Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1a
53
Clarifying
that
industrial
earth
disturbance
activities
(
e.
g.,
maintenance,
site
remediation,
demolition)
that
are
not
connected
with
the
construction
of
a
structure
do
not
need
a
CGP,
reduces
unintended
burden
to
projects
that
cause
minimal
erosion/
sediment
concern.
EPA
disagrees
with
the
commenters
assertion.
In
fact,
many
earth
disturbing
activities
that
disturb
more
than
1
acre
but
are
not
associated
with
construction
of
a
structure
are
in
fact,
required
to
obtain
coverage
under
an
NPDES
permit
(
e.
g.,
the
CGP).
1006
and
1002
1a
58
The
fact
sheet
is
confusing
and
unnecessarily
lengthy.

We
request
that
EPA
reduce
the
length
and
streamline
it
by
using
flowcharts,
bullets
and/
or
tables
to
clarify
the
requirements
and
make
it
user
friendly.
EPA
acknowledges
the
commenters
concerns.
EPA
has
attempted
to
make
complex
permitting
requirement
as
understandable
as
possible
and
has
documented
its
rationale
appropriately
in
the
fact
sheet.
1024
and
1028
1a
59
We
urge
EPA
to
make
revisions
to
the
draft
permit
so
that
the
construction
general
permit,
when
finalized,
is
easily
understood
by
the
public,
has
reasonable
eligibility
requirements,
and
recognizes
that
storm
water
dischargers
are
different
from
industrial
discharges
and
cannot
be
controlled
in
the
same
manner.
EPA
acknowledges
this
comment
and
believes
that
the
final
CGP
meets
the
recommendations
of
the
commenter.
1062
and
1063
1a
66
Will
the
restoration
of
wetlands
and
adjacent
upland
areas
require
a
NPDES
general
permit
for
storm
water
discharges?
EPA's
NPDES
permitting
program
for
storm
water
discharges
from
construction
activities
requires
permit
coverage
for
activities
that
disturb
equal
to
or
greater
than
1
acre
of
land.
CWA
404
regulates
construction
(
i.
e.,
dredge
and
fill)

activities
in
wetlands.
As
such,
construction
activities
associated
with
wetlands
is
subject
to
the
Corps
of
Engineers'
404
Permitting
Program
while
adjacent
upland
restoration
activities
are
subject
to
NPDES
permitting
requirements
if
equal
to
or
greater
than
one
acre
is
disturbed.
1059
1a
67
Will
maintenance
of
agricultural
maintenance
activities
like
(
grassed
waterways,
sediment
basins)
require
a
NPDES
permit?
If
grading,
clearing
or
excavation
activities
disturb
equal
to
or
greater
than
1
acre
of
land
either
for
an
individual
project
or
as
part
of
a
long­
term
maintenance
plan,
then
the
activity
is
subject
to
storm
water
permit
requirements.
If
the
area
disturbed
is
to
be
used
for
agricultural
purposes,
those
activities
do
not
require
coverage
under
an
NPDES
storm
water
permit.
1059
1a
68
Will
CAFO
projects
over
1
acre
and
less
than
5
acres
require
a
NPDES
permit
for
small
construction
activities?
CAFOs,
as
defined
in
the
NPDES
regulations,
are
considered
to
be
point
sources
subject
to
the
NPDES
permitting
requirements.
As
such,
CAFO
construction
activities
greater
than
1
acre
must
obtain
permit
coverage
for
storm
water
discharges.
1059
1a
69
What
documentation
would
you
expect
to
see
in
the
files
concerning
our
field
offices
decision
that
an
agricultural
activity
is
exempt
from
the
permit
process?
EPA
expects
decisions
to
be
based
on
applicable
sections
of
the
NPDES
regulations,
as
appropriate.
A
wide
variety
of
documentation
may
be
appropriate
depending
on
the
situation.
1059
1
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1a
70
If
a
landowner
is
breaking
out
land
(>
1
acre)
that
is
not
currently
in
agricultural
production
(
crop,
grazing)
and
plans
on
farming
the
land
is
a
NPDES
permit
needed?
Land
to
be
used
for
agricultural
purposes
is
not
eligible
for
coverage
under
the
CGP.
That
type
of
activity
is
generally
exempt
from
NPDES
storm
water
permitting.
1059
1a
71
If
a
landowner
has
received
a
NPDES
permit,
say
for
a
CAFO,
is
a
NPDES
Storm
Water
Program
Phase
II
permit
needed?
A
discharge
requires
permit
coverage,
be
it
an
individual
or
general
permit.
If
storm
water
discharges
are
regulated
in
an
existing
NPDES
permit,
a
second
permit
for
storm
water
is
unnecessary.
If
the
existing
NPDES
permit
does
not
address
stormwater,
then
a
permit
may
be
necessary.
1059
1a
110
The
proposed
permit
is
not
written
in
a
simple,
explicit
manner
that
makes
it
apparent
to
the
public
when
a
permit
is
required
and
how
to
comply.
Even
the
most
basic
question
of
when
a
permit
is
needed,
especially
for
builders
who
buy
lots
within
a
subdivision,
is
not
described
in
a
manner
that
is
easily
understandable.
EPA
acknowledges
the
commenters
concerns.
The
Agency
has
redefined
"
operator"
and
has
reorganized
this
permit
significantly
from
the
1998
CGP
in
an
attempt
to
make
the
permit
easier
to
understand.
1062,
1063,
2001,

and
1068
1a
118
The
Clean
Water
Act
governs
water
quality
not
discharges
of
water
per
se.
However,
the
Permit
seeks
to
regulate
hydrology
(
flow
velocity)
regardless
of
the
quality
of
water
being
discharged
(
permit
3.14(
G);
fact
sheet
3.14(
G))
.
The
Clean
Water
Act
requires
controls
on
the
discharge
of
pollutants
(
CWA
402(
p)(
3)(
B)(
iii)),
and
the
rate
of
water
flow
is
not
a
discharge
of
pollutants.
The
permit
does
not
require
any
specific
BMPs,
only
the
implementation
of
a
suite
of
BMPs
that
will
be
effective
at
preventing
the
discharge
of
sedimentladen
water.
The
permittee
is
free
to
design
a
combination
of
BMPs
that
suit
his
or
her
purposes.
EPA
is
not
regulating
hydrology.

Erosion
is
caused
by
water,
moving
at
erosive
velocities,
across
bare
soil.
It
is
much
more
effective
and
inexpensive,
to
prevent
erosion
by
minimizing
the
amount
of
water
and/
or
the
velocity
of
water
traversing
bare
soils.
Since
the
rate
of
water
directly
influences
the
pollutant
content
of
the
water,
most
erosion
control
specialists
recommend
the
implementation
of
flow
control
BMPs.
EPA
is,
however,
regulating
water
quality.
1033
2
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1a
122
In
the
Fact
Sheet,
Page
40
(
under
'
What
Types
of
Construction
Activities
May
Need
a
Storm
Water
Permit?'),
and
in
the
Proposed
Permit's
definition
of
'
Discharge
of
Storm
Water
Associated
with
Construction
Activity,'
 
By
including
non­
earth
disturbing
activities
in
this
definition,
EPA
has
gone
beyond
the
requirements
of
the
current
regulations.

Sempra
Energy
does
not
disagree
that,
where
appropriate,
BMPs
should
to
be
implemented
for
nonearth
disturbing
construction
activities,
but
does
not
believe
that
the
regulations
require
the
inclusion
of
nonsoil
disturbing
activities
in
the
calculation
of
the
area
of
soil
disturbance
for
the
purpose
of
determining
the
need
to
obtain
a
storm
water
permit.
This
expansion
in
scope
of
the
storm
water
permit
requirements
would
subject
numerous
construction
projects
that
were
not
contemplated
by
the
original
Phase
II
Rule
to
storm
water
permit
requirements.
Accordingly,
EPA
should
clarify
that
only
those
construction
activities
that
actually
disturb
the
soil
should
be
used
for
calculating
soil
disturbance
to
determine
the
need
for
a
permit.
EPA
agrees
with
the
commenters
statement
that
only
those
construction
activities
that
disturb
soil
should
be
used
for
calculating
soil
disturbance
to
determine
the
need
for
a
storm
water
permit.
As
defined,
disturbance
includes
clearing,
grading,
and
excavating.

EPA
disagrees,
however,
with
any
implication
that
the
Agency
has
exceeded
its
authority
in
considering
and
addressing
pollutant
discharges
other
than
those
directly
tied
to
soil­
disturbing
activities
in
this
permit.
1027
1a
143
Parts
2.2.
B.
2
&
2.2.
C.
2:
Geotechnical
borings
and/
or
archeological
investigations
may
be
performed
in
the
pre­
design
phase
of
a
project
to
determine
the
feasibility
of
a
site
for
a
construction
project.
Does
such
activity
constitute
the
commencement
of
the
construction
activities
for
which
preparation
of
a
Storm
Water
Pollution
Prevention
Plan
and
submission
of
a
NOI
would
be
required?
EPA
does
not
consider
geotechnical
borings
and/
or
archeological
investigations
performed
in
the
pre­
design
phase
of
a
project
to
determine
the
feasibility
of
a
site
for
a
construction
project
to
be
considered
commmencement
of
construction
activity,
unless
those
activities
themselves
will
disturb
more
than
one
acre.

1077
1a
149
It
is
strongly
recommended
that
SIC
codes
of
these
activities
 
'
agriculture
production
and
services'
 
be
clearly
stated
in
the
permit.
EPA
generally
agrees
with
the
commenter's
suggestion
and
has
modified
the
permit
area
eligibility
for
Oklahoma
to
include:
point
source
discharges
associated
with
agricultural
production,
services,
and
silviculture
under
SIC
Codes
01,
02,
07,
08,
and
09,
except
for
092
(
fish
hatcheries
and
preserves).

1025
1a
153
We
believe
that
small
construction
activities
conducted
within
the
State
of
Alaska
should
be
excluded
from
2003
CGP
requirements
until
questions
regarding
the
availability
of
small
construction
waivers
are
resolved.
At
present,
rainfall
erosivity
waivers
are
not
available
in
Alaska
as
data
on
erosivity
factors
are
not
readily
available.
Should
information
become
available
documenting
eligibility
of
rainfall
erosivity
waivers
in
Alaska,
construction
site
operators
may
use
that
information
in
submitting
a
waiver
certification
form.
1041
3
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1a
470.1
The
Clean
Water
Act
governs
water
quality
not
discharges
of
water
per
se.
However,
the
Permit
seeks
to
regulate
hydrology
regardless
of
the
quality
of
water
being
discharged.
To
this
end,
the
Permit
requires
implementation
of
velocity
dissipation
devices
to
'
provide
a
non­
erosive
flow
velocity'
so
that
'
no
significant
changes
in
the
hydrological
regime
of
the
receiving
water'
occur.
The
Fact
Sheet
echoes
and
expands
upon
these
requirements 
the
Clean
Water
Act
requires
'
controls
to
reduce
the
discharge
of
pollutants
.
.
.
and
such
other
provisions
.
.
.

appropriate
for
the
control
of
such
pollutants.'
The
rate
of
water
flow
is
not
a
'
discharge
of
pollutants,'
as
that
phrase
is
defined
in
the
Clean
Water
Act.
Additionally,

case
law
interpreting
the
Clean
Water
Act
uniformly
has
found
the
definition
of
'
pollutant'
does
not
include
downstream
erosion
(
See
e.
g.,
National
Wildlife
Fed'n
v.
Gorsuch,
693
F.
2d
156,
171­
72
(
D.
C.
Cir.
1982);

Missouri
ex
rel.
Ashcroft
v.
Department
of
the
Army,

672
F.
2d
1297,
1304
(
8th
Cir.
1982).)
The
permit
does
not
require
any
specific
BMPs,
only
the
implementation
of
a
suite
of
BMPs
that
will
be
effective
at
preventing
the
discharge
of
sedimentladen
water.
The
permittee
is
free
to
design
a
combination
of
BMPs
that
suit
his
or
her
purposes.
EPA
is
not
regulating
hydrology.

Erosion
is
caused
by
water,
moving
at
erosive
velocities,
ac118ross
bare
soil.
It
is
much
more
effective
and
inexpensive,
to
prevent
erosion
by
minimizing
the
amount
of
water
and/
or
the
velocity
of
water
traversing
bare
soils.
Since
the
rate
of
water
directly
influences
the
pollutant
content
of
the
water,
most
erosion
control
specialists
recommend
the
implementation
of
flow
control
BMPs.
EPA
is,
however,
regulating
water
quality.
1039
1a
470.2
The
Permit
provisions
seeking
to
regulate
hydrology,

are
therefore,
invalid
and
should
be
removed.
1039
1b
34.1
With
the
advent
of
the
lowered
permitting
threshold
(
i.
e.,
from
5­
acres
to
1­
acre
of
soil
disturbance),
a
significant
increase
in
permitting
will
be
required
by
utilities
that
conduct
relatively
small
(
i.
e.,
<
1
acre)

construction
activities
necessary
to
install
'
bring­
up'

facilities
to
serve
land
developments.
This
increase
in
permitting
will
be
compounded
in
situations
where
the
land
developer
does
not
cover
these
construction
activities
in
his
project's
storm
water
permit
and
SWPPP.
EPA
encourages
a
comprehensive
SWPPP
be
developed
for
an
entire
site
with
areas
of
responsibility
identified
for
each
operator.
This
prevents
duplication
of
effort
and
allows
operators
to
be
aware
of
the
others'
activities
and
storm
water
controls
so
as
not
to
impact
them.
If
operators
cannot
work
collaboratively
in
this
vein
then
they
must
be
separate
permittees
with
separate
SWPPPs.
This
applies
even
to
sub
1­
acre
parts
of
a
project
when
the
common
plan
of
development
or
sale
acreage
totals
at
least
an
acre.

The
issue
is,
then,
are
utilities
disturbing
less
than
an
acre
necessarily
"
operators"
on
a
larger
development
site?
EPA
believes
that
in
many
areas
utility
companies
will
not
meet
the
definition
of
operator
while
installing
utility
service
lines.
The
definition
of
operator
depends
on
meeting
either
of
the
following
two
criteria:
1)
a
party
with
operational
control
over
construction
plans
and
specifications,
including
the
ability
to
make
modifications
to
those
plans
and
specifications;
or
2)
a
party
with
day­
to­
day
operational
control
of
those
activities
at
a
project
which
are
necessary
to
ensure
compliance
with
a
storm
water
pollutio
1027
4
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
34.2
The
issue
is,
then,
are
utilities
disturbing
less
than
an
acre
necessarily
"
operators"
on
a
larger
development
site?
EPA
believes
that
in
many
areas
utility
companies
will
not
meet
the
definition
of
operator
while
installing
utility
service
lines.
The
definition
of
operator
depends
on
meeting
either
of
the
following
two
criteria:
1)
a
party
with
operational
control
over
construction
plans
and
specifications,
including
the
ability
to
make
modifications
to
those
plans
and
specifications;
or
2)
a
party
with
day­
to­
day
operational
control
of
those
activities
at
a
project
which
are
necessary
to
ensure
compliance
with
a
storm
water
pollution
prevention
plan
(
SWPPP)
for
the
site
or
other
permit
conditions
(
e.
g.,

they
are
authorized
to
direct
workers
at
the
site
to
carry
out
activities
required
by
the
storm
water
pollution
prevention
plan
or
comply
with
other
permit
conditions).

To
determine
if
a
utility
company
meets
either
criterion,
a
review
of
the
word
"
control"
with
regard
to
construction
plans
and
specifications
and
day­
to­
day
operations
is
needed.
1027
1b
34.3
In
the
definition
of
"
operator,"
it
is
not
EPA's
intention
to
include
those
parties
whose
function
is
to
assure
that
a
project
complies
with
previously
established
standards.
For
example,
design
or
installation
standards
set
by
municipalities
or
utilities
which
are
based
on
national
standards
does
not
give
the
municipality
or
utility
"
control"
over
a
construction
project's
plans
and
specifications,
but
instead
directs
or
limits
a
project
operator's
latitude
when
drafting
or
modifying
a
particular
aspect
of
the
project's
plans
and
specifications.
Furthermore,

reviewing
or
applying
such
standards
(
e.
g.,
residential
electric
lines
must
be
capable
of
carrying
a
specific
voltage,
made
of
certain
materials,
buried
a
certain
depth)
does
not
make
a
utility
or
municipality
meet
the
first
criterion
of
the
definition
of
"
operator."
Also,
utility
companies
will
often
not
meet
the
second
criterion
of
the
definition
because
they
are
not
responsible
for
overall
SWPPP
compliance
at
a
project.
Typically,
a
project's
general
contractor
has
overall
responsibility
for
SWPPP
implementation
and
compliance.
1027
1b
34.4
To
the
extent
that
a
utility
company
needs
to
develop
its
own
site­
specific
plans
and
specifications
for
a
service
installation
at
a
project
requiring
storm
water
permit
coverage,
the
utility
will
be
considered
to
meet
the
definition
of
"
operator"

and
must
allow
for
appropriate
storm
water
control
measures
either
by
designing
and
implementing
controls
themselves,
or
by
assuring
that
another
project
operator
has
designed
and
will
implement
storm
water
controls
for
the
area
disturbed
by
the
utility
service
installation.
In
all
cases,
to
ensure
effective
implementation
of
storm
water
pollution
control
measures,
EPA
stresses
the
importance
of
cooperative
efforts
by
all
parties
involved
at
a
construction
site,

including
those
not
meeting
the
definition
of
"
operator,"
to
understand
and
abide
by
SWPPP
provisions
which
their
activities
will
impact.
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34.5
Other
examples
of
where
a
service
line
installation
would
require
construction
storm
water
permit
coverage
would
be
if
the
activity
disturbed
five
or
more
acres
(
40
CFR
122.26(
b)(
14)(
x)),
or
was
designated
by
the
Director
to
obtain
coverage
for
another
reason
(
40
CFR
122.26(
a)(
1)(
v),
122.26(
a)(
9)
or
122.26(
g)(
1)(
i)).
See
Part
I.
B.
1.
of
the
permit
for
further
details
on
eligibility.

Other
utility
company
activities,
such
as
the
installation
of
main
transmission
lines,
should
likewise
be
reviewed
to
see
if
permit
coverage
is
required.
1027
1b
42
 
a
recurring
issue
that
has
arisen
in
the
context
of
E&
P
facilities
relates
to
the
construction
of
pipelines
associated
with
the
operating
facilities.
In
many
cases
these
pipelines
are
constructed,
owned
and
operated
by
separate
companies
from
the
E&
P
facility.
Yet,
in
discussions
with
EPA
staff
over
the
past
several
years,
EPA's
position
on
how
it
would
treat
these
pipeline
operations
in
the
context
of
a
common
plan
of
development
is
unclear.
For
a
producer,
however,

knowing
that
answer
is
critical
because
it
could
determine
whether
a
permit
was
necessary.
Pipelines
are
potential
contributors
to
sediment
runoff.
If
their
construction
is
occurring
at
the
same
time
as
the
well
pad
construction,
and
five
acres
is
disturbed,
this
would
generally
be
considered
as
a
common
plan.
If
there
is
a
time
lag
sufficient
for
stabilization
to
occur
between
construction
of
the
different
activities,
they
could
be
treated
as
separate
projects.
1005
1b
43
EPA's
guidance
on
"
contingent
future
activities"

therefore
raises
the
following
questions:
 
How
does
EPA
intend
the
"
contingent
future
activities"
concept
to
apply
to
development
drilling,
in­
fill
drilling,
and
other
projects
(
e.
g.,
pipelines,
production,
and
transmission
facilities)
ordinarily
associated
with
oil
and
gas
fields
after
the
exploratory
phase?
These
activities
are
entitled
to
coverage
under
the
oil
and
gas
exemption,

but
are
"
funded"
in
larger
increments
than
exploratory
drilling
and
under
a
"
funding"
test
are
likely
to
exceed
the
five­
acre
"
common
plan"
threshold.
EPA
does
not
intend
that
funding
be
used
as
the
only
way
to
define
what
activities
are
part
of
a
common
plan.
Distance
and
time
should
be
considered
when
making
this
determination.
1061
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44
 
Guidance
given
in
the
Fact
Sheet
about
common
plan
of
development 
discusses
projects
that
are
contiguous,
but
developed
at
different
times 
that
can
be
considered
as
separate
"
common
plans"
assuming
they
are
in
the
"
conceptual
phase"
and
have
not
been
funded.
This
could
be
construed
to
mean
that
well
pads
built
adjacent
to
an
existing
pad
are
part
of
a
common
plan
of
development,
because
"
conceptual
phase"
and
"
have
been
funded"
have
no
single
and
clear
meaning
in
the
oil
&
gas
industry.
We
encourage
EPA
to
reevaluate
this
guidance
and
allow
industrial
activities
to
consider
contiguous
projects
as
part
of
"
common
plans"
only
when
they
occur
simultaneously.
EPA
does
not
believe
it
is
necessary
to
define
"
conceptual
Phase"
and
"
have
been
funded"
in
order
to
clarify
when
oil
and
gas
construction
activities
should
be
considered
as
part
of
a
common
plan.
As
long
as
the
existing
well
pad
is
"
stabilized",
a
new
well
pad
could
be
built
adjacent
to
the
old
pad
and
not
considered
to
be
part
of
a
common
plan.
EPA
does
not
consider
common
plans
to
be
limited
to
contiguous
activities.
As
has
been
noted
in
the
past,
one
common
plan
may
take
years
to
complete;
however,
permit
coverage
is
required
for
the
entirety
of
the
project.
An
operator
may
file
an
NOT
if
a
project
ceases
and
final
stabilization
is
achieved
on
any
disturbed
areas,
but
the
operator
is
required
to
then
submit
a
new
NOI
once
construction
activity
recommences.
1002
1b
45
The
final
CGP
must
make
clear
that
its
common
plan
of
development
requirements
do
not
apply
to
oil
and
gas
E&
P
facility
construction
during
the
postponement
period.
EPA
disagrees.
While
many
small
oil
and
gas
construction
sites
can
be
treated
as
discrete
projects,
there
may
be
some
projects
that
are
truly
part
of
a
common
plan.
1005
1b
46
The
proposed
CGP
in
conjunction
with
page
45
of
the
EPA's
Permit
Fact
Sheet
 
states
that
one
NOI
is
sufficient
to
cover
all
activities
on
any
"
one
common
plan
of
development
or
sale."
However,
"
Common
plan
of
development
or
sale"
is
not
defined.
All
activity
on
Kirtland
AFB
is
under
the
command
and
control
of
a
single
entity.
So,
even
though
there
may
be
projects
occurring
on
the
installation
that
are
not
necessarily
"
interconnected"
from
an
operational
or
development
standpoint,
those
projects
are
"
interconnected"
due
to
the
approval
authority
required.
The
centralized
process
required
to
obtain
project/
construction
approval,
and
the
facility
wide
master
plan
could
easily
be
interpreted
to
be
part
of
a
"
common
plan."
The
term
"
common
plan
of
development
or
sale"
may
already
include
this
interpretation,
but
the
proposed
regulation
lacks
a
degree
of
specificity.
Being
"
under
the
command
and
control
of
a
single
entity"
does
not
mean
that
projects
are
part
of
a
common
plan.
The
"
plan"
in
a
common
plan
of
development
or
sale
is
broadly
defined
as
any
announcement
or
documentation
or
physical
demarcation
indicating
that
construction
activities
may
occur
on
a
specific
plot.
A
SWPPP
designed
for
the
specific
project
must
be
developed
for
each
site
and
must
be
prepared
before
submittal
of
an
NOI.
In
many
situations
different
activities
on
a
base
would
require
separate
SWPPS
and
NOIs
and
would
not
be
part
of
a
common
plan.
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47
EPA
should
expand
the
examples
on
page
7
of
the
Fact
Sheet
to
clarify
what
projects
must
be
addressed
as
part
of
a
"
common
plan
of
development
or
sale"
and
what
projects
must
considered
as
separate
projects
in
terms
of
permit
responsibilities.
...
EPA
should
provide
specific
language
in
the
permit
to
make
it
clear
as
to
who
must
get
a
permit
and
how
responsibilities
change
as
land
within
the
development
is
sold
lot
by
lot
to
individual
builders
or
homeowners.
...
When
does
the
responsibility
of
the
developer
for
storm
water
pollution
prevention
from
each
lot
cease
and
become
the
responsibility
of
the
new
owner?
Does
the
new
owner
have
to
get
permit
coverage?
If
so,
under
what
circumstances
is
permit
coverage
required?
Due
to
the
great
variety
in
construction
projects,
it
is
impossible
to
provide
examples
in
the
Fact
Sheet
that
apply
to
every
situation.
EPA
has
tried
to
clarify
the
responsibilities
of
the
different
parties
that
may
be
involved
in
a
construction
project.
1057
1b
48
As
we
understand
the
proposed
definition
of
"

noncontiguous
projects,
two
wells
pads
whose
boundaries
are
closer
than
one­
quarter
mile
apart
will
automatically
be
considered
part
of
a
"
common
plan,"

regardless
of
whether
there
is
an
interconnecting
road
or
pipeline
"
under
construction
at
the
same
time."
We
assume,
and
would
request
EPA's
confirmation,
that
these
two
unconnected
well
pads
would
have
to
be
under
the
control
of
the
same
"
operator"
and
"
under
construction
at
the
same
time"
to
be
considered
part
of
the
"
common
plan."
Both
distance
and
time
between
well
pads
and
interconnecting
roads
should
be
considered
when
determining
if
activities
are
part
of
a
common
plan.
Two
unconnected
well
pads
closer
than
a
quarter
of
a
mile
apart
and
with
the
same
operator
who
is
operating
under
a
plan
that
includes
both
sites,
is
considered
to
be
a
common
plan.
If
at
some
point,
the
total
acreage
under
the
common
plan
for
which
construction
has
not
yet
commenced
falls
below
one
acre,
the
operator
is
not
required
to
obtain
permit
coverage
for
that
last
remaining
piece
of
construction
activity
upon
commencement
of
construction.
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49
Under
EPA's
guidance
on
"
contingent
future
activities,"
 
the
common
plan
would
appear
to
include
even
non­
contiguous
projects
where
"
the
physically
interconnected
phases
will
not
overlap,"

since
EPA's
guidance
allows
the
"
conceptual
phase"

to
be
excluded
from
the
common
plan
only
if
the
"
conceptual
phase
has
not
been
funded
and
periods
of
construction
for
the
physically
interconnected
phases
will
not
overlap."
If
a
group
of
oil
and
gas
projects
are
"
funded"
for
a
given
time
frame,
therefore,
it
would
appear
that
the
"
non­
contiguous"
nature
of
an
oil
and
gas
activity
would
be
irrelevant
to
the
amount
of
acreage
included
in
the
"
common
plan."
 
Does
noncontiguousness
trump
funding?
Or
does
funding
trump
non­
contiguousness?
EPA
does
not
intend
that
any
one
consideration,
such
as
funding,
be
used
as
the
way
to
define
what
activities
are
part
of
a
common
plan.
Distance
and
time
should
be
considered
when
making
this
determination.
See
comment
response
48.
1061
1b
50
EPA's
guidance
on
"
contingent
future
activities"

therefore
raises
the
following
questions:
 
What
does
EPA
mean
by
"
funding"?
Does
it
mean
paid
for?

Authorized
for
expenditure?
Budgeted?
EPA
does
not
believe
there
is
any
reason
to
define
"
funding".
EPA
does
not
intend
that
any
one
consideration,
such
as
funding,
be
used
as
the
way
to
define
what
activities
are
part
of
a
common
plan.
Distance
and
time
should
be
considered
when
making
this
determination.
1061
1b
51
EPA's
guidance
on
"
contingent
future
activities"

therefore
raises
the
following
questions:
 
How
will
EPA
enforce
the
"
contingent
future
activity"
concept?

A
company's
exploration
and
production
drilling
and
project
plans
and
"
funded"
expenditures
are
the
most
confidential
information
developed
by
the
company,

which
are
not
required
to
be
disclosed
to
any
other
governmental
authority.
EPA
cannot
reasonably
expect
a
company
to
disclose
this
information
to
EPA
to
demonstrate
whether
or
not
the
company's
activities
are
"
contingent
future"
activities
or
not.
EPA
will
look
at
a
combination
of
factors,
such
as
time
and
distance,
when
determining
if
a
project
should
have
permit
coverage.
1061
1b
52
Clarifying
that
dispersed
projects
that
could
have
been
interpreted
as
"
common
plan
of
development"
should
be
considered
separate
projects
would
allow
projects
with
low
water
quality
impact
concerns
to
be
treated
in
a
less
burdensome
fashion.
Dispersed
does
not
necessarily
mean
there
is
low
water
quality
impact.

However,
both
distance
and
time
should
be
considered
when
making
this
determining
if
projects
are
part
of
a
common
plan.
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74
It
is
essential
that
the
question
of
whether
and
how
the
concept
of
common
plan
of
development
is
to
be
applied
to
oil
and
gas
E&
P
facility
construction
be
included
in
the
postponement
of
the
application
of
the
CGP
to
E&
P
facilities.
EPA
referenced
the
language
in
the
proposed
CGP
in
the
two
year
postponement
rule.
1005
and
1010
1b
75
EPA
should
issue
interim
guidance
on
the
definition
of
"
common
plan"
in
the
oil
and
gas
industry
for
use
during
the
two­
year
deferral
period
that
allows
such
common,
normal
oil
and
gas
activities
to
be
covered
by
the
proposed
deadline
extension.
EPA
included
guidance
on
"
common
plan"
in
both
the
draft
and
final
CGP
and
fact
sheets.
1060
1b
76
During
the
proposed
deferral
period,
an
operator
should
not
be
required
to
obtain
a
permit
as
long
as
the
land
area
actively
disturbed
at
a
given
time
for
all
of
the
project
components
associated
with
a
given
well
site
(
for
example,
the
road,
well
site,
reserve
pit(
s),

pipeline,
storage
facilities)
does
not
exceed
five
acres.
The
commenter
raises
the
important
concept
­
land
area
actively
disturbed.
If
two
well
sites
are
located
close
to
each
other
and
construction
is
occurring
at
the
same
time,
they
would
generally
be
considered
part
of
a
common
plan.
1060
1b
77
We
believe
that
the
inclusion
of
all
small
construction
activities
under
the
2003
NPDES
General
Permit
for
Storm
Water
Discharges
form
Construction
Activities
(
CGP)
is
unnecessary
to
protect
water
quality
of
the
United
States.
Small
parcels
that
are
part
of
a
larger
plan
of
development
can
be
captured
as
large
construction
projects.
A
more
reasonable
approach
would
be
to
only
target
small
construction
activities
that
are
of
a
type
where
or
location
where
direct
discharges
to
a
receiving
water
are
present
and
the
discharge
is
significant
to
that
water
body.
EPA
can
easily
develop
criteria
to
ensure
that
threshold
is
understandable
and
enforceable.
EPA's
decision
to
require
permit
coverage
for
all
small
construction
activity
was
part
of
an
earlier,
separate
action.
The
comment
is
not
relevant
to
this
permit.
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APSC
believes
that
other
factors,
not
just
proximity
of
areas
of
disturbance,
should
be
used
to
determine
if
individual
sites
are
part
of
a
common
plan
of
development.
One
criterion
may
be
whether
or
not
multiple
sites
discharge
to
the
same
receiving
water
or
water
shet.
Two
small
parcels
may
discharge
to
completely
differ
waters
or
watersheds
(
drainage
areas).
It
would
be
reasonable
to
segregate
the
disturbed
areas
based
on
potential
impacts.
APSC
believes
that
there
should
be
flexibility
allowed
when
determining
if
a
discrete
construction
project
is
part
of
a
larger
common
plan
of
development.
Specifically,

location
of
storm
water
discharge
should
be
a
consideration
when
making
such
determinations.
EPA
agrees
that
several
factors
should
be
considered
when
determining
if
something
is
part
of
a
common
plan.
Distance
and
time
should
be
considered
when
making
this
determination.
Location
of
discharges,
by
itself,
should
not
be
the
only
factor
to
consider.
Due
to
the
wide
range
of
situations
and
EPA's
desire
to
allow
flexibility,
individual
cases
may
have
to
be
discussed
with
the
permitting
authority.
1041
1b
79
The
interim
guidance
should
allow
oil
and
gas
operators
to
elect
to
define
the
term
"
common
plan"
on
a
well­
site­
by­
well­
site
basis,
rather
than
requiring
them
to
aggregate
land
area
disturbed
over
multiple
wells
in
a
field
or
area.
EPA
disagrees
that
construction
at
separate
well
sites
should
always
be
considered
individually.
If
two
well
sites
are
located
close
to
each
other
and
construction
is
occurring
at
the
same
time,
they
should
generally
be
considered
part
of
a
common
plan.
1060
1b
80
Additionally,
Sempra
Energy
believes
that
utility
construction
activities
conducted
outside
of,
but
adjacent
to,
a
development
project
(
e.
g.
residential
subdivision,
business
park),
should
not
be
considered
part
of
the
overall
project's
common
plan
of
development
for
the
purposes
of
determining
if
the
utility
work
requires
a
storm
water
permit.
Sempra
Energy
believes
that
these
utility
projects
should
be
considered
on
their
own
merit.
EPA
agrees
that
generally,
utility
projects
would
not
be
considered
part
of
a
common
plan.
However,
due
to
the
numerous
different
situations
found
in
construction
projects,
the
operator
should
check
with
the
permitting
authority
if
there
are
questions
about
permit
requirements.
1027
1b
81
In
particular,
UWAG
recommends
that
a
utility's
construction
activities
conducted
outside
of,
or
adjacent
to,
a
construction
project
be
exempt
from
inclusion
in
that
project's
'
common
plan
of
development.'
See
response
to
comment
80
1067
1b
82
Furthermore,
a
utility's
work
outside
of
or
adjacent
to
a
construction
project
should
be
considered
its
own
'
common
plan
of
development'
for
purposes
of
determining
whether
its
portion
of
the
project
exceeds
the
acreage
criteria
triggering
the
need
for
a
permit.
See
response
to
comment
80
1067
11
Coverage
of
General
Permit
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New
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Doc
ID
1b
83
Nonetheless,
UWAG
recognizes
that
there
may
be
circumstances
under
which
the
proposed
utility
work
 
even
though
off­
site
 
could
be
covered
under
the
developer's
permit
and
therefore
utilities
should
retain
the
option
to
have
adjacent
construction
covered
by
the
developer's
permit
when
such
joint
coverage
is
appropriate.
See
response
to
comment
80
1067
1b
84
Only
contiguous,
actively
disturbed
areas,
which
have
not
been
temporarily
stabilized
in
a
manner
appropriate
for
the
soil
type,
should
be
counted
against
an
acreage
threshold.
Non­
contiguous
areas,
such
as
2
drill
pads,
that
are
connected
by
a
pipeline,
or
road
may
be
counted
together
as
a
common
plan
if
they
are
all
under
construction
at
the
same
time.
1061
1b
85
Moreover,
if
application
of
common
plan
of
development
for
E&
P
facilities
remains
in
the
CGP,
it
would
have
the
effect
of
making
moot
the
postponement
of
the
permit
on
E&
P
facilities.
EPA
disagrees.
The
CGP
fact
sheet
provides
several
examples
of
factors
to
be
considered
as
to
whether
construction
activity
should
be
considered
part
of
a
common
plan.
EPA
believes
the
majority
of
oil
and
gas
construction
will
be
separated
by
sufficient
distance
or
time
so
as
to
be
treated
as
separate
projects.
1005
1b
86
A
five­
acre
limitation
over
an
entire
"
common
plan"

would
exclude
many
exploratory
activities
and
most
development
activities
from
coverage
under
the
oil
and
gas
exemption,
and
would
frustrate
Congress's
intent
in
enacting
section
402(
l)(
2).
The
requirement
for
permit
coverage
for
discharges
from
activity
that
is
part
of
a
"
common
plan"
comes
from
an
earlier
and
separate
action.
1061
1b
87
Depending
on
how
reasonably
EPA
defines
when
"
land
disturbance"
or
projects
"
under
construction
at
the
same
time"
begins
and
ends
with
respect
to
oil
and
gas
activities,
 
the
requirement
that
interconnected
well
pads
and
interconnecting
roads
or
pipelines
not
be
"
under
construction
at
the
same
time"
could
cause
most
routine
oil
and
gas
activities
to
exceed
the
fiveacre
threshold,
thus
obviating
the
section
402(
l)(
2)

exemption
for
these
activities,
if
the
exemption
is
to
be
limited
to
less­
than­
five­
acre
sites.
EPA
disagrees
that
most
activities
will
exceed
the
five
acre
threshold.
However,

if
construction
of
well
pads
and
interconnecting
roads
or
pipelines
is
occurring
at
the
same
time
and
the
disturbed
area
exceeds
five
acres,
EPA
believes
this
should
generally
be
considered
as
a
common
plan
and
be
covered
by
EPA's
permit.
1061
12
Coverage
of
General
Permit
Commment
Response
New
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ID
Summary
Response
Doc
ID
1b
88
In
order
to
reduce
EPA's
burden
of
administering
the
CGP,
and
to
reduce
the
burden
of
compliance
by
Kirtland
AFB,
and
similarly
situated
federal
facilities,

we
recommend
that
the
EPA
define
"
Common
plan
of
development
or
sale,"
specifically
including
the
following
language:
"
For
the
purposes
of
this
General
Permit,
'
Common
Plan
of
Development
or
Sale'

includes
federal
facilities
where
the
entity
submitting
the
NOI
exercises
operational
control
over
all
construction
activities
occurring
on
that
facility."
EPA
disagrees.
See
response
to
comment
46.
1037
1b
89
Over
30,000
wells
could
become
subjected
to
the
permit
process
 
10,000
in
Texas
and
Oklahoma
alone.
These
facilities
would
increase
the
number
of
units
requiring
permits
by
25
percent
over
the
EPA
estimates
of
the
number
of
construction
starts
affected
by
the
program.
A
third
of
the
increase
would
be
in
EPA
Region
6
where
EPA
manages
the
program.
This
burden
would
flow
into
the
endangered
species
and
historic
site
preservation
and
TMDL
reviews
and
would
overwhelm
the
capabilities
of
the
agencies
charged
with
these
responsibilities
to
conduct
their
reviews.

