Stormwater Regulations: Biggest Development Impediment You Have Never Heard Of
The Environmental Protection Agency is in the process of developing proposed national rulemaking to strengthen its stormwater program. The proposed rulemaking, which was previously announced in the Federal Register on Dec. 28, 2009, could dramatically alter the playing field for development of all types.
This is particularly true in the D.C. region given its placement in the Chesapeake Bay watershed. The EPA has recently proposed sediment limits for the Chesapeake Bay in addition to previously issued limits for nitrogen and phosphorous.
I previously commented on the Bean Kinney law blog regarding Virginia’s efforts to regulate stormwater impacts from development, the resulting pushback and modification of those regulations, and the eventual tabling of those regulations in the wake of the election of Gov. Bob McDonnell. Others have noted that the EPA efforts appear to go far beyond the limited regulatory changes proposed and dropped by Virginia.
Supporting developers in their efforts to combat tightening run-off regulations may feel a bit like suing Santa Claus to many, but this regulation could be extremely expensive and burdensome. Some very conscientious builders have indicated to me that the regulations do little if anything to attack primary nitrogen sources, such as air pollution from vehicles, agriculture, or fertilizers used by existing home owners.
As a LEED AP and father of two young children, I am definitely a believer in sustainability in development and construction but a balanced approach is important as is the economy. The building industry is a very easy regulatory punching bag for what is a truly systemic problem.
Commercial developments certified by U.S. Green Building Council under the LEED program may already be subject to some of the requirements to use best practices to minimize construction erosion or even to improve storm water quantity or quality. Some urban localities pay more attention to storm water management issues.
Even so, commercial developers, builders, site work contractors, property owners and the public should study this issue carefully. A dramatic change in stormwater regulations could have very significant cost impacts to the development industry. The regulations will hit an important economic segment that is already beaten down. Worse still, the regulations will hit a market that is very soft and arguably unable to absorb and pass on additional expenses to eventual purchasers or tenants. Interested parties should definitely speak up on this issue early, regularly and often to pass along their points of view.
This article is copyrighted 2010 by the Washington Business Journal, used by permission and originally posted here.
PS - as an interesting post-script, I received an update from ABC this morning that EPA has apparently been forced to make changes in its Effluent Guidelines Limitations in the context of pending litigation. This story is going to continue to resonate and we will provide updates and the change to comment as received.
My comment pertains to the Storwmater Regulations: Biggest Impediment ever heard of!
First - I have over 20 years experience in federal and local regulatory administration, plan approval, design, inspection and enforcement. Second, I was a stormwater compliance officer for Centex Homes prior to the major downturn in the economy. Third - am a business owner and stormwater regulatory consultant, who has advised local, state, federal and private industry on all matters concerning the regulations, law, impacts and financial isssues. Have also been a technical adviser to General Legal Counsel for National Homebuilders. All of which this writer speaks about - is the typical complaining and mindset methods used from developers, construction entities alike to thwart the EPA, State and localities from defining better regulations. The fact is - even as the regulations stand today and over the past 15 years. Builders, developers and construction entities fail to implement them as required. They consistently slide by the local authorities, installing minimal controls for stormwater and erosion and sediment control. All of which impacts storwmater quality. The development and construction arena - [having direct experience] continues to side step their responsibilities and only prefer to get by or get away with as much as they can until the hammer falls. And when this occurs - it costs them much more money to correct situations versus just following the regulations to begin with. Granted many municipal governments have unqualified personnel which can make matters worse, however, out of 100% regulations for stormwater - local and state agencies enforce about 70% of them. If the regulatory agencies really exercised their rights, and enforced the laws 100%, about 85% of construction sites - [ under current regulation] would be shut down. The development and construction arena needs to spend the money on hiring experts to guide them both regulatory and financial. Yet they continue to depend on engineers and unexperienced construction managers to make the right decisions. 80% of the development world has the attitude, i will not install or abide by regulations until someone makes me. Like or not its the truth. Stop your crying and do whats rights the first time and it will not cost you more money. I have computed financial regulatory studies for Centex Home during the 2005-2007 tenture. And they saved alot of money doing things as I advised. Having my own storwater regulatory consultancy, i have saved many clients alot of money on revamping how they do things to comply. Most all of them could not believe the results. Most of their personell assigned to stormwater and erosion control have no idea what they are really doing and neither do the engineers who guide them. We have enough regulations to better stormwater quality now, however - no one really enforces them because of politics and smoke and mirrors created by the development and homebuilding arena. Another strange fact is - The EPA needs to take a Zero tolerance approach with State and Local government forcing them to follow the regulations to a Tee. However, currently, in Virginia - per an April phone call and investigation on my own. The Director and Legal department has issued a "stand down" on all companies in violation of permitting laws. What? Yes you read it correctly. A stand down - meaning do not bring the hammer down on companies failing to comply with stormwater permitting regulations. That is complete craziness. For one - it kills businesses like mine. #2 it allows companies to do nothing. It also gives the appearance that our regulatory agency is wishy washy. It also ties the hands of State Inspectors and also of localities. I mean if the State doesnt enforce their own permitting regs - then who does? I will agree that the additional requirements for water quality testing is bogus. However - its the only reasonable requirement the State and EPA can add which can successfully monitor failure points in the system. Why is the EPA wanting to do this? Because the current regulations which do work - are not being enforced consistently, are being thwarted by private sector lobbyists, are being debated by by politicians who are having their back pockets filled or political life threatened by private sector strong holds and arm twisting. You think i am kidding? Ive seen it, heard it, know it. Its a process that has been corrupted just like our financial and mortgage institutions are. Anything we create regulation wise to protect society and our resources - gets taken down little by little by those who feel- its cheaper to pay the fine- then to comply. The EPA needs to force the State and Local govs to get it in gear. All of them need to get consistent, and have a zero tolerance for this stuff or the private sector will continue to cause issues for everyone. Another fact is - private sector plays the "It will cost more" card each time our nation creates regulations - when the bottom line is - if they just compied with the ones already in place - we would not need to make more stringent ones to be catch all for their failures on the little stuff. The development and construction arean should be paying for this stuff already and should not be an additional cost. But because they are being lead around by the nose from engineering firms and unexperienced personnel who dont know their butt from a hole in the ground, it cost them more and more to correct their deficiencies.