NCG010000_NCHBA Renewal Comments_20231229

NORTH CAROLINA HOME BUILDERS ASSOCIATION
P.O. BOX 99090 • RALEIGH, N.C. 27624-9090
PHONE [phone] • TOLL FREE 1-800-662-7129 • FAX [phone]
www.nchba.org • www.21buildingexpo.com
December 29, 2023
Mr. Paul Clark
DEMLR Stormwater Program
512 N Salisbury, 6th Floor
Raleigh, NC 27604
RE: NCG01 Renewal Public Comments
Dear Mr. Clark:
On behalf of over 15,000 member firms that comprise the North Carolina Home Builders Association
(NCHBA), please find these comments concerning the NCG010000 - Construction Stormwater General
Permit for construction activities (NCG01) that are subject to the North Carolina Sedimentation Pollution
Control Act scheduled to expire March 31, 2024, currently in process for Federal renewal.
NCHBA's concern with the NCG01 administrative permitting and permit closure process has
exponentially increased among our membership since 2019 when a State (or Local, as applicable)
Sedimentation and Erosion Control Plan approval no longer achieved simultaneous NCG01 compliance.
Please note that before 2019, NCG01 compliance was procedurally embedded in a State (or Local, as
applicable) Sedimentation and Erosion Control Plan approval. Since this departure from administratively
combining these two permits, which regulate the same field of environmental concern, our members,
both small builders and large, have conveyed serious concerns that we hope will be considered by the
Department and the United States Environmental Protection Agency (USEPA) as the NCG01 is renewed
leading into spring of next year.
While considering our comments surrounding the administrative burden caused by the current
regulatory redundancy, please know that NCHBA recognizes the importance of controlling construction
stormwater as Federally required for projects, or a common plan of development, disturbing greater
than five acres. We also recognize the importance of preventing erosion and sedimentation from
leaving construction sites as the State has required for projects, or a common plan of development,
disturbing greater than one acre (unless a local act requires a lesser disturbance threshold).
While there is technical design and "in the field" application of the NCG01 program that need
consideration for reform, please find this comment letter focused on the primary issue facing our
industry, which is the administrative redundancy generated by the current duel permitting scheme that
is resulting in unnecessary administrative costs (both "hard cost" from duplicative fees and "soft cost"
spent towards the redundant compliance effort). Also note that we argue that these unnecessary costs
caused by the current regulatory redundancy, lost both in time and money, can be significantly reduced
by reverting to a pre-2019 program implementation approach that combines an NCG01 approval within
a State (or Local, as applicable) Sedimentation and Erosion Control Plan approval.
To be specific, issues caused by the redundancy of the dueling permits regulating the same
environmental field are not just due to the need to secure two permits and pay two separate permit

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fees before a homebuilder can begin construction, but even more problematic are the issues that arise
during the project close-out phase. Please note that for a single -lot home builder, the need to obtain
and remain in compliance with the different administrative terms of an NCG01 and a State (or Local, as
applicable) Sedimentation and Erosion Control Plan approval are problematic in themselves, but the
associated issues grow in complexity for builders of multiple lots especially when any disturbance
associated with a project is to be conveyed in common or public ownership.
For example, a builder constructing a multiple -lot subdivision which includes neighborhood roadways
and other required infrastructure located in a right-of-way or shared easement is most likely to permit
the entire disturbance associated with the project including the lots. It is impractical at times to permit
roadways and other required infrastructure located in a right-of-way or shared easement separately
from the lots as drainage patterns often force the two administratively separate properties together for
mutual construction stormwater and sedimentation and erosion control measures. Once this builder
permits the disturbance associated with the development to meet State (or Local, as applicable)
Sedimentation and Erosion Control Plan requirements, the current regulatory regime requires that they
then obtain a separate NCG01 permit approval before beginning construction.
If the builder is knowledgeable about the regulatory difficulties that they will most likely experience in
the future concerning the compliance issues arising from the dueling regulatory regimes at the Federal
and State (or Local, as applicable) level they are best advised to permit each lot separately and to also
permit the disturbance in the rights-of-way/easement(s) separately as long as the construction
stormwater and sedimentation and erosion control measures are truly separate from a drainage
standpoint. Once this builder completes a home on one of these lots for sale, the State (or Local, as
applicable) Sedimentation and Erosion Control Plan transfers responsibility upon sale, but the NCG01
does not. If this builder is not able to close out the NCG01 due to construction stormwater or erosion
control measures needing to remain in place throughout future portion of the development
construction, then the builder must renew each NCG01 permit yearly (including paying an additional
fee), and then the builder must then come back at a later date when all construction is complete to close
out each open NCG01 permit.
Please consider that this approach requires very high administrative oversight by the builder as often
dozens of NCG01 permits must be monitored for compliance and monitored for expiration, leading to
significant administrative costs across the development construction timeline. While this permitting
approach is necessary to achieve a relatively clean project closeout phase as each lot is developed and
sold, it is only achievable if the construction measures can be separated in the field.
If the builder is neither wise to the close-out compliance issues or is unable to permit each lot separately
for an NCG01 as previously outlined, the regulatory burden is even more cumbersome when multiple
lots are permitted under a single NCG01 permit. In this scenario, the entire development must be
completed for the NCG01 to be released, which means that over a multiyear development phase, the
builder is held responsible for maintaining stabilization on a lot that has often been sold years ago (or at
times resold to another buyer that was not the original client of the builder). It is not theory, but reality
that some of our members have had to seek permission to enter a property that was sold multiple times
after they completed the build in order to restabilize what was initially stabilized on the property at the
time of the home's Certificate of Occupancy (CO) due to the current property owner's failure to
maintain stable vegetation under their ownership.

