Monday, August 23, 2010

My Eyeballs and The Clean Water Act

When I'm not being socially challenged, I'm a weekend gardener who has two daughters pursuing horticulture careers and a third daughter who created a suburban farm.  So I wasn't surprised when recently a client asked me to research the ramifications of the Clean Water Act as part of a project.  I found it interesting and knowing the growing focus on conservation, I thought you'd find it interesting too.

In November 2009, as a result of changes in the Clean Water Act, the U.S. Environmental Protection Agency (EPA) issued a final rule to help reduce water pollution from construction sites. This is the first time that EPA has imposed national monitoring requirements and enforceable numeric limitations on construction site storm water discharges. 

The ruling took effect in February 2010 and is being phased in over four years.  It is anticipated that compliance will positively impact the quality of water throughout the U.S because it tackles one of the leading causes of water quality problems nationwide, soil and sediment runoff from construction.

This EPA rule requires construction site owners and operators that disturb one or more acres to use best management practices (BMPs) to ensure that soil disturbed during construction activity does not pollute nearby water bodies. In addition, owners and operators of sites that impact 10 or more acres of land at one time will be required to monitor discharges and ensure they comply with specific limits on discharges to minimize the impact on nearby water bodies.

This monitoring requirement is a different approach for the EPA because it incorporates a technology “floor” which sets out a numeric standard on the clarity of the water discharged from the developer’s site. Clarity is one criteria that is measured and the other is storm water displacement.

Water displacement is based on the amount of rain received on a site over a 2 year period.  The volume of water is calculated and that becomes the benchmark. For example construction of a building with parking lots could be projected at 250,000 gallons of diverted water.  Rather than allowing this water to run off, it needs to be held somehow on the site and allowed to re-integrate with the soil.

Examples of available options for controlling this run off might include green roofing or a less expensive alternative is developing a “recharge area” defined as a space typically stone filled, that resides underground on the site.  Since often one tactic isn't enough both of these solutions might be needed in combination with others to meet EPA standards.

In addition to planning for water displacement, if there is a stream or waterway on a site the buffer area where construction is prohibited has expanded from 50 ft to 150 ft.  The objective is to ensure that the construction doesn’t contribute to the degradation of that waterway; that the high quality of the water is protected.  This means there is less area that can be developed and in some instances sites that can’t be developed at all.

Runoff and soil erosion are managed during the actual construction process by using techniques outlined by the EPA called Best Management Practices (BMPs) to reduce construction-related pollution.  BMPs result in such activities as minimizing land clearing, building proper site entrances, stabilizing steep slopes, and installing sediment traps.  To be most effective, several BMPs need to be used in combination.

Adopting BMPs is part of the process.  Under the Clean Water Act, certain construction sites must obtain a National Pollutant Discharge Elimination System (NPDES) permit. This permit enables operators of these sites to implement steps to prevent sediment and other pollutants from washing off into nearby waterways.  The permit, which requires a plan document, in the past was available for 5 years and could be extended.  Currently however, only 2-year non-renewable permits are available.

The two-year permit is another indication that the guidelines and accompanying laws are in great flux.  There is a lot of uncertainty surrounding the regulations and what will happen in the future; a fact that is born out by the case involving Crum Creek.  The case is on appeal before the Pennsylvania Commonwealth Court and raises issues surrounding the development activities in the state’s special protection watersheds.

The net is that the new regulations and their interpretation need to be at the forefront of the building process but even if all the approvals are obtained and the guidelines are followed, architects and builders are in a precarious position.  What can they do to insure that their plans and actions stay within the limits of these new regulations? What do you think about the law and how it's being implemented? 

Photograph by my daughter, Jen Zwarg
Information is resourced from several of online sites, available upon request.
See Becker's Environmental Law Update, Stormwater Regulations are Flawed, EPA Needs a Do-Over

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