On November 16, 2010, the State Water Resources Control Board discarded its long-standing policy that liability for storm water runoff from construction sites must fall to the property owner. Now, the project proponent will typically be the “legally responsible person” or “LRP.” The change was prompted by confusion generated by the new general storm water permit for construction activities (“Construction General Permit”) which was adopted in late 2009 and took effect this past July 1.

Since California adopted its first Construction General Permit in 1992, property owners have been on the hook to enroll in and assume legal responsibility for compliance with that permit, even though in many cases, property owners have no authority or control over the construction site. Those with direct site control – tenants, developers, builders, contractors –were considered too transient to be accountable for compliance. As a result, contract issues and thorny conflicts sometimes arose between land owners and their tenants when tenant contractor performance created storm water enforcement issues.

No more. The new definition of the “legally responsible person” extends to both individuals and entities with easements, leases, or another “real property interest,” providing great relief to land owners who have leased their property. However, others will not be so enamored with their newly minted eligibility for permit responsibility, including bankruptcy trustees, receivers and conservators with day-to-day control over property, and entities authorized by property owners to undertake pollution investigation and remediation projects. These entities will need to become familiar with the Construction General Permit and understand their obligations to implement requirements to ensure proper storm water management at construction sites, even if construction has stalled in the economic slump.

Public and private utilities continue to have the latitude allowed by the current Construction General Permit to assume storm water responsibility at underground or overhead linear construction projects they own or operate. Contractors remain ineligible to enroll in the permit, with one exception hammered out during the hearing November 16: the U.S. Corps of Engineers may authorize bonded contractors to serve as the LRP, although the Corps remains responsible for compliance.

The State Water Board also tweaked the provisions identifying those whom the legally responsible person may authorize as an “Approved Signatory” to sign, certify and submit permit-related documents. In some cases, authorized signatories were expanded from high ranking officials to lower managerial positions, easing the logistics of meeting paper requirements.

Look for the new provisions here.

The State Water Board anticipates posting guidance on implementing permittee changes in the state’s electronic permit registration system (SMARTs).