[Federal Register Volume 62, Number 105 (Monday, June 2, 1997)]
[Notices]
[Pages 29786-29825]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14191]



[[Page 29785]]

_______________________________________________________________________

Part II





Environmental Protection Agency





_______________________________________________________________________



Proposed Reissuance of NPDES General Permits for Storm Water Discharges 
From Construction Activities; Notice Agency Information Collection 
Activities: Notice

  Federal Register / Vol. 62, No. 105 / Monday, June 2, 1997 / 
Notices  

[[Page 29786]]



ENVIRONMENTAL PROTECTION AGENCY

[FRL-5832-6]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of proposed NPDES general permits.

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SUMMARY: The Regional Administrators of Regions I, II, III, VI, VII, 
VIII, IX, and X are today proposing to re-issue National Pollutant 
Discharge Elimination System (NPDES) general permits for storm water 
discharges associated with construction activity. EPA first issued 
permits for these activities in September 1992. Almost all of these 
existing permits expire in September 1997 and today's proposed permits 
will be replacements. Today's permits are similar to the 1992 permits 
and will authorize the discharge of storm water from construction 
activities consistent with the terms and conditions of these permits.

ADDRESSES: The index to the administrative record for this permit is 
available at the appropriate Regional Office or from the EPA Water 
Docket in Washginton, DC. The complete administrative record is located 
at the Water Docket, MC-4101, U.S. EPA, 401 M Street SW, Washington, DC 
20460. Copies of information in the record are available upon request. 
A reasonable fee may be charged for copying. Specific record 
information can also be made available at the appropriate Regional 
Office upon request.

FOR FURTHER INFORMATION CONTACT: For further information on the 
proposed NPDES general permit write or telephone the EPA Regional Storm 
Water Coordinators at the addresses listed in Part IV. J. of this Fact 
Sheet.
PUBLIC COMMENT PERIOD: The public comment period for this proposed 
permit will be from the date of publication until August 1, 1997. All 
public comments shall be submitted to: ATTN: CBGP--Comments, W-97-01, 
Water Docket MC-4101, U.S. EPA, Room 2616 Mall, 401 M Street SW., 
Washington, DC 20460
    Please submit the original and three copies of your comments and 
enclosures (including references). Comments must be received or post-
marked by midnight no later than August 1, 1997. 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 
sections in the notice or supporting documents to which each comment 
refers. Commenters who want EPA to acknowledge receipt of their 
comments should enclose a self-addressed stamped envelope. No 
facsimiles (faxes) will be accepted. Comments may also be submitted 
electronically to: [email protected]. Electronic comments must 
be submitted as an ASCII file avoiding the use of special characters 
and forms of encryption. Electronic comments must be identified by the 
docket number W-97-01. No Confidential Business Information (CBI) 
should be submitted through e-mail. Comments and data will also be 
accepted on disks in WordPerfect 5.1 format or ASCII file format. 
Electronic comments on this notice may be filed online at many Federal 
Depository Libraries.
    The record for these proposed permits has been established under 
docket number W-97-01, and includes supporting documentation as well as 
printed, paper versions of electronic comments. It does not include any 
information claimed as CBI. The record is available for inspection from 
9 am to 4 pm, Monday through Friday, excluding legal holidays, at the 
Water Docket, Room M2616, Washington, DC 20460. For access to the 
docket materials, please call (202) 260-3027 to schedule an 
appointment.

Public Hearings

    Public hearings will be held at the times and locations provided 
below.

EPA Region 1:

Boston, Massachusetts
    Date: Thursday, July 24, 1997.
    Time: 6:00 pm-9:00 pm.
    Place: John A. Volpe National Transportation Systems Center, 55 
Broadway--Kendall Square, Cambridge, MA 02142.
Portland, Maine
    Date: Tuesday, July 22, 1997.
    Time: 2:00 pm-5:00 pm.
    Place: Portland City Hall, 389 Congress Street, Room 208, Portland, 
ME 04101.

Concord, New Hampshire
    Date: Tuesday, July 1, 1997.
    Time: 6:00 pm-9:00 pm.
    Place: Department of Environmental Services, Auditorium, 6 Hazen 
Drive, Concord, NH 03302.

EPA Region 6:

Public Meetings
Houston, TX: June 17, 1997, 1:00 pm, Howard Johnson/Hobby, 7777 Airport 
Blvd., Houston, Texas.
Albuquerque, NM: June 20, 1997, 1:00 pm, University of New Mexico, 
Student Union Grand Ballroom, Albuquerque, New Mexico.
Dallas, TX: July 10, 1997, 9:00 am, EPA Region 6 Offices, 12th Floor, 
1445 Ross Ave., Dallas, Texas.
Public Hearing
Dallas, TX: July 10, 1997, 1:00 pm, EPA Region 6 Offices, 12th Floor, 
1445 Ross Ave., Dallas, Texas.

    The public meetings will include a presentation on the draft 
permits and a question and answer session. Written, but not oral, 
comments for the official permit record will be accepted at the public 
meetings. The public hearing in Dallas covers all Region 6 draft 
permits proposed today, will be conducted in accordance with 40 CFR 
124.12, and provides interested parties with the opportunity to provide 
written and/or oral comments for the official record.

EPA Region 9:

    Date: July 24, 1997.
    Time: 1-5 p.m.
    Place: Arizona Department of Environmental Quality, Public Meeting 
Room, 3033 North Central Ave., Phoenix, Arizona.

EPA Region 10:

Boise, Idaho
    Date: Thursday, July 24, 1997.
    Time: 6:00 pm-10:00 pm.
    Place: Idaho Public Television Building, Telemedia Room (First 
Floor), 1455 North Orchard, Boise, Idaho 83706

Seattle, Washington
    Date: Tuesday, July 29, 1997.
    Time: 6:00 pm-10:00 pm.
    Place: Park Place Building, Denali/Kenai Room (14th Floor), 1200 
6th Avenue, Seattle, Washington 98101

Anchorage, Alaska
    Date: Thursday, July 31, 1997.
    Time: 5:00 pm-9:00 pm.
    Place: Federal Building/United States Court House, Room 135, 222 
West 7th Avenue, Anchorage, Alaska 99513

SUPPLEMENTARY INFORMATION:

Contents

I. Introduction
II. Coverage of General Permits
III. Summary of Options for Controlling Pollutants
IV. Summary of Permit Conditions
    A. Eligibility
    B. Limitations on Coverage
    C. Obtaining Coverage
    D. Terminating Coverage
    E. Notice of Intent Requirements
    1. Deadlines for Submitting NOIs
    2. Contents of the NOI

[[Page 29787]]

    3. Where to Submit
    4. Additional Notification
    F. Special Conditions, Management Practices and Other Non-
Numeric Limitations
    1. Prohibitions on Non-storm Water Discharges
    2. Releases of Reportable Quantities of Hazardous Substances or 
Oil
    3. Compliance with Water Quality Standards
    4. Operator Responsibility
    G. Pollution Prevention Plan Requirements
    1. Deadline for Plan Preparation
    2. Signature and Plan Review
    3. Making Plans Available
    4. Keeping Plans Current
    5. Contents of the Plan
    a. Site Description
    b. Controls to Reduce Pollutants
    c. Maintenance
    d. Inspections
    e. Non-Storm Water Discharges
    6. Additional Requirements
    7. Contractors/Subcontractors
    H. Retention of Records
    I. Notice of Termination Requirements
    J. Regional Offices
V. Cost Estimates
VI. Economic Impact (Executive Order 12866)
VII. Unfunded Mandates Reform Act
VIII. Paperwork Reduction Act
IX. Section 401/Coastal Zone Management Act Certification
X. Regulatory Flexibility Act
XI. Official Signatures

Part I--Introduction

    The Regional Administrators of the United States Environmental 
Protection Agency (EPA) are proposing to re-issue general permits to 
authorize storm water discharges associated with construction activity 
disturbing five or greater acres. EPA is expanding coverage in this 
proposal to also provide for coverage for construction sites of under 
five acres of disturbed land where designated by the Director for 
coverage under 40 CFR 122.26(a)(1)(v) or 122.26(a)(9) and 
122.26(g)(1)(i). These proposed permits will take the place of the 
existing construction storm water general permits, which in almost all 
cases were issued for five year terms in September 1992 and expire in 
September 1997.
    These proposed new permits are similar to the existing permit, with 
several changes. The most significant changes include expanded 
conditions to protect endangered and threatened species; new conditions 
to protect historic properties; a new requirement to post a copy of the 
permit coverage confirmation and a brief description of the project; 
provide for public access to copies of a pollution prevention plan on 
the site, or in another nearby location where it can be viewed by the 
public, if they request; terms for construction activities 
transitioning from the existing permit; clarification of who must be a 
permittee and their requirements; a streamlined permitting option for 
utility companies; the requirement to submit a notice of permit 
termination when construction is completed; the ability to acquire 
permit coverage for other construction dedicated industrial activities 
(e.g. concrete batching plant) under this one permit; and pollution 
prevention plan performance objectives.
    Point source discharges of storm water associated with industrial 
activity are prohibited unless authorized under a National Pollutant 
Discharge Elimination System (NPDES) permit by the Clean Water Act. In 
1990, EPA promulgated the storm water permit application rule (55 FR 
47990), as revised, which defined what types of industrial activity are 
subject to this requirement. EPA defined storm water discharges 
associated with industrial activity to include construction activity 
disturbing five or more acres of land. EPA issued the first general 
permits to cover construction activities in September 1992. These 
proposed general permits for storm water discharges associated with 
construction activity will be issued with distinctly different permit 
numbers in the following areas:
    Region 1: The Commonwealth of Massachusetts, the States of Maine 
and New Hampshire, and Indian Country lands in the Commonwealth of 
Massachusetts, the States of Maine, New Hampshire, Rhode Island, and 
Connecticut; and Indian Country lands and Federal facilities in 
Vermont.
    Region 2: The Commonwealth of Puerto Rico and Indian Country lands 
in the State of New York.
    Region 3: District of Columbia; Federal facilities in the State of 
Delaware.
    Region 6: The States of New Mexico and Texas; Indian Country lands 
in Louisiana, Oklahoma and Texas; New Mexico (except Navajo Reservation 
lands (see Region 9) and Ute Mountain Ute Reservation lands (see Region 
8)).
    Region 7: Indian Country lands in Iowa, Kansas and Nebraska, 
(except Pine Ridge Reservation lands (see Region 8)).
    Region 8: Federal facilities in Colorado and Indian Country lands 
in Colorado (including the portion of the Ute Mountain Ute Reservation 
located in New Mexico); Indian Country lands in Montana; Indian Country 
lands in North Dakota (including that portion of the Standing Rock 
Reservation located in South Dakota--except for the Lake Traverse 
Reservation which is covered under the permit for areas of South 
Dakota); Indian Country lands in South Dakota (including the portion of 
the Pine Ridge Reservation located in Nebraska and the portion of the 
Lake Traverse Reservation located in North Dakota--except for the 
Standing Rock Reservation which is covered under the permit for areas 
of North Dakota); Indian County lands in Utah (except Goshute and 
Navajo Reservation lands (see Region 9)) and Indian Country lands in 
Wyoming.
    Region 9: The Island of American Samoa, the State of Arizona, the 
Island of Guam, Johnston Atoll, Midway Island and Wake Island, 
Commonwealth of the Northern Mariana Islands; and Indian Country lands 
in the State of Arizona (including Navajo Reservation lands in New 
Mexico and Utah), the State of California, and the State of Nevada 
(including the Duck Valley Reservation in Idaho, the Fort McDermitt 
Reservation in Oregon and the Goshute Reservation in Utah).
    Region 10: The States of Idaho and Alaska; Indian Country lands in 
Idaho (except Duck Valley Reservation (see Region 9)), Alaska, 
Washington, and Oregon (except see Region 9 for Fort McDermitt 
Reservation); and Federal facilities in Washington.

