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Ask the Lawyer — About Storm Water Permits

A: In all but five states and the District of Columbia, the United States Environmental Protection Agency (EPA) has handed over the storm water permit program to the state. You don’t say where you are located, so I will assume you are in one of the “delegated” states.

With respect to the first question, the quick answer is “yes,” you need a storm water permit before you begin work. Pursuant to the Clean Water Act (CWA), and the EPA’s NPDES implementing regulations, any person who disturbs more than one acre of property must obtain a storm water permit. And, if you are disturbing less than one acre, but are part of a larger development that will disturb more than one acre, you also need a permit.

In the delegated states, there are two ways this issue is being handled. In some states, the permitting authority will require you to obtain permit coverage on your own — either by getting an individual permit or applying for coverage under the state’s “general permit.” In situations like yours, the vast majority of builders apply for coverage under the state’s general permit. Usually, this will require you to develop a Storm Water Pollution Prevention Plan (SWPPP) and file a notice of intent that you plan to use the state’s general permit.

In other states, you would need to work within the original developer’s permit. You may need to submit paperwork agreeing to comply with the requirements of the developer’s permit to both the developer and the permitting authority. Your consultant needs to check with your state to determine which approach is appropriate in your state.

If you are in one of the non-delegated states, EPA regulations allow you to use either of the approaches described above.

As for penalties, they are steep. The CWA allows EPA to assess penalties of up to $32,500 per violation per day for unauthorized discharges and violations of permit terms. The penalties are even more severe under the criminal sections of the CWA and may include jail time. Finally, even if your state were to inspect and not assess penalties, EPA can always inspect and assess penalties as it sees fit.

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There is no guarantee that your question will be answered in this format, so if you have a particular legal concern that requires immediate attention, contact the NAHB Legal Research Service at 800-368-5242 ext. 8491.

This information is provided as a service of the NAHB Legal Action Committee and NAHB Building Products Issues Committee. The information is intended to familiarize you with the law in this area. It is not intended to be an exhaustive presentation of legal information on this particular subject, and in no way constitutes an opinion of law. Your own attorney must review this information to determine how it may apply to your particular situation.

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