By Kimberley Hale, Jonathan Wells, and Kate Hopkins

On November 7, 2023, the Georgia Department of Natural Resources, Environmental Protection Division (EPD) issued new draft guidance that will apply to construction stormwater variances issued to large projects disturbing more than fifty acres (see links below).  EPD is accepting comments on this guidance from now until December 15, 2023.  EPD will also hold a virtual stakeholder meeting to hear comments on December 7, 2023. The following provides a high-level overview of the proposed guidance: 

• EPD intends to use this guidance when issuing a variance that allows a permittee to disturb more than fifty acres at one time.  However, EPD also notes that this guidance can be used to “inform consideration by EPD and by Local Issuing Authorities (LIAs) of factors to evaluate when considering compliance” of sites disturbing more than fifty acres.  
• EPD did not add a requirement for phasing larger projects, but phasing is clearly encouraged and the guidance states that total acreage disturbed at any one time “should be minimized.”  Unless the variance states otherwise, no more than 400 acres can be disturbed at one time.   
• For all sites disturbing more than 150 acres, additional Best Management Practices (BMPs) will be required.  EPD also advises that additional BMPs may be required for “any Site where EPD determines topography or other considerations dictate [additional BMPs].”  These additional BMPs include:  
  • increasing the size of sediment basins;  
  • additional seven-day letter inspections by a design professional;  
  • post-construction BMPs that will remove 80% of all Total Suspended Solids (TSS); and 
  • incorporation of at least one of six BMPs (e.g., double the width of the required state water buffer, add baffles in all basins; retrofit basins to at least double the conventional flow path to the outlet structure, add mulch filter berms on site perimeter at discharge points). 

• There is a separate section for solar farm projects that (1) requires temporary stabilization of all disturbed acreage prior to installation of solar panels and (2) repeats EPD’s stance that post-construction impervious areas shall be calculated at 70%, likely requiring the maintenance of various BMPs after construction is done, including permanent sediment basins. 

• In a footnote, EPD states that the 70% calculation requirement is also contained in the 2023 version of the general permit; however, because the permit is stayed during ongoing litigation related to other aspects of the permit, EPD is including this requirement in its guidance.  This emphasizes that EPD views this change as an important component of stormwater calculations for solar farm projects moving forward.  

The current draft guidance will mean increases in both costs and time for larger developments.  Potentially affected stakeholders should consider attending the stakeholder meeting and/or submitting comments to the guidance.  KMCL attorneys are closely tracking this draft guidance and welcome questions and concerns. 

Links to the relevant notice and guidance are copied below: 

• 50-Acre Guidance Public Notice November 2023.pdf
• NPDES Construction Stormwater 50-Acre Approval Guidance.pdf