The U.S. Environmental Protection Agency’s (EPA) new rules to help reduce water pollution from construction sites are now in play and will be phased in during the next four years. The EPA believes these rules will significantly improve the quality of water nationwide. However, if you work in California, be aware that state permit requirements are more stringent than, and take precedence over, federal mandates.
“The EPA permit rules don’t apply to most development activities in California, since it is a delegated state,” said S. Wayne Rosenbaum, a partner at San Diego-based Foley & Lardner LLP. “The state has the authority to create its own storm runoff rules. There are some exceptions, such as Native American reservations that haven’t been released by the EPA to have their own program or other federal lands, but just about everybody else is covered by the California permits.”
The new rules
Construction activities like clearing, excavating, and grading disturb soil and sediment. If the disturbed soil is not managed properly, it is easily washed off of construction sites during storms into nearby watersheds.
The EPA’s effluent limitations guidelines (ELGs) require construction site owners and operators that disturb one or more acres of property to use best management practices to ensure that soil disturbed during construction does not pollute nearby water bodies.
Owners and operators of sites that impact 10 or more acres must monitor discharges and ensure that the discharges comply with specific limits to minimize impact. This is the first time that the EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site stormwater discharges.
Because California is a delegated state and its stormwater regulations are more rigorous than the federal EPA regulations, meeting the new federal guidelines should be straightforward. Keep in mind that state requirements can be onerous depending on the size of the project — California’s permit includes three levels of risk with sampling requirements based on these risks. The requirements become increasingly strict as risk levels rise.
Some construction projects generate more than stormwater discharges. For example, a project may encounter groundwater during excavation, which is then discharged. Available discharge methods are based on the volume and contaminant concentration found in the water. Groundwater can be used for dust control onsite or sent to the local sanitary sewer agency. If neither of these methods is used, a separate discharge permit is required from the Regional Water Quality Control Board (RWQCB).
Since California is a delegated state, each jurisdiction can develop its own permit, whether that’s done by a local or state board. The board then sends the permit to the EPA for a 100-day review period. If the EPA doesn’t veto the permit, the permit is assumed to have met the EPA requirements and is essentially approved. How the ELGs affect you also depends on the type of work you do and the jurisdiction in which the project is placed since water runoff rules for San Diego County differ wildly from, say the San Francisco Bay area.
Developers building a retail center or mixed-use project are subject to a general stormwater construction permit. They are also subject to specific post-construction requirements. For some projects, these requirements are written into the general municipal stormwater permits. There are about 30 different permits covering various jurisdictions including the Bay Area, San Diego County, and one that covers southern Orange County. Some school districts, water districts, prisons, and military facilities are classified as municipalities and fall under a state permit — The Small Municipal Permit. The problem is that city-to-city and county-to-county developers are subject to different sets of rules.
“The local permits then require the developers to fulfill specific provisions,” Rosenbaum said. For example, in Ventura County, the permit requires the developer to design systems that effectively retain all stormwater onsite, post-construction. In San Diego County, the permit requires a post-construction erosive force or the power of the discharge to be equal to the pre-construction level, so the runoff doesn’t erode stream beds.
“These permits require what are called ‘qualified Stormwater Pollution Prevention Plans (SWPPP) developers,’ such as professional licensed engineers, and licensed qualified SWPPP practitioners that implement the permit requirements,” Rosenbaum said.
An entire industry of consultants has come to life and builders have to hire them to meet the new requirements. “The rules state that you must have a qualified SWPPP developer — and the only people who can do that are professional engineers and professional geologists,” Rosenbaum added. “All of those folks have a license and so the cost of doing business is becoming horrendous.”
Contractors, developers, or anyone disturbing more than one acre of land needs to contract with professional consultants that are either licensed or certified. Personnel onsite developing or implementing SWPPPs must also be qualified by a certifying agency.
Look before leaping
“Before you get anywhere near a plan, check to see if this is, say a development for which a sequel analysis of all the new requirements is necessary,” Rosenbaum advised. “All of the new conditions have to be part of your analysis because, by definition, your construction has an environmental impact.”
It’s also important to establish the added fees associated with meeting regulations as well as the ways to mitigate runoff. Depending on the level of work required, fees can range from $10,000 per acre lot per rainy season upwards to a point where the fees are a significant line item and ultimately make the project prohibitive.
“Many clients can’t make the added fees pencil out during the planning stages, but they can’t just walk away and find another piece of land,” Rosenbaum said. “Add to that the unique requirements from specific counties and developers face all kinds of new engineering problems.”
Stormwater regulations don’t just apply during the construction process. In California, developers are responsible for the condition of the remaining soil as well as the runoff. California developers have to follow a series of stormwater obligations into perpetuity. One example of unanticipated consequences is when a developer, in good faith, thinks he is meeting requirements by adding bioswales or rain barrels.
“Ten years after the project is built, with the developers having installed swales to remove pollutants such as oil and grease, heavy metals, and homeowners’ pesticides; those grassy swales will be scooped out and cleaned. Now you have this big pile of debris, soil, and residue. Someone samples that stuff, as you must do before you dispose it, and it’s more than likely some form of hazardous waste. The original developer is responsible,” Rosenbaum said.
In addition to the recent EPA regulations, California’s current permit ran out June 30, 2010. The new permit — which is more complex and comprehensive, according to Rosenbaum — was adopted on Sept. 2, 2009 and took effect on July 1.
Ralph Vasquez is a senior project professional at SCS Engineers. He can be contacted at firstname.lastname@example.org.