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. 

[Author’s Note: I want to emphasize, I am all for changing the current law; however I am against the idea of just throwing it out, and you should know I would feel that way about any law, the law has to be respected, you just don’t get rid of it because it doesn’t suit a particular situation.]

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.

[Author’s Note: Let’s not confuse the idea with another level of government, in this case a Blue Ribbon Panel.  Have the people bring their concerns direct to the council.]

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 always 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
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James A. Restucci is the author of this blog. This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 Internal License.

7 Responses to Stormwater Assessment in Sunnyside

  1. AvatarTVNews says:

    Good call.

    I think where the council went wrong was in the first and second bullet points.

    • 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”

    User fees are nothing more then another tax. Right or wrong, most people forced to pay user fees to a government body see this as just another way to get into their pockets. Right now, people resent paying the government even more then usual.

    The second problem is that “fair and reasonable” is a very subjective term open to many different interpretations. In fact, I can’t remember one time that any five people ever unanimously agreed on what constitutes “fair and reasonable.” If we are talking numbers in four or more digits for larger (a/k/a wealthier) property owners, I’ll bet they had lawyers all over your state sharpening their pencils in anticipation of the challenging their assessed fee.

    You are right about one thing. Unfunded mandates are clearly out of line. What is the legal basis for the federal government to fine you for non-compliance?

  2. Avatarjimr says:

    I am happy to announce that last night in a 5 to 2 decision Council decided to repeal the monetary portion of the ordinance, but keep the law in place.  This will give us time to review the current legislation and make changes where necessary, without having to start all over.

    Although the Yakima Herald made no mention of my statement last night, for those who were in the audience and listening online I felt it important for me to clarify my position on why I felt it was important to leave the ordinance in place.

    1.  The ordinance addresses a federal requirement, which is not going away.

    2.  The law needs to be resepcted, no legislative body should arbitrarily repeal a law, any law, without going through some serious thought about the ramifications.  This particular law not only addresses the monetary issues, and collection; it also creates the Enterprise Fund, and does a number of other administrative functions which are still required by federal law.

    I am also glad that we did not rush into the Blue Ribbon Committee (a Special Meeting is scheduled for March 25, 2009 at 6:30PM), I will admit that I still have my doubts about adding another level to the mix; however I am definitely willing to hear both sides of the argument before I make my decision.

  3. AvatarEagleWatch says:

    You are doing part of what America thought it was electing. We were promised bills would be online for at least 72 hours before they were signed. Even though, at that point it’s a fait accompli, its still more than we have seen so far. You go one step further (to where the technology begs to be taken), and post a bill before its voted on.

    I don’t know what your collegues are telling you, but the only reason I can think of for resisting the idea would be if is a discontinuity between events and what (if) constituents are being told is happening. Otherwise, why pass up a free polling service?

    I would begin trying to get each Councilman to open his own page for just this purpose (and as a platform from which to conduct first-tier constituent contact).

    As the citizens become aware that matters of significance are available on the web (and feedback is included), it could catch on.

  4. Avatarjimr says:

    Russ, thanks for the comment. I agree with you, I would love to see more of this at my level of government, I am not sure why every time I attempt to push this idea, I wind up hitting brick walls. I mean an issue of this nature should be published on the City’s website and there should be a place for visitors to comment.

  5. AvatarEagleWatch says:

    Jim, I can’t tell you how much I like this whole process.  

    Posting a conversational description and analysis of the problem, and the filters you are going to use in helping decide the matter, is a magnificent demonstration of the democratizing of the Republic – of engaging those who hired you in the process itself.

    When was the last time you got a note from Washington saying, “Hey guys, there’s an important vote coming up, so here’s a no-nonesense explanation of what we’re going to vote on, what it will (and won’t) do, and what I’m thinking and why.  What do you think and why?”

    We need exponentially more of this attitude and transparency in government at all levels.  

    Russ

  6. Avatarjimr says:

    Jason, thank you for the comments, feel free to re-post on your blog.

  7. AvatarJason Raines says:

    Hi Jim,

    Thank you for taking the time to post something on-line about this issue. It has taken on a life of its own in our town, and like you say will be around forever.

    Do you mind if I post your article on my blog also? I would like to see as many people read it as possible.