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Florida Construction Law News

01APR 2015

Recent Revisions to Dewatering and Stormwater Generic Permits

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The flow of construction stormwater legislation and rulemaking from Washington D.C. and Tallahassee has been steady in recent years.  With another construction boom underway in many parts of the state, stakeholders must remain vigilant of the Florida Department of Environmental Protection (“FDEP”) regulations governing construction dewatering and stormwater runoff promulgated in February of 2015.

In 2009, the U.S. Environmental Protection Agency (“EPA”) introduced the Clean Water Act Construction stormwater runoff limitation guidelines. The rule, codified as 40 CFR Part 450, was known as the Effluent Limitations Guidelines and New Source Performance Standards for Construction and Development point source category (“Part 450”).

Under Part 450, construction-related stormwater discharges were subject to limitations on turbidity.  Turbidity is a water quality indicator that relates to the amount of pollution carried by runoff from a point source discharge (e.g., pipes and man-made ditches). The rule applied construction sites that are 10 or more acres.  For those sites, turbidity could not exceed 280 nephlometric turbidity units.[1] Construction managers were required to sample discharge to confirm compliance with the standard.

This stark departure from the EPA’s formerly relaxed dewatering effluent policy sent a tidal wave through the industry and set off immediate legal action nationwide. [2]  As a result, the EPA passed the National Pollutant Discharge Elimination System (“NPDES”) General Permit for Discharges from Construction Activities, or “CGP”, in 2012. The CGP did not contain universal water turbidity effluent limitations, but rather delegated water quality regulatory authority to the states.

With its delegated CGP authority, the Florida Department of Environmental Protection (“FDEP”) promulgated two specific rules to regulate the State’s CGP program for construction activity: 62-621.300(2), F.A.C., Generic Permit for Discharge of Ground Water from Dewatering Operations (“Dewatering Generic Permit”), and 62-621.300(4), F.A.C., Generic Permit for Stormwater from Large and Small Construction Activities (“Stormwater Generic Permit”). Effective February 10, 2015, FDEP revised both Generic Permits to align with the EPA’s 2012 rule revisions.

The revisions to the Dewatering and Stormwater Generic Permits include provisions authorizing construction dewatering for non-contaminated ground water, with appropriate control measures for non-stormwater discharge. Practically speaking, sites covered under the CGP that employ the appropriate control measures for non-stormwater discharge would not require separate industrial wastewater generic permits for dewatering activities. The net effect is that CGP-approved sites will be permitted to conduct dewatering operations without having to obtain a separate NPDES Industrial Wastewater Program permit.

The revisions are expected to reduce operating costs by approximately $950.00 in the first year of coverage under the Generic Permits by eliminating the need for initial screening and replacing effluent monitoring with site specific control measures. Approved control measures, or Best Management Practices, are expected be more effective at minimizing or eliminating turbidity laden discharges. A detailed description of prescribed BMPs is contained in the State of Florida Erosion and Sediment Control Designer and Reviewer Manual, 2013, which has been adopted by reference into the Stormwater Generic Permit.  To obtain a copy of the Reviewer Manual, please click here.

On the whole, the revisions are largely favorable to the construction industry. The consolidation of various operating permits will make for a more streamlined and efficient permitting process while delivering operation and maintenance cost savings to users. For additional information regarding the changes to the rule and permitting requirements, please click here or feel free to contact the attorneys in the Construction Group at Cole, Scott, & Kissane.

[1] Turbidity in water is a measurement of how cloudy or murky the water and is caused by particles suspended or dissolved in water that scatter light making the water appear cloudy or murky. Particulate matter can include sediment – especially clay and silt, fine organic and inorganic matter, soluble colored organic compounds, algae, and other microscopic organisms. High turbidity can significantly reduce the aesthetic quality of the States surface water, causing a harmful impact on recreation and tourism. It can also increase the cost of water treatment for drinking and harm fish and other aquatic life.

[2] See Wisconsin Builders Ass’n v. EPA, Case Nos. 09-4113, 10-1247, and 10-1876 (7th. Cir.).