Unmaintained stormwater facilities will eventually fail operationally. A major contributor to unmaintained facilities is a lack of clear ownership and responsibility definition. In order for an inspection and maintenance program to be effective, the roles for each responsibility must be clearly defined prior to construction of a system. The lead role in determining what responsibilities belong to whom lies with the local government. Several different approaches are possible and are briefly described below. A community must determine which approach best suits its capabilities, both physically and financially.
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Parties who have little knowledge or funding to maintain stormwater systems, own many of the stormwater system components that are on private land. For example, many residential subdivisions contain a stormwater pond, frequently located on one of the less desirable lots. The homeowners association is typically the owner of such a pond. These groups generally have little understanding of the purpose of the pond and how it operates, and have even less funding available to repair and maintain it. The stormwater pond will typically fall into disrepair and become overgrown with vegetation and lose any viable functionality.
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Private owners should also be made aware of the need to plan how they will fund their maintenance programs. For the residential example above, dues to the homeowners association could be earmarked for maintenance.
Id. 7.2.3:
Thus, there are four "policy" categories of drainage system:
(1) In the right-of-way;
(2) Outside the right-of-way, carrying public water and within an easement;
(3) Outside the right-of-way, carrying public water but not within an easement; and
(4) Totally private systems.
Id. 1.1.5:
Nonpoint source pollution, which is the primary cause of polluted stormwater runoff and water quality impairment, comes from many diffuse or scattered sources-many of which are the result of human activities within a watershed. Development concentrates and increases the amount of these nonpoint source pollutants. As stormwater runoff moves across the land surface, it picks up and carries away both natural and human-made pollutants, depositing them into Georgia's streams, rivers, lakes, wetlands, coastal waters and marshes, and underground aquifers. Nonpoint source pollution is the leading source of water quality degradation in the Georgia as seen in Figure 1.1-9.
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- Sedimentation - Eroded soils are a common component of urban stormwater and are a pollutant in their own right. Excessive sediment can be detrimental to aquatic life by interfering with photosynthesis, respiration, growth and reproduction. Sediment particles transport other pollutants that are attached to their surfaces including nutrients, trace metals and hydrocarbons. High turbidity due to sediment increases the cost of treating drinking water and reduces the value of surface waters for industrial and recreational use. Sediment also fills ditches and small streams and clogs storm sewers and pipes, causing flooding and property damage. Sedimentation can reduce the capacity of reservoirs and lakes, block navigation channels, fill harbors and silt estuaries. Erosion from construction sites, exposed soils, street runoff, and streambank erosion are the primary sources of sediment in urban runoff.
- Higher Water Temperatures - As runoff flows over impervious surfaces such as asphalt and concrete, it increases in temperature before reaching a stream or pond. Water temperatures are also increased due to shallow ponds and impoundments along a watercourse as well as fewer trees along streams to shade the water. Since warm water can hold less dissolved oxygen than cold water, this "thermal pollution" further reduces oxygen levels in depleted urban streams. Temperature changes can severely disrupt certain aquatic species, such as trout and stoneflies, which can survive only within a narrow temperature range.
- Trash and Debris - Considerable quantities of trash and other debris are washed through storm drain systems and into streams, lakes and bays. The primary impact is the creation of an aesthetic "eyesore" in waterways and a reduction in recreational value. In smaller streams, debris can cause blockage of the channel, which can result in localized flooding and erosion.
GSWM 1.1.5, p. 1-8.
According to Section 1.2 of the Georgia Stormwater Management Manual as adopted by the City of Alpharetta, the damages claimed by the Plaintiffs are among the expected types of injuries in a case where there is a lack of maintenance of storm water systems in a community. The "real social and economic impacts on Georgia's communities" from lack of responsibility include the following:
- Endangerment of Human Life from Floodwaters . . .;
- Property and Structural Damage Due to Flooding. . . ;
- Impairment of Drinking Water Supplies (Surface and Groundwater) . . . ;
- Increased Cost of Treating Drinking Water . . .;
- Loss of Recreational Opportunities on Streams, Lakes, Rivers and Ocean Beaches - Turbidity from sediment, odors, floating trash, toxic pollutants and microbial contamination from stormwater runoff all reduce the viability of waterbodies for recreational activities such as swimming, boating and fishing. In addition, the aesthetic loss along these waterways also reduces the experience for noncontact recreation such as picnicking, jogging, biking, camping and hunting.
- Declining Property Values of Waterfront Homes and Businesses - Stormwater pollution affects the appearance or quality of downstream waterbodies, influencing the desirability of working, living, traveling or owning property near the water.
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- Increased Litigation - Increased legal action can result against local governments that have not adequately addressed stormwater runoff drainage and water quality problems.
- Reduction in Quality of Life - Stormwater quantity and quality impacts can reduce the overall quality of life in a community and make it a less desirable place to live, work or play.
The Georgia Stormwater Management Manual also outlines the background of the current laws that the Defendants are claiming they are not subject to. The Manual explains as follows:
2.3 Water Quality Regulations
The increasing focus on nonpoint source pollution and stormwater quality with the amendment of the Clean Water Act in 1987 and subsequent legislation requires Georgia communities to address urban runoff water quality. Numerous federal and state requirements define what is required of local governments in terms of their local stormwater management programs and related community planning and development efforts. Below is an overview of the key programs which impact local communities.
2.3.1 Municipal NPDES MS4 Stormwater Permit Program (Phase I and II)
The National Pollutant Discharge Elimination System (NPDES) permit system was originally established by the Clean Water Act of 1972 to control wastewater discharges from various industries and wastewater treatment plants known as "point" sources. Congress amended the Clean Water Act with the Water Quality Act of 1987 to expand the NPDES permit program to address "nonpoint" source pollution through schedules for permitting municipal stormwater discharges. The Municipal Separate Storm Sewer System (MS4) stormwater discharge permit establishes guidelines for municipalities to minimize pollutants in stormwater runoff to the "maximum extent practicable."
Under Georgia EPD's Municipal Separate Storm Sewer System (MS4) permit program, local governments in regulated areas are required to establish a comprehensive stormwater management program (SWMP) and to develop a plan and program to control stormwater pollution discharges to waters of the State to the maximum extent practical and to eliminate nonstormwater discharges from entering the stormwater system.
This is accomplished through the implementation of a municipal program which includes such measures as structural and non-structural stormwater controls, best management practices (BMPs), regular inspections, enforcement activities, stormwater monitoring and public education efforts. Stormwater management ordinances, erosion and sediment control ordinances, development regulations and other local regulations provide the necessary legal authority to implement the stormwater management programs.
Since 1993, the Phase I permit requirements have applied in Georgia to large and medium municipal separate storm sewer systems (defined by a population greater than 250,000 and population between 100,000 and 250,000, respectively, or those areas contributing to water quality violations). The Phase I program includes all the following jurisdictions:
- All local governments in the five-county Atlanta metro area of Clayton, Cobb, DeKalb, Fulton and Gwinnett counties, including the City of Atlanta
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Federal regulations were adopted in 1999 to extend the NPDES MS4 permit program to smaller (Phase II) communities. . . .
