EPA Inspects Construction Sites

By Linda C. Connell

December 2003

New EPA regulations under the Clean Water Act will require more owners and contractors to comply with federal regulations before and during construction. Contractors in New Hampshire are generally familiar with the Terrain Alteration Permit needed from NH DES (New Hampshire Department of Environmental Services) if 100,000 square feet or more are to be disturbed in the course of a construction project. There is less familiarity with the EPA requirement for a NPDES General Permit for Storm Water Discharges from Construction Activities, described below. A NPDES Permit has been required since 1990 for projects that will disturb more than 5 acres of land in the course of construction. New EPA regulations now generally require a NPDES Permit for disturbance of only 1 acre within a project (effective March 10, 2003). Owners and contractors should get to know the details of this requirement, because EPA inspectors have been visiting construction sites in New Hampshire this year for the purpose of determining compliance with these regulations. Both the state Terrain Alteration Permit and federal NPDES Permit program share the goal of preventing the erosion of soil and the flow of surface water with sediment and possible pollutants from construction sites. The initial filing requirement under the federal regulation is shorter--the Notice of Intent (NOI) is only 2 pages. However, the ongoing record-keeping obligations are greater and subject to review by a visiting EPA site inspector. The Clean Water Act enforcement provisions are available to the EPA to assure compliance.

In order to comply with the NPDES General Permit, a project must have a written Storm Water Pollution Prevention Plan (SWPPP) kept at the construction site. The SWPPP prescribes the engineering/construction steps necessary to inhibit the flow of potentially polluted water from disturbed land. The SWPPP also describes the best ongoing management practices required to make the plan work. Regular self-inspections, written records describing those inspections and the remedial actions taken to alleviate any problems found, and maintenance of those records for 3 years are requirements of the General Permit that must be part of a SWPPP. The self-inspections generally must be done after every precipitation event of .5 inches or more and, at a minimum, every 2 weeks, or be done on a weekly basis EPA regulators are now inspecting field conditions at construction sites and are reviewing the SWPPP and the records kept pursuant to the SWPPP.

The NOI must be filed with the EPA at least 7 days prior to the beginning of construction. It must include a statement that the project will not harm federally listed endangered species and their critical habitat. The SWPPP must document how that conclusion was reached. The SWPPP is not filed with the NOI, but must be maintained at the construction site once the NOI is filed. A notice of termination of the project must also be filed.

Linda C. Connell is the Chair of the Land Use Practice Group of McLane, Graf, Raulerson & Middleton, Professional Association, and a partner of the firm. McLane is New Hampshire’s largest law firm with over 70 lawyers, nineteen of which are recognized in Woodward’s Best Lawyers in America in a wide range of specialties. Linda’s practice involves all aspects of real estate development. She can be reached at linda.connell@mclane.com or at 603-628-1310.