Category: Areas of Practice

Private parties as well as public entities are subject to the federal Clean Water Act of 1972 and, within it, they need permits for their discharges of any pollutants to waters of the United States.  The primary focus of the National Pollutant Discharge Elimination System (NPDES) permit program, since 1972, has been pollutants in industrial process water and discharges from private industries as well as municipal sewage treatment plants. We call these point sources.

Other water pollution comes in the form of non-point sources. Stormwater runoff fell under the Clean Water Act amendments in 1987 to implement a comprehensive national program to address problematic nonagricultural sources of stormwater discharges.  In 1990, the Environmental Protection Agency (EPA) put in place its NPDES Stormwater Program, in two phases.

In 1993, NPDES permits were required for storm water discharges from large and medium municipal separate storm sewer systems with populations of 100,000 or more people.  This first phase also covered eleven categories of industrial activity including construction activities greater than five acres.  Phase two was put in place in 1999, extending the permit requirements to small municipal separate storm sewer systems not already covered and construction activities disturbing between one and five acres of land.

With full delegation of permitting authority for the EPA’s NPDES Phase II Stormwater Program to the DEP, public and private entities must now develop comprehensive stormwater management programs focused on water quality, affecting many municipalities, industries, and large landowners.

The legally mandated programs for so-called MS4s typically deal with treatment standards, anti-degradation, retrofitting treatment, low impact development, wetlands construction and restoration, erosion and sedimentation control, pavement types and natural alternatives. Most stormwater discharges into water bodies in Massachusetts are covered by the provisions of EPA regulations.    

Consequently, municipalities with Municipal Separate Storm Sewer Systems (MS4s) that have been designated as regulated by NPDES Phase II must now comply with all EPA- and DEP-promulgated MS4 standards.  The legally mandated programs for so-called MS4s typically deal with treatment standards, anti-degradation, retrofitting treatment, low-impact development, wetlands construction and restoration, erosion and sedimentation control, pavement types, and natural alternatives.  There are currently 257 Phase II communities in Massachusetts.

Against this federal backdrop there are several sets of Department of Environmental Protection (DEP) regulations regulating point sources of pollution, of course, and now more recently stormwater discharges.  For example, Wetlands Regulations of DEP and Water Quality Certification Regulations have incorporated Stormwater Management Standards and made them binding and enforceable. 310 CMR 10.00 and 314 CMR 9.00.

Stormwater is coming to be controlled in permits required under the state Clean Water Act for both surface discharges and groundwater discharges; under both the Wetlands Protection Act and Tidelands and Waterways Laws; and in the various certification reviews for activities in Massachusetts seeking federal permits and grants, such as water quality certification and coastal zone consistency determinations.

At the municipal level, cities and towns choosing to supplement federal and state law with their own tougher or tailored requirements within their own municipalities, are considering Home Rule or zoning ordinances and bylaws with stormwater as the target. Some have gone so far as to regulate the volume and rate of runoff, the constituents of runoff, and best management practices to treat the runoff, even mandating that all runoff be handled onsite.

It is said that stormwater regulation has been the fastest growing area of environmental law for the last ten years. We believe it and have been helping clients in this evolving field.