MS4 Appeal Status
This email was forwarded by Mike Sullivan this afternoon, which email explains that the coalition of towns appealing the new federal stormwater regulations is entering a litigation phase.
Dear MS4 Contributors,
The following update was provided to MCWRS members via our newsletter. I also wanted to share the latest information with those of you who have contributed to the appeal or plan to.
On August 24, 2016, MCWRS and the Town of Franklin jointly filed a Petition for Review of the U.S. Environmental Protection Agency’s (EPA’s) Final MA Small Municipal Separate Storm Sewer Systems (MS4) General Permit with the First Circuit Court of Appeals in Boston. Prior to the MCWRS/Franklin appeal, the Center for Regulatory Reasonableness (CRR) filed an appeal in the Court of Appeals for the D.C. Circuit, in Washington, D.C. Several events have occurred since these two initial filings. Three additional appeals were filed in the First Circuit – by the City of Lowell, the National Association of Home Builders/Home Builders Association of MA, and the Conservation Law Foundation/Charles River Watershed Association (CLF/CRWA).
The U.S. Department of Justice (on behalf of EPA) has filed a motion to transfer the appeals filed by MCWRS, Lowell, National Association of Home Builders, and CLF to the D.C. Circuit. The transfer request was triggered by the CRR appeal first filed in the D.C. Circuit, and EPA’s submittal of the Administrative Record Index to that court. The appeals are expected to be transferred. Meanwhile, in the First Circuit, MCWRS/Franklin filed a motion to intervene in the CLF/CRWA appeal on the ground that other parties in that case (i.e. EPA) would not protect the municipalities’ interests in that case. CLF/CRWA’s position is that the MS4 Permit does not go far enough. CLF/CRWA have filed motions to intervene in all of the pending appeals.
Our attorneys are prepared to submit briefs and oral arguments in the Court of Appeals for the D.C. Circuit. We will continue to keep you apprised of events related to this critically important action to protect Massachusetts communities’ interests. Read the full press release on the MCWRS website for complete details on the announcement.
Going forward, now that the appeal is filed all communications between MCWRS and its attorneys are privileged and confidential. Additionally, since as public agencies you are all subject to public records laws, we do not want to supply updates via email that may include sensitive information and strategies. Instead, we think a periodic conference call may be the safest and best way to provide our supporters with updates. Of course, we would also not want you to share details of the call content via email with anyone else in your department or other town staff as they would be subject to the same public records regulations. Please let us know if you have any questions or concerns about our planned approach to keeping you updated.
As always, we greatly appreciate your support in this important matter!
Vice President for Public Involvement
Regina Villa Associates, Inc.
51 Franklin Street, Suite 400
Boston, MA 02110