Reissuance of NPDES General Permits for Storm Water DIscharges from Construction Activities in Region 6

SUMMARY: Region 6 is issuing the final National Pollutant Discharge

Elimination System (NPDES) general permits for storm water discharges

associated with construction activity in Region 6. EPA first issued

permits for these activities in September 1992. These permits

subsequently expired in September 1997. Today's permits, which replace

those expired permits, are similar to the permits issued in 1992. The

main changes from those 1992 permits are summarized in the

SUPPLEMENTARY INFORMATION section, below.

ADDRESSES: The index to the administrative record and the complete

administrative record are available at the Water Docket, MC-4101, U.S.

EPA, 401 M Street SW, Washington, DC 20460. Copies of information in

the record are available upon request. A reasonable fee may be charged

for copying. The index to the administrative record is also available

from EPA Region 6, Water Quality Protection Division, Customer Service

Branch (6WQ-CA) 1445 Ross Avenue, Suite 1200, Dallas, TX 75202.

DATES: These general permits shall be effective on July 6, 1998.

NOTICE OF INTENT: A Notice of Intent (NOI) form must be submitted to

obtain coverage for storm water discharges under these permits. The NOI

form is given in Addendum C of these permits. Deadlines for submittal

of NOI's are provided in Part II.A of the permits.

FOR FURTHER INFORMATION CONTACT: For further information on the NPDES

Construction General Permits, call the EPA Region 6 Storm Water Hotline

at 1-800-245-6510. Information is also available through the EPA Region

6's storm water web site at ``http://www.epa.gov/region6/sw/ and on the

PIPES bulletin board web site at ``http://pipes.ehsg.saic.com/

pipes.htm''.

SUPPLEMENTARY INFORMATION:

Contents

I. Introduction

II. Answers to Common Questions

III. Section 401 Certification and Coastal Zone Management Act

IV. Endangered Species Protection

V. Historic Properties Protection

VI. Regulatory Review (Executive Order 12866)

VII. Unfunded Mandates Reform Act

VIII. Paperwork Reduction Act

IX. Regulatory Flexibility Act

I. Introduction

The United States Environmental Protection Agency Region 6 office

is reissuing the general permits which authorizes the discharge storm

water associated with construction activity. As used in this permit,

``storm water associated with construction activity'' means

construction activity disturbing at least five acres, or construction

activity disturbing less than five acres which is part of a larger

common plan of development or sale with the potential to disturb

cumulatively five or more acres (See 40 CFR 122.26(b)(14)(x)).

These permits replace the previous Baseline Construction General

Permits which were issued for a five-year term in September 1992. The

most significant changes from the 1992 permits are:

New conditions to protect listed endangered and

threatened species and critical habitats;

Expanded coverage to construction sites under five

acres of disturbed land which are not part of a larger common plan of

development or sale when an operator has been designated by the

Director to obtain coverage.

A requirement to post at the construction site the

confirmation of permit coverage (the permit number or copy of the

Notice of Intent (NOI) if a permit number has not yet been assigned)

including a brief description of the project;

Storm water pollution prevention plan performance

objectives have been added.

These general permits for storm water discharges associated with

construction activity was proposed on June 2, 1997 (62 FR 29786), and

are hereby issued for the following areas in Region 6: The States of

New Mexico and Texas; Indian Country lands in Louisiana, Oklahoma,

Texas and New Mexico (except Navajo Reservation Lands and Ute Mountain

Reservation Lands); and oil and gas construction in the State of

Oklahoma.

II. Answers to Common Questions

In this section, EPA provides answers to some of the more common

questions on the construction storm water permitting program. These

answers are fairly broad and may not take into account all scenarios

possible at construction sites. More details on these issues are

provided at 63 FR 7858 (February 17, 1998) in the ``Summary of

Responses to Comments on the Proposed Permit'' section of the

reissuance of NPDES General Permits From Construction Activities for

Regions 1, 2, 3, 7, 8, 9 and 10.

How do I Know if I Need a Permit?

You need a storm water permit if you can be considered an

``operator'' of the construction activity that would result in the

``discharge of storm water associated with construction activity.'' You

must become a permittee if you meet either of the following two

criteria:

You have operational control of construction project

plans and specifications, including the ability to make modifications

to those plans and specifications; or

You have day-to-day operational control of those

activities at a project which are necessary to ensure compliance with a

storm water pollution prevention plan (SWPPP) for the site or other

permit conditions (e.g., you are authorized to direct workers at a site

to carry out activities required by the SWPPP or comply with other

permit conditions).

There may be more than one party at a site performing the tasks

relating to ``operational control'' as defined above. Depending on the

site and the relationship between the parties (e.g., owner, developer),

there can either be a single party acting as site operator and

consequently be responsible for obtaining permit coverage, or there can

be two or more operators with all needing permit coverage. The

following are three general operator scenarios (variations on any of

the three are possible as the number of ``owners'' and contractors

increases):

Owner as Sole Permittee. The property owner designs the

structures for the site, develops and implements the SWPPP, and serves

as general contractor (or has an on-site representative with full

authority to direct day-to-day operations). He may be the only party

that needs a permit, in which case everyone else on the site may be

considered subcontractors and not need permit coverage.

Contractor as Sole Permittee. The property owner hires

a construction company to design the project, prepare the SWPPP, and

supervise implementation of the plan and compliance with the permit

(e.g., a ``turnkey'' project). Here, the contractor would be the only

party needing a permit. It is under this scenario that an individual

having a personal residence built for his own use (e.g., not those to

be sold for profit or used as rental property) would not be considered

an

[[Page 36491]]

operator. EPA believes that the general contractor, being a

professional in the building industry, should be the entity rather than

the individual who is better equipped to meet the requirements of both

applying for permit coverage and developing and properly implementing a

SWPPP. However, individuals would meet the definition of ``operator''

and require permit coverage in instances where they perform general

contracting duties for construction of their personal residences.

Owner and Contractor as Co-Permittees. The owner

retains control over any changes to site plans, SWPPPs, or storm water

conveyance or control designs; but the contractor is responsible for

overseeing actual earth disturbing activities and daily implementation

of SWPPP and other permit conditions. In this case, both parties may

need coverage.

However, you are probably not an operator and subsequently do not

need permit coverage if:

You are a subcontractor hired by, and under the

supervision of, the owner or a general contractor (i.e., if the

contractor directs your activities on-site, you probably are not an

operator); or

your activities on site result in earth disturbance and

you are not legally a subcontractor, but a SWPPP specifically

identifies someone other than you (or your subcontractor) as the party

having operational control to address the impacts your activities may

have on storm water quality (i.e., another operator has assumed

responsibility for the impacts of your construction activities). This

particular provision will apply to most utility service line

installations. For further information concerning whether utility

service line installations meet the definition of operator and require

permit coverage, see the discussion under ``Installation of Utility

Service Lines'' in Section VIII, Summary Response to Public Comments of

the Fact Sheet.

In addition, for purposes of this permit and determining who is an

operator, ``owner'' refers to the party that owns the structure being

built. Ownership of the land where construction is occurring does not

necessarily imply the property owner is an operator (e.g., a landowner

whose property is being disturbed by construction of a gas pipeline).

Likewise, if the erection of a structure has been contracted for, but

possession of the title or lease to the land or structure is not to

occur until after construction, the would-be owner may not be

considered an operator (e.g., having a house built by a residential

homebuilder).

My Project Will Disturb Less Than Five Acres, but it May Be Part of a

``Larger Common Plan of Development or Sale.'' How Can I Tell and What

Must I do?

If your smaller project is part of a larger common plan of

development or sale that collectively will disturb five or more acres

(e.g., you are building on six half-acre residential lots in a 10-acre

development or are putting in a parking lot in a large retail center)

you need permit coverage. The ``plan'' in a common plan of development

or sale is broadly defined as any announcement or piece of

documentation (including a sign, public notice or hearing, sales pitch,

advertisement, drawing, permit application, zoning request, computer

design, etc.) or physical demarcation (including boundary signs, lot

stakes, surveyor markings, etc.) indicating construction activities may

occur on a specific plot. You must still meet the definition of

operator in order to be required to get permit coverage, regardless of

the acreage you personally disturb. As a subcontractor, it is unlikely

you would need a permit.

For some situations where less than five acres of the original

common plan of development remain undeveloped, a permit may not be

needed for the construction projects ``filling in'' the last parts of

the common plan of development. A case in which a permit would not be

needed is where several empty lots totaling less than five acres remain

after the rest of the project had been completed, providing

stabilization had also been completed for the entire project. However,

if the total area of all the undeveloped lots in the original common

plan of development was more than five acres, a permit would be needed.

When Can You Consider Future Construction on a Property To Be Part of a

Separate Plan of Development or Sale?

In many cases, a common plan of development or sale consists of

many small construction projects that collectively add up to five (5)

or more acres of total disturbed land. For example, an original common

plan of development for a residential subdivision might lay out the

streets, house lots, and areas for parks, schools and commercial

development that the developer plans to build or sell to others for

development. All these areas would remain part of the common plan of

development or sale until the intended construction occurs. After this

initial plan is completed for a particular parcel, any subsequent

development or redevelopment of that parcel would be regarded as a new

plan of development, and would then be subject to the five-acre cutoff

for storm water permitting.

What Must I do to Satisfy The Permit Eligibility Requirements Related

to Endangered Species?

In order to be eligible for this permit, you must follow the

procedures and examples found in Addendum A for the protection of

endangered species. You cannot submit your NOI until you are able to

certify your eligibility for the permit. Enough lead time should be

built into your project schedule to accomplish these procedures. If

another operator has certified eligibility for the project (or at least

the portion of the project you will be working on) in his NOI, you will

usually be able to rely on his certification of project eligibility and

not have to repeat the process. EPA created this ``coat tail''

eligibility option for protection of endangered species to allow the

site developer/owner to obtain up-front ``clearance'' for a project,

thereby avoiding duplication of effort by his contractors and

unnecessary delays in construction.

What Does the Permit Require Regarding Historic Preservation?

Today's permit does not currently impose requirements related to

historic preservation, though EPA may modify the permit at a later date

after further discussions with the Advisory Council on Historic

Preservation. Therefore, under today's permit, EPA will conduct

consultations as it did under the pre-existing Baseline Construction

General Permit on a case-by-case basis as needed. Removal of the

proposed permit provisions related to historic preservation in no way

relieves applicants and permittees of their obligations to comply with

applicable State, Tribal or local laws for the preservation of historic

properties. EPA reminds permittees that according to section 110(k) of

the National Historic Preservation Act (NHPA), an intentional action to

significantly adversely affect historic resources with intent to avoid

Federal historic preservation requirements may jeopardize future permit

coverage for such a permittee.

How Many Notices of Intent (NOIs) Must I Submit? Where and When Are

They Sent?

You only need to submit one NOI to cover all activities on any one

common plan of development or sale. The site map you develop for the

storm water pollution prevention plan identifies which parts of the

overall project are

[[Page 36492]]

under your control. For example, if you are a homebuilder in a

residential development, you need submit only one NOI to cover all your

lots, even if they are on opposite sides of the development.

The NOI must be postmarked two days before you begin work on site.

The address for submitting NOIs is found in the instruction portion of

the NOI form and in Part II.C. of the CGP. You must also look in Part X

of the permit to determine if copies of the NOI form are to be sent to

a State or Indian Tribe.

If I Am on an ongoing Construction Project, do I Have to Fill in a New

NOI To Be Covered by the Permit?

Yes, if you are on an ongoing construction project, a construction

project which started prior to the effective date of this permit, you

must complete a revised NOI Form (EPA Form 3510-9) to obtain coverage

under this permit. However, applicants who have previously submitted an

NOI for permit coverage prior to the effective date of this permit have

the option to leave the section regarding Addendum A on endangered

species blank unless there is a potential impact on endangered species

or their habitat.

How do I Know Which Permit Conditions Apply to Me?

You are responsible for complying with all parts of the permit that

are applicable to the construction activities you perform. Part III.E.

of the permit defines the roles of various operators at a site. In

addition, several States and Indian Tribes require alternative or

additional permit conditions, and these can be found in Part X of the

permit.

Do I Have Flexibility in Preparing the Storm Water Pollution Prevention

Plan (SWPPP) and Selecting Best Management Practices (BMPs) for My

Site?

Storm water pollution prevention plan requirements were designed to

allow maximum flexibility to develop the needed storm water controls

based on the specifics of the site. Some of the factors you might

consider include: more stringent local development requirements and/or

building codes; precipitation patterns for the area at the time the

project will be underway; soil types; slopes; layout of structures for

the site; sensitivity of nearby water bodies; safety concerns of the

storm water controls (e.g., potential hazards of water in storm water

retention ponds to the safety of children; the potential of drawing

birds to retention ponds and the hazards they pose to aircraft); and

coordination with other site operators.

Must Every Permittee Have His Own Separate SWPPP or Is a Joint Plan

Allowed?

The only requirement is that there be at least one SWPPP for a site

which incorporates the required elements for all operators, but there

can be separate plans if individual permittees so desire. EPA

encourages permittees to explore possible cost savings by having a

joint SWPPP for several operators. For example, the prime developer

could assume the inspection responsibilities for the entire site, while

each homebuilder shares in the installation and maintenance of sediment

traps serving common areas.

If a Project Will Not Be Completed Before This Permit Expires, How Can

I Keep Permit Coverage?

If the permit is reissued or replaced with a new one before the

current one expires, you will need to comply with whatever conditions

the new permit requires in order to transition coverage from the old

permit. This usually includes submitting a new NOI. If the permit

expires before a replacement permit can be issued, the permit will be

administratively ``continued.'' You are automatically covered under the

continued permit, without needing to submit anything to EPA, until the

earliest of:

The permit being reissued or replaced;

Submittal of a Notice of Termination (NOT);

Issuance of an individual permit for your activity; or

The Director issues a formal decision not to reissue

the permit, at which time you must seek coverage under an alternative

permit.

When Can I Terminate Permit Coverage? Can I Terminate Coverage (i.e.,

Liability for Permit Compliance) Before the Entire Project Is Finished?

You can submit an NOT for your portion of a site providing: (1) You

have achieved final stabilization of the portion of the site for which

you are a permittee (including, if applicable, returning agricultural

land to its pre-construction agricultural use); (2) another operator/

permittee has assumed control according to Part VI.G.2.c. of the permit

over all areas of the site that have not been finally stabilized which

you were responsible for (for example, a developer can pass permit

responsibility for lots in a subdivision to the homebuilder who

purchases those lots, providing the homebuilder has filed his own NOI);

or (3) for residential construction only, you have completed temporary

stabilization and the residence has been transferred to the homeowner.

III. Section 401 Certification and Coastal Zone Management Act

Section 401 of the Clean Water Act states that EPA may not issue an

NPDES permit until the State in which the discharge will originate

grants or waives certification to ensure compliance with appropriate

requirements of the Act and State law. The Region has received section

401 certification from the appropriate States and Indian Tribes for all

facilities covered by today's permits. Additional permit requirements

were required as a condition of certification by the State of Texas and

by the Pueblos of Isleta, Nambe, Picuris, Pojoaque, Sandia, Tesuque and

Santa Clara in New Mexico. These additional permit requirements are

contained in Part X of the permits.

The Coastal Zone Management Act (CZMA) requires all Federal

permitting actions to be reviewed for consistency with each approved

State Coastal Zone Management Plan. Texas is the only State covered by

these permits that has an approved Coastal Zone Management Plan. EPA

Region 6 has determined that the permit is consistent with the Texas

Coastal Zone Management Plan. The Texas Coastal Zone Management Plan

procedures for Federal consistency with Coastal Management Program

goals and policies (31 TAC 506.12) state that if an activity requiring

a state agency or subdivision action above thresholds requires an

equivalent Federal permit, the Texas Coastal Coordination Council may

determine the consistency of the state agency/subdivision action or the

Federal permit, but not both. Permittees whose construction projects

are located within the boundary of the Texas Coastal Management Program

above thresholds will be required, as a part of pre-construction

project approval, to have a consistency review by the Texas Council. An

additional consistency review by the Texas Coastal Coordination Council

of the storm water discharges from these construction projects covered

by today's permit is, therefore, not required.

