If your building project involves moving dirt of an acre or more, you should know that state and federal storm water regulations require you to prepare an erosion control and storm water management plan and to obtain coverage under a Department of Natural Resources permit before you move that first shovel. Not doing so (or not following the conditions of the permit) could subject you to significant financial penalties, as the federal and state governments ratchet up their enforcement attention on this form of water pollution.
Nonpoint runoff is the major remaining threat to water quality
Wetlands, lakes and streams are particularly vulnerable to erosion that occurs when rain washes away exposed soil on land scraped bare during construction. Often referred to as “nonpoint” runoff, the United States Environmental Protection Agency identifies it as the major remaining threat to water quality in the nation, and estimates that nonpoint runoff is the leading cause of damage to 40% of the nation’s impaired waterways. [i] Wisconsin takes an active role in preventing the oil, grease, manure, pet waste, fertilizer, pesticides, and sediments accumulated in storm water from reaching the state’s plentiful wetland and water resources. While attention on nonpoint pollution has often treated agricultural practices as the primary problem, the nonpoint runoff from uncontrolled construction sites can deliver 10 times the sediment loads of typical rural and urban land uses.[ii]
These federal Clean Water Act requirements are implemented by DNR through NR 216
Part of the federal Clean Water Act, the federal Phase II storm water regulations, are enforced in Wisconsin by DNR as part of the state Wisconsin Pollutant Discharge Elimination System (WPDES) Permit program. [iii] Since 1972, the WPDES Permit program has controlled “point source” discharges of wastewater to waterways from industrial operations, ranging from cheese factories to paper mills. In 1987, Congress directed USEPA and the states to control storm water from industrial sites, municipalities and construction sites. DNR does this through NR 216 of the Wisconsin Administrative Code, based on statewide performance standards set in NR 151. Phase I of these regulations went into effect in Wisconsin in October 2002 and applied to construction sites on which 5 acres or more of the land was cleared. On August 1, 2004, DNR put Phase II into effect, making the rules now applicable to projects as small as one acre of land disturbance.
The landowner is the party responsible for compliance
DNR has set statewide performance standards for construction sites for new development and redevelopment, using the following important definitions:
- construction site”: the location of one or more “land disturbing activities” [iv]
- land disturbing activity”: alteration of the land surface that results in change in topography, vegetation, soil cover, which may result in runoff; includes clearing, grubbing, demolition, excavating, pit trench dewater, filling, and grading. [v] In other words, “moving dirt.”
- new development”: conversion of undeveloped or agricultural land [vi]
- redevelopment”: development that replaces older development [vii]
The law makes the landowner responsible for compliance. The landowner must develop 1) an erosion control and storm water management plan which is designed to reduce runoff by 80% during construction, 2) a management plan for site stabilization after construction is completed, and 3) a long-term maintenance agreement with some entity that will be in existence and responsible for assuring the storm water management practices will continue to be implemented and maintained. [viii]
There are three basic steps. First, the landowner submits to DNR a Notice of Intent [ix] (NOI) to conduct a land disturbing construction activity. This is due at least 14 days prior to beginning construction. In the typical case, DNR will respond by issuing the General Storm Water Permit for construction site activities. This is a one-size fits all permit that requires the construction to follow best management practices (BMPs). In the unusual case, DNR may require an individual permit be issued; in that case, DNR will notify the landowner and dirt moving cannot start until that permit is issued. Second, in carrying out the construction project, the landowner must comply with the requirements of the General Storm Water Permit. [x] Third, once the project is completed, the landowner must give DNR Notice of Termination (NOT). [xi] This NOT means that the landowner is both no longer responsible for storm water discharges from the construction site, and no longer authorized to discharge storm water from the site.
The long-term maintenance obligations are increasingly critical
In a construction project to build a new manufacturing facility, the landowner at the time of construction will likely be the landowner after construction as well. In a typical subdivision development project, however, the initial landowner will either be the developer or the builder but the ultimate landowner will be the homeowner. In most subdivision development, the developer or builder is involved with the project through the construction and site stabilization phases, then terminates the relationship after a certain number of lots are sold. Because the obligation for implementing and maintaining the storm water management practices remains, this is the point at which the long-term maintenance agreement kicks in and the responsibility and authority for storm water discharges shift from the developer or builder to . . . whom?
