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February 23‚ 2012
New Requirements on Construction Site Stormwater
By Ralph A. Child and Marilyn Newman
EPA has issued a five-year renewal of its General Permit for
construction site stormwater, superseding the
2008 version. Both new projects and projects still proceeding under the
2008 permit should pay prompt and close attention to the 2012 permit.
The 2012 permit
took effect upon issuance on February 16, 2012 and applies wherever EPA
retains direct authority for the National Pollutant Discharge Elimination
System. Thus all of Massachusetts and New Hampshire are covered by the 2012
permit.
The structure and requirements of the 2012 permit largely
follow the 2008 version. Coverage still is obtained by filing a Notice of
Intent (NOI) with EPA; projects still must develop and implement Stormwater Pollution Prevention Plans (SWPPPs); and
implementation of best management practices remains as the key standard.
There are many important new requirements, though, as well as
the deferral of a burdensome requirement for meeting numeric turbidity
standards.
Deadlines for
New and Still Proceeding Projects
Generally, authorization under the 2012 permit is required
for any construction activity affecting more than one acre within states
where the permit applies. This is the same as the 2008 permit.
As with the 2008 permit, coverage is obtained by filing a
notice of intent with the EPA, which can be done using EPA’s eNOI electronic filing system. The 2012 permit makes
using eNOI the default system; paper NOIs now can
be filed only with special permission.
For new projects that commence activities after February 16,
coverage under the 2012 permit is acquired 14 days after receiving EPA’s
acknowledgement of the filing of an NOI, unless EPA notifies a filer of a
delay or denial. EPA expanded that 14-day notice period from the 7-day
period under the 2008 permit in order to provide itself more time to
evaluate NOIs regarding Endangered Species Act and other issues.
For projects that are still proceeding under the 2008 permit
and now must comply with the 2012 permit, an NOI must be filed no later
than May 16, 2012. As long as the deadline is met, a project remains
authorized under the 2008 permit until the new authorization takes effect.
Coverage for
Activities Associated with Public Emergencies
A useful avenue is added by the 2012 permit. If there is a
public emergency as defined in the permit — e.g., a natural disaster or
widespread disruption in essential services — construction activities may
commence immediately. The activities will become authorized as long as a
SWPPP is prepared and an NOI is filed within 30 days of the commencement of
earth-disturbing activities.
More Detailed
Standards – Buffer Zones
The 2012 permit contains many, much more detailed standards
than the 2008 permit. For example, the new permit includes specific
quantitative requirements for the removal of sediment buildup against
sediment barriers. Most significantly, the new permit includes requirements
for maintaining a 50-foot “undisturbed natural buffer zone” or equivalent
controls if surface water is located within 50 feet of construction
activities.
Many of the increased requirements stem from EPA’s court-ordered
issuance in 2009 of effluent limitations guidelines (ELGs) and new source
performance standards (NSPS) for the construction industry that EPA needed
to incorporate when it issued the 2012 permit.
Tighter
Standards for Impaired Waters and High Quality Waters
The 2012 permit further tightens the standards — such as
deadlines to complete post-construction stabilization — if a construction
activity involves discharges to a water body that a state has designated as
high quality or impaired for sediment-related parameters or for nutrients.
In Massachusetts, for example, these higher requirements apply to
discharges of construction stormwater to the many
streams that are classified as tributaries to public water supplies, and
many larger water bodies are so classified as
impaired.
Screening for
Endangered Species and Historic Sites
The 2012 permit includes revised methods for project sponsors
to conduct pre-NOI screening to determine whether a construction activity
will impact endangered species or historic sites. In practice, this
screening often involves retention of experts and may lead to consultation
with state and tribal historic preservation offices, and means some
projects must undertake substantial planning well ahead of filing an NOI.
Increased
Inspection Frequency
The 2012 permit increases the frequency of inspections that
project operators must perform and record on a regular basis and after
precipitation events.
Deferral of
Numeric Standards for Turbidity
When EPA promulgated the ELGs and NSPS for the construction
industry in 2009, it included a numeric standard for turbidity in stormwater discharges. Subsequently EPA withdrew that
standard due to an acknowledged error in the calculation method. Perhaps
not incidentally, the standard also was heavily criticized by the
construction industry and utilities. In issuing the 2012 permit, EPA noted
that history and elected to defer a numeric standard.
Conclusion
The 2012 permit includes many new requirements not listed
here. Persons responsible for new or still proceeding projects, their
engineers and attorneys should carefully review and update their plans or
their existing SWPPPs while preparing the NOIs required to
obtain coverage.
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