IV. Endangered Species Protection

A. Background

The Construction General Permit (CGP) also contains conditions to

ensure the activities regulated by it are protective of species that

are listed under the Endangered Species Act (ESA) as endangered or

threatened (known as ``listed species''), and listed species habitat

that is designated under

[[Page 36493]]

the ESA as critical (``critical habitat''). In addition, the permit's

coverage does not extend to discharges and discharge-related activities

likely to jeopardize the continued existence of species proposed but

not yet listed as endangered or threatened or result in the adverse

modification of habitat proposed to be designated critical habitat.

The ESA places several different requirements on activities covered

by the CGP. First, section 9 of the ESA and the ESA implementing

regulations generally prohibit any person from ``taking'' a listed

animal species (e.g., harassing or harming it) unless the take is

authorized under the ESA. This prohibition applies to all entities and

includes EPA, permit applicants, permittees and the public at large.

Second, section 7(a)(2) of the ESA requires that Federal agencies

consult with the Fish and Wildlife Service (FWS) or the National Marine

Fisheries Service (NMFS) (``the Services'') to insure that any action

authorized, funded or carried out by them (also known as ``agency

actions'') are not likely to jeopardize the continued existence of any

listed species or result in the destruction or adverse modification of

critical habitat. Jeopardizing the continued existence of a listed

species means to engage in an action that reasonably would be expected,

directly or indirectly, to reduce appreciably the likelihood of both

the survival and recovery of a listed species in the wild by reducing

the reproduction, numbers or distribution of that species (See 40 CFR

402.02).

The ESA section 7 implementing regulations at 50 CFR 402 apply this

consultation requirement to any action authorized by a Federal agency

that may affect listed species or critical habitat, including permits.

This effect, among other things, can be beneficial, detrimental, direct

and indirect. The issuance of the CGP by EPA is thus subject to the ESA

section 7(a)(2) consultation requirements. Finally, ESA section 7(a)(1)

directs Federal agencies to use their authority to further the purposes

of the ESA by carrying out programs for the conservation of listed

species, and section 7(a)(4) directs Federal agencies to confer with

the Services on Agency actions likely to jeopardize the existence of

species proposed but not yet finally listed or result in the adverse

modification of critical habitat proposed to be designated.

The ESA regulations provide for two types of consultation: formal

and informal. Informal consultation is an optional process that

includes discussions, correspondence, etc. between the Services and a

Federal agency or a designated non-Federal representative (NFR) to

determine whether a Federal action is likely to have an adverse effect

on listed species or critical habitat. During informal consultation the

Services may suggest modifications to the action that a Federal agency,

permit applicant or non-Federal representative could implement to avoid

likely adverse effects to listed species or critical habitat. If

adverse effects are likely and those effects cannot be addressed

through informal consultation, then formal consultation generally

occurs.

Also of relevance for the CGP are ESA section 10 incidental taking

permits. Section 10 of the ESA allows persons, including non-Federal

entities to incidentally take listed animal species, where otherwise

prohibited, through the issuance of a permit after development of a

habitat conservation plan (HCP). These procedures were developed to

allow non-Federal entities such as developers to, among other things,

alter habitat without incurring takings liability where take is

minimized to the extent practicable.

B. Conditions in the June 2, 1997 Proposed Permit To Protect Species

and Critical Habitat

The CGP was proposed with a number of conditions to ensure that

storm water discharges and best management practices (BMPs) to control

storm water runoff were protective of listed species or critical

habitat. Specifically, coverage under the proposed CGP would be granted

only under the following circumstances:

1. An applicant's storm water discharges or BMPs to control storm

water runoff were not likely to adversely affect listed species

(identified in Addendum A of the permit) or critical habitat; or

2. The applicant's activity was previously authorized under Sec. 7

or Sec. 10 of the Endangered Species Act (ESA) and that authorization

addressed storm water discharges and BMPs to control storm water

runoff; or

3. The applicant's activity was considered as part of a larger,

more comprehensive assessment of impacts on endangered and threatened

species under Sec. 7 or Sec. 10 of the ESA which accounted for storm

water discharges and BMPs to control storm water runoff; or

4. Consultation under Sec. 7 of the ESA was conducted for the

applicant's activity which resulted in either a no jeopardy opinion or

a written concurrence on a finding of no likelihood of adverse effects;

or

5. The applicant's activity was considered as part of a larger,

more comprehensive site-specific assessment of impacts on endangered

and threatened species by the owner or other operator of the site and

that permittee certified eligibility under items 1., 2., 3. or 4.

above.

The proposal required that applicants assess the impacts of their

``storm water discharges'' and ``BMPs to control storm water runoff''

on listed species and critical habitat that are located ``in

proximity'' to the those discharges and BMPs when developing Storm

Water Pollution Prevention Plans (SWPPPs) as part of the application

process. The proposed CGP also required applicants to include measures

in SWPPPs to protect listed species and critical habitat. ``In

proximity'' was defined in Addendum A to include species:

Located in the path or immediate area through which or

over which contaminated point source storm water flows from

construction activities to the point of discharge into the receiving

water;

Located in the immediate vicinity of, or nearby, the

point of discharge into receiving waters; or

Located in the area of a site where storm water BMPs

are planned or are to be constructed.

EPA also solicited comment on whether the area or scope of impacts

to be considered by applicants should be broadened to encompass listed

species found on the entire construction site and not just those

species found ``in proximity'' as currently defined in Addendum A.

Failure by permittees to abide by measures in their SWPPPs to

protect species and critical habitat would invalidate permit coverage.

Attached to the proposed permits were instructions (Addendum A) to

assist permit applicants in making this inquiry. The proposal indicated

that a county-by-county species list would be included in Addendum A of

the final permit to assist applicants in determining if listed species

might be ``in proximity'' to storm water discharges and BMPs. EPA did

not provide a draft species list in proposed Addendum A. Instead, EPA

referred commenters to a similar species list that was used for an

earlier EPA-issued storm water permit, the Multisector Storm Water

General Permit, that was issued on September 29, 1995 (See 62 FR 29792,

note 12, June 2, 1997).

[[Page 36494]]

C. Final CGP Conditions To Protect Listed Species

On April 28, 1997, EPA entered into formal consultation with the

Fish and Wildlife Service (FWS) and the National Marine Fisheries

Service (NMFS) (the ``Services'') for issuance of the CGP. After

discussions with the Services, EPA terminated formal consultation and

entered into ESA section 7 informal consultation and conferencing with

the Fish and Wildlife Service (FWS) and the National Fisheries Service

Services (NMFS) on June 11, 1997. On November 4, and 26, 1997, EPA

completed ESA informal consultation when NMFS and FWS provided their

respective concurrences with EPA's finding that issuance of the CGP was

not likely to adversely affect listed species or critical habitat.

However, the negotiations on CGP did not consider ongoing construction

projects; i.e., construction projects which started prior to the

effective date of these permits.

In January, 1998, Region 6 decided to address ESA certification

issues for ongoing construction projects before finalizing the permit.

In February, 1998, EPA Region 6 began a supplemental informal

consultation with FWS and NMFS on language to clarify requirements for

ongoing construction activity. EPA Region 6 completed ESA informal

section 7 consultation and conferencing when FWS and NMFS provided

their concurrences that issuance of these permits is unlikely to

adversely affect listed species or critical habitat on June 9, and 15,

respectively. With the completion of these consultations, EPA Region 6

has reduced the administrative burden associated with obtaining permit

coverage for ongoing construction projects for the federal agencies and

the regulated community.

Based on that consultation and in consideration of comments

received on the June 2, 1997, proposal, EPA has placed the following

conditions in the permit to protect listed species and critical habitat

(See Part I.B.3.e). Coverage under the CGP is available for

construction projects only if:

a. The storm water discharges and storm water discharge-related

activities are not likely to adversely affect listed species or

critical habitat (Part I.B.3.e.(2)(a)); or

b. Formal or informal consultation with the Services under section

7 of the Endangered Species Act (ESA) has been concluded which

addresses the effects of the applicant's storm water discharges and

storm water discharge-related activities on listed species and critical

habitat and the consultation results in either a no jeopardy opinion or

a written concurrence by the Service(s) on a finding that the

applicant's storm water discharges and storm water discharge-related

activities are not likely to adversely affect listed species or

critical habitat. A section 7 consultation may occur in the context of

another Federal on (e.g., an ESA section 7 consultation was performed

for issuance of a wetlands dredge and fill permit for the project, or

as part of a National Environmental Policy Act [NEPA] review); or

c. The applicant's construction activities are covered by a permit

under section 10 of the ESA and that permit addresses the effects of

the applicant's storm water discharges and storm water discharge-

related activities on listed species and critical habitat (Part

I.B.3.e.(2)(c)); or

d. The applicant's storm water discharges and storm water

discharge-related activities were already addressed in another

operator's certification of eligibility under Part I.B.3.e.(2)(a), (b),

or (c) which included the applicant's project area. By certifying

eligibility under Part I.B.3.e.(2)(d), the applicant agrees to comply

with any measures or controls upon which the other operator's

certification under Part I.B.3.e.(2)(a), (b) or (c) was based.

The CGP requires that applicants consider effects to listed species

and critical habitat when developing SWPPPs and require that those

plans include measures, as appropriate, to protect those resources.

Failure by permittees to abide by measures in the SWPPPs to protect

species and critical habitat may invalidate permit coverage.

This permit requires all projects commencing construction after the

effective date of this permit, to follow the procedures provided in

Addendum A of the permit when applying for permit coverage. The

Director may also require any existing permittee or applicant to

provide documentation of eligibility for this permit using the

procedures in Addendum A, where EPA or the Fish and Wildlife Services

determine that there is a potential impaction on endangered or

threatened species or a critical habitat. Nothing in the permit

relieves applicants which are under construction as of the effective

date of this permit of their obligations they may have to comply with

any requirements of the Endangered Species Act.

Addendum A contains instructions to assist permit applicants in

making this inquiry. Those instructions require that applicants

ascertain: (1) If their construction activities would occur in critical

habitat; (2) whether listed species are in the project area; and (3)

whether the applicant's storm water discharges and discharge-related

activities are likely to adversely affect listed species or critical

habitat. If adverse effects are likely, then applicants would have to

meet one of the eligibility requirements of Part I.B.3.e.(2)(b)-(d)

(paragraphs b., c., and d. above) to receive permit coverage.

``Discharge-related activities'' include activities which cause point

source storm water pollutant discharges including but not limited to

excavation, site development, and other surface disturbing activities,

and measures to control, reduce or prevent storm water pollution

including the siting, construction and operation of BMPs. The ``project

area'' includes:

1. Area(s) on the construction site where storm water discharges

originate and flow towards the point of discharge into the receiving

waters (this includes the entire area or areas where excavation, site

development, or other ground disturbance activities occur), and the

immediate vicinity;

2. Area(s) where storm water discharges flow from the construction

site to the point of discharge into receiving waters;

3. Area(s) where storm water from construction activities

discharges into the receiving waters and the area(s) in the immediate

vicinity of the point of discharge; and

4. Area(s) where storm water BMPs will be constructed and operated,

including any area(s) where storm water flows to and from BMPs.

The project area will vary with the size and structure of the

construction activity, the nature and quantity of the storm water

discharges, the measures (including BMPs) to control storm water

runoff, and the type of receiving waters.

Addendum A also contains information on where to find information

on listed and proposed species organized by State and county to assist

applicants in determining if further inquiry is necessary as to whether

listed species are present in the project area. Applicants can check

the Office of Wastewater Management's website (http://www.epa.gov/owm).

CGP applicants can also get updated species information for their

county by calling the appropriate FWS or NMFS office. EPA Region 6

applicants can also contact the EPA Region 6 Storm Water Hotline (1-

800-245-6510) for updated species information.

The CGP also requires that applicants comply with any conditions

imposed under the eligibility requirements of Part I.B.3.e.(2)a., b.,

c., or d. above to remain eligible for coverage under this

[[Page 36495]]

permit. Such conditions must be incorporated in the applicant's SWPPP.

The CGP does not authorize any prohibited take (as defined under

section 3 of the ESA and 50 CFR 17.3) of endangered or threatened

species unless such takes are authorized under sections 7 or 10 of the

ESA. The CGP does not authorize any storm water discharges or storm

water discharge-related activities that are likely to jeopardize the

continued existence of any species that are listed or proposed to be

listed as endangered or threatened under the ESA or result in the

adverse modification or destruction of habitat that is designated or

proposed to be designated as critical under the ESA.

It is EPA's intention to provide permit applicants with the

greatest possible flexibility in meeting permit requirements for

protecting listed species and critical habitat. Thus, EPA is allowing

applicants to use either section 7 or section 10 ESA mechanisms to

address situations where adverse effects are likely (See Part

I.B.3.e.(2)(b) and (c)). Also, to give applicants additional

flexibility in meeting the Part I.B.3.e. eligibility requirements and

with the timing of informal consultations, the permit automatically

designates CGP applicants as non-Federal representatives for the

purpose of carrying out informal consultation. However, EPA notes that

meeting ESA requirements raises difficult implementation issues on how

to best ensure that the permits are protective of listed species and

critical habitats without unduly burdening permit applicants,

permittees, and State, local, and Federal governmental entities. Thus,

EPA intends in the future to review those permit conditions and

procedures that relate to the ESA and the protection of historic

resources to see how well that goal has been achieved and may revise

the permits if necessary to better achieve that goal.

V. Historic Property Protection

A. Background

The National Historic Preservation Act of 1966, as amended, (NHPA)

establishes a national historic preservation program for the

identification and protection of historic properties and resources.

Under the NHPA, identification of historic properties is coordinated by

the State Historic Preservation Officers (SHPOs), Tribal Historic

Preservation Officers (THPOs) or other Tribal Representatives (in the

absence of a THPO). Section 106 of the NHPA requires Federal agencies

to take into account the effects of their actions on historic

properties that are listed or eligible for listing on the National

Register of Historic Places and to seek comments from the Advisory

Council on Historic Preservation (ACHP). The permit was proposed with a

number of conditions pertaining to the consideration of historic

properties. EPA has decided to not include those conditions because the

ACHP and the National Conference of State Historic Preservation

Officers (NCSHPO) have requested that EPA not include such conditions

in the final permit at this time. The ACHP and the NCSHPO have

recommended that EPA issue the permit but recommend that EPA continue

working with them and Tribes regarding the possible development of a

more comprehensive and efficient approach to ensure that effects to

historic properties are given appropriate consideration while ensuring

undue burdens are not imposed on applicants and regulatory authorities.

EPA plans to continue working with the ACHP, NCSHPO and Tribes on this

effort and may modify the permit to incorporate procedures regarding

the protection of historic resources at a later date.

B. Future CGP Conditions To Protect or Consider Effects to Historic

Properties

In response to comments received on the permit proposal and because

the Agency is still discussing historic preservation with the Advisory

Council on Historic Preservation (ACHP), the final permit reserves

permit requirements related to historic preservation. Today's final

permit does not include the eligibility restrictions and evaluation

requirements from the proposed permit. After future discussions with

the ACHP, EPA may modify the permit to reflect those discussions.

