The State Water Resources Control Board (“State Water Board”) recently adopted toughened standards for water flows generated by construction sites under a new statewide storm water construction general permit, effective July 1, 2010. The new permit (the “2010 Permit”) replaces the storm water construction general permit in place since 1999 (the “1999 Permit”) and imposes heightened requirements for managing water during construction. The 2010 Permit applies to construction sites of at least one acre and smaller sites that are part of a common development plan.

The 2010 Permit represents a fundamental shift from the 1999 Permit, which relied principally on the utilization of structural and non-structural Best Management Practices (“BMPs”) to control erosion and the runoff of sediment. Instead, the 2010 Permit imposes numeric limits on discharges of effluent in construction storm water runoff as well as extensive monitoring and reporting requirements.

Under the new scheme, projects are assigned a risk level of 1, 2 or 3 which equates to low, medium or high water-quality risk. The risk levels are based on proximity to sensitive receiving waters and the potential for soil loss. According to commentators, it is likely that most sites will fall within the Risk 2 and Risk 3 categories and that Southern California projects, in particular, will be more likely to fall within the Risk 3 level.

Those projects that fall within the higher risk levels will have to meet more stringent protocols, including sampling of rainfall runoff and, in the case of Risk 3 level, specific numeric effluent limits. The sampled rainfall runoff will be measured against “numeric action levels” for pH and turbidity (sediment concentrations), which if exceeded could trigger corrective action in the form of additional water quality control measures. Violations of the Risk 3 numeric effluent limits expose the applicant automatically to possible enforcement measures. Additionally, Risk 2 and Risk 3 sites must devise Rain Event Action Plans at least 48 hours prior to any construction days where the chance of rain is at least 50%.

Perhaps even more dramatic than the numeric standards are the enforcement aspects of the 2010 Permit. Previously, site inspections to verify compliance with BMPs constituted the primary enforcement method. The 2010 Permit establishes an electronic reporting system called SMARTS (the Storm Water Multi-Application Report Tracking System) that requires the electronic submission of permit documents, periodic reports and water monitoring results for each site throughout the construction process. All electronically reported information will be made available on the State Water Board’s website, opening the door to citizen-initiated challenges to construction projects that report deficiencies. Mandatory minimum penalties apply to certain violations, such as late filing of reports or exceeding numeric effluent limits. Compliance with the new standards and enforcement procedures is expected to significantly increase construction costs, particularly for Risk 2 and Risk 3 sites, and to increase risks of fines and enforcement actions.

While the 2010 Permit went into effect on July 1st, the State Water Board recently extended the grace period for current construction projects to transition from coverage under the 1999 Permit to the 2010 Permit. The initial grace period through September, which was established due to problems with the SMARTS system, has been extended through October 18, 2010. Consequently, construction projects that will not be complete prior to that date must “recertify” the project under the 2010 Permit by creating an account under the SMARTS system and uploading its Storm Water Pollution Prevention Plan under the 2010 Permit. Those site owners who do not complete the recertification process by October 18, 2010 will be forced to file a new application package and filing fee. Failure to meet the deadlines for coverage under the 2010 Permit triggers potential fines up to $10,000 a day as well as penalties for any polluted discharges and exposure to other potential sanctions.