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S. Ct. decision May 31, 2016 U.S. Army Corps of Engineers v. Hawkes (578 U. S. (2016) Hawkes, owner of peat mining company in North Dakota, seeks to expand operations to wetlands in northwest Minnesota and sell peat for golf courses, sports turf, landscaping, and gardening 2

S. Ct. decision May 31, 2016 U.S. Army Corps of Engineers v. Hawkes (578 U. S. (2016) Corps issued jurisdictional determination (JD), stating that wetlands on Hawkes property were waters of the U.S. under the Clean Water Act Corps argued that its determination could not be challenged in federal courts because it was not a final agency action 3

S. Ct. decision May 31, 2016 U.S. Army Corps of Engineers v. Hawkes (578 U. S. (2016) Supreme Court disagreed, upholding Eighth Circuit ruling that JD, as issued by the Corps, constituted a final agency action and could be challenged in federal court 4

S. Ct. decision May 31, 2016 U.S. Army Corps of Engineers v. Hawkes (578 U. S. (2016) Why is this case relevant to KSA? In February 2012, in connection with the permitting process, the Corps JD stated that the property contained water of the United States because its wetlands had a significant nexus to the Red River of the North, located some 120 miles away! 5

US V Salt Lake County, Utah, Pending Consent Decree (signed by last of parties Jan 28, 2016): Salt Lake County owns and operates MS4 Authorized under NPDES permit to discharge stormwater through its MS4 to Jordan River, its tributaries, and tributaries of the Great Salt Lake County s MS4 serves approximately 141,500 people and covers unincorporated areas of Salt Lake County 6

CD requires: County shall implement and enforce its Illicit Discharge Detection and Elimination Program to systematically find and eliminate sources of nonstorm water discharges. No later than 30 days after Effective Date, County shall finalize standard operating procedures with other County departments, including but not limited to Parks and Recreation Operations, that contain formal procedures by which these departments will proactively employ BMPs to prevent non-storm water discharges to the MS4. County shall ensure that County departments are following these procedures 7

CD requires: County shall provide training, at least annually, to all field staff who, as part of normal job responsibilities, might reasonably come into contact with or otherwise observe an illicit discharge (e.g. County facility workers, maintenance staff, inspectors). County shall keep current a list of all field staff subject to this sub-paragraph. The County shall provide IDDE training, at least annually, to all staff on the list. The County shall keep records documenting that all staff on the list have completed the training at least annually. 8

Civil penalty: $280,000, which will be split between the United States and the State of Utah Stipulated penalties include: $250 per person up to max $3,000/calendar year for failure to provide IDDE training 9

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 RIDOT operates an MS4 and failed to address discharges to impaired waters, illicit discharge detection and elimination, street sweeping pollution prevention, and catch basin and other drainage system component inspection and maintenance 10

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 RIDOT must implement for all direct and indirect discharges of any Pollutant of Concern to an Impaired Water Body Segment with an Existing EPA-approved TMDL: a. all recommendations and requirements in such TMDL(s) that apply to RIDOT; b. for non-bacteria Pollutant(s) of Concern, a combination of structural stormwater controls and Enhanced Non-Structural BMPs that collectively satisfy the pollutant load reduction requirements in such TMDLs, including as specified in [CD] to the maximum extent practicable, and that are consistent with the assumptions and recommendations of those TMDLs; and 11

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 RIDOT must implement: c. for bacteria Pollutant(s) of Concern, a combination of structural stormwater controls and Enhanced Non- Structural BMPs that collectively satisfy the Impervious Cover Standard specified in [CD] to the maximum extent practicable, unless the TMDL has specifically determined that such controls are not required. 12

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 RIDOT must implement: b. for non-bacteria Pollutant(s) of Concern, a combination of structural stormwater controls and Enhanced Non-Structural BMPs that collectively satisfy, to the maximum extent practicable, the following, unless the TMDL expressly provides otherwise: 1. where they exist, Waste Load Allocations or impervious cover treatment provisions applicable to RIDOT 2. Where no WLA or impervious cover treatment, the pollutant load reduction percentage required for stormwater in the TMDL 14

