NYSDEC Issues Revised General Permit for Stormwater Discharges from Construction Activity

Harris Beach PLLC

On January 29, 2020, the NYS Department of Environmental Conservation (“DEC”) issued a new and revised State Pollutant Discharge Elimination System (SPDES) General Permit for Stormwater Discharges from Construction Activity (GP-0-20-001) replacing the previous general permit (GP-0-15-002). The new permit, like its predecessor, governs discharges of stormwater to surface waters of the State from construction activities. It may also authorize discharges of stormwater to groundwater in cases where DEC has determined that a permit is necessary.

Summary of Significant Changes to General Permit for Stormwater Discharges

For owners or operators of sites located in Municipal Separate Storm Sewer Systems (MS4), the revised General Permit requires the owner or operator to provide notification, in writing, of changes in ownership or operation of a construction activity. This requirement has been added to ensure that the MS4 is aware of the responsible party for a construction activity under its jurisdiction.

The new General Permit includes additional criteria under “Erosion and Sediment Controls” to comply with recent updates adopted by U.S. EPA under EPA’s 2017 General Permit for Stormwater Associated with Construction Activities, later modified in June 2019. These criteria concern peak flow rates and total stormwater volume, as well as a requirement for minimizing dust.

Among the more significant changes in the revised General Permit is the determination to eliminate coverage under the General Permit for “steep slope” areas that are greater than or equal to 25% grades, as determined by U.S. Department of Agriculture Soil Slope Phase D soils. This designation, deemed necessary because of the increased potential for erosion from construction on steep slopes, will require coverage for construction activities under an individual permit.

The revised General Permit defines the term “Qualified Inspector” to clarify that individuals holding a current certificate under the “New York State Erosion and Sediment Control Certificate Program” are qualified to meet the inspection requirements of the permit. This program also satisfies certification requirements for “Trained Contractors.” In the past, there may have been some confusion concerning the qualifications necessary to fulfill these roles.

Tables 1 and 2 of Appendix B to the revised General Permit include several additional types of construction activity and clarify required SWPPP components for several types of construction activity. In addition, the revised General Permit clarifies that the owner or operator must amend the SWPPP and construction drawings to document final construction conditions.

Appendix E of the revised General Permit includes the 2016 NYS Section 303(d) list of Impaired/TMDL waters for waterbody segments impaired by silt, sediment or nutrients.

Until December 21, 2020, permittees will continue to be able to file the Notice of Intent (NOI) either electronically or in paper form. Beginning on that date, all NOIs must be filed electronically using the DEC’s online NOI.

With the adoption of the revised General Permit, it will be necessary for current permittees to become knowledgeable about its contents and, in particular, to review current operations in order to ensure continued compliance with applicable requirements.

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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