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.

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Next: Bringing the Issue into Focus with a FOIA Request