Stormwater Runoff from Construction Activities Subject to New EPA 2017 General Permit
Spencer Fane LLP
Construction companies, general contractors, developers, and property owners involved in land clearance and disturbance activities will want to take note of the new Stormwater Construction General Permit (“Construction General Permit”) issued by the United States Environmental Protection Agency (“EPA”) and effective on February 16, 2017. See 82 FR 6534 (January 19, 2017). As with earlier Construction General Permits, the 2017 permit applies to land clearance and disturbance activities greater that one acre and requires site operators to comply with best management practices (“BMPs”), effluent limits, and other permit requirements, including developing a Stormwater Pollution Prevention Plan (“SWPPP”).
Currently, a Construction General Permit is only required for construction projects in locations where EPA administers the National Pollutant Discharge Elimination System (“NPDES”), these locations include Idaho, Massachusetts, New Hampshire, New Mexico, the District of Columbia, limited areas of Oklahoma and Texas, federal lands, and United States territories. The Construction General Permit, however, serves as a model for state environmental agencies looking to update their own stormwater general permits, so it is likely that many of the changes contained in EPA’s 2017 Construction General Permit will find their way into state permits in the near future. For this reason, it is important for construction companies, developers, and site operators in all states to stay abreast of changes to EPA’s Construction General Permit.
Notable changes to the 2017 Construction General Permit include:
• Creation of joint and several liability for site operators who divide responsibility for compliance with the Construction General Permit among themselves, or who operate under multiple or a group SWPPPs.
• Required electronic reporting of NOIs (Notice of Intents) and NOTs (Notice of Termination) through EPA’s NPDES eReporting Tool (NeT).
• Numerous new site operation and management obligations, including requiring site operators to:
o Post notice near their construction site informing the public of the site’s permit coverage, how to contact the EPA to obtain a copy of the site SWPPP, and how to report a visible discharge to EPA;
o Cover all inactive material stockpiles and debris piles if the piles will remain unused for 14 or more days;
o Close waste container lids when not in use or, if used regularly throughout the day, at the end of the business day; and
o Phase site disturbances to prevent erosion and destabilization of the site soils, including limiting any land disturbance to 5 acres at a time or, if not limited to 5 acres, to a window of seven (7) days or fewer.