Last week was a busy week for federal stormwater regulators in New England, with the announcement that three separate stormwater-related enforcement cases had been settled.  Two of these cases involved municipal sewer systems operated by Boston and Gloucester and the third involved a horse race track that the regulators determined was a concentrated animal feeding operation.  Two of these cases are particularly noteworthy:

The enforcement case involving the Boston Water and Sewer Commission (BWSC) is notable for several reasons.  Conservation Law Foundation initiated the case as a Clean Water Act citizens suit and the U.S. Department of Justice (on behalf of the USEPA) joined the suit as a plaintiff ten months later.  While the federal government is authorized to intervene in citizen enforcement suits, it does so rarely – reflecting the fact that this case raised perceived policy or regulatory issues.

The consent decree http://www.justice.gov/opa/pr/2012/August/12-enrd-1039.html (which is still subject to public comment and judicial approval) provides for both penalties and a supplemental environmental project.  More significantly, it also contains several injunctive relief provisions that have the potential to affect future real estate development in Boston.  Specifically, the consent decree obligates BWSC to reduce pollutant levels in stormwater flows entering its sewer system and to implement Green Infrastructure and Low Impact Development techniques.  These techniques seek to divert stormwater away from sewer systems so that it can be stored, infiltrated, evapo-transpirated and/or reused rather than being discharged into nearby surface waters.  Often, implementation of these techniques requires the use of swales, engineered wetlands and other surface or subsurface structures that can consume otherwise developable areas of a project site, with potentially negative financial consequences to the development project.

In addition, BWSC has agreed to establish an inspection program focused on stormwater discharges from construction projects and industrial facilities in Boston that are regulated under the USEPA’s Multi-Sector General Permit.  Therefore, real estate developers, construction contractors and industrial operators active in Boston should anticipate the possibility of increased regulatory scrutiny of stormwater discharges associated with their projects or facilities.

Turning to the second case, Sterling Suffolk Racecourse (SSR) has been operating on a 161-acre site in East Boston since 1935, and recently announced its intention to obtain a casino license under Massachusetts’ gaming statute.  A horse racetrack in East Boston may not be the first image that comes to mind when hearing the term “concentrated animal feeding operation” (CAFO), but federal regulators alleged that discharges of stormwater and washwater were excessively contaminated through contact with manure, litter, urine and even euthanized racehorses.  The track’s stormwater management system discharges into the Belle Isle Marsh, which is part of the 2800-acre Rumney Marsh Area of Critical Environmental Concern (ACEC).  There are only 30 ACECs in Massachusetts and the designation is intended to increase “environmental oversight by increasing state permitting standards through elevated performance standards and lowering thresholds for review.”

The consent decree http://www.justice.gov/opa/pr/2012/August/12-enrd-1037.html (which is still subject to public comment and judicial approval) is notable because of both the size of the penalty ($1.25 million, plus an additional $742,000 in supplemental environmental projects) and the cost of the required corrective actions ($3.5 million).  SSR previously agreed to obtain a CAFO NPDES permit and implement a nutrient management plan.  In addition, SSR agreed to re-engineer its stormwater management system, including separating stormwater and process water flows and constructing a system for storing wastewater for discharge to the sanitary sewer system during off-peak hours.  These are significant financial and operational burdens for a business that typically runs seven months a year.