Mayor Pro Tem Jim Restucci Weighs In On Stormwater Issue

This article was originally posted on-line at Jim Restucci’s blog, which can be found here.  It is being re-posted on this blog with permission.  If any other members of Council, City Staff, or citizens wish to have opinions published on this blog please Email me:  editor@blogsunnyside.com

Stormwater Assessment In Sunnyside

Those that live in Sunnyside know that the most contentious issue currently in front of our Council is the Stormwater Assessment Fee, which went into effect this year.  I don’t normally blog about issues that are in front of Council (that may change); however I felt it important for me to make it not only clear how I feel about this issue but also make it public.

The new federal National Pollutant Discharge Elimination System (NPDES) stormwater permitting program established under the Clean Water Act (CWA) or the Federal Water Pollution Control Act, as it is more properly known, “necessitates a consideration of water quality objectives in urban stormwater management programs.” [2]  Meeting these objectives require stormwater facility improvements that will reduce pollutant loads to receiving waters through the application of structural and non-structural controls under the U.S. Environmental Protection Agency’s definition of maximum extent practical (MEP)[3].  In addition, to stormwater facility improvements; there is a heavy emphasis on eliminating illicit connections and illegal dumping into separate stormwater systems.

A successful Stormwater Management Program must be based on a “technically defensible master planning process that formulates improvements to correct existing drainage problems and accommodates new development without adverse stormwater impacts.”[3]  In other words, the city of Sunnyside is required by federal law to monitor stormwater runoff, and reduce the amount of pollutants in that water, and report this monitoring to the federal government and other state agencies all the while insuring that development of the land is not hindered by this process.

This “master planning process” requires the application of “calibrated, verified models”[2] for each watershed to simulate current and future stormwater runoff quality and quantity.

The overall program objectives must:

• Consider the public’s acceptance of the user fee system.
• The costs must be reasonable for the services provided, and any fees that are assessed through the program must be “fair and equitable”
• The benefits of improved stormwater management must be clearly demonstrated.

The NPDES permitting requirements include steps to insure that the public is aware of the entire process and that their input is sought during the implementation of the phases.

In December of 2008, the Sunnyside City Council adopted Ordinance 2186, which at the time I thought did all of the above; or at least attempted to; however it has come to my attention that some of the ordinance did not address the “fair and equitable” concerns of the NPDES and CWA, also many of the larger landowners in the city have been adversely affected by the implementation of this ordinance.

I have wrestled for weeks over this issue; and unfortunately still don’t seem to have all the  answers; however I will tell you what I think are some of the steps necessary to address this problem.

First, I don’t believe as some of my colleagues feel, that we should suspend or revoke this ordinance or that the current ordinance is “unworkable.”  We as Council members (with the exception of Councilmember Hernandez) voted for this ordinance, we reviewed the information available and made a conscious decision to vote in favor of it.  When do you ever hear of a law being suspended?  You don’t, that is because the people need to feel that when their lawmakers make a decision they do so with a clear conscious, that they reviewed all of the information and made the best decision for all concerned.

Revoking or Suspending the ordinance would say to the public that we as council were wrong in making this law, and in my book we weren’t wrong, we definitely need to make some changes; however the ordinance itself and the law in which it addresses is still a requirement.  Much like there are no bad computer programs, only bad programmers, there are no bad laws, only bad lawmakers.  Every law has the potential to cause contention amongst a certain group, it is up to the lawmakers to insure that they look at the consequences of their actions and decide accordingly. 

Second, I am not so sure a Blue Ribbon Committee is the right way to go either; don’t get me wrong, I agree that we need to have input from the citizens; however what criteria do we set for the committee?  For instance, who sits on this committee?  Landowners?  Business Owners? City Staff? or maybe a combination of all three?  Don’t all these groups have a potential conflict of interest?  No, I believe that when it comes down to it, we as Council Members have been charged with making the decision and I for one don’t want to add another level of bureaucracy to the mix.  Let the people come directly to me and my colleagues and tell us how they feel, don’t filter it through a committee.

When it comes to the ordinance itself, I think we need to add or change the following:

• Add incentives for those businesses and landowners who when developing their land included measures to limit runoff, and who at their own expense installed collection ponds, drains and other engineering features specifically designed to insure that they were in compliance with the law at the time.  Our current ordinance does not address this issue, and in my opinion it should.
• Include an appeals process for those landowners who feel that they were unfairly assessed a stormwater fee.  In that process include a report to Council on the outcome of each appeal.
• Appoint a Council Member to the County’s Regional Planning Stormwater Group (RPSG), since Mr. Stockwell left our city no one has been representing Sunnyside on that board.  That board was created to insure that as each jurisdiction in the county implements the different phases of the NPDES that they do so with their neighboring cities in mind.
• Review the HDR Study from 2007 and use it to determine what the actual funding requirements are for us to maintain NPDES compliancy and include those requirements in the ordinance.
• Identify and implement that funding source to insure NPDES requirements are met in the future, although I hate to use the term earmark, as many of our federal legislators have perverted it, it only makes sense to earmark funds specifically for NPDES requirements, as they are not going away, and having a funding source included in the ordinance insures that the city will have the necessary funding to pay for the program for years to come.
• Add special consideration for zoning, for instance land which is zoned commercial but is being used as say grazing land for cattle should be exempt from the much higher commercial fee.  The current ordinance doesn’t take into account that fact and as such many farmers are being assessed based on the value of their land, instead of how it is being used.
• Add special consideration for large economic development projects which will increase the city’s tax base.  It makes no sense for us to drive away business because of the law’s requirements.  Especially when that business has the potential of bringing in new jobs and economic growth which in my opinion should be a consideration.

