Industry and Developers Affected by Changes to South Carolina’s General Permit for Stormwater Discharges from Construction Activities

Nexsen Pruet, PLLC

The South Carolina Department of Health and Environmental Control (SCDHEC) has been delegated authority by the EPA to regulate stormwater discharges due to construction activities.  An earlier 2006 General Permit is expiring and SCDHEC is implementing a new General Permit for Stormwater. 

The significant changes from the 2006 General Permit are the following:

1.  The new permit creates new classes of permittees known as “Primary Permittees,” “Secondary Permittees” and “Contractors.”  A Primary Permittee has the same responsibilities as under the 2006 General Permit.  This is typically the owner, operator or developer of a project. 

Secondary Permittees are owners/builders seeking individual control of a portion of a construction site, but still using the site’s Stormwater Pollution Prevention Plan (SWPPP).  Contractors are similar to the former co-permittee used under the 2006 General Permits.  The contractor also becomes liable for compliance with the General Permit.

2.  The new General Permit requires additional information on submittals for coverage under the permitting categories.  SCDHEC is developing a template to guide the regulated community.

3.  SCDHEC indicates that Existing Permittees under the 2006 General Permit do not have to re-file a permit application, but will have to update their SWPPP to conform to the requirements in the 2012 General Permit.  Presumably SCDHEC will notify Existing Permittees of this requirement.

4.  A new buffer zone requirement has been established of thirty (30) feet for construction activities near regular water bodies and forty-five (45) feet near high quality or impaired waters of the State.  There are compliance alternatives available in certain instances.

5.  Surface outlets for basins and impoundments will be required.  SCDHEC is developing a guidance document on this requirement.

6.  Phased Erosion Prevention and Sediment Control Plans are now required for project disturbing more than five (5) acres.

7.  Inspections of construction sites have been increased to once every seven days from once every fourteen days.  Rain gauges or access to a certified weather station within twenty-five (25) miles of the project will be required to document significant rainfall events.

The permit has been challenged by certain municipal groups regarding their responsibilities to approve SWPPP plans.  The Board of SCDHEC denied review, but an appeal may be taken to the Administrative Law Court.

The changes to the General Permit are significant and should be reviewed prior to planning new construction projects.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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