VI. Regulatory Review (Executive Order 12866)

Under Executive Order 12866, (58 FR 51735 [October 4, 1993]) the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may have an annual effect

on the economy of $100 million or more or adversely affect in a

material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local or Tribal governments or communities; create a serious

inconsistency or otherwise interfere with an action taken or planned by

another agency; materially alter the budgetary impact of entitlements,

grants, user fees, or loan programs or the rights and obligations of

recipients thereof; or raise novel legal or policy issues arising out

of legal mandates, the President's priorities, or the principles set

forth in the Executive Order. It has been determined that this re-

issued general permit is not a ``significant regulatory action'' under

the terms of Executive Order 12866.

VII. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.

L. 104-4, establishes requirements for Federal agencies to assess the

effects of their regulatory actions on State, local, and Tribal

governments and the private sector. Under UMRA section 202, EPA

generally must prepare a written statement, including a cost-benefit

analysis, for proposed and final rules with ``Federal mandates'' that

may result in expenditures to State, local, and Tribal governments, in

the aggregate, or to the private sector, of $100 million or more in any

one year. Before promulgating an EPA rule for which a written statement

is needed, UMRA Sec. 205 generally requires EPA to identify and

consider a reasonable number of regulatory alternatives and adopt the

least costly, most cost-effective or least burdensome alternative that

achieves the objectives of the rule. The provisions of UMRA Sec. 205 do

not apply when they are inconsistent with applicable law. Moreover,

UMRA Sec. 205 allows EPA to adopt an alternative other than the least

costly, most cost-effective or least burdensome alternative if the

Administrator publishes an explanation with the final rule why the

alternative was not adopted.

Before EPA establishes any regulatory requirements that may

significantly or uniquely affect small governments, including Tribal

governments, it must have developed under UMRA Sec. 203 a small

government agency plan. The plan must provide for notifying potentially

affected small governments, enabling officials of affected small

governments to have meaningful and timely input in the development of

EPA regulatory proposals with significant Federal intergovernmental

mandates, and informing, educating and advising small governments on

compliance with the regulatory requirements.

A. UMRA Section 202 and the Construction General Permit

UMRA Sec. 202 requires a written statement containing certain

assessments, estimates and analyses prior to the promulgation of

certain general notices of proposed rulemaking (2 U.S.C. 1532). UMRA

Sec. 421(10) defines

[[Page 36496]]

``rule'' based on the definition of rule in the Regulatory Flexibility

Act. Section 601 of the Regulatory Flexibility Act defines ``rule'' to

mean any rule for which an agency publishes a general notice of

proposed rulemaking pursuant to Sec. 553 of the Administrative

Procedure Act. EPA does not propose to issue NPDES general permits

based on APA Sec. 553. Instead, EPA relies on publication of general

permits in the Federal Register in order to provide ``an opportunity

for a hearing'' under CWA Sec. 402(a), 33 U.S.C. 1342(a). Nonetheless,

EPA has evaluated permitting alternatives for regulation of storm water

discharges associated with construction activity. The general permit

that EPA proposes to re-issue would be virtually the same NPDES general

permit for construction that many construction operators have used over

the past five years. Furthermore, general permits provide a more cost

and time efficient alternative for the regulated community to obtain

NPDES permit coverage than that provided through individually drafted

permits.

B. UMRA Section 203 and the Construction General Permit

Agencies are required to prepare small government agency plans

under UMRA Sec. 203 prior to establishing any regulatory requirement

that might significantly or uniquely affect small governments.

``Regulatory requirements'' might, for example, include the

requirements of these NPDES general permits for discharges associated

with construction activity, especially if a municipality sought

coverage under one of the general permits. EPA envisions that some

municipalities--those with municipal separate storm sewer systems

serving a population over 100,000--may elect to seek coverage under

these proposed general permits. For many municipalities, however, a

permit application is not required until August 7, 2001, for a storm

water discharge associated with construction activity where the

construction site is owned or operated by a municipality with a

population of less than 100,000. (See 40 CFR 122.26(e)(1)(ii) and (g)).

In any event, any such permit requirements would not significantly

affect small governments because most State laws already provide for

the control of sedimentation and erosion in a similar manner as today's

general permit. Permit requirements also would not uniquely affect

small governments because compliance with the permit's conditions

affects small governments in the same manner as any other entity

seeking coverage under the permit. Thus, UMRA Sec. 203 would not apply.

VIII. Paperwork Reduction Act

On June 2, 1997, EPA solicited comments on the proposed revision to

the current Information Collection Request (ICR) document for this

permit (ICR approved OMB; OMB No. 2040-0086, expiration, August 31,

1998) to accommodate the increased information requirements in the new

NOI for the construction general permit (62 FR 29826). A revised NOI

form has been approved (EPA Form 3510-9 OMB No. 2040-0188.) This

revised form is included in the permit in Addendum C. EPA estimates an

increase in the burden associated with filling out the NOI form for the

permit due to added requirements under the Endangered Species Act. EPA

also anticipates a small increase in the time because of the

requirement to submit an NOT upon completion of construction

activities.

IX. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., a

Federal agency must prepare an initial regulatory flexibility analysis

``for any proposed rule'' for which the agency ``is required by section

553 of [the Administrative Procedure Act (APA)], or any other law, to

publish general notice of proposed rulemaking.'' The RFA exempts from

this requirement any rule that the issuing agency certifies ``will not,

if promulgated, have a significant economic impact on a substantial

number of small entities.''

EPA did not prepare an initial regulatory flexibility analysis

(IRFA) for the proposed CGP. (Note that in today's action, EPA is

issuing a separate general permit for each jurisdiction where EPA

issues permits; i.e., in certain States, Indian Country lands and

Federal facilities within certain States. However, for purposes of

readability, reference is made to the permits in the singular form such

as ``permit'' or ``CGP'' rather than in plural form.) In the notice of

the proposed permit, EPA explained its view that issuance of an NPDES

general permit is not subject to rulemaking requirements, including the

requirement for a general notice of proposed rulemaking, under APA

section 553 or any other law, and is thus not subject to the RFA

requirement to prepare an IRFA. Nevertheless, in keeping with EPA's

policy to consider the impact of its actions on small entities even

when it is not legally required to do so, the Agency considered the

potential impact of the permit on small entities that would be eligible

for coverage under the permit. EPA concluded that the permit, if issued

as drafted, would not have a significant impact on a substantial number

of small entities. EPA based its conclusion on the fact that the draft

permit was largely the same as the previous permit issued in 1992 and,

to the extent it differed, provided dischargers with more flexibility

than that permit allowed.

Some commenters on the proposed CGP disagreed with EPA's

conclusions that NPDES general permits are not subject to rulemaking

requirements and that the proposed permit would not have a significant

impact on small entities. They asserted that the CGP is subject to

rulemaking requirements and thus the RFA, and that the Agency should

have prepared an IRFA for the permit.

In light of the comments received, EPA further considered whether

NPDES general permits are subject to rulemaking requirements. The

Agency reviewed its previous NPDES general permitting actions and

related statements in the Federal Register or elsewhere. This review

suggests that the Agency has generally treated NPDES general permits

effectively as rules, though at times it has given contrary indications

as to whether these actions are rules or permits. EPA also reviewed

again the applicable law, including the CWA, relevant CWA case law and

the APA, as well as the Attorney General's Manual on the APA (1947). On

the basis of its review, EPA has concluded, as set forth in the

proposal, that NPDES general permits are permits under the APA and thus

not subject to APA rulemaking requirements or the RFA.

The APA defines two broad, mutually exclusive categories of agency

action--``rules'' and ``orders.'' Its definition of ``rule''

encompasses ``an agency statement of general or particular

applicability and future effect designed to implement, interpret, or

prescribe law or policy or describing the organization, procedure, or

practice requirements of an agency * * *'' APA section 551(4). Its

definition of ``order'' is residual: ``a final disposition * * * of an

agency in a matter other than rule making but including licensing.''

APA section 551(6) (emphasis added). The APA defines ``license'' to

``include * * * an agency permit * * *'' APA section 551(8). The APA

thus categorizes a permit as an order, which by the APA's definition is

not a rule.

Section 553 of the APA establishes ``rule making'' requirements.

The APA defines rule making as ``the agency process for formulating,

amending, or repealing a rule.'' APA Sec. 551(5). By its terms, then,

Sec. 553 applies only to ``rules'' and not also to ``orders,'' which

[[Page 36497]]

include permits. As the Attorney General's Manual on the APA explains,

``the entire Act is based upon a dichotomy between rule making and

adjudication [the agency process for formulation of an order]'' (p.

14).

The CWA specifies the use of permits for authorizing the discharge

of pollutants to waters of the United States. Section 301(a) of the CWA

prohibits discharges of pollutants ``[except as in compliance with''

specified sections of the CWA, including section 402. 33 U.S.C.

1311(a). Section 402 of the CWA authorizes EPA ``to issue a permit for

the discharge of any pollutant * * *, notwithstanding section [301(a)

of the CWA].'' 33 U.S.C. 1342(a). Thus, the only circumstances in which

a discharge of pollution may be authorized is where the Agency has

issued a permit for the discharge. Courts, recognizing that a permit is

the necessary condition-precedent to any lawful discharge, specifically

suggested the use of area-wide and general permits as a mechanism for

addressing the Agency's need to issue a substantial number of permits.

See NRDC v. Train, 396 F.Supp. 1393, 1402 (D.D.C. 1975); NRDC v.

Costle, 568 F.2d 1369, 1381. (D.C. Cir. 1977). Adopting the courts'

suggestion, EPA has made increasing use of general permits in its CWA

regulatory program, particularly for storm water discharges.

In the Agency's view, the fact that an NPDES general permit may

apply to a large number of different dischargers does not convert it

from a permit into a rule. As noted above, the courts which have faced

the issue of how EPA can permit large numbers of discharges under the

CWA have suggested use of a general permit, not a rule. Under the APA,

the two terms are mutually exclusive. Moreover, an NPDES general permit

retains unique characteristics that distinguish a permit from a rule.

First, today's NPDES general permit for storm water discharges

associated with construction activity is effective only with respect to

those dischargers that choose to be bound by the permit. Thus, unlike

the typical rule, this NPDES general permit does not impose immediately

effective obligations of general applicability. A discharger must

choose to be covered by this general permit and so notify EPA. A

discharger always retains the option of obtaining its own individual

permit. Relatedly, the terms of the NPDES general permit are

enforceable only against dischargers that choose to make use of the

permit. If a source discharges without authorization of a general or an

individual permit, the discharger violates Sec. 301 of the Act for

discharging without a permit, not for violating the terms of an NPDES

general permit.

Because the CWA and its case law make clear that NPDES permits are

the congressionally chosen vehicle for authorizing discharges of

pollutants to waters of the United States, the APA's rulemaking

requirements are inapplicable to issuance of such permits, including

today's general permit. Further, while the CWA requires that NPDES

permits be issued only after an opportunity for a hearing, it does not

require publication of a general notice of proposed rulemaking. Thus,

NPDES permitting is not subject to the requirement to publish a general

notice of proposed rulemaking under the APA or any other law.

Accordingly, it is not subject to the RFA.

At the same time, the Agency recognizes that the question of the

applicability of the APA, and thus the RFA, to the issuance of a

general permit is a difficult one, given the fact that a large number

of dischargers may choose to use the general permit. Indeed, the point

of issuing a general permit is to provide a speedier means of

permitting large number of sources and save dischargers and EPA time

and effort. Since the Agency hopes that many dischargers will make use

of a general permit and since the CWA requires EPA to provide an

opportunity for ``a hearing'' prior to issuance of a permit, EPA

provides the public with notice of a draft general permit and an

opportunity to comment on it. From public comments, EPA learns how to

better craft a general permit to make it appropriate for, and

acceptable to, the largest number of potential permittees. This same

process also provides an opportunity for EPA to consider the potential

impact of general permit terms on small entities and how to craft the

permit to avoid any undue burden on small entities. This process,

however, is voluntary, and does not trigger rulemaking or RFA

requirements.

In the case of the CGP being issued today, the Agency has

considered and addressed the potential impact of the general permit on

small entities in a manner that would meet the requirements of the RFA

if it applied. Specifically, EPA has analyzed the potential impact of

the general permit on small entities and found that it will not have a

significant economic impact on a substantial number of small entities.

Like the previous general permit that it replaces (the Baseline

Construction General Permit), the permit will make available to many

small entities, particularly operators of construction sites, a

streamlined process for obtaining authorization to discharge. Of the

possible permitting mechanisms available to dischargers subject to the

CWA, NPDES general permits are designed to reduce the reporting and

monitoring burden associated with NPDES permit authorization,

especially for small entities with discharges having comparatively less

potential for environmental degradation than discharges typically

regulated under individual NPDES permits. Thus, general permits like

the permit at issue here provide small entities with a permitting

application option that is much less burdensome than NPDES individual

permit applications.

Furthermore, the general permit is virtually identical to its

predecessor, the Baseline Construction General Permit, under which many

construction operators have operated during the past five years.

Moreover, the other new provisions of the permit have been designed to

minimize burdens on small entities, including eliminating the

requirement that construction site operators require that their

contractors and subcontractors sign a standard certification statement

agreeing to abide by storm water pollution prevention plan provisions

developed for a project. In today's general permit, only the

operator(s) of a construction site are required to satisfy

certification requirements under the permit. EPA believes this

modification from the prior permit should reduce any such adverse

economic impacts on both operators and contractors/subcontractors who,

in many instances, are small entities. In view of the foregoing, the

Regional Administrators find that the final general permit, even if it

were a rule, will not have a significant economic impact on a

substantial number of small entities.

Storm Water General Permit for Construction Activities in Region 6

NPDES Permit No. [See Part I.A.]

Authorization to Discharge Under the National Pollutant Discharge

Elimination System

In compliance with the provisions of the Clean Water Act, as

amended, (33 U.S.C. 1251 et. seq.), except as provided in Part I.B.3 of

this permit, operators of construction activities located in an area

specified in Part I.A. and who submit a Notice of Intent in accordance

with Part II, are authorized to discharge pollutants to waters of the

United States in accordance with the conditions and requirements set

forth herein.

This permit shall become effective on [insert the date of

publication of the final permit in the Federal Register].

[[Page 36498]]

This permit and the authorization to discharge shall expire at

midnight, July 7, 2003.

Signed: June 24, 1998.

William B. Hathaway,

Director, Water Quality Protection Division.

