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EPA Region 1 Revises Residual Designation for Certain Charles River Communities and Issues Draft Permit – Comment Period Expires June 30, 2010

Beveridge & Diamond, P.C. - Massachusetts Environmental & Land Use Alert, May 2010

Continuing to demonstrate its position as a leader on stormwater regulation issues, Region 1 of the Environmental Protection Agency (EPA Region 1) proposed amendments to its Preliminary Residual Designation for the Charles River (Preliminary Designation) and issued a Draft General Permit for Residually Designated Discharges in Milford, Bellingham and Franklin, Massachusetts (Draft Permit). As described below, the Preliminary Designation and Draft Permit would subject privately-owned impervious surfaces in excess of two (2) acres located in the Charles River watershed towns of Milford, Bellingham, and Franklin to permitting under the National Pollutant Discharge Elimination System (NPDES) program. The comment period for both documents expires on June 30, 2010.

EPA Region 1’s issuance of the Preliminary Designation in November 2008 was an unprecedented exercise of EPA’s so-called "Residual Designation" authority under the Clean Water Act to designate additional stormwater sources for regulation on a case-by-case or category-by-category basis based on localized conditions. At the time, EPA Region 1 justified the exercise of this authority on the basis that these discharges contributed (1) to violations of water quality standards and (2) wasteload allocations that are part of a Total Maximum Daily Load (TMDL) for the discharge of phosphorus to the Charles River. This Preliminary Designation was not effective until a general permit was issued by EPA and has remained preliminary and subject to comment for nearly a year and a half.

The Preliminary Designation, as revised by the proposed amendments, would cover stormwater discharges (Designated Discharges) from:

  • two (2) or more acres of impervious surfaces;
  • located on a single lot or two or more contiguous lots owned by the same person or where the footprint of the same building, structure, low impact development techniques, or structural storm water best management practice spans the contiguous lots owned by different persons; and
  • located in the Charles River watershed towns of Milford, Bellingham, and Franklin.

The amendments proposed by EPA Region 1 modified previous language concerning which contiguous lots were included, narrowed an exemption for government-owned lands, and made the owner of the site responsible in the first instance for permitting, where the operator had that obligation in the Preliminary Designation.

EPA Region 1 simultaneously issued the Draft Permit for comment, which describes the proposed requirements for those with Designated Discharges, beginning with the submission of a Notice of Intent to be covered under the General Permit. The requirements fall into two categories: development and implementation stormwater management program and plan (SMP) and the Phosphorus Reduction Requirement. The SMP includes certain defined Baseline Performance Standards, including establishment of a Stormwater Management Team, training, pavement sweeping, management of snow and deicing chemicals, management of waste and hazardous materials, management of landscaped areas, and execution of an illicit discharge detection and elimination (IDDE) program.

The Phosphorus Reduction Requirement requires the permittee to achieve a reduction in the phosphorus load in storm water discharging directly or indirectly to the Charles River that is equal to 65% of its existing phosphorus load through a series of steps, including development of a Preliminary Phosphorus Reduction Plan within two (2) years of the granting of authorization to discharge under the permit, development of a Final Phosphorus Reduction Plan within three (3) years of the granting of the permit, and ongoing compliance activities.

EPA Region 1’s efforts in these three towns have been seen as a pilot likely to be applied to the entire Charles River watershed with possible broader applications.

The issuance of the Draft Permit and proposed amendment to the Preliminary Designation come at a time when EPA Region 1 is also focused on the issuance of new Small MS4 General Permits (MS4 Permit) that govern storm water discharges by certain municipalities. The comment period for the MS4 Permit for the North Coastal Region, which includes the Charles River and Neposnet River watersheds, closed March 31, 2010, and EPA Region 1 is expected to issue for comment one or more MS4 Permits covering Merrimack, South Coastal, and the so-called Interstate regions in the coming months. EPA has stated its intention to issue final MS4 General Permits by the end of 2010.

For further information, please contact Marc J. Goldstein at mgoldstein@bdlaw.com