EPA Must Limit Builders’ Water Pollution: U.S. 9th Circuit Court of Appeals upholds a California suit by the Natural Resources Defense Council

The Los Angeles Times- 9/08 By Carol J. Williams, Staff Writer


The Environmental Protection Agency is obliged by the Clean Water Act to protect the nation’s waterways, beaches and drinking water from pollution caused by real estate development and should set standards for limiting construction runoff by the end of next year, a federal appeals court ruled Thursday.

The ruling from the U.S. 9th Circuit Court of Appeals requires the EPA to create consistent federal standards to control water pollution, supplanting a patchwork of state and local protections now in place, said Melanie Shepherdson, a lawyer for the Natural Resources Defense Council, which sued the federal government for shirking its responsibility to protect public waters.

A further appeal is possible, but environmentalists applauded the decision, saying it was likely to spur the EPA to take steps to ensure that development of shopping malls, housing subdivisions and other construction doesn’t lead to beach closures, waterborne diseases, flooding, fish deaths or contaminated drinking water.

The EPA began work nine years ago on setting limits for building-site runoff after conceding that it can carry high levels of nutrients and metals into rivers and streams. But the agency then reversed course, eliminating construction from the list of activities it regulates to protect surface waters for consumption, navigation and recreation.

Congress enacted the Clean Water Act in 1977 “to restore and maintain the chemical, physical and biological integrity of the nation’s waterways.” The law required the EPA to establish goals for eliminating additional pollution by 1985.

In 2004, the Natural Resources Defense Council sued the EPA for failing to set effluent limits for builders. The U.S. District Court for the Central District of California ruled in favor of the environmental group in 2006 and ordered the EPA to establish standards for the construction industry by December 2009.

In upholding the district court ruling, the appeals court noted that there is nothing in the Clean Water Act allowing the EPA to remove a category of polluter from the federal law’s application.

Neither the Justice Department lawyers who represented the EPA nor those for the National Assn. of Homebuilders and the Assn. of General Contractors would say whether they planned to appeal.

“We are reviewing the decision and no determination has been made yet as to our next course of action,” said Justice Department spokesman Andrew Ames.

The EPA, which was represented in the case by the Justice Department, did not return a phone call requesting comment.

Jeffrey Longsworth, attorney for the home builders association, said he hadn’t had the opportunity to review the ruling or to consult with his construction industry clients.