Rethinking State & Local Stormwater Management Partnership
Looking at new ways state regulators can work with MS4s
Friday, December 31, 2010
By Brenda Zollitsch, David Ladd , Philip Ruck
Collaborative Stormwater Management: Setting the Stage
In recent years, collaboration has become a buzzword in the stormwater management field. As managers are increasingly asked to view and manage stormwater from a watershed perspective (NRC 2008), federal and state government agencies are looking more closely at collaborative approaches to reduce nonpoint-source pollution, including sources of stormwater pollution. The nature of stormwater flow, origins, and impacts makes it a natural fit for joint action, necessitating the cooperative action of multiple levels of government; the engagement and action of citizens; and the support of nonprofits, businesses, and funders. As it’s one of our nation’s “wicked problems,” thinking about how to structure and promote collaborative action to reduce stormwater pollution is gaining attention at the federal, state, and local levels.
In the book Collaborative Environmental Management: What Roles for Government? Koontz et al. (2004) explain that this current push toward collaboration in most areas of environmental management emerged in the early 1990s from a dissatisfaction by citizen groups with inadequate public participation processes, a lack of representativeness in participation activities, and poor implementation of environmental programs in general. Grassroots organizations began to demand a more active role in decision-making, leading to an emphasis on increasing the involvement of diverse stakeholder groups. Koontz et al. go on to state that to address these pressures, federal agencies began to promote “collaborative approaches” to environmental management. During the 1990s, collaborative approaches were implemented by the United States Environmental Protection Agency (EPA), Forest Service, Natural Resources Council, National Oceanographic and Atmospheric Administration, Department of Energy, Bureau of Land Management, National Fish and Wildlife Service, and 11 other federal agencies working on environmental issues.
In light of this trend, it should be recognized that regulators can play a variety of roles in promoting collaboration. At the top of this list is the provision of resources that support collaborative action—human, technical, and financial. Other common support includes the creation of opportunities for partners to participate in issue definition, identification of allowable solutions, interpretations of maximum extent practicable, and the joint development of regulatory language. Outcomes of collaborative processes have been shown to include higher levels of reciprocity, stronger relationships between regulators and stakeholders, more comprehensive cost savings, economies of scale, learning, innovation, creativity, and mutual support of sharing the regulatory burden.
Regulatory emphasis on supporting collaboration differs significantly among the 50 states. Some states rely on a more traditional top-down regulatory approach, while others have adopted well-developed collaborative relationships with those whom they regulate. Whether or not a state is engaged in promotion of and participation in collaboration appears to be determined by a wide range of factors including, but not limited to, government organizational culture, history of collaboration in the state, success of past collaboration efforts, access to resources to support “joining up,” and (not inconsequentially) the personal characteristics of stormwater regulators.
Although the Koontz research does not specifically focus on stormwater management collaborations, there are many insights this research can offer stormwater regulators and managers. One of the primary benefits of this research for the stormwater management field is the provision of a practical framework that can help guide how we look at potential roles state regulators can play in fostering stormwater management collaborations.
Three Primary Roles for State Government in Promoting Collaborative Management
As state agencies consider options for how to promote collaboration, it should be noted that they can serve in a variety of roles: as participants, encouragers, or leaders. Koontz et al. argue that there are strengths and weaknesses to these different approaches and illustrate these differences through a series of well-researched case studies. To summarize, they state the following strengths and weaknesses for each potential role. They also point out that the roles are not mutually exclusive; i.e., an agency can take on components of more than one of these roles at a time and can change from one role to another over time through the adoption of different policies and approaches.
- State Agency as Collaboration Leader. In the leader role, state agencies convene and lead stormwater management collaborations. By bringing together groups of regulated entities to explore stormwater issues jointly, state agencies can ensure that common best practices of collaboration, including representative membership, consensus voting, regular meeting, and properly staffed working groups are in place. Although leading collaboration might seem the easiest way to ensure that joint action occurs, state agency efforts to lead collaborations have their drawbacks as well. Research indicates that environmental collaborations led by regulators often have problems with perceived legitimacy, and consequently a regulator leadership role can result in what Koontz et al. call “a detrimental impact” on collaboration’s outcomes. This is not to say that government-led collaborations are unable to achieve positive results, only that attention needs to be paid to this concern. Alternatives should be explored to ensure state agencies are taking the most effective approach to facilitating the development of collaboration.
