allocations (LAs) for waters impaired by nonpoint sources. See
Pronsolino v Nastri, 291
F3d 1123 (9th Cir 2002).
The EPA has the authority to issue toxic pollutant
effluent standards where the BAT standard is not sufficient to achieve an
"ample margin of safety" in protecting the environment and public
health from certain toxic pollutants. 33 USC 1317. Toxic pollutant effluent standards have been set for six chemicals: aldrin, DDT
and related compounds, endrin, toxaphene, benzidine, and polychlorinated
biphenyls. 40
CFR 129.
In response to major oil spills like the Exxon Valdez,
Congress enacted the Oil Pollution Act of 1990 (OPA), which amended 33 USC 2701 et seq. The OPA expanded the EPA’s planning and spill prevention activities and improved response capabilities. Similar to the liability under CERCLA (see
Chapter 5), OPA liability is interpreted as both strict and joint and several.
Regulations for the prevention of oil spills into navigable waters and
adjoining shorelines of the United States are found at 40
CFR 112.
Oil pollution regulations contain two major types of
requirements: prevention requirements (Spill Prevention, Control and
Countermeasures (SPCC plans)) and Facility Response Plans (FRP). Each SPCC plan
is unique to the facility, but all contain standard elements which include,
among other things, a description of the physical layout of the facility,
contact list and phone numbers of people or agencies who must be contacted in
case of a discharge, a prediction of direction, flow rate, total quantity of
oil that could be discharged, and a description of containment equipment that
prevents discharged oil from reaching navigable waters. 40
CFR 112.7. A FRP demonstrates a facility’s ability to respond to a worst case oil discharge. A facility that could reasonably be expected to cause “substantial harm” to the environment by discharging oil into or on navigable waters are
required to prepare and submit an FRP. 40
CFR 112.20.
In July 2002, the EPA revised 40 CFR 112 effective on
August 11, 2004. Important highlights of the new SPCC rule include: (1)
exemptions from the technical requirements of the UST regulations for
completely buried storage tanks, 40
CFR 112.1(d)(2)(i); (2) exemptions for portions of certain facilities or any facility that is used exclusively for wastewater treatment, 40
CFR 112.1(d)(6); (3) establishment of an aboveground storage capacity threshold of greater than 1,320 gallons and removal of the 660 gallon
threshold, 40 CFR 112.1(d)(2)); and (4) requirements for facilities to submit
information after having two discharges over 42 gallons in any 12-month period
or a after a single discharge of more than 1,000 gallons, 40
CFR 112.4(a).
Discharges made in compliance with an NPDES permit are
excluded from regulation under the OPA. 33 USC 2702(c)(1). Those who do not have a permit or fail to comply with SPCC regulations, however,
can face civil and criminal penalties. 33 USC 2716(a).
Section 404 of the CWA authorizes the U.S. Army Corps of
Engineers (COE) to oversee the permit program for the discharge of dredge or
fill material into waters of the United States. 33 USC 1344. Waters regulated under this section are defined as navigable waters, which include wetlands. See 33 CFR Part 328; United States v Riverside Bayview Homes, Inc, 474
US 121 (1985), United States v Rapanos, 547
US 715, 723 (2006). In Michigan waters, the discharge of dredge or fill
material is regulated by the DNRE. MCL 324.30101. In federal “navigable” waters, the COE and the DNRE regulate such discharges. See generally Chapter 10.
The CWA provides administrative, civil, and criminal
enforcement devices for violations, such as discharges without a permit,
discharges in violation of technology or water quality-based effluent
limitations, violations of new source performance standards or pretreatment
standards, and discharges in violation of NPDES permits. 33 USC 1319. Administrative penalties are composed of two classes of penalties. 33 USC 1319(g)(2). Class I penalties may not exceed $10,000 per violation or $25,000 total, and class
II penalties may not exceed $10,000 per day in which the violation continues or
a total of $125,000. Id. The EPA also may initiate criminal prosecution
in order to enforce the CWA. Criminal penalties may include significant fines,
imprisonment, or both. 33
USC 1319(c); see United States v Panyard,
No.
07-20037-2, 2009 US Dist LEXIS 34978 (ED Mich, Apr. 23, 2009), sentencing defendant to 15 months imprisonment and but
not imposing fines for bypassing CWA pretreatment requirements in violation of 33 USC 1319(c)(2)(A)).
States that have NPDES permitting authority, such as
Michigan, enforce permits issued under state law. Although the EPA has
delegated authority to the state, the EPA retains authority to enforce the
mandates of the CWA. 33
USC 1342. The EPA, however, must first notify the state of a violation and
give the state 30 days to bring an enforcement action before it may commence a
civil action of its own. 33 USC 1319(a). Alternatively, the EPA’s enforcement decisions are discretionary in that the EPA may
take no formal action or seek another type of enforcement procedure. See
Sierra Club v Whitman, 268
F3d 898 (9th Cir 2001); Sierra Club v Train, 557 F2d 485 (5th
Cir 1977).
The CWA grants citizens the ability to file suit in
federal court to enforce provisions of the act. Pursuant to 33 USC 1365(a), any citizen may commence a civil action on his or her own behalf against anyone who
is “alleged to be in violation of an effluent standard or limitation” under the
CWA. Claims may also be brought against the Administrator where there is
“alleged failure of the Administrator to perform any act or duty” under the CWA
that is not subject to the Administrator’s discretion. The alleged violator,
the state, and the EPA must receive a sixty-day notice from the plaintiff
before filing suit. 33 USC 1365(b)(1)(A). This notice allows parties time to resolve conflicts in a non-adversarial time period.
Citizens are barred from bringing suit when the federal or
state government is “diligently prosecuting” a civil or criminal action
concerning the same alleged violations. 33 USC 1365(b)(1)(B); N & S Rivers Watershed Ass’n, Inc v Town of Scituate, 949 F2d
552 (1st Cir 1991). To keep violators from evading liability, courts have traditionally interpreted “diligent prosecution” narrowly. See Washington Public Interest Research Group v Pendleton Woolen Mills, Inc, 11
F3d 883 (9th Cir 1993); Altamaha Riverkeepers v City of Cochran, 162 F Supp 2d 1368 (MD Ga 2001). Citizens are barred from filing suit over wholly past violations. For a violation to be actionable the defendant’s violations must continue after the date the plaintiff files suit
or when there is a reasonable likelihood of future violations. Gwaltney, Ltd
v Chesapeake Bay Foundation, Inc, 484
US 49 (1987).
In Friends of the Earth v Laidlaw, 528
US 167 (2000), the Supreme Court held that a citizen showing a reasonable concern about discharges that have harmed his or her economic, aesthetic, and
recreational interests in a water body demonstrated an injury in fact required
to bring a citizen suit under the CWA. To have standing, plaintiffs need to
demonstrate a considerable likelihood that the defendant caused the injury and
the injury is likely to be redressed by a favorable decision. Lujan v
Defenders of Wildlife, 504
US 555 (1992).
Citizen plaintiffs may be awarded civil penalties
including attorneys’ fees and costs in addition to other available remedies
such as penalties and injunctive relief. If a court determines that a defendant
violated the CWA, it must impose civil penalties. These civil penalties are
authorized up to $25,000 per day per violation. 33 USC 1319(d). Under 33 USC 1365(d), citizens may be awarded “costs of litigation (including
reasonable attorney and expert witness fees) to any prevailing party or
substantially prevailing party, whenever the court determines such award
appropriate.” Attorney fees may be awarded using the “catalyst” approach, but
typically fees are determined using the “lodestar” amount (a reasonable number
of hours worked on the case times a reasonable hourly rate). See Buckhannon
Board & Care Home, Inc v West Virginia Dep’t of Health and Human Resources,
532
US 598 (2001); Hensley v Eckerhart, 461
US 424 (1983); City of Burlington v Dague, 505 US 557 (1992).
Part 31 of NREPA, MCL 324.3101 et
seq., is Michigan’s primary pollution control statute. Part 31 has the dual purpose of protecting water quality and regulating waste-water disposal. Under
MCL 324.3103(1), the DNRE has the duty and authority to “protect and conserve the water
resources of the state.” Waters of the state” include both surface and
underground waters. LA Darling Co v Water Resources Comm’n, 341
Mich 654; 67 NW2d 890 (1955). Part 31 of NREPA gives the DNRE broad powers regarding water pollution. City of Brighton v Hamburg Twp, 260
Mich App 345; 677 NW2d 349 (2004). To achieve uniformity and to serve the public policy interest of protecting the waters of the state, Part 31 authorizes the DNRE to:
1.
Issue discharge permits that will assure compliance with state standards
to regulate municipal, industrial, and commercial discharges and storage of any
substance that may affect the quality of the waters of the state, MCL 324.3106;
2.
Establish water quality standards for lakes, rivers streams, and other
waters, MCL 324.3106;
3.
Regulate the pretreatment program for indirect discharge to publicly owned
treatment work; R
323.2301 et seq.;
4.
Regulate spillage of oils and other polluting materials; see R
324.2001 et seq.;
5.
Issue permits for floodplain alteration, MCL 324.3104; and
6.
Enforce criminal and civil liability against discharge violators, MCL 324.3115.
Part 31 applies to municipalities, which are defined as
“[the] state, a county, city, village, or township, or an agency or instrumentality
of any of these entities.” MCL 324.3101(m).
Part 31 prohibits direct and indirect discharges into
state waters of a substance that is or may be injurious to: (1) the public
health, safety, or welfare; (2) domestic, commercial, industrial, agricultural,
or recreational, or other uses that are being made or may be made of such
waters; (3) the value or utility of riparian lands; (4) livestock, wild
animals, or plants; or (5) the value of fish and game. MCL 324.3109. Industrial or commercial entities that discharge liquid waste into surface or groundwater must have waste treatment or control facilities that are supervised by a certified person. MCL 324.3110(1).
The discharge of any medical waste (defined in Part 138 of
the public health code, MCL 333.13805(8) et seq.) into any of the waters of the state without authorization by a
permit, order, or rule is considered prima facie evidence of a violation of
Part 31 and subjects the person responsible to the penalties provided under MCL 324.3115. MCL 324.3109(2). The indirect or direct discharge of any raw sewage of human origin into state
waters not permitted by an order, rule, or permit is considered prima facie
evidence of a violation of Part 31 by the municipality from which it
originated. Id. If the municipal discharge is not the subject of a valid
permit, or is subject to a valid permit but is in violation of that permit,
then the municipality is subject to the penalties under MCL 324.3115. Id.
When untreated or partially treated sewage is discharged
from a sewer system into state waters, the municipality at fault must, within
24 hours of the discharge, notify the DNRE, local health departments, and
newspapers that the discharge is occurring. MCL 324.3112a(1). At the conclusion of the discharge, the responsible municipality must state: the
volume and quality of the discharge, reason for the discharge, time the
discharge began and ended, and verification that it is in full compliance with
the NPDES permit requirements. Id. If the municipality’s discharge of
untreated or partially treated sewage may affect other municipalities, it must
notify those municipalities of the discharge. MCL 324.3112a(4).
In addition to the penalties under MCL 324.3115, the unauthorized discharge of any kind is prima facie evidence of the existence of a
public nuisance and the attorney general may bring an abatement action. MCL 324.3109(6); Attorney General v John A. Biewer Co, 140
Mich App 1; 363 NW2d 712 (1985). Part 31, however, does not provide an exclusive remedy against a municipality that discharges inadequately treated sewage into state waters. White Lake Improvement Ass’n v City of
Whitehall, 22
Mich App 262; 177 NW2d 473 (1970).
Waste discharge or discharge of waste effluent into
groundwater or surface water is prohibited unless the discharger has obtained a
permit issued by the DNRE. MCL 324.3112. Michigan has received authorization from the EPA to issue waste discharge permits pursuant to the NPDES program.
Michigan treats surface water and groundwater as two
separate resources, thus different permits are required. A person discharging
waste into surface waters of the state must submit an application for a NPDES
permit to the DNRE. R
323.2106. A person discharging waste into the groundwater must submit a state permit application to the DNRE. R 323.2206(3).
Anyone proposing a new or increased wastewater discharge
into surface or ground waters must to apply for a permit at least 180 days
before commencement of the discharge. R
323.2106(2). DNRE requires applicants for permits to include the nature of the enterprise or development, the amount of water required to be used, its
source, the proposed point of discharge, the amount to be discharged, and
expected composition of the waste, i.e., bacterial, physical, and chemical
characteristics. MCL
324.3113(1).
Michigan’s NPDES permit application is divided into 3
sections. Section 1 is the general facility information that every applicant
must complete. Section 2 is for sanitary wastewater facilities. This section is
to be completed by POTWs and all privately owned treatment facilities
discharging treated or untreated sanitary or industrial wastewater to surface
waters. Privately owned facilities generally include mobile home parks,
campgrounds, condominiums, hotels, and nursing homes. Section 3 is to be
completed by all facilities classified as industrial or commercial facilities. Industrial
and commercial facilities include, but are not limited to, facilities that discharge
or propose to discharge wastewater generated by a production process, a service
provided, or through a remediation project. Municipal and public facilities are
not required to complete Section 3 unless they request authorization for
discharges other than sanitary wastewater. Michigan’s NPDES permit application
form is available on the DNRE’s website. http://www.michigan.gov/deq.
If a person discharges waste or wastewater from more than
one location, that person must file a separate application for each discharge
location. For multiple outfalls discharging from one location, the person need
only file a single application so long as each outfall is described separately in
the application. R
323.2108(2). In such case, there may be different permit conditions for each outfall.
