The rise of stormwater litigation cases came about in 1987 when the Clean Water Act required the Environmental Protection Agency to establish permit regulations for the discharge of stormwater. Today, most municipalities, industrial sectors, and construction activities require permits for the runoff of stormwater. When these permits are not required, or the proper regulations are not followed, the stormwater may have a negative effect on the property, resulting in litigation.

Stormwater is one of the biggest sources of pollution and is contaminating our beaches, rivers, lakes, and streams. Construction projects such as land development and road building are a few of the biggest contributors to this runoff, which has extremely negative effects on the environment. They include:

1. Removal of Vegetation
During construction, earth is moved and exposed to the elements. This causes quick erosion and a high degree of runoff. Surface erosion can increase up to 200 times on sites that were formerly pasture and up to 2,000 times on sites formerly forested.

2. Pollutants
As stormwater flows, it picks up environmental pollutants such as debris, pesticides, petroleum products and chemicals. The runoff is washed into our rivers and streams, and eventually carried to the oceans and beaches, thus widening the environmental destruction.

3. Decreased Oxygen in Water
The runoff full of sediment causes a loss of oxygen within water. This results in loss of habitat for aquatic life including disruption of spawning beds and even leads to the death of fish. It can also result in higher drinking water treatment costs because of the difficulty in filtering the water.

It is vitally important to our environment to ensure that measures are taken to prevent stormwater runoff and all the negative effects it causes. To avoid litigation, steps such as planning construction projects that reduce the amount of soil exposure are key. There are also devices that can be installed on the job site such as sediment and erosion control devices and silt fences. These precautions control the stormwater and avoid all the negative effects of runoff.

If precautionary steps such as these are not taken, enforcement becomes a priority. In the last several years, the Environmental Enforcement Section has brought enforcement actions against several corporations including the “big box stores” Walmart and Home Depot. National homebuilders including Pulte, KB Homes, Centex and Richmond, and even against the City of Dallas were also affected and litigated for not following protocol. Oftentimes, litigations such as these result in hefty fines or civil penalties such as constructing new wetlands to replace the ecosystems that were compromised. In closing, environmental safety should always be a key priority in the mind of a developer or builder as it can lead to disaster if not followed.