Alaska Construction Stormwater Permit (6-AK-b)
The Clean Water Act (CWA) requires a developer to obtain a National Pollutant Discharge Elimination System (NPDES) permit for stormwater discharges from certain construction projects. 33 U.S.C §§ 1251 et. seq.; 33 U.S.C. §§ 1342. The ADEC issues General Permits for construction stormwater discharges under the authority of Alaska Stat. § 46.03.100, 18 AAC § 15.130, and 18 AAC § 83.The General Permit covers all lands within the State of Alaska, except those within the Metlakatla Indian Reservation and the Denali National Park and Preserve. General Permit § 1.3. In these two geographic regions, the United States Environmental Protection Agency (EPA) maintains permitting authority over stormwater discharge and must be contacted for discharge authorization. Alaska Construction General Permit Fact Sheet (Fact Sheet), § 4.1.3.
Construction Stormwater Permit Process
6-AK-b.1 to 6-AK-b.2 - Will the Project Discharge to a “High Quality Water?”
The developer for a construction activity that may discharge to a high quality water that constitutes an outstanding national resource, such as a water of a national or state park or wildlife refuge or a water of “exceptional recreational or ecological significance,” must contact the ADEC thirty (30) calendar days prior to the planned start of construction activities to discuss additional submittal requirements.
6-AK-b.3 - Stormwater Pollution Prevention Plan (SWPPP)
The developer must create a SWPPP for each site covered by the permit, and the SWPPP must document the pollution control measures implemented at the site. General Permit, § 5.1. The purpose of the SWPPP is to document consideration of site-specific conditions in the selection, design, installation, and implementation of control measures used to comply with the requirements set forth in General Permit, §§ 3.0-4.0.
The SWPPP must:
- Include the information described in General Permit, § 5.3;
- Include the information required in General Permit § 5.4 to document the procedures used for performing site inspections (specified in General Permit §6.0) and (if necessary) those procedures for taking corrective actions in accordance with General Permit, § 8.0;
- Include documentation required in General Permit § 5.7 which supports a determination of permit compliance with the Endangered Species Act (ESA);
- Be implemented as written, including any modifications for changes in design or field conditions, until the submittal of the Notice of Termination (NOT);
- Be developed by a “qualified person” (for the definition of “qualified person,” see General Permit, Appendix C, at C10-C11);
- Be signed and certified in accordance with General Permit, Appendix A, § 1.12.
A SWPPP may also need to contain the information outlined in General Permit, §§ 5.5-5.6 if the project discharges stormwater into an Impaired Water Body (a body of water with an EPA-established or approved Total Maximum Daily Load) or into a body of water listed on Alaska’s 303(d) List of Impaired Waters (Category 5) for turbidity or sediment. General Permit, §§ 3.2, 5.5-5.6.
The developer must provide a copy of the applicable portions of the SWPPP, or site–specific training, to each subcontractor who engages in soil-disturbing activities before the subcontractor conducts any soil-disturbing activities. The developer must also provide the subcontractor with any revisions to the SWPPP that affect the subcontractor’s soil-disturbing activities. General Permit, § 5.2.3. The developer must always maintain certain additional documentation, including a log of grading and stabilization activities and a log of any SWPPP modifications, with the SWPPP after authorization. General Permit, § 5.8. As the project progresses, the developer must update and maintain the SWPPP according to the requirements of General Permit, § 5.9. General Permit, §5.10 outlines additional requirements regarding display of required signage and retention of and accessibility to copies of the SWPPP. Finally, depending on how much control the developer has over a construction site, they may also need to follow developer type-specific requirements listed in General Permit, § 5.11.
6-AK-b.4 - Submit Copy of SWPPP to the ADEC or Appropriate Municipality
The location where a developer must submit the SWPPP depends on the size and location of the project. The developer must abide by the following requirements in submitting the SWPPP:
- The developer of a project that one or more acres of land, but less than 5 acres, must submit a copy of the SWPPP to the ADEC. See General Permit, Appendix A, §1.1.1 for contact details.
- The developer of a project that disturbs five or more acres of land must submit a copy of the SWPPP to the ADEC at the time the Notice of Intent (NOI) is filed (electronic attachments to the eNOI are preferred). See General Permit, Appendix A, §1.1.1 for contact details.