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 RIDOT must implement: c. for bacteria Pollutant(s) of Concern, a combination of structural stormwater controls and Enhanced Non-Structural BMPs that collectively satisfy the Impervious Cover Standard specified in [CD] to the maximum extent practicable, unless the TMDL has specifically determined that such controls are not required. 15

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 RIDOT shall amend its SWMPP to incorporate EPA-Approved SCPs (including Operation & Maintenance Plans) within 30 days of EPA Approval of each SCP. Illicit Discharge Detection and Elimination, Dry Weather Inspections: RIDOT shall inspect and sample its RIDOT MS4 Discharge Points in accordance with the requirements described in CD 16

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Illicit Discharge Detection and Elimination, Dry Weather Inspections: RIDOT shall provide to EPA and RIDEM a list of all non-bituminous ditch outfalls where RIDOT has previously identified dry-weather flow during one or more of its site visits. RIDOT shall perform desktop analysis of all non-bituminous ditch outfalls where RIDOT previously identified dry-weather flow during one or more of its site visits to evaluate whether the dry-weather flow source can conclusively be determined to have been only stormwater and provide to EPA and RIDEM a summary and the results of the analysis. 17

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Illicit Discharge Detection and Elimination, Dry Weather Inspections: RIDOT shall inspect the outfalls for which the previously identified dry-weather flow cannot conclusively be determined to have been only stormwater (Priority Outfalls), and sample those with sufficient flow to be able to collect a sample. 18

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Illicit Discharge Detection and Elimination, Wet Weather Inspections: At least once during wet-weather conditions on any date between April 1 and November 30, in addition to the dry-weather inspection of that discharge point, RIDOT shall inspect and sample the RIDOT MS4 Discharge Points described in [the CD] and the Priority RIDOT MS4 Discharge Points identified [in CD] where (i) flow was not observed during dry weather inspections or (ii) flow was observed but the results of dry-weather sampling did not exceed the IDDE screening thresholds 19

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Illicit Discharge Detection and Elimination, Periodic Screening: By September 1, 2018, RIDOT shall submit to EPA for review and Approval, and to RIDEM for review and comment, a proposal for future on-going dry and wet weather monitoring of the discharge points identified [in the CD]. Proposal may narrow list of outfalls from those identified in [CD] based on criteria explained in proposal. RIDOT shall implement outfall monitoring program for discharge points identified in proposal upon Approval by EPA, after an opportunity for review and comment by RIDEM, and shall continue implementation of program in accordance with schedule [in CD] 20

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Illicit Discharge Detection and Elimination, Training: Commencing in calendar year 2015 RIDOT shall provide targeted training of construction and maintenance staff to report evidence of potential illicit discharges. RIDOT shall develop a training program and provide annual refresher training of staff. Commencing in calendar year 2016, RIDOT will provide a copy of its training materials to EPA and RIDEM for comment. 21

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Illicit Discharge Detection and Elimination, Tracking: Commencing in calendar year 2015 RIDOT shall develop an IDDE tracking program and policy for eliminating identified illicit discharges, including illicit connections. RIDOT shall develop a GIS database of potential illicit discharges, Including illicit connections. RIDOT shall also develop follow-up steps that RIDOT will use once a potential illicit discharge issue is found and develop a Standard Operating Procedure (SOP) for staff to use in response. The SOP will include RIDOT staff roles and responsibilities and time frames for responding to issues 22

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Housekeeping/O&M: RIDOT shall implement a street sweeping tracking system that is sufficient to document the date and location of sweeping of all RIDOT maintained roads and parking lots within the RIDOT Permit Area, and RIDOT shall continue implementation of the street sweeping tracking system. Implementation of the street sweeping tracking system will include the installation of GPS equipment on street sweeping vehicles. 23

