By Rich Anderson
April 30, 2012

Conference of Mayors Water Council Co-Chair and host city Indianapolis Mayor Gregory A. Ballard welcomed mayors and city staff to a meeting held April 11-12. Joined by Co-Chair Pleasanton Mayor Jennifer Hosterman, the meeting focused on modernizing water and wastewater infrastructure and services to meet the needs of a growing population, and a review of progress on the U.S. Environmental Protection Agency’s Integrated Planning Policy. USEPA Region 5 Administrator Dr. Susan Hedman was the keynote speaker.

Conference of Mayors staff member Judy Sheahan briefed mayors on the five EPA workshops that were designed to collect public input on how to frame the Integrated Planning Policy. The policy is intended to provide cities with flexibility in how they invest limited resources to address sewer overflow and storm water control, and target investments where the greatest environmental benefits can be achieved. EPA plans to issue a guidance document to provide staff on how to apply the flexibility envisioned by the Agency.

Sheahan stated that many local officials strongly urged EPA to include other regulatory requirements under the flexibility effort, such as drinking water standards. She said that state permit officials registered concern that dealing with flexibility might overtax their limited resources. She also stated that representatives of the environmental community that participated in the meetings favored establishing control plans through the normal permit process because they would have greater levels of input as opposed to using legal mechanisms under the court ordered consent decree approach.

Several mayors who attended the workshops provided additional comments. Ballard stated that the EPA regional office staff are a much different animal than the headquarters staff. He stated that Indianapolis repeatedly proposed that they could do it [establish a control plan] bigger, faster, cheaper, and greener than the one EPA was forcing on the city. He said, "But that didn’t seem to matter with EPA, which is shocking."

Ballard and his team finally amended their consent decree with EPA’s, by then, enthusiastic support, but he pointed out that the city had to push pretty hard to get the Agency to agree. Now, he said, he is pleased that EPA sees this as a model, but at the same time it was very difficult to get there.

He said that EPA’s insistence on using a straw man affordability threshold of spending two percent of median household income (MHI) on controls is problematic. "Let’s instead look at results. What do we need to do, and then let us figure out what to do. Mayors at the local level are always so innovative and creative there is always a mix. The Integrated Planning Policy is a great step forward, we need to be flexible and plans need to be affordable. Mayors know the cost and what the future benefits are." Ballard stated that it is difficult to imagine what would have gone forward if the Conference of Mayors had not taken a look at changing the dynamic between the cities and EPA on this issue.

Lima (OH) Mayor Dave Berger stated, "We started a conversation with EPA on an integrated plan approach, but the proof is yet to be delivered. We are being hopeful, but focused." He said that Resolution 43 adopted by the Conference of Mayors last year articulated specific ways flexibility could be made available under the existing Clean Water Act (CWA), and specific metrics that could be used to judge, if such flexibility is being optimized.

Berger said he gained insight from attending the workshop when EPA representatives, environmental advocates, and other cities stated that the CWA may need to be "tuned up." He said, "We need to look at the opportunity to open the Act, for example when the Sanitary Sewer Overflow (SSO) enforcement interpretation by EPA is that every overflow needs to be eliminated, regardless of cost." This is where the CWA needs to be amended to provide more common sense flexibility. He also indicated that relying on the permit process is a more sane way to do business rather than consent decrees.

Omaha (NE) Mayor Jim Suttle remarked that, "Omaha is beginning to measure the Missouri River to know it better than anyone using assumptions and models to set conditions for a long term control plan." He has made plans to initiate and fund research on new technologies that could lower the cost of compliance, and make the information available to all cities.

Suttle said, "Omaha already has 14 green infrastructure solutions in our plan, and we will expand them and I want to get credit for the expanded suite of green solutions towards compliance." One of his goals is to eliminate the deep rock tunnel solution being promoted by EPA and save $750 million, or 45 percent of the cost, and eliminate the requirement to take out long-term debt for that piece of the plan.

Monrovia (CA) Mayor Mary Ann Lutz reported that EPA did not schedule a workshop in Region 9, which includes all of California, but did participate in a meeting called by Lutz on the Integrated Planning Policy. Lutz reported that many local mayors and other city and county officials participated in the meeting, and the goal was to try to get everyone on board with providing flexibility.

Lutz indicated that there are only two small CSO systems in the Los Angeles area, but that all of the communities are involved with a law suit that, after seven years of study, resulted in a consent decree involving regulatory limits for 34 Total Maximum Daily Loadings (TMDLs). The standards are applied to discharges to man-made channels that are managed by the county flood control district – they are not rivers per se.

Lutz indicated that EPA is talking about CSOs and flexibility, but many communities in the Los Angeles area are concerned about flexibility with regard to TMDLs that are in what is referred to as MS4-NPDES permits. She stated that, "…while the city may be a discharger into the flood control district … that is owned by the county flood control authority and the water will pass directly through to the ocean outfall … once the discharge hits the flood control channel the city has zero control." She stated that financing control plans to address TMDLs will only be possible with increased taxes and fees, both of which require voter approval by state law. Lutz said that the Integrated Planning flexibility proposed by EPA would have no application to or benefit for California cities unless it is broadened.

Hedman delivered the keynote address. She stated that from reading U.S. Mayor, the Water Council Newsletter, and Resolution 43 that the Agency "… has heard loud and clear and repeatedly … cities need greater flexibility to meet clean water obligations … and are looking for a real working relationship with the USEPA." She stated, "I am here today to tell you that we want that working relationship too."

Hedman said that one of the past barriers to flexibility and developing that working relationship was the Agency’s basic approach to thinking about requirements that often focused on individual requirements in isolation. She pointed to the original 2006 consent decree with Indianapolis that was designed to mitigate the seven billion gallons of untreated discharge into the White River. At the time, the EPA, state authorities and the city were focused solely on the CSO control plan. It was a conventional plan with a large interceptor sewer and it was costly.

When Indianapolis took another look at the plan and questioned the financial sustainability of the program, things started to change. Costs were increasing and time lines were delayed. The city re-engineered the plan that saved ratepayer money, and produces more environmental benefit than the original consent decree plan. The new plan included wastewater and stormwater, and includes green infrastructure that was not previously contemplated. The improved plan would eliminate the need for an additional $30 million pump station, and will capture an additional one billion gallons of stormwater. Hedman said the amended consent decree is environmentally better than the original decree. She stated, "I am very proud that this happened here in Region 5."

Hedman noted that several other consent decrees in the Region have been modified, and staff at the regional office is involved with consideration of changes with other cities and utilities. "This is how this movement, literally it is a movement, that started with municipalities, to move toward integration, which then lead to EPA’s Integrated Planning Memo," she stated.

Hedman noted the Integrated Planning Memo is still under development, and a usable framework for applying it will be open to all communities. The Agency understands that we all need to recognize communities have limited resources and need to meet competing demands for those resources. "As I see it one of the best things about using an integrated approach is that it moves green infrastructure projects higher up on the list and allows us to talk about those actions in addition to gray infrastructure," she stated. She also said it all needs to occur within the boundaries established by existing regulations and policies. The CSO policies established in 1994 requiring full compliance with the Clean Water Act is unchanged, she stated.

Hedman indicated that over half of the CSO and SSO communities in the nation are in Region 5, and the Regional Office has a lot of experience dealing with the issue. She highlighted the trend toward greater Integrated Planning as it is now being applied to communities in the Region. Several major systems have agreed with the state and EPA to invest in reducing a significant amount of overflows over the next two decades, sometimes applying a phased implementation plan over a longer period of time.