New U.S. EPA Stormwater Rules and Initiatives Will Significantly Impact the Construction and Development Sector

January 20, 2010

In a series of three announcements beginning in late October and ending just before the end of the year, U.S. EPA issued new rules, and commenced action to develop another rule, that will considerably increase the cost of construction and development ("C&D") across the country. 

In terms of immediate impact, on December 1, 2009, the Agency issued final rules establishing new stormwater permit requirements for C&D sites where one or more acres are graded, cleared or otherwise disturbed, including (1) enhanced erosion and sediment controls and additional pollution prevention measures, (2) new, intermediate soil stabilization steps beyond the requirement to stabilize the soils once the project is complete, and (3) new prohibitions against discharges on-site from dewatering, washing, and washout activities. These requirements take effect February 1, 2010, but will likely take some time to be incorporated into existing state general permits. 

For larger projects disturbing ten or more acres, the new rules establish a discharge monitoring requirement and numeric daily maximum discharge limit for turbidity. Turbidity must be sampled at "representative" times and at "representative" locations where stormwater discharges from a site to a nearby waterway. Because of the financial impact of the new turbidity limit, the Agency (1) exempted these larger projects from the new limit during storm events greater than the local 2-year, 24-hour level, and (2) phased in the new limit, making it effective August 2, 2011, for projects disturbing twenty or more acres, and February 2, 2014, for projects disturbing ten or more acres. Once all requirements of the new rules are in effect, U.S. EPA estimates that compliance costs will approach $1 billion annually for the C&D industry as a whole. 

In a related development, on December 28, 2009, U.S. EPA announced its plan to separately develop rules to regulate the discharge of stormwater from post construction, development and re-development sites. Basically, U.S. EPA intends to extend federal regulation of stormwater past the point of completion of a C&D project, because the Agency believes that existing local post-construction/development requirements are insufficient to control and limit the discharge of sediment and other pollutants during storm events. The Agency also plans to revise and strengthen existing stormwater requirements for large and medium size metropolitan areas that have separate storm sewer systems (known as "MS4s"). These MS4s currently regulate post construction and development thru generic controls and discretionary requirements. 

Among the rules being evaluated are (1) a mandate that on-site post-development hydrology (i.e., stormwater flow, infiltration, and recharge) be the same as, or at least approximate, pre-development hydrology (a requirement that would dramatically alter existing design practices), (2) on-site retention of specified storm event flows, and (3) mandatory buffers surrounding streams located in sensitive aquatic areas. No timetable for the new rules was issued as part of the Agency's announcement. 

Finally, as a preliminary step to its December 28, 2009, announcement U.S. EPA announced on October 30, 2009, its intention to develop and issue a series of three detailed questionnaires sometime early in 2010 to (1) businesses in the C&D industry [NAICS codes 236115-117, 236210, 236220, 237210, 237210, 237310, and 237990], (2) MS4s, and (3) state water pollution control agencies. The questionnaires are designed to determine what post C&D standards and controls are currently in place, and to evaluate potential costs and burdens of the new rules being considered. Because the questionnaire responses are likely to impact the direction the Agency takes with respect to new rules, it is important for C&D businesses to carefully evaluate the questions before responding. 

Stephen N. Haughey, D. Scott Gurney, or any other member of Frost Brown Todd's Environmental or Construction Law Practice Groups can help you evaluate the impact of these new developments on your pending or planned site activities. If you would like a pdf copy of U.S. EPA's announcements emailed to you, please contact Stephen N. Haughey or D. Scott Gurney.