By Judy Sheahan
August 6, 2012

Lima (OH) Mayor Dave Berger, representing the Conference of Mayors, and Salt Lake City Mayor Ralph Becker, representing the National League of Cities, testified on July 25 before the House Transportation and Infrastructure subcommittee on Water Resources and the Environment. The hearing focused on the Environmental Protection Agency's (EPA) newly released Integrated Planning and Permitting Framework which allows municipalities the opportunity to develop a plan that balances competing Clean Water Act (CWA) requirements to allow them to focus their resources on the most pressing public health and environmental protection issues.

Joining the mayors on the first panel were Hamilton County (OH) Commissioner Todd Portune, Utah Department of Environmental Quality Division of Water Quality Director Walt Baker, New York City Environmental Protection Commissioner Carter H. Strickland Jr., District of Columbia Water and Sewer Authority General Manager George Hawkins, and Former Ohio River Valley Water Sanitation Commission Executive Director Alan Vicory, Jr. The second panel featured EPA speakers including Water Acting Assistant Administrator Nancy Stoner and Office of Enforcement and Compliance Assurance Assistant Administrator Cynthia Giles.

Witnesses from the first panel all applauded EPA for issuing the Framework and said that it could prove to be a very useful tool for local governments who were trying to balance competing unfunded mandates with the need for investing in existing infrastructure to maintain public health. However, they also all agreed that the Framework could be improved in ways to make it more useful with one of the biggest issues being what is considered “affordable” to citizens.

“The Conference recognizes that EPA put forth a major good faith effort to respond positively to the cities- requests for flexibility, with the positive aspects being that the Framework recognizes the need for flexibility and embraces both green infrastructure and adaptive management; it recognizes that cities have limited resources and uses priority setting to provide partial relief; it recognizes that there will be disproportionate burdens on low income households, and allows consideration of those burdens; and it acknowledges that in some cases integrated plans can be implemented in permits,” Berger said.

However, Berger pointed out that the Framework does not go far enough. Berger discussed how the only substantive relief was in the scheduling of mandates which allows cities to prioritize cost-effective actions but low priority, low benefit actions appear to still be mandated at a later date. The Framework also limits the use of permits for implementation, with the result that, in most cases, EPA will continue to use enforcement tools that treat cities as criminals. The Framework also does not provide for consideration of safe drinking water regulations when setting priorities. And the fundamental problem of affordability was not addressed.

Berger outlined his own city's struggle to deal with the affordability issue. The annual household median income in Lima is $26,943 with nearly one-third of Lima citizens living under the poverty threshold. Implementation of the proposed Combined Sewer/Sanitary Sewer Long-Term Control Plan will raise the average annual sewer bill in Lima to $871.62. This means that 47 percent of households would experience rate increases above four percent of household income, including 16 percent of households that would be paying nearly nine percent of their income for sewer costs only, 12 percent of households that would be paying nearly seven percent of their income and 19 percent that would be paying over four percent of their income paying their sewer bills. And, if you add water and sewer costs together, the lowest income household category would be required to spend over ten percent of their household income for water and sewer services.

Becker echoed Berger's comments. “We struggle with the reality that each federal regulatory program and federal mandate is assessed on communities independent from other program requirements,” Becker said. “Water rate and tax increases placed upon our residents to fund regulatory mandates should be reasonably affordable, and affordability within a community should be assessed based on impacts to the lowest economic level.”

“These citizens need substantive relief that the current Framework does not provide and according to EPA, the Clean Water Act ties their hands from providing more substantive relief,” Berger said. “So we need Congress to act.” He added, “Either provide us with relief or give us cash.”

Berger outlined what Congress should do including: impose a cost cap on federal clean and safe drinking water mandates; provide greater federal financial assistance than current State Revolving Fund loan programs and in the form of grants; provide a shield for cities from third party lawsuits for cities that are working toward long term compliance under a permit; direct EPA to halt enforcement campaigns against local governments in favor of EPA programs for integrated planning, watershed planning, and water quality permitting; and prohibit EPA from exacting fines and penalties against local governments that are engaged in good faith efforts, and are investing capital, to comply with water/wastewater regulations under permits.

“Cities are not criminals or enterprises tempted to ‘pollute more- to make more profit and should not be treated as such,” Berger concluded. “Cities are stewards of the public trust, a responsibility that we share with the state and federal governments and should be accorded the respect of a shared stewardship of our environment.”