Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12a
283
The
language
in
the
Fact
Sheet
(
p.
14)
confirming
that
TMDL
assumptions
and
requirements
incorporated
into
a
SWPPP
are
enforceable
permit
conditions
should
be
included
in
the
permit
itself,
as
well
as
in
the
fact
sheet.
EPA
explains
that
any
requirement
of
the
permit
is
an
enforceable
permit
condition.
1065
12a
355
The
SWPPP
should
identify
the
BMPs
and
any
other
mechanisms
by
which
discharges
from
the
site
will
be
reduced
so
as
to
comply
with
water
quality
standards
and
any
applicable
TMDL
wasteload
allocation.
Once
the
SWPPP
has
been
approved
by
the
permitting
authority,
its
terms,
including
the
BMPs
identified
in
the
SWPPP,
should
become
enforceable
terms
of
the
permit.
EPA
clarifies
that
the
SWPPP
is
required
to
first
identify
the
pollutants
of
concern
and
their
on­
site
sources,
and
then
develop
BMPs
to
control
pollutants
from
those
sources
to
a
level
to
protect
water
quality.
EPA
believes
this
addresses
your
first
concern.

EPA
further
clarifies
that
EPA
does
not
review
all
SWPPPs.
EPA
does
not
approve
SWPPPs.
EPA
may
review
and
comment
on
SWPPPs
as
a
component
of
compliance
activity.
EPA
may
require
updates
and
amendments
to
SWPPPs.

EPA
also
clarifies
that
the
SWPPP,
and
all
components,
are
enforceable
terms
of
the
permit.
Failure
to
include
appropriate
measures
in
the
SWPPP
will
not
provide
an
operator
a
defense
when
inadequate
BMPs
fail
to
protect
water
quality.
1065
12a
440
The
most
troubling
compliance
issues
surround
the
requirement
to
design
each
construction
site
so
that
1)

water
quality
standards
are
met,
and
2)
the
assumptions
of
a
Total
Maximum
Daily
Load
are
met.

As
written,
it
is
unclear
how
an
engineer
would
design
Best
Management
Practices
to
meet
this
requirement
and
how
compliance
would
be
demonstrated.
EPA
must
revise
the
proposal
to
explain
to
the
public
how
to
comply
with
this
requirement
and
must
make
compliance
possible.
To
do
so,
I
encourage
the
agency
to
delete
this
language
and
continue
to
rely
on
Best
Professional
Judgment.
EPA
is
obligated
to
include
effluent
limitations
that
are
consistent
with
1)

attaining
water
quality
standards,
and
2)
the
assumptions
of
any
available
wasteload
allocations
Total
Maximum
Daily
Loads,
for
any
discharge
authorized
under
a
NPDES
permit.
Although
the
specific
phrasing
may
differ
a
little
from
permit
to
permit,
these
requirements
have
been
in
prior
general
permits
as
well.

See
response
to
comment
483.
1068
1
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12a
443.1
I
note
also
that
the
general
permit
does
not
even
clearly
state
that
discharges
that
are
not
consistent
with
the
wasteload
allocation
of
a
TMDL
for
sediment
(
or
a
parameter
that
addresses
sediment)
are
not
authorized
under
the
permit.
In
other
words,
it
is
not
merely
that
the
SWPPP
must
be
certified
as
consistent
with
the
TMDL.
The
discharges
themselves
must
be
consistent
with
the
wasteload
allocation
of
any
applicable
TMDL
to
be
authorized
under
an
NPDES
permit.
The
permit
should
also
require
that
the
SWPPP
be
consistent
with
any
implementation
plan
developed
for
a
TMDL
and
should
state
that
discharges
that
are
not
consistent
with
that
implementation
plan
are
not
authorized
under
the
permit.
The
language
in
the
Fact
Sheet
(
p.
14)

confirming
that
TMDL
assumptions
and
requirements
incorporated
into
a
SWPPP
are
enforceable
permit
conditions
should
be
included
in
the
permit
itself,
as
well
as
in
the
fact
sheet.
See
response
to
comment
485.

EPA
believes
that
in
some
cases,
individual
permits
may
be
necessary
to
adequately
implement
TMDLs
and
the
assumptions
and
requirements
in
available
wasteload
allocations.
However,
EPA
believes
that
for
most
storm
water
discharges
the
allocations
of
a
well­
crafted
TMDL
can
be
easily
incorporated
by
reference
into
discharge
requirements
under
a
general
permit.

EPA
notes
that
all
permit
requirements
are
enforceable.
2002
12a
443.2
Finally,
while
NRDC
believes
that
an
individual
permit
is
necessary
and
that
a
general
permitting
mechanism
is
inadequate,
in
any
case,
the
permitting
authority
would
be
required
to
confirm
that
the
SWPPP
is
consistent
with
the
TMDL
and
any
implementation
plan
before
the
permit
could
legally
authorize
any
discharges.
2002
12a
474
It
is
unclear
to
the
public
what
it
means
to
"
certify
consistency"
[
referring
to
Limitations
on
Coverage,

Item
5]
with
the
assumptions
and
requirements
of
the
approved
TMDL.
EPA
attempted
to
clarify
this
issue
in
the
draft
fact
sheet,
but
the
discussion
there
is
also
inadequate.
Because
TMDLs
are
customized
for
individual
water
bodies
the
solutions
that
are
crafted
to
meet
the
water
quality
impairments
vary
widely.
It
is
not
possible,

or
necessary,
to
anticipate
in
the
general
permit
the
various
forms
that
a
wasteload
allocation
may
take.
EPA
has
chosen
permit
language
that
is
deliberately
general,
simply
requiring
"
consistency"
with
the
TMDL
wasteload
allocations,
assumptions
and
requirements,
in
order
to
account
for
the
wide
variety
of
ways
in
which
a
TMDL
may
specify
discharge­
related
outcomes.
EPA
has
provided
a
mechanism,
via
the
EPA
storm
water
website,
for
operators
to
obtain
clarification
from
the
TMDL
authority
on
how
a
TMDL
wasteload
allocation
should
be
interpreted
for
the
discharge.

"
Certification"
refers
to
the
existing
permit
requirement
for
signing
the
SWPPP
and
the
Notice
of
Intent,
verifying
the
integrity
of
all
information
contained
in
those
documents.
2001
2
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12a
493.1
Total
Maximum
Daily
Loads
 
Proposed
CGP
Sections
Affected
by
this
Comment:
1.3.
C.
5
 
Fact
Sheet
Sections
Affected
by
this
Comment:
IV.
1.3.
C.
5
 
EPA
should,
therefore,
modify
the
proposed
CGP
to
retain
the
general
prohibition
stated
in
the
previous
CGP
against
discharges
that
the
Director
determines
will
cause
or
contribute
to
violations
of
water
quality
standards
that
was
part
of
previous
CGPs.
If
the
Director
determines
that
a
construction
activity
is
causing
or
contributing
to
water
quality
standards,
this
provision
gives
the
Director
the
authority
to
take
appropriate
action.
EPA
explains
that
the
language
in
the
previous
CGP
referred
to
impaired
waterbodies
without
TMDLs,
not
waterbodies
for
which
TMDLs
had
already
been
approved.
The
language
in
the
previous
CGP
essentially
prohibits
authorization
for
construction
activities
in
most
impaired
waters
for
which
TMDLs
have
not
yet
been
established.
An
impaired
waterbody
is
one
for
which
water
quality
standards
are
not
being
met.
Therefore
any
new
discharge
of
the
pollutant
of
concern
would
be
contributing
to
a
violation
of
a
water
quality
standard.
"
Appropriate
action"
would
likely
be
to
either
deny
authorization,
or
set
permit
restrictions
requiring
zero
discharge
of
the
pollutant
of
concern.
This
provision
could
equate
to
a
moratorium
on
construction
activities
in
watersheds
with
impairments
for
sediment
or
a
related
parameter.
1061
12a
493.2
NPDES
permits
are
to
contain
limitations
necessary
to
meet
water
quality
standards.
The
CGP
does
this.
For
some
small
subset
of
storm
water
discharges
it
is
appropriate
to
deny
discharge
authorization,
or
require
zero
discharge
of
certain
pollutants.
However,
EPA
believes
that
setting
permit
conditions
that
would
disallow
coverage
in
many
watershed
across
the
country
is
not
a
viable
option.
1061
12b
285
There
seems
to
be
an
inconsistency
between
the
proposed
CGP
and
the
proposed
Fact
Sheet.
Section
1.3.
C.
5
of
the
CGP
states
that
"
discharges
to
waters
for
which
there
is
a
total
maximum
daily
load
(
TMDL)

allocation
for
sediment
or
a
parameter
that
addresses
sediment
(
such
as
total
suspended
solids,
turbidity,
or
siltation)
are
not
eligible
for
coverage
under
this
permit
unless
you
develop
and
certify
a
SWPPP
that
is
consistent
with
the
assumptions
and
requirements
in
the
approved
TMDL."
This
limitation
seems
to
mean
that
a
CGP
applicant
has
to
review
only
water
bodies
that
are
impaired
by
sediment
and
have
a
TMDL
requiring
a
waste
load
allocation
for
sediment,
or
some
parameter
that
addresses
sediment.
By
implication,

therefore,
this
provision
seems
not
to
apply
to
discharges
to
waters
that
might
have
a
TMDL
for
some
other
pollutant.
EPA
should
clarify
that
the
proposed
eligibility
requirement
applies
only
to
TMDLs
for
sediment
or
some
parameter
that
addresses
sediment
(
such
as
total
suspended
solids,
turbidity,
or
siltation).
EPA
agrees
that
you
have
identified
an
inconsistency.
EPA
has
changed
the
language
in
Part
1.3.
C.
5
to
read
"
You
are
not
eligible
for
coverage
under
this
permit
for
discharges
of
pollutants
of
concern
to
waters
for
which
there
is
a
total
maximum
daily
load
(
TMDL)
established
or
approved
by
EPA
unless
you
develop
and
certify
a
SWPPP
that
is
consistent
with
the
assumptions
and
requirements
of
such
TMDL."
1061
3
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12b
430
Sections
1.3.
C.
4,
"
Attainment
of
Water
Quality
Standards"
and
1.3.
C.
5,
"
TMDL's." 
require
that
permits
must
"
ensure"
compliance
with
applicable
water
quality
requirements
and
TMDL
load
allocations.

Construction
activities
typically
impact
soil
erosion,

sediment
and
turbidity­­
parameters
involved
with
soil
disturbance.
In
contrast,
the
majority
of
water
quality
standards,
or
conditions
that
result
in
impairment
of
water
bodies,
are
related
to
heavy
metals
and
other
pollutants
that
pose
health
or
ecological
risks
(
e.
g.,

acute
toxicity,
chronic
toxicity),
either
directly
or
through
their
potential
to
bio­
accumulate
in
the
system.

These
standards
have
little,
if
anything,
to
do
with
the
construction
activities
regulated
under
the
CGP.
Many
waters
in
the
U.
S.
are
impaired
for
sediment,
or
a
related
parameter.

Where
this
is
the
case,
construction
site
operators
are
expected
to
take
the
necessary
measures
to
ensure
that
the
discharge
is
consistent
with
the
TMDL
allocation.

Where
TMDL
or
303(
d)
pollutants
of
concern
are
not
those
associated
with
construction
activities,
and/
or
where
the
TMDL
has
made
no
allocation
to
construction
activities,
the
operator
need
not
implement
any
measures
beyond
the
standard
requirements
stipulated
in
the
construction
general
permit.
1004
12b
437
Turbidity
should
not
be
included
as
a
parameter
that
addresses
sediment.
 
(
p.
12,
Draft
Permit)
It
is
well
known
that
turbidity
is
caused
by
a
combination
of
suspended
solids
and
nutrient
inputs.
As
a
result,

storm
water
dischargers
should
not
be
concerned
with
TMDLs
for
turbidity
unless
a
clear
relationship
between
suspended
solids
and
turbidity
has
been
established
by
statistical
regression
or
other
method.

NAHB
urges
EPA
to
make
this
distinction
in
the
fact
sheet
so
that
storm
water
dischargers
are
not
restricted
in
those
situations
in
which
turbidity
is
caused
by
nutrient
enrichment,
not
suspended
solids.
EPA
agrees
that
other
conditions
and
pollutants
contribute
to
turbidity.

However,
EPA
is
not
using
the
term
in
this
context
to
automatically
confer
any
additional
discharge
restrictions.
Turbidity
is
sometimes
used
as
a
measure
of
suspended
solids,
including
sediment.
Storm
water
dischargers,
when
determining
eligibility
and
developing
a
SWPPP,
must
consider
any
impairment
to
which
their
discharge
has
the
potential
to
contribute.
The
Fact
Sheet
language
is
only
providing
guidance
on
potential
impairment
pollutants
or
indicators
that
the
operator
should
use
to
trigger
a
little
additional
investigation
to
find
out
if
there
are
impairments
or
TMDLs
relevant
to
the
proposed
discharge.

The
individual
303(
d)
listing
or
TMDL
should
clarify
whether
turbidity
or
any
other
pollutant
of
concern,
as
used
in
that
specific
situation,
is
relevant
to
construction
activities
or
not.
1057
4
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12b
439
For
example,
this
section
[
referring
to
Fact
Sheet
Sec.

3.15]
says
"
If
EPA
has
approved
or
established
a
sediment
or
sediment
related
TMDL
for
the
receiving
water
segment,
the
operator
must
determine
and
document
whether
the
operator's
discharge
is
identified,
either
specifically
or
generally,
in
the
TMDL."

