Home Rule - "I don't think that means what you think it means."

Zion IL, City Hall. Author's Photo

The Magic Number - 25,000

After attending a number of City Council meetings, doing my research on how local government functions, and speaking with a number of people, I began to notice a couple of recurring themes.

First, an almost reflexive negative response on the part of Council members to any kind of regulatory change or ordinance amendment that might result in a very minor cost to homeowners or businesses.  Being good stewards of the public's funds is admirable, but in comparison to the millions of dollars that were doled out to patch the city budget, or to pay for the Fielder's fiasco, the adage "penny wise and pound foolish"  is totally appropriate when looking at the performance of past city councils (see my previous blog post "One Time Dollars" ).  In my opinion, this almost overt aversion to raising fees or taxes, for any reason, has placed the City government into a trap of it's own creation. Even after a number of measures taken to cut costs and services, operational costs have continued to rise, and by not raising the tax levy for a number of years, and expending all of the cash reserves to cover the gaps, the city is now behind the curve and facing a deficit of $1.6 million dollars in the next fiscal year. In their unwillingness to face the ire of taxpayers over what would be a minor increase a few years ago, they kicked the can down the road until it grew into the problem we face today. Balanced budgets require a realistic view of revenues and expenses, ignoring one in favor of the other will result in disaster.  The current impasse in Springfield is exhibit A of this truth, and Zion has placed itself in a similar bind.

Second, is what I refer to as the "our hands are tied" response when confronted by citizens upset over these changes, when there is a cost involved, or just as often when no action is taken over an issue of concern.  Nuisance ordinances, and rental property licensing were two topics that often received the "we really can't do anything, our hands are tied" response for years. Immediately followed by "If we had Home Rule, then maybe we could do something about it, but we haven't hit that 25,000 population mark, so we really can't do much." An answer which ignored the fact that home rule can be obtained by referendum, and that there are alternative avenues available to governments to deal with those issues without home rule powers.

Invoking the magic effect of Home Rule is a bit of a dodge, it's another way of deflecting criticism and justifying continued inaction on the part of government. In and of itself, Home Rule does offer another set of tools for municipalities and counties, but it is not a free pass for those governing bodies to do whatever they want in every case.

Under the Illinois Constitution, Article VII, Section 6 (a) " A County which has a chief executive officer elected by the electors of the county and any municipality which has a population of more than 25,000 are home rule units. Other municipalities may elect by referendum to become home rule units. Except as limited by this Section, a home rule unit may exercise any power and perform any function pertaining to its government and affairs including, but not limited to, the power to regulate for the protection of the public health, safety, morals and welfare; to license; to tax; and to incur debt."

Now, the interpretation of home rule powers is fairly liberal, except in any area where the State has already determined a legislative interest, or where there is a broader interest involved.  That is why in cases of Home Rule, the actions almost always are related to local taxes. Primarily alternate revenue taxes; Municipal Retailers and Service Occupation Taxes, Hotel/Motel Tax (home rule lifts the tourism promotion restriction and allows other uses for the funds), Gasoline Tax, Use Tax, Cigarette Taxes, and the ability to raise Property Taxes beyond the State imposed 5% cap, or to impose limits on the governing body to raise those taxes.

Another area where home rule is often used is in rental property regulation, and this takes us back to the "our hands are tied" theme that was often invoked.  When I was researching for my first campaign, one of the things I learned was that a Rental Property inspection and certification program was a recommendation in the city development plan that was passed in 1992. By state law an inspection program was restricted for non-home rule communities, in that the fees could not exceed the administrative costs, otherwise it would be considered a revenue generating tax, which is not allowed for under non-home rule.  In bringing up this proposal during the campaign, I would often get the "don't we need home rule to do that?" in response.

In the intervening decades the unwillingness of City government to deal with the issue of residential rental properties, unless we happened to hit that magic number of 25,000, set the stage for our current housing crises. Today, in the wake of the 2008 economic disaster, and the collapse of the housing market, Zion now has a rental to ownership ratio of 60% to 40%, which is not a healthy situation for any community.  Circumstances have finally brought the City Council around to acting on the problem by implementing a certification program starting this year.  Unfortunately, the legacy of decades of avoidance have come back to haunt them, because now the costs of implementing and administering the program is much greater than it would have been if it had been adopted when first recommended.  So, instead of an inspection program that is just part of the duties of the regular Building and Zoning department, with a moderate fee, what is being proposed is a high fee per unit ($100) that is necessary to pay for the additional staff to carry out the program now.

