The Nickel Report

Barack Obama was seven months into his first term as President of the United States, the World Health Organization had declared a H1N1 flu pandemic, and the California State Water Resources Control Board (State Board) adopted the current Construction General Permit for Stormwater Discharges (Permit or CGP).  It was September 2009.  Now, having administratively extended the Permit since 2014 when, by its terms, the Permit expired, the State Board may, under a schedule released late last year, soon release a new draft CGP for public comment, with a goal of adopting it late this summer.

As with the current permit, the proposed new CGP will regulate the discharge of pollutants from construction sites in California.  Specifically, it prohibits the discharge of pollutants from construction sites disturbing one acre or more of soil unless the owner/operator of the site (the “discharger”) has obtained coverage under, and complies with the terms of, the CGP.

As might be expected given the length of time the State Board has been working on it, as currently proposed, the new Permit will have some significant changes from the current permit.  Some of the more significant changes reflected in the preliminary staff draft include:

• Implementation of Total Maximum Daily Loads (TMDLs). TMDLs are regulatory tools providing the maximum amount of a pollutant from potential sources in a watershed that a water body can receive while attaining water quality standards.  Sixty-eight TMDLs are proposed for incorporation into the proposed Permit, addressing the discharge of sediment, metals/toxics, bacteria, and other pollutants.  Implementation requirements include numeric effluent limitations and numeric action levels.
• Implementation of Statewide Trash Policy Requirements. In 2015, in Resolution 2015-0019, the State Board established a statewide water quality objective and implementation plan to control trash.  The proposed new CGP implements this Resolution by prohibiting the discharge of any debris and/or trash from construction sites.
• Passive Treatment Technologies. The proposed Permit contains passive treatment provisions designed to provide the first set of regulations for construction activities use of passive treatment technologies and to align with the U.S. EPA’s construction general permit requirements for treatment chemicals.
• Ocean Plan / Areas of Special Biological Significance. The proposed Permit requires dischargers who discharge to Areas of Special Biological Significance who have been granted an exception to the Ocean Plan to comply with certain additional requirements.

Other proposed changes include a “notice of non-applicability” provision for construction sites situated in areas where there are stormwater discharges to waters that are not hydrologically connected to waters of the United States, and “notice of termination” requirements whereby dischargers must electronically certify and submit complete project-specific termination information and obtain approval from the relevant Regional Board prior to ending permit coverage.

The State Board circulated the preliminary staff draft late last year.  State Board staff have held focused stakeholder meetings in early 2021 and anticipate the formal public comment process beginning in spring 2021.  Additional information on the proposed new Permit may be found at the State Board’s web site  here.

[1] Dischargers in other parts of the Country may want to follow the development of U.S. EPA’s new Construction General Permit; the current EPA CGP terminates in February 2022.  See here.