FOIA Request Seeks Explanation of Inconsistent Erosion Control Standards

Fourth in a Series

Five or six months ago, I observed a puzzling dichotomy in the enforcement by public officials of soil erosion controls at construction sites in several nearby communities.  The justification for the divergent standards remains unclear.

The following Freedom of Information Act (FOIA) request was sent to the Michigan Department of Environmental Quality (MDEQ) on November 12, 2014. A nearly identical request was emailed to the Oakland County Water Resources Commissioner (OCWRC) the same day.  As of this writing, no substantive response has been received from either.

FOIA Coordinator  

Michigan Department of Environmental Quality

deqfoia@michigan.gov

Sir/Madam:

One of my interests is water quality.  Last spring, I visited construction sites in a number of Oakland County municipalities to observe the extent of soil erosion.

Some of those municipalities are recognized by the State of Michigan as Municipal Enforcement Agencies (MEAs) as concerns silt runoff.  In the other municipalities, the Oakland County Water Resources Commissioner (OCWRC) administers the state erosion control program as County Enforcement Agency (CEA).

What was remarkable to me was that the MEAs had required silt fence at most if not all construction sites, while cities under OCWRC supervision had little if any silt fence deployed.

It might appear to some that building contractors working in municipalities subject to OCWRC oversight have a license to pollute.

Pursuant to the Michigan Freedom of Information Act, please furnish me with a copy of all records created or obtained by your department within the timeframe of January 1, 2014 to present that contain a rationale for the difference between the strict water quality and erosion control enforcement in MEAs and the lax enforcement by OCWRC in its role as CEA, as that rationale relates to Michigan waters and the public trust.

Thanks in advance for your assistance.

-- Jim Lang

(address and phone)

I encourage readers to make inquiries of their own about Michigan soil erosion prevention and enforcement practices.

MDEQ recently posted its 2015 Soil Erosion & Construction Storm Water Training Schedule.  Go to their soil erosion home page at www.michigan.gov/soilerosion and click the first link under the training header, or click on: http://www.michigan.gov/deq/0,4561,7-135-3311_4113-267079--,00.html.  

The Duty of Enforcement Agencies to Inspect Construction Site Runoff

Third in a Series

The Michigan Department of Environmental Quality (MDEQ) had written me (see yesterday’s post),

“The Part 91 agency is required to enforce Part 91, as appropriate, when they become aware of unpermitted sites that are failing to comply with Part 91.  Citizen tips, like yours, identifying noncompliance on unpermitted sites are often how Part 91 agencies become aware of this non-compliance if they have not personally driven by the site.”

I wrote back on November 12, 2014, in part:

I’m troubled by this “when they become aware” and “if they have not personally driven by” standard.  Isn’t there an affirmative duty on the part of a Part 91 [municipal or county] agency to have a representative visit these sites routinely to determine whether or not the [erosion control] statute is being violated?  

Consider that, in all of these cases, the municipality will have a building inspector at the site on a  regular basis throughout the construction process. The building inspector can monitor disturbed soil erosion. It doesn’t take any special expertise to recognize evidence of silt runoff.

Neither MDEQ nor CEAs nor MEAs should rely on the chance that casual passersby will report violations.

So far, MDEQ hasn’t responded.

An October 2003 revision to Oakland County’s Soil Erosion Program provides:

http://www.oakgov.com/water/Pages/services/soil_erosion.aspx

“Each site classification has an associated inspection frequency as indicated on the following table.”

Class	Description	Inspection Frequency
Class 5	Project on a lake/ stream/ wetland/ open water of any kind and has a slope or discharge to these waters.	2 weeks
Class 4	Project on a lake/ stream/ wetland/ open water of any kind and has no slope (2% or less)	3 weeks
Class 3	Project is on a dry/wet detention basin with a sediment filter or on a retention pond	6 weeks
Class 2	Project is over 225 square feet and does not meet the requirements found in above Classes	7 weeks
Class 1	Minor Changes under 225 square feet of disturbance:  additions, decks, etc.	8 weeks

The positions of the state and county depend on the false assumption that silt runoff from construction sites into municipal sewers does no significant harm.  That assumption overlooks the loss of topsoil at the construction site and the costly consequences of sediment in the sewers, at the wastewater treatment plant and in natural water bodies receiving combined sewer overflows (CSOs).  

