Is A SWPPP Plan In Your Future?

Small Project Storm Water Regulation Requirements

  Go Into Effect On January 1, 2003

By

William C. Last, Jr.

And

Lucinda Dustin

         As all contractors and subcontractors well know, the construction of any building always involves the use of a great number of hazardous materials. The hazardous products used in routine construction include petroleum products, pesticides, herbicides, and common building materials such as asphalt, paint, and concrete. All of these products are, or contain toxic contaminants that can be carried off a construction site by rain or snow storm waters and be deposited into storm water drains and waterways. Storm water runoff from construction sites is a significant source of water quality impairment.

           Until recently, federal and state environmental agencies only regulated storm waters from construction projects involving in excess of five (5) acres. However beginning in January 2003, construction projects involving between one (1) and five (5) acres also will be subject to storm water management regulations. The extension of storm water regulation to small construction sites potentially will increase both the costs of construction and liability of every contractor and subcontractor on a project.

           While the project owner has the ultimate duty of compliance with storm water regulation, the project owner typically shifts the burden of plan development and compliance to the project’s contractors and subcontractors. Therefore every contractor and subcontractor must closely review bid solicitations, contracts, and conditions to determine if their proposed construction duties include storm water management. Such participation can include hidden costs such as the payment of a $700 permit fee and expenditures in excess of $20,000 for the development and implementation of a Storm Water Pollution Prevention Plan (“SWPPP”).

        This article will discuss the nature and requirements associated with storm water pollution prevention as applied to construction projects and penalties for failing to develop and implement a plan.

            When Did Regulation Of Storm Water Run-Off Begin?

         Storm water regulation began with the Clean Water Act (“CWA”). Congress enacted the CWA to protect our Nation’s waters. In 1987, amendments to the CWA required storm water dischargers to obtain NPDES storm water discharge permit. In 1990, the United States Environmental Protection Agency (“EPA”) published Phase I regulations requiring larger construction sites involving five or more acres to obtain NPDES permits as part of a master plan to control storm water runoff. As of January 2003, Phase II regulations reduce the NPDES permit requirement threshold to construction sites of one acre or more.

          In addition, under these new regulations, all construction projects that involve between one and five acres are classified as Small Construction Projects subject to special NPDES permit regulation. Construction projects involving one acre or more must obtain a NPDES construction storm water permit in order to discharge storm waters from the construction site and implement practices to minimize pollutant runoff.

            The EPA has delegated the implementation of the NPDES permitting program to some, but not all states. Under NPDES, certain states (“designated” states) have been delegated the authority to operate the NPDES permitting program. California is a designated state. As a designated state, California has the authority to issue and enforce NPDES permits. However, California, as a designated state, also must develop regulations and guidelines that are equal to, or better than EPA Phase I and Phase II regulations. Compliance oversight of the NPDES permitting program flows from the EPA, to the State of California, and finally to local governmental agencies. In California, the State Water Resources Control Board (“SWRCB”) issues the NPDES Permit. California local county and city agencies then are required to oversee the NPDES permitted construction projects in their area to ensure compliance. These local enforcement agencies also must promulgate regulations and guidelines equal to or better than, the California state requirements. 

            What Is Required When Applying For NPDES General Permit For Construction Activity Storm Water Discharges (“General Permit”)?

            Before commencing any construction activity, a project owner must obtain a NPDES Construction General Permit. The project owner must file a Notice of Intent (“NOI”) with the SWRCB. A NOI is a notification that a construction site is about to begin, the location of the project, the responsible parties and a certification that a SWPPP has been prepared and will be complied with. The NOI also is an application for the General Permit. The NOI filing fee has been increased to $700.

           The project owner must develop a Storm Water Pollution Prevention Plan (“SWPPP”) before submitting the NOI. The SWPPP must contain site specific BMPs that are designed to minimize the discharge of pollutants from the site. The SWPPP is not submitted to the SWCRB. It is retained onsite for inspection upon demand.

What Is A SWPPP?

          A SWPPP is a site-specific, dynamic plan that describes specific activities at that site to control the discharge of pollutants into local storm drains and waterways

         The SWPPP must contain a description of the potential pollutant sources. The basic elements to a SWPPP are:

§        Pre-Construction Site Information

§        An Assessment of the Site and Project

§        Selecting and Describing the Best Management Practices (“BMP”)

§        Certification and Notification

§        Construction and Implementation of BMPs

§        Final Stabilization and Termination

            Almost everything typically used in a construction project is considered a potential pollutant that must be evaluated and described with an appropriate run-off prevention solution in the SWPPP. For example, potential pollutants include plaster, solvents, concrete, antifreeze, coolants, paint, and concrete. In addition, under SWRCB Resolution No. 2001-046, the SWPPP, if the runoff will reach a listed 303(d) water, the SWPPP must also include a sampling and analysis strategy and schedule for discharges.

