State Water Resources Control Board Releases New Revisions to General Industrial Storm Water Permit

Introduction and Overview

In July 2012, the State Water Resources Control Board (SWRCB) released a new revision of its general permit for storm water discharges from industrial activities (2012 Draft Permit). This process of updating the permit began in 2003, and after periods of inactivity, appears to be regaining momentum.

The 2012 Draft Permit maintains many of the concepts introduced in earlier versions. These include mandatory "minimum" best management practices, new training and qualification requirements, more detailed sampling and testing, and use of numeric water-quality benchmarks. Overall, the changes increase the administrative complexity of the permit and reduce the ease of compliance. The SWRCB will accept written comments through September 21, 2012, and set a public hearing for oral comments on October 17, 2012.

This paper commences with a description of the existing permit, briefly traces the development of the new version then highlights key changes compared to the existing industrial storm water permit.

Current General Industrial Storm Water Permit

The SWRCB adopted the current version of the Industrial General Permit (Current Permit) in 1997. It allows businesses of all types to obtain coverage for storm water discharges, and certain authorized non-storm water discharges, under the Federal Clean Water Act (CWA). Nearly 10,000 facilities are enrolled and rely on the Current Permit to ensure that their storm water discharges comply with the CWA.

Obtaining coverage under the Current Permit is relatively easy. A person or operator must file a Notice of Intent (NOI) with the SWRCB, and develop and implement a Storm Water Pollution Prevention Plan (SWPPP) describing facility-specific Best Management Practices (BMPs) to control pollutant discharges from the site. Pursuant to federal regulations, BMPs must be designed to achieve "best practicable control technology" (BCT) for discharges of conventional pollutants, and "best available technology economically achievable" (BAT) for discharges of toxic pollutants. The SWPPP is maintained at the facility, and typically updated annually to address problems or changes in site conditions.

The Current Permit requires some water sampling and testing. Sampling for most facilities must occur twice per year – once during the first qualifying storm of the wet season, and a second time during at least one other storm event. Most operators must analyze runoff for total suspended solids (TSS), pH, specific conductance, total organic carbon (TOC), and oil and grease. Certain industries also must test for additional pollutants, depending on their standard industrial classification (SIC) code. In general, however, sampling and testing under the Current Permit are not onerous.

If the applicable water quality standards are exceeded, facilities must conduct more frequent monitoring and reporting, and submit a report describing what it will do to correct the problem. Facilities generally can address issues through an iterative process of adding progressively more BMPs without being considered in violation. Covered facilities must submit annual reports to the local regional water board, accompanied by information collected during the year (i.e., sampling and testing, visual reports, operational changes).

Development of New Permit

The 2012 Draft Permit is the product of a process than began nearly a decade ago. The SWRCB circulated an early draft in June 2003 to solicit public comments. In 2004, the SWRCB issued a revised draft which introduced new and more complex concepts for operators, including: (1) minimum BMPs; (2) a one-time comprehensive scan for metals and other pollutants; and (3) corrective actions when sampling showed an exceedance of numeric benchmarks.

From the regulated community's perspective, the last concept was perhaps the most significant. Under the Current Permit, when a facility identifies discharges that exceed the water quality standards, the facility may remain in compliance by adding or modifying BMPs designed to address the problem. If such changes do not correct the issue, the facility nonetheless can stay compliant through iterative and progressive changes to the BMPs. The 2004 revisions, however, indicated the SWRCB intended to shift from operator-selected BMPs towards "hard" numeric standards as the measure of compliance.

The SWRCB held public hearings on the 2004 version in early 2005, and study continued. In 2006, an expert panel convened by the SWRCB released a report that considered the technical feasibility of adding numeric water-quality standards. The expert panel concluded that the proposal was feasible but presented various challenges. Little subsequent activity took place publicly until January 2011, when the SWRCB issued a revision which introduced many concepts presented in the 2012 Draft Permit.

