Ninth Circuit Affirms District Court Ruling Requiring Stormwater Runoff Limits for Construction Sites

November 16, 2008
by BRIDGET DORFMAN
Client Alert Newsletter November 2008

On September 18, 2008, the United States Court of Appeals for the Ninth Circuit upheld a district court ruling requiring the U.S. Environmental Protection Agency ("EPA") to promulgate effluent limitation guidelines ("ELGs") and new source performance standards ("NSPSs") to control the quantity, rates, and concentrations of pollutants in stormwater runoff from construction sites pursuant to the Clean Water Act ("CWA"). The CWA prohibits the discharge of any pollutant from any point source into navigable waters of the United States without a National Pollutant Discharge Elimination System ("NPDES") permit. ELGs and NSPSs are numerical, technology-based restrictions on existing and "new source" point source discharges, respectively.

EPA began the process of developing ELGs and NSPSs for the construction industry in 1999, but in April 2004, EPA reversed course because it determined that: (1) existing NPDES regulations (which are based on qualitative Best Management Practices, or "BMPs") already sufficiently controlled stormwater discharges from construction sites; (2) ELGs would be too costly to the regulated community; and, (3) construction activity discharges do not qualify as "new sources." In December 2004, the Natural Resources Defense Council ("NRDC") challenged EPA's decision, and the district court issued a permanent injunction requiring EPA to issue ELGs no later than December 1, 2009. On appeal, the Ninth Circuit concluded that EPA had a non-discretionary duty under the CWA to promulgate ELGs and NSPSs for the construction industry.

While it remains to be seen whether EPA or its co-defendants, the National Association of Homebuilders and the Associated General Contractors of America, will appeal the Ninth Circuit's decision, it is clear that the development of numerical standards for discharges from construction related activities could significantly impact stormwater regulations applicable to the construction industry. EPA is reportedly working on a proposed rule for ELGs and NSPSs for the construction industry and expects to publish it by the end of the year.