State and NPDES permits have a fixed term that is not to
exceed five years. R
323.2150. A person wishing to continue to discharge wastewater needs to reapply for a permit at least 180 days before the permit expiration date. Before reissuing the permit, the DNRE will ensure that (1) the applicant has substantially
complied with the terms, conditions, requirements, and schedules of compliance
of the existing permit; (2) the DNRE has up-to-date information on the
applicant’s production levels, waste treatment practices, and the nature,
contents, and frequency of the applicant’s discharge; and (3) the discharge is
consistent with applicable effluent standards and limitations, water quality
standards, and other legally applicable requirements. R
323.2151. If negotiations with the DNRE regarding reissuance of the new permit extend beyond the expiration date of the existing permit, the permittee continues to operate under the existing permit. Id.
A permit will not be issued for discharges containing a
radiological, chemical, or biological warfare agent or a high-level radioactive
waste; a discharge that would substantially impair anchorage or navigation; or
a point source discharge in conflict with an area-wide waste treatment management
plan. R
323.2136(1).
Depending on the nature of the proposed discharge, the
DNRE may issue either an individual permit or Certificate of Coverage (COC)
under a valid general permit. A general permit may be issued for stormwater
point source discharges or a category of point source discharges other than
stormwater if the sources: (1) involve the same or substantially similar types
of operations; (2) discharge the same types of wastes; (3) require the same
effluent limitations or operating conditions; and (4) require the same or
similar monitoring. R
323.2191(1).
Applications for coverage under existing general permits
are submitted to the DNRE. If the DNRE determines that the discharge meets the
criteria for coverage under the general permit, then the DNRE will issue a
notice of coverage that initiates the permit. Persons aggrieved by the coverage
may file a sworn petition for a contested case hearing within 60 days of the
issuing of notice. R
323.2192(c). See Chapter 15 for a discussion of contested cases.
Individual permit holders also may apply for coverage
under the general permit. R
323.2192(d). The DNRE may also require a person authorized to discharge under a general permit to apply and obtain an individual permit under certain
circumstances including but not limited to situations where “the discharge is a
significant contributor to pollution as determined by the department of a
case-by-case basis” or “the discharger is not complying, or has not complied,
with the conditions of the general permit.” R
323.2191(3). For persons with both an individual and general permit, however, the DNRE may terminate one of the permits if it determines that the other
permit is more appropriate. R
323.2191(5).
As a result of the federal
regulations governing stormwater discharges, the state of Michigan began
issuing permits in 1994 and regulates such
discharges under R
323.2101 et seq. See 40
CFR 122 for industrial activities that
need to obtain a permit, discussed in § 2.7. To obtain
coverage under the general permit, stormwater applicants should submit a notice
of intent (NOI) to the DNRE. If coverage under the general permit is
appropriate, the DNRE will issue the applicant a Certificate of Coverage (COC).
It should be noted that the DNRE has the discretion to grant a contested
case hearing on the certificate of coverage issued to an individual facility
under a general permit in accordance with R
323.2192. A stormwater permit is not required if stormwater does not
discharge from the facility site or is discharged into a sewer system that
leads to a wastewater treatment plant.
The DNRE currently utilizes a “permit by rule” for
stormwater discharges associated with construction sites. Construction activities on five acres
or more that contain a point source discharge to state waters are required to
submit a notice of coverage to obtain coverage under “permit by rule.” The
notice of coverage should include:
1.
Certification that an individual soil erosion and sedimentation control
permit for that site has been issued;
2.
Acknowledgement by the construction permittee that any discharge is in
compliance with state and federal regulations;
3.
A location map and description of the nature of the construction
activity;
4.
The location of the proposed discharge and identification of the
receiving water;
5.
The total area of the site and the area of the site that is expected to
undergo construction during the existence of the project;
6.
Site-specific soil erosion control measures that will be used to control
waste in stormwater during construction activity;
R 323.2190(1)(a). In accordance with Part 31, a notice of coverage is not required for construction activities that disturb 1 to 5 acres because these sites have automatic coverage under
“permit by rule” if they have obtained coverage under the Soil Erosion and
Sedimentation Control Program (SESC). Id.
Once a notice of coverage has been submitted, the
permittee must have the construction site inspected by a certified stormwater
operator once a week and within 24 hours after every precipitation event that
results in a discharge. The permittee must
also keep a log of these inspections and corrective actions, if any are taken. R
323.2190(2)(e).
The DNRE will develop a draft permit when it considers the
application complete. The draft permit will be
mailed to the applicant and, in the case of a NPDES permit; the draft permit
will be mailed to the regional administrator of EPA Region 5 in Chicago before
public notice of application. The draft permit
will contain proposed effluent limitations, a proposed schedule of compliance
for meeting the proposed effluent limitations, and any other conditions or
restrictions deemed necessary by the DNRE that will significantly affect the
discharge described in the application. R
323.2115.
Once the DNRE issues the draft permit, a 30-day public
notice of the permit is circulated within the geographical area of the proposed
or existing discharge. R
323.2117. Any interested person may submit comments on the application to the DNRE within the 30-day public notice. The duration of the time for public comment may be
extended past the suggested 30 days when the DNRE determines it necessary to
facilitate additional public comment. R
323.2119. Within the 30-day comment period, any interested person or agency may file a petition with the DNRE for a public hearing. The DNRE will schedule a hearing if it determines that the petition constitutes sufficient cause
or there is sufficient public interest to warrant a hearing. R
323.2119(1).
The DNRE will consider the comments submitted during the
public notice and may revise or modify the draft permit while formulating its
final determination. Following the public notice, modifications, and applicable
recommendations, the DNRE will make the final determination on the permit
application and issue or deny the permit. R
323.2133. The DNRE may deny an application for a permit pursuant to MCL 324.3106. R
323.2133
Any person to whom a permit is not acceptable may file a
sworn petition with the Office of Administrative Hearings of the DNRE, setting
forth the conditions of the permit that are being challenged and specifying the
grounds for the challenge. This petition needs to be filed within 60 days of
the issuance, modification, suspension, or revocation of a permit. MCL 324.3112(5). The DNRE may reject petitions submitted after the 60 days for being untimely. Id.
The DNRE sets permit conditions such as effluent
limitations, monitoring requirements, record-keeping requirements, and facility
maintenance requirements, with which the permittee must comply. Dischargers not
in compliance with applicable effluent standards and limitations or other requirements
at the time of inspection or discovery of noncompliance are required to achieve
compliance within a period established by the DNRE. The DNRE will require
compliance with terms and conditions of the permit “in the shortest reasonable
time period” or within a time schedule for compliance that is specified in the
permit. R
323.2145. Within 14 days after the interim date of compliance or the final date of compliance specified in the permit, the discharger must submit a written notice of compliance or noncompliance to the DNRE. Failure to submit the written
notice is cause for the DNRE to pursue enforcement action against the
discharger. R
323.2146.
b. Civil and
Criminal Sanctions §2.31
The DNRE may request the attorney general to commence a
civil action for appropriate relief against a person who violates Part 31 or a
provision of a permit, order, or rule. MCL 324.3115 (1). Appropriate relief may include temporary or permanent injunctions, civil
penalties, or criminal penalties. Actions should be brought in the circuit
court for Ingham County or the county in which the defendant is located,
resides, or is doing business. Id. The court can impose a minimum civil
fine of $2,500 and may additionally grant attorney fees and costs to the
prevailing party. The maximum civil fine the court can grant is $25,000 per day
of violation. Id.
