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Massachusetts Department of Environmental Protection
Bureau of Resource Protection, Water Management Regulatory Comment Box
1 Winter St., 5th floor,
Boston
ATTENTION: Elizabeth McCann
Re: Massachusetts Department of Environmental Protection’s Draft Water Management Act Regulations (310 CMR 36.00) and Accompanying Guidance Document
Dear Ms. McCann:
On behalf of the cities and towns of the Commonwealth, the Massachusetts Municipal Association is writing to submit comments on the Massachusetts Department of Environmental Protection’s draft Water Management Act Regulations (310 CMR 36.00) and the accompanying Guidance Document, both dated March 26, 2014. In addition to the MMA’s comments, we commend and support the detailed comments submitted by the Massachusetts Water Works Association, and respectfully urge you to support the analysis submitted by both of our organizations.
The Massachusetts Municipal Association became involved in the Sustainable Water Management Initiative (SWMI) stakeholders’ group because the communities of the Commonwealth are facing a wide variety of water resource mandates, and it was our hope that the process would provide an opportunity to look more holistically at the issue of water management and identify solutions that would provide the best environmental outcomes while concurrently recognizing that our municipalities have limited resources at their disposal. Unfortunately, we are disappointed to see that the regulations, as drafted, do not move the Commonwealth any closer to an integrated policy and instead focus solely on further regulating water withdrawals in an effort to improve aquatic habitat.
We believe the proposed changes would dramatically increase costs associated with permitting and mandated mitigation measures, reduce revenues needed to fund compliance, and limit economic growth across the state. In short, the proposed regulations would implement an extraordinary change in public policy and outcomes, with no meaningful way to measure or monitor improvement or actual progress. “Modeled progress” is not a reliable or valid way to determine whether the proposed regulations would be effective.
The fact is that the current regulations are working and there is no need to consider the sweeping changes that are proposed. Investment in municipal water systems, use restrictions and conservation measures implemented by cities and towns have dramatically reduced water use in the Commonwealth. Further, the SWMI process has shown that the impact of water withdrawal on streamflow is now a much smaller problem than originally thought. There is not sufficient evidence to support the claim that further reductions in water withdrawals would significantly increase fish in streams and rivers.
The draft regulations place too much emphasis on reducing the public water supply that will be available to residents and businesses as the primary means of increasing streamflow, and clearly de- emphasize public health and safety. An example of this is the suggestion that in times of drought, when drinking water is scarce, communities release water from surface reservoirs in order to increase streamflow. The primary purpose of reservoirs is to maintain an adequate water supply for public use, health and safety, not to increase streamflow.
In addition, the draft regulations do not address large-scale watershed planning, and ignore the more substantial negative environmental impacts of impervious cover, dams, and nutrient pollutants on water quality, which we believe have a much greater impact on aquatic life. Watershed-based planning is the only way to achieve sustainable water management. Evaluations could be made on a watershed basis and mitigation measures could be prioritized that would generate enormously beneficial results. Such an approach would allow our municipalities to target their limited financial resources for the best environmental outcome. A good illustration of the benefits of such planning is demonstrated in the Taunton River Watershed Plan, which is integrating multiple aspects of water management. Basing the state permitting process on a command-and-control approach to limit water supplies is unbalanced and ignores other more feasible and productive ways to protect fish, such as improving water quality (by reducing nutrient pollutants and other steps), restoring stream habitats, removing or limiting impervious surface cover, removing unneeded and undesirable dams, as well as traditional water conservation and stormwater management programs and initiatives, to name a few examples.
We also have significant concerns regarding the proposal (outlined in the document titled “Safe Yield and its Components by Water Source”) to separate the Boston Harbor basin and the South Coast basin into smaller subbasins for the purpose of determining Safe Yield. If a water supplier has multiple withdrawals within a town and the basin is split in two, it could force the supplier to apply for separate permits when previously only one was necessary. This could trigger Interbasin Transfer Act requirements that have not been required in the past. MassDEP should dispense with its plans to break the major basins into smaller ones and instead calculate Safe Yield values for the Boston Harbor and South Coast basins at the major basin scale.
We believe the draft regulations would be ineffective and would burden residents, businesses and municipalities with new and more stringent mandates that would impose significant costs on local taxpayers and limit economic growth and activity. Massachusetts is facing a massive water infrastructure finance crisis, and this is not the time to impose new unfunded mandates.
In 2009, the state created a Special Water Infrastructure Finance Commission as a means of developing a long-range plan for the state and its cities and towns to maintain their waterworks. In a preliminary report, the commission determined that Massachusetts faces a $10.2 billion gap in the resources needed to adequately maintain drinking water systems, and an $11.2 billion shortfall in resources needed to maintain wastewater infrastructure. Our cities and towns will also be facing huge investments to deal with stormwater infrastructure, conservatively estimated by the Commission at approximately $18 billion over the next 20 years. Communities are grappling with these huge financial challenges and must be free to target their limited resources on areas that will have the most significant impact and the largest environmental and economic benefit. Because the draft regulations focus primarily on extreme restrictions on water supply withdrawals and on mandating costly mitigation measures on cities, towns, businesses, taxpayers and ratepayers, the result would severely limit growth and economic development. The draft regulations would reduce the revenues necessary to repair and maintain the existing environmental infrastructure and force dramatic increases in rates paid by taxpayers, residents and businesses.
