Court Invalidates Construction Storm Water Numeric Effluent Limits

After three years of regulatory wrangling with the State Water Resources Control Board (State Water Board) and after two years of litigation, Judge Lloyd Connelley has handed down a victory for the building industry–tossing out the inappropriate numeric effluent limits that the State Water Board had sought to impose through the statewide Construction Storm Water Permit (Permit).  This victory is substantial in that it emphasizes the need for practical, scientifically-founded regulation of water quality.

From 2007 through 2009, I worked with the California Building Industry Association (CBIA) and others in the regulated community as we sought to affect change of the drafts of the Permit being circulated by the State Water Board.  There were many objections to the Permit raised by the building industry, but the preeminent complaint was that the Permit improperly established statewide, not-to-exceed, end-of-pipe numeric effluent limits (NELs) for turbidity and pH that defied science and were not established pursuant to federal or state law.  (The NELs included in the permit were 500 NTU for turbidity and 6-9 pH for all construction sites considered Risk 3 or high water quality risk sites.)

A lawsuit brought by CBIA and others challenged these NELs and the Court agreed with the building industry that the NELs had not been properly included in the Permit.  Specifically, the Court found that the State Water Board had not supported the NELs through sufficient scientific evidence, namely the data that the State Water Board used was faulty as it: did not address construction storm water, did not identify the best management practices used on the construction sites, was not indicative of California locations, or did not prove that best management practices in place at various sites caused any high levels of pollutants in storm water runoff.

Furthermore, the Court found that because of a lack of supporting data, the State Water Board had not complied with federal law in establishing the NELs.  The Board must identify available technologies, through the gathering of performance data under various site conditions, in order to derive an NEL.  “The Board cannot properly base . . . [an] NEL on theory and inferences drawn from limited or inconclusive studies….”  (Slip Opinion at 16)  And until the performance data is properly assessed, the State Water Board cannot examine the other technical aspects and cost-benefits of the proposed NELs as required by the federal Clean Water Act.  Thus, the Court found both the turbidity and the pH NELs to be invalid and unenforceable.

So What Now…

The Court’s decision prevents the State Water Board from enforcing any alleged violations of the NELs and the Board must revise the permit to remove the NELs.  The State Water Board is free to propose NELs in the future, however, it must do so in accordance with federal and state law.  Only if properly established, would California construction sites be subject to NELs on their storm water runoff.

Numeric action levels (NALs) are included in the Permit and are not-enforceable numbers but require sampling and serve as guideposts to permittees to adjust practices on their sites.  The NALs remain in place after the Court’s ruling and Risk 2 and 3 sites that are subject to NALs must continue to implement their monitoring and reporting programs related to the NALs.  All other aspects of the Construction Storm Water Permit not related to the NELs remain in tact and continue to be required of permittees.

Relationship to EPA’s Withdrawal of Turbidity Number

An interesting parallel between the Court’s decision and recent U.S. EPA action cannot be overlooked.  As was pointed out to the Court in the California construction permit litigation, the U.S. EPA has been struggling to establish national Effluent Limitation Guidelines (ELGs) for construction storm water.  EPA established a numeric ELG on turbidity (of 280 NTU) from construction sites, but had that rule challenged by the building industry and small business trade groups.  In 2010, while the challenge was ongoing, EPA stated it would revise the proposed number.  However, in August of this year, EPA withdrew its numeric ELG altogether declaring that it needed to collect additional data on treatment performance from construction sites.

The Court deciding the fate of the NELs in the Permit recognized and was likely influenced by EPA’s decision to seek additional data before attempting to set a numeric limit for construction storm water.  (See Slip Opinion at 4.)

Influence on Other California Permits

The State Water Board is in the midst of issuing a new general storm water permit for numerous industrial sites statewide.  The State Water Board had previously proposed to include NELs in the permit based upon benchmark (non-enforceable numbers) established by EPA.  However, the State Water Board is in the process of revising the draft industrial permit, and has indicated in testimony before the California State Legislature that it will not be including any new NELs in the permit (aside from those already established by federal law) due to a lack of sufficient data to justify the proposed NELs.

After this loss on the construction storm water permit NELs, it is likely that neither the State Water Board or any of the Regional Water Quality Control Boards will seek to establish any NELs in storm water permits unless they can properly justify them in terms of having sufficient scientific data and through strict adherence to the requirements of federal and state laws governing the establishment of NELs.

In what can be deemed a victory for practical regulation, the U.S. Environmental Protection Agency (EPA) has withdrawn its rule that would have placed a stringent numeric limit on storm water flows from construction sites nationwide. 

In December 2009, EPA adopted a regulation placing a limit of 280 turbidity units on the sediment in storm water flows from construction sites 10 acres and larger—the first time the agency had ever adopted a numeric limit for construction storm water.  This numeric effluent limit was seen by many in the building industry as scientifically unjustified, potentially unachievable in certain instances, and extremely costly. 

The National Association of Home Builders (NAHB) and the Small Business Administration, among others, filed legal challenges to the numeric limit.  The challenges centered upon the flawed science that EPA used to support its rule as well as the extreme cost of implementation—claimed by NAHB to be up to $10 billion annually, a cost that could significantly hurt small businesses and affordable housing. 

On August 13, 2010, EPA filed papers with the 7th Circuit Court of Appeals asking the Court to vacate the numeric limit and place the lawsuit on hold while EPA proposes a revised rule.  EPA admitted that it had improperly interpreted the data underlying the numeric limit, and thus, would seek additional public comment and data and revise its rule in light of new comments, new data, and with proper interpretation of the data.    

While the numeric limit in EPA’s construction storm water regulations would be placed on hold, other non-numeric aspects of EPA’s rules will remain in effect—regulations specifying minimum best management practices and other similar requirements. 

In California, a lawsuit filed by the California Building Industry Association is challenging a similar type of numeric storm water effluent limit.  That limit is contained in the statewide general construction storm water permit adopted in September 2009 by the State Water Resources Control Board.  Although the two numeric limits are different (280 turbidity units for all sites 10 acres or larger for EPA and 500 turbidity units for all “risk three” sites in California), EPA’s decision to go back to the drawing board on its numeric limit could have an effect on the lawsuit pending in California.  Briefs have not yet been filed in the California case.