Update
on EPD's General NPDES Permit for Storm Water Discharges from Construction Activities: Settlement Reached, Permit Potentially to Take Effect this Summer1

Editor's Note
: On behalf of various utilities, the author has been substantially involved in the litigation and negotiations surrounding the general storm water permit for construction activities.

On February 25, 2000, the Director of the Georgia Environmental Protection Division ("EPD") issued General NPDES Permit GAR 10000 (the "General Permit") for public notice and comment. The General Permit, which reflects EPD's seven-year effort to issue a general storm water permit for construction activities, will authorize the discharge of storm water from construction activities that disturb a land area greater than five acres or tracts of less than five acres that are part of a larger development project (referred to as a "common plan of development"). Depending on the scope of comments received by EPD, the General Permit should become effective some time during the Summer of 2000.

Administrative History

In 1992, EPD issued the first of four versions of the general permit that were successfully challenged by citizen groups. On July 19, 1999, EPD made its fifth attempt to issue a general permit that could withstand administrative challenge (the "July 1999 General Permit"). However, in its attempts to address concerns of the citizen groups raised in the previous appeals, EPD did not take into consideration the difficulties and burdens that would be faced by the regulated community in implementing the terms and conditions of the general permit.

The July 1999 General Permit was appealed on August 18, 1999 by numerous parties including Georgians for Responsible Growth, a coalition of builders, developers and contractors, as well as a number of utilities, including Atlanta Gas Light Company, Georgia Power Company, Transcontinental Gas Pipe Line Company, Southern Natural Gas Company, Plantation Pipe Line Company, Colonial Pipeline Company and Georgia Transmission Corporation (the "Petitioners"). The Georgia Cable Television Association intervened on behalf of the Petitioners. A number of citizen groups, including the Upper Chattahoochee Riverkeeper, the Sierra Club and Terence Hughey (the "Citizen Group"), intervened on behalf of EPD. As a result of the petitions, the July 1999 General Permit was stayed, pending a decision by the Administrative Law Judge ("ALJ").

At the initial status conference with the ALJ, the parties agreed to stay the action for a number of months to allow the parties to enter into intensive settlement negotiations. Subsequently, the parties met on a weekly basis to discuss resolution of the appeal. Over thirty participants attended the weekly settlement negotiations, including representatives of EPD, the Petitioners, the Citizen Group, consulting engineers, and, of course, numerous lawyers. Given the abbreviated time schedule imposed by the ALJ, the parties retained Albert Ike of University of Georgia's Institute of Community and Area Development as a facilitator.

Settlement negotiations moved rapidly and reached a successful conclusion, with all of the parties signing a settlement agreement on February 7, 2000. Shortly thereafter, Petitioners and EPD filed a motion to dismiss the administrative appeal. The ALJ dismissed the appeal on February 23, 2000.

The Settlement Agreement

Under the Settlement Agreement, EPD agreed to submit a revised General Permit, in the form negotiated between the parties, for public notice and comment within sixty days of execution of the Settlement Agreement. In exchange, the Petitioners and the Intervenors agreed, among other things, that, until the General Permit was effective, they would not lobby the Georgia General Assembly for the purpose of altering the General Permit or any law as it governs the General Permit and not to initiate, participate in or support a legal challenge opposing the General Permit.

Pursuant to the Settlement Agreement, and ahead of schedule, EPD issued the revised General Permit for public notice and comment on February 25, 2000. The public comment period on the proposed General Permit ended on April 5, 2000. A public meeting and hearing was held on the General Permit on March 30, 2000.

The Revised General Permit

Similar to the July 1999 General Permit, the recently-issued General Permit will establish a two-tier permitting scheme that will apply under most development circumstances. First, both the site owner (the "legal title holder") and the operator (e.g., the site developer) of a construction site or common plan of development must obtain coverage under the General Permit as a "Primary Permittee" by filing a "Notice of Intent" ("NOI") with EPD if the construction activities will disturb over five acres of real property. Utility companies, builders and other entities engaging in construction activities within a development obtain coverage under the General Permit as "Secondary Permittees," also by filing a NOI. The General Permit continues to impose two major requirements on owners and operators of developments exceeding five acres: (1) preparation and implementation of an Erosion, Sedimentation and Pollution Control Plan; and (2) preparation and implementation of a Comprehensive Monitoring Program. These two major requirements were revised during the settlement negotiations to address concerns raised by the regulated community.

Highlights of the revisions to the General Permit include:

Tertiary Permittee

The revised General Permit generally adheres to the July 1999 General Permit's two-tier permitting structure, but also establishes a new category of permittee -- the "Tertiary Permittee." For large common plans of development with more than one "surface water drainage area" (defined as the "hydrologic area starting from the lowest downstream point where the storm water enters the 'receiving water'2 and following the receiving water upstream to the highest elevation of land that divides the direction of water flow"), a Primary Permittee may file a Notice of Termination for a surface water drainage area prior to the entire common plan of development being stabilized where all storm water runoff in the surface water drainage area is coming from undisturbed or stabilized areas; at least 90% of the lots in the particular surface water drainage area have been sold, permanent structures completed and final stabilization achieved; and the accumulation of acreage of undeveloped lots within the surface water drainage area is less than five acres. After filing the Notice of Termination, the Primary Permittee is required to provide written notification to the owners of the remaining lots that the owners and operators of these lots will become Tertiary Permittees. The Tertiary Permittee shall be required to file a NOI and develop a site specific plan, a Tertiary Erosion Control Plan, for its individual parcel within the surface water drainage area.