The
result
would
be
unavoidable
permit
delays.
The
majority
of
the
well
construction
projects
will
be
able
to
take
advantage
of
the
two­
year
permit
postponement.
In
addition,
many
oil
and
gas
construction
projects
occur
in
areas
where
there
are
no
endangered
species,
historic
properties,
or
TMDLs.
For
these
projects,
EPA
anticipates
few,
if
any,
permit
delays.
1005
1b
90
Not
only
would
producers
incur
substantial
permit
preparation
costs
 
whenever
a
common
plan
of
development
threshold
was
triggered
 
delays
in
drilling
could
unravel
carefully
developed
projects.
The
first
cost
is
straightforward;
endangered
species
and
historic
site
assessments
would
have
to
be
funded
and
can
be
expensive,
in
the
range
of
$
10,000
per
study.

The
second
cost
arises
because
timing
is
so
critical
to
drilling
programs.
Both
the
access
to
the
mineral
rights
and
the
drilling
rig
are
on
schedules.
A
producer
leases
access
to
the
mineral
rights
for
a
specified
time
and
under
specified
conditions.
See
response
to
comment
89.
1005
13
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
91
We
think
the
1/
4
mile
(
1320
feet)
distance
requirement
is
too
great
for
oil
and
gas
activities
and
should
be
greatly
reduced
(
at
least
1/
8
mile
or
lower).
The
¼
mile
spacing
is
simply
one
criterion
for
determining
whether
oil
and
gas
construction
activity
should
be
treated
as
a
common
plan.
For
example,
well
pads
can
be
closer
distances
as
long
as
they
are
not
under
active
(
unstabilized)

construction
at
the
same
time.
1024
and
1028
1b
92
The
¼
mile
spacing
is
an
arbitrary
criteria
that
has
no
factual
basis.
Oil
and
gas
sites
are
remote
and
in
undeveloped
areas.
Sites
only
a
few
hundred
feet
apart
with
no
active
construction
connection
typically
have
stormwater
flow
paths
that
do
not
connect
until
after
accumulative
water
quality
impact
concerns
have
diminished.
See
response
to
comment
91.
Also,
EPA
notes
that
no
permit
will
be
necessary
if
there
are
no
discharges
into
waters
of
the
US.
1002
1b
93
Further,
the
construction
area
measurement
methodology
utilized
to
determine
if
a
storm
water
discharge
permit
is
required
[
for
oil
and
gas
activities]

is
severely
flawed.
...
EPA
needs
to
re­
examine
its
area
measurement
method
for
determining
project
size
and
apply
a
more
common
sense
approach.
EPA
assumes
the
commenter
is
referring
to
the
¼
mile
spacing.
If
so,
refer
to
comment
response
91.
1011
1b
94
In
the
proposed
Fact
Sheet
accompanying
the
proposed
CGP,
EPA
attempts
to
explain
the
phrase
'
common
plan'
using
the
oil
and
gas
industry
as
an
example.
EPA's
explanation
poses
numerous
problems
for
the
oil
and
gas
industry.
For
example,
in
determining
whether
two
non­
contiguous
construction
activities
are
considered
a
part
of
a
common
plan
of
development,
EPA
introduced
a
1/
4
mile
distance
criteria.
Two
well
pads
which
are
at
least
1/
4
mile
apart
are
to
be
considered
two
separate
construction
activities
if
any
interconnecting
road,
pipeline
or
utility
is
not
under
construction
at
the
same
time.
First,
many
wells
are
developed
on
tracks
of
20
to
160
acres
(
or
1/
32
sq.
mi.
to
1/
4
sq.
mi.).
When
multiple
wells
are
drilled
to
the
same
reservoir,
they
are
usually
drilled
less
than
1/
4
miles
from
each
other.
 
Due
to
the
distance
 
limitations,
many
non­
contiguous
oil
and
gas
construction
activities
would
have
to
be
considered
as
under
a
common
plan
of
development,

triggering
the
permit
requirement.
The
¼
mile
spacing
is
simply
one
criterion
for
determining
whether
oil
and
gas
construction
activity
should
be
treated
as
a
common
plan.
The
timing
of
the
construction
activities
and
whether
or
not
they
have
been
stabilized
as
also
mentioned
in
the
fact
sheet
as
factors
to
be
considered.
If
two
well
sites
are
located
close
to
each
other
and
construction
is
occurring
at
the
same
time,
they
should
generally
be
considered
part
of
a
common
plan.
1015
14
Coverage
of
General
Permit
Commment
Response
New
Topic
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ID
Summary
Response
Doc
ID
1b
95
The
one­
fourth
mile
limit
is
inappropriate
for
oil
and
gas
activities.
Oil
wells,
at
least
in
Texas,
are
usually
developed
on
tracts
containing
only
20
(
1/
32
sq.
mi.)
to
160
(
1/
4
sq.
mi.)
acres.
Where
multiple
wells
are
drilled
to
the
same
reservoir,
they
are
usually
drilled
less
than
1,320
feet
(
1/
4
mile)
from
each
other,
often
as
close
as
600
feet
(
1/
8
mile).
In
many
gas
fields
in
Texas,
such
as
tight
gas
fields
and
coal
bed
methane
fields,
natural
gas
wells
are
also
drilled
less
than
1,320
feet
(
1/
4
mile)
apart.
See
response
to
comment
94.
1061
1b
96
The
use
of
¼
mi
as
a
specific
distance
of
separation
should
be
the
maximum
separation
distance
for
mandatory
consideration
of
multiple
oil
and
gas
facilities
as
a
common
plan
of
development.
An
operator
should
be
able
to
determine,
based
on
sitespecific
technical
factors,
that
facilities
separated
by
less
than
¼
mi.
are
not
part
of
a
common
plan
of
development 
We
recommend
that
the
EPA
incorporate
the
following
factors
into
the
definition
of
non­
contiguous
construction
activities
(
1)
Recognize
the
unique
nature
of
oil
and
gas
construction
activity,

and
apply
the
acreage
threshold
to
individual
projects,

not
over
a
"
common
plan"
in
the
oil
and
gas
industry;

(
2)
Reduce
the
well
spacing
threshold
to
allow
consistency
with
normal
industry
practice,
which
includes
discrete
well
spacing
and
site
construction
on
as
little
as
5­
10
ac
spacing
(
3)
Allow
interconnecting
pipelines
and
roads
consistent
with
normal
industry
practice;
(
4)
Exclude
gathering
lines
and
flow
lines
from
any
acreage
threshold..
The
¼
mile
spacing
is
simply
one
criterion
for
determining
whether
oil
and
gas
construction
activity
should
be
treated
as
a
common
plan.
The
timing
of
the
construction
activities
and
whether
or
not
they
have
been
stabilized
as
also
mentioned
in
the
fact
sheet
as
factors
to
be
considered.
Pipelines,
roads,

gathering
lines,
etc.
are
all
potential
contributors
to
sediment
runoff.
If
their
construction
is
occurring
at
the
same
time
as
the
well
pad
construction,
this
would
generally
be
considered
as
a
common
plan.
If
there
is
a
time
lag
sufficient
for
stabilization
to
occur
between
construction
of
the
different
activities,
they
would
generally
be
treated
as
not
part
of
a
common
plan.
1004
15
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
97
One
key
element
of
the
regulation
that
crystallizes
these
differences
is
the
application
of
a
"
common
plan
of
development"
test
to
determine
whether
a
permit
is
required.
In
principle,
the
idea
seems
to
be
to
prevent
a
large
project
from
being
segmented
in
such
a
way
to
avoid
permitting.
It
may
be
a
valid
concept
for
a
subdivision
that
is
being
built
over
a
longer
period
of
time
but
is
clearly
designed
to
cover
an
area
larger
than
its
initial
phase.
However,
it
is
a
concept
that
does
not
work
for
oil
and
gas
E&
P
facilities.
It
fails
for
several
reasons.
First,
while
an
area
may
be
ultimately
developed
as
an
oil
or
natural
gas
"
field",
each
drilling
decision
is
independent.
While
it
may
be
based
on
the
prior
result,
timing
and
location
decisions
on
developing
an
area
are
separate
actions.
They
are
not
part
of
a
common
plan.
In
the
CGP
fact
sheet
EPA
has
clarified
that
projects
separated
by
time
and/
or
distance
may
be
considered
separate
projects
and
not
part
of
a
common
plan.
1005
1b
98
In
defining
the
"
common
plan
of
development
and
sale,"
EPA
is
using
a
model
that
is
based
on
conventional
residential
and
commercial
construction
projects.
This
model
is
not
appropriate
for
oil
and
gas
activities.
Selection
of
the
sites
for
oil
and
gas
exploration
and
production
and
the
planning
and
timing
of
such
activities
are
controlled
by
numerous
other
factors
not
accounted
for
in
the
model
used
by
EPA.

These
additional
factors
include,
but
are
not
limited
to,

factors
such
as
geology,
spacing
requirements
to
protect
correlative
rights,
mineral
law,
and
legal
contracts.
Sites
associated
with
oil
and
gas
operations
are
not
contiguous
as
that
term
would
be
viewed
in
conventional
residential
and
commercial
construction.

These
sites
also
are
often
in
very
remote
locations.
See
response
to
comment
96
1009
1b
99
I
also
urge
EPA
to
consider
common
oil
and
gas
industry
practice
when
defining
what
constitutes
a
"
common
plan,"
"
non­
contiguous"
projects,
"
future
contingent"
projects,
and
"
stabilization"
of
an
oil
and
gas
site.
See
response
to
comment
96
1009
16
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
100
EPA
must
use
models
and
definitions
that
are
appropriate
and
specific
to
activities
associated
with
oil
and
gas
operations.
In
defining
various
terms
and
developing
the

various
requirements,
EPA
has
used
a
model
based
on
residential
and
commercial
construction
projects,

which
does
not
account
for
factors
that
control
location,
spacing,
planning
and
timing
of
oil
and
gas
exploration
and
production
activities.
Any
model
EPA
uses
to
evaluate
oil
and
gas
operations
and
define
terms
associated
with
oil
and
gas
operations
must
take
these
factors
into
consideration.
See
response
to
comment
96
1007
1b
101
However,
it
...
'
common
plan
of
development'
 
is
a
concept
that
does
not
work
for
oil
and
gas
E&
P
facilities.
EPA
disagrees.
See
response
to
comment
96
1011
1b
102
Furthermore,
the
concept
of
'
common
plan
of
development'
as
outlined
in
the
proposed
CGP
does
not
work
for
the
oil
gas
industry.
The
concept
seems
to
be
a
logical
mechanism
to
prevent
a
large
development
project
from
being
piecemealed
for
the
purpose
of
avoiding
permits.
This
approach
may
be
valid
for
a
typical
residential
subdivision
that
is
designed
with
a
defined
plan
to
cover
a
large
area
and
built
over
a
period
of
several
years
with
its
construction
phases
divided
to
cover
only
a
small
area
at
a
time.
The
oil
and
gas
exploration
and
development
plans
are
created
with
a
different
approach.
When
an
oil
and
gas
producer
begins
to
develop
a
'
field',
it
is
unknown
as
to
when,
where
and
how
many
wells
are
to
be
eventually
drilled.
While
the
decision
to
drill
a
particular
well
may
be
based
on
the
result
of
previous
drilling,
the
timing
and
location
decisions
are
independent
from
any
other
drilling
in
the
field
.
It
is
not
a
part
of
a
'
common
plan
of
development'.
See
response
to
comment
97
1015
17
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
103
The
proposed
definition
for
"
non­
contiguous
separate
projects"
is
too
narrow
to
be
applied
to
the
oil
and
gas
industry
(
and
may
be
narrower
than
EPA
realizes
when
applied
to
oil
and
gas
activities).
The
proposed
definition
of
activities
that
are
"
contingent
on
future
activities"
is
too
vague
to
be
applied
effectively
and
would
also
appear
to
be
too
narrow
for
many
common
oil
and
gas
activities.
Both
of
the
proposed
definitions
have
the
potential
to
obviate
the
oil
and
gas
exemption
in
section
402(
l)(
2),
rendering
the
exemption
unavailable
or
insignificant
for
a
substantial
number
of
ordinary
oil
and
gas
activities.
See
response
to
comment
87
1061
1b
104
If
an
acreage
threshold
is
to
be
considered
at
all
(
and
we
do
not
believe
it
is
legally
or
scientifically
justified),

EPA
should
consider
the
following
changes,
among
others,
to
the
"
non­
contiguous"
definition:
(
a)
Apply
the
acreage
threshold
to
individual
projects,
not
over
a
"
common
plan"
in
the
oil
and
gas
industry;
(
b)
Reduce
the
well
spacing
threshold
required
to
show
"

noncontiguousness
to
be
consistent
with
normal
industry
practice;
(
c)
Allow
interconnecting
pipelines
and
roads
consistent
with
normal
industry
practice;
(
d)
Exclude
gathering
lines
and
flow
lines
from
any
acreage
threshold;
and
(
e)
Define
"
land
disturbed"
or
"
area
under
construction"
to
end
when
the
structure
(
road,

pad,
pipeline)
is
in
a
condition
consistent
with
the
operator's
use
and
normal,
prudent
temporary
stabilization
measures
accepted
in
the
industry
have
been
implemented.
See
response
to
comment
96
1061
1b
105
While
EPA
has
tried
to
describe
circumstances
where
a
common
plan
of
development
would
or
would
not
exist
by
an
example
in
the
Fact
Sheets
accompanying
the
Federal
Register
notice
on
the
CGP,
the
circumstances
of
each
case
are
simply
too
different
to
be
addressed
by
such
an
approach.
EPA
believes
that
the
examples
provided
in
the
CGP
fact
sheet
provide
adequate
guidance
and
flexibility
to
address
the
circumstances
present
in
many
different
cases.
1005
18
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
106
Drilling
operations,
at
least
in
Ohio,
are
different
from
general
commercial
construction
operations.
Each
decision
to
drill,
with
respect
to
timing
and
location,
for
example,
involves
a
separate
and
distinct
determination
that
weighs
a
number
of
moving
factors,

including
the
results
of
other
drilling
operations
in
the
same
field.
Accordingly,
these
types
of
operations
do
not
fit
the
models
contemplated
by
U.
S.
EPA
when
constructing
its
"
common
plan
of
development''

proposal.
See
response
to
comment
105.
Also,
construction
activity
in
Ohio
is
covered
under
Ohio's
permit(
s),
not
EPA's
CGP.
1010
1b
107
In
the
proposed
Fact
Sheet
accompanying
the
proposed
CGP,
EPA
attempts
to
explain
the
phrase
'
common
plan'
using
the
oil
and
gas
industry
as
an
example.
EPA's
explanation
poses
numerous
problems
for
the
oil
and
gas
industry.
 
