New California General Storm Water Permit: Are You Ready to Comply?
October 1, 2009
Elizabeth Lake - San Francisco
The California State Water Resources Control Board (State Board) voted to adopt major revisions to the statewide General Permit for Discharges of Storm Water Associated with Construction Activities (Construction General Permit) on September 2, 2009. The new permit will take effect July 1, 2010, and applies to projects that disturb one or more acres, or projects that disturb less than one acre but are part of a larger common plan of development that disturbs more than one acre in total (e.g., large linear utility projects).
For the first time, under the new Construction General Permit, construction sites will be required to implement a specific set of “good-housekeeping” standards and to meet numeric pollutant loads. This revision represents a major shift from past regulation of construction-site storm water discharges, which merely required development of a Storm Water Pollution Prevention Plan (SWPPP) to implement general best management practices (BMPs). The revised permit requires that projects implement a SWPPP that contains specific BMPs and establishes numeric effluent limitations to meet water quality and technology-based standards. As explained by the State Board, this transforms the general requirement to prepare a SWPPP into “specific permit requirements, each individually enforceable as a permit term.” It also provides greater clarity so that the public can determine whether permittees are in compliance.
The revisions will fundamentally change the way projects are designed and managed during construction. Specifically, the revisions add more stringent compliance and monitoring measures, as well as new reporting requirements, all of which result in new enforcement hooks. Understanding the new Construction General Permit is key to reigning in costs and limiting enforcement.
Summary of Requirements
In brief, the new permit imposes the following requirements on construction sites:
- Projects must evaluate and determine their “risk level,” as Risk Level 1, 2 or 3 (low, medium or high).
- All sites must implement specific BMPs outlined in the Construction General Permit’s appendices, with more stringent BMPs applicable to higher risk sites.
- All sites must develop a construction site program establishing monitoring and reporting procedures.
- All sites must submit electronic annual reports.
- All sites must comply with narrative effluent limits.
- Risk Level 2 and Risk Level 3 sites must sample storm water runoff and are subject to non-punitive numeric action levels (NALs) for pH and turbidity. Exceeding the NALs is not a violation of permit conditions, but must be reported electronically.
- In addition to NALs, high-risk sites are subject to numeric effluent limitations (NELs) for pH and turbidity, and exceedance of these levels is considered to be a permit violation.
- Some Risk Level 3 sites that are larger than 30 acres or that have exceeded NELs must conduct downstream bioassessment monitoring.
- Beginning in 2013, sites that are not subject to post-construction standards of an active municipal separate storm sewer system (MS4) permit must demonstrate after construction that it has maintained pre-project hydrology conditions.
New Number Crunching Requirements
To establish the applicable BMPs and effluent limitations, project applicants must classify their site as Risk Level 1, 2 or 3, depending on the potential of sediment discharge from the site and the risk that sediment discharges pose to nearby waters that will receive the runoff and sediment. More stringent requirements apply at higher risk sites. All sites must conduct non-storm water visual inspections and submit annual electronic reports, but only Risk Level 2 and 3 sites must conduct sampling and analysis of effluent levels in storm water discharges. Large Risk Level 3 sites are required to monitor receiving waters under certain circumstances. The Regional Boards also may require additional BMPs, monitoring and reporting of permittees of any risk level discharging into impaired water bodies. If Regional Boards disagree with a permit applicant’s self-assessed risk level, the new Construction General Permit gives the Board authority to require reevaluation or to terminate coverage.
The permit establishes numeric effluent limits for high risk sites, based on daily average pH during any construction phase where there is a high risk of pH discharge, and daily average turbidity. These limits are based on levels that the State Board found could be met using passive systems such as runoff and sediment control as well as active treatment systems in some situations. Violations of the effluent limit can lead to immediate enforcement actions. In response to comments on drafts, the permit provides that numeric effluent limits do not have to be met during a storm that is equal to or larger than a five-year, 24-hour event.
Additionally, medium and high risk sites must monitor for pH and turbidity numeric action levels to characterize pollutant runoff from the entire area disturbed by the project. A project will not be considered in violation of the permit if it exceeds these levels; however, elevated levels must be reported electronically and can trigger specific corrective action.
New Specificity in BMPs
As described above, construction sites had flexibility under the old Construction General Permit to identify and implement a variety of BMPs. Under the new Construction General Permit, specific BMPs are required based on the project’s risk level. Although some of the permit-mandated BMPs leave projects with flexibility (a Risk Level 2 site must “Implement procedures that effectively address hazardous and nonhazardous spills”), others are quite directive. For example, Risk Level 3 sites are required to manage construction materials by conducting an inventory of the products used and/or expected to be used and the end products that are produced and/or expected to be produced; covering and berming loose stockpiled construction materials that are not actively being used, and storing chemicals in watertight containers or in a storage shed (completely enclosed), with appropriate secondary containment to prevent any spillage or leakage. Additionally, any report of an exceeded NAL or NEL must also include a description of the BMPs in place at the time of the violation.
The new permit also requires that within 48 hours prior to any likely precipitation event, Risk Level 2 and 3 sites must develop an event-specific Rain Event Action Plan (REAP) to protect all exposed portions of the site. This requirement applies even to sites where construction is inactive during the rainy season. The former permit required effective erosion and sediment controls to be available and in use during the rainy and dry seasons, but the REAP requirement is new.
New Requirements for Post-Project Conditions
The permit also includes new provisions regarding post-construction conditions. This provision will be effective in 2013. It applies to all construction projects unless they are in an area subject to post-construction standards in an active MS4 permit with an approved Storm Water Management Plan. It requires dischargers to demonstrate after completion of construction that pre-project hydrology conditions have been maintained. Dischargers also must maintain pre-development drainage densities and times of concentration in order to protect stream channels and aquatic habitats. The prior Construction General Permit did not include these post-project performance standards.
New Reporting Requirements and Enforcement Hooks: Increased Opportunity for Agency Action and Citizen Enforcement
Finally, the General Construction Permit requires electronic reporting. All permit compliance documents, including permit registration documents, SWPPPs, notices of termination, annual reports and reports of elevated pollutant levels, will be electronically submitted and immediately available to the public. Violation of the permit or any of its conditions may subject the violator to penalties up to $37,500 per calendar day of the violation.
By incorporating specific BMPs into the permit and setting pollutant limits, the State Board has provided many more enforceable permit conditions. Recently, the Regional Boards statewide have been aggressively enforcing construction violations; these revisions are likely to lead to even more enforcement actions. In addition, electronic self-reporting of effluent violations will enable suits by private citizens, as permitted by Section 505 of the Clean Water Act. Successful citizen suits can lead to civil penalties of $25,000 per day plus attorneys’ fees awards.
Conclusion
The new Construction General Permit will change how construction programs are designed and implemented in California. Based on these sweeping revisions, the new permit also requires that key personnel responsible for developing, revising, overseeing and implementing each project’s SWPPP must attend an approved training course.
The requirements are effective July 1, 2010. Existing construction projects that are governed by the prior regime must comply with the new permit conditions that apply to low risk sites – thus no new numeric criteria apply. However, the Regional Board may object to the classification and require projects to re-assess their risk levels under the new Construction General Permit.
The costs of compliance are likely to increase under the new Construction General Permit. For example, an analysis of the 2008 draft of the Construction General Permit prepared for the California Building Industry Association and submitted to the SWRCB estimated that the cost to a five-acre development project at a high-risk site would be more than $38,000 per acre, or more than $150,000 total. As costs go up, scrutiny from the Regional Boards and the public is likely to increase as well. We look forward to assisting clients through the process and developing cost-effective, compliant storm water programs.
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