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Stormwater Legal Challenge Brewing in Central Mass.

Aug 23, 2016

By Elaine Thompson / Telegram & Gazette Staff

{Holden Department of Public Works Director John R. Woodsmall said it will be challenging to manage the new water regulations, some of which Holden considers "unfunded mandates." T&G Staff/Christine Hochkeppel}

Some towns in Central Massachusetts are leaning toward waging a legal challenge to new federal stormwater regulations that some say are too burdensome, too costly and go far beyond what the federal Clean Water Act intends.

At issue is the Massachusetts Small Municipal Separate Storm Sewer Systems General Permit, commonly referred to as the MS4 permit, the U.S. Environmental Protection Agency issued in April. The 60-page permit - accompanied by 229 pages of appendages and nearly 600 pages of municipal comments and EPA responses - goes into effect next July. It affects more than 200 cities and towns in the state. The new permit, which took eight years to be finalized, replaces the first one that was issued in 2003. Permits are supposed to be renewed every five years.

Philip D. Guerin, president of the Massachusetts Coalition for Water Resources Stewardship, said the new permit basically requires communities to significantly change the way they have managed stormwater for a century. Infrastructure in place is for moving stormwater from streets and away from buildings.

Now, communities will have to modify their systems to include cleaning the stormwater of pollutants before it is discharged into streams, lakes, ponds and other bodies of water. The permit also limits how much stormwater they can discharge into those streams by requiring recharge to the ground as the preferred option. Mr. Guerin said the biggest cost will be associated with the required reduction of phosphorus in stormwater. That will require the construction of treatment facilities and land on which to build them. Enhanced monitoring, catch basin cleaning and street sweeping will also result in communities having to buy more equipment and hire more staff or consultants, he said.

“All of it may be well-intentioned … in a theoretical world, the right thing to do. But practically speaking, the cost is immense and the ability for cities and towns to even do it is almost incomprehensible,” said Mr. Guerin, who is also director of water and sewer operations for the city of Worcester’s Department of Public Works and Parks.

A comprehensive cost analysis of the draft permit in 2014 conducted by a group of Worcester Polytechnic Institute students determined that implementation costs could be astronomical. The study said the annual cost to implement the requirements for Millbury would be $753,173, Holden $258,790, and Southbridge $343,008. A previous study done by others indicated that the new regulations could cost some communities more than $1 million each year.

The new permit does not impact the state's two largest cities, Worcester and Boston, which operate under a separate permit because of the size of their stormwater systems.

Worcester's permit has not been changed since 1998, even though it expired in 2003. A 2008 draft with proposed stringent changes was met with stiff opposition because of extreme projected costs. An engineering consultant hired by the city concluded that it would cost Worcester $1.2 billion for full compliance over the five-year period of the permit.

In a white paper the MCWRS issued at the time, the group said it believed there were major flaws in the way the Clean Water Act was being implemented. The coalition said federal and state regulators "aggressively and unilaterally" imposed limits on wastewater discharges without regard to cost or discernible results.

Mr. Guerin said the status of when a new permit will be issued for Worcester is not known.

Regarding the new MS4 permit, Mr. Guerin said the MCWRS, which represents dozens of communities, is working with officials to see if they plan to appeal the permit. They have until the end of August to file an appeal in the First Circuit Court in Boston.

Dozens of communities, including Shrewsbury, Upton and Millbury, have already indicated they will join and help fund the appeal.

Officials in Shrewsbury and Millbury said they, like several other affected municipalities, believe the new permit is overstepping the original intent and stated purpose of the Clean Water Act.

Robert McNeil, III, Millbury’s DPW director, said under the CWA, communities must implement regulations “to the maximum extent practicable.”

“With the new permit, the EPA is essentially saying, ‘We don’t care what you think. You shall do this,' ” said Mr. McNeil. “Towns are saying this is different from what the Clean Water Act tells us to do.”

Mr. McNeil, in a letter last year to officials in the EPA’s Region 1 office in Boston, said the then-proposed requirements to be “overly prescriptive, burdensome and most likely unachievable for most communities.” Some of the reasons given include schedule of implementation constraints, significant administrative burden, and funding challenges.

Holden officials are concerned about the impacts of the new permit, but they are not considering joining the appeal.

DPW Director John R. Woodsmall said Holden is in pretty good fiscal shape to absorb some the additional costs, to a certain extent.

"Certainly some cities and towns in Central Massachusetts have budgets that are much tighter than Holden's currently is. Looking forward, I think we can manage our way. But it's not without challenges. Overall, it's still going to be a good chunk of change for us to deal with the new permit. Our opposition to a number of these requirements is that we basically look at them as unfunded mandates," he said.

EPA spokesman Dave Degan said via email last week that the new permit specifically complies with the Clean Water Act and will address a critical water quality problem in the state. He said the permit requires controls to reduce pollutant discharges to the "maximum extent practicable."

"This permit is an essential step to make our waters cleaner and ensure that people can enjoy outdoor recreation without being exposed to potentially harmful water pollution," said Mr. Degan. "This permit takes that big step, but also recognizes the implementation challenges faced by cities and towns, including funding constraints. It includes a number of measures to reduce local burdens." He said one of the measures was delaying implementation for 18 months to give communities additional time to build the implementation costs into their budget cycle. He said if a municipality does not meet the requirements of the permit, the CWA provides mechanisms to enforce those obligations.

The heart of the permit involves six minimum control measures: public education, public participation, illicit discharge detection and elimination, stormwater management, post construction stormwater management, and municipal good housekeeping. Within each category there are several different requirements and specifications about what needs to be done.

Massachusetts is one of only four states that does not administer the National Pollutant Discharge Elimination System permit system. The other states are New Hampshire, New Mexico and Idaho; Idaho is applying for that authority with the EPA. Programs administered by individual states must be as stringent as the federal regulations. The MCWRS and other groups have been advocating for the Massachusetts DEP to apply for that responsibility for several years. A bill that Gov. Charlie Baker filed to do that with $4.7 million in annual funding promised was referred to study at the end of the formal session.

Advocates say the DEP - which already has delegated authority from EPA to administer drinking water, air quality, wetlands protection, waste disposal and other environmental programs - is more familiar with the bodies of water and fiscal constraints of local communities than the federal EPA.

DEP Commissioner Martin Suuberg said the agency plans to pursue the legislation again.

"With local permitting we can have thoughtful discussions with communities about the cost as well as with the requirements and come up with solutions that work for the environment and the communities," said Mr. Suuberg.

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In 2010, There were over $116.6 million dollars of fines issued nationally with direct connection to violations of the Clean Water Act, in conjunction with the NPDES permit

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