A flurry of recently issued storm water and regulatory requirements that give new muscle to the U.S. Environmental Protection Agency — with more regulations on the way — are likely to make 2011 a difficult year for home builders and developers as they struggle to rebound from the deepest housing recession in more than 70 years.

More stringent permitting is already beginning to affect builders and developers in the Chesapeake Bay watershed — an area encompassing parts of five Mid-Atlantic states and the District of Columbia — under the newly enacted Chesapeake Bay Total Maximum Daily Load (TMDL) rule, an anti-pollution measure designed to restore clean water in the bay and the streams, creeks and rivers flowing into it.

The EPA is considering the rule as a model for future nutrient reduction actions across the country.

Later this year, the EPA also is expected to propose or complete stronger national storm water regulations and Effluent Limitation Guidelines (ELGs) that further limit turbidity specified in builder and developer storm water management permits.

EPA actions now in effect or expected to be proposed in 2011 include:

Chesapeake Bay TMDL Actions

The final Chesapeake Bay TMDL rule, which was completed on Dec. 29, 2010, and published on the EPA’s website, will require all new growth in the watershed to purchase “offsets” to accommodate nitrogen, phosphorus and sediment from new building projects.

The regulatory requirements on home building are primarily contained in Phase I of each state's Watershed Implementation Plan (WIP), which has been revised by the EPA and can be accessed in each state’s environmental agency website.

The EPA recently stated that offsets for new development are not required for new permits that will be issued early this year, but once the offset programs are approved by the EPA, builders and developers will have to purchase offsets for new projects. 

The states have until June 1 to submit their Phase II WIPs to the EPA for its review and approval — with final plans to be completed by Nov. 1 — but the states have asked for deadline extensions.

The Phase II WIPs will contain the detailed, finer-scaled plans that the states will develop for meeting their pollution reductions. Each state’s WIP will also detail alternative actions that can be taken in order to provide the EPA “reasonable assurance” that the reductions actually will be achieved.

By the end of 2011, the states also are required to complete two-year milestone goals for the period beginning on Jan. 1, 2012. These goals will be regulatory.

An “Independent evaluator” team acting as consultants to the EPA will judge the states' progress in meeting their two-year TMDL milestones and, if necessary, mete out punishment for states not meeting their goals.

Previous milestones for the multi-governmental Chesapeake Bay restoration effort, which began in 1983, have primarily been voluntary.

As the Chesapeake Bay rule proceeds, however, the EPA will have to revise the state pollutant allocations under the TMDL this year because the software that the agency used to model the TMDLs does not appear to be functioning properly.

However, there is a good chance that the TMDL goals for each state will become even more difficult and expensive to achieve by 2025 — 2020 for Maryland — once revisions to the EPA modeling have been made. 

More Stringent National Storm Water Rules to Be Proposed This Year

The EPA is also expected to re-propose a revised numeric limit to its Construction and Development Effluent Limitation Guidelines Rule (ELGs) early this year.

Finalized in 2009 with a turbidity limit of 280 nephelolometric turbidity units (NTUs), states now must incorporate the ELGs rule with the revised numeric limit into the next revision of their Construction General Permit.

The ELGs rule has an effective date of Aug. 1, 2011, for monitoring turbidity at construction sites with a disturbed area of 20 acres or more.

No federal guidance currently exists for monitoring turbidity on construction sites, and that can be problematic for construction activities utilizing low-impact development (infiltration devices) to manage storm water. State permitting authorities will need to provide guidance on how to monitor turbidity at such sites in order to comply with the ELGs rule.

In addition to the ELGs, the EPA is expected to propose a post-construction storm water discharge rule later this year. That rule will focus on volume and flow requirements for storm water runoff and is likely to break new ground by addressing storm water discharges that are currently unregulated.

In addition, some Chesapeake Bay-specific provisions may be issued as part of the post-construction rule.

In 2010, the EPA conducted surveys to assess the current storm water management systems and costs for industry, states and local government. The EPA also held two meetings with small home building companies to assess the impact of a new storm water rule.

Offset Requirements Rule Due Out in 2011

Yet another national storm water rule addressing offset requirements for new dischargers to protect water quality is due out in 2011, according to the recently published EPA semiannual regulatory agenda.

Offset requirements are necessary under some storm water TMDLs, with the Chesapeake Bay TMDL as the leading example of such a rule with offset requirements. However, language in the semiannual regulatory agenda hinted that the EPA may not limit offset requirements to just those watersheds that are impaired.

  A Question About Minimum Requirements for Construction General Permits

And an update of the EPA’s Construction General Permit (CGP), which sets the minimum requirements for state and local NPDES storm water programs, is expected to go into effect in August 2011.

Last updated in July 2008, the EPA submitted a revised CGP to the Office of Management and Budget (OMB) last month as part of the EPA’s plan  to incorporate the ELGs turbidity monitoring provisions into the new CGP before the monitoring provisions go into effect in August.

The EPA will submit the new CGP for public comments early this year. As the process proceeds, NAHB will continue to keep its members apprised of any changes to the CGP beyond the adoption of the ELG rule.

For more information, e-mail Glynn Rountree at NAHB, or call him at 800-368-5242 x8662.