Those results are ongoing violations of the national Clean Water Act.  EPA and MDEQ ought to revisit this subject and require more frequent inspections and more stringent sanctions for violations.

*****   *****   *****

Next: Bringing the Issue into Focus with a FOIA Request

MDEQ Response to Blogger's Inquiry about Construction Site Runoff

Second in a Series

Below is the November 5, 2014 response of a Soil Erosion and Construction Storm Water Specialist of the Michigan Department of Environmental Quality (MDEQ) to my inquiry (see yesterday’s blog post) about silt runoff at construction sites:

Mr. Lang,

Thank you for your question regarding the legislative intent of Part 91, Soil Erosion and Sedimentation Control, as it relates to overflowing sewers and triggering Part 91, soil erosion permits.

I understand that you shared you’re [sic] the photos you shared with me with our Water Resources Division in Southeast Michigan earlier this summer.  [An MDEQ rep in southeast Michigan] indicated in her response to you that she referred the sites you identified to the appropriate soil erosion agencies for follow up.  [The rep] also indicated that the sites were not under permit because they were more than 500 feet away from a lake or stream and were less than 1 acre in total earth disturbance.  [The rep’s] note further indicated that the local enforcing agency was following up with those sites to ensure compliance with Part 91, but had indicated that the area was a combined sewer area; therefore the sediment reaching the road was being treated prior to reaching a lake or stream.

The Part 91 permit triggers identified Part 91 and the Rules promulgated thereunder are very specific and are identified in the Part 17 rules under Rule 1704(1) which states:

“a landowner or designated agent who contracts for, allows, or engages in, and earth change in this state shall obtain a permit from the appropriate enforcing agency before commencing an earth change which disturbs 1 or more acres of land, or which is within 500 feet of the water’s edge of a lake or stream, unless exempted in R 323.1705”

Rule 1701(d) and (k) go on to provide a definition for lake and stream as follows:

“Lake means the Great Lakes and all natural and artificial inland lakes or impoundments that have definite banks, a bed, visible evidence of a continued occurrence of water, and a surface area of water that is equal to, or greater than, 1 acre.  Lake does not include sediment basins and basins constructed for the sole purpose of storm water retention, cooling water, or treating polluted water.”

“Stream means a river, creek, or other surface watercourse which may or may not be serving as a drain as defined in Act No. 40 of the Public Acts of 1956, as amended, being 280.1 et seq of the Michigan Compiled Laws, and which have definite banks, a bed, and visible evidence of the continued flow or continued occurrence of water, including connecting waters of the Great Lakes.”

Given the precision of the language provided in the law and the rules in this regard, Part 91 does not generally require that a Soil Erosion Permit be obtained when working in proximity to storm drains or sanitary sewer drains.  Counties and municipalities may voluntarily elect to require permits in such cases by being more restrictive than Part 91, but must do so through an approved Soil Erosion Ordinance.  Some municipalities choose to do this by requiring permits within a certain proximity to a storm or sanitary drain.

That being said, regardless of where an earth change is conducted in Michigan and whether or not a permit is triggered, individuals conducting an earth change must comply with the provisions of Part 91 which generally require that erosion and sediment is minimized and prevented from depositing off-site or to waters of the state.  The Part 91 agency is required to enforce Part 91, as appropriate, when they become aware of unpermitted sites that are failing to comply with Part 91.  Citizen tips, like yours, identifying noncompliance on unpermitted sites are often how Part 91 agencies become aware of this non-compliance if they have not personally driven by the site.  As [the rep] indicated, the Part 91 agencies for the sites you identified are following up on the information you provided to obtain compliance with Part 91.

