Sam Hess of Inside EPA and many others are writing about EPA's Halloween Trick or Treat – the publication of a draft Clean Water Act NPDES General Permit that would apply to “commercial, industrial and institutional” properties with one acre or more of impervious surface in 65 cities and towns in the Massachusetts Charles, Neponset and Mystic River watersheds. This permit is a “treat” for the NGOs that have twice sued EPA to cause it to take this action. And there can be no doubt that compliance with the permit by the hundreds, if not thousands, of property owners that would be subject to it will dramatically improve water quality in these three rivers.
But that doesn't mean that our current Supreme Court would agree that the permit is authorized by the Federal Clean Water Act. What will the proposed General Permit authorize? The permit authorizes stormwater runoff, snow melt runoff, and surface water runoff from these properties. What will the property owners who have been involved in this runoff forever need to do to receive this authorization? The property owners will be required to act to achieve a 60 to 65 percent reduction in the concentration of phosphorus in the three rivers identified.
What will be the consequence of not being authorized to continue to discharge stormwater runoff, snow melt runoff or surface water runoff from one of these properties? That's easy. Property owners not compliant with the General Permit will be subject to civil or criminal pena.
