EPA Issues New Storm Water Permit Requirements for Construction Activities

By Gregory A. Bibler and Nathan J. Brodeur

On July 1, 2003, EPA issued a new Construction General Permit ("CGP") to implement revisions to federal storm water regulations applicable to construction activities. The revised regulations, effective since March 2003, reduced the threshold for storm water permitting requirements from five to one acre of land disturbed by construction activities. The new CGP contains procedural and substantive provisions that were not included in the CGP for construction activities in effect since 1998. Therefore, businesses should familiarize themselves with the requirements of the new CGP before undertaking any project that affects more than one acre of land.

As part of a national enforcement initiative, EPA has directed its regional offices to make control of storm water runoff from construction activities a priority. In June 2003, EPA Region I announced settlements with two developers who agreed to pay fines totaling $92,000 for violating storm water requirements. Failure to take note of the lower threshold applicable to construction projects under the new regulations, or to comply with the requirements of the 2003 CGP, could subject developers to stop work orders, monetary penalties, and adverse scrutiny from EPA and the local community.

This article explains which construction activities now are subject to federal storm water regulations, discusses the circumstances in which the 2003 CGP can be used to comply with those regulations, and explains how to obtain coverage under the 2003 CGP.

In 1987, Congress directed EPA to establish a national storm water management program. The Phase I program, which became effective in 1990, required National Pollution Discharge Elimination System ("NPDES") permit coverage for storm water runoff associated with a large number of priority industrial sources, including construction sites that disturbed five or more acres of land ("Large Construction Activities"). On December 8, 1999, EPA issued the Phase II Storm Water Regulations. These regulations, which became effective on March 10, 2003, expanded the NPDES program by requiring permit coverage for construction sites that disturbed from one to five acres of land ("Small Construction Activities").

EPA and the states have chosen in most instances to address the large number of regulated storm water discharges through simplified general permits. Such permits take the form of regulations that authorize entire categories of storm water discharges if individual discharges comply with the general permit’s conditions. General permits typically do not impose effluent limitations, but rather, require use of storm water management practices to minimize pollutants in storm water runoff. Such best management practices must be identified in a storm water pollution prevention plan ("SWPPP"). Coverage under general permits simply requires submission of a Notice of Intent ("NOI") and compliance with the conditions of the permit. If the applicant meets these requirements, permit coverage is automatic. Of course, the permitting agency retains the right to require more onerous individual permits in instances where a discharge may create a risk of water quality impairment.

In 1998, EPA issued two NPDES General Permits for Storm Water Discharges From Construction Activities (the "1998 CGPs") which authorized storm water discharges from the Large Construction Activities covered by the Phase I program. On July 1, 2003, in response to the Phase II regulations, EPA issued a new CGP, which replaces the 1998 CGPs and authorizes storm water discharges from both Small and Large Construction Activities, provided those activities comply with all applicable CGP requirements.

While the inclusion of Small Construction Activities within the scope of the CGP is the most prominent change in the 2003 CGP as compared to the 1998 CGPs, there are several other changes of which developers and businesses should be cognizant. The following changes, which are described in greater detail below, are among the most notable:

• Waiver opportunities for Small Construction Activities
• Earlier submission deadlines for the Notice of Intent ("NOI")
• Availability of electronic submission of the NOI
• Ability to undertake weekly site inspections, thereby obviating the need to inspect the site after each rainfall event

Real estate developers and other businesses engaged in construction projects should familiarize themselves with the eligibility, procedural, and substantive requirements of the 2003 CGP. Developers and businesses that have been operating under the 1998 CGPs and therefore are familiar with the requirements embodied in those permits should be particularly vigilant in noting the changes included in the 2003 CGP. Failure to heed the applicable requirements could, at best, delay construction projects. At worst, noncompliance could result in federal penalties, legal and expert costs, and loss of business reputation.

Most states have now been authorized by EPA to implement the NPDES storm water program. In these states, operators of construction activities must comply with the applicable state storm water requirements, rather than the federal CGP. EPA has created a table that clarifies where it retains NPDES storm water permitting authority. See http://cfpub.epa.gov/npdes/stormwater/authori zationstatus.cfm. The information contained in this Advisory is directly applicable only to construction operators in jurisdictions where EPA retains permitting authority. However, states typically use EPA’s general permit as a model and adopt substantially similar permits.