Two
well
pads
which
are
at
least
1/
4
mile
apart
are
to
be
considered
two
separate
construction
activities
if
any
interconnecting
road,
pipeline
or
utility
is
not
under
construction
at
the
same
time.
 
interconnecting
access
roads
and
pipelines
are
often
built
along
with
well
pads.
If
'
under
construction
at
the
same
time'

means
'
not
finally
stabilized'
as
defined
in
the
proposed
CGP,
this
limitation
would
be
a
significant
problem.
Due
to
the
 
'
interconnecting'
limitations,

many
non­
contiguous
oil
and
gas
construction
activities
would
have
to
be
considered
as
under
a
common
plan
of
development,
triggering
the
permit
requirement.
See
response
to
comment
94
1015
1b
140
[
refers
to
Fact
Sheet
Sec.
1.3
Eligibility]
NAHB
urges
EPA
to
describe
who
is
eligible
for
coverage
in
plain
language
with
examples
that
clearly
illustrate
the
meaning
of
this
eligibility
statement.
As
mentioned
above,
it
is
NAHB
'
s
experience
that
this
is
the
single
most
difficult
issue
for
our
members
to
understand
regarding
the
NPDES
permit
program.
1057
19
Coverage
of
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Permit
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Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
142
Additionally,
where
a
general
permit
is
needed,
it
does
not
make
sense,
in
many
cases,
for
utility
installation/
extension
activities
leading
up
to
a
site
to
be
subject
to
the
same
rigorous
storm
water
permitting
requirements
as
the
developer
because
utility
construction
activities
off
the
construction
site
commonly
occur
in
paved
areas,
with
a
short
construction
duration
and
reduced
exposure
of
disturbed
soil.
These
activities
have
a
very
limited
potential
for
storm
water
impact
and
are
already
controlled
through
best
management
practices.
EPA's
1998
CGP
provides
a
lengthy
discussion
of
the
applicability
of
permits
to
utility
line
installation.
As
described
therein,
in
certain
instances,
permit
coverage
is
not
required.

EPA
notes
that
construction
in
paved
areas
often
has
a
significant
potential
for
impact
since
impervious
surfaces
generally
have
high
runoff
rates,
and
storm
sewers
that
serve
as
direct
conduits
to
surface
waters.
1067
1b
290
The
General
Permitting
procedures
could
be
interpreted
as
requiring
an
NOI
for
each
individual
construction
project
under
the
control
of
a
single
Operator.
This
interpretation
would
be
overburdensome
on
both
the
EPA
and
Operators
of
construction
activities.
EPA's
CGP
does
in
fact
require
an
NOI
for
each
individual
construction
project
under
the
control
of
a
single
operator.
EPA
does
not
believe
completing
a
twopage
NOI
for
each
construction
site
is
overly
burdensome.
1037
1b
377
EPA
should
also
make
clear,
however,
that
an
operator
would
not
be
precluded
by
the
interim
guidance
from
electing
to
aggregate
the
area
disturbed
over
multiple
well
sites
or
oil
and
gas
projects.
In
this
case,
if
the
total
area
disturbed
exceeds
five
acres,
the
operator
would
be
able
to
cover
multiple
well
sites
or
projects
under
one
NOI
and
SWPPP.
EPA
agrees
and
believes
the
permit
and
fact
sheet
describe
that
as
an
alternative
approach
to
permit
coverage.
1060
20
Coverage
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General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1b
380.1
In
the
Fact
Sheet,
Page
18,
in
Section
2.2c,
EPA
clarifies
when
a
SWPP
needs
to
be
implemented
(
or
doesn't)
for
small
construction
activity
that
was
ongoing
on
3/
10/
03.
This
language
and
concept
needs
to
be
made
clearer
in
the
Federal
Register
Notice
in
Section
II.
c.
3
(
78119).
We
urge
EPA
to
allow
'
small
construction'
sites
that
are
on
going
prior
to
3/
10/
03
to
reevaluate
their
soil
disturbance
area
as
of
3/
10/
03.
On
projects
where
the
remaining
soil
disturbance
(
i.
e.

areas
on
the
project
where
construction
is
not
complete
and
final
stabilization
has
not
been
achieved)

is
less
than
one
acre,
the
project
should
not
be
considered
a
'
small
construction
activity'
and,

therefore,
the
project
should
not
be
required
to
obtain
permit
coverage
because
it
no
longer
meets
the
threshold
of
one
or
more
acres
of
soil
disturbance.
EPA's
permit
clearly
describes
permitting
and
SWPPP
responsibilities
for
existing
small
construction
activities.
1027
1b
380.2
The
Fact
Sheet,
on
page
42
(
under
'
My
Project
Will
Disturb
Less
Than
One
Acre,
But
It
May
Be
Part
of
A
'
Larger
Common
Plan
of
Development
or
Sale.'
How
Can
I
Tell
and
What
Must
I
do?'),
describes
a
situation
under
which
construction
activities
can
be
re­
evaluated
for
the
need
of
a
storm
water
permit.
This
concept
should
be
applied
to
small
construction
projects
that
are
on
going
on
3/
10/
03.
1027
1c
30
We
already
prepare
and
implement
Erosion
and
Sedimentation
Plans
for
the
drilling
of
our
wells.
Existing
State­
required
E&
S
plans
can
be
used
to
meet
the
NPDES
requirements.
In
addition,
see
Response
to
Comment
Summary
1.
1013
1c
64
[
We] 
request
that
the
scope
of
the
affected
facilities
be
provided
in
the
final
rule.
EPA
has
clarified
those
activities
covered
by
this
permit,
including
those
activities
associated
with
linear
pipeline
projects.
1003
1c
72
Clarification:
Will
the
proposed
extention
also
cover
linear
pipeline
projects
other
than
gathering
and
production
activities?
SIC
code
4922.
EPA
has
clarified
those
activities
covered
by
this
permit,
including
those
activities
associated
with
linear
pipeline
projects.
1001
21
Coverage
of
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Permit
Commment
Response
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Summ.
ID
Summary
Response
Doc
ID
1c
73
Section
1.2
of
the
proposed
CGP
lists
"
discharges
.
.
.

associated
with
oil
and
gas
exploration,
drilling,

operations,
and
pipelines"
in
various
states.
EPA
refers
in
various
places
in
the
proposed
Fact
Sheet
to
oil
and
gas
activities.
EPA
should
make
clear
that
permit
coverage
is
required
only
for
contaminated
discharges
from
oil
and
gas
activities,
which
do
not
include
discharges
from
clearing,
grading,
and
excavating
activities
at
oil
and
gas
activities.
Section
1.2
identifies
areas
where
permit
coverage
is
available.
Section
1.2
does
not
identify
what
types
of
entities
are
required
to
obtain
permit
coverage.

See
also
summary
comment
response
304.
1061
1c
135
ATINGP
urges
the
EPA
to
review
its
interpretation
of
this
exclusion
and
conclude
upon
adoption
of
this
new
construction
general
permit
that
oil
and
gas
industry
sites
are
excluded
from
its
application.
This
comment
is
outside
the
scope
of
this
action.
See
summary
comment
response
304.
1038
1c
144
When
discussing
the
areas
of
coverage
for
Permit
OKR15000F,
EPA
appropriately
includes
activities
associated
with
oil
and
gas
exploration,
drilling,

operations,
and
pipelines.
However,
EPA
excludes
SIC
Code
1321
for
gas
plants
and
SIC
codes
46
and
49
associated
with
pipelines
that
are
also
not
under
the
authority
of
the
OK
DEQ.
These
SIC
codes
should
be
added.
In
accordance
with
the
state
of
Oklahoma's
approved
NPDES
program,
EPA
retained
jurisdiction
over
the
following
SIC
categories
relating
to
the
oil
and
gas
industry:
Group
13
­
Oil
and
Gas
Extraction;
Group
46
­
Pipelines;
and
Group
492
­
Natural
Gas
Transmission.
The
commenter
correctly
points
out
that
EPA
has
authority
over
category
46.
EPA
clarifies
that
it
does
not
have
authority
over
all
of
category
49;
its
authority
is
limited
to
SIC
code
492.
EPA
has
modified
Section
1.2
to
include
the
appropriate
references
to
SIC
categories
46
and
492,

and
to
include
a
broad
reference
to
SIC
Group
13
in
order
to
encompass
all
related
industries.
1006
1c
145
When
discussing
the
areas
of
coverage
for
Permit
OKR15000F,
EPA
includes
activities
associated
with
oil
and
gas
exploration,
drilling,
operations,
and
pipelines.
However,
EPA
excludes
SIC
Code
1321
for
gas
plants
and
SIC
codes
46
and
49
associated
with
pipelines
that
are
also
not
under
the
authority
of
the
OK
DEQ.
These
SIC
codes
should
be
added.
See
response
to
comment
144.
1002
1c
146
Section
1.2,
EPA
Region
6
permits:
The
SIC
codes
for
the
various
pipelines
need
to
be
included,
for
example,

SIC
4612
(
crude
oil
pipelines)
should
be
added
to
the
list.
In
accordance
with
the
state
of
Oklahoma's
approved
NPDES
program,
EPA
retained
jurisdiction
over
the
following
SIC
categories
relating
to
the
oil
and
gas
industry:
Group
13
­
Oil
and
Gas
Extraction;
Group
46
­
Pipelines;
and
Group
492
­
Natural
Gas
Transmission.
The
commenter
correctly
points
out
that
EPA
has
authority
over
category
46.
EPA
has
modified
Section
1.2
to
include
the
appropriate
references
to
SIC
category
46
in
order
to
encompass
all
related
industries.
1024
and
1028
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ID
1c
148
EPA
appropriately
includes
activities
associated
with
oil
and
gas
exploration,
drilling,
operations,
and
pipelines.
However,
SIC
Code
1321
for
gas
plants
and
SIC
Codes
46
and
49,
associated
with
pipelines
that
are
not
under
the
authority
of
the
Oklahoma
Department
of
Environmental
Quality
are
excluded.

ATINGP
urges
EPA
to
include
these
additional
SIC
Codes
for
coverage
under
this
permit.
See
response
to
comment
144.
1038
1c
173
The
term
'
processing,
treatment
and
transmission'

includes
gathering
lines,
flowlines
and
transmission
lines
that
transport
crude
oil
and
natural
gas
between.
.

.
leaves
the
industry
with
too
much
uncertainly.
I
would
propose
that
the
term
be
defined
as
'
processing,

treatment
and
transmission'
includes
all
pipelines
used
for
the
movement
of
crude
oil
and
natural
gas.
EPA
clarified
the
term
"
transmission"
as
part
of
the
two
year
rule
postponement
for
oil
and
gas
related
construction
activity
(
68
FR
11327).
Specifically,
the
term
transmission
includes
gathering
lines,
flowlines,
feeder
lines,
and
transmission
lines
but
does
not
include
distribution
lines.
1082
1c
174
I
fully
support
EPA's
two­
year
postponement
of
the
Phase
II
requirements
of
the
CGP
for
oil
and
gas
construction
activities,
including
exploration,

production,
processing,
treatment,
and
transmission.

However
again
confusion
is
introduced
by
the
preceding
term
stopping
at
'
transmission'.
I
would
request
replacement
of
the
term
'
transmission'
by
'
transport
of
crude
oil
and
natural
gas
by
pipeline'.
EPA
clarified
the
term
"
transmission"
as
part
of
the
two
year
rule
postponement
for
oil
and
gas
related
construction
activity
(
68
FR
11327).
Specifically,
the
term
transmission
includes
gathering
lines,
flowlines,
feeder
lines,
and
transmission
lines,
but
does
not
include
distribution
lines,
that
transport
crude
oil
and
natural
gas
over
long
distances
and
are
large­
diameter
pipes
operating
at
relatively
high
pressure.
Pipelines
that
transport
refined
petroleum
product
and
chemicals
from
refineries
and
chemical
plants
are
not
included
in
the
term
"
transmission."
1082
23
Coverage
of
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Permit
Commment
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New
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Summary
Response
Doc
ID
1c
180.1
The
Definition
of
"
Operator"
at
Oil
and
Gas
Sites
 

Proposed
CGP
Sections
Affected
by
this
Comment:

Sections
2.1,
3.2,
10
 
Fact
Sheet
Sections
Affected
by
this
Comment:
Sections
2.1,
3.2,
10
 
EPA's
guidance
for
conventional
construction
projects
does
not
translate
easily
to
oil
and
gas
operations,
but
we
believe
that
it
would
be
consistent
with
the
conclusion
that
the
lease
operator
or
JOA
operator,
the
drilling
contractor,
or
the
contractor
the
drilling
contractor
may
hire
on
a
"
turnkey"
basis,
or
some
combination
of
those
three
entities,
would
be
required
to
obtain
coverage
and
comply
with
the
CGP,
depending
on
which
of
these
three
parties
controls
site
specifications
or
day­
to­
day
operations
in
a
particular
situation.
At
oil
and
gas
sites,
other
persons,
who
might
be
referred
to
as
"
owners"
or
"
operators"
under
oil
and
gas
terminology,
would
not
be
defined
as
"
operators"
under
the
CGP
terminology,
because
they
lack
the
requisite
control.
EPA
postponed
permit
coverage
requirements
for
oil
and
gas
related
construction
activity
for
two
years
to
determine
appropriate
storm
water
controls
for
these
activities.
(
68
FR
11327).
EPA
will
consider
the
definition
of
the
term
"
operator"
as
it
applies
to
these
activities
during
the
two
year
postponement.
1061
24
Coverage
of
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Permit
Commment
Response
New
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Summ.
ID
Summary
Response
Doc
ID
1c
180.2
Persons
who
lack
the
requisite
control
and,
therefore,

should
not
be
considered
"
operators"
responsible
for
CGP
compliance
at
O&
G
sites
may
include,
among
others,
surface
owner(
s),
mineral
interest
owner(
s),

royalty
interest
owner(
s),
O&
G
lessee(
s),
and
lease
or
JOA
non­
operators,
as
well
as
sometimes
even
the
lease
or
JOA
operators,
if
they
lack
control
over
site
specifications
or
day­
to­
day
operations.
EPA
should
clarify
that
surface
owners,
mineral
owners,
royalty
owners,
working
interest
owners,
O&
G
lessees,
and
JOA
non­
operators
are
not
"
operators"
for
purposes
of
the
CGP.
Generally,
if
CGP
coverage
is
required,
it
will
be
required
only
of
the
lease
or
JOA
operator,
the
drilling
contractor,
or
the
contractor
the
drilling
contractor
hires
on
a
"
turnkey"
basis,
or
some
combination
of
those
3
entities
depending
on
the
specifics
of
the
contractual
relationship
between
them.

If
EPA
fails
to
clarify
the
"
operator"
role
for
O&
G
operations
in
a
reasonable
way,
leasing
activities
will
be
further
complicated
by
misunderstandings
and
disputes
over
who
may
or
may
not
be
liable
for
CGP
com
1061
25
Coverage
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Response
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ID
1c
182
By
all
logical
assessments,
clearing,
grading,
and
excavating
activities
("
construction"
in
EPA's
vernacular)
are
in
fact
an
inherent
part
of
oil
and
gas
operations.
Under
EPA's
current
definition,
when
drilling
begins
at
a
site,
"
operation"
begins
and
"
construction"
is
terminated.
Under
EPA's
current
interpretation
of
Section
402(
l)(
2),
an
"
operating"
E&
P
facility
requires
no
stormwater
discharge
permit
for
uncontaminated
stormwater,
but
clearing,
grading,
and
excavating
activities
do.
However,
this
ignores
a
physical
and
operational
reality
of
E&
P
operations,

which
requires
a
continuous
drilling
program
and,

therefore,
continuous
clearing,
grading,
and
excavating
activities
during
the
development
phase
of
a
field
in
order
to
maintain
the
leases
and
the
right
to
operate
an
oil
and
gas
field.
By
excluding
clearing,
grading,
and
excavating
activities
from
the
scope
of
the
oil
and
gas
exemption,
EPA
takes
the
exemption
away
from
the
vast
majority
of
E&
P
operations.
EPA
acknowledges
the
commenters
concern
and
references
the
recent
two
year
oil
and
gas
related
construction
activity
coverage
postponement
(
68
FR
11325)
for
discussion
of
on
the
402(
l)(
2)
exemption.
The
specific
comment
is
outside
the
scope
of
this
CGP.
1061
and
1005
1c
190
Further,
in
light
of
EPA's
related
proposal
to
postpone
the
storm
water
permit
deadline
for
oil
and
natural
gas
construction
until
April
30,2005,
it
would
be
more
appropriate
to
use
this
same
implementation
date
for
application
of
the
General
Permit
to
natural
gas
projects.
See
67
Fed.
Reg.
59828
(
Dec.
30,
2002).
The
two­
year
postponement
applies
to
natural
gas
small
construction,
with
the
exception
of
distribution
lines.
See
68
Federal
Register
11325.

1045
1c
304
The
principal
target
of
this
regulatory
program
has
been
construction
operations
that
generate
substantial
soil
disruption
that
can
be
affected
by
stormwater.
As
a
result
the
regulatory
process
tends
to
track
those
types
of
projects.
It
assumes
a
clear
cut
plan
of
development
that
involves
a
planning
phase,
an
initial
construction
phase,
and
ultimately
a
termination
of
construction.
The
permit
process
is
similar;
it
requires
a
Notice
of
Intent
and
a
Notice
of
Termination.
This
comment
was
offered
in
the
context
of
oil
and
gas
construction
projects.

EPA
has
postponed
the
permit
application
deadline
for
oil
and
gas
construction
activity
disturbing
1
to
5
acres
from
March
10,
2003
until
March
10,
2005.
See
68
Federal
Register
11325.
The
two­
year
postponement
will
allow
for
time
for
EPA
to
analyze
and
better
evaluate
:
the
impact
of
the
permit
requirements
on
the
oil
and
gas
industry;
the
appropriate
best
management
practices
for
preventing
contamination
of
storm
water
runoff
resulting
from
construction
association
with
oil
and
gas
exploration,
production,
processing,
or
treatment
operations
or
transmission
facilities;
and
the
scope
and
effect
of
33
U.
S.
C.

1342(
l)(
2)
and
other
storm
water
provisions
of
the
CWA.
1005
26
Coverage
of
General
Permit
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Response
New
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ID
Summary
Response
Doc
ID
1c
305
EPA
did
not
anticipate
that
oil
and
gas
E&
P
facility
construction
projects
were
large
enough
to
trigger
the
permitting
requirements.
Consequently,
EPA
did
not
devise
its
structure
to
reflect
the
nature
of
this
industry.
The
current
regulatory
structure
creates
fundamental
and
irreconcilable
permitting
problems.

