Builders face ever more stringent and complicated regulation of storm water discharges from construction sites under a new draft General Permit recently issued by the staff of the State Water Resources Control Board for public comment. This is the third draft General Permit the State Board staff has issued in as many years. With more onerous and complex regulation naturally comes increased risk of falling short one way or another and potentially incurring hefty penalties for noncompliance. In recent years, the State Board and nine Regional Water Quality Control Boards have stepped up their enforcement of storm water regulations; citizen suits have become more frequent as well. Builders confronting allegations of noncompliance have paid tens or hundreds of thousands and occasionally even millions of dollars in penalties.

The federal Clean Water Act, which regulates discharges of pollutants into waters of the United States, was amended in 1987 to establish a program to regulate municipal and industrial discharges of storm water. In 1990, the Environmental Protection Agency issued implementing regulations; Phase I of the EPA’s program called for regulation of the largest municipalities and industries, as well as construction sites five acres or larger; Phase II, implemented in 1999, encompassed smaller municipalities and industries, and construction sites one acre or larger.

In California, the federal program is administered by the State Board. Its current General Construction Storm Water Permit, adopted in 1999, ostensibly expired after five years, but remains in effect until the Board adopts a new General Permit. Under this permit, builders on construction sites of one acre or more generally must file a notice of intent (“NOI”) to be covered by the permit and pay the appropriate fee, develop and implement a Storm Water Pollution Prevention Plan (“SWPPP”) specifying best management practices (“BMPs”) to reduce or eliminate pollutants in storm water discharges and authorized nonstorm water discharges from the construction site, and inspect and maintain the BMPs.

Much would change under the draft General Permit. Generally, the new permit would depart from the site-specific SWPPP BMP-based approach of the current permit and for the first time employ a strategy based on prescribed “numeric action levels” (“NALs”) and “numeric effluent levels” (“NELs”) and detailed BMPs specified in the permit itself. Significant differences from the current permit include:

  • Risk-Based Permitting Approach. The new permit establishes three possible levels of risk (low, medium, and high) for any particular site and regulates each level somewhat differently. A site’s risk level is calculated by assessing both the “project sediment risk,” i.e., the risk of sedimentation given the site’s location and characteristics and the “receiving water risk,” i.e., the risk sediment poses to a particular water given its characteristics.
  • Technology-Based Numeric Action Levels. The new permit establishes NALs for pH and turbidity. NALs are numeric benchmarks that, if exceeded, trigger the need for further action. Exceeding a NAL does not itself violate the permit, but failure to take corrective action might.
  • Technology-Based Numeric Effluent Levels. The new permit establishes daily average NELs for pH during any construction phase where there is a high risk of pH discharge (mainly associated with pouring concrete) and daily average NELs for turbidity for all discharges from Risk Level 3 sites. The Clean Water Act generally calls for control of toxic and non-conventional pollutant discharges using the “best available technology economically achievable” (“BAT”) and control of conventional pollutant discharges using the “best conventional technology” (“BCT”). The new permit contains narrative effluent limitations as well as the foregoing NELs. According to the State Board, the narrative effluent limitations constitute compliance with the Clean Water Act and the NELs represent a point to measure compliance with the minimum required technology.
  • Minimum Requirements Specified. The permit specifies detailed BMPs that must at a minimum be implemented.
  • Effluent Monitoring and Reporting. The permit requires effluent monitoring and reporting for pH and turbidity in storm water discharges to determine whether NALs have been exceeded and whether the project complies with NELs. Any exceedence of NALs must be electronically reported to the State Board within 10 days after the end of the storm, and any exceedence of NELs within 5 days. An annual report of all sampling and analysis must be submitted as well.
  • Rain Event Action Plan. The permit requires a SWPPP and, for some sites, a written Rain Event Action Plan (“REAP”) as well. A REAP must be developed 48 hours before any likely “precipitation event” and detail how a builder will implement erosion and sediment control measures for that event.
  • Post-Construction Storm Water Performance Standards. The permit specifies runoff reduction requirements (aimed to match pre-construction runoff) for all sites outside areas covered by a municipal storm water permit.
  • Certification and Training of Key Personnel. The permit prescribes training and certification for certain people, such as SWPPP preparers and inspectors.

To obtain coverage by the permit, a builder must electronically file a NOI and all permit related documents, including a SWPPP, and pay the pertinent fee. All such documents are immediately available to the public and the Regional Water Quality Control Boards via the internet.

In response to earlier drafts of the General Permit, builders and others have expressed concerns about the legality and practicality of some of these proposed changes, particularly the NALs and NELs. Storm water discharges, they have observed, are unlike other discharges of pollutants in that industry generally controls the materials and processes involved, but builders do not control the weather. Such concerns so far, though, have not deflected the State Board staff from pursuing the new approach reflected in the revised draft General Permit.

The State Board has invited comments on the draft General Permit until June 17, 2009, and has scheduled a public hearing in Sacramento, California, on June 3, 2009.

 
David Ivester
Briscoe Ivester & Bazel LLP
155 Sansome Street, 7th Floor
San Francisco, CA 94104
Telephone: (415) 402-2700
Fax: (415) 398-5630

Disclaimer: In our Newsletters and Bulletins, Briscoe Ivester & Bazel LLP intends to present general information to the public and does not intend to provide legal advice pertaining to a particular situation.

 

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