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Builders Outlook Issue 1 2011
Building El Paso’s tomorrow today
Local builder chosen to represent industry in controversial EPA Storm Water proposal
‘Every property owner in the United States should be concerned about this rule. It could potentially burden cities with the task of spending billions of dollars to comply with an EPA rule that would do little or nothing to protect the nations waterbodies in some parts of the country. And, as history shows us, when the feds burden the cities and states with unfunded mandates, the only alternative local governments have is to raise taxes or create another fee.’
PRSRT STD U.S. POSTAGE PAID EL PASO TX PERMIT NO. 429
Bobby Bowling IV
From NAHB El Paso home builder Bobby Bowling IV was selected by NAHB to represent the building and development industry as a Small Business Representative on a federal Small Business Regulatory Fairness Act (SBREFA) panel to review a proposed new rule from the EPA. The rule the EPA is proposing would require "postconstruction" stormwater discharge permitting and reporting to the EPA. In other words, the EPA is considering requiring property owners to continue along the same lines of the type of reporting builders and developers are familiar with regarding Storm Water Pollution Prevention Permits (SWPPP) indefinitely (i.e. forever!!!). For example, the proposed rule could require you to log in and record data on every rain event, and file regular reports to the EPA, the city of El Paso (El Paso's designated "MS4" agent for EPA), and/or the state of Texas. The issue from the EPA's perspective is best summarized from the caption below taken directly from a briefing paper the EPA submitted to the SBREFA: Long term stormwater discharges from developed sites, such as subdivisions, roadways, and commercial buildings or shopping centers, can significantly alter the hydrology of a site and can have a negative impact on receiving waterbodies*. Generally, as sites are developed, there is an increase in impervious areas where water cannot infiltrate into the ground, leading to increases in stormwater discharges. Additionally, as stormwater moves over land, it picks up pollutants from various sources, such as fertilizers that have been applied to land, oil, grease and metals contained on roadways, and sediments contained on a variety of surfaces. These pollutants, as well as the velocity and volume of the stormwater discharges, contributes to water quality impairment. In fact, stormwater remains a leading cause of water quality impairment. According to the 2004 Water Quality Inventory, urban stormwater discharge is the source of problems in: • 22,559 miles, or 9.2% of all impaired rivers and streams • 701,024 acres, or 6.7% of all impaired lakes • 867 square miles, or 11.3% of all impaired estuaries As the above summary reflects, the EPA is responsible for enforcing the Clean Water Act (CWA), which is intended to protect the nations navigable waterways (*the term "waterbodies" that the EPA inserted is actually not the correct term from the statute). However, as the statistics provided by the EPA themselves show, "urban stormwater discharge" accounts for less than 10% of the problem! ("Urban stormwater discharge" includes stormwater runoff from ALL development activity, building activity, industrial activity and even every completed development!) Where does the other approximately 90% of
the pollutants into the nations waterbodies come from, you might ask? Well, some comes from industrial and other development activities outside of urban areas, but the vast majority come from farms, which are completely unregulated and exempt from the CWA. "It's crazy that our industry is building and developing incredibly eco-friendly communities and infrastructure, yet the EPA keeps coming back to our industry to increase our costs of development and now, just simple land ownership, for an incredibly insignificant diminishing return for the environment," says Bowling. Bowling also points out that increased costs would make development infeasible in most instances, especially in today's environment. "I showed them an example for a 10-acre apartment project where their additional rule could add as much as a million dollars to the cost of the project. They keep mentioning that 'green jobs' could be added, by I fail to see how ANY jobs can come from a project that is infeasible and won't be done." During the most recent SBREFA hearing at EPA headquarters in Washington, several small business entity representatives voiced their concerns over the fact that the EPA continues to seek new rules limiting developers while continuing to ignore the farming and other unregulated communities. However, the solution to that complaint seems to be only through congress and a change in the CWA. "The
CWA also is very unfair to the desert southwest, because we really have very little, if any, 'navigable waterways' or even any 'waterbodies.' El Paso and other desert communities should be exempt from these portions of the Clean Water Act, because all rainfall either evaporates or percolates into the ground far before it ever reaches a body of water. Plus, a long time ago, developers here began building retention ponds to alleviate natural flooding patterns, so even less stormwater is flowing here after a rain event than mother nature intended in El Paso today anyway." The SBREFA committee has until January 5, 2011 to submit comments to the EPA with regard to the rule. After that, the formal SBREFA report would be published sometime in mid-February, and a proposed rule from EPA could then be promulgated and published for public comment. The final rule (in one is recommended for passage by the administration) would come in late 2011 or early 2012. Bowling concluded, "Every property owner in the United States should be concerned about this rule. It could potentially burden cities with the task of spending billions of dollars to comply with an EPA rule that would do little or nothing to protect the nations waterbodies in some parts of the country. And, as history shows us, when the feds burden the cities and states with unfunded mandates, the only alternative local governments have is to raise taxes or create another fee."