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Federal Stormwater Regulations - Current Activities

 

The past several years have seen frequent regulatory and litigation activity with regard to construction stormwater. This section of CICA Center provides an overview of that activity with links to more detailed information on EPA's website.

Three recent construction stormwater regulatory actions of notable importance on the federal level include:

  • Stormwater Effluent Guidelines,
  • 2012 Stormwater Construction General Permit (CGP), and
  • New stormwater rules for recently developed and redeveloped construction sites.

Each of these topics are discussed below.

Stormwater Effluent Guidelines

On December 1, 2009, the U.S. Environmental Protection Agency (EPA) published effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants from construction sites. This is referred to as the Construction and Development or C&D Rule. The regulations apply to all construction sites that are subject to NPDES permit requirements (generally, sites with one or more acres of land disturbance). The regulation was effective on February 1, 2010. After this date, all permits issued by EPA or states had to incorporate the final rule requirements:

  • All construction sites were required to obtain permit coverage would have had to implement a range of erosion and sediment controls and pollution prevention measures.
  • Beginning on August 1, 2011 all sites that disturb 20 or more acres of land at one time were to be required to comply with a turbidity limitation. On February 2, 2014 the limitation would have applied to all construction sites disturbing 10 or more acres of land at one time. These sites would have had to sample stormwater discharges and comply with a numeric limitation for turbidity. The limitation was 280 NTU (nephelometric turbidity units).

The C&D Rule was challenged in court. In a settlement agreement reached with the litigants, EPA agreed to propose to amend several of the non-numeric/best management practice (BMP) requirements and to propose to withdraw the numeric limitation for turbidity.

On March 6, 2014, EPA published the final amendments to the C&D Rule (see Federal Register Notice and Fact Sheet). This final rule withdrew the numeric discharge standards, which were previously stayed, and changed several of the non-numeric provisions of the existing rule. This final rule is effective on 5 May 2014.

For background information and the latest news on the C&D Rule, see EPA's Construction and Development section.

2012 Construction General Permit

On February 16, 2012, EPA issued the final Construction General Permit (CGP). Where EPA is the permitting authority (see below), construction stormwater discharges are almost all permitted under the Construction General Permit (CGP).

The CGP requires compliance with effluent limits and other permit requirements, such as the development of a SWPPP. Construction operators intending to seek coverage under EPA's CGP must submit a Notice of Intent (NOI) certifying that they have met the permit’s eligibility conditions and that they will comply with the permit’s effluent limits and other requirements. To submit the NOI, the operator should use the “eNOI” system (or “electronic NOI system”).

Coverage under the 2012 CGP is available for eligible construction activities in the following areas:

  • Idaho, Massachusetts, New Hampshire, New Mexico, District of Columbia
  • American Samoa, Guam, Johnston Atoll, Midway and Wake Islands, North Mariana Islands, Puerto Rico
  • Indian Country lands within Alaska, Arizona, California, Colorado, Connecticut, Idaho, Iowa, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Utah, Vermont, Washington, Wisconsin, Wyoming
  • Areas within Colorado, Delaware, Vermont, Washington subject to construction by Federal Operators
  • Limited areas of Oklahoma and Texas

The 2012 CGP includes a number of modifications to the 2008 CGP, many of which are necessary to implement the new Effluent Limitations Guidelines and New Source Performance Standards for Construction and Development point sources (see above). The C&D rule requires construction site operators to meet restrictions on erosion and sediment control, pollution prevention, and stabilization. The C&D rule also included a numeric turbidity limit for certain larger construction sites, but as discussed above, effective January 4, 2011, EPA has stayed the numeric limitation of 280 NTU that was published in the December 1, 2009 rule. Because the numeric limit for turbidity has been stayed, EPA and authorized states are no longer required to incorporate the numeric turbidity limitation and monitoring requirements into their permits.

Although construction activity in most states is not covered by the federal CGP, future state equivalent permits will have similar requirements. State general permits are typically re-issued every five years. To check the status of the stormwater permit in your state, see CICA's Stormwater State Resource Locator.

For more information on the CGP, see EPA's Construction General Permit section.

New Stormwater Rules for Recently Developed and Redeveloped Construction Sites

EPA has initiated a national rulemaking to establish a program to reduce stormwater discharges from newly developed and redeveloped sites and make other regulatory improvements to strengthen its stormwater program. EPA intends to propose a rule to strengthen the national stormwater program during 2013 and complete a final action by December 10, 2014.

Under consideration are:

  • Develop performance standards from newly developed and redeveloped sites to better address stormwater management as projects are built;
  • Explore options for expanding the protections of the municipal separate storm sewer systems (MS4) program;
  • Evaluate options for establishing and implementing a municipal program to reduce discharges from existing development;
  • Evaluate establishing a single set of minimum measures requirements for regulated MS4s. However, industrial requirements may only apply to regulated MS4s serving populations of 100,000 or more;
  • Explore options for establishing specific requirements for transportation facilities; and
  • Evaluating additional provisions specific to the Chesapeake Bay watershed.

For background information and the latest news on this topic, see EPA's Proposed National Rulemaking to Strengthen the Stormwater Program section.