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The U.S. Environmental Protection Agency set regulations on construction activities to prevent contamination through a program known as the National Pollutant Discharge Elimination System. The Texas Commission on Environmental Quality operates this program under the Texas Pollutant Discharge Elimination System.

There are several stormwater discharges that are monitored and regulated. These include municipal separate storm sewer systems (MS4s), industrial activities and construction activities.

Regulated industrial activities are defined by Environmental Protection Agency as facilities with effluent limitations, manufacturing, mineral/metal/oil/gas, hazardous waste/disposal/treatment facilities, landfills, recycling facilities, steam electric plants, transportation facilities, treatment works, construction activity and light industrial activity. Even though construction activity is listed under industrial activity, it does require separate permits.

MS4s and construction activities can be labeled in either Phase I or Phase II, each phase having specific requirements. MS4s are separated into each phase based on their designation as small, medium or large.

Construction activities are separated into each phase based on the area of disturbed acres. If the activity area is less than one acre, then a permit will be required if planned construction will exceed one acre. One to 5 disturbed acres are labeled as Phase II, and more than 5 acres are labeled as Phase I.

Permit Requirements

Phase I. For a Phase I permit, the disturbed area must be greater than 5 acres. The operator will need to submit a notice of intent (NOI) at least 7 days before construction begins. A stormwater pollution prevention plan (SWP3) must be completed before the notice of intent. A complete TPDES Permit No. TXR 150000 will also be required under the guidelines. When the construction area reaches final stabilization, the operator will need to submit a notice of termination (NOT).

Phase II. For a Phase II permit, the construction area must be confined between 1 and 5 acres. Construction areas between 1 and 5 acres can vary for each site, so the Texas Commission on Environmental Quality (TCEQ) has set up certain guidelines for waivers in this group. Three possibilities include:

  • If the area under construction is in the period of low erosion potential found in appendix A of the general construction permit, an automatic authorization may be granted. With an automatic authorization, a construction site notice must be posted, but a stormwater pollution prevention plan (SWP3) is not needed.
  • Areas with a low rainfall erosivity factor (less than 5) may receive a permit waiver. The operator must submit a low rainfall erosivity waiver form from the TCEQ Web site. If the construction area does qualify for this waiver, a stormwater pollution prevention plan (SWP3) is not needed.
  • If a construction area does not qualify for a waiver, a permit is required. Sites requiring a Phase II permit must also post a construction site notice and submit a stormwater pollution prevention plan (SWP3).

Stormwater Pollution Prevention Plan

Nine sections must be completed in the storm water pollution prevention plan. They are site/project description, best management practices, structural control practices, permanent storm water controls, other controls, approved state and local plans, maintenance, inspections of controls, and pollution prevention measures for non-storm water discharges.

In section two of the storm water pollution prevention plan, it states that any best management practices used during construction must be detailed. These practices are intended to reduce the amount of pollutants contaminating surface water bodies.

Best management practices include erosion and sediment controls, and stormwater management controls. The erosion and sediment controls are measures used to prevent or reduce erosion and redirect stormwater flow during construction activities. The stormwater management controls are used after construction is completed to prevent pollution due to stormwater runoff.

What is regulated?

Municipal Separate Storm Sewer Systems (MS4s)

  • Small – Phase II
  • Medium & Large – Phase I

Industrial Activities

  • Eleven Categories

Construction Activities

  • Disturbance of areas 5 acres or greater – Phase I
  • Disturbance of areas 1 to 5 acres – Phase II

Which construction activities may require a permit?

A construction activity is defined as disturbance of over one acre of land that could potentially discharge into a surface body of water. If the activity area is less than one acre, a permit may be required if planned construction will exceed one acre. According to the Environmental Protection Agency, a construction activity is considered to be the actual soil disturbance or any activity that contributes to soil disturbance.

Who is responsible for applying for a construction permit?

The Environmental Protection Agency labeled the person responsible for applying for construction permits as the operator. The operator is usually in charge of overseeing the project’s daily operations. He or she may be the owner or contractor, and is able to make any decisions regarding modifications to plans or specifications. If a project involves shared operations, then the responsibility is separated among each contributor.

What is required to provide Notice of Intent?

A Notice of Intent form requires information concerning the operator of the construction site, a billing address, project or site information, and contact information. This form can be found on the Texas Commission on Environmental Quality Web site under the permitting section. It does require an application fee of $100, but the fee and the application form are submitted to two separate addresses.

When is a Notice of Termination submitted?

Notice of Termination is submitted when construction activities have been completed, and the soil is no longer being disturbed. Also, vegetation covering at least 70 percent of the area must be established in order to submit this form. It requires some of the same information as the Notice of Intent, but it does not require an application fee.


Stormwater Management
Russell A. Persyn, Molly Griffin and Amy T. Williams