Friday, August 20, 2010

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PROPOsed Washington State Stormwater Permit Imposes New Requirements for Construction Dischargers

August 20, 2010
Washington’s proposed new Construction Stormwater General Permit (“New Permit” or “Permit”) places additional requirements on construction permit holders and likely will increase their compliance costs.  The New Permit incorporates U.S. EPA’s new Effluent Limitations Guidelines (“ELG Rule”) that took effect in February 2010 and, for the first time, imposes an enforceable limit on stormwater discharges from construction sites, requires monitoring to ensure compliance with the numeric limit, and requires nearly all construction sites to implement a range of erosion and sediment controls and pollution prevention measures.  The Washington Department of Ecology (“Ecology”) has put the draft New Permit out for public review and is accepting public comments through September 10, 2010. 
The New Permit would not incorporate the four-year phase-in period for smaller construction sites allowed under EPA’s ELG Rule and, instead, would require all sites disturbing 10 or more acres of land at one time to comply with a new 280 NTU (nephelometric turbidity unit) discharge limit as soon as Washington’s New Permit becomes effective.[1]  The current Construction Stormwater Generald Permit (“Current Permit”) expires on December 16, 2010.  Ecology plans to issue the New Permit in time to take effect on January 1, 2010.


Washington’s Current Construction Permit requires construction sites to manage and monitor their stormwater runoff to ensure that contaminated stormwater is not discharged to wetlands, creeks, rivers, and marine waters.  The Permit is required under the federal Clean Water Act (“CWA”).[2]  The Permit is also required under Washington’s Water Pollution Control Act (“WPCA”).[3]
The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”[4]  Accordingly, the CWA prohibits the discharge of a pollutant by any person, except in compliance with specified statutory requirements.[5]  Chief among these exceptions are discharges that occur in compliance with permits under the National Pollutant Discharge Elimination System (“NPDES”) established by Section 402 of the CWA, which includes stormwater discharge permits.[6]  EPA has delegated much of the responsibility for administering the NPDES program to most states.[7]  In Washington, Ecology develops and administers NPDES stormwater permits.  Thus, a stormwater permit issued by Ecology is both an NPDES permit under the CWA and a state waste discharge permit under the WPCA.
The Current Permit authorizes the discharge of stormwater and non-stormwater associated with construction activity but will soon expire and needs to be replaced.  Construction activities requiring a stormwater permit include any land disturbing activities such as clearing, grading, excavating, and/or demolition that:
  • Disturb one or more acres of land, or are
  • “[P]art of a larger, common plan of development or sale that will ultimately disturb one or more acres of land,” and
  • Discharge stormwater from the site into surface water(s) of the state or into storm drainage systems that discharge to surface waters of the state.
Ecology can also require a permit for any size construction site, if it determines the site is a significant contributor of pollutants to waters of the state.    
The proposed New Permit would continue to limit the discharge of pollutants from construction sites to surface waters under the authority of the CWA and limit the discharge of pollutants to surface and ground water under the WPCA.

