News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
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Illinois Passes $45 Billion Capital Plan Including Money For Green Infrastructure

Illinois Governor J.B. Pritzker recently signed into law a $45 billion capital infrastructure plan dubbed “Rebuild Illinois”.  This plan allocates $33.2 billion for transportation, including $11 billion for the Illinois Department of Transportation’s multi-year plan and $14 billion for other road and bridge projects.  It also includes $4.7 billion for mass transit, $1 billion for passenger rail and millions for ports, aeronautics, and other projects.  The plan also appropriates $25 million from the Build Illinois Bond Fund to the Illinois Environmental Protection Agency for a green infrastructure financial assistance program to address water quality issues.  The terms “green infrastructure” encompasses a set of strategies that seek to better manage storm water, reduce urban heat island effects, improve air quality, and promote economic development and other sustainability goals.  Some examples include bio-retention gardens, green roofs, storm water swails, constructed wetlands, and permeable pavements. 

The State of Illinois’ history with green infrastructure goes back to 2009, when the General Assembly passed the Green Infrastructure for Clean Water Act, which directed the Illinois EPA to assess and evaluate using green infrastructure to help manage storm water.  Illinois EPA contracted with the University of Illinois – Chicago to research and assess effective best management practices, green infrastructure standards, and institutional and policy frameworks to support the development of a green infrastructure plan for Illinois.  The University provided a report to the Illinois EPA outlining recommendations based on the research of this topic.  The Illinois EPA then provided its recommendation concerning green infrastructure to the Governor and the General Assembly.  Based on those recommendations, the Governor and Illinois General Assembly established the Illinois Green Infrastructure Grant Program for Storm Water Management in 2011 to help local government units and organizations fund the implementation of green infrastructure best management practices for storm water management that are designed to protect or improve water quality in combined sewer overflow (CSO) and municipal separate storm sewer systems (MS4) areas in Illinois.  Between 2011 and 2014, the grant program awarded approximately $20 million for CSO rehabilitation projects, storm water retention and infiltration projects, and green infrastructure small projects.  The Rebuild Illinois plan therefore re-establishes funding for green infrastructure projects in Illinois.

This new funding mechanism in Illinois for green infrastructure follows the signing in January of a federal law, the Water Infrastructure Flexibility Act, which promotes green infrastructure and particularly encourages municipalities to include green infrastructure techniques in upcoming waste water and storm water control projects.  For many years, municipalities have faced immense water quality and infrastructure problems, which the US EPA sought to control through actions enforcing the Clean Water Act.  In 2000, the US EPA began a National Compliance Initiative to keep raw sewage and contaminated storm water out of US waterways.  Since the initiative began, the EPA, in conjunction with its state counterparts, have taken enforcement actions against the largest municipal sewer systems with Clean Water Act violations to reduce pollution and unlawful discharges of raw sewage that degrade water quality.  Under the National Compliance Initiative, EPA has taken actions at 97% of large combined sewer systems and 92% of large sanitary sewer systems, and 79% of Phase I municipal separate storm water systems.  These actions have resulted in municipalities agreeing to onerous and costly Consent Decrees.  As a result, municipalities now face difficult economic challenges with limited resources to attempt to meet the Clean Water Act requirements relating to storm water and waste water.  According to the U.S. Conference of Mayors, on average, municipalities spend between 6 to 7 cents of every tax dollar on water and sewer systems, making water infrastructure the third largest expense for cities behind education and emergency personnel.

In an attempt to assist municipalities with their compliance obligations, US EPA developed an integrated planning approach that offered a voluntary opportunity for municipalities to propose to meet multiple Clean Water Act requirements by identifying deficiencies from separate waste water and storm water programs, and sequencing investments so that the highest priority projects come first.  This approach in theory would lead to more sustainable and comprehensive solutions, such as green infrastructure, that improve water quality and provide multiple benefits enhancing community vitality.  The Water Infrastructure Flexibility Act codifies this planning approach into law by requiring the EPA Administrator or his state counterpart to inform municipalities of the opportunities to develop and integrate a plan that may be incorporated into a Clean Water Act Permit.  The new law specifically states that an integrated plan incorporated into a permit may include the implementation of green infrastructure or other “innovative” projects to reclaim, recycle, or reuse water.  The Act also allows integrated plans to become part of any resolution of an enforcement action brought by US EPA or its state counterpart and, also allows municipalities to modify consent decrees based on an integrated plan.

The Act also establishes a new office within US EPA, which is the Office of the Municipal Ombudsman.  One of the chief duties of the Municipal Ombudsman is to provide technical assistance to municipalities to comply with the Clean Water Act as well as provide assistance in helping municipalities develop integrated plans under the Clean Water Act.  The Act also requires the Administrator of the EPA to promote the use of green infrastructure and coordinate the integration of green infrastructure and permitting enforcement under the Clean Water Act, planning efforts, research, technical assistance, and funding guidance of the EPA.  The EPA Administrator is also required to direct each regional office of the EPA to promote an integrated use of green infrastructure within individual regions.

As a result, the new Illinois and federal laws relating to green infrastructure should lead municipalities to incorporate more green infrastructure into their storm water and waste water systems.  This gives any contractor that has experience with green infrastructure projects and techniques a competitive advantage over those contractors who do not.

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