Stormwater Regulations Continue to Evolve

January 8, 2010
by BRIDGET DORFMAN
Client Alert Newsletter Forecast 2010

In recent years, we have observed an increased focus at all levels of government on compliance with construction-related stormwater requirements. Developers have had to respond to this increased focus by investing more time and money in obtaining timely National Pollutant Discharge Elimination System ("NPDES") permits for earth disturbance activity, installing and maintaining state-of-the-art Best Management Practices ("BMPs"), training employees in proper stormwater management practices, and keeping stormwater records (or risk enforcement actions in the form of significant penalties and/or stop work orders). Our firm is tracking a number of recent stormwater-related developments at the federal, state, and local levels that seem poised to make stormwater compliance an even more rigorous and expensive process in 2010 and beyond.

At the federal level, in December 2009, the U.S. Environmental Protection Agency ("EPA") issued Effluent Limitations Guidelines ("ELGs") for the construction and development point source category. The ELGs, to be phased in over a number of years, require all permittees to implement new erosion and sediment controls and pollution prevention measures at construction sites and also imposes numeric limitations on turbidity for sites that disturb ten or more acres of land at one time. The numeric limitation represents a huge shift in construction stormwater regulation, which until now has been measured qualitatively, not quantitatively. EPA has also announced its intention to develop new regulations by 2012 that address post-construction stormwater discharges from rooftops, parking lots, and roads on newly developed and redeveloped sites and into the nation’s waters. For a more detailed discussion of the ELGs, click here.

At the state level, the Pennsylvania Environmental Quality Board ("EQB") has proposed new stormwater management rules that would, among other things, create mandatory riparian buffers around Exceptional Value surface waters, require that Post-Construction Stormwater Management Plans be submitted with NPDES applications, and dramatically increase application fees. The EQB has also proposed the rescission of Pennsylvania's NPDES permitting, monitoring and compliance regulations, to be replaced by a new chapter that incorporates current federal NPDES program requirements and imposes a new fee structure intended to recoup all of the Pennsylvania Department of Environmental Protection’s costs for running the NPDES program. For a more detailed discussion of the new EQB rules, click here.

At the local level, the Philadelphia Water Department is moving to a new billing scheme for stormwater management services for non-residential property owners, to be based upon a calculation of the property's size and how much of the property is covered by impervious surface. Some property owners in Philadelphia will see their stormwater bills decrease slightly, but others will see their bills increase significantly. The owners facing larger bills may be able to reduce their bills by making physical changes to their property to better manage stormwater.