Daunting Complexity and Cost Confront California Builders as State Readies New Rules for Storm Water Discharges from Construction Sites

The State Water Resources Control Board proposes to adopt a new General Permit for storm water discharges from construction sites that, if adopted, would impose unprecedented requirements on builders in California—requirements, they say, calling for heroic effort and enormous expense, offering little real benefit, and rendering widespread “violations” all but inevitable. This is the third draft General Permit the State Board has considered in as many years. With each revision, the primary concerns and objections of builders have largely been brushed aside and the proposed requirements have grown more onerous and complex. The State Board is poised to adopt the new permit on September 2, 2009.

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. Under the Board’s current General Construction Storm Water Permit, builders with 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.

The California Building Industry Association has voiced major concerns, including:

In developing statewide “one size fits all” NALs and NELs, the State Board failed to consider the natural variability of pH and turbidity in various waterways under various conditions, with the result that natural levels of pH and turbidity will often exceed the levels chosen by the Board.
In developing the NELs, the State Board failed to take account of economic considerations, including the need for housing, as required by state law. An economic analysis of one county (Ventura) estimated the cost of compliance between now and 2030 to exceed $200 million. Seeking to side-step state law requirements, the State Board asserts its permit governs only discharges to “waters of the United States” and thus it need comply only with federal law. This artifice, though, (apart from questions of its legality) leaves builders and Regional Boards to determine, case by case, whether the new General Permit applies to a particular site (or perhaps even portions of a site) and, if not, to develop an individual permit under state law for each such site—after, of course, taking into account economic considerations.
Proposed monitoring requirements are infeasible and unlikely to produce useful or even relevant data.
By imposing post-construction requirements in its permit governing discharges from construction activities, the State Board has exceeded its authority, overlooked other appropriate regulatory tools available to it, and disrupted the land use planning and environmental review process of local governments.
The State Board gives unfettered discretion to a Regional Board to terminate or modify a project’s coverage under the General Permit, perhaps causing delay and even redesign of the project, long after construction is underway.

The State Board will consider adopting the draft General Permit at its meeting at 9:00 a.m. on September 2, 2009, at the Cal/EPA Headquarters Building, 1001 I Street, Sacramento, California.

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