EPA Withdraws Storm Water Permit Changes for Construction Sites

Fall 2004
Building Ohio, Fall 2004

On March 31, 2004, the United States Environmental Protection Agency (“EPA”) wisely decided to withdraw its proposal to radically change the storm water permitting system for real estate developers.  EPA proposed a rule in July 2002 that would have imposed national effluent guidelines and burdensome inspection requirements for discharges of storm water at construction sites.  However, after considering its own storm water modeling data and the comments of over one hundred organizations and individuals, EPA decided that the existing federal, state and local regulations will be more cost effective at controlling storm water discharges from construction sites than the proposed regulations.

In 1990, EPA identified construction sites as one of the industrial activities that required a National Pollution Discharge Elimination System (“NPDES”) permit.  The “Phase I” storm water regulations began requiring operators of large construction sites (5 acres or more) to apply for an NPDES permit in 1992.  In 1999, “Phase II” regulations extended the NPDES permit requirements to construction sites disturbing one acre or more.  Phase II permits were first required for smaller sites in March of 2003.  Collectively, Phase I and Phase II storm water rules now require permits for about 400,000 construction sites covering approximately 97.5% of the annual construction acreage in the United States annually.

In July of 2002, EPA proposed to establish effluent limitation guidelines (“ELGs”) for discharges of storm water from construction sites similar to those imposed on industrial sites.  Those ELGs would have required implementation of certain control technologies to reduce the discharge of “conventional” and “toxic” pollutants.

To analyze the cost effectiveness of the proposed rule, EPA used computer models to show that the existing Phase I and Phase II permit programs were capable of controlling approximately 80% - 90% of the 100 million tons of sediment runoff from construction sites in the year 2003.  However, those same computer models estimated that implementation of the ELGs would remove only 1% more sediment at a cost of approximately $585 million annually.  Ultimately, EPA determined that the ELG proposal would have a minimal impact on the nation’s overall sediment problem because the 1 million tons of sediment reduction represents only 0.1% of the sediment discharged annually from the nation’s croplands (currently estimated to be 1 billion tons annually).

EPA’s decision to withdraw the proposed ELGs for storm water discharges from construction sites shows the value of having affected organizations and individuals submit comments on such proposals.  Nevertheless, the battle is not over.  On July 8, 2004, two environmental groups (National Resources Defense Council and Waterkeeper Alliance) notified EPA of their intent to sue EPA for its failure to set standards controlling storm water pollution from strip malls, subdivisions, and other new development. Although EPA has 60 days to respond to the notice and is expected to defend its action, the ultimate outcome of this dispute is uncertain at this time.