The long odyssey of the Massachusetts Small MS4 stormwater general permit continues – the latest chapter involving four separate appeals filed in two courts seeking to modify the permit’s terms.  Issued by U.S. EPA New England, the general permit authorizes stormwater discharges from small municipal separate storm sewer systems (“MS4”) located in Massachusetts. While the permit regulates stormwater discharges by municipalities, the permit has the potential to affect commercial, industrial and residential property owners who discharge stormwater in those municipalities.  Therefore, the relevance of these pending appeals is not limited to municipal governments.

U.S. EPA previously issued a general permit in 2003 to authorize stormwater discharges from Massachusetts small MS4s.  (As Massachusetts remains one of four “non-delegated” states, U.S. EPA is the Clean Water Act permit issuing authority in Massachusetts).  This permit regulated stormwater discharges from designated MS4s in Massachusetts (excluding Boston and Worcester, which have been issued individual permits).  When the 2003 permit expired in 2008, policy and technical debates delayed re-issuance of a new MS4 general permit.  

In 2010, U.S. EPA proposed issuing two MS4 general permits – one for municipalities in the North Coastal watershed and one covering all other designated Massachusetts MS4s.  After extensive public comment, U.S. EPA abandoned the dual general permits and re-issued a single, statewide draft general permit in 2014.  After more public comment and debate, including a not-so private disagreement with the Massachusetts Department of Environmental Protection (“MassDEP”) over compliance costs and implementation schedules, U.S. EPA finally re-issued the Small MS4 general permit last April (General Permits for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts) (“Small MS4 Permit”), along with eight appendices.  

The Small MS4 Permit has an effective date of July 1, 2017 to allow municipalities sufficient time to plan and to obtain funding for implementation of the new permit.  Notices of Intent to discharge under the Small MS4 Permit must be filed 90 days later (September 29, 2017).

Since its issuance in April, four separate appeals have been filed challenging the Small MS4 Permit. (The deadline for filing appeals expired last week, so additional appeals are not anticipated).  The Center for Regulatory Reasonableness (a for-profit corporation acting as a “multi-sector coalition of municipal and industrial entities”) filed an appeal in the D.C. Circuit Court of Appeals in July, claiming that the Small MS4 Permit exceeds U.S. EPA’s statutory authority.  Center for Regulatory Reasonableness v. United States Env. Protection Agency, Docket No. 16-1246 (D.C. Cir.).  The public interest group Conservation Law Foundation has moved to intervene in that case.

Last week, three additional appeals were filed in the First Circuit Court of Appeals.  The first was filed by the National Association of Homebuilders and the Homebuilders Association of Massachusetts, Inc. (National Assoc. of Home Builders v. United States Env. Protection Agency, Docket No. 16-2081 (First Cir.). The second was filed by the Massachusetts Coalition of Water Resources Stewardship, Inc. (a non-profit corporation whose members include municipal and quasi-governmental drinking water, wastewater and stormwater agencies) and the Town of Fanklin (Massachusetts Coalition of Water Resources Stewardship, Inc. v. United States Env. Protection Agency, Docket No. 16-2082 (First Cir.).  A third appeal was filed by the City of Lowell.  City of Lowell v. United States Env. Protection Agency, Docket No. 16-2096 (First Cir.).  None of the petitions for review filed in those appeals specified the grounds for appeal.

These cases reflect the wide range of interests potentially affected by the Small MS4 Permit.  While municipalities unquestionably are affected the most by the cost and complexity of implementing the Small MS4 Permit, property owners may face increased local fees and  regulatory requirements imposed to support municipal efforts to comply with the Small MS4 Permit.

From a litigation perspective, the key questions going forward will be how and where these pending appeals are consolidated and what additional parties may intervene in these appeals.  In particular, it remains to be seen whether MassDEP seeks to intervene and, if so, to what extent it will support U.S. EPA’s position in the litigation, given their past policy disagreements.  That question is made all the more interesting given that MassDEP co-signed the permit and is in the process of seeking delegated authority over Clean Water Act permitting in Massachusetts – which would leave it responsible for enforcing the Small MS4 Permit.

During the eight years of rulemaking process needed to re-issue the Small MS4 Permit, there was extensive debate over what cost and compliance burdens should be imposed on municipalities (and indirectly on property owners within those municipalities).  Issuance of the Small MS4 Permit last April did little to quell that debate – rather, it simply shifted the debate from the administrative rulemaking docket to the judicial docket.