Under the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), certain industrial facilities require a discharge permit for stormwater runoff. Here in New York State, such discharges are covered by the Multi-Sector General Permit (MSGP), which is issued every five years by the New York State Department of Environmental Conservation (NYSDEC).
On March 8, 2023, a new five-year MSGP (GP-0-23-001) became effective and replaces the last MSGP (GP-0-17-004), which expired on February 28, 2023. Under the terms of the new MSGP, every business that had coverage under GP-0-17-004 must act promptly to keep coverage for stormwater runoff from their facilities.
The MSGP requires industrial facilities which have been determined by the U.S. Environmental Protection Agency (EPA), due to the nature of their operations, to have a likelihood of contaminants mixing with stormwater from their sites. Such facilities are required to develop and implement Stormwater Pollution Prevention Plans (SWPPPs) to reduce the likelihood of contaminated runoff. SWPPPs must address a broad set of requirements, which cover areas such as spill prevention and response, erosion and sediment control, effluent limitations and good housekeeping measures. SWPPPs must also employ certain Best Management Practices (BMPs) and comply with other limitations based on the particular type of industrial facility covered. In order to obtain coverage under the MSGP, facilities must file a Notice of Intent (NOI) with the NYSDEC along with electronic copies of their SWPPPs.
Under the new MSGP, all covered facilities must undertake an evaluation to determine whether their facilities have the potential to be impacted by future physical climate risks due to major storm events, storm surge, seiche, sea-level rise and flood events pursuant to the Community Risk and Resiliency Act (CRRA) which was signed into law in 2014. If so, enhanced BMPs must be considered. These “enhanced BMPs” cover flood reinforcement, float prevention, storm delivery timing, above-flood-level material storage, exterior storage reductions, vehicle relocation and emergency training. While the MSGP requires consideration of these BMPs, the MSGP does not mandate any specific BMPs. Rather, the MSGP requires that the consideration of such BMPs, whether determined to be appropriate or not, must be documented in facility SWPPPs.
It is somewhat unclear how industrial operators are supposed to determine whether their facilities have the potential to be impacted by future physical climate risks or how far into the future industrial operators should look. Nevertheless, every business that had coverage under GP-0-17-004 should amend their existing SWPPPs to document consideration of each of the seven enhanced BMPs even if facility operators do not anticipate any climate risks. Updated SWPPPs along with a new NOI must be filed with NYSDEC by June 28, 2023.
Kimberly R. Nason is a partner and the leader of Phillips Lytle’s Land, Environment & Energy Practice Group. She focuses her practice on land use and zoning, environmental law and energy matters. She can be reached at knason@phillipslytle.com or (716) 504-5784.
Sean M. Donahue is an attorney at Phillips Lytle where he concentrates his practice on environment and energy law with a focus on environmental compliance, regulations, litigation and due diligence. He can be reached at sdonahue@phillipslytle.com or (716) 504-5741.
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