Over the next three years, companies commencing new residential and commercial construction projects will become subject to increasingly stringent stormwater runoff management requirements and likely increased enforcement activity by the U.S. Environmental Protection Agency and its state counterparts. As part of a multi-year regulatory rollout that began with the adoption of federally imposed requirements for reducing sediment and other pollutant runoff from construction sites, EPA in February adopted its new general permit (“CGP”) for stormwater management incorporating its 2010 rulemaking, adopting effluent limitations for construction and development sites. While EPA’s new CGP applies only in states that do not have authorized Clean Water Act regulatory programs, it is likely either to be adopted outright by states required to modify their existing CGPs over the next three years or at least used as a baseline reference point for the types of requirements that authorized state programs should contain.
EPA has long cited concerns about an apparently low compliance rate with stormwater management requirements at construction sites, coupled with comparatively disproportionate impacts that discharges from construction sites have on water quality. With estimates of sediment discharge from unvegetated construction sites ranging up to 200 tons per year and sediment concentrations in sediment as high as 160,000 parts per million, the Agency has often noted that stormwater management at such sites ranks prominently among is compliance and enforcement priorities. Judging from past experience, the Agency undoubtedly will accompany its issuance of the new CGP with a new enforcement campaign aimed at producing one or more well-timed, large figure settlements. Enforcement efforts that have accompanied previous EPA stormwater regulatory issuances have included a $925,000 settlement with Beazer Homes USA, Inc. in 2010 and a record $3.1 million settlement with retail giant Walmart in 2003.
Enforcement by EPA and states adopting the federal CGP format will be greatly simplified by the CGP’s adoption of new requirements for maintaining documentation on-site of inspection and monitoring, corrective action measures taken, rainfall events, and other information. This documentation will effectively provide EPA (or state) inspectors with additional tools for ensuring that site operators have maintained continuous compliance throughout construction, as opposed to a snapshot of the site’s compliance status based on visual observations of site conditions made on the date of the inspection.
The federal CGP update contains a number of more stringent requirements aimed at ensuring that construction job site operators are sufficiently controlling construction-related discharges of sediments, nutrients and other pollutants into surface waters – a chief cause of impacts to impaired rivers and streams. Since EPA stayed its previously issued numeric effluent standard for turbidity in stormwater runoff at construction sites, the updated CGP reflects only the non-numeric effluent limitations that EPA adopted in its 2010 rulemaking for construction and development sites (the “C&D Rule”). Nonetheless, various requirements incorporated into the updated CGP, such as those for erosion and sediment control, soil stabilization, pollution prevention, corrective action and inspection and recordkeeping, will present a not-insignificant undertaking at most job sites, especially at smaller sites between one and five acres of disturbance. Depending on the particular circumstances of the site, such as its proximity to surface waters, the costs of complying with the permit’s requirements could be significantly higher than before. On the other hand, the CGP incorporates a number of tools and features designed to simplify the process for becoming covered under the CGP and ensuring compliance with its requirements. These include, for example, an online Notice of Intent application process, tutorials and simplified tools for estimating and calculating the types and amounts of sediment controls based on local or regional soil and vegetative characteristics.
In states not authorized to implement their own stormwater management programs (e.g., Idaho, Massachusetts, New Hampshire, New Mexico and the District of Columbia) and certain areas in other states subject to federal control, the new federal CGP will be required for any construction that will disturb more than one acre of land. (Individual sites under one acre also will be required to obtain the CGP if they are part of a common plan development and the total amount of disturbed land in the development is greater than one acre.) The parties required to obtain the permit include any “operator” of the construction project, which includes both the general contractor and the site owner who has control over the project design and specifications. Both entities must obtain coverage under the CGP via filing of a Notice of Intent, but can develop joint documentation needed for permit compliance.
Prior to filing the Notice of Intent, operators are required to prepare a Stormwater Pollution Prevention Plan (“SWPPP”), which must describe all sedimentation and erosion controls as well as other pollution prevention controls that will be employed at the site. The Notice of Intent must then be filed at least 14 days prior to the commencement of construction.
