Arizona Construction Stormwater Permit (6-AZ-b)
ADEQ has issued a Construction General Permit (CGP) for stormwater discharges associated with construction activity. See ADEQ Permit No. AZG2013-001. Developers whose construction activities are subject to the CGP must submit a Notice of Intent (NOI) to ADEQ. By submitting an NOI, the developer informs ADEQ that it intends to be covered under the CGP. It also certifies that a Stormwater Pollution Prevention Plan (SWPPP) has been developed, that its discharge meets all of the conditions specified in the CGP, and that it intends to continue to meet CGP requirements. See the AZPDES Construction General Permit Fact Sheet, section II.2.2. Failure to comply with the CGP is a violation of the CWA.
States are permitted to administer NPDES programs so long as the program conforms to the requirements of the CWA and is approved by the EPA. See 40 CFR 123. Article 3 of title 49 of the Arizona Revised Statutes ( 49 A.R.S. 255 et seq.) authorizes the Arizona Department of Environmental Quality (ADEQ) to administer Arizona’s NPDES program, called the Arizona Pollutant Discharge Elimination System (AZPDES).
Construction Stormwater Permit Process
6-AZ-b.1 to 6-AZ-b.2 – Is the Developer Required to Obtain Coverage Under the Construction General Permit?
Arizona law requires “operators” of a construction site to obtain coverage under the CGP for “construction activities” that will disturb one or more acres of land, or that will disturb less than one acre, but is part of a common plan of development or sale that will ultimately disturb more than one acre.
“Construction activity” is defined by Appendix A of ADEQ Permit No. AZG2013-001 as “earth disturbing activities such as clearing, grading, excavating, stockpiling of fill material and other similar activities.”
An “operator” is a person associated with a construction project that meets either of the two following criteria:
- The person has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or
- The person has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit.)
See ADEQ Permit No. AZG2013-001, section 2.1. In some cases there may be multiple operators. For example, a developer may have control over the construction plans while a contractor has control over the day-to-day operations. Where there are multiple operators associated with the same project, all of the operators are required to obtain permit coverage. In order to obtain coverage, each operator must submit an NOI, but they may develop a joint SWPPP. See ADEQ Permit No. AZG2013-001, section 2.1.
If a discharge associated with construction activities is not authorized by the CGP, the developer must apply for a separate AZPDES permit, cease the discharge, or take necessary steps to make the discharge eligible for coverage. See ADEQ Permit No. AZG2013-001, section 1.2. For a list of authorized and prohibited discharges, see ADEQ Permit No. AZG2013-001, sections 1.2-1.4.
6-AZ-b.3 to 6-AZ-b.4 – Is the Project Exempted Under EPA’s Small Construction Rainfall Erosivity Waiver?
Under EPA’s Stormwater Phase II Final Rule, developers whose project will affect between 1 and 5 acres may obtain a waiver from the CGP if the construction will not have adverse water quality impacts. In Arizona, developers may only obtain an erosivity waiver if the construction site:
- Disturbs between one and five acres;
- Has a rainfall erosivity factor of less than five for the entire period of construction activity;
- Is not part of a common plan of development or sale that disturbs more than five acres;
- Is not located more than ¼ of a mile from an Outstanding Arizona Water (OAW) (a surface water that has been designated by ADEQ as an outstanding state resource under A.A.C. R18-11-112.) or an impaired water (waters that have been assessed by ADEQ, under the CWA, as not attaining a water quality standard for at least one designated use, and are listed in Arizona’s current 303(d) List or on the 305(b) Category 4 list); and
- Is not designated for permit coverage by ADEQ.
See the AZPDES Construction General Permit Fact Sheet, section II.1.6.
In order to obtain a permit waiver certification from ADEQ based on the erosivity waiver, the developer must use ADEQ’s Smart NOI electronic system to calculate the rainfall erosivity factor. The developer must then submit a signed waiver certification form certifying that the rainfall erosivity factor will be less than 5 during the entire period of construction, a CGP waiver fee, and all of the information listed in 1.6 of ADEQ Permit No. AZG2013-001. See ADEQ Permit No. AZG2013-001, section 1.6; AZPDES Construction General Permit Fact Sheet, section II.1.6.
6-AZ-b.5 – Stormwater Pollution Prevention Plan (SWPPP)
The developer must prepare an SWPPP before submitting an NOI to ADEQ. An SWPPP is a site-specific, written document that, among other things:
- Identifies potential sources of stormwater pollution at the construction site;
- Describes control measures to reduce or eliminate pollutants in stormwater discharges from the construction site; and
- Identifies procedures the operator will implement to comply with the terms and conditions of the CGP.
