River Cities' Reader: Money Down the Drain

The federal Clean Water Act was passed in 1972. More than 30 years later, the federal government, states, and cities are still figuring out how to navigate it.

Without a doubt, though, communities that run afoul of the law find that the Clean Water Act is expensive. This week, the City of Rock Island was expected to pass a sewer-rate increase related to Clean Water Act capital projects totaling $53.6 million.

In 2012, sewer rates in Rock Island will be nearly two-and-a-half times their 2005 levels, following seven years of rate increases ranging from 3 percent (2012) to 20 percent (2008 and 2009). The 2006 rate increase will be 10 percent. The average monthly residential sewer bill will go from $20.08 in 2005 to $49.83 in 2012.

The projects stem from a May 2003 consent decree related to “combined sewer overflows” – instances of combined sanitary and stormwater sewers being dumped untreated into bodies of water such as the Mississippi River. In 2000, the U.S. Environmental Protection Agency (EPA) sued the City of Rock Island for violating the Clean Water Act.

Other communities should take notice. As Robert Hawes, the city’s director of public works, noted, “We’re kind of out ahead of the curve here, because of the lawsuit.” In other words, communities throughout Illinois and the rest of the country should pay attention to what Rock Island is doing, because it’s possible they’ll be doing it in the coming years. Hawes estimated that 800 communities around the country will have to deal with issues related to combined sewers.

What’s frustrating for Hawes is that the steps Rock Island is taking, he claims, won’t make the water much cleaner. “We’re going to spend $55 million and realistically ... have almost an immeasurably small impact on the Mississippi River,” he said.

And that reflects a certain attitude of federal regulations, one that doesn’t recognize the costs of compliance.“There is a kind of unspoken belief that resources are infinite,” Hawes said. “Resources are not infinite. We’re going to pass on a rate increase that is going to increase your sewer bill $20 a month.”

The Basics

There are two types of sewers: sanitary sewers (which carry the sewage from houses and businesses to treatment plants) and stormwater sewers (which collect rainwater that runs off houses and streets). In some communities, such as Rock Island, the systems are eventually combined. In other communities, such as Moline, Bettendorf, and Davenport, the two sewer types are separated.

Environmentally, stormwater creates pollution by carrying dirt, salt, oil, chemicals, and other debris from streets into bodies of water. Sanitary sewers can overflow into people’s basements or into bodies of water. And during rain events, combined sewer systems overflow, resulting in raw sewage being dumped into waterways.

Yet the process of creating regulations related to the Clean Water Act has been slow. Basically, it takes the federal bureaucracy a long time – decades in this case – to interpret the laws that Congress passes, and to create guidelines dictating how the law will be enforced.

With the Clean Water Act, there are three key areas of regulation: stormwater runoff, combined sewer systems, and sanitary-sewer systems.

Stormwater regulations took effect in 1990 (for larger cities) and 1999 (for cities with fewer than 100,000 people). Davenport’s contentious stormwater-utility fee stems from this regulation under the Clean Water Act. (Earlier this month, the recently seated city council voted to repeal the fee. A smaller fee is likely to be enacted as part of the city’s next budget. Many city-council members pledged to repeal the fee during their campaigns last year.)

Rock Island is on the leading edge of the combined-sewer issue, as it was one of the communities initially targeted by the EPA for enforcement. “U.S. EPA went out and basically picked a city in every state to sue,” Hawes said. That means Illinois communities with combined-sewer issues are going to be keeping an eye on Rock Island. “Illinois EPA is watching, too,” Hawes added, because it’s the agency charged with approving long-term-control plans and issuing discharge permits. “Presumably, whatever we get required to do in ours will be required of everybody. ... We hope that we’re not being required to provide a level of control that isn’t going to be required of everyone.”

The consent decree requires that Rock Island:

• Reduce the number of “untreated” overflow events from its Mill Street Sewage Treatment Plant (into the Mississippi River) to an average of no more than four a year, and no more than six in any given year;

• Eliminate combined sewer overflows into the environmentally sensitive Sylvan Slough;

• Eliminate combined sewer overflow into Blackhawk Creek; and

• Eliminate street flooding at the old “Farmall” viaduct.

