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National Pollutant Discharge Elimination System (NPDES) |  |
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Construction General Permit Frequently Asked QuestionsThe following is a list of all Construction General Permit Frequently Asked Questions:
What is the Goal of This Permit? The goal of this permit is to protect the quality and beneficial uses of the Nation's surface water resources from pollution in stormwater runoff from construction activities. To achieve this goal, the permit requires operators to plan and implement appropriate pollution prevention and control practices for stormwater runoff during the construction period. These Best Management Practices (BMPs) are aimed primarily at controlling erosion and sediment transport, but also include controls, including good housekeeping practices, aimed at other pollutants such as construction chemicals and solid waste (e.g., litter). As used in this permit, the terms "Construction and Construction-related activities" include all clearing, grading, excavation, and stockpiling activities that will result in the disturbance of one or more acres of land area.
What Types of Construction Activities May Need a Stormwater Permit? Any construction activity that will, or is part of a "common plan" of development or sale that will, disturb one or more acres must either have a permit OR have qualified for a waiver. These regulated discharges are broken into two categories: "Large" and "Small". A large construction activity is one that will disturb, or is part of a "common plan" that will cumulatively disturb, five or more acres. A small construction activity is one that will disturb, or is part of a "common plan" that will cumulatively disturb, one or more acres. Construction and construction-related activities refer to the actual earth disturbing construction activities and those activities supporting the construction project such as construction materials or equipment storage or maintenance (e.g., fill piles, borrow area, concrete truck washout, fueling), measures used to control the quality for stormwater associated with construction activity, or other industrial stormwater directly related to the construction process (e.g., concrete or asphalt batch plants). It does not refer to construction activities unrelated to earth disturbing activities such as interior remodeling, completion of interiors of structures, etc. "Construction" does not include routine earth disturbing activities that are part of the normal day-to-day operation of a completed facility (e.g., daily cover for landfills, maintenance of gravel roads or parking areas, landscape maintenance, etc.) nor activities under a State or Federal reclamation program to return an abandoned facility property to an agricultural or open land use (as opposed to demolition of something in order to build something new).
Are There Situations Where a Permit is Not Needed? If all of the stormwater from the construction activity is captured on-site and allowed to evaporate, soak into the ground on-site, or is used for irrigation, you do not need a permit. Under the Clean Water Act, it is illegal to have a point source discharge of pollutants to a water of the United States that is not authorized by a permit. If you believe there is a potential for a discharge, EPA recommends that you apply for permit coverage before any discharge occurs. The best management practices that you use to keep the stormwater on your site must be effective under any size storm. You may also have an obligation to the State/Tribe concerning discharges to ground water or impoundment of runoff (e.g., water rights).
If a Construction Activity Does Not Adversely Impact Water Quality, is Coverage Under the Construction General Permit Still Necessary? Waivers are possible only for discharges of stormwater associated with SMALL construction activity (i.e., construction disturbing less than 5 acres). These waivers are authorized by federal regulation at 40 CFR 122.26(b)(15)(i)(A) & (B) and are explained in Addendum C of this permit. Waivers are not available for any construction activity disturbing 5 acres or greater, or less than 5 acres if part of a common plan of development or sale that will ultimately disturb 5 or more acres (or if designated for permit coverage by EPA).
Who Must Apply for the Permit? You must apply if you meet either of the two parts of the definitions of "Operator." This means you should apply for permit coverage if you have operational control over either:
With All the People Involved in a Construction Project, How Do I Know If I Am the One That Needs to Apply for the Permit? In many instances, there may be more than one party at a site performing the tasks relating to "operational control" and hence, more than one operator must submit an NOI. Exactly who is considered an operator is largely controlled by how the "owner" of the project chooses to structure their contracts with the "contractors" hired to design and/or build the project. The following are three general operator scenarios (variations on any of the three are possible, especially as the number of "owners" and contractors increases):
My Project Will Disturb Less Than One Acre, But it May Be Part of a "Larger Common Plan of Development or Sale." How Can I Tell and What Must I Do?
