On October 31, 2024, Region 1 of the United States Environmental Protection Agency (“EPA”), which covers the New England states, proposed sweeping new requirements to regulate stormwater discharges from certain commercial, industrial, and institutional (“CII”) properties into three watersheds in Eastern Massachusetts. The proposal comprises two related actions: (1) a preliminary residual designation determination (“Determination”) pursuant to EPA’s authority under the Federal Clean Water Act requiring a permit for certain stormwater discharges in the Charles, Mystic, and Neponset River watersheds, affecting more than 1,500 parcels of land in over 50 municipalities, and (2) a draft of a general permit authorizing and setting requirements for the discharge of stormwater into the three watersheds (the “CII General Permit”). Publication of the drafts triggered a 90-day public comment period on both the Determination and the draft CII General Permit. The Clean Water Act grants EPA so-called residual designation authority (“RDA”) to require National Pollutant Discharge Elimination System (“NPDES”) permits for stormwater discharges when it determines that the discharge contributes to a violation of a water quality standard or is a significant contributor of pollutants to the waters of the United States or that such action is needed to protect water quality. Once it becomes final, the Determination, which was originally published in September 2022, will require all private commercial (including mixed use), industrial, and institutional properties with one or more acres of impervious cover in any of the three watersheds to obtain an NPDES permit. The Determination and related permitting are intended to reduce pollution from nutrients and pathogens that run off impervious surfaces in stormwater and enter the rivers. EPA is specifically targeting phosphorus, which it considers an “indicator pollutant” that can be regulated as a means to target a group of pollutants. Thus, controlling phosphorus is expected also to limit nitrogen as well as reduce bacteria and other pathogens. The permit requirement applies to both existing sites and sites that subsequently are developed to exceed the impervious cover threshold, and it applies whether the discharge occurs through a private separate storm sewer system, through a municipal separate storm sewer system (“MS4”), or directly into the any of the three rivers or their tributaries. It does not affect discharges to combined sanitary/stormwater sewer systems with a permitted publicly owned treatment works (“POTW”). The Determination only affects privately owned properties; accordingly, it does not apply to any property that is subject to the Massachusetts MS4 stormwater general permit. It also is inapplicable to properties that have an individual NPDES stormwater permit. Dischargers operating under EPA’s multi-sector general permit however, are subject to the CII requirements for portions of their sites not covered by the multi-sector permit. Although, as written, the draft does not apply to residential sites, EPA is requesting comment on whether multifamily properties, including privately owned housing with five or more units, should also be required to obtain a permit. Overview of CII General Permit General permits are designed to cover multiple dischargers who have similar operations and types of discharges. They have standardized conditions and therefore by-pass the site-specific evaluations necessary for an individual permit. As a result, general permits are quicker to obtain. To avoid the need for many hundreds of individual CII permits, EPA has proposed the CII General Permit which is available to all dischargers who meet its requirements. The CII General Permit identifies eligible dischargers, states who may be the permittee, establishes the process to obtain coverage, mandates a specific phosphorus reduction target along with requirements and a schedule for meeting the target, and contains various reporting and recordkeeping obligations. The general permit is available for CII sites with at least one acre of impervious cover. Impervious surface includes anything that significantly impedes infiltration of water into underlying soil, such as roads, driveways, parking areas, buildings, rooftops, artificial turf, and compacted gravel or soil. Under the general permit, impervious cover is measured by combining contiguous parcels of land that are owned by the same entity even if they are separated by a roadway, garden, or similar feature that interrupts the continuous flow or use of the land or by an easement, as long as the land on either side is owned by the same entity.  EPA is seeking comment on this approach. The owner of the site (or contiguous sites) is considered the permittee, unless a written agreement gives another entity the authority to make decisions regarding operational control of one or more sites, in which case the operator is the permittee. Where a property has multiple lessees, however, the draft permit designates the owner as the permittee regardless of whether an agreement provides otherwise. EPA is seeking comments on this approach. In particular, EPA asks the public to weigh in on how a shopping center with a single owner, but multiple tenants, should be treated for permitting. Notice of Intent To obtain coverage under the permit, the owner or operator of an existing site must file a notice of intent (“NOI”) and receive authorization from EPA to discharge. An owner of multiple contiguous sites needs to