Above: Storm drains at Dane County Regional Airport, flowing through contaminated soils into Starkweather Creek. Are these city or county storm drains? Who is responsible to make sure toxic chemicals are not discharging into the creek here? What will be done (if anything) if they are? (Photo by Maria Powell)
See UPDATE 2 here: Has Dane County actually been violating its DNR stormwater permit for 26 years?
As described in the postscript of the original article (also below), to make sure I hadn’t missed anything, I asked Eric Rortvedt in DNR’s municipal permitting and compliance program if Dane County had (since 2004) created the authority to address “illicit discharge and detection” (IDDE) as required in its WPDES MS4 permit.
He said he only went to the office every two weeks due to covid, but would check Dane County’s MS4 file the next time he went in.
Several days ago he sent me the 2004 letter from Dane County’s Corporation Counsel to DNR that he found in the county’s MS4 files–confirming that the county did not have the legally-required IDDE authority in 2004. The Chapter 14 subchapter deficiencies were corrected, but he found no documents in the files indicating that the IDDE deficiency was corrected since then.
So, I hadn’t missed anything–my post was correct. Again, this raises many questions. Why was this legal deficiency “overlooked” by the county and DNR for 15 years? What and who prompted it to be addressed in 2019? Why is taking so long to adopt the legally-required ordinance now? And many more…
Dane County has been violating its DNR stormwater permit for 17 years
Dane County never established an ordinance or regulation required by law under its DNR municipal storm water permit that gives it legal authority to detect and eliminate “illicit discharges”—“any discharge of a potentially polluting substance directly or through stormwater that reached a municipal storm sewer, drainage way, wetland, waterbody, or groundwater.” A “potentially polluting substance” could include a range of substances, including sediments, metals, nutrients, toxic chemicals such as PFAS, and more.
Apparently DNR never noticed this significant gap in the county’s authority to prevent storm water pollution, and enforce pollution violations—or if it did, didn’t do anything about it for 15 years.
In 2004, Dane County’s Assistant Corporation Counsel stated that the county’s stormwater ordinances were legally insufficient to meet DNR’s requirements because they didn’t include an illicit discharge ordinance. But no ordinance was created. In 2014 and 2017, Public Health Madison Dane County staff attended Lakes & Watershed meetings asking that a county illicit discharge ordinance be created. Again, apparently, nothing happened. In spring 2019, when applying for its permit renewal, the county finally began drafting the ordinance it legally should have had in place in 2004 when it received its MS4 permit from DNR.
Almost two years later, the legally-required “illicit discharge ordinance” has still not been finalized, forget about adopted. In 2019 and 2020, the draft ordinance was discussed and repeatedly kicked from one Lakes & Watershed Commission meeting to the next. A final draft ordinance was approved by the Commission in October 2020, but for the last several months, it has remained “under review” in Corporation Counsel’s office. At the most recent Lakes & Watershed meeting on April 7, 2021, the chair reported that it was still under review.
Given the importance of “illicit discharges” of PFAS and a plethora of other kinds of pollution into Starkweather Creek, Lake Monona, the rest of the Yahara Lakes–and all of the waterways throughout Dane County–one would think that adhering to state stormwater laws by promulgating an illicit discharge ordinance would be a priority for Dane County and its regulator, the DNR. Apparently that’s not the case.
If you’re interested in more details, read the illicit discharge ordinance saga below.
Dane County Illicit Discharge Saga
DNR’s Municipal Separate Storm Sewer System (MS4) permit “illicit discharge” requirements
Dane County has several storm water pollution prevention and monitoring responsibilities in its “municipal separate storm sewer system” (MS4) permit issued by DNR’s Wisconsin Pollution Discharge Elimination System (WPDES) permitting program. Under NR 216, in 2004 DNR issued a group stormwater permit covering 19 municipalities, including Dane County and the City of Madison. This group is called the Madison Area Municipal Stormwater Partnership (MAMSWaP).
One of the key “stormwater management program” requirements of the MAMSWaP, as with all MS4 permits, is “Illicit discharge detection and elimination” (IDDE). According to the DNR’s IDDE guidance:
“State and federal storm water discharge regulations require permitted municipal separate storm sewer systems (MS4s) to develop, implement and enforce a program to detect and remove illicit connections and discharges to the MS4. In Wisconsin, this requirement is established in s. NR 216.07(3), Wis. Adm. Code.”
