Restoring and protecting the Cahaba River watershed and its rich diversity of
life
Restoring and protecting the Cahaba River watershed and its rich diversity of
life
The Cahaba River Society and our partners have won a significant ruling in our ongoing effort to restore water quality in the upper Cahaba and Black Warrior watersheds.
On August 9, 2007, Judge Tom King allowed us to intervene in a lawsuit that aims to undermine local government programs for controlling polluted storm water runoff. More than a year ago CRS and the Black Warrior Riverkeeper (BWRk) filed a request to intervene in a lawsuit brought by the Business Alliance for Responsible Development (BARD), which is made up of several development-related companies, against our region’s Storm Water Management Authority (SWMA). This will only be the third time CRS has been involved in legal action in 19 years.
We have asked the judge to dismiss the case, because there can be no effective outcome unless the Environmental Protection Agency (EPA), the Alabama Department of Environmental Management (ADEM), and the SWMA member local governments are also at the table. Although only SWMA was singled out in the lawsuit, the law cited in the suit also applies to the local governments who are members of SWMA and determine its activities.
SWMA and the local governments are also directly liable to ADEM and EPA for required storm water programs under the Clean Water Act. If the judge’s ruling were to conflict with EPA’s and ADEM’s application of federal requirements in the local governments’ storm water permits, the cities and Jefferson County would be between a rock and a hard place.
What’s at Stake? An unfavorable outcome to this lawsuit would deal a serious blow to efforts to clean up the Cahaba’s water quality and would also endanger our drinking water and the river’s nationally important freshwater life. Storm water runoff from development is an increasing source of unintentional damage to the river.
This lawsuit could hamper the ability of our communities to find out what pollution is in our water and where it comes from. The lawsuit could make it much harder and more expensive for Jefferson County and its cities to find and clean up pollution sources. SWMA most likely would not be able to help cities and county control mud runoff from construction or improve design standards of new development to reduce pollution and flooding.
A potential outcome of the lawsuit is that only our state agency, ADEM, would play any role in controlling storm water pollution in Jefferson County and its cities. ADEM’s water program is underfunded and has ineffective enforcement, as confirmed by an evaluation recently released by EPA Region IV. The Cahaba’s water quality has suffered enough under ADEM’s watch.
Also, long term effective control of storm water pollution is best accomplished through “low impact development,” which is implemented through improvements in the way development projects are designed and constructed. State government agencies like ADEM cannot be involved in local planning commission issues. Only local governments can effectively review development plans and proactively inspect sites to ensure the plans are properly implemented.
This lawsuit could turn the clock back, dismantle the effective storm water programs our local governments have built through SWMA, and let the state limit the ability of our communities to protect our water resources. CRS must be at the table to protect the river and our drinking water.
Who is SWMA? SWMA was created over a decade ago to help Jefferson County and its cities meet federal Clean Water Act requirements to reduce storm water pollution in our rivers, lakes, and drinking water sources. Through SWMA, our local governments have pooled resources and built an organization that can provide better water quality protection at a lower cost.
There have been claims that SWMA is an out-of-control agency exceeding its authority. CRS disagrees. For those who truly care about clean water, SWMA has been a success story for regional provision of cost-effective services. SWMA is not perfect, and more needs to be done to protect water quality. But the agency has good expertise, responsive inspectors, and the water quality monitoring and GIS system needed to support those activities and give local governments the information they need to understand the condition of their waterways and develop sound water protection policies.
If improvements are needed in SWMA’s services, the member local governments have a clear cooperative route to make those changes. SWMA’s Board of Directors is made up of representatives of all members - the mayors of each city and a Jefferson County commissioner. The SWMA Board adopts the agency’s budget and can determine its activities.
Other Efforts to Weaken SWMA Failed: In 2006/07 BARD also attempted to undermine SWMA by lobbying local governments to pull out of the regional agency, which would have starved it of funding. The controversy grew from the SWMA Board’s proposal to raise the storm water fees that property owners pay to fund the agency. It would have been the first fee increase in a decade.
