EPA Construction Stormwater Rule Takes Effect February = 1,=20 2010

January = 20,=20 2010

Meline MacCurdy =

Russell Prugh=20

EPA has issued a long-awaited final = stormwater=20 rule, impacting nearly every construction and development project in = the=20 United States. The rule, published in the Federal Register on December = 1, 2009,=20 for the first time imposes an enforceable numeric limit on stormwater = discharges=20 from large construction sites, requires monitoring to ensure compliance = with the=20 numeric limit, and requires nearly all construction sites to implement a = range=20 of erosion and sediment controls and pollution prevention measures. = While the=20 non-numeric effluent limitations will apply to every construction site = over one=20 acre when the rule takes effect on February 1, 2010, the numeric limit = and=20 associated monitoring requirements applicable to large sites will be = phased in=20 over four years.

According to EPA, the rule will impact approximately 82,000 firms = within the=20 construction and development (=E2=80=9CC&D=E2=80=9D) category, = including residential and=20 commercial construction and heavy and civil engineering firms,[1] and will cost the industry nearly $1 billion in = new=20 compliance costs.[2] While massive, the cost of the new requirements = are less=20 than were estimated under the proposed rule, as a result of changes made = during=20 the rulemaking process.

The Clean Water Act

The Clean Water Act[3] (=E2=80=9CCWA=E2=80=9D) prohibits discharges of = pollutants by any person=20 from point sources into waters of the United States without a National = Pollutant=20 Discharge Elimination System (=E2=80=9CNPDES=E2=80=9D) permit.[4] NPDES permits =E2=80=9Cplace limits on the type = and quantity of=20 pollutants that can be released into the Nation=E2=80=99s waters, and = must set forth=20 effluent limitations,=E2=80=9D[5] which are specific restrictions on the = quantities, rates,=20 and concentrations of chemical, physical, biological or other = constituents, such=20 as sediment or turbidity, discharged into navigable waters from point = sources.[6] EPA=E2=80=99s effluent limitations are = incorporated into NPDES=20 permits when the permits are issued. NPDES permits are generally issued = by state=20 agencies, because most states have sought and received NPDES permitting=20 authority from EPA.[7] EPA=E2=80=99s national regulations set a floor = for state NPDES=20 permits, but states can include requirements that are more stringent = than the=20 national standards.

The specific effluent limitations incorporated into NPDES permits are = established using more general effluent limitations guidelines = (=E2=80=9CELGs=E2=80=9D) and new=20 source performance standards (=E2=80=9CNSPSs=E2=80=9D).[8] ELGs impose technology-based requirements for = categories=20 of point source dischargers. ELGs apply to existing sources of pollution = and=20 NSPSs apply to =E2=80=9Cnew sources.=E2=80=9D[9]

Background to the Final Rule

Under EPA=E2=80=99s current NPDES regulations, dischargers engaged in = construction=20 activity are required to obtain an NPDES stormwater permit if the = activity will=20 result in the disturbance of a land area of one acre or greater.[10] While construction activity dischargers make = up the=20 largest category of NPDES permits, the current federal guidelines do not = provide=20 national performance standards or monitoring requirements for this = category of=20 dischargers.[11] That changes with the new rule.

EPA identified the construction industry as a point source category = for which=20 it intended to promulgate rules regarding ELGs and NSPSs back in 2000.[12] EPA issued a proposed rule in 2002 that = contained=20 several options for addressing stormwater discharges from construction = sites,=20 including ELGs and NSPSs.[13] However, in 2004, EPA opted not to promulgate = ELGs for=20 the construction industry, and instead relied on =E2=80=9Cthe range of = existing=20 programs, regulations, and initiatives=E2=80=9D at the federal, state, = and local=20 levels.[14] In response to EPA=E2=80=99s rulemaking = decision, environmental=20 groups filed a complaint to force EPA to promulgate discharge standards = and=20 guidelines for the construction industry. In Natural Resources = Defense=20 Council v. EPA, the Ninth Circuit affirmed an injunction forcing = EPA to=20 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=E2=80=99s final rule establishes nationally applicable ELGs and = NSPSs to NPDES=20 permits covering stormwater discharges from construction sites, = including best=20 management practices (=E2=80=9CBMPs=E2=80=9D) and a numeric limit for = turbidity.

