Jordan Ramis pc. Attorneys at law
Construction Site Water Runoff Liability
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By Steve Shropshire

Introduction
Before moving any dirt on a development site, a developer or contractor should be aware of the potential water quality concerns related to construction on that site.
Construction Site Stormwater Management

Oregon's Water Quality Program. Oregon's water quality program is administered by the Oregon Department of Environmental Quality ("DEQ"). DEQ is fully authorized to administer the program in Oregon on behalf of the federal Environmental Protection Agency ("EPA") and has adopted the provisions of the federal Clean Water Act ("CWA") into the state's water quality laws by reference. ORS 468B.030; 468B.035. EPA still retains jurisdiction to enforce the CWA if it believes DEQ is not doing an adequate job. However these cases of "overfilling" are not very common with regard to construction site water and runoff management.

The goal of Oregon's water quality program is "to protect, maintain and improve the quality of the waters of the state for public water supplies, for the propagation of wildlife, fish and aquatic life and for domestic, agricultural, industrial, municipal, recreational and other legitimate beneficial uses." ORS 468B.015. DEQ accomplishes this goal by regulating both discrete sources of pollution or so-called "point sources," and by administering a nonpoint source pollution program that focuses on the prevention and elimination of water pollution from diffuse sources. The point source program is a regulatory permit program focusing on effluent control, while the nonpoint source program is based primarily on voluntary efforts by citizens working on a watershed level. The State has formalized this watershed-based approach under the Oregon Plan for Salmon, which contains several water quality components.

Point Source Permitting Program. The historical focus of water quality regulation nationwide and in Oregon has been an end-of-pipe discharge regulatory program. Under this program, any individual or entity wishing to discharge any pollutant into the waters of the state must first obtain a National Pollutant Discharge Elimination System ("NPDES") discharge permit from DEQ. A pollutant includes almost any substance artificially placed in water, such as toxics, wastes, nitrogen, and sediment.

Oregon has developed two types of NPDES permits for point source discharges: general permits and individual permits. General permits are pre-authorized, blanket permits for certain categories of common discharges. Individual permits are issued on a case-by-case basis for those discharges not fitting within one of the general categories.

Construction Runoff Regulation. In November 1990, the Environmental Protection Agency EPA adopted regulations (40 CFR §122.26) (2001) requiring states to develop NPDES permits for storm water discharges. This included a requirement that states develop a discharge permit for runoff resulting from construction activities including clearing, grading and excavation activities that disturb five or more acres of land. Permits are also required for developments that disturb at least five acres over a period of time. Note:Starting December 1, 2002, a permit will be required for construction activities that disturbone or more acres of land or one acre or more over a period of time.

In compliance with the EPA mandate, DEQ developed a general permit, known as NPDES Storm Water Discharge General Permit #1200-C for construction activities. The 1200-C permit requires the permittee to control erosion at the construction site to prevent sediment from entering waters of the state. Specific permit requirements include:
  • No discharge of significant amounts of sediment to surface waters.
  • The preparation and implementation of an Erosion and Sediment Control Plan to prevent such discharge. This plan must be approved by DEQ prior to beginning any construction activities.
  • Maintenance of erosion and sediment controls, clean up of deposits of sediment that leave the site, and proper storage, handling and disposal of hazardous materials.
  • Compliance with water quality standards in Oregon Administrative Rule Chapter 340, Division 41 and any pollutant load limits established for specific basins.
  • Visual inspections of erosion and sediment control measures.
The permit applicant may be either the property owner, the consulting engineer, or the development contractor, provided the applicant is responsible for assuring that erosion and sediment control measures are implemented and maintained at the site. If permit conditions are violated, DEQ will take enforcement action against the applicant.

As of February 12, 2002, the total DEQ fee for a 1200-C permit is $670. This consists of a nonrefundable $60 filing fee, $280 new application processing fee, and $330 annual compliance determination fee. Note: The permit holder will be invoiced for the annual compliance determination fee in June for every year the permit is in effect.

Several local governments are authorized to issue construction storm water permits for DEQ. If a project is within one of these governments' jurisdictions, the developer must contact the local government directly for application forms and applicable fees, and submit the completed application directly to the local government for processing. A current list of local permitting agents can be found athttp://www.deq.state.or.us/wq/wqpermit/Gen1200cAgents.pdf. At this time, no coastal jurisdictions are authorized to perform this function. If a development site is not within the jurisdiction of one of these local governments, DEQ issues and administers the 1200-C permit.

