November 23, 2011

Wichita City Council seeks to meet bare minimum for clean water

Wichita City Council members met Tuesday to try to figure out how to do as little as possible to meet clean water rules.

Wichita City Council members met Tuesday to try to figure out how to do as little as possible to meet clean water rules.

At a workshop on stormwater management, council members and staff expressed a mutual desire to figure out the minimum standard for cleaning up residential and commercial runoff, while still complying with the federal Clean Water Act.

Three council members expressed that they felt clean-water rules stifle growth and are unfair to new businesses.

Ideas floated at the meeting included hiring outside lawyers to look for loopholes in environmental law and joining with other cities to defy regulations enforced by the Environmental Protection Agency and the Kansas Department of Health and Environment.

“If we’re not working in conjunction with the rest of the state to be the leader to say ‘Stay out of our business’ and make the EPA as inconsequential as possible, then we’re failing to help ourselves, especially in economic development,” said council member Michael O’Donnell. “We need to get with these other cities and figure out if, there’s no minimum requirement on paper, then we need to do the most minimum amount of work we can.”

The city has been under state and federal orders to clean up runoff water since 1998, according to a staff presentation at the meeting.

People are regularly advised to take health precautions if they get in the Arkansas River. The state advises against eating fish from the Little Arkansas and parts of the Arkansas.

In May 2010, the EPA told the city that it was out of compliance with clean-water runoff regulations, leading to an updated ordinance that passed last November. That in turn led to a stormwater management manual that outlines the requirements and options for builders who develop parcels larger than 30 acres.

Since then, the developers have complained that they have to install systems to clean some of the water that runs off their property, while other businesses are grandfathered in and don’t have to meet the same requirements. Council members mostly expressed agreement with that view.

City: Agriculture should do more

City officials also blamed the agriculture industry for most of the pollution in the rivers that run through Wichita, while complaining that urban developers have to set aside money and property to slow down runoff so their pollution can settle out.

“There’s better lobbyists at the farming and agricultural level, and they don’t have to meet the same requirements that industry and communities like ourselves have to abide by,” said city stormwater engineer Scott Lindebak, who handled most of the staff briefing. “So right now, there’s no requirements or very little requirements on the agricultural community.”

Lindebak told the council that the EPA had ceded much of the regulatory authority to KDHE, but neither the federal nor state agency passed down firm mandates about what exactly the city has to do to reduce stormwater pollution.

“We just wanted to meet minimum, minimum requirements,” he said. “EPA doesn’t tell you what the requirements are. It’s kind of up to us to figure those out.”

O’Donnell was joined in questioning the water regulations by council members Pete Meitzner and Jeff Longwell.

“When we first looked at this, did we look at all the legal loopholes, the flexibilities within the law?” asked Meitzner. “We hire a lot of consultants and a lot of experts. Did we consider hiring an EPA and KDHE specific law department? Not our internal one but one that would … provide us with areas of flexibility and negotiation.”

Added Longwell: “Maybe we need some outside help, to help guide us through that process, to help us find out what that minimum requirement is.”

Of the five members at the meeting – Mayor Carl Brewer and Vice Mayor Lavonta Williams are still on a sister-city mission to Africa – only council member Janet Miller sounded a cautionary tone about taking on the EPA and KDHE.

She asked for information on potential fines and other penalties the city could risk if the minimalist approach falls short of meeting the regulations.

According to city staff, fines can mount rapidly, at a rate of as much as $50,000 per violation per day, or a possible $250,000 and 15 years in prison if a violation puts people in danger of serious injury.

EPA: Rules aimed at protecting water

EPA officials said the regulations on runoff water are aimed at protecting resources like the Arkansas River from pollution with urban waste.

John DeLashmit, chief of the water quality management branch for the EPA’s Kansas City regional office, said he often hears complaints like the city council members voiced, although Kansas is one of the better states when it comes to enforcing the Clean Water Act.

He said it’s not unusual for local governments to hire lawyers and challenge the agency.

“One of the nicknames for my group is ‘The Defendants,’ ” he said.

The runoff regulations are designed to help prevent pollution from a variety of sources, including parking-lot oil puddles, yard pesticides, herbicides and fertilizer. The pollutants flow through storm drains and into streams and rivers, damaging fisheries and encouraging growth of harmful bacteria and algae.

The EPA is flexible in the way it enforces the Clean Water Act, delegating most of its authority to the states and trying to work with local governments on compliance, said Glenn Curtiss, chief of wastewater and infrastructure management at the regional EPA office.

“The requirements are kind of general,” he said. “There’s not a lot of specificity to the federal requirements.”

However, federal regulations apply to everyone and the agency does expect municipalities to make a good-faith effort to prevent pollution, he said.

“If you’re going to split hairs and do the bare minimum … you might run a risk of having some problems,” he said.

Although the EPA delegates enforcement to the states, it has its own investigators to spot-check to make sure states are holding up their end of the deal, he said.

After the council meeting, Miller said she thinks that beyond avoiding fines, the council has “an obligation to current Kansans and future Kansans to be stewards of water quality.”

“I’m not an advocate for ‘Let’s pollute as much as we can,’ ” she said.

And she said the approach of trying to pin EPA and KDHE to very specific requirements could end up with more stringent regulation than the current, more flexible approach.

“Sometimes we want to be careful what we ask for,” she said. “We might just get it.”

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