New Effluent Limit Rules Going Into Effect One State at a Time

One state at a time, the U.S. Environmental Protection Agency's (EPA) new Effluent Limit Guidelines for builder and developer storm water management permits are now beginning to take effect.

North Carolina is the first state to officially recognize the rule, which tightens restrictions on residential development of all sizes and, for the first time, includes a strict numeric limit on the turbidity — or amount of sediment — of water that flows from larger construction sites after a rainstorm.

However, because the state was in the middle of its permit process when the new ELG was finalized on Feb. 1, it won’t be required to add the ELG language for 18 months, in August 2011.

To keep their storm water permitting authority current, every five years state environmental offices are required to submit any proposed changes to their permitting process to the EPA. States renewing permits after the guidelines’ effective date of Feb. 1, need to take the new guidelines into consideration.

The new ELGs set a “technology floor” that all permittees are required to meet. The states can adopt provisions that are more onerous than this federal minimum if they so choose, such as a lower turbidity limit or a more aggressive implementation timeline.

The agency released the ELG proposal in 2008 under a court order after a lawsuit filed by an advocacy group argued that builders — whose “discharges” under the Clean Water Act are the result of rainfall and sediment running off the construction site — should be treated like commercial and industrial enterprises, which discharge water and chemicals via pipelines.

The guidelines set out requirements without regard to the type of soil on the job site and how likely it is to absorb excess rainwater or regard to the natural turbidity of nearby streams or other water bodies.

The rules also require stepped-up state enforcement, but the EPA has not yet issued guidance on how to monitor compliance or how to pay for the additional administrative and inspection costs.

Further, the additional requirements are more difficult — and in some cases impossible — to meet on smaller lots and in urban redevelopment, severely hampering “smart growth” projects and transit-friendly building. 

Other states whose permits will expire soon include Maine, Connecticut, Tennessee, Mississippi, Washington and Oregon. South Dakota slipped in just before the deadline and thus avoided the additional ELG language; Pennsylvania took a similar approach to North Carolina and renewed for two years only.