Part II--Coverage of General Permits

    Section 402(p) of the Clean Water Act (CWA) states that storm water 
discharges associated with industrial activity to waters of the United 
States must be authorized by an NPDES permit. On November 16, 1990, EPA 
published regulations under the NPDES program which defined the term 
``storm water discharge associated with industrial activity''. Included 
in this definition are storm water discharges from construction 
activities (including clearing, grading, and excavation activities) 
that result in the disturbance of five or more acres of total land 
area, including smaller areas that are part of a larger common plan of 
development or sale (40 CFR 122.26(b)(14)(x)).1 These types 
of construction activity are commonly referred to as Phase I 
construction activities. The term ``storm water discharge from 
construction activities'' will be used in this document to refer to the 
variety of storm water discharges from Phase I construction sites that 
are related to actions commonly occurring on, or in

[[Page 29788]]

support of, construction, including those that meet the definition of a 
storm water discharge associated with industrial activity or those that 
are designated under the designation provisions of 40 CFR 122.26.
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    \1\ On June 4, 1992, the United States Court of Appeals for the 
Ninth Circuit remanded the exemption for construction sites of less 
than five acres to the EPA for further rulemaking (Natural Resources 
Defense Council v. EPA, Nos. 90-70671 and 91-70200, slip op. at 6217 
(9th Cir. June 4, 1992). Until a new rule is promulgated to address 
sites of under five acres, EPA will continue to require NPDES 
permits for storm water discharges from construction activities of 
five or more acres.
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    The previous permit may have created some confusion as to 
eligibility for operators of sites disturbing less than five acres that 
are part of a larger common plan of development or sale. EPA is 
clarifying in today's proposed permit, that all construction activity 
regulated under 40 CFR 122.26(b)(14)(x) is eligible for coverage under 
this permit including small construction sites disturbing less than 
five acres that are a part of a larger common plan of development of 
which disturbance cumulatively exceeds five acres. These are also Phase 
I construction activities.
    EPA further clarifies that singular construction sites with 
disturbances of less than five acres are not eligible for coverage 
under this permit unless they are specifically designated for coverage 
under 40 CFR 122.26 (a)(1)(v) or under 122.26(a)(9) and 
122.26(g)(1)(i). Under EPA's existing regulations, these facilities are 
required to submit permit applications not later than August 7, 2001, 
unless an applicant is specifically required by the Director to submit 
an application before that time. These small (Phase II) construction 
sites will be addressed by EPA in future rulemaking in response to the 
Ninth Circuit decision. EPA is employing the assistance of a Federal 
Advisory Committee to make recommendations on how best to deal with 
such sites. EPA will publish a proposed rule addressing these Phase II 
small construction activities by September 1, 1997 and will finalize 
this rule by March 1, 1999. As a result of this effort, if singular 
construction sites of less than five acres are regulated under the 
NPDES Phase II storm water permitting program, permits for those sites 
will be issued at a future date.
    EPA issued the first round of Phase I construction general permits 
on two dates; September 9, 1992 for certain States and territories and 
on September 25, 1992 for the remaining States and territories where 
EPA is the permitting authority. Today's proposed permit is the second 
round permit for use in the States, Territories and Indian Country 
lands where EPA is the NPDES permitting authority. In this second round 
permit, EPA is expanding permit coverage to certain Indian Country 
lands which were not covered under the 1992 permit. These new areas are 
listed in the areas of coverage section of the proposed permit and this 
fact sheet.
    All Phase I construction activity operators in EPA Region IV should 
take note, that different from the 1992 permit, this second round 
permit no longer authorizes discharges from construction activities in 
Indian Country lands located in Florida, Mississippi or North Carolina. 
EPA Region IV is preparing a separate second round permit for use in 
all Region IV areas where EPA is the NPDES permitting authority. This 
permit was separately noticed in the Federal Register on April 16, 1997 
(Volume 62, Number 73, pages 18605-18628) for storm water discharges in 
Florida.
    EPA intends to issue this second round construction storm water 
general permit prior to expiration of the existing 1992 permit which 
expires on September 9, 1997 for most locations where EPA is the 
permitting authority and on September 25, 1997 for the other areas. EPA 
intends to make every effort to issue this permit prior to the 
expiration date of the existing permits. However, if this does not 
occur, under the Administrative Procedures Act (APA), when EPA is the 
permit issuing authority, the conditions in an expired permit remain in 
force until the effective date of the new permit, provided the 
applicant submits a timely application (40 CFR 122.6, 48 FR 14158 
(April 1, 1983)).
    EPA is proposing that construction projects currently authorized to 
discharge under the 1992 construction general permit, submit a new 
notice of intent (NOI) for continued coverage under the APA extended 
permit, should they need continuing permit coverage past the expiration 
date. If a project is scheduled to begin near the time of permit 
expiration and EPA has yet to issue the new permit, EPA recommends that 
the operator submit an NOI further in advance of the start of the 
project than the minimum 48 hours and prior to expiration of the 
existing permit.
    Upon issuance of the new permit, operators as defined in this 
proposed permit, must submit an NOI in accordance with the requirements 
of the permit. The proposed permit proposes the use of a revised NOI 
form. This new general permit would authorize storm water discharges 
from existing construction sites and new construction sites over the 
five year term of issuance. To obtain authorization under today's 
permit, a discharger must submit a complete and accurate NOI and comply 
with the terms of the permit. The terms of the permit, including the 
requirements for submitting an NOI, are discussed in more detail below.
    The following discharges are not authorized by this proposed 
general permit:
     Storm water discharges associated with industrial activity 
that originate from the site after construction activities have been 
completed and the site has undergone final stabilization;
     Non-storm water discharges (except certain non-storm water 
discharges specifically listed in today's general permit). However, 
today's permit can authorize storm water discharges from construction 
activities where the discharges are mixed with non-storm water 
discharges that are authorized by a different NPDES permit;
     Storm water discharges from construction activities that 
are covered by an existing NPDES individual or general permit. However, 
storm water discharges associated with industrial activity from a 
construction site that are authorized by an existing permit may be 
authorized by today's general permit after the existing permit expires, 
provided the expired permit did not establish numeric limitations for 
the storm water discharges;
     Storm water discharges from construction activities that 
the Director has determined to be or may reasonably be expected to be 
contributing to a violation of a water quality standard;
     Storm water discharges from construction activity and the 
construction and implementation of Best Management Practices (BMPs) to 
control storm water runoff, if the discharges are likely to adversely 
affect a listed endangered or threatened species or its critical 
habitat (unless in compliance with specific Endangered Species Act 
(ESA) related permit conditions in this permit); and
     Storm water discharges from construction activities, and 
the construction and implementation of Best Management Practices (BMPs) 
to control storm water runoff, if the discharges are not in compliance 
with the National Historic Preservation Act (NHPA).

Part III--Summary of Options for Controlling Pollutants

    EPA is providing the following summary information on controlling 
pollutants in storm water discharges in order to assist permittees in 
preparing storm water pollution prevention plans. Most controls for 
construction activities can be categorized into two groups:
     Sediment and erosion controls; and
     Storm water management measures.
    Sediment and erosion controls generally address pollutants in storm 
water generated from the site during the time when construction 
activities are

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occurring. Storm water management measures generally are installed 
during and before competition of the construction process, but 
primarily result in reductions of pollutants in storm water discharged 
from the site after the construction has been completed. Additional 
measures include housekeeping best management practices.

A. Sediment and Erosion Controls

    Erosion controls provide the first line of defense in preventing 
offsite sediment movement and are designed to prevent erosion through 
protection and preservation of soils. Sediment controls are designed to 
remove sediment from runoff before the runoff is discharged from the 
site. Sediment and erosion controls can be further divided into two 
major classes of controls: stabilization practices and structural 
practices. Major types of sediment and erosion practices are summarized 
below. A more complete description of these practices is given in 
``Storm Water Management for Construction Activities: Developing 
Pollution Prevention Plans and Best Management Practices,'' U.S. EPA, 
1992.
1. Sediment and Erosion Controls: Stabilization Practices
    Stabilization, as discussed here, refers to covering or maintaining 
an existing cover over soils. The cover may be vegetation, such as 
grass, trees, vines, or shrubs. Stabilization measures can also include 
nonvegetative controls such as geotextiles, riprap, or gabions (wire 
mesh boxes filed with rock). Mulches, such as straw or bark, are most 
effective when used in conjunction with establishing vegetation, but 
can be used without vegetation. Stabilization of exposed and denuded 
soils is one of the most important factors in minimizing erosion while 
construction activities occur. A vegetation cover reduces the erosion 
potential of a site by absorbing the kinetic energy of raindrops that 
would otherwise disturb unprotected soil; intercepting water so that it 
infiltrates into the ground instead of running off the surface; and 
slowing the velocity of runoff, thereby promoting deposition of 
sediment in the runoff. Stabilization measures are often the most 
important measures taken to prevent offsite sediment movement and can 
provide large reductions suspended sediment levels in discharges and 
receiving waters.2 Examples of stabilization measures are 
summarized below.
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    \2\ ``Performance of Current Sediment Control Measures at 
Maryland Construction Sites,'' January 1990, Metropolitan Washington 
Council of Governments.
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    a. Temporary Seeding. Temporary seeding provides for temporary 
stabilization by establishing vegetation at areas of the site where 
activities will temporarily cease until later in the construction 
project. Without temporary stabilization, soils at these areas are 
exposed to precipitation for an extended time period, even though work 
is not occurring on these areas. Temporary seeding practices have been 
found to be up to 95 percent effective in reducing erosion.3
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    \3\ ``Guides for Erosion and Sediment Control in California,'' 
USDA, Soil Conservation Service, Davis CA, Revised 1985.
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    b. Permanent Seeding. Permanent seeding involves establishing a 
sustainable ground cover at a site. Permanent seeding stabilizes the 
soil to reduce sediment in runoff from the site by controlling erosion 
and is typically required at most sites for aesthetic reasons.
    c. Mulching. Mulching is typically conducted as part of permanent 
and temporary seeding practices. Where temporary and permanent seeding 
is not feasible, exposed soils can be stabilized by applying plant 
residues or other suitable materials to the soil surface. Although 
generally not as effective as seeding practices, mulching by itself, 
does provide some erosion control. Mulching in conjunction with seeding 
provides erosion protection prior to the onset of vegetation growth. In 
addition, mulching protects seeding activities, providing a higher 
likelihood of successful establishment of vegetation. To maintain 
optimum effectiveness, mulches must be anchored to resist wind 
displacement.
    d. Sod Stabilization. Sod stabilization involves establishing long-
term stands of grass with sod on exposed surfaces. When installed and 
maintained properly, sodding can be more than 99 percent effective in 
reducing erosion,4 making it the most effective vegetation 
practice available. The cost of sod stabilization (relative to other 
vegetative controls) typically limits its use to exposed soils where a 
quick vegetative cover is desired and sites which can be maintained 
with ground equipment. In addition, sod is sensitive to climate and may 
require intensive watering and fertilization.
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    \4\ ``Guides for Erosion and Sediment Control in California,'' 
USDA--Soil Conservation Service, Davis CA, Revised 1985.
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    e. Vegetative Buffer Strips. Vegetative buffer strips are preserved 
or planted strips of vegetation at the top and bottom of a slope, 
outlining property boundaries, or adjacent to receiving waters such as 
streams or wetlands. Vegetative buffer strips can slow runoff flows at 
critical areas, decreasing erosion and allowing sediment deposition.
    f. Protection of Trees. This practice involves preserving and 
protecting selected trees that exist on the site prior to development. 
Mature trees provide extensive canopy and root systems which help to 
hold soil in place. Shade trees also keep soil from drying rapidly and 
becoming susceptible to erosion. Measures taken to protect trees can 
vary significantly, from simple measures such as installing tree 
fencing around the drip line and installing tree armoring, to more 
complex measures such as building retaining walls and tree wells.
2. Sediment and Erosion Controls: Structural Practices
    Structural practices involve the installation of devices to divert 
flow, store flow, or limit runoff. Structural practices have several 
objectives. First, structural practices can be designed to prevent 
water from crossing disturbed areas where sediment may be removed. This 
involves diverting runoff from undisturbed up slope areas through use 
of earth dikes, temporary swales, perimeter dike/swales, or diversions 
to stable areas. A second objective of structural practices can be to 
remove sediment from site runoff before the runoff leaves the site. 
Approaches to removing sediment from site runoff include diverting 
flows to a trapping or storage device or filtering diffuse flow through 
silt fences before it leaves the site. All structural practices require 
proper maintenance (removal of sediment) to remain functional.
    a. Earth Dike. Earth dikes are temporary berms or ridges of 
compacted soil that channel water to a desired location. Earth dikes 
should be stabilized with vegetation.
    b. Silt Fence. Silt fences are a barrier of geotextile fabric 
(filter cloth) used to intercept sediment in diffuse runoff. They must 
be carefully maintained to ensure structural stability and to remove 
excess sediment.
    c. Drainage Swales. A drainage swale is a drainage channel lined 
with grass, riprap, asphalt, concrete, or other materials. Drainage 
swales are installed to convey runoff without causing erosion.
    d. Sediment Traps. Sediment traps can be installed in a drainage 
way, at a storm drain inlet, or other points of discharge from a 
disturbed area.
    e. Check Dams. Check dams are small temporary dams constructed 
across a swale or drainage ditch to reduce the

[[Page 29790]]

velocity of runoff flows, thereby reducing erosion of the swale or 
ditch. Check dams should not be used in a live stream. Check dams 
reduce the need for more stringent erosion control practices in the 
swale due to the decreased velocity and energy of runoff.
    f. Level Spreader. Level spreaders are outlets for dikes and 
diversions consisting of an excavated depression constructed at zero 
grade across a slope. Level spreaders convert concentrated runoff into 
diffuse runoff and release it onto areas stabilized by existing 
vegetation.
    g. Subsurface Drain. Subsurface drains transport water to an area 
where the water can be managed effectively. Drains can be made of tile, 
pipe, or tubing.
    h. Pipe Slope Drain. A pipe slope drain is a temporary structure 
placed from the top of a slope to the bottom of a slope to convey 
surface runoff down slopes without causing erosion.
    i. Temporary Storm Drain Diversion. Temporary storm drain 
diversions are used to re-direct flow in a storm drain to discharge 
into a sediment trapping device.
    j. Storm Drain Inlet Protection. Storm drain inlet protection can 
be provided by a sediment filter or an excavated impounding area around 
a storm drain inlet. These devices prevent sediment from entering storm 
drainage systems prior to permanent stabilization of the disturbed 
area.
    k. Rock Outlet Protection. Rock protection placed at the outlet end 
of culverts or channels can reduce the depth, velocity, and energy of 
water so that the flow will not erode the receiving downstream reach.
    l. Other Controls. Other controls include temporary sediment 
basins, sump pits, entrance stabilization measures, waterway crossings, 
and wind breaks.

