EBC’s Water Resources Program Highlights Complex Debate

On November 3, the Environmental Business Council (EBC) of New England hosted a Water Resources Program on the “Ongoing Saga of the Massachusetts Small MS4 Stormwater General Permit – What’s Next?” Thelma Murphy from the U.S. Environmental Protection Agency (EPA) Region 1 and Doug Fine from the Massachusetts Department of Environmental Protection (MassDEP) presented an overview of the permit and their agencies’ roles in its implementation. Mr. Fine said that MassDEP understands municipalities concerns, and co-signed the Final MS4 General Permit with EPA so it can help with outreach and resources assistance for permittees. He noted that MassDEP has limited funding to assist communities beyond providing public education materials. For additional support, Mr. Fine suggested municipalities join or collaborate with regional stormwater coalitions to share resources and tools.

MCWRS’s President Phil Guerin represented the Coalition on the municipalities panel along with Brutus Cantoreggi from the Town of Franklin, Rich Niles from Amec Foster Wheeler, and Michael Leon from Nutter, McClennen & Fish. The municipalities panel highlighted permit concerns such as burdensome costs and requirements, a lack of funding, no cost-benefit-analysis, a ‘one-size-fits-all’ approach, outdated science, and the regulation of ‘flow.’ Citing the Town of Franklin’s Public Works experience, Mr. Cantoreggi explained that the Town would need to spend half its annual budget just to comply with a phosphorous TMDL. Under EPA’s conditions, municipalities are expected to fix ‘300 years of issues in 20 years.’ As a consultant, Mr. Leon has seen numerous communities struggle with the ‘one-size-fits-all’ permit and addressing even the ‘simple’ tasks, such as eliminating illicit discharges. Often, investigating one illicit discharge to a pipe could uncover 20-30 illegal connections requiring more resources to resolve the issue.

MCWRS President Phil Guerin, Town of Franklin DPW Director Brutus Catoreggi, Michael Leon from Nutter, McClennen & Fish, and Rich Niles from Amec Foster Wheeler present on EBC's Municipalities Panel.

Hamilton Hackney of Greenberg Traurig introduces EBC’s Municipalities Panel, which included MCWRS President Phil Guerin, Town of Franklin DPW Director Brutus Catoreggi, Michael Leon from Nutter, McClennen & Fish, and Rich Niles from Amec Foster Wheeler.

Tom Ward, Vice President of Legal Advocacy, discussed the National Association of Home Builders (NAHB) perspective on the MS4 Permit. NAHB’s primary objections include the conversion of a post-construction guidance document into a regulation without appropriate rule-making and EPA’s regulation of rooftops, roadways, and flow. Like Mr. Cantoreggi, Mr. Ward noted that these prescriptive regulations severely thwart a community’s ability to attract development. Mr. Ward argued that EPA is overreaching in its authority by regulating flow and pollution, rather than navigable waters as prescribed by the Clean Water Act. John Hall from the Center for Regulatory Reasonableness (CRR) closed out the program with the Center’s interpretation of the permit. CRR filed an appeal of the permit on behalf of five out-of-state municipalities that fear they will receive a similarly rigid permit. Mr. Hall argued against the permit’s outdated science (particularly dissolved oxygen and phosphorous limits), unattainable limits (such as TMDL and water quality standards), and unrealistic implementation schedule to reach “pre-European conditions.” Each presenter from the municipalities panel, Mr. Ward, and Mr. Hall specifically noted the added struggle communities and permittees face when third-parties file lawsuits, which frequently occurs under these conditions.

The Conservation Law Foundation (CLF) was scheduled to present, but unfortunately, no one was able to attend the program, leaving its side of the debate unargued. Though there was a lively discussion as to the accuracy of municipal claims of ‘outdated science’ by the Charles River Watershed Association (CRWA), the environmental advocacy groups were generally unable to substantiate their claims. CRWA said the Charles River is an economic driver for abutting communities and that people are willing to pay for good water quality. While the opportunity for a more well-rounded discussion and debate was missed with the absence of CLF, we applaud EBC for bringing together a diverse audience for an otherwise successful program on this timely and crucial topic. The Coalition appreciated the opportunity to voice its opinion and advocate for municipalities interests in this ongoing debate. Visit MCWRS’s website to learn more about the Final MS4 General Permit and the Coalition’s joint appeal of the permit with the Town of Franklin.

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