Pollution Discharge Permitting: Planning Impacts

In the closing months of 1992, the Environmental Protection Agency mandated that all states enforce the National Pollutant Discharge Elimination System (NPDES), including the preparation of Storm Water Pollution Prevention Plans. 

The NPDES permitting process will have many implications for professionals associated with the development industry. As of October 1, 1992, new NPDES guidelines stipulate that urban runoff, including new construction sites as well as existing industrial facilities, be treated before entering the nation’s waters. 

The cost of complying with these measures, including the creation of pollution control plans, is not known at this time but is expected to be considerable when one examines the large scale of what the program attempts to accomplish. 

Background

In 1972, the Clean Water Act was passed by Congress to prohibit the discharge of any pollutants to waters of the United States from industrial process waters and municipal sewage treatment facilities, unless the discharge is permitted through the National Pollutant Discharge Elimination System. These discharges were targeted for regulation because they were easily identifiable and were known to be causing water quality problems. 

As an increasing number of industrial and municipal discharges were brought under regulation and treated to finer levels, it became apparent that more diffuse sources like storm water and low flow discharges of urban and agricultural runoff were also major contributors to the deterioration of the nation’s water quality. In 1983, the Environmental Protection Agency (EPA) completed a five-year study, establishing the need and basis for the control of storm water and urban runoff.

The 1987 amendments to the Clean Water Act established a framework for regulating municipal and industrial storm water discharges under the NPDES permit. In 1990, the EPA issued final regulations governing storm water discharges. The final regulations require municipalities with populations over 100,000 to obtain NPDES permits for separate storm water systems.

Construction projects of five acres or more are also required to file a NPDES permit. In a recent federal court ruling, the court invalidated the exemption granted by the EPA for discharges of storm water from construction activity less than five acres but remanded the regulation to the EPA for further action. The State Water Board, at this time, is not requiring NPDES permits for construction activity of less than five acres. 

California NPDES Program 

Federal regulations allow the following two permitting options for construction activity: individual permits and general permits. California has been authorized by the EPA to issue a general permit for all construction activity, except from those on Indian lands and the Lake Tahoe Hydroelectric Unit. This general permit will be implemented by the nine California Regional Water Quality Control Boards. 

By consolidating many construction activities under one general permit, the administrative burden associated with storm water discharges will be greatly reduced. It is expected that as the storm water program develops, the Regional Water Boards may begin to issue general permits or individual project permits containing more specific provisions. If this occurs, the discharges will no longer be regulated by the State’s general permit. 

Industrial Permits 

Any facility which discharges industrial storm water either directly to surface waters or indirectly, through municipal storm sewers, must be covered by a permit. The California State Water Board has issued an industrial general permit that applies to all discharges from existing industrial sites, such as factories, equipment storage yards, airports, etc.

To obtain authorization for future and continued industrial storm water discharge, owners or operators of the facility must submit a Notice of Intent (NOI) to the Regional Water Control Board. Many operators will be able to obtain permit coverage by simply submitting the NOI asking to be covered by the preexisting statewide or regional general permit. 

After submitting an NOI, industries are then required to develop a Storm Water Pollution Prevention Plan (SWPPP) and a monitoring program for storm water discharges.

Construction Permits 

Any construction activity that affects five acres or more of total land area will require an NPDES storm water permit. Also, construction on sites of less than five acres will require a permit if they are part of a larger common development or sale. For purposes of this permit, construction activity includes clearing, grading, or excavation activities. 

Developers of affected construction sites will be able to obtain permit coverage in one of two ways. First, the developer may be able to apply for coverage under an existing general permit. In order to be covered by the general permit, the developer of the project must file an NOI to the local Regional Water Control Board. 

In the absence of an applicable general permit, the developer must apply for an individual project NPDES permit. Individual permits are obtained by submitting an application to the appropriate permitting agency, most often the local Regional Water Control Board. Individual permits are much more time consuming and costly to developers and in many cases, local Regional Water Control Boards will not issue them. 

Once an NPDES permit has been granted, the developer must prepare, retain at the construction site, and implement a Storm Water Pollution Prevention Plan. The SWPPP has two main objectives: 1) to identify the source of sediment and other pollutants that affect the quality of storm water discharges and; 2) to describe and ensure the implementation of practices to reduce sediment and other pollutants in storm water discharge. 

The second major component of compliance with the NPDES permit is the development and implementation of a monitoring program. Dischargers must inspect construction sites prior to and immediately after storms to evaluate whether measures to reduce pollutant discharge identified in the SWPPP are adequate. Each discharger must certify annually that its construction activity is in full compliance with the NPDES permit and the site’s SWPPP. 

At this time, the granting of the NPDES permit is not a problem; however, it has not been established how long a developer or owner is responsible for maintaining an active pollution prevention plan. 

Summary

For planners, developers, land use attorneys and other professionals associated with the real estate industry, the development of Storm Water Pollution Prevention Plans and the follow-up monitoring programs will be the most challenging aspects of complying with the NPDES permitting process. Not only will these prevention plans add considerable cost to large development projects, but they will also add a substantial burden to local governments, who will have to review these documents and ensure that the applicant is in full compliance. It is unknown at this time whether these prevention plans may be incorporated into mitigation monitoring plans for EIRs.

Both the prevention plans and the monitoring plans will also open the door to further litigation. Developers and cities alike will now be exposed to suits claiming that the plans were not followed or that one or both parties were negligent in complying with the provisions set forth in the NPDES permit 

By preparing detailed and thorough SWPPP's and monitoring plans for both private and public sector projects, the threat of legal actions by opponents will be minimized. To ensure compliance and avoid construction delays, the engineering, permitting and processing work for NPDES permits should be carefully considered.