Jun 22, 2005

Appeals Court Upholds EPA's Storm Water General Permit

The National Association of Home Builders and Wisconsin Builders Association are proclaiming victory after a ruling in a federal appeals court upheld the federal government's method for regulating stormwater discharges from construction sites under the Clean Water Act, according to the Environmental News Service.
The decision of the U.S. Court of Appeals for the 7th Circuit, in Chicago, affects the home building, general construction, mining, and agricultural industries.
The decision in the case of Texas Independent Producers and Royalty Owners Association v. EPA, addresses whether the public has the right to review each individual stormwater management plan created under the U.S. Environmental Protection Agency's Construction General Permit program.
The National Resources Defense Council (NRDC), one of the petitioners, requested that the Notice of Intent and Stormwater Pollution Prevention Plan for each permit be made publicly available.
The EPA defended the Construction General Permit, and the National Association of Home Builders and several other builders’ groups aligned as intervener-defendants.
In a unanimous decision, the court ruled that the Construction General Permit does not violate the Clean Water Act’s requirements for public notice and public hearing.
The court also held that the EPA, which issues the permit, complied with requirements of the Endangered Species Act and dismissed the remaining permit challenges, saying the petitioner lacked standing.
The NRDC’s claim that the permit violates the Endangered Species Act was rejected, in part, because the U.S. Fish and Wildlife Service, which oversees the Endangered Species Act, told the court that “issuance of the General Permit was not likely to adversely affect those species and habitats.”
“This is a critical victory for home builders because lawsuits like these eat away at housing affordability,” said David Wilson, president of the National Association of Home Builders and a custom homebuilder from Ketchum, Idaho. “Builders want to protect the environment, but we do not want more layers of regulation that cost time and money to fulfill and do little to protect the environment.”
Compliance with existing stormwater requirements already adds from $1,400 to $4,500 to the cost of every lot, Wilson said in a recent Environmental News Service article.
“While we believe there is still room for improvement in the stormwater permitting program, we are relieved that no additional permitting costs will be added to the cost of housing, which is already loaded down with fees,” said Wilson.
The Construction General Permit is used by builders in five states and as a model for the majority of states that regulate storm water discharge. The permit outlines a set of provisions construction operators must follow to comply with the requirements of the National Pollutant Discharge Elimination System (NPDES) stormwater regulations. The general permit covers any site one acre and above, including smaller sites that are part of a larger common plan of development or sale.
While it is the most streamlined permitting mechanism available to builders, they must still file a Notice of Intent, develop and implement a Storm Water Pollution Prevention Plan, undergo inspections and submit a Notice of Termination.
"The Seventh Circuit ruling showed that EPA's existing program provides responsible regulatory oversight without undue burden on industry," said R. Timothy McCrum, partner in the law firm of Crowell & Moring, which represented the builders. "Had the court not ruled sensibly, Americans would have almost certainly seen extensive and costly delays in the building of new homes and other important economic development projects."

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