Last month, the U.S. Environmental Protection Agency (“EPA”) issued a new general permit for stormwater discharges from construction sites under the National Pollutant Discharge Elimination System (“NPDES”) of the Clean Water Act. A general permit is one with standardized terms, authorizing anyone who meets its requirements to engage in a regulated activity and typically is used when numerous facilities are engaged in a similar activity. In the absence of a general permit, a regulated entity must obtain an individual permit specifically tailored to its operations.

The new 2012 Construction General Permit (“CGP”), which replaces the expired 2008 version, is available here for viewing. The following Client Advisory highlights and explains the main revisions to the new 2012 CGP. More information can be found on EPA’s website, including an announcement of a March 15, 2012 informational webinar that provides an opportunity to ask questions of EPA regulators.

THE APPLICABILITY OF THE NEW CONSTRUCTION GENERAL PERMIT HAS NOT CHANGED

The 2012 CGP applies to operators of construction sites disturbing one or more acres of land (or less than one acre which is part of a larger common plan of development or sale that will ultimately disturb one acre or more) who file Notices of Intent (“NOI”) with EPA to be covered by the permit. In submitting an NOI, the site operator certifies that it meets eligibility requirements and will comply with permit conditions and effluent limitations. The CGP applies in states where EPA is the Clean Water Act permitting authority, including Massachusetts, New Hampshire, Idaho, and New Mexico, as well as in the District of Columbia, most U.S. territories, and on Indian lands. The remaining states, which have been delegated authority by EPA to implement the Clean Water Act, may issue their own general permits. Although not bound to follow EPA’s CGP, most “delegated states” incorporate similar provisions into their own programs.

CONSTRUCTION SITE OPERATORS MUST CONSIDER THE IMPORTANT DIFFERENCES BETWEEN THE 2012 CGP AND THE 2008 CGP

The new CGP differs from the 2008 version in several respects. First, the new CGP contains requirements necessary to implement the Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development Point Source Category, which were issued by EPA in December 2009. The so-called “C & D Rule,” imposes a variety of mandates to control pollution from stormwater runoff at construction sites. These requirements must be addressed in all new permits, whether they are individual or general permits.

Under the C & D Rule, certain non-numeric effluent limitations must be met at all regulated construction sites. These effluent limitations address matters such as control of erosion and sedimentation, soil stabilization, dewatering, prohibited discharges, and pollution prevention. The 2012 CGP implements the rule but with more detail, and, in the case of discharges to impaired and high quality waters, the permit imposes additional, water quality-based, requirements. EPA expects that the Rule’s effluent limitations and the corresponding permit provisions will reduce the exposure of stormwater to pollutant sources at construction sites, thereby controlling the discharge of sediment and related pollutants (e.g., nutrients) to surface waters.

The C & D Rule originally included a controversial numeric limitation for turbidity; however, EPA stayed the turbidity limit in response to concerns that it had been calculated incorrectly. Accordingly, the new CGP does not include a numeric turbidity limit because the agency’s reevaluation is ongoing.

Second, the 2012 CGP mandates more detailed erosion and sedimentation controls. For example, under the new CGP, developers must install erosion and sediment controls prior to the start of construction -- before initial site clearing, grading, excavating and other land disturbing activities. In addition, construction sites must provide a 50-foot wide natural buffer (or comparable erosion and sediment controls) between disturbed portions of the property and surface waters. Exemptions may be available from each of these requirements if compliance is not feasible. Other sediment-control

CONSTRUCTION SITE OPERATORS MUST CONSIDER THE IMPORTANT DIFFERENCES BETWEEN THE 2012 CGP AND THE 2008 CGP

The new CGP differs from the 2008 version in several respects. First, the new CGP contains requirements necessary to implement the Effluent Limitations Guidelines and New Source Performance Standards for the Construction and Development Point Source Category, which were issued by EPA in December 2009. The so-called “C & D Rule,” imposes a variety of mandates to control pollution from stormwater runoff at construction sites. These requirements must be addressed in all new permits, whether they are individual or general permits.

