The Industry's Reactions to the Draft 202(a) Report
On October 27, 2009, I attended the second listening session hosted by the EPA to discuss the 
building industry’s comments, concerns, and suggestions in response to the Draft 202(a) Report (Draft Report Fulfilling Section 202a of Executive Order 13508) issued by the agency on September 9, 2009. This report, as its title states, is a draft that will be considered by the Federal Leadership Committee as it prepares its draft strategy to restore the Bay. The draft strategy report is expected to be available for public comment on November 9, 2009.
Before jumping into the industry’s concerns about the draft report, here’s a brief summary of some of the potential 202(a) strategies outlined in the report itself:
- Accountability Program: Creating a new accountability program to guide federal and state efforts to restore the Bay. This could be created in conjunction with the TMDL process that will begin in December 2010. The TMDL will allocate pollutant reductions to both point and non-point sources (including stormwater and agricultural runoff). As part of the TMDL implementation, EPA will expect Maryland to provide documented “reasonable assurance” that the non-point source loading restrictions will be achieved. EPA will use its authority under section 117(g) of the Clean Water Act to determine and set “expectations” for a Clean Water Accountability Program. Success of the program may be evaluated by two-year milestones detailing actions taken and progress made towards reaching water quality goals.
- Consequences: If jurisdictions fail to commit to an accountability program OR if they fail to meet their two-year milestones, then the EPA may (a) revise the TMDL to assign more stringent reduction responsibilities to point sources; (b) object to state-issued NPDES permits; (c) take action to limit or prohibit new or expanded discharges of nutrients and sediments; (d) withhold or reallocate federal grant funds; (e) or take other action as appropriate.
- New rule-making: To address stormwater concerns, this could include expanding the jurisdiction of the regulatory MS4 program to include high-growth areas and establish minimum performance standards within permits consistent with Bay water goals. EPA asserts that its authority for this new rule-making could fall under the Clean Water Act.
There were representatives from various home builder associations in attendance at the meeting, along with developers, builders, attorneys, and members of planning agencies. Here is a synopsis of the most compelling reactions and concerns:
- Some of the proposed consequences and rule-making seems to exceed the EPA's regulatory authority.
- There is a concern among residential builders that some of the nitrogen attributed to new construction activities fails to take into consideration the fact that this nitrogen could be the result of homeowner activities.
- The building and development industry is an easy target for rule-making because it is one of the most heavily regulated industries. How is the EPA going to distribute the burden of paying for the clean-up initiatives required under the program? Has it considered the possibility of creating more oversight over industries such as agriculture (which is a top pollutant source)?
- Has the EPA considered enacting a retrofit program for existing development? Upgrading stormwater management facilities in older neighborhoods could greatly help in reaching the 202(a) goals.
- It's important to build some flexibility into whatever the final strategies will be - we need to have the ability to mitigate off-site especially in those urban, redevelopment areas that many planning agencies have targeted as smart growth areas.
The EPA seemed responsive to the concerns voiced during this listening session, but since the next phase (the draft strategy report) will be issued so quickly (a mere two weeks after this meeting), I have some doubts that any of these concerns can be adequately addressed in time. It's going to be very important for those expressing concern over the strategies once they are revealed on November 9, 2009, to get those comments submitted into the record. I'll post a link to the announcement in the Federal Register once the draft strategy is released.