In many cases, a common plan of development or sale consists of many small construction projects. For example, an original common plan of development for a residential subdivision might lay out the streets, house lots, and areas for parks, schools and commercial development that the developer plans to build or sell to others for development. All these areas would remain part of the common plan of development or sale until the intended construction occurs. If your smaller project is part of a larger common plan of development or sale that collectively will disturb one or more acres (e.g., you are building on 6 half-acre residential lots in a 10-acre development or are putting in a fast food restaurant on a 3/4 acre pad that is part of a 20 acre retail center) you need permit coverage. The "common plan" in a common plan of development or sale is broadly defined as any announcement or piece of documentation (including a sign, public notice or hearing, sales pitch, advertisement, drawing, permit application, zoning request, computer design, etc.) or physical demarcation (including boundary signs, lot stakes, surveyor markings, etc.) indicating construction activities may occur on a specific plot. You must still meet the definition of operator in order to be required to get permit coverage, regardless of the acreage you personally disturb. As a subcontractor, it is unlikely you would need a permit. However, where only a small portion of the original common plan of development remains undeveloped and there has been a period of time where there is no ongoing construction activities (i.e., all areas are either undisturbed or have been finally stabilized), you may re-evaluate your individual project based on the acreage remaining from the original "common plan." If less than five but more than one acre remains to build out the original "common plan" a permit may still be required, but you can treat your project as part of a "small" construction activity and may be eligible for the waivers available for small construction activities (e.g., one of six lots totaling 2 acres in a 50 acre subdivision can be treated as part of a 2 acre rather than 50 acre "common plan"). If less than one acre remains of the original common plan, your individual project may be treated as part of a less than one acre development and no permit would be required.
When Can You Consider Future Construction on a Property to be Part of a Separate Plan of Development or Sale? After the initial "common plan" construction activity is completed for a particular parcel, any subsequent development or redevelopment of that parcel would be regarded as a new plan of development. For example, after a house is built and occupied, any future construction on that lot (e.g., reconstructing after fire, adding a pool or parking area for a boat, etc.), would stand alone as a new "common plan" for purposes of calculating acreage disturbed to determine if a permit was required. This would also apply to similar situations at an industrial facility, such as adding new buildings, a pipeline, new wastewater treatment facility, etc. that was not part of the original plan.
What if the Extent of the Common Plan of Development or Sale is Contingent on Future Activities?
EPA recognizes that there are situations where you will not know up front exactly how many acres will be disturbed, or whether some activities will even occur with certainty. If you are not sure exactly how many acres will be disturbed, you should make the best estimate possible and may wish to overestimate to ensure you do not run into the situation where you should have a permit, but don't. For example, if you originally estimated less that 5 acres would actually be disturbed and took advantage of the "R" Factor waiver, but you actually disturbed 5.5 acres, you would lose your waiver and may have to go through the permit process mid-stream. This could result in delays in obtaining permit authorization and costs associated with contract changes to implement permit requirements - in addition to being liable for any unpermitted discharges. If you have a long range master plan of development where some portions of the master plan are a conceptual rather than a specific plan of future development and the future construction activities would, if they occur at all, happen over an extended time period, you may consider the "conceptional" phases of development to be separate "common plans" provided the periods of construction for the physically interconnected phases will not overlap. For example, a university or an airport may have a long-range development concept for their property, with future development based largely on future needs and availability of funding. A school district could buy more land than needed for a high school with an indefinite plan to add more classrooms and a sports facility some day. An oil and gas exploration and production company could have a broad plan to develop wells within a lease or production area, but decisions on how many wells would be drilled within what time frame and which wells would be tied to a pipeline would be largely driven by current market conditions and which, if any, wells proved to be commercially viable.
What if the "Common Plan of Development or Sale" Actually Consists of Non-Contiguous Separate Projects?
