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such as burdensome costs and requirements, a lack of funding, no cost-benefit-analysis, a ‘one-size-fits-all’ approach, outdated science, and the regulation of ‘flow.’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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MCWRS Files Petition in First Circuit Court Appealing Final MA MS4 General Permit

The Massachusetts Coalition for Water Resources Stewardship (MCWRS) announced today that it has jointly filed a Petition for Review of the Final Massachusetts Small Municipal Separate Storm Sewer General Permit (MS4) in the First Circuit of the United States Court of Appeals in Boston with the Town of Franklin. The Final Permit was issued by the U.S. Environmental Protection Agency (EPA), Region 1, and co-signed by the Massachusetts Department of Environmental Protection, on April 4, 2016, and takes effect on July 1, 2017. The MS4 permit regulates municipal stormwater discharges under the federal Clean Water Act (CWA) through the National Pollutant Discharge Elimination System (NPDES) program.

At issue in the appeal is the standard EPA seeks to apply to discharges from municipal storm sewers, which collect rainfall from streets, buildings, and developed areas. MCWRS, Franklin, and numerous municipalities supporting the appeal contend that certain permit conditions exceed EPA’s authority under the CWA. They go far beyond what Congress ever intended EPA might do to regulate municipal stormwater discharges. The MS4 permit applies to over 260 Massachusetts communities. The costs for communities to meet these new water quality standards vary widely, with independent estimates ranging from $260,000 to $750,000 annually for some medium-sized municipalities.

Permits issued under the NPDES program are first released as a draft subject to a public comment period.  The Massachusetts MS4 Draft General Permit generated over 1,300 individual comments by more than 150 entities, many of them municipalities impacted by the MS4 permit. EPA made some revisions in the final permit, but did not adequately address key issues raised by many municipal interests. The only process to address contentious matters contained in a final NPDES permit is through the courts. MCWRS and the Town of Franklin have thus filed the Petition for Review of the MS4 permit with the First Circuit Court with the expectation that the Court’s interpretation of the municipal stormwater provisions of the CWA will be consistent with that of Massachusetts’ municipalities. The use of the courts to challenge EPA actions is a step frequently employed by environmental advocacy groups in Massachusetts and across the country. This action by MCWRS and the Town of Franklin is very much in keeping with that practice.

The Massachusetts Coalition for Water Resources Stewardship is a coalition of municipalities; public agencies that transport and treat drinking water, wastewater, and stormwater; quasi-government agencies, and private and nonprofit organizations. Members are committed to the principles of stewardship and environmental, social, and fiscal responsibility in protecting water resources and public health. The Coalition promotes using scientifically based, sustainable approaches to realize environmental and community goals. For more information, please visit the Coalition’s website at www.mcwrs.org or contact Kate Barrett at 617-357-5772 or kbarrett@mcwrs.org.

Worcester Protects Quinapoxet Reservoir with Land Preservation

The City of Worcester joined forces with the Massachusetts Audubon Society (Mass Audubon), the Massachusetts Department of Conservation and Recreation, and the Town of Princeton, to secure a conservation and watershed preservation restriction on the 124-acre Fieldstone Farm. Located in Princeton, the land drains to Worcester’s Quinapoxet Reservoir. The $2.84 million purchase will permanently protect the site. Worcester invested $100,000 from its Water Enterprise Land Acquisition Account and the State contributed $820,000 for the jointly held restriction. The land will be held in fee by the Town of Princeton. According to The Landmark, an additional $700,000 in private donations were contributed, though additional fundraising is still needed. The investment will prevent future development that would impact the water quality of Cobb Brook, which leads to the reservoir. Limited recreational use of the site, including trails, will be allowed.

Another 60-acre site will be sold to Hubbard’s Farm in Princeton, with permanent restrictions from Mass Audubon. Commissioner Paul Moosey, Worcester Department of Public Works and Parks (DPW&P), noted that “by partnering with other agencies and organizations, the city will be able to gain more watershed protection for its drinking water at a much lower cost.” Land preservation is part of an integrated approach to protecting and managing public water supplies. It can help reduce the burden on drinking water treatment plants by lowering the risk of contamination. The Coalition applauds Worcester for its well-rounded approach to addressing water resources in a way that is both environmentally friendly and fiscally responsible, and the City’s partners for their cooperation and support.

