EPA Announces Plans To Regulate Post-Construction Stormwater Runoff, Requests Comment on Draft Industry Survey to Inform Rulemaking
The U.S. Environmental Protection Agency (EPA) has announced that it will propose and take final action by Nov. 2012 on a first-time national rule that would restrict stormwater discharges from newly developed and redeveloped sites. Currently, EPA is requesting the construction industry's feedback on a draft questionnaire that will inform and guide the new stormwater runoff rulemaking. The final industry questionnaire would require certain general contractors to provide detailed technical information for up to 10 projects completed in 2009 - including project type/size, stormwater management controls and associated costs, discharge permit forms - as well as company-wide financial information spanning the last five years.
EPA plans to propose a regulation to strengthen the national stormwater permit program, including, at a minimum, new design or performance standards to control stormwater discharges from developed sites under the authority of section 402(p) of the Clean Water Act. EPA plans to collect the information needed to support this rulemaking by distributing mandatory questionnaires to a "statistical sample" of commercial contractors and other entities that likely will be impacted by any new post-construction stormwater runoff requirements.
In an Oct. 30 Federal Register notice, EPA explains that it is soliciting public comment on its draft questionnaires, and will make any necessary amendments to the forms, prior to submitting a proposed "Information Collection Request" to the White House Office of Management and Budget (OMB). The Paperwork Reduction Act (PRA) of 1995 requires that federal agencies prepare ICRs to explain and justify any activity that involves collecting information from 10 or more non-federal respondents. The PRA also requires that federal agencies submit ICRs to OMB for approval and make them available to the public for comment.
What Does This Mean For AGC Members?
Upon receiving approval from OMB (which EPA estimates to be in April 2010), the Agency plans to send the questionnaire to approximately 1,000 construction and development establishments across the United States via Federal Express (or comparable carrier) to ensure a point of contact signs for and receives the questionnaire package. Establishments that receive this questionnaire will be required by law (under the authority of section 308 of the Clean Water Act) to complete and return the forms to EPA within 60 days; late filings or failure to follow any related EPA instructions could result in civil or criminal enforcement and penalties. EPA estimates that it will take each recipient approximately 53 hours to complete the questionnaire.
According to EPA, it will use the technical, financial and environmental data collected from the questionnaires to identify appropriate options to "strengthen national stormwater regulations and to establish a comprehensive program to reduce stormwater discharges from newly developed and redeveloped sites." Information supplied on the forms will allow EPA to estimate the economic impacts of any new requirements on both the entities responsible for installing stormwater controls and those responsible for maintaining the controls and enforcing the standards.
What Does the Questionnaire Require of Industry?
In its current form, the 61-page "industry questionnaire" would identify the respondent and collect financial and technical information. Specifically, the questionnaire would request information from firms' balance sheets (assets, liabilities, net worth), income statements (revenue, expenses and profit) and cash flow statements for a five-year period covering FY2005 to FY2009. It would also request information on firms' project-level stormwater management practices for up to 10 construction jobs completed during FY2009, including design, installation and maintenance costs of such practices. The draft questionnaire is online at http://www.epa.gov/npdes/pubs/ind_questionnaire.pdf.
Respondents have the right to claim certain financial information (required by the questionnaire) confidential business information (CBI). This is valuable protection for companies targeted by private organizations that seek to delay, halt or frustrate construction activities. If no business confidentiality claim is made, however, EPA may make the information publicly available.
How Can AGC Members Comment on the Questionnaire?
EPA is providing the construction industry with an opportunity to comment on its proposed information collection request (ICR) in an effort to reduce the paperwork and associated burden on companies that ultimately receive the mandatory questionnaire, in accordance with the Paperwork Reduction Act of 1995. EPA is not requesting completion of the survey at this time; but is soliciting feedback by Dec. 29, 2009, on issues such as:
- Can the requested data be provided in the desired format?
- Is the reporting burden (time and financial resources) reasonable? (The annual public reporting and recordkeeping burden for this collection of information is estimated to average 53 hours per response.)
- Are the collection instruments clearly understood?
- Does EPA properly assess the impact of collection requirements on respondents?
EPA's Web site at http://www.epa.gov/npdes/stormwater/rulemaking links to the Federal Register notice, the ICR fact sheet, the ICR support statement and the draft questionnaires (click on the "Industry Questionnaire"). AGC is reviewing these materials and plans to submit comments.
Please provide firstname.lastname@example.org (Leah Pilconis, senior environmental advisor to AGC) with your feedback on the Industry Questionnaire by Dec. 14, 2009, so that AGC may compile, prepare and submit comments to EPA in advance of the Dec. 29 deadline.
Why Has EPA Committed to Regulating Post-Construction Runoff?
According to EPA, the Agency is gearing up to revise the National Pollutant Discharge Elimination System (NPDES) regulations to respond to a 2008 National Research Council (NRC) report that calls for "radical changes" to EPA's stormwater control program. The report, Urban Stormwater Management in the United States, says the lack of requirement for post-construction stormwater controls in the construction industry's general permit is a "glaring shortcoming." Also of note is the fact that environmentalists continue to argue for post-construction requirements in the pending effluent limitation guideline (ELG) rule for construction, due out by this Dec. 1. Based on the Agency's proposal, the ELG will address only active construction stormwater discharges. Environmental groups have vowed to sue EPA to force post-construction stormwater discharge limits as a way to control runoff after construction is complete.
In related news, EPA is reportedly close to publishing guidance for the federal agencies on how to meet strict stormwater requirements for controlling post-construction runoff from federal facilities. The guidance is aimed at helping the federal government adopt a consistent approach to meeting stormwater control requirements detailed in the 2007 Energy Independence and Security Act (EISA). Section 438 of EISA encourages federal agencies to use green infrastructure technologies, such as wetlands, green roofs and permeable pavements, to limit stormwater runoff. The section mandates that new or modified federal facilities that exceed 5,000 square feet "shall use site planning, design, construction and maintenance strategies for the property to maintain or restore, to the maximum extent technically feasible, the pre-development hydrology of the property with regard to the temperature, rate, volume and duration of flow" [emphasis added]. Apparently, the idea is to mimic pre-development site conditions when designing the stormwater runoff control measures for a project so that runoff is not increased.
Sources say EPA plans to provide flexibility for some areas, like military bases, where it might be difficult to restore the pre-development hydrology of a property.
But it is not clear how the guidance will be enforced as EISA does not prescribe that authority to any entity. In addition, President Obama's Oct. 5 Executive Order on federal agencies' sustainability was silent on the issue; however, the order does set a 60-day deadline for EPA to complete the guidance (see page 11). Sen. Ben Cardin (D-MD), chair of the Senate water subcommittee, championed legislation requiring the guidance. Sen. Cardin also argued alongside environmentalists that the administration mandate the guidance's use in the executive order on federal agencies' sustainability.
It appears that post-construction stormwater limits may be the way of the future for all construction if the activists have their way by first forcing the federal government to do it and then, assuming it is technically and economically feasible, forcing everyone to do it.
For additional information, contact Leah Pilconis at email@example.com or (703) 837-5332.
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