From Houston County wetlands to North Birmingham neighborhoods, Alabama’s budget battles lead to environmental problems

Sediment in wetlands’ cypress stand

Holes are appearing in Alabama’s official safety net for environmental protection.

A consistent loser in recent battles for state funding, the Alabama Department of Environmental Management (ADEM) is seeing delays in enforcing regulations.

It also is seeking to hand off to local governments the primary responsibility for emergency response to environmental accidents.

And its lack of matching funds helped dash hopes for federal clean-up of long-standing industrial contamination in several north Birmingham neighborhoods.

A recent sign of the problems came Feb. 10 with landowner James Hodges’s plea to ADEM’s oversight commission for more timely enforcement of regulations to prevent construction runoff from damaging his cypress wetlands in Houston County.

That opened the door for the Alabama Environmental Management Commission to call attention once again to years of diminished funding for the department’s enforcement activities. Alabama is 49th in the nation in its per capita support.

“Are you ready to pay more taxes (for more enforcement)?” Commissioner Terry Richardson asked at the group’s bimonthly meeting Feb. 10 in Montgomery. “Because that’s what it’s going to take.”

‘Knee high’ sediment in cypress wetlands

James Hodges of the Taylor community in Houston County said contractors working in rural areas may or may not seek an ADEM permit committing them to adequately manage soil runoff. If they don’t get a permit, Hodges said, they may complete the job before anyone notices a problem, such as happened when sediment filled the wetlands “knee high” around his cypresses, which stand in Newton Creek, a tributary of the Little Choctawhatchee River.

Particularly in the state’s rural areas, where a “wild West” attitude often inhibits construction companies from seeking permits, silt fences and other methods of managing such runoff may not be put in place until after the job is complete, he said.

Choctawhatchee Riverkeeper Mike Mullen of Troy told the commission that Hodges’s complaint “is not an isolated incident.” Nonprofit organizations such as his patrol Alabama’s major rivers and creeks to monitor for environmental threats or damages and promote clean-water initiatives.

Mullen later acknowledged that job sites are usually inspected promptly by ADEM after a complaint is made, but enforcement follow-up is often “slow in coming and not sufficient to encourage general compliance, and penalties are not sufficient to deter violators.”

Hodges’s problem was reported to ADEM by Mullen in mid-September after a developer began clearing land for a subdivision in August. ADEM staff inspected the multi-home site two days after the complaint was filed, finding no site registration was posted, no silt fences or other protective methods were being used, and the cypress wetlands area was impacted. A warning letter was sent Sept. 26, giving 10 days to correct the problems and request a permit for the job. A notice of violation was sent Oct. 18. The developer responded to the warning letter on Oct. 19 but did not permit the site until Nov. 29.

By then, the damage to the wetlands was evident, Hodges said.

Tensions flared between ADEM director Lance LeFleur and the two men, Mullen and Hodges. LeFleur denied knowing about Hodges’s complaint.

“You are aware. It’s been brought to your attention, sir,” Hodges responded.

Friction over ADEM Performance

Friction between bureaucracies and advocacy groups is expected, but feelings were ramped up in recent years. Until last month, ADEM was locked in a struggle with environmental groups, including Mullen’s, that formally urged the EPA to strip the department of its authority to implement part of the federal Clean Water Act, in part alleging it was not adequately funded and enforcing regulations.

On Jan. 11, EPA Region IV in Atlanta issued a denial of the advocates’ petitions and allowed ADEM to maintain control. Although the process did identify areas in which ADEM could improve, LeFleur told the commission that the case was costly and his cash-strapped agency could have made “more productive” use of the time and money expended.

In pointed, prepared remarks lasting more than four minutes, LeFleur criticized Mullen for filing “far more complaints than any other individual in the state,” and for filing them directly to ADEM staff rather than through an electronic reporting system. LeFluer’s Prepared Statement.

The director earlier in the meeting had told the commission that ADEM’s inspection and enforcement metrics compared favorably to those of other states in the region.  Metrics measure, for example, rates of inspection of sites and facilities with permits, compared with rates of other states.

But Mullen notes there’s no ADEM staff on the ground searching for the bad guys without permits, particularly for smaller construction jobs in small towns and outside municipal areas.  “There’s a relatively low probability that those violations will be detected and others deterred,” he said.

No regulatory agency, LeFleur said, “can prevent all violations or catch every violator,” and due process requirements are responsible for some of the delay in gaining compliance from contractors.  Mullen “may not be satisfied with the department’s enforcement program; however, his often repeated disparaging characterization of the (program) is without basis, misleading, and demonstrably wrong,” he said.

Commission chair H. Lanier Brown II stepped in to caution the pair to avoid personal exchanges.