NPDES General Permits for Storm Water Discharges from Construction

Activities

Table of Contents

Part I. Coverage Under this Permit

A. Permit Area

B. Eligibility

C. Obtaining Authorization

D. Terminating Coverage

Part II. Notice of Intent Requirements

A. Deadlines for Notification

B. Contents of Notice of Intent

C. Where to Submit

Part III. Special Conditions, Management Practices, and Other Non-

Numeric Limitations

A. Prohibition on Non-Storm Water Discharges

B. Releases in Excess of Reportable Quantities

C. Spills

D. Discharge Compliance with Water Quality Standards

E. Responsibilities of Operators

F. Consistency with the Texas Coastal Management Program

Part IV. Storm Water Pollution Prevention Plans

A. Deadlines for Plan Preparation and Compliance

B. Signature, Plan Review and Making Plans Available

C. Keeping Plans Current

D. Contents of Plan

Part V. Retention of Records

A. Documents

B. Accessibility

C. Addresses

Part VI. Standard Permit Conditions

A. Duty to Comply

B. Continuation of the Expired General Permit

C. Need to Halt or Reduce Activity not a Defense

D. Duty to Mitigate

E. Duty to Provide Information.

F. Other Information

G. Signatory Requirements

H. Penalties for Falsification of Reports

I. Oil and Hazardous Substance Liability

J. Property Rights

K. Severability

L. Requiring an Individual Permit or an Alternative General

Permit

M. State/Tribal Environmental Laws

N. Proper Operation and Maintenance

O. Inspection and Entry

P. Permit Actions

Part VII. Reopener Clause

Part VIII. Termination of Coverage

A. Notice of Termination

B. Addresses

Part IX. Definitions

Part X. Permit Conditions Applicable to Specific States, Indian

Country Lands, or Territories

Addenda

A. Endangered Species

B. Historic Properties (Reserved)

C. Notice of Intent (NOI) Form

D. Notice of Termination (NOT) Form

Part I. Coverage Under This Permit

A. Permit Area

The permit language is structured as if it were a single permit,

with State, Indian Country land, or other area-specific conditions

specified in Part X. Permit coverage is actually provided by legally

separate and distinctly numbered permits covering each of the following

areas:

Region 6

LAR10*##I: Indian Country lands in the State of Louisiana

NMR10*###: The State of New Mexico, except Indian Country lands

NMR10*##I: Indian Country lands in the State of New Mexico, except

Navajo Reservation Lands and Ute Mountain Reservation Lands

OKR10*##I: Indian Country lands in the State of Oklahoma

OKR10*##F: Oil and Gas Sites in State of Oklahoma

TXR10*###: The State of Texas, except Indian Country lands

TXR10*##I: Indian Country lands in the State of Texas

B. Eligibility

1. Permittees are authorized to discharge pollutants in storm water

runoff associated with construction activities as defined in 40 CFR

122.26(b)(14)(x) and those construction site discharges designated by

the Director as needing a storm water permit under 122.26(a)(1)(v) or

under 122.26(a)(9) and 122.26(g)(1)(i). Discharges identified under

Part I.B.3 are excluded from coverage. Any discharge authorized by a

different NPDES permit may be commingled with discharges authorized by

this permit.

2. This permit also authorizes storm water discharges from support

activities (e.g., concrete or asphalt batch plants, equipment staging

yards, material storage areas, excavated material disposal areas,

borrow areas) provided:

a. The support activity is directly related to a construction site

that is required to have NPDES permit coverage for discharges of storm

water associated with construction activity;

b. The support activity is not a commercial operation serving

multiple unrelated construction projects by different operators, and

does not operate beyond the completion of the construction activity at

the last construction project it supports; and

c. Appropriate controls and measures are identified in a storm

water pollution prevention plan covering the discharges from the

support activity areas.

3. Limitations on Coverage

a. Post Construction Discharges. This permit does not authorize

storm water discharges that originate from the site after construction

activities have been completed and the site, including any temporary

support activity site, has undergone final stabilization. Industrial

post-construction storm water discharges may need to be covered by a

separate NPDES permit.

b. Discharges Mixed with Non-Storm Water. This permit does not

authorize discharges that are mixed with sources of non-storm water,

other than those discharges which are identified in Part III.A.2. or 3.

(exceptions to prohibition on non-storm water discharges) and are in

compliance with Part IV.D.5 (non-storm water discharges).

c. Discharges Covered by Another Permit. This permit does not

authorize storm water discharges associated with construction activity

that have been covered under an individual permit or required to obtain

coverage under an alternative general permit in accordance with Part

VI.L.

d. Discharges Threatening Water Quality. This permit does not

authorize storm water discharges from construction sites that the

Director (EPA) determines will cause, or have reasonable potential to

cause or contribute to, violations of water quality standards. Where

such determinations have been made, the Director may notify the

operator(s) that an individual permit application is necessary in

accordance with Part VI.L. However, the Director may authorize coverage

under this permit after appropriate controls and implementation

procedures designed to bring the discharges into compliance with water

quality standards have been included in the storm water pollution

prevention plan;

e. Storm water discharges and storm water discharge-related

activities that are not protective of Federally listed endangered and

threatened (``listed'') species or designated critical habitat

(``critical habitat'').

(1) For the purposes of complying with the Part I.B.3.e.

eligibility requirements, ``storm water discharge-related activities''

include:

(a) Activities which cause, contribute to, or result in point

source storm water pollutant discharges, including but not limited to:

excavation, site development, grading and other surface disturbance

activities; and

(b) Measures to control storm water including the siting,

construction and operation of best management practices

[[Page 36499]]

(BMPs) to control, reduce or prevent storm water pollution.

(2) Coverage under this permit is available only if the applicant

certifies that it meets at least one of the criteria in paragraphs (a)-

(d) below. Failure to continue to meet one of these criteria during the

term of the permit will render a permittee ineligible for coverage

under this permit.

(a) The storm water discharges and storm water discharge-related

activities are not likely to adversely affect listed species or

critical habitat; or

(b) Formal or informal consultation with the Fish and Wildlife

Service and/or the National Marine Fisheries Service (the ``Services'')

under section 7 of the Endangered Species Act (ESA) has been concluded

which addresses the effects of the applicant's storm water discharges

and storm water discharge-related activities on listed species and

critical habitat and the consultation results in either a no jeopardy

opinion or a written concurrence by the Service(s) on a finding that

the applicant's storm water discharges and storm water discharge-

related activities are not likely to adversely affect listed species or

critical habitat. A section 7 consultation may occur in the context of

another Federal action (e.g., a ESA section 7 consultation was

performed for issuance of a wetlands dredge and fill permit for the

project, or as part of a National Environmental Policy Act (NEPA)

review); or

(c) The applicant's construction activities are authorized under

section 10 of the ESA and that authorization addresses the effects of

the applicant's storm water discharges and storm water discharge-

related activities on listed species and critical habitat; or

(d) The applicant's storm water discharges and storm water

discharge-related activities were already addressed in another

operator's certification of eligibility under Part I.B.3.e.(2)(a), (b),

or (c) which included the applicant's project area. By certifying

eligibility under Part I.B.3.e.(2)(d), the applicant agrees to comply

with any measures or controls upon which the other operator's

certification under Part I.B.3.e.(2)(a), (b) or (c) was based.

(3) For all projects commencing construction after the effective

date of this permit, applicants must follow the procedures provided at

Addendum A of this permit when applying for permit coverage. The

Director may also require any existing permittee or applicant to

provide documentation of eligibility for this permit using the

procedures in Addendum A, where EPA or the Fish and Wildlife Services

determine that there is a potential impaction on endangered or

threatened species or a critical habitat. Nothing in this permit

relieves applicants which are under construction as of the effective

date of this permit of their obligations they may have to comply with

any requirements of the Endangered Species Act.

(4) The applicant must comply with any applicable terms, conditions

or other requirements developed in the process of meeting eligibility

requirements of Part I.B.3.e.(2)(a), (b), (c), or (d) above to remain

eligible for coverage under this permit. Such terms and conditions must

be incorporated in the applicant's storm water pollution prevention

plan.

(5) Applicants who choose to conduct informal consultation to meet

the eligibility requirements of Part I.B.3.e.(2)(b) are automatically

designated as non-Federal representatives under this permit. See 50 CFR

402.08. Applicants who choose to conduct informal consultation as a

non-Federal representatives must notify EPA and the appropriate Service

office in writing of that decision.

(6) This permit does not authorize any storm water discharges where

the discharges or storm water discharge-related activities cause

prohibited ``take'' (as defined under section 3 of the Endangered

Species Act and 50 CFR 17.3) of endangered or threatened species unless

such takes are authorized under sections 7 or 10 of the Endangered

Species Act.

(7) This permit does not authorize any storm water discharges where

the discharges or storm water discharge-related activities are likely

to jeopardize the continued existence of any species that are listed or

proposed to be listed as endangered or threatened under the ESA or

result in the adverse modification or destruction of habitat that is

designated or proposed to be designated as critical under the ESA.

f. Storm water Discharges and Storm Water Discharge-Related

Activities with Unconsidered Adverse Effects on Historic Properties.

(Reserved)

C. Obtaining Authorization

1. In order for storm water discharges from construction activities

to be authorized under this general permit, an operator must:

a. Meet the Part I.B eligibility requirements;

b. Except as provided in Parts II.A.5 and II.A.6, develop a storm

water pollution prevention plan (SWPPP) covering either the entire site

or all portions of the site for which they are operators (see

definition in Part IX.N) according to the requirements in Part IV. A

``joint'' SWPPP may be developed and implemented as a cooperative

effort where there is more than one operator at a site; and

c. Submit a Notice of Intent (NOI) in accordance with the

requirements of Part II, using an NOI form provided in Addendum C of

this permit. Only one NOI need be submitted to cover all of the

permittee's activities on the common plan of development or sale (e.g.,

you do not need to submit a separate NOI for each separate lot in a

residential subdivision or for two separate buildings being constructed

at a manufacturing facility, provided your SWPPP covers each area for

which you are an operator). The SWPPP must be implemented upon

commencement of construction activities.

2. Any new operator on site, including those who replace an

operator who has previously obtained permit coverage, must submit an

NOI to obtain permit coverage.

3. Unless notified by the Director to the contrary, operators who

submit a correctly completed NOI in accordance with the requirements of

this permit are authorized to discharge storm water from construction

activities under the terms and conditions of this permit two (2) days

after the date that the NOI is postmarked. The Director may deny

coverage under this permit and require submittal of an application for

an individual NPDES permit based on a review of the NOI or other

information (see Part VI.L).

D. Terminating Coverage

1. Permittees wishing to terminate coverage under this permit must

submit a Notice of Termination (NOT) in accordance with Part VIII of

this permit. Compliance with this permit is required until an NOT is

submitted. The permittee's authorization to discharge under this permit

terminates at midnight of the day the NOT is signed.

2. All permittees must submit a NOT within thirty (30) days after

one or more of the following conditions have been met:

a. Final stabilization (see definition Part IX.I) has been achieved

on all portions of the site for which the permittee is responsible

(including if applicable, returning agricultural land to its pre-

construction agricultural use);

b. Another operator/permittee has assumed control according to Part

VI.G.2.c. over all areas of the site that have not been finally

stabilized; or

c. For residential construction only, temporary stabilization has

been completed and the residence has been transferred to the homeowner.

Enforcement actions may be taken if a permittee submits a NOT

without

[[Page 36500]]

meeting one or more of these conditions.

Part II. Notice of Intent Requirements

A. Deadlines for Notification

1. Except as provided in Parts II.A.3, II.A.4, II.A.5 or II.A.6

below, parties defined as operators (see definition in Part IX.N) due

to their operational control over construction plans and

specifications, including the ability to make modifications to those

plans and specifications, must submit a Notice of Intent (NOI) in

accordance with the requirements of this Part at least two (2) days

prior to the commencement of construction activities (i.e., the initial

disturbance of soils associated with clearing, grading, excavation

activities, or other construction activities).

2. Except as provided in Parts II.A.3, II.A.4, II.A.5 or II.A.6

below, parties defined as operators (see definition in Part IX.N) due

to their day-to-day operational control over activities at a project

which are necessary to ensure compliance with a storm water pollution

prevention plan or other permit conditions (e.g., general contractor,

erosion control contractor) must submit a NOI at least two (2) days

prior to commencing work on-site.

3. For storm water discharges from construction projects where the

operator changes, including instances where an operator is added after

a NOI has been submitted under Parts II.A.1 or II.A.2, the new operator

must submit a NOI at least two (2) days before assuming operational

control over site specifications or commencing work on-site.

4. Operators are not prohibited from submitting late NOIs. When a

late NOI is submitted, authorization is only for discharges that occur

after permit coverage is granted. The Agency reserves the right to take

appropriate enforcement actions for any unpermitted activities that may

have occurred between the time construction commenced and authorization

of future discharges is granted (typically 2 days after a complete NOI

is submitted).

5. Operators of on-going construction projects as of the effective

date of this permit which received authorization to discharge for these

projects under the 1992 baseline construction general permit must:

a. Submit a NOI according to Part II.B. within 90 days of the

effective date of this permit. If the permittee is eligible to submit a

Notice of Termination (e.g., construction is finished and final

stabilization has been achieved) before the 90th day, a new NOI is not

required to be submitted;

b. For the first 90 days from the effective date of this permit,

comply with the terms and conditions of the 1992 baseline construction

general permit they were previously authorized under; and

c. Update their storm water pollution prevention plan to comply

with the requirements of Part IV within 90 days after the effective

date of this permit.

6. Operators of on-going construction projects as of the effective

date of this permit which did not receive authorization to discharge

for these projects under the 1992 baseline construction general permit

must:

a. Prepare and comply with an interim storm water pollution

prevention plan in accordance with the 1992 baseline construction

general permit prior to submitting an NOI;

b. Submit a NOI according to Part II.B; and

c. Update their storm water pollution prevention plan to comply

with the requirements of Part IV within 90 days after the effective

date of this permit.

B. Contents of Notice of Intent (NOI)

1. Use of Revised NOI Form

The revised NOI form [EPA Form 3510-9] shall be signed in

accordance with Part VI.G of this permit and shall include the

following information:

a. The name, address, and telephone number of the operator filing

the NOI for permit coverage;

b. An indication of whether the operator is a Federal, State,

Tribal, private, or other public entity;

c. The name (or other identifier), address, county, and latitude/

longitude of the construction project or site;

d. An indication of whether the project or site is located on

Indian Country lands;

e. Confirmation that a storm water pollution prevention plan

(SWPPP) has been developed or will be developed prior to commencing

construction activities, and that the SWPPP will be compliant with any

applicable local sediment and erosion control plans. Copies of SWPPPs

or permits should not be included with the NOI submission;

f. Optional information: the location where the SWPPP may be viewed

and the name and telephone number of a contact person for scheduling

viewing times;

g. The name of the receiving water(s);

h. Estimates of project start and completion dates, and estimates

of the number of acres of the site on which soil will be disturbed (if

less than 1 acre, enter ``1'');

i. Based on the instructions in Addendum A, whether any listed or

proposed threatened or endangered species, or designated critical

habitat, are in proximity to the storm water discharges or storm water

discharge-related activities to be covered by this permit;

j. Under which section(s) of Part I.B.3.e. (Endangered Species) the

applicant is certifying eligibility; and

Note that as of the effective date of this permit, reporting of

information relating to the preservation of historic properties has

been reserved and is not required at this time. Such reservation in no

way relieves applicants or permittees from any otherwise applicable

obligations or liabilities related to historic preservation under

State, Tribal or local law. After further discussions between EPA and

the Advisory Council on Historic Preservation, the Agency may modify

the permit. Any such modification may affect future Notice of Intent

reporting requirements.

C. Where To Submit

1. NOIs must be signed in accordance with Part VI.G. and sent to

the following address: Storm Water Notice of Intent (4203), US EPA, 401

M Street, SW, Washington, DC 20460.

Part III. Special Conditions, Management Practices, and Other Non-

Numeric Limitations

A. Prohibition on Non-Storm Water Discharges

1. Except as provided in Parts I.B.2 or 3 and III.A.2 or 3, all

discharges covered by this permit shall be composed entirely of storm

water associated with construction activity.

2. Discharges of material other than storm water that are in

compliance with an NPDES permit (other than this permit) issued for

that discharge may be discharged or mixed with discharges authorized by

this permit.

3. The following non-storm water discharges from active

construction sites are authorized by this permit provided the non-storm

water component of the discharge is in compliance with Part IV.D.5

(non-storm water discharges): discharges from fire fighting activities;

fire hydrant flushings; waters used to wash vehicles where detergents

are not used; water used to control dust in accordance with Part

IV.D.2.c.(2); potable water sources including waterline flushings;

routine external building wash down which does not use detergents;

pavement washwaters where spills or leaks of toxic or hazardous

materials have not occurred (unless all spilled material has been

removed) and where detergents are not used; air

[[Page 36501]]

conditioning condensate; uncontaminated ground water or spring water;

and foundation or footing drains where flows are not contaminated with

process materials such as solvents.