B. Storm Water Management Measures

    Storm water management measures are installed during and prior to 
completion of the construction process, but primarily result in 
reductions of pollutants in storm water discharged from the site after 
the construction has been completed. Construction activities often 
result in significant changes in land use. Such changes typically 
involve an increase in the overall imperviousness of the site, which 
can result in dramatic changes to the runoff patterns of a site. As the 
amount within a drainage area increases, the amount of pollutants 
carried by the runoff increases. In addition, activities such as 
automobile travel on roads can result in higher pollutant 
concentrations in runoff compared to preconstruction levels. 
Traditional storm water management controls attempt to limit the 
increases in the amount of runoff and the amount of pollutants 
discharged from a site associated with the change in land use.
    Major classes of storm water management measures include 
infiltration of runoff onsite; flow attenuation by vegetation or 
natural depressions; outfall velocity dissipation devices; storm water 
retention structures and artificial wetlands; and storm water detention 
structures. For many sites, a combination of these controls may be 
appropriate. A summary of storm water management controls is provided 
below. A more complete description of storm water management controls 
is found in ``Storm Water Management for Construction Activities: 
Developing Pollution Prevention Plans and Best Management Practices,'' 
U.S. EPA, 1992, and ``A Current Assessment of Urban Best Management 
Practices,'' Metropolitan Washington Council of Governments, March 
1992.
1. Onsite Infiltration
    A variety of infiltration technologies, including infiltration 
trenches and infiltration basins, can reduce the volume and pollutant 
loadings of storm water discharges from a site. Infiltration devices 
tend to mitigate changes to predevelopment hydrologic conditions. 
Properly designed and installed infiltration devices can reduce peak 
discharges, provide ground water recharge, augment low flow conditions 
of receiving streams, reduce storm water discharge volumes and 
pollutant loads, and protect downstream channels from erosion. 
Infiltration devices are a feasible option where soils are permeable 
and the water table and bedrock are well below the surface. 
Infiltration basins can also be used as sediment basins during 
construction 5. Infiltration trenches can be more easily 
placed into under-utilized areas of a development and can be used for 
small sites and infill developments. However, trenches may require 
regular maintenance to prevent clogs, particularly where grass inlets 
or other pollutant removing inlets are not used. In some situations, 
such as low density areas of parking lots, porous pavement can provide 
for infiltration.
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    \5\ ``Controlling Urban Runoff: A Practical Manual for Planning 
and Designing Urban BMPs,'' July, 1987, Metropolitan Washington 
Council of Governments.
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2. Flow Attenuation by Vegetation or Natural Depressions
    Flow attenuation provided by vegetation or natural depressions can 
provide pollutant removal and infiltration and can lower the erosive 
potential of flows 6. In addition, these practices can 
enhance habitat values and the appearance of a site. Vegetative flow 
attenuation devices include grass swales and filter strips as well as 
trees that are either preserved or planted during construction.
---------------------------------------------------------------------------

    \6\ ``Urban Targeting and BMP Selection,'' United States EPA, 
Region V, November 1990.
---------------------------------------------------------------------------

    Typically the costs of vegetative controls are less than other 
storm water practices. The use of check dams incorporated into flow 
paths can provide additional infiltration and flow 
attenuation.7 Given the limited capacity to accept large 
volumes of runoff, and potential erosion problems associated with large 
concentrated flows, vegetative controls should usually be used in 
combination with other storm water devices.
---------------------------------------------------------------------------

    \7\ ``Standards and Specifications for Infiltration Practices,'' 
1984, Maryland Water Resources Administration.
---------------------------------------------------------------------------

    Grass swales are typically used in areas such as low or medium 
density residential development and highway medians as an alternative 
to curb and gutter drainage systems.8.
---------------------------------------------------------------------------

    \8\ ``Controlling Urban Runoff: A Practical Manual for Planning 
and Designing Urban BMPs,'' Metropolitan Washington Council of 
Governments, July 1987.
---------------------------------------------------------------------------

3. Outfall Velocity Dissipation Devices
    Outfall velocity dissipation devices include riprap and stone or 
concrete flow spreaders. Outfall velocity dissipation devices slow the 
flow of water discharged from a site to lessen erosion caused by the 
discharge.
4. Retention Structures/Artificial Wetlands
    Retention structures include ponds and artificial wetlands that are 
designed to maintain a permanent pool of water. Properly installed and 
maintained retention structures (also known as wet ponds) and 
artificial wetlands 9 can achieve a high removal rate of 
sediment, BOD, organic nutrients and metals, and are most cost-
effective when used to control runoff from larger, intensively 
developed sites.10 These devices rely on settling and 
biological processes to

[[Page 29791]]

remove pollutants. Retention ponds and artificial wetlands can also 
create wildlife habitat, recreation, and landscape amenities, as well 
as corresponding higher property values.
---------------------------------------------------------------------------

    \9\ See ``Wetland basins for Storm Water Treatment: Discussion 
and Background,'' Maryland Sediment and Storm Water Division, 1987 
and ``The Use of Wetlands for Controlling Stormwater Pollution,'' 
Strecker, E., et. al., 1990.
    \10\ ``Controlling Urban Runoff, A Practical Manual for Planning 
and Designing Urban BMPs,'' Metropolitan Washington Council of 
Governments, 1987.
---------------------------------------------------------------------------

5. Water Quality Detention Structures
    Storm water detention structures include extended detention ponds, 
which control the rate at which the pond drains after a storm event. 
Extended detention ponds are usually designed to completely drain in 
about 24 to 40 hours, and will remain dry at other times. They can 
provide pollutant removal efficiencies that are similar to those of 
retention ponds.11 Extended detention systems are typically 
designed to provide both water quality and water quantity (flood 
control) benefits.
---------------------------------------------------------------------------

    \11\ ``Urban Targeting and BMP Selection,'' United States EPA, 
Region V, November 1990.
---------------------------------------------------------------------------

C. Housekeeping BMPs

    Pollutants that may enter storm water from construction sites 
because of poor housekeeping include oils, grease, paints, gasoline, 
concrete truck wash down, raw materials used in the manufacture of 
concrete (e.g., sand, aggregate, and cement), solvents, litter, debris, 
and sanitary wastes. Construction site management plans can address the 
following to prevent the discharge of these pollutants:
     Designate areas for equipment maintenance and repair;
     Provide waste receptacles at convenient locations and 
provide regular collection of wastes;
     Locate equipment wash down areas on site, and provide 
appropriate control of washwaters;
     Provide protected storage areas for chemicals, paints, 
solvents, fertilizers, and other potentially toxic materials; and
     Provide adequately maintained sanitary facilities.

Part IV--Summary of Permit Conditions

A. Eligibility

    These proposed permits would authorize all discharges of storm 
water from construction activities, except those discussed under the 
Limitations on Coverage section. Any discharge authorized by a 
different NPDES permit may be commingled with discharges authorized by 
this permit. The proposed permit would also authorize discharges from 
support activities which are related to the construction project (e.g., 
concrete or asphalt batch plants, equipment staging yards, material 
storage areas, etc.) provided that the support activities meet the 
following conditions:
     The support activity is not a commercial operation serving 
multiple unrelated construction projects and does not operate beyond 
the completion of the construction project; and
     Appropriate controls and measures are identified in the 
storm water pollution prevention plan for the discharges from the 
support activity areas.

B. Limitations on Coverage

    The following storm water discharges from construction sites are 
not authorized by this permit:
    1. Storm water discharges which originate from the site after the 
construction activities have been completed and the site has undergone 
final stabilization
    2. Storm water discharges which are mixed with non storm water 
sources other than those identified and in compliance with the permit. 
Non storm water discharges which are authorized under a different NPDES 
permit may be commingled with discharges authorized under this permit.
    3. Storm water discharges associated with construction activity 
that have been issued an individual permit or required to obtain 
coverage under an alternative general permit are not covered under this 
permit.
    4. Storm water discharges which the Director (EPA) has determined 
to be or may reasonable be expect to be contributing to a violation of 
water quality standards are not covered by this permit.
    5. Discharges which are not in compliance with the Endangered 
Species Act (ESA). In order to obtain coverage, the applicant must 
certify to meeting one of the criteria detailed in the permit. The 
criteria are as follows: (a) The storm water discharge(s), and the 
construction and implementation of Best Management Practices (BMPs) to 
control storm water runoff, are not likely to adversely affect species 
identified in Addendum A 12 of this permit or critical 
habitat for a listed species; or (b) the applicant's activity has 
received previous authorization under section 7 or section 10 of the 
Endangered Species Act and that authorization addressed storm water 
discharges and/or BMPs to control storm water runoff (e.g., developer 
included impact of entire project in consultation over a wetlands 
dredge and fill permit under Section 7 of the Endangered Species Act); 
or (c) the applicant's activity was considered as part of a larger, 
more comprehensive assessment of impacts on endangered and threatened 
species under section 7 or section 10 of the Endangered Species Act 
that which accounts for storm water discharges and BMPs to control 
storm water runoff (e.g., where an area-wide habitat conservation plan 
and section 10 permit is issued which addresses impacts from 
construction activities including those from storm water, or a National 
Environmental Policy Act (NEPA) review is conducted which incorporates 
ESA section 7 procedures); or (d) consultation under section 7 of the 
Endangered Species Act is conducted for the applicant's activity which 
results in either a no jeopardy opinion or a written concurrence on a 
finding of no likelihood of adverse effects; or (e) the applicant's 
activity was considered as part of a larger, more comprehensive site-
specific assessment of impacts on endangered and threatened species by 
the owner or other operator of the site and that permittee certified 
eligibility under item (a), (b), (c), or (d) above (e.g., owner was 
able to certify no adverse impacts for the project as a whole under 
item (a), so the contractor can then certify under item (e)). Utility 
companies applying for permit coverage for the entire permit area of 
coverage as defined under Part I.A. may certify under item (e) since 
authorization to discharge is contingent on a principal operator of a 
construction project having been granted coverage under this, or an 
alternative NPDES permit for the areas of the site where utilities 
installation activities will occur.
---------------------------------------------------------------------------

    \12\ Proposed Addendum A is a State/County listing of endangered 
species that applicants can refer to to ensure compliance with the 
eligibility terms and conditions of the proposed permit. Addendum A 
is not included in this notice, but can be found as Addendum H to 
the Multi-Sector Storm Water General Permit issued on September 29, 
1995 (60 FR 50804). EPA will prepare a final Addendum A to accompany 
the issuance of the final permit after the public comment period. 
Reviewers wishing to make comment on Addendum A for today's proposed 
permit may do so by reviewing Addendum H in the Multi-Sector Permit.
---------------------------------------------------------------------------

