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New erosion regs impact utility projects: Phase II storm water runoff regulations affect smaller areas, populations.

Protecting the nation's water supply is a long-standing priority and is addressed at many levels by the Federal Water Pollution Control Act, commonly called the Clean Water Act.

The Environmental Protection Agency cities storm water runoff as the most common cause of water pollution, and a key element in efforts to prevent water pollution is the National Pollutant Discharge Elimination System (NPDES) permit program which regulates sources that discharge pollutants into surface waters.

While there are many sources of pollutants, storm water discharges from construction activities have a significant impact on water quality, and the NPDES program has addressed this issue for more than 12 years.

Phase I NPDES Storm Water Regulations which went into effect in 1992 have focused on "large" construction projects that disturb five or more acres of land in metropolitan areas with populations of 100,000 or more.

Sediment control fences are the most visible of various erosion-control measures employed on construction projects and have become a common sight on large commercial projects in metropolitan areas. Made of synthetic fabric, the fencing slows the overland flow of storm water, allowing sediment suspended in the water to settle out before the water flows through the fabric and off site. Other preventive actions may include check dams to control runoff, contouring the land, and establishing ground cover to hold soil in place.

Phase II regulations became effective in March of this year, greatly increasing the number of construction sites subject to NPDES permitting. The regulations now define affected sites as areas of more than one acre in cities and towns with populations of 10,000 or greater. Any construction activities falling within those parameters must now have erosion and sediment programs, and issue NPDES permits. Sites of less than an acre may be included if they are part of a larger project. State permits are still required.

Trenching, plowing and excavations such as launching and receiving pits for various types of underground utility construction procedures can cause significant pollutant discharge, and have been under the jurisdiction of Phase I NPDES.

Eye opener

Even so, not all utility operators and contractors appear to understand how NPDES applies to them, in part because enforcement has been inconsistent or nonexistent, says Shirley Morrow, CPESC, senior environmental scientist with Burns & McDonnell Inc., Kansas City, MO. Morrow also is a member of the board of directors and administrative vice president of the International Erosion Control Association (IECA), a non-profit organization providing education and resource information for the erosion and sediment control industry.

"Erosion and sediment control on construction sites is nothing new, but Phase II has a lot more people paying attention," says Morrow. "Under Phase II, permits and agreements are required on many projects where they previously were unnecessary. Phase II literally means almost every construction site today needs to have a NPDES permit."

One point of confusion has been the fact that utility construction job sites often are narrow strips of right-of-way, rather than large square or rectangular blocks of land. Even so, many projects fall under NPDES regulations, and their owners and operators must develop erosion control plans and obtain the necessary permits. Contractors performing the work must follow required erosion- and sediment-control procedures and, in many cases, sign co-permittee agreements. Failure to do so can result in substantial fines.

Understanding compliance requirements isn't always a simple matter. Federal NPDES regulations are guidelines for states to use in developing their own land-disturbance regulations, and their enforcement is delegated to most individual states. In addition to state permits, separate permits are required for working in cities or towns.

Under Phase II, the permitting authority doesn't even have to be a city or town--it can be any location with a concentration of over 10,000 people, such as colleges, universities and military bases. To further complicate matters, agricultural lands, forests, land owned by Native American tribes, oil and gas exploration and refinery pipeline projects are regulated separately. Most other pipeline projects are covered by NDPES.

"Permitting requirements are extremely variable throughout the United States. Permit requirements in Missouri will not be the same as in Georgia or Pennsylvania, not to mention being different from city to city," says Morrow. "What you have to do to comply depends on your location."


Differences in requirements and the smaller. areas subject to NPDES regulations will greatly complicate permitting for projects extending through several jurisdictions.

Says Morrow: "Obviously, putting down 100 miles of something is going to require many, many permits. I have permitted over a thousand miles of pipeline and fiber-optic cable installations in more than 30 states. I worked with many states back in the late 1990s when fiber was going in like crazy and states didn't understand the cable plow method. Imagine having to permit through all the jurisdictions long-haul routes passed through as will be required under Phase II. It would have substantially lengthened the time it took to construct cross-country cable networks."

State permits generally are issued by the agency responsible for regulating environmental quality. Permits from municipalities are issued by public works or utility departments. Often it may not be clear who must obtain permits.

Regulations state that the owner-operator is responsible for permitting, Morrow says. Generally, the public utility responsible obtains permitting for water and sewer constructon; electrical, natural gas and telecommunications companies are responsible for permitting for their projects.

Burying new utilities within a large commercial or residential development usually is covered by the site development plans. Subcontractors actually installing pipe and cable may be required to be copermittees. In addition, some areas require contractor personnel to receive instruction about NPDES regulations before they can work on a NPDES permitted project.

