Tax that dirty water
Communities impose new stormwater fees to deal with pollution
By 
LISA MURPHY DOESN’T have any control over how much rain or snow falls on her property in Milton, but she is nevertheless being charged a special fee for stormwater runoff. The fee is calculated based on the amount of impervious surface on her property—her paved driveway and patio as well as the footprint of her home. The more impervious surface area she has, the greater the runoff, and the higher the fee.
Murphy, a 25-year resident of the town and a self-described libertarian who was one of the few no votes on the fee when it came before Town Meeting, isn’t buying the municipality’s rationale that more money is needed to deal with runoff. “It’s just another tax on us,” says the Precinct 1 Town Meeting representative. “I just think it’s another government overreach, another way they can extract money from me.”
Federal, state, and municipal officials beg to differ. They say stormwater runoff, and the contaminants such as grease and oil, pet waste, and lawn fertilizer that it sweeps up in its downhill march to lakes, rivers, and the open sea, is now the No. 1 source of water pollution in Massachusetts. Starting July 1, tougher federal standards to obtain a permit allowing the discharge of stormwater are scheduled to take effect for many small cities and towns, and municipalities are scrambling to get ready with new infrastructure, more frequent street and catch basin cleanings, and community education programs. The effort, expected to cost hundreds of millions of dollars over the next five years, has garnered little attention so far, partly because of the way the initiatives are being regulated and partly because of the way they are being funded.
Massachusetts is one of only four states where enforcement and oversight of stormwater pollution measures is left to the Environmental Protection Agency and not delegated to state government. Gov. Charlie Baker has sought oversight control, but Democratic lawmakers on Beacon Hill have refused to go along because of past underfunding of the Department of Environmental Protection and a fear that Baker cares more about promoting development than dealing with the pollution that often accompanies it.
Ian Cook, executive director of the Neponset River Watershed Association, says the new stormwater fees make sense, despite what people like Murphy say in Milton. “Stormwater has always been the poor sister of infrastructure, always been funded by the tax base,” he says. “A number of communities have recognized that’s, frankly, kind of a problem. Some are implementing a fee-based mechanism to raise money for the infrastructure.”
Cook also disputes the notion that homeowners have no control over stormwater. “Rain is an act of God, but stormwater runoff is actually an act of man,” he says.
WHEN IT RAINS, IT’S NOT POROUS
As the nation got built up and paved over, there became less permeable ground to suck up rainwater and the result is a flow that acts as a liquid vacuum cleaner, picking up all sorts of debris, bacteria, and contaminants (such as phosphorous from lawn fertilizer) in its wake. That flow is felt hard in Massachusetts.
“Stormwater is a factor in 55 percent of the water quality impairment in the commonwealth,” says Alexandra Dunn, the EPA’s regional administrator. “We are not meeting our [clean water] goals because of stormwater. Half of our beach closures in the summer season are the result of stormwater runoff. When the Charles [River] turns bright green in the summer it is because of the increase in phosphorous.”
EPA Regional Administrator Alexandra Dunn
Unlike wastewater, which goes to treatment plants before being released, stormwater that is not absorbed into the ground has an untreated and uninterrupted run into street basins and through aging pipes to outfalls in rivers and streams. Many cities and towns have markers around stormwater drains telling people that what goes in flows directly to water sources in the area. There are also signs in most communities’ public areas for people to pick up after their dogs, with some even providing pet waste bags for disposal. But that waste isn’t always properly disposed. When the town of Milton cleaned out six of its catch basins last year, workers found more than 1,000 bags of pet waste.
Generally, the farther away you go from Boston, the less impervious surface there is. Most of the state west of Worcester is not subject to the new stormwater mandates that take effect July 1. There are some exceptions, including Chicopee and Springfield, both of which have well over 50 percent of their land covered with nonporous materials.
Under the mandates for the new permits, communities will be required to spend more money upgrading drainage infrastructure, cleaning streets of sand and debris, and monitoring catch basins more regularly. Communities will have to meet strict caps on the amount of nitrogen, phosphorous, bacteria, and other pathogens in discharges and, if the levels exceed it, address the problems at the source.
Some older communities have combined sewer and stormwater overflows which, during heavy rain periods, can cause sewage to run into the stormwater pipes and be discharged untreated. Communities will be required to file numerous technical reports about effluent and other contaminant content in the runoff and limit the amount of discharge into certain waterways, efforts that will require retooling drainage systems.
Education initiatives and campaigns will also be a priority, raising awareness of the need for proper disposal of pet waste and minimizing use of lawn fertilizer containing phosphorous. Many communities are expected to ramp up collection of household hazardous waste to reduce the temptation to dump dangerous products down stormwater drains. Municipalities will also be required to monitor construction sites more closely to reduce runoff.
Dunn, the EPA administrator, says individual homeowners can do their part. “People can use rain barrels to catch the runoff, then use it to water their lawns,” she says. “There are lots of great low-tech solutions. But no pollution is actually being eliminated. It’s being controlled.”
Many communities, as well as the state and federal government, have ramped up requirements for more porous construction and paving materials and the installation of so-called bio-retention spaces. For instance, those small islands in parking lots with mulch and small trees, where shoppers will sometimes leave their shopping carts, are more than just decorative accessories; they act as drainage areas for stormwater to seep back into the ground and avoid running into catch basins.
For years, Wilmington officials were constantly shutting down the town’s Silver Lake beach because of high bacteria contamination, caused in large part by stormwater runoff. In 2007, the town undertook a demonstration project with state and federal assistance to find solutions to stormwater pollution.
The town paved over the beach parking lot using traditional asphalt in one area and porous asphalt in another. Walkways were reconstructed with permeable paver stones and other areas were covered in what the project’s manager, Jamie Magaldi, calls a “Rice Krispies-like mix,” which allowed rainwater to seep into the ground rather than run free to the lake. Magaldi says the results where the porous materials were used have been dramatic.
“We haven’t had a beach closure since the project was finished,” he says.
EPA VS DEP
For more than four decades, the Clean Water Act has been the hammer used by Congress and the EPA to force state and local governments to scrub the country’s rivers, streams, ponds, and seas of centuries of toxic waste. It has largely been successful in cleaning up what is termed “point source” pollution, contaminants that come from a known source such as factories, sewage pipes, or ships.
But the regulatory framework for dealing with the more generalized pollution caused by stormwater has been more tricky. Forty-six states oversee efforts to reduce stormwater pollution, while four states, including Massachusetts, leave the job to the federal government.
The Trump administration’s commitment to stormwater regulation, however, is in doubt given the attempts by officials to cut back environmental funding and mandates. The new stormwater permits were supposed to take effect last summer, but a legal challenge in the District Court of Washington, DC, by a variety of parties, including the city of Lowell and the town of Franklin, triggered a delay by the EPA. That case has not been decided yet, so there’s the possibility that the July 1 deadline could be put off again. But officials at all levels say they’re acting as if the mandates will be in place.
“Whether or not it’s effective in July, we’ll still be ready,” says Quinn Lonczak, project supervisor for the Water Pollution Control Department in Chicopee, the first community in the state to create an enterprise fund from stormwater fees back in 1998.
In 2013, during the second term of former governor Deval Patrick, the state Department of Environmental Protection was charged by the Legislature with studying the ability of the state to assume administration of the National Pollutant Discharge Elimination System, the program that includes stormwater regulation and permit compliance as well as wastewater discharge.
The recommendation was to leave oversight in the hands of the EPA because the cost for the state to take over would be $9.5 million and there was no guarantee lawmakers would continually allocate the needed funds to run the program.
“It really comes down to the money,” says state Sen. Anne Gobi, co-chair of the Joint Committee on Environment, Natural Resources, and Agriculture. “I’m not totally against it,” she says of a state takeover. “But where’s that money going to come from and how are we going to be assured the money is going to be there year after year after year? There’s discussion of funding it through a fee basis, but people get nervous about that kind of thing.”
For the past two legislative sessions, Baker has filed bills to allow the state to assume control of the discharge elimination program. His latest bill was sent to study in early March, meaning it is effectively dead for the immediate future.
Baker’s bill appeared to be a half-hearted effort at taking over the program. Where the 2013 DEP study pegged the cost at $9.5 million, Baker proposed funding it at $1.4 million in his fiscal 2019 budget.
State Sen. James Eldridge of Acton says his concern is not just about the money, but also the diminishing of the DEP under both Democratic and Republican governors over the last 20 years. Even with the Trump administration’s perceived animosity to environmental causes, he says, the EPA is better suited than the state to enforce the mandates. Under Baker, he says, the DEP has been focused more on development than environment.
“I am strongly opposed to this,” Eldridge says of a state takeover of the program. “Mass. DEP has really been gutted over the last 10 years. To give them another task to enforce wastewater and stormwater as effectively as the EPA does now, to move to a state agency that is already overwhelmed, is just not wise. This is coming from, in many cases, developers, water suppliers, and communities who don’t want to spend the money to improve our rivers and streams,” he says of the calls to put stormwater oversight under state control. “The DEP seems to be as focused on economic development as it is on protecting the environment.”
DEP officials dispute the criticism, saying the earlier cost estimates for administering the discharge program and overseeing the permit issuance were vastly inflated. They say the DEP already works as a partner with EPA to issue and administer the permits, providing communities with a liaison to understand the byzantine process. With that experience and between the governor’s proposed funding and EPA grants, they say, the program can be effectively administered.
Dunn, the EPA regional administrator, is moving ahead with stormwater permit regulation in Massachusetts but she thinks the job is better suited to the state.
“We, as an agency, have been very supportive of states taking this authority,” she says. “There are concerns around what is required when a state takes this authority. They have to staff up, they have to ‘law up,’ in other words, get their statutes defined in line with the program.… With state delegation, there is consolidation of resources and powers. We believe Mass. DEP could be much more effective” in administering the program.
PAYING THE BILL
Homeowners and businesses are already paying for stormwater pollution but the vast majority of people don’t realize it nor do they realize they are carrying free-riders as well. The way those costs are being levied has spawned a potentially heated policy and political debate across Massachusetts.
In most communities, it’s hard to separate stormwater mitigation from other municipal initiatives so the cost is subsumed within the larger public works budget. Street sweepers, for example, are used to keep streets clean but they are also used to suck up debris that could be swept down a storm drain during a rain shower.
Boston is already spending millions to meet its mandate, marbling the cost into Boston Water and Sewer Commission rates with much of the work coming under the Engineering and Operations Division budget. The city was issued a five-year permit in 1999 for stormwater discharge and has been renewing it every five years since. In 2012, the city had to enter into a consent agreement with the EPA to do more work to mitigate pollution.
A small but growing group of communities are taking the approach recently adopted by Milton, assessing special fees that are set aside in an enterprise fund and dedicated exclusively for stormwater pollution mitigation. The communities say their approach is more transparent and fairer. Municipal budgets are funded primarily by property taxes, while the new stormwater fees are assessed on all property owners, including nonprofits and government agencies that typically don’t pay property taxes.
When Milton cleaned out six catch basins last year, workers found more than 1,000 bags of pet waste.
“You’re tapping everybody and there are no exceptions,” Chase Berkeley, director of Milton’s Department of Public Work, says of the utility fee. “The more developed land you own, the more you pay.”
About a dozen communities around the state have enterprise funds but they don’t all approach it in the same way. Chicopee has a set rate of $25 every three months for one-to-four-family homes and then a tiered structure based on size of property.
Milton’s stormwater utility fee is based solely on the property’s amount of impervious surface, with a range of four tiers for residential and commercial properties. Newton levies a utility fee that has a set $75-a-year charge for one-to four-family homes and a heavier burden—between $250 and $5,000—for commercial properties.
Wilmington, by contrast, is unlikely to set up a special fund. “We have not started an enterprise fund and that’s not on our radar. Nobody wants to add another tax burden,” says Magaldi, the Wilmington DPW project manager.
In Ashland, officials are undecided. They estimate the town currently spends between $120,000 and $150,000 across various departments on stormwater mitigation, but the cost is likely to rise to $300,000 a year to meet permit requirements once the new federal mandates take effect.
“My gut sense is [an enterprise fund] is the way we’ll go for reasons of equity,” says Ashland Selectman Steven Mitchell. “Nonprofits don’t participate in taxes but would in this. [State properties’] contribution would be captured through the enterprise fund.”
“For the large majority of taxpayers out there, they will see it as just another fee,” he says. “For the most part, the large majority of people I have talked to, their initial reaction is, ‘You’re just trying to extract money from taxpayers and ratepayers.’ It’s like the older couple. They say they don’t have kids in the school system so they think they shouldn’t have to pay taxes for school. Taxes have been instituted to help pay for public responsibilities, those services that are just generally accepted as to what government provides. We need to do a better job in putting together that story.”