    EPA notes that it is requiring all applicants to follow directions 
provided in Addendum A to ensure protection of listed species and 
critical habitat when applying for permit coverage. Those directions 
require that applicants assess the impacts of their ``storm water 
discharges'' and ``BMPs to control storm water run off'' on listed 
species and critical habitat that are located ``in proximity'' to the 
those discharges and BMPs. In proximity is defined at Addendum A to 
include species: located in the path or immediate area through which or 
over which contaminated point source storm water

[[Page 29792]]

flows from construction activities to the point of discharge into the 
receiving water; located in the immediate vicinity of, or nearby, the 
point of discharge into receiving waters; or located in the area of a 
site where storm water BMPs are planned or are to be constructed. This 
definition reflects the purpose of this permit which regulates storm 
water discharges and measures (i.e., BMPs) to control those discharges. 
However, EPA also solicits comment on whether the area or scope of 
impacts to be considered by applicants should be broadened to encompass 
listed species found on the entire construction site and not just those 
species found ``in proximity'' as currently defined in Addendum A.
    6. Storm water discharges adversely affecting properties eligible 
for protection under the National Historic Preservation Act. To be 
eligible for coverage under this permit, all applicants must determine 
whether their storm water discharges or BMPs to control storm water 
runoff would affect a property that is listed or is eligible for 
listing in the National Historic Register maintained by the Secretary 
of Interior (also known as ``historic properties'' in the NHPA 
regulations at 36 CFR 800.2). Applicants must comply with all 
requirements in this permit (including those pertaining to the 
development of storm water pollution prevention plans and submission of 
NOIs) to protect historic properties. Coverage under this permit is 
available only if (a) the storm water discharges or BMPs to control 
storm water run off do not affect a property that is listed or is 
eligible for listing in the National Historic Register maintained be 
the Secretary of Interior; or, (b) the applicant consults with the 
State Historic Preservation Officer (SHPO) or the Tribal Historic 
Preservation Officer (THPO) on the potential for adverse effects which 
results in a no effect finding; or (c) the applicant has obtained and 
is in compliance with a written agreement between the applicant and the 
SHPO/THPO that outlines all measures to be undertaken by the applicant 
to mitigate or prevent adverse effects to the historic property; or (d) 
the applicant agrees to implement and comply with the terms of a 
written agreement between another owner/operator (e.g., subdivision 
developer, property owner, etc.) and the SHPO/THPO that outlines all 
measures to be undertaken by operators on the site to mitigate or 
prevent adverse effects to the historic property; or (e) the 
applicant's activity was considered as part of a larger, more 
comprehensive site-specific assessment of effects on historic 
properties by the owner or other operator of the site and that 
permittee certified eligibility under items (a), (b), (c), or (d) 
above. Utility companies applying for permit coverage for the entire 
construction site may certify under item (d) since authorization to 
discharge is contingent on a principal operator of a construction 
project having been granted coverage under this, or an alternative 
NPDES permit for the areas of the site where utilities installation 
activities will occur.
    This permit does not authorize any storm water discharges or BMPs 
to control storm water runoff which are not in compliance with any 
applicable State or local historic preservation laws.

C. Obtaining Coverage

    Dischargers who submit a complete and accurate NOI in accordance 
with the requirements of this permit are authorized to discharge storm 
water from construction sites under the terms and conditions of this 
permit. As proposed, authorization to discharge occurs two days after 
the date that the NOI is postmarked, unless otherwise notified by EPA. 
Dischargers must have developed and be ready to implement a Storm Water 
Pollution Prevention Plan (SWPPP) for the areas of the construction 
project for which they are responsible prior to submission of the NOI. 
A new NOI must be filed by the new operator when an operator changes or 
when a new operator is added.
    The Agency requests comment on an alternative time frame for NOI 
submittal. EPA solicits comments on requiring a 30-day advance time 
frame in which to submit a notice of intent. EPA believes this 
additional time would allow for a more timely administrative processing 
of each NOI and allow EPA time to acknowledge coverage and assign a 
permit number to the permittee prior to work actually commencing on the 
site. In addition, the 30-day advance notice period may allow EPA more 
time to review potential impacts of construction activities on 
endangered species and historic properties. Comments on this option 
should be submitted during the public review and comment period 
described above.
    EPA may deny coverage under this permit and require submittal of an 
individual NPDES permit application based on a review of the 
completeness and/or content of the NOI or other information (e.g., 
water quality information, compliance history, etc.). Where EPA 
requires a discharger authorized under the general permit to apply for 
an individual NPDES permit or an alternative general permit, EPA will 
notify the discharger in writing that a permit application is required. 
Coverage under this general permit will automatically terminate if the 
discharger fails to submit the required individual or alternative 
permit application in a timely manner. Where the discharger does submit 
a requested permit application, coverage under this general permit will 
automatically terminate on the effective date of the issuance or denial 
of the individual NPDES permit or the alternative general permit as it 
applies to the individual permittee.

D. Terminating Coverage

    Operators needing to terminate coverage must submit a Notice of 
Termination (NOT). Permittees must submit the NOT within 30 days after 
completion of their construction activities and final stabilization of 
their portion of the site. An NOT must also be submitted by the first 
operator when another operator takes over the responsibilities of a 
previous operator. Notice of Termination requirements are discussed 
later in this fact sheet. When a utility company is covered by an area 
wide permit for installation of services, it is not required to submit 
NOTs for each project.

E. Notice of Intent Requirements

    NPDES general permits for storm water discharges associated with 
industrial activity require that dischargers submit a Notice of Intent 
(NOI) to be covered by the permit prior to the authorization of their 
discharges under such permit (see 40 CFR 122.28(b)(2), (April 2, 1992, 
(57 FR 11394)). Consistent with these regulatory requirements, today's 
permit establishes NOI requirements. Dischargers that submit a complete 
and accurate NOI are not required to submit an individual permit 
application for such discharge, unless the Director specifically 
notifies the discharger that an individual permit application must be 
submitted.
    Dischargers who want to obtain coverage under this permit must 
submit an NOI using the form provided by EPA (or a photocopy thereof). 
Proposed NOI forms are in Addendum C of the proposed permit. Each 
entity which meets either of the two criteria in Part IX (Definitions) 
of the permit for an ``operator'' must submit an NOI. An ``operator'' 
is any party associated with a construction project which has 
operational control over project specifications (including the ability 
to make modifications in specifications) or has day-to-day operational 
control of those activities at a project site which are necessary to 
ensure compliance with the permit. The criteria for an operator

[[Page 29793]]

in the permit are the same as EPA intended for the existing permits. 
However, a definition for the term operator has been added to the 
permit for clarification.
    The rationale for the criteria for an operator was discussed in 
Appendix A--Summary of Responses to Public Comment which accompanied 
the issuance of the expiring permit (September 9, 1992, (57 FR 41190)). 
To ensure effective implementation of the requirements of the permit, 
the permit must directly regulate each entity with control over the 
critical functions identified above in the definition of an operator. 
Control over project specifications is necessary to ensure that a 
project design includes appropriate sediment and erosion control 
measures and post construction storm water management measures. Day to 
day operational control is necessary to ensure effective implementation 
of permit requirements at a project site.
    The entities who are considered operators will commonly consist of 
the owner or developer of a project (the party with control of project 
specifications) and the general contractor (the party with day to day 
operational control of the activities at project site which are 
necessary to ensure compliance with the permit). Contractors and 
subcontractors who are under the general supervision of the general 
contractor are not considered operators and would not need to submit 
NOIs. However, they must certify that they understand the terms and 
conditions of the proposed permit in accordance with Part IV. E of the 
permit.
    Utility companies (e.g., telephone, electric, gas, cable TV, etc.) 
are a special class of operator. They typically disturb only a very 
small portion of the construction site during installation of above 
ground or underground utility lines. Main service lines are typically 
installed before construction of buildings, with stubs left for later 
connections to individual houses or buildings as they are completed. 
All this utility installation is typically done by utility company 
personnel or contractors hired directly by the utility company. All 
installation is typically completed long before final site 
stabilization is even possible, so utility companies will seldom, if 
ever, have responsibility for final stabilization (except for areas 
disturbed by utility companies only during the construction process). 
While the owner of the project specifies what level of service is 
desired and safety codes dictate minimum specifications (e.g., size and 
type of electric wire, depth of trenches, etc.), the utility company 
retains the ultimate decision on specifications (e.g., could choose to 
install bigger lines to serve future demand in adjacent areas) and 
retains ownership of the utility lines after they are installed in the 
utility easements. The utility company's long term ownership of utility 
lines is significant, in that developers and construction companies 
typically transfer the completed project to the ultimate owner and have 
no future interest in the site. Utility contractors hired by a utility 
company or other site operators and not meeting the definition of 
``operator'' are considered subcontractors for the purpose of the 
permit and are covered by the subcontractor certification requirements 
of Part IV.E.
    In some ways utility companies operate akin to subcontractors, but 
often without a contract since State/Tribal laws typically require the 
utility company to provide service to anyone who pays the appropriate 
installation charges. At times, only one utility company may exist for 
a particular service within a service area. A site owner often has no 
choice about which utility company to use and even where there is a 
choice it is usually between a limited number of ``authorized'' utility 
companies. Once a utility company is selected, the site operator 
typically must allow the utility company to do the installation and 
cannot choose to install the lines itself . This adds up to a very 
limited, if any, direct control a site operator actually has over 
utility company operations on a site other than identifying where 
easements and structures will be located and coordination on timing of 
installation. In addition, during enforcement actions there have been 
complaints from the construction industry that there have been 
instances where lack of coordination and clear definition of 
responsibilities have led to damage to storm water control measures 
without the operator of such measures even being aware that another 
party was on site.
    Recognizing the special case utility companies present, today's 
permit proposes to establish special NOI and permit requirements for 
the limited construction activities by utility companies and to allow 
coverage for the entire permit area with the submittal of a single NOI. 
Area-wide coverage would only be available provided the site owner/
operator has previously obtained coverage for the more comprehensive 
construction activities at the site and the pollution prevention plan 
addresses utilities installation and assigns responsibilities for 
control measures.
    As envisioned, the site owner/operator could develop measures 
specifically for the utility and include them in a ``master'' pollution 
prevention plan, or the utility company could provide appropriate 
control measures for its activities on site to the site owner/operator 
for attachment to the ``master'' pollution prevention plan. Given the 
limited activities of utility companies, the site inspection and other 
permit conditions of a more comprehensive nature would default to the 
site owner/operator for implementation. This conditional permit 
coverage reduces the administrative and financial burden of requiring 
separate NOIs for each utility company operating at every construction 
site.
    Some of the other options considered for addressing utilities 
installation included: requiring a full NOI and pollution prevention 
plan for each utility company project or allowing the utility company 
to submit a single NOI for area wide permit coverage, but requiring a 
pollution prevention plan for each project (or providing an addendum 
for the site operator's plan). While either alternative could satisfy 
the requirements of the Clean Water Act, the Agency prefers to 
implement a process with fewer administrative burdens and economic 
impacts. A requirement for a separate NOI from each utility company at 
a site would add two to six additional NOIs per project. This would 
increase the administrative burden on the regulated community, the 
States, Tribes and EPA. A requirement for NOIs and full pollution 
prevention plans from each utility company at a site would add 
unnecessary cost to the relatively routine process of installing 
utilities (as opposed to the more complicated aspects of managing 
runoff from an entire construction project). This added cost would 
eventually be passed on to the owner/buyer of the completed project. 
While utility companies do have a role in preventing pollution of storm 
water at construction sites, the Agency has attempted to include 
utility company accountability in the permit in the most practicable 
manner possible. The Agency requests comments on these and any 
alternative methods to insure accountability and equity for all 
operators at construction sites.
    Dischargers operating under approved State, Tribal or local 
sediment and erosion plans, grading plans, or storm water management 
plans, must, in addition to filing copies of the NOI with EPA, submit 
signed copies of the NOI to the State or local agency approving such 
plans by the deadlines stated below.

