Citizens Should Monitor Silt Runoff Themselves

Last spring, I did a photo survey of construction sites in a half dozen southeastern Oakland County communities.  I found a high proportion of sites that showed a lack of adequate silt runoff prevention.  In most instances, properly installed silt fence would have sufficed.  There were incontrovertible signs of heavy silt runoff from recent rains into storm drains.

A week ago, I did a quick inspection of eight new construction sites in Royal Oak.  The proportion with inadequate erosion controls was as great as the year before, perhaps greater.

Erosion management inspections are conducted by way of two types of legislation.  Municipalities that have stringent runoff prevention ordinances under state guidelines are authorized to carry out their own inspections.  Such communities are called Municipal Enforcement Agencies (MEAs). Examples are Birmingham and Troy.

Construction sites in cities, townships and villages that don’t have such runoff control ordinances of their own are inspected by county drain or water resources commissioners under state standards. These are referred to as County Enforcement Agencies (CEAs).

The Oakland County Water Resources Commissioner (OCWRC) is a CEA.  It has several erosion control inspectors.  Each is assigned to monitor specific communities.  

Silt runoff into storm drains is costly, clogging sewers and interfering with treatment/retention basins and wastewater treatment plants.  Furthermore, during rainstorms that overwhelm combined (storm and household waste) sewer systems, the polluted overflow, including silt runoff, enters our lakes and streams untreated or only partially treated.  

Anyone who observes construction sites or other areas where the soil has been disturbed and from which silt is or has been running into storm drains or natural bodies of water should report the situation to local officials such as the mayor, township supervisor, village president, council member or city manager, as well as the OCWRC and the Michigan Department of Environmental Quality (MDEQ).

OCWRC inspectors and their areas of responsibility appear in the map above and at the following webpage.

https://mail.google.com/mail/u/0/?ui=2&ik=29346c5a1f&view=att&th=14c14ba5a99a462c&attid=0.1&disp=safe&realattid=4e9d49edc13ebaf9_0.1&zw

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

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?   *****