How
in
the
world
could
the
operator's
discharge
be
identified
when
the
operator
doesn't
yet
have
the
authority
to
discharge?
NAHB
urges
EPA
to
demonstrate
that
it
recognizes
that
storm
water
discharges
from
construction
sites
are
different
from
other
NPDES
dischargers­
storm
water
discharges
from
construction
sites
are
temporal
and
not
under
the
full
control
of
the
operator
as
in
an
industrial
plant.
This
requirement
could
apply
in
at
least
4
different
ways:

1)
Although
most
construction
projects
will
be
classified
as
"
new
discharges,"

not
all
fall
into
this
category.
For
example,
some
ongoing
construction
projects
have
authorization
under
the
recently
expired
CGP,
and
must
apply
for
coverage
under
this
one.
In
those
situations
a
TMDL
allocation
may
in
fact
be
specifically
relevant
to
the
discharge
from
that
site.
EPA
does
not
expect
this
to
be
a
common
occurrence.

2)
A
TMDL
may
make
a
categorical
allocation,
for
example,
to
all
construction
activities.
In
this
case
the
operator
would
need
to
ensure
that
the
discharge
was
consistent
with
the
general
categorical
allocation.

3)
A
TMDL
may
make
an
allocation
for
new
sources.
In
this
case
the
operator
would
need
to
ensure
that
the
discharge
was
consistent
with
the
allocation
for
new
sources.

4)
Coverage
under
the
general
permit
may
already
be
authorized,
and
a
TMDL
subsequently
developed.
In
this
case
EPA
expects
the
operator
to
implement
any
additional
measures
if
stipulated
in
the
TMDL.
1057
12b
445
It
appears
that
previously
unpermitted
stormwater
dischargers
to
303(
d)
listed
waters
may
obtain
coverage
under
the
NPDES
General
Permit
for
Discharges
from
Small
and
Large
Construction
Activities
(
Draft),
even
if
the
discharge
may
be
contaminated
with
the
pollutant
parameter
for
which
the
receiving
waters
are
impaired
per
40
C.
F.
R.
§
122.4(
d)
and
(
i).
This
raises
a
question
that
we
have
been
struggling
with
which
is
whether
it
is
permissible
to
authorize
stormwater
discharges
to
303(
d)
listed
waters
if
the
discharge
may
be
contaminated
with
the
pollutant
parameter
for
which
the
receiving
waters
are
impaired,
and
if
it
is
permissible,
under
what
conditions
or
circumstances
is
it
permissible?
EPA
agrees
that
this
situation
may
present
a
particular
conundrum
for
construction
activities,
where
many
applicants
are
"
new
dischargers."
In
some
circumstances,
no
discharges
will
be
allowed
under
the
CGP.
The
permit
does
not
authorize
discharges
that
cause
or
contribute
to
an
excursion
above
any
applicable
water
quality
standard.
This
does
not
mean,
however,
that
discharges
will
always
be
forbidden
simply
because
a
waterbody
is
found
on
a
303(
d)
list.
1069
5
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12b
468
Operators
should
only
be
responsible
for
physical
impacts
caused
by
their
earth­
moving
or
earth
disturbing
activities,
not
for
water
quality
impacts
that
may
be
associated
with
heavy
metals
or
other
pollutants
that
occur
naturally
in
the
soils
or
that
may
be
present
due
to
air
deposition.
We
suggest
that
the
CGP
be
revised
to
make
it
clear
that
the
permit
addresses
only
those
physical
parameters
(
e.
g.,

sediment
loading,
TSS,
turbidity,
etc.)
that
are
directly
associated
with
construction
activity.
More
specifically,

Sections
C.
4
and
C.
5
should
revised
to
state
that
the
water
quality
standards
and
TMDLs
covered
by
these
sections
are
limited
to
those
relating
to
sediment
loading,
siltation
and
turbidity
of
the
receiving
waters.
Although
the
most
common
and
abundant
pollutant
associated
with
construction
activities
is
sediment
(
TSS,
turbidity,
etc.),
other
pollutants
may
also
be
present
at
individual
sites.
Lubricants,
gasoline,
paints,
solvents,
metals,
preservatives,

fecal
waste,
trash
and
other
pollutants
are
commonly
used,
stored
or
generated
on
construction
sites.
The
construction
site
operator
is
obliged
to
take
all
of
these
into
consideration,
as
relevant
to
his/
her
project,
when
developing
the
Storm
Water
Pollution
Prevention
Plan
(
SWPPP).

With
respect
to
pre­
existing
contaminants,
it
is
also
reasonable
to
expect
a
construction
operator
to
develop
controls
for
any
on­
site
contaminant,
if
it
has
been
documented
and
is
considered
to
be
a
threat
to
water
quality
if
mobilized.

EPA
generally
considers
standard
erosion
and
sedimentation
controls
to
be
adequate
to
control
background
concentrations
(
i.
e.
naturally
occurring)
of
most
other
pollutants,
since
most
are
bound
to
soil
particles.
1004
12c
352.1
Allowing
EPA
to
render
a
post­
authorization
nonattainment
opinion
would
cause
an
undue
burden
to
the
regulated
community.
Even
if
a
contractor/
developer
manages
to
devise
a
standard
for
measuring
the
effectiveness
of
BMPs
 
[
w]
hat
gauge
will
the
government
use
to 
disagree
with
the
contractor/
developer's
BMP
approach?...
This
"
we'll
know
a
violation
when
we
see
it"
approach
is
unacceptable
 
A
contractor/
developer
operating
under
a
fixed­
price
contract
would
suffer
a
great
financial
loss
if
he
were
required
to
go
back 
and
completely
redevelop
his
SWPPP
and/
or
develop
data
to
disprove
the
agency's
assertion.
The
financial
impact
would
be
even
more
severe
if
EPA
were
to
require
the
work
to
stop
until
the
contractor/
developer
pursued
coverage
under
an
individual
permit.
We
recommend
that
EPA
delete
this
provision
from
the
draft
CGP.
Post­
authorization
non­
attainment
of
water
quality
standards
is
common
situation.
Part
4.5
makes
provisions
for
this
situation
when
EPA
discovers
the
non­
attainment.
Part
4.5
is
simply
saying
that
if
EPA
makes
this
determination,

EPA
will
provide
you
such
notification
in
writing.
You
will
then
be
required
to
fix
the
problem,
i.
e.
provide
necessary
maintenance,
implement
additional
BMPs,
or
whatever
the
practical
solution
to
a
sediment­
laden
discharge
happens
to
be
in
that
situation.

It
is
an
obligation
on
the
part
of
the
operator
to
upgrade
BMPs
whenever
they
are
found
(
by
operator
or
EPA
inspections)
to
function
inadequately.
EPA
does
not
believe
this
is
an
undue
burden.
1079
12c
352.2
Or,
at
a
minimum,
EPA
must
establish
the
level
of
clear
and
scientifically­
based
proof
that
must
be
presented
by
the
government
before
a
contractor/
develop
is
deemed
to
be
in
violation
of
state
water
quality
standards.
1079
6
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
356
We
believe
that
the
language
previously
considered
by
EPA
is
superior
to
the
language
in
the
CGP
proposal
for
several
reasons.
First,
EPA
seems
to
assign
regulated
entities
with
the
responsibility
to
measure
the
effectiveness
of
specific
BMPs
relative
to
water
quality
standards.
As
EPA
is
aware,
measuring
such
effectiveness
is
exceedingly
difficult
due
to
inherent
uncertainties
in
the
process.
It
is
not
clear
what
previous
language
the
commenter
is
referencing.
EPA
emphasizes
that
for
a
general
permitting
program
to
work,
permittees
cannot
rely
on
the
permitting
authority
to
make
all
of
the
evaluations
and
judgments.

EPA
and
State
permitting
authorities
simply
do
not
have
the
staff
to
be
on
all
construction
sites
on
a
regular
basis.
EPA
believes
that
construction
operators
are
generally
capable
of
noting
if
their
construction
activities
are
producing
sediment­
laden
discharges.
1064
12c
357.1
The
proposed
language
creates
a
standard
that
is
overly
ambiguous.
It
is
impossible
to
state
clearly
what
measures
are
"
adequate"
and
"
sufficient."
Who
determines
the
adequacy
and
sufficiency?
Who
determines
whether
a
discharge
will
cause
or
contribute
to
non­
attainment
of
water
quality
standards?
Is
it
the
responsibility
of
the
regulated
entity?
Is
it
left
to
the
discretion
of
EPA?
Will
the
courts
decide?
It
is
precisely
ambiguities
of
this
sort
that
go
against
the
interests
of
both
the
regulated
community
and
EPA.
EPA
agrees
that
the
term
"
adequate
and
sufficient"
could
be
clearer.
EPA
is
therefore
revising
this
permit
language
to
say
"
This
permit
does
not
authorize
discharges
that
EPA,
prior
to
authorization
under
this
permit,
determines
will
cause,
have
the
reasonable
potential
to
cause,
or
contribute
to
an
excursion
above
any
applicable
water
quality
standard."

EPA
believes
that
it
is
appropriate
for
construction
operators
to
consider
the
functionality
and
performance
standards
of
the
BMP
technologies
they
are
implementing,
just
as
they
would
for
any
other
aspect
of
their
operation
(
i.
e.

earthmoving
equipment,
construction
materials).
Vendors
generally
provide
information
on
effectiveness
of
their
products.
Engineers
and
other
professionals
can
design
systems
to
certain
specifications.
The
National
Storm
Water
BMP
Database
provides
data
on
the
effectiveness
of
certain
types
of
BMPs.
There
are
numerous
guidance
manuals
and
other
materials
on
designing
and
implementing
construction
site
BMPs.
1064
12c
357.2
EPA
emphasizes
that
while
the
agency
has
some
responsibility
for
evaluating
effectiveness
of
BMPs,
and
making
determinations
regarding
water
quality,

construction
site
operators
must
share
this
responsibility.
For
a
general
permitting
program
to
work,
permittees
cannot
rely
on
the
permitting
authority
to
make
all
of
the
evaluations
and
judgments.
EPA
and
State
permitting
authorities
simply
do
not
have
the
staff
to
be
on
all
construction
sites
on
a
regular
basis.

EPA
believes
that
construction
operators
are
capable
of
noting
if
their
construction
activities
are
producing
sediment­
laden
discharges.
1064
7
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
453
In
the
CGP
proposal,
EPA
has
not
sufficiently
related
its
current
­­
and
fully
justified
and
defendable
­­

position
on
BMPs
generally
to
the
proposed
BMP
standards
relating
to
water
quality
standards.
It
is
unclear
from
EPA's
eligibility
language
whether
it
fully
recognizes
all
that
might
go
into
a
BMP/
WQS
analysis.
EPA
has
not
included
a
BMP/
Water
Quality
Standards
analysis
requirement
in
the
proposed
CGP.
The
Clean
Water
Act
requires
that
all
NPDES
permits
include
limits
necessary
to
meet
water
quality
standards.
With
the
CGP
language
EPA
is
underscoring
that
it
is
critically
important
for
the
operator
to
remember
that
the
goal
of
designing
and
implementing
BMPs
is
to
protect
water
quality.
Far
too
many
construction
sites
lack
BMPs
that
have
been
designed
or
maintained
with
the
particular
receiving
water,
and
the
drainageways
to
that
receiving
water,
in
mind.
1071
12c
473
It
is
unclear
how
an
engineer
would
design
Best
Management
Practices
to
meet
this
requirement
[
p.
9,

Draft
Permit]
and
how
compliance
would
be
demonstrated.
EPA
must
revise
the
proposal
to
explain
to
the
public
how
to
comply
with
this
requirement
and
must
make
compliance
possible.
To
do
so,
I
encourage
the
agency
to
delete
this
language
and
continue
to
rely
on
Best
Professional
Judgment.
See
response
to
comment
440.
1063
12c
475
Regarding
compliance
with
the
assumptions
of
a
total
maximum
daily
load
allocation,
 
(
p.
9,
Draft
Permit)

 
Furthermore,
we
believe
that
it
will
be
very
difficult
to
get
an
engineer
to
'
certify'
the
performance
of
Best
Management
Practices
under
all
site
conditions,
which
is
what
EPA
seems
to
be
seeking.
As
a
result,
most
builders/
developers
whose
construction
sites
are
in
watersheds
with
impaired
waters
will
not
be
able
to
get
coverage
under
the
construction
general
permit,
and
given
the
difficulty
with
certification,
it
seems
equally
problematic
to
get
coverage
under
an
individual
permit.
The
proposed
CGP
does
not
contain
a
requirement
for
certification
of
BMPs
by
a
professional
engineer.
1063
8
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
476
The
"
Limitations
on
Coverage"
section
of
the
Permit
states
that,
"
you
must
design
and
implement
Best
Management
Practices
(
BMPs)
at
your
construction
site
that
will
be
adequate
and
sufficient
to
meet
water
quality
standards."'
This
statement
goes
beyond
requirements
in
the
current
permit,
which
contains
restrictions
on
discharges
causing
or
contributing
to
violations
of
water
quality
standards?
Creating
a
linkage
between
BMPs
and
water
quality
standards
goes
against
existing
EPA
policy
(
see
Interim
Permitting
Approach
for
Water
Quality­
Based
Effluent
Limitations
and
Storm
Water
Permits
61
Fed
Reg.

43761
(
Aug
26,
1996)
Creating
a
link
between
BMPs
and
water
quality
standards
is
not
inconsistent
with
EPA
policy.
In
fact,
under
the
Clean
Water
Act,
EPA
is
obligated
to
set
discharge
limits
necessary
to
meet
water
quality
standards.

EPA
agrees
that
the
term
"
adequate
and
sufficient"
is
not
clear.
EPA
is
therefore
revising
Part
1.3.
C.
4
(
preauthorization)
permit
language
to
say
"
This
permit
does
not
authorize
discharges
that
EPA,
prior
to
authorization
under
this
permit,
determines
will
cause,
have
the
reasonable
potential
to
cause,
or
contribute
to
an
excursion
above
any
applicable
water
quality
standard."

