If your community is experiencing muddy runoff and flooding from nearby construction sites, you are not alone and you can find assistance to address these problems.
Where to find help & report pollution
Waterkeepers
Local Waterkeepers are great resources for reporting pollution, investigating pollution issues, monitoring waterways, and working with local communities to figure out a way to address and fix water pollution problems. Waterkeepers are great resources on public participation opportunities and access to information about pollution sources and permits. To find Waterkeepers in the Chesapeake and coastal bays region, visit Waterkeepers Chesapeake’s website. To find Waterkeepers around the nation (and the world), visit Waterkeeper Alliance’s website. If you don’t have a Waterkeeper in your area, search out local Sierra Club chapters and other watershed groups for assistance, and visit River Network’s Who Protects Water? map.
Legal Clinics & Technical Assistance
- Chesapeake Legal Alliance
- Environmental Integrity Project
- Southern Environmental Law Center
- Earthjustice
- Environmental Protection Network
If you don’t have a nonprofit legal resource in your area, seek out environmental and other types of law clinics at universities.
Researching pollution permits
Use EPA’s Enforcement and Compliance History Online (ECHO) website to search for facilities in your community to assess their compliance with environmental regulations. State water quality agencies may also provide online access to existing pollution permits, such as Maryland Department of the Environment’s Wastewater Permits Interactive Search Portal.
Equity, justice & climate resources
- River Network’s Clean Water Act Owner’s Manual
- EPA’s EJ Screen & Mapping Tool
- Maryland’s EJ Screen & Mapping Tool
- NOAA Mid-Atlantic’s Projected Intensity-Duration-Frequency (IDF) Curve Data Tool for the Chesapeake Bay Watershed and Virginia (for rainfall)
- River Network’s Water & Equity Mapping Tools
- River Network’s Tools for Equitable Climate Resilience
- American Rivers’ Water Justice Toolkit, 2020
- EPA’s Legal Tools to Advance Environmental Justice, 2020, Chapter 2: Water Programs
Reporting pollution
All Waterkeepers have pollution reporting hotlines (phone numbers, online forms, etc). You can report pollution from your phone with a number of apps. Download the Water Reporter and/or the Swim Guide and send in reports to your local Waterkeepers while you are out on your favorite waterway. The MyCoast app is used to document coastal and beach issues.
Public agencies on the local and state levels have ways for people to report pollution. Search for resources like this one in Fairfax County, VA, and Maryland’s report a pollution emergency.
Steps to take:
What to look for:
- Notable increases in water around your property after any rainfall or snowmelt – perched in new areas, expanded ponding, increased volume and velocity in creeks.
- Visible cloudiness of the natural drainage pathways, creeks, and rivers nearby, downhill, and downstream of any construction site.
- Failing stormwater pollution management tools – silt fences on property edge, bio bags on storm drains, overflowing ponds.
- Cloudy water draining off the construction site and down roads or curbs.
Document what you see:
Document what you see with photos and videos to share with Waterkeepers and public agencies. Consider taking samples yourself or reaching out to a local organization that can. Community monitoring can be an incredibly helpful tool. For many pollutants, it isn’t that complicated, however, you need to be properly trained. For the local or state government or a court of law to take the results seriously, it is important to have a reputable lab analyze the samples as well.
Where to find information:
When you first learn of a proposed development, attend public hearings to learn more about the project. If you see problems as the land clearing and construction begins, ask your local government whether the developer is meeting local ordinances. Ask your state environmental agency to review permits and water quality assessments. If things don’t look right, they may be out of compliance. Ask for the Stormwater Management Plan and reports filed by the developers or contractors that should explain what they are required to do. If you need help understanding these documents, turn to the Waterkeepers and other groups listed above. If things don’t look right in the reports and documents, the construction site may be out of compliance with its permits.
Ask questions of your state, city or county officials about the quality of the water downstream from the construction sites. Find out whether there is regular monitoring of the water downstream from the construction site. It is important to review and compile data that tell the story of the problems you are witnessing.
Ask your state agency whether the river, stream, or water body is on the impaired waters list and whether it has a cleanup plan known as a Total Maximum Daily Load (TMDL plan).
Take action:
Before construction starts, document the condition of your own property so that you can later show the damage from the runoff from the construction site. If you find pollution violations, document them, and ask whether the local government or state environmental agency is taking corrective action. If you find ongoing violations that the state has not addressed, turn to the Waterkeepers and legal resources listed above for advice and assistance in filing a Clean Water Act lawsuit. You can also alert local media about the problems associated with the construction site, and share your photos, video, and story. Shining a public light on a problems is a good strategy to help resolve the problems.
Applying the Clean Water Act to construction-related flooding in Patuxent River communities
The Clean Water Act does not allow any discharge of pollution from a pipe (or any other discrete conveyance such as a ditch) UNLESS the discharger gets a permit from the state that prescribes what they must do to control the pollution and which level of control they must meet.
