Washington Association of Sewer and Water Districts

Pipeline

Washington Association of Sewer and Water Districts

Articles from the August 2003 Publication

$4 Million Available to Acquire and Rehab Water Systems

Special Purpose Water and Water/Sewer Districts, and other municipal water systems, may apply for grants to help offset the acquisition and rehabilitation of private or other public water systems.

Acquired water systems may be connected to your current system or left as stand-alone systems with an independent supply of water.

The grant program is jointly administered by WA. Department of Health, the Public Works Board, and the Department of Community, Trade & Economic Development (CTED). This program is very fast track and the funds will be obligated before the end of this year.

Applicants for the grants must be a publicly owner Class A water system that has been a Class A system for at least 5 years. The grant funds may be used for planning, design, preconstruction activities, system acquisition, and capital construction costs.

The joint agency administrative body has been working during the month of July developing guidelines for the awarding and distribution of these grants. A stakeholder meeting was held in late July with representatives of various types of municipal water systems. The grant guidance will be finalized in August and the Public Works Board hopes to receive grant applications in September.

If your district is interested in growing through the acquisition of other water systems in your service area, and would like funds to assist in that process, then contact the Public Works Board as early as possible.

Budget & Legislative Workshops to Lead Off Fall Conference

This year’s Fall Conference, Trade Show and annual business meeting is being held in the Downtown Portland Marriott Hotel in Portland, Oregon.

Having outgrown the facilities available in the Vancouver area the Association selected to slip across the Columbia River into Portland in order to be able to hold the event in the Southwest Washington area. We are hoping the next time we look for a SW Washington conference site the new Vancouver Conference Center will be built and open for business.

Portland offers many wonderful activities and sites for attendees to visit while at or after the Conference. Just blocks North of the Hotel is Portland’s Classical Chinese Garden located in the City’s Old Town/Chinatown area. Also recommended is the Formal Japanese Garden located in Washington Park on Portland’s West Hills. Those who like to shop and read will want to check out Powell’s City of Books or stroll the shops in the Pearl District and Nob Hill.

Conference attendees should consider bringing spouses and guests to enjoy the city. Similar to last year’s Fall Conference Thursday evening will be a free night without a banquet. So go enjoy Portland and all its sights.

Wednesday will feature the Annual Fall Scholarship Golf Tournament in the morning at Langdon Farms Golf Club, and two pre-conference workshops in the afternoon. The 2004 budget will be presented and discussed during the first pre-con workshop and the proposed legislative agenda for 2004 will be the focus of the second workshop.

As always there will be a come as you are buffet on Wednesday evening from 6:30 to 9:00.

Thursday will begin with Section breakfast meetings and Conference opening ceremonies beginning at 9:00 am. Three concurrent tracks covering water, sewer and administrative issues will fill the afternoon. The concurrent workshop sessions will be followed by the Exhibitors’ reception .

Friday begins with the Commissioners and Managers breakfast meetings followed by the 2003 Annual Membership meeting. Election of new board members and officers are the prime business this year.

Friday afternoon will focus on legal issues affecting districts. Workshops on construction law, bidding practices and development of connection charges will be offered.

Please plan on attending this year’s Fall Conference and Trade Show. Visit with fellow commissioners, share experiences with other district staff and learn about recent changes affecting district operations.

Filing Season Closes

Thanks to the internet it is now possible to follow the candidate filings on a county by county, position by position basis. This year’s filing week produced some interesting surprises.

In the more rural areas many seats went lacking for candidates. In some districts all positions lacked candidates. The urban districts are where the more interesting races are going to occur.

In one district race there are six candidates vying for one position. Many races this year will have a primary as three or more candidates filed while several incumbents who have run unopposed in prior years will have an opponent this fall.

Serving as a special district commissioner is a very important job that most citizens have no appreciation for. As long as the water keeps flowing the wastewater leaves the premises and the rates stay reasonable, no one seems to notice or care what goes on at the district.

We are grateful to those boards of commissioners who keep the district adequately funded, well managed, and maintained. The Municipal Research and Services Center has issued a report stating that smaller, specialized government can often provide more timely service at less cost than larger units of government, something special districts have known for years.

We appreciate those who cast their names for consideration and wish each a productive campaign season. For those who win, remember the Commissioners’ Workshop in January. This workshop brings together years of experience to help both new and experienced commissioners keep up to date on new legal and regulatory requirements. Mark your calendar for the first Saturday in January.

