Bill Penny
Bill Penny

Bill Penny is in the Nashville office of Stites & Harbison and is a member of the firm's Environmental, Natural Resources and Energy Service Group. He has more than 25 years experience in environmental law. He may be contacted at william.penny@stites.com.

Bill Penny
Christina Davidow

Christina Bodewig Davidow is an Associate in the Nashville office of Stites & Harbison and a LEED Accredited Professional. She is a member of both the Environmental, Natural Resources and Energy Service Group as well as the Green Industry Practice Group. She may be contacted at christina.davidow@stites.com.

water

EPA issues Final Rule on Construction Stormwater Discharges

11.24.09 3:35 PM
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EPA issued its Final Rule for “Effluent Guidelines for Discharges from the Construction and Development Industry"  on November 23, 2009. The rule will significantly affect construction projects that disturb 10 acres or greater at any one time. One of the most significant and most controversial provisions is a numeric limitation for turbidity. The rules require average daily turbidity for discharges to not exceed 280 Nephelometric turbidity units (Ntu).  The numeric limits are not applicable if the rainfall event exceeds the two-year 24-hour storm event. The rule will be phased-in over a four year period. Sites that disturb 20 acres or more must comply beginning 18 months after the effective date of the rule. Sites that disturb 10 acres or more at one time have four years from the effective date to comply. The final rule will be effective 60 days after publishing in the federal register. 

The proposed rules, which were published November 28, 2008, contained a number of options, including numeric limitations on suspended solids and turbidity, but the final rule established only turbidity as a numeric criteria. This rule is a somewhat dramatic change in direction from the current position that construction projects should be based on best management practices. EPA estimates that once this rule is fully implemented the annual cost will be approximately $953 million.  Despite the inclusion of the numeric turbidity requirement, the final rules are improved over the proposed rules. The proposed rules suggested a turbidity limit of 13 Ntu. This was almost clear water, and could not be met. In addition, the proposed rules had standard sediment basin sizing and soil clay content provisions which ignored site specific conditions. Many commenters, including the Homebuilders Association of Tennessee (HBAT), opposed these provisions, and they do not appear in the final rule. 
 
TDEC’s construction general permit expires in July 2010. It is likely that these new requirements will be placed in the revised permit at that time.
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