NACWA Helps Secure Settlement in New England Stormwater Litigation

(January 8, 2019) – After two years of negotiations, EPA on December 27 proposed settlement agreements for Massachusetts and New Hampshire’s small municipal separate stormwater sewer system (MS4) permits.  NACWA played an instrumental role working with impacted member utilities in these two states to negotiate a favorable settlement.   

The original Massachusetts and New Hampshire permits required MS4s, under strict compliance schedules, to comply with water quality standards (WQS) in addition to the requirement to reduce the discharge of pollutants to the maximum extent practicable (MEP) as required by the Clean Water Act (CWA).

This language was particularly problematic for permittees with total maximum daily loads (TMDLs) for phosphorus-impaired waterbodies.

Under the proposed modified permits for Massachusetts and New Hampshire included in the settlement, EPA has eliminated the problematic “cause and contribute to a water quality exceedance” language and has proposed an alternative, more flexible compliance schedule in situations where it is impracticable for permittees to comply with pollutant reductions. Other major permit modifications in the agreements deal mostly with stormwater runoff from construction sites.

NACWA supports EPA entering into these settlement agreements, particularly since these permits originated with EPA (Massachusetts and New Hampshire do not have delegated authority under the CWA) and there was concern these permits could establish a broader national precedent for future MS4 permits around the country.

EPA has opened a docket and is accepting comments on both agreements through January 27. NACWA is drafting comments to submit to EPA and seeks feedback from members that have similar concerns over growing MS4 permit requirements.

NACWA worked closely with its Massachusetts and New Hampshire members and the Massachusetts Coalition for Water Resources Stewardship on this case to secure more reasonable and lawful permit language. NACWA thanks its members for their commitment to this case, and would also like to thank Association Legal Affiliate AquaLaw for its dedication and hard work securing this positive outcome.

These settlement agreements will not only benefit NACWA members in Massachusetts and New Hampshire but will also aid all stormwater utilities in these states moving forward. If members have questions, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs.