It's time for developers to take federal storm water requirements seriously. In April 2006, the United States Environmental Protection Agency (EPA) filed suit for millions of dollars in penalties and an order directing a Fairfax County, Virginia homebuilder to dredge a community-owned lake. In May 2006, EPA fined an Arizona developer $60,000 for causing erosion into a nearby watershed. The State of Illinois is now prosecuting a developer for failing to produce a storm water pollution prevention plan and polluting a natural lake.
These builders could have avoided their unfortunate fate without significant cost. This article explains how to comply with storm water requirements and avoid expensive enforcement actions.
The Clean Water Act
In 1972 Congress passed the Clean Water Act, with the goal of stopping all water pollution by 1985. Congress initially focused on discharges from pipes and other discrete "point" sources. In 1987, Congress amended the Act to regulate storm water. The first phase, effective since 1992, requires a variety of industries, including developers of five acres or more, to secure and comply with a National Pollutant Discharge Elimination System (NPDES) permit to control storm water releases. The second phase, which became effective in March 2003, extended the Act's coverage, with certain exceptions, to developers of as little as a single acre.
Storm Water Permit Requirements
Before earth moving begins, developers of five acres or more must both apply for a permit and prepare a storm water pollution prevention plan. Applying for a storm water permit is generally simple. In many states, construction companies need only complete a one-page general Notice of Intent (NOI) form and submit it to the relevant state agency. The NOI, with few exceptions, qualifies the developer for the general NPDES permit issued by EPA in 1992.
To prevent and control storm water discharges, as part of the permit requirements, developers must prepare a pollution prevention plan. The regulations do not set forth numerical discharge limitations. Instead, they require developers to take particular measures to curtail storm water flow. In many states, developers must, at a minimum, meet the following requirements.
The plan must characterize the site, anticipated construction activities, soil impacts, drainage patterns and the waters that will receive the storm water.
The plan must outline and implement steps it will take during construction to control storm water runoff. These include erosion and sediment controls, stabilization practices and structural measures to limit runoff from exposed areas.
The developer must describe and implement permanent actions to control runoff.
The developer must outline and comply with ongoing maintenance measures at areas that have not been stabilized. These areas must be inspected weekly and within 24 hours of a rainfall of more than one-half inch.
The plan must identify each contractor who will be implementing the plan. The contractor must certify that it is taking the measures in accordance with the EPA permit. Obviously, it is best to hire a contractor with storm water experience.
The developer is required to revise the plan if site conditions change, and keep records of all actions taken under the plan.
Maintenance must continue after construction is complete. The developer must maintain storm water controls throughout the life of the development unless all discharges are eliminated.
In many states, the management practices and controls are required to be at least as protective as the those contained in specified state or federal publications. Controls must also satisfy local storm water laws. The developer need not, in many states, submit its plan to the state agency, but must retain copies of the plan on-site. The plan must remain on-site and available for inspection by the state agency and, if requested, by any member of the public.
It is important for developers to examine closely their own state regulations, as some states have enacted significantly more stringent pollution prevention plan and erosion control requirements.
Penalties for Noncompliance
Violations of the storm water laws, including failure to draft an adequate plan or to produce the plan to an agency during an on-site inspection, or failure to abide by mandates of the plan, are all violations of the Federal Clean Water Act. Federal or state environmental agencies, and in certain situations, private citizens, may sue for penalties of up to $25,000 per day. For instance, if a developer begins construction 30 days before completing its pollution prevention plan, a judge could penalize a company as much as $750,000. A court may also order injunctive relief and require the developer to remove all materials that entered a water body as a result of the project.
The EPA estimates that compliance with storm water laws, including preparing and implementing a storm water pollution prevention plan, will cost developers approximately $9,646 for a five-acre site. EPA projects annualized costs of approximately $910 over 20 years. In view of recent enforcement activities, even if construction is complete, developers of five acres or more should assure that they obtain a NPDES storm water permit and implement an adequate storm water pollution prevention program.