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AGC of America important stormwater updates!

Dear AGC Members,

Please take a moment to review the following important stormwater updates!

1.      Settlement Reached in C&D ELG Lawsuit

The National Association of Home Builders (and other parties) announced a settlement with the U.S. Environmental Protection Agency (EPA) regarding their long-standing lawsuit over the 2009 “Effluent Limitations Guidelines” for the “Construction Development Industry” (C&D ELG) rule.  I've attached the signed settlement document. 

Some key outcomes:

  • EPA will permanently withdraw the turbidity numeric effluent limit (280 NTU) that has been stayed since January 4, 2011, as a result of industry’s legal challenge;
  • EPA will propose a revised C&D ELG by April 15, 2013, and take final action by February 28, 2014;
  • In addition to withdrawing the numeric 280 NTU limit, EPA has agreed to clarify the “non-numeric” portion of the 2009 C&D ELG rule so that contractors/developers, permit writers and inspectors better understand what control measures are required on all construction projects nationwide - Exhibit A of the Settlement sets forth the specific "non-numeric" effluent limitations modifications agreed to by the parties;
  • If EPA proposes a revised C&D ELG consistent with the terms of the settlement agreement, the National Association of Home Builders (NAHB) will drop its legal challenge to EPA's 2012 Construction General Permit (CGP);
  • We expect that EPA will modify its 2012 CGP and CGP guidance as appropriate to conform to a new C&D ELG regulation (by 2014 final date); and
  • AGC Chapters and members may want to use the settlement in their own state-specific construction stormwater permit comments/negotiations to keep individual states from adopting what will likely become “outdated” C&D ELG requirements.

As AGC has long argued, the lawsuit stressed the critical points that (1) EPA’s 2009 numeric limit would have cost industry stakeholders up to $10 billion a year in attempts to comply – and that (2) it is not possible for EPA to come up with a one-size-fits-all turbidity limit that will work across all geographic areas and soil types.  While not a named party in the lawsuit, AGC has been integrally involved in EPA’s efforts to develop appropriate controls for construction site stormwater runoff for more than 15 years.  AGC carefully coordinated its most recent activities with the lawyers and others involved in the C&D ELG lawsuit.

EPA's website has been updated accordingly - http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm.

2.      Court Rules TMDLs Cannot Regulate Stormwater Flow, Only Pollutants (e.g., Sediment)

Please see the attached court decision rejecting US EPA's attempt to use stormwater flow rate as a surrogate pollutant in a TMDL (total maximum daily load) case.  In this key decision handed down by the Federal District Court for the Eastern District of Virginia, a federal judge ruled that the Clean Water Act does not authorize the U.S. Environmental Protection Agency to limit “stormwater flow” [in lieu of regulating sediment discharges] in TMDLs because such flow itself is not a pollutant (Virginia DOT v. EPA, E.D. Va., No. 1:12-cv-775, 1/3/13).

Water quality problems in the Accotink Creek in Fairfax County, Va. had triggered the Clean Water Act process for setting a “pollution diet” or clean-up plan, called a TMDL, for that creek designed to limit the amount pollution that enters the water body. The state failed to set the TMDL by the deadline, so EPA stepped in to do it.  But instead of setting limits for the pollutant itself -- sediment -- EPA decided to set the TMDL that limited the amount of water that could flow into the Accotink on the rainiest day of the year.  EPA called this a "surrogate" approach.  The court ruled that this approach exceeded EPA's authority.

Ultimately, the court saw just a "single issue:  Does the [CWA] authorize the EPA to regulate the level of a pollutant in Accotink Creek by establishing a TMDL for the flow of a nonpollutant into the creek?"  (Slip Op. at 3.)  It then launched into a statutory authority analysis (called a “Chevron inquiry”) and found "no ambiguity in the wording of this statute."  (Slip Op. at 5.)  The TMDL language "does not give [EPA] authority to regulate nonpollutants."  (Id.)  In rejecting EPA's argument that they could regulate stormwater as a surrogate for a pollutant, the court relied primarily upon Friends of the Earth, Inc. v. EPA, 446 F.3d 140 (D.C. Cir. 2006) (rejecting use of annual and seasonal loads as inconsistent with term "daily" in CWA).  (Slip Op. at 5-6.) 

