EPA Revises Effluent Guidelines and Standards for Construction and Development

On April 1, 2013, the United States Environmental Protection Agency (EPA) proposed changes to the Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (the Proposed Rule) under the Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) program. See 78 Fed. Reg. 19434 (Apr. 1, 2013). The Proposed Rule withdraws controversial numeric turbidity limits adopted for discharges from most construction sites in 2009 (the 2009 Rule). See 74 Fed. Reg. 62995 (Dec. 1, 2009). EPA stayed the numeric limitation in November 2010 following industry challenges in the U.S. Circuit Courts of Appeal for the Fifth, Seventh, and D.C. Circuits and a petition for administrative reconsideration filed by the Small Business Administration. See 75 Fed. Reg. 68215 and 75 Fed. Reg. 68305 (Nov. 10, 2010). The non-numeric requirements of the 2009 Rule (which also provided for implementation of erosion and sediment controls, soil stabilization requirements, management of dewatering activities, pollution prevention measures, utilization of surface outlets for discharges from impoundments, and prohibitions on certain types of discharges) remain in effect. The Proposed Rule arises out of a settlement agreement between EPA and the industry challengers and proposes the use of Best Management Practices (BMPs) in lieu of the turbidity limit.

The comment period for the proposed guidelines and standards ends on May 31, 2013.

Do These Proposed Standards Apply to Me?

The 2009 Rule generally applies to stormwater discharges from construction activity that disturbs an acre or more of land. Construction activity includes clearing, grading and excavation. 40 C.F.R. § 122.26(b)(14)(x)&(15). The 2009 Rule applies only to stormwater discharged during construction. It does not apply once construction ceases and the site is stabilized. The Proposed Rule does not change the universe of activities covered by the 2009 Rule. It primarily clarifies the scope of industry’s obligations.

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