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Benefits of CGP Application Instead of Manipulation

We promise - bending the rules is not in your best interest

November 29, 2017

Construction development involves a variety of regulations to warrant that environmental impacts are both minimal and resolution long lasting. Initially, these appear to be constradictory. Environmental impacts are a current and growing international concern considering we all live on this one borrowed planet and the need to ensure we leave it better prepared for future generations is extremely critical.

Sound expensive and tedious? It can be, but does not need to be with effective planning, training and corporate buy - in. Many entities attempt to mitigate their environmental obligations through 'willful blindness' or manipulating their interpretations of a rule to dodge the associated cost, potential liabilities and additional attention and effort. However, such rule manipulation and avoidance will not only increase financial repercussions, but also long - term environmental impact. Check you nearest public waterway. Is it clean? Would you let your kids play in it? If not, consider how your current company culture and understanding of environmental safeguards impacts your answer to those questions. 

Contractural Obligations

In accordance with the Clean Water Act, the Environmental Protection Agency (EPA) published the 2017 Construction General Permit (CGP) which provides the regulating requirements for authorized construction activities to discharge pollutants from a site. Any development involving land displacement over one acre must adhere to the criteria outlined in the CGP. 

When preparing new bid and awarding new projects, local and state agencies will write project contracts to push CGP responsibilities and liabilities solely onto the awarded recipient. They do so with the belief they are protecting the awarding agency from any liability for non - compliance and the resulting monetary penalty. The CGP, however, is federal law and clearly defines the entities on the hook: Operators. Discretely, Operators are those entities which either 1) have operational control over construction plans and specifications, and have the ability to change those specifications or designs (e.g. Owners), or 2) have day - to - day control over site operations and compliance (e.g. Contractors). If a project has multiple Operators, all are equally liable for any issues of non - compliance. 

The liability burden cannot be transitioned to a developer, contractor, inspector, or builder through the contract between the participating parties. Essentially, the CGP supersedes any agreements between the involved personnel or groups. If the EPA comes to call, every Operator is responsible for executing the CGP requirements, and every Operator is responsible when violations occur. 

Low Erosivity Waiver

Another potential example of manipulation involves the dates set for a project timeline. With any construction project a specific start and completion date are established well in advance of any production. These help both for planning purposes and as a potential incentive depending on the contract between the contracting parties, especially if any benefits are established for a quicker completion.

Unfortunately, some entities may try to change these dates in an effort to qualify for a Low Erosivity Waiver (LEW). By receiving a LEW the Operators may forego the CGP requirements. What a great way to save a buck! Nope. Attempting to manipulate project characteristics (acerage, contract duration, etc.)  for the perception of meeting LEW specifications, when in fact it does not meet the initially regulated and appropriate standards, will subject the Operators to a host of violations and subsequent penalties. 

Following are some other key benefits to proper adherence of the CGP over any attempted manipulation.

Less Inherent Risk

Appropriate considerations made to comply with a permit is considerably less risky than otherwise ignoring the mandate. As stated, the permit is essentially regulatory law with many characteristics and details pertained within to ensure a sound construction project and appropriate future environmental considerations when and where applicable.

The CGP offers considerable latitude to help Operators comply with it while minimizing the cost where possible. The incentive to comply is supported by low impact compliance methods incorporated into the CGP. Contracts are important but the inherent risk associated with an inability or unwillingness to follow the permit is cause for concern.

Defense of Action

The specifics of the CGP allow any and all actions in line with the regulation to be defended should potential questions arise regarding the project or its completion. It is a detailed guide and provides clear descriptions of appropriate measures and practices needed to support a foundation for successful execution.  

Any move necessitated by the CGP is then easily legitimized as opposed to having orchestrated an approach reliant on the assumptions of actions taken over time by other involved parties or your own. All steps and procedures, including potential action is regulated specifically by the demands of the CGP.

Intent to Comply

Accepting the CGP and its requirements into project planning demonstrates an intenty to comply. Regularly addressing and resolving issues of non - compliance further reinforces each Operators' intent to perform. Projects involving multiple Operators require a collective buy - in to fulfull this intent. For these occurrences, making sure the permit is strictly enforced and relied upon to move forward from the beginning sends a positive message of compliance and consideration for a job well done.