The 2011 draft deepened its embrace of some of the concepts introduced in 2004, including numeric benchmarks (called Numeric Action Levels, or NALs) and minimum BMPs. Between January and April 2011, the SWRCB accepted public comments. The draft provoked a strong negative reaction from the regulated community. It generated nearly 250 letters from private industry, municipalities, school districts, lawmakers and others. Many expressed concern that the proposed changes were burdensome, practically difficult to achieve, and insensitive to the economic impact on businesses and public entities.

Changes Compared to Existing Permit

The 2012 Draft Permit retains many of the concepts contained in the 2011 draft. The following describes some of the key changes as compared to the Current Permit.

1. New Qualification and Certification Requirements: The 2012 Draft Permit requires that every covered facility designate a "Qualified Industrial Storm Water Practitioner" (QISP). The designation is given to persons who have completed an approved training course, or are already licensed in California as a professional civil engineer, registered geologist or certified engineering geologist. There are three levels of QISP, each with a different set of responsibilities which the QISP may undertake (generally, a QISP III may handle more complex functions than a QISP I). The qualification requirements are expected to increase reliance on consulting firms for operators that lack in-house expertise.

2. Minimum and Site-Specific BMPs: The Current Permit leaves it largely to the operator to determine adequate BMPs. To establish uniformity, the 2012 Draft Permit imposes "minimum" BMPs to be used at each facility, unless an operator can demonstrate that they are inapplicable or that alternatives are equally effective. Minimum BMPs include erosion and sediment controls, preventative maintenance, employee training, and "good housekeeping." In addition, the 2012 Draft Permit requires the operator to undertake a "potential pollutant source assessment," and from that, to identify and implement site specific BMPs as needed account for particular site activities that may affect the quality of storm water discharges.

3. Broader Sampling and Analysis: With respect to storm water sampling and testing, the 2012 Draft Permit departs in several ways from the Current Permit. It would require quarterly sampling and testing of storm water runoff, rather than seasonal sampling. Also, the 2012 Draft Permit expands the list of pollutants tested for to include any that could conceivably be generated at the facility, based on the potential pollutant source assessment. Further, where receiving waters are listed as impaired under Clean Water Act Section 303(d) (the TMDL program), those pollutants must be added to the list. By expanding the frequency and range of sampling and testing, the 2012 Draft Permit would increase collection and laboratory costs, and create more opportunities for corrective action based on the results.

4. Numeric Action Levels: As prefaced above, one of the more significant changes that would be brought about by the 2012 Draft Permit is reliance on numeric benchmarks, NALs. NALs are based upon federal benchmarks, but are generally higher (i.e. less stringent) than state standards. There are two types of NALs: "annual" NALs refer to average annual concentrations of a pollutant; "instantaneous" NALs are single events. When sampling and testing reveal that either are exceeded, the facility is automatically placed in a heightened compliance status (either "Level 1" or "Level 2" status), and must take steps to investigate, remedy and report the issue. Additional exceedances trigger progressively more onerous requirements. A facility may return to the "baseline" status by correcting the issue (with treatment if necessary), or demonstrating that elevated concentrations are attributable to other sources.

A more detailed summary of the proposed revisions can be found in the "fact sheet" accompanying the 2012 Draft Permit, located on the SWRCB's website.


The 2012 Draft Permit of the general industrial permit solidifies much of the structure introduced last year. Barring the unexpected, the SWRCB appears likely to adopt the 2012 Draft Permit or a similar version. Doing so would usher in a significantly more complex regulatory structure for storm water management in this state, accompanied by greater administrative burdens on operators to maintain compliance, and upon water board staff to monitor and enforce violations.

We will continue to report on new developments as they arise.

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The materials and information in this article have been prepared by Harrison, Temblador, Hungerford & Guernsey LLP for informational purposes only and do not constitute legal advice.

Categories: Articles, Water