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Commentary: MSD and sustainable infrastructure

This article first appeared in the St. Louis Beacon, Feb. 8, 2012 - Sometimes, when it rains, it pours. In St. Louis, when it pours, it pollutes. The reason: our mostly 19th-century systems for managing wastewater and stormwater lack the capacity to process the huge amounts of water that enter these systems during storm events. As a consequence, the excess - and untreated -- waste and storm waters are diverted from the system into urban streams and rivers or back up onto streets and into houses and commercial buildings.

The result is impaired water quality and messes that impose large costs on the citizens of the region. In many cases, these costs are faced by those who are in a poor position to do anything about it: the poor and politically powerless.

But there is hope. There is a path toward a regional, 21st-century infrastructure worthy of our vibrant urban region. The St. Louis Metropolitan Sewer District, which manages and operates the existing, inadequate systems, has entered that path by agreeing to a proposed consent decree that will resolve most of the claims that the systems are being operated in violation of the federal Clean Water Act. (The state of Missouri, one of the plaintiffs in the lawsuit against MSD, has, for unspecified reasons, not agreed to the consent decree.) The decree is pending before the U.S. District Court. The court should approve the agreement.

To be sure, the price of securing the needed infrastructure improvements is high - over $4 billion of investment over the next two decades. All of our sewer rates will increase; and for some, the increases will be hefty and burdensome. Some, including the St. Louis Municipal League, have opposed the decree, claiming that the price is too high. They favor a more fine-tuned approach that would target the most serious problems with the existing system, while deferring compliance with Clean Water Act requirements over a much longer period of years. Central to that approach is a claim that the path paved by the consent decree imposes very high short-term costs that are disproportionate to the benefits.

This tired, worn-out tactic makes an appearance in response to virtually every proposal to move forward on the path to a sustainable urban environment. And as is usual in these circumstances, the opponents do not back up their business-as-usual arguments with facts. They instead have seized on statements in MSD's analysis of the proposed investments to the effect that the implemented decree will not in many cases yield improvements sufficient to achieve the water quality objectives of the Clean Water Act.

But this is hardly evidence that the benefits of the decree are outweighed by its costs. Not all investments yield complete solutions, and it is sensible to approach issues as complex as water quality and infrastructure incrementally while keeping our eyes on the big picture. Not all of our urban water quality problems can be blamed on MSD, so we should not expect that correcting MSD's capacity problems will magically cure those problems. Moreover, pushing back the date for needed investments will simply increase the total costs of securing compliance with the Clean Water Act's requirements. Indeed, one of the primary reasons the decree's costs are so high is that we have delayed correcting the problems with our existing systems for decades.

To be sure, some of the highest-priced investments called for by the decree -- such as huge underground tunnels for retaining excess storm and wastewater in storm events - may not be the most cost-effective ways to deal with the system's capacity limitations. But the law sometimes does not seek out or permit more effective measures, and sometimes, there are good reasons not to do so.

The big engineering requirements in the decree are hardly unique; they are standard elements in all consent decrees that EPA has negotiated in cases involving urban storm and waste water management systems. And there are many such decrees: witness last month's decree involving the Metropolitan Water Reclamation District of Greater Chicago. Their inclusion in the decree reflects concerns, mostly valid, that other methods of dealing with capacity problems are more difficult to monitor and may yield uncertain results, and the reality that other measures are beyond the regulators' authority to impose.

It is also important to understand why these investments have become necessary. The chief problem with our existing systems is capacity - there is more polluted water coming into the systems than the waste treatment plants can process.

There are two solutions: enlarge the capacity of the systems or reduce the amount of wastewater that enters the systems.

The third alternative urged by opponents of the decree - live with the status quo - is legally unavailable and fiscally irresponsible. But reducing inflow to the system requires the politically difficult task of facing up to our past practices of mindlessly destroying natural processing systems, like vegetated buffers, wetlands and other permeable surfaces, to make way for such infrastructure needs as roads, parking lots and housing. These impermeable surfaces do not retain stormwater; in fact they act like superhighways highways for polluted water, or "run-off."

We are just now beginning to consider seriously how the loss of permeable surfaces can be rectified. For its part, the decree calls for modest investments in this direction, providing $100 million for "green infrastructure" investments, such as rain gardens and vegetated buffers. This is an important step, deserving of widespread support and encouragement. If we are smart, we can begin to more fully incorporate green infrastructure solutions as we move to resolve some of the pressing infrastructure needs facing our region. But let's not let the big price tag of the decree deter us from acting sensibly now.

Doug Williams is a professor of law at Saint Louis University School of Law.