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EPA Is Letting Cities Dump More Raw Sewage Into Rivers for Years to Come

Christopher Flavelle
A contractor walks down a finished portion of the Northeast Boundary Tunnel, 120 feet under Washington, Dec. 20, 2019. (Ting Shen/The New York Times)

The Environmental Protection Agency has made it easier for cities to keep dumping raw sewage into rivers by letting them delay or otherwise change federally imposed fixes to their sewer systems, according to interviews with local officials, water utilities and their lobbyists.

Cities have long complained about the cost of meeting federal requirements to upgrade aging sewer systems, many of which release untreated waste directly into waterways during heavy rains — a problem that climate change worsens as rainstorms intensify. These complaints have gained new traction with the Trump administration, which has been more willing to renegotiate the agreements that dictate how, and how quickly, cities must overhaul their sewers.

The actions are the latest example of the Trump administration’s efforts to roll back nearly 95 environmental rules that it has said are too costly for industry or taxpayers. That list grew Thursday when the administration stripped clean-water protections from wetlands, streams and other waterways.

“When you walk into the current EPA, as a local government, you’re not treated as evil,” said Paul Calamita, a lawyer who represents cities seeking to change their agreements. “Which we’d gotten, quite frankly, from prior administrations.”

Cities that said they are renegotiating their sewage agreements with the agency include Cleveland; Seattle; Kansas City, Missouri; South Bend, Indiana; and Chattanooga, Tennessee. Other cities, including Pittsburgh; Louisville, Kentucky; and St. Louis have already concluded talks for new terms.

The scale of many of the upgrades required by prior administrations is enormous.

For instance, Washington, D.C., which is considering whether to renegotiate its own deal with the EPA, is currently drilling the second of three mammoth tunnels designed for one thing: to hold 190 million gallons of untreated sewage and stormwater. The tunnels will be used when the city’s aging sewer system is overwhelmed so that untreated wastewater doesn’t flow into the Anacostia River as it now does — 15 to 20 times a year.

While officials in many of these cities praise the Trump administration’s flexibility, environmentalists said that the changes threaten safety by allowing pathogens and chemicals to keep flowing into rivers and along beaches and back up into streets or basements during storms.

“This trend is yet another example of the administration’s deregulatory agenda threatening our natural resources and public health,” said Becky Hammer, deputy director for federal water policy at the Natural Resources Defense Council. “If cities face genuine cost concerns, there are other methods to maintain affordability while still keeping sewage out of our lakes and rivers.”

Since the start of the Trump administration, the EPA has undertaken rollbacks of dozens of environmental regulations, including limits on the use of pollutants near streams and wetlands, on toxic emissions from industrial facilities and on mercury emissions from coal-fired power plants.

The latest rollback came Jan. 23, when the EPA reversed a 2015 rule that protected more than half the nation’s wetlands and hundreds of thousands of small waterways. That includes seasonal streams that flow only part of the year and wetlands that are not next to large bodies of water.

Farmers and property developers will now be able to release pesticides, fertilizers and other pollutants directly into many of those waterways as well as destroy or fill in wetlands for construction projects.

Asked to comment on the EPA’s increased willingness to let cities keep releasing sewage, Michael Abboud, a spokesman for the EPA, said in a statement that the agency “has consistently stated that it hopes to achieve full compliance” with the law. “We will continue to work collaboratively with our local partners to ensure that protecting human health and the environment remains the top priority.”

Modern federal rules outlaw the release of raw sewage. But older cities across the Northeast and Midwest have older sewer systems designed to carry sewage and rainwater in the same pipes. When rain overwhelms those systems, untreated sewage gets released into local waterways.

Climate change has worsened the problem, causing systems to overflow more often.

Starting in the 1990s, the EPA, along with the Department of Justice, began entering agreements that let cities like these avoid fines by committing to detailed plans for reducing or eliminating overflows. Those agreements, called consent decrees and approved by judges, impose rigid timelines for the work.

Under past administrations, the EPA would sometimes let cities modify these deals, according to Cynthia Giles, who led the agency’s Office of Enforcement and Compliance Assurance under President Barack Obama. But the bar was high, she said, citing the example of a major unforeseen disaster that made timely compliance too difficult.

“A consent decree is not the opening bid of a negotiation,” said Giles, who is now a guest fellow at Harvard Law School. “It’s a legally binding commitment that is ordered by a federal court.”

The tunnel being dug beneath Washington shows the scale of the efforts required to comply with federal rules.

