U.S. EPA Issues Proposed Rule To Clarify Stormwater Requirements

April 2, 2013
Legal Updates

To implement a commitment it made to settle a challenge to new stormwater rules for construction and development (C&D) sites, EPA issued in yesterday's Federal Register (78 Fed. Reg. 19434) a proposed rule that (1) formally deletes the numeric turbidity standard for stormwater discharges from C&D sites, and (2) offers clarification to several best management practices (BMP) required by operators of C&D sites.  A copy of the proposed rule can be accessed here

Formal deletion of the new turbidity standard was expected.  EPA had previously agreed to an indefinite stay of the hotly-contested standard.  However, the following clarifications should help homebuilders, commercial contractors, and other operators understand their requirements and avoid unnecessary expenses:

1.   Adding a definition of the term "infeasible," so that operators' requirements are tied to what is technologically and economically achievable compared to best industry practices, instead of tied what an individual operator can afford;

2.   Clarifying that the requirement to control stormwater volume and velocity to minimize soil erosion (i) does not apply to an entire C&D site, but only to the portions where a stormwater discharge occurs, (ii) begins at the site depending on the nature of the construction activity, and (iii) does not apply when construction activity has ceased;

3.   Clarifying that the requirement to take steps to minimize downstream erosion applies only at the point of the discharge from the site, and does not require remediation of downstream erosion caused by other upstream sources;

4.   Clarifying that the requirement to provide/maintain natural buffers around waterways to remove pollutants and increase infiltration is limited to jurisdictional waters, and includes other pollutants in addition to sediment;

5.   Clarifying that the requirement to minimize soil compaction and disturbance of topsoil is not a rigid requirement for all sites, but is site-specific;

6.   Clarifying that the requirement to stabilize disturbed areas when construction is complete or interrupted for more than two weeks is not required for areas whose intended function necessitates that they not be stabilized; and

7.   Clarifying that the requirement to minimize exposure of materials brought to the site is not required when no pollutants will be discharged or the materials are intended for outdoor use.

For several of the clarifications, EPA offers examples to assist operators.  The Agency is accepting comments on the proposed rule until May 31, 2013.  Frost Brown Todd's Environmental Practice Group and Construction Law Group maintain a full service practice for homebuilders, construction contractors, and other operators of C&D sites.  A copy of the stormwater practice profile can be accessed here.