Stormwater Enforcement Heats Up

January 16, 2006
by JONATHAN RINDE
Client Alert Newsletter Forecast 2006

Construction sites over one acre in size must typically obtain a National Pollution Discharge Elimination System ("NPDES") permit for stormwater discharges prior to earth disturbance. Although this is a federal requirement, the U.S. Environmental Protection Agency ("EPA") has generally delegated its NPDES permitting authority to state environmental agencies, which have in some cases then delegated that authority to local conservation districts. In such instances, all three entities assert enforcement authority.

Due to the widespread belief among state and federal regulators that these permits are neither typically obtained when required nor complied with when obtained, there has been and will continue to be increased enforcement in this regulatory area in 2006. Among the states, the Pennsylvania Department of Environmental Protection ("PADEP") is thought to be preparing for a spring 2006 enforcement sweep of construction sites. EPA is continuing to implement its NPDES stormwater enforcement strategy and generally targeting "big box" retail construction sites and high-volume, publicly-traded homebuilders. We expect to see increased enforcement activity, with larger civil penalty demands, in 2006.