DAR File No. 41485

Transportation, Preconstruction

Rule R930-9

Detection and Elimination of Unauthorized Discharges into Drainage Systems, Enforcement of Water Laws, Sanctions for Violation, and Permitting

Notice of Proposed Rule

(New Rule)

DAR File No.: 41485
Filed: 04/19/2017 10:50:14 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Department of Transportation has the authority to detect, investigate, eliminate, and enforce against any non-storm water discharges (including illegal dumping) that it identifies in its storm drainage system or within its right-of-way. The Department also has the authority to create an effective regulatory mechanism for the Department to implement actions that meet the requirements of the Department's Utah Pollutant Discharge Elimination System (UPDES) Municipal Separate Storm Sewer System (MS4) Permit. The purpose of this rule is to create that regulatory mechanism.

Summary of the rule or change:

This rule recognizes the Department's authority to create a regulatory mechanism for the Department to implement actions that meet the requirements of the Department's UPDES MS4 Permit; identifies steps the Department may take to enforce the rule; and identifies fees the Department may charge for tie-ins to the Departments storm water systems, for unlawful discharges through the systems, for illicit connections to the systems, and for other unauthorized uses of the systems.

Statutory or constitutional authorization for this rule:

• Subsection 63G-3-201(2)(a)
• Section 72-1-201
• Section 72-7-102
• Section 72-7-104

Anticipated cost or savings to:

the state budget:

This rule provides a mechanism through which it may charge fees to third parties for using the Department's storm water systems, and to penalize third parties that direct unlawful discharges through the systems or make unauthorized tie-ins to the systems. Enforcement costs will likely offset savings to the state budget.

local governments:

The Department does not anticipate that this rule will lead to significant costs or savings to local governments unless a local government seeks a tie-in to a Department storm water system, or makes an illicit tie-in to a system, or makes an illicit discharge through a system. In such cases, there will be a cost to the local government which will be offset by the benefits provided.

small businesses:

The Department does not anticipate that this rule will lead to significant costs or savings to small business, generally. However, should an individual small business seek a tie-in to a Department storm water system, or make an illicit tie-in to a system, or make an illicit discharge through a system, there will be a cost to that small business which will be offset by the benefits provided.

persons other than small businesses, businesses, or local governmental entities:

The Department does not anticipate that this rule will lead to significant costs or savings to persons other than small businesses, businesses, or local government entities, generally. However, should a person other than small businesses, businesses, or local government entities seek a tie-in to a Department storm water system, or make an illicit tie-in to a system, or make an illicit discharge through a system, there will be a cost to that person which will be offset by the benefits provided.

Compliance costs for affected persons:

There will be compliance costs to affected persons that will be offset by the benefits provided for legitimate tie-ins.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule will not cause a fiscal impact on businesses, generally. However, should an individual business seek a tie-in to a Department storm water system, or make an illicit tie-in to a system, or make an illicit discharge through a system, there will be a fiscal impact to that business. Fiscal impacts on businesses with legal tie-ins will likely be offset by benefits provided to those users.

Carlos Braceras, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Transportation
Preconstruction
CALVIN L RAMPTON COMPLEX
4501 S 2700 W
SALT LAKE CITY, UT 84119-5998

Direct questions regarding this rule to:

• Mark Burns at the above address, by phone at 801-366-0198, by FAX at 801-366-0352, or by Internet E-mail at markburns@utah.gov
• Christine Newman at the above address, by phone at 801-965-4026, by FAX at 801-965-4338, or by Internet E-mail at cwnewman@utah.gov
• James Palmer at the above address, by phone at 801-965-4000, by FAX at 801-965-4338, or by Internet E-mail at jimpalmer@utah.gov
• Linda Hull at the above address, by phone at 801-965-4253, by FAX at , or by Internet E-mail at lhull@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

06/14/2017

This rule may become effective on:

06/21/2017

Authorized by:

Carlos Braceras, Executive Director

R930. Transportation, Preconstruction.

R930-9. Detection and Elimination of Unauthorized Discharges into Drainage Systems, Enforcement of Water Laws, Sanctions for Violation, and Permitting.

R930-9-1. Rulemaking Authority.

