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Saturday, February 15, 2020
Stormwater: $100M Tax Hike After 36 Years of Lawyering and Foot-dragging
By Selected News Articles @ 10:09 PM :: 4612 Views :: Honolulu County, Ethics

Honolulu Stormwater: 36 Years of Lawyering and Foot-dragging

The Caldwell administration has a $100M tax hike in store for Honolulu residents. 

Primed with canned arguments, Caldwell administration website, StormWaterUtilityOahu.org, popped up in late January, synching with an administration announcement of Delphi Techniquepublic meetings’ designed to support Caldwell’s pre-determined outcome.  

Based on a Storm Water Utility promotional presentation (pg 46-60), KHON, February 11, 2020, reports, “They’re trying to as much as double what gets spent on stormwater operations and capital, and the preliminary math on that pencils out to the equivalent of a 16% property tax hike on the residential rate, or – if charged as a rate or fee separately for taxes — $35 bucks a month ($420 a year) per homeowner based on a “medium”-sized home.”

Caldwell’s 16% property tax hike contrasts sharply with the costs of stormwater management nationwide.  A Western Kentucky University survey of about 1,200 stormwater utilities across the nation shows an average cost of about $5.00 per household per month. Another survey of 34 cities worldwide shows a monthly fee closer to $9.00 per month per household.

It all seems so sudden, but Caldwell’s propaganda blitz is years in the making.  Missing from the promotional narrative is the 36 years of foot-dragging and five years of contested case litigation which got Honolulu to this point.

The Clean Water Act in 1972 was supposed to protect all US citizens from the wholesale contamination of public waterways from industrial polluters. But more than 20 years after its initiation the EPA felt it also needed to begin to protect the public from pollution flowing from cities storm drains. In 1984 Honolulu was first required to obtain a NPDES permit for its stormwater system. The NPDES (National Pollutant Discharge Elimination System) permit is issued every five years and is scheduled for renewal in 2020.

After seven successive permits the City of Honolulu has made little real progress in controlling the flow of pollutants to public waters and beaches – particularly when compared to other cities in the US.

If one takes a trip through multiple cities on the mainland, it’s difficult not to see the tremendous improvements that have been made in storm water control. Green spaces, even in roadways, to absorb and infiltrate street runoff are common. Storm drain curb inlets, are often either screened or contain internal filter baskets that prevent contaminants from street runoff from entering the storm drains. Open fields that use to lay fallow have been converted to grass playgrounds that function to capture and hold runoff during the occasional large rainfall event. Swamps that use to hold rusted cars and trash, now harbor water bird habitat surrounded by boardwalks and serve to hold and filter runoff before flowing into streams or the ocean. Street sweepers are common, and everyone seems to understand and obey the ‘No Parking’ signs specific to one day each month. More importantly, these pollution catching and prevention methods have become engrained into the society and are incorporated into the private sector from home landscaping to commercial strip malls.

Why haven’t we made this progress in Hawaii?

A simple phrase in every NPDES permit requiring various pollution prevention actions to be taken “…to the greatest extent practicable.” Many cities took this to be a high bar and saw resulting improvements to their recreational waterways. Others, including Honolulu, interpreted this statement as a low bar, quickly proclaiming that almost any pollutant prevention actions was “not practicable.”

In most states the EPA designates the State government to manage these NPDES permits. In Hawaii the permits are managed by the DOH Clean Water Branch.

By the 1990’s the EPA realized that states often did not have the information necessary to accurately determine the source of pollutants and, therefore, how to detail the language of NPDES permits to control some of these sources. The EPA developed the TMDL (total maximum daily load) program to better understand pollutant sources and potential control methods. In a TMDL study the watershed surrounding a polluted waterway is studied to determine how much pollution is entering the water and where it’s coming from. If storm drains are found to be a partial source of the pollutants, then conditions specific to controlling these sources can be placed into the city’s next NPDES storm drain permit.

On average every state has completed about 250 TMDLs, and several have complete over 1,000, to help direct their NPDES permit programs. Hawaii has completed fewer TMDL studies (12) than any other state. Without an effective TMDL program, it is difficult for the DoH to place specific language in its NPDES permit to control pollutant loads…… and the City is left to do what it believes is “practicable.”

By 2010 the EPA had realized that some cities appeared to be avoiding their responsibility to clean up their stormwater, and issued guidance to the state permit writers containing examples of very specific language that could be used in NPDES permits. The recommended language was both very clear and quantifiable. For example instead of recommending that the city initiate a street sweeping program, the new language would specify how many miles of curb needed to be swept over some period of time. Instead of recommending that crews inspect storm drains and clean them when they are found to be dirty, the new language would specify how many miles of storm drains needed to be inspected and what percent had to be cleaned.

Because the functions of the City’s stormwater branch are integrated into other portions of the City’s responsibilities it is difficult to estimate the annual budget for stormwater.  In 2014, following an unflattering audit by the DOH, the City transferred stormwater management from the Department of Environmental Services (DES) to the Department of Facility Maintenance (DFM). When this happened, the DES budget went down by about $20 million and the DFM budget went up by about $15 million.

The 2010 guidance was not issued soon enough to have any impact upon the City’s 2010 NPDES permit, but the permit issued in 2015 did contain numerous conditions that were clear, specific, and obviously copied almost directly from the Federal guidance.

How was the Honolulu DFM going to meet the conditions given it’s limited budget and manpower?  

Lawyers.

Within weeks of receiving the NPDES permit, the City’s out-of-state legal retainers had filed a case in court contesting certain phrases within the permit. They contested every clear and specific phrase that had been added at the recommendation of the EPA.  This case ran without media attention until December, 2019, when the DOH agreed to discuss terms to be placed into the 2020 permit.

A month later the Caldwell administration launched its push for a Storm Water Utility and the untold millions in fee hikes which will come with it.

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