On February 17, 2022, the 2022 Construction General Permit (CGP) will take effect and replace the 2017 CGP. The CGP is a federal permit under the Clean Water Act (CWA) and the National Pollutant Discharge Elimination System (NPDES) that authorizes “stormwater discharges associated with construction activity.” These are defined as:
[A] discharge of pollutants in stormwater to waters of the United States from areas where earth disturbing activities (e.g., clearing, grubbing, grading, or excavation) occur, or where construction materials or equipment storage or maintenance (e.g., fill piles, borrow area, concrete truck chute washdown, fueling), or other industrial stormwater directly related to the construction process (e.g., concrete or asphalt batch plants), are located.
Only those sites which discharge to “waters of the United States” fall within CWA jurisdiction and require a permit.[1]
The CGP applies to the “operator” of a construction site whose construction activities will disturb one acre or more of land (or less than one acre if part of a common development that will disturb one or more acres) in Massachusetts, where the United States Environmental Protection Agency (EPA) is the NPDES permitting authority. The CGP defines an operator as:
1. The party [that] has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications (e.g. in most cases this is the owner of the site); or
2. The party [that] has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit; in most cases this is the general contractor of the project).
The 2022 CGP provides permit coverage for five years. Operators must also certify to meeting certain eligibility criteria demonstrating that activities in the “action area” of their projects will not adversely affect any federally-listed endangered or threatened species or critical habitat. The action area includes all areas affected directly or indirectly by the construction activity and not merely the immediate area of the construction site.
The changes from the 2017 CGP are minimal and consist mainly of clarifications and additional specificity to certain permit requirements. The 2022 CGP Fact Sheet summarizes these changes in a chart at page 12. The EPA has also provided a redline of the changes. The key requirements of the CGP remain the same, however. These are, according to the EPA:
- Develop a Stormwater Pollution Prevention Plan (SWPPP) and keep it up to date.
- Complete and submit a Notice of Intent (NOI) to EPA via the NPDES eReporting Tool (NeT).
- Implement erosion and sediment controls and pollution prevention practices throughout the entire construction project.
- Conduct required inspections to verify compliance with permit. Inspections may only be conducted by a qualified person who has either: (1) completed the EPA construction inspection course and passed the exam, or (2) holds a current construction inspection certification or license from a program that covers the same core material as EPA’s inspection course.
- Conduct routine maintenance and take corrective action to fix problems with controls or discharges.
- Complete documentation of all site inspections, dewatering inspections, and corrective actions.
- Comply with turbidity monitoring requirements for dewatering discharges to sensitive waters (if applicable).
- Comply with any State, Tribal, or territory-specific requirements in Part 9 of the permit.
The EPA will host a webinar on February 24, 2022, at 1:00 p.m., to answer questions about the 2022 CGP.
For advice about how your activities may be impacted by the new CGP, please reach out to the attorneys at Mackie Shea Durning, P.C.
[1] “Waters of the United States” means the territorial seas, and waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including waters which are subject to the ebb and flow of the tide; tributaries; lakes and ponds, and impoundments of jurisdictional waters; and adjacent wetlands. See 40 C.F.R. § 120.2(1). The precise scope and extent of “WOTUS” has been ever-changing since the U.S. Supreme Court’s split-decision in Rapanos v. United States, 547 U.S. 715, in 2006.