The gist of the regulations is that the city must treat combined sewer overflows before they make it to local waterways. “Combined sewer overflows ... [are] legal, but you have to provide a certain level of treatment, and it’s that level of treatment we’re not providing,” Hawes said.

The largest portion of the city’s combined-sewer capital project – roughly $40 million – will be for expansion of the Mill Street Sewage Treatment Plant, increasing its treatment capacity from 16 million gallons per day to 230 million gallons per day. Under the terms of the consent decree, all work must be done by March 31, 2018.

Combined-sewer regulations aren’t the end, either.

On the horizon are regulations for sanitary sewers, along with the possibility of further regulation of stormwater runoff. “They’re coming,” Hawes said.

On the sanitary-sewer front, communities such as Cincinnati have already entered into consent decrees with the EPA, and the agency appears to be operating under regulations that haven’t actually been finalized.

And the National Resources Defense Council (NRDC) is lobbying for numerical treatment standards for stormwater. Presently, Hawes said, stormwater regulation is limited to “best practices.” “No one [in terms of regulators] is going to the end of stormwater pipes and pulling samples to determine what’s in it,” he said. “Because stormwater is highly polluted – and there’s no arguing about that ... – [the NRDC argues] there should be numeric standards for what’s coming out the end of a storm-sewer pipe.”

Because Rock Island has 600 stormwater outfalls, Hawes said, providing any level of treatment for stormwater would be unthinkably expensive.

Questions of Fairness and Balance

The Rock Island combined-sewer situation is indicative of some of the problems related to bureaucratic regulation. In the 1985, Rock Island applied for and received a variance from the Illinois Pollution Control Board for combined-sewer overflows. “At that time, the federal government was paying no attention whatsoever to combined sewer overflows,” Hawes said.

“Illinois EPA was the one that has been delegated responsibility for enforcement by the federal government, [and] said we were in compliance. And we said we were in compliance,” Hawes said. But the NRDC sued the U.S. EPA over its lax enforcement of the Clean Water Act and won. Then the U.S. EPA sued Rock Island. The city spent $400,000 in legal fees fighting the suit, but eventually came to the conclusion it couldn’t win.

“Still to this day, for what good it does us, we believe and the state of Illinois believes that we’re in compliance,” Hawes said.

But that doesn’t matter. “They’re saying, ‘Hey, we don’t care the State of Illinois says, that’s a violation.’ ... It has nothing to do with environmental anything. It has to do with, from a legal perspective, [the fact that] they have the right to say it.”

Hawes compares the situation to the state changing the speed limit but not putting up signs and then handing out tickets when people unknowingly violate it. “They didn’t tell us that we were not in compliance until they sued us,” he said.

What’s more, Howe said, is that the environmental impact from the city’s $53.6-million expenditure will be minimal, in his estimation.

Yes, Rock Island will be dumping 45 fewer tons of pollution into area waterways after it makes these sewer-system improvements. “Thirty tons of suspended solids going into the Mississippi River from Rock Island is ... an insignificant component of how many tons of suspended solids are in the river anyway, coming off farmland, coming off everywhere else,” Hawes said. (Improvements to the system will result in 30 fewer tons of suspended solids going into waterways each year.)

“If the point here is to improve the environment, we could take the same amount of money and have a dramatically better impact on the environment,” Hawes said. In reality, the city could spend far less money and have a greater impact.

For instance, he said, the city could replace road salt with environmentally friendly chemicals. “The lion’s share of that road salt eventually works its way into the rivers,” Hawes said. “We could eliminate that pollution from road salt completely.” The city puts 4,000 tons of salt on the roads each winter, he said, at a cost of about $125,000 a year. Chemicals that do less damage environmentally are roughly 10 times as expensive, he said. While that would come to a cost of more than $1 million a year, he said, it would have more impact than the $53.6 million the cityis spending.

The city could also sweep streets more frequently – perhaps once a week when weather permitted– at a cost of less than $2 million annually. “We would dramatically reduce the amount of grit, and oil, and brake dust etc. etc. that comes the streets into the river,” he said.

Hawes said he understands that every community could claim that compliance with the Clean Water Act would have minimal environmental benefit, but that the collective benefit is substantial. He also acknowledged that the Sylvan Slough presents a special situation, considering that it’s a mussel sanctuary.

