…Oh, Boston you’re my home.

Since 1997, Red Sox Nation has celebrated home victories with the post-game anthem “Dirty Water,” the 1966 cynical paean to the Charles River and Boston Harbor.  “Well, I love that dirty water; Oh, Boston you’re my home.”

Beginning in the 1800’s, the Charles River and Boston Harbor were polluted by domestic, municipal and industrial wastes.  Raw sewage, chemical discharges, and leaching riverbank landfills turned the river into a toxic sluiceway flowing into the nastiest harbor in the world.

Starting with the passage of the Clean Water Act in 1972 (CWA), the Charles River Watershed Association (CRWA), EPA, MassDEP, and the Conservation Law Foundation (CLF) have conducted research, advocacy, regulation and litigation to significantly improve water quality.  Fish have returned, scullers and sailors don’t require disinfection after accidental immersion, and City Splash swimming events in dry weather are positive signs of improvement.  In 2015, EPA gave a B+ for water quality to the lower Charles River.  As to the Boston Harbor, CLF’s lawsuit in 1985 resulted in the creation of the Massachusetts Water Resources Authority (MWRA) and the expenditure of billions to stop raw sewage discharges to the Harbor.  In July 2016, federal Judge Richard J. Stearns issued the 239th compliance order, declaring an end to the combined sewer overflow construction project.  Giant egg digesters for raw sewage on Deer Island are now tourist attractions.  Flounder and striped bass are caught in the Harbor (but still not edible).  A recent 22-mile relay swim around the Boston Harbor included four Olympians.

Notwithstanding these successes and the upcoming “Brew the Charles” competition among six local breweries to create an exclusive beer using “that dirty water,” there is much more work to clean up commercial, industrial, and high-density residential discharges of stormwater.  Sixty percent of Massachusetts waters are impaired by stormwater pollutants.  Rainfall, snow melt, and surface drainage can infiltrate into the soil, be detained in and slowly released, infiltrate or evaporate from basins, or runoff into surface water.  Unmanaged stormwater can carry pollutants and cause flood damage.  Stormwater can also be a critical resource when treated and harvested using low impact development (LID) techniques.

In 2016, environmental agencies and organizations are focused on minimizing sewage overflows during storms, eliminating illegal hookups of sewers into stormdrains, and abating stormwater runoff from paved areas and shorelines that carry bacteria, animal feces, nutrients, oil, grease, metals, salts, and sediments.  MassDEP and EPA are promoting local treatment of stormwater and recharge into aquifers to replenish groundwater supplies.  The stormwater saga now includes all Massachusetts municipalities and businesses.

EPA, MassDEP and municipal regulations apply to stormwater.  EPA regulates stormwater from many sources under the National Pollutant Discharge Elimination System (NPDES) permit program that is constantly evolving based on scientific advances, enlightened policy and prodding lawsuits.  MassDEP and Conservation Commissions apply the Stormwater Management Standards under the Wetlands Protection Act and the 401 Water Quality Certification regulations.  Under the new Water Management Act regulations (310 CMR 36.00), MassDEP may allow increased water withdrawals by crediting mitigation measures like stormwater recharge through LIDs, removal of impervious cover and implementation of MS4 requirements.  Before the end of the year, Massachusetts will apply to EPA for authority to administer the NPDES program in order to provide increased flexibility for use of integrated water management and to engage more closely with communities.  Municipalities control stormwater from roofs to floodplains under zoning and general bylaws and ordinances and subdivision control regulations that govern infrastructure for roads and peak discharge controls for various design storm events, mostly to reduce runoff volume and sometimes to remove pollutants.  Coastal communities are evaluating whether to impose new stormwater requirements for a 50-year design life and green infrastructure to cope with sea level rise, higher groundwater levels and more frequent and intense storms due to climate change.  By 2018, Massachusetts cities and towns are expected to enact new stormwater requirements to capture commercial and industrial sources in order to implement the 2016 MS4 General Permit.

Recent Stormwater Developments

The CWA has a goal of restoring fishable and swimmable conditions and maintaining the chemical and biological integrity of waters of the United States.  It established that all discharges into the nation’s waters are unlawful unless specifically authorized by a permit.  “Discharges” are narrowly defined as “point sources” of pollution that flow through a discrete conveyance like a pipe or ditch into a river or lake.  All point sources of pollutants are required to obtain a NPDES permit and ensure the discharges do not exceed specified effluent standards.  EPA has achieved great success in abating the severe impairments caused by industrial process wastewater and municipal sewage plant point source discharges.  However, the millions of small stormwater ditches and outfalls seemed to defy regulation because stormwater is produced from everywhere in the developed upland; its production, delivery and fluctuations are episodic and hard to attenuate; and it gathers and transports a variety of wastes into waterbodies.  The total number of potential stormwater permittees exceeds 600,000 and accounts for about 80 percent of NPDES-regulated entities.

