​EPA should engage with communities on MS4

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From The Beacon, April 2016

Cities and towns are increasingly concerned about the prospect of unaffordable unfunded mandates in the new stormwater permit requirements that will soon be issued by U.S. EPA’s Region One office. And rightfully so.
It is expected that the EPA will issue its final National Pollutant Discharge Elimination System (NPDES) general permit for stormwater discharges from Small Municipal Separate Storm Sewer Systems (MS4) in Massachusetts in the very near future, perhaps within the next few weeks. These permits will have an impact on more than 250 cities and towns across the state, with the potential of costing communities and local taxpayers billions of dollars over the next 20 years.
Local officials and the MMA understand and give priority to the protection of our water and environmental resources. Indeed, local officials serve as stewards of our environment, and are powerful advocates for protecting and preserving our natural resources. Cities and towns work every day to safeguard our drinking water supplies, invest in our wastewater and stormwater systems, protect open space, reduce congestion, transform brownfields into safe and productive sites, encourage the development of solar and other renewable energy sources, expand recycling and reduce solid waste, and much more.
The financial burden that would be imposed by the latest draft of Region One’s MS4 program, however, is exorbitant and unrealistic. The mandates that would be imposed by the federal government in this instance would divert scarce resources away from the core essential programs that communities deliver to residents and businesses, including police and fire protection, public education, transportation, zoning, investment in environmental infrastructure, and much more.
In the past, the federal government partnered with communities, to the benefit of our health and environment. Today, as evidenced by recent regulatory initiatives and unfunded requirements, that is not the case. As a result, localities are struggling to deal with heavy financial and administrative burdens.
Strict stormwater standards are placing a financial burden on cities, towns and local taxpayers at a time when local budgets are already stretched to the limit. The MS4 program, as currently envisioned by the EPA, would be one of the most burdensome unfunded mandates imposed on localities by the federal government. The EPA’s estimate is that MS4 communities can expect to spend up to $829,000 each year to implement stormwater programs in their communities. The proposed regulations would double or even quadruple many stormwater budgets.
In 2009, the Legislature created a special Water Infrastructure Finance Commission as a means of developing a long-range plan for the state and its cities and towns to maintain their waterworks. In its report, the commission conservatively estimated that it would cost communities approximately $18 billion over the next 20 years to meet new federal stormwater requirements. This is on top of the $10.2 billion gap in resources needed to adequately maintain drinking water systems, and an $11.2 billion shortfall for resources needed to maintain wastewater infrastructure.
The EPA’s new draft MS4 permit would require communities to institute more advanced stormwater testing, monitoring and management programs, yet is completely silent on funding or mitigation of the additional costs to communities.
The MMA has been asking EPA to amend its approach and incorporate goals that are financially and administratively achievable for cities and towns. To ensure that the EPA does the best job possible, we have been asking the EPA to delay issuing the final permit until Region One has provided cities and towns with a full briefing on its latest internal draft of the permit requirements, including a presentation on the financial and administrative impact on cities and towns, and how the agency has addressed municipal concerns about affordability and feasibility.
On the positive side, in late March the EPA did hold a briefing for a number of EPA-invited public works and local officials, including a representative from the MMA’s Policy Committee on Energy and the Environment, to broadly discuss their likely permit framework, although no permit drafts or documents were made available. During this discussion, EPA officials said that the final permit would grant more time to implement several of the permit requirements.
While this one meeting was a step in the right direction, the EPA should engage with local officials from every affected community, so that the municipal practitioners can evaluate whether the agency has adequately moderated its approach and requirements in a meaningful way. This should happen before the final permit is issued.
On a related note, regardless of what the final permit looks like, the MMA’s Policy Committee on Energy and the Environment has been discussing the possibility having the Massachusetts Department of Environmental Protection obtain delegated authority from the EPA to enforce the new stormwater permit. Massachusetts is one of just a handful of states that has the EPA administer the NPDES permitting and compliance process instead of the more-responsive state agencies.
Based on discussions with the DEP and local officials, it is increasingly clear that having the DEP handle the permit implementation would reduce the administrative burden and establish a more efficient permit process for communities through improved science, the use of new technology, and by integrating all aspects of watershed management together holistically. Permitting at the state level would also provide communities with greater flexibility in meeting the permit requirements, because the DEP would likely be much more responsive to community questions and requests than any federal agency.
Even if the state is responsible for enforcing the new MS4 permit, however, the most effective way to protect cities and towns is to have the EPA issue reasonable permit requirements in the first place. That’s why the EPA should engage in a real and robust round of discussions and consultations with cities, towns and public works professionals before any final permit is issued.