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Citing Flawed Analysis, Feds Send EPA Storm Water Rules Back to the Drawing Board

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Citing Flawed Analysis, Feds Send EPA Storm Water Rules Back to the Drawing Board

August 13, 2010 - In a major victory for affordable housing, sound science and more sensible regulations, the U.S. Environmental Protection Agency has been forced to withdraw a key portion of new storm water management regulations for builders and developers and devise new ones based on better research.

The move is the result of a lawsuit filed by the National Association of Home Builders (NAHB) and petitions filed by both NAHB and the federal Small Business Administration (SBA) Office of Advocacy asking the agency to revise its new Effluent Limitation Guidelines (ELGs) for the construction and development industry.

"After a big rainstorm, it's typical to see some storm water drain from a construction site. In these new regulations, EPA set a numeric limit on the amount of sediment that can cloud the water that both NAHB and SBA claimed was arbitrary and based on flawed analyses," said NAHB Chairman Bob Jones, a home builder and developer in Bloomfield Hills, Mich.

"In addition, NAHB was able to show that trying to achieve these limits would have cost not $953 million – which the agency had estimated – but up to $10 billion annually, hurting small businesses and housing affordability, with little additional environmental benefit: EPA itself admits the ELG would control less than one quarter of one percent of all total sediment runoff," Jones said. "By forcing EPA to take a hard look at the facts and admit its error, NAHB scored a major victory for home builders and home buyers nationwide."

After reading NAHB's brief, the Justice Department asked EPA to defend the numeric limit. EPA was forced to admit several flaws in the final rule and that it had improperly interpreted the data. As a result, the Justice Department filed a motion with the 7th Circuit Court of Appeals asking it to vacate the numeric limit and place a hold on the litigation until February 2012—while EPA goes back and develops a numeric limit that builders can actually comply with.

Published in December 2009, the ELG imposed a nationally applicable—and potentially impossible-to-meet—limit of 280 "turbidity units" on storm water discharges from construction sites disturbing 10 or more acres of land at one time.

While today's ruling removes the numeric limit, the other requirements of the ELG remain in place. EPA is expected to issue interim storm water management guidance for construction site operators as the agency works to refine the rule.

"NAHB supports responsible development and the goals of the Clean Water Act. The association will continue to work with state and federal regulators to keep our waterways clean," Jones said.

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Generally speaking, the NAHB is a group of money hungry scumbags.

While I can't speak for the NAHB, I will say that it is nice to have someone standing up against what seems to be a never ending string of nonsense regulations.

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Generally speaking, the NAHB is a group of money hungry scumbags.

While I can't speak for the NAHB, I will say that it is nice to have someone standing up against what seems to be a never ending string of nonsense regulations.

The NAHB is against anything and all things that cost money. They fought fire alarms, fire sprinklers, stair tread standards, etc, etc. Shoot, just about everything in the IRC was staunchly opposed at one time by these clowns. But danged if they don't load up on the crown molding and granite countertops because they think it'll bring more money.

Their opposition has nothing to do with the righteous fight against nonsense; it is all for the almighty dollar.

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Generally speaking, the NAHB is a group of money hungry scumbags.

While I can't speak for the NAHB, I will say that it is nice to have someone standing up against what seems to be a never ending string of nonsense regulations.

The NAHB is against anything and all things that cost money. They fought fire alarms, fire sprinklers, stair tread standards, etc, etc. Shoot, just about everything in the IRC was staunchly opposed at one time by these clowns. But danged if they don't load up on the crown molding and granite countertops because they think it'll bring more money.

Their opposition has nothing to do with the righteous fight against nonsense; it is all for the almighty dollar.

I would guess that they load up on extras b/c it does bring in more money, not b/c they think it does. If there was no demand, I don't think they would be installing them.

Regardless, to impose 10 billion dollar surcharge on .25% of the sediment pollution contributors is something only a government employee could justify.

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10 billion was the NAHB's number. In my experience, they will greatly inflate numbers. As much as I distrust the gov, I would take the gov's estimates before that provided by the NAHB. To reiterate, from the article:

In addition, NAHB was able to show that trying to achieve these limits would have cost not $953 million – which the agency had estimated – but up to $10 billion annually

I have personally seen NAHB numbers presented as fact that were 8 times higher than reality.

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10 billion was the NAHB's number. In my experience, they will greatly inflate numbers. As much as I distrust the gov, I would take the gov's estimates before that provided by the NAHB. To reiterate, from the article:

In addition, NAHB was able to show that trying to achieve these limits would have cost not $953 million – which the agency had estimated – but up to $10 billion annually

I have personally seen NAHB numbers presented as fact that were 8 times higher than reality.

I am not sure that I have ever seen a any government estimate that has been anywhere near actual cost.

I am trying to think how much the Joint Strike Fighter went over...

Social Security, US mail, estimate to fix the economy...

I guess they could both be guilty. But to split the difference, 5 billion in actual cost is still a nice chunk of change

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No arguements from me there.

I just wouldn't trust the NAHB if they said the sky was blue. And they'd fight that it was actually purple if they thought that a blue sky would cost them money. They aren't a trustworthy bunch at all was my whole point.

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I agree with Captain, BUT, being a stormwater regulator, I don't like the idea of having meet turbidity standards. I much prefer taking an approach of requiring adequate and appropriate erosion and sediment control practices, and then enforcing their maintenance. There are so many things that could influence turbidity measurements, the type of soil present at the site being one of them. I think the ELG approach overly complicates the issue.

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No arguements from me there.

I just wouldn't trust the NAHB if they said the sky was blue. And they'd fight that it was actually purple if they thought that a blue sky would cost them money. They aren't a trustworthy bunch at all was my whole point.

I would guess that any for profit organization in any industry would argue any regulation if they thought that it would cost them money. I am trying to think of a regulation that has put in place that cost a company money that they went along with without a fight.

I would agree though that I don't think I would let some of the developers that I have worked with watch my kid. I would not try to represent that they are the most upstanding group, but I think that these regulations that are coming down are based on questionable data at best.

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How easy is it to measure turbidity in the field? Especially during an active storm.

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How easy is it to measure turbidity in the field? Especially during an active storm.

It is simple. The reason they are using turbidity is it is an easily measured surrogate parameter for tons of other things (TSS, TN, TP etc) You just need a tubidity meter and someone you pay $18/hr to stand in the stream and use it.

That being said, a uniform numeric criteria for turbidity is ridiculous. By that logic the same value would apply for first order streams in Oregon and the Mississippi River in NOLA.

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How much is a meter? around 1-200 bucks?

I'm just curious, I'm not a hydrology person.

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How much is a meter? around 1-200 bucks?

I'm just curious, I'm not a hydrology person.

I saw one in the Ben Meadows catalog for $769. You'd have to buy some accesories to go along with it, but it would be under $1000. I'm sure you could rent one pretty inexpensively. You can also measure approximate turbidity with a $30 Secchi disk.

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^Yeah - around $800 to be up and running. Or the Secchi disk, but a Secchi disk is useless in shallow water (i.e., the overflow from a construction site), as far as I am aware.

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Just another cost tacked on to the price of a home. I just find it incredible that ASCE or some other professional society is not fighting these regulations. While this is the only one that has been caught there are a number of other regulations that are now enforced as law in the PA BMP manual which are based on questionable or an extremely limited number of studies.

It eventually comes down to one guy (typically not a PE) who determines whether you get your permit or not. When that guy has an agenda, you can forget about basing anything off of a site specific restriction or other Engineer's recomendations.

Then they have the nerve to say that I need to stamp it so that liability can be laid on me.

Just not right...

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<--- Public sector voice here. I think that the EPA has WAY overstepped their bounds and needs a little push back. I don't care that there are those who don't like the source of the lawsuit. I'm glad about the results. I just wish that more of this would happen.

I just don't know how we have gotten to this point. Makes me want to get out of this business and go work in the Lowes tool section stocking shelves.

The stuff is just not right.

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Are you complaining about the latest iteration of stormwater regulations? Or just the fact that you have to build responsibly, and use erosion and sediment controls?

While I sort of agree that the turbidity testing requirements are too much, I disagree that construction should be exempt from controls. The almighty dollar is not the only, immediate pursuit in this world. People still need to live in a place long after the engineers and contractors have finished making their money. You ever seen the result of a poorly controlled construction site on a stream, or a pond, or a coral reef? One good storm can trash them, essentially forever. Who the hell wants to buy your houses if they have to live next to the mud puddles and cesspools that you created by being sloppy and greedy???

Maybe you younger guys are spoiled - you grew up in the post-clean water act era. I remember growing up in the 1970s, when our house abutted a beautiful forest in northern Virginia, and us kids were not allowed to play in the stream because the upstream town discharged its primary-treated sewage into it, and even if we could play in it, the whole thing was filled with mud from the construction of our subdivision, and the only thing living in it was algae and tadpoles.

Frankly, looking back at the enormous building boom that occurred in the post-CWA decades, I really fail to see the "economic damage" those rules caused. Sure, we can argue the mechanics of how to go about "measuring effectiveness", but I hardly think we are at the point where you should consider going to work at Lowes instead of being an engineer, or moaning about how things are "just not right" because the construction industry is being required to keep a clean house.

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I agree with Captain, BUT, being a stormwater regulator, I don't like the idea of having meet turbidity standards. I much prefer taking an approach of requiring adequate and appropriate erosion and sediment control practices, and then enforcing their maintenance. There are so many things that could influence turbidity measurements, the type of soil present at the site being one of them. I think the ELG approach overly complicates the issue.

You know Dleg, the approach that you offer makes sense from a lot of perspectives and I tend to agree and support a Best Management Practice (BMP) where responsibility to design and implement responsibly is placed back upon the permitted entity.

Interestingly, this approach leaves room for discretion and the EPA has become less trusting of providing for performance-based criteria in a number of rules that are coming out. I am in the process of review/commenting on several, especially with respect to the solid waste management where EPA is actually taking a step backwards from the last 10-yrs of progress of putting performance-based systems in place because there was encouragement to reach results through innovation rather than fighting over how someone might or could get to a specified point.

My largest frustration when I look at rules pertaining to Clean Water Act or Solid/Hazardous Waste - the non-point source aspect of the problem is rapidly overcoming the benefits that are achievable through managing point sources. I think site-specific methods for employing BMPs is the best way to address the issues rather than holding someone to an arbitrary standard. :2cents:

How easy is it to measure turbidity in the field? Especially during an active storm.

Turbidity is very easy to measure in the field. FWIW - the pricing for surface water devices sound about right but probably only measure turbidity. If you are purchasing multi-meters (e.g. measure multiple parameters) it is going to go up. I just purchased a flow-through cell meter that measures Turbidity, TSS, Dissolved Oxygen, Specific Conductance for $10k. That is for measuring groundwater through a flow through cell but I figured I would give you a little perspective.

JR

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Are you complaining about the latest iteration of stormwater regulations? Or just the fact that you have to build responsibly, and use erosion and sediment controls?

While I sort of agree that the turbidity testing requirements are too much, I disagree that construction should be exempt from controls. The almighty dollar is not the only, immediate pursuit in this world. People still need to live in a place long after the engineers and contractors have finished making their money. You ever seen the result of a poorly controlled construction site on a stream, or a pond, or a coral reef? One good storm can trash them, essentially forever. Who the hell wants to buy your houses if they have to live next to the mud puddles and cesspools that you created by being sloppy and greedy???

Maybe you younger guys are spoiled - you grew up in the post-clean water act era. I remember growing up in the 1970s, when our house abutted a beautiful forest in northern Virginia, and us kids were not allowed to play in the stream because the upstream town discharged its primary-treated sewage into it, and even if we could play in it, the whole thing was filled with mud from the construction of our subdivision, and the only thing living in it was algae and tadpoles.

Frankly, looking back at the enormous building boom that occurred in the post-CWA decades, I really fail to see the "economic damage" those rules caused. Sure, we can argue the mechanics of how to go about "measuring effectiveness", but I hardly think we are at the point where you should consider going to work at Lowes instead of being an engineer, or moaning about how things are "just not right" because the construction industry is being required to keep a clean house.

I have no issue with the regulations. My issue is with the interpretation and the enforcement. Essentially if anyone wants to fight what they think is wrong, it is the little guy going up against the feds. You are then demonized as being against the environment.

For instance…I am currently working on a large subdivision that is half way completed. There are about 70 homes left. We are being asked to provide a number of items including rain gardens, soil amendments, seepage pits, etc…

There are NO erosion and sediment control issues on site. All E&S devices are in and performing adequately. Codes and case law have all said that there should be no measurable change in rate, volume and quality of water from the pre development to post development condition.

But when the pre development condition does not support the environmentalist view of sticking it to the “scum bag” developer, well the environmentalist regulator ignores the “no measurable change…” and enforces a pre development meadow condition.

On a project that is being planned and has not been constructed, I would agree to it, but on something that has been approved and partially constructed, it is just not right.

To compare the post development discharge of a residential development to the discharge of an industrial waste or waste water treatment facility is insane.

Edit

Also, when construction began, an NPDES permit was issued based on the original design.

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You're mixing up a couple of things. The erosion and sediment control plan applies during construction only - same goes for the construction NPDES permit - it's focused only on construction. The rain gardens and other things are post-construction stormwater controls, designed to improve the quality of stormwater runoff from the final, stabilized development. Often through the reduction of runoff. The reason for this is tons of good science (tens of thousands of monitored sites throughout the country) that shows that even residential subdivision runoff can severely degrade natural waters. Pretty severely, sometimes. Fertilizers, pet wastes, etc. It doesn't take much.

Of course, this is all fairly recent stuff and is in the process of being adopted by states and municipalities around the country, so yes, it is possible that your regulator saw a change in the rules part way through your project. Every local or state government is different in how they apply new new rules to existing projects. Your complaint should probably therefore be directed to the State (or city) attorney general, to make sure the environmental regulators are following the appropriate administrative procedures. However, the regulation amendments will usually include a subsection that explicitly lays out how existing projects will be handled, and this probably went through the AGO's review. It's worth a shot if you feel that strongly about it (or have been hit hard financially because of it).

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Dumb question, but don't those rain gardens and detention ponds promote mosquitos? I've always wondered that. leave water around for a few hours here, and a hoard of them is born.

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You're mixing up a couple of things. The erosion and sediment control plan applies during construction only - same goes for the construction NPDES permit - it's focused only on construction. The rain gardens and other things are post-construction stormwater controls, designed to improve the quality of stormwater runoff from the final, stabilized development. Often through the reduction of runoff. The reason for this is tons of good science (tens of thousands of monitored sites throughout the country) that shows that even residential subdivision runoff can severely degrade natural waters. Pretty severely, sometimes. Fertilizers, pet wastes, etc. It doesn't take much.

Of course, this is all fairly recent stuff and is in the process of being adopted by states and municipalities around the country, so yes, it is possible that your regulator saw a change in the rules part way through your project. Every local or state government is different in how they apply new new rules to existing projects. Your complaint should probably therefore be directed to the State (or city) attorney general, to make sure the environmental regulators are following the appropriate administrative procedures. However, the regulation amendments will usually include a subsection that explicitly lays out how existing projects will be handled, and this probably went through the AGO's review. It's worth a shot if you feel that strongly about it (or have been hit hard financially because of it).

In PA the post construction controls are enforced through the issuance of the NPDES permit (which is required for construction). If you don't provide them, you don't get your permit.

Then come the agreements...I don't think that I would ever buy a home that came with giving the government or any other agency a perpetual right to enter in order to inspect that a rain garden was in place and working. It seems like a back door way of taking land from a property owner and I don't think the average Joe truly understands...But it is happenning now.

I completely support clean water and recharging of the groundwater system in order to ensure that future generations will have water to drink, but mandating a taking of land in order to build a new home just doesn't seem right.

Dleg, you wouldn't happen to have a website where I could see some of these studies? They may be helpful when I am doing my water quality calcs.

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Dumb question, but don't those rain gardens and detention ponds promote mosquitos? I've always wondered that. leave water around for a few hours here, and a hoard of them is born.

Depends on the soil conditions.

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^Rain gardens are designed to infiltrate the water within a relatively short period of time, and pond to 6 inches or less, so mosquitoes would not be an issue unless the rain garden was clogged due to, say excessive sedimenation during construction, or really tight soils (clays), like picusld said. Detention ponds, wetlands, ponds, etc. are potential mosquito habitat. But there are some ways around that - mosquito fish and other predators that live in natural waterbodies can keep activity to the same level as a natural pond, for example, as compared to something like a tire pile, where tons of little pools exist without predators, making an ideal mosquito breeding area.

picusld, you can probably google some more complete data, but here is a report on road runoff quality that I used in a recent surface water supply sanitary survey I prepared. It's from the NDPES monitoring database and is based on thousands of sites, so it's pretty good stuff. It breaks out residential areas so you can compare residential area runoff to commercial areas and other land uses. I cut out the table I prepared for my report, which condenses the information into a slightly easier to use format, but it doesn't cover all the land uses that are in the big report (can't upload a Word file, so if you want it in Word, PM me and I will send it to you).

http://rpitt.eng.ua.edu/Publications/Stormwater Characteristics/NSQD EPA.pdf://http://rpitt.eng.ua.edu/Publication...cs/NSQD EPA.pdf://http://rpitt.eng.ua.edu/Publication...cs/NSQD EPA.pdf://http://rpitt.eng.ua.edu/Publication...cs/NSQD EPA.pdf

Highway_runoff.pdf

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