It's not just flooding: Baton Rouge is in violation of environmental rules for stormwater
It's unclear what the consequences of the city-parish's violations will be, or the feasible fixes
By Paul Cobler
BATON ROUGE, La. — With every storm drain that overflowed from heavy rain last week — flooding roads and homes in southeastern Baton Rouge — the list of the city-parish's violations of federal environmental laws grew longer.
In fact, East Baton Rouge's stormwater system is so far out of compliance that it could face fines or even legal action by regulators.
For years, the Louisiana Department of Environmental Quality has flagged problems with the city-parish's Stormwater Management Program, or SWMP. It's not just about flood prevention; the parish has also been faulted for how water runs off of construction sites, where tainted water from commercial and industrial sites flows and how the parish tries to catch and stop people from illegally dumping contaminants into the drainage system.
"That's pretty much everything," said Robert Verchick, the chair in environmental law at Loyola University and former deputy associate administrator for policy at the U.S. Environmental Protection Agency, when asked about Baton Rouge's issues with its SWMP.
Part of the federal Clean Water Act, the program is a requirement for all cities and towns to get permits to discharge stormwater into local watersheds. The goal is to stop the rainwater from carrying pollutants into streams, rivers and other bodies of water.
Stormwater plans are tracked by regulators and can lead to fines if too many violations are found in a given year.
The problems with Baton Rouge's stormwater plan, which was last updated in 2016, have been outlined in letters between the two parties since at least 2008 and as recently as this April.
Baton Rouge has been cited a handful of times for deficiencies in its program over the past decade, most recently in a letter dated April 12. The city-parish has failed audits of its SWMP four times during that time period, according to public correspondence between the city-parish and state regulators.
The April citation from LDEQ said data about how the parish monitors and reports stormwater was missing from the city-parish's 2019 annual report on its program. But it also pointed to several places where the parish is out of compliance, some of which have been previously flagged but not fixed.
LDEQ gave the city-parish 90 days from the receipt of the letter to correct the deficiencies in its notes. The issues must also be addressed in the city-parish's 2020 annual report, which was due May 1, or face "civil penalties for each day of noncompliance."
Mark Armstrong, a spokesman for Mayor-President Sharon Weston Broome, said the city-parish would apply LDEQ's recommendations to its 2020 annual report and declined to comment further.
The city-parish also faces action from the U.S. Justice Department, with the two parties in the midst of negotiating a settlement. It's unclear what the consequences of the city-parish's violations will be, but consent decrees are tool the EPA uses to force cities and companies into compliance.
"If the Justice Department is involved, what that means is that we're beyond the EPA or the state agency," Verchick said. "It's basically the lawyers of the federal government that are coming in and bringing a civil action against it."
Fines can run "tens of thousands of dollars a day" for municipalities out of compliance, Verchick said.
The final decision on federal action is often influenced by political appointees of the presidential administration in office, Verchick said, meaning Democratic administrations are often tougher on municipalities that violate the Clean Water Act.
Since the beginning of 2020, the federal government has announced 11 settlements with municipalities and companies that resulted in a consent decree, according to the EPA's website.
State regulators, who administer the program, and the city-parish declined to comment on the ongoing negotiations, and the Justice Department did not respond to a request for comment.
While the city-parish won't say why these violations keep happening, Verchick has some theories.
Climate change, which is increasing the amount of rain, may be overwhelming Baton Rouge's stormwater management infrastructure, leading to an increase in violations of the Clean Water Act, he said.
Addressing those problems could mean increasing the size of pipes for stormwater runoff, which is not a cheap fix. That puts governments across the country in a position where they're unable to address the root causes of their violations, Verchick added.
"This is not an unusual thing — it's a bad thing — but it's not that unusual, unfortunately," Verchick said. "As you'd imagine, fixing those things can be tremendously expensive, so you get into this situation where it's like 'what do you want me to do? I don't have the money to do it."
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