Precedent-setting MS4 General Permit in Effect for Massachusetts and New Hampshire

After 10 years of delay, the Municipal Separate Storm Sewer System (MS4) General Permit in Massachusetts and New Hampshire is now officially in effect. For many of us in the stormwater realm, this permit was beginning to feel like Melville’s white whale: a regulatory beast of legendary proportions, perpetually looming just beyond the horizon.

Known as the 2016 MS4 General Permit, this is the first reissuance of the original 2003 Small MS4 General Permit. The permit was drafted in 2008–2010 and went through numerous public hearings and comment periods before being rewritten in 2014 in a form similar to what we see in the current permit. The 2014 draft had more than 1,700 pages of written comment, is under appeal by five organizations (Conservation Law Foundation; National Association of Home Builders; the City of Lowell, Massachusetts; the Massachusetts Coalition for Water Resources Stewardship and the Town of Franklin, Massachusetts; and the Center for Regulatory Reasonableness), and the EPA was sued by a coalition of 10 watershed protection groups last year due to the most recent delay of the permit (a one-year delay of effective date in Massachusetts). Needless to say, there is more to the story of these stormwater regulations and we will be watching the progress of consolidated appeals and lawsuits. 

Regardless of what’s happening in the courts, this is the first working week of new requirements for close to 300 municipalities and regulated institutions in the affected region. As Massachusetts and New Hampshire are two of the remaining four non-delegated states where the EPA retains authority for NPDES programs, this new general permit sets precedent in many ways (hence the appeals from national organizations) — when the EPA reissues a permit, everyone is watching.

The permit has many unique and challenging elements, but the priorities among the new regulations are identification and elimination of illicit discharges. This comes with extremely prescriptive requirements, largely based on years of implementation in the region’s Phase 1 regulated discharger: Boston. What EPA Region 1 has recognized is that our aging sewers remain a significant threat to water quality, as most of the combined sewer overflows are abated. According to EPA staff, during the past 30 years in greater Boston, correction of leaking sewers under the purview of the MS4 General Permit, has kept over 800,000 gallons per day (GPD) of untreated wastewater out of stormwater drainage systems discharging to Boston Harbor. Our own illicit discharge investigations in other Massachusetts cities have resulted in over 150,000 GPD of raw sewage no longer leaking into our storm drains. 

Among the many prescriptive requirements in the 2016 MS4 General Permit, other major new elements are related to required reduction of discharges of phosphorus in the Charles River watershed. These provisions will require 33 watershed communities to plan for and begin to reduce the phosphorus discharged via stormwater consistent with the Charles River Total Maximum Daily Load (TMDL). These are highly controversial provisions in the new permit and will require considerable investment for several communities with the largest stormwater loads. While stormwater-based nutrient requirements are new to us in New England, Chesapeake Bay communities and other regions of the country have been dealing with these types of regulatory provisions for many years. In the upcoming Summer 2018 issue of the NEWEA Journal, I am publishing an article that explores the challenges of these specific permit provisions and ways we can leverage experience in other regions in stormwater-based nutrient controls. 

Regardless of the challenges, the new MS4 General Permit in Massachusetts and New Hampshire will surely be the new standard for other New England states as they reissue their permits. One can presume that the permit will also be referenced outside the region given the prescriptive nature of the illicit discharge provisions. Stormwater sailors, wherever you are, sharpen your harpoons.

For a simple break-down of what affected communities should be doing between now and the beginning of 2019, download our MS4 General Permit Support brochure. It includes a timeline with the major components that communities need to plan for and implement, and contacts for those that need support.


Zach Henderson Senior Technical Leader Stormwater & Flood Resiliency

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