EPA Storm Water Rules Sent Back to Drawing Board

September 2010Newsletters In the Zone

In a major victory for affordable housing, sound science and more sensible regulations, the U.S. Environmental Protection Agency has been forced to withdraw a key portion of new storm water management regulations for builders and developers and devise new ones based on better research.

The move is the result of a lawsuit filed by the National Association of Home Builders (NAHB) and petitions filed by both NAHB and the federal Small Business Administration (SBA) Office of Advocacy asking the agency to revise its new Effluent Limitation Guidelines (ELGs) for the construction and development industry.

In these new regulations, the EPA set a numeric limit on the amount of sediment that can cloud the water that both NAHB and SBA claimed was arbitrary and based on flawed analyses.

The Justice Department asked the EPA to defend the numeric limit. The EPA was forced to admit several flaws in the final rule and that it had improperly interpreted the data. As a result, the Justice Department filed a motion with the Seventh Circuit Court of Appeals asking it to vacate the numeric limit and place a hold on the litigation until February 2012, while the EPA goes back and develops a numeric limit builders can actually comply with.

Published in December 2009, the ELGs imposed a nationally applicable—and potentially impossible-to-meet—limit of 280 “turbidity units” on storm water discharges from construction sites disturbing 10 or more acres of land at one time.

While the ruling removes the numeric limit, the other requirements of the ELGs remain in place. The EPA is expected to issue interim storm water management guidance for construction site operators as the agency works to refine the rule.

For more information, please contact M. Joel Bolstein at 215.918.3555 or [email protected].