New EPA Regulations Significantly Impact Storm Water Flow at Construction Sites
Spring 2010

The Environmental Protection Agency (EPA) is taking significant steps to attempt to minimize the environmental impact of storm water flow at construction sites nationwide. The disturbed soil from construction activities, if not properly managed, can result in runoff during storms and enter local bodies of water. This runoff can include pollutants and cause an array of physical, chemical and biological impacts on community water supplies, including degrading the local drinking water supply.

In an effort to minimize the potentially adverse affects of storm water discharge, the (EPA) has recently promulgated effluent limits on storm water discharges from construction and development sites. The new regulations, which became effective February 1, 2010, include minimum requirements for construction sites in the following areas: sediment and erosion controls, soil stabilizations, pollution prevention measures and outlet controls.

For the first time, the EPA has adopted a numeric limit for storm water flow from construction sites. This new limit on turbidity (a measurement of sediment and other pollutants) is being phased in over a four year period
that began February 1, 2010. This requirement applies to construction sites disturbing 20 acres or more starting August 2, 2011 and sites disturbing 10 acres or more no later than February 2, 2014.

The new numeric limit (280 nephelometric turbidity units (NTU)) applies regardless of the conditions at the project including the soil, the site, the water or the natural levels of sediment present in the waters into which the construction site runoff may drain. The EPA estimates that once fully implemented, the new regulations will reduce sediment discharge by 4 billion pounds each year. Details regarding the monitoring required to determine compliance with the above were not specifically set forth by the EPA, but will be determined by the EPA and state authorities as they incorporate the new regulations into new construction permits.

For a site to be in compliance with the new regulations, it may need to design, install or utilize sediment ponds, rapid re-vegetation, maintain buffer strips and/or other erosion and sediment control best management practices.
Additionally, certain discharges will be prohibited at all construction sites including dewatering and concrete wastewaters (unless properly controlled); wastewater washouts of stucco, paints and other construction materials. The new regulations also contain strict requirements for soil stabilization.

The EPA intends that these regulations will work with existing state and local programs. Construction sites operating under a current storm water discharge permit will not be subject to the new regulations until the permitting authority is required to reissue the discharge permit. The EPA expects states that have NPDES (National Pollution Discharge Elimination System) permitting authority to incorporate the new guidelines and standards into NPDES construction general permits as they are reissued. As for construction projects on American Indian reservations and jurisdictions where the EPA retains NPDES permitting authority, the EPA will incorporate the new guidelines when it reissues the permit on or about June 30, 2011.

Once the EPA regulations are incorporated into applicable construction industry permits, violation of the requirements can subject site owners to penalties of up to $37,000.00 per day, per violation. These strict penalties are likely to result in challenges to the regulations by construction and trade organizations. Reportedly at least one such challenge is currently pending in California.

These new regulations could considerably increase the cost of construction and development. Accordingly, businesses involved in property development and construction should examine any planned or potential projects with these new regulations and the potentially increased costs in mind.

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