Energy Finance Report

Advanced Approaches to Stormwater Runoff Management Through Green Infrastructure

Posted by Jerry Muys on 8/4/17 11:24 AM

Green infrastructure refers to, among other things, the utilization of sustainable forestry and agriculture as elements of a cost-effective compliance strategy for meeting the National Pollutant Discharge Elimination System (“NPDES”) permitting requirements, as authorized by the Clean Air Act (“CWA”), and its state counterparts. Natural systems and processes such as constructed wetlands and phytoremediation have long been used as tools for meeting NPDES discharge standards; however, the advent of the Environmental Protection Agency’s (“EPA’s”) more rigorous “Phase II” stormwater management requirements has spurred renewed interest in such systems among a new and more expansive set of permittees.

Stormwater discharges first became subject to NPDES permitting requirements as a result of the 1987 amendments to the CWA. “Phase I” of the program began in 1990, and applied only to large and medium municipal separate storm sewer systems and 11 industrial categories, including construction sites disturbing five acres of land or more.  In March 2003, Phase II of the program began, applying to a much broader set of municipal sewers and construction sites including those disturbing as little as one acre of land.  Phase II also expanded certain exemptions that were originally available under Phase I.

EPA has authorized the NPDES stormwater program to 46 states, with EPA largely relegated to an oversight capacity. Because states with delegated programs may impose stormwater management requirements more stringent than those promulgated by EPA, a number of states, led by California, have established Phase II requirements significantly more rigorous than EPA’s rules. 

For example, California requires Phase II stormwater permits for wide-ranging categories of facilities that meet certain broad criteria, including industrial facilities that fall within almost every conceivable Standard Industrial Classification (“SIC”) code. Requirements typically include the preparation of a Storm Water Pollution Prevention Plan, the implementation of best management practices (including technology-driven environmental cleanup obligations), and training, sampling and reporting obligations.

Most states have elected to impose the Phase II requirements through issuance of general permits that apply to categories of facilities rather than to specific facilities and employ benchmark compliance targets rather than definitive cleanup standards. However, it appears that a number of states have begun moving toward the establishment of specific numeric action levels governing the extent of response measures required in the event of permit exceedances, and some have even begun to incorporate Total Maximum Daily Loads (“TMDLs”) into their permit obligations.  

A decision to include green infrastructure as part of a stormwater discharge compliance program should not be made without first conferring with regulators and conducting a preliminary desktop evaluation to determine whether the permitted facility is well-suited for such an approach. If the answer is in the affirmative, the next step is to prepare a working document identifying the essential project scope and associated deliverables.  This should include, as determined necessary, the performance of an initial pilot study to establish proof of concept and the conduct of a “pre-design” study to evaluate the range of costs and feasibility of the project.

Subject to the outcome of the initial pilot study and the pre-design study, the next step is the preparation of a “pre-development agreement” setting forth in more detail the project work scope and cost projections, including calculations that would allow the project sponsor to quantify the likely avoided operating and/or regulatory costs resulting from incorporating green infrastructure components into the project. Upon completion of the work scope and cost projections, a legally-binding “master development agreement” should be negotiated among interested parties, addressing the financing, design, construction, and operation and maintenance requirements of the proposed project.

At critical junctures during the preparation of the various project documents referenced above, the project sponsor will need to consult with counsel if only for the limited purposes of performing the legal aspects of any necessary project due diligence and regulatory analysis. Finally, it is prudent to involve counsel in any negotiations with relevant government agencies and other stakeholders leading up to the preparation of a binding legal document, particularly in light of the fact that the project will almost certainly diverge from the standard regulatory approaches employed by the regulators.

There are several states currently using green infrastructure as the means to comply with stormwater discharge requirements. For example, pilot projects in the Anacostia River Watershed in Maryland have utilized infiltration and bio-retention best management practices to manage urban runoff.  In Seattle, Washington, streets have been redesigned to include more trees and shrubs, reflecting natural draining patterns.  In Portland, Oregon, stormwater curb extensions were added to residential streets, allowing stormwater to flow into the bioswales to be filtered.  Lastly, Chicago, Illinois has been using several low impact development practices, such as rain gardens, wetland rehabilitation, permeable alleys, and rooftop gardens.

