New EPA Construction Site Effluent Rule

Those who read this blog are aware of my coverage of new numerical standards for nutrient pollution the EPA is enacting in Florida. Well that is not the only place they are putting numerical criteria into effect. Below is a news alert from two attorneys at my firm, Ralph Ferrara and Jennifer Simon Lento. Ralph is the head of our construction law practice, and Jennifer is an associate in our environmental department (who also has an excellent blog on off-shore wind farms that you can find here). So without further ado:

On February 1, 2010, the U.S. Environmental Protection Agency (EPA) made effective a new final rule that imposes national monitoring requirements and enforceable numeric limitations on storm water discharges at all construction sites larger than one acre.

Under both the present and past regulatory schemes, all construction activities that could result in the discharge of pollutants into nearby bodies of water require the owner or operator to obtain permit coverage pursuant to the EPA’s National Pollutant Discharge Elimination System (NPDES) program or through a state administered analog program.

The new limitations, which include new effluent limitations guidelines (ELGs) and new source performance standards (NSPS), must be incorporated into all permits issued under EPA’s NPDES program or under analog programs administered by state agencies.

Compliance with the new rule will be staggered over the next four years. As of the effective date, construction site owners and operators that disturb one or more acres must use “best management practices” (BMP) to ensure that soil disturbed during construction activity does not pollute nearby water resources.

Specific numerical limitations will take effect in 2011 and 2014 for sites larger than 20 acres and 10 acres respectively. These sites must sample stormwater discharges, and meet a limitation of 280 NTU (nephelometric turbidity units). Sites larger than 20 acres must begin monitoring and sampling discharges to comply with the new limitations beginning on August 1, 2011. Sites larger than 10 acres will become subject to the same monitoring, sampling and compliance obligations on February 2, 2014.

These requirements will apply both to EPA’s Construction General Permit (CGP) and to individual permits issued by the states or by EPA. New Jersey, Pennsylvania and Delaware issue their own CGPs and individual permits. The new requirements must be incorporated into any new general permits issued after February 1, 2010. However, any CGP or individual permits issued by a state or by EPA prior to February 1, 2010 will remain valid until their expiration dates, and need not comply with the new final rule.

This rule is further evidence that the once sleeping EPA is now becoming active. And I believe we can expect this trend to continue into the foreseeable future.

ps. Please note that this is a brief summary of the new rule and there are other changes not discussed here which may impact specific situations. If you have a specific construction matter that you are concerned may be impacted by this new rule, please contact either Ralph or Jennifer to discuss it.

Is A Human Right To Water A Bad Idea?

Dr. Mike Compana of Oregon State University – known as Aquadoc – recently put up a post asking whether the human right to water is a bad idea. The question is prompted by an article in Global Water Intelligence opposing the UN High Commission For Human Rights’ (UNHCHR) possible adoption of an obligation on the part of utilities to provide a basic supply of free water to low-income groups, regardless of whether the supply could be successfully financed. I will not repeat the arguments in the article, other than to say that they focus on whether such an obligation would halt private investment in extending water services. It is worth a read and I highly recommend you head over and check it out.

Florida Gets Another Reprieve, In Part, From Numerical Standards

I have written several posts about the EPA’s decision, in settlement of a lawsuit, to enact numerical standards for nutrient pollution in Florida. The original settlement called for the EPA to have issued such criteria by now. Two months ago the EPA extended the comment period for its proposed criteria – a step that many expected.

Yesterday the EPA issued a new letter to the Florida DEP stating its intention to delay the implementation of numerical standards for estuaries and coastal waters until 2011. In addition, the EPA will apparently seek “additional third party review,” to be announced next month, to review the scientific basis for water standards applicable to these environments.

For environmentalists this is bad news in as much as it delays the implementation of standards until next year. For those who oppose new environmental regulation, that regulation has just been put off a year for a large swathe of areas that would otherwise be affected.

I believe however that this announcement is a good thing in the end. Numerical nutrient regulations are probably necessary, but given their complexity should not be rushed into. If the regulations are going to be meaningful they need to be backed up by science addressing the particular environments to be regulated – something that is thin on the ground at the moment. Remember, unlike other contaminants, these are compounds that are both naturally occurring and necessary for normal aquatic ecosystems. Appropriate levels of these compounds can also vary from one water environment to another. As a result, generalized standards are neither appropriate nor possible.

