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Builder Beware - EPA Targets Stormwater Violations

Ann Sobolewski February 1, 2008

In October 2007, the United States Environmental Protection Agency (EPA) issued a Compliance and Enforcement National Priority Statement setting the agency’s enforcement goals for 2008-2010.  The Statement targets three sectors for increased inspections and enforcement of the stormwater management requirements of the Federal Clean Water Act.  These three sectors are: (1) residential construction, (2) “big box store” construction and (3) producers of ready-mix concrete, sand and gravel and crushed stone.  The EPA asserts that these businesses, generally, are in material non-compliance with stormwater permitting requirements. 

The EPA’s program is a continuation of an enforcement strategy first implemented in 2003 when the Stormwater Regulations were revised to require a permit for construction activity involving the disturbance of one or more acres of land.  The Federal Clean Water Act imposes permit requirements for any “discharge associated with industrial activity.”  In 2003, the EPA designated construction activity involving the disturbance of one or more acres of land as an industrial activity that required a National Pollutant Discharge Elimination System (NPDES) stormwater permit.  This expanded the permit obligation.  Prior to 2003, only construction activity that disturbed five or more acres of land was required to obtain a NPDES permit.  It should be noted that the current permit requirement also applies to smaller sites that are part of a larger, common plan of development which is greater than one acre in size.

The permit obligation is imposed on persons responsible for either (1) construction plans and specifications, including the ability to make modifications to those plans and specifications, such as a developer, property owner, or general contractor, or (2) day-to-day activities at a project which are necessary to ensure compliance with a stormwater pollution prevention plan for the site, such as a general contractor. 

In states where the EPA operates the NPDES permitting program, such as Massachusetts, a Construction General Permit can be obtained by the submission of a Notice of Intent to the EPA through an internet portal.  Although not applicable to all construction activity, review of the Construction General Permit is an appropriate first step to determine the applicable permit requirements for any construction activity that will disturb one or more acres of land.  A Notice of Intent must be filed seven days prior to the commencement of construction and the applicant must have developed a Stormwater Pollution Prevention Plan (SWPP), in order to obtain coverage under the Construction General Permit.  Waivers are available for sites that will involve the disturbance of one to five acres of land.  Given the EPA’s enforcement goals, compliance with the stormwater permitting program should be a priority for any development that exceeds one acre.

The enforcement of NPDES permit requirements has been designated a top national priority and is being aggressively pursued.  For example, after the Statement was issued EPA Region 1 commenced seven enforcement actions against various developers, contractors and property owners for alleged violations of the stormwater permit program.  The EPA is seeking substantial penalties from many of the alleged violators.  Given the risks of inspection and enforcement companies in the targeted industries should carefully review their compliance with the stormwater permit program on an ongoing basis.

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