New stormwater regulations add complexity to small job sites
New stormwater management regulations implemented by the State Department of Ecology last December have made building in Washington a little more complicated. Some in the industry say the new rules put an unacceptable burden on contractors. Others say they will only raise the cost of doing business.
Stormwater run-off has been regulated in Washington since the mid 1990s. In 2002, a permit was required for industrial sites only. The permit was modified in January 2005 to include commercial construction sites above five acres. The revised December 2009 permit requires builders on land between one and five acres to apply for a construction stormwater general permit as well.
New, effective Oct. 1, builders on land five acres and above are now required to employ a Certified Erosion and Sediment Control Lead, known as a CESCL, on site at all times. A CESCL monitors and inspects stormwater control measures, takes water samples and writes inspection reports. To fill this requirement, builders may send an employee to the two-day certification course offered by the Building Industry Association of Washington and now, as a result of mounting demand, by the BIA of Clark County. The course fee is $325 for non-association members and $250 otherwise. The alternative is to hire an independent CESCL, which could run between $60 to $100 per hour.
Currently, the CESCL requirement only affects projects above five acres, but will include projects under five acres next year. Ecology officials say the delay in implementation was included to give the smaller builders time to bring their operation up to speed, but opponents of the rule say the new regulations give no quarter to builders who broke ground on projects prior to Oct. 1, alleging that many are waking up to discover they are out of compliance, and are scrambling to catch up.
The breaking point
Jodi Slavik is an attorney with the BIAW. She says the new rules – coupled with an already hefty array of other state regulations – have brought some contractors to the breaking point.
"They’re running scared right now," Slavik said. "Builders are getting to the point where they just can’t handle it anymore. The (new permit) is costly, onerous and riddled with liability."
Ecology Water Quality Manager Bill Moore said the new permit has never been a secret and is the result of federal regulations as well as extensive public input.
"We had been working on that permit for over a year," Moore said. "We received public comment and made revisions based on that input. There have been a number of different workshops on what the new permitting requirements would be. That said, I guess it’s kind of hard to get the word out to everybody."
Moore said the state is actually behind the rest of the country in terms of imposing the new regulations. The Environmental Protection Agency has required since 1999 that builders on sites of one to five acres be regulated; permitting was to have been imposed by 2003.
"We’re actually about three years late in terms of getting the one-to-five acre folks permitted," he said. "They actually had about five years lead time."
Matt Clarkson of Camas-based Soaring Eagle Homes said the new regulations have simply made many companies work a little harder to play by the rules.
"For a small company, there’s more of a scare factor involved. This is a serious thing and we’re taking it seriously," he said. "There is huge potential liability, so it has everyone’s attention."
When money matters
Slavik said builders who are working to put their projects into compliance are in jeopardy of expensive fines and even lawsuits from citizens.
"The challenge here is the (the Department of) Ecology can issue fines of $10,000 per violation per day and give a stop-work order," she said.
Moore said the department would use discretion when enforcing the regulations.
"Our goal isn’t to write penalties and issue stop work orders," said Moore. "Our goal is to protect the environment. If we have an egregious amount of violations, then, yes, we will issue penalties. Even then, there is an appellate process."
Slavik cited the requirement of a written stormwater plan – step seven in a 15-step process to being awarded the permit – as a particular burden to builders. The step involves a comprehensive narrative on how the builder will implement 12 elements of acceptable stormwater management.
"Step seven could cost a builder close to $17,000 alone," Slavik said.
Money is at the center of another perspective on the issue. Vancouver-based PBS Engineering and Environmental Manager of Engineering Services Tim Leavitt said once the building industry adjusts to the new rules, the only real change will be in price.
"Change is always disruptive," said Leavitt, also a Vancouver City Council member, "and I think that for many contractors, this is just a pain-in-the-butt issue. With the way the building market has been, I think this is going to be a pass-through cost, and ultimately the consumer is going to pay."
Leavitt said the new rules are likely the result of too many cases of noncompliance in the past.
"There are probably incidents and examples where some carelessness by certain companies has occurred," he said.
Moore said the new rules are only a reflection of existing laws.
"In developing the content of our permits, we followed both state and federal law. It wasn’t based on one or two bad apples, it was based on what federal law requires," he said.
Clarkson said the new regulations have in fact made subcontractors a little more expensive.
"We’re pushing the burden on to our subcontractors, really," he said. "They’re starting to charge a little bit more to cover the new cost."
A new demand for environmental services
Leavitt said the new rules will not only raise rates from general and subcontractors, but also generate a new demand for environmental services, particularly stormwater managers. PBS offers such services at $65 per hour.
Clarkson said Soaring Eagle paid an engineering firm a few thousand dollars to develop its first stormwater plan, but has since sent three of its five employees to complete the CESCL course.
"From an economic standpoint, you can spend a couple hundred dollars to have a CESCL in-house, or you can hire an engineering firm at $100 an hour to do the work for you," he said. "Nobody likes new regulations and nobody likes new costs, but there are ways to bring a positive from it. Taking the course gives you a better understanding of how you as a company can protect the environment."
Moore said the new rules are only an attempt to get everybody to speak the same language when it comes to water quality.
"We’re asking construction companies for the first time to measure objectively how clean their water is," he said. "And all we want is to make sure we’re all acting from the same reference point."
The road to permission
A contractor will need a construction stormwater general permit if the project disturbs one or more acres of land and if stormwater from the project will discharge to state surface waters or municipal storm drains. Builders may qualify for a permit waiver if the site is located in the central basin of the state or if the erosivity index is low enough. Log on to https://ei.tamu.edu to calculate this index. Also, if the project will discharge to water bodies that will exceed the total maximum daily load as a result of the project the builder will not be awarded a permit.
Once these criteria have been met or addressed, the following steps must be followed to gain a permit and remain in compliance:
Apply for the permit. This requires completion of the State Environmental Policy Act process checklist, a notice of intent and publication of a public notice twice, running one week apart in a general circulation newspaper in the county where the project will be located. The application must be filed 60 days before you expect the project will discharge stormwater.
Pay annual permit fees. Fees run $375 for projects less than five acres, $610 for five to seven-acre sites, $1,120 for projects between 10 and 20 acres and $1,400 for sites above 20 acres.
Hire a Certified Erosion and Sediment Control Lead. This can be an independent contractor or a trained company employee. The CESCL must be present at all times during construction.
Develop a stormwater plan. This plan must be available on the day of groundbreaking. The plan must present analysis of the site conditions, a layout of the development and a narrative describing the measures to be taken to manage stormwater.
Install onsite stormwater control measures. These will be determined through the stormwater plan.
Begin construction.
Inspect the site. This should take place once every calendar week and within 24 hours of any discharge. Maintain inspection reports in a log book.
Take water samples. These samples will determine turbidity, or the amount of soil found in the water. Turbidity is measured in a unit known as a nephelometric turbidity unit, or through the amount of suspended solids measured in a transparency tube. The maximum NTU allowed is 25. The minimum build-up allowed in a transparency tube is 30 cm. Take action within seven days if samples exceed the allowable levels and report findings to Department of Ecology within 24 hours.
File monthly discharge monitoring reports with DOE. These reports should be submitted within 15 days of the end of the month. The DOE will supply a form for this.
Transfer or terminate the permit. Transfer the permit if the property sells while construction is ongoing. Terminate the permit if the project is completed and soils have stabilized, or if all portions of the completed project have sold.
Keep all records of monitoring and other actions for three years. For a complete guide to the permitting process, visit the Building Industry Association of Washington’s Web site at www.biaw.com.
