Is A SWPP Plan In Your Future?

Is a SWPP Plan In Your Future?
Additional Storm Water Permit Requirements Go Into Effect On January 1, 2003

By
William C. Last, Jr.
And
Lucinda Dustin

Currently there is no requirement that construction project involving less than five (5) acres must obtain a permit in order to discharge construction site run-off into California stormdrains and waterways. Starting in January, 2003, as part of the Phase II of the National Stormwater Program, any construction project in California that will cause disturbance of one acre of land must obtain a Storm Water General Permit. This permit allows that project to discharge storm waters associated with the construction activity into storm drains and waterways. Currently, only construction projects involving disturbance in excess of five (5) acres must obtain a Stormwater General Permit.

The Stormwater General Permit requirement is part of the federal National Pollutant Discharge Elimination System ("NPDES"). The NPDES regulates the discharge of pollutants into public water. The NPDES imposes many requirements on a construction project property owner. These obligations include, but are not limited to the preparation and filing of a Notice of Intent, payment of a fee, and the development of a Storm Water Pollution Prevention Plan ("SWPPP").

While the owner of the construction site ultimately is responsible for obtaining the Permit and complying with the laws and regulations that govern the Permit, owner will typically shift the responsibility for preparation of and compliance with the SWPPP Plan and compliance with NPDES to the project’s contractor and subcontractors.

This article will discuss the nature and requirements for the issuance of a NPDES Permit, the preparation of the Plan and penalties for failing to implement the Plan.

What is a NPDES Storm Water General Permit?

A brief history of the NPDS is essential to understanding how the Phase II requirements will impact the property owner of and the contractor on construction projects in California that involve between 1 and 5 acres of land.

The Clean Water Act ("CWA") was enacted by Congress to protect our Nation’s waters. In 1987, the CWA was amended to require every storm water discharger to obtain a NPDES permit. Storm water is water, from rain, snow and other types of storms, that is contaminated by pollutants at a site, and then runs off into sewers, storm drains or water ways, taking those pollutants into our water sources. In 1990, the United States Environmental Protection Agency ("EPA") published Phase I regulations requiring construction sites involving more than five acres to obtain NPDES storm water permits as part of the plan to control storm water runoff. As of January 2003, Phase II regulations for the first time reduce the NPDES permit threshold to one acre. In addition, under these new regulations, all construction projects that involve more than one acre, but less than five acres are classified as Small Construction Projects. ‘

Under NPDES, certain states are listed as "designated" states that have been delegated authority to operate the NPDES permitting program. California is a designated state. A designated state has the authority to issue and enforce storm water permits. A designated state also is required to develop regulations and guidelines that must be equal to, or better than EPA Phase I and Phase II regulations. Compliance oversight of the NPDES permitting program flows from the EPA, to the State of California, and finally to local governmental agencies. In California, the State Water Resources Control Board ("SWRCB") issues the NPDES Storm Water General Permit. In addition, local county and city agencies are required to oversee those construction projects that have been issued a permit. These local enforcement agencies also must promulgate regulations and guidelines that are equal to or better than, the California state requirements.

What is Required When Applying for the Construction General Permit?

Prior commencing construction, the project owner must file a Notice of Intent ("NOI") and a Construction General Permit request form the SWRCB. The NOI must include a vicinity map. The filing fee now has been increased to $700.

A Storm Water Pollution Prevention Plan also must be prepared before construction actually begins.. The SWPPP is not submitted to the SWRCB unless specifically requested by the regional office that will be responsible for enforcement of the issued Construction General Permit. However, the SWPPP must be kept on-site for review the enforcing agency.

Within approximately 7 to 10 working days, the project general contractor will receive the WDID notification. This will be accompanied by the Construction General Permit with a permit ID number. This document must be included in the SWPPP, and also be made available for review at the project by any agency inspector that has jurisdiction over the project.

What is a Storm Water Pollution Prevention Plan and Why is it Necessary?

A SWPPP is a site-specific, dynamic plan that describes specific activities at that site to control the discharge of pollutants into local storm drains and waterways. As most contractors know, construction involves a great number of hazardous materials. For example, petroleum products, pesticides, herbicides, and building materials such as asphalt, paint and concrete are contaminants that can be carried off a construction site in storm water drains and waterways. The basic goal of storm water management is to improve water quality by reducing pollutants in storm water discharges.

The basic elements to a SWPPP are:

  • Pre-Construction Site Information
  • An Assessment of the Site and Project
  • Selecting and Describing the Best Management Practices ("BMP")
  • Certification and Notification
  • Construction and Implementation of BMPs
  • Final Stabilization and Termination

Almost everything typically used in a construction project appears as a possible pollutant under the additional "Sampling and Analysis" requirements. All of these pollutants must be evaluated and described with appropriate solutions in the SWPPP.

