Federal Agencies Concentrate on Enforcement of Regulation of Stormwater Pollution
The Clean Water Act Regulatory Regime for Stormwater Management
The federal Clean Water Act (CWA), enacted in 1972, authorizes a variety of regulatory and nonregulatory tools to reduce direct pollutant discharges into “navigable waters,” to finance municipal wastewater treatment facilities, and to manage polluted runoff. Section 301(a) of the CWA states that except in compliance with the statutory permit requirements, it is unlawful to “discharge” any pollutant into waters of the United States. See 33 U.S.C. § 1311(a). With regard to stormwater, Section 402 of the Act requires permits for any stormwater “discharge associated with industrial activity.” Id. at § 1342(p)(2)(B). A “discharge” is defined by the Act as “any addition of any pollutant to navigable waters from any point source.” Id. at § 1362(12).
EPA’s National Pollutant Discharge Elimination System (NPDES) is the permit mechanism that allows stormwater discharges. In turn, the CWA allows EPA to delegate its NPDES permitting authority to the states that meet minimum requirements for administering the approved program. See 40 C.F.R. Part 122. EPA has delegated permit authority to most states. See EPA’s Web site cited at: http://cfpub.epa.gov/npdes/stormwater/authorizationstatus.cfm. Therefore, as a practical matter, the states are delegated stormwater permitting authority from the EPA and the prospective permittee only has to seek one permit (i.e., one permit issued by the state covers both state and federal requirements). Yet, it is important to understand that EPA does not completely delegate enforcement authority. Hence, parties that comply with state regulations do not necessarily meet EPA’s requirements and could face enforcement by EPA. Further, meeting the requirements of local erosion control authorities, who assert authority over grading and sediment control, does not necessarily mean that a developer has met the state and federal requirements.
Construction activities involving five acres or more are regulated under Phase I of the NPDES stormwater program. 40 C.F.R. §122.26(b)(14)(x). In addition, pursuant to the Phase II regulations, construction sites that disturb one to five acres in size, including smaller sites that are part of a larger common plan of development or sale, must obtain permit coverage. 40 C.F.R. § 122.26(b)(15). Thus, building a home on a three-quarters-acre pad that is part of a 15-acre development plan would require permit coverage.
Practical Considerations of Stormwater Management
The regulations require operators to apply for the permit. “Operator” is defined as the person who has operational control over construction plans and specifications, and/or the person who has day-to-day supervision and control of activities occurring at a construction site. 57 Fed. Reg. 41190. Several states require a single entity to be the permittee. Other states and EPA require all relevant entities to obtain permit coverage, as co-permittees, for a given construction project. (For example, if several builders are constructing within a large-scale home development, they operate under one permit).
Most stormwater permits are “general” permits issued by the states. However, if the discharge is likely to impair water quality, an “individual permit” may be required from EPA. Where the permit authority has not been delegated to the state EPA’s Construction General Permit (CGP) controls. Rather than “apply” for general permit coverage, parties send “notices of intent to discharge” providing details concerning the project and proposed management measures. Notices of intent must be submitted to the permitting authority before starting construction. All permits provide an issuance and expiration date and permit terms may not exceed five years.
Stormwater permits do not require zero discharge, rather, they seek to limit the amount of sediment that will be discharged over the course of a certain time period. The permits work primarily through implementation of best management practices (BMPs). The heart of the permit is the Stormwater Pollution Prevention Plan (SWPPP), which contains the BMPs. Yet, while the SWPPP sets forth the BMPs, determining what constitutes compliance with the SWPPP and the BMPs can be difficult.
The SWPPP focuses on two primary requirements: (1) providing a site description that identifies sources of pollution in stormwater discharges; and (2) identifying and implementing appropriate measures to reduce potential discharges. The actual details of the BMPs that meet these goals vary widely, depending on local standards and site conditions (BMPs often also fulfill local erosion control requirements as well). BMPs include both structural and non-structural measures. Structural measures involve the installation of devices to divert, store or limit runoff, such as sediment traps, inlet protection, or silt fences. Non-structural measures minimize disturbance by specifying good housekeeping practices, such as garbage removal and street sweeping, etc. Stabilization of disturbed soil (e.g., by covering or maintaining an existing cover with seeding, mulch, straw and other materials to prevent soil erosion) is also a standard requirement.
