On behalf of the Home Builders Association of Virginia (HBAV) please accept these comments on the proposed Department of Conservation and Recreation (DCR) regulation at Part XIV of the Virginia Stormwater Management Program (VSMP) relating to the General Permit for Construction Activities (4VAC50-60-1100 et seq.). HBAV is a 6000 member statewide trade association representing the interests of the home building industry and the businesses that provide products and services to that industry.
HBAV and several of its members participated in the Technical Advisory Committee (TAC) process where many of our concerns were addressed. We appreciate the opportunity to be involved in that process and we are sincerely hopeful that we can maintain a strong working relationship with DCR as we move through this and other regulatory issues. While DCR has been accommodating to our industry on many of the problems that have arisen from the language in the proposed General Permit, there are still a number of issues that HBAV feels need to be addressed prior to the adoption of the final regulation in December.
HBAV appreciates the inclusion of the current language contained in 4VAC50-60-60 in the proposed General Permit. HBAV is aware of the regulatory process addressing the new technical standards and asked that some provision be included in Part XIV to eliminate doubt on which technical standards would be enforced should new criteria be adopted after the adoption of the General Permit, and to vest those approved preliminary plans approved prior to the adoption of the new technical standards. It is our understanding that with the General Permit drafted in this manner, no new technical standards could be enforced or incorporated by reference as that is a separate regulatory matter.
HBAV believes this is a necessary addition, and eliminates substantial confusion. HBAV recommends the Board retain this language in the final version of the General Permit. Furthermore, HBAV understands that upon the adoption of new technical standards for stormwater management, the General Permit will have to be revised yet again.
II. HBAV would prefer an administrative extension for current permit holders over the requirement for re-application in the proposed regulation.
Given the difficult economic times and several of the changes to requirements in the proposed General Permit, HBAV requests the proposed General Permit regulation include a provision that allows for the administrative re-approval for permit holders under the current regulation. On June 30, 2009 all General Permits, by law, will expire and new permits will need to be obtained. Under the current proposed regulation, each permit holder would be required to resubmit their application for permit coverage. The results of this process could be disastrous. There is the potential for many projects to experience lapses in coverage while re-approval is sought.
The application process is time consuming and can be expensive. Additionally, there could be significant down time for any project underway as land disturbance would halt while an application is under review by the department. In these difficult economic times, the simple ability to continue work on a project can be the lynchpin keeping the doors of a company open, and its employees working. Not knowing the number of outstanding permits, and the response time and capabilities of the department, HBAV feels that it is prudent to allow for an administrative extension of current permits to allow previously approved work to continue.
III. The proposed regulation lacks a limitation on time to respond by the permitting authority to the request for permit coverage.
Under current regulation, an operator requesting coverage under the General Permit is assumed to have coverage upon submission of a complete permit application. At the time of submission, including a mailed request, land disturbance can begin. The proposed regulation not only eliminates "administrative efficiency of the General Permit" as was envisioned by Congress in the creation of the General Permit, but also provides no timeframe in which the permitting authority must respond to the request for coverage.
The General Permit was intended by Congress to be an abbreviated process to provide a framework to accommodate the vast number of permits that are necessary under the Clean Water Act (CWA). By providing a structure in the CWA for permittees to operate under with an administrative approval process, Congress sought to prevent delays and the scrutiny that is necessary in the Individual Permit process. By inserting the language at lines 743-744 in the current draft in 4VAC50-60-1130 that reads. "upon issuance of coverage under the general permit by the permit issuing authority," the proposed regulation will eliminate that allowance for an abbreviated review process that is the purpose of the General Permit.
Without the administrative approval that is provided in the current regulation, many projects could be forced to wait for an unspecified period of time when resources have been allocated to the project requesting coverage. This down time creates an uncertainty in construction schedules, and could create problems in the financial viability of projects given the downturn in the economy. For these reasons, HBAV requests the removal of the above quoted language from the draft regulation.
IV. Permit holders should not be required to make Stormwater Pollution Prevention Plans available to the public.
HBAV strongly recommends that paragraphs 4 and 5 of Part B in Section II referring to the public availability of Stormwater Pollution Prevention Plans (SWPPP) be removed. There are a number of practical, economic and legal reasons for eliminating this section with no substantial evidence to the contrary, or that inclusion of this language will provide additional environmental benefit. A SWPPP is a dynamic document that contains a multitude of information, some of which can be proprietary, and a great deal of that information can change on a daily basis.
The SWPPP is also a very technical document whose interpretation and understanding requires someone with specific engineering knowledge. Mandating public availability of this document creates a hardship for a permit holder by requiring the time of either a project manager or engineer to spend valuable time in a public place answering questions about the SWPPP. These professionals are highly skilled and need to be present either on the job site or working in a capacity to provide the professional services that are required of them. As a result, making the SWPPP available creates a financial and logistic burden on the permit holder that will provide no environmental benefit.
While the Clean Water Act (CWA) does encourage public participation, the Act specifically says that only permits and permit applications and documents obtained by the permitting authority shall be publicly available. It does not provide for public availability of internal control documents such as the SWPPP. The SWPPP is reviewed by the permitting authority but is not obtained. It remains in the possession of the permitee at all times. Furthermore, in Texas Independent Producers and Royalty Owners Association v. EPA (hereinafter TIPROA v. EPA) The Seventh Circuit held that SWPPPs are not required to be made public by the CWA because they are neither permits nor permit applications and thus are not subject to Sections 1342(j) and 1342(a)(1) of the CWA. TIPROA v. EPA goes on to uphold an EPA argument stating definitively that "an additional public hearing on each individual… SWPPP would eviscerate the administrative efficiency inherent in the general permitting concept…This would be inconsistent with Congress’ intent to allow for the use of general permits." The Seventh Circuit confirms that SWPPPs are internal documents and not part of the public discourse in the issuance of a General Permit.
Proponents of the public availability language will argue that SWPPP availability is imperative to citizen enforcement of the general permit. This is a fallacy. The SWPPP is not a regulated document. It is an agreed upon internal control document that provides a blueprint to the permit holder on how to comply with the provisions of the General Permit. SWPPP availability does not change a citizen’s ability to monitor compliance with a General Permit. Additionally, the SWPPP is not a vehicle of enforcement. The General Permit is issued to allow discharges of stormwater to the waters of the Commonwealth from construction activities. Therefore, the only interest the public and the Commonwealth have in the runoff discharged, is the quality and quantity of the water at the point of discharge into a public waterway, which is regulated and enforceable by the General Permit alone.
The public availability of SWPPPs is not provided for by the Clean Water Act, in fact it has been demonstrated that the opposite is true. Therefore, there is no legal basis for the inclusion of this language in the General Permit regulation. Requiring the availability not only of the SWPPP, but also of an employee or engineer of the permit holder during business hours at a public place creates a logistical, practical and economic burden on the permit holder that provides no additional environmental benefit. Making the SWPPPs publicly available provides no additional means of redress for citizens. Most citizens are neither qualified to interpret nor examine the practices delineated in the SWPPP. Permit holders restrict access to construction sites for both safety and security reasons eliminating any ability for a member of any citizen to inspect the stormwater management facilities on site.
For these reasons, HBAV asks you to balance the public benefit against the added cost to conducting business and adhere to the guidance of the court in interpreting the intent of the CWA by removing paragraphs 4 and 5 of part B in Section II.
V. The SWPPP does not need to contain information on endangered species.
While HBAV recognizes the importance of the preservation of endangered species in Virginia, we would discourage the Board from including language in the General Permit that would require the identification of all endangered species located on a construction site in the SWPPP. The General Permit’s purpose is to protect the waters of the Commonwealth, and identification of endangered species in internal control documents will not further protect water quality. This is an important issue, but its place is not in a document designed to protect water quality and water quality alone. In Section II, Part A, Paragraph 2 the regulations delineates the purpose of the SWPPP. The two functions outlined are (1) to identify potential sources of pollution that might contaminate stormwater, and (2) to describe control measures that will be used to minimize those pollutants. For these reasons we ask that the Board delete the language at Section II, Part D, Paragraph 6.
We thank the Board and DCR for the opportunity to comment on the VSMP General Permit. We would also remind the Board and DCR any unnecessary addition to a regulation can cost time and money, which will find its way into the price of a new house. At a time when housing affordability has become a significant issue for all Virginians, HBAV feels that the addition of any unwarranted cost could endanger the home building industry and the ability of consumers to achieve the American dream of home ownership.