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The difficulties with the current regulatory permitting approach concerning State (or Local, as
applicable) Sedimentation and Erosion Control Plan approval process separate from an NCG01 approval
as outlined above are just a few of the serious concerns that our members have had to traverse since
2019. Again, while we believe that protecting our commonly shared environment is necessary, we know
that such can be achieved by recombining the two dueling permits to reduce the unnecessary
administrative compliance costs created since 2019, particularly at a time when home affordability is at
a crisis level.
With a proper understanding of our viewpoint concerning the post-2019 approach to require separate
permitting of an NCG01 from State (or Local, as applicable) Sedimentation and Erosion Control Plan
approval, please know that we are grateful for the State Legislature and the Department's
Governmental Affairs Liaisons working together to address our concerns by adopting into state law
Section 11 of Session Law 2023-108 as outlined below:
DIRECT DEQ TO SEEK APPROVAL FROM USEPA TO STREAMLINE IMPLEMENTATION OF
REQUIREMENTS OF THE SEDIMENTATION POLLUTION CONTROL ACT AND FEDERAL
REQUIREMENTS FOR STORMWATER DISCHARGES FROM CONSTRUCTION ACTIVITIES
SECTION 11. No later than September 1, 2023, the Department of Environmental
Quality shall develop a plan for submittal to USEPA that eliminates any program redundancies
between the State's Sedimentation Pollution Control Act of 1973 (Act), and its implementation of
requirements for stormwater discharges from construction activities set forth under the 2022
Clean Water Act National Pollution Discharge Elimination System (NPDES) general permit for
stormwater discharges from construction activities (Construction Permit), 87 Federal Register
3522, through NPDES General Permit NCG010000 (NCG01). Specifically, the plan shall include
measures to streamline permitting requirements to ensure persons conducting land -disturbing
activity are required to apply for one permit addressing all federal, State, and local requirements,
and, if applicable, that permit may be issued by a local government with delegated authority to
operate a local program in order to eliminate (i) unnecessary costs to, and duplication of efforts
by, persons initiating land -disturbing activities, (ii) unnecessary delays in project development,
and (iii) inefficient use of Department personnel and staff of local governments that administer
delegated erosion and sedimentation control programs. The Department shall report to the
Environmental Review Commission on the status of their activities pursuant to this section
quarterly, beginning August 1, 2024, until such time as the General Assembly repeals this
reporting requirement.
Since the adoption of this language into state law, we have been provided upon request with a letter
(attached) dated December 19, 2023, signed by the Department's Interim Director of the Division of
Energy, Mineral, and Land Resources, Mr. Vinson, addressed to the USEPA requesting the USEPA's
consideration of two proposals aimed to complywith Section 11 of Session Law 2023-108. Please note
that the NCHBA agrees with the Department that their past work with USEPA regulators concerning our
state regulations satisfies federal law (specifically that a State (or Local, as applicable) Sedimentation
and Erosion Control Plan approval satisfies federal Stormwater Pollution Prevention Plan requirements);
therefore, providing a pathway to remove the post-2019 regulatory redundancy caused by the dueling
separate permitting requirement.
While we are grateful for the effort to comply with Section 11 of Session Law 2023-108 put forth by the
Department, please note that we support "Proposal A" that the Department has put forth in the letter

