State should embrace integrated enforcement of clean water laws

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From The Beacon, May 2016

Late last month, the Baker-Polito administration filed legislation to begin the process for granting the Massachusetts Department of Environmental Protection authority to administer and enforce the federal National Pollutant Discharge Elimination System (NPDES) program, which regulates public and private discharges of wastewater and stormwater.
 
This “delegated authority” would make the DEP the lead enforcement agency for all federal and state water quality laws and regulations. The DEP already administers other vital federal environmental programs in the areas of drinking water, hazardous waste and clean air, as well as state water programs, including Title V, wetlands and water management.
 
The governor’s legislation would make technical changes to make state law consistent with the federal Clean Water Act, a necessity before the state can formally apply to the U.S. Environmental Protection Agency for NPDES delegated authority.
 
Forty-six states have obtained authorization from the EPA to take charge of NPDES programs, but Massachusetts has never formally sought delegation. The only other holdouts are Idaho, which in in the process of receiving approval, New Hampshire and New Mexico. Clearly, Massachusetts is an outlier. We are the only developed and economically diverse state to depend on the federal government to staff critical water permitting and enforcement responsibilities.
 
The governor’s advocacy for delegated authority under NPDES is well-timed, because it would allow the agency to take the lead in enforcing the new MS4 stormwater permit issued last month by the EPA. Cities and towns have been deeply concerned about the potential cost of the new permit and the lack of clarity in many of the new provisions and requirements.
 
For several months, the administration has been examining the possibility of taking authority over the federal NPDES program, which includes administration, permitting, compliance, inspection and enforcement activities for facilities that discharge into surface waters. The MMA participated with other stakeholders in an advisory panel to study NPDES delegation. The group met several times to discuss implementation, staffing, cost and funding implications, and to provide input to DEP.
 
Following a recommendation from the MMA’s Policy Committee on Energy and the Environment, the MMA Board of Directors voted in April to support delegating authority over the NPDES program to the DEP. Local officials then met with Gov. Charlie Baker and Lt. Gov. Karyn Polito to discuss the many advantages that could be realized by having the state assume authority for administering and enforcing the new stormwater requirements.
 
First, the DEP already works closely with every city and town to issue permits and enforce many other water-related regulations, and adding NPDES and stormwater to the DEP’s portfolio of responsibilities would allow for improved integration and coordination at the state-local level. This, in turn, would clearly reduce the bureaucratic burden on municipalities and enhance the opportunities for improved environmental outcomes and greater cost-effectiveness.
 
Second, the DEP is much more present and aware of what is going on at the local level, and has an impressive knowledge of cities and towns that surpasses the EPA’s capacity, which means that the DEP will be able to coordinate its enforcement activities, timetables and administrative actions across programs. Communities have limited staff and resources, so an integrated approach by the DEP will make it easier for communities to comply with requirements.
 
Third, the DEP has a solid record of responsiveness to communities and environmental stakeholders, and provides real-time communication and dialogue, which will certainly be necessary as cities and towns grapple with new stormwater responsibilities.
 
Fourth, better coordination at the state-federal level would likely reduce the number of administrative appeals and legal challenges, leading to faster implementation and a more collaborative approach.
 
In addition to filing the legislation, the governor announced that he plans to seek a state budget appropriation to fully fund the program, which the DEP estimates would cost $4.7 million annually. This appropriation would cover the staffing and outside contracts necessary to administer the DEP’s new responsibilities, which would mainly be the assumption of responsibility for enforcing and administering the MS4 and other stormwater permit programs.
 
The $4.7 million cost estimate is significantly lower than initially thought, because the DEP has further examined delegation and discussed the associated costs with states that have obtained similar authority. Although discussions included the possibility of funding the program through an assessment on ratepayers, the governor and his team have instead decided to seek funding through a line item in the state budget, which would provide meaningful savings for ratepayers and communities.
 
Gov. Baker’s initiative to secure delegated authority over NPDES and stormwater programs is very good news for Massachusetts. That is because the integrated enforcement approach that the DEP can implement under the NPDES program will deliver stronger results for the environment with less bureaucracy, and will provide greater responsiveness to all communities and stakeholders.
 
The bottom line is, the environmental outcomes will be better with the DEP’s overall guidance, assistance and enforcement, and at the same time delegated authority should make it easier for cities and towns to comply with the new stormwater permit requirements. That’s why the Legislature should make this legislation a key priority in the coming weeks, and pass the bill before the session ends in July.