Construction Water Pollution: New EPA Rule

December 9, 2009

In the construction industry, rainy days can mean more than just delays. Stormwater runoff from construction sites is a significant source of soil and sediment runoff. This increases the muddiness("turbidity") of surface water — which can impair plant and animal habitats as well as complicate operations at water treatment plants, power plants, and other water-handling facilities.

On Nov. 23, EPA issued a final rule governing water pollution from construction and land development activities. The new rule addresses building construction (including development and general contracting) as well as heavy and civil engineering construction (including land subdivision). It takes effect Feb. 1, 2010 and will be phased in over four years.

EPA release. Fact sheet. Press contact: Enesta Jones, 202-564-7873. Staff contact: Jesse W. Pritts, Office of Water, 202-566-1038.
Full text of rule in Federal Register.

The new rule requires construction site owners and operators who disturb at least one acre of land to use "best management practices" (BMPs) to ensure that soil disturbed during construction activity does not pollute nearby water bodies. Furthermore, at sites that impact at least 10 acres at one time, owners/operators must begin to monitor water discharges to ensure they comply with numeric limits.

Expect this new rule to make construction permitting, and the construction process, take longer and cost more — which could increase the price of houses and other buildings. Also, expect new complexities with construction projects that involve wetlands and brownfields.

On the Michigan local news site Mlive.com, environmental attorney Saulius Mikalonis, 248-901-4098, posted a useful overview of the new rule's impact. Key points:

"While there has been a long-standing program of erosion control and permits necessary for construction activities, EPA decided that stricter measures were needed."
"Rather than issue distinct permits for each and every construction site, activities at construction sites are governed by 'Construction General Permits' — which means that general terms and conditions apply to every similar location. The new EPA rule seeks to establish a 'floor' for construction permits. States must regulate such discharges at least as strictly as the EPA rule."
"Construction site operators [now] must institute control measures that minimize pollution runoff in stormwater using certain techniques and practices …and institute other control measures like litter control, maintaining construction debris, and segregating construction chemicals."

The following divisions at the Associated General Contractors of America can discuss the rule's possible impact on specific types of construction: