EPA Construction Stormwater Rule Takes Effect February 1, 2010
\nBy Meline MacCurdy and Russell Prugh<\/p>\n
EPA has issued a long-awaited final stormwater rule, impacting nearly every construction and development project in the United States. The rule, published in the Federal Register on December 1, 2009, for the first time imposes an enforceable numeric limit on stormwater discharges from large construction sites, requires monitoring to ensure compliance with the numeric limit, and requires nearly all construction sites to implement a range of erosion and sediment controls and pollution prevention measures. While the non-numeric effluent limitations will apply to every construction site over one acre when the rule takes effect on February 1, 2010, the numeric limit and associated monitoring requirements applicable to large sites will be phased in over four years.<\/p>\n
According to EPA, the rule will impact approximately 82,000 firms within the construction and development (\u201cC&D\u201d) category, including residential and commercial construction and heavy and civil engineering firms,[1] and will cost the industry nearly $1 billion in new compliance costs.[2] While massive, the cost of the new requirements are less than were estimated under the proposed rule, as a result of changes made during the rulemaking process. The Clean Water Act[3] (\u201cCWA\u201d) prohibits discharges of pollutants by any person from point sources into waters of the United States without a National Pollutant Discharge Elimination System (\u201cNPDES\u201d) permit.[4] NPDES permits \u201cplace limits on the type and quantity of pollutants that can be released into the Nation\u2019s waters, and must set forth effluent limitations,\u201d[5] which are specific restrictions on the quantities, rates, and concentrations of chemical, physical, biological or other constituents, such as sediment or turbidity, discharged into navigable waters from point sources.[6] EPA\u2019s effluent limitations are incorporated into NPDES permits when the permits are issued. NPDES permits are generally issued by state agencies, because most states have sought and received NPDES permitting authority from EPA.[7] EPA\u2019s national regulations set a floor for state NPDES permits, but states can include requirements that are more stringent than the national standards.<\/p>\n The specific effluent limitations incorporated into NPDES permits are established using more general effluent Background to the Final Rule<\/strong><\/p>\n Under EPA\u2019s current NPDES regulations, dischargers engaged in construction activity are required to obtain an NPDES stormwater permit if the activity will result in the disturbance of a land area of one acre or greater.[10] While construction activity dischargers make up the largest category of NPDES permits, the current federal guidelines do not provide national performance standards or monitoring requirements for this category of dischargers.[11] That changes with the new rule.<\/p>\n EPA identified the construction industry as a point source category for which it intended to promulgate rules regarding ELGs and NSPSs back in 2000.[12] EPA issued a proposed rule in 2002 that contained several options for addressing stormwater discharges from construction sites, including ELGs and NSPSs.[13] However, in 2004, EPA opted not to promulgate ELGs for the construction industry, and instead relied on \u201cthe range of existing programs, regulations, and initiatives\u201d at the federal, state, and local levels.[14] In response to EPA\u2019s rulemaking decision, environmental groups filed a complaint to force EPA to promulgate discharge standards and guidelines for the construction industry. In Natural Resources Defense Council v. EPA, the Ninth Circuit affirmed an injunction forcing EPA to propose ELGs and NSPSs for the construction industry by December 1, 2008,[15] and promulgate a final rule by December 1, 2009.[16]<\/p>\n Overview of the Final Rule<\/strong><\/p>\n EPA\u2019s final rule establishes nationally applicable ELGs and NSPSs to NPDES permits covering stormwater The non-numeric effluent limitations include a range of erosion and sediment controls and pollution prevention measures, apply to construction activities that will disturb one acre or greater, and must be incorporated into NPDES permits issued after the rule takes effect.[17] The final rule revises several elements of the non-numeric effluent limitations from the 2008 proposed rule, with the intent to make the requirements applicable to all construction activities. These changes include the elimination of specific requirements, such as the implementation of sediment basins on all large construction sites,[18] and generally responding to the variability of C&D sites with the inclusion of \u201cunless feasible\u201d language in some requirements.[19]<\/p>\n The rule requires implementation of best management practices related to: (1) erosion and sedimentation The rule sets a numeric effluent limitation for turbidity at 280 nephelometric turbidity units (\u201cNTU\u201d) and requires monitoring to ensure that this limitation is met.[25] EPA explained its decision to regulate turbidity using numeric standards based on the fact that turbidity is an \u201cindicator pollutant\u201d that will help to control the discharge of other pollutants, such as metals and nutrients, from construction sites.[26] Turbidity can also be measured in the field, which EPA expects to reduce compliance costs.