Spotlight Stories

MassDEP Denies Mass Rivers Alliance Petition for Amendments to Water Management Act 

On September 12, the Massachusetts Department of Environmental Protection (MassDEP) held a hearing, attended by more than 100 participants, to discuss a petition filed by the Mass Rivers Alliance in March 2017. The petition called for amendments to the Massachusetts Water Management Act (WMA) to impose conservation conditions on registrants to satisfy the WMA, conservation standards, and the Public Trust Doctrine. MassDEP heard the testimony of over 30 individuals and organizations at the hearing, including MCWRS President Phil Guerin, MCWRS Director Josh Schimmel, the Massachusetts Municipal Association and numerous other organizations and municipalities, and received written comments from more than 50 individuals and organizations. Based on the input, MassDEP notified Mass Rivers Alliance on September 22 that it would not pursue WMA amendments at this time. The agency left open possible future action at the time of registration renewals in 2021.

In the letter to Mass Rivers Alliance, Commissioner Martin Suuberg said that prior to the 2021 renewals, MassDEP will implement the following actions to assess the need for amendments to the WMA:

  • Assess the water savings achieved if certain demand management strategies and conservation standards are implemented in flow-stressed basins. The Ipswich River and Parker River basins will be used for the assessment,
  • Evaluate opportunities for additional water savings during times of severe drought, and
  • Develop and implement a state-wide educational campaign.

At the hearing, Duane LeVangie, MassDEP Water Management Program Chief, explained that the WMA was implemented in December 1985. In his presentation, he spoke primarily about public water supplies (PWS). All water withdrawals of 100,000 gallons per day (GPD) or less are exempt from the WMA.  Existing withdrawals, based on average daily withdrawals from 1981 through 1985, are grandfathered and required to file a registration statement. New withdrawals over 100,000 GPD and withdrawals greater than existing withdrawals have to be permitted with more stringent conditions. PWS are the category with the highest withdrawal volumes. The second highest category (“other”) includes industrial users such as paper companies and hatcheries.

Registration statements must include the intended use of the water, its source and location of the withdrawal, the volume (including seasonal variation), implemented or planned conservation measures, and discharge points. Registrations expiring in 2007 had to meet new requirements, including meeting the 65/10 Performance Standards – 65 residential gallons per capita day (RGPCD) and 10 percent unaccounted water (UAW). Values higher than 65 RGPCD or 10 percent UAW trigger more stringent conservation requirements, focused primarily on outdoor watering limits and bans.

Those failing to register, new sources, and additional volumes causing the municipality to exceed 100,000 GPD are required to obtain a WMA permit. Permits are on a 20-year term and are subject to conditions that include meeting the 65 RGPCD and 10 percent UAW standard and best management practices such as leak detection.

The Massachusetts Supreme Judicial Court decision in Fairhaven, et al v. DEP, 455 Mass. 740 (2010), a legal action brought by 14 Massachusetts communities against MassDEP, required MassDEP to first promulgate regulations before adding new conditions for registration renewals.  It also made clear that MassDEP could not infringe upon the rights of registrants to withdraw their registered volumes.

Mass Rivers Alliance is requesting that MassDEP condition WMA registrations similar to permit holders by removing references to the threshold of 100,000 GPD and imposing conservation measures on registrations at renewal. Julia Blatt from Mass Rivers Alliance reviewed the presentation. The organization contends that most of the water withdrawals are from registrations and that conditioning less than 40 percent of water withdrawals with conservation standards is not a “comprehensive and systemic” approach. The measures are necessary to protect the quality of streamflow, habitat, fisheries, and recreational resources, and to provide climate change resiliency. The second major point raised by Mass Rivers Alliance in the petition is the Public Trust Doctrine of the State’s Constitution and the issue of fairness, drawing the conclusion that since water resources benefit all residents they are protected by the Constitution as a Common.

The final presentation was by Wayne Castonguay of the Ipswich River Watershed Association. He outlined issues with the river, which runs dry in some places during the summer. Nine of 14 municipal water supplies are registered, accounting for 83 percent of total withdrawals. While the presentation highlighted the negative impacts of water use and withdrawals to the river, the final slide showed a picture of a section of the river in September 2005 that was dry and one of the same section in September 2016, during the worst regional drought in decades, that was boatable. This prompted participants to point out that the progress made perhaps indicates that the situation is not as dire as presented nor entirely causal to registrations.

