EPA CONTROL OF STORM WATER POLLUTION

As many local general contractors and developers are becoming all too aware, the U.S. Environmental Protection Agency ("EPA") is currently stepping up its storm water pollution control enforcement efforts on construction projects in southwestern Idaho. As evidence of these enforcement efforts, the EPA has levied stiff fines to a number of general contractors for failing to comply with the terms of EPA's Construction General Permit ("General Permit"). EPA is authorized to fine first time violators up to $32,500 per day for each violation. Additionally, first time violators can also face criminal penalties of up to one (1) year in prison. Second time violators and individuals who knowingly violate the terms of the General Permit are subject to even stiffer penalties. Because of the severity of the penalties that may be imposed for non-compliance, it is critical for every Idaho general contractor and developer to ensure that their project is General Permit compliant before commencing upon any new construction project.

Congress recently expanded the scope of the Clean Water Act to include a Storm Water Pollution Control Program that regulates storm water runoff from certain construction sites. Unfettered storm water runoff can be erosive and may contain high enough levels of sedimentation to affect water quality. Consequently, responsible parties must receive a storm water discharge permit for construction sites before beginning construction. In the interest of promoting efficiency, EPA does not issue individual site-specific permits for each and every construction site that it regulates. Instead, EPA has issued the General Permit to function as a general body of regulation establishing the Best Management Practices ("BMPs") for controlling site erosion and limiting the amounts of sedimentation contained in storm water runoff from any construction site. The most common BMPs include silt fences, graveled and rocked construction entrances, straw wattle erosion control mats, boulder check dams and lined drainage retention ponds. The General Permit requires the responsible parties to design a site-specific Storm Water Protection Plan ("Site Plan") implementing BMPs that will adequately control site erosion and limit the amount of sedimentation contained in the storm water runoff throughout that particular project. EPA then enforces the General Permit and the Site Plan by ensuring that the BMPs are adequate and that they are properly implemented. EPA is mandated to issue penalties for any violation of the General Permit or the Site Plan that allows storm water to discharge into a storm sewer or waterway.

The first step in the General Permit process is to file a Notice of Intent ("Notice") with EPA. To promote the ease of filing, EPA has recently instituted a new e-filing program that allows Notices to be filed online; however, they may still be filed by mail. The Notice must be filed at least seven (7) days before construction activities begin on the project site. A Notice essentially alerts EPA that someone intends to commence regulated construction activities in a specific location. Thereafter, EPA can enforce the terms of the General Permit and the Site Plan for the particular project. Without the Notice requirement, EPA would be virtually impotent since they would have to first discover constructions sites before they could enforce violations. Consequently, EPA considers the failure to file a Notice to be a serious violation of the General Permit.

Anyone who is authorized to exercise control over the project Site Plan, storm water conveyance designs, storm water control designs, or who is responsible for overseeing the construction of the project are considered responsible parties that may be held liable for non-compliance with the General Permit or the Site Plan. Obviously, most general contractors, owners, and developers fall within these categories. Consequently, they all must file Notices with EPA as co-permittees under the General Permit. Subcontractors, however, are not subject to liability for General Permit violations. Because subcontractors are not subject to liability, general contractors should strongly consider incorporating provisions into sub-contractual agreements that expressly indemnify the general contractor against any fines, penalties, costs or damages that they might incur as a result of the actions or inactions of a subcontractor due to the violation of any environmental law.

The EPA regulates both large and small construction projects within the state of Idaho under the terms of the General Permit. "Large construction activities" include any construction activity that will disturb, or that is part of a "common plan" to cumulatively disturb, five (5) or more acres of land. For example, if a developer builds a house on a half-acre lot within a six (6) acre subdivision development, it is considered a "large construction activity." All large construction activities must comply with all terms of the General Permit. "Small construction activities" include any construction activity that will disturb, or is part of a "common plan" that will cumulatively disturb, between one (1) to five (5) acres of land. In general they too must comply with the General Permit, but unlike large construction activities, waivers are available for certain small construction activities. Two types of waivers are available. In order to receive a waiver, the developer and/or general contractor must apply to the EPA prior to commencing any construction.

The first kind of waiver is based upon the amount of predicted rainfall erosivity for the area in which the construction project is located. Small construction activities can qualify for this waiver only if the common plan of cumulative development starts and finishes entirely within a period of "low predicted rainfall erosivity." Based upon the EPA's online rainfall erosivity calculator (see http://cfpub.epa.gov/npdes/stormwater/waiver.cfm) a small construction activity in Ada County must begin no earlier than June 1 and end no later than September 1 of the same year in order to qualify for the waiver. Failure to complete the entire common plan of cumulative development by September 1 would obligate the responsible party to file a Notice, design a Site Plan and fully comply with all other General Permit terms. Obviously, complying with these requirements could severely impact the ultimate completion date of the project.

The second type of waiver is based upon the total maximum daily load of pollutants already within potentially affected waterways. In order to qualify, the erosive sediments anticipated from construction site runoff must not cause any affected waterway to exceed its allowable total maximum daily load of pollutants. The Idaho Department of Environmental Quality typically makes this determination.

General contractors and developers should be aware, however, that very few projects will qualify for a waiver. Therefore, they should always be prepared to comply with the terms of the General Permit.