Industry News

Stormwater Permit Enforcement

May 2010

Last month we sent you a memo outlining the new NYSDEC General Permit for Stormwater Discharges from Construction Activities (GP-0-10-001). This memo outlined the new permit requirements for you as a builder/developer as it related to how you need to prepare and maintain your construction site and provide reporting on your compliance with the conditions of the permit. We also suggested that enforcement by the regulatory authorities would increase. While under the previous permit enforcement was not consistently applied by the NYSDEC or from municipality to municipality, indications are that would be changing with this new permit.

We are now in receipt of information that confirms that the enforcement from regulatory agencies is increasing. First, on April 20, 2010 US EPA announced a settlement with a residential homebuilder, where the homebuilder agreed to pay a $1 million civil penalty to resolve alleged Clean Water Act violations brought against the national homebuilder in several states. While this case involved a large scale national homebuilder working in 18 states, the fact is the violations all centered around construction erosion control violations on residential development sites. We have attached a link to the press release here for those interested in further information on this instance. (Click here)

Don’t be fooled in thinking that there is no potential for this to occur locally. Attached is an actual letter from EPA which was issued to a local residential homebuilder for his site in Penfield, NY (Click here). The name of the developer and site has been removed, but the developer has allowed us to use this letter to educate all of you as to the new era of enforcement. This letter was the result of a site visit by NYSDEC and US EPA representatives, and from reading the letter you should get an understanding that the enforcement of the stormwater permit is being taken seriously now for residential development projects. You will notice the amount of information that EPA requested of the developer going all the way back to the filing of the project NOI. The municipality was even solicited for their records of the site. Proper record management is important to being able to show your compliance with the General Permit.

This information is not being provided as a scare tactic, but it is being provided as a wake-up call to let you know that with the upcoming construction season it will not be business as usual; there is a new era in regulatory enforcement of the stormwater permit. In fact, the Monroe County Stormwater Coalition has just issued a draft of the standard inspection form to be used by the builder/developer's professional consultant for your weekly inspection reports. The form is eight (8) pages long. We have been in contact with the Coalition and raised concern over the length of the form and the additional time that will be required to complete this paperwork on a weekly basis. The coalition has agreed to look into preparing a short-form version of the form. We will continue to monitor the progress on this issue and report our findings to you. We at BME will continue to monitor the regulatory environment so that we can assist you with your compliance requirements.

Please contact us at BME with any questions you may have, and / or to discuss how the new permit may affect your current or future projects. Visit our new Web Site.

New NYSDEC Stormwater General Permit (GP-0-10-001) Stormwater Management

Effective January 29, 2010, the NYSDEC issued a new SPDES General Permit for Stormwater Discharges from Construction Activity (GP-0-10-001). This permit replaces the previous permit (GP-08-001) that construction activity was regulated under. The new permit is available for review and downloading at the NYSDEC website: www.dec.ny.gov/chemical/43133.html.

The new permit does contain a few significant revisions that will affect you from a SWPPP recordkeeping, construction monitoring, and a cost standpoint. We have summarized the revisions below:

Digital color photographs are now required to accompany the construction erosion control inspection reports. The photos are to document those practices that have been identified as needing corrective action or areas of non-compliance. The qualified inspector is also required to take color digital photos which show that the non-compliant condition or practice has been corrected. Photos taken are to be provided within seven (7) days of the date of the inspection.

The need for the owner’s qualified inspector to provide the photo documentation will increase the time spent, and thus the cost to conduct the inspection and increase the time to compile and distribute the inspection report.
The owner’s qualified inspector is now required to inspect all points of discharge to natural surface water bodies located within, or immediately adjacent to, the property boundaries of the construction site. The inspector is to provide a description of the condition of the points of discharge. This will result in increased time to conduct the inspection.
The NOI, SWPPP and inspection reports required by the permit are deemed public documents, and the owner must make them available for review and copying by any person within five (5) business days of receiving a written request for the documents. Copying of the documents will be done at the requestor’s expense. There is no regulation as to the cost of copying, and this provision does not allow public access to the construction site. The owner can determine the location for the requestor to receive and review the documents such as the developer’s or design consultant’s office or other convenient location.
For those sites that contain lands, or a portion thereof, identified on the NYS OPRHP (SHPO) archeological sensitive site maps, documentation is to be provided that the proposed construction activity will not affect these areas. This should typically be addressed during the SEQRA process conducted by the municipality as part of the subdivision or site plan review process. If it is not done at that time, then a separate application to SHPO will be required as part of the NOI submission process. This could affect the time necessary to receive authorization from DEC to proceed by months. The SWPPP is now to include the documentation that the proposed activity will not affect archeosensitive areas.
The MS4’s (municipalities) are responsible for approving the project SWPPP, signing the NOI and NOT, and approving the 5-acre disturbance waivers. The municipalities will also take on the role of onsite inspection for compliance, including review of the owner’s qualified inspector’s reports. As a result, the municipalities will be increasing their inspection fees to developers either through the Letter of Credit or via direct billing. For instance the Town of Penfield is increasing the Town Inspection item in the Letter of Credit from 3 percent to 4 percent of total construction costs. The Town of Canandaigua will contract directly with the Canandaigua Lake Watershed Inspector to provide oversight on construction projects with the inspection costs passed through to the developer.
The new permit references the pending revisions to the NYSDEC Design Manual that will be released in April. The new design manual is introducing new design parameters for development stormwater management plans, including the introduction of green infrastructure design elements and tighter post-construction controls. The result will likely be higher engineering and construction costs, as stormwater management facilities will become more sophisticated and require more land. Implementation of the new design manual is required by October 2010. Once the manual is issued, we will provide you with a separate summary of those changes.
The new permit does not contain any language or requirement concerning the EPA mandated Effluent Limit Guidelines (ELG) for stormwater discharges. NYSDEC has opted to not address ELG’s in this permit as they await further guidance from EPA on this matter. So, for the time being, there is no requirement to collect water samples or measure the turbidity of stormwater discharges.
If you currently have a construction project authorized under GP-08-001, then the permit coverage was automatically transferred to the new permit, GP-0-10-001. You need to do nothing further.

We have been in contact with several municipalities concerning the implementation of this new permit. It is acknowledged that this is a transition period, but by the time the 2010 construction season ramps up in the spring, the municipalities will be expecting full compliance by the owner / developer with the new permit.

Please review the information on the DEC website for a full review of the new permit. We will continue to monitor the implementation of the new permit through our involvement with the Monroe County Stormwater Coalition, RHBA and NYSBA, and pass on to you pertinent information.

Please contact us at BME with any questions you may have, and / or to discuss how the new permit may affect your current or future project.

NAHB Green Building Standard

In 2007-08, Bruce Boncke, President of BME Associates, served on the National Association of Homebuilders (NAHB) Green Building Consensus Committee, to develop the National Green Building Standard in compliance with the American National Standards Institute (ANSI). The Standard includes mandatory as well as suggested green building practices. A point system is in place that rates green building projects and categorizes them from Bronze, Silver, Gold, and up to the highest level, Emerald.

A copy of the National Green Building Standard can be purchased from the NAHB Green Building Program. For further information about the Standard, contact Bruce Boncke at BME Associates.

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