208 - Soil Erosion and Sedimentation Control (NPDES)
- MDOT is responsible to provide transportation services in an environmentally sensitive manner. To that end, the following Public Acts, sponsored by the Michigan Department of Environmental Quality (MDEQ) require MDOT to obtain permits and perform various environmental activities to ensure that issues related to a healthy environment are appropriately considered and enacted throughout the life of the state transportation projects and activities.
- Natural Resources and Environmental Protection Act 1994 PA 451, as amended (the Act).
- Part 91 of this Act describes MDOT’s responsibilities for Soil Erosion and Sedimentation Control (SESC) measures.
- Part 31 of this Act describes MDOT’s responsibilities for the National Pollutant Discharge Elimination System (NPDES). Part 21 of Part 31 of this Act describes the regulations related to NPDES.
- Natural Resources and Environmental Protection Act 1994 PA 451, as amended.
- Part 31 of this Act describes MDOT’s responsibilities for floodplains and floodways. Any work within a floodplain requires a Floodplain Permit and compliance with the State Flood Hazard Management Plan.
- Part 301 of this Act describes MDOT’s responsibilities for inland lakes and streams. Any work below the ordinary high water elevation of an inland lake or stream requires an Inland Lakes and Streams Permit.
- Part 303 of this Act describes MDOT’s responsibilities for wetland protection. Any work within a wetland requires a State Wetland Permit. Any unavoidable wetland impacts resulting from construction activities in a regulated wetland must be properly mitigated on a no net loss basis.
- Part 315 of this Act describes MDOT’s responsibilities for dam safety. Any construction, enlargement, repair, reconstruction, alteration, removal, or abandonment of any dam requires a Dam Safety Permit.
- Part 323 of this Act describes MDOT’s responsibilities for shorelands protection and management. Any removal of vegetation, drainage alterations, land alterations or construction within flood risk, high risk erosion area, or environmental areas requires a Shorelands Protection and Management Permit.
- Part 325 of this Act describes MDOT’s responsibilities for submerged lands on the Great Lakes. Any dredging, filling, or related construction activities in, over, or adjacent to any of the Great Lakes require a Great Lakes Submerged Lands Permit.
- Part 353 of this Act describes MDOT’s responsibilities for sand dunes protection and management. Any vegetation removal, construction, or earth change within a critical dune area requires a Sand Dune Protection and Management Permit.
- SESC and NPDES procedures have been established which, when properly used, will minimize erosion and sedimentation problems associated with construction projects.
- SESC: MDEQ has designated MDOT as an Authorized Public Agency (APA), which requires all earth change activities (regardless of size or location) to follow the SESC Plan (also called SESC Manual), at a minimum. The Plan is a contract document; as such, the Contractor and the Engineer are responsible for fulfilling the commitments described in the SESC Plan. As necessary, control measures may be adapted, adjusted, and added to maintain the level of erosion control to comply with the affected Natural Resources and Environmental Protection Act 1994 PA 451, as amended, and project specific permits.
- The APA designation allows MDOT to undertake earth change activities without obtaining an individual SESC permit. MDOT is subject to audits by MDEQ to determine the conformance to the SESC Plan.
- NPDES: MDOT need not obtain an NPDES permit. However, a letter of authorization from MDEQ is required. MDOT is subject to site (project) specific NPDES inspections by MDEQ.
- Permits: Non-SESC/NPDES permits are normally obtained during the early preliminary engineering and/or preliminary engineering phases of projects and are to be shown in the contract documents with related pay items. The Engineer is responsible to administer the permit commitments while the Contractor performs the construction activities described in the contract. As necessary, and with the written permission of MDEQ, control measures may be adapted, adjusted, and added to maintain the level of environmental mitigation activities to comply with the intent of the permit and/or the affected Act.
- Project Carryover: The Contractor is responsible to maintain SESC measures in compliance with the SESC plan until adequate ground cover is established. If it is determined adequate ground cover is not established prior to the end of a construction season, the Contractor is responsible for the maintenance of the SESC measures during the shutdown periods should there be an unusually warm period resulting in an event causing erosion and/or when a project is allowed to recommence prior to April 16. The Contractor is responsible for the removal of the SESC measures upon complete ground cover stabilization in the spring or summer of the following construction season. Stabilization is to be considered when planning the project’s completion dates.
While individual permits are not necessary, the Engineer is required to notify the appropriate Municipal Enforcing Agency (MEA) or County Enforcing Agency (CEA) (and County Drain Commissioner if a county drain is impacted) of the project. The MEA or CEA are to receive a copy of the preconstruction meeting minutes. See the SESC Manual for contact information.
Those having decision making authority are required to complete SESC training and successfully pass the exam. This training is available through MSU’s Virtual University program. MDEQ’s web site for learning more about this training is: www.michigan.gov/deq. The exams are offered by MDEQ. The DEQ also offers limited-seating classroom instruction for SESC training. Contact the Construction & Technology Support Area for details and scheduling.
