A potential multibillion-dollar legal storm is brewing over stormwater discharges in eastern Massachusetts.
After years of trying to get federal and local governments to cut the amount of polluted stormwater flowing into the Charles River, the Conservation Law Foundation and the Charles River Watershed Association last month quietly filed a lawsuit that, if successful, could force thousands of commercial land owners to pay for extensive changes to their properties, including ripping up existing parking lots, installing new water filtration systems, planting trees and shrubbery, and taking other steps to reduce stormwater.
Filed in U.S. District Court in Boston, the lawsuit names the U.S. Environmental Protection Agency and its regional New England office as defendants, saying they have failed to enforce the federal Clean Water Act by not requiring property owners to seek permits for their stormwater discharges. In effect, the two environmental groups are saying past efforts to get municipalities to address stormwater issues haven’t worked. So now the groups are going after individual property owners as the ultimate source of high levels of phosphorus that’s seeping into the Charles River, triggering “excessive algae and aquatic plant growth and/or highly variable dissolved oxygen levels.”
In their suit, the groups say the phosphorus ultimately harms the aesthetic quality, aquatic life and recreational uses of the Charles.
“This is about accountability,” said Caitlin Peale Sloan, an attorney at the Conservation Law Foundation. “This suit really gets to the fact that it’s not enough to regulate municipalities. It’s really about bringing polluters to the table.”
And those polluters are individual property owners – or least a portion of them.
Tamara Small, a senior vice president of government affairs at NAIOP, a commercial real estate organization, said single-family homeowners would be specifically excluded from future stormwater regulations.
But all other property owners with one or more acres of “impervious” areas that deflect rain – such as building roofs, parking lots and driveways – would ultimately bear the brunt of any new regulations stemming from a successful lawsuit. That mostly means office, industrial and multifamily property owners in the 35 towns and cities within the Charles River watershed area, including Boston, Brookline, Cambridge, Natick, Newton, Somerville, Watertown and Waltham.
“You’re talking about a huge area,” Small said. “We’re deeply concerned about this.”
Costs Could Run Into Billions
The CLF’s Sloan said it was “too early to talk about the dollars” for a massive stormwater cleanup.
But Small said the EPA’s regional office six years ago conducted a pilot stormwater program in Bellingham, Franklin and Milford and found it would cost nearly $60 million per town to reduce phosphorus discharges by the stated goal of 65 percent. In one case, the owner of a property valued at $2 million would have had to spend $500,000 on remediation efforts, Small said.
Using the $60 million per town figure, Small said reducing polluted stormwater discharges in 35 communities could easily run into billions of dollars. She added those numbers may be conservative because the EPA’s 2009 figures were based on reducing stormwater on properties with two or more acres of impervious areas, not the more strict one-acre requirement stipulated in the environmental groups’ lawsuit.
Those “extraordinary costs” are among the reasons why the EPA has since not pursued going after individual property owners, Small said.
In a statement, the EPA’s New England office would only say it is “carefully reviewing Conservation Law Foundation’s allegations in their complaints.”
The statement added: “While EPA does not comment on pending or ongoing litigation, EPA is proud of our long track record of accomplishment working with many partners to improve water quality in the Charles River, Boston Harbor and other area water bodies.”
Seth Jaffe, an attorney at Foley Hoag LLP, said stormwater pollution presents a “wicked difficult problem” for both regulators and property owners.
To clean up rivers and other water bodies in the past, the EPA targeted specific “point sources” that were clearly causing pollution, such as large factories discharging chemicals and other materials into waterways, said Jaffee, who has represented commercial property owners in the past.
But stormwater pollution is different because anyone with a roof or driveway, no matter how large or small, may be technically contributing to the problem.
“They’re right to go after this problem because it’s a problem,” Jaffe said. “But fixing it is going to cost a lot of money.”
In the past, Jaffe said courts hearing Clean Water Act cases have been reluctant to impose overly burdensome and costly environmental regulations on property owners, especially if regulators have already reached the same general conclusion.
Still, some Congressional Republicans have complained in the past that too many “sue and settle” outcomes have occurred, in which environmental regulators ultimately agree to comply to demands in lawsuits in order to avoid protracted legal fights.
“In the end, a settlement is always possible,” Jaffe said.
