State, feds resist their own stormwater rules

By Margaret Newkirk and Heather Vogell
hvogell@ajc.com

The Atlanta Journal-Constitution

Part 3 of 5

Decades after the state imposed storm water rules on local governments in metro Atlanta, it has yet to set such rules for its own highways, university campuses and other properties.

State and federal agencies have also balked at paying fees to defray local costs of meeting state and federal storm water mandates, a stance that could leave private property owners footing the entire bill for keeping urban runoff out of creeks.

State agencies and state lawmakers have tried once — and are expected to try again — to bar local governments from billing state properties for the cost of controlling their runoff.

The irony isn’t lost on local officials.

As they toughen storm water controls, resistance is coming from the state and federal governments that ordered the controls in the first place.

When regional officials talk about what can be done to improve storm water control in metro Atlanta, state and federal cooperation is near the top of the list.

A Sunday story in The Atlanta Journal-Constitution reported that storm water runoff from development is a significant player in regional flooding. The newspaper found that, as development increases, streams rise higher and faster when it rains. Inadequate storm water control in the past contributed to the problem, the AJC found.

But, spurred by state and federal mandates, local governments have toughened standards for developers and property owners in recent years.

The lack of cooperation by state and federal governments costs private property owners.

The effort to ban storm water charges on state property, for instance, would mean private property owners would pay to control their own runoff and then “have to pick up the state share as well,” said Todd Edwards, associate legislative director for the Association County Commissioners of Georgia.

Local improvements in storm water control stem from the federal Clean Water Act. Once focused solely on pollutants that get into waterways through pipes, the U.S. Environmental Protection Agency now also requires communities to control runoff from “impervious” surfaces because the runoff washes pollutants into streams.

The state enforces runoff regulations by issuing storm water permits, which set rules for maintaining old drainage features, for building new ones and for educating the public about storm water. Big urban areas have been subject to those permits since 1991.

The EPA requires states to have those permits for its properties, too, including the growing miles of highways in its urban areas.

States had until 2003 to develop permits for their highway departments.

Most states have done so.

Georgia has not.

That’s not likely to change soon.

The state Department of Natural Resources will develop a highway permit eventually, said Larry Hedges, head of storm water permitting.

But he said it won’t start looking at highways until after it tackles state prisons and universities, a position that flabbergasts clean-water advocates. “Do prisons have more impervious surface than highways?” asked Upper Chattahoochee Riverkeeper Sally Bethea.

The Atlanta Regional Commission has called for action on a storm water permit for highways and considers it key to controlling the region’s storm water. State-owned roads account for 10 percent of the impervious surface in metro Atlanta, said Steven Haubner, an ARC water resources engineer.

Georgia Department of Transportation spokeswoman Erica Fatima said the department believes that “the majority of components” that would go into a highway storm water permit “are already in place and only have to be documented” in a formal storm water management plan.

Friction over missing state rules heated up last summer, when the Douglasville-Douglas County Water and Sewer Authority tried to enforce its own runoff control rules on a new state park-and-ride lot.

The Transportation Department said it wasn’t bound by local laws. Attorney General Thurbert Baker agreed.

The result was a state facility built in violation of Douglas County’s state-mandated storm water standards and answerable to no similar standards of the state’s own.

Storm water utility fees

The Douglas County dispute didn’t stop there.

It spilled into a fight over whether the state should have to pay storm water utility fees.

Douglas County is among an increasing number of communities that have created storm water utilities to fund state-mandated water controls.

The utilities charge fees based on how much impervious surface a property has, which roughly gauges the property’s demand on community drainage systems.

In some communities, state and federal governments have tried to argue that the fees are local taxes, which they don’t have to pay.

The U.S. Postal Service, the U.S. Army Corps of Engineers and the Centers for Disease Control and Prevention have refused to pay fees in Decatur or DeKalb and Gwinnett counties, for instance. In Gwinnett, unpaid bills for four federal agencies totaled more than $160,000 by last July, according to a letter to the U.S. attorney general.

At the state level, courts have upheld the fees as legitimate bills for service, just like water or sewer bills.

That’s the law the Legislature tried and failed to change last year.

The bill died in committee, then quietly reappeared in an unrelated bill in the waning minutes of the last day of the session, before the county government group beat it back.

Then came the attorney general’s ruling in the Douglas County dispute.

After the ruling, the state Department of Agriculture said it didn’t have to pay storm water fees at three farmers’ markets, including the huge one south of I-285 in Clayton County.

Baker’s ruling didn’t address the fee issue. And the Agriculture Department backed off after a utility near Savannah threatened to cut off a market’s water.

Local officials aren’t relaxing yet.

Last year’s bill exempting state property from storm water charges is stalled, but not dead.

It could revive this year.