2010 Fort Carson Sustainability Award

“Upon its inception in 2004, Stormwater Risk Management (SRM) dedicated itself to becoming the most informed and credible National Pollutant Discharge Elimination System ( NPDES) Permit resource for contractors, developers and regulators. SRM’s technical guidance, expertise and willingness to provide assistance to numerous entities at Fort Carson is exceptionally noteworthy. They have been fundamental in helping innovative partnerships at Fort Carson interpret the Clean Water Act, meet regulatory requirements and protect the environment while still supporting training of our soldiers. SRM has provided much needed technical assistance, training, and guidance to the US Army Corps of Engineers,  construction site operators and especially the Directorate of Public Works – Environmental Division. With limited resources, SRM has worked with project managers in developing efficient on-site stormwater management systems.  SRM’s detailed inspections and professional interaction with participants in these partnerships has supported Fort Carson’s Sustainable Development goals and initiatives.”

Colonel Robert F. McLaughlin (left) presented the 2010 Sustainability Award to SRM (Bill Robinson center; Rich Jackson right)

Research the history of the EPA’s Construction & Development ELG Final Rule from December 1, 2009. Go to ELG information on EPA website

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.

It will be interesting to see how this trash TMDL will be implemented and what effect, if any, it will have on NPDES Construction General Permit (CGP) holders. Solid waste and trash are common pollutants on construction sites that must be controlled under the existing CGP structure. The CGP also places responsibility on applicants to document in the SWPPP the steps taken to investigate potential TMDLs that could apply to the project being built. Once aware of the limits, CGP applicants must take any applicable TMDLs into account in the development of the SWPPP.

Read the attached EPA notice and stay tuned as we discover what it actually means to the construction industry.

For example, it appears the EPA is preparing to apply significant federal pressure, if required, to States that fail to provide adequate assurances that they are achieving TMDL pollution reductions for nitrogen, phosphates and sediment within the tributaries to the CBW. For instance, to meet TMDL requirements for sediment for the entire CBW, sediment discharge reductions must be achieved per the state-by-state TMDL allocations, even in currently unregulated sectors such as farming. If States, through their individual Watershed Improvement Plans (WIP), can not provide adequate assurances to the EPA that currently un-regulated sources of sediment discharges are being properly reduced, then it appears the EPA has the authority to shift the pollution reduction burden to currently regulated sectors, such as construction, under the NPDES regulations.

Exactly how shifting of the pollution burden to currently regulated industry sectors will occur is not yet known, but will be determined based on the final WIPs that each state must have completed and submitted to the EPA by November 9, 2010. By December 31,2010, the EPA will finalize the CBW TMDL.

Read the EPA’s Executive Summary at the link below to better understand how they expect to enforce the CBW TMDL. This is a new regulatory approach for construction that will add even more uncertainty (risk) to an already confusing regulation for builders and State and local regulators

Executive Summary

Two day USMS training.

U.S. EPA Administrator Jackson Takes New Steps to Improve Water Quality

Release date: 07/06/2009

Contact Information: Deb Berlin, berlin.deb@epa.gov, 202-564-4914, 202-564-4355

WASHINGTON – The U.S. Environmental Protection Agency has made available comprehensive reports and data on water enforcement in all 50 states. This is part of Administrator Lisa P. Jackson’s larger effort by to enhance transparency, promote the public’s right to know about water quality and provide information on EPA’s actions to protect water under the Clean Water Act.

In a memorandum issued last Thursday, Administrator Jackson directed EPA’s Office of Enforcement and Compliance Assurance (OECA) to develop an action plan to enhance public transparency regarding clean water enforcement. In the memo, she also calls for stronger enforcement performance at federal and state levels and a transformation of EPA’s water quality and compliance information systems.

The administrator’s memo directed the agency to take several actions, including:

• Improve and enhance the information available on the EPA website on compliance and enforcement activities in each state, showing connections to local water quality where possible;
• Provide information in a user-friendly format form that is easily understood and useable by the public;
• Raise the bar for clean water enforcement performance and ensure enforcement is taken against serious violations that threaten water quality; and
• Improve EPA’s enforcement performance in states where EPA directly implements the clean water program.

Administrator Jackson directed OECA to work with EPA’s Office of Water and to consult closely with EPA’s 10 regional offices and the states on the action plan. After obtaining input from other stakeholders, the assistant administrator of OECA, Cynthia Giles, will report back to Administrator Jackson in 90 days with recommendations.

