Contractors and Developers: Prepare yourselves for significant changes in the NPDES CGP and how these changes may soon be enforced by Federal, State and local regulatory agencies. The Chesapeake Bay Watershed (CBW) TMDL and the Effluent Limitation Guidelines (ELG) Final Rule will give regulators more tools to pursue costly permit enforcement against NPDES permit violators. Stormwater CGP holders need to better understand how TMDLs, and now testing for numeric limits (ELG) on turbidity leaving their jobsites, will affect their risk management strategies, construction processes and their bottom line. This is especially true right now for builders or developers working in and around the mid-Atlantic region of the USA, however, the CBW approach is intended as a model regulatory approach for the entire nation and may soon be coming to a jurisdiction near you.

For example, it appears the EPA is preparing to apply significant federal pressure, if required, to States that fail to provide adequate assurances that they are achieving TMDL pollution reductions for nitrogen, phosphates and sediment within the tributaries to the CBW. For instance, to meet TMDL requirements for sediment for the entire CBW, sediment discharge reductions must be achieved per the state-by-state TMDL allocations, even in currently unregulated sectors such as farming. If States, through their individual Watershed Improvement Plans (WIP), can not provide adequate assurances to the EPA that currently un-regulated sources of sediment discharges are being properly reduced, then it appears the EPA has the authority to shift the pollution reduction burden to currently regulated sectors, such as construction, under the NPDES regulations.

Exactly how shifting of the pollution burden to currently regulated industry sectors will occur is not yet known, but will be determined based on the final WIPs that each state must have completed and submitted to the EPA by November 9, 2010. By December 31,2010, the EPA will finalize the CBW TMDL.

Read the EPA’s Executive Summary at the link below to better understand how they expect to enforce the CBW TMDL. This is a new regulatory approach for construction that will add even more uncertainty (risk) to an already confusing regulation for builders and State and local regulators

Executive Summary