There were comments from numerous organizations opposing WMA amendments, many citing the same reasons. Some of the main reasons were:

  • water conservation measures are already implemented and have been so successful that overall withdrawals by PWS have declined by 19% since 1985;
  • limiting water use will affect communities’ ability to manage drinking water systems with hydrant flushing and chlorine management, and could result in water quality problems;
  • WMA registrants have rights to their registered withdrawals per the WMA and the Fairhaven decision and those rights cannot be infringed upon;
  • economic growth and business expansion will be impacted; and
  • a one-size-fits-all approach is irresponsible.

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EPA and MassDEP Agree to Postpone Effective Date of MA MS4 General Permit
In late June, Deborah Szaro, U.S. Environmental Protection Agency (EPA) Region 1 Acting Administrator, postponed the effective date of the Final Massachusetts Small Municipal Separate Storm Sewer (MS4) General Permit. EPA's announcement, which came just days before the permit was supposed to take effect, 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. Read more in our press release and in the Federal Register.

After EPA’s postponement, the Coalition learned that EPA Region 1 staff told municipalities that they might still be required by MassDEP to comply with the original implementation date. MCWRS launched a campaign to show municipal support for MassDEP to postpone implementation of the state permit to align with EPA’s new date. We sent a letter to MassDEP urging it to follow suit, and appealed to municipalities regulated by the permit statewide to also send letters. While MassDEP indicated it planned to amend its timeline to align with EPA’s new date (July 1, 2018), the state permit still had the original implementation date (July 1, 2017). Our letter to MassDEP explains why we supported the agency’s decision – to help reduce confusion and uncertainty for municipalities.

In a letter on August 14, 2017, MassDEP announced its decision to align the state’s permit schedule with the postponement of the federal permit. Since the permit is under appeal by MCWRS and others, had MassDEP required compliance now, communities could potentially face more changes later with a different judicial decision or EPA action. MassDEP's decision avoids confusion and allows communities to dedicate their resources to the work they are already doing to comply with the 2003 MS4 permit and protect the environment until the Court rules on the appeal. The agency cited the support of numerous communities as one of the reasons it took this action.

Meanwhile, The Boston Globe and environmental organizations launched an intense, concerted campaign to oppose postponing the state permit implementation date. We responded to this Globe article and this one-sided editorial with a letter to the editor correcting the misinformation, and we encouraged our members to do the same. The Globe’s coverage neglected to mention all of the hard work we have been doing since the 2003 permit that has resulted in, for example, lowered bacteria levels at South Coast beaches and improved water quality elsewhere in the state. Other papers published a more balanced coverage, including an article written by a Statehouse reporter for The Eagle Tribune.

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.”

In its postponement notice, EPA announced that it “would like to explore the use of alternative dispute resolution (“ADR”) in this case in order to engage with various petitioners and jointly see if there might be a resolution that could avoid the need for litigation. … Postponing the effective date for one year pending judicial review should give EPA ample time to determine what, if any, changes are appropriate in the permit and to determine next steps.” The Coalition looks forward to the possibility of engaging in ADR with EPA and discussing beneficial changes to the permit.

For more information on the permit and the Coalition’s appeal, read the appeal spotlight story below.

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MCWRS Jointly Files MS4 Permit Appeal with Town of Franklin

After 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 on August 24, 2016. 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 are pending in the D.C. Court.

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. Read our press release for complete details on the basis for MCWRS’s appeal.

As our members are well aware, MCWRS has been following various iterations of EPA’s MS4 permits since 2009 and 2010 when the agency first issued the Draft Massachusetts North Coastal MS4 permit. The current permit was released in draft form in September 2014. In February 2015, MCWRS submitted a comment letter to EPA and our state delegation criticizing various aspects of the draft permit. Our comments largely centered on the challenging or sometimes impossible costs of compliance, as well as lack of flexibility and other issues. The Massachusetts Department of Environmental Protection (MassDEP) also commented, raising many of the same concerns as the Coalition.

Managing stormwater runoff is necessary to protect or enhance the quality of fresh and salt water bodies, aquatic habitat, and drinking water sources. While the MS4 permit requirements may produce some environmental benefits, they will require significant work for and investment from municipal governments and ratepayers. The permit as written would force communities to make stormwater management a major cost center, on par with public safety, education, public works and other long-standing essential services. Competing demands and dwindling budgets will force municipalities to make hard choices between critical services they currently provide and enhanced stormwater management. If MS4 permit requirements are not met, municipalities would be open to potential legal actions by advocacy groups and enforcement action by regulators. The new permit also continues to include controversial provisions that conflict with Congressional intent and the limited scope of municipal stormwater pollution control required under the Clean Water Act.

To learn more about the permit, visit EPA Region 1’s MS4 Permit page.

