May 27, 2011

Buffers Required In Construction General Permit

Substantial revisions to the existing permit, including requirements for natural buffers or their equivalents, are included in EPA’s proposed construction general permit (CGP) for states and facilities under federal jurisdiction.

EPA administers the CGP in Idaho, Massachusetts, New Hampshire, and New Mexico; the District of Columbia; Puerto Rico; all other U.S. territories, with the exception of the U.S. Virgin Islands; federal facilities in four Colorado, Delaware, Vermont, and Washington; and most Indian lands and for a few other specifically designated activities in specific states. Affected states have authority under the Clean Water Act to incorporate additional requirements into the CGP to protect water quality.

The proposed CGP will replace the current 2008 CGP, which expires June 30, 2011. EPA says the existing permit will be extended to January 31, 2012, to give the Agency time to finalize its proposal.

The proposed CGP incorporates requirements contained in EPA’s December 2009 effluent limitations guidelines and new source perfor-mance standards for the construction and development industry (C&D) rule. All national pollutant discharge elimination system (NPDES) construction stormwater permits must include the C&D requirements once the current permit expires.

Significant proposed modifications to the existing CGP include new requirements for eligibility for emergency related construction; required electronic notice-of-intent to be covered by the permit; sediment and erosion controls; more rapid soil stabilization; pollution prevention; increased site inspections; stormwater pollution prevention plans; and permit termination.

Regarding buffers, the C&D rule requires that construction sites “provide and maintain natural buffers, unless infeasible.” The rule allows the actual size of the buffer to be determined by the permitting authority.

However, in the proposed CGP, EPA has decided to be more specific by providing two alternatives. Permittees can comply with the buffer requirement by providing a minimum buffer width of 50 feet between any waters of the U.S. and the construction site.

Alternatively, the permittee can establish a smaller buffer or no buffer, depending on the site-specific circumstances, as long as a level of control equivalent to the 50-foot buffer is provided.

EPA’s proposed CGP is at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm.