2017 CGP: Big Wins, But Liability Concerns Remain

bulldozerThe Environmental Protection Agency has issued the 2017 Construction General Permit (CGP) – and it includes provisions for which NAHB and its members have fought long and hard through testimony, letters and rounds of meetings.

The CGP takes effect Feb. 16 and will last for five years. While it’s applicable in only New Mexico, Idaho, Massachusetts and New Hampshire, this permit provides other states with a model for developing their own stormwater management requirements.

Developers and builders must seek CGPs for construction that disturbs more than one acre, or less than one acre when that site is within a larger common plan of development.

Wins for Builders

Thanks to new language, enforcement is much clearer and more reasonable for active construction sites. EPA is signaling a move away from focusing enforcement actions on minor details of onsite Stormwater Pollution Prevention Plans (SWPPPs) to make them a more effective compliance tool. The new permit states, “The SWPPP does not establish the effluent limits that apply to your site’s discharges.”

EPA listened to builders’ concerns and clarified years of confusion. While each SWPPP must still meet minimum criteria and be updated regularly to reflect changing site conditions, EPA’s new permit language can protect builders from frivolous enforcement charges claiming a violation for minor, temporary differences between a builder’s SWPPP and the reality of what’s happening on his or her site.

This provision alone can save the construction industry hundreds of thousands of dollars in permit and legal fees resolving low-level paperwork violations unrelated to actual permit limits.

“We’re pleased that EPA, through this language, is placing priority on actions that directly affect water quality: those violations that clearly violate Clean Water Act permit terms,” said environmental program policy manager Eva Birk. “NAHB is thrilled at this decision to focus on bad actors causing real environmental harm.”

Notable provisions within the latest CGP include:

  • EPA will not require builders to publish SWPPPs publicly online. NAHB members worked with EPA to explain in detail the many costs and risks associated with uploading these large, complex documents without a proper system for screening confidential business information. In response, EPA’s 2017 permit mirrors the 2012 permit: Builders must store a copy of their SWPPP onsite and be prepared to provide SWPPP documentation to EPA for public viewing upon request.
  • EPA dropped plans to require “joint” SWPPPs for builders in the same development. EPA listened to case studies from the New Mexico HBA and others in the Federation who proved that coordinating site compliance documents among multiple firms for months or years would be next to impossible.
  • EPA withdrew confusing additions to its Notice of Intent. Provisions in the form asking builders to identify multiple outfall latitudes and longitudes and requiring builders to report acres of impervious surface were removed from the draft that EPA presented earlier in 2016. NAHB successfully argued that information is more pertinent to large, stationary industrial sites.
  • No changes to inspection timelines, and tighter stabilization timelines for sites when they disturb more than five acres at once. EPA heeded environmental group calls to further restrict stabilization timelines by incentivizing larger sites to phase their operations and disturb only up to five acres at any one time or else adhere to a stricter seven-day (rather than 14-day) stabilization schedule.

Liability Challenges

Still, the new permit is far from perfect: EPA has introduced controversial language that considers all builders on a shared site “jointly and severely liable” for compliance with permit terms, including violations of “shared” treatment ponds and other features.

NAHB filed comments arguing that this type of liability framework is illegal, because operators often work on a site at different times, and cannot legally or physically control the activities of others.

This provision could have devastating effects on small builders in particular: Even the smallest of sites could be at risk for offsite Clean Water Act violations ringing in at more than $50,000 per day. NAHB will work through all possible avenues to challenge this decision, continue to analyze the new permit and report on any developments.

EPA’s 2017 CGP details are here and more detailed NAHB analysis here. For additional information, contact Eva Birk.

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