State and Federal Policy

Federal Policy
The Clean Water Act (CWA) is the main federal framework for restoring and protecting freshwater resources. The Environmental Protection Agency (EPA) website is a good source of information. Read the OARS Newsletter article on the Act.

The CWA was seriously curtailed by two confusing Supreme Court decisions in 2001 and 2006 in response to lawsuits that sought to eliminate protection of many wetlands and tributaries. In 2015, the EPA and Army Corps of Engineers put in place the Clean Water Rule (aka Waters of the United States (WOTUS) Rule). The rule brings back the Clean Water Act’s protections to many important streams, wetlands, and drinking water sources all across the country. In July 2017, the Environmental Protection Agency (EPA) and Army Corps formally proposed rescinding the Clean Water Rule; a proposal that has not yet been finalized. Then in February 2018, the agencies suspended the Clean Water Rule for two years—until February 2020. After a legal challenge, a federal judge set aside the suspension nationwide, allowing the rule to take effect in 26 states. The administration published a proposed rule on February 14, 2019 that would revise the WOTUS definition, again threatening protection of these essential water resources.

Over the past decade, the EPA’s implementation of the CWA has been threatened in two additional ways: cutting the EPA budget, and placing riders to block implementation. For example, regarding a Department of Interior appropriations bill, Congresswoman Niki Tsongas (MA-5th District) argued on the House floor: “…[T]his [appropriations] bill would dismantle the Clean Water Act, which would not only undermine our constituents’ access to clean and healthy waterways but also would mean the loss of tens of thousands of jobs.” (July 25, 2011) The same appropriations bill also contained 38 “riders” that specifically blocked implementation of river restoration, climate change adaptation, and other key provisions. Full list of riders.

Perhaps surprisingly, air pollution also pollutes our rivers,streams and lakes. Mercury pollution from coal-burning power plants in states west of Massachusetts continues to be transported in the atmosphere and deposited in Massachusetts, contaminating fish and other wildlife. Local emissions of mercury have diminished due to tighter regulation of incinerators and reduction of mercury use in dentistry in the state. In 2019, the EPA proposed rolling back new restrictions on mercury from coal-burning power plants. OARS submitted a Comment Letter opposing this rollback because the new restrictions would have decreased mercury pollution of our rivers and ultimately improved edibility of local fish state-wide.

State Policy
Massachusetts and New Hampshire are two of only five states where the EPA retains permitting authority under the Clean Water Act rather than delegating it to the state. Massachusetts enforces its own Clean Water Act, which mirrors the federal law. The Mass. Department of Environmental Protection (DEP) sets and certifies water quality standards, conducts monitoring and assessments, and jointly issues and enforces discharge permits with the EPA. It also regulates drinking water withdrawals.

OARS evaluates and comments, where appropriate, on large projects in the watershed. Projects under state review under the Massachusetts Environmental Policy Act (MEPA) are listed bi-weekly in the Environmental Monitor. Selected comment letters by OARS can be found under Comment Letters and Appeals.

Stormwater Management Regulations
Stormwater is now the main source of pollution of most of the waterbodies in Massachusetts. As a member of the Stormwater Stakeholder Workgroup, OARS worked with municipalities, developers, the Department of Environmental Protection (MassDEP), the EPA, and other partners to ensure that stormwater is being properly managed through the MS4 permit under the Clean Water Act. OARS commented and testified on the draft regulation, issued in 2008, which requires all private property owners of impervious surfaces of five acres or greater to control phosphorus and other pollutants before the stormwater runs off their property. For existing development it requires good housekeeping practices, such as regular parking lot sweeping, and sets a timetable for mapping of stormwater systems and tracking down interconnections with sewers and other sources of pollution. When the EPA tried to delay implementation of the MS4 permit, OARS joined a lawsuit to require the EPA to let the permit go into effect. The permit was allowed to go into effect and no further delays were imposed.

This approach builds on the Massachusetts Wetlands Protection Act that has long required controls for stormwater runoff. The new program will provide a range of tools--"best management practices"--property owners can use to achieve compliance, such as rain gardens and infiltration basins that capture runoff, and green technologies such as rain barrels that recycle the rainwater.