Sustainable Land Development Today - February 2008 - (Page 11) *A more specific analysis of the Guidance and its text may be found at http://www.swtlaw.com/PDFs/articles/environmental/RapanosGuidanceArt441B5.pdf. all discharges of pollutants into waters of the United States from a point source. Eroded soils and sediments are defined as pollutants under the CWA and in 1987 Congress amended the CWA to require NPDES permits for storm- water discharges. As a practical matter, NPDES permits are issued and enforced by the majority of states and territories that have been authorized to implement the CWA by the United States Environmental Protection Agency (EPA), although the agency retains jurisdiction and oversight of these programs. One other important aspect of the CWA is that unlike some state erosion control regulatory schemes, it can be directly enforced by either the government or by affected individuals under the citizen suit provision of the Act. As a result, the CWA has allowed a broader scope of enforcement by allowing citizens to take action where the state and federal governments cannot due to limited resources. Moreover, as one court noted in the context of a citizen suit under a similar provision for hazardous waste regulation, to the citizen impacted by a thirdparty infraction, there is no violation too small for enforcement. While customized individual NPDES construction stormwater permits exist under the Act, the more common practice is to regulate stormwater discharges through a general permit with uniform standards and requirements applicable to all sites. Phase I, the first implementation phase of the general construction stormwater permit, applied the NPDES permit requirement on all projects consisting of five acres or more. Later, Phase II expanded coverage to include sites of one acre or more, which encompasses almost all moderate to large undertakings. Despite the recent U.S. Supreme Court ruling in Rapanos v. United States, the scope of the CWA’s jurisdiction remains extremely broad, and the recent Guidance* issued on this subject by the EPA offers little help in clarifying any new restrictions. It is better to move forward under the assumption that the CWA applies to your project. The purpose of the general NPDES construction stormwater permit is the protection of water quality through the use of a minimum effluent limitation on the discharge of eroded soil and sediment pollution from a construction site. While many state regulatory schemes are based on the proper creation or implementation of control plans, the CWA focuses on the quality of the stormwater leaving the site. Whether it is a subjective limitation such as a prohibition on the visual discoloration of water, or a specific measurement of turbidity or total suspended solids, the fundamental point of compliance under the NPDES is this effluent limitation. There are many ways, however, to violate the NPDES permit, which also requires some monitoring and sampling of potentially impacted waters, specific record keeping and retention measures, and regular compliance reporting to the regulatory agency. Because many NPDES construction stormwater permits also incorporate a particular state’s erosion and sediment control regulations, a violation of the state standards will also be a violation of the NPDES permit. Even so, as with the state’s regulation, the basic methodology for compliance remains the proper design, implementation and maintenance of BMPs. Avoiding Litigation Particular care with erosion and sedimentation control should be taken anytime the development site or adjoining property contains streams, lakes or wetlands. Any significant sediment discharges directly into these waters will likely lead to government enforcement or a private action by the adjoining property owner. Even though it may seem like an efficient use of space, stormwater or sediment detention or retention ponds should never be placed in a live stream, lake or wetland area where even the well-maintained direction of eroded soils and sediment would be a violation of the Act. The erosion control design also should not otherwise allow the discharge of eroded soils or sediment directly into such surface water or onto an adjoining property. Standard engineering practice calls for directing stormwater discharges to the lowest point to take it off the prop- An example of BMP failure. During a down pour this silt fence breached, allowing pollution to escape. File Photo: Schulten Ward & Turner, LLP. www.SLDTonline.com 11 http://www.swtlaw.com/PDFs/articles/environmental/RapanosGuidanceArt441B5.pdf http://www.SLDTonline.com
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