Why have a Storm Water Management Program? or In other words Why deal with storm runoff anyway? 3/20/2012. Why have a Storm Water Management Program?

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1 3/20/2012 Jackson s Storm Water Utility First in Michigan since the Bolt Decision Michigan Water Environment Association Jon H. Dowling, P.E. City Engineer/Director of Public Works March 14, 2012 Agenda Why have a Storm Water Management Program? What is a Storm Water Utility and why create one? What are the problems in creating the Utility? What is the Bolt Decision and why should we care? 2 Why have a Storm Water Management Program? or In other words Why deal with storm runoff anyway? Page 1

2 3/20/ Cuyahoga River Fire City of Jackson Sewer Construction Around 1926 Grand River Cap Construction in 1930 s Page 2

3 3/20/2012 Grand River Cap Removal June 8, 2000 Grand River Expedition July 15, 2010 Storm Water Runoff Storm water runoff occurs when rain and snow melt flows over the ground. People often do not realize the runoff can carry many contaminants like construction site erosion, fertilizers, oil leaks from vehicles onto parking lots and streets, pet waste left in parks, etc., into our waterways. 9 Page 3

4 Municipal Separate Storm Sewer System (MS4) Programs must be established for: Public Education and Outreach Public Participation/Involvement Illicit Discharge Detection and Elimination Construction Site Runoff Control Post-Construction Runoff Control Pollution Prevention/Good housekeeping For further information: 10 Jackson s MS4 Permit In 2003 the City obtained a NPDES Phase II permit Municipal Separate Storm Sewer System (MS4) Storm water management can no longer be addressed solely by building larger pipes and drains to carry the storm water to the river faster, but must be analyzed from a total water resources management point of view. 11 MS4 Permit Requirements TMDL s - sediments - pathogens - dissolved oxygen/organic enrichment WMP PPP SWPPI PEP IDEP + a new City Ordinance 12 Page 4

5 Public Education What is a Storm Water Utility and why create one? What is a Public Utility? A public utility is an organization that maintains the infrastructure for a public service -- It Treats the water -- It Pipes the water -- It Charges you a Utility Fee for the water 15 Page 5

6 Why create a Public Utility? Why not fund all activities from the City General Fund? Is water consumption tied to property value? General Fund Taxes are! Do all who consume water pay property taxes? Hospitals & Schools do not! 16 Each Dot (1175) is a Storm Water Utility Western Kentucky University Survey Michigan Stormwater Utilities 1984: Ann Arbor 1992: Harper Woods 1993: Adrian Saint Clair Shores 1994: Berkley Marquette 1995: Lansing (Rescinded) 1996: Brighton (On hold since 2004) 1997: Chelsea New Baltimore 2011: Jackson 18 Page 6

7 Jackson s Storm Water Utility Jackson s Storm Water Utility was created by Ordinance in January 2011 For the purpose of conducting the City s storm water management program to protect the public health, safety and welfare To provide for the proportional allocation to property owners of the necessary costs of the storm water utility Establishes regulations for the use of the storm water system 19 Funding Storm water activities in the past were funded by: Property taxes Gas and weight tax revenues (Street Funds) It is up to each municipality to secure funding in the most equitable way to assure that all mandated rules and regulations are being met. Storm Water Utility revenue would provide a dedicated funding source to provide for storm water management and leave the other funding sources available for their appropriate services. 20 Budget Development Engineering and Public Works staff reviewed past storm water-related spending accounts Consolidated these accounts into a storm water budget Storm water spending had gradually increased over the years to a significant amount based on permit requirements, worthy of its own dedicated funding source 21 Page 7

8 Jackson Storm Water Billing Method Computes parcel s relative storm water runoff Can be estimated by measuring the impervious and pervious areas of the parcel Residential rates are flat rate (identical) for all detached residences up to four units, billed quarterly Others are billed monthly based on individual property s Equivalent Hydraulic Area. 22 Equivalent Hydraulic Area Method IMPERVIOUS AREA 100 Drops PERVIOUS AREA 100 Drops paved 95 drops flow 5 absorbed Relative Runoff = Paved Area x Pervious Area x drops flow 85 absorbed grassy/ underdeveloped Equivalent Hydraulic Area (EHA) = 0.95 x Impervious Area x Pervious Area 23 EHA Method 0.95 x impervious area PLUS 0.15 x pervious area = EHA of property Impervious and pervious areas are measured to develop a number that represents the combined impact of the total area of the parcel. 24 Page 8

