Citizen Enforcement: Preventing Sediment Pollution One Construction Site at a Time

by Anne Havemann

July 15, 2014

I will never look at a construction site the same way again.

Certain types of pollution—mostly sediment, nitrogen, and phosphorus—run into the Chesapeake Bay and fuel algal blooms, creating dead zones where crabs, oysters and other Bay life cannot survive. Indeed, the Chesapeake is on track to have an above-average dead zone this year.

Construction sites are a major source of sediment runoff. When mud washes from a single construction site, it can damage three miles of downstream waters. Recovery can take up to a century. Maryland has rules that construction companies are supposed to follow to minimize runoff. These rules pay off: For every dollar spent keeping mud onsite, taxpayers save $100 or more in damages avoided.

That’s why I spent last Wednesday driving around Baltimore with four others checking to see whether constructions sites were following the rules.

I learned that the most effective measure to prevent runoff is to quickly get disturbed soil under a dense blanket of straw mulch, then grass. Other measures, like the black fences you see at most construction sites, can't keep enough mud on the site to prevent pollution. Simply put, exposed soil equals pollution. Whenever you see exposed soil on a construction site, pollution will occur come the next rain. 

Under Maryland law, to begin work at a construction site, a contractor must first clear only a narrow strip along the downslope edge of the site’s perimeter. Within this swath, the contractor installs a fence to capture runoff and deliver it to traps also built within the perimeter swath. These fences and ponds, however, trap less than half the mud. Once fences are installed, the perimeter must then be mulched and seeded within three days [COMAR 26.17.10.07B(f)(i)]. If the mulch blows away, the contractor must re-mulch. If the grass doesn’t reach 95 percent coverage within eight weeks, the contractor must reseed. 

Once the perimeter is stabilized, the contractor can start work on the interior of the site. The company uses bulldozers to level the ground so construction can begin. Once the ground is level, known as “rough grade,” the contractor has up to seven days to stabilize all exposed soils. Paved areas are considered stabilized; all other “erodible” (i.e., non-paved) areas must be mulched and seeded.

The only way to determine that contractors are properly stabilizing construction sites is to go out and take a look. Government agencies, in this case the Maryland Department of the Environment (MDE), are tasked with inspecting sites like these, but MDE has gradually lost funding and staff while its responsibilities have increased dramatically. When writing environmental laws, Congress envisioned a strong role for citizens—Congress placed citizen suit provisions in virtually all of the federal environmental statutes, for example, enabling citizens to “stand in the shoes” of regulatory authorities and bring suit to enforce the law. Citizen enforcement is vital when bureaucracies stumble or polluters skirt the law.

The tour of construction sites I took last week is true citizen enforcement. Our knowledgeable guide, Richard Klein who leads Community & Environmental Defense Services, made the process easy by preparing a simple questionnaire for us to fill out. We visited 11 sites over the course of three hours. The result? About two of the 11 were even remotely stable. Not an unusual result, according to Richard who has tracked this problem for years.

In addition to Baltimore City, Richard is leading tours of Anne Arundel, Baltimore, Carroll, Harford, and Howard counties. With the help of volunteers, he’ll compile data on hundreds of construction sites across Maryland. He encourages the volunteers to write thank-you letters to construction companies that are following the rules and letters encouraging companies without proper stabilization to do better.

Richard’s overall goal is to provide the public support needed to bring all jurisdictions up to the point of full compliance with the stabilization law. After surveying the counties, he’ll send the data he and the volunteers compile to the MDE. By showing MDE that citizens strongly support the agency’s efforts to inspect construction sites and take enforcement actions when necessary, he aims to channel this public support into getting enforcement agencies the resources and political backing needed to maximize compliance.

You can learn more about the tours and report a violation through Richard’s website. Another great way to track pollution is through the just-released Water Reporter app, a crowd sourced, interactive app that allows citizens to share information and flag pollution problems in their communities.

 

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Also from Anne Havemann

Anne Havemann, J.D., is a former CPR Policy Analyst. She joined the organization in 2013 to work on its Chesapeake Bay program area, and left in 2015 to join the Chesapeake Climate Action Network.

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