Current through August 26, 2024
(1)
DETERMINATION OF SOIL LOSS. In this section, soil loss is calculated using the
appropriate rainfall or runoff factor, also referred to as the R factor, or an
equivalent design storm using a type II distribution, with consideration given
to the geographic location of the site and the period of disturbance.
Note: The universal soil loss equation and its
successors, revised universal soil loss equation and revised universal soil
loss equation 2, utilize an R factor which has been developed to estimate soil
erosion, averaged over extended time periods. The R factor can be modified to
estimate monthly and single-storm erosion.
(2) APPLICABILITY. This section applies to
any construction site that consists of one acre or more of land disturbing
construction activity.
(a) Subsections (3),
(4), (5), (6), and (7) apply to all of the following:
1. Construction sites for which the
department received a notice of intent in accordance with subch. III of ch. NR
216 before January 1, 2011.
2.
Construction sites for which the department of commerce received a notice of
intent in accordance with ch. SPS 360 before January 1, 2011.
3. Construction sites for which a bid has
been advertised or construction contract signed for which no bid was
advertised, before January 1, 2011.
(b) Subsections (3) (a) to (d), (4), (5),
(6m), (7), and (8) apply to all of the following:
1. Construction sites for which the
department received a notice of intent in accordance with subch. III of ch. NR
216 on or after January 1, 2011.
2.
Construction sites for which a bid has been advertised or construction contract
signed for which no bid was advertised, on or after January 1, 2011.
(3) EXEMPTIONS. This
section does not apply to the following:
(a)
Construction projects that are exempted by federal statutes or regulations from
the requirement to have a national pollutant discharge elimination system
permit issued under 40 CFR 122, for land disturbing construction
activity.
(b) Transportation
facilities, except transportation facility construction projects that are part
of a larger common plan of development such as local roads within a residential
or industrial development.
Note: Transportation facility performance
standards are given in subch. IV.
(c) Nonpoint discharges from agricultural
facilities and practices.
Note: This exemption is for nonpoint
discharges from agricultural facilities and practices, such as cropping and
pasturing. Subchapter III of ch. NR 216 also exempts nonpoint discharges, but
regulates point source discharges of storm water, such as the construction of
barns, manure storage facilities, sand settling lanes, and barnyard runoff
control systems. Under s.
NR 216.42(2), such construction sites
are subject to the construction performance standards of this
section.
(d) Nonpoint
discharges from silviculture activities.
(e) Routine maintenance for project sites
that have less than 5 acres of land disturbance if performed to maintain the
original line and grade, hydraulic capacity or original purpose of the
facility.
(4)
RESPONSIBLE PARTY. The landowner or other person performing services to meet
the performance standards of this subchapter, through a contract or other
agreement with the landowner, is the responsible party and shall comply with
this section.
(5) PLAN. The
responsible party under sub. (4) shall develop and implement a written plan for
each construction site. The plan shall incorporate the applicable requirements
of this section.
Note: The written plan may be that specified
within s.
NR 216.46, the erosion control portion of a construction
plan or other plan.
(6)
PRE-JANUARY 1, 2011 REQUIREMENTS. The plan required under sub. (5) shall
include the following:
(a) Best management
practices that, by design, achieve, to the maximum extent practicable, a
reduction of 80% of the sediment load carried in runoff, on an average annual
basis, as compared with no sediment or erosion controls, until the construction
site has undergone final stabilization. No person shall be required to exceed
an 80% sediment reduction to meet the requirements of this paragraph. Erosion
and sediment control BMPs may be used alone or in combination to meet the
requirements of this paragraph. Credit toward meeting the sediment reduction
shall be given for limiting the duration or area, or both, of land disturbing
construction activity, or other appropriate mechanism.
(b) Notwithstanding par. (a), if BMPs cannot
be designed and implemented to reduce the sediment load by 80%, on an average
annual basis, the plan shall include a written and site-specific explanation
why the 80% reduction goal is not attainable and the sediment load shall be
reduced to the maximum extent practicable.
(c) Where appropriate, the plan shall include
sediment controls to do all of the following to the maximum extent practicable:
1. Prevent tracking of sediment from the
construction site onto roads and other paved surfaces.
2. Prevent the discharge of sediment as part
of site de-watering.
3. Protect
separate storm drain inlet structures from receiving sediment.
(d) The use, storage and disposal
of chemicals, cement and other compounds and materials used on the construction
site shall be managed during the construction period to prevent their transport
by runoff into waters of the state. However, projects that require the
placement of these materials in waters of the state, such as constructing
bridge footings or BMP installations, are not prohibited by this
paragraph.
