BUILDERS CAN BREATHE A SIGH OF relief. The 7th U.S. Circuit Court has upheld the Environmental Protection Agency’s general permit program. In a unanimous decision, the court ruled that a public review of stormwater management plans created under the general permit program is unnecessary. The court further clarified its decision by stating that the Clean Water Act’s requirements for public notice and public hearing were inapplicable because the public already was given the chance to take part in the development and issuance of the general permit.
R. Timothy McCrum, one of the attorneys involved in the case, says “It is a significant ruling because it upholds the general permit practice that’s been in place for over a dozen years.” A partner with Crowell & Moring, McCrum represented the NAHB and the Wisconsin Builders Association—who were intervening respondents in the case—against petitioners.
An alternate decision would have been detrimental to home builders. “It would’ve been a huge problem, creating enormous permitting backlog and delays,” says McCrum. “It would’ve required an extraordinary increase in government regulating staff, and even then they wouldn’t have been able to deal with the flood of permits.”
An estimated 100,000 sites go through the general permitting process each year, which includes both federal and state approved programs. That number reflects a steady increase in the number of sites during the past five years. The growth is partially attributed to the fact that permits are now required for smaller lots. The cutoff dropped from five acres to one acre, thus requiring builders to obtain more permits than they had previously.
McCrum also says the case was a serious challenge to the general permit process because in two other cases involving related issues but not the construction industry, federal courts had ruled for the environmental groups. “We were pleased when the 7th Circuit Court didn’t follow those trends,” he says.
