Construction Activities

General Permit Approach: Construction Activities

A. A general permit for construction activities is an appropriate permitting approach for the following reasons:

1. A general permit is an efficient method to establish the essential regulatory requirements for a broad range of construction activities under differing site conditions;
2. A general permit is the most efficient method to handle the large number of construction storm water permit applications;
3. The application process for coverage under a general permit is far less onerous than that for individual permit and hence more cost effective;
4. A general permit is consistent with USEPA's four-tier permitting strategy, the purpose of which is to use the flexibility provided by the CWA in designing a workable and efficient permitting system; and
5. A general permit is designed to provide coverage for a group of related facilities or operations of a specific industry type or group of industries. It is appropriate when the discharge characteristics are sufficiently similar, and a standard set of permit requirements can effectively provide environmental protection and comply with water quality standards for discharges. In most cases, the general permit will provide sufficient and appropriate management requirements to protect the quality of receiving waters from discharges of storm water from construction sites.

There may be instances where a general permit is not appropriate for a specific construction project. A Regional Water Board may require any discharger otherwise covered under the General Permit to apply for and obtain an Individual Permit or apply for coverage under a more specific General Permit. The Regional Water Board must determine that this General Permit does not provide adequate assurance that water quality will be protected, or that there is a site-specific reason why an individual permit should be required.

B. Construction Activities Covered

1. Construction activity subject to this General Permit:

• Any construction or demolition activity, including, but not limited to, clearing, grading, grubbing, or excavation, or any other activity that results in a land disturbance of equal to or greater than one acre. 
• Construction activity that results in land surface disturbances of less than one acre if the construction activity is part of a larger common plan of development or sale of one or more acres of disturbed land surface.
• Construction activity related to residential, commercial, or industrial development on lands currently used for agriculture including, but not limited to, the construction of buildings related to agriculture that are considered industrial pursuant to USEPA regulations, such as dairy barns or food processing facilities.
• Construction activity associated with LUPs including, but not limited to, those activities necessary for the installation of underground and overhead linear facilities (e.g., conduits, substructures, pipelines, towers, poles, cables, wires, connectors, switching, regulating and transforming equipment and associated ancillary facilities) and include, but are not limited to, underground utility mark-out, potholing, concrete and asphalt cutting and removal, trenching, excavation, boring and drilling, access road and pole/tower pad and cable/wire pull station, substation construction, substructure installation, construction of tower footings and/or foundations, pole and tower installations, pipeline installations, welding, concrete and/or pavement repair or replacement, and stockpile/borrow locations.
• Discharges of sediment from construction activities associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities.
• Storm water discharges from dredge spoil placement that occur outside of U.S. Army Corps of Engineers jurisdiction (upland sites) and that disturb one or more acres of land surface from construction activity are covered by this General Permit. Construction projects that intend to disturb one or more acres of land within the jurisdictional boundaries of a CWA § 404 permit should contact the appropriate Regional Water Board to determine whether this permit applies to the project.

2. Linear Underground/Overhead Projects (LUPs) subject to this General Permit:

• Underground/overhead facilities typically constructed as LUPs include, but are not limited to, any conveyance, pipe, or pipeline for the transportation of any gaseous, liquid (including water, wastewater for domestic municipal services), liquescent, or slurry substance; any cable line or wire for the transmission of electrical energy; any cable line or wire for communications (e.g., telephone, telegraph, radio or television messages); and associated ancillary facilities. Construction activities associated with LUPs include, but are not limited to, those activities necessary for the installation of underground and overhead linear facilities (e.g., conduits, substructures, pipelines, towers, poles, cables, wires, connectors, switching, regulating and transforming equipment and associated ancillary facilities) and include, but are not limited to, underground utility mark-out, potholing, concrete and asphalt cutting and removal, trenching, excavation, boring and drilling, access road and pole/tower pad and cable/wire pull station, substation construction, substructure installation, construction of tower footings and/or foundations, pole and tower installations, pipeline installations, welding, concrete and/or pavement repair or replacement, and stockpile/borrow locations.
• Water Quality Order 2003-0007-DWQ regulated construction activities associated with small LUPs that resulted in land disturbances greater than one acre, but less than five acres. These projects were considered non-traditional construction projects. Attachment A of this Order now regulates all construction activities from LUPs resulting in land disturbances greater than one acre.

