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

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## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** February 17, 1998
- **Citation:** 63 FR 7858

## Text

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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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 co

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-3600. Public record. Not legal advice.