DNR looks for this responsibility to rest with a legally viable entity that is guaranteed to be around and capable of carrying out these obligations in perpetuity. For storm water management techniques on individual homeowners’ lots, such as rain gardens, it seems that responsibility can be transferred to the homeowner, who is now the landowner as well. But for techniques implemented in common areas, such as storm water ponds or treatment trains, the question is a tougher one. We’ve found DNR unwilling to accept a homeowners association for this role, because there is no assurance the association will continue to actively function. Some municipalities have been willing to accept the long-term storm water maintenance obligation in the same way they accept the dedication of streets and parks, but not all see it that way. Other options can involve use of conservation easements held by qualified nonprofits. Look for additional creative solutions as this particular program requirement gets greater scrutiny.
Storm water is USEPA’s #1 Clean Water Act enforcement priority; DNR is following suit
USEPA has identified storm water as its highest Clean Water Act enforcement priority, ahead of combined sewer overflows (CSOs), sanitary sewer overflows (SSOs), and concentrated animal feeding operations (CAFOs). Making good on that promise, in 2001 USEPA and the United States Department of Justice settled a suit against Wal-Mart for storm water violations at 17 locations in Texas, New Mexico, Oklahoma and Massachusetts. [xii] That settlement required Wal-Mart to pay a $1 million penalty, and to spend $4.5 million to establish an environmental management plan intended to prevent future violations. The first multi-state storm water case, this case didn’t just involve Wal-Mart – it also covered 10 of Wal-Mart’s construction contractors. In 2004, USEPA/USDOJ settled a second suit against Wal-Mart, this time for storm water violations at 24 sites in 9 states, for which Wal-Mart paid another $3.1 million penalty along with $250,000 for a supplemental environmental project (SEP) with compliance, training and contractor components.[xiii]
USEPA retains enforcement authority in Wisconsin, but DNR will ordinarily be on the front line. DNR has also indicated that aggressive enforcement of storm water runoff violations occurring during development is one of its highest enforcement priorities. DNR has two enforcement options, and is exercising both of them. One option DNR is using is a citation – similar to a citation for a hunting or fishing violation – issued by a conservation warden and enforced by the local district attorney. DNR will cite both the company and the individual (contractor) carrying out the work. For violations of the provisions of a General Storm Water Permit the statutes provides a range of $10 to $500 per violation. [xiv]
DNR’s other option is to refer the case to the Wisconsin Department of Justice for prosecution. Under Chapter 283 of the statutes, penalties range from $10 to $10,000 per day per violation. [xv] When things go wrong on site, it doesn’t take much to rack up multiple violations over many days, and the potential penalty exposure can mount up quickly. So, it’s worth your time to pay attention or you can expect to pay the price.
For more information, please contact Linda H. Bochert at email@example.com or 608.283.2271.
[i] USEPA Enforcement Alert, Volume 4, No. 1, citing National Water Quality Report to Congress
[ii] January 22, 2004 memo from DNR Secretary Hassett to Natural Resources Board: Background on Proposed Revisions to Ch. NR 216, Storm Water Discharge Permits citing Owens, David W., Jopke, Peter, Hall, David W., Balousek, Jeremy and Roa, Aicardo. August 2000. U.S. Geological Service and Dane County Land Conservation Dept. “Soil Erosion from Two Small Construction Sites, Dane County, Wisconsin.” USGS Fact Sheet FS-109-00.
[iii] Sections 283.33 and 283.35, Wis. Stat.
[iv] NR 151.002(7), Wis. Admin. Code
[v] NR 151.002(22), Wis. Admin. Code
[vi] NR 151.002(28), Wis. Admin. Code
[vii] NR 151.002(39, Wis. Admin. Code
[viii] NR 216.41-55, Wis. Admin. Code
[ix] NR 216.43-45, Wis. Admin. Code
[x] NR 216.456, Wis. Admin. Code
[xi] NR 216.55, Wis. Admin. Code
[xii] USEPA/DOJ Press Release, June 7, 2001: “U.S. Reaches Water Pollution Settlement With Wal-Mart”
[xiii] U.S.v. Wal-Mart Stores, Inc., USEPA Fact Sheet, May 12, 2004
[xiv] Sections 23.99, 30.298(4), and 30.99, Wis. Stat.
[xv] Section 283.91, Wis. Stat.