There are several situations where discrete projects that could conceivably be considered part of a larger "common plan" can actually be treated as separate projects for the purposes of permitting:
What Do You Need to Do to Apply for Permit Coverage?
First - you will need a copy of the permit language to determine if you are eligible for the permit. The text of the permit explains, for example, what must be included in your pollution prevention plan and what you need to do in order to comply with the permit. Second - you need to determine if you are eligible to use the permit. You will need to document how you determined your eligibility with regards to protection of endangered species, total maximum daily loads, etc. Third - you will need to prepare your Stormwater Pollution Prevention Plan. You will also need to include a copy of the permit language and documentation on your eligibility determination(s) in your Plan. Fourth - you will need to fill out the NOI form and submit it to EPA at least seven days before you start construction (so you can be covered in the event it rains the day you break ground).
What are My Options For Meeting the "Final Stabilization" Criteria?
In most cases, you can terminate permit coverage as soon as the portion(s) of the project for which you are an operator are finally stabilized. A definition of "Final Stabilization" is in the permit and is required only of areas that are not otherwise covered by some sort of structure. For the purpose of these discussions, "structure" is used not only in the more traditional sense of "buildings," but to refer also to other things built on the ground whose intended purpose would require it to remain in a non-vegetated condition after construction has ended. Examples of "structures" include: buildings; parking lots; roads; gravel equipment pads, sidewalks, runways, etc. All other disturbed areas must be finally stabilized by either vegetative or non-vegetative practices, except disturbed areas on lands that will be returned to an agricultural use such as cropland, rangeland, or silviculture need only be returned to the preexisting agricultural use condition (e.g., tilled land, grass rangeland, agricultural buffer strip, etc.) and where a residential homeowner has decided to install their lawn themselves, only temporary stabilization is required. Perennial vegetation could include grasses, ground covers, trees, shrubs, etc. Vegetative final stabilization only requires getting to 70 percent of the "natural" vegetative cover in that part of the country. If the natural cover is only 50 percent, you only have to get back to 35 percent cover (70 percent of 50 percent). Non-vegetative stabilization could include rip-rap, gravel, gabions, etc. Impervious cover such as concrete or asphalt should be avoided as a final stabilization technique. Long term semi-permanent erosion control practices combined with seeds that would establish vegetative stabilization (e.g., properly secured seed impregnated erosion control mats, etc.) could also be used as "final stabilization." To qualify as "long-term," the erosion control practice must be selected, designed, and installed so as to provide at least three years of erosion control. EPA believes where the environmental threat is low (i.e., in arid and semi-arid climes), "final stabilization" can also include techniques that employ re-vegetation combined with other stabilization measures. "Other stabilization measures" in this context include what are known as "temporary degradable rolled erosion control products," a.k.a., "erosion control blankets" (ECBs) along with an appropriate seed base. With proper selection (degradability, application, siting, etc), design, and installation, ECBs can be very effective in preventing the detachment and transportation of soil until they naturally degrade and vegetation has assumed this function. Therefore, upon proper selection, design, and installation of the combination ECB-seed technique in arid or semi-arid areas, a permittee can be considered to have achieved final stabilization and can terminate permit coverage. If longer than 3 years (i.e., three growing seasons) is required to establish the 70 percent of natural vegetative cover, this technique cannot be used or cited for fulfillment of permit termination requirements prior to actual establishment of vegetative cover.
What if the Operator(s) Changes Before the Project is Completed?
If operational control changes, the old operator submits a Notice of Termination (NOT) and the new operator submits a Notice of Intent (NOI) before taking over operational control. In many instances, operational control changes, but only for a portion of the site. In these instances, the new operator must: 1) submit an NOI because their site is part of a larger common plan; and 2) develop their own SWPPP or adopt the SWPPP of the previous owner if it's still applicable (revisions are likely to be necessary to update the explanations of the operators and BMPs - BMPs that were designed for site grading and utility installation for the overall project (e.g., perimeter controls) may not be adequate for the single "big box" or home site. In these instances, the new operator may not rely on another operator's BMPs (e.g., a sediment basin or inlet protection) that are not located on the new operator's property unless the new operator has an agreement with the other operator and has included the BMPs in the new/revised SWPPP.