Retro Refund to Districts

For the fourth year in a row districts participating in the Association’s Retrospective Rating Program earned a refund of a portion of their L&I insurance premiums. The 2002-2003 plan year ended on June 30th with a positive loss ratio which will qualify the districts for a partial refund of premiums they paid in 2002-2003.

Last year’s refund was over $32,000 and Tim Reid, program administrator believes the 02-03 refund should be about the same.

If your district does not participate in RETRO you may want to investigate how your district can get part of its L&I premiums back the way other districts are doing.

Please contact the Association office for information on RETRO and how your district can participate. You owe it to your district’s ratepayers to check into retrospective rating.

Citizen Suits Against Wastewater

Treatment Plant Operators

By Richard E. Jonson

Districts operating waste water treatment plants should be aware that citizens and environmental organizations have the authority to privately enforce the provisions of the federal Clean Water Act, 33 USC 1251 et seq (the “Act”).

In Western Washington, the Puget Soundkeeper Alliance (“PSA”) has adopted a mission of protecting water quality in Puget Sound. It is affiliated with a national organization called the Water Keeper Alliance founded many years ago by Robert F. Kennedy. The Board that governs the PSA is made up of many high profile individuals including the mayor of Seattle. It has paid staff, uses wastewater treatment engineers as consultants and utilizes a law firm that specializes in environmental matters. See www.soundkeeper.org for more information.

The PSA makes routine public information requests to the Washington State Department of Ecology (“Ecology”) for effluent quality reports filed by wastewater treatment plant operators. If those reports show that the operator is exceeding the terms of its NPDES discharge permit, PSA places the operator on a watch list. If the violations persist, the organization takes action.

The steps necessary to cure a violation may take time to develop and oftentimes require approval by Ecology - which means preparing, submitting and obtaining approval of reports and engineering plans. These steps take time. While Ecology will usually work with an operator who is violating the terms of its discharge permit, PSA, on the other hand, feels that Ecology is much too lenient with the operators and is apt to proceed in a more aggressive manner.

The Act empowers organizations such as the PSA to proceed with legal claims against treatment plant operators pursuant to Section 33 USC Sec. 1365. The statute first requires the organization to file a sixty day notice of intent to sue for the water quality violations. That notice informs the operator of the violations and advises that suit will be brought after sixty days unless the operator desires to settle. The settlement demand includes payment of the organization’s costs and attorney fees.

The PSA prefers to file suit and then negotiate the settlement as part of a consent decree entered with the court. Therefore, it can be difficult to settle with the PSA prior to the filing of suit. Filing suit significantly increases the legal costs even if the operator desires to expeditiously settle the claim.

After the sixty day notice period, the organization may commence a citizen suit under the Clean Water Act in U.S. Federal District Court seeking penalties, court costs and attorney fees. According to federal case law, the organization must prove that the administrative action by the agency has been less than adequate and there is a continuing likelihood of continuing violations of the operator’s discharge permit. Those contentions can be disproved, but it takes legal, engineering and other resources to fully develop the necessary facts to do so. Due to the high costs of litigation, many operators choose to settle rather than defend the claims at trial.

The PSA has filed many of such claims and suits in the Puget Sound area and participated in many settlements. The PSA has consistently required that the treatment plant operator to pay the costs of PSA’s experts and attorneys and usually requires the operator to pay a penalty. The PSA appears to prefer a private penalty in lieu of the federal penalty amounts. The private penalty is often paid to another environmental non-profit organization that has a project related to protecting water quality. In one recent case, the treatment plant operator negotiated an arrangement whereby the penalty amount was held in trust by the county treasurer to fund future improvements to the operator’s wastewater treatment plant, although those funds will revert to an environmental organization if the project does not meet certain deadlines and milestones. Neither Ecology or EPA plays a role in the settlement process.

In conclusion, the powers granted under the Act allowing private parties to commence suit increases the risk of claims to operators of wastewater treatment plants. If a wastewater treatment plant is not meeting the terms of its NPDES permit, the operator should not be lulled into a false sense of security just because Ecology has not levied any penalties. The operator should act quickly, if possible, to resolve the problems because citizen claims can be avoided if the operator can show that the violations do not have a reasonable likelihood of continuing.

Richard (Dick) Jonson is a partner in the firm of Jonson & Jonson. He has organized the Association’s Attorney Luncheons for the last several years and has supported the Assn. in many other ways.

August 2003 PIPELINE Articles