B. Releases in Excess of Reportable Quantities

The discharge of hazardous substances or oil in the storm water

discharge(s) from a facility shall be prevented or minimized in

accordance with the applicable storm water pollution prevention plan

for the facility. This permit does not relieve the permittee of the

reporting requirements of 40 CFR 110, 40 CFR 117 and 40 CFR 302. Where

a release containing a hazardous substance or oil in an amount equal to

or in excess of a reportable quantity established under either 40 CFR

110, 40 CFR 117 or 40 CFR 302, occurs during a 24 hour period:

1. The permittee is required to notify the National Response Center

(NRC) (800-424-8802; in the Washington, DC, metropolitan area call 202-

426-2675) in accordance with the requirements of 40 CFR 110, 40 CFR 117

and 40 CFR 302 as soon as he or she has knowledge of the discharge;

2. The storm water pollution prevention plan required under Part IV

of this permit must be modified within 14 calendar days of knowledge of

the release to: provide a description of the release, the circumstances

leading to the release, and the date of the release. In addition, the

plan must be reviewed to identify measures to prevent the reoccurrence

of such releases and to respond to such releases, and the plan must be

modified where appropriate.

C. Spills

This permit does not authorize the discharge of hazardous

substances or oil resulting from an on-site spill.

D. Discharge Compliance With Water Quality Standards

Operators seeking coverage under this permit shall not be causing

or have the reasonable potential to cause or contribute to a violation

of a water quality standard. Where a discharge is already authorized

under this permit and is later determined to cause or have the

reasonable potential to cause or contribute to the violation of an

applicable water quality standard, the Director will notify the

operator of such violation(s). The permittee shall take all necessary

actions to ensure future discharges do not cause or contribute to the

violation of a water quality standard and document these actions in the

storm water pollution prevention plan. If violations remain or re-

occur, then coverage under this permit may be terminated by the

Director, and an alternative general permit or individual permit may be

issued. Compliance with this requirement does not preclude any

enforcement activity as provided by the Clean Water Act for the

underlying violation.

E. Responsibilities of Operators

Permittees may meet one or both of the operational control

components in the definition of ``operator'' found in Part IX.N. Either

Parts III.E.1 or III.E.2 or both will apply depending on the type of

operational control exerted by an individual permittee. Part III.E.3

applies to all permittees.

1. Permittees with operational control over construction plans and

specifications, including the ability to make modifications to those

plans and specifications (e.g., developer or owner), must:

a. Ensure the project specifications that they develop meet the

minimum requirements of Part IV (Storm Water Pollution Prevention Plans

(SWPPP)) and all other applicable conditions;

b. Ensure that the SWPPP indicates the areas of the project where

they have operational control over project specifications (including

the ability to make modifications in specifications), and ensure all

other permittees implementing portions of the SWPPP impacted by any

changes they make to the plan are notified of such modifications in a

timely manner; and

c. Ensure that the SWPPP for portions of the project where they are

operators indicates the name and NPDES permit number for parties with

day-to-day operational control of those activities necessary to ensure

compliance with the SWPPP or other permit conditions. If these parties

have not been identified at the time the SWPPP is initially developed,

the permittee with operational control over project specifications

shall be considered to be the responsible party until such time as the

authority is transferred to another party (e.g., general contractor)

and the plan updated.

2. Permittee(s) with day-to-day operational control of those

activities at a project which are necessary to ensure compliance with a

SWPPP for the site or other permit conditions (e.g., general

contractor) must:

a. Ensure that the SWPPP for portions of the project where they are

operators meets the minimum requirements of Part IV (Storm Water

Pollution Prevention Plan) and identifies the parties responsible for

implementation of control measures identified in the plan;

b. Ensure that the SWPPP indicates areas of the project where they

have operational control over day-to-day activities;

c. Ensure that the SWPPP for portions of the project where they are

operators indicates the name and NPDES permit number of the party(ies)

with operational control over project specifications (including the

ability to make modifications in specifications);

3. Permittees with operational control over only a portion of a

larger construction project (e.g., one of four homebuilders in a

subdivision) are responsible for compliance with all applicable terms

and conditions of this permit as it relates to their activities on

their portion of the construction site, including protection of

endangered species and implementation of BMPs and other controls

required by the SWPPP. Permittees shall ensure either directly or

through coordination with other permittees, that their activities do

not render another party's pollution controls ineffective. Permittees

must either implement their portions of a common SWPPP or develop and

implement their own SWPPP.

F. Consistency With the Texas Coastal Management Program

This permit does not relieve permittees whose construction project

is located within the boundary of the Texas Coastal Management Program

of their responsibility to insure consistency with all applicable

requirements of this State program. While pre-construction approval of

development projects is not within the jurisdiction of the Federal

NPDES permit program, State or local pre-construction project approvals

and/or permits may be required. The permittee's Storm Water Pollution

Prevention Plan must be consistent with any storm water discharge-

related requirements established pursuant to, or necessary to be

consistent with, the Texas Coastal Management Program. This permit may

be reopened, upon petition by the State, to include more stringent

discharge requirements applying to areas within the State's designated

coastal zone.

The Texas Coastal Management Program boundary covers part or all of

the following Texas Counties: Aransas, Brazoria, Calhoun, Cameron,

Chambers, Galveston, Harris, Jackson, Jefferson, Kenedy, Kleberg,

Matagorda, Nueces, Orange, Refugio, San Patricio, Victoria, and

Willacy. To determine if a construction project is located within the

Texas Coastal Zone, and if so, the applicable requirements of the Texas

Coastal Management Program, please

[[Page 36502]]

contact the Texas General Land Office's Coastal Hotline at 1-800-85-

BEACH or access their Internet site at ``http://red.glo.state.tx.us/

res-mgmt/coastal/''. Information is also available from the Texas

Coastal Coordination Council's Coastal Permitting Assistance Office at

1-888-3-PERMIT or via the Internet at ``http://red.glo.state.tx.us/

coastalpermits/''.

Part IV. Storm Water Pollution Prevention Plans

At least one storm water pollution prevention plan (SWPPP) shall be

developed for each construction project or site covered by this permit.

For more effective coordination of BMPs and opportunities for cost

sharing, a cooperative effort by the different operators at a site to

prepare and participate in a comprehensive SWPPP is encouraged.

Individual operators at a site may, but are not required, to develop

separate SWPPPs that cover only their portion of the project provided

reference is made to other operators at the site. In instances where

there is more than one SWPPP for a site, coordination must be conducted

between the permittees to ensure the storm water discharge controls and

other measures are consistent with one another (e.g., provisions to

protect listed species and critical habitat).

Storm water pollution prevention plans shall be prepared in

accordance with good engineering practices. The SWPPP shall identify

potential sources of pollution which may reasonably be expected to

affect the quality of storm water discharges from the construction

site. The SWPPP shall describe and ensure the implementation of

practices which will be used to reduce the pollutants in storm water

discharges associated with construction activity at the construction

site and assure compliance with the terms and conditions of this

permit.

When developing SWPPPs, applicants must follow the procedures in

Addendum A of this permit to determine whether listed endangered or

threatened species or critical habitat would be affected by the

applicant's storm water discharges or storm water discharge-related

activities. Any information on whether listed species or critical

habitat are found in proximity to the construction site must be

included in the SWPPP. Any terms or conditions that are imposed under

the eligibility requirements of Part I.B.3.e and Addendum A of this

permit to protect listed species or critical habitat from storm water

discharges or storm water discharge-related activity must be

incorporated into the SWPPP. Permittees must implement the applicable

provisions of the SWPPP required under this part as a condition of this

permit.

A. Deadlines for Plan Preparation and Compliance

The storm water pollution prevention plan shall:

1. Be completed prior to the submittal of an NOI to be covered

under this permit (except as provided in Parts II.A.5 and II.A.6)

updated as appropriate; and

2. Provide for compliance with the terms and schedule of the SWPPP

beginning with the initiation of construction activities.

B. Signature, Plan Review and Making Plans Available

1. The SWPPP shall be signed in accordance with Part VI.G, and be

retained on-site at the facility which generates the storm water

discharge in accordance with Part V (Retention of Records) of this

permit.

2. The permittee shall post a notice near the main entrance of the

construction site with the following information:

a. The NPDES permit number for the project or a copy of the NOI if

a permit number has not yet been assigned;

b. The name and telephone number of a local contact person;

c. A brief description of the project; and

d. The location of the SWPPP if the site is inactive or does not

have an on-site location to store the plan.

If posting this information near a main entrance is infeasible due

to safety concerns, the notice shall be posted in a local public

building. If the construction project is a linear construction project

(e.g., pipeline, highway, etc.), the notice must be placed in a

publicly accessible location near where construction is actively

underway and moved as necessary. This permit does not provide the

public with any right to trespass on a construction site for any

reason, including inspection of a site; nor does this permit require

that permittees allow members of the public access to a construction

site.

3. The permittee shall make SWPPPs available upon request to the

Director, a State, Tribal or local agency approving sediment and

erosion plans, grading plans, or storm water management plans; local

government officials; or the operator of a municipal separate storm

sewer receiving discharges from the site. The copy of the SWPPP that is

required to be kept on-site or locally available must be made available

to the Director for review at the time of an on-site inspection. Also,

in the interest of public involvement, EPA encourages permittees to

make their SWPPPs available to the public for viewing during normal

business hours.

4. The Director may notify the permittee at any time that the SWPPP

does not meet one or more of the minimum requirements of this Part.

Such notification shall identify those provision of this permit which

are not being met by the SWPPP as well as those requiring modification

in order to meet the minimum requirements of this Part. Within seven

(7) calendar days of receipt of such notification from the Director (or

as otherwise provided by the Director), the permittee shall make the

required changes to the SWPPP and shall submit to the Director a

written certification that the requested changes have been made. The

Director may take appropriate enforcement action for the period of time

the permittee was operating under a plan that did not meet the minimum

requirements of this permit.

C. Keeping Plans Current

The permittee must amend the storm water pollution prevention plan

whenever:

1. There is a change in design, construction, operation, or

maintenance which has a significant effect on the discharge of

pollutants to the waters of the United States which has not been

addressed in the SWPPP; or

2. Inspections or investigations by site operators, local, State,

Tribal or Federal officials indicate the SWPPP is proving ineffective

in eliminating or significantly minimizing pollutants from sources

identified under Part IV.D.1 of this permit, or is otherwise not

achieving the general objectives of controlling pollutants in storm

water discharges associated with construction activity.

D. Contents of Plan

The storm water pollution prevention plan (SWPPP) shall include the

following items:

1. Site Description

Each SWPPP shall provide a description of potential pollutant

sources and other information as indicated below:

a. A description of the nature of the construction activity;

b. A description of the intended sequence of major activities which

disturb soils for major portions of the site (e.g., grubbing,

excavation, grading, utilities and infrastructure installation);

c. Estimates of the total area of the site and the total area of

the site that is

[[Page 36503]]

expected to be disturbed by excavation, grading, or other activities

including off-site borrow and fill areas;

d. An estimate of the runoff coefficient of the site for both the

pre-construction and post-construction conditions and data describing

the soil or the quality of any discharge from the site;

e. A general location map (e.g., a portion of a city or county map)

and a site map indicating the following: drainage patterns and

approximate slopes anticipated after major grading activities; areas of

soil disturbance; areas which will not be disturbed; locations of major

structural and nonstructural controls identified in the SWPPP;

locations where stabilization practices are expected to occur;

locations of off-site material, waste, borrow or equipment storage

areas; surface waters (including wetlands); and locations where storm

water discharges to a surface water;

f. Location and description of any discharge associated with

industrial activity other than construction, including storm water

discharges from dedicated asphalt plants and dedicated concrete plants,

which is covered by this permit;

g. The name of the receiving water(s) and the areal extent and

description of wetland or other special aquatic sites (as described

under 40 CFR 230.3(q-1)) at or near the site which will be disturbed or

which will receive discharges from disturbed areas of the project;

h. A copy of the permit requirements (attaching a copy of this

permit is acceptable);

i. Information on whether listed endangered or threatened species,

or critical habitat, are found in proximity to the construction

activity and whether such species may be affected by the applicant's

storm water discharges or storm water discharge-related activities; and

j. Information on whether storm water discharges or storm water

discharge-related activities would have an affect on a property that is

listed or eligible for listing on the National Register of Historic

Places; where effects may occur, any written agreements with the State

Historic Preservation Officer, Tribal Historic Preservation Officer, or

other Tribal leader to mitigate those effects.

2. Controls

Each SWPPP shall include a description of appropriate control

measures (i.e., BMPs) that will be implemented as part of the

construction activity to control pollutants in storm water discharges.

The SWPPP must clearly describe for each major activity identified in

Part IV.D.1.b: (a) appropriate control measures and the general timing

(or sequence) during the construction process that the measures will be

implemented; and (b) which permittee is responsible for implementation

(e.g., perimeter controls for one portion of the site will be installed

by Contractor A after the clearing and grubbing necessary for

installation of the measure, but before the clearing and grubbing for

the remaining portions of the site; and perimeter controls will be

actively maintained by Contractor B until final stabilization of those

portions of the site up-gradient of the perimeter control; and

temporary perimeter controls will be removed by the owner after final

stabilization). The description and implementation of control measures

shall address the following minimum components:

a. Erosion and Sediment Controls.

(1) Short and Long Term Goals and Criteria:

(a) The construction-phase erosion and sediment controls should be

designed to retain sediment on site to the extent practicable.

(b) All control measures must be properly selected, installed, and

maintained in accordance with the manufacturers specifications and good

engineering practices. If periodic inspections or other information

indicates a control has been used inappropriately, or incorrectly, the

permittee must replace or modify the control for site situations.

(c) If sediment escapes the construction site, off-site

accumulations of sediment must be removed at a frequency sufficient to

minimize offsite impacts (e.g., fugitive sediment in street could be

washed into storm sewers by the next rain and/or pose a safety hazard

to users of public streets).

(d) Sediment must be removed from sediment traps or sedimentation

ponds when design capacity has been reduced by 50%.

(e) Litter, construction debris, and construction chemicals exposed

to storm water shall be prevented from becoming a pollutant source for

storm water discharges (e.g., screening outfalls, picked up daily).

(f) Offsite material storage areas (also including overburden and

stockpiles of dirt, borrow areas, etc.) used solely by the permitted

project are considered a part of the project and shall be addressed in

the SWPPP.

(2) Stabilization Practices: The SWPPP must include a description

of interim and permanent stabilization practices for the site,

including a schedule of when the practices will be implemented. Site

plans should ensure that existing vegetation is preserved where

attainable and that disturbed portions of the site are stabilized.

Stabilization practices may include but are not limited to:

establishment of temporary vegetation, establishment of permanent

vegetation, mulching, geotextiles, sod stabilization, vegetative buffer

strips, protection of trees, preservation of mature vegetation, and

other appropriate measures. Use of impervious surfaces for

stabilization should be avoided.

The following records shall be maintained and attached to the

SWPPP: the dates when major grading activities occur; the dates when

construction activities temporarily or permanently cease on a portion

of the site; and the dates when stabilization measures are initiated.

Except as provided in Parts IV.D.2.a.(2)(a), (b), and (c) below,

stabilization measures shall be initiated as soon as practicable in

portions of the site where construction activities have temporarily or

permanently ceased, but in no case more than 14 days after the

construction activity in that portion of the site has temporarily or

permanently ceased.

(a) Where the initiation of stabilization measures by the 14th day

after construction activity temporary or permanently cease is precluded

by snow cover or frozen ground conditions, stabilization measures shall

be initiated as soon as practicable.

(b) Where construction activity on a portion of the site is

temporarily ceased, and earth disturbing activities will be resumed

within 21 days, temporary stabilization measures do not have to be

initiated on that portion of site.

