It is no secret that many municipal sewage collection and treatment systems are aging, and badly in need of upgrades or repair.
Such systems may flush large quantities of pollutants into lakes, streams or harbors as a result of hydraulic overloading or simple failure to effectively document and control the sources of waste discharge. Currently undersized, deteriorating or poorly operated municipal systems risk downstream water quality and violation of state and federal discharge permits.
Non-governmental organizations are using citizen suits to enforce compliance and force faster implementation of stormwater management improvements. Recent enforcement-related developments in Massachusetts illustrate that the steps regulatory agencies are taking to address these issues may have potentially significant planning, design and financial impacts on property owners and developers who rely on certain municipal systems for water and waste discharge.
Court Ruling
In the recent decision of Denver Street LLP v. Town of Saugus, the Massachusetts Supreme Judicial Court found that significant monetary charges (greater than $600,000) imposed by the town on developers for access to its sewer system was a lawful fee. This long-watched case reverses the lower court decision and clarifies municipal authority to assess fees to access infrastructure. The town, operating under an administrative consent order with the Massachusetts Department of Environmental Affairs (MassDEP) to reduce wet weather inflow and infiltration (I/I) into its sewage treatment system, was mandated to reduce this I/I flow to overcome a moratorium on new sewer connections. For flexibility, the town was allowed to establish a “sewer bank” where new flows were allowed as a proportion of the I/I removed. In addition, the town assessed a fee on “new” dischargers, based on proposed amount of flow, to cover the cost of the I/I reduction effort. The court held the town’s fee as allowable, and not an impermissible tax, weighing heavily the fact that the town was under a state-imposed moratorium that provided a sewer bank as the only option for new developers to connect to the municipality’s infrastructure. Given that many municipalities have sewer banks, including MWRA communities, the resolution of this fee issue may well lead to renewed interest in this funding/management tool.
The Boston Water and Sewer Commission (BWSC) has been forced to address similar concerns with implications for new and existing property development, via a consent decree with United States Environmental Protection Authority (EPA) lodged with the federal court in August (and still in its public review and comment period), proceeding from an action initially brought by the Conservation Law Foundation (CLF). Under that consent decree, entered into to address a range of stormwater discharge and uncontrolled sewer outfall issues, BWSC is mandated to develop and implement an aggressive schedule to investigate pollutant sources discharging to storm drains, remove sources of sewage to such drains, and expand its monitoring program in both wet and dry weather. A key component of the overall settlement agreement is BWSC’s commitment to use “green infrastructure” and low impact development, whenever possible and where necessary and appropriate, for use by private entities through application of BWSC’s site plan approval process. In addition to discussing BWSC’s legal authorities to mandate control of illicit discharges by individual property owners, the consent decree also requires BWSC to develop and submit a construction site inspection process including development of a stormwater runoff control permitting program and to institute associated training and enforcement for that program. Similar plans must be developed for industrial facilities.
Sharpened Focus
It is clear from these examples that non-governmental organizations and regulatory agencies are sharpening their focus on the impacts of I/I and stormwater discharges on the performance, or failure of performance, of municipal sewage treatment systems. Increasing costs and heightened scrutiny on such discharges, including affirmative efforts to impose certain “green” and low impact development procedures to control stormwater run-off and other sources of non-waste wet and dry-weather flow, can be expected in the future with possible impacts on the use and development of parcels of land, especially in urban areas.
In areas where municipal systems are showing increasing strain or permit violations of increasing frequency, developers can expect and should be prepared for more affirmative involvement from municipal authorities, and watchful citizens groups, to control or manage such flows.
Kenneth Whittaker and Margaret Stolfa are partners in the environmental practice group at Bernkopf Goodman LLP in Boston.