In order to fulfill the IDDE requirements, the permit requires each co-permittee to have “an ordinance or other regulatory mechanism to prevent and eliminate illicit discharges and connections to the MS4. At a minimum, the ordinance or other regulatory mechanism shall:
a. Prohibit illicit discharges and the discharge, spilling or dumping of non-storm water substances or materials into waters of the state or the MS4.
b. Identify non-storm water discharges or flows that are not considered illicit discharges (specifics removed here, see link)
c. Establish inspection and enforcement authority. (highlights added)
City of Madison relied on existing Madison General Ordinances to fulfill requirement
When it was first covered by the MAMSWaP permit, the City of Madison already had ordinances in place that legally fulfilled the illicit discharge authority requirement. Madison General Ordinances, MGO 7.46/7.47, first promulgated in June 1975 (and updated in 1998) were designed “to prevent any potentially polluting substance from reaching lakes or streams where it can create hazard to health, a nuisance or produce ecological damage and to assess responsibility and costs of clean-up to the responsible party.” The ordinance defines “Potential polluting substance” as “any dredged soil, solid waste, incinerator residue, sewage, garbage, refuse, oil, sewage sludge, munitions, chemical wastes, biological materials, radioactive substance, heat, wrecked or discarded equipment, rock, sand, cellar dirt, sump pump residue, and industrial, municipal and agricultural waste discharged into water.”
The city’s illicit discharge ordinance includes penalties and assigns enforcement responsibility to Public Health Madison Dane County (PHMDC, a joint city-county department). The penalty for violations (from link above):
Any person failing to comply with this ordinance may be subject to a fine of not less than fifty dollars ($50) no more than two thousand dollars ($2000). Each day of violation shall constitute a separate offense. (Am. and Renum. by Ord. 12,171, 7-20-98; Am. by ORD-08-00140, 12-23-08)
Dane County never created its required illicit discharge ordinance
While doing research for our 2019 Starkweather Creek Stormwater Report, which outlined gaps in city and county MAMSWaP permit requirements, we interviewed county staff responsible for the stormwater programs as well as DNR stormwater managers, trying to better understand city and county IDDE responsibilities. (Above: Large storm drain near Truax apartments (April 2021), which drains from a city storm system onto county land. Whose responsibility is it to do something about the trash and debris (including tires) that pile up in it? In 2018 and 2019, MEJO, Gambian Youths of Wisconsin and East Madison Community Center kids cleaned it up–after notifying the city but nothing was done. Now, in April 2021, it is full of trash again…).
See Steve Verburg’s Wisconsin State Journal story about our report.
City, county, and DNR officials didn’t mention a key problem in the IDDE program
We didn’t know during our research and interviews (in late 2018 and early 2019) that Dane County does not have the legal authority to enforce IDDE violations; this wasn’t stated anywhere and officials did not share it with us. However, officials’ answers about city versus county responsibilities for IDDE were very confusing and at times contradictory.
City staff said that the city (through PHMDC) was responsible for all IDDE testing in the county. DNR stormwater staff explained that: “Dane County developed IDDE program elements going back about 15 years ago and continues to implement its IDDE program” and Public Health Madison Dane County “has an annual storm sewer monitoring program covering City of Madison and other areas in the county” and “follows up on reports of reports of illicit discharges in the County in addition to annual outfall monitoring.”
But 2017 and 2018 county biennial reports we reviewed stated that: “County only monitors and reports on outfalls at three facilities. County staff does conduct outreach and follow up on illicit discharge complaints throughout the county.”
In further research (after our report was published), we learned that in 2004, Dane County’s Assistant Corporation Counsel David Gault submitted a legal opinion stating that the county’s stormwater ordinances were insufficient to fulfill the illicit discharge requirements because: “There is currently is no county ordinance that prohibits illicit discharges or controls spills, dumping and disposal of materials other than storm water into MS4 on county owned property, other than ordinances applicable at the Alliant Energy Center.” Following this advice, one recommendation in the county’s 2005 Annual Report was: “County must develop/amend ordinance or other regulatory means for non-stormwater dscharges into the MS4s along with appropriate enforcement procedures and actions” and should “coordinate with Corp. Counsel” to do so.[1],
For the next 15 years this was not done, as far as we know. DNR, which as the regulator presumably reviews these reports, did nothing.[2] Why not?
