Storm Water Mitigation Permit Could Cost Town Millions

The deadline is imminent for Merrimack and dozens of other New Hampshire cities and towns who are asking the Environmental Protection Agency to reconsider parameters set in the most recent version of it's storm water mitigation permit.

It is an effort to save the communities from having to come up with millions of dollars to fix problems that may not even exist and to do so in a short amount of time.

The MS4 (Municipal Separate Storm Sewer Systems) permit, handed down to the state from the EPA, is a document that regulates storm water runoff in urbanized areas that is issued every five years. This year's permit update, however, left Merrimack and approximately 40 other communities in disbelief when they were given an aggressive storm water mitigation program that requires expensive and extensive changes to be made to storm water runoff systems in the next five years. It could have a financial impact across the communities in the hundreds of millions of dollars range collectively.

Seymour said the document drew serious concerns among the communities in several areas including the scope of work, the short timetable to complete the work, the fact that water sample data used was outdated, and the fact that once they signed the document, it would immediately render NH out of compliance and open the communities up to lawsuits by special interest groups, among other things.

“We feel like it's kind of jumping the gun,” Seymour said of the plan laid out in the MS4.

Seymour explained that New Hampshire is what is considered a delegated state. It does not manage its own environmental programs like this, instead, the EPA calls the shots. It drafted the permit and handed it over to the New Hampshire Department of Environmental Services to sign off on it, which is did using the old data that is the root cause of at least one frustration. The MS4 permit helps make sure local rivers, lakes and ponds stay clean by regulating what and how much of certain materials can be washed into the water.

In the past, the permit has never come across this detailed, lengthy and difficult to execute.

To give an example, Seymour talked about the section of the permit dealing with Horseshoe Pond. According to the data used by the EPA, Merrimack has a phosphorous problem in the pond that needs to be cleaned up. The problem, Seymour said, is that data that was used to determine this was 14 to 16 years old. In the time since the samples were taken, the town has done work on Horseshoe Pond. There is nothing to indicate right now that this phosphorous problem exists to the extent the old samples indicate, and yet the town is expected to spend around $2.5 million correcting it, according to the permit. Further, the permit requires them to remove 76 percent of the phosphorous from the water, when it's been said that even attaining a 70 percent removal is nearly impossible, Seymour said.

“It's one of our pet peeves with the project,” Seymour said. “They didn't do enough sampling up front. If we're going to do this work, we want to make sure there really is a problem. We want them to give us a chance to prove there really is impairment, give us a chance to make sure we have the appropriate data.”

There are other major concerns with the permit, Seymour said. It doesn't seem to take into account how problems can start upstream and leave towns like Merrimack and Nashua, having to clean up water that was compromised by communities north of them. It has large cities, like Concord, that aren't even included under the permit. It treats cities and towns in wide varying sizes the same way, and the way it's written puts the entire group out of compliance the day they sign it.

The permit, which was issued in February, originally was due back with comments from the communities on April 15, but they were granted two extensions after about half of the towns involved banded together to hire an attorney to help guide them through the 220-page document. Now with comments due back to the EPA, on Aug. 15, they need to make sure they've crossed their Ts and dotted their Is because any concerns not addressed in the response cannot come back under review later.

On May 9, the Merrimack Town Council approved for Seymour to pay about $5,000, the town's share for the lawyers at Sheehan, Phinney, Bass and Green who've been helping the MS4 towns craft their responses. Seymour said the overarching desire is for the EPA to come back with a whole new permit that gives them more than just five years to complete the scope of work, dramatically reduces the amount of work involved and is based on current data.

Town Manager Eileen Cabanel said on Tuesday said she thinks NH was smart to take the approach it did and is on the best path it can be going forward. Banding together to hire representation was crucial, she said, as the communities, Merrimack included, don't have the resources to give it the proper look it required and adequately represent the views of Merrimack and the state.

“I was surprised by how quickly this came about and how devastating the results could be,” Cabanel said.

She called it scary, how quickly the EPA expected communities to rollout changes and dump millions of dollars into storm water mitigation.

“There aren't any communities among us that don't believe it's important to have clean water,” Cabanel said. “ It's a matter of having accurate data and giving us time to take are of matters of serious concern.”

Though the towns had a deadline of returning their response to the EPA, the EPA may take as long as it needs to go over the town responses, so as soon as the Aug. 15 deadline comes and goes, the cities and towns are left to wait.