[[Page 29794]]

1. Deadlines for Submitting NOIs
    Deadlines for submittal of NOIs to be authorized to discharge under 
this permit are as follows:
     Parties with operational control over project 
specifications, (the owners and/or developers), must submit an NOI at 
least two days prior to commencement of the construction activity.
     Other parties with day to day operational control of 
activities at a project site must submit an NOI two days prior to their 
commencing work at the site.
     For storm water discharges from construction sites where 
the operator changes, (including projects where an operator is added 
after an NOI has been submitted), an NOI shall be submitted at least 
two days prior to when the operator commences work at the site.
     Utility companies (telephone, gas, electric, water, sewer 
and cable etc.) whose involvement in an individual construction project 
is limited to installation of underground or above ground service lines 
and associated equipment to provide connections from a main 
transmission line to individual customers, may file a single NOI to 
obtain coverage for all such activities in the defined areas of permit 
coverage. A utility company should file for coverage at least two days 
prior to beginning work. Coverage obtained by utility companies in this 
manner is limited to the utility company's activities on sites where an 
operator of the individual construction project has obtained coverage 
under this permit; an alternate general permit or an individual permit. 
The pollution prevention plan for the construction site must identify 
control measures for the installation of the utilities and the parties 
responsible for those measures.
    When a utility company is constructing a project for itself , it 
must obtain permit coverage on a case by case basis in the manner 
described for operators with control over project specifications (i.e.; 
two days prior to beginning work). Permittees with construction 
projects authorized to discharge under the previous general permit 
issued in 1992 must:
     Submit a new NOI within thirty (30) days of the effective 
date of this permit in order to continue authorization to discharge 
after July 2, 1997. If the permittee will be eligible to submit a 
Notice of Termination (NOT) (e.g., construction finished and final 
stabilization complete) before the 30th day, no NOI is required.
     During the time between the effective date of this permit 
and July 2, 1997, comply with the terms and conditions of the 1992 
baseline general permit they were previously authorized under and 
submitted an NOI for extended coverage as described under the 
Administrative Procedures Act before termination of the 1992 baseline 
general permit.
     Update their current pollution prevention plan to comply 
with the requirements of Part IV no later than July 2, 1997.
    EPA will accept an NOI at a later date for any unpermitted 
activities that may have occurred between the time construction 
commenced and the time authorization is received. Late NOIs can only 
provide coverage for future discharges and do not retro-actively apply 
to any unpermitted discharges that may have occurred in the past.
    Options Considered: Several options for NOI deadlines were 
considered. As described above, the Agency requests comment on an 
alternative NOI submittal time frame of 30-days. Commenters should give 
consideration to the criteria that could be used to establish the final 
permit's NOI deadlines, such as: recognizing the time lapse between 
submission of the NOI and receipt of actual discharge authorization and 
minimizing the impact this time lapse could have on the construction 
industry, providing a mechanism for considering each project's 
potential impacts on the environment, endangered species or historic 
properties and thus their eligibility for general permit coverage, 
providing a realistic time for at least one operator (typically the 
owner) at a construction project to receive confirmation of permit 
coverage, providing a common link between the various permittees at a 
construction site, and minimizing, where possible, the total number of 
NOIs that would be necessary at each construction project.
    The proposed option contained in this proposed permit is to retain 
the two day NOI deadline used in the 1992 permits. The advantage of 
this approach is the short turn-around in obtaining permit coverage. 
While there are certain problems regarding coverage that have arisen 
with a short time frame, including inadvertently granted coverage and 
incomplete NOIs, EPA believes that such deficiencies have been resolved 
without adverse impacts on the environment. EPA is continuing this 
option as the preferred option due to the flexibility to provide permit 
coverage for these activities in a timely fashion without adverse 
impact on the environment.
    The option EPA is requesting comment on would require a longer lead 
time for NOI submittal by the owner or developer of the site that would 
allow enough time for that permittee to receive confirmation of permit 
authorization, including an assigned permit number. This initial NOI 
would include an assessment of the permit eligibility of the site as a 
whole, including addressing any endangered species or historic 
preservation concerns early on in the process. Subsequent applicants, 
such as the contractors hired by the owner/developer, could then rely 
on this initial assessment and be eligible to file an NOI only two days 
prior to commencing work. This option could possibly reduce the cost to 
implement a pollution prevention plan, in that subsequent contractors 
would be able to identify any owner/develop applicants that may have 
already developed a pollution prevention plan that covers all 
construction activities on the site. Subsequent applicants could 
thereby avoid duplicate cost to complete their own plan specific to 
their portion of the site activity.
    A third option was to require all operators to submit NOIs 14 days 
in advance of commencing construction. While this approach allowed 
additional time for review of NOIs, experience in processing of NOIs 
suggests that two weeks is not enough time for determining completeness 
of the NOI and returning a response to the applicant. While electronic 
filing of NOIs could help, the Agency currently does not have the 
capability to accept electronic applications and some operators may not 
have the ability to file NOIs electronically.
    A fourth option was to require an NOI for each construction project 
from the operator(s) with control over site specifications (e.g., 
developer or owner). Operators with day to day control over 
implementation of storm water controls (e.g. general contractor) would 
be allowed to submit a single NOI for all their company's activities 
within the permit area. This option had the obvious advantage of 
reducing the total number of NOIs that would need to be submitted. 
However, the operators implementing a more complex pollution prevention 
plan covering all of the site-dependent activities at a wide range of 
different construction sites (as opposed to the relatively small and 
consistent activities of a utility company) would require a higher 
level of permit controls to provide environmental accountability. 
Uncertainty over the time needed to develop the appropriate permit 
conditions for such an approach lead to abandoning this approach in 
favor of concentrating on ensuring that

[[Page 29795]]

a replacement construction general permit was available for new 
construction projects before the current permit expires.
    The Agency requests comments on the 30-day advance notice option 
and welcomes any suggestions on streamlining obtaining permit coverage 
while still ensuring compliance with the Agency's responsibilities 
under the Clean Water Act, the Endangered Species Act, and the National 
Historic Preservation Act. The Agency notes that it is currently 
undergoing consultation under section 7 of the Endangered Species Act 
and plans to initiate consultation under sections 106 and 110 of the 
National Historic Preservation Act on the issuance of this permit. 
These consultations may result in additional permit conditions to 
protect endangered and threatened species, critical habitat, and 
historic properties.
    2. Contents of the NOI.
    An NOI (a draft copy of a proposed new form is found in Addendum C 
of today's notice (or a photocopy)) must be completed and submitted to 
EPA's NOI Center address to obtain authorization to discharge under 
today's permit. The NOI contained in this proposed permit is a revised 
NOI. EPA is requesting much of the same information as in the previous 
form, but has also added additional questions concerning endangered 
species, historic preservation, and pollution prevention plan status. 
EPA is concurrently providing this NOI to the Office of Management and 
Budget for review under the Paperwork Reduction Act. The NOI form 
requires the following information:
     The street address (description of location if no street 
address is available), county, and the latitude and longitude of the 
approximated center of the construction site/project for which the 
notification is submitted;
     The name, address, and telephone number of the operator(s) 
filing the NOI for permit coverage and operator status as a Federal, 
State, Tribal, private, or public entity;
     Whether or not the construction project is located on an 
Indian lands;
     The name of the receiving water(s), or if the discharge is 
through a municipal separate storm sewer, the name of the municipal 
operator of the storm sewer and the receiving water(s);
     The permit number of other operator at the site, to the 
extent available;
     An estimate of project start date and completion date, 
estimate of the number of acres of the site on which soil will be 
disturbed,
    Acreage may be determined by dividing square footage by 43,560, as 
demonstrated in the following example.

Convert 54,450 ft \2\ to acres
    Divide 54,450 ft \2\ by 43,560 square feet per acre: 54,450 ft 
\2\43,560 ft \2\/acre=1.25 acres;

     An estimation of the frequency of discharge;
     The location of where the pollution prevention plan can be 
viewed if different from the project address.
     A certification that a storm water pollution prevention 
plan, including both construction and post construction controls, has 
been prepared for the site in accordance with the permit and that such 
plan complies with approved State, Tribal and/or local sediment and 
erosion plans or permits and/or storm water management plans or 
permits. A copy of the plans or permits should not be included with the 
NOI submission, and should not be submitted unless requested by EPA;
     Whether any species identified in Addendum A of the permit 
are in proximity to the storm water discharges to be covered by this 
permit or to the BMPs to be used to comply with this permit. Addendum A 
of the permit contains instructions for making this determination;
     That there will be no effect on any properties listed or 
eligible for listing on the National Register of Historic Places under 
the National Historic Preservation Act that are located on the 
construction site; and
     The applicant must also sign a certification statement 
indicating an understanding of the terms and conditions of the permit.
    Notice of Intent Requirements for Utility Companies seeking Area 
Wide Coverage (these requirements apply only when the utility companies 
are installing service):
     The name, address and telephone number of the utility 
company filing the NOI for permit coverage and operator status as a 
Federal, State, Tribal, private, public or public entity;
     The State, Tribal or other area of which coverage is being 
requested, and whether or not any construction projects will be located 
on Indian Reservation lands;
     The name, address, and telephone number of the utility 
company's point of contact for the utility company's compliance with 
the area wider coverage;
     A certification that a storm water pollution prevention 
plan with standard operating procedures of the limited utility company 
construction activities related to installation of service connections 
has been prepared in accordance with the requirements of this permit 
and that the plan provides compliance with approved state and/or local 
sediment and erosion plans or permits and storm water management plans 
or permits; and
     Certification of eligibility and compliance with the 
Endangered Species Act and The National Historic Preservation Act.
    The NOI must be signed in accordance with the signatory 
requirements of 40 CFR 122.22. A complete description of these 
signatory requirements is provided in the Standard Permits Section of 
the general permit.
3. Where To Submit
    Completed NOI forms are to be submitted to the address indicated on 
the NOI form. The following items should be posted at the construction 
site in a prominent place for public viewing: a copy of the Director's 
acknowledgment of coverage and the assigned permit number; a local 
contact telephone number and address for public access to view the 
pollution prevention plan at reasonable times during regular business 
hours (advance notice by the public of the desire to view the plan may 
be required, not to exceed two working days). The permit does not 
require that free copies of the plan be provided to interested members 
of the public, only that they have reasonable access to view the 
document and copy it at their own expense; and a brief description of 
the project.

F. Special Conditions Management Practices, and Other Non-Numeric 
Limitations

1. Prohibition on Non-Storm Water Discharges
    Today's proposed permits would not authorize non-storm water 
discharges that are mixed with storm water discharges except for the 
specific classes of non-storm water discharges described in the permit. 
Non-storm water discharges that would be authorized under today's 
proposed permits would include discharges from firefighting activities; 
fire hydrant flushings; waters used to wash vehicles or control dust in 
accordance with permit requirements; potable water sources including 
waterline flushings; routine external building wash down that does not 
use detergents; pavement washwaters where spills or leaks of toxic or 
hazardous materials have not occurred (unless all spilled material has 
been removed) and where detergents are not used; air conditioning 
condensate; springs;

[[Page 29796]]

