Prevent Rollbacks to Water Protections at Construction Sites

Updated February 5, 2019

Background

Have you seen lakes and rivers that look murky or muddy?  That’s sediment pollution, and it’s not just an aesthetic problem.  Sediment pollution smothers aquatic habitat, causes declines in fish populations, and increases the risk of algal blooms.  It can cost millions of dollars to dredge sediment or treat algal blooms.

It turns out construction sites are a major source of sediment pollution.  When construction disturbs soil, rain and snow melt can wash that soil into storm drains, city streets, and into rivers and streams.  That’s why construction sites have to have run-off control plans.  Under the current state rules (which are required by the federal Clean Water Act), those run-off control plans are reviewed by local city or county storm water professionals who judge whether they are adequate.

Every construction site is different in size, lay-out, contour, soil type, construction activity, and relationship to local lakes and rivers.  That’s why the run-off control plans have to be individualized to the site.  The local storm water professionals are in the best position to judge what is needed at construction sites in their area.

 

HB 1266

In the 2018 Indiana General Assembly, HB 1096 attempted to strip away local storm water authority.  It was defeated, but has re-emerged this year as HB 1266.  It was amended and passed by the House Environmental Affairs Committee on Jan 30.  The amended version passed the full House on Feb 5 by a vote of 68 to 27 with bipartisan support and bipartisan opposition.  As amended, HB 1266 would:

  • prevent MS4 storm water authorities from having erosion and sediment control requirements for construction sites more stringent than the state rule at 327 IAC 15
  • require stormwater authorities reviewing construction runoff control plans to make a preliminary determination in 5 working days.  [The state rule currently allows 28 days for full review.]
  • allow construction sites to start land-disturbing work on the site as soon as 48 hours after there is a favorable preliminary determination or after the review authority fails to make a determination by the 5-day deadline.
  • require review of construction runoff control plans by a certified engineer, landscape architect, surveyor, an individual with certified training in erosion and sediment control, or someone working under their supervision.
  • prohibit stop work orders unless the project site owner has been given prior written warning and 72 hours to correct deficiencies.

HB 1266 was heard in the House Environmental Affairs Committee Wednesday, January 23.  The Indiana Builders Association and the Indiana Chamber of Commerce supported the bill.  Seven organizations, including HEC, opposed the bill or raised concerns about parts of it.  The bill’s author, Representative Doug Miller, was drafting an amendment, so no vote was taken.

On January 30, the House Environmental Affairs Committee adopted Representative Miller’s amendment and passed the bill 9 – 3.  It now goes to the full House for discussion and vote.

Reduced protection.  HB 1266, as amended, could reduce protection of lakes and waterways by reducing local options and imposing rushed plan review.  One definite way it will reduce protection is by prohibiting runoff control plans for construction sites less than one acre.  The state rule requires run-off control plans for construction sites one acre or larger.  Residential lots around lakes and lots in dense urban areas are often under one acre, and some of Indiana’s local stormwater authorities have imposed requirements on them.  HB 1266 would prevent MS4s from requiring more than the state rule.  That would mean a prohibition on construction runoff controls for lots under one acre, and that would increase sediment going into lakes and into urban streams and rivers.

Confusion.  The “no-more-stringent” language in HB 1266 would create confusion.  Where the state regulation has numeric standards, it will be easy to tell whether a local rule is more stringent.  For example, the state rule applies to construction sites of 1 acre or greater, a numeric standard, so any local rule with requirements for smaller sites would be more stringent.

However, many of the provisions in the state regulation are narrative standards, which make it much harder to tell if something is more stringent.  For example, the state regulation requires that the construction runoff be treated with controls “appropriate to minimize sedimentation” (327 IAC 15-5-7)It would be difficult, if not impossible, to determine whether a local regulation was requiring runoff controls more stringent than “appropriate to minimize sedimentation”.   In fact, the current state regulation currently delegates determination of what is appropriate to the local stormwater authorities.

Alternative solutions

The bill’s author, Representative Miller, explained in the House Environmental Affairs Committee on January 23rd that HB 1266 was introduced because construction companies would like more consistency in stormwater requirements.  The Indiana Builders Association testified that they feel that some MS4s impose extra requirements that create unnecessary costs.

To help achieve these objectives, the Indiana Association for Floodplain and Stormwater Management has offered to work with the construction and development community, IDEM and with MS4s to develop model ordinances, more consistent local programs, and to work on issues with implementing the state regulation.  The Hoosier Environmental Council endorses this collaborative problem-solving approach.

Call to Action:

Since HB 1266 passed the House, it now moves to the Senate.  Please, contact your state senator, and ask them to vote “no” on HB 1266.  Let them know that HB 1266 will reduce local authority over construction runoff and thereby reduce protection of lakes and rivers from sediment pollution.