EPA defines construction activities to include earth disturbing activities, such as clearing, grading, and excavation, as well as construction support activities, such as equipment maintenance and storage of construction materials or equipment. Construction activities do not include interior building or remodeling, or earth moving activities that are part of the routine operations of a completed facility (e.g., landscape maintenance, maintenance of gravel roads or parking lots, and application of daily cover for landfills).

Any construction activity that will disturb one or more acres of land and has the potential to discharge storm water runoff to any of the "waters of the United States" must have a NPDES permit (or have qualified for a waiver, as described below). Construction activities that disturb less than one acre must also obtain permit coverage if (i) EPA determines that storm water runoff from the site could adversely affect waters of the United States, or (ii) the construction activities are part of a larger "common plan" that disturbs more than one acre. Typical common plans include residential subdivisions and industrial parks, but EPA’s definition of common plan is broad, and encompasses a wider range of development activities.

In determining whether a construction area is part of a larger "common plan," a construction operator must consider the location of the construction area and the timing of its development. If a construction area is not contiguous with the rest of the common plan and is separated by at least a quarter mile, the acreage of the area can be treated independently from the common plan, provided construction is not simultaneously occurring on any road or right-of-way connecting the area to the common plan.

A construction area can also be treated independently from the common plan if it remains undeveloped for a period of time after construction on the rest of the common plan has been completed and final stabilization has occurred. Similarly, construction activities that were not part of the original common plan and occur after completion of the initial plan can stand alone as independent plans.

Operators who are considering seeking a Small Construction Activities waiver, as described below, should be especially conservative in making such an estimate. If construction ultimately causes more than five acres to be disturbed, the construction activity will be classified as a Large Construction Activity and will no longer be eligible for a Small Construction waiver. In such a situation, attempting to procure CGP coverage after construction has begun could result in construction delays, unanticipated costs and, possibly, enforcement liability.

If a construction activity requires a permit, the operator at the construction site is responsible for applying for CGP coverage. EPA has defined "operator" to include any person who either has the ability to make modifications to construction plans and specifications (typically the owner or developer of the project) or who has day-to-day control of the site activities that are necessary to ensure compliance with permit conditions (typically the general contractor). As a result, multiple parties at a construction site may be required to apply for CGP coverage. An operator who has control over construction activities on a portion of a site must obtain CGP coverage only for those activities for which it is responsible. However, EPA encourages all permittees at a site to prepare a SWPPP that controls storm water runoff from the entire site.

Under certain circumstances, a construction activity that disturbs one or more acres may not require a NPDES permit. If all of the storm water runoff from the construction activity is collected on-site and allowed to evaporate, soak into the ground on-site, or is used for irrigation, coverage under the CGP is not necessary. Similarly, waivers from coverage under the CGP are available for Small Construction Activities if (i) little or no rainfall is expected during the period of construction; or (ii) if a Total Maximum Daily Load ("TMDL") or equivalent analysis demonstrates that control of storm water runoff from the construction site is not necessary to protect water quality. Operators of Small Construction Activities that are granted CGP waivers should check local requirements to determine if other erosion controls may apply to the construction site. Waivers are not available for Large Construction Activities.

Operators of construction activities requiring an NPDES permit must apply for and obtain CGP coverage before any construction activities can commence. In order to apply for coverage, an operator must (i) ensure that the construction activity is eligible for CGP coverage; (ii) prepare a SWPPP; and (iii) submit a Notice of Intent ("NOI").

To be eligible for coverage under the CGP, an operator must first verify that the construction activities will occur in a location where EPA is the permitting authority for the NPDES storm water program. The operator must then determine whether the CGP allows all discharges that will occur at the site, and whether an EPA-approved or established TMDL exists that addresses discharges from the site. If such a TMDL exists, the operator must take all necessary actions to ensure compliance with the TMDL. Finally, the operator must ensure that discharges from the site are not likely to jeopardize the continued existence of any federally listed endangered or threatened species or result in the adverse modification or destruction of habitat that is federally designated as critical under the Endangered Species Act. Although the CGP does not currently require operators to consider the impact of discharges on historic properties, operators must comply with any applicable state, tribal and local regulations relating to historic properties. Operators must document all CGP eligibility determinations and include such documentation in the site’s SWPPP.

