Phase II MS4 Storm Water Permit Information

A township considering modifying or terminating its Phase II NPDES MS4 storm water permit must pay its annual fee. According to the MDEQ, failure to timely submit the fee, could result in a late notice or penalties as provided under the fee statute (MCL 324.3118).

Currently, permit fees are based on the population within the urbanized area of the township. According to the MDEQ, a township may seek a lower fee, or no fee, to reflect the population served by the MS4 owned or operated by the township within the urbanized area.

According to the MDEQ, a township that wishes to appeal its annual permit fee may send a formal letter of appeal to the DEQ. The appeal letter should state that it is appealing the fee, request a refund of the township's fee based on the fact that the township does not own or operate an MS4, and indicate that the township will be submitting an application to modify or terminate its permit. The letter should be sent to: Mark Fife, Environmental Quality Specialist, MDEQ, Water Bureau, P.O. Box 30473, Lansing, MI 48909-7973.

The MS4 Permit Fee Appeal Form is available on the MDEQ's Municipal Program / MS4 Permit Guidance Web site.

The Michigan Townships Association strongly recommends that any township that wishes to modify or terminate its permit coverage consult with the township's local legal counsel for legal guidance on the applicability of the Declaratory Judgment entered by the Ninth Circuit Court in the matter of Charter Township of Kalamazoo and Comstock Charter Township v Michigan Department of Environmental Quality (Case No. B 06000159 CZ).

That judgment held that "MDEQ's interpretation and application of its storm water rules to those designated governmental units having the "power or authority" to regulate storm water discharge but that are not an "owner or operator" of a separate storm sewer system is an unauthorized and undelegated expansion of such storm water discharge rules and regulations by MDEQ and is accordingly invalid and unenforceable." [Emphasis added.]

MTA Legal Counsel believe that a township that is not an owner or operator of a separate storm sewer system is not required to pay a fee or to modify or terminate a permit that is therefore invalid and unenforceable, regardless of whether a township chooses to go through the proposed administrative procedure. The MDEQ, however, has stated that the fee must be paid by March 15, even if a township is appealing its fee and applying to modify or terminate its permit based on not being an owner or operator. A township that believes it is not an owner or operator and that chooses to modify or terminate its permit should submit by March 15 a written notice of intent or the completed application form to modify or terminate the certificate of coverage, along with any fee paid and an appeal to have the fee reduced or eliminated.

But MTA Legal Counsel also strongly recommend that any documents submitted should include language disclaiming any actual legal obligation to comply with the process, along with language indicating that the payment of the fee and submission of the application is not an admission that the township is an owner or operator, or that is required to obtain a permit or pay a permit fee.

For more information, contact MTA Legislative Liaison Tom Frazier or Member Information Liaison Catherine Mullhaupt at (517) 321-6467.

Stormwater Discharges From Municipal Separate Storm Sewer Systems (MS4s)
EPA National Pollutant Discharge Elimination System (NPDES)
Web page with information on MS4s and links to resources
MDEQ NPDES Permit Information
A Citizen's Guide to Water Quality Permiting (.pdf)
Tip of the Mitt Watershed Council

“Owner/Operator” Determination Key to Township Liability for NPDES MS4 Permits
In an opinion issued November 27, 2006, Kalamazoo Circuit Court Judge J. Richardson Johnson ruled in favor of the Charter Township of Kalamazoo and Comstock Charter Township in their suit challenging the townships’ liability for a National Pollutant Discharge Elimination System (NPDES) permit for Municipal Separate Storm Sewer Systems (MS4s). The judge ruled that the two townships are not subject to rules promulgated by the Michigan Department of Environmental Quality (MDEQ) relating to MS4s and, therefore, are not required to comply with the NPDES permit requirements or pay annual permit fees to the MDEQ.

The key issue in the case revolved around whether or not the townships “owned or operated” an MS4. The townships argued that they didn’t own or operate an MS4 as either the county drain commissioner or the county road commission handled these functions. The MDEQ argued that, because townships have “jurisdiction” and thus “power and authority” over disposal of sewage, industrial wastes, storm water, or other wastes, they are subject to the MDEQ MS4 rules.

Judge Johnson held that the two townships are not “owners or operators” of a storm sewer system, even though they had the power and authority to create such a system, because these two townships had not done so.

The townships also argued a second point that, should the court rule in favor of the MDEQ on the first matter, the rules were new and mandated obligations and thus were not binding on the townships under the Headlee Amendment without state funding of all costs. The judge declined to rule on the Headlee issue as a moot point because the townships were not owner/operators.

In a declaratory judgment issued January 22, 2007, Judge Johnson ruled that the MDEQ rules apply only to those identified urbanized governmental units that own or operate a municipal separate storm sewer system (MS4), and that MDEQ’s attempt to apply rules to governmental units that are not an owner or operator “is an unauthorized and undelegated expansion of such storm water rules and regulations by MDEQ and is accordingly invalid and unenforceable.”

The MDEQ did not appeal the decision to the Michigan Court of Appeals. As a Circuit Court decision, Judge Johnson’s ruling has the effect of law in Kalamazoo County. A township outside Kalamazoo County could use the opinion in a court challenge to its liability for the NPDES permit, but other Circuit Courts are not bound by it.

The MDEQ is developing a guidance document to help townships determine whether or not they own or operate an MS4 and if they need to comply with the MDEQ rules and permits. MTA has provided comments to the MDEQ on the guidance document. Once a final guidance document is available, MTA will make it available on the MTA Web site and by contacting MTA Member Information Liaison Catherine Mullhaupt at (517) 321-6467.