Nutrient Standards Delayed 30 Days

Florida got a brief reprieve today from the enactment of numeric nutrient standards. The EPA announced today that it would extend the comment period for its proposed numeric nutrient standards for 30 days to "ensure that Florida residents voices are heard...."

This is an issue I have reported on before because of the likelihood that such standards will eventually be mandated nationwide. Numerical nutrient standards are controversial due to the cost associated with determining what the appropriate levels of nutrients are in various bodies of water.

Many in Florida are watching these proceedings with interest/apprehension.

A Return To Blogging And A New Report From The Pacific Institute

After something of a hiatus do to work obligations, I’m back. And I think I should start off my return to regular (or at least more regular) posting with a positive story.

A new report has just been issued by the Pacific Water Institute, home to Peter Gleick, a much admired voice among those concerned with water related issues.

The eponymous subject of the report is “California Farm Water Success Stories,” and its purpose is to highlight examples of farmers in California who have made significant strides to increase the efficiency of their water usage. There is even a short video that accompanies the report that you can find here.

So why do you care? You care because agriculture is far and away the single most significant consumer of potable water in United States, and the world. As a result, any increases in agriculture’s water efficiency can have a dramatic effect on water supplies. Currently this is a critical issue in California and much of the southwestern United States.

The thrust of the report is that solving California’s water shortage requires increasing the efficiency with which Californians, and particularly farmers, use water. Moreover, increasing efficiency by a significant amount (one farm estimates it reduced its water consumption by 20%) is achievable with existing technology and at a cost equivalent to or less than that required to increase supply – and without the attendant negative environmental impacts.

It is an interesting report, and reinforces the fact that there are practical solutions to water scarcity that do not require us to sacrifice the environment.

Florida's New Water Standards

Well, it’s a new year, and I hope everyone had an enjoyable holiday season. And while most people are recovering from holiday excess, watching the fireworks in Washington, and the tragedy in Haiti, the EPA is continuing to tick along.

I have written twice before about litigation in Florida designed to force the EPA to enact numerical standards for nutrient pollution in Florida's waters. Those standards have now been issued. This begins a 60-day public comment period. Some estimate that the cost of complying with the proposed standards could exceed a billion dollars. A cost that will have to be borne by government and industry.

Certainly we can expect that the comment period – which may be extended – will be “vigorous.”

But the bigger question that has yet to play out is the impact of numerical standards on a national level – something for which this litigation has opened the door. And as expensive as numerical standards may be for Florida, the cost for other states could be even higher. Florida, unlike many states, already has a significant knowledge base regarding the quality of its waters - largely due to the diligence of various state and local agencies. States that have not been monitoring their water quality as diligently will have to do so if they are to have any hope of establishing scientifically valid nutrient standards. While the states should probably be doing this anyway, it isn't going to be cheap.

And in this age of economic woe, who is going to pay for it?

Most states are teetering on the edge of serious financial crisis – if they haven’t fallen over it already. The federal government is already up to its eyeballs in debt. And industry – at least the kinds of industry that will be affected by these new standards – isn’t exactly flush right now either.

Don’t get me wrong – I understand the compelling argument for the superiority of numerical standards over softer narrative standards. I think taking steps to prevent nutrient pollution is necessary. But the implementation of standards needs to be done in a balanced way, and the costs associated with the regulations need to be considered as part of the process. We should always strive to do better, but setting impossible or unrealistic goals only sets us up for failure.

Pacific Institute Water Conflict Chronology

There is an amazing new resource, the Water Conflict Chronology, over at the Pacific Institute (home of Peter Gleick, among others) which chronicles the history of water conflicts worldwide all the way back to antiquity. The history can viewed interactively as a table, timeline, or geographically.

While it is a rather grim subject, it is a remarkable tool. I encourage you to check it out.

Edit: Please also check the post by Peter Gleick, the President of the Pacific Institute, about the chronology over at his blog, City Brights.