Environmental and Land Use Law

Updates on Environmental and Land Use Law in New England and the US from Anderson & Kreiger LLP


EPA Stormwater Permit for New Hampshire Municipalities: Phosphorus Sticker Shock

How will “Expensive water regulations”
jibe with “Live free or die”?

The EPA’s recently issued revised draft “Small MS4 Permit” for stormwater discharges from New Hampshire municipalities has brought sticker shock to communities now subject to phosphorus removal requirements not contained in the previous draft.

Massachusetts municipalities have already experienced this sticker shock with the draft Massachusetts MS4 permits issued in 2010 (one for the“North Coastal” region and one for the “Interstate, Merrimack, and South Coastal” watersheds).

The unexpectedly high prices result from the costliness of the requirement to comply with Total Maximum Daily Load allocations for phosphorus that Massachusetts and New Hampshire have issued for certain water bodies in each state.  Municipalities whose stormwater systems discharge to these water bodies must reduce the amount of phosphorus that runs off streets and other impervious surfaces into the municipal stormwater system, which then discharges it to the water body. Municipalities need to achieve the required reductions (stated as percentages of current loads) with a combination of “non-structural” management practices, such as street sweeping, and “structural” approaches, which focus primarily on infiltrating stormwater into the ground.

Because installation of infiltration structures can be expensive – especially if done as a retrofit – the anticipated compliance cost for municipalities is high.  A contractor hired by EPA estimated the costs of structural phosphorus reduction measures for the Massachusetts towns of Bellingham, Franklin and Milford to be $29.7 million, $74.6 million, and $75.8 million, respectively.

Massachusetts municipalities expressed their alarm at such costs in their comments on the 2010 draft permits; presumably the New Hampshire municipalities will do the same.  (Comments are now due August 15, after two comment period extensions given in response to towns’ initial reaction to the draft permit.)  But the EPA may well respond that the Clean Water Act leaves it no choice but to mandate these reductions.  We will soon find out – EPA has announced that it has combined the two draft Massachusetts permit into one revised permit, which it expects to later this year.

What will happen when the irresistible force of the Clean Water Act meets the immovable object of municipal budgets?  Stay tuned.

About Rebekah:  I specialize in Environmental Law, Litigation, Land Use and Municipal Law at Anderson & Kreiger.  Prior to practicing law, I earned an M.S. in Water Resources, and worked as an environmental scientist, performing risk assessments for hazardous waste sites and as an analyst at the New England Interstate Water Pollution Control Commission.  


About the Author

Rebekah Lacey

Posted In: Stormwater

Find an Attorney