uncontaminated ground water; and foundation or footing drains where 
flows are not contaminated with process materials such as 
solvents.13 Discharges of material other than storm water 
which are in compliance with another NPDES permit issued for that 
discharge may be mixed with the storm water discharges authorized by 
this permit.
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    \13\ These discharges are consistent with the allowable classes 
of non-storm water discharges to municipal separate storm sewer 
systems (40 CFR 122.26(d)(iv)(D)). This permit would authorize such 
discharges consistent with the terms and conditions of the permit.
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    To be authorized under today's proposed permits, these sources of 
non-storm water (except flows from firefighting activities) must be 
specifically identified in the storm water pollution prevention plan 
prepared for the facility. (Plan requirements are discussed in more 
detail below).
    Today's proposed permits would not require pollution prevention 
measures to be identified and implemented for non-storm water flows 
from firefighting activities since these flows will usually occur as 
unplanned emergency situations where it is necessary to take immediate 
action to protect the public.
    The general prohibition on non-storm water discharges in today's 
permit ensures that non-storm water discharges (except for those 
classes of non-storm water discharges that are authorized subject to 
compliance with certain conditions) are not inadvertently authorized by 
this permit. Where a storm water discharge is mixed with process 
wastewaters or other sources of non-storm water prior to discharge, and 
the discharge is currently not authorized by an NPDES permit, the 
discharge cannot be covered by today's permit and the discharger should 
submit the appropriate application forms (Forms 1 and 2C) to obtain 
permit coverage or discontinue the discharge.
2. Releases of Reportable Quantities of Hazardous Substances or Oil
    Today's proposed permits would provide that the discharge of 
hazardous substances or oil from a facility must be prevented or 
minimized in accordance with the storm water pollution plan developed 
for the facility. Where a permitted storm water discharge contains a 
hazardous substance or oil in an amount equal to or in excess of a 
reporting quantity established under 40 CFR 110, 40 CFR 117, or 40 CFR 
302, during a 24-hour period, today's permits would require the 
following actions:
     The permittee must notify the National Response Center 
(NRC) (800-424-8802; in the Washington, D.C. metropolitan area 202-426-
2675) in accordance with the requirements of 40 CFR 110, 40 CFR 117, 
and 40 CFR 302, as soon as they have knowledge of the discharge;
     The permittee must modify the storm water pollution 
prevention plan for the facility within 14 calendar days of knowledge 
of the release to provide a description of the release, the date of the 
release and the circumstances leading to the release. In addition, the 
permittee must modify the plan, as appropriate, to identify measures to 
prevent the reoccurrence of such releases and to respond to such 
releases.
     Within 14 calendar days of the knowledge of the release, 
the permittee must submit to EPA a written description of the release 
(including the type and estimated amount of material released), the 
date that such release occurred, the circumstances leading to the 
release, and (4) any steps to be taken to minimize the chance of future 
occurrences.
    Where a discharge of a hazardous substance or oil in excess of 
reporting quantities is caused by a non-storm water discharge (e.g., a 
spill of oil into a separate storm sewer), the spill would not be 
authorized by this proposed permit. The discharger must report the 
spill as required under 40 CFR 110. In the event of a spill, the 
requirements of Section 311 of the CWA and otherwise applicable 
provisions of Sections 301 and 402 of the CWA continue to apply.
    This approach is consistent with the requirements for reporting 
releases of hazardous substances and oil-requirements that make a clear 
distinction between hazardous substances typically found in storm water 
discharges and those associated with spills that are not considered 
part of a normal storm water discharge (see 40 CFR 117.12(d)(2)(i)).
3. Compliance With Water Quality Standards
    The previous permit did not specifically address water quality 
standards. Today's proposed permit would require as an eligibility 
condition that dischargers seeking coverage under this permit not be 
causing or have the reasonable potential to cause or contribute to a 
violation of a water quality standard. If a discharge is known to be 
doing such, prior to or at the time of application, then the operator 
may not seek coverage under this general permit but must seek coverage 
under an alternative permit. Where a discharge is already authorized 
under this permit and is later discovered to cause or have the 
reasonable potential to cause or contribute to the violation of an 
applicable State, Tribal or Federal Water Quality Standard, the 
permitting authority will notify the operator of such violation(s) and 
the permittee shall take all necessary actions to ensure future 
discharges do not cause or contribute to the violation of a water 
quality standard and document these actions in the pollution prevention 
plan. If violations remain or reoccur, then coverage under this permit 
will be terminated by the permitting authority and an alternative 
permit may be issued. Compliance with this requirement does not 
preclude any enforcement activity as provided by the Clean Water Act 
for the underlying violation.
4. Operator Responsibility
    The proposed permits outline the expected responsibilities of the 
various operators which may be working at the constructions site. 
Permittees with operational control of the project specifications must 
ensure that these specifications meet the minimum requirements of the 
pollution prevention plan; the pollution prevention plan indicates 
which area of the projects they have operational control over; and 
ensure that the plan indicates who has day to day operational control 
including names and permit numbers. If a person with day to day 
operational control is not identified at the time the pollution 
prevention plan is developed, the permittee with operational control of 
the project specifications will be responsible.
    Permittees with day to day operational control of a construction 
site must ensure the pollution prevention plan meets minimum 
requirements; ensure that the plan clearly identifies which areas of 
the project they have control over; and ensure that the pollution 
prevention plan indicates the name and permit number of the person with 
operational control of the project specifications.
    The permit also identifies partial site operators. These are 
operators with operational control over only a portion of a larger 
construction site. These operators are only responsible for permit 
compliance and pollution prevention plan compliance as it relates to 
their activities on site. They must also ensure that their activity 
does not cause another party's pollution controls to be less effective. 
Partial site operators must either implement their portions of a common 
pollution prevention plan or develop and implement their own pollution 
prevention plan.

[[Page 29797]]

G. Pollution Prevention Plan Requirements

    The pollution prevention plans required by today's permit focus on 
two major tasks: (1) Providing a site description that identifies 
sources of pollution to storm water discharges associated with 
industrial activity from the facility; and (2) identifying and 
implementing appropriate measures to reduce pollutants in storm water 
discharges to ensure compliance with the terms and conditions of this 
permit. All storm water pollution prevention plans shall be developed 
in accordance with good engineering practices.
    In developing this permit, the Agency reviewed a significant number 
of existing State and local sediment and erosion control and storm 
water management requirements. State and local data were reviewed for a 
wide range of climates and varying types of construction activities.
1. Deadlines for Plan Preparation
    Today's proposed permits would require that the storm water 
pollution prevention plan must be completed prior to the submittal of 
an NOI to be covered under this permit and updated as appropriate, 
including certifications;
2. Signature and Plan Review
    Signature and plan review requirements are as follows:
     The plan must be signed by all permittees for a site in 
accordance with the signatory requirements in the Standard Permit 
Conditions section of the permit, and must be retained on site at the 
facility that generates the storm water discharge. If the site is 
inactive or does not have an onsite location adequate to store the 
pollution prevention plan, the location of the plan, and the phone 
number of a contact person shall be posted on site indicating where the 
plan can be viewed at reasonable times during regular business hours 
(advance notice by the public of the desire to view the plan may be 
required, not to exceed two working days). The permit does not require 
that free copies of the plan be provided to interested members of the 
public, only that they have reasonable access to view the document and 
copy it at their own expense. A brief description of the project shall 
also be posted at the construction site in a prominent and safe place 
for public viewing during regular business hours (alongside the 
building permit if the building permit is required to be displayed).
     EPA may notify the permittee at any time that the plan 
does not meet one or more of the minimum requirements. The notification 
shall identify those provisions of the permit which are not being met 
by the plan , and identify which provisions of the plan require 
modification in order to meet the requirements of the permit. Within 
seven calendar days of receipt of such notification from EPA (or as 
otherwise requested by EPA), the permittee must make the required 
changes to the plan and submit to EPA a written certification that the 
requested changes have been made.

3. Making Plans Available

    The permittee must make plans available, upon request, to EPA, 
State, Tribal or local agencies approving sediment and erosion plans, 
grading plans, or storm water management plans; interested members of 
the public; local government officials; or to the operator of the 
municipal separate storm sewer which receives the discharge.

4. Keeping Plans Current

    The permittee must amend the plan whenever there is a change in 
design, construction, operation, or maintenance, that has a significant 
effect on the potential for the discharge of pollutants to waters of 
the United States or to municipal separate storm sewer systems. The 
plan must also be amended if inspections or investigations by site 
operators, local, State, Tribal, or Federal officials indicate the 
storm water pollution prevention plan is proving to be ineffective in 
eliminating or significantly minimizing pollutants in the storm water 
discharges from the construction activity. In addition, the plan shall 
be amended to identify any new contractor and/or subcontractor that 
will implement a measure of the storm water pollution prevention plan.
5. Contents of the Plan
    Storm water pollution prevention plans must include a site 
description; a description of controls that will be used at the site 
(e.g., erosion and sediment controls, storm water management measures); 
a description of maintenance and inspection procedures; and a 
description of pollution prevention measures for any non-storm water 
discharges that exist.
    a. Site Description: Storm water pollution prevention plans must be 
based on an accurate understanding of the pollution potential of the 
site. The first part of the plan requires an evaluation of the sources 
of pollution at a specific construction site. The plan must identify 
potential sources of pollution that may reasonably be expected to 
affect the quality of storm water discharges from the construction 
site. In addition, the source identification components for pollution 
prevention plans must provide a description of the site and the 
construction activities. This information is intended to provide a 
better understanding of site runoff and major pollutant sources. At a 
minimum, plans must include the following:
     A description of the nature of the construction activity. 
This would typically include a description of the ultimate use of the 
project (e.g., low-density residential, shopping mall, highway);
     A description of the intended sequence of major activities 
that disturb soils for major portions of the site (e.g., grubbing, 
excavation, grading);
     Estimates of the total area of the site and the total area 
of the site that is expected to be disturbed by excavation, grading, or 
other activities. Where the construction activity is to be staged, it 
may be appropriate to describe areas of the site that will be disturbed 
at different stages of the construction process;
     Estimates of the runoff coefficient of the site after 
construction activities are completed as well as existing data 
describing the quality of any discharge from the site or the soil. The 
runoff coefficient is defined as the fraction of total rainfall that 
will appear at the conveyance as runoff. Runoff coefficients can be 
estimated from site plan maps, which provide estimates of the area of 
impervious structures planned for the site and estimates of areas where 
vegetation will be precluded or incorporated. Runoff coefficients are 
one tool for evaluating the volume of runoff that will occur from a 
site when construction is completed. These coefficients assist in 
evaluating pollutant loadings, potential hydraulic impacts to receiving 
waters, and flooding impacts. They are also used for sizing of post-
construction storm water management measures;
     A site map indicating drainage patterns and approximate 
slopes anticipated after major grading activities, areas of soil 
disturbance; an outline of areas that will not be disturbed; the 
location of major structural and nonstructural controls identified in 
the plan; the location of areas where stabilization practices are 
expected to occur; the location of surface waters (including wetlands); 
and locations where storm water is discharged to a surface water. Site 
maps should also include other major features and potential pollutant 
sources, such as the location of impervious structures

[[Page 29798]]

and the location of soil piles during the construction process;
     A description of any discharge associated with industrial 
activity other than construction (including storm water discharges from 
dedicated asphalt plants and dedicated concrete plants) and the 
location of that activity on the construction site;
     The name of the receiving water(s), and areal extent of 
wetland acreage at the site;
     Information on endangered and threatened species including 
whether any endangered species are in proximity to the storm water 
discharges and BMPs to be constructed to control storm water runoff; 
and
     Information on any properties listed or eligible for 
listing on the National Register of Historic Places under the National 
Historic Preservation Act that are located on the construction site.
    b. Controls to Reduce Pollutants: The storm water pollution 
prevention plan must describe and ensure the implementation of 
practices that will be used to reduce the pollutants in storm water 
discharges from the site and assure compliance with the terms and 
conditions of the permit. Permittees are required to develop a 
description of four classes of controls appropriate for inclusion in 
the facility's plan, and implement controls identified in the plan in 
accordance with the plan. The description of controls must address 
erosion and sediment controls, storm water management, a specified set 
of other controls, and any applicable procedures and requirements of 
State, Tribal and local sediment and erosion plans or storm water 
management plans.
    The pollution prevention plan must clearly describe the intended 
sequence of major activities and when, in relation to the construction 
process, the control will be implemented. Good site planning and 
preservation of mature vegetation are primary control techniques for 
controlling sediment in storm water discharges during construction 
activities as well as for developing a strategy for storm water 
management that controls pollutants in storm water discharges after the 
completion of construction activities. Properly staging major earth 
disturbing activities can also dramatically decrease the costs of 
sediment and erosion controls. The description of the intended sequence 
of major activities will typically describe the intended staging of 
activities on different parts of the site.
    Permittees must develop and implement four classes of controls in 
the pollution prevention plan, each of which is discussed below.
    i. Erosion and Sediment Controls: The requirements for erosion and 
sediment controls for construction activities in this permit have long 
and short term goals and criteria. This includes the following:
     Construction phase erosion and sediment controls should be 
designed with the objective to retain sediment on site;
     All control measures must be properly selected and 
installed in accordance with good engineering practices and 
manufacturers specifications;
     Off site accumulations of sediment must be removed at a 
frequency to minimize impacts;
     Sediment should be removed from sediment traps when the 
design capacity has been reduced by 50 percent;
     Litter shall be picked up prior to storm events or 
otherwise prevented from entering a receiving water; and
     Offsite material storage areas must be addressed in the 
pollution prevention plan. Erosion and sediment controls include both 
stabilization practices and structural practices.
    ii. Stabilization Practices. Pollution prevention plans must 
include a description of interim and permanent stabilization practices, 
including site-specific scheduling of the implementation of the 
practices. The plans should ensure that existing vegetation is 
preserved where attainable and that disturbed portions of the site are 
stabilized as quickly as possible. Stabilization practices are the 
first line of defense for preventing erosion; they include temporary 
seeding, permanent seeding, mulching, geotextiles, sod stabilization, 
vegetative buffer strips, protection of trees, preservation of mature 
vegetative buffer strips, and other appropriate measures. Temporary 
stabilization practices can be the single most important factor in 
reducing erosion at construction sites.
    Stabilization also involves preserving and protecting selected 
trees that were on the site prior to development. Mature trees have 
extensive canopy and root systems, which help to hold soil in place. 
Shade trees also keep soil from drying rapidly and becoming susceptible 
to erosion. Measures taken to protect trees can vary significantly, 
from simple measures such as installing tree fencing around the drip 
line and installing tree armoring, to more complex measures such as 
building retaining walls and tree wells.
    Since stabilization practices play such an important role in 
preventing erosion, it is critical that they are rapidly employed in 
appropriate areas. This permit provides that, except in three 
situations, stabilization measures be initiated on disturbed areas as 
soon as practicable, but no more than 14 days after construction 
activity on a particular portion of the site has temporarily or 
permanently ceased. The three exceptions to this requirement are the 
following:
     Where construction activities will resume on a portion of 
the site within 21 days from when the construction activities ceased;
     Where the initiation of stabilization measures is 
precluded by snow cover or frozen ground, in which case, stabilization 
measures must be initiated as soon as practicable; and
     In arid areas (areas with an average annual rainfall of 0 
to 10 inches), semi-arid area (areas with an average annual rainfall of 
10 to 20 inches), and areas experiencing droughts, where the initiation 
of stabilization measures is precluded by seasonal arid conditions, in 
which case, stabilization measures must be initiated as soon as 
practicable.
    iii. Structural Practices. The pollution prevention plan must 
include a description of structural practices to the degree 
economically attainable, to divert flows from exposed soils, store 
flows, or otherwise limit runoff and the discharge of pollutants from 
exposed areas of the site. Structural controls are necessary because 
vegetative controls cannot be employed at areas of the site that are 
continually disturbed and because a finite time period is required 
before vegetative practices are fully effective. Options for such 
controls include silt fences, earth dikes, drainage swales, check dams, 
subsurface drains, pipe slope drains, level spreaders, storm drain 
inlet protection, rock outlet protection, sediment traps, reinforced 
soil retaining systems, gabions, and temporary or permanent sediment 
basins. Structural measures should be placed on upland soils to the 
degree possible. Placement of structural controls in flood plains 
should be avoided.
    For sites with more than 10 disturbed acres at one time that are 
served by a common drainage location, a temporary or permanent sediment 
basin providing 3,600 cubic feet of storage per acre drained, or 
equivalent control measures (such as suitably sized dry wells or 
infiltration structures), must be provided where attainable until final 
stabilization of the site has been accomplished. Flows from offsite 
areas and flows from onsite areas that are either undisturbed or have 
undergone final stabilization may be diverted around both the sediment 
basin and the disturbed area. The requirement to

[[Page 29799]]

provide 3,600 cubic feet of storage area per acre drained does not 
apply to such diverted flows.
    For the drainage locations which serve more than 10 disturbed acres 
at one time and where a sediment basin providing storage or equivalent 
controls for 3,600 cubic feet per acre drained is not attainable, 
smaller sediment basins or sediment traps should be used. At a minimum, 
silt fences, or equivalent sediment controls are required for all 
downslope and appropriate sideslope boundaries of the construction 
area. Diversion structures should be used on upland boundaries of 
disturbed areas to prevent runon from entering disturbed areas.
    For drainage locations serving 10 or less acres, smaller sediment 
basins or sediment traps should be used and at a minimum, silt fences, 
or equivalent sediment controls are required for all downslope and 
appropriate sideslope boundaries of the construction area. 
Alternatively, the permittee may provide a sediment basin providing 
storage for 3,600 cubic feet of storage per acre drained. Diversion 
structures should be used on upland boundaries of disturbed areas to 
prevent runon from entering disturbed areas.
    iv. Storm Water Management. The plan must include a description of 
``storm water management'' measures.14 This permit addresses 
only the installation of storm water management measures and not the 
ultimate operation and maintenance of such structures after the 
construction activities have been completed and the site has undergone 
final stabilization. Permittees are responsible only for the 
installation and maintenance of storm water management measures prior 
to final stabilization of the site and are not responsible for 
maintenance after storm water discharges associated with construction 
activities have been eliminated from the site. However, discharges of 
pollutants from storm water management structures after construction 
ceases may in themselves, need to be authorized under an NPDES permit. 
The owner/operator of such discharges after construction may inquire 
with EPA if this requirement applies.
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    \14\ For the purpose of the special requirements for 
construction activities, the term ``storm water management'' 
measures refers to controls that will primarily reduce the discharge 
of pollutants in storm water from sites after completion of 
construction activities.
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    Land development can significantly increase storm water discharge 
volumes and peak velocities where appropriate storm water management 
measures are not implemented. In addition, storm water discharges will 
typically contain higher levels of pollutants, including total 
suspended solids (TSS), heavy metals, nutrients, and oxygen demanding 
constituents.15
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    \15\ See ``Nationwide Urban Runoff Program,'' EPA, 1984.
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    Storm water management measures that are installed during the 
construction process can control the volume of storm water discharged 
and peak discharge velocities, as well as reduce the amount of 
pollutants discharged after the construction operations have been 
completed. Reductions in peak discharge velocities and volumes can also 
reduce pollutant loads, as well as reduce physical impacts such as 
stream bank erosion and stream bed scour. Storm water management 
measures that mitigate changes to predevelopment runoff characteristics 
assist in protecting and maintaining the physical and biological 
characteristics of receiving streams and wetlands.
    Structural measures should be placed on upland soils to the degree 
attainable. The installation of such devices may be subject to section 
404 of the CWA if the devices are placed in wetlands (or other waters 
of the United States).
    Options for storm water management measures that are to be 
evaluated in the development of plans include infiltration of runoff on 
site; flow attenuation by use of open vegetated swales and natural 
depressions; storm water retention structures and storm water detention 
structures (including wet ponds); and sequential systems that combine 
several practices.
    The pollution prevention plan must include an explanation of the 
technical basis used to select the practices to control pollution where 
flows exceed predevelopment levels. The explanation of the technical 
basis for selecting practices should address how a number of factors 
were evaluated, including the pollutant removal efficiencies of the 
measures, the costs of the measure, site specific factors that will 
affect the application of the measures, whether the measure is 
economically achievable at a particular site, and other relevant 
factors.
    Although not a limitation or performance standard in the permit, 
EPA anticipates that storm water management measures at many sites will 
be able to provide for the removal of at least 80 percent of total 
suspended solids (TSS).16 A number of storm water management 
measures can be used to achieve this level of control, including 
properly designed and installed wet ponds, infiltration trenches, 
infiltration basins, sand filter system, manmade storm water wetlands, 
and multiple pond systems. The pollutant removal efficiencies of 
various storm water management measures can be estimated from a number 
of sources, including ``Storm Water Management for Construction 
Activities: Developing Pollution Prevention Plans and Best Management 
Practices,'' U.S. EPA, 1992, and ``A Current Assessment of Urban Best 
Management Practice,'' prepared for U.S. EPA by Metropolitan Washington 
Council of Governments, March 1992. Proper selection of a technology 
depends on site factors and other conditions.
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    \16\ TSS can be used as an indicator parameter to characterize 
the control of other pollutants, including heavy metals, oxygen 
demanding pollutants, and nutrients, commonly found in storm water 
discharges.
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    In selecting storm water management measures, the permittee should 
consider the impacts of each method on other water resources, such as 
ground water. Although storm water pollution prevention plans primarily 
focus on storm water management, EPA encourages facilities to avoid 
creating ground water pollution problems. For example, if the water 
table is unusually high in an area or soils are especially sandy and 
porous, an infiltration pond may contaminate a ground water source 
unless special preventive measures are taken. Under EPA's July 1991 
Ground Water Protection Strategy, States are encouraged to develop 
Comprehensive State Ground Water Protection Programs (CSGWPP). Efforts 
to control storm water should be compatible with State/Tribal ground 
water objectives as reflected in CSGWPPs.
    The evaluation of whether the pollutant loadings and the hydrologic 
conditions (the volume of discharge) of flows exceed predevelopment 
levels can be based on hydrologic models which consider conditions such 
as the natural vegetation which is typical for the area.
    Increased discharge velocities can greatly accelerate erosion near 
the outlet of onsite structural measures. To mitigate these effects, 
these permits would require that velocity dissipation devices be placed 
at discharge locations and along the length of any outfall channel as 
necessary to provide a non-erosive velocity flow from the structure to 
a water course. Velocity dissipation devices maintain and protect the 
natural physical and biological characteristics and functions of the 
watercourse, e.g., hydrologic conditions, such as the hydroperiod and 
hydrodynamics, that were present prior to the initiation of 
construction activities.
    v. Other Controls. Other controls to be addressed in storm water 
pollution

[[Page 29800]]

prevention plans for construction activities require that nonsolid 
materials, including building material wastes shall not be discharged 
at the site, except as authorized by a Section 404 permit.
    This proposed permit requires that offsite vehicle tracking of 
sediments and the generation of dust be minimized. For example, this 
may be accomplished by measures such as providing gravel or paving at 
access entrance and exit drives, parking areas, and unpaved roads on 
the site carrying significant amounts of traffic (e.g., more than 25 
vehicles per day); providing entrance wash racks or stations for 
trucks; and/or providing street sweeping.
    In addition, this permit requires that the plan shall ensure and 
demonstrate compliance with applicable State/Tribal and/or local 
sanitary sewer, septic system, and waste disposal regulations to the 
extent they apply to the permitted activity.17 The plan must 
also include a narrative description of practices to reduce pollutants 
from construction related materials which are stored onsite. Including 
an inventory of construction materials, storage practices, and spill 
prevention and response. The plan should include a description of 
pollutant sources from areas other than construction and a description 
of controls and measures which will be implemented in those areas.
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    \17\ In rural and suburban areas that are served by septic 
systems, malfunctioning septic systems can contribute pollutants to 
storm water discharges. Malfunctioning septic tanks may be a more 
significant surface runoff pollution problem than a ground water 
problem. This is because a malfunctioning septic system is less 
likely to cause ground water contamination where a bacterial mat in 
the soil retards the downward movement of wastewater. Surface 
malfunctions are caused by clogged or impermeable soils, or when 
stopped up or collapsed pipes force untreated wastewater to the 
surface. Surface malfunctions can vary in degree from occasional 
damp patches on the surface to constant pooling or runoff of 
wastewater. These discharges have high bacteria, nitrate, and 
nutrient levels and can contain a variety of household chemicals. 
This permit does not establish new criteria for septic systems, but 
rather addresses existing State or local criteria.
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    The plan must also include measures to protect listed endangered 
and threatened species and/or critical habitat (if applicable) 
including any terms or conditions that are imposed under the 
eligibility requirements of Part I.B.3.e and Addendum A of this permit 
to protect such species and/or critical habitat from storm water 
discharges or BMPs to control storm water runoff. Failure to include 
these measures will result in the storm water discharges from the 
construction activities being ineligible for coverage under this 
permit.
    The plan must also include measures to protect properties that are 
listed or eligible for listing under the National Historic Register 
including any measures agreed to through written agreements with the 
SHPO or THPO. Failure to include these measures will result in the 
storm water discharges from the construction activities being 
ineligible for coverage under this permit.
    vi. State/Tribal and Local Controls. Many municipalities, States 
and Tribes have developed sediment and erosion control requirements for 
construction activities. A significant number of municipalities and 
States/Tribes have also developed storm water management controls. This 
general permit requires that storm water pollution prevention plans for 
facilities that discharge storm water associated with industrial 
activity from construction activities include procedures and 
requirements of State/Tribal and local sediment and erosion control 
plans or storm water management plans. Permittees are required to 
provide a certification that their storm water pollution prevention 
plan reflects requirements related to protecting water resources that 
are specified in State/Tribal or local sediment and erosion plans or 
storm water management plans.18 In addition, permittees are 
required to amend their storm water pollution prevention plans to 
reflect any change in a sediment and erosion site plan or site permit 
or storm water management site plan or site permit approved by State/
Tribal or local officials for which the permittee receives written 
notice. Where such amendments are made, the permittee must provide a 
recertification that the storm water pollution prevention plan has been 
modified. This provision does not apply to provisions of master plans, 
comprehensive plans, nonenforceable guidelines, or technical guidance 
documents, but rather to site-specific State/Tribal or local permits or 
plans.
---------------------------------------------------------------------------

