Developers and builders face potentially more stringent requirements under the U.S. Environmental Protection Agency's (EPA) recently proposed draft National Pollutant Discharge Elimination System (NPDES) general permit for discharges from construction activities. The proposed changes to the current permit would increase the required frequency of inspections, shorten the time required for site stabilization, and impose new requirements on the preparation and submission of stormwater pollution prevention plans (SWPPP). The current permit expires on February 16, 2017, and the affected community has until May 26, 2016, to submit comments on the draft permit and proposed changes.

The NPDES General Permit for Stormwater Discharges from Construction Activities covers discharges from earth-disturbing activities, such as land clearing, grading, and excavation of land, and other construction-related activities that disturb one or more acres of land, or that disturb less than one acre of land but are part of a common plan of development that will disturb one or more acres of land. It applies in those jurisdictions where EPA is the permitting authority and generally requires permitholders to implement planning and pollution prevention measures to prevent the discharge of sediment and other pollutants during construction activities. These measures include erosion and sediment controls to control the volume and velocity of stormwater to minimize soil erosion and requirements to initiate soil stabilization measures when construction activities have ended or have been suspended for an extended period of time. The current permit requires stabilization to be complete 14 days after it is initiated, but EPA is seeking comment on whether the requirement should be reduced to seven days, with certain exceptions, which is the current requirement for sites that discharge to sensitive waters.

Each operator on a construction site is also required to develop a SWPPP that includes a site map, a description of the nature and schedule of construction activities, a list of the pollutant-generating activities, an inventory of the pollutants generated by that activity, and a description of the pollution controls and procedures in place for inspections, maintenance and corrective actions. Under the existing permit, multiple operators on a construction site are permitted to divide responsibility for compliance with permit requirements and document the division of responsibility in each operator's SWPPP. EPA is seeking comment on whether to require in the new permit that all operators on a site develop one group SWPPP to consolidate the description of the division of responsibility into one document. In addition, EPA is proposing to require operators to make SWPPPs publicly available either by posting it online or submitting it to EPA for posting. Currently, operators are only required to maintain the SWPPP at the site or at an easily accessible location.

EPA is also proposing to increase the minimum frequency of inspections. Under the current permit, operators are required to conduct site inspections a minimum of once every seven days or, alternatively, once every 14 days and within 24 hours after a storm event of 0.25 inches or greater, or the occurrence of runoff from snowmelt. EPA is seeking comment on whether the new permit should require inspections a minimum of every seven days and, in addition, within 24 hours after a storm event of 0.25 inches. These and a variety of other changes can be found here.

Ballard Spahr's Environment and Natural Resources Group advises on national and regional compliance, permitting, rulemaking, development, business planning, and contamination matters. The Group also provides representation in litigation, during investigations, and for transactions.


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