More information on the state-by-state reports: http://www.epa.gov/compliance/state/srf/index.html

More information on EPA and state enforcement data:
http://www.epa.gov/compliance/data/results/performance/cwa/index.html

Copy of the administrator’s memorandum:
http://www.epa.gov/compliance/data/results/performance/cwa/jackson-ltr-cwa-enf.html

Link to 10/14/09 EPA hearing on “The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation’s Waters”:

http://transportation.house.gov/Media/file/Full%20Committee/20091015/SSM_FC.pdf

(as posted on EPA website – see link below)

On December 1, 2009, the U.S. Environmental Protection Agency (EPA) published effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control the discharge of pollutants from construction sites.

The regulation is effective on February 1, 2010. After this date, all permits issued by EPA or states must incorporate the final rule requirements. All construction sites required to obtain permit coverage must implement a range of erosion and sediment controls and pollution prevention measures. Beginning on August 1, 2011 all sites that disturb 20 or more acres of land at one time are required to comply with the turbidity limitation. On February 2, 2014 the limitation applies to all construction sites disturbing 10 or more acres of land at one time. These sites must sample stormwater discharges and comply with a numeric limitation for turbidity. The limitation is 280 NTU (nephelometric turbidity units).

The December 1, Federal Register notice for the final rule contains incorrect compliance dates for the turbidity limitation for sites disturbing 20 or more acres at one time. This error appears on page 63050 of the preamble to the final rule as well as in the rule text at 450.22(a) on page 63058. Both the preamble and the rule incorrectly state this date as August 2, 2010. The correct date is August 1, 2011. A correction notice to address this error was published on March 8, 2010.

http://www.epa.gov/waterscience/guide/construction/

Release date: 07/06/2009

Contact Information: Deb Berlin, berlin.deb@epa.gov, 202-564-4914, 202-564-4355

WASHINGTON – The U.S. Environmental Protection Agency has made available comprehensive reports and data on water enforcement in all 50 states. This is part of Administrator Lisa P. Jackson’s larger effort to enhance transparency, promote the public’s right to know about water quality and provide information on EPA’s actions to protect water under the Clean Water Act.

In a memorandum issued last Thursday, Administrator Jackson directed EPA’s Office of Enforcement and Compliance Assurance (OECA) to develop an action plan to enhance public transparency regarding clean water enforcement. In the memo, she also calls for stronger enforcement performance at federal and state levels and a transformation of EPA’s water quality and compliance information systems.

In keeping with this directive, EPA has posted detailed information on the current state of clean water compliance and enforcement in each state, and copies of the latest clean water enforcement and compliance performance reports for each state to the agency’s Web site. EPA also launched new Web-based tools to help the public search, assess, and analyze the data the agency used to help prepare those reports.

These actions are among of several aggressive steps taken by Administrator Jackson to improve the nation’s water quality by increasing the transparency and effectiveness of the agency’s national Clean Water Act enforcement program.

The administrator’s memo directed the agency to take several actions, including:

• Improve and enhance the information available on the EPA website on compliance and enforcement activities in each state, showing connections to local water quality where possible;
• Provide information in a user-friendly format form that is easily understood and useable by the public;
• Raise the bar for clean water enforcement performance and ensure enforcement is taken against serious violations that threaten water quality; and
• Improve EPA’s enforcement performance in states where EPA directly implements the clean water program.

Administrator Jackson directed OECA to work with EPA’s Office of Water and to consult closely with EPA’s 10 regional offices and the states on the action plan. After obtaining input from other stakeholders, the assistant administrator of OECA, Cynthia Giles, will report back to Administrator Jackson in 90 days with recommendations.

More information on the state-by-state reports: http://www.epa.gov/compliance/state/srf/index.html

More information on EPA and state enforcement data:
http://www.epa.gov/compliance/data/results/performance/cwa/index.html

Copy of the administrator’s memorandum:
http://www.epa.gov/compliance/data/results/performance/cwa/jackson-ltr-cwa-enf.html

Link to 10/14/09 EPA hearing on “The Clean Water Act after 37 Years: Recommitting to the Protection of the Nation’s Waters”:

http://transportation.house.gov/Media/file/Full%20Committee/20091015/SSM_FC.pdf