EPA initially tried to manage the regulatory nightmare by generally exempting stormwater discharges from the NPDES program, which the courts rejected.  In 1987, Congress enacted Section 402(p) of the CWA which commanded EPA to regulate the largest stormwater discharges:  industrial facilities, construction sites, municipal storm sewers, and other significant sources with localized adverse impact through residual designation.  Today, EPA employs stormwater general permits to deal with the large number of permittees, and requires individual permits for ineligible parties.   This article cannot detail the development of EPA’s stormwater NPDES program over the decades, or to describe the many lawsuits that jumpstarted the NPDES stormwater programs.  The following are brief summaries of recent developments.

Industrial Facilities – Rainfall or snow melt runoff that contacts material handling and storage, equipment maintenance and cleaning, and other industrial activities can directly transport pollutants into waterbodies or indirectly by stormdrains to degrade water quality.  These activities require an NPDES permit.  The 2015 Multi-Sector General Permit (MSGP) improves on the 2008 MSGP.  The permit is 376 pages.  There are separate fact sheets for each industrial sector.  The MSGP is actually 44 separate general permits in 29 industrial sectors based on SIC and NAICS codes.  It requires filing a Notice of Intent (NOI) for coverage, requires control measures to meet applicable water quality standards, and site-specific stormwater pollution prevention plans (SWPPPs).  NOIs were due on September 2, 2015.  Most facilities subject to the General Permit will have their first annual reports due following the one-year anniversary of the permit in September The first electronic compliance report is due by January 30, 2017.  CLF and Clean Water Action have filed citizen group civil enforcement actions against our clients who failed to file NOIs, to obtain individual permits, to have SWPPPs and to meet discharge limits as self-documented by discharge monitoring reports.  In addition to the engineering, construction and monitoring costs to achieve compliance with the MSGP, defendant companies pay the plaintiff’s legal fees, and make cash payments to watershed organizations in lieu of penalties.

Construction Activities – Since 1992, EPA has issued Construction General Permits (CGPs).  The 2012 CGP replaces the 2008 permit.  It is 78 pages exclusive of appendices.  The fact sheet is 135 pages.  The CGP covers stormwater discharges from construction sites disturbing one or more acres of land or smaller sites that are part of a common development plan.  It requires filing of an NOI for coverage, and there are requirements for use of 2009 technology-based effluent limitation guidelines and new source performance standards for the construction development industry (C&D Rule).  It includes non-numerical effluent limits such as erosion and sediment controls, soil stabilization, dewatering, and SWPPPs.  The CGP also provides enhanced protections for sensitive or impaired waters.  EPA is expected to reissue the CGP in 2017.  The draft CGP is 128 pages, including appendices, and the draft fact sheet is 106 pages.  The proposed CGP includes minor new or modified provisions to streamline the permit and changes to incorporate 2014 revisions to the C&D rule.  Our developer clients generally understand the CGP requirements, but the devil is in the details for site-specific applications and adjustments after major rainfall and erosion and sediment events that often result in local and MassDEP enforcement.  Our firm works with developers and property owners to find corrective actions and fair settlements of enforcement actions.

Municipal Stormwater – Polluted stormwater is commonly transported through MS4s and discharged untreated into waterbodies.  On April 27, 2016, EPA and MassDEP jointly issued the small MS4 General Permit covering 260 communities with an effective date of July 1, 2017 (to align with municipal budget cycles).  NOIs to apply for coverage must be filed by September 29, 2017.  A 5-year Stormwater Management Plan (SMP) must be posted by July 1, 2018.  The new permit builds on the 2003 permit and requires six minimum control measures.  The most noteworthy controls are dry weather screening of all outfalls; development of a GIS-based map and a written prioritized illicit discharge detection and elimination (IDDE) program; written procedures for construction site stormwater inspections and enforcement; and promotion of green infrastructure.

The permit requires compliance with the Massachusetts Stormwater Standards for new development to retain 1” of runoff from impervious surfaces and remove 90% TSS and 60% total phosphorus, and for redevelopment to retain 0.8” runoff and remove 80% TSS and 50% phosphorus.  For stormwater discharges to water bodies with an approved total maximum daily load (TMDL) (e.g., Charles and Assabet Rivers), municipalities must meet a specific load reduction goal for each pollutant (e.g., phosphorus and bacteria) by using a mix of non-structural controls (e.g., street sweeping and catch basin cleaning) and structural controls (infiltration into the ground).  Discharges to impaired waters without TMDLs are addressed through BMPs.  There is a general requirement that discharges cannot “cause or contribute to” an exceedance of water quality standards.

EPA estimates the costs of implementation (not including capital costs or measures to meet TMDLs) to range from $10,000 per year for smaller systems to $300,000 for larger systems.  MassDEP and cash-strapped municipalities believe the costs will be much higher, and considerable time, energy and resources will be needed to implement the MS4 measures.  Our developer and commercial property owner clients are concerned that municipalities will try to shift compliance costs onto them.  Lawsuits challenging the MS4 General Permit must be filed in the U.S. Court of Appeals for the First Circuit by August 27, 2016.