In criminal prosecutions under Part 31, a person may be
fined not less than $2,500 or more than $25,000 for each violation and be
guilty of a felony if at the time of the violation the discharger:
1.
Knew or should have known that the discharge was unlawful;
2.
Knew or should have known that the discharge was contrary to a permit,
order, rule, or stipulation of the DNRE;
3.
Intentionally makes a false statement, representation, or certification
pertaining to a permit, notice, or report required by permit terms and conditions;
or
4.
Intentionally renders inaccurate a monitoring devise or record to be
maintained by the DNRE.
MCL
324.3115(2). For second time offenders, the court shall impose a fine of not less than $25,000 per day and not more than $50,000 per day of
violation and may additionally sentence the defendant to two years in prison,
or impose probation.
In addition to a fine, the attorney general may file a
civil suit to “recover the full value of the injuries done to the natural
resources of the sate and the costs of surveillance and enforcement by the
state resulting from the violation.” Id. Civil penalties for violations
under Part 31 may be awarded for violations that occur before the offender was
notified of the violations as well as any violations occurring after the
offender receives notice. Attorney General v John A Biewer Co, 140
Mich App 1; 363 NW2d 712 (1985). A person, however, is not subject to
penalties if the discharge of the effluent is in conformance with and obedient
to a rule, order, or permit of the DNRE. MCL 324.3115(2).
For civil defendants whose actions pose or posed
substantial endangerment to the public health, safety, or welfare, the court
“shall” impose an additional fine of not less than $500,000 and not more than
$5,000,000. MCL
324.3115(3). For criminal defendants whose actions pose or posed substantial endangerment to the public health, safety, or welfare, the
court “shall” impose a fine of not less than $1,000,000 and a five-year prison
sentence. MCL
324.3115(4). Pursuant to MCL 324.3115(5), a civil or criminal defendant is liable for “substantial endangerment” if the court determines that the defendant
knowingly or recklessly acted in a way that caused danger of death or serious
bodily injury and
1.
the defendant had an actual awareness, belief, or understanding that his
or her conduct would cause substantial danger of death or serious bodily
injury, or
2.
the defendant acted in gross disregard of the standard of care that any
reasonable person should observe in similar circumstances.
All fines and awards ordered paid are made payable to the
state of Michigan and will constitute a lien on any property owned by the
defendant. MCL
324.3115(7). This lien has priority over all other liens and encumbrances except liens filed or recorded before the date of judgment,
provided that notice of the lien was properly recoded and filed. MCL 324.3115(8). Fines and awards ordered paid may be recovered by right to setoff any debt owed to
the defendant by the state of Michigan, including the right to a refund of
income taxes paid. MCL
324.3115(10).
Michigan water quality standard requirements are
established to “protect the public health and welfare, to enhance and maintain
the quality of water, and to protect the state’s natural resources.” R
323.1041. These water quality standards apply to the Great Lakes, the connecting waters, and all other surface waters of the state. Id. The water quality standards are used to improve water quality of water bodies that have been
degraded due to past human activities and are the minimum water quality
requirements by which the waters of the state are to be managed. Id. Permits
specify limitations on wastewater constituents, which at a minimum ensure
compliance with federal standards. Township ordinances that impose more
rigorous standards for wastewater discharge than those imposed by the DNRE are
preempted by NREPA because a patchwork of inconsistent local regulations
undermines the state’s ability to control water pollution. City of Brighton
v Hamburg Twp, 260
Mich App 345; 677 NW2d 349 (2004). This regulatory scheme gives the DNRE
sole responsibility for regulating point source discharges into state waters in
order to achieve uniformity. Id.
Michigan surface-water quality standard requirements are
found at R 323.1050-.1117. The DNRE uses these standards to develop effluent limitations for each NPDES permit. Water characteristics most often regulated in permits include dissolved solids, pH, taste- and odor-producing substances, toxic substances, radioactive substances, plant nutrients, microorganisms, dissolved oxygen, and temperature. R
323.1051 to .1075. To determine compliance with water quality standards, state waters are analyzed pursuant to procedures outlined in 40 CFR 136 or methods approved by the DNRE and the EPA. R
323.1096.
State surface waters are designated and protected for uses
that include, but are not limited to, agriculture, navigation, industrial water
supply, public water supply at the point of water intake, warm-water fisheries,
other indigenous aquatic life and wildlife, and partial body contact. R 323.1100(1). When a portion of a water body is designated for more than one use, then the designated use with the most restrictive water quality standards will apply to the water-body. R 323.1105. To restore designated uses that are interrupted due to uncontrollable circumstances during or following flood conditions, accidental spillages, or other emergencies, the discharger must take prompt corrective action and notify affected entities. R 323.1100(3).
Under certain circumstances, a variance may be granted
from a water quality standard that is the basis of a water quality-based
effluent limitation in an NPDES permit. The variance applies only to the
permittee(s) requesting the variance and only to the pollutant(s) specified in
the variance. R 323.1103(1). The duration of the variance cannot exceed the term of the NPDES permit. Id. The variance may be granted if the permittee demonstrates that attaining the water quality standard is
not feasible for any of the following reasons:
1.
Naturally occurring pollutant concentrations prevent the attainment of
the water quality standard;
2.
Natural, ephemeral, intermittent, or low flow conditions or water levels
prevent the attainment of the water quality standard;
3.
Human-caused conditions or sources of pollution prevent the attainment
of the water quality standard and cannot be remedied or more environmental
damage would occur in correcting the conditions or sources of pollution than
would occur by leaving the conditions or sources in place;
4.
Dams, diversions, or other types of hydrologic modifications preclude
the attainment of the water quality standard, and it is not feasible to restore
the water body to its original condition or to operate the modification in a
way that would result in the attainment of the water quality standard;
5.
Physical conditions related to the natural features of the water body
preclude attainment of the water quality standard; or
6.
Controls more stringent than the treatment technology requirements in
the Clean Water Act would result in unreasonable economic effects on the
discharger and affected communities.
R 323.1103(2). The DNRE additionally requires the permitee to characterize the extent of any increased risk to human health and the environment associated with granting the variance,
and to show that the variance requested conforms to the anti-degradation
demonstration requirements of R 323.1098; R 323.1103(3). The DNRE will deny an NPDES permit variance request if the permittee fails to complete the required demonstrations. R 323.1103(7).
New dischargers may not apply for a variance unless the
proposed discharge is “necessary to alleviate an imminent and substantial
danger to the public health or welfare.” R
323.1103(1)(b). Water quality variances will not be granted if (1) the variance
would likely jeopardize the continued existence of endangered or threatened
species or destroy or adversely modify their habitat, or (2) the water quality
standard in the receiving water will be attained by implementing the CWA’s
treatment technology requirements and cost-effective and reasonable best
management practices for nonpoint sources over which the discharger has control
within the vicinity of the facility. R
323.1103(1)(c), (d).