(c) In arid areas (areas with an average annual rainfall of 0 to 10

inches), semi-arid areas (areas with an average annual rainfall of 10

to 20 inches), and areas experiencing droughts where the initiation of

stabilization measures by the 14th day after construction activity has

temporarily or permanently ceased is precluded by seasonal arid

conditions, stabilization measures shall be initiated as soon as

practicable.

(3) Structural Practices: The SWPPP must include a description of

structural practices to divert flows from exposed soils, store flows or

otherwise limit runoff and the discharge of pollutants from exposed

areas of the site to the degree attainable. Structural practices may

include but are not limited to: silt fences, earth dikes, drainage

swales, sediment traps, check dams, subsurface drains, pipe slope

drains, level spreaders, storm drain inlet protection,

[[Page 36504]]

rock outlet protection, reinforced soil retaining systems, gabions, and

temporary or permanent sediment basins. Placement of structural

practices in floodplains should be avoided to the degree attainable.

The installation of these devices may be subject to section 404 of the

CWA.

(a) For common drainage locations that serve an area with ten (10)

or more acres disturbed at one time, a temporary (or permanent)

sediment basin that provides storage for a calculated volume of runoff

from a 2 year, 24 hour storm from each disturbed acre drained, or

equivalent control measures, shall be provided where attainable until

final stabilization of the site. Where no such calculation has been

performed, a temporary (or permanent) sediment basin providing 3,600

cubic feet of storage per acre drained, or equivalent control measures,

shall be provided where attainable until final stabilization of the

site. When computing the number of acres draining into a common

location it is not necessary to include flows from offsite areas and

flows from onsite areas that are either undisturbed or have undergone

final stabilization where such flows are diverted around both the

disturbed area and the sediment basin.

In determining whether installing a sediment basin is attainable,

the permittee may consider factors such as site soils, slope, available

area on site, etc. In any event, the permittee must consider public

safety, especially as it relates to children, as a design factor for

the sediment basin and alternative sediment controls shall be used

where site limitations would preclude a safe design. For drainage

locations which serve ten (10) or more disturbed acres at one time and

where a temporary sediment basin or equivalent controls is not

attainable, smaller sediment basins and/or sediment traps should be

used. Where neither the sediment basin nor equivalent controls are

attainable due to site limitations, silt fences, vegetative buffer

strips, or equivalent sediment controls are required for all down slope

boundaries of the construction area and for those side slope boundaries

deemed appropriate as dictated by individual site conditions. EPA

encourages the use of a combination of sediment and erosion control

measures in order to achieve maximum pollutant removal.

(b) For drainage locations serving less than 10 acres, smaller

sediment basins and/or sediment traps should be used. At a minimum,

silt fences, vegetative buffer strips, or equivalent sediment controls

are required for all down slope boundaries (and for those side slope

boundaries deemed appropriate as dictated by individual site

conditions) of the construction area unless a sediment basin providing

storage for a calculated volume of runoff from a 2 year, 24 hour storm

or 3,600 cubic feet of storage per acre drained is provided. EPA

encourages the use of a combination of sediment and erosion control

measures in order to achieve maximum pollutant removal.

b. Storm Water Management. A description of measures that will be

installed during the construction process to control pollutants in

storm water discharges that will occur after construction operations

have been completed must be included in the SWPPP. Structural measures

should be placed on upland soils to the degree attainable. The

installation of these devices may also require a separate permit under

section 404 of the CWA. Permittees are only responsible for the

installation and maintenance of storm water management measures prior

to final stabilization of the site, and are not responsible for

maintenance after storm water discharges associated with construction

activity have been eliminated from the site. However, post-construction

storm water BMPs that discharge pollutants from point sources once

construction is completed may, in themselves, need authorization under

a separate NPDES permit.

(1) Such practices may include but are not limited to: storm water

detention structures (including wet ponds); storm water retention

structures; flow attenuation by use of open vegetated swales and

natural depressions; infiltration of runoff onsite; and sequential

systems (which combine several practices). The SWPPP shall include an

explanation of the technical basis used to select the practices to

control pollution where flows exceed predevelopment levels.

(2) Velocity dissipation devices shall be placed at discharge

locations and along the length of any outfall channel to provide a non-

erosive flow velocity from the structure to a water course so that the

natural physical and biological characteristics and functions are

maintained and protected (e.g., no significant changes in the

hydrological regime of the receiving water).

c. Other Controls.

(1) No solid materials, including building materials, shall be

discharged to waters of the United States, except as authorized by a

permit issued under section 404 of the CWA.

(2) Off-site vehicle tracking of sediments and the generation of

dust shall be minimized.

(3) The SWPPP shall be consistent with applicable State, Tribal

and/or local waste disposal, sanitary sewer or septic system

regulations to the extent these are located within the permitted area.

(4) The SWPPP shall include a description of construction and waste

materials expected to be stored on-site with updates as appropriate.

The SWPPP shall also include a description of controls to reduce

pollutants from these materials including storage practices to minimize

exposure of the materials to storm water, and spill prevention and

response.

(5) The SWPPP shall include a description of pollutant sources from

areas other than construction (including storm water discharges from

dedicated asphalt plants and dedicated concrete plants), and a

description of controls and measures that will be implemented at those

sites to minimize pollutant discharges.

(6) The SWPPP shall include a description of measures necessary to

protect listed endangered or threatened species, or critical habitat,

including any terms or conditions that are imposed under the

eligibility requirements of Part I.B.3.e(4) of this permit. Failure to

describe and implement such measures will result in storm water

discharges from construction activities that are ineligible for

coverage under this permit.

d. Approved State, Tribal or Local Plans.

(1) Permittees which discharge storm water associated with

construction activities must ensure their storm water pollution

prevention plan is consistent with requirements specified in applicable

sediment and erosion site plans or site permits, or storm water

management site plans or site permits approved by State, Tribal or

local officials.

(2) Storm water pollution prevention plans must be updated as

necessary to remain consistent with any changes applicable to

protecting surface water resources in sediment and erosion site plans

or site permits, or storm water management site plans or site permits

approved by State, Tribal or local officials for which the permittee

receives written notice.

3. Maintenance

All erosion and sediment control measures and other protective

measures identified in the SWPPP must be maintained in effective

operating condition. If site inspections required by Part IV.D.4.

identify BMPs that are not operating effectively, maintenance shall be

performed before the next anticipated storm event, or as necessary to

maintain the continued effectiveness of storm

[[Page 36505]]

water controls. If maintenance prior to the next anticipated storm

event is impracticable, maintenance must be scheduled and accomplished

as soon as practicable.

4. Inspections

Qualified personnel (provided by the permittee or cooperatively by

multiple permittees) shall inspect disturbed areas of the construction

site that have not been finally stabilized, areas used for storage of

materials that are exposed to precipitation, structural control

measures, and locations where vehicles enter or exit the site, at least

once every fourteen (14) calendar days and within 24 hours of the end

of a storm event of 0.5 inches or greater.

Where sites have been finally or temporarily stabilized, runoff is

unlikely due to winter conditions (e.g., site is covered with snow,

ice, or frozen ground exists), or during seasonal arid periods in arid

areas (areas with an average annual rainfall of 0 to 10 inches) and

semi-arid areas (areas with an average annual rainfall of 10 to 20

inches) such inspections shall be conducted at least once every month.

Permittees are eligible for a waiver of monthly inspection

requirements until one month before thawing conditions are expected to

result in a discharge if all of the following requirements are met: (1)

the project is located in an area where frozen conditions are

anticipated to continue for extended periods of time (i.e., more than

one month); (2) land disturbance activities have been suspended; and

(3) the beginning and ending dates of the waiver period are documented

in the SWPPP.

a. Disturbed areas and areas used for storage of materials that are

exposed to precipitation shall be inspected for evidence of, or the

potential for, pollutants entering the drainage system. Sediment and

erosion control measures identified in the SWPPP shall be observed to

ensure that they are operating correctly. Where discharge locations or

points are accessible, they shall be inspected to ascertain whether

erosion control measures are effective in preventing significant

impacts to receiving waters. Where discharge locations are

inaccessible, nearby downstream locations shall be inspected to the

extent that such inspections are practicable. Locations where vehicles

enter or exit the site shall be inspected for evidence of offsite

sediment tracking.

b. Based on the results of the inspection, the SWPPP shall be

modified as necessary (e.g., show additional controls on map required

by Part IV.D.1; revise description of controls required by Part IV.D.2)

to include additional or modified BMPs designed to correct problems

identified. Revisions to the SWPPP shall be completed within 7 calendar

days following the inspection. If existing BMPs need to be modified or

if additional BMPs are necessary, implementation shall be completed

before the next anticipated storm event. If implementation before the

next anticipated storm event is impracticable, they shall be

implemented as soon as practicable.

c. A report summarizing the scope of the inspection, name(s) and

qualifications of personnel making the inspection, the date(s) of the

inspection, and major observations relating to the implementation of

the SWPPP shall be made and retained as part of the SWPPP for at least

three years from the date that the site is finally stabilized. Major

observations should include: the location(s) of discharges of sediment

or other pollutants from the site; location(s) of BMPs that need to be

maintained; location(s) of BMPs that failed to operate as designed or

proved inadequate for a particular location; and location(s) where

additional BMPs are needed that did not exist at the time of

inspection. Actions taken in accordance with Part IV.D.4.b of this

permit shall be made and retained as part of the storm water pollution

prevention plan for at least three years from the date that the site is

finally stabilized. Such reports shall identify any incidents of non-

compliance. Where a report does not identify any incidents of non-

compliance, the report shall contain a certification that the facility

is in compliance with the storm water pollution prevention plan and

this permit. The report shall be signed in accordance with Part VI.G of

this permit.

5. Non-Storm Water Discharges

Except for flows from fire fighting activities, sources of non-

storm water listed in Part III.A.2 or 3 of this permit that are

combined with storm water discharges associated with construction

activity must be identified in the SWPPP. The SWPPP shall identify and

ensure the implementation of appropriate pollution prevention measures

for the non-storm water component(s) of the discharge.

Part V. Retention of Records

A. Documents

The permittee shall retain copies of storm water pollution

prevention plans and all reports required by this permit, and records

of all data used to complete the Notice of Intent to be covered by this

permit, for a period of at least three years from the date that the

site is finally stabilized. This period may be extended by request of

the Director at any time.

B. Accessibility

The permittee shall retain a copy of the storm water pollution

prevention plan required by this permit (including a copy of the permit

language) at the construction site (or other local location accessible

to the Director, a State, Tribal or local agency approving sediment and

erosion plans, grading plans, or storm water management plans; local

government officials; or the operator of a municipal separate storm

sewer receiving discharges from the site) from the date of project

initiation to the date of final stabilization. Permittees with day-to-

day operational control over SWPPP implementation shall have a copy of

the SWPPP available at a central location on-site for the use of all

operators and those identified as having responsibilities under the

SWPPP whenever they are on the construction site.

C. Addresses

Except for the submittal of NOIs and NOTs (see Parts II.C and

VIII.B, respectively), all written correspondence concerning discharges

in any State, Indian Country land or from any Federal facility covered

under this permit and directed to the EPA, including the submittal of

individual permit applications, shall be sent to the address listed

below: United States EPA, Region 6, Storm Water Staff, Enforcement and

Compliance Assurance Division (GEN-WC), EPA SW Construction GP, P.O.

Box 50625, Dallas, TX 75205.

Part VI. Standard Permit Conditions

A. Duty To Comply

1. The Permittee Must Comply With All Conditions of This Permit

Any permit noncompliance constitutes a violation of CWA and is

grounds for enforcement action; for permit termination, revocation and

reissuance, or modification; or for denial of a permit renewal

application.

2. Penalties for Violations of Permit Conditions

The Director will adjust the civil and administrative penalties

listed below in accordance with the Civil Monetary Penalty Inflation

Adjustment Rule (Federal Register: December 31, 1996, Volume 61, Number

252, pages 69359-69366, as corrected, March 20, 1997, Volume 62, Number

54, pages 13514-

[[Page 36506]]

13517) as mandated by the Debt Collection Improvement Act of 1996 for

inflation on a periodic basis. This rule allows EPA's penalties to keep

pace with inflation. The Agency is required to review its penalties at

least once every four years thereafter and to adjust them as necessary

for inflation according to a specified formula. The civil and

administrative penalties listed below were adjusted for inflation

starting in 1996.

a. Criminal.

(1) Negligent Violations. The CWA provides that any person who

negligently violates permit conditions implementing sections 301, 302,

306, 307, 308, 318, or 405 of the Act is subject to a fine of not less

than $2,500 nor more than $25,000 per day of violation, or by

imprisonment for not more than 1 year, or both.

(2) Knowing Violations. The CWA provides that any person who

knowingly violates permit conditions implementing sections 301, 302,

306, 307, 308, 318, or 405 of the Act is subject to a fine of not less

than $5,000 nor more than $50,000 per day of violation, or by

imprisonment for not more than 3 years, or both.

(3) Knowing Endangerment. The CWA provides that any person who

knowingly violates permit conditions implementing sections 301, 302,

306, 307, 308, 318, or 405 of the Act and who knows at that time that

he is placing another person in imminent danger of death or serious

bodily injury is subject to a fine of not more than $250,000, or by

imprisonment for not more than 15 years, or both.

(4) False Statement. The CWA provides that any person who knowingly

makes any false material statement, representation, or certification in

any application, record, report, plan, or other document filed or

required to be maintained under the Act or who knowingly falsifies,

tampers with, or renders inaccurate, any monitoring device or method

required to be maintained under the Act, shall upon conviction, be

punished by a fine of not more than $10,000 or by imprisonment for not

more than two years, or by both. If a conviction is for a violation

committed after a first conviction of such person under this paragraph,

punishment shall be by a fine of not more than $20,000 per day of

violation, or by imprisonment of not more than four years, or by both.

(See section 309.c.4 of the Clean Water Act).

b. Civil Penalties. The CWA provides that any person who violates a

permit condition implementing sections 301, 302, 306, 307, 308, 318, or

405 of the Act is subject to a civil penalty not to exceed $27,500 per

day for each violation.

c. Administrative Penalties. The CWA provides that any person who

violates a permit condition implementing sections 301, 302, 306, 307,

308, 318, or 405 of the Act is subject to an administrative penalty, as

follows:

(1) Class I Penalty. Not to exceed $11,000 per violation nor shall

the maximum amount exceed $27,500.

(2) Class II Penalty. Not to exceed $11,000 per day for each day

during which the violation continues, nor shall the maximum amount

exceed $137,500.

B. Continuation of the Expired General Permit

If this permit is not reissued or replaced prior to the expiration

date, it will be administratively continued in accordance with the

Administrative Procedures Act and remain in force and effect. Any

permittee who was granted permit coverage prior to the expiration date

will automatically remain covered by the continued permit until the

earlier of:

1. Reissuance or replacement of this permit, at which time the

permittee must comply with the Notice of Intent conditions of the new

permit to maintain authorization to discharge; or

2. The permittee's submittal of a Notice of Termination; or

3. Issuance of an individual permit for the permittee's discharges;

or

4. A formal permit decision by the Director not to reissue this

general permit, at which time the permittee must seek coverage under an

alternative general permit or an individual permit.

C. Need To Halt or Reduce Activity Not a Defense

It shall not be a defense for a permittee in an enforcement action

that it would have been necessary to halt or reduce the permitted

activity in order to maintain compliance with the conditions of this

permit.

D. Duty To Mitigate

The permittee shall take all reasonable steps to minimize or

prevent any discharge in violation of this permit which has a

reasonable likelihood of adversely affecting human health or the

environment.

E. Duty To Provide Information

The permittee shall furnish to the Director or an authorized

representative of the Director any information which is requested to

determine compliance with this permit or other information.

