The Clean Water Act places restrictions on the discharge of pollutants to the navigable waters of the United States. Section 402(a) of the Clean Water Act, 33 U.S.C. § 1251 et seq., authorizes the United States’ Environmental Protection Agency (EPA) to issue National Pollutant Discharge Elimination System (NPDES) permits for discharges from various point sources such as industrial facilities or wastewater treatment plants. In 1987, the Clean Water Act was amended to require EPA to implement a program to address stormwater discharges. EPA promulgated regulations that require the permitting of stormwater discharges associated with industrial activities, including among other things, construction activities. Over the years, EPA’s regulations have evolved, and now require an authorization for even small construction projects. The vast majority of stormwater discharges are permitted through one of the general permits that EPA or the various authorized tribes or states issue.

EPA is now in the process of updating its NPDES General Permit for Discharges from Construction Activities (GCP). The updated requirements are expected to go into effect in February of 2017. The updated GCP is expected to provide coverage for stormwater discharges from construction activities or construction support activities, defined in Appendix A to the GCP, disturbing one or more acres of land, or less than one acre of land that is part of a larger common plan of development that will ultimately disturb more than one acre of land, in areas where EPA is the NPDES permitting authority.

The proposed updates to the GCP are intended to simplify and clarify the current permit language. In addition, the proposed updates will (1) require that non-stormwater discharges from external building washdowns not contain hazardous substances such as polychlorinated biphenyls (PCBs), (2) make revisions to the technology based effluent limits in the current permit, (3) require the posting of a public notice related to permit coverage, including EPA contact information to allow reporting of pollution in stormwater discharges, in close proximity to the construction site, (4) require cover or other appropriate temporary stabilization for all stock or debris piles that will be unused for 14 or more days (currently, temporary stabilization is only required “where practicable”), (5) require waste containers to be closed or covered when not in use to minimize pollutant discharges, and (6) impose documentation and control requirements on the demolition of structures exceeding 10,000 square feet of floor space, which were built before January 1, 1980, to limit the exposure of PCB-containing building materials to precipitation and stormwater.

Owners of projects, including utility companies engaged in service line replacement or main construction, contractors, and subcontractors should familiarize themselves with the proposed revisions to the GCP to determine its applicability to their projects and to determine who will need to obtain coverage under the revised GCP. For projects started before implementation of the revised GCP, the site operator will need to submit a new Notice of Intent to the EPA no later than 90 days after the revisions to the permit take effect.

EPA’s factsheet discussing the proposed changes to the GCP can be found here, while the proposed revised GCP can be reviewed at EPA’s website.

By Stanley B. Lutz of Lewis Roca Rothgerber Christie