Pretreatment rules, which are found in R 323.2301- R
323.2317, apply to nondomestic users that discharge pollutants to POTWs either directly or indirectly, including by truck, rail, or any other means, and apply to POTWs that receive pollutants from nondomestic users that are subject to
pretreatment standards. R 323.2301.
A nondomestic user may not discharge any pollutant into a
POTW that would cause pass-through or interference. R 323.2303. A “pass-through” is a discharge that exits a POTW into state waters in quantities or concentrations that alone or in conjunction with a discharge or discharges from other sources, causes a violation of any requirement of the act. R 323.2302(t). An “interference” is a discharge, alone or in conjunction with a discharge or discharges from other sources, that (1) inhibits or disrupts the POTW, its treatment processes or operations,
or its sludge processes, use, or disposal; and (2) is a cause of violation of
any requirement of the POTW’s permit, including an increase in the magnitude or
duration of a violation, or the prevention of sewage sludge use or disposal
incompliance with applicable laws, regulations, and permits. R
323.2302(o).
Nondomestic users are prohibited from introducing certain
substances into POTWs, which include, among other things, pollutants that
create a fire or explosion hazard; pollutants that will cause corrosive
structural damage to the POTW, including all discharges with a pH lower than
5.0 unless under the POTW’s approval; heat that will inhibit biological
activity in the POTW resulting in interference; petroleum oil,
non-biodegradable cutting oil, or other products of mineral oil origin in
amounts that will cause interference or pass-through; or pollutants that result
in the presence of toxic gases, vapors, or fumes within the POTW in a quantity
that may cause acute worker health or safety problems. R
323.2303(2).
State and national permits require POTWs to develop and
implement a pretreatment program to control the introduction of pollutants. R 323.2305. The POTW pretreatment program must be approved by DNRE. R 323.2307. POTWs subject to industrial pretreatment program requirements in accordance with R
323.2305(2) have the authority to require compliance with applicable pretreatment standards by nondomestic users. R 323.2306. To ensure compliance the POTW may carry out all necessary inspections, surveillance, and monitoring procedures on nondomestic users. Id. The POTW also has the authority to control, through a permit, the contribution to the POTW by each significant industrial user. See R
323.2306 for a complete list of industrial pretreatment program requirements and legal authority.
Among the permit requirements stipulated by R 323.2306 are the requirements that the permit contain: (1) a statement of the duration of the permit, which
shall not be more than five years; (2) a statement of permit nontransferability
without prior notification to the POTW and provision of a copy of the existing
permit to the new owner or operator; (3) effluent limits based on applicable
general pretreatment standards, categorical pretreatment standards, local
limits, and state and local law; (4) self-monitoring, sampling, reporting,
notification, and recordkeeping requirements, including identification of the
pollutants to be monitored, sampling location, sampling frequency, and sample
type, based on the applicable general pretreatment standards, categorical
pretreatment standards, local limits and state and local law; and (5) a
statement of applicable civil and criminal penalties
for violation of pretreatment standards and requirements and any applicable compliance
schedule. The schedule may not extend the compliance date beyond applicable
federal deadlines.
Current rules for spillage of oil and polluting materials
became effective August 31, 2001. R 324.2001- R
324.2009. These rules rescinded R 323.1151-.1159, .1162-.1164, and -.1169. The new rules clarify the definition of oils and expand the definition of salt. Polluting materials include salt, oil, and any other
chemical included in R 324.2009,
and any compound that contains 1% or more, by weight, of these materials (based
on the material safety data sheet formulation information). R 324.2002(a). “Salt” includes sodium chloride, potassium chloride, calcium chloride, and magnesium chloride, and solutions or mixtures of these compounds in solid or liquid form. R 324.2002(c).
The new rules clarify the definition of on-land and oil
storage facilities. An “oil storage facility” is defined as any temporary or
permanent facility that receives, manufactures, uses, stores, or ships oil, and
at which there is present an amount of oil equal to or more than the threshold
management quantity and which is so situated that oil could directly or
indirectly reach state surface or groundwaters, including any facility that
discharges through a public sewer system. R 324.2001(f). For oil, the threshold management quantity is 1320 gallons in aboveground tanks or containers if no single tank or container has a capacity of more than of 660 gallons. R 324.2002(f)(iii). An “on-land facility” is defined like oil storage facility, but broadens the definition by substituting “polluting materials” in place of “oil.” R 324.2001(g). These definitions expressly exclude oil field petroleum or brine storage facilities, recreational marinas, installations of oil-containing electrical equipment, or
transportation-related facilities as defined in 40
CFR Part 122. R 324.2001(f)-(g). See R 324.2003 for other facilities that are exempt from these rules.
Oil storage and on-land facilities are required to
maintain adequate surveillance of the facility area so that discharges of
polluting material can be detected in a timely manner and procedures can be
implemented to prevent the polluting materials from reaching state waters. R 324.2004. The owner or operator of any on-land facility needs to also develop, maintain, and operate a pollution incident prevention plan (PIPP). R
324.2006. A PIPP should include general facility information, procedures for emergency notification for necessary entities, spill control and cleanup procedures, a polluting material inventory, a site plan depicting relevant site
structures and all storage and use areas where polluting materials are managed
on-site in quantities exceeding the threshold management quantity, information
on outdoor secondary containment structures, and provisions for general
facility security. Id. Within 30 days of completing the PIPP, the owner
or operator is required to notify the DNRE so that the DNRE may inspect and
certify that the facility is in full compliance. Id. The owner or
operator of the facility needs to evaluate the PIPP every 3 years or after any
release that requires implementations of the plan, whichever is more frequent. Id.
If a facility releases any polluting material in excess of
a threshold reporting quantity within a 24-hour period, the owner, operator, or
manager of an oil or on-land facility must notify the DNRE by calling
1-800-292-4706. R 324.2007(1). A “threshold reporting quantity” includes the following:
- For releases of oil to the surface of the ground, 50 pounds.
- For
releases of oil to the waters of the state, any quantity that causes
unnatural turbidity, color, visible sheens, oil films, foams, solids, or
deposits in the receiving waterbody.
- For release of salt to the surface of
the ground, or waters of the state, 50 pounds in solid form, unless the
use is authorized by the department for deicing purposes, or 50 gallons in
liquid form, unless authorized by the department as a dust suppressant or
deicing agent or permitted under part 31 of the act.
- For releases of all other polluting
materials, the quantity specified in table 1 in R 324.2009, or any
quantity that causes unnatural turbidity, color, visible sheens, oil
films, foams, solids, or deposits in the receiving waterbody.
Within 10 days of the release exceeding threshold
reporting quantity, the owner or operator of the facility must submit a written
report to the DNRE outlining the cause of the release, discovery of the
release, and the response measures taken and/or a schedule for completion of
measures to be taken. R 324.2007(2).
Any person who violates any provisions of these rules is
subject to the procedures and penalties outlined in Sections 3112,
3115, and 3115a of Part 31 (see § 2.31).
