Rules aren’t made to be broken: Despite MPCA regulations to protect water, non-compliance is a problem

WORTHINGTON -- From grass clippings left on city streets to nutrient runoff from well-manicured lawns and farm fields, it seems everyone shares in the blame when it comes to the health of our local lakes.

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Erosion control measures like these placed around storm sewer grates in Worthington’s city limits help prevent soil and debris from washing into the storm system and ending up in a stream or lake. Julie Buntjer/Daily Globe

WORTHINGTON - From grass clippings left on city streets to nutrient runoff from well-manicured lawns and farm fields, it seems everyone shares in the blame when it comes to the health of our local lakes.

Excess nutrients have long been known to fuel algae blooms on Worthington’s Lake Okabena, and those nutrients can reach the water body any number of ways - including by attaching to sediment particles and being carried from the land into lakes, streams and city storm sewer drains during rain events.
The city of Worthington is tasked with minimizing the amount of nutrients reaching the lake. While residents are asked to do their part, the city also has inspection processes in place to monitor, in particular, large construction sites to ensure they, too, are working to protect water resources.
Those large sites - considered any site in which one acre or more of soil is disturbed - are required to have a Minnesota Pollution Control Agency-issued permit prior to construction. The permit requires projects to comply with the National Pollutant Discharge Elimination System/State Disposal System Construction Stormwater rules. It also requires site owners and contractors to develop a Stormwater Pollution Prevention Plan (SWPPP).
The SWPPP outlines how best management practices will be used through the duration of a building project. Sites are checked every couple of weeks by a city-appointed SWPPP inspector and are subject to surprise inspections by the MPCA.