I hope this helps answer your question.  For questions related to the cost of treatment and/or maintenance of combined sewer systems receiving uncontrolled sediment, I would direct you to [a 2nd rep] with the Southeast Michigan Office, as combined sewer systems are outside of my area of expertise.  

[Signature omitted]

www.michigan.gov/soilerosion

*****   Tomorrow: Is there a duty on the part of enforcement agencies to inspect sites?   *****

Correspondence with MDEQ about Construction Silt Runoff

SILT RUNOFF FROM CONSTRUCTION SITES

First in a Series

In late October, I wrote the Michigan Department of Environmental Quality (MDEQ) as follows:

Last spring, I did a survey of construction sites to determine whether silt fence had been deployed at urban (mostly residential) construction sites and whether there were signs of silt runoff to city drains.

Of the municipalities surveyed, the two MEAs [municipal enforcement agencies], Birmingham and Troy, had generally good compliance with strict local silt fence requirements.  The remaining municipalities, all CEAs [county enforcement agency], had virtually no silt fence at construction sites, and most sites showed evidence of heavy silt runoff to nearby sewers.

As to the latter, the explanation I was given was that the sewers led to a wastewater treatment plant where the silt was removed, so there was no harm done to natural water bodies.

That idea is patently false.

First of all, a deluge sufficient bring silt off of construction sites clogs the sewers with sediment, requiring later removal by vacuum pumpers.  Second, the sediment that does get through to the treatment plant adds a costly burden to the plant in removing it.  Third, the volume of water in such a deluge will, more often than not, cause sewer overflows, taking sediment directly into lakes and streams.

In those circumstances, sewers are merely underground extensions of natural bodies of water.

One of your department's webpages quotes the pertinent statute:

Part 91, Soil Erosion and Sedimentation Control, of the Natural Resources and Environmental Protection Act (NREPA) (Part 91) provides for the control of soil erosion and protects adjacent properties and the waters of the state from sedimentation.

A permit is generally required for any earth change activity which disturbs one or more acres of land or which is within 500 feet of a lake or stream.

My question to you is, does MDEQ acknowledge that, given the legislative intent, overflowing sewers are indistinguishable from lakes and streams (i.e., are one and the same), thus requiring a permit and abatement of silt runoff [at construction sites]?

Tomorrow: MDEQ’s response.

Stormwater Success Story

Low Impact Urban Stormwater Retrofit

The 200 acres and 400 homes comprising the Towar neighborhood in E. Lansing and Meridian Twp. (Ingham County) Michigan experienced flooded yards, roads, and basements for more than 80 years, even during modest rains. The area is very flat.

http://www.semcog.org/data/lid.report.cfm?lid=189

Several years ago, approximately 150 rain gardens featuring native plants were created, in total occupying five and a half acres.  Most are situated along roads. Several miles of expanded county drains augment the project.  The gardens themselves run from patio-sized to the better part of an acre.

Concrete pipes (up to 24”) along the roads divert stormwater to the rain gardens, preventing residential flooding.  The gardens are built on layers of sand and aggregate and have 12” perforated underdrains that accommodate filtration and slow progress downstream.  The system is thought to be sufficient to handle a 100-year rainstorm.

http://www.mi-wea.org/docs/Towar%20Rain%20Garden%20Drains.pdf

The cost of construction was not quite $10 million, about half of traditional drainage improvements. The county drain commissioner maintains the system.

http://www.awra.org/meetings/Summer2011PP/doc/abs/Sess%203%20abs.pdf

Stormwater: Planning to Fix the Present Crisis Twenty Years from Now

At the behest of the Michigan Department of Environmental Quality (MDEQ) in its administration of the National Pollution Discharge Elimination System, the semi-autonomous Detroit Water and Sewerage Department (DWSD), the City itself, the Southeast Michigan Council of Governments (SEMCOG) and numerous other so-called partners created a huge, bureaucratic, long-range planning and research apparatus as an appendage to DWSD for the management of stormwater, utilizing green infrastructure.

