Stormwater violations are getting a lot more attention these days. On October 27, 2009, the Minnesota Pollution Control Agency (MPCA) announced that Mower County, Minnesota, had agreed to donate 33 acres of land to the state in lieu of paying a $31,000 penalty for alleged stormwater violations during a ditch repair project. The penalty in this case, along with penalties in three other stormwater enforcement actions ranging up to $54,000, constituted the four largest penalties levied by the MPCA in the third quarter of 2009.

Also in October, the U.S. Environmental Protection Agency (EPA) announced plans to step up federal efforts to enforce stormwater regulations. More specifically, the EPA announced it would 1) develop enhanced enforcement strategies for smaller, dispersed sources of water pollution (e.g., stormwater runoff from industrial facilities, construction sites and urban streets); 2) work with states to create greater consistency in enforcement and to ensure proper enforcement by the states; and 3) use new information technology to improve data analysis and increase transparency to the public.

As state and federal regulators focus on stormwater violations, businesses should take time to evaluate their stormwater management practices and make sure they do not become the latest on a growing list of companies that have paid penalties for stormwater violations. Here are a few suggestions:

  • Permits, please. Generally speaking, a permit is needed for any activity where there is a material risk that stormwater runoff from the site will pollute a waterway. Whether you own an industrial facility or are about to begin construction, it is important to know whether your activities require a permit, what type of permit is required and when the permit needs to be obtained. In most states, the state environmental agency establishes requirements for and administers the stormwater permit program in accordance with federal guidelines. Minnesota recently made changes to its General Stormwater permit for construction activities and is in the process of finalizing changes to its Industrial Stormwater Multi-Sector General Permit. The MPCA estimates that there are over 4,000 facilities in Minnesota that are required to have a stormwater permit but do not have one. Before applying for a permit, though, consider whether your facility qualifies for the "No Exposure Exclusion."
  • Knowing is half the battle. If you already have a stormwater permit, review the permit to ensure that you know exactly what it requires. Stormwater permits specify such things as inspection and monitoring requirements, controls that must be in place—such as erosion, runoff and sediment control—and best management practices (BMPs) to be used for each control measure. Reacquaint yourself with the requirements under your permit and check to make sure your practices are up to par.
  • Change is good. If your practices do not comply with permit requirements, make the necessary changes promptly. Just because your practices have been in place for awhile without incident does not mean that those practices are in compliance or that you will not be subject to enforcement action. The fact that a noncompliant practice has been in place for years can only increase the amount of the penalty. Simple changes now could save you tens of thousands of dollars in penalties down the road. For example, the requirements that facilities maintain up-to-date Storm Water Pollution Prevention Plans and document self-inspections are often overlooked and easily remedied.
  • The future is now. Technological advancements, such as electronic submission of monitoring results, are allowing regulators to identify violators more easily. Equipping your personnel with the right tools and training will help your business keep pace with regulators and enable you to catch potential problems before a violation occurs or remedy a violation at the earliest possible time.
  • Nobody is perfect. Despite proactive efforts to comply with stormwater regulations, violations can and do still occur. It is important for businesses to know whether and when there is an obligation to report a violation. Permits typically require businesses to report violations to the permitting authority and stiffer penalties are often imposed when a company fails to do so. How and when a violation is reported, however, can influence the outcome of an enforcement action and sometimes an action can be averted altogether. Also, businesses should use all available tools when negotiating a settlement with the enforcement agency. In some circumstances, for example, the enforcement agency will reduce penalties if the business agrees to future management practices that exceed minimum requirements under the applicable permit.

These are just a few suggestions for navigating the increase in enforcement of stormwater regulations. Specific recommendations will depend on your particular business. The attorneys in Leonard, Street and Deinard’s Environmental Law practice can assist you in determining which requirements apply to your business and help you develop a plan for compliance. We can also help you deal with federal and state regulators, respond to government enforcement actions and effectively defend penalty actions.