Weeks after announcing a freeze on new or recent regulations, the White House has granted a waiver to the Environmental Protection Agency for the 2017 Construction General Permit (CGP), cementing for now troublesome language that can hold a builder responsible when other builders in the same development violate the law.
The White House took the action to avoid any permit lapse when the 2012 CGP expires today.
Although only immediately applicable in New Mexico, Idaho, Massachusetts and New Hampshire as well as Puerto Rico and the District of Columbia, the EPA CGP serves as a model for most other states when they develop their own stormwater permitting requirements.
Both developers and builders must seek coverage under the CGP for construction that disturbs more than one acre, or less than one acre when the lot is part of a larger development, such as an individual builder working on single lots within a residential subdivision.
On Jan. 27, NAHB sent a letter to the acting heads of EPA and the White House Office of Management and Budget (OMB) requesting that both agencies review the final CGP permit in light of the Trump administration’s presidential directive calling for a regulatory freeze and review of all significant regulations issued at the end of the prior administration.
While the new permit includes provisions that add needed clarity, NAHB was concerned about the inclusion of language that says EPA has the legal enforcement authority to hold any CGP permit holder liable, either jointly or severally responsible, for another builder’s or developer’s failure to comply with the Clean Water Act by allowing stormwater to run off into a “water of the U.S.” NAHB strongly opposed this policy in its initial comments and in later meetings with EPA and OMB.
However, on Feb. 10, NAHB learned the White House had granted a waiver under the presidential memorandum for EPA’s final CGP permit. This waiver clears the way for the CGP to go into effect unchanged and as originally scheduled on Feb. 16.
NAHB has also filed litigation against EPA in the D.C. Circuit Court of Appeals.