Local officials across the Commonwealth have worked hard to pass common-sense legislation that is already having a much greater impact on improving the health of our lakes, rivers and streams than the proposed Water Management Act regulations will have.
For example, we have over 3,000 dams in Massachusetts (approximately one dam for every two miles of streams), and these dams have a dramatic impact on streamflow, water temperature and the amount of phosphorus in a waterbody, and present barriers to fish population. Municipal officials made the case for Chapter 448 of the Acts of 2012, creating a dam and seawall fund, and the Bartlett Pond Dam in the Town of Lancaster was the first dam removal project to be completed using this fund. That one removal has saved the town more than $600,000 in infrastructure repair costs and native brook trout are already flourishing in the restored area.
Phosphorus runoff from lawn fertilizer and impervious surfaces is now the leading cause of pollution in our waterways, accelerating algae and plant growth, and robbing aquatic life of necessary oxygen to survive. The MMA worked with the 495 Partnership for the passage of Chapter 262 of the Acts of 2012, limiting the amount of phosphorus in fertilizers. The U.S. EPA estimates that, when fully implemented, the new law will save the Bay State’s communities approximately $180 million annually in future costs that would have been necessary to treat the polluted runoff and reduce a major pollutant in our waterways.
In order to achieve meaningful and timely environmental improvement, the Commonwealth’s first priority should be providing funding for infrastructure needs and technical assistance to communities to help address issues such as impervious cover.
The MMA has also called on our federal and state governments to maintain funding amounts for infrastructure needs, identify the costs of regulations, and reduce wastewater and stormwater treatment costs. The draft regulations and guidance documents provide no meaningful analysis on how much these sweeping unfunded mandates will cost our cities, towns and taxpayers through lost revenues, restrictions on economic growth, and expenses associated with compliance or mitigation measures.
Before these regulations are implemented, we herein respectfully and officially request a detailed municipal and ratepayer cost analysis of the scope and expense of the proposed Water Management Act Regulations (310 CMR 36.00) and the accompanying Guidance Document on cities, towns taxpayers, ratepayers and businesses. This analysis should at a minimum:
• Identify the specific cities and towns and public water systems that are likely to be subject to the new permit conditions;
• Identify which of these municipalities and public water supply systems will likely need to develop minimization, coldwater fishery or mitigation plans, and which permitting tier each will likely fall into;
• Identify which public water suppliers are currently withdrawing from major river basins other than the one in which their service area is located;
• Identify the typical costs or a range of costs for the indirect mitigation projects listed in Table 13 of the proposed Guidance Document;
• Identify the water rate increases needed to meet the affordability thresholds in the cost feasibility guidance for each affected public water supplier;
• Identify typical costs for the additional conservation measures listed in Table 10 of the Guidance Document;
• Identify the estimated compliance costs for each municipality and public water supply system, and the estimated aggregate statewide compliance cost; and
· Identify additional staffing and costs that the Department, the Massachusetts Division of Fish and Wildlife (DFW) and other state environmental agencies will incur to ensure timely processing of all permits and other administrative actions required of the Commonwealth by these revised regulations.
MassDEP has also failed to take cost considerations into account in a meaningful way. The proposed cost feasibility thresholds are too high and we are concerned that the cost provision resides in Guidance and not in regulation. MassDEP should be considering a cap on costs to our communities for minimization and mitigation measures. When the Department develops an appropriate mechanism to consider cost, it should be integrated into the final regulations.
The communities of Massachusetts take their environmental responsibilities seriously and are already leading the way with innovative strategies to conserve water and manage their water use with nature in mind. For example, to benefit the Ipswich River, the Town of Reading discontinued drawing on municipal wells in the watershed area, and Danvers structured development fees to provide funds for water conservation projects. Scituate leaders have restricted lawn watering to protect the First Herring Brook, Kingston officials removed a local dam to meet their federal MS4 permit, and Plymouth leaders worked with developers to increase the amount of stormwater that returns to the Eel River. In Franklin, the community has imposed water use restrictions, and developed and implemented new and innovative stormwater management techniques. There are countless such examples across the Commonwealth. Rather than impose a top-down, rigid and restrictive framework and regulations, state policies should facilitate and incentivize the good work of cities and towns so communities can maintain and expand upon these impressive efforts.
To summarize, the MMA does not support the draft regulations. The new approach suggested by the proposed regulations would shift the focus from protecting public health and safety to an over- emphasis on increasing fluvial fish and aquatic life. We have serious reservations, as noted above, and believe that the draft regulations are incomplete, rely on a costly and burdensome regulatory scheme that will fail to meet its goals, overlook effective and feasible holistic approaches, and in the end, would restrict our economy and burden communities and local taxpayers.
We respectfully ask the Patrick Administration to go back to the drawing board and return to the original intent of SWMI, which was to develop a true plan for a holistic and integrated water management policy for the Commonwealth.
Sincerely,
Geoffrey C. Beckwith
Executive Director, MMA
cc: His Excellency Deval Patrick, Governor of the Commonwealth
The Honorable Maeve Vallely Bartlett, Secretary, EOEEA