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Hard surfaces on over 4% of any watershed drastically hurts streams

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West Virginia Rules on Pollution from Construction

Developers may not let mud flow off site and get into streams, because it colors the streams and kills diatoms and insect larvae at bottom of the food chain. This rule prohibits everyone, even developers, from putting "distinctly visible color" into the waters of the state.

State Rule 46-1-3. Conditions Not Allowable In State Waters.

3.1. Certain characteristics of sewage, industrial wastes and other wastes cause pollution and are objectionable in all waters of the state. Therefore, the Environmental Quality Board does hereby proclaim that the following general conditions are not to be allowed in any of the waters of the state.

3.2. No sewage, industrial wastes or other wastes present in any of the waters of the state shall cause therein or materially contribute to any of the following conditions thereof:

3.2.a. Distinctly visible floating or settleable solids, suspended solids, scum, foam or oily slicks;
3.2.b. Deposits or sludge banks on the bottom;
3.2.c. Odors in the vicinity of the waters;
3.2.d. Taste or odor that would adversely affect the designated uses of the affected waters;
3.2.e. Materials in concentrations which are harmful, hazardous or toxic to man, animal or aquatic life;
3.2.f. Distinctly visible color;
3.2.g. Concentrations of bacteria which may impair or interfere with the designated uses of the affected waters;

This rule against distinctly visible color applies to everyone. Builders who move more than an acre of soil have the additional rules below.

Key Requirements of Pollution Control Permit No. WV0115924 http://www.wvdep.org/alt.cfm?asid=65#Construction
Effective: December 5, 2002, Expires: December 4, 2007
Subject: Storm Water Associated With Construction Activities

allow storm water discharges into the waters of the state [in practice this means discharge into a stream or lake; groundwater is also water of the state, but has a different permit; DEP tried to interpret this to allow discharge onto a swale or any low spot, but EQB said that interpretation was done at too junior a level and "appears, on its face, to contradict or cast confusion on the terms and conditions of the permit."]

This General Permit is subject to the following terms and conditions: ... not cause a violation of 46CSR1
[Distinctly visible color would violate 46CSR1, as quoted above. This rule is repeated below in G.4.e.2.A.ii: eliminate sediment laden runoff from the site]

C.1.a. Permit noncompliance constitutes a violation of the federal Clean Water Act (CWA) and State Act (Chapter 22, Article 11 and Article 12)...

C.14.civil penalty up to $25,000 per day of violation. If willful or negligent: minimum fine of $2,500 per day, or imprisonment for not more than 1 year, or both.

C.14.b. knowingly make false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including reports of compliance or noncompliance: fine of not more that $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both.

C.15 (State Rule 47-CSR-11-9) Post a sign on the stream bank at each outlet where runoff reaches the stream. Like the entrance sign (G.4.b.6), each outlet marker is 2' x 2', and 3' above ground, and stays up from start to end of the construction project.

State Law 22-11-8(a) says pollution permits are only allowed when water goes into a stream or pond, not across someone else's land. (Environmental Quality Board enforced this rule 12/18/00 in case 00-06-EQB, p.12, paragraph 10, Royal Glen Mobile Home Park v. DEP.)

E.1. "Common Plan of Development" is a contiguous construction project where multiple separate and distinct construction activities may be taking place at different times on different schedules but under one plan. The "plan" is broadly defined as any announcement or piece of documentation or physical demarcation indicating construction activities may occur on a specific plot; included in this definition are most subdivisions. Acreage ranges below apply to the whole "common plan of development," not each part separately.

Individual house construction in a subdivision with 4 or more lots being built or to be built needs an individual plan or DEP's standard "Individiual House Construction Agreement" on file with DEP.

G.4.b. If 3-100 acres of ground will ever be disturbed (12-400 houses), submit application and pollution plan at least 45 days before construction...

G.4.b.3. 1-3-acres disturbed (4-11 houses) submit Notice of Intent (NOI) 10 days before construction.

G.4.b.4. Sites disturbing over 100 acres (or if grading will last over 1 year, or site disturbs 3+ acres upstream of high quality waters) must submit application and SWPPP at least 90 days before construction, and DEP will send public notices to people who sign up at http://www.wvdep.org/MailingLists.cfm

G.4.b.6. Post a sign near the entrance of the project. The sign must be at least 2 feet by 2 feet and at least 3 feet above ground level, clearly visible and legible from a public roadway or right-of-way, with high contrast colors. The sign must be up within 24 hours of filing and stay up until the end of the construction project.

Storm Water Pollution Prevention Plan (SWPPP) must include:

G.4.d.1. inspection and maintenance of sediment and erosion control devices and storm water management structures to uncover conditions that could cause breakdowns or failures resulting in discharges of pollutants to surface waters.

G.4.d.1.B clean and orderly project.

G.4.d.1.C Procedures for cleaning up spills shall be identified in the plan and made available to the appropriate personnel. The necessary equipment to implement a clean up should be available to personnel.