County IDDE program has been inadequate & under-funded from the start
It was also quite evident in our research that the county’s IDDE program has been inadequate and under-funded from its inception. Based on past biennial reports, the county didn’t do any IDDE stormwater contaminant screening/monitoring from 2004-2016, other than one inspection in 2005. In both 2017 and 2018, the county reported that it screened just three sites (a total of five outfalls); these were visual inspections–they didn’t include contaminant monitoring. Several reports only discussed two sites—Alliant energy Center and the Highway Department. When asked for clarification, DNR explained that the Henry Vilas Zoo used to be part of the county’s IDDE program but is no longer included.[3] DNR officials said county staff had ascertained that Alliant Energy Center and the Highway Department were the only county sites with potential for illicit discharges into storm sewer systems.[4]
Funding allotted to the IDDE program (or lack thereof) further supported our conclusion that IDDE implementation was not a priority for the county. Biennial reports for many years listed “NA” in the slot for IDDE funding, and 2017-2019 reports each budgeted $2,000 (with actual expenditures of $1,276 and $1,044 for 2017 and 2018, respectively).
Reflecting the county’s low priority on its IDDE program, nearly all of the IDDE sections from 2004-2018 look like this (in 2019 the format changed):
PHMDC recommended county illicit discharge ordinance in 2014 & 2017
In answering our queries in late 2018 and early 2019, DNR managers seemed confident that Dane County was diligent in following its IDDE requirements. They did not tell us that Dane County did not have the legal authority to enforce IDDE violations in the county.
City officials also did not tell us of this significant gap in the county’s (and their own) ability to address illicit discharges. Public Health Madison Dane County staff, responsible for monitoring and enforcing the IDDE program, were aware years before they talked with us that the county didn’t have the authority to enforce its IDDE responsibilities—so though PHMDC was responsible for IDDE in the county, it couldn’t enforce illicit discharge violations there. Meeting minutes from the July 23, 2014 Lakes & Watershed Commission meeting said that Doug Voegeli and Kirsti Sorsa from Public Health Madison Dane County asked for “policy assistance from the Commission, in developing a county-wide illicit discharge ordinance. Public Health follows up on spill and illicit discharge concerns, but their ordinance provides enforcement authority only in the City of Madison. At Jones’s request, they will send a list of illicit discharge referrals to DNR outside of City.” At the July 19, 2017 meeting, Voegeli and Sorsa brought up “needs for illicit discharge control in unincorporated areas” as one of their agency’s budget priorities.
County first drafted an illicit discharge ordinance in 2019
In spring 2019, fifteen years after Dane County was first covered under the MS4 permit, DNR finally asked the county to create the legally required illicit discharge ordinance during the permit re-issuance process. We don’t know what prompted this. (See postscript at the end of the article). Around this time, significant levels of PFAS were discovered at the Dane County Regional Airport stormwater (though this wasn’t reported publicly for many months after discovery). The county hired a new Corporation Counsel, Amy Tutwiler, who specializes in environmental law. That spring, we also released our Starkweather Creek report outlining numerous gaps in the city and county’s adherence to their stormwater permit requirements. (We don’t know if this had anything to do with it).
Left: Stormwater flowing through a ditch just feet south of the heavily PFAS-contaminated Darwin Road burn pit at Dane County Regional Airport. This stormwater flows into Starkweather Creek, perhaps 50 feet from the fence (not visible). Whose responsibility is this? (Photo, Maria Powell)
2019: Draft ordinance introduced, explained, discussed, reviewed…
Whatever prompted it, in spring 2019 the county began taking steps to create the required ordinance—at a snail’s pace. At the June 12, 2019 Lakes & Watershed Commission meeting, the illicit discharge program was listed in the 2020 budget recommendations. At the November 14, 2019 Lakes & Watershed meeting (which I attended), Jeremy Balousek, Dane County Water Resource Engineering Division Manager introduced the first draft illicit discharge ordinance. He explained that “[o]ur stormwater permit requires that we have an illicit discharge ordinance” but “[f]or the last several years, I think we’ve been kind of skating by with lines in our solid waste ordinance…actually, we really don’t have an illicit discharge ordinance.” He implied that the DNR asked them to have an ordinance during permit re-issuance process. “It kind of came to a head this year with the re-issuance of our stormwater permit,” he told commissioners.