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Catch Basin and Other Asset Maintenance: By March 31, 2016, RIDOT shall submit to EPA and RIDEM for review and comment an inventory of RIDOT catch basins, manholes, outfalls, and existing Stormwater Treatment Units ( STUs ) within the RIDOT Permit Area. The inventory shall be provided in both map and tabular form. The inventory shall describe road segment and GIS location for each catch basin and provide similar locational data for each manhole, outfall, and STU. The inventory shall also identify whether the catch basin, manhole, outfall, and STU is associated with a divided highway and indicate whether it is located in an Impaired Sub-Watershed, and, if so, which Impaired Sub-Watershed. 24

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 SEPs: RIDOT shall implement two SEPs, (a) the Johnston Parcel Preservation SEP and (b) the Lincoln Parcel Preservation SEP. RIDOT in good faith estimates that (a) the tax value of the Johnston Parcel is approximately $77,000 and (b) the tax value of the Lincoln Parcel is approximately $157,600. 25

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Compliance Reporting: Full schedule and an incredible number of compliance reporting points Stipulated Penalties: For every day of late civil penalty payment, late reporting, or failure to meet remedial measure schedule, RIDOT agrees to pay Penalty Per Violation Per Day Period of Noncompliance $ 750 1st through 10th Day $ 1,500 11th through 20th Day $ 2,500 21st Day and beyond. 26

UNITED STATES OF AMERICA v. RHODE ISLAND DEPARTMENT OF TRANSPORTATION, (UNITED STATES DISTRICT COURTDISTRICT OF RHODE ISLAND), filed October 15, 2015 Civil Penalty assessed: $315,000 27

MARYLAND DEPARTMENT OF the ENVIRONMENT v. ANACOSTIA RIVERKEEPER, Blue Water Baltimore, v. Maryland Department of the Environment. Blue Water Baltimore v. Maryland Department of the Environment (Court of Appeals of Maryland,134 A.3d 892) Reconsideration Denied May 20, 2016 Environmental groups challenged stormwater management permits issued by Maryland Department of the Environment to various counties, arguing permits failed to comply with state water quality standards or applicable TMDL pollutant discharge limits. 28

MARYLAND DEPARTMENT OF the ENVIRONMENT v. ANACOSTIA RIVERKEEPER Circuit Court, Montgomery County, remanded to MDE to revise permit MDE appealed The Circuit Courts, Baltimore County, Anne Arundel County, and Prince George's County, affirmed permits The Circuit Court, Baltimore City, affirmed permit. Groups appealed, Court of Special Appeals, (222 Md. App. 153, 112 A.3d 979) affirmed. Groups appealed and MDE and city petitioned for writ of certiorari, which was granted. 29

MARYLAND DEPARTMENT OF the ENVIRONMENT v. ANACOSTIA RIVERKEEPER Following consolidation, the Court of Appeals, held that: [1] MS4 discharge permits complied with Clean Water Act's maximum extent practicable (MEP) standard; [2] permits complied with CWA's pollution reduction requirements; [3] MDE properly selected 2002 as the baseline for measuring impervious surface area; 30

MARYLAND DEPARTMENT OF the ENVIRONMENT v. ANACOSTIA RIVERKEEPER Following consolidation, the Court of Appeals, held that: [4] implementation of WLA into TMDLs complied with applicable federal regulation; [5] permits sufficiently included federally mandated monitoring requirements; [6] permits sufficiently ensured reduction in discharge of pollutants; [7] permits sufficiently allowed public participation; and [8] schedules in restoration plans were not required to be formally adopted into permits. Affirmed in part, reversed in part, and remanded. 31

MARYLAND DEPARTMENT OF the ENVIRONMENT v. ANACOSTIA RIVERKEEPER Following consolidation, the Court of Appeals, held that: JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AND AFFIRM MDE'S DECISION TO ISSUE THE MONTGOMERY COUNTY PERMIT. 32

