The 2017 EPA Construction General Permit
On Jan. 11, EPA issued the 2017 Construction General Permit (CGP). The 2017 CGP takes effect on midnight Feb. 16 and will stay active for five years.
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 under the federal Clean Water Act.
Both developers and builders must seek coverage under the CGP for construction that disturbs more than one acre, or less than one acre within a larger common plan of development, such as an individual builder constructing a home on a single building lots within a residential subdivision.)
NAHB Seeks White House Review
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.
NAHB called for review due to EPA’s controversial permit language implying that the agency 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. NAHB strongly opposed this policy while urging EPA and OMB to ensure that no lapse in CGP permit coverage occurred during their review.
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. While this action avoids any permit lapse, it allows the controversial enforcement liability language to remain.
For that reason, NAHB had also filed litigation against EPA in the D.C. Circuit Court of Appeals.
Despite NAHB’s concerns about the enforcement liability language, there remain important victories compared to EPA’s draft proposal. The summary below describes those changes to the final CGP permit.
NAHB submitted detailed comments on EPA’s 2017 draft CGP on May 26, 2016.
HBAs from four states testified directly to EPA about their concerns. NAHB received over 30 comments from individual members and worked closely with EPA to communicate a more detailed industry response to this proposal. NAHB Land Development and Environmental Issues Committee members met to discuss problems in detail and propose solutions.
NAHB also met with OMB to represent construction industry concerns. This conversation focused on potential costs of new expanded liability provisions under this permit (see below).
Good News – Wins for Builders
- EPA acknowledged, for the first time, that individual details of a stormwater pollution prevention plan (SWPPP) are not directly enforceable. Thanks to new clarifying language, Section 7 of the CGP emphasizes that SWPPPs are intended to serve as a flexible “external tool” to carry out permit responsibilities and that the SWPPP itself does not create new permit terms or conditions or, “establish the effluent limits that apply to your site’s discharges. NAHB is very satisfied that EPA listened to builders’ concerns, clarifying years of confusion in the field over whether individual specifications in a SWPPP create or equate to permit limits. SWPPP documents must still meet minimum criteria and be updated regularly to reflect changing site conditions.
- EPA will not require builders to publish SWPPPs publicly online. NAHB members explained in detail the many costs and risks associated with uploading large, complex documents containing detailed site data without a proper system for screening confidential business information. In response, the new CGP retains the public transparency provisions of the 2012 permit: Builders must store a copy of their SWPPP onsite and be prepared to pass on to EPA for public inspection upon request.
- EPA dropped plans to require “joint” SWPPPs for builders within the same common plan of development. Again, EPA was reasonable on this issue, listening to case studies presented from the New Mexico HBA and other NAHB affiliates who showed how coordinating site compliance documents among multiple firms for months, even years, would be next to impossible.
- EPA withdrew new confusing additions to the Notice of Intent (NOI) compliance form. Additions asking builders to identify multiple outfall latitudes and longitudes as well as acres of impervious surface were removed.
Major Changes to Liability for Sites with Multiple Operators
Expanded liability provision poses problems for builders on sites with multiple operators. Despite protest from NAHB and other industry groups, EPA introduced controversial language in the 2017 CGP that considers all builders on shared sites “jointly and severely liable” for compliance with permit terms, including failures of “shared” treatment ponds and other features receiving flow from multiple properties.
Before initiating litigation in February, NAHB had filed comments arguing this type of liability framework is illegal, because operators often work on a site at different times, and cannot control the activities of others. This provision could have devastating effects for single-family home builders in particular, because even the smallest of sites could be at risk for neighboring Clean Water Act violations ringing in at over $50,000 per day, regardless of whether the operator is in compliance with all permit terms within their property limits.
Operators must post a sign or notice informing the public on how to contact EPA to obtain a copy of the SWPPP, and how to contact EPA if stormwater pollution is observed.
- There are tighter stabilization timelines for sites that disturb more than five acres at once. EPA heeded calls by environmental groups to further restrict timelines by incentivizing larger sites to phase their operations. Those sites disturbing more than five acres at once must adhere to a stricter 7-day (rather than 14-day) stabilization schedule.
- Operators still have the option to either conduct a site inspection once every seven calendar days or once every 14 days and within 24 hours of the occurrence of a storm event of 0.25 inches or greater. New is a provision requiring those operators choosing the 14-day timeline to inspect after occurrence of runoff from snowmelt “sufficient to cause a discharge.”
- There is now a prohibition against non-stormwater discharges of external building washdown waters containing hazardous substances, such as paint or caulk containing polychlorinated biphenyls (PCBs).
- There are requirements for cover or “other appropriate temporary stabilization” for all inactive piles that will be unused for 14 or more days.
- Waste container lids must be be closed at the end of the business day. For those containers that do not have lids, operators must provide cover or “similarly effective means” to minimize discharge of pollutants.
- For sites discharging to PCB-impaired waters, operators must minimize the exposure of any building materials containing PCBs to precipitation and stormwater.
Getting Ready to Move from eNOI to Net-CGP System
If you are an operator of a site with 2012 CGP coverage where construction activities commenced prior to Feb. 16, 2017, you are required to submit a new NOI for coverage under the 2017 CGP using NeT-CGP by May 17, 2017. You are not required to submit an NOT (notice of termination) under the 2012 CGP. For more information and training materials, go to EPA’s website.
NAHB will continue to analyze the new permit and report on any developments.
NAHB Request for Freeze and Review of EPA’s CGP
NAHB Final Comments: EPA’s Proposed 2017 CGP
EPA’s 2017 Construction General Permit and Related Documents
Download this page as a Fact Sheet.