 3. Common Plan of Development or Sale

• USEPA regulations include the term “common plan of development or sale” to ensure that acreage within a common project does not artificially escape the permit requirements because construction activities are phased, split among smaller parcels, or completed by different owners/developers. In the absence of an exact definition of “common plan of development or sale,” the State Water Board is required to exercise its regulatory discretion in providing a common sense interpretation of the term as it applies to construction projects and permit coverage. An overbroad interpretation of the term would render meaningless the clear “one acre” federal permitting threshold and would potentially trigger permitting of almost any construction activity that occurs within an area that had previously received area-wide utility or road improvements.
• Construction projects generally receive grading and/or building permits (Local Permits) from local authorities prior to initiating construction activity. These Local Permits spell out the scope of the project, the parcels involved, the type of construction approved, etc. Referring to the Local Permit helps define “common plan of development or sale.” In cases such as tract home development, a Local Permit will include all phases of the construction project including rough grading, utility and road installation, and vertical construction. All construction activities approved in the Local Permit are part of the common plan and must remain under the General Permit until construction is completed. For custom home construction, Local Permits typically only approve vertical construction as the rough grading, utilities, and road improvements were already independently completed under a previous Local Permit. In the case of a custom home site, the homeowner must submit plans and obtain a distinct and separate Local Permit from the local authority in order to proceed. It is not the intent of the State Water Board to require permitting for an individual homeowner building a custom home on a private lot of less than one acre if it is subject to a separate Local Permit. Similarly, the installation of a swimming pool, deck, or landscaping that disturbs less than one acre that was not part of any previous Local Permit are not required to be permitted.
• The following are several examples of construction activity of less than one acre that would require permit coverage:

a. A landowner receives a building permit(s) to build tract homes on a 100-acre site split into 200 one-third acre parcels, (the remaining acreage consists of streets and parkways) which are sold to individual homeowners as they are completed. The landowner completes and sells all the parcels except for two. Although the remaining two parcels combined are less than one acre, the landowner must continue permit coverage for the two parcels.

b. One of the parcels discussed above is sold to another owner who intends to complete the construction as already approved in the Local Permit. The new landowner must file Permit Registration Documents (PRDs) to complete the construction even if the new landowner is required to obtain a separate Local Permit.

c. Landowner in (1) above purchases 50 additional one half-acre parcels adjacent to the original 200-acre project. The landowner seeks a Local Permit (or amendment to existing Local permit) to build on 20 parcels while leaving the remaining 30 parcels for future development. The landowner must amend PRDs to include the 20 parcels 14 days prior to commencement of construction activity on those parcels. 

C. Construction Activities Not Covered

1. Traditional Construction Projects Not Covered. This General Permit does not apply to the following construction activity:

1. Routine maintenance to maintain original line and grade, hydraulic capacity, or original purpose of the facility. 
2. Disturbances to land surfaces solely related to agricultural operations such as disking, harrowing, terracing and leveling, and soil preparation.
3. Discharges of storm water from areas on tribal lands; construction on tribal lands is regulated by a federal permit.
4. Discharges of storm water within the Lake Tahoe Hydrologic Unit. The Lahontan Regional Water Board has adopted its own permit to regulate storm water discharges from construction activity in the Lake Tahoe Hydrologic Unit (Regional Water Board 6SLT). Owners of construction projects in this watershed must apply for the Lahontan Regional Water Board permit rather than the statewide Construction General Permit. Construction projects within the Lahontan region must also comply with the Lahontan Region Project Guideline for Erosion Control (R6T-2005-0007 Section), which can be found at http://www.waterboards.ca.gov/lahontan/Adopted_Orders/2005/r6t_2005_0007.pdf
5. Construction activity that disturbs less than one acre of land surface, unless part of a larger common plan of development or the sale of one or more acres of disturbed land surface.
6. Construction activity covered by an individual NPDES Permit for storm water discharges. 
7. Landfill construction activity that is subject to the Industrial General Permit.
8. Construction activity that discharges to Combined Sewer Systems.
9. Conveyances that discharge storm water runoff combined with municipal sewage.
10. Discharges of storm water identified in CWA § 402(l)(2), 33 U.S.C. § 1342(l)(2)