Balousek said the county would start the process of drafting an ordinance by relying on the city, which “has an ordinance going back to the Clean Water Act in the ‘70s” and has “staff that actually goes out and investigates for illicit discharges.” The city staffperson responsible for IDDE “has been doing enforcement county-wide but has no enforcement capability. So he’s basically doing like a voluntary approach. He can’t actually write citations.” Consequently, the stormwater group decided to “provide a county-wide resource for this, and make that person able to actually do enforcement when it’s needed. So that’s kind of how this all got started. We have somebody that can do this, they don’t have any authority to do enforcement right now, and we, by state law, have to have that.” (Again, see postscript)
In the first draft Balousek shared, firefighting activities were exempted from IDDE coverage. He noted that with everyone talking about PFAS these days “maybe we shouldn’t exempt firefighting foam from this ordinance.” Subsequent drafts removed this exemption (apparently with Corporation Counsel’s approval).
August 6, 2019 MAMSWaP meeting notes said: “Dane Co. LWRD is working with Rick Wenta (Dane Co/City of Madison Public Health) to draft a new county-wide illicit discharge ordinance based off of the City of Madison ordinance. We’ve also received support to have a single point of contact at Dane Co. Public Health that could receive illicit discharge reports county-wide and work with individual municipalities to address them. The goal is to have an illicit discharge ordinance in place by early 2020 and launch an outreach campaign to encourage reporting of illicit discharges next summer. MAMSWaP partners receive a discounted rate for illicit discharge sample analysis at the City of Madison/Dane County Public Health Lab.”
Covid Year 2020: More illicit discharge discussion and inaction
In 2020 the draft illicit discharge ordinance bounced from meeting to meeting with some discussion but no action. An “Illicit Discharge Ordinance Update” was presented at the MAMSWaP meeting on May 5, 2020. Notes from this meeting said “Comments submitted by the group in Feb. were included in the revised draft along with comments from Rick Wenta. The latest draft was shared with the Dane County Corporation Counsel in late February and is being shared with various committees, but has been delayed a bit due to COVID-19. Christal will meet with Rick Wenta to start working on a process to take in county-wide illicit discharge reports, communicate with municipalities and track progress.”
On June 17, 2020, Balousek informed the Lakes & Watershed commission of continued work on drafting ordinance language to address illicit discharge. Notes from the August 4, 2020 MAMSWaP meeting said: “The Illicit Discharge Ordinance is ready to be introduced to the county board. There will still be an opportunity to collect input during the public comment period. The goal is to have the ordinance adopted this fall, develop an outreach campaign this winter and launch the campaign in spring 2021. Over the past couple months Rick Wenta and Christal have met with about half the MAMSWaP municipalities to discuss illicit discharge response plans for each community. The county needs to know who to contact and if they’d like the county to take the lead on response actions or not when reports come in. Christal is also working on a central intake system for reporting and tracking response actions that both the county and municipalities will have access to.”
At the September 16, 2020 Lakes & Watershed meeting, Balousek again provided an overview of the Illicit Discharge Ordinance and shared an Illicit Discharge Ordinance Summary and another Draft Illicit Discharge Ordinance. No action was taken.
Right: Large storm drain (part of the City of Madison sewer system?) full of trash, flowing onto county airport property and then into Starkweather Creek. Whose responsibility is this? Given that illicit discharge detection and enforcement is a PHMDC (city-county) responsibility, will PHMDC have the political will to enforce a violation against the city for discharging pollution into Starkweather Creek on county land? Or against the county? This land is not included in the DCRA stormwater permit area or Stormwater Pollution Prevention Plan (SWPPP) (Photo: Maria Powell)
Late 2020: Lakes & Watershed chair asks “Are we breaking the law?” “There’s no timeline” says the county
On October 7, 2020, Balousek again explained to the commission the reasons for the ordinance. “Our WPDES permit requires it. We skirted along with a few lines in our solid waste ordinance about nuisance wastes and discharges, but that really isn’t adequate to be an illicit discharge ordinance.” The PHMDC staff responsible for IDDE (Rick Wenta) attended the meeting and explained that in areas outside of Madison, where they have no enforcement authorities, he had to deal with the municipalities directly or go to DNR, but about two years ago DNR said “look, everybody’s got to get up to speed on the enforcement end of these dumpings and illicit discharges.” Balousek added, “This would allow us to ask the responsible party to clean it up right away, rather than going to DNR…We have all these tools, we don’t always use them. We try to get compliance with the path of least resistance.”
