Are Captured Storm Waters Really "Waters of the US?"
This open letter is being written to the EPA and US Army Corps of Engineers (USACE) in the hope that they will publicly provide an answer to the following question: Should waters impounded by a sediment containment system (a sediment pond, basin, or trap) have the classification of waters of the United States?"
If the answer to this question is yes, then the Clean Water Act mandates that construction-site operators reduce suspended particles found in runoff before these waters enter a sediment containment system (SCS) and its tributaries. Additionally, there may not be any reason for the EPA requiring containment of storm waters from 4 hectares (10 acres) or more of disturbed lands.
Several months ago, I submitted this question to the EPA for a response. Unfortunately, the EPA's lack of response is causing many problems in meeting the design goal of developing effective sediment and erosion control plans to protect the environment while construction activities occur.
According to the July 1, 2003, ruling (EPA 2003), when disturbing 4 hectares or more of land, an SCS is to be installed within a common drainage location that will
- provide sufficient volume to capture runoff from the drainage area resulting from a two-year, 24-hour storm event, or
- provide storage for 252 cubic meters per hectare (3,600 cubic feet per acre) of disturbed land drained.
The only effective structural BMP capable of removing sediment in runoff waters while construction activities occur is a properly designed SCS. However, the USACE considers waters contained by an SCS to be waters of the United States" (USACE 2002) because they fall within one or more of the following classifications:
- Waters for use in interstate or foreign commerce recreational use, selling of fish or shellfish, or for industrial purposes
- Interstate waters
- All impoundments
- Tributaries of, and wetlands adjacent to, waters identified above
- Territorial seas
By requiring the capture of storm waters by an SCS, the EPA is advocating the impoundment of water that the USACE considers (along with any contributing tributary flows) to be waters of the United States." Such waters require protection against pollution. Thus, operators and regulatory agencies are obligated to oversee the installation of BMPs to treat storm waters entering a sediment pond, basin, or trap. In other words, reducing sediment from runoff must occur before any flows enter an impoundment system that (when properly designed) is the only effective structural BMP capable of removing large quantities of suspended particles from stormwater.
Something is very wrong with this picture!
EPA regulations and the USACE classifications have created a ludicrous situation for designers. How does one design a system to take out suspended particles in runoff before such waters enter the only structural BMP capable of removing sediment in a practical manner, namely, an effective SCS? And how will contractors implement the plans in a way that demonstrates to regulatory agencies that removal of sediment in storm waters is occurring?
Perhaps the EPA and the USACE can show designers how to develop and implement effective sediment and erosion control plans without maximizing the use of an SCS on one or more of the following projects.
Large Land Development and Roadway Projects
These projects disturb massive amounts of earthen material that will result in significant erosion and sediment yield problems when runoff events occur. Except for an effective SCS, installing other BMPs (such as barriers) commonly found on construction sites may be a waste of time and money since they remove little sediment from runoff waters when intense flows occur. Some BMPs that may be included on sediment and erosion control plans include the following:
- Barriers : Barriers are notoriously ineffective for removing suspended particles found in storm waters, especially when significant precipitation events occur. Installing them along tributaries to an SCS is not realistic since conveyance channels are rarely well defined during massive excavation activities.
- Maintaining existing vegetation : While this is a noble goal, it is impossible to achieve during excavation operations when such lands are where construction activities are occurring.
- Implementing erosion control measures : There is no better sediment control BMP than implementing and maintaining methods that minimize erosion. However, installing erosion control methods where excavation activities are occurring is neither realistic nor practical.
Essentially, little can be done to effectively treat large quantities of storm waters entering an SCS and/or its tributaries while major land-disturbing activities are occurring. Thus, a construction operator working on such projects may always be out of compliance with the intent of the Clean Water Act and subsequent EPA regulations.
Large Box and Vertical Construction Projects
It might appear that operators working on large box (such as a Wal-Mart) and vertical (such as single-family homes and apartments) construction projects will find it easier to meet Clean Water Act requirements. However, one has to remember that USACE classifications specifically identified waters of the United States" as including tributaries to
- waters for use in interstate or foreign commerce recreational use, selling of fish or shellfish, or for industrial purposes;
- interstate waters; and
- all impoundments.
And what are the tributaries for large box and vertical construction projects? The answer is all conveyance structures that collect and direct runoff into inlets (e.g., paved parking lots, streets)."
In an effort to protect these waters of the United States," contractors commonly install and (sometimes) maintain some of the following BMPs:
- Barriers at perimeter discharge locations : Installing barriers to intercept significant amounts of stormwater discharging from a construction site is nearly a futile effort. As noted earlier, such barriers (silt fence, bales) are relatively ineffective in removing suspended particles found in runoff. Also, these BMPs will be continually destroyed by equipment needed during the construction of buildings or other dwellings.
