California State Water Resources Control Board Issues Updated Draft Permit for Public Comment on Stormwater Requirements for Construction Projects: Are Sweeping Changes Ahead?

27 April 2009 Publication

Legal News Alert: Environmental

On April 23, 2009, the California State Water Resources Control Board (SWRCB) issued an updated Draft National Pollution Discharge Elimination System (NPDES) Construction General Permit (Draft General Permit) for public review and comment. SWRCB will hold a public hearing on the Draft General Permit in Sacramento on June 3, 2009. If approved in its draft form, the Draft General Permit would result in significant changes to stormwater requirements — most importantly, the imposition of numeric effluent limits — for construction projects in California. These include, but are not limited to the following changes discussed below.

  1. The activities proposed to be covered under this version of the Draft General Permit have been greatly expanded to include agricultural land disturbance not related to the actual tilling of soil, linear projects, oil and gas facilities, and activities that had previously been regulated under Section 404 of the Clean Water Act (CWA).
  2. The Draft General Permit presents a risk-based approach to approximate a project's actual risk of affecting water quality during construction. The Draft General Permit contains an approach for estimating both sediment and receiving water risk separately. The Draft General Permit provides for an overall risk determination framework that reflects the applicable levels of implementation and monitoring for three risk levels: soil loss of less than 15 tons per acre is considered low risk (Risk Level 1), soil loss between 15 and 75 tons per acre is considered medium risk (Risk Level 2), and soil loss of more than 75 tons per acre is considered high risk (Risk Level 3). The risk levels have been altered from the previous draft by eliminating the possibility of a Risk Level 4 and expanding the constraints for Risk Levels 1 through 3. Projects with high receiving water risk and high sediment risk will be considered a Risk Level 3 to water quality. Risk Level 1 projects will be subject to minimum Best Management Practices (BMP) and visual monitoring requirements, Risk Level 2 projects to numeric action levels (NALs) and additional monitoring requirements, and Risk Level 3 to Numeric Effluent Limitations (NELs) and more rigorous monitoring requirements such as receiving water monitoring and, in some cases, bioassessment.
  3. The Draft General Permit sets an NEL for turbidity of 500 Nephelometric Turbidity Units (NTUs) (down from 1,000 NTUs in the previous draft) for discharges not treated by Active Treatment Systems (ATS) and 20 NTUs for effluent discharges from ATS units. If the effluent exceeds this limit, the project site could be alleged to be in violation of the Draft General Permit. This proposed limit fails to consider background conditions of the receiving waters. Nevertheless, it would be enforceable under the citizen suit provisions of the CWA, potentially exposing developers to significant legal liabilities.
  4. The Draft General Permit would require receiving water monitoring for Risk Level 3 projects. Depending on a project site's proximity to a receiving water, it may be difficult for many dischargers to perform this monitoring. Moreover, the Draft General Permit fails to take into consideration situations in which the discharger cannot obtain legal access to the receiving water both up and down gradient from the project site.
    Because Risk Levels 2 and 3 contain numeric effluent limitations, they would likely be subject to mandatory minimum penalties that, given the monitoring and reporting requirements in the Draft General Permit at Risk Levels 2 and 3, could quickly result in significant monetary penalties.
  5. Under the Draft General Permit, dischargers would be required to maintain permit coverage for properties that have been sold off until the new owner files a Permit Registration Document (PRD). Short of requiring the PRD filing as part of the escrow, the seller would have no control over the buyer's decision to file a PRD. Under such a scenario, residential developers in particular would need to achieve final stabilization (a fully landscaped lot) before selling houses to retail buyers or, alternatively, force retail homebuyers into a regulatory regime for which they are not prepared.
  6. Under the Draft General Permit, termination of the permit would include a requirement for a long-term maintenance plan for post-construction BMPs for a minimum of five years.
  7. Under the Draft General Permit, NELs for discharges from an ATS require that residual chemical be less than 10 percent of the Maximum Allowable Threshold Concentration (MATC). Determining the MATC could be very costly, and it is unclear whether the MATC would be product-specific, lot-specific, site-specific, or a combination thereof.
  8. The existing General Permit does not require that qualified personnel prepare Stormwater Pollution Prevention Plans (SWPPP) or conduct inspections. However, the Draft General Permit requires that all SWPPPs be written, amended, and certified by a “Qualified SWPPP Developer,” defined to be in possession of one of the eight certifications and/or registrations specified in the Draft General Permit. These include, among others, engineers, geologists, landscape architects, and various professional hydrology, erosion, sediment, and stormwater inspectors along with those that have been preparing SWPPPs for at least five years.
  9. The Draft General Permit provides that projects with coverage under the existing General Permit are not subject to the requirements of Risk Levels 2 or 3 for two years after adoption of the Draft General Permit, provided they maintain their coverage under the existing General Permit. Property owners who have slowed or stopped construction (based on economic conditions or other factors) may consider maintenance of their existing permit coverage a justifiable expense when faced with the alternative of achieving compliance with Risk Level 2 or 3 requirements in the near future.
  10. The Draft General Permit provides a waiver for one- to five-acre projects that demonstrate that there would be no adverse water quality impacts. Such a demonstration would be based on a showing that the value of the rainfall erosive factor is less than five.

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues.

If you have any questions about this alert or would like to discuss the topic further, please contact your Foley attorney or the following individuals:

S. Wayne Rosenbaum
San Diego, California

Elizabeth A. Cason
San Diego, California

Heidi K. Vonblum
San Diego, California

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