Wednesday, November 19, 2014

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]

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

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