H.R. 5558 – The Stormwater Enforcement and Permitting Act of 2006 (SEPA) July 11, 2006
Posted by ieca in Legislative Update.trackback
H.R. 5558 – The Stormwater Enforcement and Permitting Act of 2006 (SEPA), which proposes to amend the Federal Water Pollution Control Act, was introduced in the U.S. House of Representatives on June 8.
We don’t expect much action on this bill any time soon, as it is in the first step in the legislative process. Introduced House bills go first to House committees that consider whether the bill should be presented to the House as a whole. The majority of bills never make it out of committee. This bill has been referred to the Water Resources and Environment Subcommittee of the House Transportation and Infrastructure Committee.
You can read the bill on the Library of Congress Thomas web site at http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.5558.IH: The bill’s sponsor is Rep. John Duncan (R-TN).
The National Association of Home Builders (NAHB) is coming out very strongly in favor of this bill. Read what NAHB has to say.
Just in case this bill does move on, we would like to know your thoughts about it. If IECA should choose to take a position on this bill, that position will be determined in part by the feedback we receive from our members.
So am I right in concluding that the proposed bill does not advocate reducing the legal requirements for homebuilders with regards to the already-established stormwater regulations; but rather, it asks for more latitude when complying with the guidelines. It seems to me that the bill would be a good thing, because if homebuilders had a little more latitude with compliance, then they would be more apt to comply. Am I not fully understanding what the bill is all about? Any clarification would be most appreciated. Thanks, Meg Tully
Any loosening of standards would effectively degrade water quality and injure a multi-million dollar recreation industry in our state. We are already at an estimated 90% non-compliance rate state-wide and it is increased monitoring and techinical assistance, not a loosening of the rules that needs to take place. The rules are good ones and no matter what a developer of any kind tells you, the BMPs are pretty simple really. As one who installs and manages SW programs and plans I argue that the IECA should stand against this loosening of regulation. Let’s buck up world and just get the job done right.
Hey folks – please include your full name and state with any comments. This will help us organize the comments we receive, and also allow us to get back to you if we need clarification. Thanks!
Becky Milot-Bradford, IECA Association Development Director
My interpretation is that the main purpose of this legislation is to lessen the paperwork overlap that can exist between a State agency and an approved local program. It is not my understanding that this legislation is asking for any lessening of the requirements that determine a water quality-degrading violation (i.e. less structural BMP’s on a construction site).
I am not a lawyer, but as I understand it, this bill raises a few troubling issues:
Section 2 essentially gives residential construction site operators one free permit violation. No enforcement action will be allowed until the operator has been given a notice of permit violation and a “reasonable opportunity to correct the identified violation”. Put another way, developers would not be punished for doing no erosion control whatsoever until they are caught. Given that enforcement activities are chronically under funded, this bill would make doing nothing and hoping to fly under the radar a gamble with no downside.
Section 3 eliminates Federal permits for sites discharging to covered MS4s. This makes sense as long as the local MS4 is requiring an erosion and sedimentation control plan.
Also Section 4 suspends the administrator’s authority under section 309 unless he can show that the discharge is an imminent danger, crosses state lines etc. It would be more reasonable to put the burden of proof on the discharger to show that there is not an imminent danger etc. Generally I do think it makes sense to do less on sites with low erosion potential, but basic controls to prevent vehicles from tracking materials around, wind blown erosion etc. need to be in place on all sites even in dry weather. Would this bill ensure that basic ESC plans are followed on sites not discharging to covered MS4?
Section 6 removes the Administrators right to review projects and the public notice and review requirement for residential development. Who will ensure that the effects of construction don’t have detrimental erosion and water quality impacts?
Section 7 defines residential construction too broadly. Is construction of schools, roads, utilities, businesses etc. that serve residential development considered “residential construction activity?”
So, the elimination of duplicative permits in section 3 does make sense in many cases but overall this bill strips too much review and enforcement authority from the administrator and threatens to remove the public from the process entirely. In my opinion it’s likely to lead to a lot of poorly managed sites with no mechanism to hold operators accountable for minimizing the impact of residential development.
Vaikko Allen, CPSWQ
I feel very strongly that IECA should make official comment on this Bill. As an MS4 local jurisidctional member who has worked on State and Local regulations pertaining to erosion control, this bill troubles me deeply.