These
derive
from
the
very
different
objectives
of
a
drilling
operation
compared
to
subdivision
or
shopping
center
construction.
See
response
to
comment
304.
1005
1c
307
I
believe
that
comparing
a
one
acre
oil
and
gas
site
to
a
one
acre
housing
subdivision
or
shopping
center
is
like
comparing
apples
to
oranges.
While
both
acuities
may
disturb
one
acre
of
land
the
oil
and
gas
site
does
not
impose
a
permanent
impermeable
foot
print
by
creating
paved
roads
or
thousands
of
squire
feet
of
roofed
building
which
concentrate
surface
run
off.
The
oil
and
gas
site
on
the
other
hand
results
in
a
temporary
disturbed
site
that
is
returned
to
the
natural
contour
and
revegetated
with
no
net
loss
of
permeable
area.
See
response
to
comment
304.
1047
1c
308
Current
proposed
regulations
do
not
take
into
account
the
effect
of
region,
soil,
and
normal
usage
for
fast
moving,
low
impact
construction
projects
such
as
pipeline
installations.
Why
cannot
all
construction
projects
be
defined
by
temporary
versus
permanent
impact
and
allow
te
 
[
rest
of
comment
is
missing
from
e­
docket]
The
CGP
covers
the
installation
of
all
"
pipelines"
which
cause
the
disturbance
of
more
than
1acre.
However,
if
the
specific
pipeline
of
concern
would
qualify
as
a
"
transmission
facility";
under
33
U.
S.
C.
1342(
l)(
2),
the
two­
year
permit
application
postponement
for
small
construction
activities
related
to
the
oil
and
gas
industry
applies.
For
a
more
detailed
discussion
of
the
types
of
pipelines
which
are
considered
by
EPA
to
be
transmission
facilities,
refer
to
68
Federal
Register
11327.

"
The
CGP
does
not
distinguish
permit
coverage
for
pipelines
on
the
basis
of
temporary
versus
permanent
impacts.
If
the
project
meets
the
acreage
threshold,
it
is
covered
by
the
permit.
Construction
operators
can
reflect
in
their
storm
water
pollution
prevention
plans
parts
of
a
site
where
temporary
disturbances
are
scheduled
to
occur,
and,
if
applicable
where
such
disturbances
have
terminated
and
all
areas
have
been
stabilized.
Once
stabilized
and
reflected
in
the
SWPPP,
no
further
SWPPP
or
inspection
requirements
apply
to
that
portion
of
the
site.
1082
1c
309
The
CGP
is
clearly
designed
for
construction
activities
such
as
building
construction,
which
is
far
different
than
oil
and
gas
well
drilling.
See
response
to
comment
304.
1011
27
Coverage
of
General
Permit
Commment
Response
New
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ID
Summary
Response
Doc
ID
1c
310.1
BATC
requests
EPA
to
make
revisions
to
the
draft
permit
so
that
the
construction
general
permit,
when
finalized
 
recognizes
that
storm
water
dischargers
are
different
from
industrial
discharges
and
cannot
be
controlled
in
the
same
manner.
The
type
of
pollutants
discharged
through
storm
water
runoff
may
vary
from
industry
to
industry,
and
the
types
of
BMPs
or
treatment
technologies
needed
to
control
such
pollutants
should
be
specifically
suited
to
the
type
of
industrial
activity.
Construction
is
unique
from
other
industrial
activities
because
it
involves
new
disturbances
of
land,
and
the
transport
and
delivery
of
sedimentladen
runoff
to
waterbodies.
[
A
detailed
discussion
of
the
adverse
water
quality
impacts
resulting
from
construction
activity
was
included
in
Section
I.
B.
3
of
the
final
Phase
II
storm
water
rule
at
64
FR
68728.]
Other
regulated
industrial
activities,
covered
by
the
NPDES
storm
water
regulations,
are
concerned
more
with
post­
construction
runoff
from
land
which
has
already
been
developed.

Construction
activity
and
the
discharge
associated
with
each
project
are
relatively
short­
lived,
while
other
industrial
discharges
are
typically
indefinite
in
duration.
1068
1c
310.2
EPA
has
taken
these
differences
into
account
in
developing
the
final
CGP,
and
has
where
possible
tailored
the
permit's
provisions
to
the
characteristics
of
the
construction
industry.
EPA
has
also
attempted
to
provide
operators
with
access
to
additional
materials
on
appropriate
BMP
controls
for
construction
activity,

including
fact
sheets
(
see
http://
cfpub.
epa.
gov/
npdes/
stormwater/
menuofbmps/
con_
site.
cfm)
and
a
BMP
database
(
see
http://
www.
bmpdatabase.
org/),
developed
in
cooperation
with
Urban
Water
Resources
Research
Council.
1068
1c
311
Many
aspects
of
EPA's
proposed
NPDES
general
permit
for
stormwater
discharges
from
construction
activities
(
or
Construction
General
Permit,
CGP)
in
Docket
No.
OW­
2002­
0055
do
not
work
for
the
oil
and
gas
projects.
The
problem
arises
from
the
fact
that
the
primary
target
of
the
regulatory
program
addressing
stormwater
discharges
from
construction
activities
is
the
residential
and
commercial
development
and
construction
projects
that
build
subdivisions
and
shopping
centers.
The
nature
of
those
development
and
construction
projects
are
vastly
different
from
the
oil
and
gas
construction
projects.
Understandably,
the
attempt
to
impose
the
regulatory
program
and
the
CGP
designed
for
those
types
of
construction
projects
on
the
oil
and
gas
industry
has
created
or
will
create
many
inherent
problems.
See
response
to
comment
304.
1015
28
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Response
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ID
1c
312
A
residential
or
commercial
project
typically
has
a
definite
plan
of
development
that
involves
a
planning
phase,
a
construction
phase
and
termination
of
the
construction.
EPA's
construction
stormwater
program
and
the
CGP
track
the
same
process,
requiring
a
Notice
of
Intent
(
NOI)
and
a
Notice
of
Termination
(
NOT).
The
planning
phase
of
such
a
project
takes
many
months
even
years,
allowing
time
for
detailed
planning
and
review
for
such
items
as
endangered
species
and
historic
sites
preservation.
An
oil
and
gas
construction
project,
on
the
other
hand,
is
typically
on
a
very
tight
schedule
and
moves
very
quickly
from
planning
to
construction
because
both
the
access
to
mineral
rights
and
the
availability
of
drilling
rigs
are
on
schedules.
Failure
to
meet
the
schedule
often
results
in
the
loss
of
opportunity
to
drill
which
could
lead
to
forfeiting
hundreds
of
thousands
of
dollars
invested
in
the
project.
The
Agency
does
not
believe
it
necessary
to
include
specific
language
in
the
CGP
recognizing
the
inherent
differences
between
construction
activity
and
other
industrial
activities.
EPA
notes
that
the
Clean
Water
Act
makes
no
distinction
between
types
of
industrial
storm
water
discharges
in
terms
of
their
ultimate
requirement
to
meet
applicable
water
quality
standards.
33
U.
S.
C.

1342(
p)(
3)(
A).
1015
1c
313
If
EPA
creates
a
stormwater
program
and
a
CGP
for
the
oil
and
gas
industry
in
spite
of
the
CWA
exemption,
Marathon
urges
EPA
to
tailor
the
program
and
the
CGP
to
the
unique
nature
of
the
industry.

Specifically,
the
program
and
the
CGP
should
include
a
workable
definition
of
'
common
plan',
and
should
not
require
the
NO1
and
NOT,
and
the
review
of
endangered
species
and
historic
sites
preservation
as
outlined
in
the
proposed
CGP.
1015
1c
314
EPA's
scientific
model
is
based
wholly
on
conventional
residential
and
commercial
construction
and
development
projects.
This
model
does
not
support
a
need
to
impose
a
permit
requirement
or
additional
controls
on
oil
and
gas
grading,
clearing,
and
excavating
activities
beyond
those
already
used
at
oil
and
gas
sites.
Also,
see
response
to
comment
304.
1061
29
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Response
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ID
Summary
Response
Doc
ID
1c
315
Thus,
we
urge
EPA
to
make
revisions
to
the
draft
permit
so
that
the
construction
general
permit,
when
finalized,
is
easily
understood
by
the
public,
has
reasonable
eligibility
requirements,
and
recognizes
that
storm
water
dischargers
are
different
from
industrial
discharges
and
cannot
be
controlled
in
the
same
manner.
See
comment
response
310.
2001
1c
316
Congress
made
no
mention
of
tract
size,
much
less
a
distinction
between
tracts
of
less
than
five
acres
and
greater
than
five
acres,
as
has
EPA.
I
fail
to
see
how
EPA
can
study
the
full
scope
of
the
exemption
without
looking
at
all
oil
and
gas
activities,
including
the
construction
activities
that
are
an
inherent
part
of
oil
and
gas
operations
and
regardless
of
acreage
to
be
disturbed
by
such
activities
as
proposed
in
Docket
No.

OW­
2002­
0068.
Large
construction
has
been
regulated
as
an
industrial
activity
under
CWA
section
402(
p)(
6)
since
promulgation
of
the
Phase
I
storm
water
rule.
EPA
did
not
propose
to
take
any
action
with
respect
to
large
construction
activity
and
did
not
seek
comment
on
this
issue.
The
Agency
declines
to
respond
to
these
comments,
as
they
are
outside
the
scope
of
the
today's
action.
1009
1c
317
We
strongly
think
that
oil
and
gas
construction
activities
that
disturb
5
acres
or
greater
should
also
be
included
in
this
action
to
delay
permits
for
small
oil
&

gas
construction
activities 
Large
construction
has
been
regulated
as
an
industrial
activity
under
CWA
section
402(
p)(
6)
since
promulgation
of
the
Phase
I
storm
water
rule.
EPA
did
not
propose
to
take
any
action
with
respect
to
large
construction
activity
and
did
not
seek
comment
on
this
issue.
The
Agency
declines
to
respond
to
these
comments,
as
they
are
outside
the
scope
of
the
today's
action.
1028
and
1024
1c
318
If
EPA
determines
that
the
scope
and
effect
of
the
exemption
of
33
U.
S.
C.
§
1342(
l)(
2)
is
to
exclude
construction
activities
at
sites
disturbing
one
to
five
acres,
the
same
exemption
would
apply
to
construction
sites
disturbing
more
than
five
acres.
See
response
to
comment
317.
1038
1c
319
EPA
has
not
established
a
scientific
basis
for
a
fiveacre
threshold
or
any
acreage
threshold
as
applied
to
oil
and
gas
activities.
One
of
the
purposes
of
the
two­
year
postponement
of
the
Phase
II
permit
application
requirements
for
oil
and
gas
construction
activities
is
to
develop
a
better
understanding
of
the
impact
of
the
small
construction
requirements
on
such
operations.
EPA
clarifies
that
the
acreage
thresholds
for
construction
were
established
under
authority
of
CWA
section
402(
p)(
6).
EPA
did
not
seek
comment
on
either
the
authority
or
justification
for
these
different
size
thresholds
as
they
apply
to
the
oil
and
gas
industry
during
the
Agency's
proposal
of
the
CGP
As
such,
EPA
declines
to
respond
to
these
comments,
as
they
are
outside
the
scope
of
the
today's
action.
1061
30
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Response
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ID
1c
320
ABARTA
requests
that
implementation
be
delayed
until
the
legality
of
application
to
the
oil
and
gas
industry
can
be
proven
and
the
legislation
revised
to
correct
flaws
indicated
by
submitted
comments.
See
responses
to
comments
304
and
319.

Large
construction
has
been
regulated
as
an
industrial
activity
under
CWA
section
402(
p)(
6)
since
promulgation
of
the
Phase
I
storm
water
rule.
EPA
did
not
propose
to
take
any
action
expanding
or
contracting
the
set
of
discharges
for
which
permit
coverage
would
be
necessary
with
respect
to
large
construction
activity
and
did
not
seek
comment
on
this
issue.
The
Agency
declines
to
respond
to
these
comments,
as
they
are
outside
the
scope
of
the
today's
action.
1012
1c
321
EPA
does
not
have
the
legal
authority
under
section
402(
l)(
2)
to
categorically
exclude
clearing,
grading,
and
excavating
at
oil
and
gas
activities
from
the
scope
of
the
oil
and
gas
exemption.
Among
the
aspects
of
the
small
construction
activity
permit
requirements
which
will
be
reviewed
over
the
course
of
the
two­
year
postponement
is
the
scope
and
effect
of
CWA
Section
402(
l)(
2)
and
other
storm
water
provisions
of
the
Act.

See
response
to
comment
320
1061
1c
322
Discharges
from
clearing,
grading,
and
excavating
activities
conducted
consistent
with
normal,
prudent
operating
practices
used
in
the
oil
and
gas
industry
are
not
"
contaminated"
within
the
meaning
of
section
402(
l)(
2).
As
long
as
the
clearing,
grading,
and
excavating
activities
at
an
oil
and
gas
site
are
being
conducted
consistent
with
normal,
prudent
operating
practices
accepted
in
the
oil
and
gas
industry
and
appropriate
for
the
type
of
activity
and
location,
there
is
no
legal
basis
to
exclude
them
from
coverage
under
the
oil
and
gas
exemption.
See
response
to
comment
321.
1061
1c
323
Any
conditions
placed
on
the
availability
of
the
oil
and
gas
exemption,
therefore,
must
be
consistent
with
the
normal
course
of
and
practice
in
exploration,

development,
and
production
of
oil
and
gas
reserves
and
cannot
be
so
limiting
as
to
render
the
oil
and
gas
exemption
unavailable
or
insignificant
for
a
substantial
number
of
oil
and
gas
activities.
Otherwise,

Congress's
intent
in
enacting
section
402(
l)(
2)
will
be
frustrated.
See
response
to
comment
321.
1061
31
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of
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Permit
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Response
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ID
Summary
Response
Doc
ID
1c
324
In
order
to
implement
Congressional
intent
under
the
oil
and
gas
exemption
in
section
402(
l)(
2),
if
an
acreage
threshold
is
legally
and
scientifically
justified
at
all,
the
threshold
must
be
large
enough
to
allow
clearing,
grading,
and
excavating
of
roads,
pads,

gathering
lines,
necessary
to
bring
an
operator's
leases
on
and
maintain
production
during
all
phases
of
exploration,
development,
production
and
decline
of
an
oil
and
gas
field.
 
it
would
likely
have
to
be
different
for
different
types
of
oil
and
gas
activities,
in
order
to
comply
with
the
intent
of
the
oil
and
gas
exemption.
See
response
to
comment
321.
1061
1c
325
In
reference
to
EPA
announcing
its
intention
to
propose
a
delay
to
the
permit
authorization
deadline
set
forth
in
the
NPDES
regulations
as
it
may
relate
to
oil
and
gas
construction
activity,
covering
construction
disturbances
between
one
and
five
acres
of
land,
EPA
should
consider
extending
this
delay
to
the
electrical
transmission
industry.
This
activity,
if
determined
by
your
review
to
cover
the
construction
of
linear
gas
and
oil
conveyance
facilities,
electrical
transmission
industry
should
also
be
included.
By
the
nature
of
the
electrical
transmission
industry,
transmission
line
construction
projects
are
also
linear
in
nature
having
multiple
isolated
construction
sites.
EPA
clarified
how
the
two­
year
postponement
applied
to
"
transmission
facilities".
EPA
refers
the
commenter
to
68
FR
11327.
EPA
did
not
extend
the
two­
year
postponement
relating
to
the
oil
and
gas
industry
to
the
electrical
transmission
industry,
unless
these
activities
are
part
of
the
oil
and
gas
exploration,
production,
processing,
treatment
and
transmission
of
oil
and
gas.

EPA
did
not
seek
comment
on
the
two­
year
extension
as
part
of
this
action,
and
such
comments
are
outside
the
scope
of
this
permit
issuance.
1076
1c
384
The
detail
and
scope
required
in
typical
site­
specific
SWPPPs
would
be
very
burdensome
for
most
oil
and
gas
activities,
which
involve
small,
simple,
remote,
and
widely
dispersed
oil
and
gas
locations.
Moreover,
the
location
of
the
clearing,
grading,
and
excavating
activity
will
move
relatively
quickly
from
site
to
site,

making
it
impractical
to
keep
site­
specific
records.
If
a
permit
is
required
for
oil
and
gas
activities
at
all,
EPA
should
not
require
site­
specific
SWPPPs
for
such
activities.
The
nature
of
implementing
BMPs
makes
it
imperative
that
they
be
designed
for
specifc
site
topography,
soils,
vegetation,
proximity
to
water
bodies,
etc.
EPA
believes
it
is
feasible
for
construction
site
operators
to
develop
site
specific
SWPPPs,
and
keep
the
necessary
records.
EPA
has
already
announced
the
decision
to
defer
a
decision
on
the
type
of
storm
water
discharge
controls
necessary,
if
any,
for
small
(
less
than
5
acre)
oil
and
gas
construction
activities
for
2
years.
See
also
responses
to
comments
304
and
321.
1061
32
Coverage
of
General
Permit
Commment
Response
New
Topic
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ID
Summary
Response
Doc
ID
1c
500
COP
strongly
supports
the
proposed
two­
year
postponement,
until
March
I
O
,
2005,
of
the
Phase
II
requirements
of
the
Storm
Water
Construction
General
Permit
(
CGP)
for
oil
and
gas
construction
activities,
including
exploration,
production,

processing,
treatment,
and
transmission.
We
were
very
pleased
to
see
that
EPA
intends
to
reevaluate
its
interpretation
of
the
scope
and
effect
of
the
33
U.
S.
C.

1342
(
1)(
2)
exemption
as
it
relates
to
oil
and
gas
construction
activities
during
the
postponement.
As
such,
COP
believes
that
EPA
should
also
postpone
the
permit
authorization
deadline
for
NPDES
storm
water
permits
for
oil
and
gas
construction
activity
that
disturbs
greater
than
five
acres
of
land
until
EPA
completes
its
reevaluation.
See
response
to
comment
321.
1008
1c
501
COP
believes
the
postponement
should
be
extended
to
Phase
I
requirements
until
EPA
completes
its
reevaluation
of
the
scope
and
effect
of
the
33
U.
S.
C.

