Permittees Under the Construction General Permit and Industrial General Permit Must Take Steps Now to Ensure Compliance

Over the past two years, the California State Water Resources Control Board and its Regional Water Quality Control Boards have significantly increased enforcement activity relating to alleged stormwater violations of the Construction and Industrial General Permits. For example:

• On December 4, 2020, the North Coast Regional Water Quality Control Board assessed a civil penalty in excess of $6.4 million for alleged sediment discharge and related non-discharge violations of the Construction General Permit against the developer of a resort and associated residential housing.
• On June 8, 2022, the San Diego Regional Water Quality Control Board assessed a civil penalty in excess of $6.6 million—reduced from a proposed penalty of over $9 million—also for alleged sediment discharge and related non-discharge violations of the Construction General Permit against a residential homebuilder.
• On July 14, 2022, a prosecution team for the Los Angeles Regional Water Quality Control Board proposed a civil penalty in excess of $17 million in civil penalties against the owners and operators of a warehouse for water discharges to the Dominguez Channel that resulted from firefighting operations at the site. That enforcement action is pending.
• On July 19, 2022, the East Bay Municipal Utility District—a municipal governmental entity—agreed to pay a civil penalty of $816,000 in response to a San Francisco Regional Water Quality Control Board enforcement action relating to the discharge of partially treated wastewater during what NOAA determined was a 1,000-year storm that overwhelmed one of the facility’s three overflow plants.

These recent civil penalties are generally much larger than what dischargers have faced in the past. Moreover, Regional Board inspectors have started taking much more aggressive positions with respect to compliance inspections and enforcement. If a discharge violation is suspected, regulators may seek out additional related non-discharge violations and assert daily civil penalties for months or even years at a time.

As the start of the 2022-2023 wet season approaches, and especially in light of the emerging enforcement environment, permittees under the Construction General Permit and Industrial General Permit would benefit from taking steps now to help ensure compliance. Permittees may want to consider updating their Stormwater Pollution Prevention Plan(s), reviewing their site-specific BMP implementation, and training personnel in stormwater compliance. Permittees may also want to confirm that they are using a qualified and responsive stormwater consultant (QSD/QSP) to provide advice regarding stormwater compliance and conduct any required monitoring throughout the wet season. Taking time now to invest in compliance efforts can avoid the often significant monetary and reputational impacts of defending an enforcement action.

This communication is not intended to provide legal advice and does not create an attorney-client relationship. If you need assistance with compliance or defense of an enforcement action, please do not hesitate to reach out.