Additionally, I believe we need to look at the following areas to determine the feasibility of implementing budgetary changes, zoning and other policies to help in funding the NPDES requirements.  These items may or may not be included in the ordinance.

• Review the current aerial photography (2005) closely, and identify and implement an on going funding source to include a new aerial study every 5 years.  Again, the NPDES requirements are not going away, and even after we have implemented all phases of the NPDES, we will still need to monitor land use in our city.
• Determine the costs associated with tracking the amount of impervious ground on a particular parcel, and implement a plan to physically inspect these parcels on an annual basis.  This may be a costly issue; and it might be that we need to implement this on a case by case basis, or it could be used in cases where a landowner appeals the assessed fee.
• Review our budget to determine if there are areas in which we can make changes to fund the NPDES requirements. (Unfortunately I am not confident that we will be able to make enough cuts to services, equipment or other areas of the budget without looking at additional personnel cuts, something I do not want, nor do I believe any council member wants.)

In closing, I will admit that it is possible that we when voted on the ordinance that we did not have all the facts, it’s also possible that some of us didn’t look at how this law would effect a particular type of landowner.  I can tell you I didn’t and for that I am sincerely sorry.

However the time for falling on our sword and mulling over how we got here is over, it’s now time to address the issue head-on and resolve it!

The issue of Stormwater Fees is definitely a contentious one, and rightly so; however I want you to also remember that these requirements were given to cities like ours by the federal government, they were provided to us with no funding source, and a $25,000.00 a day fine for failure to comply.  In my book these “unfunded mandates” are the real problem, if we don’t do something to address them, then mark my words, this will not be the only new “fee” we will be paying in the future.

My mother used to say it’s hard to make a $20 bill fit where a $100 bill is needed.  I don’t pretend to have all the answers; however regardless of what we do, how we are going to pay for it, weighs heavy on my mind.

As always, I welcome your input on this or any other issue facing the City of Sunnyside, feel free to comment below, or if you like you may email me at jrestucci@ci.sunnyside.wa.us

Sincerely,
Jim Restucci
Mayor Pro Tem
City of Sunnyside

References:

1. The Federal Water Pollution Control Act of 1972 (FWPCA or CWA)
2. The National Pollutant Discharge Elimination System (NPDES)
3. Managing Stormwater Utilities, Nilo Priede, Camp Dresser & McKee, Inc., Jackson, FL
4. Legalizing Stormwater Service Fees and Avoiding Issues of Taxation, Laurence J. Zielke, Pedley Ross Zielke Gordinier & Porter, Louisville, KY

Blue Ribbon Committee For Stormwater Tax May Be Created

Last night, the Sunnyside City Council convened a special meeting to discuss the stormwater tax.  Council shifted costs from residential parcels, while also raising taxes on commercial/industrial zoned parcels.

Mayor Paul Garcia said that Council Members accept responsibility for problems in the ordinance, and will look for a way forward.  Landowners and business owners brought concerns to Council about the negative impact the ordinance is having on the local economy.

Several property owners expressed frustration that vacant lots and land being used for farming were being taxed for stormwater like they were fully developed.  Others were concerned about costly measures they had taken to limit stormwater runoff not being considered in the City’s tax structure.  These landowners have built collection ponds, drains, and other engineering features under environmental regulations already on the books.

Another complaint was that there is no appeals process, if a citizen disagrees with the amount of an assessment.  21 property owners have retained the services of Jamie Carmody, a Yakima attorney, to represent them in this matter.  Mr. Carmody said that litigation is not the preferred method to solve this problem.  However, his clients have a bill due April 30th, which they either will have to pay, and sue to get a refund, or not pay, and have the City potentially take legal action against them.  He described this as a no-win situation for his clients.

Mr. Carmody suggested a Blue Ribbon Committe be formed to deal specifically with creating a long-term stormwater tax plan.  This plan needs to include an appeals process.  Council Members seemed open to the idea of a Blue Ribbon Committee, but will need to take action at a later meeting, as they were convening for discussion only last night.

Council Member Theresa Hancock agreed with Mr. Carmody’s suggestion that the ordinance be suspended for this year only, while a permanent solution is drawn up.  Ms. Hancock said she believes the current ordinance is “unworkable”.

Upset property owners also contended that Council is trying to raise a specific sum of money to balance the City’s budget, rather than trying to address an environmental issue.  City Manager Eric Swansen repeatedly said that if the stormwater tax is not collected, the street fund and other City budget areas can not absorb the cost this year.

The City had an engineering consulting firm do a study in 2007 which outlined a five year plan to implementing a stormwater management plan.  The City is currently in year two of this plan.  The plan projected stormwater costs to be about $300,000, but the City staff are saying they need $500,000 this year.

Council Members all voted for the stormwater ordinance, with the exception of Jesse Hernandez, who has just been appointed to the Council.

During my recent interview with the City Council, they asked me what I would have done differently, if I was on the Council when the stormwater tax was considered.  My answer was that I would consider each parcel individually, taking into account the amount of impervious surface, and also take into account measures taken to limit stormwater runoff.  This is still my position.  Ironically, Mr. Carmody suggested something similar as well.  Other cities are doing this, Richland, Yakima, Union Gap, Pullman, and others have ordinances that consider impervious surface when calculating stormwater tax.  Sunnyside is alone in its implementation of a tax structure that does not take into account the actual impact a property owner has on stormwater runoff.  It is my opinion that the only fair solution for property owners, is to do an individual assessment of their parcel.  This should be included in whatever the final ordinance is going to be.  In addition, this assessment needs to be systematically reviewed every few years and adjusted for changes.  Building additions, or tearing down an old shed will change the amount of runoff, for example.  Going forward, this type of individual consideration will allow a more fair and equitable levy of this type of tax.