EPA Finalizes General Permit to Regulate Stormwater Discharges at Construction Sites

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By Amena H. Saiyid  

The Environmental Protection Agency Feb. 16 released a general permit for stormwater discharges from construction sites that requires permit holders to develop plans to prevent runoff and erosion from the sites.

The National Pollutant Discharge Elimination System permit issued under the Clean Water Act's stormwater program takes effect immediately and replaces the general permit issued in 2008 for construction-related runoff. The 2008 permit expired Feb. 15.

The 2012 permit will cover stormwater discharges from construction activities, such as clearing, grading, excavating, and stockpiling, that disturb one or more acres or smaller sites that are part of a larger common plan of development or sale.

Permit holders will have to comply with 2009 effluent guidelines and develop stormwater prevention plans that outline practices to install erosion and sediment controls, among other items.

The permit does not include limits on turbidity because EPA is seeking more data to correct an error that resulted in a faulty turbidity limit contained in the effluent guidelines (17 DEN A-4, 1/27/12).

The permit is in effect in Idaho, Massachusetts, New Hampshire, New Mexico, and District of Columbia. In addition, it covers U.S. territories and tribal lands and applies to certain areas within Colorado, Delaware, Vermont, and Washington state that are subject to federal contracts. 

EPA decided to regulate stormwater discharges from construction sites because they contain pollutants, debris, chemicals, and sediment picked up from construction sites that can adversely affect water quality if untreated.

Oil, Gas Construction Sites in Texas, Oklahoma

The permit also applies to construction sites associated with oil and gas exploration, drilling operations, and pipelines activities in Oklahoma. In addition, it will apply to construction sites where point source discharges are associated with agriculture and silviculture.

In Texas, the permit applies to construction sites involving oil, gas, and geothermal exploration, development, and production as well as transportation of crude oil.

States that run their own NPDES permitting programs may adopt the EPA permit.

Permit holders for new construction projects, or projects that begin on or after Feb. 16, 2012, have 14 days to submit notices of intent to seek coverage; EPA said notices of intent now can be filed electronically. For existing construction sites, permit holders have until May 16 to submit notices.

New operators, or an operator that through transfer of ownership or operation replaces the operator of an already permitted construction project, must file the notice 14 days prior to the transfer.

2009 Effluent Limitation Guidelines

All permit holders will have to comply with discharge limits that are based upon the 2009 effluent limitations guidelines that require contractors, builders, and developers to use best management practices to stabilize soils and control erosion and sediment, among other control and monitoring provisions, from construction sites (228 DEN A-3, 12/1/09).

The 2008 permit did not contain effluent guidelines for construction sites. It also did not require permit holders to develop stormwater prevention plans prior to applying for notice of intent to seek permit coverage.

EPA reiterated Feb. 16 that it will exclude from the 2012 NPDES permit the faulty numerical turbidity limit of 280 nephelometric units adopted in 2009. The agency sought and was granted permission by the U.S. Court of Appeals for the Seventh Circuit in August 2010 to revise the turbidity limit, which was targeted in a lawsuit filed by a home builders' group (Wisconsin Builders Ass'n v. EPA, 7th Cir., No. 09-4113, 8/24/10; 164 DEN A-9, 8/26/10).

Jeffrey Odefey, American Rivers' stormwater programs director, told Bloomberg BNA in a Feb. 16 e-mail that he found “the construction situation to be disappointing.”

“We need strong numeric [turbidity] standards which EPA has failed to provide” and instead has “been dragging its feet,” Odefey said.

Jeffrey Longsworth, an attorney with Barnes & Thornburg who represents the Federal Water Quality Coalition, told Bloomberg BNA that “there should be no numeric limit for turbidity without appropriate foundation and justification.”

The coalition represents industrial companies, municipalities, agricultural parties and trade associations that are directly affected by Clean Water Act regulations. Members include Alcoa Inc., Edison Electric Institute, National Association of Home Builders, and Weyerhaeuser Co.

For More Information

EPA's general construction permit is available at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.