Permit Interpretations

As Roseanne Rosannadana would say: “It’s always something!” Among the challenges of the construction stormwater permit is the matrix of exceptions, requirements, and interpretations that goes along with implementing any complex regulatory requirements. There are many such “somethings” for the construction stormwater permit, but the questions that come up most frequently have to do with requirements for redevelopment projects, self-inspections required by the permit, maintenance activities, agricultural activities, logging operations, mining operations, road construction, and utility installation.

Post-Construction Controls for Redevelopment

In the context of stormwater controls, the term “redevelopment” refers to reconstruction or modification to any existing, previously developed residential, commercial, industrial, institutional land or road/highway that involves soil disturbance. Redevelopment is distinguished from development or new development in that new development refers to construction on land where there has not been previous construction.

Because the New York State Stormwater Management Design Manual (the “design manual”) was primarily intended for new development projects, various parties have mistakenly interpreted redevelopment projects as exempt from post-construction control requirements. Although most treatment technologies presented in the design manual may be used in redevelopment, siting post-construction controls can present challenges not typical of new development sites. At the same time, redevelopment sites are considered opportunities to reduce pollutant discharges, even with controls that do not fully comply with the design manual. To balance concerns about technical challenges with the benefits of varying degrees of post-construction controls, the department has developed an interim strategy for redevelopment.

In the interim strategy, the department may accept projects under a 60-business-day review that do not provide quantity controls for the portion of a site in redevelopment. The department also accepts projects with three different types of quality controls. The first accepted quality control is where the project reduces the impervious cover by a minimum of 20 percent of the total site area (existing plus planned). The second accepted quality control for the portion of a site in redevelopment is treatment of all of the 90th percentile storm with a practice not listed in the design manual as a department standard (e.g., hydrodynamic structure, oil/grit separator, filter strips, etc.). The last accepted quality control for the portion of the site in redevelopment is the treatment of one quarter (as opposed to all) of the 90th percentile storm with one of the practices listed in the design manual as a department standard.

Weekly Self-Inspections

Under the permit, each site is required to retain qualified, professional people who are knowledgeable in the principles and practices of erosion and sediment control to inspect the site every seven days and after every rainstorm that exceeds one-half inch in a 24-hour period.

The New York State Department of Environmental Conservation (DEC) considers qualified professionals as those who are knowledgeable in the principles and practices of erosion and sediment control such as licensed professional engineers, certified professional in erosion and sediment control, licensed landscape architects, or qualified soil scientists. (The DEC interprets this to include qualified Soil and Water Conservation District staff.) The DEC also considers it permissible to have someone working under the direction and supervision of a licensed professional engineer or licensed landscape architect perform the inspections, provided that the person has experience or training in the principles and practices of erosion and sediment control.

Sediment and erosion control measures such as silt fences must be inspected and maintained. In this case, the contractor neglected to do both. (Photo by Sandy Lizlovs, DEC Region 7)

The DEC also encourages contractors to provide the training necessary for a staff person to become a Certified Professional in Erosion and Sediment Control (CPESC), so that person can supervise day-to-day erosion and sediment control as well as perform the required inspections. Information on how to obtain CPESC certification may be found at www.cpesc.org.

Maintenance Exempt from Permitting

Under Environmental Protection Agency rules, routine maintenance is exempt from the requirement to obtain a permit. Routine maintenance is defined as maintenance performed to maintain the original line and grade, hydraulic capacity, or original purpose of a facility. Operators and/or owners are reminded that discharges from this type of activity can still cause or contribute to a violation of a water quality standard and that such violations are punishable under state law. For this reason operators are encouraged to implement proper erosion and sediment control practices for any land disturbance activity.

Agriculture

Federal rules exempt agricultural activities from point source permitting requirements. To apply this exemption, one must know what constitutes agriculture. The NYSDEC has developed a memorandum of understanding (MOU) with the New York State Department of Agriculture and Markets that defines agriculture for the purposes of determining whether a construction permit is required. Under the MOU, operational and vegetative agricultural Best Management Practices (BMPs) identified in table II of the “Agricultural Management Practices Catalog for Nonpoint Source Pollution in New York State” are agricultural activities exempt from requirements to obtain authorization to discharge construction stormwater under a State Pollutant Discharge Elimination System (SPDES) permit. Properly managed structural agricultural BMPs listed in table II that disturb less than five acres are also considered agricultural activities exempt from SPDES permitting requirements provided they meet the conditions noted in the MOU.

However, barns, ponds, silos, and livestock pens are not listed in the table and require construction permits when the disturbance exceeds one acre.

Logging Operations

Logging operations that are true silvicultural activities are exempt from the requirement to get a permit. Exempt silvicultural activities include the felling, skidding, preparation (e.g., delimbing and trimming), loading, and initial transport of forest products from an active harvest site. The exempt activities include the incidental stacking and temporary storage of harvested timber on the harvest site prior to its initial transport to either an intermediate storage area or other processing site, but not such activities after the timber has been transported from one or more active harvesting sites. So, logging roads that are not skid roads and landing areas whose disturbance is one acre or more do require permits.

Road construction projects where pavement is removed to the gravel sub-base will require permit coverage if one or more acres are disturbed. (Photo by Ellen Hahn, NYSDEC Region 7)

Mining

Generally active or inactive mining operations do not require coverage as construction stormwater, but instead must obtain coverage as industrial stormwater under GP-98-03.

Road Construction

Linear projects have challenges that differ from those for more traditional development projects. However, repaving, smaller discrete construction projects, and reconstruction of gravel roads are generally exempt from permitting requirements.

Repaving of roads does not require permit coverage because it does not disturb soil. (Photo by Ellen Hahn, NYSDEC Region 7)

Repaving of roads is not considered to require permit coverage because it does not disturb soil.

However, road reconstruction projects where pavement is removed to the gravel sub-base will require permit coverage if the disturbance is one or more acres.

Discrete construction projects that are located at least 1/4-mile apart can each be treated as separate projects. So, just because the aggregate land disturbance along a road is equal to or exceeds one acre, it does not mean that that road work requires a permit.

Reconstruction of gravel roads (i.e., resurfacing, regrading, and compacting) that local highway departments do every year is considered routine maintenance and is exempt from permitting requirements.

Utilities and other “Grass to Grass” Projects

If construction (e.g., installing buried utilities) does not alter the hydrology, no post-construction controls are required.

More Information

For more detailed information on the construction permit, readers should go to the DEC’s construction toolbox at www.dec.state.ny.us/website/dow/toolbox/toolbox.htm.

—Angus Eaton is the chief of the General Permits Section in NYSDEC’s Division of Water. The General Permits Section administers general permits for discharges of industrial stormwater, construction stormwater, stormwater from Municipal Separate Storm Sewer Systems, concentrated animal feeding operations, and small sanitary discharges to groundwater.

—Angus Eaton