Notice of Intent – The Basics
The Notice of Intent (NOI) is not a permit. It is an application to discharge under your regulating body’s NPDES General Permit and an assertion and acknowledgement that you, as the Operator, are eligible for coverage and agree to the conditions in the General Permit.
Who is required to submit an NOI?
For construction projects located in areas where the EPA has permitting authority, all Operators must file an NOI if they meet these eligibility conditions:
You meet the definition of an Operator. Appendix A of the 2017 EPA Construction General Permit (2017 CGP) provides two criteria.
You are disturbing more than one (1) acre or are disturbing less than one acre but it is part of a common development plan (e.g. new housing subdivision).
Discharges from your site are not already covered by a different NPDES permit for the same discharge or in the process of having coverage terminated, revoked or denied.
The party is an Operator if it:
“Has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or
“Has day – to – day operational control of those activities at a project that are necessary to ensure compliance with the permit conditions.”
In less elegant terms, the party paying for and approving the work and the entity performing the work are Operators and need to file an NOI. In most cases, the first criterion is the project Owner - City, Department of Transportation, homeowner, developer or long – term lessee. A General Contractor typically meets the second criterion. A project can have multiple Operators and each Operator requires its own NOI. Subcontractors do not meet the definition.
Who is required to certify, sign and submit an NOI?
The NOI must be signed by an individual with the authority to agree to and pay a monetary fine if one is placed by the regulating authority.
For Corporations: A corporate officer;
For Partnership or Sole Proprietorship: A General Partner or Proprietor;
For a Municipality, State, Federal or other Public Agency: A principal executive officer or ranking elected official.
I’m too busy to sign the NOI. Can my project manager do it?
The authority to sign the NOI cannot be delegated to another person. Only those meeting the signatory requirements listed in Appendix I.11 may sign and submit the NOI or NOT.
My NOI is active and I just received a bunch of emails from the EPA. What do they mean?
As a Certifier utilizing the EPAs Central Data Exchange (CDX) program, you will receive a number of emails during the NOI submission and termination process. These emails are primarily additional confirmations you have successfully submitted an NOI or NOT.
NOI is Ready to Submit: If a different party prepared your NOI, they will send the NOI to you through the CDX program. You will receive an email indicating an NOI prepared by that person is ready for your review and certification. This is your trigger to log in to your CDX account and certify the NOI.
NOI Successfully Submitted: After certifying the NOI, you will receive an email confirmation that is was submitted to the EPA and has started it’s 14-day review period. The NOI preparer will receive a copy of this email as well.
NOI is Active: After the 14 – Day review period you will receive a notification that the NOI is active. Include this authorization email in your SWPPP.
Waters within or Adjacent to the Construction Site: If you have a waterbody within 50 feet of your construction site the EPA sends a reminder email stipulating the 2017 CGP requirements. You are not in trouble. This is an automated email based on a selection on the NOI. But, a good reminder, nonetheless.
NOT Submitted and NOT Accepted: These emails occur after the NOI certifier has successfully signed and submitted the termination request to the EPA, and the EPA accepts it. The usually occur within an hour of each other.
Should you update the NOI?
Yes. Most definitely.
Section 1.4.4 of the 2017 CGP notes the requirement to modify the NOI if and as needed. You should regularly review and update the NOI should any of the information change over the course of the project. For example, many projects start and end on dates that differ from those initially entered on the NOI. You can update these easily through your CDX account and not undergo additional 14 – day review periods.
Other NOI fields will require a subsequent 14 – day review period including the disturbed area, endangered species selection, historic properties review and receiving waters. Technically, these items should not need to be updated at a later date as they were thoroughly researched when you developed your stormwater pollution prevention plan (SWPPP). However, projects can increase in size as additional work is added and unforeseen events can happen.
Do NOIs expire?
No. And yes.
NOIs do not expire if the ‘end date’ added to the NOI comes and goes. As mentioned above, you can update the end date without losing or disrupting your authorization to discharge.
NOIs expire ONLY when a new Construction General Permit is published.
All Operators must reapply for authorization to discharge once the EPA issues the new CGP. Generally, Operators have an allotted grace period to resubmit the NOI for any active project which was also active under a prior permit. The initial NOI will expire at the end of the grace – period. If you do not resubmit your NOI and the original expires, your project is no longer authorized to discharge and is not compliant with the regulation.
When can you terminate the NOI?
The Operator’s may terminate the NOI if the site can confirm the following are true:
Any areas which were disturbed and are not covered by permanent structures have been stabilized through vegetative or non-vegetative structures. Vegetative stabilization includes landscaping, sod, native vegetative seeding, etc. Non – vegetative stabilization may take form as sidewalks, parking lots, riprap, etc.
All construction materials, waste and waste handling devices, equipment and vehicles have been removed from the site, unless they are intended for long – term use.
All temporary stormwater controls have been removed. Those that are intended for long – term use or are biodegradable may stay following NOI termination.
All potential pollutants and pollutant – generating activities have been removed.
The Notice of Intent is a key document required to initiate earth – disturbing activities. It is the gatekeeper which allows work to begin. Performing earth – disturbing activities without an active NOI can result in heavy fines imposed on the Operators.
E2RC is the leader in NPDES regulatory requirements and compliance practices. We can recite the NOI in our sleep. We are happy to answer any questions you may have through the permitting process and can assist on the technical side as well. Contact us at (505) 867-4040 or by email for additional information and assistance.