News

The Massachusetts Department of Environmental Protection (“DEP”) and the United States Environmental Protection Agency (“EPA”) have recently proposed new stormwater regulations that will impact almost all properties in the state owned by a business, university or hospital, as well as condominiums and larger residential properties. 

The proposed regulations will apply to property containing more than five acres of impervious surfaces (the calculation includes roofs and paved areas, except so-called “green roofs”).  If a property is located in certain watersheds, such as the Charles River watershed, the regulatory trigger is reduced to two acres and owners will need to take additional steps to prevent the stormwater runoff of phosphorus bearing materials.  The proposed EPA regulations also affect certain properties located in the Upper Charles River watershed.    

If a property falls into either of the above categories, owners will be required to: (1) file for coverage under a state general stormwater permit; (2) prepare and adhere to a stormwater management plan (“SMP”); (3) submit to DEP an annual compliance certification; and (4) pay permit fees.

The SMP must be prepared by a stormwater professional and should describe best management practices (“BMPs”) used at the property to reduce contamination associated with stormwater discharges.  These BMPs typically include regular sweeping; an oil and hazardous material spill prevention and cleanup plan; erosion prevention measures; and proper storage of solid wastes and chemicals. 

Owners who redevelop and/or add impervious surfaces to their properties must comply with additional DEP requirements to treat stormwater and recharge subsurface water through proper infiltration techniques (e.g., costly porous paving systems).  The redevelopment trigger is stringent.  The regulations define redevelopment as the reconstruction or repair of a roof that increases the value of the building by at least 50% or reconstruction or repair of a paved area that is at least 5,000 square feet, or 5% of the total paved area (whichever is less). 

A development or redevelopment that is fully permitted within 180 days of the effective date of the regulations will not be subject to the regulations as long as there is diligent pursuit of project completion.  Note that while the regulations allow for off-site mitigation or variances for properties unable to meet compliance standards, mitigation is not available for new development projects and variances will not be granted for redevelopment projects or for properties located in the affected watershed areas. 

Finally, the new regulations propose a controversial aggregation requirement for adjacent properties owned by different owners that have an agreement or a practice for shared maintenance, use or operation.  This means that if two or more properties which individually do not contain enough impervious surfaces to be subject to the regulations share a snow removal service, the impervious surfaces on all the properties will be counted together for the purposes of the regulations.  This raises many issues, such as whether one or all of the aggregated property owners are ultimately responsible for regulatory compliance.  

Conclusion

The proposed regulations in many ways mirror existing federal NPDES stormwater permitting requirements, but go further.  They also push the construction of green roofs, the recharge of subsurface water and wider adoption of low impact development techniques (e.g., porous pavement systems).  It not clear what the cost to affected properties will be at this time - trade industry groups have estimated it to be $100,000 per acre. 

It is certain that there will be costs for permitting, annual compliance certification and the preparation of SMPs, but overall costs will be dependent on the effectiveness of each property’s current stormwater management system.  The regulations have not yet been finalized and final regulatory product remains to be seen.  However, it is important that affected property owners stay informed about this potentially costly set of regulations.