• EPA Passes on Establishing a National Effluent Guideline to Control Stormwater Runoff from Construction Sites
  • April 22, 2004 | Author: James M. Weaver
  • Law Firm: Waller Lansden Dortch & Davis, LLP - Nashville Office
  • EPA is opting to rely on existing local, state, and federal regulatory programs to control the stormwater runoff from construction sites rather than establish a national effluent guideline. EPA believes that the proposed regulatory options come with a high cost, but only marginal environmental improvement over current regulatory programs. In addition, the proposal would not provide local decision-makers with the flexibility they need to implement control strategies that reflect an area's local conditions.

    EPA has identified construction and development activities as a source of carrying sediment and other pollutants, by stormwater runoff, to waters of the United States. In 1992, EPA entered into a consent decree setting a schedule for an investigation into technology-based standards (effluent guidelines) for discharges from various sources. The decree was later modified to include discharges of stormwater from construction sites as one of the sources. In June 2002, EPA proposed an effluent guideline for stormwater runoff from construction sites in order to supplement existing regulations addressing the runoff from these sites. In the proposal, EPA sought comment on three options it would choose between:

    1. To amend the National Pollutant Discharge Elimination System (NPDES) regulations to include inspection and certification requirements for operators of construction sites disturbing at least one acre of land,
    2. To promulgate an effluent guideline that contains additional requirements for construction activity disturbing at least five acres of land, or
    3. To rely on the existing regulations and programs in place at the local, state, and federal level.

    In its final action, EPA has chosen option three. EPA based its decision upon the fact that numerous existing programs and regulations "will result in significant improvements in water quality and in the control of discharges of construction site stormwater runoff." For example, in March 2003, phase II of EPA's NPDES stormwater regulations requiring permitting authorities to establish programs that regulate construction site runoff went into effect for sites that are one to five acres (larger sites are already regulated under the NPDES program). EPA believes that these regulations, once implemented, will result in a significant reduction of pollutants from construction sites. In addition, EPA found that all states already have regulations and programs that incorporate virtually all of the provisions of the proposal's most stringent option. These key requirements include:

    • Storm water Pollution Prevention Plan-requirement for site managers to prepare a stormwater pollution prevention plan, erosion and sediment control plan, or an equivalent document.
    • Inspections by Construction Site Operator-requirement for construction site operators to inspect their sites on a regular basis.
    • Erosion and Sediment Control-requirement for site managers to implement a combination of erosion and sediment controls to prevent soil erosion and to manage construction site runoff.
    • Stabilization of Soils After Construction-requirement for stabilization of soils after construction activities have temporarily or permanently ceased.

    Further, EPA notes that virtually all local governments have long-standing programs in place to control sediment and erosion from construction sites. EPA's NPDES stormwater regulations (both phase I and II) stipulate the minimum requirements for these programs. Finally, EPA believes that the most stringent option in the proposal will only reduce sediment loading in runoff from construction sites by one percent more than the existing regulations. For these reasons, EPA has decided to forgo establishing an effluent guideline at this time.

    EPA's final action relieves some regulatory burden for developers by not creating a national standard for sediment in construction site runoff. However, local and state stormwater regulations will soon reflect EPA's phase II requirements for construction sites that are one to five acres, bringing smaller construction sites into the regulatory fold. EPA estimates that these new requirements will affect approximately 200,000 construction sites annually. In addition, because EPA's stormwater regulations only establish minimum requirements, local and state decision-makers may adopt more stringent standards for their programs.