This bill seems to propose two main things – one to transfer responsibility to local MS4 jurisdicitions and also sets a one or two strikes before enforcement is allowed requirement. These two aims seem pretty contradictory to me. If you plan to pass on responsibility to the MS4 folks, then don’t dictate how we can enforce.
Local MS4 jurisdicitions are extremely limited. One main point – local jurisidcition many times have no legal authority on federal properties for planning and development related regualtions. Therefore if EPA passed on regulatory authority to MS4s, then the federal projects would be virtually unregulated for enforecement of erosion control. We have had one attrocious site locally – a federal cemetary – that dumped almost 4 feet of soil acrodd 20 acres into a local creek. It was the state delegated NPDES construction permitting authority that final got the site to cease and desist.
Why shift regulatory authority to MS4s who have no opportunity to say whether they do or don’t want the responsiblity. Here in Oregon our state department has established “Agent agreements” with local MS4s who are willing to take on the EPA permitting authority for construction sites. Some local jurisdictions have chosen to sign on and receive the permit fees associated with NPDES permits for their staff time, others like the City of Portland have not for staffing, public involvement and political reasons. Why regulate something that would work much better as an optional agreement?
I agree with the interpretation that this bill seeks to lower the enforcement responsiblities for site operators. It seems to imply a get one or two strikes before enforcement is allowed. It also only relies on imminent danger which is a pretty high standard. How does this regulation partner with other related environmental regulations written depending on these construction site permit controls – ESA and Costal Zone?
This bill may appear on the surface to be targeting reduced paperwork, avoiding duplication of efforts, and offering enhanced flexibility. But it is poorly written, has not had any involvement from those they wish to pass the regulations to (the local MS4 juridictions) and is generally very poorly worded.
I would rather see this regulation allow for EPA “agent agreements” like we use here, and then leave to the locals to determine appropriate level of enforcement, since they have much better knowledge of the resources they are trying to protect.
Gene LaManna August 15, 2006
I do not agree with any portion of the bill. Given the poor quality of the nation’s rivers and streams, even34 years after enactment of the Act any reduction of regulations for any segment of the economy does not make sense. Homebuilders have enjoyed unparalled profits over the last 5 years,3 of which years were after March, 2003.To agree to any reduction in regulatory authority is simply submission to a powerful special interest group.It is incongrous for Congress to capitulate to these demands. The Philadelphia Inquirer reported that Toll Bros had a gross profit of $91,000. per home. Emasculation of the Clean Water Act is wrong policy!
When are we as a society going to understand that being reactive in nature has gotten us absolutley no where. The only way we are going to be successful in reducing the negative impacts of developnment on our environment and protecting our resources for our children and grand children is to be proactive. I have personally heard from members of the development community, that unless we as regulators force them to install and maintain proper EC BMP’s, they won’t do it. This attitude is one of the reasons that regulations become more stringent, not less. So, by limiting our ability to apply appropriate levels of enforcement, will only increase the negative impacts to our environment.
In my opinion, there are certain members of the development community, that if they know that they won’t be fined until the second or third offense, they will not voluntarily comply until it gets to that point. By this time, it’s too late! There are a number of habitual offenders that would take advantage of a regulation like this and use it to their advantage. It is much more costly and difficult to control erosion once it is has started, than it is to install and maintain appropriate measures and BMP’s before the erosion process has the chance to occur. The regulations that are currently in place, are there for a reason. If we allow a bill like this to pass, It will only make our jobs more difficult, and require more time to gain compliance, at the expense of the environment.
My primary concern is the NAHB did the jumb on board to support this Bill. I have been with the building industry, both green and ESC for nearly 25 years.
A few years ago when EPA states were the majority, maybe this bill would make some sense, but now, with all the States that are designated, this Bill is dangerous.
I will not break this Bill down, that is something that I will do with the Committee, but I suggest to all of you that live in designated States, please review the fine print.
This gives more power to the States to create standards that meet their fear. It looks, on the surface, as a concession on the part of Big Brother to bring some relief and sanity to the CWA for construction. I suggest, that it doesn’t.
We need to not jump on this band wagon without some disucssion.
I believe that we find a way to slow the process, have real discussion, and review our options. I have been a member of the BIA for over 20 years, and I rarely argue with them, but this NAHB is not based on a realistic understanding of all the states that will be impacted.
When you live in D C it may be easy to throw in the flag because you do that without outside input. This bill looks “good”. I believe it has some very bad “open ends”. Once the indorsement is made, and the analysis is undertaken, we find ourselves in some real uncomfortable positions. I have spent years in politics, passionate about my politics.
