IS A STORM WATER PUBLIC UTILITY IN YOUR FUTURE?

Management of storm water increasingly is a hot issue for municipalities. Several drivers are contributing to this situation, including:

1. The federal Clean Water Act and USEPA regulations that may require collection and treatment of contaminated storm water.

2. Environmental laws and regulations that may require separation of storm water mains from wastewater mains. When storm water is allowed to enter into the wastewater system, wastewater mains can become surcharged, causing basement backups, and wastewater biological process treatment facilities can wash out. (See my blog, "Illegal Storm Water Connections...Going Away From The Flow", May 7, 2010).

3. Flooding of properties, buildings and streets upon major rain events.

One possible approach for storm water management may be for municipalities to form and operate storm water public utilities, much in the manner that they may own and operate water, wastewater or electric public utilities. A recent Florida example is discussed in City of Gainesville v. State, 778 So.2d 519 (FL. App. 2001).

The City formed a storm water public utility and billed properties in the city a utility charge for storm water management utility services. The charges are based on the cost of providing storm water management services to different classes of properties. The charges are computed based upon equivalent residential units (ERU) of 2,300 square feet, representing the average impervious area for all developed, detached single family homes in the city. The ERU for commercial properties is computed based upon measurement of the developed, impervious area of each property. Undeveloped properties and properties which do not contribute to storm water runoff are exempt. Credits are available to property owners who retain all or a portion of storm water runoff from their property.

The Court held that, under Florida law, the city had authority to establish storm water management systems and to finance them by collecting utility charges. Of course, the availability of the storm water public utility approach depends on the legislative authority of a particular state. See also State v. City of Charleston, 513 S.E.2d 97 (1999). For a related discussion, also see "Strapped Cities Hit Nonprofits With Fees", Wall Street Journal, December 27, 2010, Sec. A-1, p.1.