Storm Water Program

Historical Information

Small Construction - Frequently Asked Questions

This is a list of Frequently Asked Questions (FAQ) related to the Phase II Final Rule (Small Construction Activity) that have been encountered by the Storm Water Unit at the SWRCB. Additional information that is just as applicable to Small Construction Activity can be found at Frequently Asked General Questions. We strongly advise that you refer to the General Questions link for additional information.

1. When did the Phase II regulations become final (Phase II Final Rule)?
   The Phase II regulations became final on December 8, 1999.
   
   
2. What size construction activity does the Phase II Final Rule (Final Rule) affect?
   The Final Rule affects construction activity with a soil disturbance of from one to five acres, or if less than one acre is part of a larger common plan of development or sale one acre or greater.
   
   Construction activity includes clearing, grading, excavation, stockpiling, and re-construction of existing facilities involving removal and replacement. Construction activity does not include routine maintenance such as, maintenance of original line and grade, hydraulic capacity, or original purpose of the facility.
   
   Storm water discharges in the Lake Tahoe Hydrologic Unit and the San Jacinto Watershed are regulated by a separate construction permit(s) adopted by the respective California Regional Water Quality Control Boards (RWQCB), and may not seek coverage under the State Water Resources Control Board's (SWRCB) General Permit. The U.S. Environmental Protection Agency will regulate storm water discharges associated with construction activity on Indian lands.
   
   
3. When calculating area of soil disturbance, how do I know how much soil will be disturbed during the projects construction activity?
   You will need to look at the planned area of soil disturbance in total for all construction activity associated with the project.
   
   Area of soil disturbance includes but is not limited to:
   
   • Clearing of the land both for access (i.e. access roads) to the site as well as preparing the site for constructing the project,
   • constructing access roads to the site,
   • grading of the project site in total,
   • equipment staging area, maintenance area, and construction easement if they occur atop a soil surface which has not been included in the calculation for area of soil disturbance,
   • material and/or soil stockpiles if atop a soil surface (not if atop an impervious surface such as concrete or asphalt),
   • area of asphalt or concrete pavement removal if it is removed entirely to the soil surface,
   • area that is related to demolition and removal of existing structures if that demolition and removal is to the soil surface,
   • concrete truck clean-out areas if atop a soil surface

   Small construction activity (one or two homes) will not see the extensive grading operation that occurs with major housing developments. However, any clearing or grading activity would need to enter into calculating the amount of disturbed soil. If no clearing or grading takes place then the building area footprint must be included. This includes areas of soil disturbance to construct driveways and parking stalls. Areas for stockpiling soil and material as well as the areas dedicated to parking construction equipment and trucks would be included in the calculation if the activity takes place atop a soil surface. Construction of access roads also enters into the calculation of soil disturbance area.

4. Is there a separate statewide general permit for small construction activity?
   There is only one statewide general permit for storm water discharges from construction activity. The SWRCB at the December 2nd, 2002 Board Meeting adopted Modification Language to the then existing General Permit for Storm Water Discharges From Construction Activity (Board Order 99-08). The SWRCB by adopting this modification language is in compliance with federal regulations requiring the permitting of small construction activity.
   
   
5. When is small construction permit applications due?
   Small construction permit applications were initially due by March 10, 2003.
   
   
6. If my small construction activity were ongoing prior to the March 10, 2003 date would I still be required to file an application for General Permit coverage?
   Yes. At the time the modification language to permit was adopted (Dec. 02, 2003) by the SWRCB a ninety-day grace period commenced. During this period any construction activity, whether ongoing or about to commence, was required to submit application for coverage under the General Permit. Regional Boards have discretion when evaluating construction activity on a case by case basis; however, any operator of a project that is currently under construction should have filed for coverage and be in compliance with the General Permit.
   
   
7. Where can I find a copy of the General Permit?
   The General Permit is entitled Construction Activities Storm Water General Permit Order No. 99-08-DWQ.
   
   
8. What must I do to seek coverage under the GP?
   You will need to submit a Notice of Intent (NOI) with wet signature along with a site map and appropriate fee to the Storm Water Unit in the SWRCB. See Construction fees for a list of fees by acres. A copy of the NOI along with the Checklist for Submitting an NOI is attached to the General Permit (Order No. 99-08-DWQ). If you need the information mailed or faxed to you, or if you have any questions, please contact us at (916) 341-5537.
   
   
9. When can I start construction?
   According to the General Permit, before construction activity can commence a Storm Water Pollution Prevention Plan (SWPPP) must be in place at the construction site and a completed NOI must have been sent to the SWRCB. It is best to send the NOI with a receipt request so that you have proof of when it was sent and received.
   
