On Aug. 28–29, 2024, approximately 50 people gathered at the University of California San Diego Extended Studies campus to learn about the California State Water Resources Control Board’s (State Water Board) reissuance of the Construction Stormwater General Permit (2022 CGP). The 2022 CGP became effective on Sept. 1, 2023, although projects covered by the 2009 CGP have until Aug. 31, 2025, to either terminate construction activities or convert to the 2022 CGP.
Attendees spent two days learning the ins and outs of the 2022 CGP from experts in the field, including Haley & Aldrich vice president Nancy Gardiner, Rick Engineering Company principal Jane Janda-Timba, Environmental Law Group partner Wayne Rosenbaum and Brownstein attorneys Ryan Waterman and Kate Tipple.
Key takeaways from the workshop include:
1. Identify your stormwater team now: Everyone understands that qualified stormwater pollution prevention plan (SWPPP) developers (QSDs) and qualified SWPPP practitioners (QSPs) are critical to complying with the 2022 CGP. But will they be available to help you manage the transition to coverage under the 2022 CGP? It’s not too early to get your favorite stormwater team under contract to make sure you are covered when it counts.
2. Consider early conversion to the 2022 CGP: If you know that your project will not finish before Aug. 31, 2025, why not convert to the 2022 CGP now to avoid the rush? Other benefits include the flexibility to expand the Project before Sept. 1, 2025, with consistent permitting terms.
3. There’s no such thing as a dumb question: If you have questions about the 2022 CGP, you’re not alone. Don’t hesitate to ask questions of your stormwater consultants, regional board staff and legal counsel.
4. Pro tip when converting to the 2022 CGP: When converting to the 2022 CGP, make sure your notice of intent under the 2022 CGP is active before terminating registration under the 2009 CGP to avoid unintentionally losing CGP coverage.
5. It’s not too early to get training for your people: Many permittees are considering whether to use their own staff in the QSP and QSP delegate roles. If so, remember that it takes time to get appropriate training and certification, and it’s not too early to start getting that training for your people now.
If you’re thinking a construction general stormwater permit could apply to you and wondering, wait, what is this 2022 CGP about? Don’t worry, you’re not alone. Here’s a primer on the changes in the 2022 CGP.
Background
The U.S. Environmental Protect Agency (EPA) regulates discharges of pollution pursuant to the Clean Water Act. California has delegated authority to govern National Pollutant Discharge Elimination System (NPDES) permit coverage. Qualifying construction activities, as defined below, require coverage under a NPDES permit. California regulates these qualifying construction activities under a NPDES construction stormwater general permit (CGP).
The prior CGP, issued in 2009, was administratively extended in 2014 to give the State Water Board additional time to develop and adopt a new NPDES CGP. On Sept. 8, 2022, the State Water Board adopted the 2022 CGP.
When does the 2022 CGP apply?
The 2022 CGP applies to most construction and land development projects greater than one acre in size. This includes any smaller project part of a common plan of development or sale where the larger plan is ultimately greater than one acre in size, excluding any projects that are separated by a quarter mile or more.
The 2022 CGP includes a two-year transition period for projects certified prior to Sept. 1, 2023, with the choice to continue coverage under the prior 2009 CGP until Aug. 31, 2025, or to enroll for coverage under the 2022 CGP. Projects covered under the 2009 CGP but subject to expansion during this transition period, however, will have to enroll any new acreage under the 2022 CGP. This could result in a project covered in part by the 2009 CGP and in part by the 2022 CGP until the end of August 2025.
After Aug. 31, 2025, all 2009 CGP permitted projects must be enrolled in the 2022 CGP and all issued 2009 CGP permits will be administratively terminated on Sept. 1, 2025.
2022 CGP updates
The 2022 CGP includes several updates intended to improve compliance and potentially increase permittee liability for failure to meet permit obligations. This is not a comprehensive summary of all updates, and the 2022 CGP must be carefully considered in its entirety to ensure compliance.
Sampling and Monitoring Requirements
The 2022 CGP will require additional on-site inspections and assessments from a QSD and QSP. The QSD must now conduct monthly inspections, whereas the 2009 CGP allowed QSDs to be more hands-off. A QSD’s monthly inspection may count towards weekly inspection requirements. Monitoring requirements will increase for QSPs, which will be triggered by a redefined qualifying rain event as well as applicable TMDLs (see below, respectively). In some instances, a QSP may delegate the monitoring to a trained QSP delegate to meet heightened requirements.
Storm-Specific Monitoring Requirements
The Qualifying Precipitation Event (QPE) is defined as a forecast of 50% or greater probability of precipitation and a quantitative precipitation forecast of 0.5 inches or more within a 24-hour period.
There is no longer a requirement to prepare a Rain Event Action Plan (REAP), but QPE inspections are still required before, during and after the QPE. These inspections may count towards the monthly inspection requirements. Samples from each discharging location are now required for risk level 2 and 3 dischargers for each 24-hour period of a QPE.
Daily averaging of sampling results to determine NAL exceedances is no longer available and now each sample result must be compared with the pH and turbidity NALs. NAL exceedances trigger a mandatory site inspection by the project QSD and project QSP within 14 days of the exceedance.
TMDL Implementation
For projects that discharge into an impaired water body or watershed that has been covered by a Total Maximum Daily Load (TMDL), the 2022 CGP requires a pollutant assessment to evaluate whether the project will have on-site sources of the TMDL pollutant. If so, the project will need to monitor and report for the TMDL pollutant, comparing results to the TMDL waste load allocation limits as incorporated in Appendix H of the 2022 CGP and translated into numeric effluent limitations (NELs). Best management practices (BMPs) may be required to reduce pollutant concentrations below the TMDL limits. According to the 2022 CGP, “A Responsible Discharger that exceeds a TMDL-related numeric effluent limitation is in violation of this General Permit and may be subject to mandatory minimum penalties, whereas numeric action level exceedances are not violations of this General Permit.”