See ADEQ Permit No. AZG2013-001, appendix A.
The purpose of the SWPPP is to “provide a written plan for implementing, assessing and improving stormwater control measures that minimize erosion and sedimentation and implementing pollution prevention, inspections and monitoring requirements. See AZPDES Construction General Permit Fact Sheet, section VI.
The SWPPP must contain or address the following:
- The stormwater team;
- The Identity of the operators;
- The nature of the construction activities;
- The sequence and estimated dates of the construction activities;
- A site description;
- Site maps;
- Receiving waters;
- Control measures to be used during construction activity;
- A summary of potential pollutant sources; and
- Pollution prevention procedures.
A copy of the SWPPP must be on-site whenever construction or support activities are actively underway and must be available to ADEQ or other governmental agencies who have jurisdiction over the project at any reasonable time. See ADEQ Permit No. AZG2013-001, section 6.7. The developer must revise the SWPPP to account for a change in conditions and ADEQ may require the developer to correct deficiencies at any time. See ADEQ Permit No. AZG2013-001, section 6.5-6.6. Except under limited circumstances (see below), the SWPPP need not be submitted with the NOI or reviewed by ADEQ.
6-AZ-b.6 to 6-AZ-b.7 – Is the Construction Site Located Within ¼ of a mile of an impaired or Outstanding Arizona Water?; Include SWPPP in NOI
As stated above, the SWPPP generally does not need to be submitted with the NOI or reviewed by ADEQ. However, if the construction site is located within ¼ of a mile of a receiving water listed as impaired under section 303(d) of the CWA (see section 6-AZ-b.3 to b.4 or appendix A of ADEQ Permit No. AZG2013-001 for a definition of impaired waters), or if it is located within ¼ of a mile of a receiving water listed as an OAW in A.A.C. R18-11-112(G) (see section 6-AZ-b.3 to b.4 or appendix A of ADEQ Permit No. AZG2013-001 for a definition of an Outstanding Arizona Water), the developer must submit a copy of the SWPPP and the associated review fee along with the NOI to ADEQ. See ADEQ Permit No. AZG2013-001, section 1.5.
6-AZ-b.8 to 6-AZ-b.10 – Notice of Intent
All operators must submit an NOI to ADEQ in order to obtain coverage under the CGP. The submission of the NOI demonstrates the operator’s intent to be covered by the CGP. See ADEQ Permit No. AZG2013-001, section 2.3. According to the section II.2.2 of the AZPDES Construction General Permit Fact Sheet, “[b]y signing and submitting the NOI, the operator is certifying that a Stormwater Pollution Prevention Plan (SWPPP) has been developed, that the discharge meets all of the conditions specified in the CGP, and that the developer intends to continue to meet those requirements.”
At a minimum, the NOI must contain the following information:
- The name, address, and telephone number of the construction site operator;
- The type of project (e.g., utility-scale solar PV facility, CPS solar facility, roadway, etc.) shall be specifically identified on the NOI;
- Whether the project is part of a greater plan of development;
- Estimates of the total project acreage and the acreage to be disturbed by the operator submitting the NOI;
- The printed name (or other identifier), address, county, lot number or parcel or lot number as recorded by the county, of the construction project or site;
- An accurate (within 15 seconds) latitude and longitude (in degrees/ minutes/ seconds format) of the construction site at the point nearest the closest receiving water. If the site is located within 1/4 mile of an impaired water or OAW, the operator shall provide the latitude and longitude of the property that is closest to the impaired water or OAW. If the site is part of a larger common plan of development, the operator shall provide the latitude and longitude of the discharge point for the portion of the site covered by that NOI;
- Whether any part of the site is located on Indian Country;
- Confirmation that a SWPPP meeting the requirements in Part 6 [of ADEQ Permit No. AZG2013-001] has been developed and will be implemented prior to commencement of construction activities. If the NOI is a late application, the operator shall certify that a SWPPP has been developed and implemented prior to submittal of the NOI;
- The onsite location where the SWPPP may be viewed and the name and telephone number of a contact person;
- The name of the closest receiving water, which may include an unnamed wash;
- The name(s) of the municipal separate storm sewer system (MS4) into which there is a potential to discharge, if applicable;
- The project’s estimated start and completion dates;
- Whether the project has or will need any other water quality permits or approvals, including, but not limited to, subdivision approvals, a Clean Water Act (CWA) section 404 permit, and the permit number(s), if applicable; and
- Whether any portion is within 1/4 mile of an impaired or OAW.
See ADEQ Permit No. AZG2013-001, section 2.3.