The DNRE has regulatory authority over all sewerage
systems and those who are engaged in sewage treatment service. MCL 324.4102. Treatment facilities are classified into four class designations of A, B, C and D, based on population served, type of treatment facility, the character and volume of wastes to be treated, and the use and nature of state waters
receiving the effluent. R 299.2911(1). The class designations identified by R 299.2911(1) are as follows:
1.
Class A, treatment facilities serving
or designed to serve a population of 50,000 or more persons.
2.
Class B, treatment facilities serving
or designed to serve a population of 10,000 or more, but less than 50,000,
persons.
3.
Class C, treatment facilities serving
or designed to serve a population of 2,000 or more, but less than 10,000,
persons.
4.
Class D, treatment facilities serving
or designed to serve a population of less than 2,000 persons.
Individuals desiring to be certified and classified for
operation of a treatment facility must submit an application to the DNRE and
take a written examination. See R 299.2918-.2927.
Before constructing or altering of a sewerage system,
applicants must first submit plans and specifications of the proposed project,
which include an engineering report, to the DNRE for review and issuance of a
construction permit. R
299.2933-.2936. In evaluating the application, the DNRE considers design criteria as set forth in recommended standards for sewage works and assures that the sewerage system is designed to protect the public health and prevent unlawful pollution. See R 299.2938-.2942. The DNRE will then approve or deny the issuance of a permit.
Sewage system developers no longer need to obtain a
resolution from the municipality, pursuant to R
299.2933(4), before the DNRE will consider their application. The court in Lake Isabella Dev, Inc v Village of Lake Isabella, 259
Mich App 393; 675 NW2d 40 (2003), held that Rule 299.2933(4) was (1) contrary to the legislative intent underlying the DNRE’s enabling statute because it gave municipalities indirect veto power and created a new burden and new
remedy instead of an enforcement mechanism, and was (2) arbitrary and
capricious because it constituted an unlawful delegation of discretionary power
to municipalities, sought to impose operational mandates upon municipalities
ill-adapted to comply with those mandates, and was unnecessary to the DNRE for
enforcement. DNRE Water Bureau has since published its Policy and Procedures to
“ensure that sewage systems governed under Part 41 are continually operated and
maintained to avoid the unauthorized discharge of raw or untreated sewage into
the waters of the state; and to ensure that sewage is not potentially
prejudicial to the public health”. WB-010,
Privately Owned, Publicly Used, Sewage Systems Permit Approval effective date
July 26, 2007, Revision Date October 30, 2007.
Sewerage systems are required to provide adequate
operating staff to carry out the proper operation, maintenance, and laboratory
testing functions to ensure the facility is functioning in a manner that will
minimize upsets and discharges of excessive pollutants. R 299.2955. The owner of the treatment facility is required to prepare an operation and maintenance manual that describes the function, start-up, shutdown, and periodic maintenance procedures for each unit process and each item of mechanical and electrical equipment. R 299.2957. A copy of the manual must be submitted to the DNRE for review at least 60 days before the date of operation. Id.
When operating a sewerage system during construction or
alteration, the bypassing of untreated wastewater or reduction in treatment
effectiveness should be avoided. A program for completing the work in a way
that will minimize pollution effects on receiving waters must be submitted to
the DNRE for review and approval. R 299.2943.
If a breakdown of a sewerage system or emergency situation
results in a discharge of pollutants in excess of those authorized by a
discharge permit, the owner is required to take all necessary measures to
correct the breakdown or emergency and eliminate or reduce the discharge of
excessive pollutants. R 299.2959(1). The owner must promptly notify the DNRE about the discharge and within 72 hours submit a written report stating the cause, the discovery, and the corrective actions taken
to restore the facility and minimize the adverse impact on state waters. R 299.2959(2).
A person who violates Part 41 is guilty of a misdemeanor
punishable by imprisonment for not more than 90 days or a fine of not more than
$500, or both, and payment of the costs of prosecution. MCL 324.4110(3). Each day for which a violation occurs is a separate and additional violation. Id.
Pursuant to MCL 324.4301, a local unit of government, either individually or jointly by agreement with another local unit of government, may own, acquire, construct, equip, operate, and maintain, either within or outside of the statutory or corporate limits
of the local unit or units of government, intercepting sewers, plants for
treatment and disposal of waste, and waterworks systems approved by the DNRE
for the purpose of obtaining, treating, and delivering quality water in
adequate quantity to the local unit or units of government. When the DNRE, or a
court has ordered, or when the DNRE has issued a permit, the legislative body
of the local unit of government may issue and sell all necessary bonds for
construction, installation, alteration, operation, or improvement of the
proposed system or facilities set forth in the order or permit. MCL 324.4307. The legislative body determines the denominations of the bonds and the date, time, and manner of payment. Id.
The DNRE has the power and the duty to foster and
encourage the organization of sewage disposal and water supply districts; to
cooperate, negotiate, and enter into contracts with other governments,
governmental units and agencies in matters concerning water supply systems and
sewage disposal systems; and to act as a fiscal agent for the state for the
purpose of making money available to local units of government for the
construction and operation of sewage disposal systems. MCL 324.4702. Two or more municipalities may file a petition with the DNRE requesting that a sewage disposal district or a water supply district or combination of both, be organized to function in the area. MCL 324.4703. Within 30 days, or under certain circumstances, within 90 days, the DNRE will hold a hearing on the desirability and necessity of the creation of a district, the appropriate district boundaries, and all questions related to the matter. MCL 324.4704. After the hearing, the DNRE will approve the petition if it finds creating a district will serve the public health and welfare. MCL 324.4705. Alternatively, the DNRE will deny the petition if the district within the defined boundaries is not feasible from the standpoint of engineering, administration, and financing. Id.
Once a water supply district is created under this part,
it serves as a governmental subdivision of the state and a corporate body,
exercising public powers, with the power to sue and be sued in any court of the
state. MCL 324.4708. The district also may enter into contracts with any municipality located within its territorial limits providing for the acquisition, construction, improvement, enlargement, extension, operation, and financing of a sewage disposal
system or water supply system. MCL 324.4709.
The legislature established the state sewer construction
fund to provide state grants to local agencies to finance construction of
collecting sewers. MCL
324.4903. Grants are made only for collecting sewers on which contracts for construction were awarded prior to the exhaustion of the fund. Id. Under MCL 324.4905, grants are subject to the following limitations:
- A grant shall not be made for
collecting sewers required under the subdivision control act of 1967 (now
land division act), 1967 PA 288, MCL 560.101-.293.
- A grant shall not be made for
collecting sewers for which a federal grant has been made if the amount of the
federal grant equals or exceeds the amount of the state grant that the
collecting sewers would have received if there had been no federal grant. If
the amount of the federal grant made for the collecting sewers is less than the
amount of the state grant that the collecting sewers would have received if
there had not been a federal grant, the amount of the state grant made for the
collecting sewers shall not exceed the difference between the state grant that
the collecting sewers would have received if there had not been a federal
grant, and the federal grant
- A grant shall not be made for
collecting sewers, the construction of which would result in the discharge
of untreated or inadequately treated sewage to the waters of the state.
