EPA backs off federal storm water runoff rule (UPDATE)

By Marie Rohde

The Environmental Protection Agency is withdrawing from its storm water management rule a requirement builders say would have added $10 billion a year to construction costs in the U.S.

“This is a significant victory,” said Patrick Stevens, general counsel for the Wisconsin Builders Association. “In essence, the EPA agreed that it did not do its homework.”

The agency’s nationally applicable Effluent Limitation Guidelines would have required contractors meet limits of 280 turbidity units for water runoff from construction sites. Turbidity is a measurement of sediment in storm water runoff.

The requirement would have applied starting in 2011 to storm water discharged from sites that disturb 20 acres or more. By 2014, all sites 10 acres or larger would have had to comply with the rule.

Leon Church, a developer who owns Sweetwood Builders Inc., Neenah, said the EPA pulled a lot of information for the standard out of the air rather than basing it on science. He said the turbidity requirement would create major problems for builders.

“Basically, it would have increased the price of the lots to the point that they would not be affordable,” Church said. “It would have had a disastrous impact on development.”

The WBA and the National Association of Home Builders filed a federal lawsuit in December 2009 shortly after the EPA adopted the rule. The lawsuit charged the EPA used faulty data when it established the numeric guidelines for storm water runoff at construction sites.

According to a prepared NAHB statement, the EPA acknowledged the costly rule would control less than one quarter of 1 percent of all sediment runoff.

The agency claimed the new standard would have cost $953 million a year nationally, but the NAHB claimed it would have cost up to $10 billion annually.

Stevens said there are no available figures of what the rule would have cost Wisconsin builders. He said it was unclear how contractors would have monitored storm water runoff.

The EPA backed down, asking that the case be held off until February 2012 so the agency can fix a “flaw” in the rule, according to a brief filed by the U.S. Justice Department in the case that was before the 7th Circuit Court of Appeals in Chicago.

Representatives from the EPA and the Wisconsin Department of Natural Resources did not immediately return calls.

In addition to challenging the data used by the EPA to support its standards, the lawsuit complained the agency failed to consider certain site-specific characteristics, such as the effect of the numeric limit on small sites and cold weather conditions.

“The agency has concluded that it improperly interpreted the data and, as a result, the calculations in the existing administrative record are no longer adequate to support the (rule),” according to the Justice Department’s brief.

The legal brief indicated the adoption of a new rule could be time consuming. It would require a review of the technical material, drafting a new regulation and obtaining public comment as well as other actions.

Stevens acknowledged the court action could be just a brief reprieve from the new standard.

“We hope that if they come out with a new rule it will be based on science,” he said.