The NOI may be submitted and prepared online using ADEQ’s electronic SMART NOI system. Payment of the initial fee may also be submitted online through the SMART NOI system. Alternatively, operators may submit a paper copy of the NOI to ADEQ along with the required initial fee. The NOI must be signed by the appropriate signatory. See the AZPDES Construction General Permit Fact Sheet, section II.2.3.
Once the NOI has been received, ADEQ reviews it and notifies the operator if it is incomplete or incorrect. The operator must then submit an amended NOI in order to obtain coverage under the CGP. See ADEQ Permit No. AZG2013-001, section 2.3.
6-AZ-b.11 to 6-AZ-b.15 – Is Additional Evaluation Required?; Is an Individual Permit Required?; Submit Revised SWPPP
According to section 2.3 of ADEQ Permit No. AZG2013-001, “ADEQ may notify an operator that authorization to discharge shall not occur for up to 30 calendar days in the event that review of the NOI identifies information requiring further evaluation, including that the SWPPP be submitted to the ADEQ.” After further evaluation, ADEQ may confirm authorization, require the developer to submit a revised SWPPP, or deny permit coverage and require an application for an individual permit. See ADEQ Permit No. AZG2013-001, section 2.3.
If ADEQ requires the developer to submit a revised SWPPP because the original SWPPP was incomplete or deficient, and if the review of the revised SWPPP reveals that a discharge of pollutants may cause or contribute to an exceedance of an applicable water quality standard, monitoring may be required. Revised SWPPPs must be submitted along with a re-review fee. See ADEQ Permit No. AZG2013-001, section 2.3.
6-AZ-b.16 – Authorization Certificate
Developers may not discharge stormwater until 7 calendar days after a complete and accurate NOI is received by ADEQ or when an authorization certificate is issued, whichever is earlier, unless the site is located within ¼ of a mile from an OAW or impaired water, in which case stormwater may not be discharged for a minimum of 30 days following ADEQ’s receipt of a signed NOI, SWPPP and application fee. See ADEQ Permit No. AZG2013-001, section 2.3.
Once ADEQ has processed the NOI, it issues a confirmation of coverage letter (also known as an authorization certificate). The authorization certificate acknowledges that the NOI has been processed and that the developer is authorized to discharge subject to the terms and conditions of the CGP. The authorization certificate will include an assigned authorization number and approval date. See the AZPDES Construction General Permit Fact Sheet, section II.2.3. If the construction site is located within a regulated MS4, a copy of the authorization certificate should be submitted to the MS4 operator. See the AZPDES Construction General Permit Fact Sheet, section II.2.3.
It should be noted that developers who submit the NOI via the SMART NOI system will usually receive the authorization certificate immediately, while developers who submit the NOI for manual processing will have to wait longer. See the AZPDES Construction General Permit Fact Sheet, section II.2.3.
6-AZ-b.17 – Notice of Termination
In order to terminate CGP coverage, the developer must submit a Notice of Termination (NOT) to ADEQ. Coverage is not terminated until ADEQ receives the complete and accurate NOT. Until coverage is terminated, the developer must continue to comply with the CGP. A NOT may be submitted after one of the following conditions have been met:
- The operator has established final stabilization on all portions of the site for which the operator is responsible, in accordance with part 22.214.171.124. of ADEQ Permit No. AZG2013-001;
- Another operator who has a valid authorization number under [the CGP] or an individual AZPDES permit has assumed control over all areas of the site that have not been finally stabilized (see Appendix B, Subsection 19 of the ADEQ Permit No. AZG2013-001);
- For residential construction only, temporary stabilization has been completed and the residence has been transferred to the homeowner (or a homeowner’s association) in accordance with Part 126.96.36.199(d)(b) of ADEQ Permit No. AZG2013-001;
- The planned construction activity identified on the original NOI was never intitiated (i.e., no grading or earthwork was ever started) and plans for construction have been permanently abandoned or indefinitely postponed;
- The operator has obtained coverage for the site under another AZPDES permit; or
- The operator qualifies for one of the stabilization alternatives in Part 188.8.131.52. of ADEQ Permit No. AZG2013-001. If qualifying for either alternative, the operator shall submit the required documentation with the NOT demonstrating compliance with Part 184.108.40.206. of ADEQ Permit No. AZG2013-001.
ADEQ sends the developer an acknowledgement letter once it receives a complete and accurate NOT. If the construction site was located within a regulated MS4, the developer must send a copy of the NOT acknowledgement letter to the MS4 operator. See ADEQ Permit No. AZG2013-001, section 2.5.
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