Section 402 of the Clean Water Act created the National Pollutant Discharge Elimination System (NPDES) program, which regulates the discharge of pollutants from point sources to surface waters. When a construction project requires at least 1 acre of land disturbance — or is part of a larger common development that totals at least 1 acre of land disturbance — an NPDES permit and Stormwater Pollution Prevention Plan (SWPPP) are required by the U.S. Environmental Protection Agency or state/local NPDES-delegated authority before breaking ground.

The SWPPP is a guide to be used by construction personnel to reduce soil erosion and limit the potential for sediment and other on-site pollutants to leave the project area and enter surface waters of the state. The SWPPP includes guidance for the installation and maintenance of erosion and sediment control best management practices (BMPs), inspection and ground stabilization requirements, good housekeeping practices, and spill control and response procedures.

Adhering to NPDES permit and SWPPP requirements, bid specifications, design drawings, contracts, forms, orientations, certifications and countless other factors make construction projects complicated and, at times, hectic. With all these things needing to be completed before breaking ground, it’s hard to imagine the process becoming more complex.

Often, construction tasks and responsibilities are divided and assigned to different contractors with different specialties. It is possible for each individual contractor to report to a general contractor who serves as a project manager, but sometimes contracting situations are much more complicated.

When contractors come and go as their work is begun and completed, the NPDES permit coverage and subsequent SWPPP processes can be disrupted. Because the scope of the NPDES permit coverage needs to span the life of a project — from installation of BMPs through completion of site restoration — it’s important that project owners understand the do’s and don’ts of effectively managing and implementing SWPPPs to maintain compliance with NPDES permits during complicated, phased projects with multiple independent contractors.

OVERCOMING COMMON PROBLEMS

Not all projects are as simple as clear, grub, grade, build and restore. While there are many variables unique to every project, there are some common issues shared across all of those involving NPDES and construction SWPPP compliance. These can be categorized in three groups: Overlapping scopes of work, construction duration and phasing, and inspection and maintenance responsibilities.

OVERLAPPING SCOPES OF WORK (SOWS)

Some projects have complicated contracting structures and are awarded in large chunks involving multiple specialized contractors for each portion, such as transmission line foundations and substation grading. Situations such as these have the same project area; both involve land disturbance, and the SWPPP must be implemented throughout the life of the project. But how can contracts like this be effectively managed to achieve SWPPP compliance?

• DO: Be as clear and detailed as possible. Avoid vague language. Make sure both the permitting and construction teams attend the pre-bid meetings and are working together to develop the contract and bid documents. When issues arise on-site, the contract is critical, and owners need that documentation to be clear on roles and responsibilities regarding the SWPPP.
• DON’T: Assume a contractor is familiar with permitting requirements. Contractors will bid based on the request for proposals and bid documents. Avoid adding language in bid documents like “per SWPPP/ NPDES Permit requirements.”

PHASING

Some projects have the potential to take years to complete. These multiphase projects potentially contain land disturbance throughout all phases, requiring the SWPPP to extend through the life of the project. Before developing the SWPPP and finalizing the project schedule, it’s important to ask the right questions. Who will update the SWPPP as design is completed on later project phases? Will the site be stabilized in phases? Will permit coverage need to be transferred from one contractor to another as the project progresses? Who is responsible for final site stabilization and inspections once construction activities are complete?

• DO: Communicate a flexible, long-term plan based on the information at hand as early as possible. Review the project schedule and site plans together. Determine what the regulatory agency allows regarding NPDES permit modifications versus separate NPDES permits for each project phase to accommodate the project design and construction schedule. Create the erosion and sediment control plans to clearly illustrate in which phase BMPs will be installed or removed.
• DON’T: Be afraid to include regulators in project discussions. Every state implements its NPDES program a little differently. Including state regulators on projects that will span multiple phases helps in understanding how the state prefers the SWPPP to be developed.

INSPECTION

Planning and dividing responsibilities for inspection and maintenance processes can be difficult with large multiphase, multiscope projects. BMP inspections are a main component of SWPPP implementation, and conducting such inspections effectively is important to project success and minimizing costly corrective actions and violations.

• DO: Understand inspection requirements at the state and local levels and have a plan and a backup plan. Go back to the contract and determine who is responsible for the inspection of BMPs and maintenance/ replacement of BMPs. Make sure inspections are completed by individuals with the proper credentials. Verify corrective actions are completed prior to releasing contingencies.
• DON’T: Fail to document inspection lapses, noncompliance and responsibility/schedules for corrective actions. Instead, put a focus on reviewing inspection reports, deficiencies and corrective action schedules, while understanding who is contractually obligated to do what.

CONCLUSION

Multiphase, multiscope construction projects often involve numerous design engineers, contractors, environmental constraints and tight schedules, and are anything but easy to plan and complete. A well-managed, cost-efficient job site starts with getting construction and regulatory compliance parties to the table during project planning and the development of bid documents and contracts.

NPDES permit compliance is one small piece of an overall construction project that, if mismanaged, can result in significant added costs and project delays. Ask the big questions from the start that consider all project phases and scopes of work; assign roles and responsibilities that allow for flexibility; and develop contingency plans long before putting the first shovel in the ground.