We have exciting news to share. The U.S. Environmental Protection Agency (EPA) has agreed to our request to postpone the implementation of the Massachusetts Small Municipal Separate Storm Sewer Systems (MS4) General Permit. The request, jointly filed with the Town of Franklin and City of Lowell, delays the permit implementation that was scheduled for July 1, 2017, by one year to July 1, 2018. It also postpones the September 28, 2017 due date for communities’ Notices of Intent. Feel free to download and share our press release on this important announcement. You may also review EPA’s announcement of the postponement.
When EPA issued the final MS4 General Permit in April 2016, MCWRS and Franklin jointly filed an appeal of the permit in the First Circuit Court of Appeals in Boston. The City of Lowell, the National Association of Home Builders (NAHB), and the Conservation Law Foundation also filed appeals in Boston. These appeals were transferred to the U.S. Court of Appeals for the D.C. Circuit and consolidated with an appeal first filed in the D.C. Circuit by the Center for Regulatory Reasonableness. The consolidated appeals will be heard in the D.C. Court.
The appeals continue to move forward, but the postponement will provide communities with immediate relief from the cost of complying with the permit until the matter is resolved. Philip Guerin, President of MCWRS, stated, “The postponement is very important to our member communities and municipalities across Massachusetts. It will give them a break from excessive spending on stormwater management until the Court rules on some highly contentious permit language. During the postponement, most cities and towns will continue to implement reasonable and effective practices to improve stormwater quality and decrease stormwater quantity, just as they have been doing for many years.”
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.
The draft MA MS4 General Permit generated over 1,300 individual comments by more than 150 entities, many of them municipalities impacted by the 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. 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, the Town of Franklin, and City of Lowell is very much in keeping with that practice.
We thank our contributors and contributing members for their support of the Coalition’s appeal of the MA MS4 General Permit.