Most contractors are familiar with pulling construction stormwater general permits (CGPs) when a project will disturb more than 1 acre of land. However, it’s also important to note there are some instances when a permit is still required on projects that “disturb” less than an acre of land. Additionally, some projects also require federal and local permits instead of the typical state CGP.

Less than 1 acre disturbance permit

“Common plan of development (CPD)” clauses are usually in every CGP, whether issued at the federal or state level, says Nick Hoogstraten of Peckar & Abramson PC in a Lexology article.

“This provision states that a permit must be obtained when your construction will disturb one or more acres of land or will disturb less than one acre but is part of a [CPD] or sale that will ultimately disturb one or more acres of land,” he explains. “Definitions of [CPD] differ slightly from jurisdiction to jurisdiction, but contractors should always be alert if the owner is, has recently, or will soon be undertaking other construction nearby.”

The amount of land considered for permitting purposes can also include off-site land like dedicated staging areas, laydown yards, and borrow pits.

Borrow pits, or excavated sites where the dirt removed is used as fill dirt at another construction site, don’t count in the amount of land calculated for permitting purposes when they’re shared with other construction projects.

So, when calculating the land that will be disturbed to apply for permits, contractors should include the amount of land that will be used off-site to comply with the CPD clause.

“In some jurisdictions, CGP coverage may still be required even though the entire project (including common plan and off-site activities) disturbs less than one acre,” Hoogstraten continues. “In Oregon, at least three cities require CGP coverage for disturbances less than one acre. In coastal counties of South Carolina, CGP coverage is required for disturbances under one acre near state waters. And in Miami, Florida, the City Code requires state CGP coverage for earth disturbances of ½ acre or more, and the Florida Department of Environmental Protection recognizes this as a valid requirement. As always, it is important to know applicable state – and local – permitting rules.”

Delegated authority

CGP authority comes under the National Pollutant Discharge Elimination System (NPDES) program, which was created in 1972 by the Clean Water Act (CWA). Under the CWA, the EPA authorizes the NPDES permit program to state, tribal, and territorial governments, enabling them to perform many of the permitting, administrative and enforcement aspects of the NPDES program. In states authorized to implement CWA programs, the EPA retains oversight responsibilities. Currently, 47 states and 1 territory are authorized to implement the NPDES program, according to the EPA.

In some cases, states delegate permitting authorities to local jurisdictions.

“Tennessee has a handful of counties or cities with Qualified Local Programs that have their own CGP approval processes,” adds Hoogstraten. “In Colorado, three cities have Qualifying Local Programs, where projects of 1-5 acres qualified under the local regulations will be automatically permitted under the state CGP. Wisconsin has a single Authorized Local Program in Waukesha County. In the City of Chicago (except for O’Hare Airport), projects do not need state CGP coverage but must follow the stormwater discharge requirements of the City building permit. Obviously, applying to the state for coverage when it should be done locally can lead to permitting delays.”

The low-erosion exemption

State permits often have waivers for low-erosion conditions. When site conditions are such that minimal erosion will occur, the project may qualify for a CGP permit waiver.

“Waivers often depend on fairly complex calculations, but if the project is in an arid location or performance is limited to a ‘dry’ season, a waiver may be applicable,” Hoogstraten notes. “This waiver doesn’t come into play often, but it is worth checking in certain areas of the country.”

Combined sewage exemption

The purpose of a CPG permit is to prevent stormwater containing sediment from entering public waters. When sediment runoff from a construction site drains into a combined sewer system that leads to a public treatment plant, the project doesn’t “theoretically” require a CPG permit, according to Hoogstraten.

“CGPs in some states expressly exempt stormwater discharges to combined sewers from the requirement to obtain permit coverage,” he says. “In other states, the combined sewer exemption is not clearly stated in the CGP, but the state permit authorities will clarify (in writing is best) that it applies. Where the exemption is recognized, all stormwater discharges must be directly to a combined sewer to qualify. For example, if stormwater leaves the site via a natural swale and only thereafter reaches a combined sewer inlet, the discharge is not exempt from permitting. But in an urban setting where the site is surrounded by city streets and gutters, direct discharge to a combined sewer may be found.”

Projects on federal facilities or Native American land

Generally, projects completed at federal facilities or on Native American lands require permitting through the EPA, although there are some variances by state.

Federal facility projects in Colorado, Delaware, Vermont, Washington state, and Alaska’s Denali National Park require federal EPA CGP coverage. And the definition of “a federal facility (or work performed by a ‘federal operator’) varies somewhat from state to state,” Hoogstraten continues. “In a little over half the states, earth disturbances on Indian Land must be permitted under the U.S. EPA CGP instead of the state CGP, in recognition of the unique legal status of Native American tribes. What territory qualifies as Indian Land is defined in the applicable CGPs, but typically it means specifically designated reservations.”

Oil and gas facilities permitting

Another permitting exemption exists for stormwater discharge on construction projects occurring at oil and gas facilities, although the exemption varies from state to state.

In states under EPA CGP authority, “uncontaminated discharges from construction activities relating to oil and natural gas exploration, production, process or treatment operations, or transmission facilities are exempt from permitting,” Hoogstraten states.

“Among states with their own CGPs, some require permit coverage for such work and some don’t. Texas and Oklahoma, however, are the true exceptions. Due to a quirk in delegation of authority, oil and gas work in Texas or Oklahoma requires special U.S. EPA CGP coverage, in addition to the state CGP coverage for the rest of the project. For example, a building under construction that requires a new gas service line can mean two Notices of Intent with separate permit coverage dates and two Notice of Termination with separate termination dates.”

CGP takeaway

There are several exemptions available when researching and applying for stormwater discharge permitting. It’s important to ensure company personnel responsible for obtaining the necessary permits for construction projects don’t obtain unnecessary permits or, worse, fail to get permit coverage where required. CGP permitting can be tricky, so careful scrutiny is necessary.