On August 24, 2010, the Seventh Circuit Court of Appeals granted the USEPA Motion for Partial Vacature of the EPA's Effluent Guidelines for Discharges from the Construction and Development Industry.  The rule would have required a turbidity level of 280 ntu (nephelometric turbidity units) for stormwater discharged from certain construction projects.

Appealed by the Wisconsin Builders Association, National Association of Home Builders and Utility Water Act Group, the numeric turbidity limits of the Effluent Limitation Guidelines were remanded, the administrative record remanded, and the case will be held in abeyance until February 15, 2012.  EPA's unopposed Motion for Partial Vacature disclosed that the data underlying the numeric limit was improperly interpreted and the calculations not adequate to support the limit. 

The National Association of Home Builders sought clarification of the Order and it's particular application.  The court issued a Clarifying Order, in which it explained that the numeric limit would remain in place while the record was remanded, but allowing EPA to makes changes to the limit “as it deems appropriate.”

On November 1, 2010, EPA issued a proposed Rule, which would stay the numeric limit until the Agency could recalculate it.  They plan to issue a proposed correction for public comment by May 30, 2011, anticipating an effective date of June 29, 2011.

For the upcoming Construction General Permit (December 2010), EPA plans to incorporate the new C&D rule requirements, while simply referring to the requirements contained in 40 CFR Part 450, without specifically incorporating a numeric limit. EPA plans to have the numeric limit recalculated before the CGP is finalized, at which time they will incorporate the new limit into the permit.

For states facing similar reissuance deadlines for their CGPs, EPA advises either taking the same approach as EPA (issuing the proposed permit without the limit and incorporating the limit prior to finalizing the permit) or considering a shorter permit term in order to incorporate the corrected limit sooner than five years.

EPA Proposed Stay Factsheet.pdf

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