DEEP Issues New General Permit for the Discharge of Stormwater and Dewatering Wastewaters from Construction Activities
September 24, 2013
On August 21, 2013, the Connecticut Department of Energy and Environmental Protection (“DEEP”) reissued the General Permit for the Discharge of Stormwater and Dewatering Wastewaters from Construction Activities (“Construction General Permit”) with significant modifications from the previously issued construction general permit.
Important Dates
The Construction General Permit is effective October 1, 2013. All persons who have registered under any previously issued construction general permit must abide by the requirements of the Construction General Permit and must re-register by February 1, 2014, unless the construction activity has been completed. Failure to re-register by February 1, 2014, will result in the previous registration being terminated. All new registrants should apply following the requirements of the newly issued Construction General Permit.
Additionally, the lead time required for permit approval has increased. Previously, 30 days was sufficient time for DEEP to review the registration. Under the new Construction General Permit, all registrations must be submitted at least 60 days, and in some cases 90 days, in advance of the anticipated date that activity will begin.
Summary of Significant Modifications
The new Construction General Permit contains several significant additions as compared to previously issued construction general permits. Included in these changes are a number of new definitions as well as eight appendices to provide further clarification regarding a number of issues including the Endangered Species Act, Low Impact Development, Historic Places Preservation, and Wild and Scenic Rivers.
Additionally, the new Construction General Permit requires third party approval of the Stormwater Pollution Control Plan (“SWPCP”) i.e., it is no longer sufficient to have a professional engineer create the plan prior to submitting the registration for DEEP’s review. Under the new procedures, registrants must obtain an approval of the SWPCP by a qualified third-party professional before submitting the registration package.
Other changes include:
- Provisions for initial, weekly and post-construction inspections (by certain, qualified individuals);
- Post-construction design requirements;
- Additional requirements that must be addressed by the Stormwater Pollution Control Plan;
- Stormwater monitoring requirements (but DEEP has not yet set standards for turbidity);
- Opportunity for public comment on the SWPCP in addition to the registration itself;
- Endangered species safe harbors aimed at preventing sudden changes in activity as a result of the discovery of state-listed endangered or threatened species; and
- Provisions that allow transfer of a registration under the permit to another entity.
Timing
At the outset, the Construction General Permit has extended the time that registrants must provide for DEEP to review the proposed registration to 60 days in most cases, and 90 days in certain, identified scenarios.
For example, 90 days is required when a municipal, state, or federal entity files a registration under the permit—these are registrations which are not approved by a municipal entity and are referred to as “locally exempt projects.”
For projects that are approved by a municipal entity (“locally approved projects”), the proposed activities are usually deemed authorized 60 days after the required registration has been submitted. However, for sites where endangered species issues are present or where there are discharges to impaired waters or tidal wetlands, the activity is not authorized until the Commissioner makes an affirmative determination approving the activity—in other words, registrants cannot begin work after 60 days unless they have received approval from DEEP.
Public Comment on Stormwater Pollution Control Plans (“SWPCP”)
When submitting a registration, registrants for locally approvable projects may choose to provide either an electronic version of the SWPCP or a website address linking to the SWPCP. Those users submitting registrations for locally exempt projects must provide either electronic versions or a web address from where the SWPCP can be downloaded.
For those registrants who have provided electronic versions of the SWPCP (or a web address), the public will have 15 days, from when the Commissioner posts the registration of DEEP’s website, to provide comment on the registration and SWPCP. For those locally approvable projects where the SWPCP is not electronically available any member of the public has 15 days to request a copy of the SWPCP. Once the Commissioner has requested the SWPCP from the registrant, the registrant has seven days to provide it to the Commissioner. The requesting party then has 15 days, from the date the Commissioner makes the SWPCP available, to submit written comments on the SWPCP. Accordingly, not providing an electronic copy of the SWPCP at the time of registration may result in an extended public comment period.