secure coverage under a single NOI applicable to all of the sites. EPA is requesting comment on how to handle situations where a landowner has multiple noncontiguous properties. One suggested alternative is for the permittee to submit a single NOI and receive authorization from EPA for all noncontiguous properties that it owns or operates. In that case, phosphorus reductions could be done on any of the sites covered by the authorization. Alternatively, a separate NOI and authorization could be required for each noncontiguous site owned or operated by the same entity. For existing sites, NOI filing deadlines are phased in to avoid overburdening applicants and to allow EPA time to address them in a controlled fashion. Properties with five or more acres of impervious cover must submit the NOI no later than six months after the effective date of the CII General Permit. Properties with greater than or equal to two but less than five acres of impervious cover have up to 12 months after the effective date of the permit to apply, and properties with one or more acres but less than two have 24 months. For new or increased impervious cover, an NOI is required at least 30 days before occupancy of the site or termination of any construction stormwater general permit, whichever occurs first. This requirement applies to newly developed sites; sites that had less than one acre of impervious cover prior to an increase above the acreage threshold; and sites not yet permitted that increase impervious cover to exceed the next impervious cover acreage category (i.e., 2 or 5 acres). Additional NOIs must be submitted when the amount of impervious cover changes and for the implementation of stormwater controls. Where site ownership or identity of the operator changes, the new permittee has 30 days after the property transfer or change in operator to submit an NOI. In addition, the former permittee must file a notice of termination within 30 days after permit coverage becomes active for the new owner or operator. All permit requirements, including reporting obligations, continue until EPA approves the notice of termination. When a property is sold, the seller must confirm that all installed structural stormwater control measures are maintained and functioning as designed and certify to the same in the notice of termination.  EPA’s timeframe for acting on NOIs will vary depending on the amount of impervious cover. The agency plans to issue determinations of authorization for existing large sites (five or more acres of impervious cover) within six months following the deadline to submit an NOI. For medium-sized (two or more acres but less than five) and small sites (one or more acres but less than two), EPA will issue its determination within 12 months following the NOI deadline. For new or increased discharges, EPA will issue the authorization within six months following the deadline for NOI submittal. The effective date of permit coverage will be as indicated on the authorization. In the absence of EPA’s written notification of permit coverage, the owner or operator is not authorized to discharge under the permit. Phosphorus Control Requirements and Compliance Schedule The CII General Permit establishes a multiyear compliance schedule to reduce the amount of phosphorus and other pollutants discharged in stormwater. Ultimately, all permittees must reduce phosphorus in stormwater from their sites by 65% in the Charles River watershed, 62% in the Mystic River watershed, and 60% in the Neponset River watershed. To achieve the reduction, the permit imposes various requirements and interim steps. Within two years from authorization to discharge, permittees must develop a stormwater pollution control plan (“SPCP”), which sets their site-specific phosphorus reduction responsibility. Within six years of authorization, permittees of existing sites must meet an interim limit of 50% of the site-specific phosphorus reduction requirement and within 11 years must reach 100% of that requirement. Owners of newly developed sites, however, will not benefit from the extended compliance schedule. Instead, they must meet the phosphorous reduction requirements within two years of permit authorization in addition to having the SPCP in place. EPA is requesting comments on the appropriateness of the compliance schedule. The specific pollutant load reduction responsibility for existing sites is determined by taking the average annual phosphorus load of the site’s total existing impervious cover at the time of the permit’s effective date and applying the applicable pollutant reduction percentage for the watershed. A technical appendix to the permit explains how to make the calculation. Sites newly developed after the permit becomes effective may not add phosphorus load from runoff generated by the new impervious cover. Special rules apply for redevelopment sites. These are locations that add impervious cover after the effective date of the permit to a site that already meets the threshold. No net increase in phosphorus load may be added by runoff from the new impervious cover. Accordingly, the phosphorus runoff load from the new impervious cover may not exceed the load that existed for the previous pervious area. Existing impervious portions of the site that is being redeveloped must comply with the pollution reduction requirements for existing sites. Redevelopment projects that do not change the total net area of impervious cover must meet the pollution requirements for existing sites. The SPCP provides the road