A battle over stormwater has raged in Connecticut for months. Managing the water that flows into the thousands upon thousands of storm drains around the state — an otherwise standard municipal function — has become something close to a standoff between the Department of Energy and Environmental Protection and a battalion of those municipalities.
At issue are new requirements DEEP says are needed to keep the runoff that goes into stormwater drainage systems from polluting the waterways they empty into. Money has turned into the focal point. Local officials, led by two municipal lobbying groups, are labeling the proposed requirements an “unfunded mandate.” DEEP and environmental advocates are waving the Clean Water Act, force-of-federal-law flag.
“This is under the Clean Water Act that this has to be done,” said Roger Reynolds, legal director for the Connecticut Fund for the Environment. “These are federal standards for clean, fishable, drinkable, swimmable water. It’s really a health standard.”
The Connecticut Conference of Municipalities says it gets that there is a federal environmental mandate. “We don’t want to come off as being unreasonable,” said Ron Thomas, director public policy and advocacy. “We’re concerned about going beyond what the federal government requires.”
What the feds require
In a nutshell – what the federal government requires is adherence to the Clean Water Act.
In Connecticut’s case that means keeping three specific pollutants — bacteria, phosphorus and nitrogen — out of the water. Hundreds, if not thousands of pages of documentation and mapping by DEEP show the state’s rivers, streams and lakes and their watersheds to be widely contaminated by bacteria and phosphorus.
Nitrogen is gauged by the status of water in Long Island Sound. Its presence causes oxygen levels to go down, a condition known as hypoxia that makes it harder for sea life and plants, including those in critical salt marshes, to survive. For years data has shown huge dead zones in the Sound, especially in its western portion.
“Anywhere there is storm management infrastructure is where you have the potential for that stormwater to become polluted,” said Oswald Inglese, director of DEEP’s water permitting and enforcement division. “And when that runs off and discharges to receiving waters, that can affect water quality.”
Without drowning in an alphabet soup of acronyms, initials and nicknames — the Clean Water Act, which has been around since 1972, requires a host of permits for discharges into surface water. The one we’re talking about here is a stormwater permit for municipalities and institutions — often referred to as a general permit, though its official name is Municipal Separate Storm Sewer System or MS4.
The permits are reissued every five years. The last one, however, was done in 2004, so we’re well overdue. The regulations since then haven’t changed. What is changing in Connecticut are the requirements DEEP is proposing to meet those regulations.
Why is DEEP making the rules if this is a federal law, you ask? Because in most states, the U.S. Environmental Protection Agency, which is in charge of implementing the Clean Water Act, delegates the authority to issue permits to the state.
EPA does it directly in a few states – including Massachusetts and New Hampshire, which has particular relevance to the Connecticut battle. Either way, EPA has six minimum control measures the permit needs to address, and DEEP has upped the requirements in its draft permit to do that.
One of those measures is referred to as “good housekeeping,” involving the traditional practices of street sweeping and catch-basin cleaning. DEEP had set out specific and rigorous schedules for that – in some cases sweeping as often as weekly and cleaning catch-basins as often as twice a year, causing many communities to balk.
Another measure, called “illicit discharge detection and elimination,” included a rigorous water testing protocol that would require municipalities to check the pollutants in the outfalls from their storm drains more often.
The goal, said DEEP, was to make testing less random. The result, said many towns, will be to make it more expensive.
“There’s only so much money to go around,” said John Elsesser, the town manager in Coventry. He pointed to two high-tech catch basin systems installed in the last 10 years to keep pollution in runoff out of Coventry Lake. Each cost $35,000.
“If we’re going to spend hundreds of thousands on new regulations, we’re not going to do any more of those,” he said. “What’s more effective? Actual problem-solving or paying a bunch of consulting engineers to test water all over the place, sweeping roads and filling out forms?”
In the wake of outrage-studded news conferences and several meetings, DEEP has backed off a bit, making various tasks more flexible and aligning a number of them with what EPA is proposing for the Massachusetts permit. But in many cases EPA’s proposals for that state are more stringent than what DEEP is proposing here.
Cities and towns also face the reality that if they do not meet the requirements of the permit, they not only will have to correct the problem, they also will have to pay fines set by EPA.
The other main piece of the DEEP-municipal smack-down has to do with DEEP’s proposal to require permits for a whole new group of towns.
New towns in the mix
Clearly spelled out by EPA — no question, gotta do it, no excuses — is that municipalities with a certain population and density in the most recent census must have stormwater permits.