            While the project owner has the ultimate responsibility for SWPPP development and compliance, these burdens may be shifted down to the general contractor, who in turn, shifts it to the subcontractors. A contractor or subcontractor will find its SWPPP development and compliance obligations in the scope of work portion of the contract, the specifications, and the SWPPP. Routine and complete record keeping is essential to prove compliance. The difference between a finding of SWPPP compliance and non-compliance often rests on the ability of the owner to show due diligence in the implementation of the SWPPP. A finding of non-compliance can result in the monetary penalties and project delay.

            What are BMPs?

            BMPs or Best Management Practices is a term used to describe an action, program, or device that is designed to reduce or eliminate pollutants or a particular pollutant in site runoff. BMPs can include good site housekeeping practices, inspections, maintenance; employee education as to pollution prevention measurers; or any other physical action to secure the project so polluted soils and sediments do not run off into existing storm drains and sewers.

            What are Listed 303(d) Waters?

            Listed 303(d) waters are pollution runoff impaired bodies of waters that SWCRB has identified and designated. These water bodies are listed in Attachment 3 to the General Permit. If a project impacts any of the listed waters, then in addition to the basic SWPPP requirements, the owner must include procedures for the sampling and analysis of discharges throughout the life of the project. The guidelines for meeting these requirements are available on-line at www.stormwatertaskforce.org under Resolution No. 2001-046.

            How Do I Prepare And Submit A SWPPP?

            Although a project owner or the general contractor probably can prepare a SWPPP, it may be more cost effective, efficient, and practical to use a professional storm water specialist. A storm water specialist can prepare the SWPPP, ensure that the site is SWPPP ready, oversee and manage SWPPP implementation of the BMPs, and coordinate with the various enforcement agencies.

            There also are erosion control specialty contractors who can install and maintain the SWPPP listed BMPs. In addition, there also are a number of qualified consulting engineering firms that specialize in erosion/sediment control and storm water management. Other consultants are available who can produce a site specific SWPPP, as well as offering site monitoring, compliance with applicable sampling and analysis requirements, and assistance in retaining an erosion control contractor. Many of these specialists offer services that are a cost-effective means of compliance with NPDES requirements. The International Erosion Control Association is an excellent source of information and also offers seminars on SWPPP development and implementation, including regulation compliance and Phase II certified training. 

            Is There A SWPPP In Your Future?

             If you are contractor, or subcontractor working on a construction site in excess of 1 acre, in California, the answer probably is yes. SWPPP is here to stay, and is part of the ongoing, ever expanding efforts of federal, state and local governments to regulate and reduce water pollution. However, as with most other regulatory requirements, the design and implementation of a proper SWPPP can make the difference between a successful project and a nightmare. The fines for SWPPP non-compliance can be over a $1,000 per day and suspension of work on the project. While SWPPP compliance will increase project costs, the cost of non-compliance arising from extended job site and office overhead, idle equipment, additional labor, etc. will be much greater. Clearly, it is far less expensive to prepare and implement an appropriate plan than to be cited for failure to comply with the regulations. 

            How Does SWPPP Change My Participation In A Project?

            In closing, every project owner, contractor, and subcontractor must include in their construction budget and project planning the costs of the creation and implementation of a SWPPP. The preparation and implementation of the SWPPP must be considered as early as bidding stage of a project so no later disputes can arise concerning costs and responsibility. Every contractor and subcontractor must examine the bidding documents, contract/subcontract and general and special conditions to identify and analyze how SWPPP will impact on their construction activities. If the bid package does not include SWPPP provisions, the contractor and subcontractor should consult the project to confirm that the project is legally exempt from SWPPP requirements.

This article, copyright 2002, was written jointly by William C. Last, Jr.  and Lucinda Dustin.   Mr. Last is an attorney who has been specializing in Construction Law for over eighteen years. Mr. Last also holds a California A&B contractors license. If you have any questions Mr. Last can be contacted at 415‑764‑1990 or 650-696-8350 or by e-mail at wclast@lastlawfirm.com. He has other articles on his web site: lhfconstructlaw.com.  Lucinda Dustin is a Storm Water Specialist with Stevens, Ferrone and Bailey, an engineering firm.  She is a certified instructor with the IECA, and active with the Building Industry Association.  Ms. Dustin has been involved in the construction industry and the green industry for over 18 years, specializing in erosion/sediment control and storm water management for the last seven years.  She can be reached at (925) 688-1001 and ldustin@sfandb.com.  This bulletin is published periodically to provide general information about current legal issues.  If you have a specific legal question or need legal advice, you should contact an attorney.