BNA

With cities struggling to cope with the cost of upgrading their sewer systems to curb overflows, the U.S. Conference of Mayors is seeking more leeway when negotiating consent agreements aimed at resolving violations of the Clean Water Act.

Chattanooga, Tenn., Mayor Ron Littlefield, a member of a technical workgroup set up by the mayors, told BNA May 4 that the organization wants a change in how these agreements are negotiated. Instead of involving localities in devising methods for addressing the problem, he said, municipalities are “treated as criminals” by federal agencies.

Rather than getting federal grants and technical assistance, he said municipalities receive threatening letters and notices of violations.

“This needs to change,” Littlefield said.

A conference official said the mayors want the Environmental Protection Agency to consider more flexible arrangements that could allow cities to use relatively inexpensive green infrastructure and innovative technology and give them more time to carry out sewer improvements.

The conference has written to EPA and the Justice Department and met with officials from those agencies seeking changes in how the agreements are reached. The mayors say they cannot afford the costs of infrastructure replacement required in many recent consent agreements.

Large Sums of Money Involved
The sums are large.
For example, in August 2007, San Diego agreed to spend approximately $1 billion on sewage system upgrades through 2013. The city was required to upgrade or repair 27 of 84 total pumping stations in its wastewater collection system, replace 250 miles of pipeline, and clean 1,500 miles more each year.

The city of Nashville agreed to spend at least $300 million to upgrade its sewer system under an October 2007 agreement that required the city to extend sewer service to areas served by septic tanks and take specific actions to reduce overflows from both sanitary and combined sewers.

More recently the Puerto Rico Aqueduct and Sewer Authority agreed May 4 to spend more than $195 million on a drinking water plant over the next 15 years to resolve Clean Water Act violations (85 DEN A-9, 5/5/10).

Typical agreements among EPA, the Justice Department, and municipalities last for 15-20 years and focus on “grey solutions” such as building a new piping system or installing giant container tanks to prevent overflows, the Conference of Mayors official said.

But “green solutions,” such as green roofs, rain gardens, and porous surfaces could have an immediate effect on reducing sewer overflows and cost less, the official said. While EPA supports such approaches, they are typically not included in legal consent agreements because they are difficult to measure.

The technology is not quite there yet, the mayors' official said. For example, pervious surfaces can now be used for parking lots but not yet for roads, but this could change in five years.
In addition, new technology might make it easier to make immediate repairs to a system, making a wholesale overhaul unnecessary, the official said.

Mayors Convene Workgroup
The mayors' workgroup convened for the first time April 30 to begin developing proposals addressing the issue of cities' financial ability to pay for needed improvements. The workgroup expects to develop by the end of the year some technical solutions on how to implement broad recommendations they recently provided to the federal agencies.
Officials say there has been some progress.

David Sherman, director of public works in Indianapolis, told BNA city officials have been negotiating with EPA to modify the city's consent decree issued in 2006.
Since then, he said, the city has developed “alternative solutions,” including a redesign of its secondary treatment system, that will save money. Green infrastructure designs also are included in the modification, he said.

It has been a challenge, but after much negotiation, EPA in April finally agreed verbally to the modifications, but they are not yet official, he said. Nor have the changes been approved by a court, Sherman said.

The October 2006 settlement required the city to make $1.86 billion worth of sewer system improvements. It also required the city to pay a $1.1 million fine and $2 million on a supplemental environmental project (United States v. City of Indianapolis, S.D. Ind., No. 06-CV-1456, 10/4/06; 193 DEN A-1, 10/5/06).

Littlefield said mayors “would like a lot more technical assistance from EPA. The entire country is trying to deal with this issue. We need help. We're not just asking for a handout.”
While municipalities are spending millions of dollars on upgrading systems, they lack information on which approaches have worked in other communities, Littlefield said.

The mayors' conference has written to EPA and the Justice Department and recently met with agency officials to discuss challenges cities face on combined and sanitary sewer overflow actions.
Mayors Make Recommendations

In March, Tom Cochran, U.S. Conference of Mayors chief executive officer and executive director, asked the nation's mayors to participate in technical discussions—a move that led to the convening of the workgroup in April.

Earlier, representatives of the Conference of Mayors discussed their concerns and recommendations in December and February with agency officials, including Cynthia Giles, EPA assistant administrator for enforcement and compliance assurance, and John Cruden, deputy assistant attorney general for environment and natural resources. The mayors' group presented a set of broad recommendations for what the mayors describe as a “more flexible and cost-effective compliance protocol,” although the workgroup is expected to draft more specific proposals.

“They acknowledged our concerns,” the conference official told BNA.

In a memo summarizing the mayors' concerns, Cochran said cities “have expressed strong concern about how the EPA and DOJ are pursuing aggressive and inflexible enforcement actions related to [combined sewer overflows] and [sanitary sewer overflows].”

“These member cities feel they are being asked to commit to extremely expensive control requirements that go far beyond what is needed to comply with the Clean Water Act, EPA regulations, or even current EPA policies,” the memo said.

They asked EPA and Justice “to abandon the adversarial posture they have assumed” and replace it with a shared relationship.

They specifically requested that EPA and Justice issue a memorandum to EPA regions and to Justice Department attorneys “to provide the flexibility necessary to achieve the clean water goals with more reasonable timeframes and local cost impacts.”

This would enable local governments to choose a cost-effective option that makes prudent use of public funds while still substantially improving water quality, they said.

EPA Reviewing Issue
EPA said in an e-mail provided to BNA May 7, “We've been meeting with the principals and are reviewing their comments.”
EPA and the Justice Department have broached the issue in previous correspondence with the mayors.

In a September 2009 letter, the agencies said they were considering unique community circumstances and agreed that green infrastructure projects can play an important role in controlling sewer overflows, achieving compliance, and improving water quality. They encouraged municipalities to work with states to explore opportunities for assistance through clean water state revolving funds.

The agencies were responding to a previous letter from the mayors urging them to consider limits on a city's ability to raise funds and develop a compliance protocol.

Water Agencies Seek Guidance Change
Currently, the association said in a policy statement, EPA's guidance relies on median household income to determine whether a community can afford to implement a particular requirement under the Clean Water Act.

However, this does not accurately reflect a community's true economic situation, NACWA said. For example, it often does not adequately account for pockets of low-income groups or future demographic shifts in population.

EPA's financial capability models should account for additional indicators of fiscal health such as local economic conditions, including the housing market and unemployment, according to NACWA.
NACWA said EPA's current approach does not account for other competing water-investment needs, such as stormwater controls or advanced treatment requirements, which utility ratepayers must also absorb. EPA also should examine scheduling requirements, it said.