(6m)
POST-JANUARY 1, 2011 REQUIREMENTS. The plan required under sub. (5) shall meet
all of the following:
(a)
Erosion and
sediment control practices. Erosion and sediment control practices at
each site where land disturbing construction activity is to occur shall be used
to prevent or reduce all of the following:
1.
The deposition of soil from being tracked onto streets by vehicles.
2. The discharge of sediment from disturbed
areas into on-site storm water inlets.
3. The discharge of sediment from disturbed
areas into adjacent waters of the state.
4. The discharge of sediment from drainage
ways that flow off the site.
5. The
discharge of sediment by dewatering activities.
6. The discharge of sediment eroding from
soil stockpiles existing for more than 7 days.
7. The discharge of sediment from erosive
flows at outlets and in downstream channels.
8. The transport by runoff into waters of the
state of chemicals, cement, and other building compounds and materials on the
construction site during the construction period. However, projects that
require the placement of these materials in waters of the state, such as
constructing bridge footings or BMP installations, are not prohibited by this
subdivision.
9. The transport by
runoff into waters of the state of untreated wash water from vehicle and wheel
washing.
Note: Wastewaters, such as from concrete truck
washout, needs to be properly managed to limit the discharge of pollutants to
waters of the state. A separate permit may be needed from the department where
a wastewater discharge has the potential to adversely impact waters of the
state. The appropriate department wastewater specialist should be contacted to
determine if wastewater permit coverage is needed where wastewater will be
discharged to waters of the state.
(b)
Sediment performance
standards. In addition to the erosion and sediment control practices
under par. (a), the following erosion and sediment control practices shall be
employed:
1. For construction sites for which
the department received a notice of intent for the construction project in
accordance with subch. III of ch. NR 216, within 2 years after January 1, 2011,
BMPs that, by design, achieve a reduction of 80 percent, or to the maximum
extent practicable, of the sediment load carried in runoff, on an average
annual basis, as compared with no sediment or erosion controls, until the
construction site has undergone final stabilization.
2. For construction sites for which the
department received a notice of intent for the construction project in
accordance with subch. III of ch. NR 216, 2 years or more after January 1,
2011, BMPs that, by design, discharge no more than 5 tons per acre per year, or
to the maximum extent practicable, of the sediment load carried in runoff from
initial grading to final stabilization.
3. The department may not require any person
to employ more BMPs than are needed to meet a performance standard in order to
comply with maximum extent practicable. Erosion and sediment control BMPs may
be combined to meet the requirements of this paragraph. The department may give
credit toward meeting the sediment performance standard of this paragraph for
limiting the duration or area, or both, of land disturbing construction
activity, or for other appropriate mechanisms.
4. Notwithstanding subd. 1. or 2., if BMPs
cannot be designed and implemented to meet the sediment performance standard,
the plan shall include a written, site-specific explanation of why the sediment
performance standard cannot be met and how the sediment load will be reduced to
the maximum extent practicable.
Note: The department of natural resources has
developed guidance document no. 3800-2017-03 to assist with compliance with the
5 tons per acre sediment performance standard.
Note: In accordance with subch. V, the
department has developed technical standards to help meet the construction site
performance standards. These technical standards are available from the
department at dnr.wi.gov.
(c)
Preventive measures. The
plan shall incorporate all of the following:
1. Maintenance of existing vegetation,
especially adjacent to surface waters whenever possible.
2. Minimization of soil compaction and
preservation of topsoil.
3.
Minimization of land disturbing construction activity on slopes of 20% or
more.
4. Development of spill
prevention and response procedures.
(7) LOCATION. BMPs shall be located so that
treatment occurs before runoff enters waters of the state.
Note: While regional treatment facilities are
appropriate for control of post-construction pollutants they should not be used
for construction site sediment removal.
(8) IMPLEMENTATION. The BMPs used to comply
with this section shall be implemented as follows:
(a) Erosion and sediment control practices
shall be constructed or installed before land disturbing construction
activities begin in accordance with the plan developed under sub.
(5).
(b) Erosion and sediment
control practices shall be maintained until final stabilization.
(c) Final stabilization activity shall
commence when land disturbing activities cease and final grade has been reached
on any portion of the site.
(d)
Temporary stabilization activity shall commence when land disturbing
construction activities have temporarily ceased and will not resume for a
period exceeding 14 calendar days.
(e) BMPs that are no longer necessary for
erosion and sediment control shall be removed by the responsible
party.