[27]<\/p>\n In response to comments on the proposed rule, EPA changed the technology basis for BAT and NSPS from active or advanced treatment systems (\u201cATS\u201d), which consist of poly-assisted clarification followed by filtration, to passive treatment systems (\u201cPTS\u201d), which, as used in the final rule, include practices that rely on settling and filtration to remove sediment, turbidity, and other pollutants.[28] EPA determined that PTS could \u201cprovide a high level of turbidity reduction at a significantly lower cost than\u201d ATS.[29]<\/p>\n Unlike the rule\u2019s non-numeric requirements, the turbidity limitation only applies to large construction sites \u2013 i.e., sites that will disturb ten acres or more at one time.[30] In addition, the numeric limitation will be implemented in two phases. First, construction sites that disturb twenty or more acres of land at one time are required to sample and comply with the turbidity limitation within eighteen months of the effective date of the final rule (i.e., by August 1, 2011).[31] Second, construction sites that disturb ten or more acres at one time are required to sample and comply with the turbidity limitation within four years of the effective date of the rule (i.e., by February 2, 2014).[32]<\/p>\n The 280 NTU turbidity limit is expressed as a maximum daily limitation, meaning that the averages of the samples taken over the course of a day may not exceed the maximum daily amount. This allows for temporary discharges of stormwater that exceed the turbidity requirement (such as discharges during an intense period of rainfall).[33] While the final rule leaves the specific monitoring requirements in the NPDES construction stormwater permits to the states, EPA has indicated that it expects at least three samples per day from the discharge point while discharges are occurring.[34] The rule also exempts discharges resulting from a storm event that is larger than the local two-year, twenty-four hour storm.[35]<\/p>\n Impacts on Existing State Programs<\/strong><\/p>\n All NPDES permitting authorities will be required to incorporate the rule into their construction stormwater permits, but the impact of the changes will depend on existing state and local requirements. In many cases, the rule is more restrictive than current stormwater requirements, which will impose significant burdens on permitting authorities and permittees. For example, EPA acknowledges that the monitoring requirements will generally \u201crequire an additional layer of management practices and\/or treatment above what most state and local programs are currently requiring,\u201d[36] although some states have been imposing monitoring requirements on construction operators in their permits for some time.[37] Additionally, although the rule does not require the use of a particular technology for meeting the numeric limitation, permitting authorities and permittees will need to develop and select appropriate management practices or technologies for meeting the numeric limitations. Although the final rule responds to many primary concerns and is expected to cost less than the proposed rule, the final rule comes at an economically difficult time for an already-strained construction industry.<\/p>\n For more information on stormwater permiting, please contact Meli MacCurdy, Russell Prugh or any other member of Marten Law\u2019s Permitting and Environmental Review practice group.<\/p>\n","protected":false},"excerpt":{"rendered":" EPA Construction Stormwater Rule Takes Effect February 1, 2010 By Meline MacCurdy and Russell Prugh EPA has issued a long-awaited final stormwater rule, impacting nearly every construction and development project in the United States. The rule, published in the Federal Register on December 1, 2009, for the first time imposes an enforceable numeric limit on… Continue reading EPA Construction Stormwater Rule<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[5],"tags":[],"class_list":["post-429","post","type-post","status-publish","format-standard","hentry","category-risk","entry"],"_links":{"self":[{"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/posts\/429","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/comments?post=429"}],"version-history":[{"count":0,"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/posts\/429\/revisions"}],"wp:attachment":[{"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/media?parent=429"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/categories?post=429"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/estrategist.com\/members\/wp-json\/wp\/v2\/tags?post=429"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\n
\nThe Clean Water Act<\/strong><\/p>\n
\nlimitations guidelines (\u201cELGs\u201d) and new source performance standards (\u201cNSPSs\u201d).[8] ELGs impose technology-
\nbased requirements for categories of point source dischargers. ELGs apply to existing sources of pollution and NSPSs apply to \u201cnew sources.\u201d[9]<\/p>\n
\ndischarges from construction sites, including best management practices (\u201cBMPs\u201d) and a numeric limit for turbidity.<\/p>\n
\ncontrols,[20] (2) soil stabilization controls,[21] and (3) pollution prevention measures.[22] The rule also prohibits discharges from: (1) dewatering activities and concrete washout activities (unless managed by appropriate controls), (2) wastewater from the washout of stucco, paint, form release oils, curing compounds and other construction materials, (3) fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance, and (4) soaps or solvents used in vehicle and equipment washing.[23] The rule also requires that discharges from basins or impoundments on a construction site must withdraw water from the surface, unless infeasible.[24]<\/p>\n