Storm Water Compliance Catch-22
Confused about storm water permit regulations? If you are a builder in one of the states listed at right, you have good reason to be. 

Monday, March 10, was the deadline for the Environmental Protection Agency and states to have federal Storm Water Phase II regulations available for projects disturbing one to five acres. However, 20 states and the District of Columbia are still without permits.

To ensure that they are in compliance, members in those states who have ongoing construction projects or are beginning projects that meet the one acre threshold are advised by NAHB to contact their storm water permitting authority and request coverage under the Storm Water Phase I permit. NAHB has developed a sample letter for members to send to their permitting authorities.

Developers in states that do not have a Phase II permit in place should take steps to avoid potential liabiity associated with discharging without a storm water permit. Liability can be offset by writing a letter to the permitting authority seeking coverage under the Storm Water Phase I permit. That usually involves filing a Notice of Intent and preparing a Storm Water Pollution Prevention Plan before any land is disturbed.

Neither EPA nor a state can bring enforcement actions against a construction site operator of a small construction site (between one and five acres) for not having a permit where one is not available. However, a third party could claim that a construction site operator is discharging storm water without a permit if they do not seek coverage under whatever construction general permit is available. NAHB staff spoke with EPA personnel and the states listed above regarding this dilemma, and generally both agreed that this is an appropriate action to avoid a potential liability problem.

Members in states with a completed Phase II general permits must follow their states' rules. Typically, the states require the buider to file a Notice of Intent and prepare a pollution prevention plan prior to beginning construction.

For more information, contact NAHB's Amy Ericksen at 800-368-5242 x8662 or Marolyn Parson at x8157. [ return to top ]