1342
(
1)(
2)
exemption
as
it
relates
to
oil
and
gas
construction
activities.
See
response
to
comment
320.
1008
1c
502
COP
believes
that
the
construction
of
roads,

equipment
pads,
gathering
lines,
flowlines
and
transmission
lines
(
Le.,
pipelines),
associated
with
oil
and
gas
exploration,
production,
processing,

transmission,
or
treatment
operations,
including
pipelines
for
delivery
of
refined
products
and
chemicals,
is
included
in
the
scope
and
effect
of
33
U.
S.
C.
5
1342(
1)(
2).
Therefore,
EPA
should
clarify
that
construction
activities
on
all
transmission
line
construction
activities
are
also
included
in
the
two­
year
postponement
from
storm
water
permitting
extended
to
oil
and
gas
operations.
These
construction
activities
are
integral
to
oil
and
gas
exploration
and
production
and
differ
from
other
construction
activities
(
Le.,

residential
and
commercial)
covered
by
the
CGP.
EPA
clarified
how
the
two­
year
postponement
applied
to
"
transmission
facilities".
EPA
refers
the
commenter
to
68
FR
11327.

See
response
to
comment
325.
1008
33
Coverage
of
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Permit
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Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1d
23.1
During
development
of
the
new
Sector­
G
MSGP,

NMA 
submitted
comments 
requesting
that
EPA
reconsider
its
proposal
to
establish
a
5
acre
limit
on
applicability
of
the
MSGP
on
the
basis
that
the
effect
of
the
threshold
for
metal
mining
facilities
increased
regulatory
and
permittee
workload
with
no
concomitant
environmental
benefits.
NMA
pointed
out
that
most
mining
operations 
exceed
the
proposed
threshold
and
that
EPA
had
not
demonstrated
that
the
MSGP
was
somehow
ineffective
for
controlling
storm
water
discharges
from
exploration
and
construction
disturbances
exceeding
the
threshold 
EPA's
final
rule
included
an
even
smaller
one
acre
threshold
for
application
of
the
MSGP.
Therefore
since
Oct
2000,

mining
operators
subject
to
EPA's
oversight
have
been
required
to
comply
with
two
separate
general
permit
programs
for
authorization
of
discharges
from
identical
activities,
the
only
distinguishing
factor
being
the
area
of
impact.
The
requirement
to
separately
obtain
permit
coverage
for
the
construction
or
exploration
phases
of
mining
under
the
CGP
arose
from
EPA's
concern
that
the
initial
clearing,
grading,
or
excavation
on
a
site
could
escape
permit
coverage
under
the
MSGP
for
mining
activities
(
i.
e.,
Sector
G
­
Metal
Mining)
despite
the
significant
pollutant
discharges
that
may
nevertheless
result.
Following
the
issuance
of
the
Phase
II
regulations,
which
lowered
the
threshold
of
covered
construction
activities
from
five
acres
or
more
to
greater
than
one
acre,
EPA
included
a
new
provision
in
the
2000
MSGP
for
Sector
G
operators
requiring
coverage
under
the
CGP
for
construction
or
exploration­
related
activities
which
disturb
more
than
one
acre.
According
to
Subpart
6.
G.
5
of
the
MSGP
(
65
Fed.

Reg.
64825),
"
clearing,
grading
and
excavation
activities
being
conducted
as
part
of
the
exploration
and
construction
phase
of
a
mining
operation
cannot
be
covered
under
this
permit
if
these
activities
will
disturb
one
or
more
acre
of
land.
1066
1d
23.2
Moreover,
despite
NMA's
repeated
requests,
EPA
has
not
provided
a
reasoned
explanation
for
creating
such
a
bifurcated
permitting
system,
particularly
in
the
context
of
the
general
permitting
program
which
is
intended
to
be
an
efficient
and
streamlined
approach.
Instead,
coverage
for
these
activities
must
be
under
the
latest
version
of
EPA's
General
Permit
for
Storm
Water
Discharges
from
Construction
Activities."
To
address
the
commenter's
concerns
regarding
duplicative
permit
coverage
for
mining
activities,
EPA
would
need
to
modify
Subpart
6.
G.
5
of
the
MSGP.
The
MSGP
is
set
to
expire
on
October
30,
2005.
As
part
of
the
next
MSGP
reissuance,
the
effectiveness
and
justification
for
addressing
different
mining
phases
in
two
different
permits,
including
whether
all
regulable
mining
and
mining­
related
activities
(
from
exploration
and
construction
to
reclamation)

should
be
placed
back
into
the
MSGP
will
be
considered.
At
present,
however,

prior
to
the
reissuance
of
the
MSGP,
discharges
relating
to
the
exploration
and
construction
phases
of
mining
operations
must
be
covered
by
the
CGP,
while
discharges
from
active
mining
activities
must
be
covered
under
the
MSGP.

In
terms
of
the
related
concern
that
EPA's
greater
than
one
acre
threshold
for
coverage
under
the
CGP
results
in
a
confusing
framework
for
regulating
construction
and
exploration­
related
activities
for
mining,
EPA
reiterates
that
any
c
1066
34
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Summary
Response
Doc
ID
1d
24.1
EPA
appears
to
intend
mining
operators
engaged
in
exploration
and
construction
phase
activities,
which
includes
removal
of
overburden
and
waste
rock
to
expose
mineable
minerals,
resulting
in
disturbances
of
more
than
one
acre
to
seek
authorization
under
the
CGP.
Then,
once
extraction
activities
begin,
EPA
recommends
operators
terminate
the
CGP,
including
compliance
with
stabilization
and
revegetative
requirements,
and
seek
coverage
under
the
Sector
GMSGP
65
Fed.
Reg
64825.
Or
in
the
alternative,
EPA
suggests
you
may
choose
not
to
terminate
the
CGP
in
which
case
compliance
with
both
permits
is
required.

The
result
is
a
complex,
confusing
and
inefficient
permitting
maze
which
is
based
solely
upon
an
arbitrary
established
disturbance
threshold
for
which
the
agency
has
never
provided
a
rational
basis 
EPA
disagrees
with
the
commenter's
interpretation
that
the
CGP
essentially
requires
operators
to
terminate
their
CGP
coverage
and
stabilize
all
disturbed
areas
as
a
prerequisite
to
resuming
mining
extraction
activities
under
the
MSGP.
Nevertheless,
EPA
has
modified
the
applicable
section
of
the
notice
of
termination
("
NOT")
form
to
further
clarify
how
operators
may
terminate.
Where
the
mining
operator
intends
to
shift
from
the
exploration
and/
or
construction
phase
of
an
operation
to
active
mining,
the
operator
can
terminate
CGP
coverage
by
indicating
on
the
notice
of
termination
("
NOT")
that
the
site's
storm
water
discharges
will
be
covered
by
another
NPDES
permit.
In
the
case
of
mining
operations
covered
under
Sector
G
of
the
MSGP,
transition
to
the
multisector
permit
would
qualify
as
adequate
termination
of
the
CGP­
covered
activities.
This
termination
through
change
in
permit
coverage
is
supported
by
section
5.2.
A.
2
of
the
CGP
which
enables
the
permittee
to
terminate
by
indicating
that
"...
coverage
under
an
alternative
NPDES
permit
has
been
obtained."
1066
1d
24.2
EPA
has
adopted
a
permitting
approach
which
has
the
effect
of
overburdening
certain
industries
by
requiring
compliance
with
two
separate
storm
water
permitting
programs
without
illustrating
an
environmentally
based
reason
for
doing
so.
EPA
has
modified
the
NOT
form
to
make
termination
by
alternative
NPDES
permit
a
distinct
checkbox.
See,
also,
response
to
comment
23.
1066
1d
25
Storm
water
discharges
associated
with
exploration
and
construction
activities
at
metal
mining
sites
are
appropriately
addressed
by
the
sector­
g
MSGP.
See
response
to
comment
23.
1066
1d
26
It
is
important
to
recognize
that
mining
is
unique
from
other
industrial
activities
because
all
phases
of
mining 
are
generally
associated
with
land
clearing
and
excavation
activities.
Consequently,
there
is
no
clear
distinction
between
types
of
SW
discharges
that
may
be
generated
from
the
different
phases
of
mining.

All
of
the
phases
are
therefore
appropriately
addressed
under
one
permit,
the
MSGP,
which
specifically
recognizes
and
addresses
the
nature
of
mining
activities
under
the
specific
Sector
G
requirements
and
the
potential
storm
water
discharge
issues
associated
with
such
activities.
See
response
to
comment
23.
1066
35
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1d
119
EPA's
suggestion
that
the
CGP
is
somehow
appropriate
for
construction
activities
associated
with
phase
I
of
mining
appears
to
be
misguided
and
a
misunderstanding
by
EPA
of
both
the
mining
process
and
the
1990
SW
MSGP
rulemaking 
EPA
requires
that
authorization
for
SW
discharges
be
pursuant
to
the
CGP
for
the
excavation
and
construction
mining
phase...
But
the
coverage
of
CGP
ends
there.
As
such,
an
operator
would
be
required
to
terminate
the
CGP
and
resume
activities
under
the
MSGP
for
industrial
activities
in
order
to
move
to
the
next
phase,

extraction.
However,
as
a
prerequisite
to
terminating
the
CGP,
the
site
must
be
finally
stabilized 
It
is
entirely
impractical
to
require
final
stabilization
of
the
disturbed
area
only
to
reapply
for
authorization
under
another
storm
water
permit...
Furthermore
EPA
suggests
that
mine
expansion
activities,
activities
that
would
essentially
mimic
those
impacts
resulting
from
Phase
I,
are
appropriately
covered
by
the
MSGP.
This
is
entirely
inconsistent
with
EPA's
decision
not
to
allow
Phase
I
activities
under
the
MSGP.
EPA
disagrees
with
the
commenter's
interpretation
that
the
CGP
essentially
requires
operators
to
terminate
CGP
coverage
and
stabilize
all
disturbed
areas
as
a
prerequisite
to
resuming
mining
extraction
activities
under
the
MSGP.

Nevertheless,
EPA
has
modified
the
applicable
section
of
the
notice
of
termination
("
NOT")
form
to
further
clarify
how
operators
may
terminate.
Where
the
mining
operator
intends
to
shift
from
the
exploration
and/
or
construction
phase
of
an
operation
to
active
mining,
the
operator
can
terminate
CGP
coverage
by
indicating
on
the
NOT
that
the
site's
storm
water
discharges
will
be
covered
by
another
NPDES
permit.
In
the
case
of
mining
operations
covered
under
Sector
G
of
the
MSGP,
transition
to
the
MSGP
would
qualify
as
adequate
termination
of
the
CGP­
covered
activities.
This
termination
through
change
in
permit
coverage
is
supported
by
section
5.2.
A.
2
of
the
CGP
which
enables
the
permittee
to
terminate
by
indicating
that
"...
coverage
under
an
alternative
NPDES
permit
has
been
obtained."
EPA
has
modified
the
NOT
form
to
make
termination
by
alternative
NPDES
permit
a
distinct
checkbox.
1066
1d
306
In
developing
the
proposed
revisions
to
the
CGP,
EPA
engaged
in
public
outreach 
but
at
no
time
did
this
outreach
extend
to
the
mining
industry
despite
contacts
from
NMA
staff
informing
EPA
staff
that
per
the
2000
revisions
to
the
MGGP
the
metal
mining
industry
would
be
required
to
obtain
CGPs
for
certain
phases
of
mining
activities.
(
Telephone
conversations
between
Karen
Bennett,
NMA,
and
Eric
Strassler
and
Wendy
Bell,
EPA)
As
a
result
of
EPA's
sole
focus
on
the
commercial
and
residential
building
construction
industry,
the
permit,
as
proposed
is
inappropriate
as
the
sole
permit
option
for
exploration
and
construction
activities
associated
with
mining
particularly
when
extraction
will
follow
such
activities.
Where
a
mining
operation
is
required
to
obtain
an
NPDES
storm
water
permit,

and
the
permit
covers
related
construction
activity
of
greater
than
1
acre,
in
addition
to
other
mining­
related
activities
(
e.
g.,
minerals
extraction,
exploration),

then
the
permittee
does
not
need
to
obtain
a
second
permit
covering
construction
activity
already
regulated
by
the
first
permit.
However,
if
the
permit
did
not
include
coverage
for
related
construction
activity,
then
coverage
under
the
CGP
is
appropriate
and
required.
See
also
response
to
comment
23.
1066
36
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
28
It
has
been
ABARTA's
experience
that
the
Best
Management
Practices
demanded
by
Pennsylvania's
Erosion
and
Sedimentation
Control
requirements
meet
or
exceed
current
Federal
regulations.
See
Response
to
Comment
Summary
4.
1012
1e
29
The
only
effect
of
this
requirement
 
meet
any
requirements
for
discharges
that
have
a
Total
Maximum
Daily
Load
 
appears
to
be
the
potential
for
additional
Notices
of
Violation
(
NOV)
through
double
or
triple
indemnity.
For
example,
if
a
contractor
fails
to
meet
TMDL
requirements,
he
may
be
issued
an
NOV
through
TMDL
regulations.
The
proposed
CGP
seems
to
mean
that
an
operator
could
additionally
be
cited
for
failures
to
comply
with
the
proposed
CGP,
the
proposed
C&
D
ELG
 
Construction
and
Development
Effluent
Limitation
Guideline
(
C&
D
ELG)
of
June
24,

2002
 ,
and
also
either
the
Phase
I
or
Phase
II
storm
water
rules,
all
for
the
same
violation.
This
is
not
a
legitimate
reason
to
include
a
TMDL
requirement
in
the
CGP.
While
non­
compliance
with
different
Rules
presents
risk
of
enforcement,
EPA
typically
employs
enforcement
discretion
regarding
levying
multiple
NOVs
for
the
same
action.
See,
also,
response
to
comment
472.
1058
1e
35
Overall,
the
draft
permit,
if
finalized
as
written,
is
likely
to
greatly
limit
the
use
of
the
general
permit
in
those
watersheds
with
impaired
waters...
NAHB
is
concerned
that
if
large
numbers
of
operators
are
put
into
the
individual
permit
realm
that
EPA
will
be
overwhelmed
with
permit
applications
and
would
not
have
the
manpower
to
issue
individual
permits
in
a
timely
manner,
which
would
significantly
delay
construction
projects.
Furthermore,
it
is
not
apparent
that
EPA
has
an
individual
permit
process
in
place
that
is
in
fact
appropriate
for
storm
water
dischargers.
EPA
believes
the
general
permit
is
still
the
best
option
for
acquiring
authorization
to
discharge.
This
comment
was
offered
in
the
context
of
discharges
to
impaired
water
bodies.
The
permit
does
not
automatically
exclude
from
general
permit
coverage
those
operators
whose
discharge
is
to
an
impaired
water
body.
The
operator
may
still
be
eligible
if
he/
she
can
certify
that
the
project's
SWPPP
has
been
adjusted
to
insure
the
discharge
is
consistent
with
the
allocations,

assumptions,
and
requirements
of
any
approved
TMDL.
1057
1e
121
How
are
operators
going
to
be
informed
about
the
new
regulations?
Is
there
a
plan
in
place
to
educate
operators
in
region
6
about
these
new
requirements?
The
Storm
Water
Phase
I
and
Phase
II
regulations
have
been
in
place
since
1990
and
1999,
respectively.
EPA
has
conducted
numerous
outreach
efforts
over
that
time
to
educate
stakeholders
on
the
details
of
the
regulations.
EPA
will
continue
to
perform
a
variety
of
outreach
efforts
to
educate
operators
that
are
eligible
for
coverage
under
the
CGP.
1054
37
Coverage
of
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Permit
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Response
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Topic
Summ.
ID
Summary
Response
Doc
ID
1e
125
Most
important
is
that
the
EPA's
proposed
Effluent
Limitation
Guidelines
(
ELGs)
and
New
Source
Performance
Standards
for
the
Construction
and
Development
Category
(
67
Federal
Register,
June
24,

2002),
includes
Option
2
that,
if
finalized,
would
in
essence
'
codify'
the
construction
general
permit.
We
only
have
to
look
at
Minnesota's
Phase
II
Stormwater
permits
for
both
the
MS4
and
Construction
to
see
that
they
are
likely
to
pattern
their
general
permit
after
EPA's.
Frankly,
the
proposed
general
construction
permit
will
have
an
impact
far
beyond
the
States
in
which
EPA
is
the
permitting
authority.
This
comment
appears
to
be
beyond
the
scope
of
this
action.
The
comment
does
not
suggest
changes
to
the
substance
of
the
CGP.
1068
1e
128
While
the
construction
general
permit
proposed
by
EPA
only
applies
to
five
states
and
the
District
of
Columbia,
the
contents
of
the
general
permit
have
far
reaching
implications
for
a
number
of
reasons,
the
most
important
of
which
is
EPA's
proposed
Effluent
Limitation
Guidelines
(
ELGs)
and
New
Source
Performance
Standards
for
the
Construction
and
Development
Category
(
67
Federal
Register,
June
24,

2002),
which
includes
Option
2
that,
if
finalized,
would
in
essence
'
codify'
the
construction
general
permit.
In
addition,
history
shows
that
the
States
are
likely
to
pattern
their
general
construction
permit
after
EPA's.

Thus,
the
outcome
of
the
proposed
general
construction
permit
has
an
impact
far
beyond
the
States
in
which
EPA
is
the
permitting
authority.
This
comment
appears
to
be
beyond
the
scope
of
this
action.
The
comment
does
not
suggest
changes
to
the
substance
of
the
CGP.
2001
1e
129
When
a
project
is
on
both
State
and
Indian
Country,

which
entity,
EPA,
ADEQ
or
both,
would
have
permitting
authority?
The
operator
is
responsible
for
obtaining
coverage
from
those
entities
responsible
for
permitting
of
actions
specific
to
that
construction
project.
If
the
action
occurs
on
State
and
Indian
land,
both
EPA
and
the
State
have
permitting
authority.
In
that
instance,
the
operator
must
obtain
permit
coverage
under
both
the
EPA
and
State
permit.
However,
both
these
NOIs
could
reference
a
single
SWPPP
that
addresses
the
concerns
of
both
permits.
1073
38
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
130
It
is
unclear
how
this
is
to
be
implemented
in
Indian
Country.
The
Federal
Register
publication
of
December
20,
2002
makes
it
very
clear
what
specific
States
and
Tribal
Nations
fall
under
each
EPA
Region's
jurisdiction,
but
makes
no
distinction
as
to
who
will
have
the
authority
to
implement
this
permit.