9 Jackson Storm Water Rates Residential Flat Rate: $8.00 per Quarter Others based on parcel area measurement, billed monthly: $2.70 x number of EHA units 25 Jackson Green Infrastructure Storm Water User Fee Credits Owners may apply for storm water user fee credits: Residential Property: Flat Rate 50 % Others: Storm Water Quantity: 37.5 to 75% Education: 25% Direct Discharge: Maximum of 75% 26 Storm Water Utility Benefits Provides for Storm Water Management Provides dedicated funding to comply with storm water regulatory requirements More money available for street improvements Charge all parcels equitably (including tax-exempt) based on Equivalent Hydraulic Area 27 Page 9

10 What are the problems In creating a Storm Water Utility? Problems in Creating Utility Using Existing Utility Billing Data Base - Vacant Properties need to be added - Rental Properties water bill to tenants storm water bill to owner These all need to be added and checked to verify that all properties are in data base this can take months of time 29 Problems in Creating Utility Setting up and tracking all of the Credits Property owners mad and don t want to pay. Property owners want all drainage problems fixed now because they are having to pay fee. Lawsuits WKU Survey 50 identified to date 30 Page 10

11 Storm Water Utility Challenges and Outcomes Western Kentucky University What is the Bolt Decision and why should we care? December 1998 Bolt Opinion Bolt v. City of Lansing, Michigan Were the Lansing Stormwater Utility fees valid? Or, did they constitute a tax? A fee is exchanged for a service rendered or a benefit conferred, and some reasonable relationship exists between the amount of the fee and the value of the service or benefit A tax, on the other hand, is designed to raise revenue. 33 Page 11

12 December 1998 Bolt Opinion Ten judges heard precisely the same case. Five said it was a tax : Markman, Weaver, Brickley, Kelly, Taylor Five said it was a fee : Saad, Wahls, Mallett, Boyle, Cavanagh 34 December 1998 Michigan Supreme Court Decided Lansing s stormwater utility fee was decided to be a tax, not a valid user fee The Bolt Opinion did not say that stormwater utilities are illegal in that it agreed with the following: This is not to say that a city can never implement a storm water or sewer charge Where the charge for either storm or sanitary sewers reflects the actual costs of use sewerage may properly be viewed as a utility service for which usage-based charges are permissible Created a three-part test to determine if a charge is a tax or a valid user fee 35 Three-Part Test Three-part test for valid user fee: 1.Serve a regulatory purpose rather than a revenue raising one 2.Be proportional to the necessary cost of service 3.Be voluntary users must be able to refuse or limit use of the service Test 1 is met because of need to comply with stormwater regulations and because the fees generated are deposited into a restricted, dedicated stormwater enterprise fund Need to document compliance with tests 2 and 3 36 Page 12

13 Three-Part Test Three part test applied to any user fee, such as: Water Sewer Stormwater System development charges ( connection fees) 37 Legal Challenges Subsequent Bolt legal challenges focused on water and sewer rates and system development charges ( connection fees ). 38 Bolt Legal Challenges 1999: Graham v. Kochville Twp: Connection Fees 2000: Fraser v. City of Berkley: Rates 2002: Grunow v. Frankenmuth Twp: Connection Fees Tobin v. Genesee County: Connection Fees 2003: Mapleview Estates v. Brown City: Connection Fees 2005: Grand Blanc Schools v. Genesee County: Connection Fees 39 Page 13

14 Impact of Bolt Lansing rescinded its stormwater utility No new Michigan stormwater utilities from 1997 to 2011 Michigan municipalities: Wanted bright line process that complied with Bolt Senate Bill Introduced & Died Waited for a municipality to go first Jackson proceeded and implemented its stormwater utility on April 26, 2011 December 2011 Lawsuit filed against Jackson 40 Questions? Jon Dowling, P.E. City of Jackson City Engineer/Director of Public Works jdowling@cityofjackson.org (517) Page 14