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Weathering the Storm of SWPPP Compliance in Construction

Updated: Oct 20, 2022

The first step in weathering the storm of Storm Water Pollution Prevention Plan (SWPPP) compliance is determining if a SWPPP is even required.

The Texas Commission on Environmental Quality (TCEQ) is authorized under the Texas Pollution Discharge Elimination System (TPDES) General Permit TXR150000, to implement the National Pollution Discharge Elimination System (NPDES), which is established under the Federal Clean Water Act (CWA). The ultimate goal of the CWA, passed by Congress in 1972, was to ensure the nation’s rivers and streams were fishable, swimmable, and drinkable. The Construction General Permit TXR150000, provides the framework for development and implementation of Storm Water Pollution Prevention Plans. The ultimate goal of both the General Permit and SWPPP is to reduce soil erosion and minimize pollutants in storm water from construction activities. In addition to the EPA and TCEQ, the Municipal Separate Storm Sewer System (MS4) that receives storm water runoff from the site also has regulatory jurisdiction and enforcement rights. This could be a city, county, town, district, association or other regulatory entity with jurisdiction over the disposal of sewage, industrial wastes, storm water, or other wastes.

So, how do you know when a SWPPP is required for your site? If your project disturbed area is more than one acre, a SWPPP is required. In addition, if your project disturbed area is less than acre but is considered part of a larger common plan of development that disturbs one acre or greater, a SWPPP is required. A larger common plan of development is defined as a construction activity that is completed in separate stages, separate phases, or in combination with other construction activities. A common plan of development (also known as a “common plan of development or sale”) is identified by the documentation for the construction project that identifies the scope of the project, and it may include plats, blueprints, marketing plans, contracts, building permits, a public notice or hearing, zoning requests, or other similar documentation and activities. A common plan of development does not necessarily include all construction projects within the jurisdiction of a public entity (e.g., a city or university). Construction of roads or buildings in different parts of the jurisdiction would be considered separate “common plans,” with only the interconnected parts of a project being considered part of a “common plan” (e.g., a building and its associated parking lot and driveways, airport runway and associated taxiways, a building complex, etc.). Where discrete construction projects occur within a larger common plan of development or sale but are located ¼ mile or more apart, and the area between the projects is not being disturbed, each individual project can be treated as a separate plan of development or sale, provided that any interconnecting road, pipeline or utility project that is part of the same “common plan” is not included in the area to be disturbed. Some examples of a larger common plan of development include large retail centers with multiple contractors working on the individual retail buildings, a residential subdivision with multiple builders, or one home builder within a subdivision with a separate contractor responsible for the site work, utilities, and infrastructure.

The amount of disturbed area for a project also affects what type of permit application is required by the TCEQ. For projects whose disturbed area is 5 acres or greater, a notice of intent and permit fee of $225 are required to be submitted to the TCEQ. The TCEQ now requires this process be completed electronically by setting up an individual account in the TCEQ’s STEERs database. There is no fee to set up the account, but the TCEQ requires the individual that signs the NOI to be a company officer, so that should be kept in mind when setting up an account. The common plan of development needs to be kept in mind as well when determining whether or not an NOI is required.

If the project disturbed area is between 1 and 5 acres, and is not part of a larger common plan of development that is larger than 5 acres, then a Small Construction Site Notice is required to be signed by a company officer and posted on site. Nothing needs to be submitted to the TCEQ for this size project. As well, the SWPPP is not required to be submitted to the TCEQ, for any size project. It is, however, required to be kept on site at all times and available for review by the regulatory community. Some local regulatory entities may require a copy of the SWPPP be submitted to them.

A copy of the signed notice of intent or small construction site notice is required to be submitted to the MS4, as well as kept in the SWPPP binder on site. For both small and large projects a TCEQ site notice is required to be posted on site. The site notice must be posted where it is visible to the public without trespassing.

All construction projects, no matter the size of the disturbed area, are required to have functioning sediment and erosion controls measures in place to prevent the offsite migration of sediment or other pollutants from leaving the site as a result of construction activities. Determining what is required is the first step on the path to weathering the storm of SWPPP compliance in construction.

Stay tuned for future blogs addressing other SWPPP related topics. If you have questions about any SWPPP or erosion control related topics, or need assistance with any of the above items, feel free to contact us.

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