Construction industry legal issues: storm water biggest issue facing state.

• Author: Duffy, David
• Position: SPECIAL SECTION: BUILDING ALASKA

On October 30, 2008, Alaska became the 46th state to assume regulatory control of the National Pollutant Discharge Elimination System, or NPDES, under the federal Clean Water Act. This event put the Alaska Department of Environmental Conservation, or DEC, on track to displace the U.S. Environmental Protection Agency, EPA, as the lead permitting and enforcement agency for discharges into Alaska's waterways. This transition from federal to State control will take three years. As the first step, DEC took control of permits issued to municipal sewage treatment plants, seafood processing facilities, fish hatcheries and log storage/transfer facilities statewide. Now, in the second year of the program, DEC's authority has expanded to include storm-water discharge by the construction industry. In October 2010, EPA is scheduled to transfer its NPDES permitting authority to DEC over the mining industry, with the oil and gas industry to follow in 2012. Although the program's first year was relatively benign, the upcoming construction season will be the first test of DEC's capacity to administer the federal program.

STORM WATER REGULATION

Regulation of storm water discharges from construction sites is undoubtedly an important way to protect Alaska's riparian habitat and aquatic resources. Without onsite controls and so called "best management practices," runoff from grubbing, clearing, excavation and grading can impact nearby water resources through increased sedimentation. Further, such runoff provides a pathway for harmful chemicals such as fuel, oil, solvents, detergents and paint to reach streams and wetlands. For these reasons, Alaska's contractors have long been required to obtain authorization from EPA to discharge storm water from construction activities that disturb more than one acre. Going forward, unless the project is located on the Metlakatla Indian Reservation or in the Denali National Park and Preserve, DEC has become the lead permitting agency in Alaska. This new State authority also extends over construction projects located on Alaska Native regional and village corporate lands.

At least for now, DEC's storm water requirements will be familiar to Alaska's construction industry. Existing projects initially approved by EPA were simply transferred to DEC. For new projects less than one acre in size, the rules stayed the same--no storm water permits are required. For new projects more than one acre, contractors will need to send their...