Residual Designation Authority (RDA) – EPA may use RDA to extend NPDES permit coverage to a category of discharges within a geographic area if determined to contribute to a violation of a water quality standard or to significantly contribute pollutants to waters of the U.S.  The RDA also recognizes EPA’s potential need to regulate individual unregulated stormwater discharges on a localized or regional basis.  On April 20, 2010, EPA Region 1 issued a draft NPDES General Permit for RDA discharges in the Charles River Watershed the towns of to Milford, Bellingham and Franklin for stormwater discharges from sites with two or more acres of impervious surfaces (excepting government facilities, and small condos and apartments) in order to reduce discharges of excessive phosphorus loadings that are contributing to algae and aquatic plant growth and violations of water quality standards in the Charles River.  These towns were selected because they are in the upper watershed where the Charles River shows significant signs of eutrophication based on MassDEP assessments.  The watershed locations will allow EPA to evaluate the utility and effectiveness of controls for reducing phosphorus downstream.  The permit requires BMP stormwater controls, a comprehensive Stormwater Management Plan and a Phosphorus Reduction Plan.  A final permit is expected now that the MS4 General Permit has been issued.

In 2010, EPA provided $300,000 to the towns to conduct an evaluation of sustainable stormwater funding options for implementing the RDA permit.  The 2011 study projected average annual program costs of $891,000 for Bellingham, $1,037,000 for Milford, and $1,825,000 for Franklin.  Structural costs to remove phosphorus were $29,700,000 for Bellingham, $75,800,000 for Milford, and $74,600,000 for Franklin.  It examined the creation of an individual stormwater utility with rate structures based on the square footage of stormwater-generating impervious cover per parcel.  It recommended a greater than 10 year, back-end loaded implementation period.  The study caused sticker shock throughout Massachusetts.

On July 10, 2013, CLF, the Natural Resources Defense Council and American Rivers filed a petition with EPA Region 1 for an RDA determination for unregulated stormwater discharges from commercial, industrial and institutional (CII) sites contributing to water quality violations in New England waterbodies, including the Charles River.  The petition listed nutrients, zinc, copper, lead, BOD, COD and TSS as pollutants of concern.  It claimed the burden of attainment of water quality standards unfairly falls on MS4s, especially since CIIs are often discharging stormwater through MS4 infrastructure.  On March 11, 2014, EPA issued a decision that neither granted nor denied the petition.  Instead, EPA “intends to evaluate individual watersheds, focusing on the nature of the impairment and the extent to which stormwater discharges from CII sites are contributing to such impairment, to determine whether and the extent to which exercise of RDA is appropriate.”  With respect to the Charles River watershed, EPA noted the draft MS4 general permit and the City of Boston’s individual permit reissuance will have requirements for municipalities to achieve pollutant reductions.  EPA admitted that some stormwater point sources may not be the responsibility of the municipalities and may need to be addressed through other regulatory mechanism, including RDA.  Surprisingly, EPA did not tout the expected improvements from the 2012 consent decree with the Boston Water and Sewer Commission (BWSC) which must investigate and terminate sources of untreated sanitary sewage discharging from BWSC stormwater outfalls into the Charles, Mystic and Neponset Rivers, Boston Harbor, and the water at local beaches.  BWSC must use green infrastructure and LID techniques to treat stormwater.  BWSC’s early investigation and monitoring of outfalls detected sewage flowing from our institutional client whose sewage lines had not been reconnected to the main line by the Big Dig contractors, that resulted in a timely but expensive fix without formal enforcement.

Not happy with the response to the petition, CLF and Charles River Watershed Association (CRWA) sued EPA in April 2015.  The complaint was voluntarily dismissed in August 2015 after Massachusetts NAIOP intervened as a defendant.  Speculation was that CLF was negotiating with EPA on the scope of the pending MS4 General Permit.  In February 2016, just before the MS4 General Permit was issued, CLF and CRWA refiled the complaint against EPA for failure to notify CII discharges that they must apply for NPDES permits.  The plaintiffs apparently do not believe the MS4 General Permit will adequately improve water quality in the Charles River.

The Future

Stormwater monitoring, inspections, preparation of SWPPPs, SMPs, and IDDE plans, enforcement, retrofits and new infrastructure construction, and defense of EPA and CLF legal actions will impose extraordinary costs on cash-strapped municipalities and the economically “soft” private sector.  Municipalities will increases local real estate taxes and impose new stormwater utility rates.  Both the municipal and private sectors will pressure the Legislature and Congress to fund infrastructure construction and permit compliance work to delay implementation of the stormwater work.

EPA and MassDEP will provide outreach materials and targeted workshops and webinars to assist municipalities, commercial and industrial sectors, and developers to comply with the new and still-evolving stormwater management requirements.  Topics will focus on MS4 deliverables in 2017-18, BMPs, implementation tools, and setting up stormwater enterprise accounts.

It is hoped that, if Massachusetts receives NPDES delegation authority, MassDEP will engage more closely with municipalities and other permittees, and be more flexible and collaborative in using an iterative process that considers what is technically and economically feasible to attain water quality standards.  It has taken EPA over 40 years to develop the stormwater NPDES scheme now in place.  How long will it take to achieve the goals established in the CWA and at what cost?  How much can we afford to spend in order to earn the Charles River an “A” on a future EPA report card?

John Shea