Questions and Answers
for Professionals
- What is the National Pollutant Discharge Elimination System (NPDES) stormwater Program?
- What is required of projects regulated under the NPDES stormwater Program?
- Whom should entities regulated under the NPDES stormwater Program contact to obtain permit coverage?
- What kinds of stormwater discharges are required to have NPDES stormwater permit coverage?
- Which contractors or construction companies must seek permit Coverage Under an EPA construction General Permit?
- What types of construction activities are regulated under the construction stormwater permit program?
- Is the oil and gas industry required to apply for construction stormwater permit coverage?
- Who is responsible for applying for a construction stormwater permit?
- What is a "larger common plan of development or sale?"
- What is the purpose of the 7-day review period for the construction Notice of Intent (NOI)?
- What waivers are available for stormwater Phase II construction activity?
- How does a stormwater permitted construction operator terminate coverage?
Q: What is the National Pollutant Discharge Elimination System (NPDES) stormwater Program?
A: Polluted stormwater runoff is a leading reason why nearly 40 percent of surveyed U.S. water bodies do not meet water quality standards. Over land or through storm sewer systems, polluted runoff is discharged, often untreated, directly into local water bodies such as the Rio Grande. Left uncontrolled, this water pollution can result in the destruction of fish, wildlife, and water habitats and threats to public health due to contaminated food, drinking water supplies, and recreational waterways.
Mandated by Congress under the Clean Water Act, the NPDES stormwater Program is a comprehensive two-phased national program for addressing the non-agricultural sources of stormwater discharges which adversely affect the quality of our nation's waters. The program uses the National Pollutant Discharge Elimination System (NPDES) permitting mechanism to require the implementation of controls designed to prevent harmful pollutants from being washed by stormwater runoff into local water bodies.
Q: What is required of projects regulated under the NPDES stormwater Program?
A: Regulated entities must obtain coverage under an NPDES stormwater permit and implement stormwater pollution prevention plans (SWPPPs) or stormwater management programs (both using best management practices or BMPs) that effectively reduce or prevent the discharge of pollutants into receiving waters.
Q: Whom should entities regulated under the NPDES stormwater Program contact to obtain permit coverage?
A: Regulated entities should contact their NPDES permitting authority, which will be either their state (link to appropriate agency) or EPA Regional Office (link to appropriate place on EPA site), depending on the type of entity or project and its location. For regulated entities located in areas where EPA is the NPDES permitting authority, all information and forms needed to obtain permit coverage are available through visiting any one of the three regulated stakeholder areas (MS4s, industrial activity, construction activity) or the Resources section of this web site.
Q: What kinds of stormwater discharges are required to have NPDES stormwater permit coverage?
A: The NPDES stormwater permit regulations, promulgated by EPA, cover the following classes of stormwater discharges on a nationwide basis:
- Operators of MS4s located in "urbanized areas" as delineated by the Bureau of the Census
- Industrial facilities in any of the 11 categories that discharge to an MS4 or to waters of the United States; all categories of industrial activity (except construction) may certify to a condition of "no exposure" if their industrial materials and operations are not exposed to stormwater, thus eliminating the need to obtain stormwater permit coverage,
- Operators of construction activity that disturbs 1 or more acres of land; construction sites less than 1 acre are covered if part of a larger plan of development.
Q: Which contractors or construction companies must seek permit Coverage Under an EPA construction General Permit?
A: See stormwater Phase II Final Rule-Small Construction Program Overview (Fact Sheet 3.0 – either link to or provide downloadable pdf) for more information on both the small and large construction programs.
Q: What types of construction activities are regulated under the construction stormwater permit program?
A: All construction activities 1 acre or larger must obtain permit coverage. Construction activities less than 1 acre must also obtain coverage if they are part of a larger common plan of development or sale that totals at least 1 acre. Small construction activities, i.e., less than 5 acres, may qualify for a waiver. For more information on the waiver check this site http://cfpub.epa.gov/npdes/stormwater/waiver.cfm.
Q: Is the oil and gas industry required to apply for construction stormwater permit coverage?
A: Oil and gas industry construction activities that disturb more than five acres of land are required to apply for permit coverage. State permitting authorities may require small oil and gas construction activities to obtain permit coverage immediately.
Q: Who is responsible for applying for a construction stormwater permit?
A: The operator, or the person who has operational control over construction plans and specifications, and/or the person who has day-to-day supervision and control of activities occurring at a construction site, are responsible. In some cases, the operator may be the owner or the developer. In other cases the operator may be the general contractor, and in some cases both entities will be considered operators. Some states require a single entity, usually the land owner or easement holder, to be the permittee for a given construction project. Other States and EPA require all relevant entities to obtain permit coverage, as co-permittees, for a given construction project. Contact your permitting authority for clarification on who must apply.
Q: What is a "larger common plan of development or sale?"
A: A "larger common plan of development or sale" is a contiguous area where multiple separate and distinct construction activities may be taking place at different times on different schedules under one plan. For example, if a developer buys a 20-acre lot and builds roads, installs pipes, and runs electricity with the intention of constructing homes or other structures sometime in the future, this would be considered a larger common plan of development or sale. If the land is parceled off or sold, and construction occurs on plots that are less than one acre by separate, independent builders, this activity still would be subject to stormwater permitting requirements if the smaller plots were included on the original site plan. The larger common plan of development or sale also applies to other types of land development such as industrial parks or well fields. A permit is required if 1 or more acres of land will be disturbed, regardless of the size of any of the individually-owned or developed sites.
Q: What is the purpose of the 7-day review period for the construction Notice of Intent (NOI)?
A: EPA will not authorize coverage under the Construction General Permit (CGP) until 7 days after the NOI has been received by the NOI Center. The 7-day review period is for the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (the Services) to review the project for potential impacts to threatened or endangered species or critical habitat, per the Endangered Species Act. If one of the Services notes a potential impact, it will notify EPA, who will delay authorization until the Service and the construction site operator can resolve the concern. If the Services note no problems during the 7-days review period, CGP authorization will be automatically granted at the end of the 7th day. For more information on determining eligibility with respect to the Endangered Species Act, please see http://cfpub.epa.gov/npdes/stormwater/esa.cfm.
Q: What waivers are available for stormwater Phase II construction activity?
A: Under the stormwater Phase II Rule, NPDES permitting authorities have the option of providing a waiver from the requirements to operators of "small" construction activity who could certify to one of two conditions:
- Low predicted rainfall potential
- A determination that stormwater controls are not necessary
Note: Waivers are not available for any construction activity disturbing
5 acres or greater, or less than 5 acres if part of a common plan of development
or sale (or if designated for permit coverage by the NPDES permitting authority).
See the stormwater
Construction General Permit page for more information on waivers.
Q: How does a stormwater permitted construction operator terminate coverage?
A: A Notice of Termination (NOT) for Industrial Activity (which includes construction and is the same form for all three of EPA's CGPs) must be submitted to EPA's NOI Processing Center (address identified on the NOT form) in order to terminate coverage. A permittee may submit an NOT when:
- Disturbed soils at the construction site have finally been stabilized and temporary erosion and sediment control measures have been removed (or will be removed at an appropriate time)
- stormwater discharges have been eliminated, or
- The permittee is no longer an operator of the site.