STEP 1: It is important to understand local ordinances that apply to pollution sources in your watershed. Those local ordinances are often the tools that the local governments use to comply with state and federal CWA requirements. In the case of the Two Rivers development, it is situated in Ann Arundel County. The county has relevant ordinances related to
- required sediment controls and perimeter stabilization on construction sites within three days of disturbance
- stabilization within seven days when not under active grading
- repair and restoration of any damage from erosion, sediment deposition, disturbance of vegetative cover that occurs as a result of a development
- requirement of more than the minimum control if flooding, stream channel erosion, or water quality problems exist
Maryland requires that all developers follow the Stormwater Design Manual which has many similar details, in order to be in compliance with the construction stormwater general permit requirements mentioned in STEP 2.
STEP 2: Polluted runoff coming from a construction site is “point source pollution,” and therefore is illegal unless the developer has a permit for the runoff. The CWA requires these discharges be controlled by a permit called a National Pollutant Discharge Elimination System (NPDES) permit. For construction sites in Maryland and most states, a general NPDES permit to control the construction stormwater pollution will apply and include requirements for best management practices, most of which are located in the Stormwater Design Manual. A general permit covers many sources of the same activity, and permittees must request coverage through a “Notice of Intent” (NOI) to be covered. Maryland’s Construction Stormwater NPDES general permit can be found online as can most general and individual NPDES permits. The permit has helpful information for any investigation into problems caused by permitted activities or facilities. This permit was renewed in April 2023, and all existing permittees, including the Two Rivers developers, must submit a NOI to be covered under this renewed permit by September 30, 2023.
There are certain situations and conditions that may require a developer to apply for an individual permit, including the size of the development, if the development is located in or near sensitive areas such as wetlands, and if the site would be discharging into already impaired waters or high quality waters. During the construction of the development, if at any time the construction activities are determined to have reasonable potential to cause pollution or are actually causing pollution, the state may require modified stormwater controls, or an individual permit if the developer is unable to come into compliance.
STEP 3: Construction Stormwater NPDES permits must meet Maryland water quality standards downstream. In order to determine whether the permit establishes the appropriate levels of control, we first need to know what Maryland has officially declared as “uses” of the waters below the Two Rivers development, the Little Patuxent River and the Upper Patuxent River. Those uses are part of the Maryland’s water quality standards which can be found on this interactive map. The Little Patuxent and Upper Patuxent River tributaries that flow from or downstream of the development are all Class I waters are designated for following uses:
- Growth and propagation of fish (not trout), other aquatic life and wildlife
- Water contact sports
- Leisure activities involving direct contact with surface water
- Fishing
- Agricultural water supply
- Individual water supply
With that information about the classification and uses assigned to the receiving streams, we now need to find out what relevant limits on pollutants associated with the construction site are necessary to fully protect those uses by looking for water quality criteria assigned to Class I. The primary relevant criterion is turbidity. There is a narrative and a numeric criterion.
- Turbidity may not exceed levels detrimental to aquatic life.
- Turbidity in the surface water resulting from any discharge may not exceed 150 units at any time or 50 units as a monthly average. Units shall be measured in Nephelometer Turbidity Units.
Antidegradation is a part of the water quality standards. We have determined that some of the development is in or flows into a designated Tier II catchment, the Upper Patuxent River. The Antidegradation checklist for Construction Stormwater NPDES general permit is a tool that developers need to use to protect the Tier II waters.
STEP 4: The tributaries of the Upper Patuxent and Little Patuxent Rivers that are downgradient from the Two Rivers current and future development sites are also on Maryland’s Impaired Waters List because aquatic life and wildlife are impaired by sediment problems, measured by Total Suspended Solids (TSS).
The Impaired Waters List is required by the CWA and is used to:
- Document problems that have been identified.
- Prevent any existing or new permits from allowing pollution that will “cause or contribute” to these problems/impairments.
- Require development of a water quality restoration plan for the stretch of water body that is listed as impaired.
STEP 5: Once impairments are identified in any river segments, development of water quality restoration plans called Total Maximum Daily Loads (TMDLs) is required. The TMDLs should require modifications of upstream permits and activities such as those related to ongoing and new development.
There are three approved TMDLs that should dictate the protective practices for sediment pollution during the Two Rivers development construction and post-construction phases: Chesapeake Bay TMDL- Upper Patuxent River Tidal Fresh (also nutrients), Patuxent River Upper Sediment TMDL (also bacteria, nutrients, and biological stressors), and the Little Patuxent River Sediment TMDL (also nutrients, cadmium, and biological stressors). They can be seen in the above Impaired Waters List map, and can be found on the TMDL site above.
STEP 6: If permittees are violating their construction stormwater permit, the public that is or may be adversely affected by ongoing violations are allowed to file a lawsuit (River Network’s CWA Owner’s Manual p. 136) against the entity violating. In the case of the Two Rivers development, this path had not yet been taken as of late 2022. Ann Arundel County required some additional practices above and beyond the permit in response to complaints, however, as of early 2023, they haven’t solved the problem or prevented additional problems. Waterkeepers and other groups listed above are great resources for taking a legal action.
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