NEIWPCC Comments on Proposed Changes of General Permit for Stormwater Discharges

On behalf of its member states, NEIWPCC recently submitted comments to the U.S. Environmental Protection Agency (EPA) regarding the proposed 2027 National Pollutant Discharge Elimination System (NPDES) Construction General Permit (CGP) for Stormwater Discharges from Construction Activities.

The EPA proposal will require operators to include, as part of a notice of intent, either a copy or URL of the full Stormwater Pollution Prevention Plan (SWPPP), and the required signed certification. The EPA will not be reviewing or approving the plan, or use it to make compliance determinations.

NEIWPCC recommends that EPA should remove the proposed requirement. The EPA asserts that without real-time access to SWPPPs it is often limited in its ability to provide compliance assistance to permittees or answer basic questions about how a site is planning to comply with permit requirements. However, NEIWPCC’s member states have not reported any limitations in aiding owners/operators. And, the EPA’s 2022 CGP already requires an operator keep a copy of the SWPPP easily available for an on-site inspection or upon request from EPA.

NEIWPCC states that obtaining coverage is a self-certifying process, where the operator must develop and implement the SWPPP in accordance with the CGP. This proposed change would make the plans part of EPA’s records.

While states may issue permit terms differing from federal standards, as long as they satisfy the Clean Water Act (CWA), adopting EPA’s CGP framework would generate thousands of records subject to disclosure under state freedom of information laws. The workload associated with such requests for hundreds of construction sites would hamper the ability of NEIWPCC’s member states to implement their programs effectively. Also, if SWPPPs were to be included as state records, the public could interpret them as approved documents, potentially opening up to criticism that a plan is deficient.

The EPA proposes to clarify that confidential business information and restricted information in the SWPPP may be withheld from the public if it is clearly identified.

NEIWPCC provided an opinion from the Office of General Counsel of EPA, which states that any information on an application for a federal permit to discharge to water must be disclosed to the public, notwithstanding the fact that such information might constitute trade secrets. 

In closing, NEIWPCC explained that a notice of intent is similar to a permit application in that both are vehicles for owners of construction projects to obtain stormwater coverage. Some of NEIWPCC’s member states, such as Maine and New York, cannot withhold this information because of their state statutes and regulations, which are based on interpretation of the General Counsel’s opinion and the CWA. Requiring the SWPPP to be submitted as part of the notice of intent may limit EPA’s ability to withhold confidential business information contained within the plan.