Instead of executing what could be perceived devious manipulations to a project, all involved parties can rest easy and feel better knowing the guidelines are being followed and no shortcuts will be attempted regardless of the potential capabilities of such action.

E2RC is committed to meaningful construction narratives and procedures, following established protocol and providing professional opinions where necessary. Our experts can and are happy to discuss any construction measures and their potential impact on the environment. E2RC is committed to the following four primary principles in an effort to confirm each effort confidently meets the registered goal of all involved parties.
  1. We are a partnership focused with very profitable results for every member as the measure of the relationship.
  2. We follow the golden rule.
  3. We THINK and ACT with intention and purpose.
  4. We believe in candor and honesty.

E2RC is the leading expert in stormwater compliance and site management. Any and all of your questions regarding what impact new or additional construction may have in regards to the surrounding environment can be readily addressed by one or a team of our willing and ready professionals. Contact us at 505-867-4040 or
fill out a form request today

Environmental Specifications: Performance Based vs. Prescriptive Based

Constructability is key to successful specification writing.

November 1, 2017

New projects and construction like roads, bridges, and buildings often face an incredible amount of "red tape" in order to succeed. The "red tape" can take the form of contract negotiations, submittals, inspections, rejections, specifications and egos. Each key stakeholder has an opinion to hear, supervisor to satisfy and checklist to complete, making it easy to overlook the absolute goal which is the successful, effective and profitable completion of a project. 

Frequently, excessive adherence to these formalities delays project completion times with the project becoming less cost effective with each passing day. Prior to breaking ground, stakeholders rush to cross items from a checklist to establish a meaningful state of progress with less attention paid to the efficacy of the binding specifications. Many projects lean heavily on following prescriptive specifications in a concerted effort to accommodate all necessary requirements, appease all stakeholders, and establish a fundamental plan for their construction. 

When dealing with private stakeholders, landowners, or government municipalities these requirements and related bureaucracy can be even more burdensome and, at times, not related to the overall wellbeing of the project. Often, the experts in a particular area - those who do the work and warrant the results - are overlooked because their recommendations may deviate from the historically accepted prescriptive model. In such instances, re - examining contractual obligations and the goal of the work is necessary to establish the most beneficial outcome for all parties. The reliance on past successes and ability to prove a knowledgeable history in such dealings while demonstrating a progression towards a beneficial outcome cannot be ignored.

The line between performance based and prescriptive based specifications is a tight rope for contractors, agencies, and financial lenders who are backing any such project as it unfolds. For each to feel established, vested, and important in the process - all must be listened to and the necessary steps taken to ensure the measures of each individual entity are being rightfully considered.  However, we cannot forget that the success, profitability and efficacy of the project itself supersede personal feelings or agenda.  

Prescriptive Based Specs

According to the National Ready Mixed Concrete Association, “a prescriptive specification is one that includes clauses for means and methods of construction and composition rather than defining performance requirements. Many times intended performance requirements are not clearly indicated in project specifications and the prescriptive requirements may conflict with the intended performance.”  More directly, the project was 'engineered to the point it couldn't be constructed'. 

One of the more controversial aspects of prescriptive based specifications with regard to construction is the implication of a design. A prescriptive specification could contradict the intended goal or purpose from the standpoint of the manufacturer, municipality, or governing body overseeing any such project. As such, many contractors and companies will focus on the necessary and intended purposes, especially when considering the environmental impacts, as opposed to following a design plan without room for any allowable modifications. Amplified focus on prescriptive methods prevents every stakeholder from innovating and applying current techniques.  Prescriptive specifications work best as a foundation and deliver the worst when treated as an unbreakable commandment.

Consider how changes are correlated in the opposing form of performance based specifications.

Performance Based Specs

Any deviation from prescriptive construction performance initiatives will often be denied. Change is hard. While the benefits of proposed modifications may be apparent to an expert in the field, far too many projects are commonly managed where the regulating body of a construction project is more concerned with monetary limitations or audits than what is often a simple and, many times, cost effective change.