Even so, he said, the cost to the City of Rock Island – and its sewer-service customers – could have been as little as half as much if the only changes that were required involved preventing combined-sewer overflows into the Sylvan Slough.

A key issue, Hawes said, is the different way that the State of Illinois and the federal government operate in terms of environmental regulations. “The State of Illinois and the federal government approach these environmental issues ... substantially differently,” Hawes said. Members of the state’s Pollution Control Board, “by state law, are required to balance ... environmental benefit versus cost,” he added. That resulted in the 1985 variance for combined-sewer overflows in Rock Island.

But that’s not the way the federal EPA operates. “The federal government approach is: You have to comply with the regulations,” he said. “It doesn’t matter what that cost is.”

But that’s the way the legislation is written, he said. “The U.S. EPA did all they could do. They’re police officers. They’re constrained by what the law says.”

Rock Island, obviously, is not the only community to spend major money complying with the Clean Water Act. In some ways, Rock Island should consider itself lucky.

In the early 1990s, Milwaukee spent nearly $3 billion to fix its sewer system. Last year, the U.S. Department of Justice announced a consent decree with the Sanitation District No. 1 of Northern Kentucky: “At a cost of at least $880 million, the District has agreed to make extensive improvements to its sewer systems to eliminate unauthorized overflows of untreated raw sewage and to control overflows of combined sewage and stormwater.”

Part of the problem for communities is that federal and state governments have cut back funding for expensive projects. A 1999 study by the Association of Metropolitan Sewerage Agencies and the Water Environment Federation found that local governments pay 90 percent of capital-investment costs related to Clean Water Act compliance. “In the first decade of our national clean-water program, federal and state governments contributed more than 80 percent of the funds need[ed] to build the facilities necessary to assist local communities in their efforts to clean their rivers and streams,” the study reported. Those organizations further estimated wastewater-investment needs of $330 billion over the next 20 years, compared to an estimate of $200 billion from the EPA.

The Future

The City of Davenport is not dealing with the same issue as Rock Island, because the city’s sewer system is not designed to combine sanitary and stormwater components. But Davenport could be contending with other parts of the Clean Water Act, such as new regulations, as it goes through future permitting processes. As Davenport Public Works Director Dee Bruemmer said, “We could get screwed later on.”

One issue is the question of sanitary sewers. As Hawes noted, regulations governing sanitary sewers have not been finalized. “They were ready to be published in the federal register when Bush came into office ... ,” he said. “The Republican administration squashed them, sent them back for thinking again, and they’ve been bouncing around being thought about ever since. No one knows what’s going to happen if the administration changes. But they’re out there.”

Bruemmer said that Davenport has a pair of issues related to the Clean Water Act: santiary-sewer overflows at several sites and its treatment plant. The city has already identified a sewage-treatment capital project that would cost $25 million to $29 million in today’s dollars, she said. The issue is that it might not be necessary to spend that money for another 50 years, or even 100 years. “All these water regulations are up in the air,” she said.

Davenport will be applying for a five-year discharge permit next year that would go into effect in February 2008. One of the challenges for the city – for any city – is that the action required by the federal regulations is sometimes not easy to predict. “It’ll depend literally on who’s reviewing” a permit application, Bruemmer said.

Hawes speculated that the sanitary-sewer regulation would require municipalities to annually inspect with cameras a portion of their sanitary-sewer systems, as they presently do with storm sewers. It would forbid sanitary-sewer overflows. And it would require cities or sanitary districts to investigate overflows – such as backups into residential basements – to determine whether there’s a systemic problem that needs to be addressed.

Yet even without a finalized sanitary-sewer regulation on the books, the U.S. EPA through litigation is requiring communities (such as Cincinnati) to address issues in their sanitary-sewer systems. “The U.S. EPA is essentially enforcing the regulations without benefit of them ever being [formally] adopted,” Hawes said. In other words, communities are being forced to comply with sanitary-sewer regulations that don’t technically exist.

A larger issue, for Hawes, is that enforcement of the Clean Water Act has unintended consequences: “The cost of ... living in the city is going up,” he said, speculating that people will move into unincorporated areas because it’s less expensive. “At some point in time, you’re forcing people out of cities. So you’ve got urban sprawl. You’re taking farmland out of production.”

Money Down the Drain?