December 28, 2009Client Alert

EPA Focusing on Clean Water Act Enforcement in 2010; Construction Site Runoff Target

U.S. Environmental Protection Agency (“EPA”) Administrator Lisa P. Jackson announced that EPA will focus resources on Clean Water Act enforcement in 2010, and will be implementing the following three-step program aimed at improving our nation’s water quality:

  1. Improve oversight of state permitting to ensure greater consistency with compliance and enforcement;

  1. Improve transparency to make information regarding enforcement and compliance readily available to the public; and

  1. Develop approaches to focus enforcement to the most significant sources of water pollution, in particular stormwater runoff from construction sites.

What steps has EPA taken so far?

For the first time, EPA has imposed national monitoring and numeric limitation requirements on construction site runoff. On December 1, 2009, EPA passed a final rule setting effluent limitations guidelines (“ELGs”) and new source performance standards (“NSPS”) aimed at reducing water pollution from construction sites. The rule, which takes effect February 1, 2010, requires all construction site owners and operators to implement best management practices (“BMPs”) to control and reduce pollutants in stormwater discharges.

The rule also requires construction sites that disturb 20 or more acres of soil to monitor site discharges and comply with specific numeric limitations for turbidity, which is the measure of the ability of light to penetrate water, in discharges within 18 months of the effective date of the rule. Starting four years after the effective date, the monitoring and turbidity requirements will apply to all construction sites that disturb 10 or more acres of soil.

EPA’s final rule is meant to act in conjunction with state and local programs and set minimum requirements that will apply equally nationwide. In Wisconsin, the Wisconsin Department of Natural Resources (“WDNR”), not the EPA, is the permitting authority for construction site stormwater permits. Nevertheless, the new EPA final rule must be incorporated into Wisconsin’s permit requirements.

What are the implications of EPA’s action?

According to the WDNR, the turbidity requirement poses a special concern for Wisconsin due to the state’s clay soil, which clouds water and affects the turbidity at a higher rate than other types of soils and pollutants. Thus, EPA’s turbidity requirements may drive up the cost to control and reduce pollutants in stormwater discharges at certain construction sites around the state. Currently, Wisconsin requires all construction site owners and operators who disturb one or more acres to use BMPs to control and reduce pollutants in stormwater discharges. Wisconsin, however, does not currently have any numeric limitations on turbidity.

According to EPA, the final rule would apply to entities involved in building construction, including development and general contracting, as well as heavy and civil engineering construction, such as land subdivision.

Entities who have projects planned that may be affected by the new EPA turbidity requirements should contact one of the authors of this alert or your Michael Best attorney, to see if the new EPA final rule will apply to them and find out what programs can be implemented to ensure compliance with the EPA requirements.

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