"Water is not a solid wall, it will not stop you. But water always goes where it wants to go, and nothing in the end
can stand against it."
—Margaret Atwood, "The Penelopiad"
Michigan's lakes, rivers and streams represent some of our greatest assets in terms of tourism and business. And, of course, many dream of a home on a lake with views of our inland, freshwater oceans. Ironically, those same lakes, rivers and streams can pose a threat to landowners.
Michigan's present lake levels are the highest that they have been since 1986. The U.S. Army Corps of Engineers also believes water levels may increase by an additional foot in some places in 2020. News reports are full of homes and properties collapsing from bluffs and shorelines and if water levels increase, we can expect more of the same, going forward. Some of these can pose very serious environmental problems, like the Nov. 26 collapse of a dock on the Detroit River that caused the potential release of hazardous materials.
On Jan. 16, the Michigan Department of Environment, Great Lakes and Energy (EGLE) issued a bulletin to holders of National Pollution Discharge Elimination System (NPDES) permits requesting they conduct a "vulnerability analysis" to minimize impacts to Great Lakes water levels. NPDES permits are issued pursuant to the Clean Water Act and state equivalents that regulate discharges into surface waters.
EGLE is urging NPDES permit holders to institute best management practices that are appropriate for the specific activity causing permitted discharges. BMPs are generally defined as techniques or a combination of techniques that prevent or reduce pollution from discharging into waterways. What specific BMP may be applicable depends on the regulated activity. For example, the U.S. Environmental Protection Agency identified six specific BMPs for municipal storm sewers.
EGLE's strategy for addressing water flows first requires the specific permit holder to identify the nature of its discharge before identifying what techniques to undertake to reduce flow. While EGLE did not list an entire menu of options, it listed several general responses:
- Waste water treatment plants: EGLE suggests that WWTPs identify discharge points and avoid practices that may result in bypasses or overflows. In addition, high waters can cause erosion and collapses of sewers, which will need to be monitored.
- Industrial and commercial facilities: Best management practices could include reducing water use or flows. The facility may also choose to move its discharge location.
- Combined sewer overflows, retention treatment basins or other outlets: Combined sewers are those that transmit stormwater, domestic sewage and industrial wastewater, which are transmitted to a treatment plant. Obviously, in heavy rainfall events, treatment plants could easily be overwhelmed and are disfavored, although many older systems remain in place. BMPs would include means by which to reduce flow into the system and avoid backflows.
- Stormwater: Those with stormwater NPDES permits already must take measures to reduce runoff and control contaminants that may be carried with it. EGLE's bulletin suggests reviewing existing plans to supplement them and to conduct maintenance on existing control systems to make sure that they are working properly.
As EGLE notes, there are many causes for higher water levels. In addition, climate change researchers’ report that heavy rain events "drop 31 percent more precipitation in the Midwest than they did 50 years ago." EGLE's bulletin is just one step toward managing water without actually investing in water infrastructure, although a longer-term solution will likely require significant investment of public resources.
On Jan. 28, EGLE supplemented its earlier notice by providing guidance with respect to its notice. The guidance provides information on how to conduct a vulnerability analysis for specific NPDES permit holders: storm water permits, industrial permits, WWTPs, retention basins, septic systems, pesticide applications and aquatic nuisance control. The focus of each of the suggestions is to anticipate how those activities may be impacted by high water and addressing where necessary.
NPDES permit holders are now charged with preparing vulnerability analyses. EGLE advises that these be kept available for regulators to review, ominously adding the following: "If there are any NPDES permit violations due to high water levels, then this analysis and mitigating action you take may help regarding any potential compliance activity." This implies that failure to comply with this "request" may expose the permit holder to future enforcement action.
- Senior Attorney
A senior attorney in Plunkett Cooney’s Bloomfield Hills office, Saulius K. Mikalonis leads the firm's Environment, Energy and Resources Law and Cannabis Law industry groups.
Mr. Mikalonis focuses his practice on all aspects of ...
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