- State Agency as Collaboration Encourager. A second role for state agencies is the encourager role. In this role, the state agency exerts impact on the development of collaborative approaches through the provision of what Koontz et al. call “carrots and sticks.” As encourager, the state agency provides a complement of both command-and-control rules and specific incentives to groups of actors engaged in stormwater management planning and implementation. These incentives can include direct financial resources, grants, contracts, human resources, and technical assistance (such as engineering consultants and facilitators). Case studies of environmental groups show that while incentives are a large part of getting groups to collaborate, without the overall threat of enforcement action the likelihood of collaboration is lower. A primary incentive state agencies can provide is technical assistance. Technical assistance provides participants with learning opportunities about collective action solutions and opportunities to explore common problems with the support of technical experts. A second incentive is funding. Funding support can be crafted to require commitment to collaborative approaches and be targeted to support joint learning, planning, and implementation activities. The third primary incentive is the provision of human resource support. Agency staff can provide access to information about stormwater regulations and how they are being interpreted by the regulating agency. Other types of staff assistance can be provided to assist collaborations work through compliance planning in such areas as stormwater education and outreach, ordinance development, and trainings on inspection protocols.
- State Agency as Collaboration Participant. The final role posited by Koontz et al. is the participant role. In this role, the state agency participates in planning activities it did not convene and does not lead. The state agency is not in control of the agenda or the process. Koontz et al. emphasize that most of these collaborations are either citizen-led or facilitated by nonprofit organizations. In the case of stormwater collaborations, the state agency may be participating in a local government-led collaboration of municipal separate storm sewer systems (MS4s) and their partners. As participant, the state agency member(s) may or may not provide financial assistance along with other partners. While agency staff in this role seek to play an equal role with other participants, this aspiration for equality is often elusive, due to the regulatory role the participant plays and a perceived inequity of access to resources. A benefit of this role for state agencies is the ability to participate without having to make commitments or take positions that might threaten their agencies while at the same time working with the other partners to craft joint projects. Others include flexibility and what Koontz et al. call the “conferred legitimacy” of the group’s outcomes. (Outcomes are not seen as including more than just government interests.)
State-Local Stormwater Collaboration in the State of Maine
The State of Maine lies in the northeastern-most corner of EPA Region 1’s regulatory reach. Maine Department of Environmental Protection (DEP) implements National Pollutant Discharge Elimination System (NPDES) requirements through its MEPDES stormwater management program. Twenty-eight MS4s and 10 nontraditional MS4s are regulated by DEP. These MS4s are located in located in four EPA-designated urbanized areas (UAs): the Kittery-Berwick Urbanized Area, the Portland Urbanized Area, the Lewiston-Auburn Urbanized Area, and the Bangor Urbanized Area. Long before the current economic crisis, Maine was already a challenging place to implement new stormwater regulations. Maine’s harsh anti-tax sentiment framed the stormwater conversation in Maine even before MEPDES regulations came into effect.
Working in state defined by a culture dedicated to local control and with virtually no financial support to offer MS4s to achieve compliance, Maine DEP took a different approach from many other delegated states. Maine DEP staff understood that sitting at the table and listening to the many challenges and frustrations of working to implement regulations was perhaps the only chance of achieving higher levels of compliance. With limited DEP staff to take on the responsibilities of enforcement, the benefits of a high level of compliance would assist in reducing the DEP burden and risk of lawsuits from the Conservation Law Foundation, a legal watchdog organization working to ensure compliance with the intent of the Clean Water Act.
DEP’s stormwater staff were met with a healthy amount of skepticism in the first several years of the program. However, over time, DEP’s demonstrated willingness to listen to suggestions for meeting compliance goals and support MS4 collaborations through a variety of means has led to increasing acceptance and interest in partnership by MS4s. This support has included the use of municipal stormwater fees to partially fund regional trainings, working together through regulatory language to establish clear joint understanding and a limited number of changes to improve implementation feasibility, joint discussion about defining both the term maximum extent practicable and best management practices, support for regional data management, shared exploration of stormwater utilities, and partnership in collaborative external grant applications. These extensive DEP commitments have led to a highly interactive relationship with MS4 clusters throughout the state and a growing level of reciprocal trust. Not to be understated is the internal commitment from the leadership of Maine DEP to the state Stormwater Coordinator to this collaborative approach. Without support at all levels, this effort to bring the state agency into an active, ongoing dialog and partnership with those whom they regulate would not have been possible.
