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EPA Proposes Changes to Stormwater Permitting Requirements for Construction and Development

By: Maggie Macdonald

On April 5, EPA proposed a rule changing the effluent limitation guidelines for stormwater discharges from construction and development point sources.

Why is EPA Changing the Standard?

These changes reflect the terms of a settlement agreement between EPA and the Wisconsin Builders Association, the National Association of Home Builders and the Utility Water Act Group resolving the 7th Circuit lawsuit, Wisconsin Builders Association v. EPA, No. 09-4413 (7th Cir. 2012).  The groups challenged the EPA’s 2009 Effluent Limitations Guidelines for the Construction and Development Industry, known as the 2009 C&D Rule, arguing that the rule was unworkable and attempts at compliance with effluent limitations guidelines could cost stakeholders up to $10 billion annually.

Who is Affected by these Changes?

The 2009 C&D Rule applies only to stormwater discharged during construction, which generally includes clearing, grading and excavation.  Owners and operators of construction sites with one acre or more of land disturbance are subject to regulation and would be affected by the changes incorporated in the proposed rule.

What are the Changes?

The EPA acknowledged that the numeric turbidity requirements in the 2009 C&D Rule were flawed, and stayed implementation until additional information could be gathered.  Pursuant to the Wisconsin Builders Association settlement, the proposed rule entirely eliminates numeric turbidity limits.  The proposed rule additionally gives permittees more flexibility in adopting stormwater controls by specifically defining “infeasible” to allow consideration of industry practice as well as cost.  EPA has also incorporated common-sense explanations of how the rule should be applied. For example, the requirement to minimize soil compaction is now explicitly inapplicable in areas where the site’s function requires soil compaction, such as foundation pads for buildings or roads; similarly, the requirement to stabilize certain areas does not apply to areas whose function necessitates that they not be stabilized.  These changes, and others, reflect the continuing evolution of the standards for stormwater management under the Construction General Permit.

How Does This Affect Construction in New York?

In New York, the Department of Environmental Conservation (DEC) has authority to administer the NPDES program under its SPDES permit system.  DEC has already adopted many of the 2009 C&D Rule requirements in its Construction General Permit (GP-0-10-001) and the New York State Stormwater Management Design Manual (2010).  Discussion of the effect of the current proposed rule on the DEC Construction General Permit will be forthcoming in another blog post shortly.

EPA is accepting comments on the proposed rule through May 31, 2013.

For more information on stormwater regulation contact Michael Bogin or Maggie Macdonald.

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