On March 10, the Environmental Protection Agency (EPA) instituted Phase II storm water regulations that require land-disturbing activities affecting 1 acre or more to obtain a National Pollutants Discharge Elimination System permit for the discharge of storm water. This change will cause nearly every land developer to obtain or comply with a permit. Actual compliance dates will be state specific; developers and construction managers should contact the appropriate permitting agencies for compliance schedules.

Background

The Federal Water Pollution Control Act amendments of 1972, referred to as the Clean Water Act (CWA), required all point source discharges of wastewater to be conducted under permit. This permit system, referred to as the National Pollutants Discharge Elimination System (NPDES), was originally directed toward the treated discharge of wastewater by treatment plants and industrial facilities. In 1990, the EPA extended the coverage of the NPDES to include the discharge of storm water. These 1990 rules, referred to as Phase I, regulated the discharge of storm water from a number of sources, including construction sites that disturbed areas of 5 acres or more.

Requirements

Depending upon location, construction projects have been subject to Phase I storm water regulations since the late 1990s. Phase II permit requirements will be similar to the Phase I requirements, according to reviews in select southern states that were prepared to implement their Phase II storm water regulations in March. These requirements will include, but are not necessarily limited to, the preparation and submission of a Notice of Intent (NOI) to discharge storm water, preparation of a Storm Water Pollution Prevention Plan (SWPPP), routine inspections and record keeping and the submission of a Notice of Termination (NOT) once disturbed land has undergone final stabilization.

Monitoring requirements will vary from state to state. Most states will require non-numeric monitoring limited to visual assessment of storm water for the presence of excessive solids, foaming, discoloration and other directly observable indicators of storm water quality. Guidance for Georgia — which currently requires the measurement of turbidity as an indicator of sediment load for Phase I storm water projects — is pending.

Permit Waivers

There are no permit waivers for projects that meet the 5-acre minimum established in Phase I regulations. However, under the EPA’s guidance — which may or may not be fully adopted by the individual permitting authorities — Phase II projects may be waived from NPDES permit requirements. The two potential waiver routes are the Rainfall Erosivity Factor and Total Maximum Daily Load (TMDL). The Rainfall Erosivity Factor is one of the variables used by the Revised Universal Soil Loss Equation. This factor is sensitive to the time of year the project occurs, duration of project and predicted rainfall intensity during the project. A project-specific Rainfall Erosivity Factor of less than five may qualify for a permit waiver.

The CWA requires states to establish TMDLs for bodies of water, or stretches of water, that do not achieve water quality standards. The TMDL defines the maximum load of a given pollutant that a body of water can receive and still meet water quality standards. The state authority then allocates the amount of a given pollutant that a source or source category may discharge. If it is determined that a project affecting 1 to 5 acres is not a significant contributing source of sediment, it may be eligible for a permit waiver. To be eligible for this waiver, a sediment parameter TMDL would need to be established for the receiving water and the project operators would need to certify that storm water from the project will be discharged to the section of water covered by the TMDL. Project personnel should consult with design professionals to determine the applicability of these waivers to their project.

Cost

Since the NPDES for storm water relates closely with long-standing sediment and erosion control laws, compliance with these regulations should not be difficult to attain. Costs for the preparation of the NOI, SWPPP and NOT are expected to range from $2,500 to $4,500. Routine inspection costs will vary depending upon site complexity, monitoring requirements and the degree to which site personnel participate in the inspection requirements. Most states have educational and/or training requirements for those individuals conducting inspections. Weekly inspection costs, if conducted by a third party, are likely to range from $200 to $400.

Costs for non-compliance, however, can be significant since enforcement actions can range from monetary fines to orders to cease and desist construction. To comply with the regulations, design professionals should specify appropriate best management practices (BMPs) and site personnel should effectively implement and maintain the BMPs. Careful documentation of site inspections, alterations/repairs of BMPs and other items identified in the state-specific permits will help demonstrate permit compliance.

Chris Harrell, PE, and Chris Brown of Highland Engineering, Inc., Atlanta, Georgia, contributed this article. Harrell is a principal, and Brown serves as environmental engineer and senior project manager.


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