
[Federal Register Volume 81, Number 69 (Monday, April 11, 2016)]
[Notices]
[Pages 21328-21335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08276]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2015-0828; FRL 9944-76-OW]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permit for Stormwater Discharges From Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and request for public comment.

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SUMMARY: All 10 EPA Regions are proposing for public comment on the 
draft 2017 National Pollutant Discharge Elimination System (NPDES) 
general permit for stormwater discharges from construction activities, 
also referred to as the ``2017 Construction General Permit (CGP)'' or 
the ``draft permit.'' The draft permit, once finalized, will replace 
the existing general permit covering stormwater discharges from 
construction activities that will expire on February 16, 2017. EPA 
proposes to issue this permit for five (5) years, and to provide permit 
coverage to eligible operators in all areas of the country where EPA is 
the NPDES permitting authority, including Idaho, Massachusetts, New 
Hampshire, and New Mexico, Indian country lands, Puerto Rico, the 
District of Columbia, and most U.S. territories and protectorates. EPA 
seeks comment on the draft permit and on the accompanying fact sheet, 
which contains supporting documentation. This Federal Register document 
describes the draft permit in general and also includes specific topics 
on which the Agency is particularly seeking comment. EPA encourages the 
public to read the fact sheet to better understand the draft permit. 
The fact sheet and draft

[[Page 21329]]

permit can be found at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.

DATES: Comments on the draft permit must be received on or before May 
26, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0828 to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. EPA 
may publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e. on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For further information on the draft 
permit, contact the appropriate EPA Regional office listed in Section 
I.F of this action, or Emily Halter, EPA Headquarters, Office of Water, 
Office of Wastewater Management; telephone number: 202-564-3324; email 
address: halter.emily@epa.gov.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of these documents and other related 
information?
    C. What should I consider as I prepare my comments for EPA?
    D. Will public hearings be held on this action?
    E. What process will EPA follow to finalize the permit?
    F. Who are the EPA regional contacts for this permit?
II. Background of Permit
III. Summary of the Draft Permit
    A. Technology-Based Effluent Limits
    B. Water Quality-Based Effluent Limits (WQBELS)
    C. Summary of Proposed Permit Changes
    D. Provisions for Which EPA is Soliciting Comment
IV. Analysis of Economic Impacts
V. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
VI. Compliance with the National Environmental Policy Act (NEPA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges From Construction Activities
VII. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations
VIII. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments

I. General Information

A. Does this action apply to me?

1. Entities Covered by this Permit
    This draft permit covers the following entities, as categorized in 
the North American Industry Classification System (NAICS):

             Table 1--Entities Covered by This Draft Permit
------------------------------------------------------------------------
                                                               North
                                                             American
                                   Examples of affected      Industry
            Category                     entities         Classification
                                                          System (NAICS)
                                                               Code
------------------------------------------------------------------------
Industry.......................   Construction site operators disturbing
                                   1 or more acres of land, or less than
                                    1 acre but part of a larger common
                                    plan of development or sale if the
                                    larger common plan will ultimately
                                  disturb 1 acre or more, and performing
                                         the following activities:
                                ----------------------------------------
                                 Construction of                     236
                                  Buildings.
                                 Heavy and Civil                     237
                                  Engineering
                                  Construction.
------------------------------------------------------------------------
 