This is the price of avoidance, in the short term I don't doubt that doing so helped some people get re-elected a number of times, but the long term damage to the City may not be known for years.

Water Sense - a broader interest

 The incident that prompted my writing this article occurred at a recent City Council meeting during a discussion of amendments to the municipal code regarding water use conservation.  These amendments were required under the directive of the Illinois Department of Natural Resources, the agency that holds the responsibility of administrating the allocation of Lake Michigan Water to Illinois communities.  The legal basis of which is:

The a U.S. Supreme Court Decree [Wisconsin v. Illinois, 49 U.S. 48 (1980) that limits Illinois' diversion of Lake Michigan water also contains language directing Illinois to implement a water conservation program. The Level of Lake Michigan Act [615 ILCS 50] incorporates the Decree language which states that:

"all feasible means reasonably available to the State and municipalities, political subdivisions, agencies and instrumentalities shall be employed to conserve and manage the water resources of the region and the use of water therin in accordance with the best modern scientific knowledge and engineering practice." [615 ILCS 50/5]  

This is the operative judicial and statutory language that directs the Illinois Department of Natural Resources (Department) to develop and implement a water management and conservation program covering all  permittees of Lake Michigan water.

- Water Conservation and Efficiency Program Review Illinois' Fifth Report to the Compact Council and Regional Body, December 8, 2014

Water conservation of the Lake Michigan watershed isn't a small matter, water service over the long term to a growing population is a matter of the broadest interest.

In its mandate to carry out conservation measures as noted above the IDNR had set out new requirements regarding unaccounted water losses, lawn watering, and the use of Water Sense approved fixtures in new and replacement plumbing.

Water Sense fixtures are certified to save consumers up to 20% of their water costs over the lifetime of the equipment. It's similar to an EnergyStar rating on electronics. In the long term their use will be a benefit to the consumer, and to the environment.  Saving money and water are generally good things, I think most people would agree with that.

At that meeting, when the requirement for Water Sense fixtures was brought up, the specter of avoidance and the invocation of Home Rule raised their heads in a single exchange.

Commissioner McDowell (Public Safety) queried Director Ianson, of the Building and Zoning Department on how much the use of Water Sense fixtures will add to the cost of new construction, or repairs. (avoiding possible short-term pain in lieu of long-term benefits)

Director Ianson, replied that he did not know.

Commissioner McDowell then asked if Zion had Home Rule, would they be able to get out of following these directives?

I knew the answer before it left Ianson's lips. No. In this case Home Rule cannot trump State regulations, and I have to say, I was somewhat surprised that the Commissioner would even suggest using Home Rule in such a manner.

Home Rule has it's uses, if it implemented properly by a government that understands it's limitations.  Whether home rule is achieved by population or by referendum, lets hope that the City of Zion will exercise the wisdom and judgement necessary to use it successfully.

I highly recommend the work of James A. Banovetz on Home Rule issues in Illinois. In particular: Illinois Home Rule: A Case Study in Fiscal Responsibility, JRAP 32:31 (2002).

Trustee No.7 - Infrastructure

What’s the deal with infrastructure?

In the several months since my appointment to the Lake County Public Water District Board of Trustees, one topic has occupied my attention above all; the fundamental importance of civil infrastructure. 

Infrastructure consists of everything we take for granted as essential elements of our modern society; roads, bridges, electricity, flood control, dams, waste treatment, and drinking water. 

According to the “American Society of Civil Engineers 2013 Report Card For America’s Infrastructure” the national status of drinking water infrastructure rates a "D", due to the advanced age of most of the delivery systems, many of which are 100 or more years old, and nearing the end of their operational lifespan.  Just replacing pipes and mains over the next couple of decades is estimated to cost close to $1 Trillion according to the American Water Works Association.

 

Here in Illinois, it is estimated that we will need at least $15 Billion in drinking water infrastructure needs over the next 20 years. I want to emphasize this; $15 Billion, just for drinking water.

 A little research, so you don’t have to.

