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

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## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** July 6, 1998
- **Citation:** 63 FR 36490

## Text

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 stor

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-17521. Public record. Not legal advice.