Danger: Stormwater

Thursday, February 26, 2009

"The scope of this program is pretty much unprecedented," said Seth Jaffe of Foley Hoag LLP. He was talking about the state's proposed stormwater regulations, and there are some fearsome unanswered questions, as the comment period draws to a close on March 11. "I am quite sure we don't now what they're going to mean until you have a specific piece of property and say, 'Does this apply to me?'" ... Also, BLOOMS! is coming ...

NAIOP Massachusetts held a scary information session on the stormwater situation earlier this month. It was so oversubscribed that it was repeated on Wednesday, to another packed house.

"The cost is very high," said NAIOP chief executive David Begelfer, "and there's a very clear question about what the benefit is." By some estimates, it could cost a land owner $100,000 an acre to "retrofit" a paved surface to meet these new regulations, should they go into effect as drafted. And they will apply to properties statewide -- and not just to new developments.

If H. Hamilton Hackney III of Greenberg Traurig LLP said it once, he said five times: The proposed regs are "complex." So what Jaffe and Hackney and Bethany Eisenberg of Vanasse Hangen Brustlin, Inc. did in an hour-and-a-half PowerPoint presentation and a 32-page handout, we'll try to summarized here.

"DEP's Draft Stormwater Regulations: A Primer on Costly Changes Expected to Affect Most Existing and New Commercial and Institutional Properties in Massachusetts" is the topic. Excluded from coverage in these rules designed to clean up the Charles and other rivers are "state, federal and local property. That's not a joke," said Jaffe.

The event was sponsored by Epsilon Associates Inc., Vanasse Hangen Brustlin, Foley Hoag and Greenberg Traurig. Epsilon's Samuel G. Mygatt, who couldn't be present for this panel, was a representative of Associated Industries of Massachusetts and sat on the stakeholders task force convened by DEP.

Today, NAIOP issued a statement of concern and calling for comments on the proposal. "If promulgated, the regulations are expected to cost businesses upwards of $5 billion," NAIOP said. "The Department did not perform a cost benefit analysis before releasing the regulations for public comment."

NAIOP's position is that, "With no statutory or regulatory mandate to implement this aggressive program, the Department's decision to proceed is premature. The Department must not move forward with the draft regulations. Instead, we urge them to identify alternative, cost effective methods for addressing the storm water issue through Operations & Maintenance (O&M)/Best Management Practices based on source control, targeting surface water quality for all land uses."

The draft regulations were issued, 270 pages, in November 2007 and the state held nine public meetings last year. They're 314 CMR 21, at www.mass.gov/dep/service/regulations/proposed/31421new.doc.

Key elements of the program include:

-- Stormwater discharges will be authorized by general permit.

-- "Impervious areas," like parking lots and roofs (but for some reason not tennis courts), trigger coverage. This applies to commercial, industrial, and high-density residential properties, and also to institutions like colleges and hospitals.

-- There are baseline performance standards to be met.

-- Additional standards will exist for redevelopment, development and watershed areas with current and future "total daily maximum loads," or TDMLs, of phosphorus. That's the pollutant these regs are all about (though only one of several that affect bodies of water).

-- There will be annual compliance certification, and fees.

-- Sites can be "aggregated," and require compliance whereas they would not require it separately -- but it's not clear who decides whether sites will be considered separately or together. This is one of the stickiest issues, the specialists on the panel said.

-- Variances and off-site mitigation will be allowed in some, very limited cases.

-- And of course there are penalties -- fines or imprisonment -- for noncompliance.

"One of the issues we have been struggling with is compliance costs," said Hackney, who specializes in the environment at Greenberg Traurig and has participated in the process of writing regulations on behalf of those who will be affected. The Massachusetts Department of Environmental Protection hasn't done an estimate of compliance costs, nor as NAIOP noted, a cost-benefit analysis.

The regulations focus almost entirely on treating conditions after they are contaminated. "We believe they should concentrate on source reduction," like sweeping streets of the chemicals that wind up in the water, Hackney said.

The primary concern behind the proposed rules is the condition of the Charles River, though the regulations will apply throughout the state, even in upland areas. The lower Charles, which has high concentrations of phosphorus, is contaminated largely from runoff in upper Charles River regions.

The goal in the Charles is a 65 percent reduction in phosphorus; bodies of water in other regions have other targets.

Jaffe, a partner in the environmental practice group at Foley Hoag (and who blogs at www.lawandenvironment.com), addressed the large crowd of developers, lawyers, consultants, engineers, and others about who will be regulated. "All of you."

