Erosion and sedimentation from construction sites can lead to reduced water quality and other environmental problems. Phase I and Phase II municipalities must implement a stormwater management program that includes a component for controlling erosion and sediment on construction sites disturbing at least one acre. Municipalities must establish the appropriate legal authority do accomplish this. Many municipalities use their grading ordinance or their stormwater code as the legal mechanism for triggering erosion and sediment control requirements.
A model ordinance is available on EPA's website.
The ordinance should specify which sites are required to implement controls (i.e., MS4 regulations require all sites greater than one acre, but many municipalities use a smaller area or volume threshold, such as 50 cubic yards of earth moved). It should require that erosion and sediment control BMPs be implemented and maintained, and include penalties for noncompliance. Ordinances can set grading limits, design requirements, erosion control practices, sediment control practices, waterway crossing specifications, or other stormwater management BMPs.
Ideally, the ordinance will establish the broad authority for the municipality to requires erosion and sediment control (ESC) practices. It will then refer to a separate set of specific requirements that can be updated from time-to-time without having to amend the ordinance. Through code or through ordinance, communities should require ESCs that are at least as stringent as requirements established in EPA's construction general permit. For example, local programs should:
- Require the preparation of a stormwater pollution prevention plan (SWPPP) or an equivalent document;
- Require the installation and maintenance of general erosion and sediment controls, such as perimeter controls, inlet protection, and soil stabilization;
- Specify the amount of time allowed to stabilize exposed soil when construction activities have temporarily or permanently ceased;
- Require the installation of sediment traps for drainage areas of less than 10 acres;
- Require the installation of sediment basins for drainage areas of 10 or more acres;
- Require the removal of accumulated sediment from sediment controls when sediment storage capacity has been reduced by at least 50 percent; and
- Require that inspections be conducted at least every 7 days (or every 14 days plus following any rainfall event of 0.5" or more).
When a local sediment and erosion control program meets the stormwater requirements in 122.44(s), the state may incorporate that program by reference in its permit for construction activities. In such a case, the local program is then a .qualifying program. and construction site operators. compliance with the local requirements constitutes compliance with the state.s NPDES permit requirements.
Ordinances are only as effective as the degree to which they are implemented and enforced. As such, it is imperative that ESC ordinances clearly identify penalties for failure to comply. It is critical that the municipality has the authority to initiate a range of enforcement actions to address the variability and severity of noncompliance. Enforcement responses should consider criteria such as magnitude and duration of the violation, effect of the violation on the receiving water, compliance history of the operator, and good faith of the operator in compliance efforts. Particularly for construction sites, enforcement action must be timely to be effective. Response to the enforcement must also be timely. Enforcement actions should clearly establish enforcement response expectations. Appropriately, failure to respond to enforcement actions or repeated violations necessitates escalation of enforcement against the offending party.
The following are some of the primary enforcement mechanisms that can be used to improve compliance and that should be identified as available enforcement tools:
- Notices of Violation
- Notices of Violation
- Administrative Fines
- Administrative Orders - An effective tool for construction sites is the stop work order. A stop work order or a grading or building permit revocation might be issued when: a permit is violated; when development is implemented in a manner found to adversely affect the health, welfare, or safety of persons residing or working in the neighborhood or at sites undergoing development; or when there is a risk of injury to persons or property.
- Civil Penalties
- Criminal Penalties
- Other Actions. Some municipalities require violators to perform restoration work or implement a BMP rather than pay a fine. Additionally, use of bonding requirements that are set aside specifically to repair damage to temporary construction site erosion and sediment controls (e.g. silt fences) caused by storm flows, high winds, or fallen trees have been shown to significantly improve compliance. Funds can be used only if inspections document that erosion and sediment controls have been installed and maintained as required. (Deering, 1999).
Deering, J.W. 1999. Moving the Earth for Environmental and Financial Success. John W. Deering, Inc., Bethel, CT.
Hewitt, R.S. 1998. San Diego County Best Management Practices for Erosion and Sediment Control & Stormwater Detention/Retention. Prepared for the San Diego County Association of Resource Conservation Districts by the Natural Resources Conservation Service, Riverside, CA.
Terrene Institute, Inc. 1985. Local Ordinances: A User's Guide. Prepared by Terrene Institute in cooperation with the U.S. Environmental Protection Agency, Washington, DC.
USEPA (U.S. Environmental Protection Agency). 1999. Model Ordinances Language. Model Ordinances to Protect Local Resources: Erosion & Sediment Control. [www.epa.gov/nps/ordinance/mol2.htm]. Accessed November 10, 2005.
USEPA (U.S. Environmental Protection Agency). 2004. Development Document for Final Action for Effluent Guidelines and Standards for the Construction and Development Category. EPA-821-B-04-001. Washington, DC.