Stormwater Pollution Prevention

The San Francisco Bay Water Board just wrapped up two days of hearings on the forthcoming reissuance of their Municipal Regional Stormwater Permit.

The mayors of Concord, Orinda, San Ramon, and Antioch, the Vice Mayor of San Pablo, Contra Costa County Supervisor Diane Burgess, and councilmembers from Danville and Hillsborough addressed the Board, along with many municipal staff from City Managers on down.

The difference in values–what comes from our people and communities vs. what comes from an insular bureaucracy–was most evident in the discussion of homelessness.

Water Board staff had written into the permit prescriptions for what to do to keep trash and feces from homeless encampments from getting into waterways. The elected officials and municipal staff were able to detail their experience (ah, actual experience!) of trying those very things. (News: placing porta-potties and hand-washing stations is not sustainable).

The elected officials and municipal staff plead to the Water Board: Don’t make us do these things that we already tried and found don’t work, and please don’t make use divert our efforts from what does work– getting people housed.

The conversation on other subjects was in a similar vein. Cubicle-originated prescriptions came up hard against experience (and heart). Insular bureaucracy collided with democratic reality.

I’m trying hard to set aside my cynicism that the two days spent will do any good.

Last week’s post argued that municipal stormwater NPDES permits are social policy, not water quality policy. Because there is no reliable way to demonstrate that control measures are effective or ineffective, permit writers can and do select measures based on convention, consensus, and individual belief.
Here are four examples where social values and beliefs play out in the Tentative Order (TO) for the San Francisco Bay Area Municipal Regional Stormwater Permit.
1. Disproportionate impacts. The most expensive and challenging new requirements disproportionately affect disadvantaged communities. Low-income areas struggle to accommodate the unsheltered homeless and to reduce trash. Their streets are older and require more reconstruction. Old industrial areas have higher amounts of PCBs in street grit. The 669-page TO seems targeted to burden the municipal governments serving these areas. Municipal representatives raised this concern throughout the 3-year process leading to the Tentative Order. The permit writers–five white men with limited work experience outside the insular bureaucracy in which they have spent their careers–never acknowledged it.
2. Climate Action and Smart Growth. The current permit allows high-density Transit Oriented Developments (TODs) to use compact and underground facilities to treat runoff. Promoting TODs is a key strategy in municipalities’ Climate Action Plans. During negotiations, permit writers said “the lowest impact development is no development at all” and rejected a key precept of Plan Bay Area–that redevelopment in core areas can effectively reduce sprawl at the periphery. The TO eliminates the TOD allowance.
3. Multi-Modal Transportation. In 2019, municipalities prepared Green Infrastructure Plans that leverage private redevelopment and federal funds to retrofit arterial streets with runoff-cleaning bioretention facilities. The idea was to incorporate runoff treatment as urban revitalization happens. Two years later, the permit writers would toss aside these Plans and mandate a minimum acreage of Green Infrastructure within five years. Municipalities will have to retrofit residential and low-use streets just to meet this bureaucratic requirement. The resulting funding crunch could compromise Complete Streets improvements in Priority Development Areas.
4. Trash and Public Participation. For years, municipal stormwater programs funded and assisted volunteer creek cleanups. The massive amounts of trash collected counted toward NPDES permit requirements. However, the permit privileges a strategy of leaving the trash on the street and using proprietary devices to catch it as it enters the pipes. Now the creek cleanup credit will end, eliminating the Public Works departments’ budget justification for assisting local volunteers in urban beautification efforts.
These are just four examples of the social values and beliefs reflected in the TO–values and beliefs at odds with the Bay Area’s progressive milieu.

Because we lack reliable indicators of the effectiveness of municipal stormwater programs, permit renewals are essentially social policy, not water quality policy.

In other words, permit writers can invent or select new requirements at will; the requirements may arise from convention, or consensus, or even individual beliefs, and can’t be challenged on the basis of ineffectiveness. “Maximum Extent Practicable” is typically justified by references to other permits, not by evidence that the mandated measures actually work.

By this mechanism, permit writers effectively create policies on which neighborhoods get trash abatement, what types of housing are built, and where, and how limited municipal budgets get spent.

The social policies in the NPDES permits inevitably reflect the biases inherent to the status and milieu in which the permit writers operate.

People trust in public policy because it is adopted through a participatory democratic process.

However, stormwater permit renewals make social policy under a veneer of science–which allows a bureaucratic elite to dictate social policy while claiming a scientific basis that doesn’t exist.

Which is how, in the San Francisco Bay Area in 2021, key decisions about municipal policies and programs on homelessness, street paving, industrial development, housing, and a host of other economic and quality-of-life factors are being made by five white men who have limited work experience outside the insular bureaucracy in which they have spent their careers.

And the language of the MRP 3.0 Tentative Order reflects that.

I’m watching and listening to a webinar with State Senator Robert Hertzberg on SB 231. The law, recently signed Governor Brown, creates an opening for municipalities to fund their stormwater programs with a fee similar to those charged for water or sanitary sewer service–if they can link the newly funded programs to a benefit for the water or sanitary sewer utility. The purpose and tone of the webinar is to caution municipalities against adopting fees that will bring lawsuits, already threatened, from the Howard-Jarvis Taxpayer’s Association.

I’m glad, of course, for the appearance of any potential path to funding needed municipal services, particularly stormwater pollution prevention, where I do most of my work.

However, the law and Hertzberg’s cautions about using it validate the concerns I had more than two years ago.

To expand on those concerns: Surface runoff isn’t just about water supply, it’s a key ingredient of the natural environment–and of urban quality of life. Everything we’re doing now with Green Infrastructure and Low Impact Development is not about getting water back into our homes and businesses, it’s about preserving and enhancing watersheds. So this emphasis on stormwater capture and use, well, it’s miles away from what Section 402(p) of the Clean Water Act is all about.

It’s also a very Southern California thing, to regard the natural environment as a stage and a resource for serving urban development, rather than nestling human habitation amidst nature, which is our northern Californian ethos.

With due respect and appreciation for Senator Hertzberg and Governor Brown, I think that–for the agencies I work for–this effort has been more negative than positive. I’d rather that we find a path to funding stormwater that is based on the higher principle, and better argument, that when it comes to the water cycle, “When we try to pick out anything by itself, we find it hitched to everything else in the Universe.”

I made my way out to Martinez this afternoon to attend the Contra Costa Clean Water Program’s Management Committee meeting. The topic of the day is what municipalities should be doing now to prepare for a Green Infrastructure planning effort during fiscal years 2017-2019. I did my best to sum it up in this 2-page table and these presentation slides.