The
reason
that
this
is
an
issue
is
that
a
State­­

Colorado­­
for
example,
has
permitting
authority
over
non­
tribal
lands,
but
not
tribal
lands.
Are
we
to
assume
that
an
EPA
inspector
is
going
to
show
up
on
the
reservation
some
day
after
March
10,
2003
with
intentions
to
ensure
compliance?
If
so,
noncompliance
could
cause
significant
economic
damage
to
ongoing
projects.
EPA
is
the
NPDES
permitting
authority
for
all
Tribal
Nations
until
a
Tribe
submits
an
acceptable
plan
and
receives
authorization
from
EPA
to
administer
the
NPDES
permitting
program
on
those
lands.
Until
such
time,
EPA
is
responsible
for
all
NPDES­
related
activities.
1040
1e
131
As
with
a
lot
of
general
permits
that
have
been
issued
in
Indian
Country,
it
has
good
intentions,
but
can
be
misconstrued
by
Regional
implementation
strategies
that
differ
from
one
Region
to
the
next.
One
Region
may
be
very
active
in
enforcing
it,
and
another
may
take
a
"
hands
off"
approach.
Will
tribes
have
the
local
oversight?
EPA
has
oversight
of
the
NPDES
program
in
Indian
Country
and
as
such,
is
responsible
to
ensure
effective
implementation
and
enforcement
as
necessary.

At
this
time,
EPA
does
not
have
plans
for
tribal
oversight
of
the
permit.
The
NPDES
regulations
do
provide
for
State
401
Certification,
for
which
certain
Tribes
have
authority
to
require
additional
conditions
in
the
permit
to
address
applicable
water
quality
standards'
concerns.
1040
1e
132
I
am
requesting
that
implementation
of
these
regulations
be
suspended
for
the
Colville
Indian
Reservation
and
other
tribal
lands
located
off
of
the
reservation
until
such
time
as
EPA/
Tribal
consultation
can
take
place.
If
they
cannot
be
suspended,
I
request
that
they
be
adopted
on
an
interim
basis
only
pending
such
consultation.
While
I
fully
support
the
goal
of
these
regulations,
i.
e.,
protecting
water
quality,
the
method
in
which
they
are
being
adopted
is
unacceptable.
EPA
acknowledges
this
comment
and
has
worked
with
the
Colville
Indian
Reservation
to
meet
the
needs
of
the
Tribe.
1056
39
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
133
The
CGP
needs
to
provide
an
exclusion
provision
for
storm
water
associated
with
construction
activities
at
an
existing
site,
where
that
storm
water
is
collected
and
appropriately
treated
in
wastewater/
storm
water
treatment
systems
operating
under
a
NPDES
permit.

The
CGP
does
not
discuss
the
situation
where
construction
activities
are
conducted
within
an
area
covered
by
an
existing
storm
water
collection
and
treatment
system
operated
under
a
NPDES
permit.

Ideally,
these
construction
activities
would
not
require
consideration
for
permits
under
Phase
I
or
Phase
II
and
would
instead
be
explicitly
covered
by
the
facility's
wastewater/
storm
water
treatment
NPDES
permit.
The
CGP
generally
does
not
specify
who
must
obtain
coverage
under
this
permit;
rather,
it
identifies
who
is
eligible
to
obtain
coverage.
Construction
activities
covered
under
an
existing
individual
or
other
general
permit
would
not
need
to
obtain
coverage
under
this
CGP,
provided
that
those
storm
water
discharges
associated
with
construction
activity
were
covered
under
that
alternative
permit.
1002
1e
134
Where
the
specific
construction
activities
do
require
Phase
I
/
II
coverage,
the
CGP
should
include
two
provisions:
(
1)
a
new
exclusion
provision
under
section
1.4
and
Addendum
C;
the
exclusion
should
be
automatic
after
documenting
that
the
construction
area
is
covered
by
the
facility's
wastewater
collection
system,
that
the
runoff
is
comparable
to
other
waters
treated
by
the
wastewater
treatment
plant,
and
that
the
facility
is
operating
under
a
NPDES
permit;
and
(
2)
a
new
section
1.5
that
allows
the
same
permit
exclusion
for
large
construction
sites
under
the
same
circumstances.
See
response
to
comment
133.
1002
40
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
175.1
EPA
proposes
a
definition
of
"
discharge­
related
activities"
that
is
broadly
defined
to
include
not
only
soil
disturbing
activities
that
lead
to
storm
water
runoff,
but
also
"
site
development"
and
"
other
surface
disturbance
activities".
See
proposed
Permit
Part
10.
...
EPA
does
not
have
authority
under
the
CWA
to
regulate
activities,
such
as
site
plan
development
or
housing
densities,
which
do
not
result
in
discharges
of
storm
water
to
jurisdictional
waters.
For
this
reason,
we
urge
EPA
to
delete
this
definition
from
the
final
Permit.

...
EPA
has,
unfortunately,
used
the
concept
of
"
discharge­
related
activities"
in
Addendum
A
(
where
it
is
currently
undefined)
to
expand
the
scope
of
its
jurisdiction
over
residential
developments
in
Arizona
to
project
areas
outside
of
its
authority
to
control
under
the
CWA.
EPA
disagrees
with
the
commenter's
assertion
that
the
permit
is
attempting
to
regulate
activities
such
as
site
plan
development
or
housing
densities.
EPA
does
have
the
authority
to
regulate
storm
water
discharges
from
those
construction­
related
activities
as
defined.
1049
1e
175.2
For
example,
in
Arizona
EPA
has
interpreted
its
authority
under
the
construction
general
permit
to
require
developers
to
consult
under
Section
7
of
the
ESA,
pursuant
to
the
Addendum
A
procedure,
in
regard
to
the
affect
of
construction
activity
on
critical
habitat
for
the
endangered
Cactus
Ferruginous
Pygmy
Owl
(
CFPO)
even
where
the
discharge
of
storm
water
would
have
no
effect
on
the
CFPO.
...
In
sum,
the
definition
of
"
discharge­
related
activity"
should
reflect
the
principle
that
the
ESA
does
not
provide
EPA
with
an
independent
source
of
jurisdiction.
American
Forest
&
Paper
Ass'n
v.
EPA,
137
F.
3d
291
(
5t"
Cir.
1998).

The
ESA
does
not
serve
as
"
a
font
of
new
authority"

and
EPA
should
not
invoke
the
ESA
"
as
a
means
of
creating
and
imposing
requirements
that
are
not
authorized
by
the
CWA."
Id.
at
299.
1049
41
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
179
If
EPA
refuses
to
remove
the
term
"
discharge­
related
activities,"
it
should
amend
the
definition
to
more
closely
reflect
its
true
meaning.
While
on
its
face
EPA's
definition
appears
only
to
encompass
those
activities
included
in
the
definition
of
"
discharge
of
stormwater
associated
with
construction
activity"
(

soildisturbing
activities),
some
Regions
have
used
the
"
discharge­
related
activities"
concept
to
expand
the
original
scope
of
the
program.
This
is
done
by
assuming
broadly
that
all
site
activities
are
interrelated
and
thus
are
either
directly
or
indirectly
"

dischargerelated
This
is
an
inappropriate
expansion
of
the
CWA
mandate
to
regulate
only
those
stormwater
discharges
"
associated
with
industrial
activity"
(
which
includes
soil­
disturbing
construction
activities)
but
not
all
discharges
(
including,
e.
g.,
administrative
areas).

EPA
must
state
clearly
that
it
is
regulating
only
those
activities
defined
under
"
discharge
of
stormwater
associated
with
construction
activity"
and
that
ESA
or
NHPA
eligibility
certifications
reflect
only
the
eligibility
analyses
related
to
those
activities.
EPA
acknowledges
the
commenter's
statement
but
disagrees
that
use
of
this
term
has
expanded
the
scope
of
the
program.
This
permit,
as
written,
regulates
discharges
associated
with
industrial
activity
(
for
large
construction)
and
small
construction
activities.

See,
also,
response
to
comment
236.
1071
1e
196
[
T]
he
delay
in
providing
the
states
a
model
EPA
general
permit
for
areas
over
which
they
are
the
permitting
authority
further
aggravates
the
difficulties
in
meeting
the
March
10,
2003
deadline.
It
should
be
made
clear
that
states
also
have
the
authority
to
delay
the
NOI
deadline
for
permits
under
their
jurisdiction.
States
have
flexibility
in
how
they
administer
their
permit
programs
for
storm
water
discharges.
There
is
no
absolute
requirement
that
a
general
permit
be
used.
Any
state
may
exercise
its
discretion
to
employ
individual
permits
for
any
storm
water
discharge
covered
under
the
regulations.
Generally,
if
a
state
chooses
to
develop
a
CGP,
EPA
believes
they
may
model
their
own
NOI
provisions
after
the
Agency's.
1002
1e
294
Section
2.2.
E.,
Late
Notification:
Operators
will
not
be
inclined
to
submit
a
late
notification
if
they
fear
receiving
an
enforcement
action.
Elimination
of
enforcement
action
for
"
reasonable"
(
at
least
30
days)

late
notifications
would
encourage
operators
to
comply
with
the
regulations.
Enforcement
actions
are
at
the
discretion
of
EPA
and
are
not
mandatory
for
each
violation.
The
Agency
does
take
into
account
the
reasonableness
of
a
violator's
action
when
determining
an
appropriate
enforcement
response.

However,
significant
discharges
of
sediment
can
occur
during
the
initial
days
of
a
construction
project,
making
the
need
to
have
a
SWPPP
in
place
an
operational
critical
for
the
protection
of
water
resources.
1028
and
1024
42
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
298
Notices
of
Intent
(
NOIs)
need
to
be
sent
to
the
storm
water
coordinator
in
every
U.
S.
EPA
regional
office
as
well
as
to
U.
S.
EPA
headquarters,
need
to
be
posted
immediately
to
a
searchable
public
docket
(
i.
e.,
as
are
proposed
federal
regulations),
and
need
to
be
noticed
in
some
other
effective
way
to
the
affected
community
(
such
as
a
publication
notice
in
a
newspaper
of
general
circulation).
See
response
to
comment
303.
1065
1e
299
Will
the
Environmental
Protection
Agency
(
EPA's)
and
the
Arizona
Department
of
Environmental
Quality
(
ADEQ)
Notice
of
Intent
(
NOI)
and
Notice
of
Termination
(
NOT)
be
the
same
or
will
ADEQ
customize
theirs
for
local
conditions?
This
comment
is
not
applicable
to
EPA's
CGP.
EPA
did
not
model
this
CGP,

the
NOI,
or
NOT
after
Arizona's
permit.
1073
1e
300
Regarding
the
Notice
of
Intent,
If
the
NOI
is
not
complete
and
accurate,
how
long
will
it
take
for
EPA
to
respond
that
the
NOI
is
not
complete
and
accurate?

Does
this
mean
that
construction
must
cease
until
the
NOI
is
resubmitted
again
with
the
corrected
information?
ADOT's
concern
is
that
the
project
has
been
awarded
to
the
contractor
and
he
will
be
waiting
to
re­
initiate
construction
activities
and
charging
time
to
the
project.
EPA
processes
NOIs
as
received
at
the
NOI
Processing
Center.
EPA
expects
the
form
to
be
complete
and
accurate
upon
submission,
with
coverage
not
commencing
until
such
time.
The
simplicity
of
these
forms,
coupled
with
the
fact
that
the
form
must
be
signed
and
certified
by
an
authorized
representative
should
further
ensure
that
the
form
is
complete
and
accurate
upon
submission.

As
appropriate,
construction
operators
may
choose
to
submit
the
NOI
well
in
advance
of
the
actual
commencement
of
construction
to
ensure
that
the
NOI
filed
was
in
fact,
complete
and
accurate.
EPA
expects
to
process
NOIs
within
a
few
days
after
receipt
by
the
Notice
Processing
Center.
1073
1e
302
It
is
recommended
that
the
address
where
the
NOIs
to
be
submitted
be
changed
to
EPA
Regional
Office
addresses.
EPA
disagrees
with
the
commenters
assertion
that
NOIs
be
submitted
to
the
Regional
Office
addresses.
EPA
maintains
a
contractor­
operated
NOI
Processing
Center
that
streamlines
the
process
of
reviewing
and
tracking
NOIs
for
all
areas
for
which
EPA
is
the
permitting
authority.
EPA
Headquarters
provides
reports
to
the
Regions
regularly
with
a
compilation
of
all
NOI
submissions.
1025
1e
303
Where
to
submit:
Notices
of
Intent
(
NOIs)
need
to
be
sent
to
the
stormwater
coordinator
in
every
U.
S.
EPA
regional
office
as
well
as
to
U.
S.
EPA
Headquarters,

need
to
be
posted
immediately
to
a
searchable
public
docket
(
i.
e.,
as
are
proposed
federal
regulations),
and
need
to
be
noticed
in
some
other
effective
way
to
the
affected
community
(
such
as
a
publication
notice
in
a
newspaper
of
general
circulation).
EPA
disagrees
with
the
commenters
assertion
that
NOIs
need
to
be
sent
to
all
Regional
coordinators,
posted
immediately
into
a
searchable
public
docket,
and
public
noticed.
NOIs
are
sent
to
EPA
Headquarters,
where
they
are
processed,

entered
into
a
database
and
then
distributed
to
the
Regions
on
a
regular
basis.

EPA
has
plans
to
develop
an
online
search
engine
for
the
public
to
be
able
to
review
all
NOI
submissions
but
disagrees
that
the
NOIs
need
to
be
public
noticed.
EPA's
NPDES
regulations
call
for
the
draft
permit
to
be
noticed
but
not
individual
NOIs.
2002
43
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1e
418
Will
Tribes
have
the
opportunity
to
obtain
credentials
for
inspections
on
their
own
lands?
Until
authorized
by
EPA,
Tribes
do
not
have
the
authority
to
administer
the
NPDES
Program.
As
such,
Tribes
do
not
have
the
opportunity
to
obtain
credentials
for
conducting
compliance
inspections
under
the
NPDES
Program.

In
certain
instances,
Tribes
may
have
authority
under
Section
401
of
the
CWA
or
other
authorities
to
require
additional
controls
to
ensure
compliance
with
water
quality
standards.
1040
1e
420
We
are
also
concerned
that
the
Reservation
will
rarely
see
an
EPA
inspector
because
of
the
remoteness
to
EPA
Region
10
Headquarters.
The
Tribe
would
like
to
have
its
employees
receive
training
to
become
EPA
Certified
Storm
Water
Inspectors.
EPA
acknowledges
the
commenters
concerns;
however,
at
present,
EPA
has
no
plans
to
train
tribal
employees
to
become
EPA
Certified
inspectors.
This
comment
is
outside
the
scope
of
this
action.
1051
1f
117.1
First,
in
section
1.3.
B
the
"
allowed
non­
storm
water
discharges"
for
construction
sites
are
listed.
Second,

section
1.3.
C
requires
that
the
BMPs
must
be
adequate
to
sufficiently
meet
water
quality
standards
and
the
SWPPP
must
be
"
consistent
with
the
assumptions
and
requirements
in
the
approved
TMDL".
And
third,
section
3.5
specifies
that
non­
storm
water
discharges
for
each
site
"
should
be
eliminated
or
reduced
to
the
extent
feasible".
This
regulation
framework
sets
extremely
stringent
pollutant
retention
and
removal
standards
for
allowed
non­
storm
water
discharges.
And,
these
standards
for
BMPs
are
set
regardless
of
whether
there
are
established
existing
(
as
in
a
TMDL
allocation)
or
anticipated
impacts
for
the
pollutants
generated.
EPA
disagrees
with
the
commenter's
assertion
that
the
permit
sets
extremely
stringent
pollutant
retention
and
removal
standards
for
allowed
non­
storm
water
discharges.
EPA
believes
that
these
allowed
non­
storm
water
discharges
are
likely
to
contain
the
same
types
of
pollutants
as
allowable
storm
water
discharges
and
as
such,
should
be
treated
as
such.
EPA
has
included
these
allowable
non­
storm
water
discharges
in
the
CGP
in
lieu
of
operators
having
to
obtain
a
second
non­
storm
water
permit
for
those
point
source
discharges
of
pollutants.
EPA
disagrees
with
the
commenters
request
to
add
a
clarifying
definition
for
"
harmful
quantity."
The
Clean
Water
Act
requires
EPA
to
include
limitations
necessary
to
meet
water
quality
standards.
"
Harmful
quantities"
is
not
a
term
with
precedence.
EPA
believes
it
would
be
difficult
to
interpret
and
apply.
Second,
EPA
does
not
agree
with
the
commenters
request
to
delete
the
phrase
"
Non­
stormwater
discharges
should
be
eliminated
or
reduced
to
the
extent
feasible."
The
Agency
believes
that
as
with
all
types
of
discharges,
operators
should
be
looking
for
ways
to
reduce
or
eliminate
those
discharges
and
as
such,
h
1052
44
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1f
117.2
...
we
recommend
the
following
changes:
(
1)
Include
a
clarifying
definition
in
section
10
of
the
general
permit;

and,
(
2)
Retain
site­
specific
flexibility
in
determining
the
"
most
appropriate
BMPs"
while
including
a
specific
reference
to
the
prohibition
of
discharges
of
"
harmful
quantities"
for
allowed
non­
storm
water
discharges
(
see
strike­
threw
bold
text
below
for
section
3.5).
(
1)

Additional
Definition
(
Section
10):
X.
Harmful
quantity.

