and landscape architecture. The preparation of a SWPPP contemplates the interaction of many disciplines: wetland biology, biology, biochemistry, engineering, agriculture, agricultural engineering, turfgrass studies, landscape architecture, liminology, soil science, hydrology, architectural history and horticulture. The Guidelines tacitly recognize the practical difficulties of synthesizing these areas by leaving space for professional judgement.
In reviewing the SWPPP at issue in this litigation, the Court is, therefore, obliged to determine if SGA exercised that professional design judgement well within the perimeters of the Guidelines. To do that, we examine the City's varied objections to the SWPPP.
2. The City's General Objection
The City initially contends that the SWPPP contains insufficient information even to permit an evaluation of whether it complies with the General Permit.
The SWPPP, however, consists of voluminous texts, including maps, diagrams, and extensive explanatory material, as well as underlying data, detailed drawings and contrary to the City's position, the plans do indeed include sufficient detail to permit evaluation, as, if nothing else, the trial of this action demonstrated.
3. Erosion and Sediment Control Measures
During rainfall once construction has started, there is always a danger that previously stabilized soil might be disconnected and that it might be washed away and eventually contaminate nearby waterbodies. The Permit prohibits any construction activity which will increase "offsite impacts" from this kind of contamination, which it defines as erosion and sedimentation. To comply with the Permit, the SWPPP must, therefore, include both erosion and sediment controls because neither by itself is completely effective in preventing stormwater pollution. Erosion controls, the "first line of defense,"
prevent attached soil from disconnecting. Sediment controls, "the second line of defense,"
prevent the disconnected soils from entering and ultimately blending with streams or other waterbodies. The City objects to both SGA's erosion and sediment controls.
a. Erosion Control -- The Five Acre Rule
The General Permit requires that erosion control on a construction site be accomplished by, among other things, limiting to five acres the amount of soil exposed
at any one time to five acres. According to the City, SGA does not meet this requirement.
Under SGA's plans, the work site is divided into twelve areas that can be separately managed and temporarily stabilized.
Thus, under SGA's SWPPP, in each instance where greater than five acres is exposed, that area will be "protected" by various erosion and sediment control measures such as diversions, earth dikes,
surface roughening and grading, interior silt fences, perimeter silt fences, sediment traps, sodding, temporary seeding and or mulching. SGA's erosion and sediment measures clearly fall within the Guidelines of the General Permit.
The City contends, however, that these measures are still deficient because they will not be implemented in sufficient time to prevent erosion. In support they rely upon the "Construction Time-Line Schedule" ("the Schedule")
, included in the SWPPP, which sets forth dates and durations of proposed construction activities for each of the twelve work areas.
The City notes that according to the Schedule, the first three tasks to be performed on each construction section are: (1) clearing, grubbing, and topsoil stripping; (2) earthwork, including cuts and fills; and (3) fairway contouring and feature shaping. Each of these activities involves soil disturbance and will leave soils exposed. The City contends that the first erosion control methods will be implemented only after eight weeks of construction when defendants commence seeding and drainage measures. In support the City refers to the general performance note B(4)(g) on Sheet C-5 of the SWPPP. That note provides that in areas where work has ceased, or where it will temporarily cease for a period of twenty-one or more days, vegetation measures such as grassing and mulching should be implemented within twenty-four hours after the cessation of work.
Moreover, the City notes that the schedule describes all work as ongoing. Therefore, the City asserts, the performance note read in conjunction with the schedule suggests that Defendants have no satisfactory erosion controls.
SGA however demonstrated that the schedule was not an adequate indication of the actual timing of the project. First, the City's TRO precluded construction in accordance with the time line in the SWPPP. Having prevented performance under the original time line, the City cannot fairly fault SGA for being unable to follow it. The SWPPP, in any event, includes adequate erosion control measures and once the project and the effects of variables such as weather and construction progress are apparent, the contractors could realistically determine when, and under what precise circumstances, otherwise adequate erosion control measures such as temporary stabilization or permanent seeding should be used.
b. Erosion control--Sodding
The City strenuously objects to the use of sod as an erosion control method claiming that under the Guidelines, areas with slopes steeper than 2:1 cannot be stabilized with grasses, and those areas require special design and stabilization considerations that must be adequately shown on the plans.
The City argues that SGA's use of sod violates the Guidelines because sod is a grass. SGA demonstrated that while sod is grass, it does not function as a grass in the context of stabilization. Grass is considered inadequate for stabilization because no roots are established when it is seeded and mulched and thus, when rain falls on a slope, the newly seeded grass will wash away. Sod, on the other hand, is cut and laid into the earth and therefore it attaches and remains attached during rainfall. Consequently, we find that sod is a suitable erosion control method, having certain undeniable advantages over grass.
c. Erosion Controls--Diversions
Another form of erosion controls are diversions which are channels designed to intercept and convey stormwater. The City contends that the diversions as shown on the SWPPP are inadequate because they are located below or in the midst of disturbed areas of soil and consequently will not adequately channel the stormwater. The City argues that this defeats the purpose of division: to direct clean storm water away from exposed soils. Nevertheless, SGA's plans, include diversions which are located above the disturbed slopes and, which therefore, function as a suitable erosion control method.
The City also asserts that the design of diversions in the SWPPP does not match the design detail for a diversion contained in New York Guidelines. SGA's witnesses confirmed, however, that what the City believes to be "diversions" are actually "earth dikes" and were designed in accordance with the New York Guidelines.
This confusion stems from the inconsistent nomenclature in the various reference guides for stormwater pollution prevention measures. Defendants had prepared this section of their SWPPP prior to the publication of the General Permit and thus had labelled the "earth dikes" as "diversions" in accordance with the Westchester County Best Management Practices manual.
The function of earth dikes is to convey sediment-laden water to control structures such as sediment basins or sediment traps during the course of construction. In any event, the design and location of the diversions falls within the Guidelines.
d. Sediment Controls--Silt Fences
The General Permit provides:
Sediment control practices/measures, where necessary, should be designed to protect the natural character of rivers, streams, lakes, coastal waters or other waterbodies on-site and minimize erosion and sedimentation off-site from the start of land disturbance activities to establishment of permanent stabilization.