Earlier this week, EPA announced release of a draft North Coastal Small Municipal Separate Storm Sewer System General Permit. Once finalized, the General Permit will affect 84 communities in eastern Massachusetts. EPA has noted that similar MS4 General Permits will also be rolled out for the rest of the Commonwealth.
The draft General Permit is only the latest salvo in an ongoing debate among EPA, MassDEP, municipalities and the regulated community regarding how to control stormwater discharges. The background to all of this is the increasing attention being given to the TMDL process and NGO efforts, including litigation, to ensure that EPA and the state actually make the TMDL process work.
As followers of this blog know, in November 2008, MassDEP released an extremely ambitious set of draft stormwater regulations. I think it is fair – and apt – to say that MassDEP was deluged with comments. While MassDEP may not accept this characterization, the length of time which has passed without issuance of final MassDEP regulations suggests that MassDEP may in fact have, as requested by the regulated community, gone back to the drawing board.
One of the issues raised by the regulated community in commenting on the MassDEP proposal was precisely that, because EPA regulates MS4s, it would make sense for the federal MS4 program, rather than a new state program, to be the bedrock for stormwater regulation. One big question left hanging with today’s announcement by EPA will be the extent, if any, to which MassDEP now builds on the MS4 permit, rather than creating its own program from scratch.
Since the regulated community to some extent asked for this permit, I can’t complain about the concept, but make no mistake, the MS4 General Permit will impose significant changes on municipalities and those changes will absolutely trickle down to the regulated entities.
The draft permit is 57 pages, not including appendices, so it is far too long to summarize here, but I will note some highlights:
Municipalities within the Charles River Watershed subject to approved TMDLs will have to develop specific Phosphorus Control Plans to demonstrate how they will attain the phosphorus reductions required.
New and increased stormwater discharges will face stringent requirements. In some cases, such discharges will not be eligible for coverage under the General Permit, but will instead require individual permits.
Municipalities will have to reduce discharges to the Maximum Extent Practicable, or MEP, through the use of Best Management Practices.
Municipalities will be required to enhance programs to identify and eliminate illicit discharges.
Notwithstanding the existing General permit for construction sites, permittees will have to continue to develop their own construction site stormwater program.
Permittees will have to establish a program to minimize post-construction run-off by tracking the extent of impervious surfaces and imposing new requirements on new development and redevelopment.
Municipalities have already cried foul based on concerns about the cost of implementing the General Permit. Unfortunately, unless Congress amends the Clean Water Act to eliminate the TMDL program, it is difficult to see how a general permit in some form can be avoided. Indeed, as already noted, the MS4 level is probably the right place to focus stormwater reduction efforts. The question will be how efficiently the program can be implemented and whether EPA and MassDEP can harmonize their respective programs in a way that allows progress towards attaining compliance with the TMDL program in a cost-effective way.