EPA Ordered to Set Standards for Construction Site Runoff

The EPA and the National Association of Homebuilders had appealed a district court injunction requiring the standards in a case brought by conservation groups.

In its ruling Thursday, the appeals court upheld the injunction granted in the 2006 case brought by the Natural Resources Defense Council and Waterkeeper Alliance. The states of New York and Connecticut supported the conservation groups.

The conservationists said the decision will help to ensure that runoff from construction sites will not cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies.

"This decision will go along way towards protecting America's streams and rivers from the construction and development industry," said Melanie Shepherdson, staff attorney at NRDC. "The court made it very clear that EPA can't just shirk its responsibilities to rein in pollution from this industry."

Excessive sediment, which is often the result of construction activity, is one of the leading causes of impairment of U.S. waters. Construction runoff threatens rivers, pollutes clean water sources and leads to excessive plant growth in water bodies.

"For too long EPA has turned away from the real work of protecting our waters. This decision forcefully reminds them of their duty to the American people and our waters," said Jeffrey Odefey, staff attorney at Waterkeeper Alliance, a nonprofit organization with member groups throughout the United States and around the world.

"It's time that EPA and the building industry demonstrate real leadership and took the necessary steps to prevent the destruction of our lakes, rivers and streams."

Muddy runoff from a construction site in Monroe County, Pennsylvania. (Photo courtesy Monroe County)

The district court decided in favor of the plaintiff groups on the basis that the EPA failed to comply with the Clean Water Act by not performing its "non-discretionary duty" to promulgate new source performance standards and effluent limitation guidelines, or ELGs, for the construction industry.

The district court issued a permanent injunction requiring the EPA to issue these guidelines and standards for the construction industry no later than December 1, 2009. The appeals court upheld that ruling and the EPA must now abide by the injunction.

On bahalf of the three judge appellate panel, Judge Milan D. Smith, Jr. wrote, "The EPA explained its decision 'not to promulgate [ELGs] and standards' by stating that it believed that construction site storm water discharges were already 'being adequately addressed' because the 'existing NPDES' regulations require permits for the vast majority of construction sites nationwide, and that the cost was "simply too high and ... disproportionately large" given the reductions that would be attributable to the proposed ELGs."

The EPA told the court that the annual cost of the proposed ELGs would be more than half a billion dollars and would result in the displacement of a number of jobs while the existing permit programs were capable of controlling 80-90 percent of sediment runoff from construction sites and the proposed rule would only remove an additional one percent more.

The EPA also decided not to promulgate new source performance standards because it said that discharges associated with construction activity generally are "not appropriately characterized as new sources," and the definition of new source should be read to exclude construction sites.

So, the EPA removed the construction industry from effluent plans it published.

Although the EPA had identified stormwater discharges from the construction industry as a new category in its 2000 and 2002 effluent guidelines program plans, the agency did not identify the construction industry in its 2004 and 2006 plans based on the idea that discharges from this activity consist mostly of conventional pollutants, in this case, total suspended solids.

In its 2004 plan, the EPA stated that analysis under the Clean Water Act applies only to industrial categories of sources that are discharging non-trivial amounts of toxic or nonconventional pollutants to waters of the United States.

The EPA said it did not consider industrial activities where conventional pollutants, rather than toxic or non-conventional pollutants, to merit regulation under the 2004 and 2006 plans.

To read the appeals court's decision, click here.

For a detailed history of this issue, click here.

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