The most significant change in the new EPA CGP relates to its incorporation of the most up-to-date best management practices (“BMPs”) for sediment and erosion control. While operators of most large sites (i.e., more than five acres of disturbance) are probably familiar with these, many operators of smaller sites will need to become familiar with them for the first time. Alternatively, they may be well advised to retain a qualified engineering consultant to ensure that the general contractor is in compliance with them and other CGP requirements. Given the joint responsibility of the general contractor and the site “owner” for acquiring the permit, it is important to emphasize that the owner could incur liability for any violations of the general contractor, penalties for which can range up to $32,500 per day for each day of continued violation. In addition, EPA (and likely any state adopting the federal CGP) will have the authority to stop construction pending the implementation of any corrective action measures in the case of non-compliance.
The CGP requires that downgradient sediment controls needed for initial site clearing, grading, excavating, and other land-disturbing activities be implemented prior to the commencement of any earthmoving activities. Erosion and sediment controls are generally required to minimize sediment discharges, the duration and area of exposed soil during construction, disturbance to steep slopes and soil compaction. In addition, operators are required to control the volume of stormwater runoff to minimize erosion with the use of retention basins, berming around storm drain inlets, or by diverting runoff into naturally vegetated areas of the site. The use of natural buffers and outlet structures that allow for drainage from the surface of basins is also required.
Where disturbances will be performed within 50 feet of a surface water body, the operators must either employ a 50-foot undisturbed natural buffer between the disturbance and the surface water or employ a combination of a smaller buffer and additional controls that will achieve an equivalent of load reduction. If it is infeasible to employ any buffer at all, the operator may employ additional controls to achieve a load reduction equivalent to a 50-foot natural buffer. Additional flexibility is provided for small lots by employing a risk-based approach that takes into account regional variations in soil permeability due to soil characteristics. The CGP also restricts the use of treatment chemicals, such as cationic chemicals, that are used to reduce turbidity in stormwater dischargers, except as may be approved by EPA on a case-by-case basis.
Additional controls are required to minimize the occurrence of dirt and mud being tracked out of the construction site by equipment and trucks. These include the restriction of vehicle traffic to designated exit points, the use of controls to remove sediment from vehicle tires prior exit, and the removal of tracked-out sediment from paved surfaces by the end of the next work day.
The CGP also requires that if vegetation is used for site stabilization, the operator must seed or plant the area and provide temporary protective cover over 70 percent of the affected area within 14 days after construction is stopped. If non-vegetative stabilization measures are employed, they must be installed over the entire affected area within 14 days after construction is stopped. These timeframes are shortened to seven days if the site is located near surface waters designated as sensitive (e.g., impaired surface waters due to sediment or nutrients or Tier 2, Tier 2.5 or Tier 3 waters).
The CGP’s pollution prevention requirements restrict discharges of various types of construction-related chemicals and materials, including fertilizers. Wastewater from the washout of concrete, stucco, or paint or from release oils and curing compounds is generally prohibited unless managed by an appropriate control to prevent discharge. Discharges of fuels, oils or other pollutants used for the operation and maintenance of vehicles or equipment is prohibited, as are discharges of soaps or solvents used in vehicle or equipment washing, or spilled toxic or hazardous substances.
Operators are also required to employ an effective means of preventing discharges from sources of pollution, such as secondary containment and spill kits. All chemicals used on-site are required to be stored in leak-proof containers that are located as far away as possible from surface waters, storm sewer inlets and drainage outlets.
While EPA’s new CGP is directly applicable only in states that do not have their own authorized programs, it is likely to be incorporated into many states’ programs as they are required to update their own CGPs to comply with EPA’s C&D Rule over the next three years. Moreover, even states that do not adopt EPA’s CGP in toto will likely look to the EPA model as a baseline reference point when updating their CGPs. Entities planning construction projects involving the disturbance of one or more acres should therefore determine whether they are likely to become subject to the more stringent requirements, or similar requirements adopted under an authorized state program, for sedimentation and erosion control set forth in EPA’s new CGP. Given the relatively greater costs that may be associated with complying with any such requirements, depending on the particular circumstances of the site, developers would be well advised to include stormwater management compliance cost to their list of due diligence items during the project feasibility stage.
Steven L. Humphreys is a Special Counsel with Kelley Drye & Warren LLP's environmental practice group, where he specializes in environmental issues that arise in connection with corporate and real estate transactions, environmental litigation and regulatory compliance counseling.