After Supervisor Rusk, a member of the commission, asked if there a timeline for this, the commission chair Chuck Erickson asked Balousek: “I’ve heard you say we’re supposed to have this and we don’t and it sounds like we haven’t for a long time. So, are we under a deadline?” Balousek answered, “not a strict one. DNR would like us to do this but they have not given us a deadline. My personal hope is that we would have something in place by January 1 of 2021.”
At the October meeting, the commission agreed not to exempt firefighting activities from the ordinance (this includes any firefighting activities, using foam with PFAS or not). On November 12, 2020, Balousek discussed the proposed ordinance with the county’s Environment, Agriculture, and Natural Resources committee (EANR), for information only, and told committee members who asked that under this ordinance, putting firefighting foam into county storm drains would be a violation and the county would have the authority to order a cleanup if that happened. He also said the new county ordinance would supercede the city’s ordinance, so that it would apply to the city as well as the county, and PHMDC IDDE staff would have authority in both jurisdictions.
At the next Lakes & Watershed meeting, on Nov. 18, 2020, Balousek shared an updated draft of the illicit discharge ordinance with the commission (the draft was not attached to the minutes but it presumably the one presented to EANR on November 12). He said it was reviewed by Corporation Counsel and was “ready to go.” Discussions ensued about when to have public meetings on the ordinance (along with the County’s Chp 14 stormwater ordinances, also under revision). The chair asked if waiting until February 2021 to have a public meeting on the illicit discharge ordinance was OK from a timing standpoint.
“We’re not under any deadline,” Balousek responded, “we’d like to get it in place, but…” Erickson interjected, “I thought from one of our previous meetings that you were hoping for January 1…” Balousek said “that was a hope, but it didn’t happen.” Again the chair interjected. “With illicit discharge, we’re supposed to have it, we don’t have it—are we breaking a law by not having it?”—and chuckling, he added, “maybe I shouldn’t say that.” After a pause, Balousek responded, “Let’s just say that they’re eager for us to get it adopted. We have a program all ready to go with public outreach, through our permitting group, and we have the staff on board to do it.” Erickson concluded with “hopefully we can get them to the first county board meeting in February.”
This did not happen. The January 6, 2021 meeting notes said “Ordinances have been submitted to Corporation Council. The department is waiting for review.” The February 2, 2021 notes said “The Land & Water Resources Department received comments back from Corporation Counsel and are making final revisions to CH 14 and Illicit Discharge Ordinance language.” There was no meeting in March.
April, 2021—still no final ordinance
The Lakes & Watershed Commission last met on April 7, 2021. Chair Erickson reported that the final draft of the illicit discharge ordinance was still at Corporation Counsel’s office, and that they would have the final version to be introduced to the county board “hopefully soon.” After this, the ordinance will go through county committees for approval and at least one public hearing.
So it will be a long time before Dane County is in compliance with DNR stormwater laws.
Does anybody care?
Postscript
While finalizing this post, wondering about some points, I contacted Eric Rortvedt, in DNR’s municipal permitting and compliance program, and asked: “Why hasn’t the county had an illicit discharge ordinance since 2004?” He answered: “Like Dane County, many permitted MS4s do not have a separate illicit discharge ordinance but instead use of combination of other local regulations such as littering and plumbing regulations to use in addressing/enforcing against illicit discharges. However, I believe the County determined that the existing combination of regulations did not give them as good an enforcement tool for dealing with the different types of illicit discharges as desired or needed. Therefore, they determined it would be better for them to develop a specific IDDE ordinance.”
I followed up with him for clarification: “Are you saying that DNR didn’t ask Dane County to create an illicit discharge ordinance? Does this mean DNR felt that the County’s existing regulations were sufficient to meet the MAMSWaP permit requirement that they have the legal authority to implement/enforce the IDDE program?”
