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EPA Issues New Construction General Permit

By: Maggie Macdonald

On February 16, 2012, the Environmental Protection Agency (“EPA”) finalized a new general permit for construction sites’ stormwater discharges, imposing significant new requirements on sites with at least one acre of soil disturbance.  EPA’s release of the 2012 Construction General Permit (“CGP 2012”) triggers a four-month window during which the New York State Department of Environmental Conservation (“DEC”) must revise its own CGP, incorporating or exceeding EPA’s standards for New York construction projects.

Several of EPA’s most significant changes in CGP 2012 are highlighted below: 

Effluent Limitation Guidelines
The 2012 CGP includes narrative requirements implementing Effluent Limitations Guidelines (“ELG”) for construction sites, without numeric limits.  While EPA published numeric limits for turbidity in 2009, that rule was withdrawn in response to petitions challenging its methodology, and EPA is currently collecting additional data before proposing a revised turbidity limit.  In the interim, EPA’s narrative requirements include:

  • Erosion and Sediment Controls – Permittees must provide and maintain natural buffers around all surface waters directing stormwater to vegetated areas, unless infeasible.
  • Soil Stabilization – Soil stabilization must be initiated immediately where earth-disturbing has ceased and will not resume for a period exceeding 14 days.
  • Dewatering Requirements – Discharges from dewatering are prohibited under the 2012 CGP, unless managed by appropriate controls.

Water Quality-Based Effluent Limits
For construction sites discharging into waters impaired by common pollutants associated with construction activities (e.g., sediment and nutrients), and for sites discharging to high quality waters, EPA imposed more stringent requirements in the 2012 CGP.  These changes include a more rapid stabilization timeline and more frequent site inspection.  Construction operators must therefore determine the quality of receiving water and adapt their Stormwater Pollution Prevention Plans accordingly.

Endangered Species and Historic Preservation Analysis
Under the 2012 CGP, operators are required to assess impacts on endangered species and historic resources, something not previously required under the EPA or New York CGPs.  In light of these changes, EPA extended the waiting time between submission of a Notice of Intent to discharge under the CGP and the time coverage begins under the permit from 7 to 14 days.  Presumably, New York will need to do the same by extending its established 5-day authorization.

To be eligible for coverage under the 2012 CGP, construction operators must also  make a determination that the project falls under one of six eligibility criteria related to the protection of endangered or threatened species and their critical habitat, described in greater detail in Appendix D of the new general permit.  Prior to submitting an NOI, operators must also determine whether stormwater controls have the potential to affect historic properties and whether additional consultation is required, as set forth in  Appendix E of the 2012 CGP.

In addition to the above requirements, the 2012 CGP requires more frequent site inspections based on the size, duration, and frequency of storm events; imposes new triggering conditions, deadlines and documentation requirements for corrective action measures; and establishes new procedures governing the termination of coverage under the 2012 CGP.

For more information on the 2012 CGP, or stormwater permitting generally, contact Michael Bogin.

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