The Green “New Steal” is here.  Like a stealthy, aggressive weed it will be creeping into the municipal budgets of all 350 cities and towns in this Commonwealth and will soon start sucking the financial lifeblood out of taxpayers.  Most of them won’t even know it.   Like a famished lamprey, the United States Environmental Protection Agency (EPA), will be directly attaching itself to each and every municipal budget in the Commonwealth, forcing local officials to pay for compliance with its storm-water management mandates.  Under the Clean Water Act, the federal government has the authority to hold municipalities responsible for the purity of water run-off, that flows into lakes, rivers and streams after it rains.

What happened to federalism you say, the principle that keeps the federal government out of our backyard ?    Your ever progressive state legislature opened the door to direct EPA oversight back in 2013 by declining a state option to take over storm-water compliance, making Massachusetts only one of four states to do so.   The legislature refused to assume this responsibility, which would have allowed for more flexibility in compliance and a far less financial impact on municipalities.  They rejected it because it would have entailed a 9.5M state budget commitment. They had better things to do with your tax money, than to ensure clean water.   That decision subjected your city and town to direct oversight by the EPA, something that generally happens only by court order.

As the program rolls out, it is being met by a wide range of responses.   As to be expected, Milton and Brookline happily coughed up the money.   Lowell and Franklin, however, raised objections and are appealing the assessment of the EPA.   The Dracut Town Meeting approved an enterprise fund for compliance, but failed to put any money in it.    Many cities and towns aren’t even aware of the assessments yet.

One of the most surreptitious compliance schemes offered thus far, is that undertaken by the Town of Westford MA.   They intend to fund the compliance effort through the imposition of mandatory fees on every property owner, who maintains a roof over their head, or a hardtop driveway in their yard.  This approach makes King George III’s “tea tax” appear whimpish.  To get out of the tea tax, all you had to do was give up tea.  To get out of Westford’s “rain tax”, you have tear up your driveway and remove the roof on your home.

In an upcoming fall town meeting, the Westford selectmen will roll out a fee schedule, that will pro-rate assessments based upon estimated units of “impervious surface”, which is the total amount of hardtop and roofing on a particular property.  This wily approach is fraught with some risk.   The most obvious is that the fee scheme may actually be a de-facto property tax, which would by law require the selectmen to move forward utilizing the proposition 2 ½ override process.  The Westford selectmen don’t want to go through that, because they fear the measure might not pass.  Instead, they have decided to portray their financial imposition as a fee, which allows them not only to circumvent the proposition 2 ½ process, but  leaves the Town Meeting out of the rate setting discussion altogether, hence taxation without representation.

This gambit runs the risk that their fee scheme may be challenged under the Emerson Rule, a decision by the Supreme Judicial Court of Massachusetts,  which requires among other things that fees be voluntary.   Those assessed must have a chance to opt out.    The selectmen claim that they meet this legal standard because they are willing to grant reductions to property owners for improvements that reduce storm water flow on any particular property.  Their argument is illusionary however, because they have admitted that the amount of credits they can grant is limited.  At some point a financial wall will be met, where the granting of credits will undermine the funding for the compliance effort, and no further deferments can be given.

To  gain a deferment, property owners would have to make significant investments to reconstruct their driveways and roofs, which for many would be cost prohibitive.  If the selectmen lose this gambit and someone successfully sues, a state court could order the return of all the revenue gained, putting the town in a financial world of hurt.

And what will this new revenue pay for ?    Based on a roll out of anticipated expenditures in Westford, about 25% of the new funds will be earmarked for new staff and administrative equipment to issue compliance reports to the federal government.  Another 25% will go to relieve current financial commitments on infrastructure bonds.  The rest will be directed to actual operations, which involve purchasing street sweepers, up-scaling culverts and mains, and installing electronic leak detection equipment.  Municipal Department heads love this proposal because it will free previously encumbered general fund revenue for redistribution in the town budget making this in effect a backdoor proposition 2 ½ override.

This is a snapshot of the turmoil that has arisen due to the decision by our state legislature to defer jurisdiction over federal storm-water compliance.  Perhaps what is most unfair, is the fact that state roads and highways are perhaps the most significant contributors to storm water runoff.  Rather than assume their rightful financial responsibility for this, our legislature decided to push this onto local taxpayers.  If you are interested in how this matter is being handled by your city or town, contact the person in charge of your municipal water infrastructure, or your assessor and ask them.  Some municipalities have levied the assessment administratively, without anyone even knowing.  If you notice that your family budget is missing a few hundred dollars at the end of the year, it’s a good bet it was probably appropriated by the “Green New Steal”.

– Dennis Galvin