Part
4.5.
A
(
post­
authorization)
now
reads
"
You
must
select,
install,
implement
and
maintain
Best
Management
Practices
(
BMPs)
at
your
construction
site
that
minimize
pollutants
in
the
discharge
and
are
as
stringent
as
necessary
to
ensure
that
your
discharges
do
not
cause
or
contribute
to
an
excursion
above
any
applicable
water
quality
standard."
1039
12c
478
(
p.
9,
Draft
Permit)
It
is
unclear
how
a
permittee
would
demonstrate
compliance
with
the
allocation.
Further,

what
has
to
be
done
if
a
wasteload
allocation
has
not
been
established
for
storm
water
discharges?
Rather
than
address
this
circumstance
in
the
draft
permit,

EPA
simply
eliminates
all
potential
dischargers
from
general
permit
applicability
and
places
them
into
the
individual
permit
realm.
This
result
is
unnecessary
and
problematic,
as
EPA
has
also
failed
to
consider
fully
the
implications
associated
with
the
need
for
a
subset
of
construction
site
dischargers
to
obtain
individual
permits.
The
CGP
does
not
exclude
discharges
to
water
with
TMDLs
from
authorization
under
the
CGP.
EPA
established
a
website
at
www.
epa.
gov/
npdes/
stormwater/
cgp
that
includes
links
to
state
TMDL
information
and
contacts.
EPA
expects
that
permittees
can
access
that
website
and
identify
either
(
1)
the
steps
needed
to
be
consistent
with
the
assumptions
and
requirements
of
the
TMDL
or
(
2)
a
state
or
regional
contact
for
making
this
determination.
Further,
where
a
TMDL
or
TMDL
authority
does
not
provide
or
clarify
an
allocation,
but
has
not
specifically
excluded
these
discharges,

compliance
with
the
CGP
will
generally
be
assumed
to
be
consistent
with
the
approved
TMDL.
1057
9
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
479
The
requirement
for
operators
to
design
and
implement
BMPs
that
are
"
adequate
and
sufficient
to
meet
water
quality
standards"
is
inadequately
described
to
assure
compliance.
It
is
unclear
how
an
operator
would
demonstrate
that
BMPs
are
"
adequate
and
sufficient
to
meet
water
quality
standards."
First,

where
do
the
water
quality
standards
have
to
be
"
met"?

What
specific
water
quality
standards?
At
the
discharge
point?
In
the
receiving
stream?
If
in
the
receiving
stream,
where?
What
does
it
mean
to
"
meet
water
quality
standards"?
Is
a
one­
time
exceedance
all
it
takes
to
be
in
non­
compliance?
See
response
to
comment
476.

Water
quality
standards
generally
apply
to
the
receiving
stream,
not
the
discharge.
The
discharge
may
not
cause
or
contribute
to
non­
attainment
of
a
water
quality
standard.
The
discharge
quality
need
not
necessarily
mirror
ambient
water
quality,
although
they
obviously
are
related.
Any
given
water
body
will
have
a
number
of
water
quality
standards
established
by
the
state
to
protect
a
variety
of
uses.
For
construction
activities
the
primary
pollutant
of
concern
is
sediment.
The
state
will
have
established
numeric
water
quality
standards
for
total
suspended
solids,
turbidity,
or
some
other
related
parameter,
or
may
have
a
narrative
standard
related
to
visibility.
Non­
attainment
of
a
water
quality
standard,
and
a
demonstration
that
your
discharge
caused
or
contributed
to
that
non­
attainment,
is
a
violation
of
the
permit.
1057
12c
480
NAHB
seriously
doubts
that
professional
engineers
would
be
willing
to
certify
the
performance
(
effluent
quality)
for
specific
pollutants
of
most
types
of
BMPs,

if
this
would
mean
that
he/
she
would
have
to
design
and
certify
performance
under
all
storm
conditions.

Without
question,
this
proposed
requirement
would
lead
to
the
exclusive
use
of
structural
BMPs,
which
is
counterproductive
to
the
innovative
site
design
strategies
that
are
being
aggressively.
promoted
by
EPA,
and
would
significantly
increase
the
cost
of
development
and
ultimately
raise
the
cost
of
housing.

Not
only
would
structural
BMPs
become
the
exclusive
mode
of
controlling
pollutants,
it
is
highly
likely
that
sites
will
be
"
over­
engineered"
in
order
for
certification
to
be
possible.
The
proposed
CGP
does
not
contain
a
requirement
for
certification
of
BMPs
by
a
professional
engineer.

EPA
whole­
heartedly
concurs
with
your
position
that
the
exclusive
use
of
structural
BMPs
would
not
be
in
the
best
interests
of
water
quality,
other
environmental
considerations,
or
cost­
effectiveness.
1057
10
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
482
Section
1.3.
C.
4
essentially
requires
the
regulated
entity
to
measure
the
effectiveness
of
BMPs
relative
to
water
quality
standards,
a
task
that
the
Agency
itself
has
been
unable
to
do,
and
which
is
inconsistent
with
the
Agency's
overall
policy
with
respect
to
BMP
use
and
effectiveness.
NMA
recommends
the
Agency
revise
section
1.3.
C.
4
making
it
consistent
with
Section
4.5
i.
e.
tying
a
pre­
certification
requirement
to
ensure
use
of
the
"
most
appropriate
BMPs"
that
will
"
effectively
minimize"
the
loadings
with
the
availability
of
the
post
certification
options
for
addressing
and
water
quality
issues
that
arise.
EPA
concludes
that
the
term
"
effectively
minimize"
is
insufficiently
clear
in
this
context.
The
Clean
Water
Act
requires
that
NPDES
permits
specify
limits
necessary
to
meet
water
quality
standards.

EPA
believes
that
it
is
appropriate
for
construction
operators
to
consider
the
functionality
and
performance
standards
of
the
BMP
technologies
they
are
implementing,
just
as
they
would
for
any
other
aspect
of
their
operation
(
i.
e.

earthmoving
equipment,
construction
materials).
Vendors
generally
provide
information
on
effectiveness
of
their
products.
Engineers
and
other
professionals
can
design
systems
to
certain
specifications.
The
National
Storm
Water
BMP
Database
provides
data
on
the
effectiveness
of
certain
types
of
BMPs.
There
are
numerous
guidance
manuals
and
other
materials
on
designing
and
implementing
construction
site
BMPs.
1066
12c
483.1
EPA
should
abandon
its
back
door
effort
to
require
contractors/
developers
to
predict
the
effectiveness
of
the
BMPs
that
they
properly
select 
we
are
very
concerned
about
the
water
quality­
related
conditions
that
EPA
has
attached
to
the
use
of 
BMPs.
[
The]

language
unfairly
shifts
the
burden
of
proof
from
the

government
to
the
contractor/
developer
 
The
draft
permit
makes
no
attempt
to
define
the
terms
"
adequate
and
sufficient."
 
While
BMPs
are
effective
tools 

precisely
measuring
their
effectiveness
is
something
that
has
eluded
EPA
to
date.
Indeed,
neither
a
contractor/
developer
nor
the
professional
engineers
that
assist
them
will
be
equipped
with
the
necessary
information
to
ensure
that
BMPs
in
the 
SWPPP
are
"
adequate
and
sufficient"
 
A
BMP/
water
quality
standard
(
WQS)
analysis
is
nearly
impossible
considering
the
variable
nature
of
storm
water
discharges,
and
the
inherent
uncertainty
and
subjectiveness 
associated
with
BMP
selection
and
implementation.
What
about
rare
storm
events?
See
response
to
comment
357.

EPA
believes
that
it
is
entirely
appropriate
for
construction
operators
to
consider
the
functionality
and
performance
standards
of
the
BMP
technologies
they
are
implementing,
just
as
they
would
for
any
other
aspect
of
their
operation
(
i.
e.

earthmoving
equipment,
construction
materials).
Vendors
generally
provide
information
on
effectiveness
of
their
products.
Engineers
and
other
professionals
can
design
systems
to
certain
specifications.
The
National
Storm
Water
BMP
Database
provides
data
on
the
effectiveness
of
certain
types
of
BMPs.
There
are
numerous
guidance
manuals
and
other
materials
on
designing
and
implementing
construction
site
BMPs.
1079
11
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
483.2
Or
the
unpredictable
frequency
of
a
five­
year
storm?

Where
would
BMP
effectiveness
have
to
be
measured
(
e.
g.,
at
each
discharge
point)?
Over
what
duration
of
time
would
WQSs
have
to
be
met
(
e.
g.,
annual
or
monthly
average)?
The
result
of
this
standard
would
be
over­
engineered
sites
with
all
structural
controls.
This
runs
contrary
to
EPA's
practice
of
encouraging
the
use
of
nonstructural
controls 
discussed
in
EPA's
CGP
Fact
Sheet 
In
earlier
versions
of
the
CGP
that
were
circulated
for
review,
EPA
would
authorize
discharges
to
a
listed
(
i.
e.
impaired)
water
where
the
operator's
SWPPP
identifies
BMPs
that
are
"
most
appropriate"

and
are
designed
to
"
effectively
minimize"
the
discharge
of
the
pollutant
at
issue.
EPA
should
return
to
using
that
language 
1079
12c
484
It
is
unclear
to
the
public
what
it
means
to
'
certify
consistency'
[
p.
9,
Draft
Permit]
with
the
assumptions
and
requirements
of
the
approved
TMDL.
Furthermore,

we
believe
that
it
will
be
very
difficult
to
get
an
engineer
to
'
certify'
the
performance
of
Best
Management
Practices
under
all
site
conditions,
which
is
what
EPA
seems
to
be
seeking.
As
a
result,
most
builders/
developers
whose
construction
sites
are
in
watersheds
with
impaired
waters
will
not
be
able
to
get
coverage
under
the
construction
general
permit,
and
given
the
difficulty
with
certification,
it
seems
equally
problematic
to
get
coverage
under
an
individual
permit.
See
response
to
comment
474.

The
CGP
does
not
include
a
requirement
that
the
SWPPP
be
certified
by
an
engineer.
However,
EPA
notes
that
it
is
standard
engineering
practice
for
Professional
Engineers
to
certify,
or
stamp,
their
designs.
This
provision
should
apply
to
a
number
of
structural
BMPs,
but
is
not
an
explicit
requirement
of
the
CGP.
1062
12
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
488.1
EPA
goes
on
to
say
[
referring
to
Limitations
on
Coverage,
Item
4]
that
it
"
believes
that
TMDLs,
when
established
or
approved,
will
provide
operators
with
information
as
to
what
constitutes
`
adequate
and
sufficient
BMPs'."
(
p.
9,
Draft
Permit)
It
is
NAHB's
experience
from
reading
numerous
TMDLs
for
total
suspended
solids
and
sediment
that
this
is
not
the
case.
In
fact,
in
most
TMDLs,
storm
water
discharges
home
construction
sites
are
not
even
discussed.

NAHB
urges
EPA
to
clarify
how
eligibility
is
to
be
demonstrated.
EPA
agrees
that
there
are
TMDLs
that
do
not
provide
clear
allocations
to
storm
water
discharges
from
construction
activities.
EPA
established
a
website
at
www.
epa.
gov/
npdes/
stormwater/
cgp
that
includes
links
to
state
TMDL
information
and
contacts.
EPA
expects
that
permittees
can
access
that
website
and
identify
either
(
1)
the
steps
needed
to
be
consistent
with
the
assumptions
and
requirements
of
the
TMDL
or
(
2)
a
state
or
regional
contact
for
making
this
determination.
For
a
situation
where
an
EPA
approved
or
established
TMDL
has
not
specified
a
wasteload
allocation
for
construction
storm
water
discharges,
but
has
not
specifically
excluded
these
discharges,
compliance
with
the
CGP
will
generally
be
assumed
to
be
consistent
with
the
approved
TMDL.
If
the
EPA
approved
or
established
TMDL
specifically
precludes
such
discharges,

the
operator
is
not
eligible
for
coverage
under
the
CGP.
1057
12c
488.2
In
selecting
this
approach,
EPA
is
trying
to
balance
the
need
to
include
permit
conditions
consistent
with
TMDLs
with
the
need
to
clearly
define
permittee
responsibilities.
1057
12c
489.1
Specifically,
we
are
concerned
with
the
requirement
that
an
airport
operator
may
have
to
certify
that
the
BMPs
"
will
be
adequate
and
sufficient
to
meet
water
quality
standards,"
See
Section
1.3.
C.
4.
Previous
versions
of
the
proposed
permit
specified
that
the
operator
could
rely
on
a
environmental
professional
to
certify
that
the
BMPs
in
the
Stormwater
Pollution
Prevention
Plan
(
SWPPP)
are
the
"
most
appropriate"

and
are
designed
to
"
effectively
minimize"
the
discharge
of
pollutants
of
concern.
Requiring,
instead,

that
the
discharger
design
and
implement
BMPs
"
that
will
be
adequate
and
sufficient
to
meet
water
quality
standards,
including
failure
to
maintain
and
protect
existing
designated
uses
of
receiving
waters"
will
place
an
unreasonable
burden
on
many
airport
operators
and
prevent
the
wide
use
of
the
general
permit.
We
suggest
that
EPA
return
to
the
previous
version
of
the
language.
EPA
clarifies
that
storm
water
discharges
from
airport
operations
are
covered
under
the
Multi­
Sector
General
Permit
for
Storm
Water
Discharges
from
Industrial
Operations.
An
airport
would
only
need
coverage
under
the
CGP
for
construction
activities.

There
seems
to
be
a
great
deal
of
misinformation
regarding
proposed
requirements
in
the
CGP.
There
is
NO
proposed
requirement
for
certification
of
the
SWPPP
or
the
BMPs
by
an
engineer.
The
CGP
likewise
does
not
propose
terms
like
"
most
appropriate"
and
"
effectively
minimize".

