Are You Ready For This?

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

It is called the new MS4 permit, formally named the 2014 Municipal Separate Storm Sewer System permit because it was first introduced in 2014. It was issued in Massachusetts this past summer, and our time for the permit is coming later this year.

An interesting Technical Memorandum was prepared by the U.S. Environmental Protection Agency (EPA) staff of Region 1 (NH is in Region 1) that compares the cost of Permit Action Items (PAIs) from the 2003 mandates to the 2014 mandates. This is for the first five-year cycle of the permit. These projected costs have been separated into rural, suburban and urban communities. Of course, here in New Hampshire, we have some smaller (population-wise) communities that were never called MS4 communities until now.

Without making this an exhaustive regurgitation of the data, basically, over the next five years, a rural community will have to spend a half million dollars. A suburban community will have to spend one and a half million dollars, and an urban community will have to spend two and a half million dollars. These are the EPA’s estimates. Could be more.

The first year after the permit is issued is a planning time. Once the plans are drawn-up, the implementation begins. What will be done in the planning phase? Every outfall from the community that discharges to every single water body, stream, lake or river will be identified. The water coming out of that pipe will be analyzed both during the dry periods and during rain events. Now, that pipe might be discharging water from a parking lot, a major road, or a back country road. All will be sampled. What comes out of that pipe will be analyzed and then the community will be told what they have to do about it. Then the community must implement this and that until the water runs clean enough, or they get to just keep on spending money to try to clean it up.

Yet, what if a community just says, “Hold on! We don’t have the money for this! We need a new school. We need a new cruiser or a new fire truck. We can’t spend this money!”

The EPA was very clear on this point in a recent seminar I attended. After the town says they don’t have the money, the next communication from the EPA to the community the selectmen will be a not-so-nicely-worded letter from a federal attorney. Then there will be the fine and a nice write-up in the newspaper. Nasty stuff.

What is actually being done? What is actually the goal of the EPA?

There is a map on the NH Department of Environmental Services web site that shows all the “severe and marginally impaired waters” of the state, based upon the “2012 All Impaired Waters of the 305(b) and 303(d) List Final” (as approved by the EPA). The “impaired waters” are everywhere across the state. The Final 2012 List of All Impaired or Threatened Waters is massive.

The surface waters of the State have been assessed. The assessment determined whether the waters provide for the designated uses of protection and propagation of a balanced population of shellfish, fish, and wildlife, and allow recreational activities in and on the waters. There is no question that many of the waters have impairments to the designated uses. Some of the impairments are linked to pollutants such as bacteria, nutrients and sediment. Runoff from impervious surfaces can be one of the sources of the contaminants.

The goal of the EPA is to set standards for how clean the water must be before it can be removed from the impaired list. The goal of the EPA is to get cleaner water that will support the designated uses. The thorny question in this scenario is “how realistic are the standards?”

Make no mistake. Municipalities have spent millions in dealing with stormwater. This is not something that municipalities have ignored. But the coming MS4 permit will have a massive financial impact.

In the first year of the permit, nothing much happens because it is the planning phase. But the first problem for municipalities is how do they even begin the process of testing all their outfalls? How do they even find all the outfalls?

I have already heard about the beginning of the “consultant parade.” Many consulting firms are parading their expertise to the towns, showing how they can do the job. The message is: “Our folks from our big shiny office building can do it better and cheaper than those other folks from their big shiny office building!”

Once the permit is issued, there is a 120-day window to take legal action to put the brakes on implementation. After that window, there will be no appeals to the permit. As they say, “now you live with it.”

This is a cautionary tale not only to the municipal folks, but also to the development community. Once the permit is in effect, every single new development, every single re-development, every single retail development, every single residential development, will be viewed through the lens of the MS4 permit. Prepare for the term “innovative stormwater management” to become a standard in your vocabulary. In case you have not noticed, the age of the stormwater detention basins and treatment swales has passed. You will be doing porous pavement, gravel wetlands, and maybe even green roofs. More than one dog is in this hunt.

I don’t have any magic words of wisdom for this issue. No quick fix. No way out. I do know that we have many demands already placed upon our municipal official and staff with very limited budgets. Where will the money come from?

As I heard in the seminar, the EPA said there was no nest egg of money set aside to help all our cash-strapped communities. There is virtually no assistance. In fact, as I was leaving the seminar, one of the municipal folks expressed his relief that he would be retired by the time the “real money” needs to be spent in five years’ time.

That is the point. The estimate of costs for the first five years is just to collect the data of how badly your community is contributing to impairing the waters of New Hampshire. The following 20 years is for all the corrective actions (PAIs) that will have to be put in place. That is when the real money will be spent.

No one is anti-clean water. No one wants to have impaired waters. Everyone wants to support cleaning our waters. But there are many and varied challenges that our communities are facing. Do you suppose the homeless person is worrying about the phosphorus levels in our lakes? Do you think the guy who can’t get his teeth fixed because he does not have the medical coverage is losing sleep over the nitrogen levels in Great Bay?  Do you think the mother with the part-time job and kids who are hungry because there is no food in the house is upset that bacteria is showing up in the local river?

Priorities.

Jim Gove, principal at Gove Environmental Services, Inc.,has been working in the field of soil and wetland science since 1978, including eight years as a soil scientist with the US Department of Agriculture Soil Conservation Service. Jim is recognized as a state expert on wetlands and writes frequently on this and other environmental issues. Jim may be contacted at 603.778.0644 ext. 15 or jgove@gesinc.biz.