December 8, 2004
STORM WATER UTILITIES
By: Paul Frisman, Associate Analyst
You asked about the changes in state law needed to create a storm water utility. The Office of Legal Research is not authorized to issue legal opinions and this memo should not be considered one.
A storm water utility is a special assessment district that imposes a user fee to fund storm water management. According to the Department of Environmental Protection (DEP), there are no storm water utilities in Connecticut, although Stonington is researching the issue.
Municipalities have only those powers granted to them by statute. State law does not now explicitly authorize the creation of municipal storm water districts, although the law does authorize towns to operate and maintain sewer and drainage systems, and to regulate the flow of surface water in some circumstances. The law also permits municipalities to establish Water Pollution Control Authorities (WPCAs), which also may regulate the flow of storm water in certain instances.
If the legislature wishes to encourage the creation of storm water utilities, it would probably be best to specifically authorize the formation of such a district. The legislature could authorize creation of independent storm water utilities or permit existing municipal boards, such as WPCAs and Municipal Flood and Erosion Control
Boards, to assume the duties of a storm water utility. The legislature also may wish to consider permitting several municipalities to join in a regional storm water utility district.
The ability of a particular municipality to establish a storm water utility also would depend on that town's own charter or ordinances.
BACKGROUND ON THE STORM WATER PROGRAM
Polluted storm water runoff is a leading cause of impairment of the nearly 40% of surveyed water bodies that do not meet federal water quality standards, according to the U.S. Environmental Protection Agency (EPA). Polluted runoff can destroy fish, wildlife and aquatic life habitats; threaten public health; and reduce aesthetic values. The National Pollutant Discharge Elimination System (NPDES) addresses the discharge of storm water from non-agricultural sources in two phases.
NPDES Phase I
Phase I regulates medium and large municipal separate storm water systems (generally serving populations of 100,000 or more) and nearly a dozen categories of industrial activity, including construction activity that disturbs five or more acres. According to DEP, Stamford was the only Connecticut city regulated under NPDES Phase I, which took effect in 1992.
NPDES Phase II
Phase II regulates small municipal separate storm sewer systems, and construction activity disturbing between one and five acres. DEP says 113 state municipalities fall under Phase II. These municipalities have until 2009 to implement storm water management programs that contain at least the following six control measures: (1) public education and outreach; (2) public participation; (3) illicit discharge detection and elimination; (4) construction storm water management; (5) post-construction storm water management; and (6) pollution prevention (also called “good housekeeping.”)
DEP issued a Phase II General Permit (attached) in January 2004. More information on this permit and its requirements is available at http://www.dep.state.ct.us/wtr/stormwater/ms4index.htm
WHAT IS A STORM WATER UTILITY?
A storm water utility is a special assessment district that generates funding specifically for storm water management. It generates revenue through imposition of a user fee rather than a property tax. According to this article in the Journal for Storm Water Quality Professionals, the user fee can be used to support and maintain existing storm drain systems, development of drainage plans, flood control measures and water quality programs, administrative costs, and sometimes construction of major capital improvements. One advantage of a storm water utility is that its costs are borne only by people who benefit from it. Further information on storm water utilities can be found in this Natural Resources Defense Council report.
For this report we look only at state statutes that permit a municipality to raise revenue through user fees, also called benefit assessments. We do not consider special taxing districts that raise revenue through property taxes. For more information on these special taxing districts, please see OLR Reports 98-R-0335 and 2003-R-0825, attached.
STATE LAW AND THE CREATION OF STORMWATER UTILITIES
State law does not now explicitly authorize the creation of municipal storm water districts, although the law does authorize towns to operate and maintain sewer and drainage systems, and to regulate the flow of surface water in some circumstances (CGS § 7-148(c)(6)(B)). The law also permits municipalities to establish WPCAs, which also may regulate the flow of storm water in certain instances (CGS § 7-247).
To eliminate any doubt about municipal authority to create such a district, the legislature might wish to specifically authorize the formation of such a district. The legislature could authorize creation of independent storm water utilities or permit existing municipal boards, such as WPCAs (CGS § 7-245 et seq.) and Municipal Flood and Erosion Control Boards (CGS § 25-84 et seq.) to assume the duties of a storm water utility.
It may also wish to consider authorizing several municipalities to join in a regional storm water utility district.
Water Pollution Control Authorities (WPCA)
Under CGS § 7-246(a) a municipality may designate as a WPCA a new or existing board, commission, or (except in town meeting towns) its legislative body. Among other things, a WPCA may:
● acquire, build and operate a sewer system;
● buy, condemn or otherwise acquire property it needs for a sewer system; and
● devise rules and regulations to operate and maintain the sewer system, including regulating or banning the discharge of any sewage or storm water runoff that may adversely affect it (CGS § 7-247).
State law also requires municipalities to establish WPCAs, regardless of any state law or local ordinance, when the DEP orders it to abate or control water pollution (CGS § 22a-458).
Assessment of Benefits
A WPCA may levy benefit assessments upon owners of land and buildings especially benefited by the acquisition or construction of a sewer system, regardless of whether the property abuts the system. The assessment may include a proportionate share of the cost of any part of the sewer system, including the cost of (1) preliminary studies and surveys, (2) detailed working plans and specifications, (3) acquiring land, property or any interest in them, (4) damage awards, (5) construction costs, (6) interest charges, (7) legal and other fees, and (8) any other expense incidental to the work. The WPCA may divide the territory benefited by the system into districts and levy assessments differently in each district.
In assessing benefits, the WPCA may consider the area, frontage, grand list valuation, and present or permitted use or classification of the benefited properties, and any other relevant factor. It must use assessment revenue only to acquire and build the sewer system, or for the payment of interest and principal on bonds or notes issued to finance its acquisition or construction. A WPCA may not levy an assessment for more than the benefit that accrues to the property (CGS § 7-249). OLR Report 95-R-1148, attached, contains more information on sewer assessments.
Flood and Erosion Control Boards
A municipal Flood and Erosion Control Board may plan, lay out, acquire, construct, reconstruct, repair, maintain, supervise, or manage a flood or erosion control system. It may buy or condemn property it needs for such a system (CGS § 25-86), and finance it by issuing bonds, levying taxes, imposing special assessments, or any combination of these (CGS § 25-87).
If a board elects to impose special assessments, it may divide the assessments among the owners of lands and buildings that especially benefit from its services, regardless of whether the property abuts the flood or erosion control system. The assessment may include a proportionate share of any expenses incidental to the completion of the floor or erosion control system, including fees and expenses of attorneys, engineers, and others; the costs of acquiring property; interest on securities, the cost of preparing maps and plans, and the cost of advertising or notification. It may divide the total territory to be benefited from the system into sections, and levy assessments against each section separately. The amount raised must be apportioned among the benefited properties based upon their area, street frontage, assessed valuation, present or permitted use, or any combination of these or other relevant factors. The assessment cannot be for more than the benefit to the property (CGS §§ 25-87 and 88).
STORM WATER UTILITY STUDY
DEP has awarded Stonington a grant to examine state laws and local ordinances to determine the feasibility of developing a storm water utility in that town. Nicole Burnham, an engineer at the Cheshire consulting firm of Milone & MacBroom, says she expects to have a draft report prepared by the end of this year.