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Know the Law: Keeping Up with Stormwater Permits

Written by: Viggo C. Fish

Published in the Union Leader (11/10/2019)

Q: How serious is it if my company is required to have a federal stormwater permit but does not, or is out of compliance with a stormwater permit?

A: In short, failure to comply with stormwater permit regulations can be very serious. The Clean Water Act (CWA) authorizes the Environmental Protection Agency to impose penalties that can range from $50,000 to $500,000 and higher. Generally speaking, stormwater is regulated at industrial and construction sites as well as municipal and transportation stormwater management systems.

If your company operates an industrial facility or conducts certain industrial activities covered by the regulations, you must have a stormwater permit (with limited exceptions). You should have a qualified environmental consultant and legal counsel evaluate your situation if you are unsure whether your facility, and/or activities, is covered by this program.

If your company has a construction project that will disturb 1 acre or more, or is part of a common plan of development that will, in aggregate, disturb 1 acre or more, you also must obtain a stormwater permit, as well as a New Hampshire Alteration of Terrain Permit depending on the size of the disturbed area.

For industrial facilities or activities, or construction sites subject to these requirements, it is necessary to obtain coverage under the multi-sector general permit (MSGP) or construction general permit (CGP), respectively. This is accomplished by filing a proper notice of intent to be covered by such a general permit. An owner or operator is also required to develop and implement a site-specific stormwater pollution prevention plan (SWPPP). The SWPPP must be prepared and certified by a licensed professional engineer, signed by an authorized operator for the site and be maintained at the site. The SWPPP must be updated periodically to reflect current activities and conditions at the site, among other things. The purpose of a SWPPP, as the name implies, is to control stormwater pollution emanating from your site.

Stormwater is regulated by the federal National Pollutant Discharge Elimination System (NPDES) stormwater program. NPDES stormwater permits (including the MSGP and CGP) must be renewed at five-year intervals. Failure to comply with an NPDES stormwater permit can result in significant government enforcement, including penalties. In addition, non-compliance, in cases where the government has not taken effective enforcement action, exposes owners or operators to private citizen lawsuits under the CWA.

In such citizen suits, claims for injunctive relief (requiring compliance), penalties, and attorney’s fees can be made against you. In matters of this type, it is usually necessary to have the advice and assistance of qualified environmental consultants and environmental legal counsel.

Viggo can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., Manchester, NH 03101 or emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.

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