F. Other Information

When the permittee becomes aware that he or she failed to submit

any relevant facts or submitted incorrect information in the Notice of

Intent or in any other report to the Director, he or she shall promptly

submit such facts or information.

G. Signatory Requirements

All Notices of Intent, Notices of Termination, storm water

pollution prevention plans, reports, certifications or information

either submitted to the Director or the operator of a large or medium

municipal separate storm sewer system, or that this permit requires be

maintained by the permittee, shall be signed as follows:

1. All Notices of Intent and Notices of Termination shall be signed

as follows:

a. For a corporation: by a responsible corporate officer. For the

purpose of this section, a responsible corporate officer means: a

president, secretary, treasurer, or vice-president of the corporation

in charge of a principal business function, or any other person who

performs similar policy or decision-making functions for the

corporation; or the manager of one or more manufacturing, production or

operating facilities employing more than 250 persons or having gross

annual sales or expenditures exceeding $25,000,000 (in second-quarter

1980 dollars) if authority to sign documents has been assigned or

delegated to the manager in accordance with corporate procedures;

b. For a partnership or sole proprietorship: by a general partner

or the proprietor, respectively; or

c. For a municipality, State, Federal, or other public agency: by

either a principal executive officer or ranking elected official. For

purposes of this section, a principal executive officer of a Federal

agency includes (1) the chief executive officer of the agency, or (2) a

senior executive officer having responsibility for the overall

operations of a principal geographic unit of the agency (e.g., Regional

Administrators of EPA).

2. All reports required by this permit and other information

requested by the Director or authorized representative of the Director

shall be signed by a person described above or by a duly authorized

representative of that person. A person is a duly authorized

representative only if:

a. The authorization is made in writing by a person described above

and submitted to the Director.

b. The authorization specifies either an individual or a position

having responsibility for the overall operation of the regulated

facility or activity, such as the position of manager, operator,

superintendent, or position of equivalent responsibility or an

[[Page 36507]]

individual or position having overall responsibility for environmental

matters for the company. (A duly authorized representative may thus be

either a named individual or any individual occupying a named

position).

c. Changes to Authorization. If an authorization under Part II.B is

no longer accurate because a different operator has responsibility for

the overall operation of the construction site, a new Notice of Intent

satisfying the requirements of Part II.B must be submitted to the

Director prior to or together with any reports, information, or

applications to be signed by an authorized representative. The change

in authorization must be submitted within the time frame specified in

Part II.A.3, and sent to the address specified in Part II.C.

d. Certification. Any person signing documents under Part VI.G

shall make the following certification:

``I certify under penalty of law that this document and all

attachments were prepared under my direction or supervision in

accordance with a system designed to assure that qualified personnel

properly gathered and evaluated the information submitted. Based on my

inquiry of the person or persons who manage the system, or those

persons directly responsible for gathering the information, the

information submitted is, to the best of my knowledge and belief, true,

accurate, and complete. I am aware that there are significant penalties

for submitting false information, including the possibility of fine and

imprisonment for knowing violations.''

H. Penalties for Falsification of Reports

Section 309(c)(4) of the Clean Water Act provides that any person

who knowingly makes any false material statement, representation, or

certification in any record or other document submitted or required to

be maintained under this permit, including reports of compliance or

noncompliance shall, upon conviction, be punished by a fine of not more

than $10,000, or by imprisonment for not more than two years, or by

both.

I. Oil and Hazardous Substance Liability

Nothing in this permit shall be construed to preclude the

institution of any legal action or relieve the permittee from any

responsibilities, liabilities, or penalties to which the permittee is

or may be subject under section 311 of the CWA or section 106 of the

Comprehensive Environmental Response, Compensation and Liability Act of

1980 (CERCLA).

J. Property Rights

The issuance of this permit does not convey any property rights of

any sort, nor any exclusive privileges, nor does it authorize any

injury to private property nor any invasion of personal rights, nor any

infringement of Federal, State or local laws or regulations.

K. Severability

The provisions of this permit are severable, and if any provision

of this permit, or the application of any provision of this permit to

any circumstance, is held invalid, the application of such provision to

other circumstances, and the remainder of this permit shall not be

affected thereby.

L. Requiring an Individual Permit or an Alternative General Permit

1. The Director may require any person authorized by this permit to

apply for and/or obtain either an individual NPDES permit or an

alternative NPDES general permit. Any interested person may petition

the Director to take action under this paragraph. Where the Director

requires a permittee authorized to discharge under this permit to apply

for an individual NPDES permit, the Director shall notify the permittee

in writing that a permit application is required. This notification

shall include a brief statement of the reasons for this decision, an

application form, a statement setting a deadline for the permittee to

file the application, and a statement that on the effective date of

issuance or denial of the individual NPDES permit or the alternative

general permit as it applies to the individual permittee, coverage

under this general permit shall automatically terminate. Applications

shall be submitted to the appropriate Regional Office indicated in Part

V.C of this permit. The Director may grant additional time to submit

the application upon request of the applicant. If a permittee fails to

submit in a timely manner an individual NPDES permit application as

required by the Director under this paragraph, then the applicability

of this permit to the individual NPDES permittee is automatically

terminated at the end of the day specified by the Director for

application submittal.

2. Any permittee authorized by this permit may request to be

excluded from the coverage of this permit by applying for an individual

permit. In such cases, the permittee shall submit an individual

application in accordance with the requirements of 40 CFR

122.26(c)(1)(ii), with reasons supporting the request, to the Director

at the address for the appropriate Regional Office indicated in Part

V.C of this permit. The request may be granted by issuance of any

individual permit or an alternative general permit if the reasons cited

by the permittee are adequate to support the request.

3. When an individual NPDES permit is issued to a permittee

otherwise subject to this permit, or the permittee is authorized to

discharge under an alternative NPDES general permit, the applicability

of this permit to the individual NPDES permittee is automatically

terminated on the effective date of the individual permit or the date

of authorization of coverage under the alternative general permit,

whichever the case may be. When an individual NPDES permit is denied to

an owner or operator otherwise subject to this permit, or the owner or

operator is denied for coverage under an alternative NPDES general

permit, the applicability of this permit to the individual NPDES

permittee is automatically terminated on the date of such denial,

unless otherwise specified by the Director.

M. State/Tribal Environmental Laws

1. Nothing in this permit shall be construed to preclude the

institution of any legal action or relieve the permittee from any

responsibilities, liabilities, or penalties established pursuant to any

applicable State/Tribal law or regulation under authority preserved by

section 510 of the Act.

2. No condition of this permit shall release the permittee from any

responsibility or requirements under other environmental statutes or

regulations.

N. Proper Operation and Maintenance

The permittee shall at all times properly operate and maintain all

facilities and systems of treatment and control (and related

appurtenances) which are installed or used by the permittee to achieve

compliance with the conditions of this permit and with the requirements

of storm water pollution prevention plans. Proper operation and

maintenance also includes adequate laboratory controls and appropriate

quality assurance procedures. Proper operation and maintenance requires

the operation of backup or auxiliary facilities or similar systems,

installed by a permittee only when necessary to achieve compliance with

the conditions of this permit.

O. Inspection and Entry

The permittee shall allow the Director or an authorized

representative of EPA, the State/Tribe, or, in the case of a

construction site which discharges

[[Page 36508]]

through a municipal separate storm sewer, an authorized representative

of the municipal owner/operator or the separate storm sewer receiving

the discharge, upon the presentation of credentials and other documents

as may be required by law, to:

1. Enter upon the permittee's premises where a regulated facility

or activity is located or conducted or where records must be kept under

the conditions of this permit;

2. Have access to and copy at reasonable times, any records that

must be kept under the conditions of this permit; and

3. Inspect at reasonable times any facilities or equipment

(including monitoring and control equipment).

P. Permit Actions

This permit may be modified, revoked and reissued, or terminated

for cause. The filing of a request by the permittee for a permit

modification, revocation and reissuance, or termination, or a

notification of planned changes or anticipated noncompliance does not

stay any permit condition.

Part VII. Reopener Clause

A. If there is evidence indicating that the storm water discharges

authorized by this permit cause, have the reasonable potential to cause

or contribute to, a violation of a water quality standard, the

permittee may be required to obtain an individual permit or an

alternative general permit in accordance with Part I.C of this permit,

or the permit may be modified to include different limitations and/or

requirements.

B. Permit modification or revocation will be conducted according to

40 CFR 122.62, 122.63, 122.64 and 124.5.

C. EPA may propose a modification to this permit after further

discussions between the Agency and the Advisory Council on Historic

Preservation for the protection of historic properties.

Part VIII. Termination of Coverage

A. Notice of Termination

Permittees must submit a completed Notice of Termination (NOT) that

is signed in accordance with Part VI.G of this permit when one or more

of the conditions contained in Part I.D.2. (Terminating Coverage) have

been met at a construction project. The NOT form found in Addendum D

will be used unless it has been replaced by a revised version by the

Director. The Notice of Termination shall include the following

information:

1. The NPDES permit number for the storm water discharge identified

by the Notice of Termination;

2. An indication of whether the storm water discharges associated

with construction activity have been eliminated (i.e., regulated

discharges of storm water are being terminated) or the permittee is no

longer an operator at the site;

3. The name, address and telephone number of the permittee

submitting the Notice of Termination;

4. The name of the project and street address (or a description of

location if no street address is available) of the construction site

for which the notification is submitted;

5. The latitude and longitude of the construction site; and

6. The following certification, signed in accordance with Part VI.G

(signatory requirements) of this permit. For construction projects with

more than one permittee and/or operator, the permittee need only make

this certification for those portions of the construction site where

the permittee was authorized under this permit and not for areas where

the permittee was not an operator:

``I certify under penalty of law that all storm water discharges

associated with industrial activity from the identified facility that

authorized by a general permit have been eliminated or that I am no

longer the operator of the facility or construction site. I understand

that by submitting this notice of termination, I am no longer

authorized to discharge storm water associated with industrial activity

under this general permit, and that discharging pollutants in storm

water associated with industrial activity to waters of the United

States is unlawful under the Clean Water Act where the discharge is not

authorized by a NPDES permit. I also understand that the submittal of

this Notice of Termination does not release an operator from liability

for any violations of this permit or the Clean Water Act.''

For the purposes of this certification, elimination of storm water

discharges associated with construction activity means that all

disturbed soils at the portion of the construction site where the

operator had control have been finally stabilized (as defined in Part

IX.I) and temporary erosion and sediment control measures have been

removed or will be removed at an appropriate time to ensure final

stabilization is maintained, or that all storm water discharges

associated with construction activities from the identified site that

are authorized by a NPDES general permit have otherwise been eliminated

from the portion of the construction site where the operator had

control.

B. Addresses

1. All Notices of Termination, signed in accordance with Part VI.G

of this permit, are to be submitted using the form provided by the

Director (or a photocopy thereof), to the address specified on the NOT

form.

Part IX. Definitions

A. Best Management Practices (``BMPs'') means schedules of

activities, prohibitions of practices, maintenance procedures, and

other management practices to prevent or reduce the discharge of

pollutants to waters of the United States. BMPs also include treatment

requirements, operating procedures, and practices to control plant site

runoff, spillage or leaks, sludge or waste disposal, or drainage from

raw material storage.

B. Control Measure as used in this permit, refers to any Best

Management Practice or other method used to prevent or reduce the

discharge of pollutants to waters of the United States.

C. Commencement of Construction the initial disturbance of soils

associated with clearing, grading, or excavating activities or other

construction activities.

D. CWA means the Clean Water Act or the Federal Water Pollution

Control Act, 33 U.S.C. Sec. 1251 et seq.

E. Director means the Regional Administrator of the Environmental

Protection Agency or an authorized representative.

F. Discharge when used without qualification means the ``discharge

of a pollutant.''

G. Discharge of Storm Water Associated With Construction Activity

as used in this permit, refers to a discharge of pollutants in storm

water runoff from areas where soil disturbing activities (e.g.,

clearing, grading, or excavation), construction materials or equipment

storage or maintenance (e.g., fill piles, borrow areas, concrete truck

washout, fueling), or other industrial storm water directly related to

the construction process (e.g., concrete or asphalt batch plants) are

located.

H. Facility or Activity means any NPDES ``point source'' or any

other facility or activity (including land or appurtenances thereto)

that is subject to regulation under the NPDES program.

I. Final Stabilization means that either:

1. All soil disturbing activities at the site have been completed

and a uniform (e.g., evenly distributed, without large bare areas)

perennial vegetative cover with a density of 70% of the native

background vegetative cover for the area

[[Page 36509]]

has been established on all unpaved areas and areas not covered by

permanent structures, or equivalent permanent stabilization measures

(such as the use of riprap, gabions, or geotextiles) have been

employed. In some parts of the country, background native vegetation

will cover less than 100% of the ground (e.g., arid areas, beaches).

Establishing at least 70% of the natural cover of native vegetation

meets the vegetative cover criteria for final stabilization (e.g., if

the native vegetation covers 50% of the ground, 70% of 50% would

require 35% total cover for final stabilization; on a beach with no

natural vegetation, no stabilization is required); or

2. For individual lots in residential construction by either: (a)

the homebuilder completing final stabilization as specified above, or

(b) the homebuilder establishing temporary stabilization including

perimeter controls for an individual lot prior to occupation of the

home by the homeowner and informing the homeowner of the need for, and

benefits of, final stabilization. (Homeowners typically have an

incentive to put in landscaping functionally equivalent to final

stabilization as quick as possible to keep mud out of their homes and

off their sidewalks and driveways.); or

3. For construction projects on land used for agricultural purposes

(e.g., pipelines across crop or range land), final stabilization may be

accomplished by returning the disturbed land to its preconstruction

agricultural use. Areas disturbed that were not previously used for

agricultural activities, such as buffer strips immediately adjacent to

``waters of the United States,'' and areas which are not being returned

to their preconstruction agricultural use must meet the final

stabilization criteria in (1) or (2) above.

J. Flow-Weighted Composite Sample means a composite sample

consisting of a mixture of aliquots collected at a constant time

interval, where the volume of each aliquot is proportional to the flow

rate of the discharge.

K. Large and Medium Municipal Separate Storm Sewer System means all

municipal separate storm sewers that are either:

1. Located in an incorporated place (city) with a population of

100,000 or more as determined by the latest Decennial Census by the

Bureau of Census (these cities are listed in Appendices F and G of 40

CFR 122); or

2. Located in the counties with unincorporated urbanized

populations of 100,000 or more, except municipal separate storm sewers

that are located in the incorporated places, townships or towns within

such counties (these counties are listed in Appendices H and I of 40

CFR 122); or

3. Owned or operated by a municipality other than those described

in paragraph (i) or (ii) and that are designated by the Director as

part of the large or medium municipal separate storm sewer system.

L. NOI means Notice of Intent to be covered by this permit (see

Part II of this permit).

M. NOT means Notice of Termination (see Part VIII of this permit).

N. Operator for the purpose of this permit and in the context of

storm water associated with construction activity, means any party

associated with a construction project that meets either of the

following two criteria:

1. The party has operational control over construction plans and

specifications, including the ability to make modifications to those

plans and specifications; or

2. The party has day-to-day operational control of those activities

at a project which are necessary to ensure compliance with a storm

water pollution prevention plan for the site or other permit conditions

(e.g., they are authorized to direct workers at a site to carry out

activities required by the SWPPP or comply with other permit

conditions).

This definition is provided to inform permittees of EPA's

interpretation of how the regulatory definitions of ``owner or

operator'' and ``facility or activity'' are applied to discharges of

storm water associated with construction activity.

O. Owner or operator means the owner or operator of any ``facility

or activity'' subject to regulation under the NPDES program.

