Sam Hess from Within EPA and many others write about EPA’s Halloween Trick or Treat – the release of a draft Clean Water Act (NPDES General Permit) that would apply to “commercial, industrial and institutional” properties with one hectare or more impervious surface in 65 cities and towns in the Charles, Neponset and Mystic River watersheds in Massachusetts.
This permit is a “treat” to the NGOs who have twice sued EPA for taking this action. And there can be no doubt that compliance with the permit by the hundreds, if not thousands, of property owners who would be subject to it would dramatically improve water quality in these three rivers. But that doesn’t mean our current Supreme Court would agree that the permit was authorized by the Federal Clean Water Act.
What will the proposed general permit allow? The permit permits the drainage of rainwater, meltwater and surface water drainage from these properties.
What do the property owners who have been involved in this drain forever need to do to get this permission? Property owners will be required to take action to reduce phosphorus levels in the three identified rivers by 60 to 65 percent.
What will be the consequence if permission is not granted to continue discharging stormwater, snowmelt or surface water from any of these properties? That’s easy. Property owners who fail to comply with the general permit will be subject to civil or criminal penalties if prosecuted by EPA or any citizen taking action under the civil rights provision of the Clean Water Act.
If this seems unusual to you, that’s because it is. In fact, this is the first time EPA has done something like this in the United States. Some of you may remember that I wrote about two years ago about the EPA’s decision to exercise its “residual designation authority” in this way to regulate something that is already regulated by the state and not by the federal government in 47 of the other 49 states..
Call me old fashioned, but whether it’s the definition of what constitutes “water” of the United States, or what constitutes the discharge of a pollutant that requires an NPDES permit, I support one federal law that applies in all fifty states is applied in the same way. . And whether the Federal Clean Water Act currently allows for this kind of regulation of stormwater, snowmelt, and surface water, the court will certainly be asked to weigh in.
Naturally, EPA will say that the specific conditions in the Charles, Neponset and Mystic Rivers require this unique action. And EPAs Federal Register The announcement states that the Clean Water Act “authorizes the Agency to regulate stormwater discharges that contribute to a violation of the water quality standard.” Of course, any discharge of any “pollutant” “contributes” to water quality standard violations.
If the words in the statute that EPA is referring to sound familiar, that might be because just two weeks ago our nation’s highest court considered whether very similar language appeared in an NPDES permit issued to the city and county San Francisco was enforceable.
In that case, an EPA permit prohibited discharges that “cause or contribute to violations of applicable water quality standards.” The city and county of San Francisco, 15 industry groups and a dozen water supply and conservation associations complained about the vagueness of that ban. , and I predicted that, based on his advice a year and a half ago Sackett v. EPA, at the very least, this Supreme Court will revoke San Francisco’s permit.
For similar reasons, this EPA permit could also eventually find its way to the Supreme Court. Of course the San Francisco case will be decided long before the case is finally pronounced.
I have one last question. EPA exempted properties owned by the Commonwealth of Massachusetts, affected municipalities, and the federal government from the requirements of the proposed general permit. At the same time, she asked for comment on whether multifamily property owners should also be covered. If phosphorus in stormwater, snowmelt, and surface water is the threat to water quality in these three rivers that the EPA says it is, why isn’t it the same threat regardless of the type of property it comes from? A cynic might wonder whether the answer to that question has more to do with politics than science.