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding the types of activities 
that EPA is now aware of that could potentially be affected by this 
action. Other types of entities not listed in the table could also be 
affected. To determine whether your site is covered by this action, you 
should carefully examine the definition of ``construction activity'' 
and ``small construction activity'' in existing EPA regulations at 40 
CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have 
questions regarding the applicability of this action to a particular 
entity, consult one of the persons listed for technical information in 
the preceding FOR FURTHER INFORMATION CONTACT section.
2. Construction Projects for Which Operators are Eligible for Permit 
Coverage
    Coverage under this permit is available to operators of eligible 
projects located in those areas where EPA is the permitting authority. 
A list of eligible areas is included in Appendix B of the draft permit. 
Eligibility for permit coverage is limited to operators of ``new 
sites,'' operators of ``existing sites,'' ``new operators of new or 
existing sites,'' and operators of ``emergency-related projects.'' A 
``new site'' is a site where construction activities commenced on or 
after February 16, 2017. An ``existing site'' is a site where 
construction activities commenced prior to February 16, 2017. A ``new 
operator of a new or existing site'' is an operator that through 
transfer of ownership and/or operation replaces the operator of an 
already permitted construction site. An ``emergency-related project'' 
is a project initiated in response to a public emergency (e.g., mud 
slides, earthquake, extreme flooding conditions, disruption in 
essential public services), for which the related work requires 
immediate authorization to avoid imminent endangerment to human health 
or the environment, or to reestablish public services.
3. Geographic Coverage
    This draft permit will provide coverage to eligible operators for 
stormwater discharges from construction activities that occur in

[[Page 21330]]

areas not covered by an approved state NPDES program. The areas of 
geographic coverage of this draft permit are listed in Appendix B, and 
include the states of New Hampshire, Massachusetts, New Mexico, and 
Idaho as well as all Indian country lands,\1\ and areas in selected 
states operated by a federal operator. Permit coverage is also provided 
to operators in Puerto Rico, the District of Columbia, and the Pacific 
Island territories, among others.
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    \1\ In January 2016, the Interior Board of Indian Appeals upheld 
the decision by the Bureau of Indian Affairs to provide federal 
recognition to the Pamunkey Tribe of Virginia (see In Re Federal 
Acknowledgement of the Pamunkey Indian Tribe, 62 IBIA 122 (1/28/
16)). Following this action, it is likely state reservation land 
will be placed into trust. Once this process is completed, the 
reservation would be Indian country. EPA would then consult with the 
Tribe as to whether the Tribe would like permit coverage for 
operators on its reservation, and if so, EPA could then issue the 
permit for the Pamunkey Reservation without further notice and 
comment.
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B. How can I get copies of these documents and other related 
information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2015-0828. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) WJC West 
Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC 20460. 
Although all documents in the docket are listed in an index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available in hard 
copy at the EPA Docket Center Public Reading Room, open from 8:30 a.m. 
to 4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744 and the 
telephone number for the Water Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register notice 
electronically through the United States government on-line source for 
Federal regulations at http://www.regulations.gov.
    Electronic versions of this draft permit and fact sheet are 
available on EPA's NPDES Web site at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.
    An electronic version of the public docket is available through the 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. For additional information about EPA's 
public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the Docket Facility identified in Section 
I.B.1.

C. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit CBI information to EPA through 
http://www.regulations.gov or email. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    EPA's policy is that public comments, whether submitted 
electronically or in paper, will be made available for public viewing 
in EPA's electronic public docket as EPA receives them and without 
change, unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. As noted 
previously, CBI information should not be submitted through http://www.regulations.gov or by email. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    2. Tips for Preparing Your Comments.
    When submitting comments, remember to:
     Identify this draft permit by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Where possible, respond to specific questions or organize 
comments by referencing a section or part of this draft permit.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     To ensure that EPA can read, understand, and therefore 
properly respond to comments, the Agency would prefer that commenters 
cite, where possible, the paragraph(s) or section in the draft permit 
or fact sheet to which each comment refers.
     Make sure to submit your comments by the comment period 
deadline identified.

D. Will public hearings be held on this action?

    EPA has not scheduled any public hearings to receive public comment 
concerning the draft permit. All persons will continue to have the 
right to provide written comments during the public comment period. 
However, interested persons may request a public hearing pursuant to 40 
CFR 124.12 concerning the draft permit. Requests for a public hearing 
must be sent or delivered in writing to the same address as provided 
previously for public comments prior to the close of the comment 
period. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
EPA shall hold a public hearing if it finds, on the basis of requests, 
a significant degree of public interest in a public hearing on the 
draft permit. If EPA decides to hold a public hearing, a public notice 
of the date, time and place of the hearing will be made at least 30 
days prior to the hearing. Any person may provide written or oral 
statements

[[Page 21331]]

and data pertaining to the draft permit at the public hearing.