DWSD is a hopelessly dysfunctional public utility incapable of performing duties as basic as compiling and publishing an annual audit.

The organizers set the bloated apparatus on an interminable journey, a mission impossible, gathering data (some of which is already going stale) and planning to restrain future sewer overflows in the region.

Green infrastructure includes:

• tree planting
• roof-top plantings
• swales and rain gardens
• porous pavement
• downspout disconnection from sewers
• the DWSD plans include demolishing a paltry few abandoned homes and replanting the vacant lots (even though the City itself presently claims to be demolishing 200 vacant buildings per week, independent of DWSD plans).

The goals set were remarkably low.  For example, one project “... depicts opportunities for underground storage and infiltration with an annual runoff reduction of approximately 5.4 million gallons at an estimated cost of $2.7 million.” (p.8)

http://www.dwsd.org/downloads_n/about_dwsd/npdes/dwsd_green_infrastructure_progress_report_2013-08-01.pdf   

“...[A]n approximation of the runoff benefits for the tree planting, twenty- five (25) demolitions, ten (10) vacant property treatments and one hundred sixty-five (165) residential lot downspout disconnections is 78,600 gallons. The cumulative runoff reduction estimate for the green infrastructure program to-date is 454,400 gallons.”  (p.10)

Bear in mind that annual polluted overflows can run in the billions of gallons.

The planning apparatchiks conceive of green infrastructure as “... typically designed to manage smaller rain events up to the 2-year; 24-hour event.” (p.10) They calculate that, through the end of their third fiscal year (2013), they have spent $2,518,325 to divert 454,400 gallons or (they say) $6 per gallon. (Table 1, p.10)

To sum it up, DWSD’s green infrastructure activities to date and as planned for the future strike me as (1) redundant of the City of Detroit’s similar, larger, but separate activities; (2) so puny as to be meaningless; and (3) way too expensive in proportion to the benefit.  Well conceived, long-range planning is good, but it shouldn’t be at the expense of present, urgent needs.

MDEQ and DWSD’s successor, the Great Lakes Water Authority, would be wise to re-examine the present green infrastructure project with a view of implementing now inexpensive green solutions on a massive, industrial-like scale.

A good way to begin might be to hydroseed vacant spaces or plant hundreds of thousands of seedlings instead of a few thousand saplings per year (at nearly $200 apiece), one here, one there, as they do at present.

Making a Joke of Green Infrastructure

A grandfather, wishing to teach his grandchildren how some governments work, began, “Once upon a time, the mayor of a once grand city decided that planting lots of trees throughout the city would improve the environment in several ways.”

The grandfather went on, “When the mayor was driving to work one morning, he noticed a city worker digging a row of holes down the side of the road.  But as soon as the holes were dug, another worker came over and filled them up again. The mayor stopped to investigate.  When he asked what was going on, a workman responded, ‘We’re usually a three man crew, but the one who plants the trees didn't show up this morning.’ ”

Seriously, we in southeastern Michigan need to establish a new benchmark for planting trees. Consider New York City.  In November 2013, the mayor planted the 800,000th tree in a project called MillionTreesNYC “ … which began in 2007 with the goal of reaching one million trees planted by 2017. The initiative is now expected to reach one million trees by 2015, two years ahead of schedule.”

Over the last several years, Detroit, through its water and sewer department (DWSD), a regional planning agency (SEMCOG) and a contractor, has tried to plant about 4,000 trees per year, purportedly to help offset combined sewer overflows (CSOs) that run in the billions of gallons, polluting the Detroit River and Lake Erie.

Anybody want to guess how many gallons 4,000 trees absorb in a year?  (Hint: It’s not in the billions of gallons.)  

Granted, Detroit will never be able to match New York City in tree planting, but c’mon, is 4,000 per year the best we can do?

Let’s hope our new regional water authority (GLWA) and state officials have something better in mind.