What if Earth Disturbance is a Normal Part of the Post-Construction Use of the Site? The earth disturbing activity has to be part of a project to build, demolish, or replace a structure (e.g., building, road, pad, pipeline, transmission line, etc.) to trigger the need for permit coverage. Earth disturbance that is a normal part of the long-term use or maintenance of the property is not covered by the construction general permit. For example, re-grading a dirt road or cleaning out a roadside drainage ditch to maintain its "as built" state is road maintenance and not construction. Restoring the original well pad to work over an existing oil or gas well is operation of a well and not construction. Re-grading and re-graveling a gravel parking lot or equipment pad is site maintenance and not construction. Repaving is routine maintenance unless underlying and/or surrounding soil is cleared, graded, or excavated as part of the repaving operation. Where clearing, grading, or excavating (i.e., down to bare soils) takes place, permit coverage is required if more than one acre is disturbed. Reworking planters that are part of the landscaping at a building is landscape maintenance and not construction. Applying daily cover at a landfill is simply part of operating a landfill and not construction.
Does the term "Routine Maintenance" apply to all construction activity? Yes. The definition of small construction at 40 CFR 122.26(b)(15)(i) includes the phrase "Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility." EPA has revised the definition of "large construction" in this permit to include similar language. However, the term "routine maintenance" should not be confused with activities such as repairs, replacement, and other types of non-routine maintenance that are required to obtain permit coverage where more than one acre is disturbed.
How Many Notices of Intent (NOIs) Must I Submit? Where and When Are They Sent?
You only need to submit one NOI to cover all activities on any one common plan of development or sale. The site map you develop for the stormwater pollution prevention plan identifies which parts of the overall project are under your control. For example, if you are a homebuilder in a residential development, you need submit only one NOI to cover all your lots, even if they are on opposite sides of the development. A complete NOI must be sent at least seven days before work begins on-site. The address for submitting NOIs is found in Part 2 of the CGP. You must also look in Part 9 of the permit to determine if copies of the NOI form must be sent to a State or Indian Tribe.
Do I Have Flexibility in Preparing the Stormwater Pollution Prevention Plan (SWPPP) and Selecting Best Management Practices (BMPs) For My Site?
Stormwater pollution prevention plan requirements were designed to allow maximum flexibility to develop the needed stormwater controls based on the specifics of the site. Some of the factors you might consider include: more stringent local development requirements and/or building codes; precipitation patterns for the area at the time the project will be underway; soil types; slopes; layout of structures for the site; sensitivity of nearby water bodies; safety concerns of the stormwater controls (e.g., potential hazards of water in stormwater retention ponds to the safety of children; the potential of drawing birds to retention ponds and the hazards they pose to aircraft); and coordination with other site operators. The approach and BMPs used for controlling pollutants in stormwater discharges from small construction sites may vary from those used for large sites since their characteristics can differ in many ways. Operators of small sites may have more limited access to qualified design personnel and technical information. Sites may also have less space for installing and maintaining certain BMPs. A number of structural BMPs (mulching, use of inlet protection, or silt fence) and non-structural BMPs (minimizing disturbance, good housekeeping) have been shown to be efficient, cost effective, and versatile for small construction site operators to implement. As is the case with large construction sites, erosion and sediment control at small construction sites is best accomplished with proper planning, installation, and maintenance of controls.
Must Every Permittee Have His or Her Own Separate SWPPP or is a Joint Plan Allowed? The only requirement is that there be at least one SWPPP for a site that incorporates the required elements for all operators, but there can be separate plans if individual permittees so desire. EPA encourages permittees to explore possible cost savings by having a joint SWPPP for several operators. For example, the prime developer could assume the inspection responsibilities for the entire site, while each homebuilder shares in the installation and maintenance of sediment traps serving common areas.
