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EPA proposes stormwater rule changes

On April 1, the Environmental Protection Agency published proposed revisions to its stormwater permitting rule for the Construction and Development Point Source Category (C&D rule). While most states are authorized to regulate the discharge of stormwater from construction sites, the U.S. Environmental Protection Agency (EPA) remains the  permitting authority for a few states, including Idaho, as well as territories and on most Native American reservations.

The EPA’s C&D rule generally applies to stormwater discharges from construction activity that disturbs an acre or more of land. Construction activity includes clearing, grading and excavation. The C&D rule applies only to stormwater discharged during construction. It does not apply once construction ceases and the site is stabilized.

The EPA has issued the proposed changes to the C&D rule pursuant to a settlement agreement to resolve litigation that challenged certain aspects of its December 2009 version of the rule. Among other actions, that version:

* established a numeric limitation on the allowable level of turbidity in discharges from certain construction sites

* established requirements based on best practicable control technology currently available, best available technology economically achievable, best conventional pollutant control technology, and new source performance standards based on best available demonstrated control technology

* included several provisions requiring permittees to implement controls, unless “infeasible” (although a definition of infeasible was not provided by the EPA)

* required permittees to “control stormwater volume and velocity within the site to minimize soil erosion”

Following promulgation of the 2009 C&D rule, several parties – including the National Association of Home Builders – challenged it. In particular, the parties contested the EPA’s data gathering and analysis used to support the numeric turbidity limit. In response, the EPA sought to stay the litigation, and agreed to reconsider certain aspects of the rule, including the numeric turbidity limitation.

In December 2012, the parties and the EPA entered into a settlement agreement, which required the EPA to propose for public comment certain changes to the rules. The EPA has now published the proposed revisions to the C&D rule.

Among other changes, this version:

* withdraws the numeric discharge limit for turbidity and proposes the use of best management practices in lieu of the turbidity limit

* defines infeasible (i.e., when it is “infeasible” to implement controls) to mean: “not technologically possible, or not economically practicable and achievable in light of best industry practices

* amends requirements regarding soil erosion to read: “control stormwater volume and velocity to minimize soil erosion in order to minimize pollutant discharges” (The EPA is proposing this change in order to link the requirement to control soil erosion to the discharge of pollutants. The proposed change would continue to allow permitting authorities to develop permit language to control stormwater volume and velocity to minimize soil erosion at any location, such as on slopes as well as within channels and conveyances, that may contribute pollutants to discharges from the construction site.)

* further amends language regarding soil erosion to read: “control stormwater discharges, including both peak flow rates and total stormwater volume, to minimize channel and streambank erosion in the immediate vicinity of discharge points.” (This change is intended to distinguish between increased erosion caused by the construction site and discharges caused by other sources. This change also is intended to clarify that permittees are responsible only for stabilizing erosion in the areas of permitted outfalls rather than for streambank erosion caused by upstream sources.)

* adds a provision to the existing requirement to minimize the exposure of trash and other potential pollutants to precipitation (The new language provides that there is no obligation to minimize exposure where a material is not a source of pollutants – such as inert materials – or may contribute only negligible pollutants – such as steel members for construction.)

Controlling stormwater at construction sites can be a costly aspect of any development project. It is important that people involved in construction activities understand how these proposed rules may affect their operations and provide the EPA with feedback regarding any areas of concern or support. The EPA is accepting comments on the proposed rules until May 31.

The full text of the proposed rule is available at 78 Fed. Reg. 19434 and www.federalregister.gov/articles/2013/04/01/2013-07097/effluent-limitations-guidelines-and-standards-for-the-construction-and-development-point-source.

Patrick Rowe is a partner with Sussman Shank and is chairman of its environmental law group. Contact him at 503-243-1651 or at prowe@sussmanshank.com.

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