The Department promulgates this rule pursuant to Utah Code Subsection 63G-3-201(2)(a), Section 72-1-201, Section 72-7-102, and Section 72-7-104.

 

R930-9-2. Detecting Discharges into Drainage Systems.

The Department has the authority to detect, investigate, eliminate, and enforce against any non-stormwater discharge (including illegal dumping) to its drainage systems and within its right-of-way. The Department also has the authority to create an effective regulatory mechanism to implement actions that meet the requirements of the Department's Utah Pollutant Discharge Elimination System ("UPDES") Municipal Separate Storm Sewer System ("MS4") Permit.

 

R930-9-3. Regulatory Mechanism to Meet the Requirements of the Department's UPDES MS4 Permit.

The Department will act to enforce the requirements of its UPDES MS4 permit.

 

R930-9-4. Connections to Drainage Systems, Permitting, Fees.

(1) The Department has the authority to require compensation from a local government or property owner to connect to drainage systems located within Department right-of-way.

(2) The Department may recover the costs of managing a local government or property owners' connection to drainage systems located within Department right-of-way.

(3) The Department may issue and require the local government or property owner to obtain a permit to connect to a drainage system located within Department right-of-way. The primary purpose of the drainage system is for the management of stormwater runoff from the Department's right-of-way. Drainage flows from offsite areas must not exceed the capacity of the drainage system or interfere with the Department's ability to use its drainage system. The Department has the discretion to deny requested connections to its drainage systems. If the application is complete and a connection is permitted, the Department will either enter into an agreement with the local government or the property owner shall sign the Department's drainage agreement.

(4)(a) The local government or property owner will be responsible for all costs associated with clean-up necessary or any imposed fines or penalties due to non-stormwater discharges into the Department's drainage system regardless if a connection has been permitted.

(b) If the local government or property owner fails to take measures to prevent non-stormwater discharges, the Department will require the connection to be removed from the Department's drainage system.

(5) The Department may require the local government or property owner seeking to connect to a Department drainage system to provide a surety bond sufficient to protect the Department from harm to its drainage system caused in whole or part by work performed on or substances discharging from a local government's system.

(6) The Department may adopt a fee schedule that indicates required dollar amounts for surety bonds required of various types of utility services or for property owners seeking permits to connect to a Department drainage system.

(7) The Department may adopt a fee schedule covering connection, permit, and management fees it charges local governments and property owners and will make it publicly available.

(8) Fees collected by the Department under this rule shall be deposited with the state treasurer and credited to the Transportation Fund.

 

R930-9-5. Enforcement.

(1) When the Department learns that a local government or property owner has installed, placed, constructed, altered, repaired, or maintained a drainage pipe, inlet or manhole, ditch, culvert or any other structure or object of any kind within Department right-of-way without the Department's without complying with the requirements of Utah Code Title 72, the Department may:

(a) Remove the installation from the right-of-way immediately as circumstances dictate; or

(b) Give written notice to the local government or property owner to remove the installation from the Department's right-of-way.

(2) Notice under Subsection (1)(b) may be served by:

(a) Personal service; or

(b)(i) Mailing the notice to the person, firm, or corporation by certified mail the last known address; and

(ii) Posting a copy on the installation for 10 days.

(3) If the installation is not removed within 10 days after the notice is served, the Department may remove the installation at the expense of the local government or property owner.

(4) The Department may recover the costs and expenses incurred in removing the installation, serving notice, and the costs of a lawsuit.

(5)(a) If the local government or property owner disputes or denies the existence, placement, construction, or maintenance of the installation, or refuses to remove or permit its removal, the Department may bring an action to remove the installation.

(b) If the Department is granted a judgment by a court the highway authority may recover the costs of removing the installation as provided in Subsection (4).

 

R930-9-6. Referrals to the Attorney General.

The Department will refer matters related to enforcing this rule to the attorney general.

 

KEY: storm water, tie-ins, UPDES MS4, illicit discharge

Date of Enactment or Last Substantive Amendment: 2017

Authorizing, Implemented, or Interpreted Law: 63G-3-201(2)(a); 72-1-201; 72-7-102; 72-7-104