Developers Beware! EPA Increases Enforcement of Storm Water Requirements

Client Alert

By Peter Hsiao And Eric Burton

If you are a developer and engage in construction activities that disturb five acres or more of land, then you must have a Storm Water General Permit and a Storm Water Pollution Prevention Plan (SWPPP) under the United States Environmental Protection Agency (EPA) regulations.

On December 4, 2000, the EPA fined two developers, Jaxon Enterprises, Inc., and Creative Living, $60,000 for storm water pollution violations at a 74-acre subdivision project in Redding, California. The two companies were cited for poor erosion and sediment control at the project. In addition, the companies failed to implement a proper SWPPP. EPA investigators had inspected the site in 1998 and again in 1999 after the California Central Valley Regional Water Quality Control Board had issued two earlier violation notices that went unheeded. The lack of proper storm water containment resulted in large amounts of sediment and silt runoff into Sacramento River tributaries.

On December 28, 2000, the EPA fined Colrich Communities, Inc., $60,000 for storm water pollution violations at an 80-acre subdivision near Temecula, California. Colrich was cited for ineffective sediment controls that were necessary to prevent sediment-laden runoff during active grading of the site. The company was also cited for allowing aggressive erosion of bare soil on the site, which was caused by a lack of sediment controls, and for improperly developing and implementing an SWPPP.

Who Is Subject to the Storm Water Requirements?

The storm water discharge regulations are codified at 40 CFR § 122.26. These laws and regulations affect a vast array of developments and construction projects across the country. In recent months, the EPA has stepped up its enforcement of these storm water requirements, particularly in California, and has fined many developers for violating them. As a result, developers and operators of construction sites must educate themselves on these rules and regulations to ensure that they are in compliance. This article provides a general overview of the EPA actions and of the storm water requirements.

The storm water requirements apply to an operator of a construction activity that will disturb five acres or more of total land area. Thus, to be subject to the requirements, a developer must:

Engage in a "construction activity"

Construction activity includes clearing, grading, and disturbances to the ground such as stockpiling or excavation. Construction activity that results in soil disturbances of less than five acres may still be subject to a General Permit if the construction activity is part of a larger common plan of development that encompasses five or more acres of soil disturbance or if there is significant water quality impairment resulting from the activity. Construction activity does not include routine maintenance to maintain original line and grade, hydraulic capacity, or original purpose of the facility, nor does it include emergency construction activities required to protect public health and safety. Developers should confirm with the local Regional Water Quality Control Board (RWQCB) whether a particular routine maintenance activity is subject to the General Permit.

Be a construction site "operator"

According to EPA's General Permit, a construction site operator is someone who (a) maintains overall operational control over construction plans and specifications, including the ability to change those plans (typically, this refers to the developer of a construction site); or (b) maintains day-to-day operational control over activities that will ensure compliance with the SWPPP (typically, this refers to the general subcontractor).

A construction project that includes a dredge and/or fill discharge to any jurisdictional surface water (e.g., wetland, channel, pond, or marine water) will also need a CWA Section 404 permit from the U.S. Army Corps of Engineers and a CWA Section 401 Water Quality Certifi- cation from the RWQCB and the Storm Water Regional Control Board (SWRCB). Storm water discharges from dredge spoil placement that occur outside of Corps jurisdiction (i.e., from upland sites) and are part of construction activity that disturbs five or more acres of land are covered by the General Permit. Developers whose projects will disturb five or more acres of land within the jurisdictional boundaries of a CWA Section 404 permit should contact the local RWQCB to determine the applicability of General Permits.

How Do You Comply with the Storm Water Requirements?

For construction operators subject to the storm water requirements, the steps to obtaining coverage are as follows:

Step 1. Read the applicable General Permit fact sheet and permit requirements.

Developers who fail to obtain coverage under the General Permit for storm water discharges to surface waters will be in violation of the CWA and the California Water Code.

The Storm Water General Permit authorizes the discharge of storm water to surface waters from construction activities that result in the disturbance of five or more acres of land. It prohibits the discharge of materials other than storm water and authorized non-storm water discharges and prohibits all discharges that contain a hazardous substance in excess of reportable quantities established in federal regulations at 40 CFR § 117.3 or 40 CFR § 302.4, unless a separate National Pollution Discharge Elimination System (NPDES) Permit has been issued to regulate those discharges. In addition, the General Permit contains provisions that uphold discharge prohibitions contained in water quality control plans, as implemented through the nine RWQCBs.

Permits for storm water discharges associated with construction activity meet all applicable provisions of Sections 301 and 402 of the CWA. These provisions require controls of pollutant discharges that utilize best available technology economically achievable (BAT) and best conventional pollutant control technology (BCT) to reduce pollutants, and any more stringent controls necessary to meet water quality standards.

The General Permit is performance-based to the extent that it prohibits the discharge of storm water that causes or threatens to cause pollution, contamination, or nuisance; but it also allows the owner/developer to determine the most economical and effective Best Management Practices (BMPs).

Step 2. Develop and implement an SWPPP.

