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Ruling Makes Storm Water Permit Effluent Limit Guidelines Likely
Home builders and developers are now one step closer to seeing effluent limitation guidelines (ELG) tacked on to storm water permits for their construction projects.
Last week, the Ninth Circuit Court of Appeals ruled against the U.S. Environmental Protection Agency in Natural Resources Defense Council v. EPA, a lawsuit brought against the agency for its 2004 decision to not issue ELGs for the construction and development industry.
NAHB and the Associated General Contractors had intervened on EPA’s side to defend its “no rule” decision, which was issued after the agency determined that the sediment running off construction sites in storm water is not a “toxic or unconventional” pollutant, unlike some discharges from industrial plants or other sources.
The ruling came as little surprise to NAHB leaders, who have been meeting with EPA officials to help devise ELGs that are technology-based rather than numerical, which makes sense for the industry because storm water discharge is caused by rain, which cannot be controlled.
NAHB is also participating in a U.S. Small Business Administration panel that is studying the financial implications of ELG regulations for smaller builders and developers. The panel is scheduled to finish its work well in advance of the court-mandated deadline that requires EPA to issue the ELGs by Dec. 1, 2009.
While the EPA had never identified the construction industry as a source of toxic and non-conventional pollutants, the Ninth Circuit ruled that the agency had no discretion to exempt the industry from the ELG regulations.
The court also ruled that a 1999 EPA document stating that storm water runoff “may” contain contaminants was enough reason to allow the Natural Resources Defense Council to have standing to sue the EPA — even though none of the advocacy group’s affidavits in this case complained about toxic or non-conventional pollutants.
“It’s always unpleasant to be on the short end of a case like this,” said Duane Desiderio, NAHB’s staff vice president for litigation.
“However, it doesn’t really change things,” he said. “The EPA is committed to a new ELG for builders and developers, and our members are already engaged in that rulemaking process. We’ll continue to advocate and demonstrate the need for ELGs that are based on sound science and cost-effective technologies.” he added.
Click here for a copy of the Ninth Circuit decision.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
 'Storm Water Permitting: A Guide for Builders and Developers' Available at BuilderBooks.com
“Storm Water Permitting: A Guide for Builders and Developers,” available through BuilderBooks.com, provides a starting point for builders and developers to use in locating and understanding storm water permitting requirements.
The publication has been prepared to help builders comply with the U.S. Environmental Protection Agency's storm water requirements, and includes information on state permitting programs and more than 50 of the most commonly used best management practices. Also included are tips on compliance, including how to handle visits from inspectors.
To view or purchase this guide online, click here, or call 800-223-2665.
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