Publication

April 2005Published Article

Pay Attention to New Storm-Water Rules

The Daily Reporter, Tools of the Trade

If your building project involves moving an acre or more of dirt, be aware that state and federal storm-water regulations require you to prepare erosion-control and storm-water management plans and obtain a Department of Natural Resources permit before you move that first shovel. Not doing so (or not following the permit requirements) could subject you to significant financial penalties, as the federal and state governments ratchet up enforcement attention on this form of water pollution.

Wetlands, lakes and streams are particularly vulnerable to erosion from rain washing away exposed land scraped bare during construction. Called nonpoint runoff, the United States Environmental Protection Agency identifies it as the major remaining threat to water quality nationwide and considers it the leading cause of damage to 40 percent of the nation’s impaired waterways. Federal storm-water regulations are enforced in Wisconsin by the DNR as part of the Wisconsin Pollutant Discharge Elimination System permit program. Wisconsin’s Phase I regulations went into effect in October 2002 – applicable to construction sites on which 5 acres or more of the land was cleared. On Aug.1, the DNR put the Phase II rules into effect – now applicable to projects as small as 1 acre of land disturbance.

The landowner is responsible for compliance and must develop an erosion-control and storm-water management plan designed to reduce runoff by 80 percent during construction, a management plan for site stabilization post-construction and a long-term maintenance agreement to assure storm-water management practices will continue to be implemented and maintained.

The landowner must also:

  • Submit to the DNR a notice of intent to conduct a land disturbing construction activity at least 14 days prior to beginning construction. The DNR will typically issue the general storm-water permit for construction site activities, a one-size-fits-all permit that requires construction to follow best management practices. If the DNR determines an individual permit is required, it will notify the landowner and dirt moving cannot start until that permit is issued.
  • Comply with the general storm-water permit during construction.
  • Give the DNR notice of termination upon project completion.

The DNR wants long-term maintenance responsibilities to rest with a legally viable entity guaranteed to be in existence and capable of implementing these obligations in perpetuity. For techniques on individual homeowners’ lots, this responsibility can usually go to the homeowner as the new landowner. For techniques implemented in common areas – storm-water ponds – the question is tougher. We’ve found the DNR won’t accept homeowners associations for this role, because there is no assurance they will continue to actively function. Some municipalities are willing to accept storm-water maintenance obligations in the same way they accept dedication of streets and parks, but not all see it that way. Other options can involve use of conservation easements held by qualified nonprofits. Additional creative solutions will be necessary as this particular program requirement gets greater scrutiny.

EPA’s priority

Storm water is the EPA’s highest Clean Water Act enforcement priority. Making good on that promise, in 2001 and 2004, it settled two separate lawsuits against Wal-Mart and its construction contractors for storm-water violations in multiple states. In the 2001 settlement, Wal-Mart paid a $1 million penalty and spent $4.5 million to establish an environmental management plan to prevent future violations. In the 2004 settlement, Wal-Mart paid another $3.1 million penalty along with $250,000 for compliance and contractor training.

In Wisconsin, the DNR is on the enforcement front line. It has also identified storm-water violations during land development as a high priority for enforcement, and is using two enforcement tools -- citations issued by a conservation warden and enforced by the district attorney, carrying statutory penalties ranging from $10 to $500 per violation, and referring the case to the Wisconsin Department of Justice, with statutory penalties ranging from $10 to $10,000 per day per violation.

When things go wrong on site, the potential penalty exposure for multiple violations on many days mounts up quickly. It’s worth your time to pay attention or you can expect to pay the price.

Linda H. Bochert can be reached at Michael Best & Friedrich LLP at 608.283.2271, or by email at lhbochert@michaelbest.com.

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