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EPA Construction Stormwater Rule Takes Effect February 1, 2010

January 20, 2010

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.

According to EPA, the rule will impact approximately 82,000 firms within the construction and development (“C&D”) 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

The Clean Water Act[3] (“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.[4] 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,”[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’s 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’s national regulations set a floor for state NPDES permits, but states can include requirements that are more stringent than the national standards.

The specific effluent limitations incorporated into NPDES permits are established using more general effluent limitations guidelines (“ELGs”) and new source performance standards (“NSPSs”).[8] ELGs impose technology-based requirements for categories of point source dischargers. ELGs apply to existing sources of pollution and NSPSs apply to “new sources.”[9]

Background to the Final Rule

Under EPA’s 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.

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 “the range of existing programs, regulations, and initiatives” at the federal, state, and local levels.[14] In response to EPA’s 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]

Overview of the Final Rule

EPA’s final rule establishes nationally applicable ELGs and NSPSs to NPDES permits covering stormwater discharges from construction sites, including best management practices (“BMPs”) and a numeric limit for turbidity.

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 “unless feasible” language in some requirements.[19]

The rule requires implementation of best management practices related to: (1) erosion and sedimentation controls,[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]

The rule sets a numeric effluent limitation for turbidity at 280 nephelometric turbidity units (“NTU”) 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 “indicator pollutant” 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]

In response to comments on the proposed rule, EPA changed the technology basis for BAT and NSPS from active or advanced treatment systems (“ATS”), which consist of poly-assisted clarification followed by filtration, to passive treatment systems (“PTS”), 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 “provide a high level of turbidity reduction at a significantly lower cost than” ATS.[29]

Unlike the rule’s non-numeric requirements, the turbidity limitation only applies to large construction sites – 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]

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]

Impacts on Existing State Programs

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 “require an additional layer of management practices and/or treatment above what most state and local programs are currently requiring,”[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.

For more information on stormwater permiting, please contact any member of Marten Law’s Permitting and Environmental Review practice group.

[1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category; Final Rule 74 Fed. Reg. 62,996, 63,003-04, 63,031 (Dec. 1, 2009) (“Final Rule”).

[2] See id. at 62,997-98, 63,040;EPA’s Proposed Stormwater Regulations for Construction Sites Could Cost up to $2 Billion, Marten Law Group Environmental News (Dec. 18, 2008).

[3] 33 U.S.C. § 1251 et. seq.

[4] See 33 U.S.C. § 1311(a); 33 U.S.C. § 1342.

[5] Natural Resources Defense Council v. U.S. EPA, 542 F.3d 1235, 1238-39 (9th Cir. 2008) (citations omitted).

[6] 33 U.S.C. §1362(11).

[7] EPA administers the NPDES permit program in only four states (Idaho, Massachusetts, New Hampshire, and New Mexico) and the District of Columbia. Final Rule at 63,000.

[8] See 33 U.S.C. § 1314(b).

[9] See id. § 1316(a)(2)).

[10] 40 C.F.R. § 122.26(b)(15), (c)(1). An NPDES permit is also required if the construction activity will disturb less than one acre of total land where the activity is part of a larger common plan of development or sale that will ultimately disturb one or more acres. Id.

[11] Final Rule at 62,998.

[12] Id. at 63,003.

[13] 67 Fed. Reg. 42,644 (June 24, 2002).

[14] Final Rule at 63,003.

[15] EPA issued the proposed rule on November 28, 2008. 73 Fed. Reg. 72562 (Nov. 28, 2008).

[16] 542 F.3d 1235, 1241, 1253 (9th Cir. 2008).

[17] Final Rule at 62,997-99.

[18] See id. at 63,009, 63,018.

[19] See id. at 63,017-18.

[20] Id. at 63,057 (to be codified at 40 C.F.R. § 450.21(a)).

[21] Id. at 63,057 (to be codified at 40 C.F.R. § 450.21(b)).

[22] Id. at 63,057 (to be codified at 40 C.F.R. § 450.21(d)).

[23] Id. at 63,057 (to be codified at 40 C.F.R. § 450.21(c), (e)(1)-(4)).

[24] Id. at 63,057 (to be codified at 40 C.F.R. § 450.21(f)).

[25] Id. at 63,058 (to be codified at 40 C.F.R. § 450.22(a)(1)). EPA describes turbidity as “an expression of the optical property that causes light to be scattered and absorbed rather than transmitted with no change in direction of flux level through the sample caused by suspended and colloidal matter such as clay, silt, finely divided organic and inorganic matter and plankton and other microscopic organisms.” Id. at 63,006. EPA considered and rejected making the turbidity limitation a “benchmark” instead of a requirement. The difference between a benchmark and a numeric limitation is that a violation of a benchmark is not, in itself, a violation of the NPDES permit. EPA concluded that numeric turbidity limitations were feasible and appropriate for larger construction sites. Id. at 63,025.

[26] Id. at 63,006-07.

[27] Id. at 63,020.

[28] Id. at 63,004-05; 63,012; 63,019.

[29] Id. at 63,012.

[30] Id. at 63,047-48, 63,057-58 (to be codified at 40 C.F.R.§ 450.22(a)). “EPA emphasizes that the applicability of the turbidity limitation is tied to acres disturbed at one time, not to the ultimate amount of land disturbance on a site.” Id. at 63,047-48.

[31] Final Rule at 63,047-48, 63,057-58 (to be codified at 40 C.F.R.§ 450.22(a)). EPA’s website notes that Federal Register notice (at 63,050 and 63,058) contains incorrect compliance dates associated with the turbidity limitation for sites disturbing 20 or more acres at one time. The website explains that the correct date for implementation is August 1, 2011. See EPA, Construction and Development – Final Effluent Guidelines .

[32] Final Rule at 63,047-48, 63,057-58 (to be codified at 40 C.F.R. § 450.22(a)).

[33] Id. at 63,047-48, 63,057-58 (to be codified at 40 C.F.R. § 450.22(a)).

[34] Id. at 63,048.

[35] Id. at 63,058 (to be codified at 40 C.F.R. § 450.22(b)).

[36] Id. at 62,998.

[37] Id. at 63,047.

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