The U.S. Environmental Protection Agency (“EPA”) is working to strengthen the Federal stormwater program by addressing two categories of sites: construction sites and newly developed or redeveloped sites. In an earlier Alert, dated December 29, 2009, we discussed the 2009 EPA Construction and Development Effluent Limitations Guidelines (C&D Rule) that created more stringent requirements for stormwater discharges from construction sites. Currently, EPA is evaluating rule development for newly developed and redeveloped sites and plans to send surveys to owners and developers of such sites to assist in rulemaking. As part of that rulemaking, EPA anticipates that a Small Business Advocacy Review Panel may be convened unless EPA can certify that there will not be a significant economic impact on a substantial number of small entities.
The C&D Rule placed a numeric limit on the maximum amount of turbidity allowed in construction site stormwater discharges and also requires that stormwater discharge permits contain specific monitoring requirements. After EPA promulgated the C&D Rule, several trade organizations filed a lawsuit challenging that Rule. The lawsuit alleged that the C&D Rule’s numeric limit for turbidity of 280 NTUs in stormwater discharge was arbitrary and not based on appropriate scientific analysis. Further, the trade organizations asserted that the costs of compliance with the C&D Rule would be $10 billion annually, as opposed to EPA’s estimate of $953 million annually.
The EPA recently requested that the court remand that portion of the C&D Rule establishing the numeric limit to EPA for reconsideration. The EPA request will delay the effective date of a maximum numeric limit for turbidity for up to 18 months. However, the other requirements of the C&D Rule will remain in effect.
For new developments or redevelopments, the purpose of the surveys to be sent to owners and developers of those sites is to collect information about stormwater management and control practices, local regulations, and baseline financial information. As proposed by EPA, questionnaires will be sent: to the following individuals:
- (i) owners, operators, developers, and contractors of developed sites;
- (ii) owners and operators of municipal separate storm systems; and
- (iii) states and U.S. territories. Those questionnaires have not yet been finalized nor sent.
As of now, the only limitation on the amount of turbidity allowed in a stormwater discharge is Florida’s limitation of 29 NTUs above background, except in Outstanding Waters of the State for which the limitation of zero NTUs above background applies. Stormwater regulations concerning newly developed or redeveloped sites will be promulgated only after EPA has collected the necessary information, drafted and published a proposed rule, received and considered comments on that proposed rule, and then promulgated a final rule.