I go to the wall for my industry. This is not my discussion of the Bill, it is my immediate discussion of asking you to think before you decide. We need to ask some real serious questions.
How does this impact my jurisdiction? Looks good on the surface, but as a designated State, it has turned over the “governed standards” to the local jurisdiction. Although my State’s regs are equal too or better than EPA, this Bill will allow them to enforce regs that have no check & balance, that do not require sane discussion without the tediuous paperwork to CYA.
And we have input from many who have reviewed the Bill, both from impacted and non-impacted states.
I will submit my eval of the Bill before the 25th. I suggest each of us look at this bill from how it impacts our jurisdictions, and I do want some degree of oversight from EPA for CA. In spite of their weaknesses, they still are a check and balance for our system. We are designated, and we are learning, questioning, developing “regs”, and we need to maintain the check and balance.
If we are to grow, all of us that are “designated”, we need to do it with C&B. Otherwise as an industry we are herding cats.
I will submit a more reasoned response prior to our committee discussion but I send this because I want all of us to step inside the deeper issue.
I inspect approximately 60 to 70 construction sites each month. 80% of the sites I visit are in noncomliance, the violations are from not burying silt fencing to not having the required documents on site. We are making steps now to require that at least one person that has been through our city stormwater certification program be on each construction site and also to pull a city stormwater permit you must also have attended the city stormwater certification program. If the home owner assiciation is having a hard time funding their stormwater requirements, they should budget for that up front in their bidding and selling of each lot. I feel the requirements now are pretty simple to follow and that is to keep your dirt on your property by any means. I believe that the requirements will get more strict in the near future to requiring BMP’s at each outfall before entering the streams and lakes. Danny Carder, Stormwater Coordinator, City of Hot Springs, Arkansas
Athough I think the building industry needs some relief, this Bill is not the answer. It gives too much away. By the second or third “strike” the damage done by lack of controls may be beyond a reasonable fix.
The Bill needs to be cleaned up, tightened up and reasonable for both sides.
After reviewing HB 5558 I have some concerns. As a regulator these amendments appear to weaken the Act. In particular the striking of the word “require” and inserting “request” is a major change. This was done to the enforcement language in the 404 permit. The ACOE now has no enforcement capabilities, they can only request that a site come into compliance. I understand that if the same site is found to be in violation a second time that enforcement actions may be taken, however; after working with the EPA for a number of years, only a small percentage of sites are visited by the EPA and very rarely if ever are sites revisited. It is imperative that the ability to take enforcement action remain in tact.
My second issue of concern pertains to page 5 & 6 lines 11 thru 25
(p.5) 1 thru 6 (p.6) Exempting sites that have MINIMAL POTENTIAL FOR SOIL EROSION. Under this scenario everyone involved in the process could find themselves in a confusing situation that could lead to serious off-site sedimentation violations. Land Development involves the process of cutting and filling and very often the importation of suitable material. This bill does not differentiate between existing soil conditions or altered soil conditions. One scenario could be that a developer uses a county soil map to determine the MINIMAL POTENTIAL FOR SOIL EROSION. These maps only give the reader a glimpse of the first 12″ of soil. Most forested sites have thick unsuitable layers that very often are greater than 12″. As a regulator I can see a developer using the County Soil Map as their defense in believing that their soil types conformed to the MINIMAL POTENTIAL FOR SOIL EROSION loss criteria. In short once soils are disturbed, manipulated and areas are reworked the potential for soil loss changes. I don’t see any provisions in the amendments to this Act that addresses these issues.
Third issue of concern removes jurisdictional authority over inspections in States that issue stormwater discharge permits. The City of Charlotte has been conducting joint inspections with the EPA for a number of years for reasons I will not go into at time. The State of North Carolina issues an NPDES permit and under this proposed bill it appears that our joint EPA initiative would no longer be an enforcement option. Not all States enforce the NPDES permit the same. Some States have aggressive enforcement and review and others the permit is barley enforced. The EPA must have full jurisdiction over all the waters of the United States and should be able to step into States that don’t enforce the permit in the manner that it was intended. The question I have is: Does this amendment remove the EPA’s authority to force compliance in States that don’t pursue enforceme nt actions?
Fort issue pertains to the section requiring “Pamphlets”. Are local governments going to be required to hand these out for every site in the United States for sites one acre or more? Why not require that a web page be set up instead of requiring a pamphlet?
