Posts from the staff at Landmark Science & Engineering, an integrated civil engineering and environmental sciences consulting firm located in the north, mid-Atlantic region, with a sustainable design focus. Including news, tips and other helpful information about responsible, low-impact site design for land development projects today.
……AGAIN!
The U.S. Army Corps of Engineers and the EPA have issued Draft Guidance that would, once again, change which wetlands and waters are considered Jurisdictional.
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Citing Flawed Analysis, Feds Send EPA Storm Water Rules Back to the Drawing Board | |
August 13, 2010 - In a major victory for affordable housing, sound science and more sensible regulations, the U.S. Environmental Protection Agency has been forced to withdraw a key portion of new storm water management regulations for builders and developers and devise new ones based on better research.
The move is the result of a lawsuit filed by the National Association of Home Builders (NAHB) and petitions filed by both NAHB and the federal Small Business Administration (SBA) Office of Advocacy asking the agency to revise its new Effluent Limitation Guidelines (ELGs) for the construction and development industry.
"After a big rainstorm, it's typical to see some storm water drain from a construction site. In these new regulations, EPA set a numeric limit on the amount of sediment that can cloud the water that both NAHB and SBA claimed was arbitrary and based on flawed analyses," said NAHB Chairman Bob Jones, a home builder and developer in Bloomfield Hills, Mich.
"In addition, NAHB was able to show that trying to achieve these limits would have cost not $953 million – which the agency had estimated – but up to $10 billion annually, hurting small businesses and housing affordability, with little additional environmental benefit: EPA itself admits the ELG would control less than one quarter of one percent of all total sediment runoff," Jones said. "By forcing EPA to take a hard look at the facts and admit its error, NAHB scored a major victory for home builders and home buyers nationwide."
After reading NAHB's brief, the Justice Department asked EPA to defend the numeric limit. EPA was forced to admit several flaws in the final rule and that it had improperly interpreted the data. As a result, the Justice Department filed a motion with the 7th Circuit Court of Appeals asking it to vacate the numeric limit and place a hold on the litigation until February 2012—while EPA goes back and develops a numeric limit that builders can actually comply with.
Published in December 2009, the ELG imposed a nationally applicable—and potentially impossible-to-meet—limit of 280 "turbidity units" on storm water discharges from construction sites disturbing 10 or more acres of land at one time.
While today's ruling removes the numeric limit, the other requirements of the ELG remain in place. EPA is expected to issue interim storm water management guidance for construction site operators as the agency works to refine the rule.
"NAHB supports responsible development and the goals of the Clean Water Act. The association will continue to work with state and federal regulators to keep our waterways clean," Jones
Since 2009, the Agency has entered into 10 civil judicial settlements and issued 36 administrative orders to sources contributing to the Bay’s impairment.
These enforcement actions:
Cover 248 facilities in nine states and the District of Columbia
will reduce approximately 2100 pounds of nutrients (nitrogen and phosphorus) and 82 million pounds of sediment to the Bay watershed, along with 16 million pounds of nitrogen oxides to the Bay airshed annually once all required controls are fully implemented
Of the 28 sites in the Bay watershed where actions were taken under Superfund to clean contamination of hazardous substances:
actions at 18 sites ensured that cleanups are conducted by the entities responsible for the toxic contamination at the facility, 11 of which are federal facilities
Staff of the EPA’s Chesapeake Bay Program Office have their noses to the grindstone as they feverishly work to complete the computer modeling and the analysis of the modeling results necessary for the proposal of the Chesapeake Bay TMDL this fall.
Last year, the EPA expected that the TMDL would be proposed in May, but that proposal date has now been pushed back until sometime in the fall because of a number of issues cropping up, including working out the kinks in the latest updates to the modeling software. Nevertheless, the EPA is committed to finalizing the Bay TMDL by the end of this year with an expectation that new restrictions on nitrogen, phosphorus and sediment discharges will be reflected in all NPDES permits in the bay watershed in 2011.
While the EPA is concentrating on putting together the TMDL, the states in the bay watershed are busily putting together their Watershed Implementation Plans (WIPs), which will contain the details of the actions that each state will take to reduce nitrogen, phosphorus and sediment loadings during the period of 2011 through 2017, which runs to the midpoint of the bay restoration program.
By 2017, each state is expected to have achieved 60% of the pollutant reductions necessary to meet their state TMDL water quality goals, and to have completed an outline of how the state will achieve the remaining pollutant reductions by the end of 2025.
Because of the severity of the pollutant reductions needed and the lack of state experience in putting together WIPs, the EPA is not expecting the states to finalize their WIPs until sometime in 2011, after the TMDL has been finalized. In addition, each state must publish its two-year milestones for the 2012-2014 period by January 2012. The two-year milestones consist of short-term actions and goals that the state will use to comply with the new requirements.
Because of the many challenges that the EPA and the states face to complete the TMDL by the end of 2010, only a very short public comment period might be provided for the proposed rule, perhaps as little as 30 days. NAHB has used several forums to voice its opposition to a shortened comment period for the proposed rule, even though the EPA has not sought public comment on the matter.
On May 6, the EPA met with representatives of the “development community” at the NAHB offices in Washington, D.C. Attending the meeting were NAHB staff members, developers, builders and representatives from other trade associations involved in development activities.
Prior to the meeting, the EPA aired a three-hour on Chesapeake Bay issues of interest to the development community. The intent of the morning webinar and the afternoon meeting was two-fold:
The EPA made plain that the TMDL will be very challenging and that all stakeholders should be working with their particular state to provide their input to the state as it develops its plans for meeting the TMDL requirements.
During the meeting, both NAHB and the EPA Chesapeake Bay Program Office expressed their desire to establish a long-term relationship to continue the discussion of new requirements affecting development and redevelopment. It was also mentioned that other federal agencies that lend money to developers, and those that have an interest in affordable housing, have been missing — but should be a part of — these storm water discussions about new requirements on development.
For more information, contact Jim McCulley at LandmarkJCM
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