Massachusetts Governor Charlie Baker has filed legislation that moves Massachusetts one step closer to a long-desired goal: authorization to administer the Clean Water Act NPDES permitting program. Currently, Massachusetts is one of only four states (in addition to Idaho, New Hampshire, and New Mexico) that has not been “delegated” this authority.
A number of the major federal environmental statutes seek to balance nationally consistent federal standards with local control. Under the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act, this is accomplished by delegation of authority to state agencies to administer regulatory programs promulgated by the United States Environmental Protection Agency (USEPA). From the regulated community’s perspective, the most important aspect of this “delegated” authority is the issuance and enforcement of permits.
In order to be delegated authority under a particular statute, a state must submit a plan for USEPA approval that details how that agency will provide the legal authority, funding, and staffing needed to carry out the federal regulatory program. USEPA conducts a public comment process and then determines which (if any) elements of the program the state is qualified to implement. See 40 C.F.R. Part 123.
However, USEPA retains certain rights, including the right to comment on draft permits, to take additional enforcement actions if it deems the state’s enforcement efforts to be inadequate, and in extreme cases to revoke delegation if it concludes that the state’s permitting, public participation, or enforcement programs are inadequate. Revocation of delegated authority is not a hypothetical power – for instance, there was a recent effort to revoke Vermont’s delegated authority under the Clean Water Act.
In Massachusetts, the state has been delegated authority under the Clean Air Act, the Safe Drinking Water Act, and the Resource Conservation and Recovery Act, but not the Clean Water Act. While the Massachusetts Department of Environmental Protection (MassDEP) is currently a co-signatory on the roughly 3,000 NPDES permits in the Commonwealth (in addition to the stormwater discharge general permits), there has been growing interest to have MassDEP assume authority over the NPDES program. In particular, the interactions between MassDEP and USEPA over the regulation of stormwater discharges has proven contentious and highlighted the importance of local control over regulatory matters.
In response to legislation filed in 2012, MassDEP prepared a report evaluating the advantages and disadvantages of delegation. The Baker Administration is now taking the next step by filing legislation confirming MassDEP’s statutory authority to administer the NPDES permitting program. While this legislation has received strong support from municipalities eager for more creative regulatory approaches, environmental groups have raised concerns about whether delegation could undermine water quality in the Commonwealth.
If the Legislature passes the bill, MassDEP will prepare a plan for public comment and review and approval by USEPA. That process will take several years, but the Baker Administration will likely seek to complete the delegation process before the end of its first term in 2018.