What Role Does Maine DEP Play in Supporting Collaboration?
DEP’s relationship with MS4s has changed over time. At various points and in various ways, DEP has played all of the roles outlined by Koontz et al.
DEP as Leader. Most of DEP’s leadership roles have been through more indirect leadership efforts, listed below as “encourager” roles. However, one of the most critical efforts that started municipalities across the state working collaboratively was DEP-led: the development of a statewide media campaign, bringing together regulated entities across the state in 2003 to work with DEP experts and media consultants to develop a campaign that would meet the new permit’s outreach requirements. This effort served as a springboard for future collaborative efforts throughout the state, both based on the positive experience of working in partnership and even more so because of the high quality and impact of the project’s joint products: the EPA Region 1 Environmental Merit Award-winning ThinkBlueMaine stormwater outreach media campaign. Today, thanks to the campaign, more than 80% of Maine adults over the age of 18 recognize the project’s “ducky ad,” and more than 75% can explain the message of the ad (how various sources of pollution enter the storm drain system and are carried untreated into the region’s waters, leading to the reduction in the health and quality of local water bodies).
DEP as Encourager. Over time, DEP has played a significant role in increasing compliance activities through the provision of various types of supports. In its primary role as encourager, Maine DEP has strategically and responsively provided partial funding and staff experts for trainings, supported database development through financial and human resource contributions, sponsored requested research and development focus groups, gathered and shared findings from DEP’s municipal baseline surveys, and coordinated
independent focus groups in each urbanized area to assess local understanding of stormwater-related issues. In the case of the Bangor Area Storm Water Group (BASWG), DEP connected the group with a facilitator, who has been assisting in the collaboration’s capacity-building and compliance efforts for the past five years. DEP consistently works to provide models for consideration by MS4s for ordinances, inspection forms, standard operating procedures, and best management practices. In several cases, DEP has also facilitated discussions about these issues between the clusters of MS4s. These support efforts are in addition to the more traditional provision of 319 and 604(b) grant program funds. DEP has also been able to encourage grant-assisted watershed surveys. It is important to note that all these incentives have been essential to the success of Maine’s groups in promoting collaborative approaches and higher levels of collaboration, but all the MS4s would agree that the threat of noncompliance consequences (namely agency fines and threat of lawsuits from the Conservation Law Foundation) are the most compelling reasons for both compliance and collaboration to achieve this compliance.
DEP as Participant. DEP also acts as a participant most collaboration meetings in the state. Two of the clusters (BASWG and the Interlocal Stormwater Working Group of the Portland Urbanized Area) meet regularly. DEP provides regular staff representation at these meetings. In their roles as participants, DEP staff members work to learn about MS4 needs, understand and provide guidance to compliance planning activities, answer questions, clarify the intention of regulators, understand challenges, and jointly create solutions to stormwater management problems. Staff participate in education and outreach planning committees at the cluster level (DEP staff are seen as true partners in this dialog, serving as resources as much as regulators). They also participate in planning task forces to develop template inspection forms, database fields and formats, and the BASWG’s regional plan. However, as Koontz et al. found, at the end of the day DEP remains always recognized as the (helpful, collaborative) voice of the regulator, and that voice has more power than other members and partners.
DEP as Liaison. A role not specifically identified in the Koontz et al. typology that seems to be a critical one played by Maine DEP is that of liaison. This role captures DEP’s ongoing and critical efforts to connect information, ideas, and planning efforts between the various players in the stormwater field. In this role, the state agency connects the efforts of one UA cluster with others working on similar issues, facilitates the sharing of management plans and template standard operating procedures, participates in the planning of statewide roundtable discussions, connects staff working on similar stormwater management issues in the state, and shares lessons learned from one cluster with the others.
Benefits and Costs to the State Agency
Maine DEP has identified numerous benefits from its proactive approach to working collaboratively with the MS4s it regulates. These include:
- Refinement of the MEPDES permit and regional plans so that they are feasible for regulated entities to implement
- Greater ownership of general permit requirements by MS4s as a result of involvement in the permit planning process
- Lower implementation costs for MS4s (estimated $400,000 in savings in the Greater Bangor Urbanized Area [BUA] alone)
- High levels of compliance with MEPDES statewide
- Limited enforcement actions required under the general permit since 2003
- Higher-quality outputs and outcomes through joint action (examples include a statewide media campaign, regional behavior change plans, high-quality data management systems, savings from regional management plan review, shared ordinance language, and requirements resulting in consistent management strategies throughout region/state)
- Greater level of overall knowledge about stormwater pollution, its sources, what can be done to reduce it, and what types of programs will be more effective and efficient at reducing its impacts
- Stormwater management that is regionalized (leading toward watershed management) despite NPDES lack of a watershed focus at this time
Collaboration has a number of costs as well:
- Collaborative efforts differ from the conventional system for making regulations and long-standing political ways of working (requiring shift in thinking, support systems, and power allocation).
- Transaction costs (e.g., the permit development process is slower; consensus building and developing trust are time-intensive processes).
- By partnering, issue definition and agenda setting is shared with others.
- The process of reaching consensus often means taking a lot of abuse; state regulator(s) need to have a very thick skin to embark on an truly collaborative approach.
- There is some risk associated with the perception of negotiation.
Maine DEP is well aware of the costs of power-sharing and group process. However, overall analysis has shown that the benefits of collaboration significantly outweigh the costs.
The Local Perspective: Thoughts From the BASWG
The BUA of Maine is the northeastern-most regulated EPA-designated urbanized area in the United States. It comprises seven regulated MS4s, including the City of Bangor, City of Brewer, Town of Hampden, Town of Milford, City of Old Town, Town of Orono, and Town of Veazie. The BUA also includes five nontraditional regulated MS4s, including the University of Maine, University College of Bangor, Maine Air National Guard Bangor Base, Dorothea Dix Psychiatric Center, and Eastern Maine Community College.
The founding members of the BASWG first met in 2003 to discuss the “confounding” new stormwater regulations. Most MS4s were concerned with the areas of compliance that required education and outreach, as well as the new requirements for post-construction stormwater management activities and determining such things as the permit’s requirement for “maximum extent practicable.” Since 2003, regulated entities in the Greater Bangor Urbanized Area have been working together to find more efficient and effective ways to comply with Maine’s Phase II storm water regulatory requirements. Early partnership activities focused on education, outreach, public participation, and staff training. In 2007, the regulated entities in the region formalized their partnership, becoming an incorporated organization and shortly thereafter a 501(c)(3) nonprofit. New activities included storm sewer mapping, shared inspections protocols, joint grant writing, and the development of a regional storm water management database.
In 2008, all 12 of BASWG’s MS4 members made the decision to take their partnership to a new level and develop the region’s first fully integrated stormwater management plan (SWMP). This DEP-approved regional plan went into effect on July 1, 2009. By 2010, the BASWG’s members and their partners had successfully completed more than 25 regional projects and brought in more than $200,000 in external funds to support stormwater management regionalization projects.
From the beginning meetings of what was to later become the BASWG, Maine DEP has been involved with the group, developing over time an interactive, partnership-focused relationship. In 2003, the first year of Maine DEP’s MS4 general permit, DEP staff led the development of a statewide outreach media campaign, partnering with all 28 MS4s within the state’s four urbanized areas. In 2005, DEP stormwater coordinator David Ladd recruited facilitator Brenda Zollitsch to come start working with MS4s in the Bangor Area.
The BASWG has identified a number of benefits and cost savings associated with working collaboratively with Maine DEP. As with the state agency’s assessment that the return on investment makes the costs worthwhile, the BASWG’s members strongly agree that working in partnership with their state agency has resulted in a high level of both environmental and monetary returns, as has working in partnership with each other as the MS4s within each cluster.
Specific benefits outlined by the BASWG include the following:
- Joint understanding and agreement around allowable solutions. This includes group discussion of standard operating procedures, best management practices, and permit language, and most importantly the development of a planning matrix that guided the development of the region’s shared stormwater management plan.
- Clarification of maximum extent practicable. By working together, DEP was able to understand the true resources available to MS4s and the technical solutions available and work jointly to develop solutions that achieved the “most bang for the buck.”