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NCH BA Public Comments
Page 4
to USE PA, but wed o not support "Proposal B" as it would not solve the current problems outlined in this
letter for all of the numerous local governments administering state approved sedimentation and
erosion control programs.
We hope that the concerns outlined in this letter provide a glimpse of the significant importance of
achieving federal compliance concerning an NCG01 permit through the State (or Local, as applicable)
Sedimentation and Erosion Control Plan approval. As you all work towards achieving an NCG01 permit
renewal with the USEPA, please accept our sincere appreciation of the Department's consideration of
our comments. Know that we stand ready to continue to provide meaningful input to achieve
environmental protection while reducing unnecessary costs and lost time to project completion aimed
to provide affordable homes to North Carolinians.
Sincerely,
Chris Millis
Director of Regulatory Affairs
North Carolina Home Builders Association
5580 Centerview Drive, Suite 415
Raleigh, NC 27606
[phone]

ROY COOPER
Governor
ELIZABETH S. BISER
Secretary
WILLIAM E. TOBY VINSON, JR
Interim Director
Mr. Mike Mitchell
US Environmental Protection Agency
61 Forsyth Street SW
Atlanta GA 30303
NORTH CAROLINA
Environmental Quality
December 19, 2023
As required in North Carolina Session Law 2023-108, Section 11, the North Carolina
Department of Environmental Quality's Division of Energy, Mineral, and Land Resources
(DEMLR) is writing to request certain new permissions from the United States Environmental
Protection Agency (EPA). The North Carolina General Assembly has directed the Department to
seek to eliminate redundancies between the state requirements for Erosion and Sediment Control
(ESC) plan approvals and Certificates of Coverage (COC) under the National Pollutant
Discharge Elimination System (NPDES) Construction Stormwater General Permit.
In this letter, we will begin by summarizing the current process for obtaining the two required
approvals. We will also summarize a previous report that examined possible redundancies
between the federal and state requirements. We will then describe two proposals for changes to
these processes, in line with Session Law 2023-108. We are requesting that EPA first consider
whether Proposal A is acceptable. If EPA determines that this proposal is unacceptable, we
request that EPA consider an alternative, Proposal B. We recognize that there may be other
options to meet legislative intent, and we would welcome any other options or information that
EPA can provide that would allow us to meet the requirements of Session Law 2023-108.
Current Process: State Requirements
Under North Carolina's Sedimentation Pollution Control Act of 1973 (G.S. 113A, Article 4),
construction activities that disturb an acre or more of land, or that are part of a common plan of
development that is one acre or larger, require an ESC plan approval. To obtain this approval,
applicants must provide an appropriately engineered plan outlining the procedures and measures
sufficient to contain sedimentation on site. This plan is reviewed and approved either by
DEMLR or by a local ESC program delegated to a local government by NC's Sedimentation
Control Commission. This ESC plan approval satisfies the requirements under state law.
Current Process: Federal Requirements
These construction activities, however, must also meet federal requirements by obtaining a COC
under the NPDES Construction Stormwater General Permit. DEMLR has delegated authority
from EPA to issue this COC in compliance with federal law. However, applicants do not need to
' ��� North Carolina Department of Environmental Quality I Division of Energy, Mineral and Land Resources
_ 512 North Salisbury Street 11612 Mail Service Center I Raleigh, North Carolina 27699-1612
919.707.9200