And what? "Impervious surfaces," the ones that allow water to run off into streams and rivers without the kind of filtration that a natural field, for example, would provide. Typical impervious surfaces are parking lots, and of course roofs of buildings.

What is regulated includes any site with imperfious areas of five acres or over, or any site two acres or over in a TMDL area. So far six TMDL areas have been identified in the state, the Charles River being the largest, but more will be.

But much of the discussion this week surrounded what may just be a simple error or oversight in the proposals: What in some places are described as "pervious paving" surfaces are considered, in these new rules, as impervious. And therefore subject to remediation.

"Permeable pavement is impervious for this standard," said Eisenberg, director of stormwater services in the land engineering department at VHB.. "Explain that to me. That's not right. ...It makes no sense."

Sources of phosphorus in rivers also include municipal wastewater treatment plants and combined sewer overflow systems, and runoff from agriculture, forests, and open space. But these regulations only go after the impervious surfaces of developed property.

"They're only focusing on impervious surfaces," said Eisenberg. "Even with 100 percent compliance with this you would not reach the phosphorus goals for the Charles River." And, the panel said, while the regulations are proposed statewide, some rivers don't have phosphorus problems. "The Charles River has kind of been the impetus for having these regulations implemented statewide," she said.

Other TDML areas, where they do: Blackstone and French Basins in central Massachusetts, Millers Basin in North-Central, Chicopee Basin in Springfield, and the Connecticut River Valley.

Under the proposals, if you're putting down new pavement or putting on a new roof on an existing building, you have to comply.

They would apply only to "substantial improvement" of roofs, and to anything but "minor" repairs of paved surfaces. The language is fuzzy and unworkable in many areas, the panel said.

"Our position is we need a de minimus threshold," said Jaffe. "We need to clarify what they mean and frankly try to rein it in."

There's a lot of confusion over what happens if a regulated property is part of a larger property -- do you have to upgrade the whole thing?

DEP officials have been available to discuss some of these issues, Jaffe said, but interpretations may vary from bureaucrat to bureaucrat -- or of course from judge to judge if it comes to that. "The regulations are really long and complicated." And a handbook further explaining them is promised but not yet published.

The requirements for meeting runoff standards are indeed too long and complicated to go into, but all covered property owners would have to have stormwater management plans, operation and maintenance specifications for best management practices, a snow and deicing practices management plan, and pavements swept twice a year.

Beyond that, filtration systems would have to be installed, and the big issue there, especially for congested areas around Boston, is: Where's the land to do it on?

If it's impossible or prohibitively expensive, here's the scenario. "You've got a piece of property on the Charles River," said Eisenberg. "You're going to call somebody up in Hopkinton and say, 'I want to retrofit your site for a couple of hundred thousand dollars.' That right there is the biggest issue with these regulations."

Well, it may be. Or, Jaffe said, the lack of clarity on the "aggregation" issue might even raise constitutional questions, if aggressively enforced.

Another lingering issue is what happens if you find you can't afford to comply on a piece of property you own. "There's a very serious question at this point about whether you can avoid the regulations by terminating activity at the site," said Hackney.

With so many outstanding issues, it's not clear when these regulations will take effect. DEP estimated that there are 4,000 five-acre sites and 14,000 two-acre sites in the Charles River region alone that would be affected.

Said Eisenberg: "Nobody's against clean water in the state," but added, "We'd like to see some progres on other fronts that aren't as costly," like removing pollutants from fertilizers so they don't get into the water in the first place.

"Challenging regulations in Massachusetts is an uphill battle if you don't have constitutional issues," said Jaffe. "Hopefully we won't get to that point."

BLOOMS!

The Massachusetts Horticultural Society is trying to put its years of recent problems in the past, and will celebrate spring with BLOOMS!

The event, which they hope is a precursor to bringing back the annual New England Flower Show (it was canceled for this year), will be downtown March 13-15, at the InterContinental Hotel, One International Place, and 125 High St.

March 12 through 22 the show will be at Simon Property Group centers, including Copley Place, Mall at Chestnut Hill, and Atrium Mall.

Flower, garden, and landscape displays will be at those locations for public enjoyment. With responsibility for the Rose Fitzgerald Kennedy Greenway formally having shifted on Monday from the Massachusetts Turnpike Authority to the Greenway Conservancy, MassHort's relationship to the Greenway is unclear for the time being.

For more information on BLOOMS!: www.masshort.org/events.