EPA’s Proposed Stormwater Regulations for Construction Sites Could Cost Up to $2 Billion
The Environmental Protection Agency (“EPA”) has published for comment a proposed rule that would, among other things, establish new nationwide effluent limitations on turbidity for stormwater discharges from larger construction sites. The proposal would also require all construction sites to implement erosion and sediment control best management practices to manage stormwater runoff. The annual cost of implementing the proposed rule – which in many cases go beyond current state and local requirements – is nearly $2 billion. EPA is accepting public comment on the proposed rule through February 26, 2009.
The Clean Water Act
The Clean Water Act (“CWA”) prohibits discharges of pollutants by any person from point sources into waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit.[1] NPDES permits “place limits on the type and quantity of pollutants that can be released into the Nation’s waters, and must set forth effluent limitations,”[2] which are the specific restrictions on the quantities, rates, and concentrations of chemical, physical, or other constituents, such as sediment or turbidity, discharged into navigable waters from point sources.3 Effluent limitations are incorporated into NPDES permits when they are issued by permit authorities, which are typically state agencies since, with a few exceptions, most states have sought and received delegation of the NPDES permitting program from EPA.
The specific effluent limitations incorporated into NPDES permits are established using more general effluent limitations guidelines (“ELGs”) and new source performance standards (“NSPSs”) (collectively, “ELGs”).[4] ELGs and NSPSs impose technology-based requirements for categories of point source dischargers. ELGs apply to existing sources of pollution and NSPSs apply to “new sources” of pollution.[5]
Background to the Proposed Rule
In 2002, EPA published a proposed rule that contained several options for addressing stormwater discharges from construction sites, including promulgating ELGs and NSPSs for the industry. In 2004, EPA opted not to propose ELGs for stormwater discharges from construction sites, or another new rule, but to continue to rely on the range of existing federal, state, and local programs, regulations, and initiatives to control stormwater discharges from construction sites.[6] EPA explained that: “construction site storm water discharges were already being adequately addressed, because the existing NPDES regulations require permits for the vast majority of construction sites nationwide, and that the cost was simply too high and…disproportionately large given the reductions that would be attributable to the proposed ELGs…[and] determined that the annual cost of the proposed ELGs would be more than half a billion dollars and would result in the displacement of a number of jobs while the existing permit programs were capable of controlling 80-90% of sediment runoff from construction sites and the proposed rule would only remove an additional 1% more.”[7] Further, EPA decided not to promulgate NSPSs after concluding that construction activity was not appropriately characterized as new sources, and thus the definition of “new source” should not include construction sites.
Following EPA’s rulemaking decision, the Natural Resources Defense Council and Waterkeeper Alliance filed a complaint in district court to compel EPA to promulgate discharge standards and guidelines for the construction and development industry. In NRDC v. EPA,[8] the United States District Court for the Central District of California held that EPA had a nondiscretionary duty to promulgate technology-based discharge standards and guidelines to control stormwater discharges from construction sites because it had identified the construction industry as an industrial category of source in its plan published under section 306(m) of the CWA.[9] The district court entered a Permanent Injunction and Judgment on December 5, 2006, and gave EPA until December 1, 2008 to propose ELGs and NSPSs for the construction and development industry and until December 1, 2009 to promulgate the new regulations. The Ninth Circuit affirmed the district court decision.[10] The present proposed rule satisfies EPA’s responsibility under the court injunction.
The Proposed Rule
There are three primary elements to the proposed rule. First, and most significantly, the rule would establish a strict numeric effluent limit on the amount of turbidity (13 nephelometric units [NTUs]) that may be present in stormwater discharges from large sites of thirty (30) or more acres which are located in areas of the country with “high rainfall energy and with soils with significant clay content.”[11] The technology basis for the effluent limit is active treatment, which consists of polymer-assisted clarification followed by filtration. EPA is also seeking comments on setting a turbidity limit in the range of 50-150 NTUs based on different technologies.
Second, the rule would require dischargers to install a sediment basin to contain and settle sediment from stormwater runoff at active construction sites disturbing ten (10) acres of land or more. The proposed rule does not impose specific design criteria for the sediment basins, but would impose minimum standards of design and performance. Dischargers would be allowed to use an equivalent sediment control where approved by the permitting authority.