The non-numeric effluent limitations include a range of erosion and = sediment=20 controls and pollution prevention measures, apply to construction = activities=20 that will disturb one acre or greater, and must be incorporated into = NPDES=20 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=20 make the requirements applicable to all construction activities. These = changes=20 include the elimination of specific requirements, such as the = implementation of=20 sediment basins on all large construction sites,[18] and generally responding to the variability of = C&D=20 sites with the inclusion of =E2=80=9Cunless feasible=E2=80=9D language = in some requirements.[19]

The rule requires implementation of best management practices related = to: (1)=20 erosion and sedimentation controls,[20] (2) soil stabilization controls,[21] and (3) pollution prevention measures.[22] The rule also prohibits discharges from: (1) = dewatering=20 activities and concrete washout activities (unless managed by = appropriate=20 controls), (2) wastewater from the washout of stucco, paint, form = release oils,=20 curing compounds and other construction materials, (3) fuels, oils, or = other=20 pollutants used in vehicle and equipment operation and maintenance, and = (4)=20 soaps or solvents used in vehicle and equipment washing.[23] The rule also requires that discharges from = basins or=20 impoundments on a construction site must withdraw water from the = surface, unless=20 infeasible.[24]

The rule sets a numeric effluent limitation for turbidity at 280=20 nephelometric turbidity units (=E2=80=9CNTU=E2=80=9D) and requires = monitoring to ensure that=20 this limitation is met.[25] EPA explained its decision to regulate = turbidity using=20 numeric standards based on the fact that turbidity is an = =E2=80=9Cindicator pollutant=E2=80=9D=20 that will help to control the discharge of other pollutants, such as = metals and=20 nutrients, from construction sites.[26] Turbidity can also be measured in the field, = which EPA=20 expects to reduce compliance costs.[27]

In response to comments on the proposed rule, EPA changed the = technology=20 basis for BAT and NSPS from active or advanced treatment systems = (=E2=80=9CATS=E2=80=9D), which=20 consist of poly-assisted clarification followed by filtration, to = passive=20 treatment systems (=E2=80=9CPTS=E2=80=9D), which, as used in the final = rule, include practices=20 that rely on settling and filtration to remove sediment, turbidity, and = other=20 pollutants.[28] EPA determined that PTS could =E2=80=9Cprovide = a high level of=20 turbidity reduction at a significantly lower cost than=E2=80=9D ATS.[29]

Unlike the rule=E2=80=99s non-numeric requirements, the turbidity = limitation only=20 applies to large construction sites =E2=80=93 i.e., sites that will = disturb ten acres or=20 more at one time.[30] In addition, the numeric limitation will be = implemented=20 in two phases. First, construction sites that disturb twenty or more = acres of=20 land at one time are required to sample and comply with the turbidity = limitation=20 within eighteen months of the effective date of the final rule (i.e., by = August=20 1, 2011).[31] Second, construction sites that disturb ten or = more=20 acres at one time are required to sample and comply with the turbidity=20 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,=20 meaning that the averages of the samples taken over the course of a day = may not=20 exceed the maximum daily amount. This allows for temporary discharges of = stormwater that exceed the turbidity requirement (such as discharges = during an=20 intense period of rainfall).[33] While the final rule leaves the specific = monitoring=20 requirements in the NPDES construction stormwater permits to the states, = EPA has=20 indicated that it expects at least three samples per day from the = discharge=20 point while discharges are occurring.[34] The rule also exempts discharges resulting = from a storm=20 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=20 into their construction stormwater permits, but the impact of the = changes will=20 depend on existing state and local requirements. In many cases, the rule = is more=20 restrictive than current stormwater requirements, which will impose = significant=20 burdens on permitting authorities and permittees. For example, EPA = acknowledges=20 that the monitoring requirements will generally =E2=80=9Crequire an = additional layer of=20 management practices and/or treatment above what most state and local = programs=20 are currently requiring,=E2=80=9D[36] although some states have been imposing = monitoring=20 requirements on construction operators in their permits for some time.[37] Additionally, although the rule does not = require the use=20 of a particular technology for meeting the numeric limitation, = permitting=20 authorities and permittees will need to develop and select appropriate=20 management practices or technologies for meeting the numeric = limitations.=20 Although the final rule responds to many primary concerns and is = expected to=20 cost less than the proposed rule, the final rule comes at an = economically=20 difficult time for an already-strained construction industry.

For more information on stormwater permiting, please contact Meli = MacCurdy, Russell Prugh = or any=20 other member of Marten Law=E2=80=99s Permitting and Environmental Review = practice=20 group.