- Barriers in front of street inlets : While these might be a viable option to site perimeter barriers, noncompliance issues may exist with the USACE classifications since untreated storm waters will be discharging into tributaries (i.e., streets and gutters) of waters of the United States." An additional problem often occurs when these BMPs are installed where sump" conditions do not exist, resulting in downstream flooding and sedimentation.
- Erosion control practices : Few erosion control practices (such as establishing vegetation) can be installed when equipment, building material, utilities, and so forth continually disturb the lot. The dynamic nature of building homes and other structures provides little opportunity to install and maintain any erosion control measures in a practical manner.
Contractors of large box and vertical construction projects have the same problem as large land and roadway operators. They may always be out of compliance with the intent of the Clean Water Act and subsequent EPA regulations.
Sadly, some regulatory agencies consider waters flowing into an SCS and/or its tributaries to be waters of the United States." As a result, these agencies are insisting on the design and use of ineffective sediment and erosion control methods that do little to protect the environment as exemplified by the following:
- Today, some Virginia contractors are obligated to treat runoff waters entering tributaries of SCSs by installing silt fence barriers that continually fail during significant runoff events.
- Builders in Arizona are being told that they are not in compliance because storm waters flow off their lots onto streets that are tributary to waters of the United States," which are lakes built as part of their development process.
Similar interpretation of rules and regulations, along with inappropriate applications of BMPs to reduce pollutants in storm water discharges," has been reported in North Carolina, Maryland, Colorado, and other states.
Regulatory agencies have an obligation to enforce USACE classifications of waters of the United States." However, when requirements result in the design of ineffective sediment and erosion control plans for construction sites, the intent of the Clean Water Act is not being met. Instead, regulatory agencies are endorsing and overseeing the use of methods that do little to reduce sediment in storm waters from construction sites.
Ironically, by implementing ineffective structural BMPs to treat runoff waters before they enter an SCS and/or its tributaries, the EPA's criterion to reduce sediment in storm water discharges" (EPA 2003) is being met. The EPA does not mandate minimum reductions of sediment in storm waters discharging from construction sites.
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Should the EPA abandon the requirement of installing an SCS to capture storm waters from 4 hectares or more of disturbed lands? Definitely not! Only by installing properly designed SCSs will effective structural BMPs exist to reduce sediment in runoff waters.
The EPA and the USACE must jointly announce that waters of the United States" do not include waters impounded by an effective SCS. Not only will this save operators money and time, it will also allow for the design of effective sediment and erosion control plans to protect the environment while construction activities occur.
Author's Bio: Jerald S. Fifield, Ph.D., CPESC, is president of Hydrodynamics Inc. in Parker, CO, and director of CISEC Inc.
September-October 2005
Are Captured Storm Waters Really "Waters of the US?"
This open letter is being written to the EPA and US Army Corps of Engineers (USACE) in the hope that they will publicly provide an answer to the following question: Should waters impounded by a sediment containment system (a sediment pond, basin, or trap) have the classification of waters of the United States?"
If the answer to this question is yes, then the Clean Water Act mandates that construction-site operators reduce suspended particles found in runoff before these waters enter a sediment containment system (SCS) and its tributaries. Additionally, there may not be any reason for the EPA requiring containment of storm waters from 4 hectares (10 acres) or more of disturbed lands.
Several months ago, I submitted this question to the EPA for a response. Unfortunately, the EPA's lack of response is causing many problems in meeting the design goal of developing effective sediment and erosion control plans to protect the environment while construction activities occur.
According to the July 1, 2003, ruling (EPA 2003), when disturbing 4 hectares or more of land, an SCS is to be installed within a common drainage location that will
- provide sufficient volume to capture runoff from the drainage area resulting from a two-year, 24-hour storm event, or
- provide storage for 252 cubic meters per hectare (3,600 cubic feet per acre) of disturbed land drained.
The only effective structural BMP capable of removing sediment in runoff waters while construction activities occur is a properly designed SCS. However, the USACE considers waters contained by an SCS to be waters of the United States" (USACE 2002) because they fall within one or more of the following classifications:
- Waters for use in interstate or foreign commerce recreational use, selling of fish or shellfish, or for industrial purposes
- Interstate waters
- All impoundments
- Tributaries of, and wetlands adjacent to, waters identified above
- Territorial seas
By requiring the capture of storm waters by an SCS, the EPA is advocating the impoundment of water that the USACE considers (along with any contributing tributary flows) to be waters of the United States." Such waters require protection against pollution. Thus, operators and regulatory agencies are obligated to oversee the installation of BMPs to treat storm waters entering a sediment pond, basin, or trap. In other words, reducing sediment from runoff must occur before any flows enter an impoundment system that (when properly designed) is the only effective structural BMP capable of removing large quantities of suspended particles from stormwater.
Something is very wrong with this picture!
EPA regulations and the USACE classifications have created a ludicrous situation for designers. How does one design a system to take out suspended particles in runoff before such waters enter the only structural BMP capable of removing sediment in a practical manner, namely, an effective SCS? And how will contractors implement the plans in a way that demonstrates to regulatory agencies that removal of sediment in storm waters is occurring?