Penalties. DEQ has the authority to pursue injunctive relief, civil penalties, or criminal actions for violations of state water quality laws or permit conditions. See generally ORS Chapter 468.

Administrative Penalties. DEQ may assess civil penalties in an amount not to exceed $10,000 per day. ORS 468.130. The exact fine depends on a number of factors including severity of the violation, whether the conduct was accidental, and whether this is the party's first violation. Additionally, DEQ may assess civil penalties of up to $100,000 for intentional or reckless conduct creating an extreme health hazard or extensive environmental damage.

Criminal Penalties. DEQ may also seek criminal prosecution of any violation of the state's water quality laws or a permit condition. Criminally negligent violation carries a fine of up to $25,000 and/or imprisonment of up to one year. ORS 486.943. A knowing, willful violation is a felony offense for which fines and imprisonment are substantially higher. ORS 468.946; 468.951.

Liability For Flooding, Erosion And Drainage Alteration

Overview. Oregon observes the Modified Civil Rule ("MCR") when it comes to assessing liability for flooding, erosion and drainage alterations. The MCR recognizes a servitude for natural drainage between adjoining lands. This means that a down-gradient owner must accept the surface water that naturally drains onto his land from an up-gradient neighbor.

However, the up-gradient owner may not do anything to change the natural system of drainage so as to increase the natural burden across the down-gradient property. See Senn v Bunick, 40 Or.App. 33, 594 P.2d 837 (1979) (upslope owner judged liable for water flow changes where regrading permanently closed part of historical water course and caused increased flood and surface water on neighbor's land).

Limitations on Upslope Property Modifications. The MCR limits the modifications an upslope owner may make to the upslope property where those modifications will affect the flow of surface water from that property onto the downslope property. Prohibited actions include:
  • Alteration of historic water courses.
  • Diversion of water not naturally flowing onto lower land. "Diversion" includes:
    • water redirected from one drainage area to another; and
    • water collected and discharged that normally would infiltrate into the ground, a pond, and/or evaporate.
  • Changing the location of discharge points onto lower land (e.g., changes to grading, paving, and collection points).
  • Accumulation by the upper landowner of large quantities of water, followed by a release that greatly accelerates the flow onto the lower owner's land. Some acceleration is permissible; it is only improper when acceleration and concentration of the water are substantially increased. Marsh v. Walters, 242 Or. 210, 408 P.2d 929 (1965).
A landowner, developer or contractor who undertakes any of these prohibited actions risks a suit for trespass, nuisance, and/or negligence. However, Oregon courts have found that such a suit is only available where the diversion of water onto a neighbor's property is intentional, negligent, or the result of carrying out an abnormally hazardous activity. Sells v Nickerson 76 Or.App. 686, 711 P2d 171 (1985), review den. 300 Or. 722, 717 P2d 630.

Limitations on the Lower Property Owner. The MCR recognizes a flowage servitude (easement) for natural runoff, requiring a lower property owner to accept such natural runoff without legal objection. As the party burdened with the flowage easement, the lower landowner may not obstruct the runoff from the upper land if the upper landowner is properly discharging the water. Kahl v. Texaco, 281 Or. 337, 574 P.2d 650 (1978).

Permitted Actions by Up-Gradient Landowners. An up-gradient landowner may alter drainage across the upland property so long as water flows off the property in historic natural channels. Upper owners may make such drains and ditches on their own land although by doing so, the flow of water may be increased in the natural channels that carry the water from the upper to the lower lands. Provided the drainage is in the natural channel when it reaches the lower land, the lower owner may not complain of increased volume.Garbarino v. Van Cleave, 214 Or. 554, 330 P.2d 28 (1958).

An up-gradient landowner may also accumulate and release of small amounts of water, provided the released water does not substantially accelerate the drainage flow to the lower property. Some acceleration is permissible; it is only improper when acceleration and concentration of the water are substantially increased. Marsh v. Walters, 242 Or. 210, 408 P.2d 929 (1965).

Conclusion
It is always best to identify and plan ahead for potential water quality issues related to a construction project. Whether you are an owner-developer or simply a grading subcontractor, you could be held liable for water quality violations or damage from site runoff. A little time and effort spent on compliance and good design before a project starts will provide piece of mind and guard against the substantial financial risks associated with uncontrolled runoff.

1A broader discussion of Oregon's water quality program is beyond the scope of this article.
This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.