develop a new engineering plan to obtain this COC. While federal law does require that
applicants provide a Stormwater Pollution Prevention Plan (SWPPP) to obtain a COC, DEMLR
has worked with the EPA to ensure that the engineering plan that applicants submit to obtain an
ESC plan approval can also be used to satisfy the SWPPP requirement for the COC.
As such, the next step in the process is for the applicant to apply for a COC by providing
DEMLR with the ESC plan approval letter (issued by a local government or DEMLR) along
with some additional required information. Based on this, DEMLR can issue a COC under the
NPDES Construction Stormwater Permit to applicants. DEMLR is currently the only entity in
North Carolina that can provide applicants with the COC needed to meet federal requirements.
Once they have obtained the COC and the ESC plan approval, applicants have satisfied both
state and federal requirements.
Previous Evaluation of Possible Redundancies
In preparation for contacting the EPA, DEMLR utilized the NC General Assembly Program
Evaluation Division's (PED) September 1, 2022 "Report to the North Carolina General
Assembly's Environmental Review Commission" of our programs which listed identified
redundancies. The report references the PED's 2019-02 report which identifies the two
programs, Erosion and Sediment Control and NPDES Construction Stormwater, as
complementary to one another. The only duplication identified by the PED was the requirement
to submit the same applicant and project information for both the ESC plan approval and the
COC. Additionally, the report also communicated the regulated community's desire to have both
permits packaged together for a more expeditious permit review and issuance process.
Requested Changes: Proposal A
In order to reduce redundancies in line with Session Law 2023-108, DEMLR requests that EPA
accept the following set of process changes, which we will describe collectively as "Proposal A."
First, we propose that applicants be allowed to apply simultaneously for both the ESC plan
approval and a COC under the NPDES Construction Stormwater Permit. The combined
application would allow for a single review process that covers both state and federal
requirements. Once the review is complete, DEMLR could simultaneously issue a combined
ESC plan approval and COC to the applicant.
Secondly, Session Law 2023-108 directs DEQ to seek authority to allow this combined ESC and
COC application and review process to be managed by "a local government with delegated
authority to operate a local program." In line with this, we are proposing that local governments
with delegated authority from the State to issue ESC plan approvals be automatically allowed to
utilize a single process to also issue both ESC plan approvals and COCs under the NPDES
Construction Stormwater Permit. As such, all local ESC programs would automatically gain
authority to issue COCs under federal NPDES Construction Stormwater requirements by virtue
of their delegation as local ESC programs.
North Carolina Department of Environmental Quality I Division of Energy, Mineral and Land Resources
512 North Salisbury Street 11612 Mail Service Center I Raleigh, North Carolina 27699-1612
rg�Fre_cnr_c,Gavn
919.707.9200

Requested Changes: Proposal B
If Proposal A is unacceptable to the EPA, we request that EPA find acceptable an alternative
process change laid out below, which we will refer to as "Proposal B." As part DEQ's Permit
Transformation Program (PTP) process, underway for all regulatory programs in the
Department, DEMLR is in the final stages of developing an online platform that would allow
applicants to apply for both an ESC plan approval and a COC through a single online
application. This process would separate the state (ESC) and federal (COC) applications on the
back end and allow DEMLR to conduct separate reviews to ensure both state and federal
requirements are met, but applicants would only have to complete a single application on the
front end. Unlike in Proposal A, DEMLR would separately issue the ESC plan approval and the
COC to the applicant, in line with the respective review timelines for each.
All applicants submitting projects to DEMLR for review would be eligible to use this online
platform. This system would also allow applicants that have been issued an ESC plan approval
from a delegated local ESC program to apply online to DEMLR for a COC. However, applicants
in those jurisdictions would still have to separately apply to the local program for ESC Approval
and later to DEMLR to receive a COC.
In line with Session Law 2023-108, DEMLR requests that EPA first consider Proposal A. If EPA
determines that this proposal is unacceptable, we request that EPA consider an alternative,
Proposal B. DEMLR would also welcome any additional guidance or proposals from EPA
regarding implementation of the goals outlined by the General Assembly in Session Law 2023-
108.
We welcome the opportunity to meet to discuss these requests further. Please feel free to reach
out to me at 919-707-9201 or via email at [e-mail]. We thank you for taking the
time to consider our requests and look forward to your response.
C
2�
W. E: Toby Vinson
Interim Director
Division of Energy, Mineral, and Land Resources
North Carolina Department of Environmental Quality
cc: Sushma Masemore, Assistant secretary for Environment, NC Department of Environmental Quality
Bill Lane, Deputy Secretary for Policy & Legal Affairs/General Counsel, NC Department of Environmental Quality
Shrikar Nunna, Director of Legislative Affairs, NC Department of Environmental Quality
RE Q�� North Carolina Department of Environmental Quality I Division of Energy, Mineral and Land Resources
i
512 North Salisbury Street 1 1612 Mail Service Center I Raleigh, North Carolina 27699-1612
NORTH CApgtll
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