[1] See EPA, Effluent Limitations Guidelines = and=20 Standards for the Construction and Development Point Source Category; = Final Rule=20 74 Fed. Reg. 62,996, 63,003-04, 63,031 (Dec. 1, 2009) (=E2=80=9CFinal = Rule=E2=80=9D).

[2] See id. at 62,997-98, 63,040;EPA=E2=80=99s=20 Proposed Stormwater Regulations for Construction Sites Could Cost up to = $2=20 Billion, Marten Law Group Environmental News (Dec. 18, = 2008).

[3] 33 U.S.C. =C2=A7 1251 et. seq.

[4] See 33 U.S.C. =C2=A7 1311(a); 33 U.S.C. = =C2=A7 1342.

[5] Natural Resources Defense Council v. U.S. = EPA, 542=20 F.3d 1235, 1238-39 (9th Cir. 2008) (citations omitted).

[6] 33 U.S.C. =C2=A71362(11).

[7] EPA administers the NPDES permit program in only = four states=20 (Idaho, Massachusetts, New Hampshire, and New Mexico) and the District = of=20 Columbia. Final Rule at 63,000.

[8] See 33 U.S.C. =C2=A7 1314(b).

[9] See id. =C2=A7 1316(a)(2)).

[10] 40 C.F.R. =C2=A7 122.26(b)(15), (c)(1). An = NPDES permit is=20 also required if the construction activity will disturb less than one = acre of=20 total land where the activity is part of a larger common plan of = development or=20 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.=20 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.=20 =C2=A7 450.21(a)).

[21] Id. at 63,057 (to be codified at 40 = C.F.R.=20 =C2=A7 450.21(b)).

[22] Id. at 63,057 (to be codified at 40 = C.F.R.=20 =C2=A7 450.21(d)).

[23] Id. at 63,057 (to be codified at 40 = C.F.R.=20 =C2=A7 450.21(c), (e)(1)-(4)).

[24] Id. at 63,057 (to be codified at 40 = C.F.R.=20 =C2=A7 450.21(f)).

[25] Id. at 63,058 (to be codified at 40 = C.F.R.=20 =C2=A7 450.22(a)(1)). EPA describes turbidity as =E2=80=9Can = expression of the optical=20 property that causes light to be scattered and absorbed rather than = transmitted=20 with no change in direction of flux level through the sample caused by = suspended=20 and colloidal matter such as clay, silt, finely divided organic and = inorganic=20 matter and plankton and other microscopic organisms.=E2=80=9D = Id. at 63,006.=20 EPA considered and rejected making the turbidity limitation a = =E2=80=9Cbenchmark=E2=80=9D=20 instead of a requirement. The difference between a benchmark and a = numeric=20 limitation is that a violation of a benchmark is not, in itself, a = violation of=20 the NPDES permit. EPA concluded that numeric turbidity limitations were = feasible=20 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=20 C.F.R.=C2=A7 450.22(a)). =E2=80=9CEPA emphasizes that the = applicability of the turbidity=20 limitation is tied to acres disturbed at one time, not to the ultimate = amount of=20 land disturbance on a site.=E2=80=9D Id. at 63,047-48.

[31] Final Rule at 63,047-48, 63,057-58 (to be = codified at 40=20 C.F.R.=C2=A7 450.22(a)). EPA=E2=80=99s website notes that Federal = Register notice (at=20 63,050 and 63,058) contains incorrect compliance dates associated with = the=20 turbidity limitation for sites disturbing 20 or more acres at one time. = The=20 website explains that the correct date for implementation is August 1, = 2011.=20 See EPA, Construction and = Development =E2=80=93=20 Final Effluent Guidelines .

[32] Final Rule at 63,047-48, 63,057-58 (to be = codified at 40=20 C.F.R. =C2=A7 450.22(a)).

[33] Id. at 63,047-48, 63,057-58 (to be = codified at 40=20 C.F.R. =C2=A7 450.22(a)).

[34] Id. at 63,048.

[35] Id. at 63,058 (to be codified at 40 = C.F.R.=20 =C2=A7 450.22(b)).

[36] Id. at 62,998.

[37] Id. at 63,047.

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About the Author(s)

Meline=20 G. MacCurdy

Associate, Seattle

Russell C.=20 Prugh

Associate,=20 Seattle

Related Practices

Permitting=20 and Environmental Review=20