Law and the Environment : Environmental Lawyer & Attorney : Foley Hoag Law Firm : Boston, Washington D.C.

An adjudicatory hearing decision issued by MassDEP in September just came to my attention. The decision in the case, In the Matter of Town of Plymouth, is worth reading for those of you interested in the emerging issues related to concerns over nutrients and how nutrient discharges will be regulated in groundwater or surface water discharge permits.

What caught me eye about the decision, however, wasn’t its substance, but was instead its procedural history. The Town of Plymouth first obtained a permit for the groundwater discharge from its municipal wastewater treatment plant in 2000. The Eel River Watershed Association appealed that permit. (For my out-of-state readers, such permits are appealed administratively in Massachusetts.) Dispositive motions were filed in 2003 – but were never acted on. 

Although the Recommended Final Decision by the hearing officer (which was adopted by the MassDEP Commissioner) doesn’t provide the entire history, one assumes that Plymouth timely filed a renewal application before the permit’s 2005 expiration date. It took MassDEP until 2008 to issue a permit renewal – at which time the dispositive motions in the appeal of the 2000 permit were still pending. 

Not surprisingly, the Town of Plymouth and MassDEP filed motions to dismiss the appeal of the 2000 permit as moot, once the new permit was in effect. Equally unsurprisingly, those motions were granted. To give MassDEP its due, it has worked hard in recent years to shorten the time needed to resolve adjudicatory appeals. It is noteworthy that MassDEP issued the decision dismissing the appeal of the 2008 permit within two years. Nonetheless, it is sort of chilling that the resolution of a permit appeal can extend beyond the life of the permit being challenged.

Justice delayed is…, oh, never mind.

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Sometimes, the headline writes the story. EPA’s TMDL program under the Clean Water Act has been the subject of so much litigation since its inception that EPA has a web page devoted to the status of litigation on the establishment of TMDLs.

Bringing things close to home, the Conservation Law Foundation and the Coalition for Buzzards Bay filed suit late last month, challenging implementation by MassDEP and EPA of the TMDL program for certain embayments on Cape Cod and Nantucket. (Full disclosure time – this firm represents the CBB on unrelated matters.)

The law suit claims that MassDEP erred in determining the waste load allocation, or WLA, in establishing the TMDLs for the embayments, because it failed to identify septic systems, stormwater systems, and wastewater treatment systems as point sources. (Since we also represent wastewater treatment system operators – though none that are the subject of these TMDLs – I think that, like Joe Friday, this is going to be a “Just the facts, ma’am,” post.)

With respect to stormwater systems, MassDEP determined that systems located less than 200 feet from the embayments were point sources, but that those farther away were not. The basis for this determination, according to the complaint, was that the more proximate systems in fact discharge to surface waters, whereas the more distant ones discharge to groundwater, so that there is no point source discharge to surface water. 

The complaint does not identify the basis for MassDEP’s conclusion that septic systems are not point sources, but presumably it is also based on a conclusion that the systems discharge to groundwater and thus are not point sources of surface water pollution.  

Without commenting on the merits – just the facts, ma’am – I will note that a determination that septic systems and stormwater drainage systems that discharge initially to groundwater are point sources under the CWA would have dramatic consequences for the regulation of nutrient pollution under the CWA. In situations where there are industrial sources of these pollutants, those industrial sources might be quite pleased to have someone else bear share of the burden of reductions necessary to meet the TMDL. Given the brouhaha over how state agencies would cope with permitting hundreds or thousands of new stationary sources under EPA’s Clean Air Act PSD program for GHGs, however, I cannot imagine that MassDEP – or other state environmental agencies – would eagerly assume the responsibility for permitting septic systems.

Why do I foresee more litigation in the TMDL program’s future?

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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.

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Although some of you may think that the regulatory agencies are now all climate change all the time, Massachusetts DEP has demonstrated that there is still life in some more traditional aspects of environmental regulation. MassDEP has just proposed sweeping new stormwater regulations that would go far beyond the traditional EPA model of regulating construction sites and stormwater discharges from industrial facilities.

DEP’s proposal is far too detailed for a blog post. For those interested in this issue, take a look at the client alert we issued, which hits the big issues. One big-picture item to note: There certainly seems to be something of a competition brewing between EPA and DEP regarding regulations of stormwater. 

Anyone who has at least 5 – and perhaps at least 2 – acres of impervious surface should certainly consider commenting on the regulations when they are formally issued for public comment.

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