Type: Law Bulletins
Date: 05/02/2011

EPA Extends Deadline for and Proposes to Amend NPDES Construction General Permit

On April 25, 2011, EPA published notice that the existing NPDES nationwide permit (also known as the 2008 Construction General Permit) for construction activities would be extended until January 31, 2012.[1] The 2008 Construction General Permit was set to expire on June 30, 2011. This extension provides some breathing room for construction activities already suffering from the effects of the construction recession which began in 2008. The nationwide permit applies to construction activity which disturbs one or more acres of land (or less than 1 acre if part of a larger development), and is limited to “new projects” or “unpermitted ongoing projects.” The extension was granted to allow EPA additional time to prepare the new nationwide Construction General Permit. In the meantime, as a result of errors by EPA in its calculations, EPA issued a stay on January 4, 2011 of the turbidity effluent limitation set forth in EPA’s construction and development rule (40 C.F.R. §§450.21, et seq.) which became effective February 1, 2010.

On April 25, EPA also invited comment on a draft five-year nationwide stormwater Construction General Permit to replace the existing permit. Comments are due at EPA by no later than June 24, 2011.   The permit includes new requirements for: (i) technology-based Effluent Limitation Guidelines, (ii) New Source Performance Standards, and (iii) water quality based requirements for construction sites. These new requirements are in addition to those requirements under the former nationwide permit: erosion and sediment control, soil stabilization measures, dewatering of trenches and excavations, and pollution prevention. If you or your client commenced construction activities after February 1, 2010, you should read EPA’s proposed permit changes at 76 Fed.Reg. 22882 (April 25, 2011).

The proposed nationwide permit adds specificity to the construction site requirements under the existing nationwide permit. The proposed permit introduces, for the first time, numeric limits on turbidity as expressed in the construction and development rule, 40 C.F.R. §450.22. Compliance will be required in two phases: (i) construction activities occurring on or after August 1, 2011 which disturb 20 or more acres; and (ii) construction activities occurring on or after February 2, 2014 which disturb 10 or more acres. EPA’s regulations at 40 C.F.R. §122.44(d)(1) require permitting authorities to include additional or more stringent permit requirements when necessary to achieve water quality standards. EPA is proposing to increase the waiting period from 7 days to 30 days for construction operators at new projects to comply with the obligation to submit a Notice of Intent (NOI).

For more information concerning the Construction General Permit, please contact Kim Burke or Earl Messer, or any member of Taft’s Environmental Practice and Construction Groups.


[1] The extension applies only to EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10.

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