E. What process will EPA follow to finalize the permit?

    After the close of the public comment period, EPA intends to issue 
a final permit on or prior to the expiration date of the current 2012 
CGP. This permit will not be issued until all significant comments have 
been considered and appropriate changes made to the draft permit. EPA's 
responses to public comments received will be included in the docket as 
part of the final permit issuance. Once the final permit becomes 
effective, eligible operators of existing and new sites may seek 
authorization under the new CGP. Any construction site operator 
obtaining permit coverage prior to the expiration date of the 2012 CGP 
will automatically remain covered under that permit until the earliest 
of:
     Authorization for coverage under the 2017 CGP following a 
timely submittal of a complete and accurate Notice of Intent (NOI);
     Submittal of a Notice of Termination (NOT); or
     EPA issues an individual permit or denies coverage under 
an individual permit for the site's stormwater discharges.

F. Who are the EPA regional contacts for this permit?

    For EPA Region 1, contact Suzanne Warner at telephone number: (617) 
918-1383 or email at warner.suzanne@epa.gov.
    For EPA Region 2, contact Stephen Venezia at telephone number: 
(212) 637-3856 or email at venezia.stephen@epa.gov, or for Puerto Rico, 
contact Sergio Bosques at tel.: (787) 977-5838 or email at 
bosques.sergio@epa.gov.
    For EPA Region 3, contact Carissa Moncavage at telephone number: 
(215) 814-5798 or email at moncavage.carissa@epa.gov.
    For EPA Region 4, contact Michael Mitchell at telephone number: 
(404) 562-9303 or email at mitchell.michael@epa.gov.
    For EPA Region 5, contact Brian Bell at telephone number: (312) 
886-0981 or email at bell.brianc@epa.gov.
    For EPA Region 6, contact Suzanna Perea at telephone number: (214) 
665-7217 or email at: perea.suzanna@epa.gov.
    For EPA Region 7, contact Mark Matthews at telephone number: (913) 
551-7635 or email at: matthews.mark@epa.gov.
    For EPA Region 8, contact Amy Clark at telephone number: (303) 312-
7014 or email at: clark.amy@epa.gov.
    For EPA Region 9, contact Eugene Bromley at telephone number: (415) 
972-3510 or email at bromley.eugene@epa.gov.
    For EPA Region 10, contact Margaret McCauley at telephone number: 
(206) 553-1772 or email at mccauley.margaret@epa.gov.

II. Background of Permit

    The Clean Water Act (``CWA'') establishes a comprehensive program 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The CWA also 
includes the objective of attaining ``water quality which provides for 
the protection and propagation of fish, shellfish and wildlife and * * 
* recreation in and on the water.'' 33 U.S.C. 1251(a)(2)). To achieve 
these goals, the CWA requires EPA to control discharges of pollutants 
from point sources through the issuance of National Pollutant Discharge 
Elimination System (``NPDES'') permits.
    The Water Quality Act of 1987 (WQA) added section 402(p) to the 
CWA, which directed EPA to develop a phased approach to regulate 
stormwater discharges under the NPDES program. 33 U.S.C. 1342(p). EPA 
published a final regulation in the Federal Register, often called the 
``Phase I Rule,'' on November 16, 1990, establishing permit application 
requirements for, among other things, ``storm water discharges 
associated with industrial activity.'' See 55 FR 47990. EPA defines the 
term ``storm water discharge associated with industrial activity'' in a 
comprehensive manner to cover a wide variety of facilities. See id. 
Construction activities, including activities that are part of a larger 
common plan of development or sale, that ultimately disturb at least 
five acres of land and have point source discharges to waters of the 
U.S. were included in the definition of ``industrial activity'' 
pursuant to 40 CFR 122.26(b)(14)(x). The second rule implementing 
section 402(p), often called the ``Phase II Rule,'' was published in 
the Federal Register on December 8, 1999. It requires NPDES permits for 
discharges from construction sites disturbing at least one acre but 
less than five acres, including sites that are part of a larger common 
plan of development or sale that will ultimately disturb at least one 
acre but less than five acres, pursuant to 40 CFR 122.26(b)(15)(i). See 
64 FR 68722. EPA is proposing to issue this draft permit under the 
statutory and regulatory authority cited above.
    NPDES permits for construction stormwater discharges are required 
under Section 402(a)(1) of the CWA to include conditions to meet 
technology-based effluent limits established under Section 301 and, 
where applicable, Section 306. Effluent limitations guidelines (ELGs) 
and New Source Performance Standards (NSPS) are technology-based 
effluent limitations that are based on the degree of control that can 
be achieved using various levels of pollutant control technology as 
defined in Subchapter III of the CWA.
    Once a new national standard is established in accordance with 
these sections, NPDES permits must incorporate limits based on such 
technology-based standards. See CWA sections 301 and 306, 33 U.S.C. 
1311 and 1316, and 40 CFR 122.44(a)(1). On December 1, 2009, EPA 
published final regulations establishing technology-based Effluent 
Limitations Guidelines (ELGs) and New Source Performance Standards 
(NSPS) for the Construction & Development (C&D) point source category, 
which became effective on February 1, 2010. See 40 CFR part 450, and 74 
FR 62996 (December 1, 2009). The Construction & Development Rule, or 
``C&D rule,'' was amended on March 6, 2014 to satisfy EPA's agreements 
pursuant to a settlement of litigation that challenged the 2009 rule. 
See 79 FR 12661. All NPDES construction permits issued by EPA or states 
after this date must incorporate the requirements in the C&D rule.

III. Summary of the Draft Permit

    The draft permit is similar to the existing 2012 CGP. It includes 
effluent limitations (i.e., requirements for erosion and sediment and 
pollutant prevention controls) and requirements for self-inspections, 
corrective actions, staff training, development of a stormwater 
pollution prevention plan (SWPPP), and permit conditions applicable to 
construction sites in specific states, Indian country lands, and 
territories. Additionally, the appendices provide forms for the 
submittal of an NOI, NOT, Low Erosivity Waiver (LEW), as well as step-
by-step procedures for determining eligibility with respect to the 
protection of threatened and endangered species and historic 
properties, and for complying with the draft permit's natural buffer 
requirements.

A. Technology-Based Effluent Limits

    As stated previously, all NPDES construction permits issued by EPA 
or states after March 6, 2014 must incorporate the requirements in the 
C&D rule, as amended. The non-numeric effluent limitations in the C&D 
rule are designed to prevent the mobilization and discharge of sediment 
and sediment-bound pollutants, such as metals and nutrients, and to 
prevent or

[[Page 21332]]

minimize exposure of stormwater to construction materials, debris, and 
other sources of pollutants on construction sites. In addition, these 
non-numeric effluent limitations limit the generation of dissolved 
pollutants. Soil on construction sites can contain a variety of 
pollutants such as nutrients, pesticides, herbicides, and metals. These 
pollutants may be present naturally in the soil, such as arsenic or 
selenium, or they may have been contributed by previous activities on 
the site, such as agriculture or industrial activities. These 
pollutants, once mobilized by stormwater, can detach from the soil 
particles and become dissolved pollutants. Once dissolved, these 
pollutants would not be removed by down-slope sediment controls. Source 
control through minimization of soil erosion is therefore the most 
effective way of controlling the discharge of these pollutants.
    The non-numeric effluent limits in the C&D rule, upon which certain 
technology-based requirements in the draft permit are based, include 
the following:
     Erosion and Sediment Controls--Permittees are required to 
design, install and maintain effective erosion controls and sediment 
controls to minimize the discharge of pollutants. At a minimum, such 
controls must be designed, installed and maintained to:
    1. Control stormwater volume and velocity to minimize soil erosion 
in order to minimize pollutant discharges;
    2. Control stormwater discharges, including both peak flowrates and 
total stormwater volume, to minimize channel and streambank erosion and 
scour in the immediate vicinity of discharge points;
    3. Minimize the amount of soil exposed during construction 
activity;
    4. Minimize the disturbance of steep slopes;
    5. Minimize sediment discharges from the site. The design, 
installation and maintenance of erosion and sediment controls must 
address factors such as the amount, frequency, intensity and duration 
of precipitation, the nature of resulting stormwater discharge, and 
soil characteristics, including the range of soil particle sizes 
expected to be present on the site;
    6. Provide and maintain natural buffers around waters of the United 
States, direct stormwater to vegetated areas and maximize stormwater 
infiltration to reduce pollutant discharges, unless infeasible;
    7. Minimize soil compaction. Minimizing soil compaction is not 
required where the intended function of a specific area of the site 
dictates that it be compacted; and
    8. Unless infeasible, preserve topsoil. Preserving topsoil is not 
required where the intended function of a specific area of the site 
dictates that the topsoil be disturbed or removed.
     Soil Stabilization Requirements--Permittees are required 
to, at a minimum, initiate soil stabilization measures immediately 
whenever any clearing, grading, excavating or other earth disturbing 
activities have permanently ceased on any portion of the site, or 
temporarily ceased on any portion of the site and will not resume for a 
period exceeding 14 calendar days. In arid, semiarid, and drought-
stricken areas where initiating vegetative stabilization measures 
immediately is infeasible, alternative stabilization measures must be 
employed as specified by the permitting authority. Stabilization must 
be completed within a period of time determined by the permitting 
authority. In limited circumstances, stabilization may not be required 
if the intended function of a specific area of the site necessitates 
that it remain disturbed.
     Dewatering Requirements--Permittees are required to 
minimize the discharge of pollutants from dewatering trenches and 
excavations. Discharges are prohibited unless managed by appropriate 
controls.
     Pollution Prevention Measures--Permittees are required to 
design, install, implement, and maintain effective pollution prevention 
measures to minimize the discharge of pollutants. At a minimum, such 
measures must be designed, installed, implemented and maintained to:
    1. Minimize the discharge of pollutants from equipment and vehicle 
washing, wheel wash water, and other wash waters. Wash waters must be 
treated in a sediment basin or alternative control that provides 
equivalent or better treatment prior to discharge;
    2. Minimize the exposure of building materials, building products, 
construction wastes, trash, landscape materials, fertilizers, 
pesticides, herbicides, detergents, sanitary waste and other materials 
present on the site to precipitation and to stormwater. Minimization of 
exposure is not required in cases where the exposure to precipitation 
and to stormwater will not result in a discharge of pollutants, or 
where exposure of a specific material or product poses little risk of 
stormwater contamination (such as final products and materials intended 
for outdoor use); and
    3. Minimize the discharge of pollutants from spills and leaks and 
implement chemical spill and leak prevention and response procedures.
     Prohibited Discharges--The following discharges from C&D 
sites are prohibited:
    1. Wastewater from washout of concrete, unless managed by an 
appropriate control;
    2. Wastewater from washout and cleanout of stucco, paint, form 
release oils, curing compounds and other construction materials;
    3. Fuels, oils, or other pollutants used in vehicle and equipment 
operation and maintenance; and
    4. Soaps or solvents used in vehicle and equipment washing.
     Surface Outlets--When discharging from basins and 
impoundments, permittees are required to utilize outlet structures that 
withdraw water from the surface, unless infeasible.
    The fact sheet details how EPA has incorporated these requirements 
into the draft permit. The discussion in the fact sheet includes a 
summary of each provision and the Agency's rationale for articulating 
the provision in this way.

B. Water Quality-Based Effluent Limits (WQBELs)

    EPA's regulations at 40 CFR 122.44(d)(1) require permitting 
authorities to include additional or more stringent permit requirements 
when necessary to achieve water quality standards. The 2012 CGP 
contained several provisions to protect water quality and the draft 
permit includes those same provisions. It includes a narrative WQBEL 
requiring that discharges be controlled as necessary to meet applicable 
water quality standards. Failure to control discharges in a manner that 
meets applicable water quality standards will be a violation of the 
permit.
    In addition to the narrative WQBEL, the draft permit contains 
related provisions that act together to further protect water quality. 
These provisions were also included in the 2012 CGP. For example, the 
draft permit requires permittees to implement stormwater control 
measures and to take corrective action in response to any exceedance of 
applicable water quality standards. To provide further protection, the 
draft permit requires more stringent site inspection frequencies and 
stabilization deadlines for constructions sites that discharge to 
sensitive waters, such as those waters that are sediment or nutrient-
impaired, which are parameters typically associated with stormwater 
discharges from construction sites, or waters identified by a state, 
tribe, or

[[Page 21333]]

EPA as requiring enhanced protection under antidegradation 
requirements. Additionally, EPA expects that, as with the 2012 CGP, the 
Agency will receive CWA Section 401 certifications for the final 2017 
CGP. Some of those certifications may include additional conditions 
that are required by states, Indian country lands, and territories, 
that become legally binding permit limits and conditions in specific 
geographic areas where the permit is available.

C. Summary of Proposed Permit Changes

    EPA proposes to make several modifications to the 2012 CGP, which 
are summarized below and discussed in more detail in the fact sheet. 
EPA also specifically requests comment on several potential permit 
modifications, which are summarized in Section III.D below. The fact 
sheet for the draft permit explains in more detail each proposed permit 
condition and the rationale for including those conditions and any 
changes to those conditions. The fact sheet and draft permit can be 
found at https://www.epa.gov/npdes/stormwater-discharges-construction-activities. The following list summarizes these specific permit 
modifications, and where they are included in the draft permit.
    1. Streamlining of permit--EPA proposes to streamline and simplify 
language throughout the draft permit to present requirements in a 
generally more clear and readable manner. This structure should enhance 
the permittees' understanding of and compliance with the permit's 
requirements. For example, EPA moved language that was not necessary in 
the permit to the relevant appendix or to the fact sheet. Although the 
draft permit has been streamlined from prior permits, many of the 
requirements remain unchanged.
    2. Revisions consistent with the C&D ELG, as amended-- EPA proposes 
to make minor revisions to the technology-based effluent limits in the 
permit to implement the March 6, 2014 amendments to the Construction 
and Development Effluent Guidelines and Standards (the ``C&D rule'') at 
40 CFR part 450 (see section III.A. of this notice on Technology-Based 
Effluent Limits). The 2012 CGP already incorporated the original C&D 
rule requirements and the draft permit makes the necessary revisions to 
the language based on the rule amendments, but does not add any new 
requirements. These revisions include clarifying the applicability of 
requirements to control erosion caused by discharges, providing 
additional details on areas where buffers are required, and clarifying 
requirements for soil stabilization, preservation of topsoil, and 
pollution prevention measures.
    3. Authorized non-stormwater discharges--EPA currently authorizes 
several non-stormwater discharges associated with construction activity 
under the 2012 CGP. EPA proposes in the draft permit to require that 
authorized non-stormwater discharges of external building washdown 
waters must not contain hazardous substances, such as paint or caulk 
containing polychlorinated biphenyls (PCBs). Part 1.2.2.
    4. Public notice of permit coverage--The current 2012 CGP requires 
that permittees post a sign or other public notice of permit coverage 
at a safe, publicly accessible location in close proximity to the 
construction site. EPA proposes in the draft permit that this notice 
must also include information informing the public on how to contact 
EPA if stormwater pollution is observed in the discharge. EPA is 
proposing to require this condition to improve compliance with the 
permit. Part 1.5.
    5. Stockpiles and land clearing debris piles--The current 2012 CGP 
requires that cover or appropriate temporary stabilization be provided 
for any stockpiles ``where practicable.'' EPA proposes in the draft 
permit to require cover or appropriate temporary stabilization for all 
inactive stockpiles and land clearing debris piles for those piles that 
will be unused for 14 or more days. This provision is consistent with 
the permit's stabilization requirements in Part 2.2.14 of the draft 
permit. EPA is proposing this change to ensure pollutants are minimized 
from these piles, but is clarifying that the requirement only applies 
where these piles are not actively being used. Part 2.2.5.
    6. Construction and domestic waste--EPA proposes in the draft 
permit to require waste container lids to be kept closed when not in 
use, or, for waste containers that do not have lids and could leak, EPA 
proposes to require cover or a similarly effective means to be provided 
to minimize the discharge of pollutants. EPA proposes this change to 
make the requirements for construction and domestic waste consistent 
with the cover requirements for most other types of materials and 
wastes in the 2012 CGP. Part 2.3.3.
    7. Pollution prevention requirements for demolition activities--EPA 
proposes in the draft permit a requirement to implement controls to 
minimize the exposure of polychlorinated biphenyl- (PCB) containing 
building materials to precipitation and stormwater associated with the 
demolition of structures with at least 10,000 square feet of floor 
space built or renovated before January 1, 1980. In addition, EPA 
proposes to require information about the demolition location and 
associated pollutants to be documented in the SWPPP. Part 2.3.3.
    8. Reporting information on construction activities--EPA proposes 
to require a question on the NOI form asking for the type of 
construction activities that will occur on the site. See draft Appendix 
J.