Construction Dewatering
Dewatering discharge activities that are not subject to a separate NPDES permit, such as projects subject to the Los Angeles Regional Dewatering Permit, must now be sampled within the first hour of discharge and daily thereafter for continuous dewatering discharges in accordance with Attachment J. Sampling parameters still include pH, turbidity and are subject to numeric action levels. Sampling must be added to the SWPPP.
Ambiguities in Attachment J to the 2022 CGP will likely result in differing interpretations and implementation of requirements across Regional Water Quality Control Boards.
Trash Discharges
Permittees must include trash compliance at construction sites consistent with the state’s Trach Policy through full capture systems or full capture equivalency.
Demolition
There are now specific classes of constituents prohibited during the demolition phase, including asbestos, lead-based paint and PCBs.
Passive Treatment
Limited passive treatment systems are now allowed by Attachment G to the 2022 CGP, which must comply with EPA passive treatment requirements. Passive treatment must be used with erosion and sediment controls and cannot be relied on as a standalone BMP.
Ocean Plan
Projects that discharge directly into the ocean to Areas of Special Biological Significance (ASBS) trigger additional requirements. ASBS are defined as areas in the ocean that require protection for biological communities or species from constituents that alter the water quality, such as arsenic, copper, lead, mercury, zinc, cyanide and ammonia.
Training Requirements
There are now additional training requirements. For example, the QSP must train a QSP delegate based on the delegate’s respective responsibilities. The State Water Board is currently considering expanding requirements for QSDs/QSPs.
It Will All Take More Time
Notably, the changes in the 2022 CGP will require more time and resources from permittees: there is more required of the QSDs; more inspections, sampling and training required; and direct compliance with TMDL requirements, to improve and consolidate compliance. There is an overall shift in focus from requiring control over sediment to regulating pollutants that is more consistent with other stormwater general permits. The 2022 CGP falls short, though, of providing clear definitions for groundwater and how Schedule J requirements for dewatering will be interpreted. Time will tell how different Regional Water Quality Control Boards (Regional Boards) will interpret certain portions of the 2022 CGP.z
But what about those supreme court decisions?
It is unclear how recent U.S. Supreme Court decisions will potentially alter applicability of the CGP to certain projects and Clean Water Act permit requirements. For example, in its 2024 decision, Sackett v. EPA, the Supreme Court narrowed the definition of wetlands as “waters of the United States” (WOTUS) to wetlands with continuous surface connections to established WOTUS. The federal government followed suit, issuing rulemaking to update the definition of WOTUS accordingly. And in its 2020 decision, County of Maui v. Hawaii Wildlife Fund, the Supreme Court found a discharge to a WOTUS could include a discharge to groundwater that meets the “functional equivalent” of a discharge to a WOTUS.
In the 2024-2025 term, the U.S. Supreme Court is scheduled to hear the case of City and County of San Francisco v. EPA, which considers whether a Clean Water Act permit can prohibit “exceedances of water quality standards” (narrative standard) without identifying specific numeric limits to which discharges may conform.
Nonetheless, at the state level, California has made it clear that it will rely on state law to fill any gaps by extending state permit coverage to any areas over which U.S. Supreme Court decisions may withdraw Clean Water Act jurisdiction. Accordingly, even if a project’s activities would not potentially discharge to “waters of the United States” to merit coverage under the 2022 CGP, it could still potentially discharge to a “water of the state”—which is defined more broadly under California law to include both wetlands and groundwater—and need an individual waste discharge requirement permit from the State Water Board (or a Regional Water Quality Control Board) to proceed.
Next steps for current and potential permitTees
If you have a project under the 2009 CGP, it’s time to determine whether the project’s permit coverage will terminate prior to Aug. 31, 2025, or will need to convert to the 2022 CGP. Remember, if you are expanding a project covered by the 2009 CGP, any new acreage will need to be enrolled under the 2022 CGP.
If you are beginning a project under the 2022 CGP, identify whether stormwater will discharge into inland waters or the ocean, determine whether your stormwater discharge will flow into a water body with a TMDL, understand when demolition or dewatering will be required, and familiarize yourself with recordkeeping requirements and trash provisions.
As we work through implementation of the 2022 CGP, there are still several ambiguities. For example, the 2022 CGP still does not provide definitions for groundwater and dewatering requirements, which may result in inconsistent interpretations between Regional Water Boards. Dewatering notification guidance is now available on the State Water Board website, however. Additionally, laboratory techniques may still be catching up technologically to be able to test for the NEL exceedances at the low levels required by applicable TMDLs.
Additional training and facts and questions guidance are being developed and added to the State Water Board’s website during this transition period. It is incumbent on the covered parties to ensure they understand the 2022 CGP requirements by the time the transition period ends and the 2022 CGP becomes applicable to all covered construction projects.
It will be Aug. 31, 2025, before we know it. Now is the time for permittees and potential permittees to confirm their SWPPPs are updated, worksites are stabilized, and personnel are properly trained. Potential plaintiffs will be watching for opportunities to prosecute procedural and substantive shortcomings under the Clean Water Act’s citizen suit provisions. Regional Water Boards are also likely to start inspecting projects for compliance.
Reach out to Brownstein’s water quality practice group if you have additional questions about the CGP.
This document is intended to provide you with general information regarding California's Construction Stormwater General Permit. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.