His answer: “That is correct, DNR did not request Dane County to create an separate ordinance specific to the control of illicit discharges. Section NR 216.07(3(a) states “To the extent authorized by law, measures to effectively prohibit, through ordinance or other regulatory mechanism, non-storm water discharges into the storm sewer system and implement appropriate enforcement procedures and actions.”
He continued: “Based on this code requirement, DNR does not require MS4s to create a separate ordinance for control of illicit discharges as they may utilize other ordinance(s) or regulatory mechanisms, to administer the IDDE program. My understanding is that the MS4s covered under the Madison Area MS4 permit issued on 2004 were asked to provide a letter from their legal counsel that affirms that their municipality has adequate legal authority to implement and enforce the IDDE program and to identify such legal authorities. I don’t believe DNR reviewed all of the IDDE local authorities, especially where the local legal counsel provided a letter confirming that he/she believes the municipality has adequate legal authority to administer the program.” (highlights added).
I sent him the section in the 2004 Dane County Annual report in which the Assistant County Attorney says Dane County does not have the legal authority to enforce its illicit discharge program (cited above, and footnote 1 below) and asked him if they had developed this legal authority since 2004, or whether the legal opinion had changed.
His answer: “I was not overseeing the Dane County MS4 permittees until fall of 2006 so I’d need to review the Dane County MS4 hard files to get you a response to your question. Like the majority of DNR staff, I am working from my home but I typically visit the office about once every two weeks to retrieve old files and I will retrieve the Dane County MS4 file the next time I’m in the office.”
Hmmm. Who knows when I will receive an answer, if at all? Either way, clearly clarifying whether or not Dane County is meeting its permit requirements is not a priority for DNR. But this begs the question: If Dane County was in compliance with this requirement, as Mr. Rortvedt seems to be saying, why did Jeremy Balousek and Rick Wenta both state publicly numerous times that the county didn’t have the required legal authority–and DNR wanted them to establish it by creating a new ordinance?
[1] See Appendix A, iiib of the 2004 Group Municipal Storm Water Discharge Permit, Dane Co. Annual Report (a requirement of the MAMSWaP permit is that each municipality submit this).
[2] According to pg. 30 of the MAMSWaP permit: 4.1 Duty to Comply: The permittee shall comply with all conditions of the permit. Any act of noncompliance with this permit is a violation of this permit and is grounds for enforcement action or withdrawal of permit coverage under this permit and issuance of an individual permit. If the permittee files a request for an individual WPDES permit or a notification of planned changes or anticipated noncompliance, this action by itself does not relieve the permittee of any permit condition. 4.2 Enforcement Action: The Department is authorized under s. 283.89 and 283.91, Wis. Stats., to utilize citations or referrals to the Wisconsin Department of Justice to enforce the conditions of this permit. Violation of a condition of this permit is subject to a fine of up to $10,000 per day of the violation.
[3] It is unclear why the Vilas Zoo, a county property, was removed from the county’s IDDE program. In 2013, the EPA audited the City of Madison regarding sanitary and stormwater issues with the Vilas Zoo, which is owned by the county but connects to city storm and sanitary sewers. Many violations/potential violations were found. It isn’t clear how they were resolved.
[4] Many other county sites that have potential for illicit discharges (e.g., Dane County Health and Human Services property, Truax Field (beyond the military base), Dane County Regional Airport, and more) were not assessed. The 2005 Dane County Annual Storm Water report listed the airport as one of the “Affected County Departments.” However, after 2004 the airport was removed from the sites considered under the county’s IDDE program, presumably because it later received a WPDES permit. However, the airport WPDES permit and Stormwater Pollution Prevention Plan doesn’t include several areas of the airport property (such as the Darwin and Pearson/MATC burn pits). The 2005 Annual Report said “At the 2/3/05 MAMSWaP quarterly meeting, Jim Bertalocini agreed that the requirement would be waived in favor of a more informal agreement between WDOT and WDNR” (Bertalocini was the DNR’s Stormwater Program Coordinator). Some of the airport was covered under this “more informal” WDOT-WDNR agreement. However, in 2011 EPA deemed these DOT-DNR arrangements inappropriate, and in 2018 DNR issued WPDES construction permits for DOT sites at the airport. Still, it’s not clear why the airport’s permit and SWPPP do not include the burn pits and other areas on airport land.. Now that we know these are sources of very high PFAS levels, this question is more important than ever.