My overall feeling about these amendments is that it appears the Act is being weakened and that more responsibility is being placed on States and local programs and just like people, each State has it’s own way of doing things. Some States are more adamant about water quality than others. I am concerned that if these amendments are passed that it would provide momentum for the development community to start the process of weakening the States permits. After all if the federal government doesn’t find these issues that important than why are the States being so arbitrary and capricious?
I may be way off base and may have read this bill wrong but that’s my two cents.
Steven Gucciardi, CPESC
Senior Erosion Control Coordinator
City of Charlotte, Land Development Div.
600 E. 4th St 14th Fl.
Charlotte, N.C. 28202
704-336-3632 (o)
704-577-5587(m)
704-336-6586 (f)
IECA should take a stand against this proposed regulation. After reading the language, it appears to loosen requirements – in direct contrast to the title. The homebuilders association feels they are currently being targeted unfairly with respect to NPDES regulations, but the sheer amount of development within the last few years across the US prove new residential developments alter large landscape environments radically and permanently.
After living in Alaska for the past 13 years, I will tell you that anything that comes from Congressman Don Young (AK) is suspect. This man is a one-man wrecking crew when it comes to environmental law and regulations. BEWARE!
I hope that IECA takes a stance against this bill. It is too open-ended and I have to agree with all of the concerns expressed in the other postings. The one topic I would like to address is in Section 4 regarding “Minimal Potential for Soil Erosion”. This clause is so loosely written and open to interpretation that it could lead to projects that are highly detrimental.
The Revised Universal Soil Loss Equation is a great tool for looking at the effect of implementing certain practices on specific sites, and is invaluable for comparing different practices. HOWEVER, using the equation to try to prove that a site doesn’t need a permit is so problematic! Some parts of the equation are left to interpretation and require specific standards for identifying soil type, vegetative cover, etc. Also, as Steven Gucciardi pointed out, once disturbed, a soil, and especially the subsoil, will “behave” much differently than is called out in soil surveys.
I think it is a mistake to set a numerical erosivity factor that negates a permit requirement in a nationwide bill . Soil type, cover, concentrated flow and poor PRACTICES increase the potential for erosion. Allowing developers to bypass the permit process based on general numerical values that predict erosion, and are open to interpretation, is unrealistic and could lead to degraded water quality in areas where it is not acceptable.
This bill appears to weaken the regulations by quite a bit. Streamlining the process is a good idea, but there are a few clauses in this bill that make us step back in the fight against environmental degradation, when we should be moving forward.
Any bill that lessens the requirements of residential construction sites to control erosion seems short sighted and will result in an even greater workload for small municipalities with limited staff. Working in one of these smaller communities as part of the Public Works department, one of the four hats I wear is that of Erosion Control Officer. I can say unequivocably that the greatest source of erosion and violation comes from the residential builders in my region of operation. The city policy is the ‘give them a chance’ policy similar to those steps outlined in the proposed bill. It actually invites the builder to ignore erosion control on the site.
As the only staff person assigned to erosion control issues and over 100 active job sites, I often burn half my week chasing after builders and contractors ‘reminding’ them to get their site into compliance and responding to public complaints resulting from site violations. To imagine opening the door for this type of ‘public disrespect’ nationwide makes me cringe.
This bill needs to be seriously re-thought.
I must admit that I did not read the proposed bill but I have read the comments. It has been my experience that many contractors and developers “roll the dice” when it comes to installing erosion controls. Too many times when a fine or penalty is issued, the contractors and developers realize it was cheaper to pay the fine than to properly install the proposed BMPs. In addition, this is in the unlikely case that the permitted land disturbance actually goes into enforcement action. This enforcement approach has proven to be ineffective and often times counterproductive. To give offenders additional strikes before enforcement can be pursued is not in the best interest of the nation’s citizens. I agree that the paperwork is often redundant and could be reduced in many cases. However, I feel that proper implementation of BMPs is more important than changing regulations at this point in time. Most developers and contractors are already spending the money to implement E&S and Stormwater BMPs, it is the incorrect installation or design that should be enforced more effectively. Too many times I have seen silt fence installed as “window dressing” where it is not entrenched at all.
[...] The IECA Government Relations Committee drafted the following position on HR 5558 the Stormwater Enforcement and Permitting Act of 2006. The position has been adopted by our Board of Directors. [...]