An additional SWPPP requirement is SWRCB Resolution No. 2001-046. This resolution modifies Water Quality Order 99-08-DWQ SWRCB. The NPDES General Permit requires that a sampling and analysis strategy and sampling schedule for discharges from construction activity be developed and included in the project’s SWPPP. This is only required if the project impacts a listed 303(d) water of the state.

While the owner of the Property has the responsibility for developing a SWPPP, the owner typically shifts that burden to the general contractor, who in turn, shifts it to the subcontractors. These SWPPP development obligations will be found either in scope of work portion of the contract, or in the specifications. The owner also may shift its compliance obligations to the contractor. The difference between compliance and non-compliance often rests on the ability of the owner to show due diligence in the implementation of the SWPPP. compliance and non-compliance. Non-compliance can result in the monetary penalties.

It is the author’s experience that some owner’s will require the contractor to pay for the permit and the actual plan. On some sites, the cost of the plan can easily exceed $15,000.00. Thus, all contractors working at the construction site must be familiar with and follow the SWPPP.

What are BMP’s, Listed 303 (d) Waters?

Best Management Practice is a term used to describe an action, program or device which helps to reduce pollutants in site runoff. For example, good site housekeeping, inspection and maintenance, training employees about ways to prevent pollution, erosion and sediment control.

Best Management Practice(s) (BMPs) are physical actions taken to secure the project from allowing soils and sediment entering a water body, which includes the local sewer system. So if you are developing a site in a municipality with existing storm drains, you must have BMPs to protect the storm drain system.

Designated water bodies in California have been determined by SRWCB to be impaired by sedimentation, siltation, or turbidity. These water bodies are listed in Attachment 3 to the General Permit. If your project impacts any of the waters listed, then in addition to the basic SWPPP, you will be required to include procedures for sampling and analysis of discharges throughout the life of the project. The guidelines for meeting these requirements are available under Resolution No. 2001-046.

How Do I Prepare and Submit a SWPPP?

Although it is feasible and appropriate for the owner of a project to produce a SWPPP, it may not be cost effective or practical. However, a professional storm water specialist can ensure that the site is ready and meets all the requirements as necessary, as well as oversee correct implementation of the SWPPP, coordinate with the various enforcement agencies, help you be in compliance and also stay cost effective.

There are erosion control specialty contractors who can install and maintain the listed BMPs of the SWPPP. There are also a number of qualified consulting engineering firms that specializes in erosion/sediment control and storm water management. There are also consultants who can produce a site-specific SWPPP, as well as offer site monitoring, compliance with the Resolution # 2001-046 (sampling and analysis), guidance on contracting an erosion control contractor, direction of erosion/sediment control materials that are cost effective and will meet NPDES requirements. There are also classes offered by the International Erosion Control Association that cover SWPPPs, implementation; compliance with regulations, Phase II certified training.

Is a SWPPP in Your Future?

Yes. Unfortunately, as with all the other regulatory requirements, the design and implementation of a proper SWPPP can make the difference between a successful project or a nightmare. The fines for non-compliance can be over a $1,000 per day. In addition, the project can be stopped resulting in additional job site and home office overhead, interest costs, idle equipment costs and additional labor costs.

In closing, anticipating the cost of the creation and implementation of a SWPPP in the bidding stage of a project may prevent disputes as to who is responsible for the plan. Clearly, it is far less expensive to prepare an appropriate plan then be cited for failure to comply with the regulations.

____________________________________

This article, © 2002, was written jointly by William C. Last, Jr. and Lucinda Dustin. Mr. Last is an attorney who has been specializing in Construction Law for over eighteen years. Mr. Last also holds a California A&B contractors license. If you have any questions Mr. Last can be contacted at 415‑764‑1990 or 650-425-7679 or by e-mail at wclast@lastlawfirm.com. He has other articles on his web site: lhfconstructlaw.com. Lucinda Dustin is a Storm Water Specialist with Stevens, Ferrone and Bailey, an engineering firm. She is a certified instructor with the IECA, and active with the Building Industry Association. Ms. Dustin has been involved in the construction industry and the green industry for over 18 years, specializing in erosion/sediment control and storm water management for the last seven years. She can be reached at (925) 688-1001 and ldustin@sfandb.com. This bulletin is published periodically to provide general information about current legal issues. If you have a specific legal question or need legal advice, you should contact an attorney.