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Developers Need To Take U.S. EPA Storm Water Survey Seriously!

10.01.2010

By Andy Bowman, Attorney, Bingham Greenebaum Doll LLP

Is there anything more annoying and intrusive than receiving a telephone call during dinner informing you that you have been randomly selected to participate in a national marketing survey?  How about receiving a letter from the federal government telling you that you have been randomly selected to provide detailed responses to a 67-page survey questionnaire and you must do so within 60 days or face fines of $37,500 per day?

In mid-September U.S. EPA mailed letters to approximately 3,000 owners and developers of real estate development and redevelopment projects requiring about one-third of the recipients to complete a 67-page questionnaire requiring detailed project and financial information.  The remaining recipients must answer a shorter 21-page questionnaire.  The purpose of the questionnaire is to collect information U.S. EPA will use to decide whether to develop additional regulations covering long term storm water discharges (i.e. post-construction discharges) from new development and redevelopment sites.  U.S. EPA is seeking information on long term storm water retention practices and best management practices being employed at projects, state and local permit and management requirements, impervious land cover added by projects, project financial information and financial ability of owners and developers.  A new rule is expected to be finalized by November 2012.

According to U.S. EPA, it will take an average of 30 hours to respond to the questionnaire.  Recipients may find that it will take substantially more time to complete their responses.  U.S. EPA is seeking responses under the authority of Section 308 of the Clean Water Act which allows U.S. EPA to seek information from owners or operators of point source discharges for the purpose of developing regulations.  Several trade groups challenged U.S. EPA’s authority to seek the information as well as the number and type of questions posed.  As a result U.S. EPA has reduced the number of questions and scope.

At least 40 owners and developers in Indiana have received letters from U.S. EPA.  Recipients were selected from listings in Dunn and Bradstreet based on NAICS codes, sales and geographic location.  A number of Indiana cities and counties and some state agencies have also been requested to complete questionnaires.

Unlike the dinner-hour telephone survey, recipients cannot simply ignore U.S. EPA’s questionnaire.  U.S. EPA can seek civil penalties of up to $37,500 per day for failure to respond.  Recipients must certify that their responses are true, accurate and complete under threat of penalties or imprisonment.

While the questionnaire is directed at owners or developers who had an ownership interest in the project site, some companies who were only the builders have also received letters from U.S. EPA.  The questionnaire definitions should be carefully reviewed.  Builders who only build houses or other structures on a contractual basis and have no ownership interest in the real estate during the land development or construction phases may need to complete only five questions.

Recipients should check with their trade groups.  Some groups are providing guidance to their members.

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