Massachusetts Seeks Delegation of Clean Water Act Permitting Program

Massachusetts is known for its comprehensive and innovative environmental laws and regulations.  One exception has been the administration of the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) permit program.  Massachusetts is one of only four states not “delegated” this authority now.

The Massachusetts Department of Environmental Protection (MassDEP) is taking steps to take over responsibility for administering the NPDES permit program from the U.S. Environmental Protection Agency (EPA).  In order to be delegated authority under a federal environmental statute, a state must submit a plan for EPA approval that identifies how the state will provide the legal authority, funding, and staffing needed to carry out the federal regulatory program.  Once a program is delegated EPA retains certain rights, including the right to take additional enforcement actions if it deems the state’s enforcement efforts to be inadequate.

Last month Governor Baker filed legislation that would enable the state’s administration of a Massachusetts Pollutant Discharge Elimination System.  If passed, the legislation would be part of MassDEP’s application to EPA to obtain delegation of the NPDES program.  On May 17th, the Legislature’s Joint Committee on Environment, Natural Resources and Agriculture held a public hearing on the legislation (H4254).  Thus far it has the support of the Massachusetts Coalition for Water Resources Stewardship and the Massachusetts Municipal Association.  Some environmental advocacy organizations have expressed concerns that delegation of the program will diminish standards for water protection.  The Environmental League of Massachusetts opposes the legislative proposal because it does not include adequate funding for the program to be successful.

The process to obtain delegation may take years, but the Baker Administration is likely to seek to complete it before the end of its first term in 2018.

If you have any questions or concerns, please contact Michelle O'Brien (617.488.8146).