map for reducing phosphorous. The plan must calculate site-specific pollutant load reductions based on the amount of impervious cover and state how the permittee will meet the 50% six-year interim limit and 100% reduction target using structural and/or nonstructural stormwater controls. Stormwater Control Measures Permittees may choose from a variety of structural and nonstructural stormwater control measures. Upon implementation of any stormwater control measure, the permittee must notify EPA and identify the measure being used. The SPCP must specify the pollution reduction achieved by each control calculated by using methods set out in the permit. Stormwater management system design needs to be at least as stringent as the 2008 (or updated) Massachusetts stormwater handbook. Long-term operation and maintenance activities are required and must be documented. Where permittees already have structural stormwater control measures in place, they can receive credit towards their phosphorus reduction target, provided that they have records to support the reduction and certify annually that the control measures are being maintained. Nonstructural control measures include sweeping of streets and parking lots, leaf litter collection, and cleaning of catch basins, all of which are intended to keep pollutants from entering the rivers. Pollutant removal percentages allocated to each control measure are set forth in a technical appendix to the permit and the permittee must maintain records of sweeping and cleaning, along with associated pollution reduction credit calculations. Permittees will have three options to reduce phosphorus: First, they may use on-site structural or nonstructural stormwater control measures within the watershed. Second, they may use off-site stormwater control measures implemented at another eligible CII or MS4 location within the watershed that is not the permitted site. This may involve funding for a regional phosphorus control project undertaken by a local watershed management group or co-funding of a stormwater management project with another permittee. Where a regional approach is used, the permittee must enter a legally binding agreement with the local watershed management group. The agreement must be limited to the boundary of the watersheds where the permittee’s site is located. Co-funding also must be done through legally binding agreements and relate to the relevant watershed.  Third, a permittee may engage in trading of phosphorus reduction credits with another permitted site in the same watershed. Thus, if a permitted site reduces its phosphorus by more than the required percentage, it may sell “credits” for the excess reduction to another discharger.  Permittees who use an off-site option remain responsible for ensuring compliance with the permit. Off-site reduction approaches must include operation and maintenance plans identifying the party responsible and actions necessary to ensure the stormwater control functions properly. The party receiving the removal credits must certify annually that the O&M activities are occurring. Best Management Practices The CII General Permit requires the use of best management practices (“BMP”) consisting of an on-site chemical application management plan (“OCAMP”) and stormwater training. The OCAMP, which is prepared in connection with the SPCP, deals with landscaping and lawn maintenance and includes a separate winter maintenance plan. Lawn maintenance practices must address erosion or poor vegetative cover, management of trash containers, and compliance (within 24 months of authorization) with Massachusetts regulations relating to plant nutrient application requirements for agricultural land and non-agricultural turf and lawns. The OCAMP is due within two years of the date of authorization to discharge. Annual certification must be made that all requirements of the chemical application management plan are being implemented. With respect to winter maintenance, EPA acknowledges that public safety often requires de-icing with salt. Accordingly, instead of prohibiting salt, the permit calls for reducing the amount of chloride used through calibration, low-salt zones, and application rate standards. Permittees must track and report the total amount of salt used each season and the application rate in pounds per acre. Winter maintenance plans must outline winter operations at the site, describe calibration of equipment, identify mechanical snow removal practices, discuss the storage, use and monitoring of salt, and analyze other potential de-icing materials. The training requirement calls for persons responsible for implementing the permit to attend two annual trainings in stormwater management and related topics starting two years after authorization under the permit. Records and Annual Reports The permit includes a variety of record-keeping requirements. Records must be retained for at least three years after the date coverage under the permit expires or is terminated. Permittees must submit annual reports summarizing activities of the prior year. The first report is due 14 months after permit authorization. Besides information on pollution reduction activities undertaken during the prior year, the annual reports must certify as to various required steps under the permit including that: a storm sewer system map has been completed within 12 months of the effective date of authorization and remains accurate; operating and maintenance is occurring at each structural stormwater control measure along with the date of last maintenance; nonstructural controls continue to be implemented; an SPCP has been developed and is up to date; the OCAMP has been developed and is being implemented along with the total amount of salt used per acre each season and the application rate in pounds per acre. At the end of the sixth and 11th year, the annual report must certify to compliance with, respectively, the 50% and 100% pollution load reduction requirements.  EPA has scheduled public meetings and public hearings to be held in January on the Determination and CII General Permit.  Written comments are due by January 29, 2025.

