In February, we noted that the Conservation Law Foundation and the Charles River Watershed Association had threatened to sue EPA for failing to require that “commercial, industrial, institutional, and high density residential property dischargers of nutrient-polluted stormwater” obtain NPDES permits, and for failing to make a final determination on CLF’s and CRWA’s petition that EPA exercise its residual designation authority with respect to stormwater discharges in the Charles River Watershed.  

If this was a case of “sue and settle”, at least EPA decided not to settle until it was actually sued.  Yesterday, CLF and CRWA made good on their threat and filed a complaint in federal court.  We’ll see where this goes.  It’s clear that EPA understands that it has no good choices here, that additional stormwater controls are much more expensive than the advocates have generally acknowledged, and that there is significant opposition, not just from private real estate interests, but also from municipalities.

Indeed, MassDEP, which recently weighed in with comments critical of EPA’s draft MS4 permit, is probably also looking on with trepidation.  Of course, Massachusetts is one of the few states without a delegated NPDES program.  The Governor’s recent Executive Order purports to prevent the Commonwealth from issuing or maintaining regulations more stringent than federal regulations, but what about the flip side?  What happens when EPA begins to consider regulating more stringently than would the Commonwealth, if the Commonwealth were to operate the program itself?  I’m sure that MassDEP is not eager to take on CLF or the CRWA, but neither can this administration be eager to see EPA impose stringent new stormwater regulations on cash-strapped municipalities.  Precisely because of issues such as this, numerous stakeholders have been pressing MassDEP for years to take delegation of the NPDES program.  It will be interesting to see whether MassDEP can somehow come up with the money necessary to run its own program.