The Contractor is responsible to construct and maintain SESC measures in keeping with the contract documents and in compliance with the SESC Manual. Site specific conditions may result in the need to adapt, adjust, and add control measures to maintain the level of erosion control to comply with the Act. The Engineer is responsible to direct these improvements.
If the Contractor is working outside the right-of-way for borrow operations, waste or disposal areas, haul roads, storage sites, or any other earth change activity affecting one acre or more or within 500 feet of a lake or stream, the Contractor must obtain an SESC permit from the applicable MEA or CEA, property owner agreement(s), and other applicable permits from MDEQ. A copy of such permits must be submitted to the Engineer.
MDEQ visits project sites in reaction to complaints, due to interest, and while performing audits of MDOT’s APA status. Portions of projects found outside the SESC Manual requirements will result in requests for corrective action. Continued disregard for MDEQ concerns or gross violations may result in a Notice of Violation (NOV) being issued to MDOT. The SESC Manual describes the complaint procedure. The Engineer must direct the appropriate corrective actions for completion within five days of the NOV. If timely corrective actions are not possible, the Engineer must, within the same five days, submit a plan to MDEQ describing the proposed actions.
The proposal for projects subject to NPDES regulations, earth disturbances of one acre or greater will contain a Special Provision for NPDES Inspection and Response. Refer to MDEQ’s Construction Site Storm Water Manual for comprehensive NPDES procedures.
For projects subject to NPDES regulations, MDEQ is to receive a Notice of Coverage (NOC) prior to the start of the project describing the project details. Development staff are to prepare the NOC and submit it to Construction and Technology Support Area. Construction and Technology staff will submit the NOC to the Bureau of Highways Engineer of Delivery for signature. Once signed, the NOC is returned to Construction and Technology for processing to MDEQ. MDEQ provides a letter of authorization. The TSC delivery staff is to complete the Notice of Termination and submit it to Construction and Technology upon project stabilization.
Inspectors assigned to perform NPDES inspections are required to be certified Storm Water Operators (SWO). This self-training is coordinated through the Region Office and the testing is offered once per month by MDEQ. Contact the DEQ district office in your area for further details.
The Engineer is to administer the contract such that the Contractor constructs and properly maintains all applicable temporary and permanent soil erosion control measures.
If the Contractor is working outside of the right-of-way for borrow operations, storage or disposal areas, haul roads or any other earth change activity affecting five acres or more, the Contractor must obtain a NPDES permit from the MDEQ. A copy of any such permit must be submitted to the Engineer prior to the start of work.
The project’s SWO is required to perform inspection for NPDES compliance once per week, and within 24 hours after every precipitation event that results in a discharge from the right of way and ensure that any needed corrective actions are carried out. A log of the inspections and corrective actions shall be maintained on file for review and shall be retained for a period of three years from the date of the inspection or corrective action. The SWO shall document these inspections and corrective actions onto MDOT’s NPDES Form 1126. Deficiencies must be brought to the attention of the Contractor, in writing, and this notice must include a deadline for completing the corrective actions.
If corrective actions are warranted, the SWO will notify the Contractor of the expected actions and provide a timely deadline. The SWO is to record this notification and subsequent corrective actions on the part of the Contractor. The corrective actions should be completed within seven calendar days. Emergency corrective actions, related to 1) sedimentation that occurs in streams, drainage structures, or watercourses, or 2) erosion that affects the support of the roadbed, or 3) the safety of the public should be completed within 24 hours.
- MDOT is able to suspend NPDES inspections during the winter on those projects that satisfy all of the following conditions:
- The construction project has been adequately stabilized and contained prior to winter shutdown.
- The ground is frozen to the extent that the soil is not susceptible to erosion.
- There is no ongoing construction activity in the project area.
- During the winter shutdown period and when the above conditions are met, MDOT will not be required to perform on-site weekly inspections. MDOT will state in an inspection report that weather conditions are such that a discharge from the site will not occur. MDOT will periodically monitor the project. MDOT is required to resume NPDES inspections when any change in conditions create or allow discharge to occur.
- The water quality protection requirements placed on MDOT under R323.2190 exist whether the construction site is active or not. Failure of soil erosion control measures to protect water quality could lead to enforcement action against MDOT. Construction sites with a seasonal shutdown need to be periodically monitored to ensure the performance of soil erosion control measures.
The following are suggested progressive steps to take if a Contractor fails to comply with either the SESC or NPDES regulations.
- Issue a work order describing the work to be completed and the applicable deadlines.
- Issue a Notice of Non-Compliance with Contract Requirements (Form1165) for failure to respond to sedimentation and erosion control needs in a timely manner, with language describing a projected project shutdown date and/or curtailment of biweekly progress estimates if the needs still are not resolved within the appropriate time frames.
- Request maintenance (direct or contract forces) to perform the work. The Contractor is subject to back charges for the costs associated for work performed by others.
- In certain situations, it is possible to contract with other specialty Contractors to perform work. The Contractor may be subject to back charges for the costs associated for work performed by others.
- Prepare an interim Contractor Evaluation (Form 1182) documenting problems with SESC/NPDES measures.