General Construction (Storm Water):
UPDES Permits

Who is required to get a UPDES Construction Storm Water Permit?

Operators and owners of construction activity that disturb 1 acre or greater are required to get a Storm Water Permit from the Division of Water Quality, however many construction sites that disturb less than 1 acre are also required to get a permit. A site that is less than 1 acre is required to get permit coverage if it is part of a “common plan of development or sale” that is over 1 acre. The term “disturb” is used above. The permit is required based on disturbed area caused by construction activity (not property boundaries). Disturbed area can extend beyond property boundaries or may be less than property boundaries.

Who is an operator for a UPDES Construction Storm Water Permit?

An operator at a construction site is one who controls the specifications of the facility to be constructed and or one who controls the day-by-day activities at the permitted construction site.

The NOI specifically requires the owner to sign on the NOI because owners are an important party that must be included when considering the activities at a construction site. The owner is a specific type of operator because they control the specifications of the facility to be built. It is possible that the owner is the builder also, or the party that oversees construction operations. A general contractor (or the person in charge of building the facility) is an operator because he/she controls the day-by-day activities on the site. Most often there is an owner and a general contractor for a construction site, and when that is the case there are two people who must sign the NOl. There are cases where the owner and the general contractor (or builder) are the same party. In that case only one party must sign the NOl.

A lessee is a party that qualifies as the owner. A lessor typically does not have control of specifications of the facility to be built.

What is Common Plan of Development or Sale?

A Common Plan of Development or Sale is a plan to subdivide a parcel of land into separate parts for separate sale. This can be for a residential, commercial, or industrial development.

The plan originates as a single parcel which is separated into parts. This usually goes through an approval process by a local governmental unit, but in some cases may not require that process. The original plan is considered the “common plan of development or sale” whether phased or completed in steps.

If a further plan is conceived that was not foreseen during the original plan, or the original plan is added onto but the addition was conceived later and was not included in any part of the original plan concept and/or development, and it develops after the completion of the construction of the entire original plan, it would be a separate “common plan of development or sale”. More than one owner of developable land can purposely join together and develop a single common plan of development or sale, but without a determined effort and coordinated planning, land owned by different owners would not be considered part of a single common plan of development or sale.

For UPDES storm water permit purposes a common plan must have been initiated after October, 1992. A common plan of development or sale remains so until each lot or section of the development has fulfilled its planned purposes (e.g. in a residential development as homes are completed, stabilized, and sold or occupied). As lots or separated sections of the development are completed, the lot or section is stabilized, and the plan purposes are fulfilled for that area, lot, or section; it is no longer part of the common plan of development or sale (e.g. if a home is sold in a development and the owner decides to add a garage somewhere on the lot, that garage project is not part of the common plan of development or sale. In this process a common plan of development or sale may become reduced in size and/or separated by completed areas (which are no longer part of the common plan of development or sale), but all unfinished lots remain part of the same common plan development or sale until they are completed, stabilized, and fulfilled according to the purposes of the plan).

What is required in a permit?

This question is best answered by reading and becoming familiar with the UPDES Storm Water Permit for Construction Activities, commonly called the CG. The CG has many requirements, not all requirements may be applicable to all sites.

Summary

The objective of the CG is to control and limit pollutants coming off a construction site so that the pollutants do not end up in a water body. Precipitation/storm events will mobilize pollutants at a construction site and carry the pollutants to a water body. The CG has been developed with requirements for permittees to take steps to prevent pollutants from leaving the construction site and entering water bodies. Soil particulates are considered pollutants because, although soil particles naturally erode, construction activity exacerbates this process substantially. With soil erosion nutrients which are normally bound up in soil, are released. It is good and natural for nutrients to be in soil for plant growth, but if released to water bodies it causes degradation.

A storm water pollution prevention plan (commonly called a SWPPP) is the most significant requirement of the permit. The permit and the SWPPP template list the items that need to be addressed in the SWPPPP.

Are buildings that will be used for agricultural purposes required to get coverage under a construction storm water permit?

When you are building a facility for agricultural purposes, although it will ultimately be used for agricultural purposes, it is construction activity. The construction of agricultural facilities must be permitted like all other construction activity.

What is a Low Erosivity Waiver?

This waiver is for construction activity that is between one to five acres with an “R” factor of less than 5. The “R” factor refers to the second revision of the universal soil loss equation (commonly called RUSLE 2). RUSLE 2 is a predictor of potential rainfall that could take place during the time of construction.

The Erosivity Waiver Certification is active from the project start date to the project end date as indicated on the application. The fee for the Erosivity Waiver is $100 for each qualifying project.

For more information on LEWs, please reach out to the Manager or Construction Storm Water contacts below.