Amanda R. Langenheim

Across the United States, some type of construction project takes place on a daily basis. An entrepreneur may build a new shopping center, a municipality may expand an interstate, or a mountain ski resort may erect a new ski lift. These varied and scattered construction activities have major impacts on water quality. For instance, as stormwater flows over construction sites, it can pick up pollutants such as sediment, trash, pesticides, oil and other chemicals and transport these to a nearby sewer system or directly into a river, lake, or coastal water. As a result, polluted stormwater can harm fish and other wildlife. What is more, high volumes of stormwater runoff can cause substantial stream bank erosion, which not only destroys marine habitats but can also clog waterways and impact aquatic life on multiples levels.

For these reasons, the National Pollutant Discharge Elimination System (NPDES) program requires “construction site operators engaged in clearing, grading, and excavating activities that disturb one acre or more, including a larger common plan of development or sale,” to obtain coverage under the NPDES permit for their stormwater discharges.[1] Specifically, construction site operators must obtain coverage under the Construction General Permit (CGP).[2] To obtain coverage under the CGP, one must submit a notice of intent (NOI) and a stormwater pollution prevention plan (SWPPP).[3] SWPPPs require that the permittee develop a plan based on best management practices (BMPs), specifying how they will limit the discharge of pollutants.[4]

In theory, the regulation of stormwater discharges from construction sites within the United States is a massive enterprise, which only seems to be growing. The Environmental Protection Agency (EPA) website is filled with memoranda, assessments, case studies, and guidance manuals featuring the EPA’s supposed breadth of regulation and knowledge in the construction and development (C&D) industry.[5] The million-dollar question, though, is whether the CGP is actually succeeding in controlling water pollution.

For nearly two decades, the EPA has used CGPs. Since the program’s inception, the CGP has received considerable scrutiny.[6] Urban stormwater runoff—of which construction is the largest discharger—continues to be a major contributor to the nation’s degraded waters.[7] Indeed, developed and developing areas contain some of the most degraded waters in the country.[8] So why, after nearly two decades of issuing the CGP, are the nation’s waters so dirty? The lack of success under the CGP can be attributed to three significant gaps in the administration of the program. First, the CGP has no general requirement for public participation. Second, under the CGP all dischargers are presumed to be in compliance with water quality standards. And third, the lack of numeric effluent limitations and the reliance on best management practices (BMPs) goes against the structure of the Clean Water Act (CWA) itself.

Regarding the first issue, public participation is an invaluable feature of the NPDES permit program, and the CWA rigorously mandates and encourages public participation throughout the NPDES permitting process.[9] Although the CGP itself goes through a public notice and comment process, many public participation issues arise when the permittee applies for a general permit.[10] For example, when the permittee submits a NOI to discharge under the CGP, the permittee’s NOI and self-developed SWPPP are not publicly available.

To the second issue, Section 3.1 of the 2012 CGP states that “[i]n the absence of information demonstrating otherwise, EPA expects that compliance with the conditions in this permit will result in stormwater discharges being controlled as necessary to meet applicable water quality standards.”[11] A presumption of compliance with water quality standards poses a number of implications. Under the CGP, EPA has taken the position that the SWPPP, which the permittee creates and which is solely based on BMPs, constitutes the compliance requirements for the stormwater discharger and thus is essentially analogous to the numeric effluent limits listed for industrial effluents. BMPs are designed to mitigate and prevent both the quantity and quality of stormwater runoff. However, the EPA provides no justification for its conclusion that BMPs will or can ensure compliance with water quality standards.

Finally, the CGP recently attempted to include a numeric effluent limitation for turbidity.[12] However, after a lengthy court battle, EPA issued a final regulation that indefinitely stayed the numeric turbidity limitation.[13] Consequentially, states are no longer required to incorporate the numeric limit into their CGPs. To be effective, the CGP needs to move away from the BMP approach and incorporate some type of numeric effluent limitation.

The challenges of regulating construction site runoff have long been recognized, and the constraints of the CWA’s limited scope make effective federal regulation more difficult. However, controlling stormwater runoff from construction sites can be implemented so federal and state powers are carefully coordinated to provide effective results. Many applicable control mechanisms lie just outside the scope of federal authority. But perhaps with a little enticement—and much needed funding—states can manage construction site runoff and better build the nation’s waters.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] EPA, NPDES General Permit for Discharges from Construction Activities (2012), available at http://water.epa.gov/polwaste/npdes/stormwater/upload/cgp2012_finalpermit.pdf.

[2] Id.

[3] Id.

[4] See id. (requiring the following contents: erosion and sediment control plans, a description of stabilization procedures, and a pollution prevention plan, among other things).

[5] See EPA, NPDES Stormwater Discharges from Construction Activities, http://water.epa.gov/polwaste/npdes/stormwater/Stormwater-Discharges-From-Construction-Activities.cfm (last visited Apr. 14, 2015).

[6] Lisa A. Kirschner, EPA’s Proposed Stormwater General Permit For Construction, 26 Nat. Res. & Env’t 58, 58 (2011).

[7] Comm. on Reducing Stormwater Discharge Contributions to Water Pollution, Nat’l Academies, Urban Stormwater Mgmt. in the U.S. 80 (2009).

[8] Id.

[9] 33 U.S.C. § 1251(e) (2006); see also 40 C.F.R. §§ 25.1–.14 (2006) (EPA regulations requiring public participation in its programs).

[10] See generally EPA, supra note 1 (requiring no public participation in the general permitting process).

[11] Id. at 28.

[12] Final NPDES General Permit For Stormwater Discharges From Construction Activities 77 Fed. Reg. 12286 (Feb. 29, 2012).

[13] Natural Res. Def. Counsel v. EPA, 542 F.3d 1235, 1235 (9th Cir. 2008).