EPA
is
obligated
per
the
Clean
Water
Act
to
set
permit
conditions
necessary
to
meet
water
quality
standards.
1070
13
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
489.2
EPA
is
not
sure
what
is
meant
by
the
statement
that
this
requirement
could
"
prevent
the
widespread
use
of
the
permit".
All
construction
activities
1
acre
and
larger
are
required
by
law
to
obtain
NPDES
permit
coverage.
The
general
permit
and
an
individual
permit,
the
only
2
options,
would
both
require
that
the
discharge
not
cause
or
contribute
to
non­
attainment
of
water
quality
standards.

Both
would
set
BMP­
based
discharge
standards.
Both
would
include
provisions
for
enforcement
based
on
a
demonstration
that
the
discharge
was
causing
or
contributing
to
non­
attainment
of
a
water
quality
standard.
The
only
difference
would
be
that
an
individual
permit
likely
would
subject
the
construction
operator
to
several
additional
requirements,
primarily:
meeting
numeric
effluent
limits,
and
conducting
ongoing
analytical
monitoring
and
reporting
to
document
that
those
numeric
effluent
limits
were
being
met.
1070
12c
490
Furthermore,
we
believe
that
it
will
be
very
difficult
to
get
an
engineer
to
'
certify'
the
performance
of
most
types
of
Best
management
Practices
under
all
site
conditions
to
assure
compliance
with
a
TMDL,
which
is
what
EPA
seems
to
be
seeking.
As
a
result,
most
builders/
developers
whose
construction
sites
are
in
watersheds
with
impaired
waters
will
not
be
able
to
get
coverage
under
the
construction
general
permit,
and
given
the
difficulty
with
certification,
it
seems
equally
problematic
to
get
coverage
under
an
individual
permit.

Thus,
we
urge
EPA
to
require
a
TMDL
analysis
ONLY
where
the
pollutants
associated
with
storm
water
runoff
from
active
construction
sites
are
documented
by
current
in­
stream
data
to
be
a
major
source
of
pollution.
See
response
to
comment
475
and
483..
1068
14
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12c
491
While
we
support
the
use
of
BMPs
in
the
CGP,
we
are
very
concerned
about
certain
water
quality­
related
conditions
that
EPA
has
attached
to
the
use
of
those
BMPs.
...
See
Section
1.3.
C.
4.
The
discharger
would
not
be
authorized
to
discharge
under
the
permit
if
it
will
"
cause
or
contribute
to
non­
attainment
of
water
quality
standards,
including
failure
to
maintain
and
protect
existing
designated
uses
of
receiving
waters."
Id.
This
language
places
a
significant
burden
on
many
site
operators
and
potentially
could
unnecessarily
prevent
the
widespread
use
of
the
permit.
EPA
is
obligated
per
the
Clean
Water
Act
to
set
NPDES
discharge
limitations
necessary
to
meet
water
quality
standards.
1071
12c
496
Eligibility
provisions
for
discharges
threatening
water
quality
clarified.
Could
EPA
please
clarify?
This
statement
is
provided
in
the
introduction
to
the
fact
sheet
as
part
of
a
list
that
summarizes
the
content
of
the
fact
sheet
and
the
proposed
permit.
The
eligibility
provisions
for
discharges
threatening
water
quality
are
those
that
are
outlined
in
1.3.
C.
4
and
1.3.
C.
5.
1041
12d
123
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,
result
in
more
reliance
on
structural
Best
Management
Practices,

make
compliance
very
difficult,
and
significantly
increase
the
cost
of
development
and
ultimately
the
cost
of
housing.
EPA
does
not
believe
that
the
use
of
the
general
permit
will
be
significantly
limited
in
impaired
waters.
Quite
the
contrary,
EPA
believes
that
for
most
storm
water
discharges
the
allocations
of
a
well­
crafted
TMDL
can
be
easily
incorporated
by
reference
into
discharge
requirements
under
a
general
permit.

EPA
believes
that
a
well­
designed,
implemented
and
maintained
system
of
construction
BMPs
will
quite
adequately
meet
most
TMDL
allocations.
EPA
also
believes
that
the
most
effective
soil
erosion
and
sedimentation
BMPs
are
not
necessarily
highly
engineered,
structural
BMPs,
but
rather
the
BMPs
that
minimize
clearing
and
grading,
emphasize
early
and
often
vegetative
stabilization,
and
standard
good
housekeeping.
EPA
does
not
believe
that
there
need
be
a
significant
difference
in
the
cost
of
complying
via
a
general
permit
between
impaired
and
unimpaired
waters.
1057
15
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
150
Understanding
then,
that
general
permits
are
intended
to
provide
consistency,
efficiency,
and
a
streamlined
permitting
process,
it
follows
that
general
permits
should
not
exclude
numerous
facilities
that
would
otherwise
fall
under
the
general
permit's
provisions.
In
order
to
carry
out
their
goals,
general
permits
should
be
inclusive.
For
the
Permit
to
exclude
large
numbers
of
construction
sites
violates
the
principles
of
general
permits,
making
the
permitting
process
for
the
excluded
sites,
less
consistent,
more
expensive,
and
more
time
consuming.
EPA
believes
that
the
general
permit
approach
is
very
appropriate
for
most
construction
activities,
and
does
not
wish
to
exclude
large
numbers
of
construction
sites
from
eligibility.
EPA
reserves
the
right
to
require
individual
permit
coverage,
in
the
situations
that
warrant
it;
EPA
believes
that
this
will
be
a
rare
occurrence.
1039
12d
162
If
EPA
retains
the
TMDL
eligibility
requirement
in
anything
resembling
its
present
form,
it
should
clarify
how
the
TMDL
waiver
and
TMDL
eligibility
requirement
are
intended
to
work
together
for
small
construction
sites.
The
TMDL
waiver
is
essentially
a
way
to
implement
the
TMDL
eligibility
requirements
when
a
TMDL
concludes
that
absolutely
no
controls
on
storm
water
discharges
from
construction
activities
are
necessary.
EPA
does
not
envision
that
the
waiver
provision
will
be
relevant
very
often.
It
is
highly
unlikely
that
standard
construction
site
BMPs
would
be
deemed
unnecessary
for
any
water
body,
especially
one
that
is
already
exceeding
water
quality
standards.
1061
12d
386
Storm
Water
Pollution
Prevention
Plans:
 
to
the
extent
that
EPA
continues
to
try
to
permit
discharges
into
impaired
waterbodies
through
a
general
permit
mechanism,
this
section
of
the
permit
would
need
to
link
up
more
clearly
with
the
earlier
sections
on
water
quality
standards
and
TMDLs.
EPA
believes
that
the
necessary
links
exist
in
the
CGP
to
ensure
that
the
waterquality
and
TMDL
related
provisions
are
also
required
components
of
the
SWPPP.
2002
12d
431
Our
concern
is
that
this
section
seems
to
indicate
that
construction
projects
may
be
held
up
in
watersheds
where
MassHighway
has
not
completed
each
of
the
TMDL
proposed
task
and
responsibilities,
even
if
they
are
included
in
MassHighway's
future
plans.
What
recourse
does
MassHighway
have
if
we
do
not
concur
with
the
conditions
indicated
in
the
TMDL?
The
requirement
to
be
consistent
with
the
assumptions
in
available
TMDL
allocations
applies
only
to
TMDLs
that
EPA
has
approved
or
developed.
While
it
may
be
reasonable
to
try
to
be
consistent
with
a
TMDL
under
development,
a
proposed
allocation
is
not
incorporated
as
a
discharge
requirement
under
the
construction
general
permit.
The
appropriate
time
to
influence
a
TMDL
allocation
is
when
the
TMDL
is
under
development,
or
when
it
is
open
to
public
comment,
not
when
applying
for
a
permit.
Once
EPA
has
approved
a
TMDL,

the
allocations
must
be
considered
when
drafting
an
NPDES
permits,
as
relevant,
until
such
time
as
the
TMDL
is
revised
(
and
subsequently
reapproved
1034
16
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
433
We
also
call
into
question
the
scientific
and
statistical
validity
of
TMDLs 
according
to
the
GAO,
the
variations
among
states
in
identifying
impaired
waters
"
leads
not
only
to
inconsistencies
in
the
listing
of
impaired
waters,
but
also
to
difficulties
in
identifying
the
total
number
of
impaired
waters
nationwide
and
the
total
numbers
of
TMDLs
that
states
say
will
be
needed
to
bring
such
waters
up
to
standards."
See
Water
Quality:
Inconsistent
Approaches
Complicate
Nation
'
s
Efforts
to
Identify
Its
Most
Polluted
Waters,
GAO­
02­

186
(
January
2002) 
we
believe
that
the
number
of
waters
impaired
for
sediment
may
be
elevated
EPA
is
currently
reviewing
the
TMDL/
Watershed
Rule,
and
will
consider
TMDL
development
issues
in
that
forum.

Meanwhile,
EPA
is
obligated
to
include
in
NPDES
permits
effluent
limits
that
are
consistent
with
any
available
wasteload
allocation
in
a
TMDL
approved
by
EPA.
1079
12d
435.1
TMDLs:
I
generally
oppose
using
a
general
permit
mechanism
to
authorize
discharges
of
the
pollutant
or
pollutants
causing
impairment
into
an
impaired
waterbody.
Since
those
discharges
must
be
extremely
limited
so
as
not
to
cause
or
contribute
to
a
water
quality
standards
exceedance,
a
more
tailored
mechanism,
such
as
an
individual
permit,
is
needed.
In
fact,
since
discharges
from
construction
sites
are
new
discharges,
they
are
prohibited
under
40
C.
F.
R.

122.4(
i)
unless
there
is
a
sufficient
load
allocation
remaining
to
allow
for
the
discharge
and
the
existing
dischargers
into
that
water
quality
limited
segment
are
subject
to
compliance
schedules
designed
to
bring
the
segment
into
compliance
with
applicable
water
quality
standards.
A
general
permit
mechanism,
particularly
one
in
which
the
permittee
designs
its
own
program
for
meeting
water
quality
standards,
is
not
suited
to
make
such
determinations.
See
responses
to
comments
123
and
455.
During
the
wasteload
allocation
clarification
process
the
TMDL
authority
may
clarify
that
the
TMDL
provides
no
(
i.
e.
"
zero")
allocation
to
the
proposed
discharge.
In
that
case
the
discharge
could
not
be
authorized
under
the
CGP.
However,
unless
the
construction
operator
could
implement
"
zero
discharge"
controls,
the
activity
would
likewise
be
unpermittable
via
an
individual
permit.

EPA
believes
that
in
some
cases,
individual
permits
may
be
necessary
to
adequately
implement
TMDL
allocations.
However,
EPA
believes
that
for
most
storm
water
discharges
the
allocations
of
a
well­
crafted
TMDL
can
be
easily
incorporated
by
reference
into
discharge
requirements
under
a
general
permit.
2002
17
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
435.2
The
Fact
Sheet
acknowledges
the
difficulties
inherent
in
using
a
general
permit
mechanism
for
discharges
into
a
waterbody
for
which
there
is
a
TMDL,
but
no
specific
wasteload
allocation
for
construction
storm
water
discharges
(
p.
15).
While
that
situation
is
problematic,
it
is
merely
symptomatic
of
a
more
general
difficulty
in
NRDC's
view.
General
permits,
particularly
general
permits
that
rely
on
the
permittee
to
write
the
terms
of
the
permit,
are
not
consistent
with
the
effective
implementation
of
a
TMDL.
2002
12d
436
Although
compliance
with
TMDLs,
if
applicable,
is
required
in
any
event,
there
is
concern
that
this
wording
requires
unnecessary
documentation.
 
The
SWP3
would
have
to
be
continuously
updated
with
records
that
demonstrate
TMDL
compliance,
in
addition
to
any
other
reporting
requirements
under
TMDL.
However,
the
requirements
of
the
CGP
do
not
effect
the
operator's
obligations
regarding
many
other
regulations
(
i.
e.
TMDL,
water
quality,
SPCC,
etc.).

Therefore,
there
is
no
need
to
require
this
extra
documentation
for
any
specific
rule
such
as
TMDL.
It's
unclear
if
there
is
specific
wording
you're
referring
to.
However,
with
respect
to
documentation
EPA
believes
that
TMDL
allocation
provisions
need
not
be
notably
different
in
type
or
scope
than
other
SWPPP
requirements.
Therefore
documentation
need
not
be
more
notably
difficult
or
different.
There
is
also
no
CGP
requirement
for
continuous
or
more
frequent
documentation,
updates
or
reporting
because
of
a
TMDL.
It
is
possible
that
a
particular
TMDL
could
stipulate
conditions
that
might
increase
the
workload
in
one
of
these
areas,
but
the
general
permit
will
include
limits
based
on
a
fairly
narrow
scope
of
TMDL
provisions,
i.
e.
relevant
allocations.
Implementation
plan
conditions,
for
example,
are
not
incorporated
by
reference
as
a
permit
requirement.
EPA
believes
that
dischargers
to
impaired
waters
must
shoulder
the
responsibility
of
documenting
the
controls
on
their
discharges.
However,
EPA
does
not
believe
that
the
CGP
reporting
requirements
for
discharges
to
impaired
waters
vs
unimpaired
waters
are
notably
different.
1058
18
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
441
Total
Maximum
Daily
Loads
 
Proposed
CGP
Sections
Affected
by
this
Comment:
1.3.
C.
5
 
Fact
Sheet
Sections
Affected
by
this
Comment:
IV.
1.3.
C.
5
 
The
EPA
recognized
in
its
recent
proposed
withdrawal
of
revisions
to
the
water
quality
planning
and
management
regulation
and
associated
revisions
to
the
NPDES
program
that
it
needs
additional
time
to
determine
how
to
revise
the
current
TMDL
regulations
implementing
the
TMDL
program
[
See
Withdrawal
of
Revisions
to
the
Water
Quality
Planning
and
Management
Regulation
and
Revisions
to
the
National
Pollutant
Discharge
Elimination
System
Program
in
Support
of
Revisions
to
the
Water
Quality
Planning
and
Management
Regulation,
67
Fed.
Reg.
79020
(
Dec.
27,
2002)].
 
Despite
this
complex
and
controversial
problem,
EPA
has
sought
to
incorporate
part
of
the
now
withdrawn
rules
into
the
proposed
CGP.
EPA
has
asserted
that
the
requirements
proposed
in
this
permit
are
based
on
"
existing
regulations."
This
assertion
is
not
correct.
EPA
believes
that
the
proposed
permit
is
consistent
with
existing
rules,
see
40
CFR
122.44(
d)(
1)(
vii)(
B).
Without
a
specific
reference
to
what
you
believe
is
inconsistent
with
existing
rules,
we
cannot
comment
further.
1061
12d
442.1
Overall,
the
draft
permit,
if
finalized
as
written,
will
greatly
limit
the
use
of
the
general
permit
in
those
watersheds
with
impaired
waters,
result
in
more
reliance
on
structural
Best
Management
Practices,

make
compliance
very
difficult,
and
significantly
increase
the
cost
of
development
and
ultimately
the
cost
of
housing.
Considering
the
minimal
environmental
risk
from
storm
water
discharges
from
residential
construction
sites,
it
is
reasonable
for
the
public
to
expect
EPA
to
make
the
permitting
process
as
simple
and
reasonable
as
possible,
yet
this
is
not
the
case
here.
We
urge
EPA
to
make
the
revisions
necessary
to
the
proposal
so
that
coverage
under
the
general
permit
is
available
in
all
watersheds,
including
those
that
are
impaired.
Storm
water
discharges
from
construction
activities,
including
from
residential
construction
activities,
generally
export
20
to
1,000
times
more
sediment
per
acre
than
storm
water
discharges
from
other
types
of
land
uses/
land
use
activities.
Sediment
is
the
most
common
pollutant
causing
impairment
of
surface
waters
throughout
the
country.
EPA
believes
that
regulation
of
residential
construction
activities
is
necessary
to
protect
water
quality
in
the
United
States.

EPA
does
not
believe
that
the
use
of
the
general
permit
will
be
significantly
limited
in
impaired
waters.
Quite
the
contrary,
EPA
believes
that
for
most
storm
water
discharges
the
allocations
of
a
well­
crafted
TMDL
can
be
easily
incorporated
by
reference
into
discharge
requirements
under
a
general
permit.

EPA
believes
that
a
well­
designed,
implemented
and
maintained
system
of
construction
BMPs
will
quite
adequately
meet
most
TMDL
allocations.
2001
19
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
442.2
EPA
also
believes
that
the
most
effective
soil
erosion
and
sedimentation
BMPs
are
not
necessarily
highly
engineered,
structural
BMPs,
but
rather
the
BMPs
that
minimize
clearing
and
grading,
emphasize
early
and
often
vegetative
stabilization,
and
standard
good
housekeeping.
EPA
does
not
believe
that
there
need
be
a
significant
difference
in
the
cost
of
complying
via
a
general
permit
between
impaired
and
unimpaired
waters.
2001
12d
446
Total
Maximum
Daily
Loads
 
Proposed
CGP
Sections
Affected
by
this
Comment:
1.3.
C.
5
 
Fact
Sheet
Sections
Affected
by
this
Comment:
IV.
1.3.
C.
5
 
Section
1.3.
C.
5
of
the
proposed
CGP
provides
that
certain
discharges
of
storm
water
into
receiving
waters
with
a
total
maximum
daily
load
(
TMDL)
analysis
are
excluded
from
coverage
under
the
permit.
This
eligibility
exclusion
should
not
be
deleted
from
the
proposed
CGP.
The
TMDL
program
is
too
complex,

time
consuming,
and
controversial
to
be
incorporated
into
a
general
permit
by
reference.
This
provision
turns
the
TMDL
process
from
the
evaluation
and
planning
process
it
was
intended
to
be
into
a
kind
of
"
prior
appropriation"
and
system
for
discharges.
EPA
agrees
that
allocations
in
TMDLs
do
not
necessarily
represent
rights
or
licenses
to
discharge.
EPA
is
bound
to
include
permit
limitations
necessary
to
meet
water
quality
standards.
EPA
believes
that
in
some
cases,
individual
permits
may
be
necessary
to
do
this.
However,
EPA
believes
that
for
most
storm
water
discharges
the
allocations
of
a
well­
crafted
TMDL
can
be
easily
incorporated
by
reference
into
discharge
requirements
under
a
general
permit.

EPA
acknowledges
that
many
older
TMDLs
have
not
made
specific
allocations
to
storm
water,
and
has
therefore
included
an
initial
assumption
to
allow
storm
water
dischargers
to
remain
eligible
for
general
permit
coverage,
while
still
protecting
water
quality.
1061
20
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
447
EPA
has
recognized
that
BMPs
address
and
improve
water
quality
and
EPA
policy
states
that
EPA
will
use
BMPs
to
provide
for
attainment
of
water
quality
standards.
This
policy
reflects
the
fact
that
water
quality
varies
depending
upon
several
factors
related
to
climactic
conditions,
storm
conditions,
geologic
conditions,
and
topography.
Additionally,
BMPs
utilized
at
construction
sites
will
differ
based
upon
size
of
the
site,
the
stage
of
construction,
and
based
upon
the
topography
and
other
geologic
and
climactic
conditions.
Because
of
these
distinctions,
BMPs
at
different
construction
sites
must
be
tailored
to
a
site's
particular
conditions.
It
is
clear
that
tying
a
specific
slate
of
BMPs
t
o
a
certain
"
water
quality"
product
is
not
feasible
either
generally
throughout
the
country
or
specifically
at
any
particular
site.
Therefore,
it
is
improper
to
tie
BMPs
to
water
quality
standards.

Connecting
BMPs
to
water
quality
standards
directly
makes
the
Permit
uninterpretable.
EPA
generally
agrees
with
most
of
this
comment.
However,
EPA
must
clarify
that
we
are
not
directly
linking
specific
BMPs
to
water
quality
standards
across
the
board.
We
are
simply
saying
that
water
quality
standards
can
be
met
in
most
situation
through
the
use
of
BMPs
for
storm
water
discharges.
You
are
correct
that
for
a
given
operation
or
location
the
link
between
BMPs
and
water
quality
standards
should
generally
be
based
on
site
specific
tailoring
of
a
suite
of
BMPs.
1033
12d
448
Understanding
the
variability
of
storm
water
and
the
factors
affecting
construction
site
discharges,
it
is
clear
that
tying
a
specific
slate
of
BMPs
to
a
certain
"
water
quality"
product
is
not
feasible
either
generally
throughout
the
country
or
specifically
at
any
particular
site.
Therefore,
it
is
improper
to
tie
BMPs
to
water
quality
standards.
Since
the
state
of
knowledge
does
not
allow
permit
writers
to
account
for
all
the
variability
involved,
the
linkage
expressed
in
the
Permit
is
improper.
Connecting
BMPs
to
water
quality
standards
directly
makes
the
Permit
uninterpretable.
EPA
is
obligated
under
the
Clean
Water
Act
to
include
permit
limitations
necessary
to
meet
water
quality
standards.
Having
decided
that
BMPs
will
play
such
a
critical
role
in
this
permit,
it
is
entirely
appropriate
for
EPA
to
link
discharge
requirements,
i.
e.
BMPs,
to
water
quality
standards.

You
are
correct
that
a
general
permit
cannot
make
site­
specific
BMP
determinations.
Therefore
it
must
be
left
to
the
permittee,
using
a
wide
variety
of
available
tools
and
guidance
materials,
to
choose
the
specific
slate
of
BMPs
to
implement.
1039
12d
449
The
linkage
between
the
water
quality
standards
and
BMPs
appearing
in
the
first
sentence
of
Section
1.8(
C)(
4)
should
be
removed.
EPA
has
determined
that
BMPs
are
effective
controls
for
storm
water
discharges.
Having
decided
that
BMPs
will
play
such
a
critical
role
in
this
permit,
it
is
entirely
appropriate
for
EPA
to
link
discharge
requirements,
i.
e.

BMPs,
to
water
quality
standards.
1039
21
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
450
If
BMPS
are
properly
designed,
installed,
and
maintained,
the
sediment
load
of
a
storm
water
discharge
should
be
minimal,
and
thus
the
possibility
of
exceeding
a
TMDL
minute.
We
believe
that
small
construction
activities
should
be
allowed
to
discharge
to
water
bodies
with
applicable
TMDLs
(
but
no
wasteload
allocation
for
construction
storm
water)

without
additional
restrictions,
as
long
as
they
are
implementing
their
SWPPP
and
documenting
such
compliance.
For
large
construction
activities,
such
a
level
of
effort
may
be
appropriate
if
the
potential
to
discharge
large
volumes
of
sediment,
thus
potentially
exceeding
the
TMDL,
exists.
Some
TMDLs
may
in
fact
include
the
determination
that
no
additional
measures
need
be
taken
by
certain
types
of
dischargers.
However,
because
the
severity
of
water
quality
impairments
varies
significantly
from
water
body
to
water
body,

and
because
the
relative
contribution
of
various
types
of
discharges
varies
widely
from
water
body
to
water
body,
this
decision
must
be
made
in
the
context
of
individual
TMDLs.
This
determination
cannot
be
made
in
the
context
of
a
general
permit.
1041
12d
455
As
long
as
construction
activities
are
designed
and
carried
out
to
meet
the
DEP
Stormwater
Policy
standards,
or
otherwise
employ
reasonable
BMPs
to
the
greatest
extent
practicable 
they
should
not
impair
the
receiving
waters.
How
can
EPA
hold
up
construction
activities
for
the
length
of
time
it
will
take
DEP
to
revise
the
TMDLs,
especially
in
light
of
their
latest
budget
and
staffing
cutbacks?
Construction
activities
which
meet
the
intent
of
the
Clean
Water
Act
should
not
be
delayed
for
the
length
of
time
it
will
take
DEP
to
revise
the
TMDLs.
EPA
is
bound
to
include
effluent
limits
that
are
consistent
with
the
assumptions
and
requirements
in
any
available
wasteload
allocation
in
a
TMDL
approved
by
EPA.

EPA
generally
agrees
that
construction
activities
should
not
be
delayed
because
the
TMDL
authority
failed
to
specify
all
sources
of
loading
in
the
TMDL.
EPA
is
not
requiring
that
construction
activities
be
delayed
until
such
time
as
a
TMDL
can
be
revised.
EPA
has
utilized
a
framework
that
allows
the
construction
site
operator
to
obtain
clarification
from
the
TMDL
authority
on
discharge
provisions
that
would
allow
authorization
under
the
CGP.
EPA
established
a
website
at
www.
epa.
gov/
npdes/
stormwater/
cgp
that
includes
links
to
state
TMDL
information
and
contacts.
EPA
expects
that
permittees
can
access
that
website
and
identify
either
(
1)
the
steps
needed
to
be
consistent
with
the
assumptions
and
requirements
of
the
TMDL
or
(
2)
a
state
or
regional
contact
for
making
this
determination.

As
described
in
the
permit,
EPA
will
begin
with
the
general
assumption
that
where
EPA
has
approved
a
TMDL
that
does
not
include
a
specific
allocation
for
s
1034
22
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
456
Some
of
the
existing
sediment
TMDLs
and
potential
some
of
the
yet­
to­
be­
approved
TMDLs
may
not
contain
waste
load
allocations
specifically
for
the
construction
industry.
In
these
situations,
the
Permit
would
prohibit
construction
sites
in
these
watersheds
from
obtaining
coverage
and
would,
instead,
require
individual
NPDES
permits.
Thus,
unless
in
a
watershed
where
there
is
already
an
approved
TMDL,

and
that
TMDL
is
of
a
very
particular
type­
one
that
addresses
specifically
construction
site
dischargesthen
all
construction
sites
in
that
watershed
will
be
forced
to
obtain
individual
permits.
The
proposed
CGP
is
NOT
automatically
requiring
individual
NPDES
permits
in
watersheds
with
TMDLs
that
have
not
made
allocations
to
discharges
from
construction
activities.
EPA
has
proposed
a
framework
that
would
allow
the
construction
site
operator
to
obtain
clarification
from
the
TMDL
authority
on
discharge
provisions
that
would
allow
authorization
under
the
CGP.
EPA
established
a
website
at
www.
epa.
gov/
npdes/
stormwater/
cgp
that
includes
links
to
state
TMDL
information
and
contacts.
EPA
expects
that
permittees
can
access
that
website
and
identify
either
(
1)
the
steps
needed
to
be
consistent
with
the
assumptions
and
requirements
of
the
TMDL
or
(
2)
a
state
or
regional
contact
for
making
this
determination.
The
CGP
also
allows
authorization
when
the
TMDL
and
the
TMDL
authority
can
not
or
do
not
provide
or
clarify
an
allocation,
but
do
not
specifically
excluded
these
discharges,
In
this
situation
compliance
with
the
CGP
will
generally
be
assumed
to
be
consistent
with
the
approved
TMDL.
1039
12d
457.1
Permitting
authorities
should
not
deny
contractors
and
developers
coverage
under
the
CGP
where
a
TMDL
fails
to
include
a
WLA.
If
the
writer
of
a
TMDL
does
not
explicitly
specify
a
WLA,
contractors
and
developers
should
be
able
to
assume
that
the
omission
was
intentional
and
that
permit
coverage
under
the
CGP
is
allowed.
Contractors
and
developers
should
never
be
in
a
situation
where
they
are
required
to
ask
state
or
EPA
regions
that
developed
the
TMDL
whether
storm
water
discharges
from
construction
activity
were
considered
during
the
development
of
the
allocations 
We
strongly
believe
that
only
in
instances
where
the
TMDL
specifically
precludes
construction
storm
water
discharges,
should
the
permitting
authority
consider
restricting
CGP
coverage.
EPA
is
not
proposing
that
permitting
authorities
should
deny
contractors
and
developers
coverage
under
the
CGP
where
a
TMDL
neglects
to
consider
storm
water
sources
of
load.

EPA
disagrees
that
failure
to
provide
an
allocation
to
a
source
should
be
interpreted
as
an
intentional
decision
that
an
allocation
is
not
necessary.
Based
on
the
policies
for
TMDL
development
providing
that
all
sources
be
considered,

omission
would
more
likely
imply
that
construction
site
storm
water
discharges
were
overlooked,
not
deliberately
excluded.
If
a
source
is
deliberately
excluded,

that
decision
must
be
documented
in
the
TMDL.
EPA
has
looked
into
a
number
of
TMDLs,
and
is
confident
that
most
TMDLs
without
allocations
to
construction
site
discharges
simply
failed
to
account
for
them,
or
lumped
them
anonymously
into
the
load
allocation.
1079
12d
457.2
EPA
believes
that
all
stakeholders
in
permit­
related
activities,
including
permitting
authorities
and
permittees,
will
need
to
make
an
extra
effort
to
accommodate
TMDLs.
This
includes
obtaining
the
necessary
clarification
on
TMDLs
that
are
ambiguous
or
that
have
not
articulated
an
allocation
to
discharges
from
construction
activities.
EPA
is
making
every
effort
to
ensure
that
a
process
is
in
place
to
expedite
those
clarifications
and
TMDL
revisions,

and
ensure
that
all
future
TMDLs
provide
the
necessary
allocations.
1079
23
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
458
EPA's
options
regarding
the
prohibition
of
construction
site
discharges
to
sediment­
impaired
waters
until
the
TMDL
has
been
revised
are
unrealistic
and
unworkable.
Under
these
approaches,
construction
and
development
would
face
significant
delays­
and
possible
stoppages­
and
the
nation's
economy
would
suffer.
See
responses
to
comments
456
and
457.

EPA
believes
that
implementation
of
the
CGP
may
require
significant
effort
by
construction
site
operators,
but
should
not
result
in
unreasonable
delays
or
stoppages.
EPA
believes
that
protecting
the
natural
resources
of
the
United
States
will
generally
have
positive
effects
on
the
nation's
economy.
1079
12d
459
Are
water
quality
standards
violations
of
tribal
standards­­
e.
g.,
a
narrative
provision,
subsequent
to
noncompliance
with
this
permit,
void
if
the
Tribe's
standards
are
in
the
"
under
review"
category
that
a
lot
of
tribal
water
quality
standards
program
applications
are
in?
Water
quality
standards
(
promulgated
by
Tribes
and
States)
undergo
review
by
EPA
for
several
different
reasons.
Depending
on
the
reason
for
that
review,
the
standard
under
review
may
still
be
valid,
or
(
in
the
case
of
new
standards,
for
example),
there
may
be
pre­
existing
standards
that
apply
until
such
time
as
the
new
standard
is
approved
and
goes
into
effect.
Generally,
there
will
always
be
some
water
quality
standard
that
applies.
If
you
are
unsure
about
which
standard
is
currently
recognized
by
EPA
as
the
applicable
standard,
contact
the
appropriate
EPA
Regional
Office.
1040
12d
460.1
The
proposed
options,
described
in
the
Fact
Sheet
accompanying
the
proposed
Permit,
include:
 
We
do
not
believe
any
of
these
options
are
reasonable
because
with
limited
exceptions
they
constitute
an
outright
prohibition
against
the
use
of
general
permits
where
a
sediment
or
sediment­
related
TMDL
has
been
established
but
a
wasteload
allocation
for
construction
activity
discharge
is
not
specifically
precluded.
...
The
Associations'
Proposal:
If
the
sediment
or
sediment­
related
TMDL
does
not
specify
waste
load
allocations
for
construction
storm
water
discharges,
the
operator
must
first
contact
the
State
or
EPA
Region
that
developed
the
TMDL
to
determine
why.
A
discussion
with
the
State
or
EPA
Region
that
developed
the
TMDL
should
lead
to
one
of
the
following
three
results:
EPA
has
made
concerted
effort
to
retain
the
use
of
general
permits
in
most
watersheds
where
TMDLs
have
been
established.
To
accomplish
this
it
will
be
necessary
in
some
cases
for
construction
site
operators
to
incorporate
additional
measures
in
their
SWPPPs.

EPA
generally
agrees
with
your
suggestion
that
the
construction
operator
may
often
need
to
obtain
clarification
from
the
state
or
territorial
TMDL
authority
on
wasteload
allocations.
Guidance
on
this
process
is
available
on
EPAs
storm
water
website.
See
response
to
comment
455.
EPA
also
agrees
that
individual
permits
may
be
warranted
in
some
situations,
although
hastens
to
clarify
that
where
an
allocation
to
a
source
is
deemed
inappropriate,
authorization
under
any
permit,
including
an
individual
permit,
may
be
inappropriate.

EPA
appreciates
that
you
understand
the
legal
obligation
of
giving
due
consideration
to
the
water
quality
concerns
expressed
in
the
TMDL.
1049
24
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
460.2
(
1)
If
it
is
the
case
that
a
waste
load
allocation
for
construction
storm
water
discharges
in
the
TMDL
was
not
mentioned
because
it
was
found
unnecessary
by
the
State
or
EPA
Region,
then
a
document
to
this
effect
should
be
provided
to
the
discharger,
and
the
discharges
of
storm
water
are
authorized
so
long
as
the
SWPPP
is
developed
with
due
consideration
for
the
water
quality
concerns
expressed
in
the
TMDL;
or
(
2)
If
it
is
the
case
that
a
waste
load
allocation
for
construction
storm
water
discharges
in
the
TMDL
was
not
mentioned
because
they
were
not
considered
by
the
State
or
EPA
Region,
then
the
discharges
of
storm
water
are
authorized
if
an
allocation
for
construction
storm
water
discharges
can
be
inferred
(
because
they
are
minor)
or
included
within
an
existing
TMDL
allocation
(
for
instance,
the
construction
storm
water
discharges
can
be
offset
by
corresponding
reductions
in
other
types
of
discharge).
This
option
is
available
so
long
as
the
SWPPP
is
developed
with
due
consideration
for
the
water
quality
concerns
expressed
in
the
TMDL;
or
1049
12d
460.3
(
3)
If
it
is
the
case
that
a
waste
load
allocation
for
construction
storm
water
discharges
in
the
TMDL
was
not
mentioned
because
they
were
not
considered
by
the
State
or
EPA
Region,
and
an
allocation
cannot
be
inferred
or
included
within
an
existing
TMDL
allocation,

then
EPA
must
notify
the
discharger
within
thirty
(
30)

days
that
the
construction
general
permit
is
not
appropriate
for
authorizing
the
storm
water
discharge,

and
that
an
individual
permit
application
is
necessary,

unless
the
discharger
maintains
with
the
SWPPP
a
certification
that
the
SWPPP
is
consistent
with
the
assumptions
and
requirements
of
any
available
waste
load
allocations
in
the
TMDL.
1049
25
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
461
The
analysis
that
is
required
to
determine
if
coverage
is
available
for
operators
whose
stormwater
discharges
are
into
impaired
waters
is
unreasonable,
unworkable,

and
places
the
burden
on
the
permittee
instead
of
EPA.
...
However,
there
are
3
stages
in
the
TMDL
process,
and
how
general
permits
are
to
be
handled
in
each
of
these
stages
is
a
difficult
issue
that
must
be
resolved
before
EPA
finalizes
the
CGP.
First,
it
must
be
determined
how
permit
coverage
will
be
affected
in
the
interim
between
the
time
that
a
water
body
is
listed
as
impaired,
and
a
TMDL
is
approved.
Second,
it
must
be
determined
how
permit
coverage
will
be
affected
after
the
TMDL
has
been
approved
but
not
implemented.
Third,
it
must
be
determined
how
permit
coverage
will
be
affected
when
implementation
of
an
approved
TMDL
has
been
determined
and
initiated.

EPA's
proposal
does
not
address
all
3
of
these
stages.
Prior
to
the
approval/
establishment
of
a
TMDL
for
an
impaired
waterbody,
EPA
has
provided
that
construction
activities
be
eligible
for
CGP
coverage
using
the
standard
discharge
requirements.

After
a
TMDL
has
been
approved
the
permittee
must
incorporate
in
its
SWPPP
measures
to
ensure
that
discharges
are
consistent
with
the
relevant
allocations
in
that
TMDL.

EPA
does
not
believe
that
these
requirements
place
an
unreasonable
burden
on
permittees.
1057
12d
463
However,
we
are
concerned
with
EPA's
proposal
that
if
there
is
no
allocation
set
for
construction
stormwater
discharges
then
the
operator
would
not
be
eligible
for
coverage
under
the
general
permit.
We
respectfully
suggest
that
the
EPA
allow
for
a
more
flexible
approach
where
an
allocation
is
either
inferred
or
included
into
an
already
existing
framework,
allowing
for
the
continuous
coverage
under
the
general
permit,

except
where
the
TMDL
specifically
excludes
construction
stormwater
discharges.
See
response
to
comment
455.
1070
26
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
464.1
However,
EPA
also
has
proposed
that
if
there
is
no
allocation
enumerated
for
construction
stormwater
discharges
(
or
agricultural
discharges
where
much
of
the
agriculture
has
been
sold
for
development),
then
the
site
operator
would
not
be
eligible
for
CGP
coverage.
The
Coalition
strongly
opposes
such
an
outright
prohibition,
for
several
reasons.
First,
loadings
from
existing
stormwater
discharges
already
are
included
in
some
component
of
the
total
loading
calculation
­
most
likely
in
the
"
background
level"
­

even
if
they
have
not
been
specifically
identified.

Therefore,
there
is
no
basis
for
concluding
that
those
discharges
are
not
authorized
under
the
TMDL,

particularly
when
EPA
has
already
identified
these
discharges,
by
virtue
of
covering
them
in
a
general
permit,
as
usually
small
enough
in
terms
of
impacts
that
they
do
not
need
individual
permits.
See
response
to
comment
455.
1071
12d
464.2
For
these
discharges,
we
believe
that
the
most
suitable
requirements
for
CGP
coverage
would
be
the
same
as
discussed
above
for
discharges
on
waters
where
a
TMDL
has
not
yet
been
completed:
the
discharger
can
rely
on
a
certified
environmental
professional
to
certify
that
the
BMPs
in
its
SWPPP
are
the
"
most
appropriate"
and
are
designed
to
"
effectively
minimize"

the
discharge
of
the
pollutant
at
issue.
1071
27
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
465
However,
EPA
also
has
proposed
that
if
there
is
no
allocation
enumerated
for
construction
stormwater
discharges
(
or
agricultural
discharges
where
much
of
the
agriculture
has
been
sold
for
development),
then
the
site
operator
would
not
be
eligible
for
CGP
coverage.
The
Coalition
strongly
opposes
such
an
outright
prohibition,
for
several
reasons.
...
For
new
discharges...
EPA
should
adopt
an
approach
that
looks
closely
at
whether
an
allocation
for
construction
stormwater
discharges
can
be
inferred
or
fit
into
the
existing
TMDL
allocations,
allowing
CGP
coverage.

Only
where
the
TMDL
specifically
precludes
construction
stormwater
discharges,
would
the
permitting
authority
and
operator
know
immediately
that
CGP
coverage
is
not
an
option.
See
response
to
comment
455.
1071
12d
466.1
However,
EPA
also
has
proposed
that
if
there
is
no
allocation
enumerated
for
construction
stormwater
discharges
(
or
agricultural
discharges
where
much
of
the
agriculture
has
been
sold
for
development),
then
the
site
operator
would
not
be
eligible
for
CGP
coverage.
The
Coalition
strongly
opposes
such
an
outright
prohibition,
for
several
reasons.
...
In
the
situation
in
which
the
TMDL
does
not
specify
an
allocation
for
construction
stormwater
discharges,
EPA
should
adopt
the
following
alternatives.
First,
in
developing
the
TMDL,
EPA
or
the
state
may
have
concluded
that
a
wasteload
allocation
for
construction
stormwater
discharges
was
unnecessary.
In
such
instances,
the
site
operator
would
develop
its
SWPPP
with
due
consideration
of
water
quality
factors,

ensuring
that
it
is
using
the
"
most
appropriate"
BMPs
that
"
effectively
minimize"
the
pollutant
loadings.
Next,

if
the
TMDL
is
completely
silent
with
regard
to
an
allocation
for
construction
stormwater
discharges,
the
site
operator
must
conduct
further
research.
See
response
to
comment
455.
1071
28
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
466.2
The
site
operator
should
contact
EPA
or
the
state
to
ask
why
construction
stormwater
discharges
were
not
mentioned
in
the
TMDL.
If
the
response
is
that
such
discharges
were
considered
to
be
minor,
the
discharger
should
be
able
to
document
this
exchange
with
its
permitting
authority,
and
then
certify
eligibility
under
the
CGP
based
on
designing
and
implementing
BMPs
that
are
certified
under
the
"
most
appropriate"

and
"
effectively
minimize"
tests.
Further,
if
EPA
or
the
state
indicate
that
construction
stormwater
discharges
were
not
mentioned
in
the
TMDL
because
they
simply
were
not
considered,
but
such
discharges
still
could
be
fit
into
the
TMDL
allocations
(
either
because
they
are
minor
or
because
other
reductions
are
being
or
can
be
obtained
that
would
balance
those
discharges),
the
discharger
would
be
authorized
to
certify
eligibility
for
the
permit,
using
the
"
most
appropriate"
and
"
effectively
minimize"
tests
as
set
forth
above.
1071
12d
466.3
In
addition,
EPA
or
the
state
would
reserve
the
right
to
review
or
revise
the
TMDL
and
amend
the
allocations
to
expressly
include
construction
stormwater
discharges.
Finally,
if
the
construction
stormwater
discharges
cannot
be
fit
into
the
TMDL
allocation,
the
site
operator
would
not
be
eligible
for
CGP
coverage.
1071
12d
467
[
W]
e
believe
that
all
requirements
associated
with
the
TMDL
program
should
be
deleted
until
the
TMDL
program
is
promulgated
and
finalized.
Due
to
the
present
state
of
uncertainty
about
the
TMDL
program
and
its
requirements,
it
seems
premature
to
write
a
permit
referencing
that
program
and
it's
requirements
until
those
requirements
are
known
and
understood
by
the
states
and
the
regulated
community.
The
TMDL
program
has
been
an
established
program
for
many
years.
Although
the
most
recently
proposed
rules
for
the
TMDL
program
have
been
withdrawn,

the
program
itself
is
still
an
integral
component
of
Clean
Water
Act
programs.

The
proposed
CGP
requires
construction
site
operators
to
comply
with
relevant
provisions
of
an
approved
or
established
TMDL.
1002
29
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
469
A
better
approach
to
addressing
construction
sites
within
impaired
watersheds
is
to
presume
inclusion
in
the
Permit
rather
than
to
presume
such
sites
will
require
an
individual
NPDES
permit.
To
this
end,
the
Permit
(
and
Fact
Sheet)
language
should
be
revised
to
indicate
that
sites
draining
to
impaired
waters
should
be
consistent
with
any
approved
TMDLs,
as
applicable.
Furthermore,
to
the
extent
that
any
applicable
approved
TMDL
addresses
construction
discharges,
then
sites
relevant
to
that
TMDL
should
maintain
consistency
with
the
terms
of
the
TMDL;

however,
if
a
TMDL
fails
to
address
construction
site
discharges
specifically,
then
sites
in
areas
under
that
TMDL
should
not
be
dismissed
from
the
Permit
program.
See
response
to
comment
455.
1039
12d
471
The
permit
should
include
a
risk­
based
approach
to
construction
site
runoff.
Construction
sites
that
are
at
a
higher
risk
to
impair
local
waters
and
aquatic
resources
should
be
identified,
and
increased
inspections
and
monitoring
should
be
required.
Risk
might
be
based
on
a
number
of
parameters,
including:

slope
of
site;
proximity
to
a
sensitive
stream,
wetland,

or
shellfish
growing
area;
proximity
to
habitat
of
a
specie
listed
under
the
Endangered
Species
Act;
or
proximity
to
a
waterbody
that
is
impaired
for
a
pollutant
typically
found
in
construction
runoff.
A
permittee
who
discharges
to
a
waterbody
that
is
impaired
for
a
pollutant
typically
found
in
construction
runoff
(
e.
g.,

turbidity,
pH)
should
be
required
to
meet
water
quality
standards
for
the
pollutant
at
the
perimeter
of
their
site.
EPA
agrees
that
these
are
all
good
criteria
for
the
permitting
authority
to
use
in
determining
inspection
priorities.
Most
permitting
authorities
already
use
a
prioritization
system
that
includes
at
least
a
few
of
these
criteria.

As
for
permit
terms
themselves
EPA
is
obliged
to
ensure
that
all
NPDES
permits
it
issues
include
limitations
necessary
to
meet
water
quality
standards.
1053
30
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
472
The
proposed
CGP
requires
that
the
Notice
of
Intent
(
NOI)
state
that
procedures
are
in
place
to
meet
any
requirements
for
discharges
that
have
a
Total
Maximum
Daily
Load
(
TMDL),
before
any
work
is
commenced.
 
TMDL
requirements
were
not
discussed
in
either
the
existing
CGP
or
the
proposed
C&
D
ELG
 
Construction
and
Development
Effluent
Limitation
Guideline
(
C&
D
ELG)
of
June
24,
2002
 

67
Federal
Register
42643­
42686
(
June
24,
2002)...

As
with
all
ELGs,
it
is
understood
that
the
C&
D
ELG
will
not
supercede
discharge
requirements
under
other
rules
(
such
as
TMDL
requirements)
that
may
be
more
stringent
than
those
in
the
proposed
rule.
Therefore,

specifically
requiring
the
inclusion
of
TMDL
procedures
in
the
CGP
is
not
necessary.
 
AAR
recommends
that
discussions
of
TMDL
requirements
be
eliminated
from
the
proposed
CGP.
EPA
disagrees
that
it
is
not
necessary
to
address
TMDL
allocations
in
the
permit.
EPA
regulations
specifically
provide
that
effluent
limits
in
an
NPDES
permit
are
to
be
consistent
with
the
assumptions
and
requirements
of
any
available
wasteload
allocation
approved
by
EPA
in
a
TMDL
(
40
CFR
122.44(
d)(
1)(
vii)(
B).

Comments
characterizing
the
proposed
construction
and
development
Effluent
Limitation
Guidelines
are
generally
irrelevant
to
this
action,
but
EPA
notes
that
the
ELG
is
just
proposed
at
this
stage;
it
is
not
final.
1058
12d
477
The
permit
presumes
that
construction
sites
within
watersheds
where
a
sediment
TMDL
has
been
implemented
are
not
eligible
for
Permit
coverage
until
certain
certifications
occur
and
unless
a
specific
TMDL
with
specific
construction­
related
allocations
has
been
established.
We
believe
these
assumptions
and
limitations
on
Permit
coverage
are
unreasonable
and
will
likely
prevent
numerous
sites
from
availing
themselves
of
Permit
coverage.
Given
that
there
are
so
many
impaired
watersheds
in
the
country
without
approved
TMDLs,
the
Permit
would
apparently
prohibit
construction
sites
in
these
watersheds
from
obtaining
coverage
and
would,
instead,
require
individual
NPDES
permits.
A
better
approach
to
addressing
construction
sites
within
impaired
watersheds
is
to
presume
inclusion
in
the
Permit
rather
than
to
presume
such
sites
will
require
an
individual
NPDES
permit.
The
CGP
does
not
preclude
authorization
for
construction
sites
in
watersheds
with
TMDLs
without
specific
construction­
related
allocations.
In
fact,
EPA
has
specified
provisions
to
accommodate
the
situation
when
a
TMDL
has
not
made
a
clear
allocation
to
storm
water
discharges
from
construction
activities.

Likewise,
the
CGP
does
not
prevent
authorization
in
watersheds
without
approved
TMDLs.

Similarly,
the
CGP
does
not
require
that
construction
sites
in
impaired
watersheds
obtain
coverage
under
individual
permits.
1055
31
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
481
With
regard
to
the
Permit's
current
"
certification"

requirement
related
to
TMDL
compliance,
that
provision
should
be
modified
to
indicate
that
site
operators
should
ensure
that
SWPPPs
are
consistent
with
the
applicable
TMDL
to
the
extent
that
the
TMDL
contains
provisions
relevant
to
individual
construction
sites.
This
would
respect
the
fact
that
the
TMDL
may
not
contain
specific
directives
for
construction
sites
or
may
not
contain
restrictions
upon
construction
sites
until
after
a
given
time
frame
or
until
other
conditions
are
first
met.
The
CGP
does
require
that
SWPPPs
incorporate
any
provisions
necessary
to
meet
TMDL
allocations
and
assumptions.
EPA
has
made
provisions
for
operators
to
obtain
clarification
on
ambiguous
allocations.
EPA
is
allowing
authorization
under
the
CGP
when
the
TMDL
and
the
TMDL
authority
do
not
provide
or
clarify
allocations,
nor
expressly
prohibit
construction
site
discharges.
1039
12d
485.1
We
note
also
that
the
general
permit
does
not
even
clearly
state
that
discharges
that
are
not
consistent
with
the
wasteload
allocation
of
a
TMDL
for
sediment
(
or
a
parameter
that
addresses
sediment)
are
not
authorized
under
the
permit.
In
other
words,
it
is
not
merely
that
the
SWPPP
must
be
certified
as
consistent
with
the
TMDL.
The
discharges
themselves
must
be
consistent
with
the
wasteload
allocation
of
any
applicable
TMDL
to
be
authorized
under
an
NPDES
permit.
The
permit
should
also
require
that
the
SWPPP
be
consistent
with
any
implementation
plan
developed
for
a
TMDL
and
should
state
that
discharges
that
are
not
consistent
with
that
implementation
plan
are
not
authorized
under
the
permit.
EPA
believes
that
the
CGP
does
require
that
the
discharges
must
be
consistent
with
TMDL
allocations
to
be
eligible
for
coverage
under
this
permit.
"
You
are
not
eligible
for
coverage
under
this
permit
for
discharges
of
pollutants
of
concern
to
waters
for
which
there
is
a
total
maximum
daily
load
(
TMDL)
established
or
approved
by
EPA
unless
you
develop
and
certify
a
SWPPP
that
is
consistent
with
the
assumptions
and
requirements
of
such
TMDL.
To
be
eligible
for
coverage
under
this
general
permit,
you
must
incorporate
into
your
SWPPP
any
conditions
applicable
to
your
discharges
necessary
for
consistency
with
the
assumptions
and
requirements
of
such
TMDL.
If
a
specific
wasteload
allocation
has
been
established
that
would
apply
to
your
discharges,
you
must
incorporate
that
allocation
into
your
SWPPP
and
implement
necessary
steps
to
meet
that
allocation."
Part
1.3(
C)(
5)
"
You
must
implement
the
SWPPP
as
written
from
commencement
of
construction
activity
until
final
stabilization
is
complete."
Part
3.1(
D)
1065
12d
485.2
EPA
reviews
and
approves
all
TMDLs,
and
is
obligated
to
incorporate
all
TMDL
allocations
into
NPDES
permits,
as
relevant.
At
this
time
EPA
does
not
approve
implementation
plans.
EPA
agrees
that
it
is
a
good
idea
for
dischargers
to
incorporate
TMDL
implementation
plan
provisions,
but
has
not
made
such
conditions
a
permit
requirement.
1065
32
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
486
Boise
City
has
developed
and
implemented
a
Construction
Site
Discharge
Erosion
and
Sediment
Control
Program.
Boise
City
believes
that
the
adopted
Boise
City
program
is
sufficient
to
meet
the
issued
federal
municipal
permit
construction
discharge
program
requirements,
Idaho
water
quality
standards,

and
the
TMDL
allocations
for
sediment
within
the
Boise
River.
 
Boise
City
recommends
the
proposed
Construction
General
Storm
Water
Permit
be
revised
to
include
the
following
"
limitation
on
coverage"
for
those
applicable
construction
activities
that
occur
within
the
jurisdiction
of
municipalities
where
local
programs
have
been
established
in
compliance
with
the
municipal
permit
requirements:

C.
Limitations
on
Coverage
x.
Discharges
regulated
by
an
authorized
entity
under
an
issued
municipal
separate
storm
sewer
system
NPDES
permit:

Discharges
regulated
by
an
authorized
entity
under
an
issued
municipal
separate
storm
sewer
system
NPDES
permit
do
not
require
additional
coverage
under
this
general
permit.
EPA
recognizes
your
desire
to
eliminate
unecessary
redundancy.
However,

there
are
a
number
of
state
and
local
erosion
and
sediment
control
programs
in
the
United
States.
Some
arise
from
federal
MS4
programs,
some
from
state
and
local
statute.
Not
all
are
effective
water
quality
protection
programs.
EPA
declines
to
provide
a
blanket
exemption
in
a
general
permit
with
nation­
wide
application
on
the
basis
of
the
presence
of
a
local
program;
water
quality
in
communities
without
good
quality
programs
would
suffer.
In
addition
the
MS4
construction
site
permit
requirements,
while
over­
lapping,
are
not
necessarily
(
depending
upon
how
the
permitting
authority
has
written
the
permit)
identical
to
the
federal
construction
storm
water
regulations.
There
is
not
a
single
federal
MS4
storm
water
permit;
States
and
EPA
Regions
have
their
own.

EPA
does
support
States
with
NPDES
permitting
authority
who
are
implementing
NPDES
construction
storm
water
permits
to
complement
rather
than
duplicate
state
or
local
erosion
and
sediment
control
programs.
In
those
cases,
the
state
generally
has
some
oversight
authority
for
the
state
or
local
progr
1032
33
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
487
Boise
City
has
developed
and
implemented
a
Construction
Site
Discharge
Erosion
and
Sediment
Control
Program.
 
