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Bar News - September 20, 2017

Environmental, Telecomm, Utilities & Energy Law: COMMENTARY: Stormwater Permit Litigation Has Broad Implications


When it rains, it pours.

This proverbial adage may soon hold true for many urban New Hampshire communities with respect to new stormwater regulations.

Stormwater runoff is a collective term for rain and snowmelt events and occurs when water flows over impervious surfaces rather than soaking into the ground. During these precipitation events, stormwater runoff can collect a variety of surface pollutants and is usually transported through a complex conveyance of underground storm sewers known as municipal separate storm sewer systems (MS4s).

Stormwater runoff is often discharged, untreated, into rivers, streams, and lakes and, according to an EPA Report to Congress, can be a “leading source of water quality impairment” that will continue to intensify with increased impervious surface coverage.

To regulate the discharge of pollutants into waters of the United States, Congress enacted the Clean Water Act (CWA) in 1972. The CWA was amended in 1987 to include a comprehensive national program to address stormwater runoff (33 USC Section 1342). Pursuant to this legislation, EPA established the National Pollution Discharge Elimination System (NPDES) permitting program for MS4s (40 CFR Section 122.26).

Traditionally, MS4s were granted a great deal of flexibility in selecting the suite of best management practices (BMPs) that would most appropriately and effectively fit the needs of their community while simultaneously reducing the discharge of pollutants in stormwater.

Under the CWA, MS4s are required to “reduce the discharge of pollutants to the maximum extent practicable (MEP) including management practices, control techniques and system, engineering design methods, and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants” (33 USC Section 1342(p)(3)(B)(iii) (emphasis added)). More recently, EPA and states across the country are beginning to use this language to amplify local stormwater programs through more onerous NPDES general permit requirements.

New Permit and Regulatory Requirements

On Jan. 18, 2017, EPA issued New Hampshire’s Small MS4 General Permit with an effective date of July 1, 2018. EPA also issued a nearly identical Small MS4 General Permit for Massachusetts with an effective date of July 1, 2017. New Hampshire and Massachusetts are two of four states in the country that are “non-delegated” and are not authorized to issue or implement NPDES permits. EPA Region 1 is the CWA NPDES permit-issuing authority.

New Hampshire and Massachusetts MS4 permittees are not only required to reduce the discharge of pollutants to the CWA’s traditional MEP standard, but the permits also take a significant regulatory leap further with provisions that protect water quality standards (WQS). New language in both permits requires that MS4s “do not cause or contribute to an exceedance of WQS, in addition to requirements to reduce the discharge to the maximum extent practicable” (See Parts 2.0 and 2.1 of the 2017 NH MS4 General Permit). These permits are unique in that both require strict compliance with WQS and impose specific obligations on MS4s to meet these requirements.

This permit begets the question: Can EPA require strict compliance with WQS if it requires MS4s to do more than the MEP? If an MS4 is doing the practicable maximum to curb stormwater pollution, how can it do more?

A variety of groups have challenged the New Hampshire and Massachusetts permits based on their inclusion of water quality-based effluent limitations. These groups include the Center of Regulatory Reasonableness, the National Association of Home Builders, the Homebuilders Association of Massachusetts, the Town of Franklin, and City of Lowell. Conservation Law Foundation has also intervened in the case. As of August, the cases have been consolidated in the US Court of Appeals in the District of Columbia.

New Hampshire Governor Christopher Sununu has also opined in a letter to EPA Administrator Scott Pruitt that the new MS4 permit is “significantly more stringent and wide ranging” than the previous permit. The governor says compliance costs will burgeon for certain communities, like the Rochester, which will face increased costs upwards of $25 million.

While these appeals are pending, EPA has postponed the Massachusetts permit effective date for one year pending judicial review and to explore a possible settlement (See 82 Fed. Reg. 32,357, 32,358 (July 13, 2017). Now, the Massachusetts permit is postponed until July 1, 2018. The DC Circuit has also delayed briefing in the Massachusetts challenge to allow for parallel proceedings with the New Hampshire permit.

Broader, National Implications

EPA’s recent shift to include WQS not only arguably exceeds the agency’s authority under the statute, but also requires municipalities to allocate additional resources and pollution control technologies to meet these more stringent standards. EPA’s WQS are highly problematic for many small municipalities because of the nature of MS4 discharges, the improbability of controlling what pollutants are discharged and at what quantities.

Interestingly, because New Hampshire and Massachusetts’ NPDES permits are issued by EPA, the issued permits could be an indication of EPA’s preferred MS4 permit language. States around the country could look to the permit language and incorporate increased monitoring and inspection requirements and include more stringent WQS based limits. If so, these heightened stormwater permitting requirements could have significant compliance costs for municipal clean water agencies and MS4s already facing increasing operational, maintenance, and affordability challenges.

The National Association of Clean Water Agencies (NACWA) has an extensive history of defending the traditional MEP standard that affords municipalities the greatest flexibility. The organization, in conjunction with The Wet Weather Partnership, is preparing an amicus curiae on this issue.

NACWA hopes the pending Court of Appeals’ decision will address whether the MEP is the floor or the ceiling and whether additional WQS effluent-based limitations are the new permitting norm.

If the Court agrees with EPA, small communities in New Hampshire and Massachusetts may be among the first permittees required to comply with this new regulatory stormwater downpour.

Emily Remmel

Emily Remmel is the regulatory affairs director for the National Association of Clean Water Agencies (NACWA) in Washington, DC. This piece reflects her views and not necessarily the views of NACWA. She is an inactive member of the New Hampshire Bar Association

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