Stormwater Management Regulations Require Ongoing Compliance

by Ronald W. Farley Partner, Burr & Forman LLP

Your investment of time, effort and money to meet initial requirements of construction stormwater management regulations could easily be wasted if you neglect the ongoing compliance obligations this regulatory program imposes.  Failure to meet these ongoing requirements can result in substantial fines and remediation costs.

I recently had separate conversations with an environmental consultant who regularly works with developers on construction projects of all sizes and with an attorney in the Office of Regional Counsel for EPA’s Region 4. I asked each what they thought was the most common general type of violation of construction stormwater regulations.  Both said it was the failure to maintain the site in accordance with the applicable Best Management Practices (BMP) Plan.  This is consistent with my own experience.

Stormwater Regulation Basics
By way of brief background, stormwater from various sources, including construction sites, has been regulated to various degrees for many years under the federal Clean Water Act (CWA) (33 U.S.C. § 1251, et seq.) and its counterparts in the various states. Although the CWA initially focused on point sources such as industrial dischargers and municipal wastewater treatment facilities, this focus was soon deemed too narrow to address other significant sources of water pollution.  Eventually, this led to enactment of the Water Quality Act of 1987, which amended the CWA adding, among other things, Section 402 (33 U.S.C. § 1342(p)(4)) authorizing requirements for permits for the discharge solely of storm waters including those from most construction sites. 

Of course, the CWA authorizes EPA to delegate enforcement authority to individual states that have established their own water pollution control programs consistent with the requirements of the CWA.  Most of the states in the South have received a delegation of enforcement authority, and state regulators are generally the most frequent inspectors of construction sites.  However, EPA’s Region 4 headquartered in Atlanta has a very active construction stormwater inspection program as well, and many of the most costly enforcement actions I have been involved with have been initiated by EPA.  Finally with respect to potential inspections and oversight, recent changes in federal (and thus most state) requirements impose obligations on a class of jurisdictions having municipal separate storm sewer systems (MS4s).  Now, most of these MS4s have developed, or will soon develop, their own programs to regulate and inspect construction sites within their jurisdictions.  So, many of you will now face the prospect, on at least some of your projects, of being inspected by three levels of jurisdiction: EPA, the state, and the local MS4 jurisdiction.

Compliance During the Construction Phase of a Project
What will the regulators be looking for in enforcement inspections?  Primarily, they will look for ongoing compliance with construction stormwater requirements during the construction activity.  Although construction stormwater regulations have now been in place in some form for more than two decades, and developers and contractors are familiar with the basic requirements, a surprisingly large number of them fail to comply with the ongoing requirements of the regulations during the construction itself.

Unfortunately, many seem to view the program as simply one more obligation in the process of planning and commencing a construction project.  Thus, after they obtain coverage under the applicable construction stormwater permit, some tend to ignore or comply only haphazardly with the requirements the program imposes throughout the subsequent construction work.  This is generally what leads to trouble with EPA or state and local authorities.

Best Management Practices Plan
After securing initial coverage under the applicable permit or related program in your state, it is fundamentally important to conduct construction activities in compliance with regulatory requirements until compliance obligations are formally terminated.  Generally, this means conducting the construction activities in accordance with the BMP Plan designated or designed for the individual project.  Such a plan is a required part of the initial permit process and must be prepared by a qualified professional as described under applicable regulations.  Thereafter, site operators are required both to fully implement and regularly maintain effective BMPs in accordance with the construction site’s BMP Plan.  Accordingly, one of the first things most government inspectors will do during a formal compliance inspection is request a copy of your BMP Plan.  They will proceed in an effort to determine if the project is being developed in accordance with the stormwater management practices and structures described in the plan and to determine whether the plan has been updated to reflect the progress of construction and any actual changes in BMP design or location.