Perhaps the EPA and the USACE can show designers how to develop and implement effective sediment and erosion control plans without maximizing the use of an SCS on one or more of the following projects.
Large Land Development and Roadway Projects
These projects disturb massive amounts of earthen material that will result in significant erosion and sediment yield problems when runoff events occur. Except for an effective SCS, installing other BMPs (such as barriers) commonly found on construction sites may be a waste of time and money since they remove little sediment from runoff waters when intense flows occur. Some BMPs that may be included on sediment and erosion control plans include the following:
- Barriers : Barriers are notoriously ineffective for removing suspended particles found in storm waters, especially when significant precipitation events occur. Installing them along tributaries to an SCS is not realistic since conveyance channels are rarely well defined during massive excavation activities.
- Maintaining existing vegetation : While this is a noble goal, it is impossible to achieve during excavation operations when such lands are where construction activities are occurring.
- Implementing erosion control measures : There is no better sediment control BMP than implementing and maintaining methods that minimize erosion. However, installing erosion control methods where excavation activities are occurring is neither realistic nor practical.
Essentially, little can be done to effectively treat large quantities of storm waters entering an SCS and/or its tributaries while major land-disturbing activities are occurring. Thus, a construction operator working on such projects may always be out of compliance with the intent of the Clean Water Act and subsequent EPA regulations.
Large Box and Vertical Construction Projects
It might appear that operators working on large box (such as a Wal-Mart) and vertical (such as single-family homes and apartments) construction projects will find it easier to meet Clean Water Act requirements. However, one has to remember that USACE classifications specifically identified waters of the United States" as including tributaries to
- waters for use in interstate or foreign commerce recreational use, selling of fish or shellfish, or for industrial purposes;
- interstate waters; and
- all impoundments.
And what are the tributaries for large box and vertical construction projects? The answer is all conveyance structures that collect and direct runoff into inlets (e.g., paved parking lots, streets)."
In an effort to protect these waters of the United States," contractors commonly install and (sometimes) maintain some of the following BMPs:
- Barriers at perimeter discharge locations : Installing barriers to intercept significant amounts of stormwater discharging from a construction site is nearly a futile effort. As noted earlier, such barriers (silt fence, bales) are relatively ineffective in removing suspended particles found in runoff. Also, these BMPs will be continually destroyed by equipment needed during the construction of buildings or other dwellings.
- Barriers in front of street inlets : While these might be a viable option to site perimeter barriers, noncompliance issues may exist with the USACE classifications since untreated storm waters will be discharging into tributaries (i.e., streets and gutters) of waters of the United States." An additional problem often occurs when these BMPs are installed where sump" conditions do not exist, resulting in downstream flooding and sedimentation.
- Erosion control practices : Few erosion control practices (such as establishing vegetation) can be installed when equipment, building material, utilities, and so forth continually disturb the lot. The dynamic nature of building homes and other structures provides little opportunity to install and maintain any erosion control measures in a practical manner.
Contractors of large box and vertical construction projects have the same problem as large land and roadway operators. They may always be out of compliance with the intent of the Clean Water Act and subsequent EPA regulations.
Sadly, some regulatory agencies consider waters flowing into an SCS and/or its tributaries to be waters of the United States." As a result, these agencies are insisting on the design and use of ineffective sediment and erosion control methods that do little to protect the environment as exemplified by the following:
- Today, some Virginia contractors are obligated to treat runoff waters entering tributaries of SCSs by installing silt fence barriers that continually fail during significant runoff events.
- Builders in Arizona are being told that they are not in compliance because storm waters flow off their lots onto streets that are tributary to waters of the United States," which are lakes built as part of their development process.
Similar interpretation of rules and regulations, along with inappropriate applications of BMPs to reduce pollutants in storm water discharges," has been reported in North Carolina, Maryland, Colorado, and other states.
Regulatory agencies have an obligation to enforce USACE classifications of waters of the United States." However, when requirements result in the design of ineffective sediment and erosion control plans for construction sites, the intent of the Clean Water Act is not being met. Instead, regulatory agencies are endorsing and overseeing the use of methods that do little to reduce sediment in storm waters from construction sites.
Ironically, by implementing ineffective structural BMPs to treat runoff waters before they enter an SCS and/or its tributaries, the EPA's criterion to reduce sediment in storm water discharges" (EPA 2003) is being met. The EPA does not mandate minimum reductions of sediment in storm waters discharging from construction sites.
Should the EPA abandon the requirement of installing an SCS to capture storm waters from 4 hectares or more of disturbed lands? Definitely not! Only by installing properly designed SCSs will effective structural BMPs exist to reduce sediment in runoff waters.
The EPA and the USACE must jointly announce that waters of the United States" do not include waters impounded by an effective SCS. Not only will this save operators money and time, it will also allow for the design of effective sediment and erosion control plans to protect the environment while construction activities occur.