Key Elements of Ecology’s Proposed New Construction Stormwater General Permit

The New Permit continues Ecology’s adaptive management approach of requiring facilities to monitor stormwater quality against benchmarks.  Consistent with the Current Permit, the draft New Permit includes basic monitoring and reporting requirements to comply with the CWA and the WPCA.[8]  The New Permit also retains the Current Permit’s 25 NTU benchmark as a trigger for adaptive management, as well as an existing 250 NTU trigger for phoning Ecology to report muddy water.  Significantly, the New Permit would add the 280 NTU numeric effluent limit for sites with 10 or more acres of soil disturbed at a given time, effective December 2010, as required by EPA’s ELG Rule.
EPA adopts effluent limitations guidelines (“ELGs”) that impose technology-based requirements for specific categories of point source dischargers and new source performance standards (“NSPSs”) that apply to “new sources.” in the specified category.[9]  EPA’s final ELG Rule establishes nationally applicable ELGs and NSPSs for stormwater discharges from construction sites, including best management practices (“BMPs”) and a numeric limit for turbidity.  The rule sets a numeric effluent limitation for turbidity at 280 nephelometric turbidity units (“NTU”) and requires monitoring to ensure that this limitation is met.[10]  The 280 NTU turbidity limit is expressed as a maximum daily limitation, meaning that the averages of the samples taken over the course of a day may not exceed the maximum daily amount. This allows for temporary discharges of stormwater that exceed the turbidity requirement (such as discharges during an intense period of rainfall).[11] .  EPA’s effluent limitations are incorporated into NPDES permits when new permits are issued.  NPDES permits are generally issued by state agencies, because most states have sought and received NPDES permitting authority from EPA.  EPA’s national regulations set a floor for state NPDES permits, but states can include requirements that are more stringent than the national standards
EPA anticipated that the ELG Rule would be implemented in two phases.  First, construction sites that disturb twenty or more acres of land at one time would be required to sample and comply with the turbidity limitation within eighteen months of the effective date of the final rule (i.e., by August 1, 2011).[12] Second, construction sites that disturb ten or more acres at one time are required to sample and comply with the turbidity limitation within four years of the effective date of the rule (i.e., by February 2, 2014).[13]  For more information about the ELG Rule, please see M. MacCurdy and R. Prugh, EPA Construction Stormwater Rule Takes Effect February 1, 2010, Marten Law Environmental News (January 20, 2010).
Ecology is proposing to implement the ELG Rule in one phase for all sites that disturb ten or more acres at one time.  Ecology states in its “Fact Sheet” for the New Permit that it decided not to use a phase-in period for smaller construction sites and, instead, require all sites disturbing 10 or more acres of land at one time to comply with the 280 NTU effluent limitation when the New Permit becomes effective based on three considerations:
  1. Phasing in effluent limits mid-permit cycle would cause administrative problems and could result in confusion and non-compliance among Permittees.
  2. Permittees with construction sites disturbing 5 or more acres have collected water quality sampling since October 2006 and the construction industry in Washington is familiar with turbidity sampling protocols.
  3. Over 99% of the turbidity samples reported to Ecology on Discharge Monitoring Reports (DMRs) had values less than 280 NTU.[14]
In keeping with the Current Permit, under the New Permit, construction sites discharging to waterbodies with TMDLs (“total maximum daily loads”) or on the CWA § 303(d) “impaired waterbody” list for turbidity, fine sediment, high pH, phosphorus, or other applicable water quality parameters must verify, through sampling and analysis, that discharges do not cause or contribute to violations of water quality standards. The draft New Permit also states that stormwater discharges must continue to comply with water quality standards, and provides for the presumption that discharges are in compliance with water quality standards if Permittees comply with permit conditions, unless site-specific information shows this is not the case.

Opportunities for Comment

Ecology will host informational workshops and public hearings and accept written and oral comments on the draft New Permit, fact sheet, and notice of intent (permit coverage application) through September 10, 2010.  Ecology will also accept written comments on the draft permit, fact sheet, and notice of intent. Ecology prefers comments to be submitted by e-mail.  Comments must be e-mailed or postmarked by midnight, September 10, 2010.
For more information on stormwater and water quality issues please contact Jeff Kray at Marten Law.
[1] Ecology’s “CSWGP Fact Sheet – July 21, 2010” at p. 15.
[2] 33 U.S.C. § 1342.
[3] Chapter 90.48 RCW.
[4] 33 U.S.C. § 1301.
[5] 33 U.S.C. § 1311(a).
[6] See 33 U.S.C. §§ 1311(a), 1342(p).
[7] 33 U.S.C. § 1342(b).  EPA administers the NPDES program in Idaho, and is in the process of delegating the program to the State of Alaska.
[8] RCW 90.48.555.
[9] See 33 U.S.C. § 1316(a)(2).
[10] Final Rule at 63,058 (to be codified at 40 C.F.R. § 450.22(a)(1)). EPA describes turbidity as “an expression of the optical property that causes light to be scattered and absorbed rather than transmitted with no change in direction of flux level through the sample caused by suspended and colloidal matter such as clay, silt, finely divided organic and inorganic matter and plankton and other microscopic organisms.” Id. at 63,006. EPA considered and rejected making the turbidity limitation a “benchmark” instead of a requirement. The difference between a benchmark and a numeric limitation is that a violation of a benchmark is not, in itself, a violation of the NPDES permit. EPA concluded that numeric turbidity limitations were feasible and appropriate for larger construction sites. Id. at 63,025.
[11] Id. at 63,047-48, 63,057-58 (to be codified at 40 C.F.R. § 450.22(a)).
[12] Final Rule at 63,047-48, 63,057-58 (to be codified at 40 C.F.R.§ 450.22(a)). EPA’s website notes that Federal Register notice (at 63,050 and 63,058) contains incorrect compliance dates associated with the turbidity limitation for sites disturbing 20 or more acres at one time. The website explains that the correct date for implementation is August 1, 2011. See EPA, Construction and Development – Final Effluent Guidelines .
[13] Final Rule at 63,047-48, 63,057-58 (to be codified at 40 C.F.R. § 450.22(a)).
[14] Ecology’s “CSWGP Fact Sheet – July 21, 2010” at p. 15.

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