Clean Water Act Pitfalls for Moving Dirt

By: John Kolanz – Published in the BizWest Thought Leaders column in January 2020.

Few would be surprised that the Clean Water Act requires a permit to discharge effluent from a domestic or industrial wastewater treatment plant.  Less obvious, however, is that the Act (or here, its Colorado equivalent) also covers discharges from construction sites.  Specifically, one needs a permit to discharge stormwater from a construction site that disturbs one acre or more, or to discharge groundwater that infiltrates excavation pits at construction sites of any size.

Colorado issues far more permits to discharge stormwater and groundwater from construction sites than it issues for municipal and industrial wastewater treatment plants.  The State accommodates these large numbers with user-friendly “general” or “umbrella” permits that merely require a discharger to request certification of coverage at least 30 days in advance.  This contrasts with the six months (or typically longer) it takes to obtain an individual (facility-specific) permit required for other discharges.

Given their common nature and ease of coverage, it is tempting to consider construction stormwater/dewater discharge permits as a mere paper exercise – another box to check for project initiation.  Many businesses have discovered otherwise.  These permits impose pollutant limits, control measures, and perhaps more importantly, recordkeeping and reporting requirements that can be overlooked when deadlines and other project obligations loom large.

Consequently, construction stormwater/dewater permit holders are a primary target of State enforcement efforts.  Recent fines assessed on entities in the region are substantial – ranging from tens of thousands of dollars to $350,000.

The enforcement process resulting in these fines can be frustrating and confusing.  This is particularly true for dewater permits because the State applies a penalty policy that was developed for wastewater plants, with sometimes questionable results.

Ideally, businesses will plan for and maintain compliance with all permit requirements.  Faced with a compliance lapse, however, businesses should understand their legal rights and obligations in developing their response.

John Kolanz