Published in Michigan Environmental Law Journal, Spring 2020, Vol. 37, No. 2, Issue 107 [view full issue].
Cite: 37 Mich Env Law J 2 (2020)
by Elaine Sterrett Isely, JD, MS
Director of Water Programs, West Michigan Environmental Action Council and Chair of the City of Grand Rapids Stormwater Oversight Commission
Municipalities are required under the federal Clean Water Act to minimize polluted discharges to our waterways, including stormwater runoff and combined sewer overflows. In Michigan, the Department of Environment, Great Lakes, and Energy (EGLE) is authorized by the U.S. Environmental Protection Agency (US EPA) to manage the National Pollution Discharge Elimination System (NPDES) permit program. Phase I permittees include industrial facilities and municipal separate storm sewer systems (MS4s) serving populations greater than 100,000, while Phase II permittees include MS4s serving populations of 100,000 or less and construction sites disturbing 1–5 acres. The Michigan Natural Resources and Environmental Protection Act (NREPA) charges EGLE, formerly Department of Environmental Quality (DEQ), with the protection and conservation of the waters of the state, and grants it control over the management of pollution of surface and underground waters of the state and the Great Lakes.
Stormwater Pollution 101
Stormwater runoff is the biggest source of pollution to our lakes, rivers, and streams. Everything we do on the land affects our waterways, and stormwater runoff contributes to water quality and water quantity issues for communities and residents downstream. When rain falls to the ground in a natural system, it soaks into the soil or is absorbed by plants and trees. However, as we develop the land for residential, commercial, agricultural, and industrial uses, we create barriers that force the water to flow over impermeable surfaces until it reaches a waterbody, storm drain, or other stormwater control feature. Water quality is affected by pollutants such as street dust, eroded sediments, heavy metals, road salt, oil and grease, organic matter, nutrients, and pesticides; and as more water flows into streams and rivers, it can result in unstable and eroding channels, loss of instream habitat, and more severe and more frequent flooding.
In addition to these “nonpoint source” pollutants that come from a variety of contributors, many communities also struggle with a “point source” of pollution from wastewater treatment facilities that have combined sewers. A combined sewer system collects stormwater runoff, domestic sewage, and industrial wastewater in one pipe that transports the wastewater to a sewage plant for treatment before discharging into a waterbody. Heavy rain events or snowmelt can sometimes exceed the capacity of the system, and untreated stormwater and wastewater will discharge directly into nearby rivers, streams, and other waterbodies. Municipalities with combined sewer systems are often under a federal consent decree to update their stormwater systems to prevent these combined sewer overflows (CSOs).
Funding for Stormwater Management
Local communities expend significant resources on the construction, operation, and management of stormwater systems, especially when water quality and flooding issues, regulatory requirements, and population growth are taken into account. Funding for stormwater programs can come from a number of different sources including service and stormwater utility fees, property taxes paid into a general fund, special assessment districts, system development charges (i.e., connection fees or tie-in charges), and grant and loan programs. While each of these alternatives comes with advantages and disadvantages, the establishment of a stormwater utility in Michigan is particularly challenging in light of the Bolt and Jackson decisions.
In Bolt v. City of Lansing, the Michigan Supreme Court held that the City of Lansing’s stormwater service charge was a tax, and not a fee. In applying a three-part test based on the Headlee Amendment, the Court found that:
- The service charge was not a user fee, because its stated purpose was not regulatory, but only to raise revenues to pay for stormwater infrastructure;
- It was not proportionate to the necessary costs of the services, and it was borne by users who would not benefit from the service provided; i.e., continued separation of the combined sewer system; and
- It was not voluntary, in that there was no way a property owner could refuse the service.
In Jackson Co v. City of Jackson, the Court of Appeals reviewed a new Jackson city ordinance that created a stormwater utility and a stormwater management fee. Using the Bolt test, the court similarly found that the stormwater charge was a tax and not a fee. Although the ordinance’s stated purposed was regulatory, as well as revenue-raising, the revenue-raising component outweighed the regulatory component; the stormwater fee did not confer specific benefits on property owners paying the fee, but rather to the community at large; and the fee was effectively compulsory as it did not guarantee “all property owners would receive a 100 percent credit” and the only way to get a credit was to “spend their own funds on improvements to their respective properties.”
Although there are municipalities in Michigan with stormwater utility fees (e.g., Ann Arbor and Marquette), municipalities enacting a new stormwater utility system would likely be subject to a legal challenge, which creates a chilling effect on the enactment of such regulations.
Stormwater has been historically managed to move water offsite as quickly as possible through a series of pipes and ditches. However, this “grey infrastructure” just moved the water – and its associated problems – from one site upstream to another site downstream. So, as communities were beginning to bear the brunt of managing their own stormwater discharges in the 1990s, new solutions began to emerge that integrated watershed-based approaches to reducing stormwater quantity and improving water quality goals by mimicking the natural hydrology of the ecological system. These “nature-based practices” go by many names: green infrastructure, low impact development, stormwater best management practices, water sensitive urban design, and others. Although their definitions may differ slightly, they all refer to practices that reduce the amount of stormwater entering local waterbodies. Green Infrastructure (GI) practices allow rainwater to soak into the ground closer to where it falls. GI includes rain gardens, porous pavement, green roofs, rain barrels and cisterns, underground bioretention facilities, linear bioswales, trees, and retention of natural areas. There is growing evidence to suggest that many of these GI practices can be cost effective for local municipalities.
Grand Rapids’ Path to Better Stormwater Management
The City of Grand Rapids was an early adopter of new stormwater management practices. It voluntarily began the process of separating its storm sewers from its sanitary sewers system in 1988. It took more than 3 decades and $400 million, but the work was completed in July 2015.