The Massachusetts Environmental Policy Act (MEPA) Office in the Executive Office of Energy and Environmental Affairs (EOEEA) has floated two straw proposals (available here) outlining conceptual frameworks to update the 2021 MEPA Interim Protocol on Climate Change Adaptation and Resiliency (Resiliency Policy) and the 2010 MEPA Greenhouse Gas (GHG) Emissions Policy and Protocol. The existing Resiliency Policy requires that Environmental Notification Forms (ENF) include information on adaptation strategies to mitigate climate risk to projects, while the GHG Policy provides guidance for preparing GHG emissions analyses in connection with Environmental Impact Reports (EIR). Public comments on each of the straw proposals are due by September 16, 2024. Upon review of the comments, the MEPA Office will issue the complete text of updated policies for an additional round of public comments. The anticipated effective date of the two policies’ updates is the winter or spring of 2025. Climate Resiliency Policy Proposal The Resiliency Policy was created to better assess the potential impact of extreme weather and climate change on development projects that are subject to MEPA. After reviewing project data collected since the Resiliency Policy went into effect three years ago, the MEPA Office is now seeking to strengthen the Policy. Potential changes include (i) updates to the ENF form to provide more information on climate risk and mitigation and (ii) requirements for EIRs to include additional analysis to evaluate and mitigate climate-related environmental harm. Under the straw proposal, all new projects filed with the MEPA Office will continue to be required to submit a standard output report generated from the Massachusetts Resilience Design Tool (Resilience Tool), a custom software that creates automated projections of climate impact and recommends best practices for development. In addition, the ENF or Expanded Environmental Notification Form (EENF) for new projects must discuss the project’s climate resiliency. The ENF template will be revised to include: Identification of Federal Emergency Management Agency (FEMA) flood zones and Base Flood Elevations (BFE), if established; Useful life of the project (user input); Climate hazard exposure score and key scoring rationale (from the Resilience Tool’s output report); Asset risk rating, planning horizons, and return period recommendations (a metric used to estimate the frequency of the occurrence of natural disasters) (from the output report) for the Project’s “primary” assets; Discussion of whether the project is anticipated to be consistent with the Tool’s recommendations; and Descriptions of resiliency measures incorporated into the project. Additional analysis will be required for EIRs, which will aim to address whether a project is consistent with Resilience Tool recommendations. Project proponents will need to first consult numeric values from the Resilience Tool. However, they may use additional site-specific methodology to provide an alternative analysis if they are able to justify why a site-specific approach is needed and demonstrate use of the best available data. If a project does not meet Resilience Tool recommendations, project proponents will need to explain whether alternative designs and locations were considered for the project, what flexible adaptation strategies will be implemented, and how the project will comply with local and state mandates. Proponents will be directed to consult best practices described in the ResilientMass Action Team (RMAT) Climate Resilience Design Guidelines, a document that provides guidance on how to implement recommended standards, to assess the criticality and useful life of a project. The Secretary of the EOEEA may require revisions of an output report at her discretion. The straw proposal calls for EIRs, at minimum, to analyze the following: elevation above water levels of buildings and infrastructure, stormwater sizing, and ability to withstand extreme heat.  Natural resource projects will need to discuss ecosystem benefits. In each analysis, the Resilience Tool recommendations will be used for guidance, and projects that do not comply with those recommendations must provide justification for their plans. The elevation category applies to new or substantial improvements to any buildings or facilities and above-ground infrastructure. The stormwater sizing analysis applies to new or significant improvements to stormwater management systems. The extreme heat category mandates a report on the anticipated increase in the number of days with temperatures over 90° under projected future climate conditions, including ways in which a project might reduce extreme heat risks, implement low-impact development strategies (LID) strategies, and increase tree planting or cooling spaces. In specific cases, the EIR scope might also require analysis of other factors such as on- and offsite flood impacts, sizing of culverts, and coastal erosion rates. Best practices to be employed in the analysis would include using a 40 to 60-year lifespan for hard structures and assigning most assets a medium or high criticality.  