BOMA International believes: (1) developed land, as a category, is not a point source under the Clean Water Act; (2) EPA has no authority to regulate impervious surfaces; (3) releases into municipal separate storm sewer systems (MS4s) are not discharges into waters of the U.S.; and (4) for properties where runoff is channelized and discharged into a water of the U.S., EPA has not met the statutory prerequisites necessary to exercise any regulatory authority over such discharges.
On May 10, 2010, the U.S. EPA released a notice of Agency Information Collection Activities; Proposed Collection; Comment Request; Storm water Management Including Discharges From Developed Sites Questionnaires; Docket ID No. EPA-HQ-OW-2009-0817 (75 Red. Reg. 25,852). EPA has drafted a questionnaire which it intends to send randomly to owners and developers to aid them in developing standards for long term storm water discharges from developed sites.
Under the Clean Water Act, EPA presently regulates point sources, including active construction sites. By sending the proposed information collection request (ICR) to owners of already developed properties, EPA is expanding its authority beyond those given to it in the Clean Water Act. In addition, the questionnaire itself is problematic. It would take considerable time and resources to complete (30 hours by EPA’s estimate but much longer by ours) and asks for information the owner may not have (such as permit plans), especially if the owner was not the developer of the project. In addition, the questionnaire asks for confidential financial information that seems to have no bearing on the issues at hand.
BOMA International, in conjunction with the Real Estate Roundtable, International Council of Shopping Centers, National Multi Housing Council, National Apartment Association, NAIOP – The Commercial Real Estate Development Association, and the National Association of Real Estate Investment Trusts, filed comments on June 9, 2010 on the EPA’s information collection request and plans to continue to work to educate EPA, OMB, the Small Business Administration, and Congress that this is an expansion of EPA’s authority and EPA should not be able to proceed without first following the process proscribed in Sections 308 and 402 of the Clean Water Act.
Member Guidance Document for Assistance Completing EPA’s Information Collection Request