Sustainable Land Development Today - February 2008 - (Page 10) EROSION CONTROL Private lake impacted by sediment downstream near airport site. File Photo: Schulten Ward & Turner, LLP. When Good Development Goes Bad: Why Dirt Is Not Cheap Anymore By Martin A. Shelton, Esq. It is a simple concept: water runs downhill and as it does it picks up and carries away natural and man-made pollutants, finally depositing them into lakes, rivers, wetlands, coastal waters, and even in our underground sources of drinking water. By far the most visible of any pollutants in our waters are eroded soils and sediment which discolor the receiving water making the impact of such discharges obvious to anyone. In fact, eroded soils and sediment are among the leading pollutants discharged into the nation’s waters. Yet, for a number of reasons, they have proven to be one of the most difficult to regulate and control. As a result, we have seen an increased focus over the past decade by regulators and private citizens to address stormwater impacts. grams for erosion and sediment control. Some are governed under separate erosion and sediment control laws (e.g., Georgia and Nebraska), original conservation district laws (e.g., California and Mississippi), or water quality or watershed protection laws found in states such as Pennsylvania and New Mexico. Although the specifics vary from state to state, the three general approaches to regulation include: • Requiring an approved erosion and sediment control plan for any land disturbance; • Setting limits on soil loss from the site; or • Requiring a permit based on an approved plan. However, regardless of the regulatory scheme used, the common methodology for compliance is the proper use of Best Management Practices (BMPs). BMPs are structural and vegetative conservation measures, both temporary and permanent, that when properly designed, installed and maintained provide effective erosion and sediment control during rain events up to a specified design limit, i.e. the 25-year storm. Used effectively, BMPs can provide significant soil retention even on sites with severe erosion problems. Regardless of whether the standard is based on the amount of soil lost, the amount of soil and sediment pollution in stormwater discharges, or the perceived effectiveness of the control plan, retaining erodible soils and sedimentation on site ensures compliance with such standards. Yet, many developers are reluctant to invest the necessary funds needed for appropriate protective measures, especially in states where enforcement is less than stringent. However, the cost of noncompliance can be significant. Damages The History of Erosion Control Regulation Erosion control regulation began in the 1930s with the former United States Department of Agriculture (USDA) Soil Conservation Service’s efforts to prevent erosion resulting from agriculture and forestry practices. The USDA encouraged the adoption of statewide systems of soil conservation districts to implement erosion control practices. Increasingly, during the 1970s, concurrent with the passage of the Federal Clean Water Act (CWA) states turned to soil conservation districts for assistance in preventing erosion and sedimentation from all sources. This was done even as various localities began to pursue local regulation of activities that caused erosion and sedimentation. Today, all 50 states, the District of Columbia and U.S. Virgin Islands have pro- from erosion can be expensive to repair often requiring dredging, regrading and/or the replacement of eroded soils, damaged structures and eco-systems. One telling report on five, harbordredging projects in Michigan in the late 1960s involved the removal of one million cubic yards of non-natural (meaning caused by man) sediment at a cost of $2.50-$4.00 per cubic yard. The report, published in the 1969 Soil Conservation Service Engineering Field Manual, found that the use of proper control measures to retain these soils in place would have cost only 10-15 cents per cubic yard. While inflation has multiplied all of these costs fivefold, the relative ratios remain valid. The Clean Water Act and NPDES The stated purpose of the Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” (33 U.S.C. § 1251 et se) In order to achieve this goal, the CWA absolutely prohibits the discharge of any pollutant except under the terms of a permit issued pursuant to the Act. It is a regime of strict liability for violations of CWA standards unconcerned with whether a breach is the result of intention or negligence. Section 402 of the CWA requires permits under the National Pollutant Discharge Elimination System (NPDES) for 10 February 2008 Sustainable Land Development Today
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