The current permit, based on the 2000 census, covers 113 municipalities and two boroughs. The proposed one, based on the 2010 census, adds eight more municipalities.
But the proposed one also has a Tier 2 for the remaining communities in the state, modeled on a system in New Jersey. DEEP’s rationale is that every town in the state is in the Long Island Sound watershed. And Long Island Sound is considered an impaired waterbody. And DEEP can require a stormwater permit from any town that discharges an elevated level of any of the three pollutants into an impaired waterbody. So now DEEP is.
“EPA made it very clear – it’s our obligation to do that,” Inglese said.
“We are required under the Clean Water Act to address impaired water bodies,” he said. “We are certainly within the parameters of the EPA rule, and in fact they’re compelling us to have to regulate tier 2 municipalities.”
Inglese said the main goal in the tier 2 system, which has less stringent requirements than tier 1, is to help those towns work prospectively through updated ordinances to prevent runoff problems in future development.
Municipalities have responded with a legislative effort to mandate that DEEP not be allowed to go beyond what’s been spelled out by EPA.
EPA said any state, such as Connecticut, that’s designated to administer stormwater permits, has a lot of leeway in how do it, as long as their requirements aren’t less strict than EPA’s.
CFE’s Reynolds recalled similar pushback from the business community when new permit requirements were introduced for industrial operations, and again from homebuilders when construction permits were revised.
“We need to meet the federal standards,” he said. “That’s not a state choice. Each state doesn’t get to decide whether it complies with the Clean Water Act.”
But, he said, he’d like DEEP to give communities clearer guidance on best practices by updating the state’s stormwater manual.
Reynolds is among a parade of stormwater experts and consultants who pointed out — and municipal officials generally agreed — that the best path to a solution will be getting rid of, or at least minimizing, what’s causing the problem: impervious cover.
All that development and pavement
Stormwater largely starts with things that fall out of the sky – rain, snow, sleet. When they land on grass and gardens and forests, they generally soak through layers of dirt and rock and are naturally filtered. By the time they hit a water table or a stream, they’re pretty clean.
But more and more, when water hits the ground in Connecticut, it’s hitting roads, roofs, parking lots and driveways — in other words, impervious cover. That water runs off, and while some may soak into a nearby lawn, a lot of it heads down roads into storm drains that dump whatever’s in them, untreated, into the nearest body of water: a stream, a river, Long Island Sound.
Problem is, along the way, that runoff can pickup all kinds of things, such as fertilizer and weed killer from your lawn; dog poop; goose poop; any other kind of animal (wild or domestic) poop; the trail of oil that leaked from the local trash truck; the half-eaten French fries someone threw out a car window; and in the not-too-distant future presumably — melted snow loaded with salts, sand and other substances used to clean the roads.
The soapy water your neighbor washes his car with on a blacktop driveway can also go down the storm drain. So can dead leaves and other things, as well as leakage from badly maintained septic systems.
All of it becomes the contamination the EPA’s stormwater regulations are designed to get rid of.
The Center for Land Use Education and Research at the University Connecticut tracked land cover changes in Connecticut from 1985 to 2010. Chet Arnold, CLEAR’s director of outreach said developed land, which basically consists of land covered by buildings or pavement, increased by about 150 square miles and now constitutes nearly 20 percent of the state’s land — by far the largest increase of any land-cover category.
CLEAR and its affiliated organization NEMO — Nonpoint Education for Municipal Officials — work with towns to help them with sustainable land use alternatives, many of which are designed to limit impervious surfaces and find ways other than storm drains to disperse stormwater.
Arnold is talking about things like using pervious pavement that allows water to drain through, instead of blacktop and concrete. Or rain gardens that scoop up water instead of sending it down the street. And retention ponds that can hold runoff and filter it before it goes down the drain.
One of the new stormwater permit requirements calls for revamping zoning regulations to promote these practices, known as low-impact development and green infrastructure. Towns have complained about the provision, but in fact many have implemented such practices and changed their zoning for new construction already. CLEAR reports they’ve had a steep increase in calls from towns in recent years looking for help in doing that.
Torrington has been a leader on the green infrastructure front, but City Planner Marty Connor is not a fan of the new stormwater requirements. “It’s one thing to be doing things voluntarily and another thing when it’s mandated,” he said.
In Simsbury, another town that has embraced green infrastructure, Public Works Director Tom Roy said he’d rather the new permit address things like use of lawn chemicals than mandate things like street sweeping 12 times a year.
“It’s not about avoiding doing the right thing,” he said. “It’s making sure the right thing is what we’re doing.”