- A developer of certain project types occurring within certain municipalities may be required to submit the SWPPP to the local municipality. See General Permit, §§ 22.214.171.124-126.96.36.199 for municipality-specific contact details.
6-AK-b.5 - Notice of Intent (NOI) to be Covered by Construction General Permit
The developer must submit a complete and accurate Notice of Intent (NOI) in one of three ways:
- By using the ADEC’s Water Online Application System (highly encouraged);
- By scanning and emailing the completed physical NOI form to the email address found in General Permit, Appendix A, §1.1.1;
- By mailing a hard copy of the NOI form to the ADEC using the physical address found in General Permit, Appendix A, § 1.1.1.
The developer must submit the NOI at least five (5) days before beginning construction activities. Physical copies may take additional time to be approved, and the developer should remember that submission of an NOI is purely a demonstration of intent to be covered by the permit, not a determination that all eligibility requirements have been met. General Permit, § 2.2.2, 2.3.1. However, submission of a complete and accurate NOI eliminates the need for the developer to submit an application for an individual discharge permit unless otherwise notified by the ADEC. Fact Sheet, § 4.2.2.
6-AK-b.6 to 6-AK-b.7 - Review NOI for Completeness and Accuracy
After the developer submits the NOI, the ADEC will review the NOI for completeness and accuracy. The ADEC will not authorize discharges if any of the following conditions exist:
- The NOI is in any way incomplete or inaccurate;
- The ADEC requires the developer to obtain authorization under an individual permit or an alternative general permit;
- The discharge does not meet the eligibility requirements specified in General Permit, § 1.4.
A complete NOI must include the following elements:
- Developer: Organization name, contact person and title, complete mailing address, telephone and fax numbers, and email address;
- Billing Contact: Organization name, contact person and title, complete mailing address, telephone and fax numbers, and email address (Note: If billing contact information is the same as the developer information, check the box on the NOI indicating so.);
- Project/Site: Project/site name, a physical location, the nearest city and zip code, the borough, site latitude and longitude and how they were determined, estimated project start and completion dates, and an estimate of the area to be disturbed;
- SWPPP: Acknowledgement of whether a SWPPP has been prepared in advance of filing the NOI, the location of the SWPPP (either with the developer, at the project/site, or at another location), and the SWPPP contact if different than the developer contact;
- Discharge: The names of the bodies of water into which the project discharges, identification if the project/site discharges to a body of water that is impaired or has a Total Maximum Daily Load (TMDL), and if so, confirmation that the discharge is consistent with the assumptions and requirements of the TMDL;
- Treatment Chemicals: Information for those projects that use treatment chemicals, including the names of the polymers, flocculants, or other treatment chemicals used;
- Signatory Information: Compliant with General Permit, Appendix A, § 1.12.
6-AK-b.8 - Authorization Fees
The developer must pay the general permit authorization fees in accordance with 18 AAC § 72.956 in order to obtain authorization to discharge stormwater. General Permit, § 2.2.1. NOI’s are considered to be incomplete until the fee is paid. General Permit, § 188.8.131.52.
6-AK-b.9 - Does the ADEC Approve the Permit Request?
If the ADEC decides to grant discharge authorization through a general permit, the developer receives written confirmation via email, including a specific authorization number and a date at which time the discharge of stormwater may begin. The ADEC usually grants authorization following receipt of a complete NOI and payment of the general permit fee. However, projects that do not meet the following additional eligibility requirements will not receive approval. The project must:
- Be located within an area where the ADEC is the permitting authority;
- Not already be covered under another APDES Permit;
- Not discharge to an impaired waterway with an EPA-approved or established Total Maximum Daily Load (TMDL) that specifically precludes such discharges; and
- Not be likely to jeopardize the continued existence or cause a take of any threatened or endangered species protected under the Endangered Species Act (ESA) or their designated critical habitat.
If the ADEC decides not to grant discharge authorization through a general permit, the developer may appeal the decision.
6-AK-b.10 - Construction General Permit
Discharge may not begin until the developer receives confirmation of the authorization. General Permit, § 2.5. If any delays occur, the ADEC will attempt to contact the developer directly, but it is ultimately the responsibility of the developer to ensure authorization exists. To check authorization status, the developer may use the project tracking/authorization number provided in the written confirmation from the ADEC to search for their project on the ADEC’s ADEC Water Permit Search Website, or they may contact the ADEC directly. Fact Sheet, § 4.2.5.
