THE NEW NPDES PHASE II STORM WATER PERMIT - EVEN IF THE MPCA ISN'T READY, YOU'D BETTER BE.

Since 1994, developers and builders in Minnesota have been subject to the Minnesota Pollution Control Agency's (MPCA) General Permit - Authorization to Discharge Storm Water in Association with a Construction Activity under the National Pollutant Discharge Elimination System/State Disposal System Permit Program (the "Storm Water Permit"). This permit was the MPCA's response to Phase I of a program mandated by the federal government's Environmental Protection Agency (EPA) under the National Pollutant Discharge Elimination System (NPDES). Under this permit, all developers and general contractors with projects that disturbed five (5) or more acres were required to complete the permit and submit it to the MPCA seven (7) days before beginning construction (30 days for projects 50 acres or larger). Completing the permit required developers and builders to prepare and implement both short term and long term erosion control plans. These plans consisted of measures designed to keep soil on site and from entering rivers, ditches, watercourses, as well as storm sewer and sanitarysewer systems. But now we are entering into Phase II of the program, which means a new permit.

As of March 10, 2003, Phase II of the EPA's program began in Minnesota. Phase II requires the MPCA to develop a new permit that requires a Storm Water Pollution Prevention Plan (SWPPP) and covers all construction projects disturbing one (1) or more acres. However, the MPCA doesn't have the new permit ready, and doesn't plan to have it ready until September 4, 2003.

The MPCA, like other governmental agencies, is required to adopt the permit by following a formal rule making process that is controlled by Minnesota Law. This process requires that the proposed rule be published, that there be an opportunity for all interested persons to comment, and potentially a contested proceeding before an administrative law judge. But, while the MPCA is finishing this process, as of March 10, 2003, all construction projects one (1) acre or more must have a permit. Therefore, until September 4, 2003, the MPCA has indicated that the old permit should be used. Once the new permit is available, permittees will then have 18 months to apply for the new permit.

The most significant difference between the Phase I permit and the new Phase II permit, aside from coverage, is the Storm Water Pollution Prevention Plan. The term "Storm Water Pollution Prevention Plan", or "SWPPP", is new to the storm water lexicon and embodies more succinctly the MPCA's philosophy regarding the effect construction activities have on natural surface water drainage. However, the SWPPP requirements are not that different from the old Phase I permit requirements. But developing this plan will require more attention to specific aspects of drainage and pollution control. Nevertheless, the essential purpose remains the same - to develop measures (Best Management Practices) for preventing soil erosion and controlling runoff. But the new Phase II permit might not be the only storm water regulation developers and builders will be running into.

Aside from a construction component, Phase II has a municipal component that requires certain urban counties, cities, and towns to obtain a Municipal Separate Storm Sewer System Permit (MS4). This permit requires the permittee to develop its own governmental SWPPP. One of the things that these governmental SWPPPs are required to include is a plan for adopting an ordinance that regulates storm water runoff both during and after construction projects. More importantly, these ordinances are supposed to target construction sites smaller than one (1) acre and thus not covered by the Phase II permit. In addition, how they go about this is left entirely to the individual governmental unit. This means, beginning as of March 10, 2003, not only will developers and builders in Minnesota be required to obtain the MPCA permit, but possibly a local permit.

While the local permitting process is even more uncertain than the MPCA's Phase II permit, at least the MPCA has a draft permit that, barring any complications, will be the final permit. However, as of today, nothing is certain other than the fact that developers and builders had better be prepared.

©2003, Rinke-Noonan and Jason H. Thomas, St. Cloud, Minnesota.

Jason H. Thomas is an Associate Attorney at the Law Firm of Rinke Noonan, St. Cloud, MN; practicing in the areas of municipal, governmental, and real estate law.

David J. Meyers is licensed to practice law in the Minnesota State and Federal Courts. He is certified as a Real Property Law Specialist. He is a former President of BAM and currently serves on the BAM and CMBA Boards of Directors.