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Compliance With Storm Water Rules Serious Business
 Even as the U.S. Environmental Protection Agency considers more stringent regulations on storm water management for construction sites, it remains important for builders and developers to comply with the rules now in place, according to storm water regulation expert Jennifer Hildebrand of Weis Builders Inc. and Washington area builder Chuck Ellison of Miller and Smith.
The two appeared on a July 28 webinar by NAHB to discuss the storm water regulation challenges confronting the housing industry.
“The EPA is taking compliance very seriously,” said Hildebrand, reminding participants of one settlement with the agency that cost a group of high-production builders more than $3 million in enforcement penalties.
President Obama has proposed a 34% budget increase for environmental enforcement activities and the agency has more criminal investigators on staff than at any point in EPA’s history, she said.
In addition, there are a growing number of citizen-led and environmental groups that are keeping a closer tab on construction activities to tip off regulators about alleged violations, Hildebrand said.
Builders and developers must apply for a National Pollutant Discharge Elimination System (NPDES) permit for all sites that disturb more than one acre of land. Smaller sites also need to be permitted if they are part of a subdivision that ultimately disturbs more than one acre of land over the course of development.
Some states and localities that administer storm water compliance programs on behalf of the federal agency might have more stringent rules; NPDES authority requires a local program to meet or exceed federal requirements.
For the federal NPDES permit, builders must file a notice of intent, prepare a written plan that demonstrates how storm water and other discharges will be contained within the site (a Storm Water Pollution Prevention Plan, or SWPPP) and document all the measures taken to stabilize the site and prevent erosion.
“These are the rules of the game,” Hildebrand said.
The agency looks at the factors that influence erosion — rainfall and climate, soil erodibility, slope length and steepness, and cover and conservation practices. A rainfall erosivity calculator using the Revised Universal Soil Loss Equation is available to help builders determine whether they can get an erosivity waiver for their project or time the construction process to avoid the most runoff.
The tool is also useful because it helps builders demonstrate their attempts at compliance — and helps avoid penalties, she said.
Builders are responsible not only for the sediment that leaves their sites, but also for pathogens, like animal waste; construction debris and other litter; and contaminants such as sealants and chemicals used during the construction process. They can also be held liable if storm water leaving their site changes the temperature of the bodies of water it eventually enters, potentially harming fish and other acquatic life.
The EPA has published a number of guides to help builders and developers abide by the many regulations, including a manual to help builders write an SWPPP. Hildebrand offered five keys to successful SWPPP compliance:
- Research the site thoroughly. Understand the existing vegetation and site conditions, know the contributing water bodies and be familiar with any local regulations. Make sure that nearby water bodies are not listed as impaired under Section 303D of the Clean Water Act.
- Make sure the SWPPP is designed specifically for the site in question and can address any adjacent landowner issues as well as entrance and egress points for equipment.
- Ensure that subcontractors understand their responsibilities regarding the SWPPP and assign specific responsibilities for site maintenance. Conduct a preconstruction meeting to go over the plan with local regulators and affected staff and subs.
- Make sure all the SWPPP records are regularly updated with inspection forms after rain or other events that affect storm water discharge as well as with any changes in construction plans.
- Seven out of 10 environmental actions involve documentation problems and 60% of 48 finable elements involve site documentation. The most important thing is to keep careful, detailed records of the site and how it’s maintained, she said.
Water Quality and Builders
In addition to regulating the quantity of potential pollutants entering a body of water, the U.S. Clean Water Act — the source of NPDES regulation — can also regulate the quality of the water.
To do so, regulators look at the Total Maximum Daily Load, which defines the amount of a particular pollutant that a body of water can absorb on a daily basis without violating water quality standards. States are responsible for determining which water bodies are “impaired” and can determine how much of a pollutant can be added to that water.
The increasing emphasis on water quality is reflected in a recent EPA proposal released as a result of a lawsuit by environmental groups. For the first time, the construction and development industry soon faces effluent limit guidelines (ELGs) that include benchmarks for the turbidity, or clarity, of the water.
NAHB has responded with comments on the new ELGs, reinforcing the importance of the techniques and procedures builders currently use to manage storm water runoff and citing the crippling expenses that the industry would incur from the additional maintenance and operation of equipment the agency is considering mandating. Some estimates place the additional compliance costs as high as $45,000 per acre.
Hildebrand reviewed a number of existing techniques being used by builders — such as low-impact development, environmental site design and compliance with voluntary green building programs such as the National Green Building Standard, which includes storm water management issues in its site and lot development category.
The webinar was the second in a series hosted by the NAHB Land Development Committee on regulatory and environmental topics. The presentation is available at www.nahb.org/ldelearning.
For more information, e-mail Calli Schmidt at NAHB, or call her at 800-368-5242 x8132.
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