He directed LeFleur to seek ways to put more pressure on contractors to have measures to protect adjacent property in place “when the ‘first shovel’ is put in the ground.”

Richardson remarked, “If you want effective follow-through after a complaint is made, you must have the ‘boots on the ground’ to do that. That takes money.” He told Hodges that he has seen similar noncompliant construction at sites in his home region, but “until we have a state legislative body that recognizes it’s time to pony up (more funding), this is what we’ll be faced with.”

Support for ADEM programs may become even more difficult because, he said, “We are facing a federal regime that is liable to reduce some of EPA’s funding (to the state). That’s just going to make matters worse, guys, for enforcement control, action and follow-up. You reach a point when you can’t cut any more. You can’t get blood from a turnip.”

Cuts in State Money

ADEM has seen drastic cuts in its state appropriation over the past few years, with the state contribution dropping from more than $6 million in fiscal year 2008 to $280,000 for FY 2016. The department also was among those required in 2016 to help shore up the state’s General Fund with money from their own budget. ADEM was asked to transfer $1.2 million.

To help cover its shortfalls, ADEM hiked fees three times in recent years – 19% in 2011, 50% in 2013, and 20% in December 2015.  Despite those increases, Alabama ranks 49th in the nation in per capita support from fees and appropriations.  ADEM’s total budget is approximately $152 million for the current fiscal year. About 40% of that total comes from federal grants, almost all from the EPA.

State money pays fees for farms only   

The General Fund contribution to ADEM was increased to $400,000 in the FY 2017 budget, but that entire appropriation is restricted to paying permit fees for the inspection of large poultry, hog and other animal farms under the Concentrated Animal Feeding Operation program. The program requires farmers to manage animal waste in environmentally responsible ways to ensure groundwater and water systems are not contaminated by the feedlots.

The CAFO earmark and increases show the muscle of Alabama’s agricultural and business lobby. Alabama Farmers Federation, Alabama Poultry and Egg Association, Business Council of Alabama, and other groups told members of the legislature’s Rural Caucus last August that the burden of increased fees was too great for its members to bear and the state should cover the costs with an appropriation from the General Fund, according to multiple news sources and the transcript of LeFleur’s report to the commission at the time.

CAFO again is expected to be the department’s only General Fund appropriation in the FY 2018 budget, which the legislature is considering in the current session that started Feb. 7.

Richardson and other ADEM leaders, as well as environmental groups, have taken the Legislature to task in the past for not adequately funding the department. In 2015 he questioned whether the department is considered critical to the state, in view of the sparse state funding.

Despite the funding issues, he said, “We’re doing a pretty darn good job with the funding that we’re getting.”

Shifting emergency response?

Inspections and enforcement duties are not the only financially distressed function of ADEM. In August, LeFleur said the department’s emergency response program for oil and hazardous materials spills and other incidents was “inadequately funded.” LeFleur told the commission he was seeking changes in the state’s Emergency Operations Plan to shift responsibilities for primary response to local communities, a process he acknowledged would “place greater financial obligations on local communities.”

The Alabama Emergency Management Agency said in an email that the plan is “in the process of being updated,” but did not specifically reference ADEM’s requested change.

Mitch Reid, Alabama Rivers Alliance program director, said this week, “If ADEM does not have the resources to respond to emergencies, that tells me its bare bones funding has moved over to a deeper problem area.” The nonprofit alliance represents several waterkeeper organizations in the state.

Reid agreed with Richardson that a lack of inspections and enforcement results from the lack of staff in the field to inspect and enforce regulations. “There is money from permit fees and grants from EPA to manage the federal Clean Water Act, but permit fees can only be used for the issuance and renewal of permits. They can pay the staff that looks at paperwork, and visit a site when a permit is reissued – but those fees can’t be used to pay staff to ride around the state looking for the rogue contractors and other bad guys.”

Impact on Birmingham cleanup  

ADEM’s budget woes over recent years are one reason several highly contaminated neighborhoods in northern Birmingham did not make a priority list to be a federal Superfund site in 2014, according to Haley Lewis, staff attorney for Gasp, a nonprofit clean-air education and advocacy group headquartered in Birmingham.

“We were told the required matching funds from the state weren’t going to be available,” Lewis said. “So it is likely the site won’t be listed, which was probably our best chance to get the contamination in the northern Birmingham communities cleaned up.” The area includes North Birmingham, Collegeville, Harriman Park and Fairmont neighborhoods, as well as part of Five Mile Creek and Harriman Park ditch.

LeFleur, despite his objection to the number of complaints filed by Mullen, said he wants private citizens to take up some of the slack resulting from ADEM funding woes. He encouraged everyone to “be our eyes and ears on the ground” and report suspected violations to ADEM’s electronic complaint form, accessible through the “Contact Us” link on the homepage of its website, Alabama Department of Environmental Management.