Certification of Stormwater Pollution Control Plan
Another significant change applies to locally approved projects. The new Construction General Permit now requires separate approval of the SWPCP by either a regional Conservation District or a Qualified Professional Engineer or Qualified Soil Erosion and Sediment Control Professional. Because these individuals cannot be employed by the registrant or have an ownership interest in the project, this requirement automatically requires registrants to incur additional costs. Note that for projects which will disturb more than 15 acres, there are additional requirements as to who may be a qualified professional engineer or qualified soil erosion and sediment control professional. In particular, in these larger projects, the individual making the certification cannot have been involved in the preparation or planning of the SWPCP, nor can they be employed by the same entity as the individual(s) who did prepare the SWPCP.
As a result of this third-party certification, however, registrants for locally approved projects now only need to submit the certification and do not need to submit the SWPCP with the initial submittal (however, registrants may opt to provide an electronic copy and, as noted above, registrants do need to provide a copy off the SWPCP upon request by the Commissioner, who may receive requests from the public as part of the public comment process).
Stormwater Pollution Control Plan: Other Requirements
The Construction General Permit includes many requirements regarding what must be included in the SWPCP. While this list is not exclusive, registrants will need to ensure that:
- Stormwater discharge does not cause or contribute to an exceedance of the applicable Water Quality Standards in the Receiving Water;
- No discharge of dewatering wastewater contains or causes a visible oil sheen, floating solids, or foaming in the receiving water;
- Washout areas for equipment are designated and entirely self-contained with no surface discharge of washout waters; and
- All chemical and petroleum product containers are in impermeable containment which will hold at least 110% of the largest container.
Inspections and Monitoring
There are several new requirements for the SWPCP itself that must be adhered to, including a new requirement that registrants conduct monthly monitoring of stormwater runoff for turbidity. Although no standard has been set, the permit specifically includes a reopener provision allowing DEEP to reopen the general permit if and when U.S. EPA sets its own requirements.
In addition to requiring registrants for locally approved projects to obtain a written certification, all registrants must also arrange for inspection of the project within 30 days following commencement of activity on site. This inspection must be done by either the Regional Conservation District or by a Qualified Professional Engineer or a Qualified Soil Erosion and Sediment Control Professional.
Additionally, routine investigations, by a “qualified inspector,” must occur at least once a week. “Qualified inspector” is a defined term and to qualify, an individual must have a specific license or certification or must meet certain experience requirements. There is no prohibition, however, on this individual being employed by the registrant.
Post Construction Requirements: Design and Inspection
Finally, the Construction General Permit places new requirements on actual construction design. In particular, the Construction General Permit creates stormwater retention standards that must be met once a project is complete. In order to accomplish these goals, registrants are required to incorporate runoff reduction practices, low impact development practices or other measures. Further guidance about these practices are described in Appendix B of the permit.
Additionally, following completion of the project, and once the area is cleaned of construction sediment and debris, registrants must contact the Regional Conservation District or a Qualified Professional Engineer or a Qualified Soil Erosion and Sediment Control Professional to arrange for an inspection of the site and to confirm compliance with post-construction stormwater measures. Likewise, once the site has been stabilized for three months, the registrant must have the site inspected by a qualified inspector to confirm final stabilization.
Endangered Species: Safe Harbor
Despite all of these new requirements, there are several changes that should make the process easier for registrants. In particular, DEEP has provided new options for registrants regarding endangered species. The most notable of these is the “safe harbor determination.” A safe harbor determination requires the registrant to provide specific information to DEEP, and if DEEP agrees with the registrant’s assessment, it will then provide a determination that there are no state-listed endangered or threatened species or essential habitat for these species at the project site. This determination provides a registrant with a three year safe harbor—irrespective of what may be found at the site (note, however, that this safe harbor does not apply to federally-listed species). Accordingly, even if during these three years a state-listed endangered or threatened species is discovered at the site, the registrant may still continue with the planned project under this safe harbor determination. Safe harbor determinations may be extended once, for one year.
There are also less intensive procedures that can be followed in order to demonstrate compliance with endangered species requirements. Although these other provisions do not apply if an endangered or threatened species is discovered at the site after the project has commenced, they do provide some added protection to a registrant.
If you would like more information about the new Construction General Permit, please contact Patricia Boye-Williams at 860.240.6168 or pboyewilliams@murthalaw.com, Greg Sharp at 860.240.6046 or gsharp@murthalaw.com, Mark Sussman at 860.240.6034 or msussman@murthalaw.com, or any member of Murtha Cullina’s Environmental Practice Group.