One of the most common areas in which this occurs is revegetative seeding and reclamation. While strict guidelines exist in contracts for construction personnel, the requirements will sometimes not promote sustained vegetation growth in the long-term and may not provide the necessary focus to ensure a quality finished product. Many factors need to be considered when addressing the revegetation concerns. Normally, at least two growing seasons must occur in order to regain proper and necessary growth. The current habitat, soil fertility, slope and seeding methods must all be considered when establishing a long-term plan for proper erosion control while minimizing the environmental impacts of a construction site.  

In such instances, it is best to partner with a professional group which exhibits a strong history of reclamation and revegetation successes to elevate the modifications or design needed for not only the environment but a more complete and well-rounded product. Instead of forcing a method because it is comfortable or 'the standard', ensure your project receives the best possible care with optimum results for future sustainability and success.  Performance specifications focus on sustainability and success.

E2RC is committed to meaningful construction performance, following established protocol and providing professional opinions where needed. Our experts can address any natural impacts regarding specific construction measures with an ability to minimize the impact on the environment and protect the necessary functionality around each and every construction project site. E2RC is committed to the following four principles to confirm each effort confidently meets the registered goal.
  1. We are a partnership focused with very profitable results for every member as the measure of the relationship.
  2. We follow the golden rule.
  3. We THINK and ACT with intention and purpose.
  4. We believe in candor and honesty.

Since 2006, E2RC has been leading the focus on stormwater compliance and site management with activities expanded more recently to include erosion control and modifications on specialized construction techniques. Any and all of your questions regarding what impact new or additional construction may have on the surrounding environment can be readily addressed by one or a team of our willing and ready professionals. Contact us at 505-867-4040 or
fill out a form request today

Spring Brings Change and Renewal

By Kelley Fetter - April 13, 2017

E2RC has revamped its website.  This renewal of our outreach to the stormwater, erosion control, and compliance world matches the calendar; it’s Spring!  Spring marks Nature’s reminder our world functions best with clarity, preservation, and order.

E2RC recognizes it is impossible to overcome Nature.  Stormwater Management is an activity geared towards promoting clarity.  If we minimize disturbance, retain sediment and remove pollutants, the water we have has a great chance to be clean water to use – clarity.

Reclamation and preservation parallel what we see when Spring returns each year.  The environment works to restore what was lost through Winter.  New growth from last year’s reclamation efforts confirms that the energy invested is warranted and worthwhile - preservation.

E2RC is vested in supporting environmental compliance.  All the elements in MS4, Industrial, and Construction activities are driven by order.  Our turnkey services help client’s in every NPDES demonstrate compliance to deliver defendable and defensible results.  Performance based engineering, outcome focused BMP implementation linked with the industry’s most comprehensive, web-based compliance management tools from Comply26, LLC, deliver sound, reliable, and dependable compliance – order.

Happy Spring!  Thanks for reading and check back soon for the next posting.

Changes with the 2017 Construction General Permit

The 2017 Construction General Permit (“CGP”) is effective today. It’s 171 pages of heart pounding, can’t put it down literature. Just kidding.
There are few significant changes to the 2017 CGP. Although a bit longer, the Environmental Protection Agency did a nice job of streamlining and refining the language to be easier to read and understand. However, they did remove several of the ever ambiguous ‘if unfeasible’ options for the permit requirements. But, if you continue with good housekeeping habits and follow your SWPPP, you’ll be in good shape.

