Appeals court upholds EPA’s storm water permit program

A U.S. appeals court ruled June 13 that the EPA’s construction storm water permit program is lawful. The case addressed whether the public has the right to weigh in on storm water management plans created under the agency’s general permit program.

With its unanimous decision in Texas Independent Producers and Royalty Owners Association v. EPA, the U.S. Court of Appeals for the Seventh Circuit ruled the general permit doesn’t violate the Clean Water Act’s requirements for public notice and public hearing because the public was afforded ample opportunity to participate in the development and issuance of the general permit, and that individual review of each plan developed pursuant to the permit “would eviscerate the administrative efficiency inherent in the general permitting concept …”

Environmental groups including the Natural Resources Defense Council had challenged the EPA to make individual construction site storm water run-off plans subject to public review, a method contractor associations that intervened in the case said could have caused delays and increased costs for builders.

“This is a major victory for the construction industry and for everyone who depends on it to provide their schools, hospitals, roads, bridges and other infrastructure,” said Stephen Sandherr, chief executive of the Associated General Contractors of America, which intervened on behalf of the EPA. “It is impractical to hold a public hearing on each and every construction project. If the petitioner had won, the industry would have ground to a halt.”

EPA’s construction general permit grants property owners and their construction contractors permission to discharge storm water runoff from construction sites. It requires general contractors to file a “notice of intent” to proceed under the agency’s general permit for storm water runoff before starting construction. It also requires the contractor to develop and implement a storm water pollution prevention plan prior to obtaining permit coverage and to update the plan during the course of construction. The petitioners in the case sought an injunction against further use of the construction general permit.

The court also held the EPA complied with requirements of the Endangered Species Act and dismissed the remaining permit challenges, ruling the environmental petitioners lacked standing to challenge the general permit’s overall scheme because they had failed to identify any construction site discharges that could harm their use and enjoyment of any waterway.

In the brief AGC and the National Association of Homebuilders filed, AGC emphasized requiring all property owners and/or their contractors to obtain individual permits to discharge storm water from construction sites would overwhelm EPA and its state counterparts.