Under the C & D Rule, certain non-numeric effluent limitations must be met at all regulated construction sites. These effluent limitations address matters such as control of erosion and sedimentation, soil stabilization, dewatering, prohibited discharges, and pollution prevention. The 2012 CGP implements the rule but with more detail, and, in the case of discharges to impaired and high quality waters, the permit imposes additional, water quality-based, requirements. EPA expects that the Rule’s effluent limitations and the corresponding permit provisions will reduce the exposure of stormwater to pollutant sources at construction sites, thereby controlling the discharge of sediment and related pollutants (e.g., nutrients) to surface waters.

The C & D Rule originally included a controversial numeric limitation for turbidity; however, EPA stayed the turbidity limit in response to concerns that it had been calculated incorrectly. Accordingly, the new CGP does not include a numeric turbidity limit because the agency’s reevaluation is ongoing.

Second, the 2012 CGP mandates more detailed erosion and sedimentation controls. For example, under the new CGP, developers must install erosion and sediment controls prior to the start of construction -- before initial site clearing, grading, excavating and other land disturbing activities. In addition, construction sites must provide a 50-foot wide natural buffer (or comparable erosion and sediment controls) between disturbed portions of the property and surface waters. Exemptions may be available from each of these requirements if compliance is not feasible. Other sediment-control provisions require reduction in tracking of sediment from construction vehicles exiting the site, including daily removal of tracked-out material from paved surfaces; controls along those portions of the site’s perimeter that will receive stormwater from land disturbing activities; and installation of controls on storm drain inlets that flow directly from the site to a surface water (if the site operator has access). The CGP also requires specific dewatering techniques to prevent discharges of water collected in trenches, excavations, and similar places.

Third, the new CGP increases corrective action and maintenance requirements. For example, if problems with stormwater controls are discovered, they must be fixed promptly. Specifically, remedial work must be begun the day problems are discovered and completed by the end of the next work day unless significant repair or replacement is necessary. Similarly, inspection requirements have been enhanced; the new permit increases the frequency of inspections and lowers the threshold for inspections done on a storm-based schedule to a 0.25” storm event. For high quality waters and waters impaired by construction-related pollutants (i.e., sediment and nutrients), even more frequent site inspections are required.

Fourth, under the new CGP, the use of certain treatment chemicals (e.g., polymers, flocculants) is allowed, but others (e.g., cationic chemicals) are barred unless specific approval is granted by the applicable EPA regional office. Further, the new CGP includes pollution prevention requirements. It prohibits the discharge of various common construction-related pollutants (e.g., washwater from vehicles, fertilizers, landscape materials), and also details what is necessary for site stabilization, with more stringent requirements for both high quality and impaired waters.

REVISIONS TO THE PERMITTING PROCESS

EPA has also made several changes in the permitting process. Although developers will continue to use an NOI to advise EPA of a project’s permit coverage, EPA is now requiring electronic submissions in most cases through the “eNOI” system (or electronic NOI system). For new projects, an NOI must be submitted at least 14 days before earth disturbing activities begin, which is an increase from the prior seven day waiting period. For projects that are covered under an existing permit, the NOI is due by May 16, 2012. If a new operator takes over a project, it is required to submit an NOI 14 days before the transfer date.

Next, in a significant change, the 2012 CGP provides immediate authorization for construction activities related to national disasters and other public emergencies, without any waiting period. In such cases, the NOI must be submitted and a stormwater pollution prevention plan (“SWPPP”) developed within 30 days after work begins. The 2012 CGP continues to require an SWPPP in all non-emergency situations, and EPA is providing updated models and guidance for such plans.

Finally, the CGP contains new requirements for termination of coverage. Prior to termination, the developer now must remove all temporary stormwater controls, construction materials, waste, and waste handling devices, as well as meet previous requirements for cessation of land disturbance and site stabilization.

CONCLUSION

It is essential that construction site operators become conversant with the permitting process and new requirements in the 2012 CGP. Thus, operators must account for and address the revised requirements and processes in the 2012 CGP before planning the construction and development of a site.