Help MCWRS Support MassDEP’s Authorization for NPDES Program Management by June 30!

This week, MCWRS submitted a comment letter to the Co-Chairs of the Joint Committee on Environment, Natural Resources and Agriculture (JENRA) expressing our support of Bill H.4254 – An Act to enable the Commonwealth’s administration of the Massachusetts Pollution Discharge Elimination System. This legislation would begin the process to have the Massachusetts Department of Environmental Protection (MassDEP) seek delegation of the National Pollutant Discharge Elimination System (NPDES) permitting authority for the Commonwealth. Currently, the US Environmental Protection Agency (EPA) administers the program in Massachusetts, while 46 (soon to be 47) other states manage their own NPDES permitting. We have been tracking this legislation and advocating for primacy in recent blog posts and since our 2007 White Paper. Our letter includes references to our Primacy Position Paper and testimony from MCWRS President and Chairman, Phil Guerin, at the May 17 legislative hearing.

As of yesterday morning, JENRA has filed an extension order with a new reporting date of Thursday, June 30. That means there’s still time for all MCWRS members and other supporters of Bill H.4254 to fill in the blanks in this template letter and submit it to the JENRA Committee Co-Chairs and their Representatives or Senators! Find contact information, including email addresses, for your legislators and the JENRA Committee members.

Both the Coalition’s and the template letters highlight some key points we hope our elected officials consider before they cast their votes:

  • Voting to delegate authority to MassDEP does not remove EPA from the permit process.
  • MassDEP already has delegated authority for drinking water, air quality, and other programs that it is managing with great success.
  • EPA’s one-size-fits-all approach to permitting does not consider location-specific environmental, social, and economic factors, whereas MassDEP is more familiar and in tune with the various regions, watersheds, and ecosystems in Massachusetts. Its water quality standards would be more site-specific and based on current scientific knowledge.
  • MassDEP management of the program would provide greater opportunity for municipalities to successfully implement integrated water resources planning and address multiple regulatory requirements and community infrastructure needs, all while maintaining affordable water and sewer rates.
  • Having MassDEP manage the program would ensure consistency with other state-run environmental initiatives.
  • MassDEP Commissioner Martin Suuberg has identified the resources needed to successfully run the NPDES program and has committed $4.7 million annually to do so.
  • MassDEP will manage NPDES permitting much more effectively and efficiently and produce a balanced program that protects the environment in an economically sustainable way.

We encourage our members to share a copy of their comments. This is a critically important opportunity for MCWRS to demonstrate our strength in numbers and leverage our impact!

MassDEP Seeks to Take Over NPDES Permit Program from EPA

It’s finally happened! The Massachusetts Coalition for Water Resources Stewardship (MCWRS) is thrilled to announce that the Massachusetts Department of Environmental Protection (MassDEP) plans to take over responsibility for administering the National Pollutant Discharge Elimination System (NPDES) Permit program from the U.S. Environmental Protection Agency (EPA) Region 1. Everyone benefits from clean water, and the Coalition is excited to share that Governor Baker intends to fund administration of the program through the State budget! Massachusetts is one of only three states in the nation that does not manage its NPDES program.

The Coalition has been advocating for quite some time for this change. Board members have discussed with Administration staff the details of how the program could best be administered to protect both the environment and communities’ interests. In fact, MCWRS founding member, Tom Walsh (formerly of the Upper Blackstone Water Pollution Abatement District), sits on MassDEP’s NPDES primacy advisory committee.

“Having MassDEP manage the NPDES program will benefit communities by providing a perspective that is more attune to local issues and is more consistent with state goals and values,” MCWRS President Phil Guerin explained. “A single agency to oversee all water-related regulatory matters also provides greater opportunity for municipalities to successfully implement integrated water resources planning and address multiple regulatory requirements and community infrastructure needs, all while maintaining affordable water and sewer rates.”

On April 29, Governor Baker filed the legislation, An Act to Enable the Commonwealth’s Administration of the Massachusetts Pollutant Discharge Elimination System, that if passed, will be part of a submittal made by MassDEP to EPA Region 1. “As part of its application, MassDEP will be required to demonstrate that it has developed an effective plan for managing the NPDES program, that its legal authorities are sufficient to meet federal requirements and that a plan for funding is in place.  While the formal submission cannot be made until the Baker-Polito Administration’s proposal receives legislative approval, MassDEP is continuing to consult with EPA on delegation requirements and will develop other elements of the plan for submittal.”

