Jordan Ramis pc. Attorneys at law
Is Your Construction Site at Risk for Fines? Demystifying Construction Stormwater Permit Requirements
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This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

By Katie Jeremiah
Winter 2011

If your construction project disturbs one acre or more through clearing, grading, and excavation operations — or even if the project is less than one acre but is part of a common plan of development — you may need a permit from DEQ.

DEQ recently reissued the 1200-C permit, which is required for the discharge of stormwater from certain construction sites. While DEQ did not relax or eliminate requirements from the prior permit, it did make changes to improve the efficiency and effectiveness of the reporting process and to comply with EPA's latest changes to stormwater discharge regulation. The permit was reorganized into two similar permits: the 1200-CN for automatically covered construction activities, and the 1200-C for registered construction activity.

The Problem
Stormwater runoff from construction activities can significantly affect water quality. As stormwater flows over a construction site, it picks up and transports pollutants like sediment, debris, and chemicals to nearby storm sewer systems or directly to rivers, lakes, or coastal waters. This polluted stormwater runoff and sedimentation can harm or kill fish and other wildlife, destroy aquatic habitat, and cause stream bank erosion. In an effort to prevent such harm, the EPA has delegated its authority to DEQ to implement the National Pollutant Discharge Elimination System ("NPDES") stormwater program. In response, DEQ developed the 1200-C stormwater discharge permit.

The 1200-series emphasizes erosion prevention. DEQ maintains that preventing the detachment of soil particles is the most effective and efficient approach to protecting surface waters. Thus, DEQ seeks to prevent erosion during rainfall events, regardless of the time of year.

Some Are Automatically Covered
Not all construction activities are required to formally apply for a 1200-C permit. Construction activities in certain local jurisdictions regulated by a DEQ-approved erosion and sediment control program are eligible for automatic coverage and not required to submit a permit application to DEQ. This new feature helps operators by reducing dual permitting, but automatically covered construction projects must still comply with local jurisdiction requirements.

Construction sites that will disturb less than one acre in Gresham, Troutdale, or Wood Village, and sites that will disturb less than five acres in Albany, Corvallis, Eugene, Milwaukie, Springfield, West Linn, Wilsonville, unincorporated portions of Multnomah County, and portions of Lane County within the MS4 Phase II Permit area are eligible for automatic coverage. Sites within the jurisdiction of Clackamas County Water Environment Services, Rogue Valley Sewer Services, and Clean Water Services are also eligible for automatic coverage.

Automatic coverage will not apply to construction projects that discharge to a body of water that is listed for turbidity or sedimentation on the most recently EPA-approved Oregon 303(d) list or that has an established total maximum daily load for sedimentation or turbidity. Construction projects discharging to these waters will be required to register for the 1200-C permit and meet all the requirements in the permit.

Do Not Disturb
Applications must be submitted to and approved by DEQ before any ground-clearing activity can occur. If a site does not qualify for automatic coverage under the 1200-CN, an owner or operator of a project requiring a permit must submit an application to the appropriate agent of DEQ at least 30 days before beginning any soil disturbance. The completed application form must be submitted with an erosion and sediment control plan ("ESCP"), land use compatibility statement, and appropriate permit fee. If you are submitting a new permit application, you must pay a first-time fee and an annual fee. The annual fee will be invoiced until you notify DEQ and terminate coverage under the permit.

Once DEQ deems that a submitted permit application is complete, the application will undergo a 14-day public review period if the project disturbs five or more acres. Once the public review period is complete, DEQ may request that the applicant submit additional or revised information. DEQ's goal is to begin coverage within 30 days of receiving a complete application. DEQ maintains that delays beyond 30 days of receiving a complete application are usually attributable to a delayed response to DEQ comments by owners/operators or their contractors.

If your project is permitted under the prior 1200-C permit, but coverage was extended past the prior 1200-C permit expiration date, DEQ will send you a letter to explain the appropriate procedures to continue permit coverage. This may require a new application and revised ESCP, or the site may qualify for automatic coverage. For sites that are less than one acre but part of a larger common plan of development, DEQ is developing a simplified permitting process that will streamline the permit coverage through a permit transfer.

How does DEQ measure compliance?
DEQ's permit requirements are strict — they do not allow for even occasional discrete releases for work, such as the removal of a sediment curtain from a stream, or other stream work such as woody debris placement or removal. But given the variability in site characteristics, receiving stream characteristics, constraints, and opportunities among the thousands of permit registrants, DEQ does not believe a uniform set of prescriptive erosion and sediment control measures for all sites will yield the best environmental outcome at each site. The "highest and best practicable treatment" practices at one construction site may not be the highest and best at another site. Therefore, DEQ built flexibility into the selection of "Best Management Practices" ("BMPs"), with approval of the ESCP, providing assurance that appropriate BMPs are selected for each project. Once a permit is approved, a designated Erosion and Sediment Control Inspector must monitor and document ESCP controls and practices and retain such documentation on-site for DEQ or local agency inspection. The records must be maintained for at least three years after project completion.

Numeric Turbidity Monitoring
In response to EPA's ongoing evaluation of the numeric turbidity limit, DEQ removed the permit requirements related to effluent limitation guidelines ("ELG"). This is welcome news to some, who believe that the ELGs are overly burdensome and may require equipment and workforce beyond DEQ and third-party capabilities. Opponents to numeric turbidity monitoring argue that it will be extremely difficult to monitor and to have confidence in results when natural background levels exceed the discharge limit.

Serious Business
Violation of any term of the permit can result in civil penalties of up to $25,000 per day and imprisonment for up to one year. Even though a project falls under the automatically-issued 1200-CN permit, if a construction operator fails to meet the requirements, DEQ maintains its enforcement authority under the 1200-C permit and can initiate a formal enforcement action based on a violation of the permit. False reporting can result in a $100,000 fine, felony conviction, and five years' imprisonment. If your project involves clearing, grading, or excavating operations, you must pay special attention to these new compliance standards in order to avoid serious consequences.