Clean Water Current

EPA Region 1 Proposing Burdensome Climate Resiliency Requirements as Part of NPDES Permit Program

May 17, 2023

Starting in late March, EPA Region 1 began issuing several draft individual National Pollutant Discharge Elimination System (NPDES) permits to municipal clean water utilities in Massachusetts that contained novel and unduly prescriptive climate planning and mitigation requirements. The new permit requirements, known as the Wastewater Treatment Facility Major Storm and Flood Events Plan and the Sewer System Major Storm and Flood Events Plan, were included in each permit’s Operation and Maintenance section. 

The proposed language requires permittees to develop, submit, and begin to implement the Major Storm and Flood Events Plan within 12 months that includes three individual components: 1) an asset vulnerability evaluation, 2) a systemic vulnerability evaluation of assets, and 3) a mitigation measures alternatives analysis.  

The requirements will likely be very burdensome on utilities and require extensive resiliency and implementation planning in the midterm (20-30 years) and long-term (80-100 years) – well beyond the 5-year permit term. Utilities are to look at all vulnerabilities and consider “at minimum, the worst-case scenario” and Plans are to be iterative, meaning that utilities are to re-evaluate their Plans if “on- or off-site structures are added, removed or significantly changed” that may impact the treatment works’ vulnerability.  

The proposed language requires the permittee to consider serious and costly mitigation measures, like construction of flood barriers, relocation of existing facilities to higher elevations, mutual aid agreements with neighboring utilities, and long-term risk incorporation into capital improvement plans, among others. It also requires co-permittees to participate in the same extensive planning.  

Further, the proposed permit language requires “a qualified person” to conduct the evaluation and “incorporate results of the evaluation in a manner that demonstrates that the control measures taken are precautionary and sufficiently protective.”  The Plan must include the sources of climate information used to develop the plan, along with a quantitative reasoning for assumptions and methodologies a utility relies upon for developing each alternatives evaluation.  

In addition, the Plan must identify the highest priority assets (via GIS mapping) that are the most vulnerable and come up with a schedule for each mitigation measure. Annual reports are also required.  

NACWA objected to EPA Region 1’s inclusion of these novel, overly prescriptive, and unduly burdensome O&M requirements as part of a NPDES permit and submitted comments on three of the permits at issue (the Palmer Water Pollution Control Facility, the Westfield Water Pollution Control Plant, and the Town of Montague). NACWA believes these requirements are outside EPA’s statutory authority under the Clean Water Act and go beyond EPA’s own regulations. 

While NACWA supports and encourages greater resiliency efforts, the Association has serious concerns with the way these requirements are being placed in permits by Region 1 -- especially for utilities that are already investing significant resources to become more resilient or for communities that may not be as susceptible to climatic events.  

NACWA will be filing additional comments on this issue with EPA Region 1 and EPA Headquarters in the coming weeks. If members what more information, please contact Emily Remmel, NACWA’s Director of Regulatory Affairs or Amanda Aspatore, NACWA’s General Counsel.  

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