Reissuance of NPDES General Permits for Storm Water Discharges From Construction Activities

SUMMARY: The Regional Administrators of Regions 1, 2, 3, 7, 8, 9 and 10

are today issuing final National Pollutant Discharge Elimination System

(NPDES) general permits for storm water discharges associated with

construction activity. EPA first issued permits for these activities in

September 1992. These permits subsequently expired in September 1997.

Today's permits, which replace the expired permits, authorize the

discharge of pollutants in storm water runoff from construction

activities in accordance with the terms and conditions of these

permits. Hereinafter, the terms ``permit'' or ``construction general

permit'' or ``CGP'' will replace ``permits'' for reasons of readability

(the pluralized form is technically more proper, denoting the issuance

of separate general permits in each of the Regions listed above).

DATES: This general permit shall be effective on February 17, 1998.

This effective date is necessary to provide dischargers with the

immediate opportunity to comply with CWA requirements in light of the

recent expiration of the previous general permit for storm water

discharges associated with construction activity. Deadlines for

submittal of Notices of Intent (NOIs) are provided in section V, Part

II.A, of the Fact Sheet and Part II.A of the general permit. Today's

general permit also provides additional dates for compliance with the

terms of the permit.

ADDRESSES: The index to the administrative record for this permit is

available at the appropriate Regional Office or from the EPA Water

Docket in Washington, DC. The complete administrative record is located

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. Specific record

information can also be made available at the appropriate Regional

Office upon request.

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

to obtain coverage for storm water discharges under this permit. Until

the U.S. Office of Management and Budget (OMB) approves and the EPA

publishes a revised NOI form designed specifically for this permit,

operators of storm water discharges associated with construction

activity must use the existing NOI form to obtain permit coverage. Upon

publication of the revised NOI form in the Federal Register, operators

must use the revised form to obtain coverage under the Construction

General Permit.

FOR FURTHER INFORMATION CONTACT: For further information on the NPDES

Construction General Permit, call the EPA Regions 6 and 2 Storm Water

Hotline at 1-800-245-6510, or your EPA Regional storm water

coordinator. Information is also available through the Internet on the

EPA's Office of Wastewater Management web site at ``http://www.epa.gov/

owm/cgp.htm'' and at the various EPA Regional Office Internet web

sites.

SUPPLEMENTARY INFORMATION:

Contents

I. Introduction

II. Answers to Common Questions

III. Coverage Provided by General Permits

IV. Summary of Options for Controlling Pollutants

V. Summary of Permit Conditions

VI. Endangered Species Protection

VII. Historic Properties Protection

VIII. Summary of Responses to Comments on the Proposed Permit

IX. Cost Estimates

X. Regulatory Review (Executive Order 12866)

XI. Unfunded Mandates Reform Act

XII. Paperwork Reduction Act

XIII. Regulatory Flexibility Act

XIV. Official Signatures

I. Introduction

The United States Environmental Protection Agency (EPA) is

reissuing the general permit which authorizes the discharge of

pollutants in storm water associated with construction activity. As

used in this permit, ``storm water associated with construction

activity'' refers to category (x) of the definition of ``discharge of

storm water associated with industrial activity.'' Category (x)

includes 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)).

This construction general permit is written as if it was a single

permit rather than the 45 legally separate and individually numbered

general permits it is comprised of. Unless otherwise noted, references

to ``the permit'' apply to the common language of each of the 45

separate general permits. Any area-specific conditions that apply are

found in Part X of the permit.

This permit replaces the previous Baseline Construction General

Permit which was issued for a five-year term in September 1992. The

most significant changes from the 1992 permit include:

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 pursuant to 40 CFR 122.26(a)(1)(v) or

122.26(a)(9) and 122.26(g)(1)(i);

A requirement to post 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;

Terms applicable when transitioning from the previous

permit;

The requirement to submit a notice of permit termination

when construction is completed;

Automatic coverage under an expired, but administratively-

continued permit;

Capability to use this permit to acquire coverage for

other construction-related industrial activities (e.g., a concrete

batch plant); and

Storm water pollution prevention plan performance

objectives.

This general permit for storm water discharges associated with

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

is hereby issued with individual permit numbers for the following

areas:

Region 1: The Commonwealth of Massachusetts and the States of Maine

and New Hampshire; Indian Country lands in the Commonwealth of

Massachusetts and the States of Maine, Rhode Island and Connecticut;

Federal facilities in Vermont.

Region 2: The Commonwealth of Puerto Rico and Indian Country lands

in the State of New York.

Region 3: District of Columbia; Federal facilities in the State of

Delaware.

Region 7: Indian Country lands in Iowa, Kansas and Nebraska (except

Pine Ridge Reservation Lands [see Region 8]).

Region 8: Federal facilities in Colorado; Indian Country lands in

Colorado (including the portion of the Ute Mountain Reservation located

in New Mexico), Montana, North Dakota (including that portion of the

Standing Rock Reservation located in South

[[Page 7859]]

Dakota and excluding the Lake Traverse Reservation which is covered

under the permit for areas of South Dakota), South Dakota (including

the portion of the Pine Ridge Reservation located in Nebraska and the

portion of the Lake Traverse Reservation located in North Dakota and

excluding the Standing Rock Reservation which is covered under the

permit for areas of North Dakota), Utah (except Goshute and Navajo

Reservation lands [see Region 9]) and Wyoming.

Region 9: The Islands of American Samoa and Guam, Johnston Atoll,

Midway/Wake Islands and Commonwealth of the Northern Mariana Islands;

the State of Arizona; Indian Country Lands in Arizona (including Navajo

Reservation lands in New Mexico and Utah), California and Nevada

(including the Duck Valley Reservation in Idaho, the Fort McDermitt

Reservation in Oregon and the Goshute Reservation in Utah).

Region 10: The States of Alaska and Idaho; Indian Country lands in

Alaska and Idaho (except Duck Valley Reservation [see Region 9]),

Washington and Oregon (except for Fort McDermitt Reservation [see

Region 9]); Federal facilities in Washington.

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. It is

intended to help you get started in understanding the permit. Be aware

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

scenarios possible at construction sites. More details on these issues

are provided later in this Fact Sheet, especially in section VIII,

Summary of Responses to Comments on the Proposed Permit.

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 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

[[Page 7860]]

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 purposes.

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 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.

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

[[Page 7861]]

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. Coverage Provided by General Permits

Section 402(p) of the Clean Water Act (CWA) states that storm water

discharges associated with industrial activity to waters of the United

States must be authorized by an NPDES permit. The term ``discharge''

when used in the context of the NPDES program means the discharge of

pollutants (40 CFR 122.2).

On November 16, 1990, EPA published regulations under the NPDES

program which defined one facet of the phrase ``storm water discharges

associated with industrial activity'' as being discharges from

construction activities (including clearing, grading and excavation

activities) that result in the disturbance of five or more acres of

total land area, including smaller areas that are part of a larger

common plan of development or sale (40 CFR 122.26(b)(14)(x)). These

types of construction activity are commonly referred to as Phase I

construction activities. ``Storm water discharges associated with

construction activities'' will hereinafter refer to discharges from

Phase I construction activities or support activities, including those

that meet the larger definition of a storm water discharge associated

with industrial activity or those that are designated under the

provisions of 40 CFR 122.26.

Previously, there may have been some confusion as to permitting

requirements for sites disturbing less than five acres but that are

part of a larger common plan of development or sale. For clarification,

all construction activity regulated under 40 CFR 122.26(b)(14)(x) is

eligible for coverage under this permit including small construction

sites disturbing less than five acres that are also a part of a larger

common plan of development or sale which has the potential of

disturbing five or more acres collectively. Examples of these would be

lots in a subdivision or industrial park. These are also Phase I

construction activities.

Single construction sites under five acres that are not part of a

larger plan of development or sale with disturbances totaling at least

five acres are not eligible for coverage under this permit unless they

are specifically designated for coverage pursuant to 40 CFR 122.26

(a)(1)(v) or 122.26(a)(9) and 122.26(g)(1)(i). Under EPA's existing

regulations, however, these smaller projects may be required to submit

permit applications not later than August 7, 2001, unless an applicant

is specifically required by the Director to submit an application

before that time. Small (Phase II) construction sites will be addressed

by EPA in the future pursuant to a Ninth Circuit Court mandate. EPA is

employing the assistance of a Federal Advisory Committee to make

recommendations on how best to treat small sites vis-a-vis the NPDES

program, and will issue a proposed rule addressing Phase II

construction activities in December 1997. Finalization of the rule is

scheduled for March 1, 1999. If permitting is the approach adopted for

these small sites, the permits will be issued at a future date.

EPA issued the first round of the Phase I construction general

permit on two dates: September 9, 1992, for certain States and

territories, and September 25, 1992, for other States and territories

where EPA is the permitting authority. The Phase I permit was commonly

referred to as the Baseline Construction General Permit. The new permit

is the second-round permit (simply called the ``construction general

permit,'' ``CGP,'' or ``permit'') for use in the States, territories

and Indian Country lands where EPA is the NPDES permitting authority.

The Agency is expanding permit coverage to certain Indian Country lands

which were not covered under the 1992 permit. These new areas are

listed in the areas of coverage section of the permit and this fact

sheet.

Operators of construction projects in EPA Region 4 should note that

unlike the Baseline Construction General Permit, this second-round

permit no longer authorizes discharges from construction projects on

Indian Country lands located in Florida, Mississippi or North Carolina.

The Region 4 permit was public noticed in the Federal Register on April

16, 1997, (62 FR 18605-18628) for construction storm water discharges

in Florida, and Indian Country lands in Florida, Mississippi and North

Carolina. Similarly, operators of construction projects in EPA Region 6

are not covered under this permit. A separate Region 6 permit covering

construction project discharges located in the following areas is

currently under development: The States of New Mexico and Texas; Indian

Country lands in Louisiana, Oklahoma, Texas and New Mexico (except

Navajo Reservation Lands [see Region 9] and Ute Mountain Reservation

Lands [see Region 8] which are covered by this permit); and oil, gas,

and pipeline construction projects regulated by the Oklahoma

Corporation Commission in the State of Oklahoma. Both permits should be

issued in the near future.

IV. Summary of Options for Controlling Pollutants

EPA is providing the following information on controlling

pollutants in storm water discharges to assist permittees in preparing

storm water pollution prevention plans (SWPPPs). Most controls for

construction activities can be categorized in either of two groups:

sediment and erosion controls and storm water management measures.

Sediment and erosion controls ordinarily address pollutants in

storm water generated from the site during active construction-related

work. Storm water management measures are customarily installed before,

and coincident with, completion of construction activities, but

primarily result in reductions of pollutants in storm water discharged

from the site after the construction has been completed. Additional

measures that should be employed throughout a project include

housekeeping best management practices, such as materials management

and litter control.

A. Sediment and Erosion Controls

Erosion controls provide the first line of defense in preventing

off-site sedimentation and are designed to prevent erosion through

protection and preservation of soil. Sediment controls are designed to

remove sediment from runoff before the runoff is discharged from the

site. Sediment and erosion controls can be further divided into two

major classes of controls: stabilization practices and structural

practices. Major types of sediment and erosion practices are summarized

below. A more

[[Page 7862]]

thorough description of these practices is given in ``Storm Water

Management for Construction Activities: Developing Pollution Prevention

Plans and Best Management Practices,'' U.S. EPA, 1992. Permittees

should also consider the construction of new projects in phases to

minimize the amount of bare soil which is exposed at one time and the

amount of stabilization or structural controls which would be required.

1. Stabilization Practices

Stabilization refers to covering or maintaining an existing cover

over soil. Vegetative cover includes grass, trees, vines, shrubs, etc.

Stabilization measures can also include nonvegetative controls such as

geotextiles, riprap or gabions (wire mesh boxes filled with rock).

Mulches such as straw or bark can be somewhat effectual at

stabilization in stand-alone fashion but are most effective when used

in conjunction with vegetation.

Stabilization of exposed soil is one of the foremost means to

minimize pollutant discharge during construction activities.

Stabilization reduces erosion potential by absorbing the kinetic energy

of raindrops that would otherwise mobilize unprotected soil; by

intercepting water so that it infiltrates into the ground instead of

running off the surface; and slowing the velocity of runoff, thereby

promoting deposition of sediment already being carried. Stabilization

provides large reductions in the levels of suspended sediment in

discharges and receiving waters. Examples of stabilization measures are

summarized below.

a. Temporary Seeding. Seeding of temporary vegetation provides

stabilization by establishing vegetative cover at areas of the site

where earth disturbing activities have temporarily ceased, but will

resume later in the construction project. Without temporary

stabilization, soil can be exposed to precipitation for an extended

period leaving it vulnerable to erosion, even though earth-disturbing

activities are not occurring on these areas. Temporary seeding

practices have been found to be up to 95% effective in reducing

erosion.\1\

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\1\ Guidelines for Erosion and Sediment Control in California'';

USDA, Soil Conservation Service, Davis, CA; revised 1985.

---------------------------------------------------------------------------

b. Permanent Seeding. Establishing a permanent and sustainable

ground cover at a site stabilizes the soil and hence reduces sediment

in runoff. It is typically required at most sites for aesthetic

reasons.

c. Mulching. Mulching is often done coupled with permanent and

temporary seeding. Where temporary or permanent seeding is not

feasible, exposed soil can be stabilized by spreading plant residues or

other suitable materials on the soil surface. Although generally not as

effective as vegetation, mulching by itself provides a measure of

temporary erosion control. Mulching in conjunction with seeding

provides erosion protection prior to the onset of plant growth. In

addition, mulching protects newly-applied seeds, providing a higher

likelihood of successful vegetation. To maintain its effectiveness,

mulch should be anchored to resist wind displacement.

d. Sod Stabilization. Sod stabilization involves establishing long-

term stands of grass by planting sod on exposed surfaces. When

maintained properly, sod can be more than 99% effective in reducing

erosion, and is the most immediately effective vegetation method

available.\2\ However, the cost of sod stabilization (relative to other

vegetative controls) typically limits its use to situations where a

quick vegetative cover is desired (e.g., steep or erodible slopes) and

sites which can be maintained with ground equipment. Sod is also

sensitive to climate and may require intensive watering and

fertilization.

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\2\ Ibid.

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e. Vegetative Buffer Strips. Vegetative buffer strips are

indigenous or replanted strips of vegetation located at the top and

bottom of a slope, outlining property boundaries or adjacent to

receiving waters such as streams or wetlands. Vegetative buffer strips

can slow runoff at critical locations, decreasing erosion and allowing

sedimentation. They can be especially useful for very narrow linear

construction projects such as underground utilities or pipelines.

f. Preservation of Trees. This practice involves preserving

selected trees already on-site prior to development. Mature trees

provide extensive canopy and root systems which protect and hold soil

in place. Shade trees also keep soil from drying rapidly, decreasing

the soil's susceptibility to erosion. Measures taken to protect trees

can vary significantly, from simply installing tree armor and fences

around the drip line, to more complex measures such as building

retaining walls and tree wells. Along with the erosion benefits

provided by trees, they can also add to the aesthetics and value of the

property.

g. Contouring and Protection of Sensitive Areas. Contouring refers

to the practice of building in harmony with the natural flow and

contour of the land. By minimizing changes in the natural contour of

the land, existing drainage patterns are preserved as much as possible,

thereby reducing erosion. Minimizing the amount of regrading done will

also reduce the amount of soil being disturbed.

The preservation of sensitive areas at a site such as steep slopes

and wetlands should also be a priority. Disturbance of soil on steep

slopes should be avoided due to vulnerability to erosion. Wetlands

should be protected because they provide flood protection, pollution

mitigation and an essential aquatic habitat.

2. Structural Practices

Structural practices involve the installation of devices to divert,

store or limit runoff. Structural practices have several objectives.

First, structural practices can be designed to prevent water from

flowing on disturbed areas where erosion may occur. This involves

diverting runoff from undisturbed, up-slope areas through use of earth

dikes, temporary swales, perimeter dikes or other diversions to stable

areas. Another objective of structural practices may be to cause

sedimentation before the runoff leaves the site. Methods for removing

sediment from runoff include diverting flows to a trapping or storage

device or filtering diffuse flows through on-site silt fences. All

structural practices require proper maintenance (e.g., removal of

collected sediment) to remain functional and should be designed to

avoid presenting a safety hazard--especially in areas frequented by

children.

a. Earth Dike. Earth dikes are temporary berms or ridges of

compacted soil that channel water to a desired location. Earth dikes

should be stabilized with vegetation or an equally efficacious method.

b. Silt Fence. Silt fences are a barrier of geotextile fabric

(filter cloth) used to intercept sediment in diffuse runoff. They must

be firmly anchored and may require additional support, such as

reinforcing with wire mesh. Used alone, silt fences are usually

inappropriate for flows of concentrated high volume or high velocity.

They must be carefully maintained to ensure structural stability and be

cleaned of excess sediment.

c. Drainage Swales. A drainage swale is a channel lined with grass,

riprap, asphalt, concrete or other materials. They are installed to

convey runoff without causing erosion.

d. Sediment Traps. Sediment traps are installed in drainage

pathways, at storm drain inlets or other discharge points from

disturbed areas.

e. Check Dams. Check dams are small temporary dams constructed

across a

[[Page 7863]]

swale or drainage ditch to reduce the velocity of runoff, thereby

reducing erosion in the swale or ditch. They should not be used in a

permanent stream. More elaborate erosion controls in a flow conduit may

be unnecessary if check dams are installed due to the decrease in

energy of the runoff.

f. Level Spreader. Level spreaders are outlets for dikes and flow

channels consisting of an excavated depression constructed at zero

grade across a slope. Level spreaders convert concentrated runoff into

diffuse flow and release it onto areas stabilized by existing

vegetation.

g. Subsurface Drain. Subsurface drains transport runoff to an area

where the water can be managed effectively. Drains can be made of tile,

pipe, or tubing.

h. Pipe Slope Drain. A pipe slope drain is a temporary runoff

conveyance running down a slope to prevent erosion on the face of the

slope.

i. Temporary Storm Drain Diversion. Temporary storm drain

diversions are used to re-direct flow in a storm drain for capturing

sediment in a trapping device.

j. Storm Drain Inlet Protection. Storm drain inlet protection

reduces sediment entering storm drainage systems prior to permanent

stabilization of disturbed areas. Examples include a sediment filter or

an excavated detention area around a storm drain inlet.

k. Rock Outlet Protection. Rock protection placed at the outlet of

conduits can reduce the depth and velocity of water so the flow will

not cause downstream erosion.

l. Other Controls. Examples of other controls include temporary

sedimentation basins, sump pits, entrance stabilization, waterway

crossings and wind breaks.

B. Storm Water Management Measures

Storm water management measures are usually installed before, and

coincident with, completion of construction activities. The measures

primarily result in reductions of pollutants in storm water discharged

from the site after cessation of construction activities. Storm water

management may also be needed for compliance with local flood control

requirements (which may be unrelated to NPDES requirements).

Construction frequently causes significant alterations in the

characteristics of the affected land. One such change is an increase in

the overall imperviousness of the site, which can dramatically affect

the site's flow patterns. An increase in runoff may increase the amount

of pollutants carried by the runoff. In addition, some activities

(e.g., automobile travel on newly-built roads) can result in higher

pollutant concentrations in runoff compared to pre-construction levels.

Traditional storm water management controls attempt to limit increases

in the amount of runoff and pollution discharged from land impacted by

construction.

Storm water management measures include on-site infiltration of

runoff, flow attenuation by vegetation or natural depressions, outfall

velocity dissipation devices, storm water retention basins and

artificial wetlands, and storm water detention structures. For many

sites, a combination of these controls may be appropriate. A summary of

storm water management controls is provided below. A more complete

description of storm water management controls is found in ``Storm

Water Management for Construction Activities: Developing Pollution

Prevention Plans and Best Management Practices,'' U.S. EPA, 1992, and

``A Current Assessment of Urban Best Management Practices,''

Metropolitan Washington Council of Governments, March 1992. In

designing storm water controls, features that would pose a safety

hazard--especially for children--should be avoided and/or have limited

public access.

a. On-Site Infiltration. Inducing infiltration, through

infiltration trenches or basins, can reduce the volume and pollutant

loadings of storm water discharges from a site. Infiltration measures

tend to mitigate impacts to an area's natural hydrologic

characteristics. Properly designed and installed infiltration

constructs can reduce peak discharges, facilitate recharging of the

groundwater, augment low flow conditions in receiving streams, reduce

storm water discharge volumes and pollutant loads, and inhibit

downstream erosion.

Infiltration measures are particularly effective in permeable soils

and where the water table and bedrock are well below the surface.

Infiltration basins can also double as sediment basins during

construction. Infiltration trenches can be easily incorporated into

less active areas of a development and are appropriate for small sites

and in-fill developments. However, trenches may require regular

maintenance to prevent clogging, particularly where grass inlets or

other sedimentation measures are not used. In some situations, such as

low density areas of parking lots, porous pavement can provide for

infiltration.

b. Flow Attenuation by Vegetation or Natural Depressions. Flow

attenuation caused by vegetation or natural depressions can facilitate

pollutant removal and infiltration and can reduce the erosivity of

runoff. Use of vegetative flow attenuation measures can protect

habitats and enhance the appearance of a site. These measures include

grass swales and filter strips as well as trees that are either

preserved or planted during construction.

Incorporating check dams into flow paths can provide additional

infiltration and flow attenuation. Given their limited capacity to

accept large volumes of runoff (and the concomitant erosivity),

vegetative controls should usually be used in combination with other

storm water devices. Grass swales are typically used in areas such as

low or medium density residential development and highway medians as an

alternative to curb and gutter drainage system. In general, the costs

of vegetative controls are less than for other storm water measures.

c. Outfall Velocity Dissipation Devices. Outfall velocity

dissipation devices include riprap and stone or concrete flow

spreaders. They slow the flow of water discharged from a site thereby

reducing erosion.

d. Retention Structures/Artificial Wetlands. Retention structures

are ponds and artificial wetlands that are designed to maintain a

permanent pool of water. Properly installed and maintained retention

structures (also known as wet ponds) and artificial wetlands can

achieve a high removal rate of sediment, biochemical oxygen demand

(BOD), organic nutrients and metals, and are most cost-effective when

used to control runoff from larger, intensively developed site. These

constructs rely on settling and biological processes to remove

pollutants. Retention ponds and artificial wetlands can also become

wildlife habitats, recreation, and landscape amenities, and increase

local property values.

While the Agency believes artificial wetlands can be one of the

most effective long-term storm water management measures, EPA also

recognizes the potential problems to which wetlands may contribute at

certain sites. This could be the case at airports where bird

populations drawn to wetlands proximate to runways/taxiways may

endanger moving aircraft. EPA recommends that structures which maintain

continuous habitat for wildlife not be constructed within 10,000 feet

of a public-use airport serving turbine-powered aircraft, or within

5,000 feet of a public-use airport serving piston-powered aircraft.

EPA, as always, stresses public safety and sound engineering judgement

in the implementation of any storm water

[[Page 7864]]

measure, control or best management practice.

e. Water Quality Detention Structures. Storm water detention

structures, which include extended detention ponds, control the rate at

which water drains after a storm event. Extended detention ponds are

usually designed to completely drain in about 24 to 48 hours and to

remain dry at other times. They can provide pollutant removal

efficiencies similar to those of retention pond. Extended detention

systems are typically designed to provide both water quality and water

quantity (flood control) benefits.

C. Housekeeping Best Management Practices (BMPs)

Pollutants that could be discharged in storm water from

construction sites because of poor housekeeping include oil, grease,

paints, gasoline, concrete truck wash down, raw materials used in the

manufacture of concrete (sand, aggregate, and cement), solvents,

litter, debris and sanitary wastes. Construction site SWPPPs should

address the following to prevent the discharge of pollutants:

Designate and control areas for equipment maintenance and

repair;

Provide waste receptacles at convenient locations and

regular collection of wastes;

Locate equipment wash down areas on site, and provide

appropriate control of washwater to prevent unauthorized dry weather

discharges and avoid mixing with storm water;

Provide protected storage areas for chemicals, paints,

solvents, fertilizers, and other potentially toxic materials; and

Provide adequately maintained sanitary facilities.

V. Summary of Permit Conditions

This section has been written in an informal style and follows the

structure of the CGP, but it does not always reflect verbatim the

actual language used in the permit. It is intended to help the

regulated community and members of the public understand the intent and

basis of the actual permit language. If any confusion or conflicts

exist between this summary and the actual CGP language, the permittee

must comply with the CGP as written. More detail on permit conditions

is available in section VIII. Summary of Responses to Comments on the

Proposed Permit.

Part I. Areas Covered by Each Permit, Eligibility for the Permit,

Obtaining Coverage and Terminating Coverage

A. Permit Areas

Each separate general permit is individually numbered and only

provides coverage to construction activities in the permit's designated

area or category (e.g., State, Federal facility within a State, Indian

Country Land, etc.). Each permittee will be assigned a permit number

when his Notice of Intent is processed.

B. Eligibility

1. Discharges and Operations Covered

These permits authorize all discharges of storm water from

construction activities except those excluded under the Limitations on

Coverage section (Part I.B.3) in the CGP. Any discharge authorized by a

different NPDES permit may be commingled with discharges authorized by

this permit. The permit also authorizes discharges from construction

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

staging yards, material storage areas, etc.) for local project(s) an

operator is currently involved with (e.g., a concrete batch plant

providing concrete to several different highway projects in the same

county). Authorization of this discharge is contingent upon (1) the

support activity not being a commercial operation serving multiple,

unrelated construction projects and not operating beyond the completion

of the last related construction project it serves; and (2) appropriate

controls are identified in the storm water pollution prevention plan

(SWPPP) for the discharges from the support activity areas.

2. Limitations on Coverage

Not all storm water discharges from construction sites are

authorized by this permit. Specifically excluded are:

1. Storm water discharges originating from a site after

construction activities have ceased, the site has undergone final

stabilization, and an NOT submitted. If there will be a discharge of

storm water associated with industrial activity, or some other

regulated discharge from the completed project (e.g., wastewater from a

newly-constructed chemical plant), coverage under another permit(s)

must be obtained for these discharges.

2. Storm water discharges which are mixed with non-storm water

sources, other than those identified in and complying with the permit.

Non-storm water discharges which are authorized under a different NPDES

permit may be commingled with discharges authorized under this permit.

3. Storm water discharges associated with construction activity

that are covered under an individual permit or discharges required to

be covered under an alternative general permit.

4. Storm water discharges which the Director (EPA) has determined,

or thinks may reasonably be expected, to cause or contribute to a

violation of water quality standards. The discharges may be authorized,

however, if appropriate measures to assure compliance with water

quality standards are included in the SWPPP. For example, the Director

may determine that, in the absence of controls, a small construction

site poses a threat to water quality. He may then allow coverage if

control measures addressing the threat are included in the SWPPP and

implemented.

5. Discharges which are not protective of endangered species.

Before submitting an NOI, the operator should follow the procedures in

Addendum A to determine his eligibility for permitting with regard to

protection of endangered species. EPA envisions that the project

``owner'' or developer would likely do the endangered species analysis

during the planning stages of a project (i.e., before construction is

scheduled to begin). By design, this effort should not have to be

repeated by the contractors, homebuilders, utilities, etc., whose

involvement in the project will not happen until later. (See section

VIII. Summary of Responses to Comments on the Proposed Permit and

Addendum A of the permit for further information.)

C. Obtaining Coverage

To obtain authorization to discharge under the general permit, an

operator must develop a SWPPP or participate in a joint plan with

others, in accordance with the requirements of the CGP. He must then

submit a complete and accurate NOI form.

Storm water discharges are authorized two days after the date the

NOI is postmarked, unless otherwise notified by EPA. Permittees must

implement their SWPPP or their portion of the plan, as soon as they

begin work on site. Coverage under the general permit cannot be

directly transferred to a new operator; rather a new NOI must be filed

by the operator wishing to assume responsibility for permit compliance.

During the first 90 days after the effective date of the CGP, an

operator may use the SWPPP developed while he was covered under the

previous permit. During the time the new general permit was not

available, any operator who has

[[Page 7865]]

prepared a pollution prevention plan in accordance with the 1992

general permit may submit an NOI and use his existing SWPPP as an

interim plan for 90 days from the effective date of the new permit.

EPA may deny coverage under this permit and require an operator to

submit an individual NPDES permit application based on the completeness

and/or content of his NOI, or other information such as water quality

data, permittee compliance history, etc. If EPA requires a permittee to

apply for an individual NPDES permit or an alternative general permit,

he will be notified in writing. Coverage under this general permit will

automatically terminate if the permittee so notified fails to submit

any required individual or alternative permit applications in a timely

manner. If an individual permit or alternative general permit was

applied for, the date the new permit became effective or denied marks

the termination date of this permit.

D. Terminating Coverage

To terminate coverage, a permittee must submit a Notice of

Termination (NOT) form. The NOT must be filed within 30 days after

cessation of construction activities and final stabilization of the

permittee's portion of the site (or temporary stabilization for

residential construction where a homeowner is assuming control of a

property). An NOT must also be submitted by a permittee before another

operator assumes the previous permittee's liabilities. NOT requirements

are discussed later in this fact sheet.

Part II. Notice of Intent Requirements

All applicants for NPDES general permits for storm water discharges

associated with industrial activity are required to submit Notices of

Intent (NOI) to obtain permit coverage (40 CFR 122.28(b)(2)).

Submission of a complete and accurate NOI eliminates the need to apply

for an individual permit for a regulated discharge, unless the Director

specifically notifies the discharger that an individual permit

application must be submitted.

Only NOI forms provided by EPA (or photocopies thereof) are valid.

A revised, simplified NOI form has been developed for the CGP but was

not available as of the effective date of this permit (final approval

had not yet been obtained from the U.S. Office of Management and

Budget). As soon as the revised form is approved it will be published

in the Federal Register. All applicants thereafter must use the revised

NOI form. Until the revised NOI form is available, operators must

continue to use the existing NOI. Though applicants are only required

to complete information on the form related to the previous Baseline

Construction General Permit, they must be aware that by signing and

dating the form they certifying that they understand and are willing to

comply with all terms and conditions of the NPDES permit they have

applied for, namely the Construction General Permit. These conditions

include those found in Part I.B (Permit Eligibility) of the permit.

It is acceptable to fill in information that will be the same for

every project (e.g., a company's name, address) and make copies of the

partially completed form for future use. An electronic version of the

existing NOI form is currently available on EPA's Office of Wastewater

Management web site on the Internet and various EPA Regional web pages.

The revised NOI form will likewise be added when it becomes available

for use.

Each entity meeting either of the two criteria for an operator must

submit an NOI. For more details on who must file an NOI, see section V,

Part III.E of this Fact Sheet. The proposed definition of ``operator''

has been clarified in the final permit and the existing regulatory

definitions of ``owner or operator'' and ``facility or activity'' have

also been included. Clarifications to the definition of ``operator''

were made because some of the regulated community felt the previous

definition was nebulous. For further discussions on ``operator'' as

related to construction activity, see section VIII, Summary of

Responses to Comments, of this Fact Sheet.

EPA believes there exist situations where a utility company

installing service lines meets the definition of operator and must get

permit coverage, although most of the time a utility would be

considered a ``subcontractor'' (i.e., non-permittee). If a utility

company is constructing a project for itself (e.g., main transmission

line, transformer station) it must obtain permit coverage. Otherwise,

as a non-permittee working at construction site, EPA encourages utility

companies (as it does any subcontractor) to abide by the site's SWPPP

provisions and minimize its impacts on storm water controls.

A. Deadlines for Submitting NOIs

An operator's Notice of Intent must be postmarked at least two days

prior to commencement of any work on site (if he has control over plans

and specifications) or two days prior to commencement of his portion of

the work (if he has only day-to-day operational control).

Permittees authorized to discharge under the previous 1992 general

permit must submit a new NOI within 90 days of the effective date of

this permit in order to continue authorization to discharge after 90

days. An NOI is not required if the permittee will be eligible to

submit an NOT (i.e., construction finished and final stabilization

complete) before the 90th day.

Permittees authorized to discharge under the 1992 permit and those

allowed to use a SWPPP developed in accordance with the 1992 permit,

must continue to comply with that plan and update it as necessary, to

comply with the requirements of the CGP within 90 days after the

Federal Register publication date of the CGP.

EPA will accept a late NOI, but the authorization only covers

discharges from two days after the postmark date. The authorization

does not retroactively apply to any prior, unpermitted discharges. The

Agency reserves the right to take enforcement action for any

unpermitted discharges of pollutants to waters to the United States.

B. Contents of the New (Revised) NOI

The revised NOI form (available following OMB approval and

publication in the Federal Register) requires the following information

(instructions are on NOI form):

The operator's (applicant's) name, address, telephone

number and whether they are a Federal, State, Tribal, public or private

entity (e.g., ``XYZ Construction, 123 South St., Anyburg, TX, 214-555-

5555, P'' [P for private company]);

The street address (description of location if street

address is unavailable), county, and the latitude and longitude of the

approximate center of the construction site (e.g., ``123 South St.,

Anyburg, Our County, NH'' or ``1 mile south of Anyburg, NH, on County

Road No. 1; Anyburg, Our County, NH'') Help on finding your latitude

and longitude is provided in the instructions to the NOI form. If you

will be involved in many construction projects, you may wish to invest

in a portable Global Positioning System (GPS) unit that provides read-

outs of the latitude and longitude. Units designed for recreational use

(e.g., boating, hiking) can cost less than $200.

Whether or not the construction project is located on an

Indian Country land;

The name of the receiving water(s), or if the discharge is

through a municipal separate storm sewer, the name of the municipal

operator of the

[[Page 7866]]

storm sewer and the receiving water(s) (e.g., ``Nimby Creek'' or

``Anyburg, NH'' for municipal storm sewers);

An estimate of project start date and completion date and

an estimate of the number of acres of the site on which soil will be

disturbed. Note that the project start and stop dates need not be

exact. EPA recognizes that many factors, often beyond the permittee's

control, contribute to whether a project will actually start or end on

the estimated dates. Acreage may be determined by dividing square

footage by 43,560, as demonstrated in the following example:

Convert 54,450 ft\2\ to acres

Divide 54,450 ft\2\ by 43,560 square feet per acre:

54,450 ft\2\ 43,560 ft\2\/acre = 1.25 acres

Whether or not the SWPPP has been prepared and (optional)

the location of where the plan can be viewed if different from the

project address;

Whether any endangered species identified in Addendum A of

the permit are in proximity to the construction project and which of

the listed options enables the operator to claim eligibility for permit

coverage (see Addendum A for instructions);

A signature block is provided following a certification

statement that everything on the NOI form is correct. The proposed CGP

contained multiple certifications but these were eliminated by

incorporating an introductory statement into the NOI that submission of

the NOI constitutes an agreement to comply with the permit and that the

permittee is, in fact, eligible for permit coverage.

The NOI must be signed in accordance with the signatory

requirements of 40 CFR 122.22. A complete description of these

signatory requirements is provided in Part VI., Standard Permit

Conditions, of the general permit.

C. Where To Submit the NOI

Completed NOI forms are to be sent to the NOI Processing Center at

the address indicated in the permit, or as otherwise indicated on the

latest approved revision to the NOI form. Copies of NOI forms must also

be sent to certain States and Tribes as specified in Part X of the

permit.

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

Numeric Limitations

A. Prohibition of Non-Storm Water Discharges

The CGP does not authorize discharge of unpermitted, non-storm

water, either alone or mixed with storm water, except for the specific

classes of non-storm water discharges described in the permit.

Discharges of material other than storm water which are in compliance

with another NPDES permit may be mixed with storm water discharges

authorized by this permit. Authorized non-storm water discharges could

include: \3\

---------------------------------------------------------------------------

\3\ These discharges are consistent with the allowable classes

of non-storm water discharges to municipal separate storm sewer

systems (40 CFR 122.26(d)(2)(iv)(B)).

---------------------------------------------------------------------------

Firefighting activity runoff;

Fire hydrant flushings;

Vehicle washwater if detergents are not used;

Dust control runoff in accordance with permit conditions;

Potable water sources including waterline flushings;

Routine external building wash-down that did not involve

detergents;

Non-detergent pavement washwater (where spills/leaks of

toxic or hazardous materials have not occurred, unless all spilled

material had been removed);

Air conditioning condensate;

Uncontaminated ground water or spring water;

Foundation or footer drain-water (providing there was no

contamination with process materials such as solvent).

To be authorized for discharge under the CGP, the above-listed

sources of non-storm water (except firefighting runoff) must be

specifically identified in the SWPPP prepared for the facility. Non-

storm water flows from firefighting activities are exempt from control

requirements due to the ephemeral and exigent nature of these

activities. If practicable, however, the permittee must take action to

mitigate the impacts of firefighting runoff on receiving water quality.

For discharges not covered by today's permit (e.g., industrial

process wastewater or process wastewater mixed with storm water), the

discharger must submit the appropriate application forms (Forms 1 and

2C) to obtain permit coverage or discontinue the discharge.

``Allowable'' non-storm water discharges cannot be authorized under

this permit, unless they are directly related to and originate from a

construction site or dedicated support activity site (e.g., a pressure

washing company cannot broadly use the CGP for their business

operations, because general vehicle washing is not associated with a

construction site).

B.&C. Releases of Reportable Quantities of Hazardous Substances or Oil

The CGP requires the permittee to prevent or minimize the discharge

of hazardous substances or oil from a site in accordance with the his

SWPPP. Furthermore, if a permitted discharge contains a hazardous

substance or oil in an amount equal to or in excess of a reportable

quantity established under 40 CFR 110, 40 CFR 117, or 40 CFR 302,

during a 24-hour period, the National Response Center (NRC) must be

notified (dial 800-424-8802 or 202-426-2675 in the Washington, DC

area). Also, within 14 calendar days of knowledge of the release, the

SWPPP must be modified to include the date and description of the

release, the circumstances leading to the release, responses to be

employed for such releases, and measures to prevent the reoccurrence of

such releases.

Where a discharge of a hazardous substance or oil in excess of

reportable quantities is associated with a non-storm water discharge

(e.g., a spill of oil into a separate storm sewer), the spill would not

be authorized by this permit. Spills must still be reported as required

under 40 CFR 110. Also applicable are Section 311 of the CWA and

certain provisions of Sections 301 and 402 of the CWA. This approach is

necessary because of statutory requirements that make a clear

distinction between hazardous substances typically found in storm water

discharges and spilled hazardous substances that are not (See 40 CFR

117.12(d)(2)(i)).

D. Compliance With Water Quality Standards

The previous permit did not specifically address water quality

standards (WQS). The CGP contains an eligibility condition that does

not authorize discharges from construction sites that the Director

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. However, the

Director may authorize coverage under the permit after appropriate

controls and implementation procedures designed to bring the discharges

into compliance with water quality standards have been included in the

SWPPP.

If a discharge authorized under this permit is later discovered to

cause, or have the reasonable potential to cause or contribute to the

violation of a WQS, the permitting authority will inform the permittee

of the violation. The permittee must then take all necessary actions to

ensure future discharges do not cause or contribute to the violation of

a WQS, and document these actions in the SWPPP. If violations remain or

reoccur, coverage under this permit may be terminated by the permitting

authority

[[Page 7867]]

and an alternative permit issued. Compliance with this requirement does

not preclude enforcement actions as provided by the Clean Water Act for

the underlying violation.

E. Operator Responsibility

The proposed CGP attempted to outline the responsibilities expected

of the variety of operators who may be working at a construction site.

For the final permit, this section has been clarified and acknowledges

it is possible for one operator to have operational control over all

aspects of the project (and thus be the sole permittee), vice the

situation where multiple entities meet the definition of operator and

would otherwise all need permits. Permittees who intend to act as the

sole ``overall'' operator need to comply with both the ``plans and

specifications'' and ``implementation'' requirements of the SWPPP.

The permit also stipulates that an operator with control over only

a portion of a project is only responsible for permit/SWPPP compliance

as it relates to his activities. An operator must also ensure he does

not impact another permittee's pollution controls (e.g., if you knock

down another operator's silt fence, you should repair it or at a

minimum inform the operator). Permittees must either implement their

portion of a joint SWPPP or develop and implement their own individual

SWPPP.

Part IV. Storm Water Pollution Prevention Plan Requirements

The SWPPP focuses on two major requirements: (1) Providing a site

description that identifies sources of pollution to storm water

discharges associated with industrial activity on site; and

(2) Identifying and implementing appropriate measures to reduce

pollutants in storm water discharges to ensure compliance with the

terms and conditions of this permit. All SWPPPs must be developed in

accordance with sound engineering practices.

In the development of this permit, the Agency used requirements

similar to those found in numerous State and local sediment and erosion

control and storm water management programs, covering a variety of

climates and types of construction.

A. Deadlines for Plan Preparation

For coverage under this permit, the SWPPP must be prepared before

submittal of an NOI and then updated as appropriate (except as allowed

for interim plans during the first 90 days of this permit).

B. Signature, Plan Review and Making Plans Available

1. Signature

The SWPPP must be signed in accordance with the signatory

requirements in the Standard Permit Conditions section of the CGP.

2. Plan Review

The Agency may notify the permittee at any time that his plan does

not meet one or more of the requirements. The notification will

identify which requirements of the permit are being unmet and which

elements of the SWPPP require modification. Within seven calendar days

of receipt of notification from EPA (or as otherwise requested by EPA),

the required changes to the plan must be made and a certification

submitted that the changes have, in fact, been made and implemented.

3. Making Plans Available

Permittees must make SWPPPs available, upon request, to EPA, State,

Tribal or local agencies approving sediment and erosion plans, grading

plans or storm water management plans. Plans may also have to be sent

to local government officials or the operator of the municipal separate

storm sewer which receives the discharge.

A notice about the permit and SWPPP must be conspicuously posted

near the main entrance of the site. If displaying near the main

entrance is infeasible, the notice can be posted in a local public

building such as the town hall or public library. For linear projects,

the notice must be posted at a publicly accessible location near the

active part of the construction project (e.g., where a pipeline project

crosses a public road).

The permit notice must include the following information:

The project's NPDES permit number;

The name and phone number of a local contact;

A brief project description; and

The location of the SWPPP if not kept on site.

The permit does not require that the general public have access to

the construction site nor does it require that copies of the plan be

available or mailed to members of the public. However, EPA strongly

encourages permittees to provide public access to SWPPPs at reasonable

hours. Upon request, EPA intends to assist members of the public in

obtaining access to permitting information, including SWPPPs. EPA

believes this approach will create a balance between the public's need

for information on projects potentially impacting their water bodies

and the site operator's need for safe and unimpeded work conditions.

C. Keeping SWPPPs Current

Storm water pollution prevention plans must be revised whenever a

change in design, construction method, operation, maintenance

procedure, etc., may cause a significant effect on the discharge of

pollutants to surface waters or municipal separate storm sewer systems.

The plan must also be amended if inspections indicate the SWPPP is

ineffective in eliminating or significantly reducing pollutants in the

discharges from the construction site. In addition, the plan must be

updated to identify any new operator who will implement a portion of

the SWPPP.

D. Contents of the Plan

The storm water pollution prevention plan must include:

A site description;

A description of controls that will be used on site (i.e.,

the erosion and sediment controls and storm water management measures);

A description of maintenance and inspection procedures;

and

A description of pollution prevention measures for any

non-storm water discharges present.

1. Site Description

The SWPPP must be based on an accurate assessment of the potential

for generating and discharging pollutants from the site. Hence, the

permit requires the identification of potential sources of pollution at

a construction site that may reasonably be expected to impact the

quality of the site's storm water discharges. There must also be a

description of the site and anticipated construction activities in the

SWPPP (to provide a better understanding of site runoff

characteristics). At a minimum, SWPPPs must contain the following:

A description of the nature of the construction activity

including the function of the project (e.g., low-density residential,

shopping mall, highway, etc.);

A description of the intended significant activities,

presented sequentially, that disturb soil over major portions of the

site (e.g., grubbing, excavation, grading);

Estimates of the total area of the site and the total area

of the site that is expected to be disturbed by excavation, grading or

other activities, including off-site borrow/fill areas. It may be

preferable to separately describe portions of the site as they are

disturbed at different stages of the construction process;

[[Page 7868]]

Estimates of the site's runoff coefficient (used for

calculating the volume of runoff) during and after construction as well

as data describing the quality of any discharge from the site or the

soil. The runoff coefficient is defined as the fraction of total

precipitation that will appear at a conveyance as runoff (vs.

infiltrated precipitation). Runoff coefficients can be estimated from

site plan maps, which show where impervious surfaces, vegetation and

permeable surfaces will be. These coefficients are used to help

determine pollutant loadings, potential hydraulic impacts to receiving

waters and flooding impacts. They are also used in the design of post-

construction storm water management measures;

A site map indicating: (1) Anticipated drainage patterns

and slopes after major grading activities; (2) areas of soil

disturbance and areas that will not be disturbed; (3) locations of

major structural and nonstructural controls identified in the plan; (4)

locations of planned stabilization measures; (5) locations of surface

waters (including wetlands); (6) locations of discharge points to

surface waters; (7) off-site locations of equipment storage, material

storage, waste storage and borrow/fill areas. Site maps should also

include other major features and potential pollutant sources, such as

locations of impervious structures and soil storage piles;

A description of any discharge associated with industrial

activity other than construction (including storm water discharges from

dedicated asphalt plants, concrete plants, etc.) and the location of

that activity on the construction site;

The name of receiving waters and the areal extent of

wetlands at the site; and

Information on endangered and threatened species including

whether any endangered species are in proximity to the permit area as

defined in Addendum A to the permit.

2. Controls to Reduce Pollutants

The SWPPP must describe the implementation of practices that will

be used to reduce the pollutants in storm water discharges from the

site and assure compliance with the terms and conditions of the permit.

Four classes of controls must be developed and implemented: (1) Erosion

and sediment; (2) storm water management; (3) a specified set of other

controls; and (4) any applicable requirements of State, Tribal and

local sediment and erosion plans or storm water management plans.

The SWPPP must describe the intended sequence of major storm water

control activities and when, in relation to the construction process,

they will be implemented. EPA recognizes that many factors can impact

the actual construction schedule, so the permittee need not include

specific dates (e.g., plan could say install silt fence for area ``A''

before rough grading, rather than put up silt fences on August 15).

Good site planning and preservation of mature vegetation are imperative

for controlling pollution in storm water discharges both during and

after construction activities. Properly staging major earth disturbing

activities can also dramatically decrease the costs of sediment and

erosion controls.

Permittees must develop and implement controls in the SWPPP for

each of the four categories discussed below.

a. Erosion and Sediment Controls. Erosion and sediment controls

include both stabilization practices and structural practices. The

requirements for erosion and sediment controls for construction

activities in this permit have the following goals and criteria:

Construction phase erosion and sediment controls should be

designed with the objective to retain sediment on site;

Control measures must be properly selected and installed

in accordance with sound engineering practices and manufacturers

specifications;

Off-site accumulations of sediment must be regularly

removed to minimize impacts;

Sediment should be removed from sediment traps when the

design capacity has been reduced by 50%;

Litter shall be prevented from entering a receiving water;

and

Off-site material storage areas must be addressed in the

SWPPP.

b. Stabilization Practices. Stabilization practices are the first

line of defense in preventing erosion. The SWPPP must include a

description of interim and permanent stabilization practices, including

a schedule of their implementation. The permittee should ensure that

existing vegetation is preserved wherever possible and that disturbed

portions of the site are stabilized as quickly as practicable.

Stabilization practices include seeding of temporary vegetation,

seeding of permanent vegetation, mulching, geotextiles, sod

stabilization, vegetative buffer strips, preservation of trees and

mature vegetative buffer strips, and other appropriate measures.

Temporary stabilization can be the single-most important factor in

reducing erosion at construction sites.

Stabilization also involves preserving and protecting selected

trees on the site prior to development. Mature trees have extensive

canopy and root systems, which help to hold soil in place. Shade trees

also keep soil from drying rapidly and becoming susceptible to erosion.

Measures taken to protect trees can vary significantly, from simple

ones such as installing tree armoring and fencing around the drip line,

to more complex measures such as building retaining walls and tree

wells.

It is imperative that stabilization be employed as soon as possible

in critical areas. The CGP requires that, except in three situations,

stabilization measures must be instituted on disturbed areas as soon as

practicable, but no more than 14 days after construction activity has

temporarily or permanently ceased on any portion of the site. The three

exceptions to this requirement are the following:

When construction activities will resume on a portion of

the site within 21 days from suspension of previous construction

activities;

When the initiation of stabilization measures is precluded

by snow cover or frozen ground, in which case they must be initiated as

soon as practicable; and

In arid areas (areas with an average annual rainfall of 0

to 10 inches), semi-arid areas (10 to 20 inches) and areas experiencing

droughts; where the initiation of stabilization measures is precluded

by seasonal arid conditions. For the last case, stabilization measures

must be initiated as soon as precipitation becomes possible.

c. Structural Practices. The SWPPP must include a description of

structures built to divert flows from exposed soils, and store or

otherwise limit runoff and the discharge of pollutants from exposed

areas of the site. Structural controls are necessary because vegetative

controls cannot be employed where soil is continually disturbed and

because of the lag time before vegetation becomes effective. Options

for such controls include silt fences, earth dikes, drainage swales,

check dams, subsurface drains, pipe slope drains, level spreaders,

storm drain inlet protection, rock outlet protection, sediment traps,

reinforced soil retaining systems, gabions and temporary or permanent

sediment basins. Placement of structural controls in flood plains

should be avoided, rather they should be located on upland soils to the

degree possible.

For sites with more than 10 disturbed acres at a time, all of which

are served by a common drainage location, a sediment basin providing

3,600 cubic feet of storage per acre drained, or equivalent control

measures (such as suitably-sized dry wells or infiltration structures),

must be provided where

[[Page 7869]]

practicable until final stabilization of the site has been

accomplished. In lieu of the default 3,600 cubic feet/acre, the

permittee can calculate the basin size based on the expected runoff

volume from the local two-year, 24-hour storm event and local runoff

coefficient. Flows from off-site or on-site areas that are undisturbed

or have undergone final stabilization, may be diverted around both the

sediment basin and the disturbed area. These diverted flows can be

ignored when designing the sediment basin.

For the drainage locations which serve more than 10 disturbed acres

at a time and where a sediment basin designed according to the above

guidelines is not feasible, smaller sediment basins or traps should be

used. At a minimum, silt fences, vegetative buffer strips or equivalent

sediment controls are required for all down-slope and appropriate mid-

slope boundaries of the construction area. Diversion structures should

be used on upland boundaries of disturbed areas to prevent run-on from

impacting disturbed areas. EPA does not intend to imply that silt

fences or vegetative buffer strips on down-slope boundaries are the

only BMPs that need to be used to protect water quality. EPA encourages

the use of a combination of sediment and erosion control measures in

order to achieve maximum pollutant removal.

For drainage locations serving 10 or less acres, smaller sediment

basins or sediment traps should be used and, at a minimum, silt fences

or equivalent sediment controls are required for all down slope and

appropriate mid-slope boundaries of the construction area.

Alternatively, the permittee may install a sediment basin providing

storage for 3,600 cubic feet (or the alternative calculated volume) of

storage per acre drained. Diversion structures should be installed on

upland boundaries of disturbed areas to prevent run-on. EPA does not

intend to imply that silt fences or vegetative buffer strips on down-

slope boundaries are the only BMPs that need to be used to protect

water quality. EPA encourages the use of a combination of sediment and

erosion control measures in order to achieve maximum pollutant removal.

d. Storm Water Management. The SWPPP must include a description of

storm water management measure, however this permit addresses only the

installation of these measures; not the ongoing operation and

maintenance of them after cessation of construction activities and

final stabilization. Permittees are responsible only for the

installation and maintenance of storm water management measures prior

to final stabilization of the site. However, when selecting storm water

management measures, the amount of required maintenance should be

considered and whether there will be adequate resources for maintaining

them over the longer term.

Some discharges of pollutants from post-construction storm water

management structures may need to be authorized under an NPDES permit

(e.g., the construction project was an industrial facility in a sector

covered by the NPDES multi-sector general permit). The owner/operator

of such discharges may inquire with EPA if this requirement applies to

them.

Land development can significantly increase storm water runoff

volume and peak velocity if appropriate storm water management measures

are not implemented. In addition, post-development storm water

discharges will typically contain higher levels of pollutants,

including total suspended solids (TSS), heavy metals, nutrients and

high oxygen-demand components.

Storm water management measures installed during the construction

process can control the volume and velocity of runoff, as well as

reduce the quantity of pollutants discharged post-construction.

Reductions in peak discharge velocity and volume can reduce pollutant

loads as well as diminish physical impacts such as stream bank erosion

and stream bed scour. Storm water management measures that mitigate

changes to pre-development runoff characteristics assist in protecting

and maintaining the physical and biological characteristics of

receiving streams and wetlands.

Structural measures should be installed on upland areas to the

extent feasible. The installation of such measures may be subject to

section 404 of the CWA if they will be located in wetlands (or other

waters of the United States).

Options for storm water management measures that should be

evaluated in the development of plans include:

On-site infiltration of precipitation;

Flow attenuation by use of open vegetated swales and

natural depressions;

Storm water retention/detention structures (including wet

ponds); and

Sequential systems using multiple methods.

The pollution prevention plan shall include an explanation of the

technical basis used to select control measures, where flows exceed

pre-development levels. This explanation should address how a number of

factors were evaluated including the pollutant removal efficiencies of

the measures, costs of the measures, site-specific factors that will

affect the utility of the measures, whether the measure is economically

achievable at a particular site and any other relevant factors.

Although not a limitation or performance standard in the permit,

EPA anticipates that storm water management measures at many sites will

be able to achieve removal of at least 80% of total suspended solids. A

number of storm water management measures can be used to achieve this

level of control, including:

Properly designed and installed wet ponds;

Infiltration trenches and basins;

Sand filter systems;

Manmade storm water wetlands; and

Multiple pond systems.

The pollutant removal efficiencies of various storm water

management measures can be estimated from a number of sources,

including ``Storm Water Management for Construction Activities:

Developing Pollution Prevention Plans and Best Management Practices,''

U.S. EPA, 1992, and ``A Current Assessment of Urban Best Management

Practices'' prepared for U.S. EPA by Metropolitan Washington Council of

Governments, March 1992.

In selecting storm water management measures, the permittee should

consider the impacts of each method on other water resources, such as

ground water. Although SWPPPs primarily focus on storm water

management, EPA encourages facilities to avoid creating groundwater

pollution problems. For example, if the water table is high in an area

or soils are especially porous, an infiltration pond may contaminate

the groundwater unless special preventive measures are taken. Per EPA's

July 1991 Ground Water Protection Strategy, States are encouraged to

develop Comprehensive State Ground Water Protection Programs (CSGWPP).

Efforts to control storm water should be compatible with State or

Tribal ground water objectives as reflected in CSGWPPs. Storm water

controls, such as wet ponds, should also be designed to have minimal

safety risks, especially to children.

The evaluation of whether the pollutant loadings and the hydrologic

conditions (the volume of discharge) of flows exceed pre-development

levels can be based on hydrologic models which consider conditions such

as the natural vegetation endemic to the area.

Increased discharge velocities can greatly accelerate erosion near

the outlet of structural measures. To mitigate these effects, velocity

dissipation devices should be placed at discharge points

[[Page 7870]]

and along the length of a runoff conveyance, as necessary, to provide a

non-erosive flow. Velocity dissipation devices help protect a water

body's natural, pre-construction physical and biological uses and

characteristics (e.g., hydrologic conditions such as the hydro period

and hydrodynamics).

e. Other Controls. Other controls to be addressed in SWPPPs for

construction activities are for compliance with the requirement that

nonsolid materials, including building material wastes, not be

discharged at the site except as authorized by a section 404 permit.

This permit requires vehicular tracking of soil off-site and the

generation of dust must be minimized. Dust and dirt-tracking can be

minimized by measures such as providing gravel or paving at entrance/

exit drive paths, parking areas and unpaved transit ways on the site

carrying significant amounts of traffic (i.e., more than 25 vehicles

per day); providing entrance wash racks or stations for trucks; and

performing street sweeping.

In addition, the SWPPP must clearly show compliance with applicable

State/Tribal or local sanitary sewer, septic system and waste disposal

regulations to the extent they apply to the permitted activity.\4\ The

plan must also contain a description of practices to reduce pollutants

from construction-related materials which are stored on site, including

a description of said construction materials (with updates as

appropriate). The plan should include a description of pollutant

sources from areas untouched by construction and a description of

controls and measures which will be implemented in those areas.

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\4\ In rural and suburban areas served by septic systems,

malfunctioning septic systems can contribute pollutants to storm

water discharges. Malfunctioning septic tanks may be a more

significant surface runoff pollution problem than a groundwater

problem. This is because a malfunctioning septic system is less

likely to cause groundwater contamination where a bacterial mat in

the soil retards the downward movement of wastewater. Surface

contamination can be caused by clogged or impermeable soils, or when

clogged or collapsed pipes force untreated wastewater to the

surface. The extent of surface contamination can vary in degree from

occasional damp patches to constant pooling or runoff of wastewater.

These discharges have high bacteria, nitrate and nutrient levels and

can contain a variety of household chemicals. This permit does not

establish new criteria for septic systems, but rather requires

addressing existing State or local criteria.

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The plan must also include measures to protect listed endangered

and threatened species and/or critical habitat (if applicable),

including any terms or conditions that are imposed pursuant to the

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

from storm water discharges or BMPs to control storm water runoff.

Failure to include these measures will result in the storm water

discharges from the construction activities being ineligible for

coverage under this permit. (See section VI. Endangered Species

Protection and also section VIII. Summary of Responses to Comments for

more discussion.)

f. State/Tribal and Local Controls. Many States, Tribes,

municipalities and counties have developed sediment and erosion control

requirements for construction activities. A significant number have

also developed storm water management requirements. The CGP requires

that SWPPPs for facilities that discharge storm water associated with

industrial activity from construction activities be consistent with

procedures and requirements of State/Tribal and local sediment and

erosion control plans and storm water management plans. The proposed

requirement to have permit applicants certify that their SWPPP

incorporates requirements related to protecting water resources that

are specified in State/Tribal or local sediment and erosion plans or

storm water management plans has been eliminated.

g. Maintenance. Erosion and sediment controls can become

ineffective if they are damaged or not properly maintained. The SWPPP

requires all erosion and sediment control measures to be maintained in

effective operating condition. If site inspections identify BMPs that

are not operating effectively, maintenance must be performed before the

next anticipated storm event. If maintenance before the next

anticipated storm event is impracticable, maintenance must be completed

as soon as practicable.

h. Inspections. Permittees must inspect designated areas on the

site at least once every 14 calendar days, and within 24 hours after

any storm event of 0.5 inches or greater. EPA also recommends that

permittees perform a ``walk through'' inspection of the construction

site before anticipated storm events (or series of events such as

intermittent showers over a period of days) that could potentially

yield a significant amount of runoff.

Visual inspections must comprise, at a minimum:

Disturbed areas;

Areas used for storage of exposed materials;

Sediment and erosion control measures; and

Locations where vehicles enter or exit the site.

For sites that have undergone stabilization (temporary or final) or

experience seasonal aridity (average annual rainfall of 0 to 10 inches)

or semi-aridity (annual rainfall of 10 to 20 inches), inspections must

be conducted at least once a month. Where construction activity has

been halted due to frozen conditions, inspections are not required

until one month before thawing is expected (i.e., snowmelt runoff would

commence).

Where discharge points are accessible, they must be inspected to

ascertain whether erosion control measures are effective in preventing

impacts to receiving waters. This can be done by inspecting the waters

for evidence of erosion or sediment introduction. If discharge points

are inaccessible, the permit requires that nearby downstream locations

be inspected, if practicable.

Were an inspection to reveal inadequacies, the site description and

pollution prevention measures identified in the SWPPP must be revised.

All necessary modifications to the SWPPP must be made within seven

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 storm event is impracticable, they shall be implemented

as soon as practicable.

Once an inspection has been performed, a report containing the

following must be retained with the SWPPP for up to three years after

the site has been finally stabilized:

Components and scope of the inspection;

Names and qualifications of personnel conducting the

inspection;

Dates of the inspection;

Observations relating to the implementation of the SWPP;

Actions taken; and

Incidents of non-compliance.

If no incidents of non-compliance were found, the report shall

contain a certification that the facility is in compliance with the

SWPPP and this permit. Finally, the report must be signed in accordance

with the signatory requirements in Part VI. Standard Permit Conditions

section of the CGP.

Diligent inspections are vital for ensuring effective

implementation of sediment and erosion controls, particularly in the

later stages of construction when the volume of runoff is greatest and

storage capacity of sediment basins has been reduced.

i. Non-Storm Water Discharges. The SWPPP must identify and ensure

the implementation of appropriate pollution prevention measures for

each of the eligible non-storm water components of the discharge

covered by this permit. The eligible non-storm water discharges

[[Page 7871]]

are discussed in section V. Part III. Special Conditions, Management

Practices, and Other Non-Numeric Limitations in the Fact Sheet.

j. Additional Requirements. Storm water from a permitted industrial

source other than construction activities is authorized for discharge

when commingled with construction storm water only under the following

conditions: (1) The other industrial source is located on the same site

as the construction activity; and (2) storm water discharges from the

permitted construction site are in compliance with the terms of this

permit.

k. Contractors and Subcontractors. The SWPPP must identify who will

be responsible for implementing each measure contained in the plan. It

is the permittee's responsibility to provide necessary information on

complying with their SWPPP and the permit to their contractors and

subcontractors.

Part V. Retention of Records

The permittee must retain all records and reports required by this

permit, including SWPPPs and information used to complete the NOI, for

at least three years from the date of final stabilization. This period

may be extended by request of the Director.

A copy of the SWPPP must be kept at the construction site from the

date of project initiation to the date of final stabilization.

Permittees with day-to-day operational control over the plan's

implementation must keep a copy of the plan readily available whenever

they are on site (a central location accessible by all on-site

operators is sufficient). If an on-site location is unavailable to

store the SWPPP when no personnel are present, notice of the plan's

location must be conspicuously posted at the construction site. A copy

of the SWPPP must be readily available to authorized inspectors during

normal business hours.

Part VI. Standard Permit Conditions

This section of the permit contains the standard permit conditions

required by 40 CFR 122.41. One condition is the procedure for continued

coverage under a general permit if it expires prior to a replacement

permit being issued. In short, the expired permit would remain in full

force and effect in accordance with the Administrative Procedures Act.

Any permittee granted coverage prior to the permit's expiration date

will automatically remain covered by the continued permit until the

earliest of:

The permit being reissued or replaced;

The permittee terminating coverage by submitting an NOT;

Issuance of an individual permit for the permittee's

discharges; or

A formal decision by the Director not to reissue the

general permit, at which time the permittee must seek coverage under an

alternative general permit or an individual permit.

(For more information, see section VIII. Summary of Responses to

Comments on the Proposed Permit.)

Part VII. Reopener Clause

The permit contains a reopener clause allowing the permit to be

reopened and modified for cause during the term of the permit.

Generally, this would be triggered by a water quality concern, a change

in NPDES statutes, or to incorporate procedures developed by the EPA

and the Advisory Council for Historic Preservation to provide for

additional consideration of effects to properties either listed or

eligible for listing in the National Register of Historic Places.

Part VIII. Notice of Termination Requirements

Permittees must submit a completed Notice of Termination (NOT) that

is signed according to Part VI.G of the permit when one or more of the

conditions contained in Part I.D.2 of the permit have been met. NOTs

must be submitted using the form provided by the Director (i.e., use

the existing NOI form found in Appendix D of the permit until the

revised version is published in its final form in the Federal

Register), or a photocopy thereof. NOTs provide EPA with a useful

mechanism to track the status of projects which are actively covered by

the permit.

Significant parts of the NOT are:

Permittee name and contact information, and site location

information;

The permit number which is being terminated;

Permittee certification that he understands that

submission of the NOT means he no longer will have authorization to

discharge storm water associated with construction activity;

Clarification that the authorization to discharge ends at

midnight of the day the NOT is postmarked; and

The conditions under which an NOT can be submitted.

Part IX. Definitions

The permit contains 21 definitions of statutory, regulatory and

other terms important for understanding the permit and its

requirements. See section VIII. Summary of Responses to Comments for

discussions on the critical definitions of ``operator'' and ``final

stabilization.''

Part X. Permit Conditions Applicable to Specific States, Indian Country

Lands or Territories

Permit conditions that only apply to construction projects located

in a specific State, Indian land or other area are in Part X of the

permit. These conditions are modifications or additions to analogous

conditions in Parts I through IX of the ``generic'' portion of the CGP,

and reflect additional requirements arising from the State section 401

(Clean Water Act) or Coastal Zone Management Act (CZMA) certification

processes or as otherwise established by the permitting authority. EPA

must include any more stringent permit conditions required by a State

or Tribe to get State/Tribal certifications of the permit under section

401 (See 40 CFR 122.44(d)(3)) or CZMA (See 40 CFR 122.49(d)).

Areas with special area-specific conditions are:

Region 1

Commonwealth of Massachusetts, except Indian Country

lands.

State of Maine, except Indian Country lands.

Region 8

Indian Country lands in the State of Montana.

Region 9

State of Arizona, except Indian Country lands.

Island of Guam.

Commonwealth of Northern Mariana Islands.

Region 10

State of Alaska, except Indian Country lands.

State of Idaho, except Indian Country lands.

Federal facilities in the State of Washington, except

those located on Indian Country lands.

Indian Country lands in the State of Washington.

VI. Endangered Species Protection

A. Background

The 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 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

[[Page 7872]]

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.

Formal consultation is a 135-day process that results in issuance

of a biological opinion by the Services in which they determine whether

the Federal action is likely to jeopardize the existence of a listed

species or result in adverse modification or destruction of critical

habitat. Formal consultation can also provide authorization for

anticipated incidental take of listed animal species, provided any such

take is consistent with an incidental take statement contained in the

biological opinion. While informal consultation is not a prerequisite

to formal consultation, most section 7 consultations are carried out as

informal consultations.

Federal permit applicants frequently play a key role in both formal

and informal consultation. The ESA regulations provide for permit

applicants, where designated, to carry out informal consultations as a

NFR, which enables them to work directly with the Services (See 50 CFR

402.08). EPA has designated applicants for this storm water

construction general permit as non-Federal representatives. The

regulations also provide for the participation of permit applicants in

formal consultation (See 50 CFR 402.14 and 51 FR 19939 [June 3, 1986]).

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 run off 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 section

7 or section 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 section 7 or section 10 of the ESA which accounted for

storm water discharges and BMPs to control storm water runoff; or

4. Consultation under section 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 run off''

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

[[Page 7873]]

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).

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.

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 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.

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 a list of listed and proposed species

organized by State and county to assist applicants in determining if

further inquiry necessary as to whether listed species are present in

the project area. This list is current as of September 1, 1997, and

will be updated periodically and made available on the Office of

Wastewater Management's website at ``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 2 applicants \5\

can also contact the EPA Region 6 and Region 2 Storm Water Hotline (1-

800-245-6510) for updated species information. Applicants from other

EPA Regions can contact the appropriate EPA Regional storm water office

for updated species information.

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\5\ Region 2 permit areas include Indian Country lands in the

State of New York and the Commonwealth of Puerto Rico.

---------------------------------------------------------------------------

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 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

[[Page 7874]]

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 raise 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.

VII. 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 (also known as

``Federal undertakings'' in the NHPA regulations) on historic

properties that are listed or eligible for listing on the National

Register of Historic Places and to seek comments from an independent

reviewing agency, 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 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. The permit does

not currently 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.

VIII. Summary of Responses to Comments on the Proposed Permit

The following is a summary of EPA's response to comments received

on the proposed CGP which was published in the Federal Register on June

2, 1997 (62 FR 29786). Due to the large number of comments received,

comments and responses have been categorized and placed into 10 major

categories such as ``Coverage of General Permits'' and ``Protection of

Endangered Species.''

Coverage of General Permits

Common Plan of Development or Sale

Many comments were received regarding permitting requirements for

projects that are less than five acres but are part of a ``larger

common plan of development or sale (``Larger Common Plan'') disturbing

at least 5 acres.'' The volume and nature of the comments showed that

the regulated community and the public needed additional guidance on

this issue.

Under Phase I of the storm water program, an NPDES permit to

discharge storm water associated with construction activity is only

needed when a ``common plan of development or sale'' will disturb five

or more acres. The simple case is when the ``common plan'' is to

construct a single building, etc., for a single owner. The more

complicated case needing clarification is when the common plan consists

of several smaller construction projects that cumulatively will disturb

five or more acres, but may or may not be under construction at the

same time. Residential development with houses being built by several

homebuilders in a master planned subdivision is an excellent example of

this second case.

For illustration purposes, many examples in the explanation below

assume a more complex residential development of single family homes

with a developer putting in the infrastructure and common areas (e.g.,

roads, sewers, parks, etc) and selling groups of lots to homebuilders

and single lots to individuals. The same rationale used for these

residential construction examples would apply to any project with

multiple parts. For example, when building a new runway, the associated

taxiways, and additional hangers, terminals, parking lots, etc., at an

airport would be a common plan of development.

For sites disturbing less than five acres, the first steps in

deciding if a permit is needed for storm water discharges associated

with construction activity are determining:

1. Is there a ``common plan of development or sale'' tying

individual sites together? (e.g., Are the lots part of a subdivision

plat filed with the local land use planning authority?) and

2. Will the total area disturbed by all of the individual sites add

up to five or more acres? (e.g., If you added up all of the acreage

that will need to be disturbed to completely build out the subdivision

as planned, would there be five or more acres disturbed?)

If the answer to both questions is no, a storm water discharge

permit is not needed unless EPA determines that discharges contribute

to a violation of water quality standards or are a significant

contributor of pollutants to waters of the United States and

specifically requests a permit application. This permit provides for

coverage of such dischargers once designated.

Note: The disturbed acreage threshold may be less than five

acres for Phase II of the storm water program. Proposed regulations

for Phase II are expected December 1997 with final regulations due

in March 1999.

The Larger Common Plan concept does have to be applied with some

common sense and should not be taken to extremes. For example, every

construction project within a city would not be considered part of a

common plan of development just because the

[[Page 7875]]

city has a land use master plan or zoning map. EPA interprets the term

more narrowly. Building a house on a vacant lot in a residential

subdivision plat filed by a developer would be part of that

subdivision's larger common plan of development or sale. Any earth

disturbing activity necessary to complete the planned project (e.g.,

grading lots, installation of utilities, building roads, preparing

storm water control structures), plus various support activities such

as exposed materials storage and equipment staging areas, are

considered to be part of the construction activity that could result in

a regulated discharge of storm water.

Once a residence has been completed and occupied by the homeowner

(or tenant), future activities by the homeowner on their individual lot

are not considered part of the original common plan of development

(which was the industrial activity of building houses on each

subdivided lot). After a home is occupied by the homeowner or a tenant,

future construction activity on that particular lot is considered a new

and distinct project and is compared to applicable disturbed acreage

limits for permit applicability. For example, if homeowner decides to

install a swimming pool after occupying the house, only the disturbed

area on their lot--not the total acreage of the subdevelopment--is

considered for determining whether a permit is needed. Likewise,

demolition and reconstruction of individual houses originally built as

part of a common plan of development, including those destroyed or

damaged by fire or natural disasters, are also considered to be ``new''

plans of development/redevelopment, and not part of Larger Common Plan.

Once the extent of the Larger Common Plan has been determined, the

total acreage to be disturbed must be calculated. A single \1/4\ acre

lot is not large enough by itself to require a permit, but since 100

such lots in a subdivision would disturb 25 acres (if the entire area

of each lot was disturbed), permit coverage is needed. Please note,

permit coverage under the general permit is for all of the permittee's

activities on the Larger Common Plan. Site-by-site permitting (i.e.,

submitting a separate NOI and preparing a separate storm water

pollution prevention plan for each individual lot) would negate one of

the principle advantages of the general permit and is not required by

EPA.

Of particular concern to many homebuilders is the issue of lots

left over when the original development is substantially complete. It

is EPA's position that the unbuilt lots remain part of the Larger

Common Plan, but total disturbed acreage can be recalculated if: (1)

All areas of the site achieve final stabilization or are turned over to

a homeowner, and permit coverage is or could be terminated; and (2) the

total remaining area of the Larger Common Plan is less than five acres.

A permit is not necessary if the total acreage remaining to be built

upon out of the Large Common Plan is less than five acres. On the other

hand, if there were 22\1/4\-acre lots left unbuilt (total 5\1/2\

acres), permit coverage would have to be obtained to build on even one

of the remaining lots since the ``common plan'' would still be capable

of disturbing more than five acres. Once three of these last \1/4\-acre

lots were completed and stabilized, the total area remaining out of the

original common plan with the potential to be disturbed would be only

4\3/4\ acres.

EPA believes this approach maintains the intent of regulating

projects that disturb five or more acres while applying common sense in

interpreting the regulation. A common plan of development must at least

be theoretically capable of having five or more acres of land disturbed

at one time in order to trigger the need for a permit. Requiring that

all parts of the project, including unbuilt portions of the Larger

Common Plan of development, have achieved final stabilization before

total disturbed acreage can be ``recalculated'' insures that there is a

period of time during which all discharges of storm water associated

with construction activity from the common plan of development or sale

have ceased. The requirement to compare disturbed acreage to the total

remaining unbuilt acreage of the Larger Common Plan protects against

attempts to artifically divide a project in such a way as to avoid

providing environmental controls for construction activities.

Support Activities

EPA received several comments requesting clarification on support

activities eligible for, or required to obtain, permit coverage. As

noted by many of these commenters, off-site areas are commonly used for

storage of fill material or soil excavated from the construction site,

borrow areas to obtain fill material, storage of building materials,

concrete batch plants, or storage of construction equipment. Several

citizens expressed concern that erosion and sediment from off-site

areas used for storage or disposal of fill material were not being

adequately controlled. A State highway department questioned whether a

support base used for several nearby roadway projects would be eligible

for coverage.

EPA agrees that where activities at off-site locations would not

exist without the construction project, discharges of pollutants in

storm water from these areas must be controlled. Changes have been made

to part I.B. of the permit to clarify the permit and allow coverage for

sites used by an operator to support several nearby projects. It

remains the responsibility of the operator of the support area to

assure permit coverage is obtained.

Off-site storage areas, support bases, disposal areas and borrow

areas used for a construction project are considered to be part of the

Larger Common Plan and must be addressed by the pollution prevention

plan in certain instances. The pollution prevention plan for the

construction project must include controls for all off-site areas

directly supporting the construction project, unless the offsite

location is a fixed base of operations (e.g. construction company's

home office, warehouse, commerical warehouse, landfill, equipment yard,

etc. used for all construction projects) or can be considered a stand-

alone industrial or commercial activity serving multiple customers.

Allowing such off-site locations to be permitted under the construction

permit for the construction site avoids the need for a separate permit

for the remote location.

Where the same operator uses a temporary off-site location to

support construction activities at several nearby locations, permit

coverage may be obtained by identifying the site and including controls

for this common site in at least one of the pollution prevention plans

for the individual construction projects. For example, a common support

area for three highway projects could be permitted by identifying the

site, including appropriate controls in at least one of the three

pollution prevention plans for the separate projects, and insuring that

an NOT is not submitted until the support area is finally stabilized.

Non-Storm Water

Several comments were received about the permit's authorization of

non-storm water discharges. In response, this permit only authorizes

the discharge of non-storm waters listed in Part III.A.3, and only when

such discharges are identified in the storm water pollution prevention

plan and appropriate controls are included. During the construction

process, non-storm waters listed in Part III.A.3 are authorized for

discharge either alone or when commingled with storm water. The

[[Page 7876]]

Agency also notes that EPA can request individual permit applications

for such discharges where appropriate. The Agency is not requiring that

flows from fire-fighting activities be identified in plans because of

the emergency nature of such discharges and because of the

unpredictability of their occurrence.

EPA would also like to clarify certain questions which were raised

regarding the list of non-storm water discharges that are authorized.

For example, operators were unclear whether dewatering of trenches is

authorized under the permit. In response, EPA believes that discharges

associated with the dewatering of trenches is the same type of water

contemplated by the term ``ground water dewatering.'' As such, EPA

believes that this discharge would be authorized by the permit.

Operators also asked whether discharges associated with dust control

are authorized. In response, EPA would note that this discharge is

specifically authorized by the permit.

Several commenters asked whether detergents would be allowed in

discharges resulting from washing vehicles. In response to this issue,

EPA believes that detergents should not be necessary to remove sediment

from trucks which would be the primary purpose for washing vehicles at

the construction site. The final permit was clarified to specify that

truck wash water would only be allowed if detergents were not included

in the discharge.

Wetlands

One commenter requested clarification between the section 402 NPDES

and section 404 Dredge and Fill permitting programs. The NPDES and

section 404 programs are implemented by EPA and the Department of the

Army, respectively. Activities which involve the discharge of dredged

or fill material into wetlands are regulated under section 404 of the

CWA, which requires a permit from the Corps. However, construction

activities (i.e., clearing grading, and excavation) that result in

storm water discharge into wetlands are regulated under the NPDES

program and require a permit from EPA.

Several commenters expressed concern over the loss or degradation

of wetlands and how their protection could be addressed in the

construction general permit. Another commenter raised concern regarding

the draining of wetlands and its adverse effect on fisheries under

statistically expected drought conditions. EPA recognizes the

commenters' concerns about construction activity impacts to wetlands.

Because impacts to wetlands from dredged and fill material are already

established and enforced under section 404 of the CWA, EPA is not

incorporating any further language in today's permit regarding such

requirements.

One commenter raised concerns about wetlands in proximity to the

construction activity, which may receive drainage from the site. The

commenter was concerned that such areas be considered under the general

permit requirements. In response, EPA agrees to change the wording in

Part IV.D.1.g. of the permit language from ``areal extent of wetlands

acreage at the site'' to ``an areal extent and description of acreage

of wetland or other special aquatic sites (i.e., 40 CFR 230.3(q-1)) at

or near the site which will be disturbed, or receive water discharged

from the disturbed areas of the site.'' EPA believes this language will

help clarify this requirement in the site description of the storm

water pollution prevention plan.

One commenter noted that a certain amount of sediment may be

necessary to maintain the natural functioning of a wetland. The

commenter expressed concern that under some circumstances, a

construction project may result in decreases in the sediment load to a

wetland. In response, EPA would note that the NPDES program requires

permits for the discharge of pollutants from any point source into

waters of the United States. By definition, wetlands are waters of the

United States. As such, EPA must ensure that the discharges authorized

by this permit comply with applicable water quality standards for the

wetland, including requirements for sediment.

One commenter requested clarification on jurisdictional wetland

areas coverage under today's permits. For the purposes of the CWA,

wetlands are defined as areas that are inundated or saturated by

surface water or groundwater at a frequency and duration sufficient to

support, and that under normal circumstances do support, a prevalence

of vegetation typically adapted for life in saturated soil conditions

(33 CFR 328.3(b)). EPA uses the 1987 Corps of Engineers Wetlands

Delineation Manual to identify and delineate wetlands. This document

establishes the specific technical criteria that must be satisfied for

an area to be considered a jurisdictional wetland. Therefore, storm

water discharges from a construction activity to jurisdictional

wetlands (i.e., waters of the U.S.) need permit authorization and may

be covered under today's permit.

Other commenters expressed concern regarding the effects on

wetlands of the development of land for agricultural purposes. EPA

would first point out that agricultural runoff is exempt from the NPDES

permit program (See 40 CFR 122.3, CWA section 502 (14)). In addition,

the development of land for agriculture is not considered a

construction project regulated by the NPDES permit program.

Residential Construction

Many contractors and developers involved in residential development

felt that the permit was geared towards large industrial facilities,

and therefore not well suited to address small residential

construction. These commenters generally either requested that

residential construction be exempt from permitting, or that special

consideration of the nature of residential construction be given in the

permit.

There is no regulatory provision to exempt any construction

activities based solely on the nature of what is being built. The

disturbance of five or more acres in a Larger Common Plan defines

industrial activity that requires a storm water discharge permit. The

impact on water quality is not necessarily reduced because the

construction project is residential and may, in some instances, proceed

in a more piecemeal fashion. However, the Agency recognizes that there

are certain differences in how residential development occurs,

particularly with regard to completion of individual homes and

occupation by either a homeowner or tenant. EPA has made several

changes and clarifications of permit requirements to address the

concerns of the residential development industry.

The definition of final stabilization has been changed. ``Final

Stabilization'' in the final permit means either: (1) All soil

disturbing activities at the site have been completed, and that a

uniform (e.g., evenly distributed, without large bare areas) perennial

vegetative cover with a density of 70% of the native background

vegetative cover for the area has been established on all unpaved areas

and areas not covered by permanent structures, or equivalent permanent

stabilization measures (such as the use of riprap, gabions, or

geotextiles) have been employed. In some parts of the country,

background native vegetation will cover less than 100% of the ground

(e.g. arid areas). Establishing at least 70% of the natural cover of

native vegetation meets the vegetative cover criteria for final

stabilization. For example, if the native vegetation covers 50% of the

ground,

[[Page 7877]]

70% of 50% would require 35% total cover for final stabilization; or

(2) for individual lots in residential construction by either: (a) the

homebuilder completing final stabilization as specified above, or (b)

the homebuilder establishing temporary stabilization (including

perimeter controls) for an individual lot prior to occupation of the

home by the homeowner and informing the homeowner of the need for and

benefits of final stabilization. EPA strongly recommends that

homeowners stabilize as soon as practicable. (Homeowners have a

personal incentive to put in landscaping functionally equivalent to

final stabilization as quick as possible to keep mud out of their house

and off their sidewalks and driveway.)

Installation of Utility Service Lines

The proposed permit attempted to more clearly define the role of

utility companies whose sole involvement in a construction project was

installation of utility service lines. Many utility companies

challenged EPA's assertion that they represented a special class of

operator at construction sites and pointed out potential financial and

project delay impacts of requiring utility companies to obtain permit

coverage before installing utility service lines at a project. Other

commenters felt that utility companies should be held accountable for

their actions on-site and for disturbing any storm water control

measures installed by other site operators. In general, utility

companies agreed that they are responsible for their actions on-site,

but did not believe they should be considered ``operators'' and

required to obtain permit coverage. Several commenters felt utility

companies should be treated as subcontractors and the party requesting

utility service should be the permittee.

In response, EPA agrees that in many areas utility companies will

not meet the definition of operator while installing utility service

lines (the draft permit implied that a utility company would always be

an operator when installing utility service lines). As with any other

party involved in a construction project, permit coverage will only be

required for utility companies when they met the definition of

``operator.'' The definition of operator in the final permit, though

changed slightly from the proposed permit for better clarity, applies

to parties at a construction project which meet either of the following

two criteria: (1) A party with operational control over construction

plans and specifications, including the ability to make modifications

to those plans and specifications; or (2) a party with 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., they are

authorized to direct workers at the site to carry out activities

required by the storm water pollution prevention plan or comply with

other permit conditions). To determine if a utility company meets

either criterion, a review of the word ``control'' with regard to

construction plans and specifications and day-to-day operations is

needed.

In the definition of ``operator,'' it is not EPA's intention to

include those parties whose function is to assure that a project

complies with previously established standards (e.g., national, state

or municipal). For example, design or installation standards set by

municipalities or utilities which are based on national standards such

as the National Electric Code does not give the municipality or utility

``control'' over a construction project's plans and specifications, but

instead directs or limits a project operator's latitude when drafting

or modifying a particular aspect of the project's plans and

specifications. Furthermore, reviewing or applying such standards

(e.g., residential electric lines must be capable of carrying a

specific voltage, made of certain materials, buried a certain depth)

does not make a utility or municipality meet the first criterion of the

definition of ``operator.'' Also, utility companies will often not meet

the second criterion of the definition because they are not responsible

for overall SWPPP compliance at a project. Typically, a project's

general contractor has overall responsibility for SWPPP implementation

and compliance.

To the extent that a utility company needs to develop its own site-

specific plans and specifications for a service installation at a

project requiring storm water permit coverage, the utility will be

considered to meet the definition of ``operator'' and must allow for

appropriate storm water control measures either by designing and

implementing controls themselves, or by assuring that another project

operator has designed and will implement storm water controls for the

area disturbed by the utility service installation. In all cases, to

ensure effective implementation of storm water pollution control

measures, EPA stresses the importance of cooperative efforts by all

parties involved at a construction site, including those not meeting

the definition of ``operator,'' to understand and abide by SWPPP

provisions which their activities will impact.

Other examples of where a service line installation would require

construction storm water permit coverage would be if the activity

disturbed five or more acres (40 CFR 122.26(b)(14)(x)), or was

designated by the Director to obtain coverage for another reason (40

CFR 122.26(a)(1)(v), 122.26(a)(9) or 122.26(g)(1)(i)). See Part I.B.1.

of the permit for further details on eligibility. Other utility company

activities, such as the installation of main transmission lines, should

likewise be reviewed to see if permit coverage is required.

After considering the comments from the utility companies, the

proposed area-wide NOI option and SWPPP certification statement for

utility companies in the proposed permit were deleted in the final

permit. Utility companies were generally uncomfortable with even the

limited requirements of the area-wide NOI since the actual construction

projects where they would be working would not be known at the time of

the NOI submittal. The certification statement is no longer necessary

since measures to address utility service line installations no longer

require the statement to assign responsibility from the utility company

to another project operator. In addition, based on the comments from

the utility companies, the frequency of the situations in which a

utility would be considered an operator may be significantly less than

EPA had thought. Hence, there may not be a pressing need for the

proposed streamlined permitting option.

Construction in Cold Climates

Several comments were received suggesting changes to the

construction general permit to accommodate cold weather oil and gas

issues or questioning the effectiveness and requirement for storm water

pollution prevention plans for North Slope oil and gas facilities in

Alaska. Specifically, commenters were questioning the need for, and

appropriateness of, the permit for gravel pad construction on the North

Slope during frozen conditions. It was stated that construction

activities only occur during the cold months because access is

facilitated by frozen permafrost conditions. When the North Slope is in

a thawing condition it is essentially a wetland, which makes overland

access activities difficult as well as very disruptive to the ecology.

Commenters expressed concern that gravel pads might be required to

establish 70% vegetative cover prior to submitting the NOT.

[[Page 7878]]

With regards to the need for a storm water discharge permit, EPA

points out that the definition of storm water at 40 CFR 122.26(b)(13)

includes snow melt runoff. As such, EPA believes that construction

which occurs during frozen conditions still needs a storm water permit

since the snow will eventually melt and be discharged.

Construction activity which involves depositing gravel fill

directly into wetlands is regulated under section 404 of the CWA which

is administered by the US Army Corps of Engineers (COE). COE section

404 permits all require CWA section 401 certification providing

assurance that if the construction activity is in compliance with the

COE 404 permit, there will be no water quality standard violations.

Once the gravel pads are constructed, it is reasonable to consider

them as permanent structures since their surface will be used to

conduct oil and gas activities. Therefore remediation of the pad itself

(70% restoration of vegetative cover) is not appropriate at the end of

the construction sequence. Storm water permitting may be required,

however, for the operational phase of the pad activities as well as

gravel extraction activities.

Other comments regarding cold weather issues in Alaska pertained to

the remoteness of sites that would need to be permitted and inspected.

Commenters were concerned that accessing such remote sites is not

easily accomplished, and overly burdensome. In response, EPA has

included a special provision in Part IV.D.4 of the final permit to

provide a waiver of the inspection requirements when the ground would

be expected to be frozen for an extended period of time. Inspections

would be required to begin one month prior to when thawing conditions

are expected to begin.

Compliance With Water Quality Standards

Several comments objected to the inclusion of permit eligibility

and discharge compliance requirements related to water quality

standards (WQS). EPA is obligated under CWA section 402(p)(3) to ensure

that all permits for discharges associated with industrial activity

(which includes storm water discharges from construction sites of five

acres or more) shall meet all applicable provisions of CWA section 301.

CWA section 301(a) states that discharges shall be unlawful unless

in compliance with sections 301, 302, 306, 307, 318, 402, and 404 of

the Act. Section 301 provides that discharge permits must include

effluent limitations necessary to assure that discharges comply with

State or Tribal WQS. Effluent limitations do not have to be numeric,

especially in cases where numeric limitations are currently infeasible.

In such cases, EPA may require the use of best mangement practices

(BMPs) including more sophisticated forms of treatment in permits to

satisfy the CWA's requirements for ``any more stringent limitations as

necessary to meet State WQS.'

If a discharge is found to be violating a water quality standard,

EPA can require that the discharge be covered by an individual permit,

which may include more stringent controls or numeric effluent

limitations developed to ensure compliance with WQS. The development of

the effluent limitations would be dependent upon adequate

characterization of the discharges and the individual permit could also

include monitoring requirements.

Some commenters were concerned that compliance with WQS is not

possible in some situations and therefore WQS compliance should be

waived. As stated above, compliance with water quality standards is a

requirement of the CWA as implemented through the NPDES permitting

program. EPA can not waive the requirements of the CWA. If the

permittee feels that the WQS to which they must comply are too

stringent or the cost of that compliance is too high, several avenues

of relief can be sought. The permittee may seek changes of WQS through

a use attainability analysis, the development of site specific

criteria, or short term WQS variances. All of these avenues must be

pursued through consultation with the applicable State or Tribal

environmental agency and are subject to EPA review.

If the permittee is not able to comply with WQS as a result of the

implementation of a certain set of BMPs, EPA recommends installing more

effective BMPs or additional BMPs to assure compliance with WQS. If

this effort results in discharges which continue to violate WQS, EPA

recommends that the facility cease discharging, apply for an individual

permit, or pursue one of the options listed above to change the WQS.

(See also EPA's memorandum of August 1, 1996, entitled ``Interim

Permitting Approach for Water Quality-Based Effluent Limitations for

Storm Water Discharges.'')

EPA received several comments regarding salt intrusion to

groundwater discharges that might exceed standards established by the

State. One commenter suggested that the final permit include an

affirmative statement to specify that, in developing and implementing

storm water pollution prevention plans, permittees are not required to

remove remove constituents that are not added by the construction

project or related activities. In response, EPA notes that Clean Water

Act section 301(b)(1)(C) requires that NPDES permits include any more

stringent limitation including those necessary to meet water quality

standards. The CWA does not, however, regulate releases of polluants to

groundwater unless there is a direct hydrological connection between a

point source and surface waters of the United States through such

groundwater. Therefore, the commenter's recommendations were not

included in the final permit.

The California Department of Transportation recommended that the

general permit incorporate language similar to that developed by the

State by California for its general industrial storm water permit.

However, EPA has recently expressed concerns to the State regarding the

language in question and is currently working with all stakeholders in

California on alternative language. Since EPA believes that the

language as written is not appropriate it was not incorporated into the

final permit.

Another commenter contended that Part III.D of the draft permit

(compliance with water quality standards) was too weak. The commenter

recommended that the permit also require remedial actions by permittees

to correct any damage that may result from the discharges not in

compliance with the permit.

EPA disagrees with the commenter that the language addressing water

quality standards compliance needs to be strengthened. A wide variety

of enforcement responses are available to the Agency for discharges

which violate the terms of the permit, including requirements for

remediation of environmental damage caused by the discharges. As such,

the requested modifications were not incorporated into the final

permit.

Protection of Endangered Species

A large number of comments were received regarding provisions in

the permit to protect listed species and critical habitats. For reading

convenience, similar comments have been grouped together for response

and are listed below in items A through V.

(A) A number of commenters have expressed the belief that the Clean

Water Act (CWA) does not allow EPA to place conditions in National

Pollutant Discharge Elimination System (NPDES)

[[Page 7879]]

permits to protect listed species and critical habitat. They believe

that requirements to protect listed species have no relation to the

CWA's goal of protecting water quality. These commenters have requested

that EPA remove those permit conditions or provide a legal

justification as to why they should be included.

EPA declines to remove these provisions because the Agency believes

that conditions to protect listed species and critical habitat are

appropriate for Federally-issued NPDES permits such as the CGP given

the requirements placed on them by sections 7(a)(1), 7(a)(2), and 9 of

the ESA. By placing ESA requirements on Federal agencies and their

actions, Congress intended that Federal permits could contain

conditions to protect listed species and critical habitat. ESA

regulations at 50 CFR 402.02 define an ``action'' subject to section 7

to include ``permits,'' and EPA first recognized the applicability of

ESA section 7 to the Federal NPDES program in 1979, when it promulgated

regulations listing the ESA as a Federal law which may apply to EPA-

issued permits. See 44 CFR 32917 (June 7, 1979). EPA's current

regulations at 40 CFR 122.49(c) \6\ and 122.43(a) \7\ require that EPA

adopt or consider the adoption of permit conditions to comply with ESA

requirements.

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\6\ The pertinent portions of 40 CFR 122.49 read as follows:

Considerations under Federal law. The following is a list of Federal

laws that may apply to the issuance of permits under these rules.

When any of these laws is applicable, its procedures must be

followed. When the applicable law requires consideration or adoption

of particular permit conditions or requires the denial of a permit,

those requirements also must be followed. * * * (c) The Endangered

Species Act, 16 U.S.C. 1531 et seq. section 7 of the Act and

implementing regulations (50 CFR part 402) require the Regional

Administrator to ensure, in consultation with the Secretary of the

Interior or Commerce, that any action authorized by EPA is not

likely to jeopardize the continued existence of any endangered or

threatened species or adversely affect its critical habitat.

(Emphasis added).

\7\ 40 CFR 122.43(a) states: ``In addition to conditions

required in all permits (122.41 and 122.42), the Director shall

establish conditions, as required on a case-by-case basis, to

provide for and assure compliance with all applicable requirements

of CWA and regulations. These shall include conditions under 122.46

(duration of permits), 122.47(a) (schedules of compliance), 122.48

(monitoring), and for EPA permits only 122.47(b) (alternates

schedule of compliance) and 122.49 (considerations under Federal

law).'' (Emphasis added.)

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Finally, EPA notes that the primary goal of the CWA is the

restoration and maintenance of the chemical, physical, and biological

integrity of the Nation's waters. This includes the attainment of water

quality that provides for the protection and propagation of fish,

shellfish, wildlife. See 33 U.S.C. 1251. These goals include the

protection of listed and other at-risk species.

(B) Other commenters have characterized the ESA as a new

environmental law that permit applicants are being required to certify

under. EPA does not believe that the ESA is a new environmental law

because it has been listed in EPA's regulations since 1979 as a statute

which may apply to the issuance of NPDES permits by EPA.

(C) Some commenters have objected to measures to protect species

and critical habitat in the proposed permit as an impermissible

delegation of EPA's section 7 consultation responsibilities to the

permit applicant.

EPA recognizes that as the action Federal agency, it bears the

ultimate responsibility for compliance with section 7 of the ESA for

issuance of the CGP. It is not abrogating that responsibility. However,

given the CGP's potential coverage of over 13,000 construction

activities per year that are scattered across eight States and numerous

other Federal permitting jurisdictions, it is essential that permit

applicants and permittees consider the effects of their particular

actions on listed species and critical habitat, and to take measures to

protect those resources, if EPA is to ensure that issuance and

operation of the CGP is not likely to adversely affect listed species

and critical habitat.

As noted above, EPA believes that under the CWA and the ESA, it is

appropriate for NPDES permits to require that applicants and permittees

take measures to protect listed species. EPA also believes that such

conditions should require that applicants consider the potential and

actual effects of their actions on listed species and critical habitat.

Storm water general permits place substantial responsibilities on

permit applicants and permittees to ensure that their storm water

discharges are protective of the environment. This includes the

development of information (as part of the NOI and SWPPP development

process) to ensure compliance with permit requirements. The ESA

regulations clearly allow for permit applicants to develop and collect

information on the effects of their proposed actions on listed species

and critical habitat.\8\ Those regulations also provide that applicants

can conduct informal consultation as non-Federal Representatives

(NFRs). see 50 CFR 402.08.

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\8\ Applicants are listed throughout the ESA consultation

regulations and preambles as involved parties in the consultation

process.

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The conditions being established by EPA through ESA section 7

consultation to protect listed species and critical habitat are

designed to focus EPA, Fish

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