MDE's New General Permit for Stormwater Associated with Construction Activity
On December 31, 2008, the Maryland Waterkeepers challenged the “final determination” for MDE's 
new general permit for stormwater related to construction activity disturbing one or more acres. MDE and the Waterkeepers reached a settlement agreement in May, and MDE is accepting Notices of Intent to be covered by the new general permit (NOIs) effective July 13, 2009.
Highlights of changes incorporated by the new general permit include:
- Enhanced opportunities for public participation: MDE will scan NOI forms and make them available for public inspection via a new database to be available on MDE's website. The posting of the project in the database will start a minimum public participation period (length of period is dependent upon disturbed area size). In addition, the public will be able to access, by request, all plans for construction activity and any reports prepared pursuant to the permit, including self-inspection information.
- Potential for Citizen Opposition: Citizens may object to an NOI and request that MDE require an individual permit for a specific site. The Director of WMA will decide if an individual permit will be required "based on an evaluation of all comments received." It's not clear yet what criteria will be assessed in evaluating public comments.
- Written Explanation on Erosion and Sediment Control Plans: All new erosion and sediment control plans that are not currently covered under an earlier version of the general permit must include a written explanation on the plan that address 8 comprehensive points. Trouble is, there's not much guidance provided by MDE on how these items are to be addressed...
- Ongoing Compliance Assessments: If the MDE determines that a permittee's stormwater discharge may cause or has reasonable potential to cause "an excursion above any applicable water standard," MDE will require the permittee to modify existing stormwater controls to address the problem or potential problem, as the case may be.
In addition to the changes required under the new permit regime, individual discharge permits will be required in one instance and may be required in others. As the MDE notes on its website:
In order to ensure water quality standards are met, MDE has decided to continue to require individual discharge permits for all construction sites disturbing 150 acres or more that discharge stormwater to waters impaired by pollutants associated with construction activity. Also, individual permits will be required for construction sites disturbing between 30 and 150 acres that discharge to waters impaired by pollutants associated with construction activity if MDE receives a timely objection to the NOI that credibly supports the conclusion that, due to site-specific issues, applicable technical standards included under the general permit are not sufficient to ensure the protection of water quality standards. [emphasis added]
What kinds of arguments will "credibly support" a conclusion that an individual permit is warranted? We will likely find out once Joe Public begins to avail himself of the increased avenues for his involvement in this process.