Your Obligation to Conduct Various Types of Inspections
An important additional part of your ongoing compliance obligation is the requirement to assure completion of a variety of inspections of the site.  These are required to ensure compliance with the BMP Plan and maintenance of the particularized BMPs at the individual site and, otherwise, to comply with other requirements of the regulatory program.  Among the primary inspection requirements are:  at least one each day there is activity at the site; at least once a month by a qualified professional; after a rain event of 0.75 inches or greater in any 24-hour period since the last inspection; following any non-compliance event; until any observed deficiencies or discharges are corrected; and, before the obligation for compliance with the construction stormwater requirements can be terminated.  Conducting these and other required inspections and documenting them is a key component to demonstrating continuing compliance to regulatory officials.  Bear in mind that each inspection is required to be documented in a written record.  These records must be maintained for a period of three years and should be available either on site or in an alternate location that has previously been identified to the regulatory authorities.

All too frequently, regulators identify gaps in the required inspection reports, and occasionally, they find a complete failure to do some or all of the various types of inspections.  This is particularly true with respect to the failure to conduct and/or document daily inspections which are to be conducted whenever there is construction activity at the site.  To a lesser extent, but also troublesome, is a failure to bring a qualified professional on site at the necessary intervals to have them conduct independent compliance inspections.  Of course, even when any and all of these inspections are conducted, it is common to identify a failure by the operator to make necessary corrections or improvements in BMPs identified by any of these inspections.

Other Common Violations
Inspections by regulatory authorities tend to reveal several other common violations.  Surprisingly, it is not unusual for government authorities to find an inadequate BMP design that is not sufficiently protective of receiving waters at a particular site.  More often, they find that BMP installation is not done according to the design set out in the BMP Plan.  Bear in mind that there are circumstances where a BMP that conforms to the original plan proves to be inadequate or otherwise inappropriate for installation at a site.  In that event, it is permissible to modify the BMP Plan, but this must be done at a time more or less contemporaneous with any actual change in the BMP itself and should reflect the resulting change accurately.

Of course, limiting soil migration and resulting sediment discharges into onsite and site-adjacent water bodies is the primary goal of the construction stormwater program.  Thus, attention to the adequacy of individual BMPs to limit the movement of sediment around the site and prevent significant amounts of sediment from leaving the site is key to compliance.  Among other things, this requires a critical evaluation of the adequacy and performance of particular BMPs after significant rainfall events.  Also, at least on large sites where initial land disturbance activities may occur long before actual construction on all or portions of the property, exposed soils must be stabilized generally by temporary seeding and mulch on areas which have not been worked in more than 13 days.  It also requires maintenance of those BMPs which have worked effectively and trapped sediment but which must be periodically maintained or repaired as necessary.  Yet, this obligation is frequently neglected, and as a result, perhaps the most common violation identified and penalized by regulatory officials is the failure to properly maintain BMPs that are otherwise adequate and appropriate for the site.  The maintenance of BMPs such as silt fencing, inlet protections at storm drains, ditch checks, and basins sometimes involves actual repair, but more typically involves regular removal of sediment so the BMPs maintain their effectiveness.  The failure to do these types of repairs and periodic maintenance is frequently documented in regulatory inspections and typically results in monetary fines or penalties.

Conclusion
Conducting construction activities in accordance with applicable construction stormwater requirements is an ongoing obligation throughout the construction process.  This is not an obligation that is met simply by making the required submissions and developing basic documents prior to commencement of construction.  Instead, the program is intended and the regulators implement it in a way that should direct and guide activities throughout the construction process.  The primary mechanism for this as it relates to individual construction sites is the BMP Plan.  As an environmental consultant has expressed it to me, the BMP Plan is the focal point of compliance with construction stormwater regulations, and its provisions should be regularly guiding activities at the site through the time that soil disturbance is ongoing.  Compliance with the construction stormwater regulations, including the applicable BMP Plan, is the focus of the regulators whenever they inspect a construction project, and thus it will serve contractors and developers well to understand the requirements before the construction commences and to make compliance a routine part of the overall construction activity.

This article appeared in the May 2012 issue of Dixie Contractor.

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