Earlier this year, Worthington School District 518 was fined $4,300 by the MPCA for stormwater violations - essentially non-compliance of their SWPPP - while other construction sites in the city either were in compliance during inspections or weren’t checked at all.
Ryan Anderson, MPCA Stormwater Outreach Program Engineer, said the state agency inspects between 300 and 400 construction sites per year. They can’t possibly check them all, so they rely on cities to monitor compliance of the SWPPPs.
Monitoring sites
Worthington’s SWPPP inspector - Okabena-Ocheda Watershed District Administrator Dan Livdahl - monitored eight sites within the city limits this year to ensure best management practices were in place and soil was stabilized during the construction process. The sites included a new housing development, four business construction projects, two business expansions and the high school expansion.
Among the compliance issues he looks for are the presence of a silt fence or bioroll around the perimeter of the project, soil stabilization measures such as application of mulch, grass seed or erosion control blankets over exposed soil, protection around storm sewer grates and rock pad accesses to reduce vehicles tracking sediment off site.
“The whole point is preventing pollution during construction,” Livdahl said.
He completes a three-page form - with photographs - each time inspections are done, the idea being when someone is out of compliance, the city would notify the contractor to fix the problem within 48 hours.
“We were hoping if we had the documentation, we’d have a better ability to enforce or get people to follow their plans,” Livdahl said.
Earlier this month, he told members of the watershed board he was frustrated with contractors not following the SWPPP. He said there wasn’t a single site that remained in compliance through the summer.
“I’ve told people they have to get into compliance, and there have been no consequences,” he said.
Infractions ranged from failure to maintain silt fencing around the construction site perimeter to stabilizing soil if it hadn’t been moved for two weeks and avoiding stockpiling of dirt on site.
“It’s unfair when you have people who comply and then you have others who get away with not doing it,” said Okabena-Ocheda Watershed District Chairman Les Johnson.
Fellow board member Rolf Mahlberg said he doesn’t want the watershed district to “drop the ball” on compliance and wants to see it addressed. He asked how the OOWD could “put some teeth in to go along with our bark” when talking to contractors about compliance issues.
Learning curve
Cathy Rofshus, MPCA Public Information Officer in the Rochester office, said Stormwater Pollution Prevention Plans are relatively new in the state, and thus contractors are still being educated on what is required for site compliance, as well as repercussions for non-compliance.
The SWPPP rules were initially rolled out in Minneapolis and St. Paul because of the amount of construction and potential for soil erosion impacting water quality. Rofshus said from there, the program extended to larger cities - St. Cloud, Rochester and those of similar size. The latest rollout was to communities of 10,000 people or more, and that’s when Worthington became an MS4 permit holder.
As Anderson explained, the MS4 permit requires cities to have a program in place to reduce stormwater runoff and pollution, as well as perform education, outreach and enforcement. The city of Worthington was designated an MS4 permittee in 2007.
As an MS4 permittee, Anderson said the city can issue citations and notices for construction sites not in compliance.
“We expect that they carry out these requirements with the legal authorities they do have in place,” he said.
No follow-through
Other than some “strong conversations” with construction site managers, the city has yet to enforce penalties for failure to comply with SWPPP rules.
Worthington City Engineer Dwayne Haffield said fines are “the last thing that would ever happen” from the city’s standpoint because they are the most cumbersome.
“Stop work orders are not desirable - it would be a last resort, same as revoking land use permits,” Haffield said.
The most likely scenario would be for the city to hire a contractor to do remedial or corrective action to bring a construction site into compliance, but Haffield said even that wasn’t done on a single site this year.
The reason?
“There’s an ongoing dynamic,” Haffield said. “I don’t know that you would find any site that is in 100 percent compliance.
“It is a construction site, so these (best management practices) do get damaged, run over,” he added.
Still, Haffield acknowledged there is a degree to non-compliance, ranging from “not perfect to just no real effort at all.” What he wants is for contractors to respect the rules of the “living document.” In essence, if they see certain best management practices aren’t working on their particular construction site, they need to find alternatives.
“I still think we are trying to be in the mode of adjusting contractor approach and understanding of what needs to happen on the sites,” Haffield said. “We’re more aggressive now than we were last year, and I think that will continue.
“Our main objective is just to get people to look at projects differently and understand how something is being constructed is just as important as what’s being constructed - that’s an adjustment,” he added.
Good intentions
When a construction project begins, contractors may have good intentions to follow the SWPPP rules. They erect the silt fences, place biologs around storm sewer grates and then start their project.
“As the construction goes on, people forget about (the SWPPP),” Livdahl said. “Managing construction projects is really difficult - you have to get employees and subcontractors there on time, deal with the weather and unforeseen (issues).
“Unfortunately, your lowest priority is the stormwater pollution prevention plan - especially when there aren’t people there telling you you have to do it, and there aren’t any consequences for not doing it,” he added.
Now, as summer fades into fall, some construction sites have finally taken the steps to stabilize soil - steps that should have been completed weeks ago.
“At the end of the season, that’s the most important - to get it done,” Livdahl said Friday.
MPCA stance
With so many construction projects ongoing all across the state, the MPCA can’t monitor everyone.
Rofshus said while cities have a responsibility to enforce compliance, citizens can also file complaints with the state. A reporting form is available on the MPCA website, .
When MPCA officials investigate a site for noncompliance, their response is to issue fines.
“Our goal is to bring the site into compliance,” Rofshus said. “Financial penalties are based on the economic advantage the party received by not complying. If the contractor saved a lot of money by not putting in the stormwater controls ... the bigger the penalty will be.”
Anderson said the state sees a “fair amount of noncompliance” at construction sites - the most common being missing or inadequate soil stabilization (mulch or erosion control blankets) that would keep the soil on site and prevent it from leaving. Also a common problem is unmaintained best management practices.
“You need to maintain them in order for them to be effective,” Anderson said.
“Contractors just aren’t aware of what they need to be doing,” added Rofshus. “If you have bare soil all summer, and every time it rains it’s washing down the storm sewer, when you add up the number of sites (not complying with the rules), that could be a problem.”

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A silt fence around the perimeter of a construction site in Worthington’s city limits is required in a Stormwater Pollution Prevention Plan to contain sediment and prevent it from getting into the streets and ultimately the stormsewer system. Julie Buntjer/Daily Globe

Julie Buntjer became editor of The Globe in July 2021, after working as a beat reporter at the Worthington newspaper since December 2003. She has a bachelor's degree in agriculture journalism from South Dakota State University.
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