The straw proposal applies the climate resiliency analysis requirements to all EIRs, whether mandatory or discretionary. Notices of Project Change (NPC) will require submission of a climate output report. Moreover, projects subject to Special Review Procedures (SRP) may be required to conduct a resiliency analysis at the Secretary’s discretion. Notably, under a “de minimis” exception analysis will not be required if a project is “not exposed” to any climate parameter. Greenhouse Gas Emissions Policy Proposal The current MEPA GHG Policy provides guidance on how a project’s GHG emissions should be calculated in an EIR in order to evaluate mitigation of potential climate impacts. The EIR must calculate both estimated GHG emissions for a project baseline and estimated emissions reductions compared to the baseline due to mitigation measures for various project alternatives. Review of stationary sources must quantify energy use and associated GHG emissions from new buildings with the baseline case reflecting construction in accordance with the standard Massachusetts building code. Mitigation is expressed as a percentage improvement over building code requirements. Where applicable, emissions from industrial processes also need to be identified. Review of mobile sources must be based on a traffic study quantifying estimated vehicle miles traveled (VMT) and discuss mitigation measures to be taken. Other sources of GHG emissions might include a large amount of forest or land clearing, construction activity, or other large land uses. All projects subject to the policy must file a GHG self-certification with the MEPA Office confirming completion of required mitigation.  The straw proposal contemplates updates for analysis of a project’s stationary sources, mobile sources, land alteration, and carbon emissions impact. For stationary sources (buildings), the straw proposal suggests various potential updates to enhance overall energy efficiency for Massachusetts projects. First, the MEPA review process would be simplified by creating review “opt-outs” for projects that commit to MEPA-recommended best practices, whereas all other projects would have standard reviews requiring full GHG analysis. The recommended best practices will primarily align with the GHG reduction strategies of the 2023 Stretch Energy and Municipal Opt-In Specialized Building Codes. Second, mitigation commitments will be expressed as a percentage better than legally mandated codes with new metrics developed to show building performance improvements. Finally, the methodology used to consider energy efficiency will now use the context of a thirty-year look ahead period rather than improvements over a single year. By considering expected future reductions in GHG emissions from the electric grid, the EIR analysis can more fully capture the benefits of electrification and other GHG mitigation for individual projects. Regarding mobile sources, GHG Policy updates include technical edits to align with existing practice based on current traffic study methodology. Currently, projects need to compare only the GHG emissions of a project build without mitigation scenario versus those emissions if mitigation efforts were taken. The straw proposal adds two new comparisons: (1) comparing the existing GHG emission levels to future GHG levels without the project; and (2) comparing the future GHG levels without the project to the future GHG levels if the project were built. Lastly, the GHG updates for mobile sources change the methodology for reporting of VMT to facilitate tracking the state’s progress towards the Massachusetts Clean Energy and Climate Plan (CECP) goals, implementing a standard methodology using publicly available mapping resources and providing guidance on mitigation strategies. For land alteration, the straw proposal recommends eliminating the numerical acreage threshold currently used to trigger the GHG analysis and instead requiring the analysis for all projects that meet or exceed any MEPA land alteration threshold. In addition, the proposed updates include the development of carbon accounting methodology to be used to estimate GHG impacts of forest conversion. For example, the MEPA Office will establish a standard methodology by using publicly available mapping resources and will provide mitigation options such as reuse of wood products, tree planting programs, and heat reduction strategies. The proposal also suggests the creation of a mitigation fund to offset carbon impacts of tree clearing. Ultimately, the GHG Policy land alteration updates aim to add 64,400 acres of new tree cover and conserve 40% of Massachusetts lands and waters permanently.  The straw proposal also focuses on understanding the social cost of carbon which is an estimate of the monetary costs of environmental damage by each additional ton of carbon emissions. The proposed GHG Policy would recommend that the MEPA Office follow the U.S. Council on Environmental Quality (CEQ) in recent National Environmental Policy Act (NEPA) guidance to require Social Cost of Carbon (SC-C) analysis in environmental reviews at the MEPA Secretary’s discretion on a case-by-case basis. The comment period on both straw proposals remains open through September 16. Comments may be submitted to the MEPA Office at this link.