D. Provisions for Which EPA is Soliciting Comment

    While EPA encourages the public to review and comment on all 
provisions in the draft permit, EPA has included in the body of the 
draft permit several provisions on which EPA specifically requests 
feedback. The following list summarizes these specific requests for 
comment, and where they are included in the permit:
    1. Group SWPPP for multiple operators--Request for comment on 
whether the permit should include a provision for sites with multiple 
operators requiring those operators to develop a group SWPPP. Part 
1.1.1.
    2. Authorized non-stormwater discharges--Request for comment on 
whether to require that authorized non-stormwater discharges of 
external building washdown waters must not contain hazardous 
substances. Part 1.2.2.
    3. Stabilization deadlines--Request for comment on modifying the 
deadline to complete stabilization to seven (7) calendar days for all 
sites. Part 2.2.14.
    4. Controls for dewatering discharges--Request for comment on 
additional controls or requirements EPA should consider to ensure that 
discharges of pollutants in construction dewatering discharges are 
minimized. Part 2.4.
    5. Site inspection frequency--Request for comment on modifying the 
minimum site inspection frequency. Part 4.2.2.
    6. Snowmelt discharge inspection frequency--Request for comment on 
the frequency of inspections that should be required for discharge 
events with snowmelt runoff. Part 4.2.2.
    7. Availability of Stormwater Pollution Prevention Plan (SWPPP)--
Request for comment on requiring operators to make the SWPPP, or a 
portion of the SWPPP, publicly available. Part 7.3.

[[Page 21334]]

IV. Analysis of Economic Impacts

    EPA expects the economic impact on entities that will be covered 
under this permit, including small businesses, to be minimal. A copy of 
EPA's economic analysis, titled ``Cost Impact Analysis for the 2017 
Proposed Construction General Permit (CGP),'' is available in the 
docket for this draft permit. The economic impact analysis indicates 
that while there may be some incremental increase in the costs of 
complying with the new permit, these costs will not have a significant 
economic impact on a substantial number of small entities.

V. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    The draft permit is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

VI. Compliance with the National Environmental Policy Act (NEPA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges From Construction Activities

    Pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321-4307h), the Council on Environmental Quality's NEPA regulations 
(40 CFR part 15), and EPA's regulations for implementing NEPA (40 CFR 
part 6), EPA has determined that the 2017 reissuance of the CGP is 
eligible for a categorical exclusion requiring documentation under 40 
CFR 6.204(a)(1)(iv). This category includes ``actions involving 
reissuance of a NPDES permit for a new source providing the conclusions 
of the original NEPA document are still valid, there will be no 
degradation of the receiving waters, and the permit conditions do not 
change or are more environmentally protective.'' EPA completed an 
Environmental Assessment/Finding of No Significant Impact (EA/FONSI) 
for the existing 2012 CGP. The analysis and conclusions regarding the 
potential environmental impacts, reasonable alternatives, and potential 
mitigation included in the EA/FONSI are still valid for the 2017 
reissuance of the CGP because the proposed permit conditions are either 
the same or in some cases are more environmentally protective. Actions 
may be categorically excluded if the action fits within a category of 
action that is eligible for exclusion and the proposed action does not 
involve any extraordinary circumstances. EPA has reviewed the proposed 
action and determined that the 2017 reissuance of the CGP does not 
involve any extraordinary circumstances listed in 6.204(b)(1) through 
(b)(10). Prior to the issuance of the final 2017 CGP, the EPA 
Responsible Official will document the application of the categorical 
exclusion and will make it available to the public on EPA's Web site at 
https://cdxnodengn.epa.gov/cdx-enepa-public/action/nepa/search. If new 
information or changes in the draft permit involve or relate to at 
least one of the extraordinary circumstances or otherwise indicate that 
the permit may not meet the criteria for categorical exclusion, EPA 
will prepare an EA or Environmental Impact Statement (EIS).

VII. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629 (February 16, 1994)) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this draft permit will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because the requirements 
in the draft permit apply equally to all construction projects that 
disturb one or more acres in areas where EPA is the permitting 
authority, and the erosion and sediment control proposed provisions 
increase the level of environmental protection for all affected 
populations.

VIII. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    In compliance with Executive Order 13175, EPA has consulted with 
tribal officials to gain an understanding of and, where necessary, to 
address the tribal implications of the draft permit. In the course of 
this consultation, EPA conducted the following activities:
     August 5, 2015--EPA mailed notification letters to all 
Tribal leaders, initiating consultation and coordination on the draft 
permit. The consultation period was from August 17, 2015 to October 13, 
2015.
     August 11, 2015--EPA presented a brief overview of the 
current CGP and information regarding the upcoming consultation to the 
National Tribal Caucus.
     August 12, 2015--EPA presented a brief overview of the 
current CGP and information regarding the upcoming consultation to the 
National Tribal Water Council.
     September 22, 2015--EPA held a consultation teleconference 
call; 18 Tribes were represented. EPA responded to the general 
questions raised on the call.
     On October 14, 2015, EPA received one set of comments from 
a Tribe in the State of Washington. EPA has started evaluation of the 
comments and will consider them moving forward; EPA will respond to the 
formal comments submitted in writing during the comment period in the 
Agency's final action.
     EPA will provide email notification to Tribes of today's 
proposal of the draft permit, and invite those interested to provide 
the Agency with comments.
    EPA also notes that as part of the finalization of this draft 
permit, it will complete the Section 401 certification procedures with 
all applicable tribes where this permit will apply (see Appendix B).

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

    Dated: March 29, 2016.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.

    Dated: March 29, 2016.
Joan Leary Matthews
Director, Clean Water Division, EPA Region 2.

    Dated: March 29, 2016.
Jose C. Font
Director, Caribbean Environmental Protection Division, EPA Region 2.

    Dated: March 29, 2016.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.

    Dated: March 29, 2016.
James D. Giattina,
Director, Water Protection Division, EPA Region 4.

    Dated: March 29, 2016.
Tinka G. Hyde
Director, Water Division, EPA Region 5.


[[Page 21335]]


    Dated: March 29, 2016.
David Garcia,
Deputy Director, Water Division, EPA Region 6.

    Dated: March 29, 2016.
Karen Flournoy,
Director, Water, Wetlands, and Pesticides Division, EPA Region 7.

    Dated: March 29, 2016.
Darcy O'Connor,
Acting Assistant Regional Administrator, EPA Region 8.

    Dated: March 29, 2016.
Mike Montgomery
Assistant Director, Water Division, EPA Region 9.

    Dated: March 29, 2016.
Daniel D. Opalski,
Director, Office of Water and Watersheds, EPA Region 10.

[FR Doc. 2016-08276 Filed 4-8-16; 8:45 am]
 BILLING CODE 6560-50-P


