Update on November 2012 Stormwater Rulemaking to Control Post-Construction Runoff
AGC remains actively engaged in the U.S. Environmental Protection Agency's (EPA) effort to promulgate new standards to restrict stormwater discharges from newly developed and redeveloped construction sites (i.e., post-construction discharges) by November 2012. EPA recently sent out mandatory questionnaires to obtain data and other information on construction stormwater management practices to support the new stormwater rules. EPA also selected small entity representatives (SERs) who will provide advice and recommendations to federal government employees on ways for EPA to minimize the impacts of any new post-construction stormwater runoff requirements. Finally, EPA published a notice in the Oct. 8 Federal Register announcing it will hold public listening sessions to obtain input on the "Chesapeake Bay-specific provisions" of the November 2012 rulemaking. Following is more detail on all of these actions, including AGC's efforts to protect the business of construction.
EPA's current focus is to develop new federal stormwater rules that would require an already-developed property to mimic the same stormwater runoff conditions as existed on the site before it was developed. The exact details of how to accomplish this are still unfolding.
During the last half of September, EPA mailed out letters to approximately 3,000 companies believed to be owners/developers of residential, non-residential, industrial and commercial properties (View EPA's list of "Owner/Developer Questionnaire Recipients.") The letters direct the recipients to complete and return within 60 days a questionnaire - called an "Information Collection Request" (ICR) - to provide EPA with an "accurate and representative picture of current building and real estate improvement projects and associated long term (post construction) stormwater controls." Responses will be used by EPA to provide the basis for new stormwater regulations, expected to be finalized by November 2012. Copies of the long-version and short-version questionnaires are available on EPA's website at http://cfpub.epa.gov/npdes/stormwater/rulemaking.cfm#information.
While EPA claims to have not directed this survey to general contractors, many AGC members have received it. If you have received a survey, it is imperative that you complete and return it (your letter will direct you to the appropriate version) before the 60-day deadline to avoid steep penalties. EPA generated its list of recipients from a search of the Dunn & Bradstreet database, with some additional targeted businesses added to the "random" D&B list. If you would like more information on EPA's target list or the "Owner/Operator" survey, please email firstname.lastname@example.org. Also see the related article in this issue of the Observer.
In response to a formal comment letter submitted by AGC (regarding earlier versions of the survey), EPA significantly revised its mandatory questionnaire and EPA correctly determined that general contractors should not be the target of information collection requests associated with post-construction issues. Although some general contractors have received the questionnaire, most general contractor recipients now need only to complete the first page. AGC's work is sure to save the industry both time and money, as many members estimated that it would have taken a construction firm between 120 to 150 hours to complete the full EPA survey.
Stakeholder Input on Proposed Rulemaking
As previously reported by AGC, EPA sought nominations for Small Entity Representatives (SER) to advise the Small Business Advocacy Review Panel for the November 2012 rulemaking. After a lengthy and comprehensive vetting process, EPA has selected the Federal Stormwater Association (FSWA) to represent the interests of small-business contractors during the upcoming rule review process. AGC is an active member of FSWA, which is focused on engaging EPA in discussions involving implementation of, and revisions to, the national stormwater program. FSWA is headed up by Washington, D.C., attorney Jeffrey Longsworth of Barnes & Thornburg, with whom AGC has worked on many stormwater-related matters. Mr. Longsworth has served as outside counsel to AGC of America and has participated in five previous Panel processes in prior EPA rulemakings.
In serving as a SER, FSWA will provide advice and recommendations to the Panel on ways the EPA may consider developing regulatory options that minimize impacts on small entities like construction companies, while still meeting statutory obligations under the Clean Water Act. As a point of clarification, Panel members are federal government employees from the Environmental Protection Agency, the Small Business Administration, and the Office of Management and Budget. The Panel consults with SERs in order to inform the development of recommendations for EPA's Administrator.
This is a significant opportunity for AGC to remain on the "front lines" of this rulemaking. AGC will distribute information and seek feedback from AGC's Environmental Network once it receives additional information. Tentatively, the first SER meeting is scheduled for November 3, 2010, with a more substantive exchange with SBA and OMB on December 7, 2010.
Chesapeake Bay Stormwater Listening Sessions
Finally, EPA announced it will hold public listening sessions to obtain input on the Chesapeake Bay-specific provisions of the November 2012 rulemaking. EPA seeks input on whether to expand the national November 2012 rulemaking to address specific concerns within the Chesapeake Bay watershed. At each stormwater listening session, EPA will summarize potential provisions of the stormwater rulemaking with respect to the Chesapeake Bay watershed and members of the public will be able to make three-minute statements to EPA. Any Chesapeake Bay-specific requirements included in the post-construction rule would be imposed on the regulated industry IN ADDITION to the Bay TMDL requirements. See related article in this issue of the Observer.
The listening sessions should be of interest to property owners and contractors both within and outside the Chesapeake Bay watershed. The listening sessions are scheduled as follows:
- October 26 in Baltimore, Md.
- October 28 in Cambridge, Md.
- November 4 in Washington, D.C.
- November 9 in Richmond, Va.
- November 17 in Harrisburg, Pa.
EPA requests that you register for these listening sessions at least two days before each session begins at http://www.epa.gov/npdes/training. EPA will also hold a "virtual" listening session webcast on November 16, 2010, 1 p.m. to 4 p.m. EST. Information on how to register for the webcast will be posted on EPA's website soon. Additional information is available at http://www.epa.gov/npdes/stormwater/rulemaking.
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