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Fed Reg Dev - EPA Relaxes Builders' Stormwater Permit

EPA's final permit setting stormwater controls at construction sites backs industry calls to eliminate burdensome monitoring and other requirements. One of the concerns held by environmentalists who are questioning EPA’s actions focus on will the scaled-back measure now make it difficult to assess builders' compliance with the permits?

Environmentalists are also concerned that EPA issued the long-awaited construction general permit (CGP) before completing work on a related effluent limitation guideline (ELG) for the construction industry that includes a first-time numeric water clarity limit to control sediment in stormwater runoff at construction sites.

Activists say that because EPA did not include the limit in the permit, the agency will not be able to enforce the limit until it issues new permits in 2017. "The overarching problem is every EPA attempt to put out a meaningful effluent limit [in a stormwater rule] has been quashed," one environmental source says.

EPA issued its long-awaited CGP on Feb. 16, one day after its 2008 permit was slated to lapse. The permit, which takes effect immediately for a five-year period, includes a host of new provisions aimed at reducing pollution from stormwater runoff, including erosion and sediment controls, strict stabilization standards and requirements that builders install buffer zones around waterbodies.

But EPA dropped or softened a host of proposed provisions that industry officials had sought during a meeting last month with EPA and White House Office of Management and Budget (OMB) officials.

Although EPA dropped a host of requirements, the National Association of Homebuilders (NAHB) may still sue over the permit. During its meeting with EPA and OMB, it urged the administration to stall the permit's release and instead extend the existing permit requirements through June 30, 2013, the 2008 permit's full five-year term, unless EPA first resolved litigation over the ELG.

Among the changes EPA made to the final permit include removing a proposed provision that would have required benchmark water quality monitoring of sediment and nutrients for sites that disturbed more than 10 acres of land, narrowing the length of time a state or regional office has to review a permit, and modifying a controversial definition of "steep slope" that would have required a greater degree of stormwater controls to prevent disturbance.

An industry source says that the changes to the final permit represent "a significant amount of progress" and a recognition from the agency that stormwater requirements for the building sector must avoid being "too prescriptive" because blanket design and other controls may be unworkable for many sites due to size, zoning and other constraints. "I can't say I'm head over heels with everything in the permit, but it's a significant improvement," the source says.

Environmentalists' Concerns
But environmentalists call the modifications "disappointing," and say they ultimately will hinder EPA and the state's ability to determine compliance with the best management practices (BMPs) mandated in the permits and assess their effectiveness, particularly with respect to the monitoring requirements.

Activists are also concerned that the permit does not include "meaningful" effluent limits for construction sites. While EPA issued an effluent limit in 2009 that includes a numeric turbidity limit, litigation over the measure -- Wisconsin Builders Association v. EPA -- has been stayed in the U.S. Court of Appeals for the 7th Circuit at the agency's request after the Small Business Administration pointed out flaws in the agency's calculations.

Environmentalists had urged EPA to include some numeric limit for turbidity in the permit to make it more enforceable, even if it wasn't the 280 nephelometric turbidity units (ntu) number that the agency is revising in the ELG. But EPA says that because officials must first revise the rule and then seek court approval, it will not require the limit in the permit.

Activists say this will make it difficult to enforce the limit once the ELG is completed. "The only [permit] changes we're likely to see are at the local level in response to local pressures" to impose site-specific limits for turbidity, the water clarity measure, one activist says.

While the permit does not include the numeric turbidity limit, it nevertheless seeks to implement many of the stormwater controls and BMPs in EPA's contentious ELG for the construction sector, such as the buffer zone measures, that remain the subject of the industry litigation in the 7th Circuit.

A second environmentalist tracking the issue says one issue EPA is currently grappling with in crafting a legally defensible turbidity limit is how so-called green infrastructure practices, such as vegetative buffers, which the agency is increasingly requiring in its stormwater policies, can attain numeric limits. "They don't want to be told these BMPs they're pushing can't get to the number they've come up with -- that's the pickle they don't want to get into," the source says.

Moreover, industry groups have hinted that they could sue over the permit because it includes provisions from the stalled ELG.

EPA Permit Modifications
But EPA appears to have made several modifications aimed at quelling industry concerns, including scrapping a mandate that would have required site operators exceeding a 10-acre disturbance threshold to monitor discharges for sediment and nutrients to ensure they were in compliance with water quality based effluent limits (WQBELs).

The permit retains some monitoring provisions, including that the state or region may require an operator to provide "measurable verification" of the effectiveness of BMPs as a condition of an individual permit or to conduct water quality monitoring during the permit term if deemed necessary to prevent health or the environmental impacts.

But environmentalists, who argued in public comments submitted on the draft permit last summer that EPA should lower the 10-acre threshold to one to five acres of disturbance to subject more sites to the monitoring requirements, say that without mandated monitoring it will be difficult for EPA to enforce effluent limits. "It's a big deal across the entire stormwater quality program for construction activity," the second environmentalist source says. "Having real time monitoring is pretty important to gauge how the best practices are working."

In a recent memo to OMB on the draft permit, NAHB opposed the benchmark monitoring, saying it would add a considerable cost burden and "there is a difficulty of knowing how pollutant contributions from one particular site compares to contributions from the rest of the watershed, and whether any deleterious impact in the receiving water is due to construction site discharge." In the memo, the industry group urged EPA to remove the provision from the permit.

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