BARD lobbyists claimed the fee increase was too great, that SWMA was “doing too much,” and that the cities and Jefferson County could meet their federal storm water requirements more cheaply by going it alone, using consultants or their own staff. Even though SWMA’s Board withdrew the fee increase proposal, some local governments did vote to pull out. CRS assisted an effort to inform elected officials and citizens of the true value of SWMA and the full range of activities required by the Clean Water Act. After careful study, Jefferson County, Irondale, and Homewood determined that sticking with their regional agency would be more cost-effective.
Jefferson County’s willingness to return also hinged on commitments by SWMA’s Board of Directors to improve communications and services to the local governments in key areas. CRS applauds the leadership of Jefferson County Commission President Betty Fine Collins, Mayor Eugene Melton of Trussville, who is SWMA’s Board Chair, and SWMA’s Director, Zhaleh McCullers, to find a compromise that would also strengthen the agency.
Who Brought this Lawsuit? In reaction to the watershed conservation proposals of the Upper Cahaba Watershed Study, some development interests in the region formed the Business Alliance for Responsible Development (BARD) in 2005. Development and business interests were at the table as part of the stakeholders of the Upper Cahaba Watershed Study. However, efforts to bring all interests together to agree on feasible solutions for Cahaba River restoration were undermined by negative talk, such as labeling Cahaba conservation proposals as “anti-growth.”
There are practical design solutions that can raise standards for development and help restore the river while growth continues to occur. Other cities in the southeast, notably in the Atlanta and north Georgia area, have implemented similar design standards for development, and they continue to grow. We can have both clean water and a healthy economy.
CRS is reaching out to collaborate with those leaders and professionals in development and real estate, engineering, architecture, landscape architecture and land planning who are willing to flex their creativity, increase their expertise in low impact development and green building, and make Cahaba conservation work.
Status of the Lawsuit: This case has moved slowly in part because of the complex layers of federal, state and local authority to regulate storm water pollution. The local governments have responsibilities for reducing storm water pollution that are spelled out in the federal Clean Water Act (CWA). EPA sets policy concerning the application of that law and delegates its implementation to the Alabama Department of Environmental Management (ADEM). In turn, ADEM issues a permit to the local governments that embodies their CWA requirements. SWMA helps Jefferson County and its cities carry out these legal responsibilities.
By claiming SWMA is doing more than it should, the lawsuit raises the question: exactly what water quality protection activities does the CWA require of the local governments? Since federal law, as administered by EPA, is the ultimate authority, SWMA attempted to have the case removed from state court to federal court. Judge Karen Bowdre (the same judge that presided in the AL-GA-FL “water wars” case) declined to hear the lawsuit in federal court and sent it back to state court in November 2006.
There were two claims raised in the lawsuit. One claim concerned SWMA’s attempt to raise its storm water fees, and the other alleged that SWMA was overstepping its authority under state enabling law and the Clean Water Act. CRS and BWRk did not wish to be involved in the first issue: whether SWMA’s Board followed proper procedures in adopting the proposed fee increase. On that count, Judge Tom King ruled that the fee increase was a rulemaking and that SWMA needed to follow more formal public hearing procedures in the future when considering any fee increases.
Now that we are active parties in this case, CRS and partners are focused on the issue of SWMA’s authority and can provide evidence to refute the false portrayal of SWMA as an agency overstepping bounds and undertaking unnecessary activities. Our recent motion to dismiss the case, based on failure to join indispensable parties, clarified the essential role of EPA and the Clean Water Act in determining the required storm water activities of the local governments.
Key SWMA programs that the lawsuit claims are excessive, such as control of storm water pollution from new development and existing development, are clearly required by the Clean Water Act and are also essential to restore our degraded water resources in and around Birmingham.
We especially thank our attorneys from the Southern Environmental Law Center, David Pope, Gil Rogers, and Adam Kron, for bringing their expertise and effective representation to our case.