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EPA Releases 2017 Construction General Permit Covering Stormwater Discharges
Practical Law Legal Update w-005-8657 (Approx. 4 pages)
EPA Releases 2017 Construction General Permit Covering Stormwater Discharges
by Practical Law Real Estate
| Published on 09 Feb 2017 • USA (National/Federal) |
The Clean Water Act requires permit coverage for stormwater discharges from construction sites that are one or more acres in size. The EPA's 2017 Construction General Permit (CGP) that sets nationwide standards for these stormwater discharges goes into effect on February 16, 2017, replacing the 2012 version.
On January 19, 2017, the Environmental Protection Agency (EPA) released the 2017 Construction General Permit (CGP) in compliance with the Clean Water Act (33 U.S.C. § 1251 et. seq.). The 2017 CGP goes into effect on February 16, 2017.
Background
The EPA Office of Water has highlighted stormwater runoff as being one of the most significant causes of pollution in US waterways and has focused on improving water quality through increased regulation, enforcement, and the development of programs to incentivize the use of low impact development and green infrastructure to manage stormwater.
The National Pollutant Discharge Elimination System (NPDES) stormwater program requires permitting for construction sites that are one or more acres in size. Permitting is either under the CGP or a site-specific individual NPDES permit. These permits place limits on stormwater runoff, which can carry pollutants like sediment, debris, and chemicals into storm sewer systems or directly into rivers, lakes, and coastal waters.
Permits are either administered by the state where the construction site is located or by the EPA depending on whether the state has a delegated NPDES program.
The EPA advises that developers must apply for permit coverage before discharging stormwater. Because precipitation is unpredictable, to avoid the possibility of noncompliance, developers should apply for NPDES permit coverage before starting land clearing or other site preparation activities.
2017 CGP
The 2017 CGP is a five-year permit that covers stormwater discharges at construction sites that are over one acre in size in locations where the EPA is the permitting authority, including:
- Idaho.
- Massachusetts.
- New Hampshire.
- New Mexico.
- District of Columbia.
- Areas within Colorado, Delaware, Vermont, and Washington subject to construction by a federal operator.
- Limited areas of Oklahoma and Texas.
- Select Indian Country lands. For a full list of Indian Country lands, see the EPA website.
- Territories including:
- American Samoa;
- Guam;
- Johnston Atoll;
- Midway and Wake Islands;
- Northern Mariana Islands; and
- Puerto Rico.
The 2017 CGP also will serve as a model for permits in those states that are authorized to implement the NPDES stormwater program independently under a delegated program. The full text of the permit can be found here.
Construction sites that intend to seek coverage under the EPA's CGP must submit a Notice of Intent (NOI) using the e-reporting tool. For construction sites in states where the CGP is delegated to a state agency a NOI is generally required to be filed directly with the permitting state agency.
For detailed information on stormwater management, see Practice Note, Stormwater Management: Project and Facility Permits Under the Clean Water Act.
2017 CGP Noncompliance Reporting
Operators on sites covered by the 2017 CGP must report all instances of noncompliance that might endanger public health or the environment to the appropriate EPA regional office. Reports of noncompliance must be made both:
- Orally, within 24 hours from when the operator became aware of the hazardous circumstances.
- In a written submission, within five days from when the operator became aware of the hazardous circumstances.
In states with delegated NPDES permit programs, noncompliance reporting will generally be made to the state permitting agency.
Changes from the 2012 CGP
The 2017 CGP replaces the 2012 version. Although the new CGP is similar to the 2012 version, one notable change is the inclusion of language making all operators at a construction site jointly and severally liable for a permit violation.
Industry groups have expressed concern over this change. These groups argue that the number of operators on a site and the varying site responsibilities held makes joint and several liability a serious threat to everyone working on the project.
Construction site managers and operators should be aware of this new liability regime and implement policies to increase accountability and oversight in all construction areas impacting stormwater management.