Connecticut Council of Small Towns Executive Director Elizabeth Gara said the small towns she represents view the new permit requirements as “make-work” measures. “Communities embrace efforts to improve water quality as important to the quality of life in their areas, “ she said. “But they’re going to spend so much of their resources to do the general permit, they won’t have the money for anything else.”
Arnold called such complaints “pretty classic short-term versus long-term thinking.”
“I think what a lot of people don’t think about is how much the current system that we have costs,” he said. “Most of these green alternatives, they’re turning out, I think, to be more than comparable in terms of cost benefit ratio.”
Eagleville Brook experiment
The most groundbreaking project — somewhat literally — is in a five-square-mile watershed of Eagleville Brook in Mansfield, largely on the UConn campus. In 2007 DEEP and UConn began a first-in-the-nation experiment that essentially sets limits for impervious cover, much the way limits are set for pollutants.
The goal is to get impervious cover below 12 percent of the land. Studies have shown that once impervious cover hits that point, there is a corresponding decline in water quality.
“The approach that UConn has taken is every time a new building goes up, they are thinking about stormwater — pervious pavement, green roofs or something,” said Michael Dietz, director of NEMO. He tracks additions to and reductions in impervious cover with the goal of reducing the amount of it that leads to the brook. “The practices work — it’s just getting them implemented that’s the problem.”
So is paying for them. Part of the problem is that Connecticut lags behind the rest of the country in how it funds stormwater systems.
Stormwater Utilities, Collaborations and Other Funding Ideas
Municipal stormwater systems here are funded through town taxes – hence the explosion over the cost of the new stormwater permits.
Much of the rest of the country has found other ways to pay – including stormwater utilities.
“It has been done in other areas of the country,” said Leah Schmalz of Save the Sound, a program of the Connecticut Fund for the Environment, “…almost every other part of the country except for Connecticut.”
Stormwater utilities generally work like a water or sewer utility. Consumers pay a fee, including some big stormwater creators — non-profits such as hospitals and universities, for example — that don’t pay into the tax base.
Utilities can also set up incentives, such as charging lower rates to those that make green infrastructure improvements. The utility can then use the money it collects not only for general maintenance like pipe repairs and new catch basin filters, but also for municipal green infrastructure projects they couldn’t otherwise fund.
“It becomes this creative way of figuring out how to manage and pay for all that stormwater that is kind of equally shared based on the amount of stormwater that your property is generating,” Schmalz said.
But an initial effort in 2007 that used state funds for stormwater authority pilot projects in New Haven, New London, Norwalk and Stonington, has basically fizzled, with only New London still pursuing it — slowly.
“It’s a major challenge in Connecticut,” said Aubrey Strause, a Maine-based water consultant with the Connecticut office of environmental consultant Fuss and O’Neill. Like many experts and advocates, Strause believes that utilities will ultimately be the best solution. “It takes time to develop,” she said. “If you don’t do education first, it is almost bound to fail.”
Strause is also the co-facilitator of the Central Massachusetts Regional Stormwater Coalition, now in it’s third year. The coalition has 28 member towns that pay into the system at various levels. They share equipment – some of which is extremely expensive.
“The other thing that’s very important here — we have strength in numbers,” said Matthew St. Pierre, the other co-facilitator and a consultant with Tata and Howard. “We have a voice in front of EPA and the Massachusetts DEP; we have a strong voice.”
DEEP’s Inglese would like to see towns here try a similar model. “There are certainly economies of scale in figuring out ways to implement these measures,” he said of the new stormwater requirements. “We’re not saying that each town has to do it in isolation.”
In Maryland, which faces runoff problems into Chesapeake Bay, an estuary similar to Long Island Sound, the state requires some areas to retrofit 20 percent of the impervious cover with green infrastructure for each stormwater permit cycle. And for much of the state, a stormwater fee was implemented two years ago.
But with detractors calling it a “rain tax,” the new Republican governor has vowed to have it repealed.
It’s a sobering lesson for CFE’s Reynolds, who said Maryland-style actions might be a bit aggressive for Connecticut tastes. And while the municipalities and DEEP continue to battle, he recalls the 1970s when industry fought the then-new Clean Water Act complaining it was too expensive and wouldn’t work.
“Forty years later we look back and nobody questions the value of the Clean Water Act, and that it was all worth it because our waters are a lot cleaner,” he said. “I’m sure 20 or 30 years down the line we’re going to look back and nobody’s going to be arguing this was too expensive, and the cleaner waters would have been clearly worth it in hindsight.”