December 5, 2011

SWPPP Requirements May Be Changing

Have you heard? California’s Construction General Permit Requirements for SWPPP May Be Changing. In a court filing on December 2, 2011, Sacramento Superior Court Judge Lloyd G. Connelly ruled to invalidate select Risk Level 3 site requirements of the Construction General Permit (CGP) for stormwater runoff.

Key Findings:

  • The court invalidated imposing pH and turbidity Numeric Effluent Limits (NELs) for Risk Level 3 sites.
  • The court invalidated the Compliance Storm Event (5-year, 24-hour storm) NEL exemption.

More subtle findings:

  • The court validated “debris prohibition” even though it represents an “NEL of zero”.
  • The court validated Post-Construction BMP requirements as part of the CGP.

The inclusion of NELs by the Board is not more stringent than the Clean Water Act (CWA). Numeric or narrative limitations are not more stringent under CWA if properly developed on a case-by-case basis using best professional judgment.

The inclusion of Compliance Storm Event by the Board is not more stringent than the CWA. The exemption of NELs when a Compliance Storm Event is exceeded actually eases rather than increases the obligation to comply with the NELs.

What’s Next?

This mandate to set aside the CGP NEL and Compliance Storm Event requirements will become effective once judgment is entered, which could be as soon as the next few weeks. The Board will have 60 days to appeal. If they choose not to appeal, then the judgment will become final.

For more information, call Mark Gilbert or Julia Moriarty at (925) 866-9000.

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