Spared by the Office of Management and Budget from the Trump Administration’s regulatory freeze, the U.S. Environmental Protection Agency’s (EPA) 2017 National Pollutant Discharge Elimination System General Permit for Stormwater Associated with Construction Activities (2017 CGP) became effective on February 16, 2017.

The 2017 CGP applies only in jurisdictions where the EPA is the federal Clean Water Act permitting authority, which are relatively few but do include most of the land in the states of Massachusetts, New Hampshire, Idaho, New Mexico; the District of Columbia; Indian lands; and some areas in certain states subject to construction by a federal operator. The five-year permit authorizes stormwater discharges associated with construction activities that disturb one or more acres, and stormwater discharges associated with smaller sites within a larger common plan of development. Builders and contractors in affected areas seeking to develop land meeting these criteria will need to obtain coverage under the 2017 CGP moving forward and comply with the permit’s effluent limitations, erosion and sediment control standards, pollution prevention plan requirements, and site stabilization measures.

Building on the prior version of the permit, which was issued in 2012 and expired on February 15, 2017, the EPA added several new requirements to the 2017 CGP. The most significant changes include:

  • A prohibition on non-stormwater discharges of external building washdown waters containing hazardous substances (g., paint containing PCBs).
  • Amendments to the technology-based effluent limitations clarifying the requirements to control erosion caused by stormwater discharges, the areas where buffers are required, and soil stabilization requirements.
  • A requirement to include on the posted notice of permit coverage at a construction site information for the public on how to contact EPA for a copy of the applicable stormwater pollution prevention plan(s) (SWPPP) or to report observations of stormwater pollution.
  • A requirement to cover or temporarily stabilize all inactive stockpiles or debris piles that will be unused for 14 days or more.
  • A modified approach to the stabilization deadlines for sites that disturb more than five acres.
  • A requirement to keep waste container lids closed or covered when not in use.
  • Additional control measures for sites discharging to PCB impaired waters when demolishing structures with at least 10,000 square feet of floor space and built prior to 1980.

In addition, the 2017 CGP imposes joint and several liability on all operators of a single construction site. This means that where multiple contractors are associated with a construction site and have either divided permit-related functions under a group SWPPP or share stormwater controls (such as a sedimentation basin), the failure of one to fulfill its responsibilities or implement necessary controls may create liability for others. As an example, if one site operator were responsible for installing and maintaining a sedimentation basin that was used by several operators, all of the operators would have the potential for joint and several liability for violations relating to the basin, whether or not they were the cause of the violations and regardless of whether they were operating under a group SWPPP or individual SWPPPs.

This was one of the more controversial aspects of the permit as it moved through the draft stage, and it places a burden on all contractors and developers at a site to consider setting up a compliance management system to monitor site activities in order to catch and fix non-compliance if identified.

Based in part on concerns with the shared liability provisions of the 2017 CGP, the National Association of Home Builders filed a petition to review EPA’s issuance of the permit in the U.S. Court of Appeals for the D.C. Circuit on February 6, 2017. The government has not yet filed a response to the petition, and it is not clear at this stage if or how the litigation will impact the terms of the permit. In the meantime, developers and contractors who are subject to the permit should familiarize themselves with the new requirements of the 2017 CGP, and, for large construction projects involving multiple developers and contractors, be aware of the potential ramifications of dividing permit functions and sharing controls among operators.