EPA Proposes Modifications to Stormwater Permits

Filed in Codes and Regulations by on December 18, 2018 0 Comments

The Environmental Protection Agency (EPA) on Dec. 12 proposed changes to the 2017 construction general permit (CGP) for stormwater — a direct response to an NAHB lawsuit challenging several issues in the permit.

The primary issue addressed in the proposed modification is NAHB’s concern with “joint and several liability” language that was added to the 2017 CGP. This language made small builders legally liable for “shared” controls that are the responsibility of another operator, exposing builders to fines of up to $50,000 per day. EPA is proposing to modify this legal liability language, and NAHB’s legal staff is reviewing it.

NAHB also identified other issues in its litigation that the new proposal addresses, including clarifying several requirements related to dust control, erosion of stormwater conveyance channels and handling of building materials. Additionally, EPA proposes to remove examples in the definition of “operator” (or the person who needs to comply with the permit) because they were confusing.

Although EPA’s CGP is only applicable in New Mexico, Idaho, Massachusetts and New Hampshire, as well as Puerto Rico and the District of Columbia, it serves as a model for most other states when they develop their own stormwater permitting requirements. Developers and builders must seek CGPs from EPA or states for construction that disturbs more than one acre, or less than one acre when that site is within a larger common plan of development.

NAHB will be submitting comments on this draft modification to the CGP. Those comments are due by Jan. 28, 2019. For additional information, contact Environmental Policy Program Manager John Kosco or Vice President for Litigation Tom Ward.

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