A key aspect of the general permits is the requirement for routine inspections (at least every seven days and after major storm events) and maintenance of the controls. Once an inspection has been performed, an inspection report must be retained for up to three years after the permit expires or is terminated. The report must identify any incidents of non-compliance with permit conditions or, if none were found, a certification that the site is in compliance with the SWPPP. This requirement is very important as the general permits also require that the SWPPP be amended if inspections or investigations by state or federal officials determine that the SWPPP is ineffective in eliminating or significantly minimizing pollutants in stormwater discharges from the construction site. Hence, not only must the existing BMPs be maintained, but their effectiveness must be continually evaluated and changed if they are no longer effective.
At the conclusion of construction, all disturbed areas must be finally stabilized by either vegetative or non-vegetative cover. At this point, a Notice of Termination may be submitted and NPDES obligations are terminated.
EPA Enforcement on the Rise
Stormwater permit enforcement is a national priority for EPA. In addition to other enforcement remedies, EPA may seek civil penalties for noncompliance of up to $27,500 per day for each day of violation. To date, EPA’s focus has been on large scale commercial builders and on national home builders. This does not mean, however, that EPA will be content to stop at the larger companies. Indeed, a majority of construction activities nationwide are undertaken by smaller entities. In numerous states, EPA is undertaking its own investigations as well as encouraging states to target compliance assessment and enforcement efforts in watersheds with water bodies of special concern. The penalties sought by EPA and, more importantly, the penalties obtained in settlement, have ranged up into the millions of dollars.
EPA’s tactics are not without controversy. Many of the claims are brought against companies that have failed to obtain permits. The liability in these cases is relatively straightforward, although some would argue that EPA has not been effective in communicating the need for stormwater permits to smaller builders.
In instances when companies did obtain permit coverage, it is difficult to determine whether or not there is compliance with a BMP. Essentially, BMPs are good engineering practices designed to retain sediment on site to the maximum extent “practicable,” and are not generally based on specific effluent limitations. Hence, in many cases it is difficult to discern what practices meet the requirement of being the best “practicable” measure. The question that arises is whether a measure that would do a better job in controlling sediment, but would be a lot more expensive, must be implemented There is also a question as to the condition that BMPs must be maintained. For example, a silt fence that sags for several days in-between inspections may be considered by EPA to be a violation for each day that it is not fixed, despite the fact that under the SWPPP the fence is not required to be inspected during that several day period. Labeling such an event a permit violation (subject to up to $27,500 of fines per day) would appear inconsistent with the notion that inspections, followed by maintenance and repair of problems identified in the inspection, are fundamental to BMPs. Nonetheless, EPA is aggressively enforcing these types of issues.
The magnitude of EPA’s interpretation of what constitutes a permit violation is evident when one considers that a large site may have hundreds of different BMPs in place. It is well understood by people in the construction industry that in a dynamic environment, such as a construction site, silt fences and other structural elements are going to experience natural wear and tear. Hence, the liability exposure is considerable. The general perspective of the regulated community is that, while the failure to install a sediment and erosion control measure or to properly maintain it (i.e., to repair on a timely basis what is discovered to be failing) may, under certain circumstances, be considered a permit violation, it is questionable whether a sagging fence that is not discovered until the authorized inspection takes place is a permit violation. This issue is presently the subject of much controversy nationwide and how EPA – and more importantly the courts – interpret the tension between routine maintenance and the EPA’s desire to enforce will have significant ramifications for the construction industry.
Conclusion
The risks of federal or state enforcement for relatively minor BMP maintenance issues is a reality. Obtaining coverage under the NPDES stormwater permits is essential. At a minimum, developing and implementing a SWPPP is necessary to reduce the possibility of enforcement. In turn, BMPs should be designed by parties familiar with effective design strategies and local conditions. Mere compliance with local erosion control regulations may not be enough to shield one from EPA enforcement. In addition, routine inspection and maintenance must be followed to the letter. In the worst case scenario of an enforcement action, the best defense will be that the BMPs were designed, implemented and maintained according to an approved SWPPP and that BMPs, such as silt fences, are permitted normal wear and tear.