The
amount
of
any
substance
that
will
exceed
an
established
TMDL
wasteload
allocation
that
applies
to
the
discharge;
or,
that
will
cause
a
violation
of
the
state
water
quality
standards
within
waters
in
the
State,

Waters
of
the
United
States.
(
2)
Most
appropriate
BMPs
to
Prevent
Harmful
Quantities:
3.5
Non­
Storm
Water
Discharge
Management:
The
SWPPP
must
identify
all
allowable
sources
of
non­
storm
water
discharges
listed
in
subpart
1.3.
B
of
this
permit
that
are
combined
with
storm
water
discharges
associated
with
construction
activity
at
the
site,
except
for
flow
from
fire
fighting
activities.
1052
1f
117.3
[
stikethrough]
Non­
stormwater
discharges
should
be
eliminated
or
deduced
to
the
extent
feasible.
The
SWPPP
must
identify
and
ensure
the
implementation
of
the
most
appropriate
pollution
prevention
measures
for
the
non­
storm
water
component(
s)
of
the
discharge
[
Bold]
so
that
harmful
quantities
are
not
delivered
to
waters
of
the
United
States.
1052
1f
332
Part
1.3.
B:
In
arid
and
semi­
arid
regions,
it
is
often
necessary
to
apply
potable
water
to
seeded
areas
to
ensure
the
establishment
of
a
vegetative
cover
sufficient
to
achieve
final
stabilization.
Application
of
water
for
irrigation
of
vegetated
areas
should
be
added
to
the
list
of
allowable
non­
storm
water
discharges
EPA
agrees
with
the
commenter
and
has
modified
the
definition
of
allowable
non­
storm
water
discharges
to
include
landscape
irrigation.
1077
45
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1f
359
Retain
site­
specific
flexibility
in
determining
the
'
most
appropriate
BMPs'
while
including
a
specific
reference
to
the
prohibition
of
discharges
of
'
harmful
quantities'

for
allowed
non­
storm
water
discharges.
[
suggested
new
text
for
section
3.5]
The
SWPPP
must
identify
all
allowable
sources
of
non­
storm
water
discharges
listed
in
subpart
1.3.
B
of
this
permit
that
are
combined
with
storm
water
discharges
associated
with
construction
activity
at
the
site,
except
for
flow
from
fire
fighting
activities.
The
SWPPP
must
identify
and
ensure
the
implementation
of
the
most
appropriate
pollution
prevention
measures
for
the
non­
storm
water
component(
s)
of
the
discharge
so
that
harmful
quantities
are
not
delivered
to
waters
of
the
United
States.
EPA
is
not
sure
specifically
what
the
commenter's
concern
is
with
Part
3.5
(
Non­

Storm
Water
Discharge
Management).
If
the
commenter
thinks
that
EPA
should
provide
construction
operators
with
more
flexibility
in
choosing
specific
BMPs,
EPA
emphasizes
that
the
CGP
already
provides
operators
with
control
over
the
design
and
selection
of
their
suite
of
BMPs.

The
Clean
Water
Act
requires
EPA
to
include
limitations
necessary
to
meet
water
quality
standards.
"
Harmful
quantities"
is
not
a
term
with
precedence.

EPA
believes
it
would
be
difficult
to
interpret
and
apply.
1032
1g
62
EPA
should
also
clarify
in
the
permit
that
replacement
of
existing
structures
with
the
same
structure
is
considered
a
maintenance
activity
if
no
new
land
is
disturbed
(
e.
g.,
replacement
of
a
six
inch
pipeline
with
a
similar
pipeline
in
the
original
construction
right­

ofway
EPA
disagrees
with
the
commenters
assertion.
Routine
maintenance
activities
are
not
considered
to
require
permit
coverage.
However,
that
determination
is
not
based
on
a
comparison
of
existing
and
new
uses
of
that
land.
In
fact,

replacement
of
a
pipeline
is
likely
to
require
permit
coverage
if
that
activity
disturbs
more
than
one
acre.
1006
1g
63
EPA
should
also
clarify
in
the
permit
that
replacement
of
existing
structures
with
the
same
structure
is
considered
a
maintenance
activity
if
no
new
land
is
disturbed
(
e.
g.,
replacement
of
a
six
inch
pipeline
with
a
similar
pipeline
in
the
original
construction
right­

ofway
See
response
to
comment
62.
1002
46
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1g
65
Section
1.3
C.:
In
the
definition
of
small
construction
activity,
EPA
does
not
include
routine
maintenance
that
is
performed
to
maintain
the
original
line
and
grade,
hydraulic
capacity,
or
original
purpose
of
the
facility.
The
statement
should
be
included
in
the
definition
of
large
construction
activities.
In
addition,

Section
IX
of
the
fact
sheet
provides
examples
of
what
types
of
routine
earth
disturbing
activities
EPA
considers
part
of
normal
day­
to­
day
operations,
long
term
use
and
maintenance
of
the
site
and
what
types
of
earth
disturbance
is
a
normal
part
of
the
postconstruction
use
of
the
site.
EPA
has
clarified
this
issue
well
and
we
request
EPA
include
this
information
in
the
definition
of
large
and
small
constructions
activities
in
the
CGP.
EPA
agrees
with
the
commenter
and
has
modified
the
permit
to
indicate
that
routine
maintenance
and
other
normal
day­
to­
day
operations
do
not
require
permit
coverage
as
construction
activities.
1028
and
1024
1g
137
Adding
a
list
of
examples
of
routine
maintenance
to
the
CGP
(
replacement
of
existing
utility
poles,
type
of
landscaping,
capping
landfills,
types
of
roadway
reconstruction,
etc.)
would
be
most
beneficial
for
the
Applicants
to
determine
if
they
need
to
submit
an
NOI.
EPA
has
included
examples
of
routine
maintenance
in
the
fact
sheet.
1031
1g
167
Part
10,
Small
Construction
Activities:
EPA
states
that
small
construction
activity
does
not
include
routine
maintenance
that
is
performed
to
maintain
the
original
line
and
grade,
hydraulic
capacity,
or
original
purpose
of
the
facility.
The
statement
should
be
included
in
the
definition
of
large
constructions
activities
as
well.
EPA
has
clarified
that
such
routine
maintenance
for
large
construction
is
also
excluded
from
permit
coverage.
1024
and
1028
1g
169
Fact
sheet­
Section
IX,
What
types
of
constructions
activities
may
need
a
storm
water
permit?:
EPA
provides
examples
of
what
types
of
routine
earth
disturbing
activities
that
are
considered
part
of
normal
day­
to­
day
operations.
EPA
has
clarified
this
issue
well,
and
we
request
EPA
include
this
information
in
the
definition
of
large
and
small
constructions
activities.
EPA
agrees
with
the
commenter
that
the
permit
should
include
some
examples
of
the
types
of
routine
earth
disturbing
activities
that
are
considered
part
of
normal
day­
to­
day
operations.
This
is
included
in
the
definition
of
large
and
small
construction.
1028
and
1024
47
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1g
170
Section
IX,
What
if
earth
disturbance
is
a
normal
part
of
the
post­
construction
use
of
the
site?:
EPA
provides
examples
of
earth
disturbance
that
is
a
normal
part
of
the
long­
term
use
or
maintenance
of
the
property
and
is
not
covered
by
the
construction
general
permit.

Again,
EPA
has
clarified
this
issue
well
and
we
request
EPA
include
this
information
in
the
definition
of
large
and
small
constructions
activities.
EPA
provides
a
detailed
description
in
the
fact
sheet
of
options
for
meeting
the
final
stabilization
criteria.
In
certain
instances,
such
as
when
the
intended
purpose
would
require
it
to
remain
in
a
non­
vegetative
state
(
e.
g.,
a
road,
or
parking
lot),
the
construction
of
that
structure
(
i.
e.,
the
road
or
parking
lot)

suffices
as
meeting
final
stabilization.
1028
and
1024
1g
171
The
definition
of
"
Large
Construction
Activity"
in
Part
10
of
the
proposed
General
Permit
(
page
38)
should
be
revised
by
adding
the
following
text
at
the
end
of
the
definition:
"
Large
construction
activity
does
not
include
routine
maintenance
that
is
performed
to
maintain
the
original
line
and
grade,
hydraulic
capacity,
of
original
purpose
of
the
facility."
EPA
agrees.
The
permit
has
been
revised
as
requested.
1045
1g
183
In
the
proposed
Fact
Sheet,
EPA
stated
that
"
construction"
does
not
include
routine
earth
disturbing
activities
that
are
part
of
the
normal
day­
to­
day
operation
of
a
completed
facility."
EPA
supports
this
distinction
in
the
Fact
Sheet
and
believes
that
it
should
be
included
in
the
permit
language
in
section
10
of
the
proposed
CGP
(
definitions).
EPA
agrees
with
the
commenter
and
has
modified
the
permit
and
fact
sheet
to
include
routine
maintenance
in
the
definition
of
large
construction.
1061
1h
120
The
proposed
CGP
includes
similar
provisions
for
water
quality,
endangered
species,
and
historic
preservations
that
are
the
subject
of
litigation
(
FWC
challenge
regarding
MSGP).
Therefore
NMA
recommends
the
agency
resolve
those
issues 

before
finalizing
the
CGP.
See
response
to
comment
126.
1066
48
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1h
126
The
Coalition
has
a
unique
interest
in
the
CGP,

particularly
as
it
relates
to
conditions
that
are
also
contained
in
EPA's
multi­
sector
general
stormwater
permit
for
industrial
activity
("
MSGP").
The
Coalition
challenged
EPA's
MSGP
in
federal
court,
as
did
one
of
the
Coalition's
members,
the
Utility
Water
Act
Group
(
UWAG).
The
Coalition
and
UWAG
are
currently
engaged
in
discussions
with
Agency
staff,
in
an
attempt
to
resolve
our
concerns
about
provisions
in
that
permit,
including
those
related
to
water
quality,

endangered
species
and
historic
preservation.
Since
those
issues
are
also
addressed
in
the
proposed
CGP,
EPA
should
resolve
all
of
the
issues
associated
with
the
MSGP
litigation
before
finalizing
the
CGP,

and
it
should
incorporate
any
final
resolution
of
those
issues
from
the
MSGP
lawsuit
into
the
final
CGP,
in
order
to
maintain
consistency
throughout
EPA's
general
permitting
scheme.
EPA
acknowledges
the
commenters
concerns
and
will
consider
those
issues
that
overlap
with
the
MSGP.
The
Agency
does
believe
that
a
number
of
"
similar"
issues
are
in
fact
different
enough
between
the
CGP
and
MSGP
that
issuance
of
the
CGP
need
not
determine
the
language
in
the
MSGP.
1071
1h
136
NRDC
opposes
having
the
authorization
to
discharge
be
effective
upon
the
postmark
date
of
the
notice
of
intent
(
NOI).
The
permit
should
become
effective
only
after
the
NOI
and
SWPPP
are
approved
by
the
permitting
authority
and
the
public
has
had
an
opportunity
to
review
and,
if
necessary,
request
a
hearing
or
an
opportunity
to
comment
upon
the
project
proposed
to
be
permitted.
The
public
needs
sufficient
opportunity
to
make
such
a
request.
Some
states
allow
10
days
for
public
comment.
EPA's
CGP
is
consistent
with
Federal
regulations
for
general
permits
at
122.28.

The
CGP,
as
written,
is
designed
to
ensure
that
construction
activities
are
consistent
with
the
Clean
Water
Act.
Failure
to
comply
with
permit
conditions
are
enforceable
violations
of
the
permit.
EPA
does
not
believe
that
the
additional
resource
burden
associated
with
public
review,
hearings,
and
responses
to
comments
will
further
attain
the
goals
of
the
Clean
Water
Act.
These
additional
steps
may,
in
fact,
provide
a
forum
for
the
delay
of
construction
projects
for
reasons
unrelated
to
storm
water
discharges
associated
with
construction
activity.
EPA
notes,
however,
that
the
authorization
to
discharge
is
no
longer
triggered
upon
the
postmark
date
of
the
NOI.
The
CGP
now
authorizes
discharges
only
after
a
seven­
day
waiting
period.
The
seven
days
begins
after
acknowledgment
of
receipt
of
the
operator's
complete
NOI
is
posted
on
EPA's
NPDES
website.
See,
also,
response
to
comment
404.
1065
and
2002
49
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1h
139.1
Assurances
are
needed
that
eligibility
is
not
affected
by
new
TMDLs,
new
endangered
species
listings,
or
changes
in
historic
preservation
status.
NAHB
urges
EPA
to
modify
the
draft
permit
by
stating
that
eligibility
is
not
affected
during
the
life
of
the
permit
if
the
above
conditions
change.
Indeed
permittees
must
be
responsible
for
complying
with
the
permit
as
it
exists
at
the
time
of
application
and
must
not
be
expected
to
constantly
change
to
hit
a
moving
target.
EPA
understands
the
commenters
concerns
and
has
modified
the
permit
to
reflect
that
the
operator
must
ensure
compliance
with
appropriate
TMDL,
ESA,

and
NHPA
provisions
as
part
of
the
initial
eligibility
determination;
however,
the
operator
is
generally
not
responsible
for
continuing
to
evaluate
eligibility
with
changing
conditions
over
the
life
of
permit
coverage.
The
permit
does
include
provisions
that
the
permitting
authority
may
notify
the
permittee
in
writing
of
recent
eligibility
conditions
and
specify
a
timeframe
for
the
permittee
to
modify
its
SWPPP
to
comply
with
those
provisions.
For
example,
a
TMDL
developed
for
an
impaired
water
body
may
determine
construction
activity
is
a
significant
contributor
of
pollutants
of
concern
and
determine
that
additional
controls
are
necessary
for
new
as
well
as
existing
permittees.
Similarly,
FWS
may
identify
an
endangered
species
located
in
proximity
to
the
project
area
and
determine
that
immediate
controls
are
necessary
to
adequately
protect
such
species.
1057
1h
139.2
In
those
instances,
if
the
operator
has
already
been
authorized
to
discharge
under
the
CGP,
EPA
will
notify
the
permittee
of
the
change
in
conditions
and
specify
a
timeframe
for
addressing
the
new
concerns.
Additionally,
at
any
time,

EPA
may
require
a
person
covered
by
the
CGP
to
apply
for
and/
or
obtain
either
an
individual
NPDES
permit
or
an
alternative
NPDES
general
permit.
1057
1h
186
The
requirement
to
have
an
operator
of
an
ongoing
project
submit
a
NOI
by
March
10,
2003
is
unreasonable.
Since
EPA
proposed
the
permit
later
than
expected,
and
will
finalize
it
later
than
the
December
8,
2002
deadline,
operators
should
not
be
penalized
for
EPA's
delays.
Operators
should
be
allowed
at
least
90
days
from
the
day
the
general
permit
is
finalized
to
file
a
NOI.
EPA
has
revised
the
CGP
to
allow
operators
of
ongoing
projects
90
days
to
file
the
NOI.
1028
and
1024
1h
187
The
requirement
to
submit
NOIs
by
March
10,
2003
does
not
allow
industry
sufficient
time
to
gather
data,

complete
ESA
reviews,
complete
Historic
Preservation
reviews,
and
ensure
that
all
appropriate
personnel
are
trained
and
familiar
with
the
new
conditions
in
the
Phase
II
permit.
EPA
has
revised
the
CGP
to
allow
operators
90
days
to
file
the
NOI.
1006
50
Coverage
of
General
Permit
Commment
Response
New
Topic
Summ.
ID
Summary
Response
Doc
ID
1h
188
The
deadline
should
be
extended
to
a
date
90
days
following
promulgation
of
a
final
CGP
in
both
the
CGP
and
40CFR122.26(
e)(
8) 
The
requirement
to
submit
NOIs
by
March
10,
2003
does
not
allow
industry
sufficient
time
to
gather
data,
complete
ESA
and
Historic
Preservation
reviews,
and
ensure
that
all
appropriate
personnel
are
familiar
with
the
new
conditions
in
the
Phase
II
permit.
EPA
has
revised
the
CGP
to
allow
operators
90
days
to
file
the
NOI.
1002
1h
191
This
requirement
 
Submission
deadlines
for
Small
Construction
of
Ongoing
Projects
...
should
be
changed
to
state
that:
NOI
be
submitted
on
or
after
the
effective
date
of
the
permit.
Small
construction
projects
which
are
ongoing
as
of
the
effective
date
or
date
of
issuance
of
the
CGP
have
different
NOI
submission
deadlines
than
new
projects.
Subpart
2.3.
C
stipulates
that
if
the
operator
previously
did
not
receive
authorization
to
discharge
for
your
project
under
the
1998
CGP
and
wishes
to
obtain
coverage
under
this
CGP,
the
NOI
must
be
submitted
within
90
days
of
the
issuance
date
of
the
permit,
and
until
authorized,
the
operator
must
comply
with
an
interim
Storm
Water
Pollution
Prevention
Plan
(
SWPPP)
consistent
with
the
1998
CGP.
1025
1h
192
After
having
reviewed
several
state
General
Permits
for
small
construction
projects
and
reviewing
the
proposed
EPA
General
Permit
for
small
construction
projects,
AGA
is
concerned
with
conflicting
requirements
under
the
state
and
EPA
permits.
...
In
recognition
of
the
large
number
of
NOI's
that
will
be
required
after
March
10,
2003,
AGA
recommends
that
full
implementation
of
requirements
for
small
construction
projects
should
be
extended
until
at
best
June
10,
2003
and
possibly
longer.

EPA
disagrees
with
the
commenter's
suggestion
that
the
NOI
submission
deadline
be
delayed
uniformly
for
small
construction
projects.
On
the
other
hand,
EPA
agrees
that
some
flexibility
is
warranted
for
ongoing,
unpermitted
projects
as
of
the
effective
date
of
the
permit,
and
the
CGP
has
been
modified
to
provide
operators
of
such
projects
90
days
to
submit
the
NOI.
See
response
to
comment
191.
1045
1h
193
Are
we
[
Ute
Tribe]
to
assume
that
an
EPA
inspector
is
going
to
show
up
on
the
reservation
some
day
after
March
10,
2003
with
intentions
to
ensure
compliance?

...
Do
we
need
to
scramble
to
get
a
SWPPP
and
NOI
together
before
something
like
that
may
happen?
This
is
very
short
notice
for
the
preparation
of
a
comprehensive
document
like
this
permit
requires.
See
responses
to
comments
191
and
192.

51
