Sam Hess Inside the EPA and many others write about the EPA’s Halloween Trick or Treat – the release of a proposed Clean Water Act NPDES general permit that would apply to “commercial, industrial, and institutional” properties with an acre or more impervious surface in 65 cities and towns in the Charles, Neponset, and Mystic River watersheds of Massachusetts.

This permit is a “treat” for the NGOs who have twice sued the EPA to encourage it to take this action. And there is no doubt that compliance with the permit by hundreds, if not thousands, of landowners subject to it will significantly improve the water quality of these three rivers. But that doesn’t mean our current Supreme Court would agree that the permit is authorized by the Federal Drinking Water Act.

What will the proposed general permit allow? The permit allows stormwater runoff, snowmelt runoff and surface water runoff from these properties.

What will landowners who have always been involved in this runoff have to do to obtain this authorization? Landowners will need to act to achieve a 60 to 65 percent reduction in phosphorus concentration in the three identified rivers.

What will be the consequence of not being allowed to continue to discharge storm water runoff, snowmelt water, or surface runoff from one of these properties? It’s easy. Landowners who fail to comply with the general permit will be subject to civil or criminal penalties if prosecuted by the EPA or by any citizen taking action under the citizen suit provisions of the Clean Water Act.

Now, if this seems unusual to you, that’s because it is. In fact, this is the first time the EPA has done something like this in the United States. Some of you may remember that just two years ago I wrote about the EPA’s decision to assert its “residual designation authority” in this manner to regulate something already regulated by the state and not the federal government in 47 of the other 49 states..

Call me old-fashioned, but whether it’s the definition of what “water of the United States” is, or what a pollutant discharge requiring an NPDES permit is, I’m for a federal law applied equally in all fifty states. . And whether the federal Drinking Water Act currently allows this type of regulation of stormwater, snowmelt, and surface water is one that the courts will almost certainly be asked to consider.

Of course, the EPA will say that the specific conditions of the Charles, Neponset and Mystic rivers require this unique action. And the EPA Federal Register The announcement states that the Clean Water Act “authorizes the Agency to regulate stormwater discharges that contribute to a violation of water quality standards.” » Of course, every release of any “pollutant” “contributes” to violations of water quality standards.

If the language of the law cited by the EPA sounds familiar, it may be because just two weeks ago, our nation’s highest court was considering whether very similar language in an NPDES permit issued to the City and County of San Francisco was enforceable.

In that case, an EPA permit prohibited discharges that “cause or contribute to violations of applicable water quality standards.” The city and county of San Francisco, fifteen industry groups and a dozen water supply and conservation associations have complained about the ban’s vagueness. , and I predicted it, following his opinion a year and a half ago in Sackett v. EPA, this Supreme Court will, at the very least, overturn the San Francisco permit.

For similar reasons, this EPA permit could eventually end up before the Supreme Court. Of course the San Francisco the case will have been decided long before it is finally handed down.

I have one last question. EPA exempted properties owned by the Commonwealth of Massachusetts, affected municipalities, and the federal government from the requirements of the proposed general permit. At the same time, he requested comment on whether multifamily owners should also be covered. If phosphorus in stormwater, snowmelt and surface water poses a threat to the water quality of these three rivers, which the EPA says it has determined, then why is it not not the same threat, regardless of the type of property from which it emanates? A cynic might wonder if the answer to this question has more to do with politics than science.