New Regulations for Storm Water at Construction Sites

In light of recently published regulations governing storm water discharges from construction sites, affected parties should immediately implement new management practices at construction sites. Effective February 1, 2010, the regulations impose specific storm water management practice requirements ("best practicable technologies," or "BPT") that apply to all construction sites disturbing one or more acres of land. The regulations also impose numeric effluent limitations on the sediment content ("turbidity") of storm water discharged from large construction sites to surface waters. The effluent limitations go into effect on August 1, 2011, for sites disturbing twenty or more acres of land and on February 2, 2014, for construction sites disturbing ten or more acres of land.

The new BPT requirements include, among other things, the following:

1. The implementation of on-site soil and erosion controls such as the use of storm water retention/sedimentation basins to control the quantity and velocity of storm water discharges, placement of temporary cover over disturbed areas, and minimizing the amount of exposed soil.
2. The stabilization of disturbed areas immediately after earth-disturbing activities have permanently ceased or have temporarily ceased for more than 14 days.
3. The prohibition of the discharge of dewatering waters without the use of appropriate controls.
4. The employment of measures to minimize the discharge of pollutants such as vehicle and equipment washwaters, landscaping and building chemicals, and spills and leaks of other chemicals from construction sites.
5. The prohibition of any discharge of wastewater from the washout of concrete (unless appropriate controls are employed) and the washout and cleanout of stucco, paint and other materials, as well as any discharge of fuels, oils and other pollutants used in vehicle operation, maintenance and cleaning.

The turbidity effluent limitation is set at a daily maximum level of 280 nephelometric turbidity limits ("NTU"), which is typically measured with field instrumentation. The limitation does not apply on days when a storm exceeds two-year/24-hour storm levels. The new regulations do not specify the types of sediment controls that must be employed to achieve the numeric effluent limitation, nor do they specify how storm water discharges are to be monitored to demonstrate compliance with that limitation. These matters are left to the determination of state permitting authorities. Given the new storm water practice management requirements, the construction industry should anticipate agency site visits (and potential enforcement).

Dykema provides services to the construction industry as well as to related industries. Please contact one of our environmental law professionals for assistance.

Questions concerning the new regulations for storm water at construction sites may be directed to Mark Jacobs at 312-568-6845.

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