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City lawsuit challenges EPA storm-water rules

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A lawsuit filed by the city of Springfield against the U.S. Environmental Protection Agency doesn’t question the need to keep urban creeks clean, just the means to achieve that goal, said City Manager Greg Burris.

The suit, filed Sept. 30 in the U.S. District Court for the Western District of Missouri, Southern Division, asserts that the EPA’s recently established rules for storm-water runoff into Jordan, Wilson’s and Pearson creeks would create an unnecessary financial burden on the city and businesses within it.

The suit was filed prior to the Department of Natural Resources’ issuance of a new storm-water permit for the city, making the city temporarily exempt from the new EPA restrictions.

“It’s not something we wanted to do, but it’s something that we felt we had to do to protect the businesses and nonprofits in Springfield,” Burris said.

According to the lawsuit, the total maximum daily loads of storm-water runoff into the three urban creeks would have to be reduced by 30 percent to 40 percent in order to comply with the new rule, which doesn’t isolate specific substances that may be contaminating those three waterways.

“If there are impurities in our storm-water, then shouldn’t we be trying to identify what those impurities are and have a more focused laser approach?” Burris said. “It’s more sensible than reducing your flow by 40 percent. What if we reduce our flow by 40 percent, but it’s 40 percent that’s clean?”

Springfield’s lawsuit mirrors one filed by the city of Columbia, the only other Missouri city to be required by the EPA to dramatically reduce storm-water runoff. Beyond a general concern for protecting urban creeks, part of the city’s frustration stems from the fact that the EPA hasn’t said why it is only targeting some cities with new rules for total maximum daily loads.

“We’re being targeted and Columbia is being targeted. According to our attorney, there’s only five or six (cities nationwide) that (are) being targeted. We’ve never been told why,” Burris said.

Burris said the directive boils down to an unfunded mandate that could cost the city $100 million to $300 million to meet, though options include increased taxes for residents and businesses or a requirement for businesses and other entities to create a means to limit storm-water runoff from their properties.

The lawsuit makes several assertions, including that the “EPA’s action effectively mandates the expenditure of millions of tax dollars in construction of remedial structures and programs, in an attempt to reduce the flow of storm-water runoff from urban areas within the city of Springfield. … Moreover, the (total maximum daily loads) will impose significant restrictions on development and redevelopment in the watersheds of the creeks. All of this to potentially restore aquatic insects despite EPA’s admission that it does not know why the insect population is impaired.”

And that last part, the city asserts in the suit, is in violation of the 1972 Clean Water Act because the agency doesn’t identify the specific impurities problem it is trying to resolve.

The EPA had not filed a response as of Nov. 1. Chris Whitley, spokesman for the EPA’s Region 7 in Kansas City, said he couldn’t speak directly to the lawsuit, but he did address the contamination risks of urban streams.

“Urban streams tend to bear a higher load of contaminants than streams you would find out in the countryside for lots of reasons,” Whitley said, pointing to oils, chemical additives, fertilizers, pesticides and pet wastes.

“In areas where you have a higher density of population, you’re going to have a higher level of contaminants that can get into streams and put extra burden on cities and water districts that have to provide that water,” Whitley said, noting that setting the right total maximum daily load is important.

Burris said preventing storm-water from running into area streams could be addressed in a variety of ways – capturing roof runoff for irrigation or other nondrinking purposes, for example – but he said most of the prevention would come from retention ponds.

“You tell me what our mosquito problem is. We’ve become a city of storm-water retention ponds,” he added.

Whitley said there are other options available, and some enable homeowners to help prevent runoff.

“You can get a rain barrel. You can disconnect your downspout. Depending on how your property is landscaped, you can go to as great an extent as a rain garden, a collection basin that doesn’t need to necessarily turn into a mosquito trap or mosquito farm,” Whitley said, noting that businesses can follow suit similarly, installing cisterns to collect water for flushing toilets and irrigating landscaping, or they can install permeable parking lots.

Financing for such measures varies by municipality, Whitley said.

“Some tax income, some combine taxes, bonds and rate increases to customers,” he added. “There are a variety of ways of getting there, and that’s up to the local government and utility, as it should be.”

Burris said a complicating factor for the city is the fact that its only dedicated source of storm-water improvement funding – half of the N-cent sales tax – is due to sunset in 2012.

“It would be renewed only if the parks tax was increased,” Burris said. “The county elected not to put that back on the ballot. We will have no dedicated source of funding for storm-water improvements.”[[In-content Ad]]

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