Stormwater Regulation of Developed Sites Coming?

Posted on December 18, 2009 by Chuck Becker

Recently, EPA promulgated new regulations for stormwater discharges from construction sites which, for the first time, will place a numeric limit of 280 NTU on discharges from those sites during construction. The regulations have drawn criticism but, since they will be phased in over four years, it is unlikely that any change will be made in the near future. Apparently not satisfied with addressing the runoff from construction sites, EPA has indicated that it will consider limitations for runoff which occurs at construction sites after completion of the development (otherwise known as post-construction runoff discharge). That is, EPA is considering requiring significant limits and the maintenance of controls on stormwater coming off of newly developed and redeveloped sites which will be regulated forever, not just during the period of construction.

To have a sound basis for these limits, EPA needs to collect information. It is proposing to do this by distributing a questionnaire to about 1000 developers. EPA plans to mail the 61-page questionnaire around April 2010 for response within 60 days. A response will be mandatory and failure to respond could result in civil or criminal enforcement.

The questionnaire is designed to collect financial, environmental and technical data about projects covering the period of 2005 to 2009. Some of the information to be collected includes:

1. The company’s balance sheet and income statements for 2005-2009;

2. For 10 completed projects, the Notice Of Intent permit number, number of acres, start and end dates of the projects, types of soils and capital costs for each project;

3. Land acquisition, development, financing and sales costs for each project.

A signed certification stating that the responder is aware that there are “significant penalties for submitting false information, including the possibility of fines and imprisonment” is found at the end of the form. EPA’s own estimate is that the information collection will cost just over $4,000,000 and will take the typical company 53 hours to complete the questionnaire.

I understand that EPA has broad power to obtain information.  Usually that power is used when a company is suspected of wrongdoing, but that isn’t what is happening here. EPA is trying to do a study to see if the required placement and maintenance of controls for stormwater being discharged from a development . . . forever . . . can be justified. You’ll need to determine for yourself whether the data being collected will aid in making that determination.

In any event, if you want to be heard on whether this is a good way for EPA to determine whether if, and to what degree, stormwater runoff controls and limits should be imposed after a project is completed, now is your chance. You have until December 29, 2009, to give EPA your 2¢ worth.  It may be the best 2¢ you ever spent.

 

Related Post: New Stormwater Regulations Rain Down on Developers

                     The Train's A-Comin': More Stormwater Rule Changes

                     

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New Stormwater Regulations Rain Down on Developers

Posted on December 8, 2009 by Chuck Becker

Stormwater runoff from construction sites has been an area of environmental regulation that received only passing attention until sometime around 2004.  In that year, EPA inspected a large retail facility, found multiple violations and imposed heavy fines.  Since then, EPA has expended significant resources to ensure compliance with the regulations. 

In 2008, EPA determined  that the existing regulations were insufficient and proposed additional  regulations.  The proposed rules were put out for public comment and on November 23, 2009,  EPA handed down new, technology-based guidelines. For developers and home builders, it wasn’t good news. The new regulations, found at 40 C.F.R. Part 450, impose two new requirements:

1.    Construction site owners and operators that disturb one or more acres must use best management practices to ensure that soil disturbing during construction activities will not pollute nearby waters;

2.    Construction sites that disturb 20 acres or more at one time (later being reduced to 10 acres) must monitor discharges from the site and prevent discharges that exceed 280 nephelometric turbidity units (NTUs) from leaving the site.

The second requirement sets out, for the first time, a numeric standard on discharge from construction sites. EPA’s original proposal was to have a numeric limit of 13 NTUs, which is a very clean discharge. During the comment period, EPA was informed that a limit of 13 NTUs would increase the cost of construction by $15,000 to $45,000 per acre. The final standard of 280 NTUs, while more lenient, will add some significant costs to new construction.

A few items of note about the 280 NTU limit:

1.   If the rainfall is in excess of the 2-year, 24-hour storm event, then the limit does not apply.  In effect, such a large rainfall is treated as a bypass event;

2.    If less than 20 acres (or, later, 10 acres) is disturbed at one time, then the limit does not apply.  As soon as a developer goes over 20 acres of open area, the limit kicks in until there is a drop below 20 acres, in which case the limit no longer applies;

3.    In counting the 20 (or 10) acres, the develop must count all of the acres within the same common plan of development or sale even if the open acres are not contiguous;

4.    The developer can test the effluent multiple times over the course of the day, but the average of those test results must be less than 280 NTUs to avoid a violation;

5.   The BMP requirement applies at all times and is not tied to the 280 NTU limit.

Because the new requirements are a significant departure from the existing regulations, they will be phased in:

1.    Construction sites that disturb 20 acres or more at one time will need to monitor beginning 18 months after the effective date of the rule;
 

2.    Construction sites that disturb 10 acres or more at one time will need to monitor beginning four years after the effective date of the rule.

For states that have not been delegated NPDES authority and that use the federal storm water construction permits (Idaho, Massachusetts, New Hampshire, New Mexico and the District of Columbia), this means that the monitoring will begin August 1, 2011, and February 1, 2014. States that have been granted authority and periodically receive approval for the program will have a delay of the effective date. In the past, EPA has allowed the states to phase in new rules in accordance with their permit renewal dates. For example, Iowa’s storm water construction permit will be renewed on or about October 1, 2012. Therefore, Iowa’s compliance dates for the new requirements could be April 1, 2014, and October 1, 2016. We’ll have to wait to see if this interpretation is allowed for these new rules.

The changes imposed by the new rule couldn’t have come at a worse time, but, to some extent, EPA had no choice. The rule changes were in response to a court order that compelled EPA to makes changes by December 1, 2009. The question that remains is whether the new rules are sensible. That question is for another post.

 

RELATED POSTS: Stormwater Regulation of Developed Sites Coming?

                             The Train's A-Comin': More Stormwater Rule Changes  


 

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