In distinguishing other surrogate scenarios, the court noted that EPA's so-called surrogate cases like Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir. 1978) regulated "non-harmful pollution parameters" that "were components of the effluent" for which EPA had express authority to regulate.  (Slip Op. at 6.)  Additionally, the court dismissed any regulatory authority relied on by EPA as "bootstrapping" and stated that "[t]o the extent the regulations allow EPA to set TMDLs for nonpollutants, they exceed the statutory authority of EPA."  (Slip Op. at 7.) 

Though the court found the Accotink TMDL unambiguously outside the authority granted to EPA under the CWA, and accordingly disposed of this motion at Chevron's first step, it went on to "note[] that there is substantial reason to believe EPA's motives go beyond 'permissible gap-filling.'"  (Slip Op. at 8.)  The brief analysis of Chevron step two essentially boils down to the court finding no compelling answer to this question:  "If the sediment levels in Accotink Creek have become dangerously high, what better way to address the problem than by limiting the amount of sediment permitted in the creek?"  (Slip Op. at 8.)  Of the 3,700 TMDLs for sediment nationwide, only four regulate the flow of stormwater and none of those four have ever been upheld by a court.  (Id.

All in all, the opinion is brief and straightforward: The CWA permits TMDLs for pollutants, and “stormwater flow” is not a pollutant.  Therefore, the Accotink TMDL cannot be sustained. 

In 2011, AGC worked with the Federal StormWater Association (a national Wash. DC-based coalition) to object to, and effectively forestall the release of, an EPA memo (November 2010 Stormwater/TMDL memorandum) that, if adopted as EPA policy in its current form, would have broadly authorized the exact kind of TMDL that the court has held unlawful in the Accotink Creek TMDL case.  That memo remains under internal agency review and has been the subject of much on-going debate.

We expect that EPA likely will appeal this decision.  Any limitation on EPA’s ability to regulate “flow” will be perceived as a significant setback to its upcoming stormwater regulatory agenda (e.g., EPA’s national post-construction stormwater rule that is currently under development and scheduled to be proposed in June 2013). 

3.      SUPREME COURT: Los Angeles water district wins stormwater dispute

To quickly update you on the U.S. Supreme Court decision in the L.A. County Flood Control District v. Natural Resources Defense Council (NRDC) Inc. case (No. 11-460, decided Jan. 8, 2013).  It is a short opinion (9-0, Alito concurring) that focused solely on the determination that water flowing from one part of a waterway to another part of the same waterway cannot result in the discharge of a pollutant (consistent with the Court's prior Miccosukee opinion).  The opinion is attached.

L.A. County Flood Control District presented the question whether a “discharge” occurs under the Clean Water Act when contaminated water flows from a natural river course through a concrete channel that is part of a municipal storm sewer system (MS4) and back out into a natural river course. The Ninth Circuit held that the Los Angeles County Flood Control District (District) was responsible for discharges of pollutants at the end of concrete channels in two rivers, the Los Angeles River and the San Gabriel River.  The Supreme Court reversed the Ninth Circuit decision.

The Court’s decision clarifies that the flow of water through a man-made construction (such as a dam, penstock, and/or powerhouse) within the same waterway does not qualify as a discharge of pollutants and does not require an NPDES permit.

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More detailed articles on all three of these items will be posted to AGC’s Environmental News web page at http://news.agc.org/topics/environment/ later this week.

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Leah F. Pilconis

Consultant on Environmental Law & Policy

Senior Environmental Advisor to AGC of America

The Associated General Contractors of America |2300 Wilson Blvd., Suite 400 | Arlington, VA  22201

(: 703.837.5332   7: 703.837.5401   *: pilconisl@agc.org   :: www.agc.org/environment

 

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