Because
the
EPA's
proposed
Construction
General
Storm
Water
Permit
is
also
to
meet
these
same
requirements,
the
additional
federal
general
permit
for
these
same
activities
appears
to
be
duplication
of
the
requirements
attained
under
the
municipal
program.
Therefore,
Boise
City
recommends
the
proposed
Construction
General
Storm
Water
Permit
be
revised
to
include
the
following
"
limitation
on
coverage"
for
those
applicable
construction
activities
that
occur
within
the
jurisdiction
of
municipalities
where
local
programs
have
been
established
in
compliance
with
the
municipal
permit
requirements:
C.
Limitations
on
Coverage
x.
Discharges
regulated
by
an
authorized
entity
under
an
issued
municipal
separate
storm
sewer
system
NPDES
permit:
Discharges
regulated
by
an
authorized
entity
under
an
issued
municipal
separate
storm
sewer
system
NPDES
permit
do
not
require
additional
coverage
under
this
general
permit.
See
response
to
comment
486.
1052
34
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
492
This
process
for
addressing
water
quality
issues
makes
sense
[
referring
to
CGP
Sec.
4.5].
However,

the
provisions
related
to
water
quality
standards 
,

which
are
in
Section
I.
3.
C.
4
of
the
permit,
are
not
consistent
with
this
process.
On
the
one
hand,
if
a
discharge
poses
water
quality
issues
at
the
time
of
certification,
the
proposed
CGP
states
that
the
discharger
is
not
eligible
for
permit
coverage
at
all,

irrespective
of
any
efforts
by
the
permittee
to
address
the
issue.
On
the
other
hand,
if
the
water
quality
issue
is
discovered
after
certification,
the
discharger
does
not
immediately
lose
eligibility,
but
rather
has
a
number
of
options
available
to
address
the
issue.
The
best
way
to
address
this
disconnect
is
to
modify
the
proposal
to
marry
a
pre­
certification
requirement
to
ensure
use
of
the
"
most
appropriate
BMPs"
that
will
"
effectively
minimize"
the
loadings,
with
the
post­
certification
options
that
are
currently
contained
in
the
proposed
CGP.
40
CFR
122.4
prohibits
new
authorization
under
a
NPDES
permit
when
the
discharge
does
not
comply
with
the
permit
requirements
and
the
Clean
Water
Act.
Therefore,
EPA
will
not
convey
permit
coverage
to
an
operation
that
starts
out
causing
or
contributing
to
a
violation
of
water
quality
standards,
or
in
other
words
will
be
in
immediate
violation
of
the
permit.

EPA
believes
that
terms
like
"
effectively
minimize"
are
ambiguous
in
this
context.
The
Clean
Water
Act
requires
that
NPDES
permits
specify
discharge
limitations
necessary
to
meet
water
quality
standards.
1071
12d
494
We
urge
EPA
to
modify
the
proposed
CGP
so
that
eligibility
for
permit
coverage
does
not
require
the
development
and
certification
of
an
SWPPP
that
is
consistent
with
the
assumptions
and
requirements
of
the
TMDL
unless
the
state
has
demonstrated
by
current
in­
stream
data
that
the
pollutants
in
storm
water
runoff
from
active
construction
sites
are
a
major
source
of
pollution
for
that
specific
waterbody.
It
is
the
responsibility
of
the
TMDL
to
document
sources
and
causes
of
water
quality
impairment.
There
is
a
national
set
of
standards
for
this
process
that
include
the
criterion
you
have
noted:
demonstrating
that
the
storm
water
runoff
from
construction
activities
is
a
source
of
pollution
for
that
waterbody.
EPA
notes
that
the
concept
of
being
a
"
major
source"
is
relative
and
not
absolute;
the
TMDL
must
consider
ALL
sources,
and
depending
on
the
severity
of
the
impairment
may
(
or
may
not)
provide
more
restrictive
allocations
to
any
source.

EPA
encourages
all
stakeholders,
including
construction
site
operators,
to
become
involved
in
this
process
because
the
forum
for
influencing
TMDL
allocations
is
the
TMDL
development
process,
not
the
permit
authorization
process.

EPA
is
obligated
to
include
NPDES
permit
discharge
limitations
consistent
with
the
assumptions
and
requirements
of
any
available
wasteload
allocation
in
a
TMDL
approved
by
EPA.
1079
35
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
495
EPA
believes
that
TMDLs 
will
provide
operators
with
information
as
to
what
constitutes
"
adequate
and
sufficient
BMPs."
We
maintain
that
this
assumption
is
incorrect;
it
places
a
significant
burden
on
site
operators
and
will
prevent
the
widespread
use
of
the
CGP.
Allocations
contained
in
the
TMDL
may
take
one
of
several
forms,
including
performance
standards,
or
more
flexible
narrative
standards 
We
are
greatly
concerned
that
contractors/
developers­
particularly
small
businesses­
will
not
possess
the
required
resources
(
i.
e.,
manpower
or
money)
or
know­
how
to
meet
the
detailed
TMDL
analysis
that
would
be
required
under
the
draft
CGP 
EPA
agrees
there
are
TMDLs
that
do
not
provide
clear
allocations
to
storm
water
discharges
from
construction
activities.
See
response
to
comment
460.

Construction
operators
are
not
required
to
perform
a
TMDL
analysis.
A
construction
operator
should
obtain
clarification
from
the
TMDL
authority
on
how
the
existing
TMDL
allocations
apply
to
the
discharge.
EPA
believes
that
the
controls
construction
operators
must
implement
to
satisfy
the
provisions
of
a
TMDL
will
generally
be
an
extension
or
enhancement
of
standard
construction
BMPs,
and
are
therefore
well­
within
the
ability
of
most
construction
site
operators
to
understand
and
to
implement.

EPA
encourages
all
watershed
stakeholders,
including
construction
site
operators,
to
get
involved
in
the
development
of
TMDLs
in
your
watershed(
s),

and
help
shape
the
form
that
the
allocations
will
take.
1079
12d
497.1
It
is
obvious
from
the
2000
Report
[
National
Water
Quality
Inventory,
2000
Report,
USEPA
Office
of
Water,
Oct.
2002]
that
storm
water
runoff
from
construction
sites
is
not
considered
by
the
states
and
tribes,
who
are
charged
with
assessing
the
condition
of
their
waters,
to
be
creating
major
water
quality
problems.
Thus,
NAHB
urges
EPA
to
modify
the
proposed
construction
general
permit
so
that
eligibility
for
permit
coverage
does
not
require
the
development
and
certification
of
a
SWPPP
that
is
consistent
with
the
assumptions
and
requirements
of
the
TMDL
unless
the
State
has
demonstrated
by
current
instream
data
that
the
pollutants
in
storm
water
runoff
from
active
construction
sites
are
a
major
source
of
pollution
to
that
specific
waterbody.
EPA
does
not
agree
that
the
2000
National
Water
Quality
Inventory
Report
supports
the
conclusion
that
States
and
Tribes
do
not
consider
construction
activities
to
have
an
impact
on
water
quality.
Regardless,
EPA
has
concluded
that
construction
sites
are
a
major
source
of
water
quality
impairments.
Many
states'
National
Water
Quality
Inventory
Reports
do
not
identify
construction
sites
specifically
as
major
sources,
because
construction
sites
are
not
one
of
the
report
categories.
Also,
because
many
state
monitoring
programs
take
place
on
5
year
cycles
(
evaluation
of
a
given
site
only
once
every
5
years),
and
construction
activities
take
place
over
shorter
periods
of
time,
states
often
do
not
have
the
necessary
information
to
draw
conclusions
about
the
relative
impacts
of
construction
activities.
However,
urban
storm
water
runoff
is
identified
as
a
major
source
of
impairment,
and
sediment
is
identified
as
a
major
pollutant
(#
1
for
rivers
and
streams
nation­
wide,
#
3
for
lakes).
1057
12d
497.2
EPA
is
obligated
to
ensure
that
discharges
to
all
bodies
of
water
do
not
cause
or
contribute
to
non­
attainment
of
a
water
quality
standard,
not
just
discharges
to
those
waters
that
are
already
impaired.
Failure
to
protect
good
quality
waters
will
result
in
many
more
becoming
impaired.
EPA
is
also
obligated
to
include
in
the
CGP
limitations
necessary
to
meet
water
quality
standards,
and
to
include
limits
that
are
consistent
with
the
assumptions
and
requirements
of
any
available
wasteload
allocation
in
a
TMDL
approved
by
EPA.
1057
36
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12d
498
This
provision
[
referring
to
CGP
Sec.
1.3.
C.
4]
is
inconsistent
with
other
provisions
of
the
permit
(
discussed
below),
and
deviates
substantially
from
earlier
versions
of
the
permit
that
were
circulated
for
review.
In
those
versions,
the
CGP
specified
that,

where
a
source
is
discharging
a
pollutant
for
which
the
waterbody
is
listed
as
impaired,
and
a
total
maximum
daily
load
("
TMDL")
for
that
pollutant
has
not
yet
been
prepared,
the
discharger
can
rely
on
a
certified
environmental
professional
to
certify
that
the
BMPs
in
its
SWPPP
are
the
"
most
appropriate"
and
are
designed
to
"
effectively
minimize"
the
discharge
of
the
pollutant
at
issue.
EPA
should
return
to
using
that
language.
The
proposed
CGP,
published
in
the
federal
register
on
December
20,
2003,
is
the
only
version
of
this
permit
that
has
been
circulated
for
public
review.
This
document
does
not
contain
the
language
or
provisions
you
suggest.

EPA
believes
that
terms
like
"
most
appropriate"
and
"
effectively
minimize"
are
ambiguous
in
this
context.
EPA
is
obligated
to
include
NPDES
permit
limits
necessary
to
meet
water
quality
standards,
and
to
include
limits
that
are
consistent
with
the
assumptions
and
requirements
of
any
available
wasteload
allocation
in
a
TMDL
approved
by
EPA.
1071
12e
429
Even
more
basic
to
the
issue
of
compliance,
EPA
fails
to
provide
a
simple
process
through
which
the
public
can
get
an
answer
to
the
most
basic
questions
regarding
TMDLs
 
1)
What
rivers
and
lakes
in
my
area
have
TMDLs
for
sediment?
2)
Who
can
I
contact
to
find
out
more
about
these
TMDLs?
We
urge
EPA
to
provide
up­
to­
date
information
in
the
final
permit
on
the
location
of
impaired
waters
and
the
status
of
TMDL
development
on
county­
by­
county
basis
as
EPA
has
done
with
endangered
species.
See
response
to
comment
455.
1068
12e
432
Our
other
concern
is
with
TMDLs
that
have
not
been
written
with
a
specific
waste
load
allocation
for
construction
storm
water
discharges,
but
have
not
specifically
concluded
that
such
wasteload
allocations
are
unnecessary.
The
fact
sheet
indicates
that
if
this
is
the
case,
the
EPA
is
reviewing
three
alternatives
[
Page
14
­
15
of
the
Fact
Sheet].
See
response
to
comment
455.
1034
37
Water
Quality
Standards,
TMDLs,
and
Impaired
Waters
Comment
Response
New
Topic
Summ.
ID
Summary
Response
DocumentID
12e
434
We
think
it
would
be
much
more
appropriate
for
the
EPA
to
require
DEP
to
review
each
of
its
approved
TMDLs
and
post
a
list
on
their
website
of
which
ones
do
not
include
the
above
measures
in
the
TMDL
on
their
website,
instead
of
each
construction
contractor
trying
to
find
out.
DEP
should
proceed
to
revise
the
TMDLs
on
that
list
to
include
construction
activities
in
their
load
allocation
calculations.
Otherwise,
this
would
place
an
undue
burden
on
MassHighway
and
each
individual
contractor
to
prepare
an
individual
permit
application
because
DEP
did
not
include
all
potential
land
uses
in
its
TMDL
analysis.
Furthermore,
it
seems
unfair
to
put
the
burden
of
preparing
an
individual
permit
application
on
the
contractor
just
because
DEP
did
not
include
all
potential
land
uses
in
its
TMDL
analysis.
EPA
agrees
with
the
importance
of
establishing
a
process
for
identifying
and
modifying
TMDLs
with
ambiguous
allocations.
See
response
to
comment
455
for
details
on
the
process.

EPA
encourages
all
stakeholders
to
take
an
active
role
in
TMDL
development,

so
that
allocations
do
not
come
as
a
surprise.

EPA
does
not
believe
it
will
be
necessary
for
construction
operators
to
obtain
individual
permit
coverage
in
the
majority
of
these
situations.
1034
12e
444
EPA
must
provide
the
regulated
community
with
better
and
more
detailed
information
on
how
to
determine
whether
the
agency
has
approved
or
established
a
TMDL 
and
for
what
pollutants.
In
addition,
the
agency
must
better
educate
contractors/
developers
on
how
to
identify
and
interpret
WLAs
for
construction
site
runoff.
See
response
to
comment
455.
1079
12e
451
NRDC
is
unclear
as
to
the
basis
for
the
statement
on
p.
9
of
the
draft
permit
that
'
EPA
believes
that
TMDLs,

when
established
or
approved,
will
provide
operators
with
information
as
to
what
constitutes
'
adequate
and
sufficient
BMPs.''
That
type
of
information
is
unlikely
to
be
in
the
TMDL
and
is
only
slightly
more
likely
to
be
in
the
implementation
plan
for
the
TMDL.
EPA
agrees
that
many
older
TMDLs
may
not
adequately
provide
this
type
of
information,
not
because
they
do
not
list
BMPs,
but
because
they
fail
to
explicitly
provide
guidance
on
the
desired
outcome
for
storm
water
discharges.
See
response
to
comment
455
for
details
on
the
process
by
which
operators
can
obtain
clarification
on
ambiguous
TMDLs/
TMDL
allocations.

EPA
also
underscores
that,
while
it
may
be
desirable,
it
is
not
necessary
for
the
TMDL
to
specify
BMPs
because:

1)
often
a
well­
implemented
program
of
standard
BMPs
will
be
adequate
to
meet
water
quality
standards,
and,

2)
establishing
an
outcome
(
i.
e.
load,
concentration)
does
not
require
that
the
specific
technology
be
pre­
determined.
In
fact
NPDES
permits
with
numeric
effluents
rarely
specify
the
technology
that
must
be
used
to
meet
the
limit.
The
permittee
may
choose
any
number
of
ways
to
meet
that
limit.
Even
a
narrative
limit
does
not
necessarily
need
to
be
accompanied
by
a
list
of
BMPs.
1065
38
