Storm Water Permit
Stormwater permit enforcement is a national priority for EPA. In addition to other enforcement remedies, EPA may seek civil penalties for noncompliance of up to $27,500 per day for each day of violation. To date, EPA's focus has been on "big box" builders and on large, national home builders. This does not mean, however, that EPA will be content to stop at the larger companies. Indeed, a majority of construction activities nationwide are undertaken by smaller entities. In numerous states, EPA is undertaking its own investigations as well as encouraging states to target compliance assessment and enforcement efforts in watersheds with water bodies of special concern. The penalties sought by EPA and, more importantly, the penalties obtained in settlement, have ranged up into the millions of dollars.
While no one denies the need for compliance with the stormwater permitting requirements, EPA's tactics are not without controversy. Many of the claims are brought against companies that have failed to obtain permits. The liability there is pretty straightforward, although some would argue that EPA has not been effective in communicating the need for stormwater permits to smaller builders. In instances when companies did obtain permits, it is also difficult to determine whether or not a BMP is being complied with. BMPs are governed by good engineering practices designed to retain sediment on site to the maximum extent "practicable", rather than on specific effluent limitations. In many cases it is difficult to discern what practices are sufficient. For example, a silt fence that sags for several days in between inspections may be considered by EPA to be a violation for each day that it is not fixed, despite the fact that under the SWPPP the fence is not required to be inspected during that several day period. Labeling such an event a permit violation (subject to up to $27,500 of fines per day) would appear inconsistent with the notion that inspections, followed by maintenance and repair of problems identified in the inspection are fundamental to BMPs.
The magnitude of this interpretation of a permit violation is seen when one considers that a large site may have hundreds of different BMPs in place. It is well understood by people in the construction industry that in a dynamic environment such as a construction site silt fences and other structural elements are going to experience natural wear and tear. The liability exposure is considerable. Thus the general perspective of the regulated community is that, while the failure to install a sediment and erosion control measure or to properly maintain it (i.e. to repair on a timely basis what is discovered to be failing) may, under certain circumstances, be considered a permit violation, it is questionable whether a sagging fence that is not discovered until the authorized inspection takes place is a permit violation. This issue is presently the subject of much controversy nationwide and how EPA (and more importantly the courts) interpret the tension between routine maintenance and the EPA's desire to enforce will have significant ramifications for the construction industry.
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