In a move that signals increased enforcement efforts for stormwater violations, the Environmental Protection Agency (EPA) Region 2 recently issued an order requiring the Village of Port Chester, NY, to comply with the stormwater requirements of the Clean Water Act, due to elevated bacteria levels revealed by sampling.  The order comes shortly after Region 2 issued fines for stormwater violations amounting totaling $100,000 to two companies involved in non-compliant construction activities.  In addition, enforcement efforts in EPA’s Region 1 offices are ramping up; nine municipalities in Massachusetts and New Hampshire were recently issued violations by EPA’s New England offices for violating the Municipal Separate Storm Sewer System (MS4) requirements, with maximum potential fines ranging from $40,000 to $70,000.

Relatively new stormwater regulations—known as Phase II regulations for MS4s—required certain small regulated municipalities to develop and implement stormwater management plans by 2008.  Generally enforcement of these requirements takes place at the state level, but EPA retains certain authority to undertake direct enforcement.  Recently, EPA warned the states on lax Clean Water Act enforcement.

Under Phase II regulations, municipalities must implement “minimum control measures,” to demonstrate compliance, including: (1) public education and outreach, (2) public participation/involvement, (3) illicit discharge detection and elimination, (4) construction site runoff control, (5) post-construction runoff control, and (6) pollution prevention/good housekeeping.  Failure to implement these measures effectively will create a risk of enforcement and penalties.

EPA’s willingness to impose penalties on municipalities in Massachusetts and New Hampshire, as well as the significant penalty imposed by Region 2 on noncompliant construction activities, signals that EPA is committed to serious enforcement against stormwater violations.  Federal enforcement may in turn spark additional attention and enforcement from state-level authorities.  Municipalities covered by the MS4 regulations and entities engaged in construction activities are on notice that they need to comply with all stormwater regulations, including Phase II MS4 requirements.

• EPA Orders Village of Port Chester, N.Y. to Fix the Way it Handles Stormwater; Comply with Clean Water Act
• Nine Mass. and N.H. Communities Face Actions to Improve Storm Sewer Pollution
• EPA Fines Companies for Improper Stormwater Management at Construction Site
• Read more on Clean Water Act issues