Storm Water Regulation under the Clean Water Act

Prior to 1987, storm water regulation under the Clean Water Act (CWA) was characterized by uncertainty and litigation. In 1987, Congress passed the Water Quality Act and officially recognized that many storm water discharges were point sources under the CWA and subject to regulation. In its 1990 Phase I regulations, the EPA named discharges associated with construction activities as one of several industrial activities requiring a National Pollutant Discharge Elimination System (NPDES) permit.

Effluent Limitation Guidelines and New Source Performance Standards

The CWA requires the EPA to establish Effluent Limitation Guidelines (ELGs) and New Source Performance Standards (NSPSs) for categories of point sources. ELGs and NSPSs are national standards, based on the performance of treatment and control technologies, for discharges to surface waters. Federal and state permitting authorities are required to incorporate ELGs and NSPSs into their respective NPDES permits.

In 2004, the EPA proposed a rule containing several options for ELGs and NSPSs to control storm water discharges from construction sites. The EPA decided not to finalize the proposed rule and, instead, chose to continue allowing the NPDES permitting authorities to issue permits based on ``best professional judgment.``

The NRDC and others sued the EPA, alleging that the EPA`s duty to promulgate ELGs and NSPSs for the Construction and Development Industry was nondiscretionary. The U.S. District Court for the Central District of California ordered the EPA to issue a proposed regulation by Dec. 1, 2008, and a final rule by Dec. 1, 2009. See National Resources Defense Council v. U.S. Environmental Protection Agency, 437 F.Supp.2d 1137 (C.D. Ca. 2006).

Options for Proposed ELGs

The EPA considered three options for proposed ELGs and NSPSs. Under all three, dischargers would be required to provide and maintain effective erosion and sediment control measures and pollution prevention measures. Sequencing/phasing of construction activities, stabilizing disturbed areas using temporary or permanent vegetation, and controls such as mulch, geotextiles, or sod would be required. Dischargers also would be required to install and maintain perimeter controls, stabilize construction entrances and exits, and provide inlet protection.

Option 1

Under Option 1, dischargers would be required to comply with the non-numeric requirements discussed above. In addition, dischargers at construction sites with 10 or more acres disturbed at any one time would be required to install and maintain sediment basins according to design and performance standards prescribed by EPA.

Option 2

Under Option 2, dischargers would be required to comply with the non-numeric requirements discussed above as well as the Option 1 requirements. Also, dischargers at construction sites of 30 acres or more that are in areas of high rainfall energy and have average soil clay content of more than 10 percent would be required to meet a numeric effluent limitation on turbidity of 13 nephelometric turbidity units. (A map showing areas of the United States where the numeric turbidity limit likely will apply can be found on page 4-18 of the Development Document for Proposed Effluent Guidelines and Standards for the Construction and Development Category, Volume 1.) Although the EPA did not prescribe the use of a specific technology, dischargers likely would be forced to install and operate active treatment systems (ATS) to meet the numeric turbidity limit.

Option 3

Under Option 3, dischargers would be required to comply with the non-numeric requirements discussed above and Option 1 requirements. In addition, dischargers at all sites with common drainage locations that serve an area with 10 or more acres disturbed at any one time would be required to comply with the numeric effluent limitation in Option 2.

Proposed Regulation

The EPA is proposing Option 2 as ELGs and NSPSs for the Construction and Development Industry but is requesting comments on all three options. The EPA estimates that Option 2 will cost dischargers $1.9 billion a year while providing annual benefits of $333 million. After the regulation is finalized, the ELGs and NSPSs will be incorporated into federal and state Construction General Permits (CGPs) when the permits are reissued. (The Federal CGP will expire June 30, 2010. The Texas CGP will expire March 5, 2013.) Upcoming Dates for Rulemaking and Public Comment

  • Public Comment Period: Dec. 1, 2008 – Feb. 26, 2009
  • Anticipated adoption date: Dec. 1, 2009  

Conclusion

If Option 2 is ultimately promulgated, the regulation would impose substantial costs on the Construction and Development Industry. Therefore those in the regulated community should consider providing comments to the EPA before Feb. 26, 2009.