NPDES Delegation Push Fails

The Baker Administration is pushing for the Mass Department of Environmental Protection to issue water pollution discharge permits, rather than using the US Environmental Protection Agency, which typically issues them.

By Ian Cooke, Executive Director, July 2016—The Federal Clean Water Act is widely regarded as one of the most effective laws ever enacted—prohibiting discharges that degrade the “physical, chemical and biological integrity” of waterways here in Massachusetts and across the country since 1972. Over the years, the health of the Neponset River and the quality of life and economies of communities along its shores have benefited mightily from this piece of legislation, transforming our river from an open sewer to one that meets swimmable water quality standards in many areas today.

Swimming at Tenean Beach in the Neponset EstuaryIn Massachusetts, it is the US Environmental Protection Agency that takes the lead in issuing water pollution discharge permits. The Baker Administration has recently made a very concerted push to take over this responsibility from EPA and have state regulators at the Mass Department of Environmental Protection (MassDEP) take the lead, through a process known as “primacy” or “delegation.”

This new initiative, would have required the state Legislature to provide more than $4.7 million in new funding for MassDEP, to replace the work currently being done by EPA at no cost to the state budget, though the actual cost is likely significantly more.

The Governor’s proposal was strongly opposed by a coalition of watershed and environmental groups from across the state, including the Neponset River Watershed Association, who actively lobbied against the measure under the leadership of the Mass Rivers Alliance.

Earlier this month, the Legislature declined to act on the Governor’s proposed legislation during the current session, however, we expect the Administration to bring it back in the fall and continue pushing hard for the new program.

Fix it First: the MassDEP Funding Crisis

The fact that the Baker Administration wants MassDEP to take on the cost of this major new responsibility at a time when they have been aggressively cutting the agency’s budget, essentially turning away “free” federal funds, was a red flag for opponents.

The MassDEP has had its budget and staff slashed repeatedly over the last decade, by more than 30%, with further deep cuts proposed by the Governor for the coming fiscal year. The cuts have left MassDEP unable to meet its existing obligations under the Clean Water Act (see below) and prompted the agency to cut back on many other critical public health and safety programs such as hazardous waste site inspections. All of which begs the question: if we can afford an extra $6 million for MassDEP, why not use it to restore the critical public health and environmental protection programs that have been cut in recent years instead?

The Incredible Shrinking Cost of Permitting

The steady shrinkage of the estimated cost of taking over water pollution permitting from the EPA has been another cause for concern among opponents.

In 2013, the Patrick Administration examined the concept and estimated that it would cost the state $10 million per year. A new estimate developed in 2015 by the Baker Administration cut in half the estimated number of staff required to run the program and reduced the estimated cost to $7.5 million. Then only a few months later, they reduced the estimate again, calling for just $3.2 million for new MassDEP staff, plus $1.5 million for outside consultants. All of which calls into question the true cost of running the permitting program.

Permit “Flexibility”

As justification for bringing this proposal forward, the Baker Administration has emphasized the need to provide greater “flexibility” for permittees who discharge pollution to the Commonwealth’s waterways. While representatives of MassDEP seem sincere in arguing that they can reduce permittee costs without compromising environmental protection, there seems to be a consensus between environmental advocates and industry representatives about what “flexibility” will mean for the Commonwealth’s waterways.

outfallOne of the primary reasons environmental advocates are skeptical of the proposal is that they have seen MassDEP and EPA at odds over many controversial pollution discharge permits in recent years, with EPA pressing for science-based permits that will result in meeting water quality standards, and MassDEP pressing hard for less restrictive permit conditions that will allow higher levels of pollution to continue for longer periods of time.

Coverage of the issue in industry trade publications suggests that environmentalists are right to be skeptical, with articles using terms such as “more lenient” to describe they way permittees expect to be treated when and if MassDEP takes over. Some dischargers have also been quite blunt in expressing enthusiasm for the fact the MassDEP will be more vulnerable to pressure from state legislators to weaken permits than EPA, which is somewhat insulated from the state political process.


MassDEP Fails to Meet Existing Water Permitting Obligations

In Massachusetts (as is often the case) we have an unusual approach to the water pollution discharge permitting through a choreographed partnership between the EPA and the MassDEP. Right now, the system is SUPPOSED to work something like this:

Step 1: MassDEP writes and periodically updates water quality standards based on the best available science and assigns each waterway in the state a water quality goal. In the case of the Neponset our streams are assigned to Class B or Class SB, affectionately known as “fishable-swimmable” water quality standards.

Step 2: Next MassDEP goes out and tests the state’s waterways for pollution and reports back to the EPA every three years on which streams meet the standards and which don’t.

Step 3: For streams and ponds that don’t meet standards, MassDEP writes a waterbody-specific cleanup plan for the pollutants that are causing it to violate standards. These plans (which, like everything else associated with the Clean Water Act, come with tidal wave of acronyms) are called Total Maximum Daily Loads or TMDLs.

Step 4: Based on the results of Steps 1, 2 and 3, the US EPA writes discharge permits for factories, sewer treatment plants, and stormwater discharge pipes, and includes conditions in those permits that are designed to ensure that the “receiving water” meets its water quality standards. While EPA does almost all the work on writing permits, MassDEP usually “co-issues” the EPA permits under state law.

Step 5: EPA and MassDEP inspect facilities to make sure they are complying with their permits.

Step 6: When permittees fail to comply with their permits, EPA, MassDEP and sometime private citizens take enforcement action against polluters.

MassDEP plays a key role in this process implementing five of the six steps. The challenge faced by Massachusetts waterways and EPA alike is that because of budget cuts, MassDEP now does little if anything to implement many of these tasks.

The Massachusetts water quality standards and the Mass Stormwater Handbook have not been meaningfully updated to reflect the evolving science in this area for many years.

Furthermore MassDEP is years behind on completing its water quality monitoring work. The situation in the Neponset Watershed illustrates the challenge: the most recent water quality data collected by MassDEP in the Neponset River Watershed is now seven years old, but MassDEP hasn’t yet managed to post it publicly and doesn’t expect to do so for another two years.

The most recent sampling data collected and published by MassDEP for the Neponset River Watershed was gathered in 1994, 22 years ago. Ten of our waterways have never been assessed.

Another one of MassDEP’s existing but unfulfilled obligations is to develop site specific pollution cleanup plans, also known as TMDLs, for waterways that do not meet their assigned water quality standards. These plans are intended to guide actions by those discharging to our waterways, but MassDEP is arguably even further behind in meeting its TMDL development obligations than it is in water quality monitoring.

MassDEP has a backlog of 28 incomplete TMDLs just in the Neponset Watershed, which is a tiny fraction of the state as a whole, and most overdue TMDLs in the Neponset have been waiting for action by MassDEP since 1997.

Next Steps

While the Legislature has declined to act on the Governor’s proposal to take over water pollution discharge permitting during the current session, which runs for two more weeks, we fully expect the Administration to file a new proposal this fall and to advocate for it just as vigorously they as they did over the last few months.

Unless there is some significant revision to the Governor’s proposal, I expect the coalition of environmental groups who opposed it earlier this year, including the Neponset River Watershed Association, to oppose it even more vigorously than before.

In the meantime, we will keep you updated on how this important issue continues to evolve, as well as how and when you can help by reaching out to your own legislators on behalf of the Commonwealth’s rivers and streams.

2 responses to “NPDES Delegation Push Fails”

  1. Irmgard Behlau says:

    Thank you for writing this Article clearly describing the differences between the duties of the EPA and MassDEP. It also suggests there has been a gross underfunding of MassDEP commitments.
    Thank you once again.

    • Ian Cooke says:

      Thanks Imgard! When you start talking about this “regulatory stuff” you quickly get into the weeds and most folks lose interest, but in this case the details really matter!

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