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Storm Water Pollution

What types of construction activities require a storm water permit?
Who is covered under the Phase I Rule?
What is meant by a "Larger Common Plan of Development or Sale"?
What is the definition of an "Operator" of a construction site?
How is the Phase II Construction Rule related to the Phase I Construction Rule?
Who is covered under the Phase II Construction Rule?
Are waivers available for operators of regulated construction activity?

Question: What types of construction activities require a storm water permit? TOP

Answer: Under the National Pollution Discharge Elimination System and the Texas Pollution Discharge Elimination System, large construction activities, and soon small construction activities, require a storm water permit.

Large construction activities are those that disturb five or more acres of land, or disturb less than five acres of land but are part of a larger common plan of development. This category of construction activity is included in the definition of "storm water discharge associated with industrial activity" [found in the Code of Federal Regulations (CFR), Part 40, Section 122.26(b)(14)(x). The program developed by EPA to control storm water discharges from such construction sites is commonly known as Phase 1 of the NPDES Storm Water Program.

Question: Who is covered under the Phase I Rule? TOP

Answer:

Sites Five Acres and Greater
The Phase I NPDES storm water rule identifies eleven categories of industrial activity in the definition of "storm water discharges associated with industrial activity" that must obtain an NPDES permit. Category (x) of this definition is construction activity, commonly referred to as "large" construction activity. Under category (x), the Phase I rule requires all operators of construction activity disturbing 5 acres or greater of land to apply for an NPDES storm water permit. Operators of sites disturbing less than 5 acres are also required to obtain a permit if their activity is part of a "larger common plan of development or sale" with a planned disturbance of 5 acres or greater. "Disturbance" refers to exposed soil resulting from activities such as clearing, grading, and excavating. Construction activites can include road building, construction of residential houses, office buildings, industrial sites, or demolition.

Question: What is meant by a "Larger Common Plan of Development or Sale"? TOP

Answer: As defined in EPA's NPDES storm water general permit for large construction activity, a "larger common plan of development or sale" means a contiguous area where multiple separate and distinct construction activities are occurring under one plan (e.g., the operator is building on three half-acre lots in a 6-acre development). The "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 that construction activities may occur on a specific plot.

Question: What is the definition of an "Operator" of a construction site? TOP

Answer: As defined in EPA's storm water general permit for large construction activity, an "operator" is the party or parties that has:

• Operational control of construction project plans and specifications to those plans and specifications, including the ability to make modifications to those plans and specifications; or
  

• Day-to-day operational control of those activities that are necessary to ensure compliance with a storm water pollution prevention plan (SWPPP) for the site or other permit conditions(e.g., they are authorized to direct workers at a site to carry out activities required by the SWPPP or comply with other permit conditions).

There may be more than one party at a site performing the tasks related to "operational control" as defined above. Depending on the site and the relationship between the parties (e.g., owner, developer, contractor), there can either be a single party acting as site operator and consequently be responsible for obtaining permit coverage, or there can be two or more operators, all obligated to seek permit coverage. It is important to note that NPDES- authorized States may use a different definition of "operator" than the one above.

Question: How is the Phase II Construction Rule Related to the Phase I Construction Rule? TOP

Answer: In 1992, the Ninth Circuit court remanded for further proceedings portions of EPA's existing Phase I storm water regulation related to the category (x) discharges from large construction activity (NRDC v. EPA, 966 F.2d at 1292). EPA responded to the court's decision by designating under Phase II storm water discharges from construction activity disturbing less than 5 acres as sources that should be regulated to protect water quality. The Phase II Rule designates these sources as "storm water discharges associated with small construction  activity," rather than as another category under "storm water associated with industrial  activity.

Question: Who is covered under the Phase II Construction Rule? TOP

Answer:

Sites Between One and Five Acres.
The Storm Water Phase II Rule automatically designates, as small construction activity under the NPDES storm water permitting program, all operators of construction site activities that result in a land disturbance of equal to or greater than 1 and less than 5 acres.

Sites Less Than One Acre
Site activities disturbing less than 1 acre are also regulated as small construction activity if they are part of a larger common plan of development or sale with a planned disturbance of equal to or greater than 1 acre and less than 5 acres, or if they are designated by the NPDES permitting authority. The NPDES permitting authority or EPA Region may designate construction activities disturbing less than 1 acre based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to waters of the United States.

Question: Are waivers available for operators of regulated construction activity? TOP

Answer: Yes, but only for small, not large, construction activity. Under the Phase II Rule, NPDES permitting authorities have the option of providing a waiver from the requirements to operators of small construction activity who certify to either one of two conditions:

1. Low predicted rainfall potential (i.e., activity occurs during a negligible rainfall period), where the rainfall erosivity factor ("R" in the Revised Universal Soil Loss Equation [RUSLE]) is less than 5 during the period of construction activity; or
   

2. A determination that storm water controls are not necessary based on either:
   

• A "total maximum daily load" (TMDL) that address the pollutant(s) of concern for construction activities; OR
  

• An equivalent analysis that determines allocations are not needed to protect water quality based on consideration of instream concentrations, expected growth in pollutant concentrations from all sources, and a margin of safety.

The intent of the waiver provision is to waive only those sites that are highly unlikely to have a negative effect on water quality. Therefore, before applying for a waiver, operators of small construction activity are encouraged to consider the potential water quality impacts that may result from their project and to carefully examine such factors as proximity to water resources and sensitivity of receiving waters.