Aug 15, 2008

New NPDES Construction Storm Water Permits

On August 1, 2008, the Georgia Environmental Protection Division (“EPD”) issued new NPDES General Permits (the “Permit”) for storm water discharges associated with construction activity for Stand Alone and Infrastructure Construction projects and Common Developments.

Many of the requirements of the new NPDES Permit remain the same as those of the old permit. However, the new Permit does include a number of new Notice of Intent (“NOI”) requirements for permittees.

Some of the key changes involving NOIs and associated deadlines are listed below:

  • Lenders or secured creditors — Must file a new NOI if they acquire legal title to a construction site either 7 days before beginning construction work at the site or 30 days from acquiring title to the site. Accordingly, banks and lenders should be aware that they will become named permittees and will be responsible for compliance with Permit conditions, including erosion and sedimentation controls, water quality sampling, site inspections reporting, etc. and also liable to governmental agencies and downstream property owners for failure to comply with Permit conditions.
  • Existing construction sites – Submit a new 2008 NOI within 60 days or September 30, 2008, for continued coverage.
  • New construction projects — Submit a NOI at least 14 days prior to commencement of construction activity.
  • Submission of NOIs — Must be by certified mail or other similar service with proof of such submittal readily available at construction site.

Developers should also be aware of certain other important changes to the Permit involving “303/305” impaired water bodies and disturbed acreage limits:

  • Permittee must certify whether construction site will be discharging into impaired waters on the new NOI.
  • Construction sites that discharge into or within 1 mile upstream of, and within the same watershed as impaired waters, must include an Erosion, Sedimentation and Pollution Control (“ES&PC”) Plan with at least 4 Best Management Practices (“BMPs”) from the list of 20 options in the Permit. However, this change is not applicable when NOI submitted within 90 days of effective date (August 1, 2008) of the Stand Alone and Development Permit, or prior to January 1, 2009 for the Infrastructure Permit.
  • ES&PC Plans submitted under the new Permit must limit the amount of contiguous disturbed acreage to 50 acres at one time, unless prior written approval from EPD is obtained and at least 4 BMPs are utilized from the list of 20 options.

There are other technical, timing and miscellaneous changes to the Permit which may be applicable depending upon the type of construction activity or development.

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