May 14, 2020

Resuming Construction: Don't Forget About Stormwater

Holland & Knight Alert
Dianne R. Phillips

As the construction industry prepares to reopen, contractors are making detailed plans to comply with state and municipal safety requirements related to the coronavirus (COVID-19) pandemic. Among the plans that needs careful review (and likely updating) is the site-specific Stormwater Pollution Prevention Plan (SWPPP). Construction sites disturbing 1 acre or greater in size eligible to obtain coverage under the U.S. Environmental Protection Agency (EPA) Construction General Permit (CGP) must do so. In addition to the required SWPPP, the CGP imposes a number of obligations that may have been neglected during the COVID-19 pandemic shutdown including required inspections, material management, perimeter controls, soil stabilization, stockpile protection and corrective actions as members of the site "Stormwater Team" worked from home.

For example, the CGP requires a site inspection either 1) every seven calendar days or 2) once every 14 calendar days plus after every storm event of 0.25 inches or greater with written inspection reports completed (and filed with the SWPPP) within 24 hours of each inspection. Additionally, the CGP requires permittees to initiate soil stabilization whenever earth-disturbing activities have temporarily or permanently ceased, with "temporary" defined as being idle for 14 or more calendar days (or seven days if the site is 5 acres or greater in size). Given the speed in which construction shutdown occurred in only a manner of days, it's possible not every requirement was satisfied and properly documented. Therefore, it is important that permittees focus on stormwater compliance promptly upon work resumption.

Now is the time for permittees to review the SWPPP and update it to conform to the current situation, including any changes in the description of the construction sequencing and schedule required by Section 2.4 of the CGP. Each section of the SWPPP should be reviewed and updated, and SWPPP modifications must be properly certified by a responsible corporate official (or a duly authorized official so long as the authorization is in writing). Paying attention to the paperwork now will smooth reentry and provide a basis for training once site activities resume (and don't forget to document who was trained and when).

Once back in the field, prompt attention should be given to inspecting all of the site features and stormwater controls identified in the updated SWPPP (and site plan) including sediment basins, perimeter controls (silt fences, filter berms, temporary diversion dikes, fiber rolls), material storage areas, stockpiles, vehicle entrances/exits (sediment track-out), storm drain inlets (catch-basins), stockpiles and natural buffer areas, among others. Permittees also should not forget to complete the required inspection report (with photos). If anything requires attention or maintenance, it is recommended to initiate the required corrective action "immediately" and if the problem is significant and requires new or modified controls, install them no later than seven calendar days from time of discovery, where feasible.

Lastly, permittees must remember that noncompliance reporting is required under the CGP Standard Conditions, Appendix I, Part I.12.6.1 for any instance of noncompliance that might endanger public health or the environment. EPA has issued guidance on its exercise of enforcement discretion. (See Holland & Knight's previous alert, "EPA's Enforcement Guidance for Noncompliance During the COVID-19 Pandemic," March 30, 2020.) Key among the factors is a prompt return to compliance.

For more information or questions about the SWPPP or CGP when resuming construction projects, contact the author.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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