Third, the proposed rule would require all construction sites to provide and implement “recognized and accepted” sediment and erosion control measures, and other pollution prevention measures, to control discharges of pollutants in stormwater and other wastewater from construction sites. The proposed rule would set out a list of principles and practices that are generally recognized and accepted as effective erosion control measures – such as stabilizing disturbed soils – to help guide the selection and implementation of erosion control measures on individual construction sites. The proposed rule would require dischargers to implement certain minimum sediment control measures on site, such as controlling sediment and other contaminants from dewatering activities and the use of perimeter controls. It would also require dischargers to provide and maintain effective pollution prevention measures in accordance with established industry practice such as prohibitions on discharges of construction wastes, trash, and wastewater from washout of concrete, paint, and other materials.[12]
Impacts on Existing State Programs
The new regulations would be incorporated into existing State and local stormwater permitting requirements and would be incorporated into National Pollutant Discharge Elimination System (“NPDES”) issued by permitting authorities under the Clean Water Act (“CWA”), 33 U.S.C. § 1301 et seq. EPA expects that the “turbidity effluent limits would require “an additional layer of management practices and/or treatment above what most state and local programs are currently requiring.”[13] The new requirements could also significantly increase costs at construction and development sites involving ten or more acres of land. Implementation of the rule is expected to cost $1.9 billion dollars per year.[14]
The proposed rules are, in many cases, more restrictive than current stormwater requirements, and costs of compliance for the industry could be significant. To take one example, Washington State has turbidity benchmark limits that are currently set at values relative to the turbidity in the receiving stream. There is no absolute turbidity effluent limit. Using the federal numeric effluent limit in lieu of existing requirements therefore could, in some cases, require additional monitoring and technological controls at larger construction sites in the state.
Many industry groups have expressed concern that the effluent limit for turbidity could require many sites to implement expensive chemical treatment and filtration methods in order to achieve compliance. This could drive up the costs for affected entities, which include builders, developers, general contractors, and construction operators that perform construction activities. Environmental groups also criticized the proposed rule, saying it “missed the boat entirely.”[15]
For more information on stormwater discharge permits under the Clean Water Act, please contact any member of Marten Law Group’s Permitting and Environmental Review practice group.
[1] See 33 U.S.C. § 1311(a); 33 U.S.C. § 1342.
[2] Natural Resources Defense Council, --- F.3d ---, 2008 WL 4253944 *1.
[3] 33 U.S.C. § 1362(11).
[4] Natural Resources Defense Council, --- F.3d ---, 2008 WL 4253944 *2; ELGs are described in 33 U.S.C. § 1314(b).
[5] Id. at *2 (citing CWA § 306(a)(2)).
[6] In 2000 and 2002, EPA identified “construction and development” as a point source category requiring guidelines regulation in its effluent guidelines program plans developed under § 304(m). See 65 Fed. Reg. 53,009 (Aug. 31, 2000). In June of 2002, EPA issued a proposed rule that presented several options to control stormwater discharges from construction sites. 67 Fed. Reg. 42,644 (June 24, 2002). In that rulemaking, EPA considered the incorporation of new technology-based standards and guidelines into NPDES permits as one option. As another option, EPA proposed to establish inspection and certification requirements that would be implemented through stormwater permits issued by EPA and States. As a third option, EPA proposed continued implementation of the current regulatory program, which requires NPDES permits for construction sites greater than an acre but does not necessarily impose any effluent limitations on associated discharges. At the conclusion of the rulemaking process in 2004, and after considering public comment, EPA opted not to adopt any new rule but to address the discharges through the current regulatory program. 69 Fed. Reg. 22472 (April 26, 2004) (Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development Category).
[7] Natural Resources Defense Council, --- F.3d ---, 2008 WL 4253944 *3 (citing 69 Fed. Reg. 22472, 22477).
[8] Natural Resources Defense Council v. EPA, 437 F. Supp.2d 1137 (C.D. Cal. 2006). The New York State Department of Environmental Conservation, and the States of New York and Connecticut intervened to support plaintiffs. The National Association of Homebuilders and Associated General Contractors of America intervened on behalf of EPA.
[9] Under § 304(m) of the CWA, 33 U.S.C. § 1314(m), every two years EPA “shall” identify categories of sources discharging toxic or nonconventional pollutants for which EPA has not published ELGs under 33 U.S.C. § 1314(b)(2) or NSPSs under 33 U.S.C. § 1316. EPA is also required to establish a schedule for promulgating ELGs for the categories identified, and the promulgation of effluent limitations and performance standards “shall be no later than 4 years after February 4, 1987, for categories identified in the first published [304(m)] plan or 3 years after the publication of the plan for categories identified in later published plans.” 33 U.S.C. § 1314(m)(1). The Ninth Circuit affirmed the district court’s decision that EPA has a nondiscretionary duty to promulgate ELGs for the construction and development industry once EPA had listed the industry as a point source category in its § 304(m) plans. The court also concluded that EPA could not avoid this nondiscretionary duty by simply de-listing the construction and development industry from the agency’s § 304(m) plans.
[10] Natural Resources Defense Council v. EPA, --- F.3d ---, 2008 WL 4253944 (9th Cir. 2008). EPA filed a filed a petition for panel rehearing, which was denied on December 12, 2008.
[11] 73 Fed. Reg. 72562, 72569 (November 28, 2008).
[12] Id. at 72574-5
[13] Id. at 72564.
[14] EPA lacked data on the amount of construction occurring in Alaska, Hawaii and the U.S. territories and, therefore, did not include costs for these areas in its cost estimate. Id. at 72569.
[15] Katherine Boyle, “EPA construction-site discharge rule would implement sediment control practices,” Greenwire (November 19, 2008)