EPA Formally Withdraws National Post-Construction Rule

The Environmental Protection Agency today announced that long-awaited federal regulations to require all developers to install stormwater management devices have been jettisoned.

In response to NAHB comments, EPA tabled the rule in 2014 that would have required “post-construction” controls for stormwater discharges. That rule would have required all builders to retain a certain volume of stormwater onsite, regardless of underlying soils or rainfall patterns.

Some of the technologies EPA was thinking about mandating would be almost impossible in many urban areas, making smart-growth and redevelopment projects less likely to succeed.

Since then, the shelved rule has sat on the agency’s “long-term action” list – not a priority, but still able to be revisited at a future date.

Today, EPA, along with all other federal agencies, published an updated rulemaking agenda for 2017. This time, the agency announced that EPA’s would-be national post-construction rule has been officially withdrawn.

Since EPA first announced its plans in December 2009, NAHB staff and members have submitted comments and letters, testified at hearings, served on small-business panels and met with appointed and elected officials to explain why EPA’s proposal was an incursion into land-use regulations and plain wouldn’t work.

Today’s announcement doesn’t mean builders are out of the woods yet. As technologies such as green infrastructure continue to advance and more is known about the causes of urban water pollution, a growing number of states are using existing Clean Water Act authority to require stricter stormwater quantity or quality limits.

EPA included in its announcement a commitment to pursuing education and technical assistance for new stormwater technologies: Good news for communities that increasingly need innovative, flexible options for managing stormwater.

“If post-construction regulations are not designed and implemented in a thoughtful way, new standards can decrease the number of available pollutant-reduction options, increase costs, delay projects, result in poorly designed or maintained features, or simply occupy valuable space that could be used for housing or other community amenities,” said NAHB environmental program manager Eva Birk.

“Alternatively, post-construction approaches such as green infrastructure, if implemented well, can seamlessly integrate into existing requirements, build value and achieve multiple community and environmental benefits. In many cases it will be up to the development community to speak up on a case-by-case basis to ensure that these new programs are cost effective,” she said.