Bangor resident plans to fight stormwater fee through referendum; city says hands are tied

Posted Jan. 09, 2013, at 9:55 p.m.
Last modified Jan. 09, 2013, at 10:43 p.m.

BANGOR, Maine — A group of Bangor residents plans to challenge the city’s stormwater utility fee residents and businesses will begin paying in April.

During a public meeting about the utility Wednesday night, Ken Wicks of Lincoln Street pointed out two recent federal court decisions that he says nullify the U.S. Environmental Protection Agency’s ability to regulate and enforce stormwater rules. He argued that this means Bangor no longer needs to strive to meet those environmental standards and does not need to spend money on upgrades.

In one case decided Jan. 3, a Virginia federal judge ruled that the EPA couldn’t regulate the amount of water flowing through Fairfax’s Accotink Creek watershed in an effort to control sediment buildup, according to a story in The Washington Post.

“Stormwater runoff is not a pollutant, so EPA is not authorized to regulate it,” the judge said in his decision.

In a second case originating from Los Angeles, decided Wednesday, the U.S. Supreme Court said water flowing out of a concrete channel within a river does not constitute “discharge of a pollutant” under the Clean Water Act. The Supreme Court opinion was limited in scope, and did not address the broader issue of pollutants flowing into the city’s rivers and then into the Pacific Ocean.

“You are not authorized to tax us on stormwater runoff and you shall not,” Wicks said.

“These are critical,” Scott Lynskey of Grove Street said of the court decisions. He echoed Wicks, arguing that the meeting and the ordinance itself were “moot” and should be overturned by the council. He said he would support the push to overturn the fee.

The meeting drew about 40 residents, making it by far the most heavily attended of the dozen or so meetings that the city has held on the subject.

Assistant City Solicitor Paul Nicklas said the court decisions were dealing with separate issues and do nothing to change that Bangor will have to implement this fee or face higher costs later.

Nicklas said those cases aren’t applicable in this situation. The EPA tried something unusual in Virginia by attempting to directly regulate the amount of stormwater runoff that was allowed to go into a stream, he said. In Maine, the EPA instead is directing the city to use stormwater upgrades to bring the streams into compliance with Legislature-approved water quality requirements.

Maine courts recently upheld a stormwater fee in Lewiston, he said.

“We have to do something with these streams, and this is the cheapest and fairest way we have been able to find,” Nicklas said.

Wicks said he plans to start a referendum push to overturn the ordinance at the ballot. He said he hopes to get 10,000 signatures and that he already has a “strong base” to start.

He said that no rainwater leaves his property because it soaks into the ground. He argued he shouldn’t have to pay a fee for other individuals’ and businesses’ pollution.

If such a referendum were successful, Bangor taxpayers would face a much higher bill, Nicklas said.

If the fee were overturned by referendum, the city would still have to do the infrastructure work or face EPA fines. Without a fee, the city likely would raise taxes to make up the money, but the cost would be a little less than four times as much for households, Nicklas said.

The only other option would be to wait for regulatory agencies to “come down on us” with fines.

The city worked hard to keep costs of stormwater upgrades down for taxpayers, Nicklas said. Nationally, stormwater programs charge between $2.50 and $12 per month, whereas Bangor’s will cost about $1.87 per month, he said.

Under the stormwater fee, residents and businesses with 3,000 square feet of impervious surfaces, such as pavement, roofs and walkways, will pay $22 per year. For every 1,000 square feet beyond the original 3,000 square feet, an additional $11 will be assessed.

Bangor has six “impaired” streams, meaning they don’t meet the water quality requirements of federal classifications. In an effort to meet those requirements, the city plans to install structures to reduce the amount of water runoff, clean catch basins and storm lines, complete drainage system repairs and construction projects. The effort also includes public education efforts. That work needs to be paid for, and city officials say a stormwater fee is the cheapest method.

Brad Moore, Bangor’s wastewater superintendent, said the projects are budgeted for $1.1 million. The fees would be used for the stormwater work, and fees from the fund can not be reallocated, he said.

Outside council chambers after the meeting, during an exchange between Wicks and City Councilor James Gallant, Gallant said there was no way to avoid investing in the effort to meet EPA regulations. He said refusing to do the work funded by the fee would result in hefty fines and much higher costs for taxpayers.

Gallant asked Wicks if he would rather buy an $8 gallon of milk or a $4 gallon of milk.

Wicks said he would rather not buy the milk.

Information, including a 12-minute video about stormwater, is available on the city’s website at bangormaine.gov/stormwater. The city also has set up a dedicated phone line, 992-4480, for questions related to the stormwater activities or fees associated with it.

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