Massachusetts Proposes New Stormwater Permitting Program
Beveridge & Diamond, P.C, - Massachusetts Environmental, Land Use & Real Estate Alert, 2009
The Massachusetts Department of Environmental Protection (MassDEP) has proposed new regulations to implement a stormwater management program under which the agency would, for the first time, issue individual and general stormwater discharge permits. MassDEP does not have authorization to implement the federal NPDES wastewater permitting program and has never actively required permits for stormwater discharges. Instead, stormwater controls have customarily been addressed by local conservation commissions in the wetlands permitting process.
MassDEP has classified three quarters of the surface waters in Massachusetts as impaired and believes that 60% of the pollutants that damage surface water quality come from stormwater runoff. To address this problem, MassDEP is proposing to implement a statewide general permit program for stormwater that will apply to two classifications of private property owners:
- Statewide, property owners with impervious areas containing at least five acres will be required to obtain general stormwater permits and to comply with good housekeeping practices or, for new developments, with more stringent standards from the Massachusetts Stormwater Handbook.
- In areas of the state where the state has identified total maximum daily load (TMDL) concerns in receiving waters, nearby property owners with impervious areas containing at least two acres will be required to obtain general stormwater permits and to comply with more stringent control standards, including implementing best management practices (BMPs). TMDL areas identified by MassDEP notably include the Charles River watershed.
Permit requirements for property owners of existing properties anywhere in the state subject to the general permit will include the implementation of what MassDEP refers to as baseline performance standards. A stormwater team will need to be formed, and a stormwater plan will need to be developed. Team members will need to be delegated specific responsibilities for implementing the plan, and a log will need to be kept for recording actions taken to implement the plan. The plan must include standard operating procedures to conduct source control and pollution prevention measures, and at least twice per year sweeping of paved surfaces. Permit holders will be required to submit annual compliance certifications and to pay an annual fee.
Permit requirements for property owners of redeveloped properties anywhere in the state subject to the general permit will include those listed above for existing properties, and in addition antidegradation requirements, implementation of BMPs that allow infiltration of at least 40% of the required redevelopment volume, or if infiltration is not possible equivalent controls or treatment. Off-site mitigation will be permitted to meet the pollution reduction requirements if the highest practicable level of stormwater management is implemented on site.
Permit requirements for property owners of newly developed properties anywhere in the state subject to the general permit will include those listed above for existing properties, and in addition the requirements of standards 3-6 in the Massachusetts Stormwater Handbook. These include minimizing runoff through recharge, removing 80% of total suspended solids, source control and pollution prevention at some sites, and the use of specific controls in certain drinking water source areas and outstanding resource water areas. No off-site mitigation will be allowed.
Permit requirements for owners of existing properties in TMDL areas subject to the general permit will include those listed above for existing statewide properties, and in addition site improvements as necessary to meet the pollution reduction requirements for the specified surface water. Off-site mitigation will be permitted to meet the TMDL pollution reduction requirements if the highest practicable level of stormwater management is implemented on site.
Permit requirements for owners of redeveloped properties in TMDL areas subject to the general permit will include those listed above for redeveloped statewide properties, and in addition site improvements as necessary to meet the pollution reduction requirements for the specified surface water. Off-site mitigation will be permitted to meet the TMDL pollution reduction requirements if the highest practicable level of stormwater management is implemented on site.
Permit requirements for owners of newly developed properties in TMDL areas subject to the general permit will include those listed above for newly developed statewide properties, and in addition site improvements as necessary to meet the TMDL pollution reduction requirements for the specified surface water. Off-site mitigation will be permitted only to meet the TMDL pollution reduction requirements if the highest practicable level of stormwater management is implemented on site.
Some of the issues that may prove controversial in the proposed rules include the following:
A. Aggregation. To determine whether a site contains the minimum impervious acreage necessary to fall under the rule (two acres or five acres), the rule proposes that contiguous lots should be aggregated if there is a common stormwater management system or shared arrangements for the operation, maintenance or use of the impervious surfaces. Shared arrangements sufficient to require aggregation include snow removal, landscaping and parking.
B. Redevelopment. To determine whether a site has been redeveloped such that the permit requirements may be invoked, MassDEP has proposed to define redevelopment to include reconstruction, rehabilitation, repair or improvement of a roof that results in the substantial improvement of a building or structure. MassDEP explains in commentary that substantial improvement means that the work by itself or together with other work increases the fair market value of the building by more than 50%. Redevelopment may also include repair or improvement of 5,000 or more square feet, or at least five percent of a paved surface.
C. Timing. Due to expected costs of pollution reduction requirements in TMDL areas, MassDEP has proposed that existing properties will have ten years to install structural stormwater controls to meet TMDL pollution reduction requirements.
Written comments on the proposal are being accepted through March 11, 2009. For more information about the proposed Massachusetts stormwater permitting program, please contact Stephen Richmond at srichmond@bdlaw.com.
