Massachusetts to Seek Water Permitting Authority

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By Martha W. Kessler

June 20 — Massachusetts officials are putting plans in place to file an application with the Environmental Protection Agency seeking authority to administer the National Pollutant Discharge Elimination System (NPDES), a move that is presently opposed by several environmental organizations.

Obtaining such authority will allow the state Department of Environmental Protection (MassDEP) to look at the state's water resources as a whole, and not in various silos, MassDEP Commissioner Martin Suuberg told Bloomberg BNA in an interview June 17. The state already has authority to oversee programs related to wetlands, drinking water and septic issues.

“More and more people understand the importance of looking at water resources as whole,” Suuberg said. “How you use it. Where it goes, looking at it on a watershed-wide basis. There is an advantage to having those programs and being able to use the synergy of all those programs working together that is helpful.”

And, he said, MassDEP does have a good record of administering other federal delegated programs such as the federal Safe Water Drinking Act, as well as air and waste site cleanup programs that are delegated. It will also allow MassDEP the opportunity to have a more interactive relationship with communities and other permittees, he said.

Massachusetts is currently one of only four states to which this authority hasn't been delegated by the federal government. The other states are Idaho, New Hampshire and New Mexico. Massachusetts has not previously applied for this authority.

Established Under Clean Water Act

The NPDES program was established by the Clean Water Act and regulates point sources that discharge pollutants to waters of the U.S. and requires permits for those sources. The EPA can administer the program in a state or authorize states to administer their own programs.

The vast majority of states already have been designated to administer the program. In addition to Massachusetts, Idaho is seeking authorization to administer the program; New Hampshire and New Mexico are not.

Next Steps

In order to proceed with administration of the NPDES program, MassDEP is seeking state legislation that would implement a number of changes in underlying state statutes and regulations, as well as a letter from the governor seeking review and approval.

Massachusetts Gov. Charlie Baker (R) introduced legislation April 29 (H. 4254) that would implement those necessary changes. The bill is pending before the state Joint Committee on Environment, Natural Resources and Agriculture. It would amend the Massachusetts Clean Waters Act to ensure conformity to federal programs and explicitly authorize MassDEP to apply for delegation. It contains 16 changes related to program implementation and enforcement. Several other necessary actions in addition to the legislation would also need to be taken.

The outlook for consideration of the measure is not clear at this time.

In addition to the regulatory and statutory changes, MassDEP would need to seek $4.7 million in new appropriations to oversee the program. This includes $3.2 million for 40 new full-time equivalent employees and $1.5 million for contractual support. Suuberg said clearly this funding would not be included in the budget for fiscal year 2017, which is being finalized by state lawmakers before the July 1 start of the fiscal year.

The state would also need to reach agreement on a memorandum of understanding with the EPA on how the program would transition to the state once all the underlying parts are put in place in Massachusetts.

Suuberg said if the legislation is adopted during the current session, the state would hope to make its application to the EPA before the end of 2016.

The EPA continues to maintain a healthy oversight over those programs even after it is delegated, Suuberg said, through yearly inspections, data review, the quality of decisions and permits. “We have had a good track record with our other programs and we believe we can have a good track record with this one,” he said.

Further Study Urged

However, the Conservation Law Foundation and its partner organizations oppose this delegation of authority to Massachusetts without adequate funding and without being able to explain the benefits the state is claiming will come from oversight of the program, said Caitlin Peale Sloan, a Conservation Law Foundation staff attorney.

“We've already seen over the last decade as DEP's budget has gotten slashed again and again, a serious degradation in ability to assess water quality and come up with a solution for the water programs that they manage now,” she told Bloomberg BNA in an interview June 20.

“It doesn't seem reasonable to ask the legislature to give them control of this program that is going to cost millions more per year than it does now because EPA is paying for it now,” Sloan said. “And they haven't shown they can even carry out adequately the job that they have currently in terms of assessing water quality, let alone NPDES permitting.”

Sloan said the foundation and its partners testified on the pending legislation during a May hearing before the environment committee and are letting legislators know that there are a number of questions that need answers before such a measure could be adopted. And, she said, these questions won't be answered before the end of the current legislative period. They are urging lawmakers to table the matter and study it further, she said.

To contact the reporter on this story: Martha Kessler in Boston at

To contact the editor responsible for this story: Larry Pearl at

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