WATER POLLUTION: Court rules EPA must set stormwater limits for construction industry (09/19/2008)

WATER POLLUTION: Court rules EPA must set stormwater limits for
construction industry (09/19/2008)


;
Katherine Boyle, Greenwire reporter

A federal appeals court yesterday upheld a lower court decision
requiring U.S. EPA to set standards to control stormwater pollution from
strip malls, subdivisions and other new developments by Dec. 1, 2009.

The 9th U.S. Circuit Court of Appeals sided with the Natural Resources
Defense Council and the Waterkeeper Alliance, ruling EPA must promulgate
effluent limitation guidelines and new source performance standards for
stormwater pollution discharges caused by the construction and
development industry.

The states of Connecticut and New York supported NRDC and the alliance
in the case.

NRDC and the alliance predicted the court's decision would prevent beach
closings, waterborne disease, flooding, fish kills and contamination of
drinking water supplies.

"This decision will go a long way toward protecting America's streams
and rivers from the construction and development industry," said Melanie
Shepherdson, a staff attorney at NRDC. "The court made it very clear
that EPA can't just shirk its responsibilities to rein in pollution from
this industry."

EPA spokesman Nick Butterfield said making sure the nation's coastlines
and watersheds remain vibrant and healthy is a top priority for the
agency. He noted that EPA is currently working on a new clean water
regulation to reduce runoff pollution from construction sites, as the
court ordered.

When EPA appealed the 2006 U.S. District Court for the Central District
of California decision, the agency argued that the annual cost of
proposed effluent standards would be more than half a billion dollars
and would result in job displacement. EPA also noted that existing
permit programs could control 80 percent to 90 percent of sediment
runoff.

Additionally, EPA argued that the definition of "new source" should not
include construction sites.

The National Association of Home Builders intervened in the case on
behalf of EPA. The homebuilders have said a rule placing a numerical
limit on stormwater runoff would pose problems for the construction
industry because it is impossible to predict how much it will rain
during a project.

NRDC and the alliance argued that EPA's failure to promulgate stormwater
standards after listing the construction industry as a point source
violated the Clean Water Act.

EPA originally predicted that a final stormwater rule could come out
this year but now says it will not be released until 2009. The agency is
delaying the rule in order to convene an advisory panel that will
examine the economic impact it could have on small businesses, despite
previously concluding a panel would not be necessary.

EPA said it expects to publish a proposed rule by Dec. 1, 2008, and is
still on track to finalize the rule by Dec. 1, 2009, the court-ordered
deadline (Greenwire
; , Aug. 19).

Click here ; to read the
court's decision.