Federal Enforcement of Stormwater Permits in New Jersey

December 2011Articles In the Zone

For years, New Jersey has been delegated the authority under the Federal Clean Water Act to manage non-point source stormwater pollutant runoff. Under both the federal Clean Water Act and the Water Pollution Control Act, recent regulatory interpretation has held that “soil runoff” constitutes a pollutant that when discharged into open waters would be a violation of both statutes. Federal authorities have not enforced these types of violations for years. Enforcement was historically left to state authorities, which in New Jersey has been delegated to the local soil conservation districts.

Recently, the federal EPA has stepped up enforcement of the federal Clean Water Act and Water Pollution Control Act for non-point soil runoff pollution. The implications for land developers of this new federal initiative are substantial.

Developers are familiar with the NJPDES Construction Activity Stormwater General Permit (General Permit), which is issued in conjunction with the soil conservation district soil plan approval. Every soil erosion and sediment control plan endorsement is accompanied by the General Permit. Developers and contractors should be well versed with local soil conservation district best management practices, including containment of runoff onsite, soil stabilization and prevention of erosion. The federal requirements pertinent to and part of the General Permit, as found in Attachment B to the Permit, have not been routinely enforced by local soil conservation districts. In particular, Attachment B to the General Permit requires onsite stormwater control and construction waste control measures as part of the Stormwater Pollution Prevention Plan (SPPP). Attachment B also requires a minimum of weekly inspections for soil control measures and operational construction waste control, and these inspections MUST BE DOCUMENTED.

The Stormwater Pollution Prevention Plan requires not just the weekly inspections but the implementation of stormwater BMPs to control soil erosion and prevent offsite stormwater discharge. These BMPs include concrete waste staging areas for the cleaning of all concrete trucks after any onsite pour, soil removal and maintenance of access areas into and out of construction sites to eliminate the transportation of soil erosion materials off site, as well as the regular inspection and maintenance of hay bales, steel fences and other types of measures utilized to maintain stormwater flows and erosion on site and prevent offsite migration. In addition, in areas of acid producing soils (north coastal NJ running parallel to the Delaware River to Salem County) require enhanced soil protection measures, including separate stockpiles, limestone blending and limited exposure to air and rain (30 days).

With the new initiative, federal authorities are now inspecting construction sites to determine compliance with the Stormwater Pollution Prevention Plan, Attachment B onsite stormwater control and the recordkeeping required under Attachment B documenting the stormwater BMP inspections. Because of the heightened federal inspections, developers must be proactive in conducting and properly documenting the SPPP weekly inspections. Keeping meticulous inspection records allows for documentation of any violations and corrective actions taken so that in the event an inspection occurs, the construction manager can provide the federal inspectors with the SPPP and the Attachment B weekly site inspections. This recordkeeping allows the inspectors to assess how BMPs are being implemented, the track record of proactive inspections and remedial actions and the steps taken to properly monitor and control soil erosion and runoff.

The repercussions of failure to comply with Attachment B BMP requirements under the SPPP are significant. At a minimum, Expedited Settlement Offers (ESO) of $15,000 are routine in the face of failure to maintain the Attachment B records. In the event that no records have been kept and there are onsite soil erosion violations, ESOs may not be available and a much larger fine may be assessed.

The ESO fine comes directly out of operational profit for every builder/ contractor. Routine weekly soil erosion measure inspections and proper recordkeeping are and should be a normal course of work for all contractors and/or developers. Federal, state and local authorities and soil conservation districts are often subject to third-party calls and notifications related to potential violations of SPPPs by offsite runoff. Failure to keep records in the face of a third-party complaint may result in even greater fines than the $15,000 ESO. Therefore, construction contractors and developers must be conscious of and committed to the requirement for proper recordkeeping to comply with the Stormwater Pollution Prevention Plan and Attachment B. This should be a requirement in every contractor’s scope of work and must include soil stabilization standards related to soil stock piling, as well as staging areas for construction waste, most particularly concrete. By being proactive, developers and contractors can best protect themselves from fines and violation notices: “an ounce of prevention is worth a pound of cure!”

For more information, please contact Henry L. Kent-Smith at 609.896.4584 or [email protected].

View entire publication (Pdf).