In July 2017, the General Permit for Stormwater Discharges from Small Municipal Separate Storm Sewer Systems in Massachusetts, known as the MS4 Permit, will become effective in 260 towns and cities in Massachusetts. The efforts by affected towns and cities to implement the permit, issued by U.S. EPA and MassDEP, will impact academic institutions, particularly those with development plans for the years ahead. This is what academic institutions need to know about the MS4 Permit:

1. What is the MS4 Permit? The MS4 Permit authorizes the discharge of storm water from urbanized areas to surface waters from small MS4s in Massachusetts under the federal Clean Water Act and its Massachusetts counterpart. “MS4” is an acronym for “municipal separate storm water sewer system.” Only “small” systems are covered by this Permit because medium and large systems have been addressed by earlier permits. While the name of the permit suggests it applies only to municipalities, the permit also applies to state, federal, county and other publicly-owned properties as well as certain state transportation agencies. As a result, within urbanized areas, the MS4 Permit applies directly to 260 towns and cities, and certain public colleges and universities, among others. Information on what places are subject to the MS4 Permit can be found on MassDEP’s website and on EPA’s website.

2. My academic institution is private. Does the MS4 Permit apply? The MS4 Permit will affect all private academic institutions located in urban areas within the 260 affected municipalities. However, the MS4 Permit does not apply directly to such institutions. The MS4 Permit applies directly to towns and cities and imposes strict mandates on these permittees. The towns and cities themselves will be required to update local ordinances or create other regulatory mechanisms that will in turn impact landowners within the community.

Note, the MS4 Permit applies directly to public institutions that fall within its eligibility criteria. These are identified on EPA’s website under the heading “Non-Traditional MS4s.”

3. The MS4 Permit will affect new development and redevelopment projects at academic institutions. The MS4 Permit mandates that new construction projects that affect one acre or more and that are located in areas subject to the permit must meet strict stormwater runoff management requirements during and after construction. (This is separate from the requirements under the General Permit for Stormwater Discharges from Construction Activities). For example, new construction projects will have to implement and maintain post-construction stormwater management systems designed to retain one inch of rainfall from a single storm event and/or reduce runoff of total suspended solids from the property by 90% and phosphorus runoff by 60%. Similar, but less strict, requirements would apply to redeveloped properties. “New development” in this context means projects that occur “in an area that has not previously been developed to include impervious cover” and results in total earth disturbances equal to or greater than one acre. “Redevelopment” is defined as “any construction, land alteration, or improvement of impervious surfaces” that is not a new development, and results in total earth disturbances equal to or greater than one acre.

To avoid circumvention of the permit’s requirements, the permit also requires small projects to be considered together if they are part of a common plan of development to determine if the one acre threshold is met. This is especially likely to occur at academic institutions that engage in long-term facilities’ planning.

4. New, strict requirements will apply to some discharges to the MS4 – in some cases without new construction or redevelopment. Additional requirements apply to MS4 systems that discharge into an impaired receiving water. A water body can be identified as impaired in relation to particular contaminants, such as nitrogen, chloride, phosphorus, bacteria/pathogens, oils and grease, and metals. Such systems are required to undertake additional steps to further eliminate the relevant pollutant from the discharge, in some cases triggered by new development or redevelopment, but in other cases without new development or redevelopment.

5. The MS4 Permit may increase local taxes, fees, and other costs. The MS4 Permit imposes many requirements on towns and cities that will cost money. It is not clear where municipalities will find the needed funding. Some towns or cities may decide to create a new funding source, such as a “storm water utility user fee” based on land area, or other criteria. Alternately, such funds could come from property taxes, grants, or a special assessment. Academic institutions may want to “be at the table” for these discussions.

6. Academic institutions can work with their host municipalities to influence future requirements. Local land use requirements in Massachusetts take many forms, and vary from city to city and town to town. Storm water requirements may be incorporated into planning board, zoning board of appeals, conservation commission and/or board of health ordinances, bylaws, rules or regulations, and may be in the form of permits, approvals or direct mandates. Academic institutions may also want to “be at the table” for these discussions.

7. The deadline for implementation of the MS4 Permit has not been delayed by court challenges. There have been several challenges to the permit filed in court, as we described in a recent alert[A1] . These challenges are not a good reason to delay action to comply with its requirements because it is unlikely that these challenges will be resolved by the July 2017 effective date of the permit, and no court has issued an injunction staying the permit.