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EAP Issues With New Construction General Permit

The Clean Water Act’s federal permitting program that controls point-source discharges to waters of the United States is called the National Pollutant Discharge Elimination System (“NPDES”). The NPDES program regulates stormwater discharges from construction activities that disturb one or more acres, or smaller sites that are part of a larger development that will ultimately disturb one or more acres. Contractors must obtain an NPDES permit prior to commencing construction activities.

The Environmental Protection Agency (“EPA”) currently maintains NPDES permitting authority in Massachusetts, New Hampshire, Idaho, and New Mexico as well as other federal facilities and U.S. territories. The EPA administers its authority through a Construction General Permit (“CGP”). The EPA’s 2008 CGP expired on February 15, 2012, and the final 2012 CGP became effective upon its issuance on February 16, 2012 for a five (5) year period.

The following is a brief summary of some of the major changes in the 2012 CGP. The 2012 CGP now requires all submissions through the EPA’s electronic NOI system (which is available through /cgpenoi.cfm) and is known as “eNOI” unless a paper submission is approved by the EPA.

The 2012 CGP revises the definition of “Operator” and includes explicit language that subcontractors are not typically Operators under the permit. The new CGP will also allow construction projects that are in response to a public emergency (defined in the permit to include natural disaster or widespread disruption to essential public services) to commence construction activities as long as a Notice of Intent (“NOI”) and stormwater pollution prevention plan (“SWPPP”) are filed within 30 days of such commencement. The EPA is updating the SWPPP Template, SWPPP guide, and updated inspection report template to include the 2012 CGP requirements.

The 2012 CGP incorporates a majority of the EPA’s technology-based Effluent Limitation Guidelines and New Source Performance standards (“Effluent Limitations Guidelines”) that were issued for the construction and development industry on December 1, 2009. While the new permit increases contractors’ reporting requirements and potentially implementation costs, the more stringent numeric turbidity limits for larger construction sites in the Effluent Limitations Guidelines were stayed by the EPA on January 4, 2011 and are not included in the 2012 CGP. The Effluent Limitations Guidelines that were incorporated refer to “Erosion and Sediment Controls; Soil Stabilization, Dewatering, Pollution¬†Prevention Measures, Prohibited Discharges and Surface Outlets.” The final permit implements the Effluent Limitations Guidelines by providing detailed standards for erosion and sediment control requirements. For instance, natural buffers or equivalent sediment controls must be maintained around surface waters within 50 feet of the earth disturbance, unless infeasible.

Any new project, existing project, or new operator of an existing project must file a NOI within the deadlines set forth in the new permit. The foregoing is a general discussion of some of the overarching changes in the 2012 CGP. To ensure compliance with the 2012 CGP, a thorough review of the permit’s new requirements should be undertaken prior to submitting a NOI.