The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 85-489-RGS
UNITED STATES OF AMERICA
v.
METROPOLITAN DISTRICT COMMISSION, et al.
CIVIL ACTION NO. 83-1614-RGS
CONSERVATION LAW FOUNDATION
OF NEW ENGLAND, INC.
v.
METROPOLITAN DISTRICT COMMISSION
SCHEDULE SEVEN COMPLIANCE ORDER NUMBER 249
July 23, 2021
STEARNS, D.J.
On June 25, 2021, the Massachusetts Water Resources Authority
(MWRA) filed its Biannual Compliance and Progress Report (the 249th such
report over the course of this decades-old litigation). With the Report, the
MWRA filed a copy of the Semiannual CSO (Combined Sewer Overflow)
Discharge Report No. 6, July 1, 2020 – December 31, 2020, which issued on
April 30, 2021. The Conservation Law Foundation and the United States
have offered no comments on the Report.
There were no scheduled activities during the past six-month period
on the court’s Schedule 7.
As the court noted in its previous Report, the performance assessment
(the last of the contemplated Milestones) has proven an invaluable tool in
assessing both the strengths and shortcomings of the implementation of the
Long-Term Combined Sewer Control Plan (LTCP). On July 19, 2019, acting
on a joint motion of the MWRA, the United States Environmental Protection
Agency (EPA), and the Massachusetts Department of Environmental
Protection (DEP), the court approved an agreement extending the
performance assessment completion date one year to December 31, 2021.1
The extension allowed time for the MWRA, among other tasks, to conduct
receiving water quality modelings distinguishing the environmental impacts
of CSO sources from non-CSO sources on the affected waters.2 In its July 16,
2020 Compliance Order, the court observed that the data gathered since the
modeling improvements had been of particular assistance in identifying
1 As part of the Agreement, the EPA and the DEP granted the MWRA’s
request to extend existing water quality variances affecting the Lower
Charles River/Charles River Basin and Alewife Brook/Upper Mystic River to
August 31, 2024.
2 In its current Report, the MWRA appropriately notes that the court
mistakenly identified this aspect of the parties’ agreement as based on a
recalibration of the MWRA’s hydraulic assessment model in its January 3,
2021 Compliance Order. See June 25, 2021 Report at 12 n.2.
regulators and outfalls where CSO activity was exceeding the desired levels.
Nonetheless, because the process was ongoing, and the data to that point
were inconclusive, the court was unable to then make any definitive
evaluation.
In its June 25 Report, the MWRA concludes that it can now make an
informed assessment of those outfalls that it expects to be in full compliance
with LTCP targets by the current December 31, 2021 deadline;3 those that
can be brought into compliance by the date that the current variances expire
(August 31, 2024); and those that, barring some unexpected technical
breakthrough, will not meet the LTCP activation or volume goals, and for
which the costs of achieving 100% compliance may not be justified by the
resulting benefit.4
Within the first and largest category are the 70 outfalls that will be in
full compliance with the LTCP by the December 31, 2021 performance
assessment deadline. Of those, 35 of the 70 have been closed permanently.
Five of the remaining outfalls are along the beaches in South Boston. The
3 As previously noted, the original Milestone anticipated a final
performance assessment completion date of December 31, 2020.
4 The MWRA’s tentative conclusion did not come as a surprise as a
preliminary forecast of the assessment data had been presented to the court
at the status conference held with the parties on April 2, 2021.
superior performance of the CSO storage tunnel gives assurance that the goal
of preventing CSO discharges up to the 25-year storm standard has been or
will be achieved at these sites.
The second category consists of six outfalls that are currently out of
compliance but that, with additional improvements, can be brought to the
desired performance standard. The six in the order they appear in Table 1-5
of Semiannual CSO Report No. 6 are: (1) SOM007A/MWR205A on the
Upper Mystic River; (2) MWR205 on the Mystic River; (3) BOS014 on
Chelsea Creek; (4) CHE008 on Chelsea Creek; (5) BOS009 on the Upper
Inner Harbor; and (6) BOS003 on the Lower Inner Harbor. See Dkt #1889-
1 at 17-18. The remedial measures to be undertaken with respect to these six
outlets include: (1) the installation of a second interceptor connection to
regulate CSO overflows (MWR205 and SOM700A/MWR205A); (2) MWRA
financial assistance to the Boston Water & Sewer Commission in the amount
of approximately $2.2 million (approved by the MWRA Board of Directors
on April 14, 2021) to permit upgrades of outfalls BOS003, BOS009, and
BOS014; and (3) an enlargement of the interceptor connection at CHE008
from the present diameter of 30 inches to 48 inches. These measures the
MWRA is confident will bring these six outlets into full compliance by the
end of 2024 at the very latest. See Table 3-3.
The third category consists of the ten outfalls for which full compliance
will not be achieved by the variance expiration date of August 31, 2024, or
the proposed new Milestone date, December 21, 2024. These include outfall
MWR201 at the College Farm Facility, four outfalls on the Charles River,
MWR 018, 019, o2o, and CAM oo5 (clustered on the Lower Charles),
SOM001A at Alewife Brook, BOSo17 in Charlestown at the Mystic/Chelsea
Confluence, and three outfalls on the Fort Point Channel, BOS062, 065, and
070. See Table 3-4. As for these ten, any conclusive determination would be
premature. As stated in the most recent Report,
[f]or these 10 outfalls, the Authority, in coordination with the
CSO communities, continues to evaluate hydraulic conditions
contributing to the higher CSO discharges, and identify and
model CSO reduction alternatives. Based on the results to date,
the Authority is currently focusing its evaluations on the types of
measures identified for each outfall in Exhibit C (Table 1-6 in
Semiannual Progress Report No. 6). The Authority will present
its further progress with these evaluations in Semiannual
Progress Report No. 7, due October 31, 2021.
