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Increased storm water permit enforcement: Don’t get caught in the storm.

Since 1991, construction activities that disturb greater than five acres of land have been subject to Clean Water Act National Pollutant Discharge Elimination System (NPDES) permitting requirements for storm water run-off. In 1999, the Environmental Protection Agency (EPA) reduced the acreage threshold for the permitting requirement to one acre of construction activity. Construction sites meeting the acreage threshold are required to obtain coverage under an individual or general NPDES permit and implement best management practices (BMP) and other controls to reduce contaminants from construction activities in storm water run-off. In addition, construction activities that discharge run-off to municipal storm systems, including road ditches and culverts, are also subject to control under EPA-mandated municipal storm water control programs.

EPA’s storm water program is now over 15 years old, and the agency has stated that it believes the program’s requirements should be fully implemented by the construction and development industry. Citing widespread noncompliance with storm water program requirements,

likely due at least in part to the fact that the program has historically not been the subject of comprehensive compliance inspections or enforcement, EPA and state enforcement authorities have stepped up inspections and enforcement at construction sites. Albeit to a lesser extent, local municipalities have also increased enforcement pursuant to their EPA mandated obligation to regulate construction site storm water issues through local ordinances or regulations, inspection of sites and response to violations.

Consistent with EPA’s 2003 designation of storm water enforcement as a top Clean Water Act enforcement priority, EPA Region 4 (which includes Kentucky, Tennessee and Georgia) has been especially aggressive recently in inspecting and taking enforcement actions against developers. Typical fines for storm water violations by developers in recent months have ranged from $20,000 to $50,000, although higher fines have been seen. For example, in early 2006, Wal-Mart Stores, Inc. agreed to pay a $75,000 penalty and to provide training to construction professionals to settle charges that it failed to employ proper erosion control procedures at a “Superstore” construction site in Illinois. Moreover, inspections and enforcement have not been restricted to major metropolitan areas, as construction sites in smaller communities have been targeted as well. There is also evidence that EPA intends to pursue criminal sanctions against developers that it finds are knowingly avoiding permitting requirements for storm water discharges or stream channelization.

Members of the construction and development industry can expect this increased enforcement to continue. Construction site owners and operators should take proactive measures now, before an inspection, to ensure that they are in compliance with storm water control requirements. Greenebaum has considerable experience with respect to advising on storm water compliance issues and negotiating resolution of alleged storm water violations with EPA Region 4 and the Kentucky Environmental and Public Protection Cabinet.

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    As a member of the Environment, Energy & Natural Resources practice group, Kelly's practice at Bingham Greenebaum Doll LLP involves consulting with and representing firm corporate clients with respect to a broad range of state and ...



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