- Joint development of permit language. DEP worked side by side with stakeholders for approximately 12 months drafting and revising MS4 general permit language prior to reissuing the permit. This provided opportunities for MS4s to understand expectations, make suggestions that improved feasibility, and identify issues that would result in conflict between MS4s and DEP.
- Collaborative process also allows for joint learning on technical topics for both the state and the local partners. By learning together, solutions are crafted jointly and lead to greater ownership of actions by both sides.
- Other benefits include economies of scale in purchasing equipment, supplies, and consulting services and staffing projects with contracted staff from other organizations.
- Pooled resources and expertise have led to greater levels of creativity and innovation.
- Overall, the collaboration with Maine DEP has resulted over the last five years in more in-depth understanding of issues on both sides, clarification of restrictions and barriers, and innovation through working together to find new solutions.
Costs include:
- Vulnerability of sharing compliance concerns with the agency regulating them
- Some loss of independence for MS4s
- Transaction costs (consensus building and developing trust are time-intensive processes)
- By working collaboratively with the regulator, there is less legitimacy in fighting compliance requirements at the end of the process.
- Some higher level of risk associated with the perception of negotiation on the MS4 end as well
The 900-pound Gorilla in the Room
At the root of most successful collaborations is the engagement of individuals who are committed to the collaborative process, regardless of the effort and transaction costs that are required to make it a success. The people involved not only need to have the appropriate resources, skills, and motivation, but also need to be situated in a political, economic, and cultural climate that will allow collaboration to evolve and thrive. Mattessich et al. (2001), identify six critical factors shown to influence collaborative success. These factors (which they describe in great depth and for which they provide a tool that collaborations can use to assess them) are 1) environment, 2) membership characteristics, 3) process and structure, 4) communication, 5) purpose, and 6) resources. Understanding this, the great caveat of this article is that while collaboration outcomes are enticing, they require a large number of factors to be in place that are not all under the control of either the state agency or the MS4s in the region. Careful planning and assessment should be part of any effort to engage in collaboration building.
Resources to Support Collaborative Planning
To this end, there are a number of excellent tools available to assist potential partners in exploring costs and benefits, collaboration needs and barriers, as well as resources available and the climate within which joint action would occur. There are many resources available to those seeking to explore collaborative options. Some resources useful for aiding in this process, in addition to those already mentioned, are How to Make Collaboration Work: Powerful Ways to Build Consensus, Solve Problems and Make Decisions (Straus 2002); Collaboration: Using Networks and Partnerships (Kamensky and Burlin 2004); and Managing Complex Networks: Strategies for the Public Sector (Kickert, Klijn, and Koppenjan 1997). All are listed in the References section.
Conclusion
The state-local relationship can take many different forms in the field of stormwater management, some of which are collaborative or are well-positioned to evolve into collaborations. It is critical for those seeking to create collaborative efforts to conduct careful assessment of whether critical factors are in place to allow collaboration to take place effectively. Once collaboration is deemed possible, state agencies have important choices to make about which roles they will play in fostering collaboration. According to the extensive research of Koontz et al. (2004) in the environmental field, common roles that state agencies play in fostering collaboration include those of leader, encourager, and participant. Koontz et al. show that it is possible for the state to play more than one of these roles simultaneously or to change its role over time. This article posits an additional role to add to that framework: that of liaison. In the liaison role, state agencies provide connections and support between groups that can benefit from working with each other. The article provides a case study of the state of Maine, showing Maine DEP playing multiple roles simultaneously and successfully. Regardless of which role(s) a state agency chooses to play, there are costs and benefits to both the regulator and the regulated. In the case of Maine’s Bangor Area Storm Water Group, the return on investment for collaborative action has been high, and as a result it is expected that its collaboration with Maine DEP will continue into the foreseeable future.
Author's Bio: David Ladd is the Stormwater Coordinator for the State of Maine at the Maine DEP. |
Author's Bio: Brenda Zollitsch is the facilitator of the Bangor Area Storm Water Group. |
Author's Bio: Philip Ruck, P.E., an engineering consultant for CES in Brewer, ME, is a technical consultant to the BASWG and many of its MS4 members. |
Advertisement]