Permit to be Issued Following Delays, Postponement, Lawsuits

Clocking in at a decade behind schedule, the New England office of the US Environmental Protection Agency (EPA) has pledged to finally issue an updated stormwater permit for Massachusetts on July 1.

The updated permit was due in 2008, but was delayed during many years of contentious public review of the draft language. The permit was finalized in 2016 and was scheduled to take effect in July 2017. But just one day before it was set to kick in last year, the EPA postponed it for 12  months, without following established procedures.

A lawsuit followed objecting to the delay, brought by the Massachusetts Rivers Alliance on behalf of river protection groups across the state, including the Neponset River Watershed Association. Ironically, one year later, there is still no decision in the lawsuit, but it appears that the suit encouraged the EPA to avoid any further delay in issuing the permit for fear that a loss would be precedent setting.

The permit, which is known as the “MS4” or Municipal Separate Storm Sewer System permit, authorizes smaller cities and towns to discharge polluted stormwater to local rivers, lakes and the ocean. The permit applies to all Neponset communities except Boston. The updated permit is significantly more strict than the earlier version it replaces, which was issued in 2003.

The major provisions of the new permit include requiring communities to demonstrate that there are no raw sewage cross-connections finding their way into drains that lead to the river, to regulate discharge of polluted runnoff by private developers, and to meet minimum standards for maintaining locally owned drain infrastructure such as sweeping streets and preventing spills.

The permit applies to some 260 of the 351 cities and towns in Massachusetts. Three of the affected towns, as well as a Washington DC based organization called the Coalition for Regulatory Reasonableness have appealed the substance of the permit, claiming it is too strict and EPA lacks the authority to issue it.

On the other side, the Conservation Law Foundation and the Charles River Watershed Association, have appealed saying that the permit violates the law because it allows too much pollution to continue for too long. These lawsuits over the substance of the permit are separate from the suit brought by the Massachusetts Rivers Alliance which focused only on the last minute delay in issuing the permit last year. The lawsuits over the substance of the lawsuit will continue even as the new permit takes effect on July 1.

The Neponset Watershed Association agrees that if we are ultimately to succeed in restoring the Neponset River to fishable/swimmable standards as required by federal law, the next generation of the permit (due in 2022) will likely need to have additional requirements. However, the version now set to take effect July 1 represents an important step forward, and we are looking ahead to assist our communities in meeting these new requirements as soon as possible so that local residents can begin to enjoy the benefits of cleaner water for recreation, drinking, and fish and wildlife sooner rather than later.

Ian Cooke, Executive Director, June 2018

One response to “Permit to be Issued Following Delays, Postponement, Lawsuits”

  1. mary adelstein says:

    Thank you for this reasoned and comprehensible history of MS4 — especially your commonsense conclusions.

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