Changes to note:
  1. New Prohibited Non – Stormwater Discharges:
    The 2017 permit prohibits discharging external building washdown waters containing hazardous substances. Hazardous substances include soap, solvents, detergents, paint, caulk containing polychlorinated biphenyls (PCBs) and related materials. If the external building washdown does not contain these items, it is an authorized non – stormwater discharge under the permit but must continue to comply with the stormwater, erosion/sediment and pollution control requirements with which you are familiar.
  2. NPDES Permit Notification:
    The NPDES Permit Coverage Notification (e.g. the SWPPP Board) must now include instructions the public may use to contact the EPA to receive a copy of the project’s SWPPP, and how to contact the EPA if they see stormwater pollution discharging from the site. The notification must continue to be located at a readily accessible location near the construction site.
  3. Stockpiles and Land Clearing Debris Piles:
    The Operator must cover or temporarily stabilize all inactive stockpiles and land clearing debris piles that will not be used for 14 days or more. See #5 for deadline requirements.
  4. Stabilization Deadlines:
    The requirement to ‘immediately’ initiate stabilization measures triggers when you know the site or area will be inactive for 14 days or more or as soon as you know the earth – disturbing activities have stopped. 
    • Sites disturbing ≤ 5 acres must initiate stabilization measures immediately and complete the stabilization as soon as possible, but no later than 14 days after initiating the stabilization.
    • Sites disturbing > 5 acres must initiate stabilization measures immediately and complete the stabilization area as soon as possible but no later than seven days after initiating the stabilization.
    The EPA’s goal is to incentivize limiting earth disturbance through phasing by offering longer stabilization time frames for smaller disturbed areas. As such, if your total project is more than five acres but you disturb fewer than five acres at a time, the stabilization requirements follow the 14 – day time frame.
  5. Construction and Domestic Waste:
    Operators must close or cover actively used waste containers when not in use and at the end of each business day. If the container does not have a lid, the Operator must cover the container with a similarly effective method as a lid.
  6. Discharge Limitations to Sensitive Waters:
    If the site discharges to a U.S. water that is impaired for PCBs, and the site is engaging in demolition of any structure with at least 10,000 square feet of floor space built or renovated before 01/01/1980, you must (1) implement controls to minimize precipitation/stormwater exposure to PCB containing materials (e.g. paint, caulk, pre-1980 fluorescent light fixtures), and (2) dispose of those materials in compliance with local, state and federal laws.
  7. Notice of Intent and CDX System:
    The EPA added a few new questions to the NOI form. E2RC will handle those questions for you. However, all NOI certifiers will use a new CDX system and NOI certification process. We’ll send more comprehensive information and instructions to access the new system to all NOI certifiers in a couple of days.
  8. Indian Country Requirements:
    Section 9.4 of the 2017 CGP outlines additional requirements applicable to work or discharges occurring on specific pueblos in New Mexico. If your project will take place on pueblo land, give us a call to go over any additional requirements. Likely, you are already performing these tasks, but it never hurts to check.
That’s it. No big deal. If you have any questions about the new CGP or its requirements, please call our office at (505) 867-4040. We wish you best on current and future projects, and look forward to partnering with you for a successful 2017.


How to Certify with the 2017 Construction General Permit

The 2017 Construction General Permit (“CGP”) took effect on February 16, 2017. One item the EPA has implemented with the new CGP is a new NOI management system and certification process. The new system certainly is steps above the eNOI system and NOI certifiers will encounter a more straight-forward process to review and certify each NOI, Low Erosivity Waiver (“LEW”) and Notice of Termination (“NOT”).  

CDX Net E-Reporting System

The EPA will now utilize the CGP NeT system through which it will accept, review and approve each NOI, LEW and NOT. Fortunately for existing users, the steps you will need to perform to be able to certify your project permits are quick and simple.
  1. Go to:
  2. Login with the same username and password you used for the CDX eNOI system.
  3. Add the NeT Program:
    1. On the MyCDX Homepage click ‘Add Program’.
    2. Select ‘NeT: NPDES eReporting Tool’; and then
    3. Select ‘NeT – EPA Stormwater Construction General Permit’.
    4. Select the ‘Certifier’ role
  4. Complete the Electronic Service Agreement (“ESA”)If you previously completed the ESA you will only need to answer the security questions you created during the initial account set-up to authenticate your account. If you have not completed the ESA, you will need to provide certain pieces of information which will be verified via LexisNexis. This information is for verification purposes only and is not saved or stored. You can choose to complete a paper ESA, but this will delay your account authentication.

Certification Process

The certification process will no longer require a certification key. Instead, after E2RC has prepared your NOI, LEW or NOT, we will route the document to you for review and certification. When we do this, you will receive an email notification indicating you have a form to review. After you log in to your CDX NeT account, the form will be ready to certify.

Ongoing Construction Projects

The 2017 CGP provides a May 17, 2017 deadline to transfer all NOIs for ongoing projects under the 2012 CGP to the NeT system. E2RC will do this for you. After the transferred NOI is active, we will then file the NOT for the previous NOI. This will prevent any gap in coverage and tie up loose ends. Note, however, the 14 - day activation period is still in effect for any new projects that will start under the 2017 permit.