East Baton Rouge's government may have more time than previously thought to fix its stormwater system — which could require millions of dollars a year and new taxes or fees for residents — after the federal government granted an extension last month.
But it doesn’t have unlimited time. Just ask these cities.
Twenty-six municipalities have been pressed into consent decrees with the federal government over Clean Water Act violations since the beginning of 2013, according to the U.S. Environmental Protection Agency. Nine of those agreements were for stormwater violations, similar to the trouble Baton Rouge faces.
The 26 governments were ordered to pay penalties totaling millions of dollars, including $280,000 from Salt Lake City, Utah, for stormwater violations, $650,000 from Shreveport for wastewater violations and $329,395 from Rockford, Illinois, for stormwater violations.
Some cities were also ordered to swiftly impose fees on residents in order to cover the cost of the federally mandated work or face daily fines — something Baton Rouge officials fear will happen they don't create a funding source by the federal government’s new deadline of Sept. 15.
Baton Rouge has until that deadline to submit a fully compliant and funded stormwater management plan or face federal enforcement action, city-parish officials have said.
Since 2007, the Louisiana Department of Environmental Quality has repeatedly flagged problems with the city-parish’s Stormwater Management Program. That program is required for municipalities to hold a Municipal Storm Sewer System, or MS4, permit that allows for rain runoff to be discharged from city drainage systems into surrounding bodies of water.
Federal rules require that runoff must be free of harmful pollutants.
The problems the feds have flagged for Baton Rouge range from a lack of oversight to pollutants running off of construction sites, industrial properties and city streets. They cover “pretty much everything” a municipality can be dinged with, said Robert Verchick, the chair in environmental law at Loyola University and former deputy associate administrator for policy at the EPA under the Obama Administration.
Big money at stake
Originally, the EPA had given parish leaders until Jan. 17 to submit a plan for how it would get into full compliance — including how to pay for necessary improvements.
Mayor-President Sharon Weston Broome’s administration attempted to meet that deadline by pushing for the Metro Council to approve a stormwater utility fee that would have charged property owners based on the square footage of surface that doesn't absorb rain. That fee would have raised about $36 million annually for stormwater management and drainage maintenance.
But that plan imploded under criticism from elected officials that the administration wasn’t being transparent about the federal government’s looming action.
As it stands, the parish government has only $14.4 million budgeted for the work in 2023, and a study by city-parish contractors Black & Veatch determined roughly $46.5 million is needed annually to maintain a compliant stormwater system, officials said last year. So local officials need to come up with an additional $32.1 million in annual dedicated funding by Sept. 15, or face the potential wrath of the federal government.
“They could be fined tens of thousands of dollars, and over time, millions of dollars for every single discharge by a stormwater system that’s not properly permitted,” Verchick said. “There’s a big hammer … for municipalities whose stormwater systems are not up to par.”
The city-parish isn’t alone in its struggles to bring its stormwater system into compliance. Communities around the country are struggling with more intense rainfall events fueled by climate change, said Verchick, author of upcoming book on the effects of climate change in cities “The Octopus in the Parking Garage.”
A consent decree is an agreement between a municipality and the federal government that is signed off on by a federal judge. Consent decrees for Clean Water Act violations generally include orders that will bring the municipality into compliance with the law and additional fines if those orders are not met, Verchick said. Cities that aren’t in compliance and fail to negotiate a settlement can also face litigation, Verchick added.
Consent decrees or a ruling from a judge can also include fee schedules, like the one imposed on the city-parish for its sewage system’s noncompliance with the Act, Verchick said.
The city-parish and the federal government entered into a consent decree in 1988 that was expanded in 2001 over issues with the sewage system. To pay for the fixes, the city was ordered to begin hiking sewage rates by 4% in 2004, and has done so every year since.
Under Rockford’s 2014 consent decree, the city was ordered to fully fund its stormwater system by 2016 and take steps to establish a stormwater utility fee to cover those costs. If it failed to do so, the city faced penalties up to $1,250 a day, according to the agreement.
What can Baton Rouge do?
Municipalities that show good faith efforts to make improvements will generally get a better reception from regulators, as evidenced by the city-parish’s 8-month extension, Verchick said.
But since Broome’s stormwater fee was pulled, no solution to the city-parish’s lack of funding has yet been proposed by the administration.
The city-parish has dedicated $56 million in coronavirus relief funds to stormwater management and drainage maintenance and increased the annual drainage maintenance budget by $5 million this year. Broome later this month also plans to create a stormwater advisory committee made up of residents, Metro Council members and others, but no details have yet been made public about that committee’s goals.
“City-Parish has submitted a schedule to LDEQ on how we will meet the revised submission date,” Broome wrote in a statement. “We continue to work with our state and federal regulators on a plan that will improve water quality for all of East Baton Rouge Parish. … Long-term we will continue to engage with the Metro Council and the stormwater committee to find the best solutions for everyone.”
Council members reached by phone said the city-parish needs to avoid a consent decree, but some members aren’t feeling confident the city-parish can resolve its stormwater issues by the looming deadline.
“At this point, with the pace that we’re moving at, I think it’s more likely than not that we will be in a consent decree position,” Councilman Dwight Hudson said. “That’s a real fear, and it’s the direction we’re headed unless things change quickly.”
Councilwoman Laurie Adams called a negotiated consent decree “preferable” and said she fears the city-parish will face protracted and expensive legal fight over the violations.
“I have not heard any discussions in the last couple months that lead me to believe we have any options other than entering into a consent decree or litigation,” Adams said.
Councilmembers Denise Amoroso, Darryl Hurst and Aaron Moak all said they’re awaiting information on the city-parish’s next steps before ringing any alarm bells.
“If we can show we’re taking the initiative on this, that could allow us more time,” Moak said. “One way or another, we’re going to have to fund it.”
The debate playing out in Baton Rouge and fears over an imposed fee is not uncommon throughout the country in municipalities that need to raise money for stormwater, Verchick said.
"It’s easier to do nothing and blame the weather or blame the federal government," Verchick said. "The strength of local government is also its weakness. The strength is its accountability, but the fact that you have accountability is exactly the reason some local politicians don’t want to act.”