- A grant shall not be made
unless the local agency has received approval by the department of an
official pollution control plan as required by sections 7 and 8 of 1966 PA
329, MCL 323.117-.118, and the collecting sewers are in conformity with the official plan.
- A grant shall not be made for
collecting sewers that the department determines would not meet an
existing or imminent need or would constitute a noneconomic or speculative
project.
- A local agency shall not be
allotted more than 2% of the fund.
The director of the department of management and budget
and the state treasurer makes disbursements from the state sewer construction
fund. MCL 324.4904, .4912(4). Disbursements from the fund to a local agency are made for projects on
the priority list established under MCL 324.4904, .4912. See MCL 324.4909-.4912 for all priority project certification procedures.
Part 53 provides for a state water pollution control revolving
fund. MCL 324.5301 et seq. The state revolving fund (SRF) allows municipalities to receive low interest loans for constructing wastewater treatment facilities. Through the 2007 fiscal year, the SRF program has provided loans for 305 projects,
totaling $2.846 billion. [Michigan.gov, DNRE: Clean
Water Revolving Funds, (last visited July 23, 2008).]
To receive assistance, a municipality must first submit to
the DNRE a project plan for a tier I or tier II project. DNRE uses the project
plans to develop a project priority list. Project plans should demonstrate the
need of the project to assure maintenance, or progress toward, compliance with
the CWA or Part 31, and to meet the minimum requirements of the National
Environmental Policy Act of 1969. MCL 324.5303(3). According to R 323.952 to .953 in order to ensure that tier II projects are completed in an environmentally sound manner, project plans should demonstrate “sufficient detail” on (a) the background, (b) analysis of alternatives, (c) basis of design, (d) environmental
impacts, and (e) public participation.
After notice and opportunity for public comment, the DNRE
develops three separate priority lists: one for sewage treatment works projects
and stormwater treatment projects, one for nonpoint source projects, and one
for projects funded under the strategic water quality initiatives fund. MCL 324.5303(5); R 323.957. Under MCL 324.5202 loans will be disbursed through the strategic water quality initiatives program meant to provide assistance to projects seeking to improve a sewage water system for one or more of the following:
- Improvements
to reduce or eliminate the amount of groundwater or storm water entering a
sanitary sewer lead or a combined sewer lead.
- Upgrades or replacements of failing on-site septic
systems that are adversely affecting public health or the environment, or
both.
The project priority list ranks the municipal projects
based on (1) the severity of the water pollution problem, (2) whether the
project is necessary to comply with an order, permit, or legal requirement, and
(3) the residential population to be served by the project. R 323.958-.960.
Using the priority list, the DNRE annually prepares and
submits to the EPA an intended use plan to identify proposed intended uses of
the fund. Intended use plans include a copy of the state’s priority list,
description of long and short term goals of the fund, description of projects
on the priority list, necessary proposals indicating how the state intends to
meet applicable federal requirements, criteria and methods used for
distribution of the fund, description of the public participation process, and
any other appropriate information. MCL 324.5306.
The DNRE reviews the project plans for projects and
approves or disapproves the plans typically within 120 days of notifying the
municipalities of their inclusion in the intended use plan. MCL 324.5307. If the project is disapproved, the DNRE will notify the municipality of the deficiencies that need to be corrected. Id.
The DNRE may terminate assistance if it determines that
there is (1) a substantial failure to comply with the terms and conditions of
the agreement providing assistance, (2) a legal finding or determination that
the assistance was obtained by fraud, (3) a practice in the administration of
the project that is illegal or impair the successful completion or organization
of the project, or (4) misappropriation of assistance for uses other then those
set forth in the agreement providing assistance. MCL 324.5312. The DNRE will give written notice to the municipality of its intent to terminate assistance within 30 days before it moves forward with the appropriate action to terminate assistance. Id.
Persons are prohibited from “placing, throwing,
depositing, discharging, or causing to be discharged into or onto state waters,
any litter, sewage, oil, or other liquid or solid materials that render the
water unsightly, noxious, or otherwise unwholesome so as to be detrimental to
the public health or welfare or to the enjoyment of the water for recreational
purposes.” MCL
324.9502. Part 95 of the NREPA prohibits the discharge of all sewage, whether treated or untreated, from watercraft in Michigan waters. Lake Carriers’ Ass’n v Director of Dep’t of Natural Resources, 407
Mich 424; 286 NW2d 416 (1979).
Persons are prohibited from discharging oil from a
watercraft or a docking facility into or onto state waters. MCL 324.9505(1). The owner or operator of a watercraft that discharges or contributes to the
discharge of oil into or onto state waters is required to immediately remove
the oil from the waters, shorelines, or beaches. MCL 324.9505(2). If the state removes the oil that was discharged from the watercraft, the owner or
operator, or both, are liable to the state for the full amount of the cost of
removing the oil. Id.
Part 95 regulates marine sanitation devices, which are
defined as equipment installed on board watercraft to receive, retain, treat,
or discharge sewage. MCL
324.9501(e). Marine sanitation devices are required to be equipped with pollution control devices with (1) an approved holding tank that
will retain all sewage produced on the watercraft or (2) an incinerating
device that will reduce to ash all sewage produced on the watercraft. MCL 324.9503. Watercraft with a marine sanitation device equipped with any type of bypass
connection, pump, or other means of directly or indirectly discharging sewage
into state waters are prohibited unless the bypass connection, pump, or other
device has been rendered incapable of discharging sewage. MCL 324.9503(2). Under MCL 324.9503(2)(a), (b) a bypass connection, pump, or other device is rendered incapable of
directly or indirectly discharging sewage into the waters of the state of
Michigan by:
- Removing a section of the pipe
or tubing that allows discharge of sewage into the waters of this state,
placing a cap over the pipe or tubing that remains attached to the marine
sanitation device, and placing a seal approved by the department over the
cap in a manner that precludes reattaching the pipe or tubing without
breaking the seal. To comply with the requirements of this subsection, the
seal must be unbroken at the time an inspection occurs.
- Closing
a valve that will prevent all discharge of sewage into the waters of the
state, and placing a seal approved by the department over the valve handle
in a manner that precludes reopening the valve without breaking the seal.
To comply with the requirements of this subsection, the seal must be
unbroken at the time an inspection occurs.
All docking facilities, which include public, private, or
commercial marinas, yacht clubs, docks, and wharves used for mooring, serving,
or otherwise handling watercraft, are required to provide DNRE approved
pump-out facilities for marine sanitation device holding tanks on the
watercraft. MCL
324.9504. Docking facilities that service only small watercraft of a type not equipped with marine sanitation devices or having a capacity of 15 watercraft or less are exempt from providing pump-out facilities. Id. Docking facilities
that contract and use a pump-out facility of a nearby docking facility are
exempt provided that the docking facility was constructed before May 1, 1990
and capacity has not expanded by a cumulative amount exceeding 25% or more than
15 slips, whichever is less. Id.
