EPA Finalizes Effluent Limitations Guidelines for Stormwater Discharges from Construction and Development Sites
On March 6, 2014, EPA issued a final rule establishing effluent limitations guidelines and standards for stormwater runoff for the construction and development point source category. The final rule withdraws controversial numeric discharge standards on turbidity that were initially promulgated in December 2009, and were subsequently stayed due to litigation. The final rule also amends several control standards requirements and non-numeric standards for stormwater discharges from construction activities. The final rule is an outgrowth of a settlement agreement reached with certain construction and industrial trade groups in pending litigation.
With respect to the deletion of numeric discharge limits on turbidity previously found at 40 CFR 450.22, EPA noted it is withdrawing the numeric limitations but has reserved these paragraphs for potential revisions in future rulemakings. EPA noted it is considering data and comments submitted in response to a prior Federal Register notice seeking additional information and data on numeric effluent limit standards. However, EPA noted that at this time it is concerned that numeric limitations would create a disincentive to use of green infrastructure techniques for managing stormwater to maximize infiltration.
A significant change to the existing standards relates to EPA’s addition of a definition of “infeasible” into the regulations. Under the non-numeric control standards specified under 40 CFR 450.21, certain standards, such as the standard requiring natural buffers around surface waters were not required to be implemented where they were “infeasible.” The term infeasible has now been defined as meaning the activity is “not technologically possible, or not economically practicable and achievable in light of best industry practices.” Without this clarifying definition, the term “infeasible” could have been construed as focusing only on technological feasibility.
The final rule continues to require control practices to be implemented to reduce stormwater velocity, peak flow rates, and total stormwater volume, and to maximize infiltration to reduce the discharge of pollutants associated with soil erosion. This is consistent with EPA’s guidance to promote “green infrastructure” for controlling pollutants associated with post-construction development runoff from municipal separate storm sewer systems.
To view a complete PDF of the Environmental Letter March 2014 Issue, click HERE.