In some cases, authorization initially may not be granted due to evidence of a reasonable potential for the discharge to cause or contribute to an exceedance above state water quality standards. The ADEC will then notify the developer of the need for an individual permit, project modifications, or other corrective actions before granting authorization. General Permit, § 184.108.40.206; Fact Sheet, § 4.2.5.
6-AK-b.11 - Appeal Decision (If Applicable)
Depending on the ADEC’s decision (either to grant or deny the permit), the developer, or any other aggrieved party, may appeal the decision by following the informal appeals processes described under 18 AAC 15.185, or the formal adjudicatory process outlined in 18 AAC 15.200. Fact Sheet, at 2. An informal review request must be delivered to the Director of the Division of Water within 15 days after receiving the Departments decision. 18 AAC 15.185(a); Fact Sheet, at 2. An adjudicatory hearing request must be delivered to the Commissioner of the Alaska Department of Environmental Conservation within 30 days of the permit decision or a decision issued under the informal review process. 18 AAC 15.200(a); Fact Sheet, at 2.
Following the delivery of a final decision through the agency appellate process above, the developer or another aggrieved party may appeal the decision to the Alaska Superior Court within 30 days from the date the decision was mailed or distributed, as per rule 602 of the Alaska Rules of Appellate Procedure. Alaska R. App. Proc. 602; Alaska Stat. § 22.10.020. Additional guidance for the appeals process is available within Alaska’s Appellant Instructions for Administrative Appeals to the Superior Court.
6-AK-b.12 - Notice of Termination (NOT) at Completion of Construction
The developer must submit a complete and accurate Notice of Termination (NOT) within thirty (30) calendar days after one or more of the conditions listed in General Permit, § 10.2 have been met. General Permit, § 10.2. Termination of permit coverage is not effected until submission of the NOT, and the developer must comply with permit requirements and conditions until this time. General Permit, § 10.1. Submission of an NOT without meeting at least one of the required conditions results in an invalid NOT and the continuance of permit responsibilities. General Permit, §10.3.3.The conditions for termination are as follows:
- Achievement of final stabilization under General Permit, § 4.5.2, the end of ground-disturbing construction activity, the end of support activities, and removal of all temporary BMP’s;
- Assumption of control by a new developer/property owner of all areas of the site that have not been finally stabilized;
- Authorization under an individual permit or alternative APDES general permit has been obtained, unless the ADEC has required that the developer obtain such coverage under General Permit, § 2.8, in which case authorization under the current permit will automatically terminate;
- Temporary stabilization has been completed for a residential construction project and the residence has been transferred to the homeowner;
- The planned construction activity identified on the original NOI was never initiated, and the plans have been permanently abandoned or indefinitely postponed.
The developer must include the following information in their NOT:
- The APDES permit tracking number;
- The basis for submission of the NOT (see conditions above);
- The developer’s name, address, and telephone number;
- The name and street address of the project and street address (or a description of location if no street address is available) of the construction site;
- A certification statement signed and dated by an authorized representative as defined in General Permit, Appendix A, § 1.12, as well as the name and title of the authorized representative.
The developer can submit the NOT one of two ways:
- Electronically via the ADEC’s Water Online Application System (strongly encouraged, as the NOT will likely be processed more quickly);
- By completing a physical NOT form, scanning the completed NOT form, and emailing it to the ADEC at the email address listed in General Permit, Appendix A, § 1.1.1.
The developer’s authorization to discharge terminates at midnight on the day the NOT is signed. General Permit, §10.3.2.
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- Clean Water Act
- Endangered Species Act
- Title 40 CFR 122 EPA Administered Permit Programs: The National Pollutant Discharge Elimination System
- Title 46 Alaska Statutes
- Title 18 Alaska Administrative Code Section 15.130 NPDES Certification Procedure
- Title 18 Alaska Administrative Code Chapter 83 Alaska Pollutant Discharge Elimination System Program
- Title 18 Alaska Administrative Code Chapter 72 - Wastewater Treatment and Disposal
- Title 18 Alaska Administrative Code Chapter 15 - Administrative Procedure
- Alaska Rules of Appellate Procedure