2. Linear Projects Not Covered

1. LUP construction activity does not include linear routine maintenance projects. Routine maintenance projects are projects associated with operations and maintenance activities that are conducted on existing lines and facilities and within existing right-of-way, easements, franchise agreements, or other legally binding agreements of the discharger. Routine maintenance projects include, but are not limited to projects that are conducted to:
   1. Maintain the original purpose of the facility or hydraulic capacity.
   2. Update existing lines and facilities to comply with applicable codes, standards, and   regulations regardless if such projects result in increased capacity.
   3. Repairing leaks.

Routine maintenance does not include construction of new lines or facilities resulting from compliance with applicable codes, standards, and regulations.

Routine maintenance projects do not include those areas of maintenance projects that are outside of an existing right-of-way, franchise, easements, or agreements. When a project must secure new areas, those areas may be subject to this General Permit based on the area of disturbed land outside the original right-of-way, easement, or agreement.

b. LUP construction activity does not include field activities associated with the planning and design of a project (e.g., activities associated with route selection).

c. Tie-ins conducted immediately adjacent to “energized” or “pressurized” facilities by the discharger are not considered construction activities where all other LUP construction activities associated with the tie-in are covered by an NOI and SWPPP of a third party or municipal agency.

3. EPA’s Small Construction Rainfall Erosivity Waiver

EPA’s Storm Water Phase II Final Rule provides the option for a Small Construction Rainfall Erosivity Waiver. This waiver applies to small construction sites between 1 and 5 acres, and allows permitting authorities to waive those sites that do not have adverse water quality impacts. Dischargers eligible for this waiver are exempt from Construction General Permit Coverage. In order to obtain the waiver, the discharger must certify to the State Water Board that small construction activity will occur only when the rainfall erosivity factor is less than 5 (“R” in the Revised Universal Soil Loss Equation). The period of construction activity begins at initial earth disturbance and ends with final stabilization. Where vegetation will be used for final stabilization, the date of installation of a practice that provides interim non-vegetative stabilization can be used for the end of the construction period. The operator must agree (as a condition waiver eligibility) to periodically inspect and properly maintain the area until the criteria for final stabilization as defined in the General Permit have been met. If use of this interim stabilization eligibility condition was relied on to qualify for the waiver, signature on the waiver with a certification statement constitutes acceptance of and commitment to complete the final stabilization process. The discharger must submit a waiver certification to the State Board prior to commencing construction activities.

USEPA funded a cooperative agreement with Texas A&M University to develop an online rainfall erosivity calculator. Dischargers can access the calculator from EPA’s website at:https://www.epa.gov/npdes/npdes-stormwater-program. Use of the calculator allows the discharger to determine potential eligibility for the rainfall erosivity waiver. It may also be useful in determining the time periods during which construction activity could be waived from permit coverage.

D. Obtaining and Terminating Permit Coverage

The appropriate Legally Responsible Person (LRP) must obtain coverage under this General Permit. To obtain coverage, the LRP or the LRP’s Approved Signatory must file Permit Registration Documents (PRDs) prior to the commencement of construction activity. Failure to obtain coverage under this General Permit for storm water discharges to waters of the United States is a violation of the CWA and the California Water Code.

To obtain coverage under this General Permit, LRPs must electronically file the PRDs, which include a Notice of Intent (NOI), Storm Water Pollution Prevention Plan (SWPPP), and other documents required by this General Permit, and mail the appropriate permit fee to the State Water Board. It is expected that as the storm water program develops, the Regional Water Boards may issue General Permits or Individual Permits that contain more specific permit provisions. When this occurs, this General Permit will no longer regulate those dischargers that obtain coverage under Individual Permits.