"On our projects," says Morrow, "the owner gets the permits and we have contractors and subcontractors sign a form that they will abide with erosion control provisions."

To determine whether a linear project must comply with NPDES, Morrow calculates the area of the right-of-way by multiplying its temporary construction width times the length of the installation. One acre contains 43,560 square feet, so a project excavating 1,500 feet of trench with spoil deposited adjacent to it along a 30-foot-wide easement area (45,000 square feet), requires a permit under Phase II standards.

Some states have developed specific permitting regulations covering linear construction. The state of California has issued a draft document titled Statewide General Permit for Storm Water Discharges Associated with Construction Activity From Small Linear Underground Overhead Projects (Small LUP General Permit for short), says Carol Forrest, P.E., vice president of URS Corp., San Diego. The draft has been published for public comment.

To determine requirements for specific projects, it is necessary to check with the appropriate state agency and the city or town in which it is located. If a project disturbs the land and the site is more than one acre, a state permit is required, says Morrow.

"The next step," she says, "is to obtain necessary city permits and to see whether Phase II regulations are in effect. Phase II still is so new, that not many ordinances are in place, but it's better to be prepared. The alternative is to not find out about requirements until an inspector comes to the job, and wants to know why all this dirt is piled up on the ground without proper erosion and sediment control."

The information contained in this article is general and is not intended to provide a comprehensive explanation of NPDES regulations. For more information, access the IECA web site at, or call (970) 879-3010. IECA's 2,600 members represent 52 countries and 17 fields of professional practice comprising a network of specialists capable of solving a broad range of problems caused by soil erosion and its by-product, sediment.

EPA's web site, an excellent source of information about NPDES and has useful links to related topics.

To learn how regulations affect any individual project, it is necessary to contact state and local agencies in which the job site is located.

A bright spot for HDD?

In many instances, horizontal directional drilling can help project owners simplify NPDES 404 Corps of Engineers permitting processes.

Because directional drilling can limit the amount of excavation required on many projects, permits may not be necessary, says Shirley Morrow, CPESC, senior environmental scientist with Burns & McDonnell, Inc., Kansas City, MO.

"By showing that the work will not displace soil in the project area, a lot of permitting can be eliminated," she says. "Therefore, we almost always recommend directional drilling for crossing streams, making installations in wetlands and other environmentally-sensitive areas."

How Louisville implements NPDES Regulations

In Louisville, KY, all utilities and public agencies are covered under the local Erosion Prevention and Sediment Control Ordinance, says Larry Pardue, certified professional in erosion and sediment control (CPESC), Louisville Metropolitan Sewer District. Any land disturbance in an area greater than 2,000 square feet requires the development of an erosion and sediment control plan, unless it is already covered by a general permit.

"Most 'repetitive' activities are covered by a general permit that allows the entity to perform routine maintenance and emergency repairs without permitting review," Pardue says. "The negotiated general permit requires the entity to perform adequate erosion prevention and sediment control without the requirement of submitting a formal plan for the purpose of obtaining a permit for the work."

Projects that require permitting review are typically capital improvements to a system.

"A new water, gas or sewer line will undergo a review of the erosion prevention and sediment control plan," Pardue continues. "Our local ordinance requires the plan show 80 percent capture of sediment discharged from a work site. Upon acceptance and approval, the project is issued a Site Disturbance Permit, the name of the permit issued under the authority of the Erosion Prevention and Sediment Control Ordinance.

"In a new residential development, the developer and the prime contractor are co-permittees on the site disturbance permit. Typically, the prime contractor will always install the sewer line and subcontractors will install the other services (gas, electric, telecommunications, etc.) on their own under the Site Disturbance Permit already issued on the site development. All these activities are covered by the Site Disturbance Permit issued to the larger development."

In all private development situations, the larger plan will include any utility service connections so long as the work stays on the project site. In certain situations where the utility service must be brought to the site because the service was not readily available to the development, a separate plan must be submitted and the project will be issued a Site Disturbance Permit specifically designed for that project. In many instances, there may be a separate contractor and owner for this type of project.

When bore pits are included in projects to extend service, the area is covered by a site-specific erosion and sediment control plan. If the project is part of an emergency repair or maintenance situation, then the project will be covered by the General Permit and adequate erosion and sediment controls must be utilized and maintained on the project site.

Louisville has an ordinance requiring completion of a certification-training course covering NPDES regulations; and a contractor must attend the course and obtain certification prior to participating on any projects requiring NPDES permits.

"Linear utility jobs are the toughest," concludes Pardue. "But we are making progress."
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Author:Griffin, Jeff
Publication:Underground Construction
Date:Jul 1, 2003
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