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Court Upholds Streamlined Storm Water Permit
In a recent decision, the 7th U.S. Circuit Court of Appeals rejected a legal threat to the Construction General Permit, which regulates storm water discharges during the home building process. The permit is viewed by builders as the most efficient available option for complying with strict federal storm water requirements.
"This is a critical victory for home builders because lawsuits like these eat away at housing affordability," said NAHB President David Wilson. "Builders want to protect the environment, but we do not want more layers of regulation that cost time and money to fulfill and do little to protect the environment."
Compliance with existing storm water requirements already adds $1,400-$4,500 to the cost of a residential lot, he said.
The court ruled unanimously that the permit does not violate the Clean Water Act's public notice and hearing requirements. The court also held that the Environmental Protection Agency (EPA), which issues the permit, had complied with Endangered Species Act requirements, and the petitioner’s remaining challenges to the permit were dismissed.
The Construction General Permit is used by builders in five states and serves as a model for the majority of states that regulate storm water discharge. While it is the most streamlined permit available to builders, it still involves lengthy steps to ensure environmental protection, including filing a Notice of Intent, developing and implementing a Storm Water Pollution Prevention Plan, undergoing inspections and submitting a Notice of Termination.
The National Resources Defense Council (NRDC), one of the petitioners, requested public notice of the Notice of Intent and Storm Water Pollution Prevention Plan for each permit. Ruling on the side of the EPA, the court said that this would make the general permit "inconsistent” with congressional intent and "no different” from the more onerous process for obtaining individual permits.
A claim by NRDC that the permit violates a section of the Endangered Species Act was also rejected, in part because the Fish and Wildlife Service, which oversees that law, agreed that issuing the General Permit was not likely to adversely affect threatened and endangered species and their habitats.
EPA defended its permit before the court, and NAHB and several other building industry groups joined that effort.
"While we believe there is still room for improvement in the storm water permitting program, we are relieved that no additional permitting costs will be added to the cost of housing, which is already loaded down with fees," said Wilson.
For more information, e-mail Tom Ward at NAHB, or call him at 800-368-5242 x8230.
 ‘Storm Water Permitting: A Guide for Builders and Developers’ Available at BuilderBooks.com
“Storm Water Permitting: A Guide for Builders and Developers,” available through BuilderBooks.com, provides a starting point for builders and developers to use in locating and understanding storm water permitting requirements. To view or purchase this publication online, click here, or call 800-223-2665.
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