EPA Proposes Changes to its NPDES Construction General Permit – Update from Manko Gold Katcher Fox

May 27, 2021

Diana A. Silva and Zachary J. Koslap

MGKF Special Alert

On May 12, 2021, the U.S. Environmental Protection Agency issued a notice and a request for comment on the proposed 2022 National Pollutant Discharge Elimination System (NPDES) general permit for stormwater discharges associated with construction activities.  The proposed permit would replace the existing 2017 Construction General Permit (CGP) that is set to expire on February 16, 2022.  EPA’s CGP applies only in those areas of the country where EPA is the NPDES permitting authority, although states who implement the NPDES program often follow permit conditions that are included in EPA’s NPDES permits.

EPA’s CGP applies to construction site operators who disturb one or more acres of land, or less than one acre but part of a larger common plan of development or sale if the common plan ultimately disturbs one acre or more.  Generally, the CGP requires operators to implement technology-based effluent limitations (e.g., erosion and sediment controls), meet applicable water quality standards, and otherwise minimize the discharge of sediment from construction activities into waters.  Operators that complete construction activities are required to stabilize disturbed areas prior to terminating permit coverage. 

EPA categorized its proposed changes to the CGP as either ones that to improve the clarity of the permit or ones that add specificity to the permit requirements.  Among the notable changes to improve permit clarity include: 

  • Differentiation between routine maintenance and corrective action: The permit defines routine maintenance as repairs to or replacement of stormwater controls that can be completed within 24 hours of first discovering the need for the repair or replacement.  Repairs or replacements that take longer would be considered corrective action.  Thus, permit requirements related to routine maintenance and repairs refer only to those activities that can be completed within 24 hours. 
  • Inspections during snowmelt conditions: The permit adds a numeric inspection threshold for snowfall precipitation that is equivalent to the 0.25-inch rain event, which triggers the need for an inspection if the permittee is conducting inspections on a bi-weekly basis.  The change also requires an inspection where there is a discharge from snowmelt caused by an accumulation of 3.25 inches or greater of snow. 
  • Perimeter controls and natural buffers: EPA clarified that perimeter controls upgradient of any natural buffers are still required.  However, if perimeter controls are being used to fulfill one of the buffer alternative requirements, then a second perimeter control would not be required. 

The notable changes that add specificity to the permit include: 

  • Perimeter control installation and maintenance: EPA inserted additional perimeter control installation and maintenance requirements that are focused on ensuring that these controls work effectively.  The permit now expressly requires permittees to extend controls or repair areas if there is evidence of stormwater circumventing or undercutting the controls. 
  • Dewatering discharge requirements: The permit proposes a number of additional requirements for dewatering activities, such as requiring additional inspections while dewatering is occurring and photo documentation of stormwater controls before, during, and after dewatering. 
  • Training requirements for site inspectors: EPA is proposing modifications to the training program for personnel conducting inspections.  Such personnel must complete an EPA construction inspection course and pass an exam or hold a certification or license that covers essentially the same principles as the EPA course. 
  • Documenting signs of sedimentation: EPA is proposing that inspections must check for signs of sedimentation at points downstream from the point of discharge that could be attributable to discharges from construction activity.  EPA does not specify the distance downstream of the site that operators must check given the variable site-specific conditions. 

States which implement and enforce the NPDES permitting program for stormwater discharges, which include Pennsylvania and New Jersey, must ensure that their permitting programs are in compliance with the Clean Water Act.  Accordingly, although states may issue permits with requirements that differ from EPA’s, many state-issued permits follow the requirements in EPA’s permits.  To that end, the changes featured in EPA’s 2022 CGP may forecast potential changes to state-implemented permitting programs when those permits must be reissued. 

EPA is accepting comments on the proposed 2022 CGP until July 12, 2021.  If you have any questions or concerns regarding the 2022 CGP, please contact Diana Silva at (484) 430-2347 or Zach Koslap at (484) 430-2330.