On February 16, 2012, the Environmental Protection Agency ("EPA") issued the final National Pollutant Discharge Elimination System ("NPDES") General Permit for Stormwater Discharges from Construction Activities (the "2012 Permit"). Coverage under the permit is available for eligible construction activities in Massachusetts, New Hampshire, New Mexico and the District of Columbia, as well as Idaho (post-CWA Section 401 certification) and areas of Colorado, Delaware, Vermont, Washington, Oklahoma and Texas. Other states in the Northeast and Mid-Atlantic, including Connecticut, parts of Delaware, Maine, Maryland, parts of New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island and parts of Vermont, have NPDES Permitting Authority and are not covered by the 2012 Permit.

The 2012 Permit includes several significant modifications to the 2008 Permit that expired on February 15, 2012. First, it implements Effluent Limitations Guidelines and New Source Performance Standards for Construction and Development for point sources (the "C&D Rule"). It also includes requirements based on water quality standards for stormwater discharged from construction sites. The 2012 Permit does not include numeric turbidity limits, as the EPA stayed that portion of the C&D Rule indefinitely pending data collection related to recalculating of the numeric turbidity limit.

The new effluent limitations under the C&D Rule focus on erosion and sediment control in order to minimize the mobilization of pollutants naturally or anthropogenically occurring in soil and include soil stabilization requirements for clearing, grading and excavating activities. They also include dewatering requirements for draining trenches and excavations and mandate pollution control measures to minimize wash water discharges and precipitation and stormwater contact with building materials, fertilizers, pesticides, herbicides, detergents, sanitary waste and other construction site materials. Additional water quality-based effluent limitations apply where discharges are to impaired waters and waters protected by state or tribal anti-degradation requirements.

Other areas the EPA identified as key areas of change from the 2008 Permit are as follows:

  • Structure/Appearance of Permit
  • Eligibility for Emergency-Related Construction
  • Eligibility for Use of Treatment Chemicals
  • Endangered Species and Historic Properties Requirements
  • Authorization Process/NOIs
  • Site Inspections
  • Corrective Action
  • Stormwater Pollution Prevention Plan (SWPPP)
  • Notice of Termination

A copy of the final 2012 Permit is available here. For more information about the 2012 Permit, or about corresponding state permits, please contact any of the Day Pitney LLP attorneys listed on the sidebar.