All watercraft, marinas, or other waterside facilities
used by watercraft may be inspected by the DNRE, peace officers, conservation
officers, or police officers to ensure compliance with Part 95. MCL 324.9506. Persons in violation of Part 95 under this part are guilty of a misdemeanor punishable by imprisonment up to 92 days and/or a fine of not more than $500. MCL 324.9510. Part 95, however, bars the enforcement of any of its provisions that would cause a violation of federal law, but does not prevent the enforcement of standards for Michigan waters which exceed federal requirements. Lake Carriers’
Ass’n v Director of Dep’t of Natural Resources, 407
Mich App 424; 286 NW2d 416 (1979).
The Great
Lakes Water Quality Agreement was first signed in 1972 and renewed in 1978
to express the commitment of the United States and Canada to restore and
maintain the chemical, physical, and biological integrity of the waters of the
Great Lakes Basin Ecosystem. The agreement was amended by the 1987 Protocol
that introduced provisions to develop and implement Remedial Action Plans
(RAPs) for Areas of Concern and Lakewide Management Plans (LaMPs) to control
critical pollutants. An Area of Concern is a polluted location on the Great
Lakes. Currently there are 14
Areas of Concern within Michigan’s Jurisdiction, 10 of which are completely
within Michigan’s borders.
LaMPs were developed to reduce the loadings of critical
pollutants in the open waters of the Great Lakes, and to restore the beneficial
uses in areas where they are impaired. The United States and Canada share the
responsibility for developing and implementing LaMPs for Lake Superior, Huron,
Erie, and Ontario, while Lake Michigan is solely under United States
responsibility.
The most recent Annexes to the agreement address
atmospheric deposition of toxic pollutants, contaminated sediments,
groundwater, and nonpoint source pollution.
In 1976, the legislature enacted the Safe Drinking Water
Act, MCL 325.1001
et seq., to ensure that public water supply systems meet minimum national standards for the protection of the public health. The DNRE has control over Michigan’s public water supplies and suppliers of water, is therefore allowed to enter the
waterworks system of a water supplier for inspecting the system and making sure
it is in compliance with the act. MCL 325.1003. The act incorporates maximum contaminant levels for inorganic and organic chemicals, microbiological contaminates and turbidity set forth under the federal drinking water regulations. MCL 325.1006.
Before commencing the construction, alteration, addition,
or improvement of a waterworks system, the water supplier must first submit its
plans and specifications for the construction to the DNRE to obtain a permit. MCL 325.1004(6). A professional engineer licensed under article 20 of the occupational code, MCL 339.2001-.2014, must prepare the plans and specifications. Id. The DNRE will deny a permit when the most recent capacity assessment shows that the waterworks system does not have adequate technical, financial, or managerial capacity to
meet the requirements of this act. MCL 325.1004(7).
The director of the DNRE appoints an advisory
board of examiners to assist the DNRE in examining individuals’ competency
in operating water treatment systems and water distribution systems. MCL 325.1009(2). The DNRE issues certificates to individuals meeting the requirements, recognizing
their ability to operate a specified class of waterworks system. MCL 325.1009(4).
Violations under the Safe Drinking Water Act are
misdemeanors subject to maximum imprisonment of one year, fines, civil
penalties (up to $5,000 for each day of violation), and injunctions. MCL 325.1021-.1022.
The director of the DNRE may award grants and enter into
contracts with developers who implement the physical improvement portion of an
approved watershed management plan or to those who reduce nonpoint source
pollution from identified sources. MCL 324.8802(2); R
324.8803. Only counties, cities, villages, townships, and non-profit entities are eligible to apply for these grants. See R 324.8805. Applications must be submitted to the DNRE and should include a detailed description of the project, an explanation of how the project is consistent with an approved watershed plan (if applicable), and a description of the total cost of the project and the source of the local government’s contribution to the project. MCL 324.8804. See R 324.8804 for a complete list of all application requirements.
In selecting projects for a grant award, the DNRE
considers many factors which include: the expectation for long term water
quality improvement and protection of high-quality waters, anticipated water quality
benefits of the project in relations to the cost, the length of time the
applicant has committed to maintain the physical improvements, and whether the
project provides benefits to sources of drinking water. MCL 324.8803; R 324.8806.
Following project selection, the DNRE and the grantee
enter into a contract that establishes the work to be conducted and the
commitment of the funds. R 324.8808(2). The grantee must submit quarterly status reports to the DNRE and allow the DNRE on the site for inspections to ensure the project’s environmental benefits and consistency
with approved site plans. R 324.8807(1), (3). The DNRE may revoke a grant or withhold payment to a grantee who fails to comply with the terms and conditions of the grant. R 324.8807(7).
Created within the state treasury, the Clean Water Fund
was designed to financially help those involved in water pollution control
activities, wellhead protection activities, and stormwater treatment projects
and activities. MCL
324.8807. Under Part 88, the DNRE may award grants and enter into contracts with individuals involved in activities such as implementing recommendations in LaMPs and RAPs that will directly protect or improve water quality, implementing
portions of the surface water monitoring strategy, or implementing programs to
identify and correct illicit connections to separate stormwater sewer systems. R 324.8907(1). Only local governmental units and non-profit entities are eligible for a grant under the Clean Water Fund. R
324.8908(2). In addition to being a local unit of government or a non-profit entity, R 324.8908 eligibility is attained through the satisfaction of the following requirements:
- The applicant shall demonstrate the capability to carry
out the proposed project.
- The applicant shall demonstrate that there is an
identifiable source of funds for future maintenance and operation of the
proposed project, if appropriate.
- The applicant shall have undergone a successful financial
audit within the 24-month period immediately preceding the application for
a grant.
- Within the 24 months immediately preceding the application
for a grant, the applicant shall not have demonstrated an inability to
either manage a grant or meet the obligations in a contract with the
department.
- Within the 24-month period immediately preceding the
application for the grant, the applicant shall not have had a grant from
any program within the department revoked or terminated due to the
applicant's inability to meet the terms or condition of a grant.
The applicant must also satisfy the requirements
stipulated in R
324.8909. The application requirements and project selection criteria are similar to those in the Clean Michigan Initiative Nonpoint Source Pollution Control Grants. See R 324.8909 for a listing of application requirements. R 324.8910 defines the criteria for project selection as requiring a showing that the applicant has considered future/ long-term goals for improved water quality and is financially capable of committing themselves to the project in order to ensure successful completion.
After a grant is awarded, the grantee must submit a final
project report to ensure the final project is consistent with the format
provided by the DNRE. R 324.8911(3). The final project report should include a brief narrative description of the project, the number and types of best management practices implemented, pollutant reduction
information, and before and after pictures. Id. The grantee must also
contribute match funds. R 324 8912. Depending on the type of activity receiving the grant, matching funds are a minimum of 25% of the project’s total cost, but can be as high as 66% of the project’s total cost. See id.
print this page
