NAIOP Files to Intervene in Costly Charles River Watershed Stormwater Court Case

NAIOP Massachusetts recently filed a Motion to Intervene in Conservation Law Foundation, Inc., et al v. United State Environmental Protection Agency, et al. The plaintiffs in that case seek to compel USEPA to impose a new regulatory program that would require owners of commercial, institutional, industrial and high density residential properties in the Charles River watershed with one acre or more of impervious area (parking lots, roofs, sidewalks) to apply for a stormwater discharge permit. NAIOP decided to intervene in the case given the significant impact this duplicative and burdensome regulatory program would have on property owners in a watershed that includes 35 communities and covers 310 square miles.

On April 28, the Conservation Law Foundation and the Charles River Watershed Association filed a complaint in federal court alleging that nutrients, including phosphorus, in runoff from a number of “commercial, industrial, institutional, and high density residential” properties are polluting the Charles River. The goal of the lawsuit is to force EPA into using its rarely used “Residual Designation Authority” (RDA) in the 35 communities that make up the Charles River Watershed to create a new stormwater permitting program. This proposed program would be in addition to the recently issued stormwater permitting program for municipal separate storm sewer systems (MS4s), which collect and manage a substantial portion of the stormwater discharged into the Charles River from developed properties. In this case, CLF is incorrect; EPA does not have a requirement to use the RDA.

This will affect all privately owned commercial and multifamily properties in the Charles River Watershed (communities including Boston, Cambridge, Needham, Newton, Natick, etc.) with more than one acre of impervious area.

In 2010, EPA proposed an RDA pilot stormwater permitting program in the towns of Milford, Franklin and Bellingham. As proposed, this program would require property owners to construct costly, retrofitted stormwater treatment systems. EPA funded a study to determine the potential costs to comply with its proposed permitting program. Though the pilot program targeted sites with two acres or more of impervious area, compared to the one acre threshold now being considered, the total cost in the three communities to comply with the draft permit was astronomical. EPA’s own consultants estimated that the costs would be at least $180 million for the three communities. Expanding such a program to all 35 communities in the Charles River Watershed would easily move that number into the billions. Costly and substantial retrofits of privately owned property would be immediately required if this is implemented. We estimate the costs to be at least $150,000 per acre for compliance. This would apply to existing owners, even if they are not redeveloping or renovating their property.

NAIOP supports the overall objective of improving water quality throughout the Charles River Watershed. However, any regulatory program developed to achieve that objective must be cost-effective, feasible and fairly allocate the regulatory burdens and costs. As we learned through the pilot program, the RDA approach is not the right tool. NAIOP has long championed alternative approaches that focus on public education, source control, and Best Management Practices. We actively supported the recent legislation restricting the use of phosphorous-containing fertilizers. Our intervention in the lawsuit will provide an important stakeholder group with an opportunity to have a seat at the table as these important policy and economic issues are being discussed.

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