Special Bulletin
On December 1, 2009, the U.S. Environmental Protection Agency (“EPA”) published its new standards and regulations for stormwater discharges by the construction and development industries, with the objective of reducing water pollution from construction sites. Entitled “Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category” (“New Rule”) the New Rule imposes national monitoring requirements and enforceable numeric limits on stormwater discharges from construction sites for the first time.
Background on Regulated Activities
Construction activities such as clearing, excavating, and grading disturb the soil and sediment on a development site. Storms and rainfall can wash the disturbed soil and sediment off of a construction site if the site is not managed and controlled properly. Pollutants discharged into nearby water bodies from these sites include sediment, turbidity, and nutrients such as nitrogen. The resulting pollution can cause physical, biological, and chemical impacts to water quality. Degraded water quality affects ecosystems, drinking water supplies, and surface water clarity. In addition, the deposit of sediment reduces the depth of water bodies, increasing the need for dredging in some areas.
The National Pollutant Discharge Elimination System (“NPDES”) was established under the federal Clean Water Act to place limits on the types and quantity of pollutants released into the nation’s waters. NPDES permits set forth effluent limitations which are specific restrictions on the quantity, rate, and concentration of sediment, turbidity, and nutrients discharged into waters. Although NPDES is a federal program, state agencies typically issue NPDES permits and, in the case of North Carolina, permit issuing authority was delegated to the North Carolina Department of Environment and Natural Resources (“DENR”), Division of Water Quality (“DWQ”). Under DWQ’s implementation of the NPDES program, those engaged in construction activities that disturb one or more acres are required to develop and implement site-specific erosion and sedimentation control plans that also must be approved by the DENR Division of Land Resources.
Beginning February 1, 2010, that no longer will be enough.
Rule Requirements for Effluent Limitations
The effluent limitation measures mandated by the New Rule are intended to tighten the controls on discharges from large construction sites by establishing technology-based effluent limits and performance standards. Typically, this is achieved through the use of erosion and sedimentation control best management practices, but the New Rule imposes provisions stricter than most existing state and local regulations.
First, the New Rule requires construction site owners and operators disturbing one or more acres to provide and implement a range of best management practices currently available for sedimentation and erosion control to ensure that soil disturbed during construction activities does not pollute nearby water bodies. The following practices are recognized and accepted as effective erosion control measures:
- Controlling the volume and velocity of stormwater,
- Minimizing the amount of soil exposed,
- Minimizing sediment discharges,
- Buffers,
- Preservation of topsoil, and,
- Stabilizing disturbed soils.
Dischargers also will be required to provide and maintain effective pollution prevention measures in accordance with established industry practice, such as prohibition on discharges of construction waste, trash, and wastewater from dewatering, and washout of concrete, paint, and other materials.
Second, beginning six months after the effective date of the New Rule, or August 1, 2010, construction activities that disturb 20 or more acres at one time will require the monitoring of discharges and compliance with a numeric limitation. The EPA has imposed a strict numeric effluent limit of 280 nephelometric turbidity units (“NTU”) that may be present in stormwater discharges. The permittee must monitor stormwater discharges in a manner that is consistent with the standards implemented by the local permitting authority. Each sample must be analyzed for turbidity within the allowable limit of no more than 280 NTUs. Beginning four years after the effective date of the New Rule (February 1, 2014), the monitoring requirements and numeric limitations will apply to construction activities that disturb 10 acres or more at one time.
Permittees will have flexibility to select the best management practices or technologies suited to the site-specific conditions of a construction project so long as they consistently meet the limitations and comply with the requirements that ultimately are established by the local permitting authority.
Impacts on Existing State Programs
The construction and development industries are the largest sectors in the NPDES program, but, until now, there has not been a national standard. The New Rule establishes a technology-based floor, or national minimum requirement, that may be tightened at the discretion of each state. The EPA is phasing in the numeric limitation over four years to allow local permitting authorities such as DWQ time to develop monitoring programs and to prepare for compliance with the NTU limitation. Once implemented, the new requirements are expected to reduce significantly the amount of pollutant-laden stormwater discharges into water bodies from construction sites.
Although the new requirements will be incorporated into the NPDES permits issued by DWQ, in many cases compliance with such requirements will not prevent the permittee from having to comply with other water quality programs. Permittees will need to be careful that they still obtain appropriate permits for construction activities resulting in the dredging or filling of waters considered wetlands by the U.S. Army Corps of Engineers or by DWQ, and particularly for activities occurring in one of North Carolina’s 20 coastal counties.
Conclusion
The numeric effluent limitation is a significant change for the construction and development industries; therefore, EPA has phased in its implementation over four years from the February 1, 2010, effective date of the New Rule. It is estimated that the New Rule will affect approximately 82,000 firms nationwide, including residential and commercial developers, construction companies, and engineering firms. North Carolina will clearly feel those effects.
For further information regarding the issues described above, please contact one of our Real Estate Development Attorneys, Samuel B. Franck, Justin M. Lewis, Clifford P. Parson, Eric J. Remington, Ryal W. Tayloe or Amy P. Wang.
