EPA news release: Final Storm Sewer General Permit Issued for 260 Massachusetts Municipalities to Help Keep Local Waters Clean

April 28

Today DEP Commissioner Suuberg announced to the NPDES Stakeholder Committee that Governor Baker will be filing legislation tomorrow to begin the process of seeking state primacy for the Clean Water Act pollution control (National Pollution Discharge Elimination System) program.

Background. This is the program that regulates wastewater, stormwater, and industrial discharges to waterways. The EPA is currently responsible for issuing permits under this program.

In order for EPA to delegate the program to a state, the state must fulfill these three requirements:

Today's news. Commissioner Suuberg shared the following information:

1. The purpose of tomorrow's legislation is to fulfill the first of these three requirements. It will authorize DEP to seek delegation, and require that technical definitions, state authority to issue permits, public comments, legal interpretations and other activities conform with federal standards. It also requires that DEP share permit drafts with EPA.

2. Not in the package: Assessment funding. DEP withdrew its previous proposal to fund the NPDES program with sewer ratepayer fee assessments, and is instead proposing a stand-alone DEP line item to be funded out of annual budget appropriations. They plan to ask for this beginning in FY18.

3. DEP now plans to fund this program at $4.7M annually. This figure was $10M in 2013, dropped to $7.5M a few months ago, and has now shrunk to $4.7M. The agency is proposing to use $3.2M to fund 40 additional staff and $1.5M for cooperative agreements (i.e. with consultants, universities, and watershed associations) to help it with TMDL development, and water quality monitoring and assessment.

Under the original proposal, the sewer fees would have been collected in a dedicated trust, and transferred to DEP to fund the program. This would have been a more reliable source of funding, and difficult to divert to another purpose (it would require legislation). However, MassDEP decided against this because towns objected and also because they would have had to pay an additional $1.5M or so in fringe benefits on this money. (About $6M total) If the funding goes through the annual operating budget, fringe benefits still must be paid, but come out of a different part of the budget (not DEP). However, this is a far less reliable source of funding, as future funding levels would be dependent on legislative and gubernatorial priorities.

Mass Rivers' take on this. We are quite concerned. We have been following this issue closely for a few years now, and spoken extensively with Commissioner Suuberg and his staff, and many of our colleagues. Here are our concerns:

• We see no clear environmental benefit.
• This would burden an under-resourced agency that is already failing to accomplish its core programs with a large new responsibility, likely also with insufficient funding. This sets them up for failure.
• This funding strategy does not assure adequate or sustainable funding for the new program.
• This would represent a major change in the way our water resources are protected in Massachusetts, and the NPDES program is very complex. Yet this proposal is being pushed through very quickly, at the request of the permittees with very little input, engagement, or buy-in from the environmental community.
• It is not clear to us why the state should assume a $6-10M annual obligation to provide a program the federal government currently provides at no additional cost to the state.

We will be urging legislators not to approve this legislation this year. We will ask them to slow this down to make sure this proposal is fully understood, reviewed, and vetted. We are also continuing to ask them to "fix it first," to increase DEP's funding for current core programs before considering this proposal. We are also asking that before DEP moves forward, that they develop a more inclusive process that engages our community in a meaningful way to look at the many issues involved in possible delegation: including staffing, water quality standard setting, funding, and the appeals process.