 

Here in Northeast Illinois we benefit from having access to Lake Michigan for the bulk of our water needs, but it is not an unlimited resource.  As part of my research into water infrastructure I have been studying the “Water 2050: Northeastern Illinois Regional Water Supply/Demand Plan” that was issued by the Chicago Metropolitan Agency for Planning in March 2010.  If you aren’t the type of person who enjoys curling up with a 200 plus page report on current water usage and the long term trends for the 11 counties that comprise the Northeast Illinois region, I wouldn’t recommend it, but there are some relevant facts that can be gleaned from this tome. 

Using data from 2005 as a baseline, the report projects three supply/demand scenarios:

1.    Current Trend (usage remains at current levels, increased by population growth).

2.    Less Resource Intensive (usage is moderated by conservation and “true-cost” pricing).

3.    More Resource Intensive (usage is increased to a level at or above available supply).

 

There are five water use sectors to be considered in any supply/demand scenario:

1.    Public Supply

2.    Power Generation

3.    Industrial and Commercial

4.    Agricultural and Irrigation

5.    Domestic Self-Supply 

The annual average per-capita usage per day is 169.3 gallons, for the region the average is 1,408.3 million gallons per day (mgd).  

The source of all this water can be broken down as follows; 69% from Lake Michigan, 17% from groundwater (wells), and 14% from rivers.

As fortunate as we are to have such an abundance of fresh water so readily available, we should keep in mind this is not a static condition. 

 The report outlines a projected population growth of 38% over the 45 years between 2005 and 2050.  The Less Resource Intensive scenario keeps the growth in water demand down to 7.24% over that period of time, but under the Current Trend that demand raises to 36%, and the More Resource Intensive increases demand to 64% above current usage. 

If you want an example of a water resource over-used to the point of its demise, you only have to look at the Colorado River, which has been diverted so much that it no longer flows to the Gulf of California.  The image of Lake Michigan reduced to a plain of cracked dry mud surrounding a shallow shadow of its former glory may seem far-fetched, but it isn’t completely out of the realm of possibility. 

Closer to home, communities in western Lake County that rely on groundwater , are already discovering their limitations, and have started to consider joining up with existing water districts that supply Lake Michigan water.  The biggest roadblock to making the switch is the financial costs that their residents would have to bear to put the infrastructure in place.  Eventually, a tipping point will be reached where the need for reliable and safe water service will (probably) overtake the financial concerns.

In short, if we don’t take common sense steps to use our water resources efficiently, the long term costs both financially and environmentally will be staggering.

One of those steps is to ensure our water infrastructure is well maintained and upgraded as needed. 

Littoral Drift and the Water Intake Pipe 

Littoral transport has been defined as the movement of material along the shore in the littoral zone by waves and currents. The material thus transported is referred to as the littoral drift. The littoral drift originates from beach material, being picked up by the water and transported along the shore and deposited in another location.  Shore erosion, littoral transport, and deposition of drift are all factors in the littoral process. – from the abstract of the report; Littoral Transport in the Great Lakes, by Dr. L. Bajorunas, U.S. Lake Survey, Corps of Engineers (1960). 

One of the great things I have discovered since deciding to run for office, and engaging in public service, is the many opportunities to learn about something new.   After I sat in on my first meeting at the Water District, Don White, the Operations Manager took me for a tour of the Water Filtration Plant.  At the end, he pulled out a set of engineering drawings that diagrammed the water intake pipe.  He explained that the intake pipe extends approximately 3000 feet out on the lake bed, and had been covered by four feet of sand.   

But, in the years since the construction of the North Point Marina at Winthrop Harbor, most of the sand has eroded away, exposing and undermining large sections of the pipe, apparently due to the marina interrupting the natural flow of the littoral drift. In effect the break walls surrounding the marina are keeping sand from being deposited on the lakeshore to the south, resulting in greater beach erosion, and thus exposing the water intake pipe.  This is how I first learned the importance of littoral drift in coastal engineering projects.   

How important is illustrated in a recent announcement by Governor Quinn, of a $1.3 million dollar project to protect the shoreline at Illinois Beach State Park, due to the extensive erosion just south of the North Point Marina. This includes the area where the water intake pipe is located.  Here is a relevant quote from the story about the announcement that appeared in the Lake County News-Sun on January 29, 2014; “The problems on the shoreline of the Adeline Geo-Karis Illinois Beach State Park have been ongoing ever since North Point Marina and another marina just into Wisconsin began trapping the natural movement of sand south along the shoreline.”   