If a Project Will Not Be Completed Before This Permit Expires, How Can I Keep Permit Coverage?
If the permit is reissued or replaced with a new one before the current one expires, you will need to comply with the new permit conditions in order to transition coverage from the old permit. This may include submitting a new NOI. If the permit expires before a replacement permit can be issued, the permit will be administratively "continued." You are automatically covered under the continued permit, without needing to submit anything to EPA, until the earliest of: 1. The permit being reissued or replaced; 2. Submittal of a Notice of Termination (NOT); 3. Issuance of an individual permit for your activity; or 4. EPA issues a formal decision not to reissue the permit, at which time you must seek coverage under an alternative permit.
When Can I Terminate Permit Coverage? Can I Terminate Coverage (i.e., Liability for Permit Compliance) Before the Entire Project is Finished? You can submit an NOT for your portion of a site providing: (1) You have achieved final stabilization (e.g., 70 percent revegetation) of the portion of the site for which you are a permittee (including, if applicable, returning agricultural land to its pre-construction agricultural use); (2) another operator/permittee has assumed control according to Subpart 5.1.B of the permit over all areas of the site that have not been finally stabilized for which you are responsible (for example, a developer can pass permit responsibility for lots in a subdivision to the homebuilder who purchases those lots, providing the homebuilder has filed his or her own NOI); (3) coverage under an alternative NPDES permit has been obtained for the discharge; or (4) for residential construction only, you have completed temporary stabilization and the residence has been transferred to the homeowner.
Is coverage required for oil and gas construction?
EPA received numerous comments concerning the applicability of the construction permit requirements, which were modeled after residential and commercial construction, to oil and gas construction. The oil and gas industry noted that a residential or commercial project typically has a definite plan of development that involves a planning phase, a construction phase and termination of the construction, while an oil and gas construction project, on the other hand, is typically on a very tight schedule and moves very quickly from planning to construction because both the access to mineral rights and the availability of drilling rigs are on schedules. EPA believes sediment from oil and gas sites can be a problem, but realizes that this type of construction may require different controls than residential and commercial construction. EPA has postponed the permit application deadline for oil and gas construction activity disturbing 1 to 5 acres from March 10, 2003 until March 10, 2005. See 68 Federal Register 11325. The two-year postponement will allow for time for EPA to analyze and better evaluate: the impact of the permit requirements on the oil and gas industry; the appropriate best management practices for preventing contamination of stormwater runoff resulting from construction association with oil and gas exploration, production, processing, or treatment operations or transmission facilities; and the scope and effect of 33 U.S.C. 1342(l)(2) and other stormwater provisions of the CWA. The two-year postponement is only for "small" construction. Large construction has been regulated as an industrial activity under CWA section 402(p)(6) since promulgation of the Phase I stormwater rule. Large construction activity was covered under the 1998 CGP and must now obtain permit coverage under the 2003 CGP.
Do I need to have coverage under the Multi-Sector General Permit (MSGP) and the Construction Geneeral Permit (CGP) for mining activity? Coverage under the CGP is required for the construction or exploration phase, and coverage under the MSGP is required for the active mining phase. This is due to EPA's concern that the initial clearing, grading, or excavation on a site could escape permit coverage under the MSGP for mining activities (e.g., Sector G -Metal Mining) despite the significant pollutant discharges that may nevertheless result. Members of the mining industry have requested to be covered by only one permit for any and all earth disturbances. To allow this, EPA may need to modify the MSGP. As part of the next MSGP reissuance, EPA will reconsider the effectiveness and justification for addressing different mining phases in two different permits, including whether all mining and mining-related activities (from exploration and construction to reclamation) should be placed back into the MSGP only. At present, however, discharges relating to the exploration and construction phases of mining operations must be covered by the CGP, while discharges from active mining activities must be covered under the MSGP.
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