New Emphasis on NPDES NOT Requirements

When construction is complete, the National Pollution Discharge Elimination System (NPDES) permit requires a Notice of Termination (NOT). The NOT is the vehicle that transfers the responsibility of long-term care and maintenance of stormwater Best Management Practices (BMPs) from the developer that builds them to the entity that maintains them in perpetuity.

EPA/DEP have two new points of emphasis that you as a builder or developer should be aware of:

1. First, someone (e.g. Homeowners Association) needs to be designated for the long-term care and maintenance of all Post Construction Stormwater Management (PCSM) BMPs. It is important when preparing an Agreement of Sale or HOA documents that someone acknowledges that they will take over maintenance once it is constructed. Otherwise, you could be held hostage in the future and possibly stuck with long-term maintenance responsibilities.

2. Second, DEP is stepping up their efforts to ensure that a licensed engineer has observed the construction of all stormwater management improvements and BMP’s included under the NPDES Permit.This is to provide assurance that it was built according to the design plans. Many conservation districts have even hired a Professional Engineer as required by a new DEP requirement to conduct more thorough reviews of PCSM plans. DEP has made it exceedingly clear that the licensed professional must observe the construction as it is occurring in order to certify the NOT. With the new emphasis, if the licensed professional hasn’t observed the work, they can’t sign off on the NOT.

Before construction starts, be sure there is proactive communication between the developer, contractor, and licensed professional, so there are no delays or reopening of work. The danger is that you end up halfway through the project and the licensed professional hasn’t been out there.

Our stormwater management experts will continue to provide information on this topic.

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