CITIZENS ALLIANCE FOR PROPERTY RIGHTS v. CITY OF DUVALL, 636 Fed. Appx. 430 (2016), February 16, 2016 Plaintiff alleges that City of Duvall's MS4 discharges stormwater onto property owned by Steve and Ronda Mills without permit. No genuine factual dispute that the City's stormwater discharges are regulated under a state-issued general permit, which is a part of the Clean Water Act's NPDES program No genuine factual dispute that the City is complying with this permit. Plaintiff contends that district court erred in granting summary judgment on a ground not raised by the City, urging that the City moved for summary judgment only on Plaintiff's claim that it was discharging pollutants without a NPDES permit, and not on Plaintiff's related claim that City was violating an existing NPDES permit. 33

CITIZENS ALLIANCE FOR PROPERTY RIGHTS v. CITY OF DUVALL, 636 Fed. Appx. 430 (2016), February 16, 2016 Court held: City's motion for summary judgment explicitly discusses NPDES permit under which City operates its MS4, shows it has developed and implemented SWMP in compliance with general permit, see 40 C.F.R. 122.34(a), and shows that program contains minimum control measures that federal regulations require. 40 C.F.R. 122.34(b). Although Plaintiff alleged connection between the City's MS4 and navigable waters, that in itself does not show violation of CWA. CWA prohibits unpermitted discharges of pollutants into navigable waters but City is complying with applicable permit. A discharge into navigable waters in accord with terms of a valid permit is not a CWA violation. 34

MROSEK v. CITY OF PEACHTREE CITY, 631 Fed. Appx. 757, November 13, 2015 Mroseks brought action against City alleging that City violated the CWA and several Georgia laws by failing to do maintenance and repairs on a stream, pond, and dam located partially on their property. The United States District Court for the Northern District of Georgia granted summary judgment in favor of City Landowners (Mroseks) appealed 35

MROSEK v. CITY OF PEACHTREE CITY, 631 Fed. Appx. 757, November 13, 2015 2001, Atlanta Regional Commission published three-volume guidebook called the Georgia Stormwater Management Manual (Blue Book) to provide guidance on stormwater runoff. Blue Book has no independent regulatory authority but City's local Ordinance, adopted in 2007 and which brings municipality into compliance with NPDES permit, incorporates Blue Book standards. Ordinance is applicable to any new development or redevelopment, defining new development as a land development activity on a previously undeveloped site. 36

MROSEK v. CITY OF PEACHTREE CITY, 631 Fed. Appx. 757, November 13, 2015 Mroseks Stream, Pond, and Dam were constructed prior to publication of both the Blue Book in 2001 and enactment of the Ordinance in 2007 and thus do not constitute new development or redevelopment. 2011- neighboring church located near Stream, Pond, and Dam expanded parking lot on its property by 100,000 sq. ft. and built detention pond designed to mitigate stormwater runoff issues Mroseks argue that expanded parking lot should be considered new development or redevelopment that causes stormwater to run off into the Stream, Pond, and Dam, bringing them within the purview of the Ordinance. 37

MROSEK v. CITY OF PEACHTREE CITY, 631 Fed. Appx. 757, November 13, 2015 Mroseks did not establish that redevelopment triggered City's obligation under Ordinance to retrofit Stream, Pond, and Dam because they did not present sufficient evidence showing that stormwater from expanded parking lot ran into those areas. A redevelopment must materially increase stormwater runoff in order to fall within the definition of redevelopment under Ordinance City presented evidence that church built detention pond, which accounted for any additional runoff created by the parking lot Mroseks presented only affidavit from an engineer stating that church improvements had some impact on Pond. They did not provide any qualitative data in support of that statement- Judgment AFFIRMED 38

Draft General MS4 permit KYG 200000, published April 7, 2016 Comment period administratively extended until May 24, 2016 KSA submitted comments seeking clarification on numerous sections of the draft permit 39

Skipp Kropp 317-946-9882 Skipp.Kropp@Steptoe-Johnson.com Steptoe & Johnson PLLC 40