After determining that a construction activity is eligible for CGP coverage, the operator must develop an SWPPP, which describes the sediment and erosion controls, storm water management measures, and other best management practices ("BMPs") that will be implemented on the site to control storm water discharges. EPA designed the SWPPP requirements to provide operators with maximum flexibility for developing storm water controls based on the physical characteristics of the site and the specific construction activities at issue.

Sediment and erosion controls include stabilization and structural practices that serve to prevent off-site sedimentation from occurring during active construction at the site. Storm water management practices serve to reduce pollutants in storm water discharged after the completion of construction activities, and typically include on-site infiltration of runoff, flow attenuation by vegetation or natural depressions, outfall velocity dissipation devices, storm water retention basins and artificial wetlands, and storm water detention devices. BMPs, which include materials management and litter control practices, prevent pollutants such as oils, greases, paints, litter, and debris from being discharged with storm water.

Operators must "regularly" inspect designated areas, including all areas of the site disturbed by construction or used for storage of materials that are exposed to precipitation, and the inspection schedule must be described in the operator’s SWPPP. In the 2003 CGP, EPA defined "regularly" to mean either (i) at least once every seven calendar days or (ii) at least once every 14 calendar days and within 24 hours of any rainfall event of 0.5 inches or greater. By contrast, the 1998 CGPs did not allow for the every seven day option. Depending on local rainfall patterns, the number of inspections required under the seven-day option may be either more or fewer than the alternative option. However, in exchange for committing to more frequent inspections, the operator selecting the seven-day option can plan and budget for one inspection per week and not have to worry about the uncertainties associated with an unknown number of additional inspections triggered by rain events or the need to have inspectors at the ready. As such, the seven-day option may be especially valuable for unmanned locations.

Once an operator has determined the construction activity is eligible for CGP coverage and has prepared a SWPPP, the operator must submit an NOI. An operator of construction activity commencing after July 1, 2003, must submit the NOI to EPA seven calendar days prior to starting construction. Under the 1998 CGPs, the NOI had to be submitted to EPA only two days before construction was to commence. EPA lengthened the time period between NOI submission and the start of construction to allow for review of the operator’s Endangered Species Act determinations.

For NOIs submitted before September 29, 2003, an operator can initiate construction activities seven days after the postmark date of the NOI. However, for NOIs submitted after that date, construction cannot begin until seven calendar days after EPA posts acknowledgement of receipt of the operator’s complete NOI on the EPA Web site.

Operators should also be aware that, under the CWA, EPA has the authority to delay an operator’s construction authorization based on CGP eligibility considerations by simply notifying the operator of the delay in authorization. Accordingly, an operator should submit an NOI as soon as possible. Although not yet available, EPA plans to streamline the NOI process by implementing an electronic NOI filing system in the summer of 2003. Operators of construction activities that received authorization under the 1998 CGPs have until September 29, 2003, to submit an NOI for coverage under the 2003 CGP. By that date, these operators must also update their SWPPPs to comply with the 2003 CGP.

An operator may terminate CGP coverage after final stabilization is achieved. Final stabilization is achieved when the operator plants a uniform perennial vegetative cover with a density of 70% of the native background vegetative cover over all unpaved areas. Alternatively, the operator may achieve final stabilization by installing equivalent permanent stabilizing measures, such as riprap, gabions, or geotextiles, over these areas. An operator who is responsible for only a portion of a construction activity may terminate CGP coverage when final stabilization occurs on the portion of the site for which the operator is responsible. CGP coverage is formally terminated when the operator submits to EPA a Notice of Termination ("NOT"). Submission of an NOT must occur within 30 days of final stabilization of the operator’s portion of the site. The operator must retain all records required by the CGP, including the SWPPP, for at least three years following termination of CGP coverage.

Failure to heed storm water requirements and make plans for their implementation could result in unnecessary costs and delays and, worse, could invite EPA to commence an enforcement action. Early in the planning process, therefore, developers and other operators of construction sites should consider how best to comply with storm water permitting requirements. Responsibility for completing the necessary notices, plans, controls and inspections should be clearly delineated and made an integral part of the contracting and scheduling process. Options for complying with storm water requirements, including implementation of storm water controls that may make the project eligible for a waiver, should be weighed long in advance of construction, to ensure that the most cost-effective approach can be adopted.

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