Report at 9-10. Consequently, the court will defer judgment with respect to
these ten outfalls until a more complete picture can be assembled.
The court understands that among the options under consideration by
the parties is a request to the court to extend the December 2021 Milestone
to August 31, 2024, or possibly December 31, 2024. Whether the extension
request would involve the LTCP as a whole or only the sixteen “problem”
outfalls appears an open question. The MWRA reports that it will continue
discussions with the EPA, the DEP and the CLF, and intends to bring the
interested watershed associations to the table as well.5 The goal is to reach
an agreement so that the parties can, by September 2021, jointly “advise the
court of a framework to bring the case to successful completion.” Report at
3. The court would welcome any such proposal from the parties and the
interested watershed groups.
Turning to other topics, the MWRA reports continued progress with
the capital improvements undertaken by the CSO communities. Among
them are the BWSC’s construction of the first of five sewer separation
projects in South Boston, the City of Somerville’s ongoing construction of a
new storm drain at Union Square, the City of Cambridge’s planning of new
sewage separation projects, and the City of Chelsea’s implementation of the
first phase of its Citywide Sewer Separation Master Plan. The MWRA has
determined that these projects will provide tangible benefits to the
regulation of CSO overflows in the Fort Point Channel, at the Prison Point
5 In this regard, the court received a letter on July 19, 2021, submitted
on behalf of the Charles River Watershed Association and the Mystic River
Watershed Association welcoming the MWRA’s invitation to join the
discussions. See Dkt # 1891.
CSO Facility, the Cottage Farm CSO Facility, and at the three Chelsea
outfalls.
The MWRA also reports on valuable lessons being learned from the
deployment of the calibrated receiving water models for the Lower Charles
River and the Alewife Brook/Upper Mystic River measuring the impact of
CSOs and other discharges on water quality. The most significant results
show that stormwater and upstream flows entering the variance waters are
the two largest sources of E. coli and Enterococcus in the Typical Rainfall
Year. Also of interest is the contrast between receiving water model runs that
incorporate all CSO and non-CSO and those that measure CSO only.6 These
runs show that in a Typical Year the Charles River met compliance criteria
48% of the time, the Alewife Brook 39% of the time, and the Upper Mystic
River 45% of the time. By comparison, the CSO only results show the Charles
River in compliance 99.6% of the time, the Alewife Brook 98.6% of the time,
and the Upper Mystic River 95.8% of the time.7
6 A separate receiving water model run testing the impact of
stormwater and CSO bacterial contributions confirmed the significant role
stormwater plays as a contributor of elevated bacteria counts. The initial
model run results were submitted in draft form to the EPA and DEP, as well
as to the community watershed associations, on May 5, 2021, for review and
comment. A finalized Water Quality Assessment Report is expected to be
issued by September of 2021.
7 These findings are of particular importance given the jurisdictional
and regulatory obstacles faced in any attempt to regulate stormwater runoffs
The MWRA calls attention to the comparison presented in Semiannual
Report No. 6 of measured CSO activations and/or volumes with the
predictions of the hydraulic model for all storms during the period July 1,
2020, to December 31, 2020. As a coda, the MWRA notes that the current
first-quarter 2021 model predicts a system-wide total CSO discharge of 421
million gallons during the coming year, an 88% reduction from the 3.3
billion gallons of discharges in 1988.
Finally, the MWRA reports that it is in compliance with all conditions
of the five-year CSO variances issued by DEP on August 30, 2019, for the
Lower Charles River/Charles Basin and the Alewife Brook/Upper Mystic
River. In addition to the receiving water quality modeling. The conditions
include the establishment of a web based CSO discharge alert system, the
installation of informational signage at public access locations along the
affected waters, and the evaluation of four separate system optimization
proposals affecting the Alewife Brook Pump Station, the Alewife Brook
outfalls, the Somerville Marginal CSO Facility, the Cottage Farm CSO
Facility, and the Charles River outfalls. The MWRA, over the next three
years, expects to remediate the six noncompliant outfalls that it believes can
originating from private property. See Conservation Law Found., Inc. v.
U.S. Envtl. Prot. Agency, 223 F. Supp. 3d 124 (D. Mass. 2017), aff’d, 881 F.3d
24 (1st Cir. 2018).
be brought into compliance before the variances expire. It also undertakes
to continue the investigation of positive improvements at the remaining ten
“problem” outfalls “to develop a framework and path to bring this case to a
successful conclusion.” Report at 22. As of this writing, these are works in
progress and contingent, to a degree, on the court’s future directives.8
ORDER
The court looks forward to receiving in September the report on the
parties’ recommendations with respect to the extension of the final
December 31, 2021 Milestone and believes that a status conference at that
time would be beneficial. Consistent with the court’s revised Scheduling
Order, the MWRA will submit Compliance Report No. 250 on or before
December 23, 2021.
SO ORDERED.
__/s/ Richard G. Stearns__________
UNITED STATES DISTRICT JUDGE
8 Among other issues to be resolved is the answer to the question posed
by the MWRA on page 8 of its December 21, 2020 Report; “whether further
investments in CSO mitigation will result in meaningful water quality
improvements, or whether emphasizing non-CSO contributions of pollution
would be more cost effective and impactful to water quality.”