By Amena H. Saiyid
March 5 --The construction, utility and housing sectors will be required to implement best management practices to prevent erosion at construction sites in lieu of numeric nutrient limits for turbidity in stormwater under a final Environmental Protection Agency rule published March 6 (79 Fed. Reg. 12,661).
The new effluent limitations emphasizing best practices to manage erosion and stabilize soils at construction sites are the result of a December 2012 agreement that EPA reached with the Wisconsin Builders Association, the National Association of Home Builders, and the Utility Water Act Group (UWAG) to resolve a lawsuit over portions of the 2009 rule that included numeric limits for stormwater turbidity (Wis. Builders Ass'n v. EPA, 7th Cir., No. 09-4113, 12/21/12).
The unchallenged portion of the 2009 effluent limits already has formed the basis of discharge limits in the 2012 National Pollutant Discharge Elimination System general permit for construction sites that took effect Feb. 16, 2012.
The final rule will take effect May 5, or 60 days after publication in the Federal Register. The rule was proposed April 1, 2013 (78 Fed. Reg. 19,434; .
As promulgated, the final rule will clarify the 2009 effluent guidelines limitations that required the development of a stormwater prevention plan, among other practices, to reduce erosion and would amend 40 C.F.R. 450, which governs pollutant discharges from the construction and development industry.
EPA said the rule will impose no new stringent regulations and impose no costs on the industry.
The final rule is important because construction activities such as clearing, excavating, and grading significantly disturb the land. The disturbed soil, if not managed properly, can easily be washed into nearby water bodies during storms. Stormwater discharges from construction activities can cause an array of physical, chemical and biological impacts to receiving waters.
The final rule makes it clear that EPA does not intend for the best practices requirement to apply once construction has ceased and sites have been stabilized. The best management practices will apply only during the construction phase.
The use of common erosion control practices would be required to reduce the volume and velocity of stormwater flows from construction sites, such as keeping the length of slopes short, using low gradients, and preserving natural vegetative cover, under the rule, which largely mirrors the proposal.
The agency accepted a change suggested by the American Association of State and Highway Transportation Officials to clarify that permit holders are only responsible for erosion taking place in the immediate vicinity of stormwater discharge points and to distinguish it from channel and stream erosion. EPA said it would add the term “and scour” after erosion to make that distinction.
The agency also has clarified in response to the 2009 lawsuit that compliance could be “infeasible” in certain cases when site-specific conditions pose “technically impossible or cost-prohibitive” hurdles.
According to EPA, the purpose of this definition is to give permitting authorities the discretion and permit holders the flexibility to address site-specific factors when dealing with minimizing exposure of materials to rain and stormwater at construction sites.
The Dec. 1, 2009, rule required discharges associated with construction sites not to exceed an average turbidity of 280 nephelometric turbidity units (NTUs) (74 Fed. Reg. 62,996).
In the final rule, EPA said it is seeking more data on turbidity limits in response to the permission obtained from the U.S. Court of Appeals for the Seventh Circuit in August 2010 to revise the faulty turbidity limit, which was pointed out in a petition by the National Association of Home Builders.
The agency also said it reserves the right to propose additional effluent limits and monitoring requirements, although it is removing the language establishing numeric turbidity limits and requiring turbidity monitoring that was part of the 2009 rule. EPA also reiterated that it was continuing to collect data on turbidity in stormwater.
In another change from the proposed rule, EPA expressed concern that a numeric limit on turbidity may create a disincentive to implement green infrastructure techniques, such as planting trees or buffers, for managing stormwater. As an example, EPA said “meeting a numeric standard may require installation of a sediment basin or other impoundment on certain sites, which may be a disincentive to installing distributed stormwater controls.”
Distributed stormwater controls refer to controls placed at different points as opposed to a single control at the point of discharge.
The final rule's language received a mixed reaction from attorneys who represent the electric utility and home builders.
Brooks Smith, an attorney with the Richmond, Va.- based offices of Troutman Sanders LLP, told Bloomberg BNA that the final rule is generally good for all affected by the construction and development rule. He said the final rule specifically focuses on correcting issues identified by developers, such as NAHB, and UWAG, which represents the interests of linear utility projects such as electric power corridors. The water utility group, which Smith represented prior to joining Troutman Sanders, had asked EPA to give permit holders the flexibility to tailor stormwater controls based on site specific conditions, such as not covering steel and other equipment at construction sites for power lines during rainfall.
Jeffrey Longsworth, a partner with Barnes and Thornburg LLP, told Bloomberg BNA March 5 that he hadn't had a chance to discuss the final rule with his clients, the National Association of Homebuilders.
“It would be helpful to have a better understanding of terms, such as 'and scour' and 'distributed stormwater controls',” he said.
Lee Epstein, director of the Chesapeake Bay Foundation's lands program, said he was disappointed with the final rule. In a March 6 email to Bloomberg BNA, Epstein said the EPA “essentially rebuffed” the recommendations made by the foundation.
Specifically, Epstein said the foundation was concerned with the final rule requirements for stabilizing sites after earth-moving activities have ceased, and turbidity of outflow.
Epstein reiterated the foundation's earlier comments. He said “allowing a site to remain essentially unstabilized, for a period of up to 14 calendar days after earth moving has temporarily or permanently ceased, is a recipe for significant sediment pollution. Site stabilization can and should be undertaken within 72 hours.”
Regarding turbidity limit, Epstein said he acknowledged EPA was bound by the lawsuit, but “we believe that there is still a strong rationale--and no reason not--to utilize narrative standards at the least (e.g., 'no visible off-site discharge').”
To contact the reporter on this story: Amena H. Saiyid in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
For more information about the rulemaking, contact Jesse W. Pritts in EPA Office of Water's Engineering and Analysis Division at firstname.lastname@example.org or 202-566-1038.
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