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MCWRS’s Workshop Discusses the Future of New England’s Rivers
On March 21, MCWRS hosted a free workshop on the future of New England’s rivers at the Springfield Water and Sewer Commission. Coalition members and non-members were invited to learn about these timely topics. Ed Capone, Service Coordination Hydrologist at the National Oceanic and Atmospheric Administration’s (NOAA’s) Northeast River Forecast Center (NERFC) presented his work forecasting river flows. The NERFC, one of 13 river forecast centers in the U.S., monitors Massachusetts’s six major river watersheds and works to protect life and property. At NERFC, Mr. Capone and the team calibrate and implement hydrologic and hydraulic models and produce temperature and precipitation forecasts to provide (1) river flow and stage forecasts, (2) guidance on the rainfall needed to produce flash flooding, (3) streamflow predictions, (4) ice jam and dam break support, and (5) water supply and reservoir inflow forecasts.

NOAA studies whole watersheds, and understands that its stakeholders, like the Coalition, are interested in an integrated approach to flooding, water quality, water availability, drought, and climate change, to understand both near- and long-term risks. Mr. Capone reported on observed trends in climate change, such as the increase in amounts and intensity of annual precipitation, warming annual temperatures, and extreme seasonal variations in snowfall that are trending, overall, downward in total amounts. Most notably, intense precipitation events (the heaviest 1%) have increased by 74% in the Northeast, the highest increase in the country. This is reflected in the rise in flooding frequency, especially minor flooding, for smaller watersheds and highly urbanized areas, as well as magnitude. Significant snow storms in the Northeast have also dramatically increased, particularly in the past decade. He explained that the amount of moisture in snow determines the amount of runoff, so a large storm of “dry” snow may have little impact. In terms of Massachusetts’s drought, Mr. Capone explained that drought periods are not uncommon and can happen despite an increase in rainfall.  One of the challenges in managing drought is that the definition can vary by state. He observed that a precipitation deficit may trigger water conservation measures when ground and surface water supplies are actually unaffected.

For Massachusetts and New England, the increase in flooding is related to more slow-moving storms, multiple events in close succession, and a tropical connection. New England’s proximity to Gulf and Atlantic moisture streams and the blocking effects of weather systems to the north play a role, as does even modest changes in ocean and air temperatures that allow the atmosphere to hold more water. The region has been a hotspot for record floods and rainfall over the past 10 years, along with increased yearly rainfall and annual temperatures.

Steven Wolosoff, Senior Environmental Scientist at CDM Smith, discussed the U.S. Environmental Protection Agency’s (EPA’s) Long Island Sound Nitrogen Reduction Strategy and its impacts in Massachusetts. Mr. Wolosoff explained that the issue is hypoxia, or low dissolved oxygen (DO), in the western portions of Long Island Sound (LIS) in the summer months, which affects bottom dwelling organisms that cannot move away from the area. A 1985 LIS study attributed hypoxia to increases in human wastewater, which led the agency to create a use impairment indicator and hierarchy evaluation system. The 2000 Total Maximum Daily Load (TMDL) study required specific actions, including a 58.5% reduction in nitrogen from in-basin (New York and Connecticut) sources from publicly-owned wastewater treatment plants (WWTP), and created a trading program. It also required that out-of-basin sources from Massachusetts, Vermont, and Canada reduce treatment plant contributions by 25%, nonpoint sources by 10%, and atmospheric deposition by 18%.

Since then, there has been a dramatic reduction of 51.5% in nitrogen contributions from Connecticut and New York WWTPs and the number of days with hypoxia has been reduced. Despite this, in 2015, the Connecticut Fund for the Environment petitioned EPA Regions 1 and 2 to develop a new or amended TMDL, stating that planned actions are not sufficient, climate change will worsen impairments in western LIS, nonpoint source treatment is insufficient, and there is new evidence of embayment impairments. EPA has moved forward with changes, focusing on additional nitrogen removal and addressing embayments Mr. Wolosoff noted that the changes to allowable nitrogen loads amount to a revised TMDL, not a reduction strategy.