G.4.d.1.D. Training should address topics such as spill response, good housekeeping and routine inspection. A pollution prevention plan shall identify time frames for such training.

G.4.d.1.E. Records of inspections shall be maintained for review by the Director.

G.4.d.1.F. Incidents such as spills, leaks and improper dumping, along with other information describing the quality and quantity of storm water discharges should be included in the records. Inspections and maintenance activities such as cleaning sediment basins or traps and other sediment trapping structures or catch basins and reseeding should be documented and recorded.

G.4.e.1.A A description of the nature of the construction activity, including a proposed timetable for major activities;

G.4.e.1.B. Estimates of the total area of the site and the part of the site that is expected to undergo excavation or grading, the increase in impervious area by acreage and percentage, and the total amount of excavation by cut and fill;

G.4.e.1.C. estimate of the pre-construction peak discharge from 1 year, 24 hour storm in cubic feet per second and an estimate of the post-development peak discharge from a 1 year, 24 hour storm

G.4.e.1.C. nature of fill material to be used, and data describing the soil from the USDA soil survey

G.4.e.1.D. A site map indicating, with a minimum of 5 foot contours, drainage patterns and slopes prior to construction and anticipated conditions after grading activities, topsoil stockpiles, waste areas, borrow sites, locations of sediment control structures identified in the narrative, the location of impervious areas after construction is completed, final storm water routing including all ditches and pipe systems, property boundaries and easements, nearest receiving stream, access roads, legend and springs, surface waters and any other information necessary to describe the project in detail.

G.4.e.2.A.i. Vegetative Practices -plans ensure that existing vegetation is preserved where attainable and that disturbed portions of the site are stabilized as rapidly as possible. Stabilization practices may include: temporary seeding, permanent seeding, mulching, geotextiles, sod stabilization, vegetative buffer strips, protection of trees, preservation of mature vegetation, and other appropriate measures. Also include in the plan seedbed preparation requirements and the type and amount of soil amendments necessary to establish a healthy stand of vegetation.

G.4.e.2.A.i. A record of the dates when major grading activities will occur, and when construction activities temporarily or permanently cease on a portion of the site, and when stabilization measures will be initiated shall be included in the plan. Except as noted below, stabilization measures shall be initiated as soon as practicable in portions of the site where construction activities have temporarily or permanently ceased, but in no case more than 7 days after the construction activity in that portion of the site has temporarily or permanently ceased. (G.4.e.2.A.i.b. except for temporary pauses in construction for up to 21 days)

G.4.e.2.A.i.c. Temporary diversions, both upslope and diversions to trapping structures, must be seeded and stabilized immediately and prior to becoming functional.

G.4.e.2.A.ii Structural Practices - A description of the structural practices to be used to divert flows around exposed soils, store flows or otherwise limit runoff from exposed areas and eliminate sediment laden runoff from the site. Such practices may include but are not limited to silt fences, earth dikes and berms, land grading, diversions, brush barriers, drainage swales, check dams subsurface drains, pipe slope drains, storm drain inlet protection, rock outlet protection, reinforced soil retention systems and geotextiles, gabions and rip-rap, and permanent and temporary sediment traps/basins.

3600 cubic feet of pond per acre of drainage Half the volume stays full of water during construction. The other half rises with rain and drains out for 48-72 hours after each rainstorm, giving time for mud to settle and spreading out the surge into streams. (except if that much storage is not attainable) Provide a description of the procedures that will be used in removing these structures and the time frame.

No sediment-laden water will be allowed to leave the site without going through an appropriate device.

G.4.e.2.A.iii Special rules for Discharges to Tier 2.5 Waters (trout streams?)

G.4.e.2.(B) Storm Water Management Plan to control storm water discharges after the project is completed This provision may be complied with by following local government requirements. (enforced as part of this permit, G.4.e.2.D)

The permittee shall submit all calculations, watershed mapping, design drawings, and any other information necessary to explain the technical basis for the storm water management plan.

Each site shall have stone access entrance and exit drives and parking areas to reduce the tracking of sediment onto public or private roads. Except for haul roads, all unpaved roads on the site carrying more than 25 vehicles per day shall be graveled.

G.4.e.2.(E) plan shall provide that all erosion controls on the site are inspected at least once every seven calendar days and within 24 hours after any storm event of greater than 0.5 inches of rain per 24 hour period.

G.4.f) All Storm Water Pollution Prevention Plans and Groundwater Protection Plans required under this permit are considered reports that shall be available to the public under Section 308(b) of the CWA. The owner or operator of a project with storm water discharges covered by this permit shall make plans available to members of the public upon request by the public. However, the permittee may claim any portion of a Storm Water Pollution Plan or Groundwater Plan as confidential in accordance with 47 CSR 10-12.7.

When the construction activity is owned by one person but operated by another, it is the responsibility of the owner to obtain the permit. (instructions section B)