The city, otherwise reliant on a sewer system that dates as far back as the 1870s, began work a decade ago. Ten stories below Washington, at the end of a 2-mile ride on a cramped construction train through a vast tunnel, workers paused recently to explain the mechanics of a 300-foot-long digging machine grinding through the earth.

The digger — a dust-covered tangle of conveyor belts, hoses and thrust cylinders — chews through 60 feet of earth a day. When this section of tunnel is done sometime in 2023, it will be a 5-mile-long, 23-foot-diameter tube built to hold up to 90 million gallons of raw sewage that Washington’s increasingly overwhelmed drains would otherwise have to release into the Anacostia River when it rains too hard. It is one of the largest public-works projects in the nation’s capital since its subway system was built 50 years ago.

Versions of the tunnel are planned or underway in cities nationwide. Their cost — Washington alone expects to spend $2.7 billion on three tunnels and related infrastructure, funded through higher water bills — has prompted complaints that, among other things, the higher water bills impose a particular burden on low-income people and retirees.

In the Trump administration, the cities have found a sympathetic ear.

In the administration’s first three years, the EPA has renegotiated about a dozen consent decrees with cities that use combined sewage systems, according to Adam Krantz, chief executive of the National Association of Clean Water Agencies, a trade group that represents water utilities. That’s almost as many as the 17 that he said the Obama administration renegotiated during eight years in office.

Krantz said he believed about half the cities with federal agreements for combined sewage systems were at some stage in the process of renegotiating the agreements. He praised what he called the Trump administration’s “more flexible approach toward regulatory and enforcement oversight.”

Water utilities “are environmentalists and public stewards,” Krantz said. “To the extent more time or flexibility is requested on a given consent decree, it is because it is needed to attain compliance” with the terms of that agreement.

Calamita, the lawyer who represents cities seeking to renegotiate, said the administration’s position reflected a series of separate policy shifts.

Those shifts include a 2018 directive by Jeff Sessions, who was then attorney general, instructing his department to be what Calamita described as “more deferential to our local government partners.” Then, at the beginning of 2019, Trump signed legislation directing the EPA to account for the various regulatory requirements a city faces and the cumulative cost of those requirements.

Calamita, like others who support the agency’s new approach, said cities could not afford the cost of some of the consent-decree requirements, at least not under the timetables they previously agreed to.

“They usually cut the best deal the could, figured future EPAs would be more reasonable, and they signed these consent decrees,” Calamita said. “Almost all of my clients have consent decrees they can’t afford.”

Cities large and small have already renegotiated, including Pittsburgh, which got an extra decade to reduce its overflows; Louisville, which got five additional years; and St. Louis, which also got an extra five years. Chicopee, Massachusetts, got an extra eight.

Akron, Ohio, has already renegotiated its original 2009 agreement twice, in 2016 and 2019. Officials are now seeking a third amendment, one that would let them avoid building an additional tunnel and other infrastructure that was intended to eliminate overflows completely, according to Ellen Lander Nischt, a spokeswoman for the city.

“It’s a very expensive project for very little environmental benefit,” Nischt said, asserting that the amounts of raw sewage that would be released without that tunnel would not cause significant harm.

Mishawaka, Indiana, wants permission to scrap a planned storage tunnel. The city, whose current agreement calls for it to stop releasing raw sewage, is also seeking permission for up to nine releases each year, according to Karl Kopec, manager of the municipal wastewater treatment division.

He said the city currently released about 4.2 million gallons of raw sewage annually into the St. Joseph River, down from 300 million gallons in 1990. Eliminating that last 4.2 millions gallons would produce “no measurable improvement in water quality in the river,” Kopec said.

Abboud, the EPA spokesman, said the agency sought to ensure that the terms of the renegotiated consent decree were “at least as protective as the original.”

Another city seeking relief is South Bend, whose mayor until this month was Pete Buttigieg, one of the leading contenders for the Democratic Party’s 2020 presidential nomination.

Mark Bode, speaking last month before leaving his post as the city’s communications director, said that Buttigieg had proposed a less expensive alternative that would reduce overflows by 94%. “We expect to come to agreed terms in the coming months,” Bode said.

Washington’s utility, DC Water, is considering whether to renegotiate, in the hopes of avoiding the need to build a third storage tunnel, this one along the Potomac River, according to people familiar with the conversations. David Gadis, chief executive of DC Water, declined through a spokesman to comment.

Tommy Wells, director of Washington’s Department of Energy and Environment and chairman of the board of DC Water, said he didn’t want the city to reopen that deal. “It’s our responsibility to the next generation,” Wells said.

This article originally appeared in The New York Times.

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