By Lima (OH) Mayor David Berger
April 16, 2012

As mayor of a northwest Ohio community for more than 20 years, I am proud to live in Lima, a great place to raise a family. We enjoy public and parochial schools of high quality. We have arts and recreational opportunities for the young and the not so young. Our citizens have immediate access to high quality medical care. Generally, our low cost of living makes it an easy place to live. You may be aware that Lima is the fictional location of the popular television series GLEE. But for years now, we have been facing an enforcement action by EPA over Combined Sewer Overflows (CSOs) that is turning our Glee into glum!

We worked with Ohio to develop a long-term control plan that was approved by them. Under that plan, we would have invested more than $60 million in our CSO and related systems. However, EPA decided to override that approval and stop any implementation. That was ten years ago.

Since then, my community has spent approximately $6 million on engineering studies and lawyers in an effort to develop an affordable set of alternatives to comply with Clean Water Act (CWA) standards and EPA policy interpretations of those standards. None of that money treated a drop of water! And, we are still far from establishing an affordable plan to reduce periodic sewer overflows – primarily because EPA is demanding unreasonably expensive investments that our citizens cannot afford.

Lima, while a proud community with a high quality of life, is also a city of modest financial means. Our annual median income is roughly $30,525, with nearly one-third (30.3 percent) of persons living under the poverty threshold, ($22,313 in 2010 for a family of four). Another 20 percent of Lima households are under the median income level and close to the poverty threshold. Additionally, our demographic profile includes aging baby-boomers that comprise a substantial and growing class of fixed income seniors. Our low, moderate and fixed income households are particularly vulnerable to increasing costs of basic services.

The EPA and the state regulatory authorities define sewer overflows as violations of the CWA. Overflows are caused by rain. So, while mayors in the arid west often pray for rain, I pray that it doesn’t rain in Lima. That natural phenomenon results in more “violations” according to EPA, and, as the mayor, I am the de jure violator – not Mother Nature.

Not only am I made responsible for natural phenomenon, I am also subject to the confusing, and sometimes contradictory, messages coming from EPA at the regional and headquarters levels. While EPA leaders in Washington (DC) talk about basing regulatory decisions on science, most decisions are made in the context of enforcement actions taken by regional EPA staff that have little to do with science and much more to do with arbitrary policy. For example, the requirement to reduce CSO events to four or fewer is not a legal requirement contained in the CWA, nor is it based upon a scientific assessment of any receiving stream. It is a “presumptive” standard that the bureaucrats have decided should be enforced for all sizes of communities on all sizes of receiving streams. I guess the scientific principle here of “one size fits all” is a substitute for applying good science in the EPA Regions.

Lima would gladly eliminate or reduce sewer overflows if we had the financial capability to do so. The agency purports to rely on financial capability analyses to determine the affordability of sewer overflow control plans. Two metrics are typically considered. The first metric is a benchmark of two percent of median household income (MHI) that EPA originally suggested should not be exceeded by consent decree costs, and this figures very prominently in affordability analysis. The second metric is a combination of factors: municipal bond rating; municipal debt per capita; unemployment rate; property tax collection rate; and, property tax revenue as a percentage of the market value of taxable property. This second metric is intended to give a more robust characterization of the financial capability of a city to comply with a control plan.

The two percent of MHI has been a particularly controversial metric. In a March 2011 meeting held in Washington (DC), a dozen cities met with EPA officials, and several city staff stated first-hand knowledge that some EPA Regional staff were setting two percent of MHI as a floor to go above, rather than a ceiling to stay below. Other city staff indicated that their financial capability analyses had been submitted to EPA for review, but they never received any feedback from the agency.

Two percent of MHI is for many communities a poor indicator of financial capability because it assumes that families in poverty or who are below the median income can afford even that amount. The EPA leverages their enforcement authority to pressure communities to develop policies to shelter those families. The unfortunate reality is that if we shelter the vulnerable 30 percent of families who are below the poverty threshold and the 20 percent of families with moderate incomes below the median income number by shifting costs to businesses that will cause employers to flee our communities and take their jobs with them. Currently there are around 2,200 firms in Lima, and the major employers have a global reach in transportation, chemicals and consumer non-durables. It makes little sense to try to shift additional major cost burdens to the businesses that hire our citizens only to see them shutter factories and stores. These businesses already share a large burden through the user rate system.

shutter factories and stores. These businesses already share a large burden through the user rate system.

The long term control plans that EPA is demanding will have a burdensome and punishing impact on our most vulnerable families with low, moderate and fixed incomes, for the next twenty to thirty years. Diverting unreasonable investments to the overly costly control plans precludes the use of community resources for other necessary local investments. This is exactly where a federal agency not only interferes with local decision-making, but supplants the very ability of local elected officials to respond to the health, safety and welfare needs of their citizens in favor of the federal agency’s unilateral determinations.

But this does not have to be the only possible way to achieve the clean water goals we all seek.

I have personally participated in discussions and a formal workshop with EPA on the proposed new integrated planning policy. This policy is intended to help EPA, the state regulatory authorities and cities develop a process that allows cities to target investment of their limited resources to CWA sewer overflow and storm water requirements that yield the highest environmental benefits for the community, applying the maximum flexibility allowed by the CWA. Some of my fellow mayors have also participated in these discussions and workshops. We have repeatedly advised EPA to acknowledge that local resources are indeed limited, and that CWA regulations and Safe Drinking Water Act (SDWA) regulations should all be considered together comprehensively, instead of forcing cities to comply with a plethora of regulations in stovepipe fashion.

The dialogue with EPA has been valuable because it has made several things very clear. While EPA officials have stated they would like to be flexible where mandates are concerned, they also frankly assert that they cannot help communities as much as they would like to because their hands are tied by the requirements of the CWA. From a mayor’s perspective, if the Agency’s hands are tied, then the statute, the CWA, needs to be reformed. If EPA reaches the limits of flexibility and cities reach the limits of affordability, then Congress needs to remap the situation away from the collision course that we are now on.

What I also learned from participating in this dialogue is that achieving clean water goals can better be administered through a normal permitting process rather than through a punitive consent decree and/or law suit. Some at EPA contend that only a consent decree provides a city with a shield against third party lawsuits while they are implementing their long term control plans. Others, outside the EPA, however, argue that a key EPA administrative decision (the “Star Kist” decision) means that cities can implement sewer overflow controls over a long term through a normal permit, if this is allowed under state regulations, and can also be shielded from third party law suits by the permit. Yet, EPA stubbornly clings to a narrow (and many think incorrect) interpretation of the Star Kist administrative decision. In the workshop I participated in, it was made clear by the environmental groups that they prefer to achieve clean water goals through a normal permitting process, because they have greater input through the public participation process during public hearings. Here too, then, is an instance where a reforming update to the CWA would help all stakeholders get to our shared goals more effectively.

s that they prefer to achieve clean water goals through a normal permitting process, because they have greater input through the public participation process during public hearings. Here too, then, is an instance where a reforming update to the CWA would help all stakeholders get to our shared goals more effectively.

The current situation facing communities is neither productive nor sustainable. Congressional action is absolutely necessary: Congress needs to either appropriate sufficient grant funding to meet the CWA obligations as they are being enforced by EPA, or pass amendments to the CWA which provide adequate relief and flexibility for communities facing unaffordable mandates.