Regulatory Background:

In 1972 the United States Congress amended the Clean Water Act (CWA) to prohibit the discharge of any pollutant to the waters of the United States from a point source unless the discharge was authorized by a National Pollutant Discharge Elimination System (NPDES) permit. The NPDES program is designed to track point sources and requires the implementation of controls necessary to minimize discharge of pollutants. Initial efforts to improve water quality under the NPDES program primarily focused on reducing pollutants in industrial process wastewater and municipal sewage.

As pollution control measures for these point sources were implemented and refined, it became increasingly evident that more diffuse sources of water pollution were also significant causes of water quality impairment. Specifically, storm water runoff from urbanized areas and construction sites was found to be a major cause of water quality impairments that led to reduced beneficial use of our nation’s waters. In 1987, Congress amended the CWA to require implementation, in two phases, of a comprehensive national program for addressing storm water discharges in urbanized areas and on construction sites. The first phase, implemented in 1990, was directed at large construction sites over 5 acres and the second phase, implemented in 1998, included construction sites over one acre in size.

Numerous studies and assessments were conducted by both government and private industry which led to the conclusion that storm water runoff from lands modified by human activities can harm surface water resources by changing natural hydrologic patterns, accelerating stream flows, and elevating pollutant concentrations and loadings. These studies concluded that storm water runoff often contains or mobilizes high levels of contaminants, such as sediment, suspended solids, nutrients (such as nitrogen and phosphorus), heavy metals and other toxic pollutants and floatables.  Uncontrolled storm water discharges from areas of urban development and construction activity were determined to negatively impact receiving waters by changing the physical, biological and chemical composition of the water.

Current reality:

Although is has been the law of the land since 1990, many in the construction and property development industries have been slow to accept the NPDES storm water requirements and compliance with the regulations has been extremely low. The EPA estimates that up to fifty percent of construction projects that should have NPDES permit coverage do not. Of those that do acquire the required permits, less than one-third meet the compliance requirements. As a result, the EPA has been steadily shifting attention and resources to increased enforcement activities and to innovative approaches to improve NPDES storm water permit compliance.

In its most recent public policy declarations, the EPA has begun to set more defined and targeted enforcement goals for states such as Colorado that have NPDES storm water enforcement authority. States, in turn, are pushing enforcement requirements down to local municipalities (MS4s). MS4s in Colorado will be expected, in the near future, to increase their enforcement of storm water permit compliance standards or face punitive action from the state. MS4 enforcement strategies for storm water permit non-compliance in many parts of the nation already include delays in building permit issuance, withholding of inspection services, red-tagging of projects, and monetary fines. It is reasonable to expect that implementation of these types of strategies at the local level will only increase as more pressure is applied by the states in response to the EPA’s expectations.

Private citizens and citizen groups are taking action as well. The CWA empowers citizens of the United States to not only sue polluters of the nation’s waters but to file suit against those regulatory agencies that are tasked with ensuring compliance. No one is exempt from the risk of a successful and costly lawsuit if they are found to be responsible for polluting the nation’s waters. The public’s sentiments are turning increasingly “green” as natural resources such as fresh water become scarcer in many parts of the country and this further emboldens regulators to take more dramatic steps to enforce the current regulations.

The future looks bleak for organizations that continue to ignore the current NPDES storm water permit requirements. According to its website, the EPA levied over $160 million in storm water-related fines in 2006. This is in addition to state-level fines. Since 2000, there has been a steady increase in attention paid to storm water quality by the EPA and all indications are that this trend will continue at all levels of the regulatory system.

While enforcement continues to increase, however, the EPA and many states are also looking into innovative ways to support NPDES storm water compliance through innovative means. Public and private partnership approaches such as the Colorado Stormwater Excellence Program (CSEP) are proving to be very cost-effective ways for regulators to increase their compliance assistance efforts and document real compliance improvements with minimal expenditure of public resources. The CSEP is nationally recognized for its effectiveness in helping storm water permit holders dramatically improve compliance through its standardized Environmental Management System based approach.

Storm Water Compliance Benefits:

Aside from the obvious negative consequences of regulatory non-compliance such as damage to the environment, monetary fines and lawsuits, restitution and reclamation costs, damaged reputations, etc., there can be many positive outcomes when successful compliance efforts are embraced and integrated into the culture of an organization. When integrated thoughtfully and properly, the benefits of regulatory compliance should include:

• Protection of the environment
• Profitability (storm water programs can and should be a profit center)
• Reduced BMP cost through proper pre-planning
• Beneficial regulatory relationships and partnerships
• Industry leadership opportunities and recognition
• Competitive advantage on environmentally sensitive projects
• Enhanced reputation and public image
• Positive and fully documented environmental track record
• Reduced regulatory enforcement risks
• Reduced risk of lawsuits
• Pride in company’s performance

Storm water permit compliance is the law and has been for seventeen years. Enforcement was not very stringent until 2002 and many in the building industry were lulled into a sense of complacency. There will always be those that continue to ignore the regulations, however, with the increased attention on water quality concerns in our nation and the corresponding increase in enforcement, it is just a matter of time before the playing field will be leveled for those that choose to take a leadership role in voluntary compliance.