United States: Massachusetts DEP Proposes Sweeping New Stormwater Discharge Permitting Program: Permits To Be Required For Many Previously Unregulated Sources

On November 17, 2008, the Massachusetts Department of Environmental Protection ("MassDEP") announced a proposed new set of regulations to implement a statewide stormwater management program. Whereas current stormwater regulations focus on the operators of municipal stormwater systems and owners of certain construction and industrial sites, the proposed regulations would also enlist private property owners of impervious surfaces (roadways, parking lots, roofs, etc.) of five acres or more in stormwater management. These proposed rules are intended to reduce nonpoint sources of pollution, but will have significant effects on commercial property owners. The public comment period on these proposed rules has not yet begun, but is expected to begin shortly.

The proposed regulations give MassDEP the authority to issue individual and general surface water discharge permits and will require owners and operators of existing and new facilities containing more than 5 acres of impervious surfaces to obtain stormwater discharge permits from DEP. The regulations provide a framework for the issuance of permits, and MassDEP is expected to release both a statewide general permit for impervious surfaces and a Charles River general permit before the end of the comment period. The proposed regulations are also intended to give MassDEP sufficient authority to assume delegation from the EPA to administer the National Pollutant Discharge Elimination System ("NPDES") stormwater permit program. Delegation would enable property owners to obtain stormwater discharge permits exclusively from DEP, and would minimize the risk of conflicting state and federal stormwater control requirements.

Another pending feature of the new stormwater program is a Best Management Practices ("BMP") Tool currently being developed by the EPA to assist private property owners in estimating both the cost and pollution reduction impact of various mitigation measures.

In the future, MassDEP proposes to set stricter standards in the Charles River watershed where phosphorus pollution is a major concern, affecting private property owners of impervious surfaces of two acres or more.

The proposal is much too detailed for any in-depth description here. If you think you may be affected, careful review of the regulations will definitely be appropriate – as may be the submittal of comments to MassDEP before the close of the comment period. In this alert, we simply try to highlight some of the major issues.

Permits Required for "Regulated Impervious Areas"

• Regulated Impervious Areas ("RIAs"). Areas of five or more acres would be subject to the permit requirements. This five acre requirement may apply to contiguous areas not under common ownership under certain circumstances.
• Regulation of existing impervious surfaces. Owners of RIAs will be subject to a new General Permit – which has not yet been released by MassDEP. The General Permit will include at the least certain good housekeeping practices such as snow removal and sweeping of pavement.
• Additional standards for new development and redevelopment. Additional standards will be imposed on new development and redevelopment, which include, for example, any repaving "other than a minor repair." Such projects will be subject to requirements such as use of Low Impact Development ("LID") techniques and BMPs to help meet target levels of water quality treatment and infiltration. Off-site mitigation will be available for redevelopment projects only.
• Activities affecting impaired surface waters. Owners of RIA sites reasonably expected to result in a discharge to impaired surface waters identified by a total maximum daily load, or TMDL, would also be subject to additional requirements. These landowners must use infiltration BMPs or other measures to meet the pollution loading limits set by the TMDL.
• Delegation to local authorities. The proposed regulations provide for the delegation of the RIA stormwater program to local governments that establish a MassDEP-approved program that includes substantially all of the elements described above.

MassDEP Permitting Authority For Municipal Separate Storm Sewer Systems (MS4s)

In addition to issuing general permits for RIA sites, the proposed new regulations give MassDEP authority to issue individual stormwater permits for large and medium MS4 systems and general permits for small MS4 systems.

MassDEP Residual Designation Authority

Regardless of size, MassDEP may designate additional activities requiring an individual permit or coverage under a general permit. MassDEP's designation authority is triggered in cases where stormwater discharge is contaminated, subject to effluent limitations guidelines or toxic pollutant effluent standards, or associated with construction activity not adequately controlled by the NPDES Construction General Permit. MassDEP may also require stormwater permits if a stormwater discharge or category of discharges is a significant contributor of pollutants to waters of the Commonwealth.

Potential Concerns Regarding the Proposed Regulations

• Compliance costs. Until MassDEP releases the general permits authorized by the proposed regulations and the EPA releases the BMP Tool, compliance costs will remain hard to estimate. Nevertheless, it appears that the cost to retrofit, where required, could be significant.

• Aggregated RIAs. Aggregation rules based on common use rather than common ownership raise questions about which property owner will be responsible when a condition (e.g. redevelopment, noncompliance) exists on one part of the aggregated property but not the other.

• Transition issues and phased projects. Fully permitted projects that do not proceed to construction within six months may be forced to revisit their permits or to change designs to comply with the proposed regulations. Treatment of phased projects is unclear.

• Back-door incorporation of policies and guidelines. In a number of places, the proposed regulations incorporate by reference MassDEP policies and guidelines as enforceable requirements.

Review and Comment Period

Organizations seeking to provide input to DEP on these proposed regulations should participate in upcoming public hearings and/or provide written comments to MassDEP. As of the date of this alert, the comment period has not yet begun. Please refer to the MassDEP website for updated information.

Related EPA Decision Regarding the Charles River

MassDEP's proposed new regulations were released on the same day as a separate but related proposed decision by the Regional Administrator of EPA Region that stormwater permits are needed to address serious water quality problems in the Charles River. Read the EPA news release here.

The EPA intends to focus initially on facilities located in the Upper Charles River communities of Milford, Franklin, and Bellingham with two acres or more of impervious surface, and to require these facilities to obtain stormwater permits and reduce phosphorus discharges by an average of 65%. The proposed decision helps implement the phosphorus TMDL for the Charles River that was approved by the EPA in October 2007.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.