The Environmental Protection Agency (EPA) in January settled a longstanding lawsuit that had been brought against its 2009 rule on Effluent Limitation Guidelines (ELGs) by agreeing to withdraw the numeric limit for turbidity in stormwater discharges. 

The lawsuit, filed by the National Association of Homebuilders, the Utility Water Act Group and the Wisconsin Builders Association, pointed out that that EPA’s numeric limit would have cost stakeholders up to $10 billion a year in attempts to comply and that coming up with a number that would work across all geographic areas and soil types would not be possible.

In addition to withdrawing the numeric limit, EPA also agreed to clarify the non-numeric portion of the rule so land developers, permit writers and inspectors better understand what measures are required to help protect the nation’s waterways. Under the settlement agreement, EPA is required to sign a notice of proposed rulemaking amending the original rule by April 15 and to take final action by Feb. 28, 2014.

In addition to the proposed and final rules amending its ELGs, EPA’s regulatory agenda shows the agency plans to issue its proposed rule on post-construction stormwater runoff rule by June 2013, with final action slated for December 2014. However, EPA was the defendant in another significant lawsuit Jan. 3 when a federal court held for the first time that the EPA cannot regulate stormwater as a “pollutant” under the Clean Water Act. 

Under the lawsuit, a U.S. District Court of the Eastern District of Virginia found that “pollutant” is a statutorily defined term that does not include stormwater. The ruling potentially could impact all stormwater rules EPA has released under the Clean Water Act, including its post-construction stormwater runoff rule. ABC will provide additional information as it becomes available.