General Permit for Storm Water Discharges
At a hearing on September 2, 2009, the California State Water Resources Control Board adopted the NPDES General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities (the General Permit). The new provisions, effective July 1, 2010, impose strict requirements that will have a significant impact on California property owners, developers, builders, and contractors. All landowners engaged in construction that either results in the disturbance of at least one acre of land or is part of a larger common development plan must comply with these new requirements. Existing landowners engaged in ongoing construction through July 1, 2010 must also comply with the General Permit. Failure to abide by these regulations is a violation of the Clean Water Act and the California Water Code and could lead to significant civil or criminal enforcement penalties. Moreover, as the General Permit is issued under the federal Clean Water Act, it also subjects the permit holder to suits by citizen groups for noncompliance with the Permit. This Advisory provides a brief overview of the new permitting and compliance requirements under California law.
The Troutman Sanders Natural Resources and Environmental Practice Group has extensive experience in assisting clients with storm water compliance issues and defense of permit enforcement actions. Questions should be directed to Harvey Rosenzweig, Mike Whitton, or Dan Gunning.
Obtaining a General Permit
Prior to the commencement of a construction activity, a landowner must electronically file the following Permit Registration Documents (PRDs) with the State Water Board:
- 1. Notice of Intent (NOI)
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2. Risk Assessment
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3. Site Map
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4. Storm Water Pollution Prevention Plan (SWPPP)
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5. Annual Fee
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6. Signed Certification Statement
These documents require significant preparation before filing. Among other requirements, the General Permit now requires landowners to implement certain Best Management Practices (BMPs) proscribed by the Water Control Board. The Annual Fee is $238 plus $24 per acre (to a maximum of $2,618), plus any applicable surcharge.
Discharge Prohibitions
The General Permit prohibits the discharge of any pollutants other than what is authorized by law. Landowners must implement specific BMPs and meet specified Numeric Action Levels for storm water and non-storm water discharges. Where such levels are not met, the landowner will be forced to take corrective action, or face significant penalties.
Narrative Effluent Limitations
Landowners are required to minimize, mitigate, or prevent the introduction of pollutants through the use of specified controls, structures, and BMPs.
Numeric Effluent Limitations (NELs)
For Risk Level 3 dischargers, storm water and non-storm water discharges must be within 6.0 and 9.0 pH Units. In addition, the turbidity limit for Risk Level 3 discharges is 500 NTU.
Numeric Action Levels (NALs)
Landowners are required to take corrective action if any discharge is outside the range of maximum NAL pH and turbidity values. For Risk Level 2 and 3 dischargers, the range is between 6.5 and 8.5 pH Units. In addition,
the turbidity limit for Risk Level 2 and 3 dischargers is 250 NTU.
Training Qualification and Certification Requirements
The General Permit requires landowners to appoint two qualified individuals for the following positions:
- 1. Qualified SWPPP Developer (responsible for writing the SWPPP)
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2. Qualified SWPPP Practitioner (responsible for implementing BMPs)
To qualify as a SWPPP developer, the individual must be:
- A California registered professional civil engineer
- A California registered geologist or engineering geologist
- A California registered landscape architect
- A professional hydrologist registered with the American Institute of Hydrology
- A certified professional in erosion and sediment control registered through Enviro Cert International; or
- A certified professional in erosion and sediment control registered through the National Institute for Certification in Engineering Technologies
To qualify as a SWPPP Practitioner, the individual must either meet the above requirements or have one of the following certifications:
- A certified erosion, sediment and storm water inspector registered through Enviro Cert International, Inc.; or
- A certified inspector of sediment and erosion control registered through Certified Inspector of Sediment and Erosion Control, Inc.
In addition, both individuals must attend a State Water Board sponsored or approved training course.
Monitoring & Reporting
All landowners are required to submit an annual report certifying that the project remains in compliance with the General Permit. In addition, the annual report must detail the following:
- 1. Monitoring information
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- a. A summary and evaluation of all sampling and analysis results, including lab reports
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b. The analytical method(s), method reporting unit(s), and method detection limit(s) of each analytical parameter
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c. A summary of all corrective actions taken during the compliance year
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d. Identification of any compliance activities or corrective actions not taken
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e. A summary of all violations of the General Permit
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f. The names of individuals who performed the facility inspections, sampling, visual observation, and/or measurements
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g. The date, place, and time of facility inspections, sampling, visual observation and/or measurements; and
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h. The visual observation and sample collection exception records and reports
2. Training documentation
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- a. Documentation of all training for individuals responsible for all activities associated with compliance
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b. Documentation of all training for individuals responsible for BMP installation, inspection, maintenance, and repair; and
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c. Documentation of all training for individuals responsible for overseeing, revising, and amending the SWPPP.
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A copy of each Annual Report must be maintained by the landowner for a minimum of three years.
Post-Project Compliance
Upon completion of the project or a change in ownership, the registrant must electronically file a Notice of Termination, a final site map, and photos with the State Water Board. Filing a Notice of Termination certifies that all General Permit requirements have been met.
In addition, the General Permit now requires landowners to create post-construction procedures which will minimize and/or mitigate post-construction storm water run-off. For example, landowners must replicate the pre-project water balance for the smallest storms up to the 85th percentile storm event. In meeting this requirement, landowners must use non-structural controls unless they can demonstrate that such controls are infeasible or that structural controls will produce greater reduction in water quality impacts. For projects that exceed two acres, the landowner must preserve the pre-construction drainage density for all drainage areas within the project area serving a first order stream (a stream with no tributaries). In addition, all landowners must implement BMPs to reduce pollutants in storm water discharges that are reasonably foreseeable after all construction phases have been completed at the site.