Jerry Muys is a partner and Leigh Ratino is a law clerk with Boston-based law firm Sullivan & Worcester LLP.

Topics: Green Infrastructure, Stormwater Runoff Management, National Pollutant Discharge Elimination System, Clean Water Act

Converting Environmental Liabilities to Assets: Repurposing Inactive and Abandoned Mine and Mineral Processing Sites

Posted by Jerry Muys on 6/6/17 2:36 PM

Under the Brownfields Law of 2002, EPA and other federal agencies have established a variety of programs focused on promoting and funding the repurposing of abandoned mine lands (AMLs), broadly defined as lands, waters, and watersheds in close proximity to where extraction, beneficiation, or processing of ores and minerals has occurred. Among the most promising of these initiatives is EPA’s Re-Powering America Program, pursuant to which EPA has prioritized the development of renewable energy projects on brownfield properties such as AMLs.  

The Department of Energy’s National Renewable Energy Laboratory (NREL) has significantly contributed to the success of the Re-Powering America Program. As part of its initial characterization of sites on EPA’s brownfields inventory, NREL collects data sufficient to determine the renewable energy potential of each site. To date, NREL has screened over 80,000 sites for their development potential as solar, wind, biomass, and geothermal facilities.

Hard-rock mine sites, in particular, offer a number of distinct opportunities for renewable energy development. For example, they tend to be large in size, and thus can provide sufficient capacity for the installation of a large-scale wind farm or solar array in one location and are often near existing infrastructure, including roads and utilities. In addition, hard-rock mine sites can serve as excellent locations for wind farms because they are often situated in mountainous areas that receive consistent wind flow. 

Development of inactive coal properties can be more challenging, due in part to the remediation and procedural requirements of the Surface Mining Control and Reclamation Act. However, the Act also offers a potential funding source for site redevelopment under its AML Reclamation Fund, a benefit not available with respect to the hard-rock mine sites.

In addition to the foregoing, there is an array of emerging technologies that can enable value extraction and new reclamation approaches based on engineered natural systems or “green infrastructure.” For example, energy recovery from wastewater at mine sites can be a cost-effective option due to the often remote locations of such sites. In addition, residuals from wastewater treatment can be used as a soil amendment to add organic matter and nutrients to the soil to create a fertile soil profile with a reestablished microbial community, invertebrates, and plants. This approach can be used to help meet Clean Water Act stormwater discharge requirements as well as regulatory limitations on direct discharge to surface waters.

The use of green infrastructure can create a revenue generating ecosystem that will help offset the cost of mine remediation. At mine sites with substantial vacant land, sustainable forestry can be used to help manage stormwater as well as generate carbon credits recognized to varying degrees under both the California and Regional Greenhouse Gas Initiative frameworks. Furthermore, engineered wetlands can help address acid mine drainage and other contaminated flows from abandoned mines and potentially serve as a secondary revenue source through the generation of water quality trading credits under the Clean Water Act.

Historically, a significant obstacle to the redevelopment of AML has been the lack of funding available to characterize and remediate these sites. This gap in funding can be reduced by incorporating renewable energy and/or green infrastructure into the mine remediation plan. The installation of a solar array during or following mine reclamation can provide an energy source to power the remediation effort or create a revenue stream to offset the cost of remediation. A similar approach can be utilized through the use of green infrastructure.

In its proposed 2018 budget, the Trump administration has requested $28.0 billion for the Department of Energy “to make key investments to support its missions in nuclear security, basic scientific research, energy innovation and security, and environmental cleanup." Of this total, $6.5 billion is designated specifically for environmental management to address “high-risk contamination facilities that are not in the current project inventory.” However, within this proposed budget, the EPA would receive $5.655 billion in funding, a 30% decrease from the enacted 2017 budget. This reduction in EPA funding may have adverse effects on the Re-Powering America program.

Jerry Muys is a partner and Paul Tetenbaum is a summer intern with Boston-based law firm Sullivan & Worcester LLP.

Topics: Environmental Liabilities, Renewable Energy Development, Green Infrastructure, Abandoned Mine Land, Repurposing Mine Land

Sullivan & Worcester logo

About the Blog


The Energy Finance Report analyzes developments in energy finance as well as provides updates and perspectives on market trends and policies.

Subscribe to Blog

Recent Posts

Posts by Topic

see all