The National Association of Home Builders, the Utility Water Act Group, the Wisconsin Builders Association and the Environmental Protection Agency have reached a settlement in the industry groups' long-running lawsuit over the agency's 2009 rules to control the discharge of pollutants from construction sites. The agreement should allow contractors to breathe a collective sigh of relief, construction officials say.

In December 2009, under court order, the agency finalized effluent limitation guidelines (ELGs) for the construction and development industry to establish the minimum technology required to control the impact of stormwater runoff. EPA established both numeric limits and best management practices, such as silt fences, for certain active construction sites.

NAHB, UWAG and the Wisconsin builders challenged the rule shortly after it was issued. Under the parties' settlement agreement, EPA has agreed to sign a notice of proposed rulemaking to amend the rule by April 15 and agreed to take final action on the proposed rule by Feb. 28, 2014.

EPA also will revise its construction general permit (CGP) under the National Pollutant Discharge Elimination System (NPDES) stormwater program. EPA finalized the most recent CGP in February 2012 and included the 2009 ELG rule as a critical component. The ELG rule included a numeric turbidity limit of 280 nephelometric turbidity units (NTUs) for sites that disturbed 20 or more acres of land at one time. According to NAHB's lawsuit, that limit would have cost contractors up to $10 billion a year in compliance costs. NAHB further argued that it would be impossible to name any numeric limit that would work across all geographic areas of the country.

In the settlement agreement, EPA agreed to withdraw the numeric limit as well as clarify some of the rule's non-numeric sections so that permit writers and inspectors better understand what measures are required to help protect the nation's waters. The way the rule is currently written, says Tom Ward, vice president of legal advocacy of NAHB, "some of the language could be interpreted to give EPA authority over activities on a construction site that don't necessarily cause a discharge of pollutants."

NAHB and other groups will work with EPA to make sure the language is clarified to ensure EPA's authority "is restricted to controlling the discharge of pollutants," he says.

Although the settlement is a victory for the construction industry, it creates uncertainty—at least for the short term—for contractors working with permitting officials and inspectors at the state level, says Leah Pilconis, senior environmental adviser to the Associated General Contractors of America. "Although we're very pleased with where things are going … we do have concerns that [these] intertwined developments are going to confuse the states." Since the federal CGP serves as a model for state permits in a handful of states, Pilconis says, contractors will need to be vigilant about educating state officials that the numeric limit has been withdrawn from the ELG rule and that a new rule will be proposed in April. "The regulators, when they are out in the field, take this language so literally … and the penalties for non-compliance are so severe … that it's very important that we get [the language] right," Pilconis observes.

AGC was instrumental in ensuring the numeric limit was not included in the federal CGP. However, much of the other ELG language was included.

Pilconis says EPA is expected to update the CGP to incorporate the revised ELG language by February 2014.