December 23, 2008
Mr. David Dowling
Policy, Planning and Budget Director
Department of Conservation and Recreation
Dear Dave:
At the outset, the Virginia Chamber of Commerce would like to acknowledge the work that has gone into this proposal on the part of the DCR staff, those who served on the Technical Advisory Committee (TAC) and other stakeholders. We recognize the importance of this regulatory action to renew this permit that will expire in the middle of 2009. Without a general permit, every land disturber would be reduced to obtaining individual coverage, a process that would be a fiscal and logistical nightmare for the business community and DCR.
We recognize those most directly involved in obtaining coverage – e.g. builders, developers and engineers – have several concerns about various provisions, including grandfathering, coverage for multiple builders and the commencement of coverage upon application. Given their field expertise, we urge you to follow their counsel on these issues, and we will not attempt to run through each of their concerns on those issues. Instead, we want to focus on two items that most concern us: the required public availability of Stormwater Pollution Prevention Plans (SWPPP’s), which appears on lines 1241-1245 of the proposal, and the requirement for inclusion of endangered species information on the SWPPP, which appears on lines 1565-1571 of the proposal.
Both of the issues we raise, the public availability of SWPPP’s and the unnecessary inclusion of language referencing the endangered species, give rise to an important point: this general permit should be consistent with other NPDES permits issued under the Clean Water Act (CWA). In other permits, there is no public availability of the SWPPP, and there is no reference to endangered species requirements. Regulatory programs that cover the same area should be consistent; unfortunately, such is not the case with this proposal.
In addition to the overarching issue of consistency, there are additional reasons you should not require public SWPPP availability or include endangered species language in the general permit regulations.
The SWPPP is not a public document; it is an internal control document that is used as a guide for operators to help ensure compliance with stormwater regulations, and as such, businesses should not be required to provide it to the general public. An operator should only be required to provide SWPPP access to the appropriate governmental agency – in this case, DCR – expressly charged with enforcement of the permit.
To help illustrate this point, it might be appropriate to share a parallel example. In this instance, public SWPPP availability would be akin to public availability and inspection of the documents individuals present to prove legal presence and obtain a driver’s license or the academic transcripts presented as part of an application for a professional license.
One of the reasons put forth to justify public availability of the SWPPP has been the desire of some in the general public to verify stormwater compliance. The truth is that in order to do that, the person viewing the SWPPP would also likely need access to the job site, something that is highly unlikely given the legal liability such access would entail for the owner of the site. Moreover, DCR is the agency charged with enforcement of the permit. Thus, the public – through DCR, a public agency – is already empowered to ensure compliance.
Another reason argued in favor of public availability has been that it is required under the Clean Water Act (CWA). This is not actually the case. The CWA states that applications, permits and documents obtained by the permitting authority are required to be available to the public. A SWPPP is none of these. It is not an application, nor is it a permit. It is reviewed by DCR, but it is never in DCR’s control. Thus, it is not one of the documents required to be made public by the CWA, an interpretation confirmed by the Seventh District Court of Appeals in Texas Independent Producers and Royalty Owners Association v. EPA, which held that because the SWPPP is not an application or permit, its public availability is not required under the CWA. Moreover, the fact that public SWPPP availability is not mandated under other NPDES permits in
Regarding language that mandates inclusion of information about endangered species, every other item that is required in the SWPPP is related in some direct fashion to stormwater management, but endangered species information is not. While it is an important consideration, its inclusion here is not germane to the purpose of the permit, and accordingly, it should not be addressed in a stormwater general permit.
On behalf of the Virginia Chamber, thank you for the opportunity to provide comments on this proposal. While we want to see this permit go forward, we urge you strike the requirement for public availability of SWPPPs and the inclusion of information on endangered species, and we further urge you to address the concerns that others in the business community may raise with regard to issues including but not limited to grandfathering, coverage for multiple builders and the commencement of coverage upon application.
With kind regards, I am
Sincerely,
Tyler Craddock
Director of Government Affairs