In 2013, the Lake County Public Water District commissioned an inspection of the Intake Pipe.  A diver examined the length of the pipe from the intake cones, back to the shoreline.  The resulting report notes that there are sections of the pipe, especially on the southern side, where the lake bed has definitely eroded; in some instances the drop-off extends to depths over a dozen feet. 
 

So, we know we have a problem, how do we fix it?

Introduction to “The Bent”

 

To protect the pipe, the Water District has undertaken a project to install a system of “bent clamp supports” which are designed to secure the exposed sections of the pipe to the lake bed independent of the level of the surrounding sand.  Each “bent” is a large steel clamp that is secured around the outside of the pipe.  On either side of the clamp is a channel through which a steel piling is inserted. Each piling is driven down until it hits hard pan under the lake bed, the excess portion of the pilings are then cut flush with the top of the clamp, and the whole assembly is then secured.  Each bent can support 32 feet of pipe, which, if you do the math, gives you a total of 93 bents to cover the entire 3000 feet.

 

Photo of an open bent to be deployed.

The long-term goal is to place bents along the entire length of the pipe, as needed, and once they are in place, they are expected to last 50 or more years. The short-term goal last year was to install six of the bents in the most critical areas.  I say that it was the goal, because there is another facet of infrastructure that often isn’t considered by the casual observer; obtaining permits.

 

Hey, have you got a permit for that? 
 

In an extensive examination of the Obama Administration’s $800 billion dollar stimulus, and it’s often unrecognized successes; Michael Grunwald’s book “The New New Deal, The Hidden Story of Change in the Obama Era”, also describes one of the biggest hurdles, that a “shovel-ready” project is a lot harder to get underway than you might think. 

In the case of our water intake project, the hurdles consist of getting approvals from various agencies to conduct the necessary work in Lake Michigan.  These are the; U.S. Army Corps of Engineers (COE), Illinois Department of Natural Resources (IDNR), and the Illinois Environmental Protection Agency (IEPA).

 

When I sat down for my first official meeting with the Water District Board in July of 2013, the hope was to complete the permit process soon enough to allow the contractor time to install three of the bents before the end of the season when the coming winter weather would put a halt to any underwater work on the lake.

 
The district had submitted a request for a ten-year permit, to the IDNR, which had filed for a 30 day public comment period regarding the request, scheduled to conclude on the 26^th of July.  At the time, the IEPA had not made any substantial comment on the request.  Since that meeting, the IDNR completed its comment period, the COE determined it needed its own comment period, and the IEPA included another comment period. All of which meant, that 2013 ended without obtaining the permit, and none of the projected work had been done.  But, that wasn’t the last hurdle, because after the IEPA comment period completed, someone there took a look at the file and determined that yet another requirement had to be met before they could sign off on the project.  Sediment and water samples had to be collected from the site, and sent to a lab for analysis to determine what kind of contaminants might be released from the material that would be moved in order to place the bent around the pipe. If the quantities are considered hazardous, then the contractor would be required to place the disturbed material in barrels, which would be transported to an inland waste disposal facility.

At the time of this writing, in March 2014, the District is awaiting the lab results, and hopefully will finally receive the final approval for its permit, almost a year since beginning the process.

Looking at the bureaucratic labyrinth it is very easy to get frustrated, you have to wonder how anything can get done, and if we are going to effectively tackle that $15 billion in water infrastructure we better figure out some ways to streamline the process. But, we shouldn’t do so in a way that puts our natural resources at risk. Ask the citizens of West Virginia who had their entire water supply contaminated if they would prefer a little more environmental regulation or not.

In the end, despite all the hurdles, I believe that our little infrastructure project will move forward, and I will do my small part to make sure that it is successful.

Final Thoughts

Our society, our economy, our very civilization depends upon a network of interdependent systems, many of which are taken so much for granted that they are essentially invisible to our day-to-day consciousness, until they fail.

Highways, railroads, electric grids, sanitation, and water systems aren’t as glamorous as a skyscraper or a sports stadium but they touch us, and support us in our daily lives beyond mere monetary measure. It is our responsibility to ourselves and the generations that follow that we not only maintain them, but make them better; an investment in our posterity. So that one day, they will look back on what we accomplished and say that they truly stand on the shoulders of giants.

 

Postscript, April 30th

 

Earlier this week, I received word that the Illinois EPA has issued the permit for the intake pipe project, and the paperwork will be finalized with the Corps of Engineers.