The Coalition applauds Governor Charlie Baker, Lieutenant Governor Karyn Polito, Energy & Environmental Affairs Secretary Matt Beaton, and MassDEP Commissioner Marty Suuberg for recognizing the critical need for this change. The full press release is available on the Governor’s website: http://1.usa.gov/23dWmR0

MassDEP Announces Grant to Support Cape Cod Water Quality Initiative

On March 30, 2016, the Baker-Polito Administration awarded a $950,000 grant to assist Barnstable County and the Cape Cod Commission with implementing a regional water quality management plan. The Water Quality Management Plan, also called the Section 208 Plan, was certified by Governor Charlie Baker last June and approved by EPA in August. The funding will provide new planning tools, technical assistance, and monitoring to help Cape Cod communities make “local decisions about potential solutions.”

The Section 208 Plan update is a result of a 2011 Conservation Law Foundation lawsuit, and the Commission was designated in 2013 to perform the updating. The focus is on removing nutrients from local waterways. The grant includes “the first installment of a recurring, four-year $250,000 matching grant for water quality monitoring and a one-time grant of $700,000 for technical assistance for Cape communities working to meet a June 30 deadline to develop watershed reports required by the 208 Plan,” as reported by the Cape Cod Times. The Commission will need to come up with the matching funds for monitoring. The Coalition is pleased to see MassDEP providing the necessary funds for communities to implement water quality plans, and hopes additional grants will be awarded to other communities that are struggling to meet increasing regulatory demands with dwindling resources.

“The 208 Plan recognizes that the best way to meet the significant environmental challenge facing Cape Cod is to rely on local decision-making,” said Lieutenant Governor Karyn Polito in a press release.  She added, “This funding will help these communities design cost-effective solutions that work for them.” Join us at the MCWRS’s 7th Annual Water Water Resources Strategies Symposium to hear more from Lieutenant Governor Polito when she delivers the keynote address.

In Our Opinion: Flint’s Lead Issue Spotlights National Reality

The news story of Flint, Michigan’s lead contamination spotlights a number of issues that impact MCWRS members and municipalities across the nation. The facts behind the Flint situation are hard to come by. What is clear, however, is that a failure by one water utility to meet its obligations to provide safe drinking water to its customers can taint the entire water supply profession. The media activity surrounding Flint has muddied the waters for us all and raises the specter that water supply professionals cannot be trusted and that public officials put cost savings above public health.

Certainly, Flint officials did a disservice to their water customers by not explaining what was going on. It appears they have a corrosion control problem that was not addressed when they decided to switch to a different water source. Without a doubt, there are also water infrastructure issues in Flint, namely lead services that need to be more appropriately dealt with. These same issues potentially impact water utilities across the nation. But, let’s rise above the current fray in Flint and always remember how costs affect communities’ abilities to keep pace with the demands of new regulations, let alone ongoing maintenance.

As the New York Times reported, “the country has invested far too little in its public works, as governments at all levels have become obsessed with cutting spending.” While the call for more federal and state financial assistance is proper and necessary, the demand for more regulation is exactly the opposite of what is needed. One of the reasons that municipalities are looking to cut costs is the enormous and never-ending regulatory burden. Some regulations and permit conditions are necessary to protect public health or to make meaningful environmental improvements. But today, far too many produce little or no benefit and create costs that are astronomical. In 2012, the MA Water Infrastructure Finance Commission’s report identified a $21.4 billion funding gap over the next 20 years for water and wastewater systems, as cited in this interesting Boston Globe opinion piece.

Should a community spend $120 million on wastewater treatment plant upgrades in order to reduce its phosphorus level from 0.2 mg/l to 0.1 mg/l when the result of the investment is not certain to make appreciable environmental improvements? Or, should it spend an equivalent sum replacing old sewer and water pipes whose imminent failure may cause environmental or public health catastrophes? That is the dilemma facing communities because they do not and will not have the resources to do both!

The Coalition urges federal and state governments to heed the lessons of Flint and provide more funding for water infrastructure to communities and their ratepayers and to restructure regulations and permits so that local resources can be expended on the most critical local priorities. What are your thoughts on lead contamination in Flint? Let us know what you think by emailing info@mcwrs.org.