Nitrogen sources include atmospheric deposition, wastewater treatment plant effluent, stormwater runoff, septic systems, agricultural runoff, and natural background (or ambient) amounts. EPA’s goal is to reach the natural, pre-colonial levels of nitrogen in LIS, which is not feasible or practical. All out-of-basin sources, including all Massachusetts sources, are already below pre-colonial levels. And, when attenuation is factored in, little benefit is derived from requiring additional controls. He added that the western LIS is most affected by hypoxia, yet Massachusetts’s contribution is to the eastern end. Also, links to local embayments are unclear.  The science indicates that sources in New York and Connecticut immediately adjacent to LIS are the dominant sources of nitrogen and dwarf inputs from other areas of New England. Mr. Wolosoff reviewed lower-cost options for reduction at treatment plants, but noted that stormwater Best Management Practices (BMPs) are more cost-effective than changes to WWTPs. The most effective BMPs appear to be yard waste pickup, street sweeping, and catch basin cleaning, which address the largest sources. When monitoring for DO, it’s important to note where samples are taken, as levels vary by depth, and to conduct monitoring before and after measures are implemented. As the Coalition has noted previously, EPA has not engaged with Massachusetts stakeholders on what amounts to a TMDL revision that will significantly impact them.  

You can learn about Nitrogen Trading at the Coalition’s 8th Annual Water Resources Strategies Symposium on May 17 in Marlborough. Stay tuned for future free workshops on other timely and regional topics.

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Gov. Baker Allocates Funding for MassDEP NPDES Staff
On January 25, Governor Baker filed the Fiscal Year 2018 state budget proposal, totaling $40.5 billion. In the budget, the Baker-Polito Administration allocated $1.4 million for the Massachusetts Department of Environmental Protection (MassDEP) to assume delegated authority of the National Pollutant Discharge Elimination System (NPDES) permit program from the U.S. Environmental Protection Agency (EPA). Specifically, the money would fund 12 MassDEP staff members to begin transitioning the program from EPA to MassDEP. This funding is far from the total amount needed to run the NPDES program effectively (estimated at $6 million), but is a good first step to lay the groundwork and position MassDEP to take over the program.

However, for MassDEP to officially assume authority, Governor Baker must refile the appropriate legislation. This legislation, formerly Bill H.4254, was originally filed in April 2016. MCWRS President Phil Guerin testified at the May 17, 2016 legislative hearing on behalf of the Coalition urging the Joint Committee on Environment, Natural Resources and Agriculture (JENRA) to pass the legislation. Unfortunately, the bill was sent to study in June 2016 and no action was taken. Local environmental advocacy organizations have historically opposed the transition, citing MassDEP’s limited budget and their concern that the agency might be vulnerable to state politics.

Currently, EPA Region 1 administers the program in Massachusetts, while 47 other states manage their own NPDES permitting. The Coalition has advocated for this transfer since 2007 and in January 2016, we penned a position paper outlining our argument for primacy, with key caveats. As
previously reported, this legislation would not remove EPA from the permitting process and MassDEP already has delegated authority for drinking water and air quality permit programs. The Coalition believes that EPA’s one-size-fits-all approach does not consider location-specific environmental, social, and economic factors. MassDEP management of the program would also provide greater opportunity for municipalities to pursue integrated water resources planning. Integrated plans allow communities to address multiple regulatory requirements and infrastructure needs, all while maintaining affordable water and sewer rates.

MCWRS has established a strong working relationship and open lines of communication with MassDEP and will continue to promote municipal interests. The Coalition hopes that MassDEP’s assumption of delegated authority will allow communities to balance environmental protection and fiscal constraints in a cooperative and realistic permitting process. MCWRS intends to support the Governor’s legislation through testimony and meetings with key legislators during the current session. Visit the Coalition’s blog for more details on our history of advocating for primacy.

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MassDEP Seeks to Take Over NPDES Permit Program
On March 8, 2017, Governor Baker re-filed legislation to delegate authority of the National Pollutant Discharge Elimination System (NPDES) permit program to the Massachusetts Department of Environmental Protection (MassDEP). To aid the transition, Governor Baker also allocated $1.4 million in the FY2018 state budget proposal for MassDEP staff. Everyone benefits from clean water, and the Coalition is excited to share that Governor Baker intends to fund administration of the program through the state budget, including $4.7 million. This legislation, An Act to Enable the Commonwealth's Administration of the Massachusetts Pollutant Discharge Elimination System, was originally filed in April 2016, but the Joint Committee on Environment, Natural Resources and Agriculture (JENRA) sent it to study at the end of the last legislative season, effectively killing it. If passed, the legislation will be part of a submittal made by MassDEP to EPA Region 1.

Since 2007, the Coalition has been advocating for this change, including publishing a White Paper, writing a Position Paper on Primacy, and advising about its benefits and notable caveats through our representation on MassDEP’s NPDES primacy advisory committee. MCWRS President Phil Guerin noted that “having MassDEP manage the NPDES program will benefit communities by providing a perspective that is more attune to local issues and is more consistent with state goals and values.” Read the Coalition’s blog to learn more about this and other timely topics.

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