In 2001, Grand Rapids adopted its first stormwater ordinance, focused on reducing polluted stormwater discharges to the Grand River, to meet the requirements of its federal NPDES permit. It also created the Stormwater Division of its Environmental Service Department to fulfill the ordinance and permit requirements. The City has since worked with numerous partners on coordinated permit compliance and the development and implementation of a model stormwater ordinance for the other MS4 communities in the Lower Grand River Watershed.
In 2002, the City installed its first GI practice, planting the River of Stars Rain Garden at the water treatment plant. Other significant GI installations include a rain garden and underground reservoir at Joe Taylor Park in 2010, the reconstruction of Plainfield Avenue to include 7 “water quality islands” in the boulevard in 2012, a massive underground storage facility at Mary Waters Park in 2015; and the “daylighting” of part of the Indian Mill Creek in Richmond Park in 2019. GI practices are the “default” practice for all streets construction projects in the City, to be used unless the engineering and costs make it impossible.
In 2006, Grand Rapids published its first Sustainability Plan, and in 2013 West Michigan Environmental Action Council (WMEAC) released the first Climate Resiliency Report for the City of Grand Rapids. In 2013–2014, the City completed its Stormwater Management Plan, Stormwater Asset Management and Capital Improvement Plan, and Technical Reference Manual for stormwater management practices. The latter was updated and renamed the Green Infrastructure Technical Specifications (i.e., “Green Book”) in 2018. That same year, the City of Grand Rapids became the first (and only) municipality to have a Green Infrastructure Portfolio Standard which sets annual goals and tracking mechanisms for stormwater infiltration and water quality benefits.
In 2014, the City created 2 citizen-led oversight commissions: the Stormwater Oversight Commission (SOC) and the Vital Streets Oversight Commission (VSOC). The roles of both of these commissions is to be an advisory board to the City; track and review performance, expenditures, and capital investment strategies; make policy recommendations; and track achievement of outcomes. The innovative Vital Streets Plan, which incorporates stormwater goals and outcomes, was completed in 2018, and the SOC and VSOC continue to collaborate to help Grand Rapids achieve its goals.
Partnerships and Leadership
The City of Grand Rapids has invested significant time and resources in planning and implementation of GI practices and better stormwater management practices without the benefit of a stormwater utility. City leadership has committed to payment of stormwater management out of the City’s General Fund and through state and federal grants. Grand Rapids is recognized throughout the Great Lakes basin and the U.S. as a national leader in sustainability and stormwater management, but the City did not do it all alone. Local businesses and nonprofit organizations have also implemented green practices which support the regional stormwater goals and best practices, including one of the first green roofs in the U.S. and a green zoo.
In addition, the City has worked on grant funded projects and programming with nonprofit, university, and governmental partners to incentivize and implement GI programs and practices, demonstration projects, and wide-reaching educational efforts. This allows Grand Rapids to meet and, in some ways, exceed its stormwater permit requirements. Grand Rapids and its partners continue to provide leadership in the innovation and sharing of better policies and sustainable practices.
The culture in Grand Rapids and among its community partners is one of sustainability and conservation. Grand Rapids continues to strive for more and better stormwater management practices, which will be crucial as we see increasing frequency and intensity of rainstorms. Stormwater management will only become more challenging as we see and feel the effects of climate change. Many communities already lag in addressing their current stormwater burden. Change and innovation will be essential, and Grand Rapids provides a model of commitment and collaboration that is sought out by other communities.
 West Michigan Environmental Action Council (WMEAC) was founded in 1968 to address environmental issues – including water quality issues – through advocacy, education, and community action. Its current mission is to inform, engage and nurture an inclusive community acting together to protect natural resources, mitigate climate impacts, and build a resilient West Michigan.
 33 USC 1251 et seq.
 40 CFR 122 through 40 CFR 124.
 U.S. Environmental Protection Agency, Combined Sewer Overflow (CSO) Control Policy, 59 Fed Reg 18688 (April 19, 1994).
 Id. at 18690 “E. Implementation Responsibilities”; see also 55 FR 47990 (November 16, 1990); 64 FR 68722 (December 8, 1999).
 MCL 324.3101 et seq.
 MCL 324.3103(1).
 AD Steinman, ES Isely, & K Thompson, Stormwater runoff to an impaired lake: impacts and solutions, 187 Environmental Monitoring and Assessment 549 (2015).
 US Environmental Protection Agency, National Pollutant Discharge Elimination System (NPDES):Combined Sewer Overflows (CSOs) (accessed March 10, 2020).
 US Environmental Protection Agency, Status of Civil Judicial Consent Decrees Addressing Combined Sewer Systems (CSOs) (accessed March 26, 2020).
 US Environmental Protection Agency Region III, Funding Stormwater Programs EPA 833-F-070012 (January 2008).
 Bolt v. City of Lansing, 459 Mich 152; 587 NW2d 264 (1998).
 Jackson Co v. City of Jackson, 302 Mich App 90; 836 NW2d 903 (2013).
 Bolt, 459 Mich at 162.
 Jackson Co, 835 NW2d 913-915.
 EE Nordman, E Isely, P Isely, & R Denning. Benefit-cost analysis of stormwater green infrastructure practices for Grand Rapids, Michigan, USA. 200 Journal of Cleaner Production 501 (2018).
 Id.; US Dep’t of Agriculture, Rainwater Rewards Calculator: Green Infrastructure Makes (dollars and) Sense (accessed March 10, 2020).
 S Viars, Green innovations in Grand Rapids, 7 Worldwater Stormwater Management 13-15 (2019).#EnvironmentalLawJournal#Energy#Legislation#WaterLaw