The SWPPP has two major objectives: (a) to help identify the sources of sediment and other pollutants that affect the quality of storm water discharges; and (b) to describe and ensure the implementation of BMPs to reduce or eliminate sediment and other pollutants in storm water as well as non-storm water discharges. The SWPPP also includes BMPs that address source control and, if necessary, BMPs that address pollutant control.

Required elements of an SWPPP include: (a) site description addressing the elements and characteristics specific to the site; (b) descriptions of BMPs for erosion and sediment controls; (c) BMPs for construction waste handling and disposal; (d) implementation of approved local plans; (e) proposed post-construction controls, including description of local post-construction erosion and sediment control requirements; and (f) non-storm water management.

Step 3. Complete and submit a Notice of Intent (NOI).

The NOI requirements of a General Permit are intended to establish a mechanism that can be used to identify the responsible parties, locations, and scope of operations of developers covered by the General Permit and to document the developer's knowledge of the requirements for an SWPPP.

A NOI for construction activity must be filled out and submitted to EPA's NOI Processing Center at least two days prior to the commencement of construction activity. The signing and submitting of the NOI form obligate the permittee to comply with the terms of the General Permit.

EPA's NOI also requires certification that the industrial activity will not impact endangered or threatened species protected under the Endangered Species Act.

Step 4. Eliminate or reduce non-storm water discharges to storm sewer systems and other waters of the nation.

Elimination or reduction of non-storm water discharges is a major goal of the General Permit. Non-storm water discharges include a wide variety of sources, such as improper dumping, spills, or leakage from storage tanks or transfer areas. Non-storm water discharges may contribute a significant pollutant load to receiving waters. Measures to control spills, leakage, and dumping, and to prevent illicit connections during construction, should be addressed through structural as well as non-structural BMPs.

Step 5. Perform inspections of all BMPs.

Discharges of non-storm water are authorized only where they do not cause or contribute to a violation of any water quality standard and are controlled through implementation of appropriate BMPs for elimination or reduction of pollutants. The effluent limitations contained in the General Permit are narrative and include the requirement to implement appropriate BMPs. The BMPs should primarily emphasize source controls such as erosion control and pollution prevention methods. The permittee should also install structural controls, as necessary, such as sediment control which will constitute BAT and BCT and will achieve compliance with water quality standards. The narrative effluent limitations constitute compliance with the requirements of the CWA.

NOTE: In response to a consent order arising from litigation brought by environmental organizations, the State Water Resources Control Board has proposed modifications to the General Construction Storm Water Permit to implement specific sampling and analytical procedures to determine whether BMPs: (a) prevent further impairment by sediment in storm waters discharged into waters listed as impaired for sediment or silt, and (b) prevent other pollutants that are known or should be known by permittees to occur on sites and that are not visually detectable in storm water from causing exceedances of water quality standards.

Step 6. Implement the Storm Water Monitoring Plan.

Another major feature of a Storm Water General Permit is the development and implementation of a monitoring program. All permittees are required to conduct inspections of the construction site prior to anticipated storm events and after actual storm events. During extended storm events, inspections must be made during each 24-hour period. The goals of these inspections are: (a) to identify areas contributing to a storm water discharge; (b) to evaluate whether measures to reduce pollutant loadings identified in the SWPPP are adequate and properly installed and functioning in accordance with the terms of the General Permit; and (c) to determine whether additional control practices or corrective maintenance activities are needed. Equipment, materials, and workers must be available for rapid response to failures and emergencies. All corrective maintenance to BMPs should be performed as soon as possible, depending upon worker safety.

Each permittee shall certify annually that the construction activities are in compliance with the requirements of the General Permit. Permittees who cannot certify annual compliance shall notify the appropriate RWQCB. A well-developed monitoring program will provide a good method for checking the effectiveness of the SWPPP.

The permittee is required to retain records of all monitoring information, copies of all reports required by the General Permit, and records of all data used to complete the NOI for all construction activities to be covered by the General Permit, for a period of at least three years from the date generated.

Step 7. Comply with local and municipal laws and regulations.

All permittees must comply with the lawful requirements of municipalities, counties, drainage districts, and other local agencies regarding discharges of storm water to separate storm sewer systems or other watercourses under their jurisdiction. Additionally, permittees must comply with applicable requirements in municipal storm water management programs developed to comply with NPDES permits issued by the RWQCBs to local agencies.

Assistance for Developers

If you would like additional information or assistance, please contact Peter Hsiao, Siegmund Shyu, or Eric Burton in the Los Angeles office, Bob Falk or Nancy Hayes in the San Francisco office, David Gold in the Walnut Creek office, or Tom Ruby in the Palo Alto office. We have prepared a packet of additional information that will further assist and educate you on how to comply with the storm water laws and regulations.

Email Disclaimer

Unsolicited e-mails and information sent to Morrison & Foerster will not be considered confidential, may be disclosed to others pursuant to our Privacy Policy, may not receive a response, and do not create an attorney-client relationship with Morrison & Foerster. If you are not already a client of Morrison & Foerster, do not include any confidential information in this message. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not properly authorized to do so.

©1996-2019 Morrison & Foerster LLP. All rights reserved.