GPSolo September 2007
State Construction General Permits for Storm Water Discharges
The U.S. Environmental Protection Agency (EPA) administers the federal regulation of construction discharges through the National Pollutant Discharge Elimination System (NPDES) permit program. The centerpiece of the federal program is EPA’s “NPDES General Permit for Storm Water Discharges from Construction Activities.” The agency publishes a general permit containing conditions and requirements that are necessary to protect water quality. Each discharger then obtains coverage under the general permit by developing and implementing a storm water pollution prevention plan (SWPPP), filing a notice of intent (NOI), and complying with the permit’s terms.
The interpretation of construction permits by state or local inspectors and EPA inspectors can differ.
EPA has authorized 45 states to implement their own construction general permits under EPA-delegated NPDES permitting programs for storm water discharges. Although the construction general permits in these delegated states have some provisions in common with EPA’s construction general permit, many differ significantly from the EPA model with regard to the application process, review and approval of SWPPPs, inspection requirements, public notice, fees, and other aspects.
Variability in state construction general permits. Many states with comprehensive erosion and sediment control programs combine those programs with the NPDES construction general permit program. Typically, the local soil conservation district reviews and approves the erosion and sediment control plan, and the state environmental agency administers the construction general permit that incorporates the approved erosion and sediment control plan as the SWPPP.
States also vary in their procedures for obtaining construction general permit coverage. While all states use some type of NOI to be covered by the general permit, a small number of states do not require NOIs for small construction activities that disturb one to five acres. Such small sites have automatic coverage under their construction general permits if coverage has been obtained under the Soil Erosion and Sedimentation Control Program.
Another variable among states is whether the SWPPP must be reviewed prior to permit coverage. EPA’s construction general permit has a self-implementing SWPPP with no requirement for submittal to or approval by EPA. Many states follow this self-implementing SWPPP model. Other states require some form of prior review or approval of the SWPPP or equivalent plan from the state or a local agency. The SWPPP approval process among these states is wide ranging.
Developer, builder, and contractor issues. At any construction site, many parties impact compliance with the construction general permit. Activities of developers, builders, and contractors affect storm water discharges. In any common plan of development involving multiple parties, assigning responsibility for permitting, compliance, and risk of loss for noncompliance is essential.
When a passive owner turns all development and construction over to a developer that contracts with others, the passive owner needs to make clear that the developer, not the owner, is responsible for obtaining permit coverage, complying with the permit, and responding to non-compliance issues. The purchase contract between the developer and builder should specify that the builder is responsible for storm water compliance on the builder’s property only and that the compliance of other parts of the development, including common areas, remains the responsibility of the developer or other builders.
Enforcement: State vs. federal perspective. EPA retains the authority to enforce state-issued permits. This federal enforcement presence has resulted in inconsistency in interpreting and enforcing the applicable state construction general permits, thereby catching developers and builders in the middle. The federal approach is to actively pursue enforcement from the outset. To ease the administrative burden of having a significant enforcement presence, EPA adopted an expedited settlement offer program for storm water inspections. Under this program, the EPA site inspector marks on an EPA inspection checklist any deficiencies believed to exist. The checklist includes a monetary penalty amount for each deficiency noted. The site operator has a limited time to remedy the alleged deficiencies and pay the calculated fine.
A major problem with EPA enforcement of delegated programs is the difference in the interpretation of state general permits by state or local inspectors and EPA inspectors. In the case of the EPA inspector, some part of the difference may be rooted in the expedited settlement offer process. The expedited settlement offer checklist is generally based on the requirements of the federal construction general permit, which differs in material ways from many state construction general permits. Some EPA regions historically used the checklist without regard to the terms of the applicable state general permit. Recently, EPA regions have moved to state-specific expedited settlement offer worksheets that cross-reference the applicable state general permit.
Common enforcement issues and defenses. Federal, state, and local inspectors often allege a violation based on observation of a control in need of maintenance (e.g., a torn silt fence or sediment buildup in a storm drain inlet control). The stated basis for the violation is generally a permit provision stating something to the effect of, “all controls must be maintained in good working condition.” It is unreasonable, however, to require all controls to be in perfect working order at all times. Further, the general permits do not impose such a requirement. All construction general permits require inspections. The construction general permits also require issues identified during the inspection to be addressed within a given time frame. A control in need of maintenance can be a violation only if inspections were not done as required or if the need for maintenance was identified in a previous inspection but not addressed in a timely manner.
Another issue relates to when controls require maintenance. For example, when does silt buildup on a silt fence require maintenance? The buildup of silt indicates that the control is working as designed, but at exactly what point the buildup either impairs or limits the functionality of the control is subjective. Similar maintenance subjectivity issues arise in determining when a control has degraded past effectiveness, how much trash is too much, and what is ineffective stabilization. Builders should provide their own inspectors with clear guidance regarding when controls will need maintenance and evaluate that guidance based on communication with the agency inspector.
In some cases, EPA has relied on state or local inspections of a site to initiate enforcement against a builder. Many state and local programs take a proactive, compliance-oriented approach to storm water discharges prior to subdivision of an area, as opposed to EPA’s enforcement-first approach. State and local inspectors often make general comments or provide reminders in their inspection reports that are not intended to document violations. Unfortunately, in many cases, EPA has not consulted with state or local inspectors to be sure that no notations are taken out of context. This puts builders in the awkward position of pitting the state or local inspector against EPA over the interpretation of a notation. Because state and local inspectors do not want to be put in this situation, they have been receptive to working with builders to be sure that violations and comments are segregated and clearly identified as such.
Becky Jolin is a partner at Thompson & Knight LLP’s Austin, Texas, office. Matthew Knifton is counsel with Thompson & Knight LLP’s Austin, Texas, office. Brendan Lowrey is an associate in Thompson & Knight LLP’s Dallas, Texas, office.
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