• NYS Department of Environmental Conservation SPDES General Permit for Stormwater Discharges from Construction Activities draft now available
  • November 6, 2007 | Author: Ruth E. Leistensnider
  • Law Firms: Nixon Peabody LLP - Albany Office ; Nixon Peabody LLP - New York Office
  • Brief Summary: On October 10, 2007, the New York State Department of Environmental Conservation (NYSDEC) made available for public review the draft SPDES General Permit for Stormwater Discharges from Construction Activity (GP-0-08-001) (draft Stormwater Construction Permit). The permit will be effective on January 8, 2008. This permit replaces the SPDES General Permit for Stormwater Discharges from Construction Activity (GP-02-01). A copy of the draft permit can be found at:
    http://www.dec.ny.gov/docs/water_pdf/gpcondraft08.pdf.

    In New York, stormwater discharges from construction activities where one acre or more of land is disturbed are unlawful unless they are authorized by a New York State Pollution Discharge Elimination System (SPDES) permit issued in accordance with the Environmental Conservation Law. An owner or operator of a construction activity must obtain either an individual SPDES permit or a SPDES General Permit for Stormwater Discharges from Construction Activity before the commencement of construction activity. Once finalized, the draft Stormwater Construction Permit will be a five-year permit that covers discharges of stormwater to surface waters of the state from construction activities.

    Both general and individual SPDES permits address discharges in receiving waters that have reasonable potential to cause or contribute to a violation of water quality standards. The draft Stormwater Construction Permit proposes enhanced pollution controls in specified watersheds, where stormwater discharges have been identified as having reasonable potential to cause or contribute to a violation of water quality standards. If these controls are found to be ineffective in preventing and eliminating water quality excursions, further enhanced controls will be required.

    There are three major changes in this draft general permit, compared to the current 2001 New York Stormwater Construction Permit. The first major change involves construction activities in the “East of Hudson” watershed, which makes up much of the New York City drinking water supply’s watershed. Because stormwater has been found to have reasonable potential to cause or contribute to a violation of water quality standards in this watershed, the minimum size of land disturbance triggering the need for permit coverage in this watershed is being reduced from one acre to 5,000 square feet (0.11 acre). Owners or operators of the construction activities within this watershed will be required to obtain permit coverage under the construction permit before commencing construction activity. However, projects disturbing an area of up to one acre in size in this watershed will typically only have to develop a stormwater prevention plan (SWPPP) that includes erosion and sediment controls, and will not have to meet the post-construction water quality management requirements.

    The second major change involves construction projects in the East of Hudson, Onondaga Lake, and Greenwood Lake watersheds, where runoff from construction sites has been identified as contributing to a phosphorous-related water quality problem. Owners or operators of covered construction activities are required, under the draft Stormwater Construction Permit, to prepare a SWPPP that includes post-construction stormwater management practices designed in conformance with the most current version of the Enhanced Phosphorous Removal Design Criteria (or its successor) included in the New York State Stormwater Management Design Manual (which is available on the NYSDEC website).

    The third major change involves construction activities that are tributary to waters of the state classified as AA and AA-s (a map of these waters is included in the draft permit) that will disturb land areas with very steep slopes that have been mapped on the USDA Soil Survey for the County where the project is located. After specified dates, construction activities on these sites will be ineligible for coverage under the state’s General Stormwater Construction Permit. Instead, these projects will have to have individual SPDES permits. Application for individual permits have to be filed at least 180 days before the anticipated first discharge.

    Other significant changes in the draft Stormwater Construction Permit include:

    • An owner or operator with coverage under the current General Stormwater Permit on the effective date of the updated Stormwater Construction Permit will be automatically permitted to discharge in accordance with the updated permit unless otherwise notified by the NYSDEC. These owners or operators may continue to implement the technical/design components of their existing SWPPPs; however, they will be subject to the other requirements of the updated Stormwater Construction Permit.
    • Under the draft Stormwater Construction Permit, a qualified inspector shall conduct at least one inspection every 14 calendar days and within 24 hours of the end of a storm event in which 0.5 inches or more of rain (or equivalent snow) fell. For construction sites where active construction has been suspended, the inspection frequency can be reduced to once every 30 days, provided temporary stabilization measures have been applied to disturbed areas.

    Written comments on the draft general permit must be submitted to the NYSDEC contact listed in the DEC Public Notice (http://www.dec.ny.gov/enb/20071010_not0.html) by close of business December 10, 2007. The permit is expected to be finalized and go into effect on January 8, 2008.

    How to use this news: Owners and operators of ongoing or planned New York construction activities should evaluate the terms of the draft Stormwater Construction Permit and submit comments to the NYSDEC before the close of business on December 10, 2007.  Owners and operators of a construction activity that is regulated through traditional land use controls identified within its municipality’s Municipal Separate Storm Sewer System Permit (MS4) should have time built into construction schedules for the review of its SWPPP’s.  SWPPP’s must be reviewed and accepted by the MS4 before submitting the Notice of Intent (NOI) to the NYSDEC.  For these projects, a principal executive officer, ranking elected official, or duly authorized representative of the MS4 must sign an MS4 SWPPP acceptance form.  That form must be submitted, along with the NOI, to the NYSDEC.

    Owners or operators who have construction activities underway that will extend beyond January 8, 2008, and beyond should evaluate whether the activities will need to be covered by the final version of this Stormwater Construction Permit. If so, they should make certain that they obtain the requisite permit coverage and, for activities that aren’t covered by the current Stormwater Construction Permit, make sure a timely NOI is filed and that their SWPPPs comply with the updated permit by January 8, 2008. Those whose construction sites lie within the boundary of an MS4 (as listed in the draft permit) will also need to have the MS4 approve and sign off on the SWPPP before the NOI is submitted. In addition, inspectors should receive the appropriate training so they will be deemed to be “qualified” to do the mandated inspections under the draft Stormwater Construction Permit.