P. Point Source means any discernible, confined, and discrete

conveyance, including but not limited to, any pipe, ditch, channel,

tunnel, conduit, well, discrete fissure, container, rolling stock,

concentrated animal feeding operation, landfill leachate collection

system, vessel or other floating craft from which pollutants are or may

be discharged. This term does not include return flows from irrigated

agriculture or agricultural storm water runoff.

Q. Pollutant is defined at 40 CFR 122.2. A partial listing from

this definition includes: dredged spoil, solid waste, sewage, garbage,

sewage sludge, chemical wastes, biological materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt, and industrial or

municipal waste.

R. Runoff coefficient means the fraction of total rainfall that

will appear at the conveyance as runoff.

S. Storm Water means storm water runoff, snow melt runoff, and

surface runoff and drainage.

T. Storm Water Associated With Industrial Activity is defined at 40

CFR 122.26(b)(14) and incorporated here by reference. Most relevant to

this permit is 40 CFR 122.26(b)(14)(x), which relates to construction

activity including clearing, grading and excavation activities that

result in the disturbance of five (5) or more acres of total land area,

or are part of a larger common plan of development or sale.

U. Waters of the United States means:

1. All waters which are currently used, were used in the past, or

may be susceptible to use in interstate or foreign commerce, including

all waters which are subject to the ebb and flow of the tide;

2. All interstate waters, including interstate ``wetlands'';

3. All other waters such as interstate lakes, rivers, streams

(including intermittent streams), mudflats, sandflats, wetlands,

sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds,

the use, degradation, or destruction of which would affect or could

affect interstate or foreign commerce including any such waters:

a. Which are or could be used by interstate or foreign travelers

for recreational or other purposes;

b. From which fish or shellfish are or could be taken and sold in

interstate or foreign commerce; or

c. Which are used or could be used for industrial purposes by

industries in interstate commerce;

4. All impoundments of waters otherwise defined as waters of the

United States under this definition;

5. Tributaries of waters identified in paragraphs (a) through (d)

of this definition;

6. The territorial sea; and

7. Wetlands adjacent to waters (other than waters that are

themselves wetlands) identified in paragraphs 1. through 6. of this

definition.

Waste treatment systems, including treatment ponds or lagoons

designed to meet the requirements of the CWA (other than cooling ponds

for steam electric generation stations per 40 CFR 423 which also meet

the criteria of this definition) are not waters of the United States.

Waters of the United States do not include prior converted cropland.

Notwithstanding the determination of an area's status as prior

converted cropland by any other federal agency, for the purposes of the

Clean Water Act, the final authority regarding Clean

[[Page 36510]]

Water Act jurisdiction remains with EPA.

Part X. Permit Conditions Applicable to Specific States and Indian

Country Lands

The provisions of this Part provide additions to the applicable

conditions of Parts I through IX of this permit to reflect specific

additional conditions required as part of the State or Tribal CWA

Section 401 certification process. The additional revisions and

requirements listed below are set forth in connection with, and only

apply to, the following States and Indian Country lands.

1. LAR10*##I: Indian Country Lands in the State of Louisiana

No additional requirements.

2. NMR10*###: The State of New Mexico, Except Indian Country Lands

No additional requirements.

3. NMR10*##I: Indian Country Lands in the State of New Mexico, Except

Navajo Reservation Lands (see Region 9) and Ute Mountain Reservation

Lands (see Region 8)

a. Pueblo of Isleta. Copies of Notices of Intent (NOI), Notices of

Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs)

must be submitted to the Pueblo of Isleta's Environment Department,

Water Quality Program.

(1) Part II.C.2 of the permit is added as follows:

Special NOI Requirements for the Pueblo of Isleta. NOIs shall also

be submitted to the Pueblo of Isleta's Environment Department, Water

Quality Program, concurrently with their submission to EPA at the

following address: Isleta Environment Department, Water Quality

Program, Pueblo of Isleta, PO Box 1270, Isleta, New Mexico 87022.

(2) Part VIII.B.2 is added to the permit as follows:

Special NOI Requirements for the Pueblo of Isleta. NOTs shall also

be submitted to the Pueblo of Isleta's Environment Department, Water

Quality Program, concurrently with their submission to EPA. NOTs are to

be sent to the address given in Part II.C.2.

(3) Part IV.A.3 is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirements for the

Pueblo of Isleta. Storm water pollution prevention plans must be

submitted to the Pueblo of Isleta Environment Department, Water Quality

Program, ten working days prior to commencing the project on Pueblo of

Isleta tribal lands. SWPPPs are to be sent to the address given in Part

II.C.2.

b. Pueblo of Nambe. Copies of Notices of Intent (NOI), Notices of

Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs)

must be submitted to the Pueblo of Nambe Department of Environment and

Natural Resources.

(1) Part II.C.2 is added to the permit as follows:

Special NOI Requirements for the Pueblo of Nambe. NOIs shall also

be submitted to the Pueblo of Nambe Department of Environment and

Natural Resources at the same time they are submitted to EPA at the

following address: Pueblo of Nambe, Department of Environment and

Natural Resources, Route 1 Box 11788, Santa Fe, New Mexico 87501, Phone

(505) 455-2036, Fax (505) 455-2038.

(2) Part VIII.B.2 is added to the permit as follows:

Special NOT Requirements for the Pueblo of Nambe. NOTs shall also

be submitted to the Pueblo of Nambe Department of Environment and

Natural Resources at the same time they are submitted to EPA. NOTs are

to be sent to the address given in Part II.C.2.

(3) Part IV.A.3 is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirements for the

Pueblo of Nambe. Storm water pollution prevention plans must be

submitted to the Pueblo of Nambe Department of Environment and Natural

Resources before the project on Pueblo of Nambe tribal lands begins.

SWPPPs are to be sent to the address given in Part II.C.2.

c. Pueblo of Picuris. Copies of Notices of Intent (NOI), Notices of

Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs)

must be submitted to the Pueblo of Picuris Environment Department.

(1) Part II.C.2 is added to the permit as follows:

Special NOI Requirements for the Pueblo of Picuris. NOIs shall also

be submitted to the Pueblo of Picuris Environment Department at the

same time they are submitted to EPA at the following address: Pueblo of

Picuris, Environment Department, P.O. Box 127, Penasco, New Mexico

87553, Phone (505) 587-2519, Fax (505) 587-1071.

(2) Part VIII.B.2 is added to the permit as follows:

Special NOT Requirements for the Pueblo of Picuris. NOTs shall also

be submitted to the Pueblo of Picuris Environment Department at the

same time they are submitted to EPA. NOTs are to be sent to the address

given in Part II.C.2.

(3) Part IV.A.3 is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirements for the

Pueblo of Picuris. Storm water pollution prevention plans must be

submitted to the Picuris Environment Department before the project on

Pueblo of Picuris tribal lands begins. SWPPPs are to be sent to the

address given in Part II.C.2.

d. Pueblo of Pojoaque. Copies of Notices of Intent (NOI), Notices

of Termination (NOT), and Storm Water Pollution Prevention Plans

(SWPPPs) must be submitted to the Pueblo of Pojoaque Environment

Department Director.

(1) Part II.C.2 is added to the permit as follows:

Special NOI Requirements for the Pueblo of Pojoaque. NOIs shall

also be submitted to the Pueblo of Pojoaque Environment Department

Director at the same time they are submitted to EPA at the following

address: Pueblo of Pojoaque, Environment Department, Route 11, P.O. Box

208, Santa Fe, New Mexico 87501, Phone (505) 455-3383, Fax (505) 455-

3633.

(2) Part VIII.B.2 of the permit is added as follows:

Special NOT Requirements for the Pueblo of Pojoaque. NOTs shall

also be submitted to the Pueblo of Pojoaque Environment Department

Director at the same time they are submitted to EPA. NOTs are to be

sent to the address given in Part II.C.2.

(3) Part IV.A.3 is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirements for the

Pueblo of Pojoaque. Storm water pollution prevention plans must be

submitted to the Pueblo of Pojoaque Environment Department Director

before the project on Pueblo of Pojoaque tribal lands begins. SWPPPs

are to be sent to the address given in Part II.C.2.

e. Pueblo of San Juan. No additional requirements.

f. Pueblo of Sandia. Copies of Notices of Intent (NOI), Notices of

Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs)

must be submitted to the Pueblo of Sandia Environment Department.

(1) Part II.C.2 of the permit is added as follows:

Special NOI Requirements for the Pueblo of Sandia. NOIs shall also

be submitted to the Pueblo of Sandia Environment Department at the same

time they are submitted to EPA at the following address: Pueblo of

Sandia, Environment Department, Box 6008, Bernalillo, New Mexico 87004,

Phone (505) 867-4533; Fax (505) 867-9235.

[[Page 36511]]

(2) Part VIII.B.2 is added to the permit as follows:

Special NOT Requirements for the Pueblo of Sandia. NOTs shall also

be submitted to the Pueblo of Sandia Environment Department at the same

time they are submitted to EPA. NOTs are to be sent to the address

given in Part II.C.2.

(3) Part IV.A.3 is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirements for the

Pueblo of Sandia. Storm water pollution prevention plans must be

submitted to the Pueblo of Sandia Environment Department before

commencement of the project on Pueblo of Sandia tribal lands. SWPPPs

are to be sent to the address given in Part II.C.2.

g. Pueblo of Tesuque. Copies of Notices of Intent (NOI), Notices of

Termination (NOT), Storm Water Pollution Prevention Plans (SWPPPs),

inspection reports, all certifications and ``other information'' must

be submitted, by hand delivery or certified mail, to the Pueblo of

Tesuque.

(1) Part II.C.2 of the permit is added as follows:

Special NOI Requirements for the Pueblo of Tesuque. NOIs shall also

be submitted to the Pueblo of Tesuque at least five (5) days prior to

any ground disturbing activity at the following address: Pueblo of

Tesuque, Environment Department, Route 5, Box 3260-T, Santa Fe, New

Mexico 87501, Phone (505) 983-2667; Fax (505) 982-2331.

(2) Part VIII.B.2 is added to the permit as follows:

Special NOT Requirements for the Pueblo of Tesuque. NOTs shall also

be submitted to the Pueblo of Tesuque at the same time they are

submitted to EPA. NOTs are to be sent to the address given in Part

II.C.2.

(3) Part IV.A.3 is added to the permit as follows:

Special Storm Water Pollution Prevention Plan Requirements for the

Pueblo of Tesuque. Storm water pollution prevention plans must be

submitted to the Pueblo of Tesuque at least five (5) days prior to any

ground disturbing activity on Pueblo of Tesuque tribal lands. SWPPPs

are to be sent to the address given in Part II.C.2.

(4) Part V.D is added to the permit as follows:

Special Reporting Requirements for the Pueblo of Tesuque. Copies of

all certifications required by Section IV.D, and copies of ``other

information'' required by Section VI.F shall be provided to the Pueblo

of Tesuque, by hand delivery or certified mail. Also, copies of all

inspection reports required under Section IV.D.4.c. shall be submitted

within five (5) days of completion of the inspection. All information

sent to the Pueblo of Tesuque is to be sent to the address given in

Part II.C.2.

h. Santa Clara Pueblo. Copies of Notices of Intent (NOI) and

Notices of Termination (NOT) must be submitted to the Santa Clara

Pueblo Governors Office with a copy to the Office of Environmental

Affairs.

(1) Part I.C.4. is added to the permit as follows:

Special Authorization Requirements for the Santa Clara Pueblo.

Prior to submitting a Notice of Intent, the operator must obtain

permission from the Santa Clara Governors Office to do the

construction. If the project is approved by the tribal administration,

the operator may proceed with submitting a Notice of Intent (NOI).

(2) Part II.C.2 is added to the permit as follows:

Special NOI Requirements for the Santa Clara Pueblo. NOIs shall

also be submitted to the Santa Clara Pueblo Governors Office with a

copy to the Office of Environmental Affairs at least two (2) weeks

prior to the start of construction at the following address: Santa

Clara Governors Office, PO Box 580, Espanola, New Mexico 87532, Phone

(505) 753-7326; Fax (505) 753-8988.

(3) Part VIII.B.2 is added to the permit as follows:

Special NOT Requirements for the Santa Clara Pueblo. NOTs shall

also be submitted to the Santa Clara Pueblo Governors Office with a

copy to the Office of Environmental Affairs at least two (2) weeks

prior to the start of construction. NOTs are to be sent to the address

given in Part II.C.2.

i. All Other Indian Country lands in New Mexico. No additional

requirements.

4. OKR10*##I: Indian Country Lands in the State of Oklahoma

No additional requirements.

5. OKR10*##F: Oil and Gas Sites in the State of Oklahoma

No additional requirements.

6. TXR10*###: The State of Texas, Except Indian Country Lands

a. Part III of the permit is modified as follows: Change the title

of Part III. (Special Conditions, Management Practices, and other Non-

Numeric Limitations) to: Part III. Special Conditions, Management

Practices, and other Limitations.

b. Part III.G is added to the permit as follows:

Special Numeric Limitations for Discharges from Ready-Mixed

Concrete Plants in the State of Texas, except Indian Country lands. All

discharges of storm water from ready-mixed concrete plants covered by

this permit must comply with the following limitations:

pH--Between 6.0 and 9.0 standard units

Oil and Grease--15 mg/l as a daily maximum

Total Suspended Solids--65 mg/l as a daily maximum

These limitations must be taken into account when designing the

storm water control measures to be used for areas draining any ready-

mixed concrete plants operated by the permittee.

7. TXR10*##I: Indian Country Lands in the State of Texas

No additional requirements.

Addendum A--Endangered Species

I. Instructions for Applicants

A. Background

To meet its obligations under the Clean Water Act and the

Endangered Species Act (ESA) and to promote those Acts' goals, the

Environmental Protection Agency (EPA) is seeking to ensure the

activities regulated by the Construction General Permit (CGP) are

protective of endangered and threatened species and critical

habitat. To ensure that those goals are met, applicants for CGP

coverage are required under Part I.B.3.e. to assess the impacts of

their storm water discharges and storm water discharge-related

activities on Federally listed endangered and threatened species

(``listed species'') and designated critical habitat (``critical

habitat'') by following Steps One through Six listed below. EPA

strongly recommends that applicants follow these steps at the

earliest possible stage to ensure that measures to protect listed

species and critical habitat are incorporated early in the planning

process. At minimum, the procedures should be followed when

developing the storm water pollution prevention plan.

Permittees and applicants also have an independent ESA

obligation to ensure that their activities do not result in any

prohibited ``takes'' of listed species.\1\ Many of the measures

required in the CGP and in these instructions to protect species may

also assist permittees in ensuring that their construction

activities do not result in a prohibited take of species in

violation of Sec. 9 of the ESA. Applicants who plan construction

activities in areas that harbor endangered and threatened species

are advised to ensure that

[[Page 36512]]

they are protected from potential takings liability under ESA Sec. 9

by obtaining either an ESA Sec. 10 permit or by requesting formal

consultation under ESA Sec. 7 (as described in more detail in Step

Seven below). Applicants who seek protection from takings liability

should be aware that it is possible that some specific construction

activities may be too unrelated to storm water discharges to be

afforded incidental take coverage through an ESA Sec. 7 consultation

that is performed to meet the eligibility requirements for CGP

coverage. In such instances, applicants should apply for an ESA

Sec. 10 permit. Where applicants are not sure whether to pursue a

Sec. 10 permit or a Sec. 7 consultation for takings protection, they

should confer with the appropriate Fish and Wildlife Service (FWS)

or National Marine Fisheries Service (NMFS) office.

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\1\ Section 9 of the ESA prohibits any person from ``taking'' a

listed species (e.g., harassing or harming it) unless: (1) the

taking is authorized through a ``incidental take statement'' as part

of undergoing ESA Sec. 7 formal consultation; (2) where an

incidental take permit is obtained under ESA Sec. 10 (which re

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