   However, you should be aware that most municipalities would not issue permits (building, grading) without a WDID No. from the SWRCB. If this is the case, be sure to send in the NOI at least two weeks prior to the start of construction to allow processing of the NOI and assignment of a WDID No. Like anything else of importance make sure you have documentation to back up your position should your efforts ever be questioned.
   
   
10. Is there any difference in the requirements found in the General Permit between small and large construction activity?
    There is no difference in the permit requirements between small and large construction activity. The December 2, 2002 adopted Modifications to the General Permit, which dropped the acreage requirement for permit coverage from five acres to one acre of soil disturbance, while keeping the remaining permit requirements the same.
    
    
11. Are "Waivers" available for some operators of regulated small construction activity?
    "Waivers" are not being made available at this time.
    
    
12. Has there been a postponement of the NPDES Storm Water Permit Deadline for Oil and Gas Construction Activity Disturbing One to Five Acres of Land?
    On March 5, 2003, the (EPA) Administrator signed the final rule that postpones until March 10, 2005, the NPDES storm water permit deadline for oil and gas construction activity disturbing one to five acres of land. The NPDES storm water regulations (Phase II), finalized on December 8, 1999, include coverage for such facilities. At that time, EPA believed that few of these facilities would be affected by the rule. Since that time, EPA has become aware that as many as 30,000 facilities could be affected. During the two-year postponement, EPA will analyze and evaluate this information and its potential impact.
    
    
13. Is grading on agricultural land subject to the General Permit requirements?
    Grading associated with agricultural activities is not subject to General Permit requirements. If however, the grading is being done for the purpose of erecting a structure and results in a soil disturbance of one acre or greater, then the discharger should contact the local Regional Water Quality Control Board to see if the activity will need to be covered under the General Permit.
    
    Note - Agricultural activity is currently being reevaluated at Regional Board level and Regional Boards have discretion within their respective jurisdictions. It is advisable to contact your local Regional Board to ensure that the activity is not required to be permitted.
    
    
14. Can an Industrial Storm Water Permit be used to cover construction activity at a permitted industrial site?
    The Industrial Storm Water permit does not cover storm water discharges from construction activity. If you intend to perform construction activity, with a soil disturbance of one acre or greater, at an industrial site, then you will have to seek coverage under the General Permit for Storm Water Discharges from Construction Activity.
    
    
15. Do I include the surface area upon which soil is stockpiled into the calculation of soil disturbance?
    The surface area upon which soil is stockpiled enters into the calculation of soil disturbance if the stockpile sits atop a soil surface. It would not enter into the calculation if it sits atop an impervious surface such as asphalt or concrete. However, keep in mind that the stockpile should be maintained in compliance with the requirements of the General Permit.
    
    
16. What about vehicle storage or staging areas? Is the area to be included into the calculation for area of soil disturbance?
    Yes, it is part of the calculation for area of soil disturbance if these areas are atop exposed soil. However, they would not be included if they set in a graded area, which would have been calculated as part of the area of soil disturbance initially.
    
    
17. What if the construction activity involves the removal of asphalt or concrete pavement; does the surface area of pavement removal calculate in as soil disturbance?
    If in this case the entire thickness of pavement is being removed to the top of the soil surface so that the soil is exposed, then the surface area of pavement removal enters into the calculation of soil disturbance.
    
    
18. When can coverage under the General Permit be terminated?
    A construction project is considered complete only when all portions of the site have been transferred to a new owner; or the following conditions have been met:
    
    • There is no potential for construction related storm water pollution,
    • All elements of the Storm Water Pollution Prevention Plan (SWPPP) have been completed,
    • Construction material and waste have been disposed of properly,
    • The site is in compliance with all local storm water management requirements, and
    • A post-construction storm water management plan is in place as described in the site's SWPPP.
      
      
    In addition to the above the site must be stabilized so that all soil disturbing activities are completed AND EITHER OF THE TWO FOLLOWING CRITERIA ARE MET:
    • A uniform vegetative cover with 70 percent coverage has been established OR,
    • Equivalent stabilization measures have been employed. These measures include the use of such BMPs as blankets, reinforced channel liners, soil cement, fiber matrices, geo-textiles, or other erosion resistant soil coverings or treatments.
      
      
19. What do I do to terminate coverage under the General Permit?
    A discharger can terminate coverage under the General Permit for a complete project by submitting to the local Regional Water Quality Control Board a Notice of Termination (NOT), and the post-construction BMPs plan according to Section A.10 of the General Permit.

(Updated 7/31/13)