Any information provided to the Regional Water Board shall comply with the Homeland Security Act and any other federal law that concerns security in the United States; any information that does not comply should not be submitted. 

The application requirements of the General Permit establish a mechanism to clearly identify the responsible parties, locations, and scope of operations of dischargers covered by the General Permit and to document the discharger’s knowledge of the General Permit’s requirements.

This General Permit provides a grandfathering exception to existing dischargers subject to Water Quality Order No. 99-08-DWQ. Construction projects covered under Water Quality Order No. 99-08-DWQ shall obtain permit coverage at Risk Level 1. LUP projects covered under Water Quality Order No. 2003-0007- DWQ shall obtain permit coverage at LUP Type 1. The Regional Water Boards have the authority to require Risk Determination to be performed on projects currently covered under Water Quality Order No. 99-08-DWQ and 2003-0007-DWQ where they deem necessary.

LRPs must file a Notice of Termination (NOT) with the Regional Water Board when construction is complete and final stabilization has been reached or ownership has been transferred. The discharger must certify that all State and local requirements have been met in accordance with this General Permit. In order for construction to be found complete, the discharger must install post-construction storm water management measures and establish a long-term maintenance plan. This requirement is intended to ensure that the post-construction conditions at the project site do not cause or contribute to direct or indirect water quality impacts (i.e., pollution and/or hydromodification) upstream and downstream. Specifically, the discharger must demonstrate compliance with the post-construction standards set forth in this General Permit (Section XIII). The discharger is responsible for all compliance issues including all annual fees until the NOT has been filed and approved by the local Regional Water Board.

E. Discharge Prohibitions

This General Permit authorizes the discharge of storm water to surface waters from construction activities that result in the disturbance of one or more acres of land, provided that the discharger satisfies all permit conditions set forth in the Order. This General Permit prohibits the discharge of pollutants other than storm water and non-storm water discharges authorized by this General Permit or another NPDES permit. This General Permit also prohibits all discharges which contain a hazardous substance in excess of reportable quantities established in 40 C.F.R. §§ 117.3 and 302.4, unless a separate NPDES Permit has been issued to regulate those discharges. In addition, this General Permit incorporates discharge prohibitions contained in water quality control plans, as implemented by the nine Regional Water Boards. Discharges to Areas of Special Biological Significance (ASBS) are prohibited unless covered by an exception that the State Water Board has approved. 

Non-storm water discharges include a wide variety of sources, including improper dumping, spills, or leakage from storage tanks or transfer areas. Non-storm water discharges may contribute significant pollutant loads to receiving waters. Measures to control spills, leakage, and dumping, and to prevent illicit connections during construction must be addressed through structural as well as non-structural BMPs. The State Water Board recognizes, however, that certain non-storm water discharges may be necessary for the completion of construction projects. Authorized non-storm water discharges may include those from de-chlorinated potable water sources such as: fire hydrant flushing, irrigation of vegetative erosion control measures, pipe flushing and testing, water to control dust, uncontaminated ground water dewatering, and other discharges not subject to a separate general NPDES permit adopted by a region. Therefore, this General Permit authorizes such discharges provided they meet the following conditions.

These authorized non-storm water discharges must:

1. be infeasible to eliminate;
2. comply with BMPs as described in the SWPPP;
3. filter or treat, using appropriate technology, all dewatering discharges from sedimentation basins;
4. meet the NALs for pH and turbidity; and
5. not cause or contribute to a violation of water quality standards.

Additionally, authorized non-storm water discharges must not be used to clean up failed or inadequate construction or post-construction BMPs designed to keep materials onsite. Authorized non-storm water dewatering discharges may require a permit because some Regional Water Boards have adopted General Permits for dewatering discharges.

This General Permit prohibits the discharge of storm water that causes or threatens to cause pollution, contamination, or nuisance.

Required Conditions for Conditionally Exempt Non-Storm Water Discharges