CLF Prevails in 2008 Stormwater Case Against Mass Highway

Brian Barth Brian Barth

Judge William G. Young Orders Commonwealth to Fulfill Obligations Under Federal Clean Water Act or Risk Sanctions

CONTACT:
Karen Wood, CLF, 617-850-1722 or kwood@clf.org
Cynthia Liebman, CLF, 617-850-1744 or cliebman@clf.org

BOSTON, MA  May 14, 2010 – Two years after a trial in which he had ordered the Massachusetts Highway Department to take corrective measures to clean up streams polluted by stormwater runoff in three Massachusetts towns, the work has yet to be done and U.S. District Court Judge William G. Young has issued a stern warning to DOT. On Wednesday, in a status conference before plaintiff Conservation Law Foundation (CLF) and the assistant attorney general, Judge Young issued an injunctive order, stating that the highway department must begin work within three weeks, or risk sanctions.

In his ruling, Judge Young expressed irritation at the state’s inaction, stating, “To say I’m disappointed is mild.” He continued, “I’ve bent over backwards to give the Commonwealth the time and the flexibility…I expected compliance. There has not been compliance.”

Plaintiffs CLF, Charles River Watershed Association (CRWA), and Leominster Land Trust (LLT) applauded the ruling, which will at last hold the Highway Department accountable for installing the modern stormwater controls needed to prevent further pollution at three sites named in the original suit, with work to begin on June 8, 2010. The judge ruled further that the state must follow the requirements of the federal Clean Water Act and undertake control measures and best practices on roadways throughout the state as needed to meet minimum water quality standard.

Cynthia Liebman, CLF staff attorney who argued the case in federal court, said, “Judge Young made it clear in his order that taking action to ensure clean water is not optional. His insistence that remediation begin immediately underscores the urgency of managing runoff from paved roads to restoring rivers, streams, and coastal areas statewide so they are safe for recreation and aquatic life.”

The suit identified pollution levels at sites in Milford, Bellingham and Lancaster, MA in exceedance of limits set by the federal Clean Water Act to ensure water quality, and found that Mass Highway had not done adequate system-wide planning to prevent further exceedances. Since the 2008 trial, CLF has held the Highway Department’s feet to the fire, demonstrating again and again through legal briefs and technical reports that the division had not fulfilled its obligations under the law, producing insufficient plans and no actual remediation efforts.

In recognition of CLF’s considerable investment of time in the case post-trial, Judge Young also ruled that CLF may submit its full application for attorney’s fees.

“Mass Highway’s systems of managing stormwater are outdated and insufficient, to the extent they are being used at all. The system we have now dumps polluted stormwater into waterways at 950 locations throughout the state,” Ms. Liebman continued. “With this ruling, Mass Highway will be compelled to come out of the dark ages and use solutions that are at hand – including well tested green infrastructure methods – to retrofit its stormwater management systems and comply with the law. Judge Young’s ruling is a defining moment for clean water advocacy in Massachusetts. It acknowledges that, if the people of the Commonwealth are to have clean water to support our quality of life and keep Massachusetts a desirable place to be, the state needs to clean up its act.”

Julia Blatt, Executive Director of the Massachusetts Rivers Alliance stated, “Runoff from the state’s highways is a serious problem for rivers and streams all over the state.  It’s too bad the court had to force MassDOT to clean up their mess, but we are delighted with the ruling in this case.”

CLF, along with the Charles River Watershed Association and the Leominster Land Trust brought the case against Mass Highway (now a division within MassDOT) in 2006, arguing that the state was in violation of the federal Clean Water Act at multiple sites where the department had failed to properly manage stormwater runoff.  With more than 4,000 miles of roadways across the Commonwealth, Mass Highway is one of the biggest contributors to stormwater pollution in the state. Stormwater pollution occurs when rainwater washes over paved areas such as highways, sweeping up toxic metals, salt, chemicals and debris deposited by cars and trucks, then pours directly into streams and rivers. Stormwater pollution is the leading cause of water pollution in Massachusetts, and highway pollution is particularly toxic.

Stormwater runoff from the Mass Highway system is regulated under an EPA National Pollution Discharge Elimination System (NPDES) permit, required by law to prevent public entities from discharging polluted stormwater directly into waterways through their multiple storm sewer systems or MS4s. MS4 operators, from small towns to large cities and states, must obtain a NPDES permit and develop a stormwater management program. Since its introduction in 1972, the NPDES permit program has been responsible for significant improvements to our Nation’s water quality.

Learn more:

  • Additional information on MassHighway

The Conservation Law Foundation (www.clf.org) works to solve the most significant environmental challenges facing New England.  CLF’s advocates use law, economics and science to create innovative strategies to conserve natural resources, protect public health and promote vital communities in our region.  Founded, in 1966, CLF is a nonprofit, member-supported organization with offices in Maine, Massachusetts, New Hampshire, Rhode Island and Vermont.

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