Best Management Practices Defense

As will be described in greater detail below, the General Permit requires "monitoring" (i.e., sampling and analysis) of outfalls3 or receiving waters following storm events of a designated size to determine compliance with a 10/25 nephelometric turbidity Unit ("NTU") limit.4 An exceedance of this NTU limit constitutes a violation of the General Permit. However, both the Erosion and Sedimentation Act, O.C.G.A. ยง 12-7-1 et seq., and the General Permit provide a Best Management Practices ("BMP") defense - if BMPs are properly designed and implemented. Therefore, an exceedance of the NTU limit will not constitute a violation of the General Permit. Several members of the consulting engineering field were concerned that the wording of the certification regarding compliance with the BMP requirement was too vague and that they would not be comfortable providing the certification using the language as presented in the July 1999 General Permit. As a result, EPD agreed to language that addresses the consulting engineers' concerns and clarifies the BMP defense.

Comprehensive Monitoring Program

Perhaps the subject of greatest debate during the negotiations was the Comprehensive Monitoring Program ("CMP"), which requires sampling and analysis of receiving waters for change in NTU limits during certain specified storm events. The July 1999 General Permit provided that a Primary Permittee must obtain and analyze samples from upstream and downstream locations of every receiving water during every one-half inch/24 hour storm event. This frequent sampling requirement was seen as too onerous by the Petitioners. The Petitioners believed that sufficient data could be developed to meet the needs of EPD and comply with the regulatory requirements under a less cumbersome monitoring program. As a result of the negotiations, significant changes have been made to the CMP:

  • In general, monitoring will only be required once per month for a one inch/24-hour storm event5 rather than for every one-half inch/twenty-four hour storm event. This will significantly reduce the costs of sampling by reducing the size and frequency of storm events that must be sampled, while continuing to generate the sufficient data for a determination of compliance with the BMP requirements.
  • Permittees will have the option of monitoring receiving waters or outfalls, or a combination of the two. Originally, the July 1999 General Permit only allowed monitoring of outfalls when monitoring of receiving waters was legally or physically impossible.
  • EPD agreed that the sampling method does not have to comply with U.S. Environmental Protection Agency protocols regarding refrigeration. What this means is that a much less expensive automatic sampler may be used.
  • Permittees will have greater flexibility regarding when samples must be collected and analyzed. If using automatic sampling devices, the samples do not have to be collected from the device until the next business day.
  • Permittees conducing "linear projects" (i.e., construction activities such as pipeline, road construction and transmission line projects, where the length of the project is at least 25 times longer than the width of the project) will be allowed to designate "representative" receiving waters, thus decreasing the number of water bodies that must be monitored under the CMP. To qualify for the linear project representative sampling program, a licensed professional must certify that an increase in turbidity of an identified receiving water to be sampled will be representative of the turbidity of identified "unsampled" waters. In designating representative receiving waters, the licensed professional is to take into consideration such characteristics as site land disturbances, receiving water watershed sizes and site runoff features.
  • The permit contains "alternative turbidity limits," which are used when a permittee has elected to monitor outfalls in lieu of receiving waters. These alternative turbidity limits in the July 1999 General Permit allowed a maximum discharge of 1000 NTU for certain sites that have a large surface water drainage area. In exchange for substantial revisions to the monitoring program, the Petitioners agreed to limit the maximum number to 750 NTU to address concerns of the Citizen Group.

Conclusion

All parties involved in the settlement negotiations believe that the General Permit reflects a reasonable and responsible compromise to address the concerns of EPD, the regulated community and citizens of the state of Georgia. Although the General Permit is complex and will be difficult to interpret and implement in the early stages, overall, the General Permit represents a comprehensive program that will make sufficient strides in addressing storm water runoff in Georgia without creating excessive burdens on the regulated community.

Notes

1
Please refer to Seeing Red: The Conflict & Controversy over the General Storm Water Permit for Construction Activities in Georgia, Michelle Craig Fried and Stephen E. O'Day, Environmental Law Section Newsletter, Winter 1999, for a discussion regarding the history of various versions of the General Permit, as well as the scope and impact of the General Permit (as originally proposed in July 1999). This article provides an update of the most recent settlement negotiations and resultant changes to the General Permit.

2
A "receiving water" is defined as "waters of the State supporting warm water fisheries, or waters of the State classified as trout streams, into which the runoff of storm water from a construction activity will actually discharge, either directly or indirectly."

3 An "outfall" is the "location where storm water in a discernible, confined and discrete conveyance, leaves a facility or site, or if there is a receiving water on site, becomes a point source discharging into that receiving water."

4
A nephelometric turbidity unit is a unit of measure based on the measurement of light scattered by fine particles of a substance in a suspension -- here, sediment in the receiving water. A permittee is prohibited from increasing the turbidity of waters classified as trout streams by more than 10 NTU. The turbidity of waters classified as supporting warm water fisheries cannot be increased by more than 25 NTU.

5 In other words, a permittee must sample a rainfall event greater than or equal to 1.0 inches in a 24 hour period.

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