Update on the Draft EPA Small MS4 Phase II Permit

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.

For the past several years, the Environmental Protection Agency (EPA) has been working on finalizing a National Pollutant Discharge Elimination System (NPDES) Permit that will affect many small and large communities in southern New Hampshire. August 15th marked the close of the comment period that the federal Environmental Protection Agency (EPA) had established for the latest draft MS4 NPDES Phase II Permit which was released for comment in February 2013. The draft permit was so complex, EPA granted two extensions to the comment deadline to allow communities to digest the information and formulate questions, comments and concerns. The MS4 Permit (Municipal Separate Storm Sewer System, aka drainage system) affects 49 communities in Southern NH that have been identified through the census as having an urbanized density consistent with the requirements of the Phase II Stormwater program of the Clean Water Act. The Phase II program requires communities to obtain permits for their stormwater discharges. Communities are currently operating under a Phase II General Permit issued in 2003. All of the information about the permit can be found at EPA’s website. (http://www.epa.gov/region1/npdes/stormwater/MS4_2013_NH.html.)

The new EPA permit will significantly increase the requirements for stormwater compliance. Some of the more stringent requirements are actually tied to numerical water quality standards and the impaired waters list (technically known as the 303(d) list), which are the responsibility of the New Hampshire Department of Environmental Services (NHDES) under the Clean Water Act. This EPA permit spells out specific compliance requirements and creates the enforcement mechanism to ensure water quality standards are met. Many factors, including technology advances, database management and the number of samples taken have led to numerous additional impaired water body listings since 2003.         

NHDES has been very diligent in listening to municipal concerns and working with communities to verify the water quality listings. The message is simple -- that the data should be confirmed as 100% sound before investing significant taxpayer dollars towards meeting the standards -- has been heard and shared. The new permit also needs to provide additional time to allow communities to prioritize and plan for upgrades to their aging stormwater infrastructure. The current draft only allows communities the 5 year permit term.  In comments made by Curt Spaulding, Region 1 Administrator for EPA, there seems to be recognition on EPA’s part that a longer permit term needs to be granted.

For example, Goffstown is a community of roughly 18,000. In anticipation of this permit being released this year, the town added $280,000 to its’ current $140,000 per year spent on stormwater management. This budget represents only operational and administrative first-year costs, and does not include any capital costs that maybe required in the future.

Several of the MS4 communities are exploring the concept of an integrated permit through EPA. Many of the affected communities already manage a NPDES permit for their wastewater treatment plants or are managing the removal of combined system overflow systems. Obviously, rolling all of these federal and state requirements into one permit instead of managing three separate permits makes a great deal of sense.

Municipalities clearly value clean water because it is essential to New Hampshire’s economy and our environment; however, many cities and towns struggle with the fiscal inefficiency of this Phase II system.  Bodies of water become impaired on a regional basis with many contributors; yet, this NPDES permit tries to assign responsibility to each municipal government entity for all of the impairments listed within their jurisdiction. The Town of Goffstown cannot imagine spending hundreds of thousands of dollars over the next 5 years to remove the marginal bacteria impairment contributions currently in the Piscataquog River in Goffstown when a few miles downstream the City of Manchester is still struggling to remove their combined sewer overflows (CSOs) which overflow raw sewerage into the same river system every time there is heavy rain. Federal regulators need to find a way to use the limited resources we have to create the greatest impact on clean water.

A group of impacted municipalities has been meeting regularly with NHDES staff to better understand the impairment listings and water quality standards. This group has requested that EPA join in these meetings with the regulated communities now that the comment period is closed. Cities and towns hope to assist EPA in creating a final permit that is protective of our water resources, while allowing communities to efficiently prioritize the use of limited resources in obtaining these goals over the long-term.

Carl Quiram is Director of Public Works for the Town of Goffstown. Anyone interested in participating in these NHDES meetings can contact Carl at cquiram@goffstownnh.gov.