    \18\ Operators of storm water discharges from construction 
activities which, based on an evaluation of site specific 
conditions, believe that State/Tribal and local plans do not 
adequately represent BAT and BCT requirements for the facility may 
request to be excluded from the coverage of the general permit by 
submitting to the Director an individual application with a detailed 
explanation of the reasons supporting the request, including any 
supporting documentation showing that certain permit conditions are 
not appropriate.
---------------------------------------------------------------------------

    c. Maintenance: Erosion and sediment controls can become 
ineffective if they are damaged or not properly maintained. Maintenance 
of controls has been identified as a major part of effective erosion 
and sediment programs. Plans must contain a description of prompt and 
timely maintenance and repair procedures addressing all erosion and 
sediment control measures (e.g., sediment basins, traps, silt fences), 
vegetation, and other measures identified in the site plan to ensure 
that such measures are kept in good and effective operating condition.
    d. Inspections: Procedures in a plan must provide that specified 
areas on the site are inspected by qualified personnel provided by the 
discharger a minimum of once every fourteen calendar days, before 
anticipated storm events (or series of storm events such as 
intermittent showers over one or more days) expected to cause a 
significant amount of runoff and within 24 hours after any storm event 
of greater than 0.5 inches. Areas of the site that must be observed 
during such inspections include disturbed areas, areas used for storage 
of materials that are exposed to precipitation, structural control 
measures, and locations where vehicles enter or exit the site. Where 
sites have been temporarily or finally stabilized, or during seasonal 
arid periods in arid areas (areas with an average annual rainfall of 0 
to 10 inches) and semi-arid areas (with an average annual rainfall of 
10 to 20 inches) the inspection must be conducted at least once every 
month.
    Disturbed areas and areas used for storage of materials that are 
exposed to precipitation must be inspected for evidence of, or the 
potential for, pollutants entering the runoff from the site. Erosion 
and sediment control measures identified in the plan must be observed 
to ensure that they are operating correctly. Observations can be made 
during wet or dry weather conditions. Where discharge locations or 
points are accessible, they must be inspected to ascertain whether 
erosion control measures are effective in preventing significant 
impacts to receiving waters. This can be done by inspecting receiving 
waters to see whether any signs of erosion or sediment are associated 
with the discharge location. Locations where vehicles enter or exit the 
site must be inspected for evidence of offsite sediment tracking.
    Based on the results of the inspection, the site description and 
the pollution prevention measures identified in the plan must be 
revised as soon as possible after an inspection that reveals 
inadequacies. The inspection and plan review process must provide for 
timely implementation of any changes to the plan within seven calendar 
days following the inspection.
    An inspection report that summarizes the scope of the inspection, 
name(s) and qualifications of personnel conducting

[[Page 29801]]

the inspection, the dates of the inspection, major observations 
relating to the implementation of the storm water pollution prevention 
plan, and actions taken must be retained as part of the storm water 
pollution prevention plan for at least three years after the date that 
the site is finally stabilized. The report shall identify incidents of 
non-compliance. When the report does not contain an incident of non-
compliance, the report shall contain a certification that the facility 
is in compliance with the pollution prevention plan and this permit. 
The report must be signed in accordance with the signatory requirements 
in the Standard Conditions section of this permit.
    Diligent inspections are necessary to ensure adequate 
implementation of onsite sediment and erosion controls, particularly in 
the later stages of construction when the volume of runoff is greatest 
and the storage capacity of the sediment basins has been 
reduced.19
---------------------------------------------------------------------------

    \19\ ``Performance of Current Sediment Control Measures at 
Maryland Construction Sites,'' January 1990, Metropolitan Washington 
Council of Governments.
---------------------------------------------------------------------------

    e. Non-Storm Water Discharges: The plan must identify and ensure 
the implementation of appropriate pollution prevention measures for 
each of the non-storm water component(s) of the discharge.20 
Such discharges include discharges from firefighting activities, fire 
hydrant flushings, waters used to wash vehicles or control dust in 
accordance with efforts to minimize offsite sediment tracking, potable 
water sources including waterline flushings, irrigation drainage from 
watering vegetation, routine exterior building wash down that does not 
use detergents, pavement washwaters where spills or leaks of toxic or 
hazardous materials have not occurred (unless all spilled material has 
been removed) and where detergents are not used, air conditioning 
condensate, springs, uncontaminated ground water (including dewatering 
ground water infiltration), and foundation or footing drains where 
flows are not contaminated with process materials such as solvents, 
provided the non-storm water component of the discharge is specifically 
identified in the pollution prevention plan.
---------------------------------------------------------------------------

    \20\ This is consistent with the allowable types of non-storm 
water discharges to municipal separate storm sewer systems (40 CFR 
122.26(d)(2)(iv)(A)). These discharges are still subject to NPDES 
requirements.
---------------------------------------------------------------------------

    EPA believes that where these classes of non-storm water discharges 
are identified in a pollution prevention plan and where appropriate 
pollution prevention measures are evaluated, identified, and 
implemented, they generally pose low risks to the environment. The 
Agency also notes that it can request individual permit applications 
for such discharges where appropriate. The Agency is not requiring that 
flows from fire-fighting activities be identified in plans because of 
the emergency nature of such discharges coupled with their low 
probability and the unpredictability of their occurrence.
6. Additional Requirements
    These proposed permits would authorize a storm water discharge 
associated with industrial activity from a construction site that is 
mixed with a storm water discharge from an industrial source other than 
construction, only under the following conditions:
     The industrial source other than construction is located 
on the same site as the construction activity; and
     Storm water discharges from where the construction 
activities are occurring are in compliance with the terms of this 
permit.
7. Contractors/Subcontractors
    The storm water pollution prevention plan must clearly identify for 
each measure identified in the plan, the contractor(s) and/or 
subcontractor(s) that will implement the measure. All contractors and 
subcontractors identified in the plan must sign a copy of the 
certification statement contained in the proposed permit (Part IV.F) 
before conducting any professional service at the site identified in 
the pollution prevention plan:
    All certifications must be included in the storm water pollution 
prevention plan. The certification must also include the name and title 
of the person providing the signature, the name address and telephone 
number of the contracting firm; the name and address of the site; and 
the date of certification.
    The permittee must insure that contractors and subcontractors who 
do not meet the definition of ``operator,'' but will be conducting 
activities which may impact the effectiveness of any control measure 
identified in the plan sign a certification statement before conducting 
any professional service on site. The certification must include the 
name and title of the person providing the signature; the name, address 
and telephone number of the contracting firm; the address identifying 
the site, and the date the certification is made.

H. Retention of Records

    The permittee is required to retain records or copies of all 
reports required by this permit, including storm water pollution 
prevention plans and records of all data used to complete the NOI to be 
covered by the permit, for a period of at least three years from the 
date of final stabilization. This period may be extended by request of 
the Director.
    The permittee shall retain a copy of the storm water pollution 
prevention plan required by the permit at the construction site from 
the date of project initiation to the date of final stabilization. All 
permittees with day to day operational control of the plan's 
implementation shall have a copy of the plan available for their use 
when they are on the construction site. The copy of the plan may be a 
single plan kept at a central location for all of the operators on 
site. Where no location is available at the construction site to store 
the plan when no personnel are on site, notice of the location of the 
plan must be posted at the construction site. A copy of the plan must 
be readily available to inspectors during normal business hours.

I. Notice of Termination Requirements

    A discharger must submit a Notice of Termination (NOT) to EPA in 
two sets of circumstances: after a site has undergone final 
stabilization and the facility no longer discharges storm water 
associated with industrial activity from a construction site or when 
the permittee has transferred operational control to another permittee 
and is no longer an operator for the site. A permittee cannot submit an 
NOT without final stabilization unless another party has agreed to 
assume responsibility for final stabilization of the site. NOTs must be 
submitted using the form provided by the Director (or a photocopy 
thereof). A copy of the NOT form is in Addendum C and can be 
photocopied for use. NOTs will assist EPA in tracking the status of the 
discharger.
    Today's proposed permits would define final stabilization for the 
purpose of submitting an NOT as occurring when all soil disturbing 
activities are completed and a uniform perennial vegetative cover with 
a density of 70 percent for the unpaved areas and areas not covered by 
permanent structures has been established or equivalent stabilization 
measures have been employed. Equivalent stabilization measures include 
permanent measures other than establishing vegetation, such as the use 
of rip-rap, gabions, and/or geotextiles. In some parts of the country, 
background native vegetation will cover less than 100% of the ground 
(e.g. arid areas). Establishing at least 70% of the natural cover of 
native vegetation meets the vegetative cover criteria for final

[[Page 29802]]

stabilization. For example, if the native vegetation covers 50% of the 
ground, 70% of 50% would require 35% total cover for final 
stabilization.
    A copy of the NOT, and instructions for completing the NOT, are 
provided in Addendum C of today's notice. The NOT form requires the 
following information:
     The street (description of location if not street address 
is available) address of the construction site for which the 
notification is submitted;
     The name, address, and telephone number of the permittee 
submitting the NOT.
     The NPDES permit for the storm water discharge identified 
by the NOT.
     An indication of whether the storm water discharges 
associated with construction activity have been eliminated or the 
operator of the discharge has changed;
     For changes in operators, the name, address, and phone 
number of the new operator; and
     The following certification: ``I certify under penalty of 
law that either (a) all storm water discharges associated with 
construction activity from the portion of the identified facility where 
I was an operator have ceased or have been eliminated or (b) I am no 
longer an operator at the construction site and a new operator has 
assumed operational control for those portions of the construction site 
where I previously had operational control. I understand that by 
submitting this notice of termination, I am no longer authorized to 
discharge storm water associated with construction activity under this 
general permit, and that discharging pollutants in storm water 
associated with construction activity to waters of the United States is 
unlawful under the Clean Water Act where the discharge is not 
authorized by a NPDES permit. I also understand that the submittal of 
this notice of termination does not release an operator from liability 
for any violations of this permit form the Clean Water Act.''
    Notices of Termination are to be sent to the address specified on 
the form.
    The NOT must be signed by the appropriate individual in accordance 
with the signatory requirements of the permit. A description of these 
signatory requirements is provided in the instructions accompanying the 
NOT, and this permit.
    Submittal of a NOT, by itself, does not relieve permittees from the 
obligations of the permit, such as the requirement to stabilize the 
site. Appropriate enforcement actions may still be taken for permit 
violations where a permittee submits a NOT but the permittee has not 
transferred operational control to another permittee or the site has 
not undergone final stabilization.

J. Regional Offices

    For questions or further information regarding this proposed 
permit, please contact the EPA Storm Water Coordinator at the locations 
below. Other submittals of information required under these permits or 
individual permit applications or other written correspondence 
concerning discharges in any State, Indian land, or from any Federal 
Facility covered, should also be sent to the appropriate EPA Regional 
Office listed below:

CT, MA, ME, NH, RI, VT
    United States EPA, Region I, Office of Ecosystem Protection, John 
F. Kennedy Federal Building, CMU, Boston, MA 02203, Storm water 
coordinator--Thelma Hamilton (617) 565-3569, or Beverly Guertin (617) 
565-3600
NJ, NY, PR, VI
    United States EPA, Region II, Division of Environmental Planning 
and Protection, (2DEPP-WPB), Water Programs Branch, 290 Broadway, New 
York, NY 10007-1866, Storm Water Coordinator--Sergio Bosques (212) 637-
3717, or Jose Rivera (809) 729-6951
DE, DC, MD, PA, VA, WV
    United States EPA, Region III, Water Protection Division, (3WP13), 
Storm Water Staff, 841 Chestnut Building, Philadelphia, PA 19107, Storm 
Water Coordinator--Elaine Harbold (215) 566-5744
AR, LA, NM (except see Region IX for Navajo lands and see Region VIII 
for Ute Mountain Ute Reservation land), OK, TX
    United States EPA, Region VI, Storm Water Staff, Enforcement and 
Compliance Assurance Division (GEN-WC), EPA SW Construction GP, P.O. 
Box 50625, Dallas, TX 75205, Storm Water Coordinator--Brent Larsen 
(214) 665-7523
IA, KS, MO, NE
    United States EPA, Region VII, Water, Wetlands, and Pesticides 
Division, NPDES and Facilities Management Branch, Storm Water Staff, 
726 Minnesota Avenue, Kansas City, KS 66101, Storm Water Coordinator--
Ralph Summers (913) 551-7418
CO, MT, ND, SD, WY, UT (except see Region IX for Goshute Reservation 
and Navajo Reservation lands)
    United States EPA, Region VIII, Office of Ecosystems Protection and 
Remediation (8EPR-EP), Storm Water Staff, 999 18th Street, Denver, CO 
80202-2466, Storm Water Coordinator--Vern Berry (303) 312-6234

    Note--For Montana Indian Lands, please use the following 
address:

    United States EPA, Region VIII, Montana Operations Office, Federal 
Office Building, Drawer 10096, 301 South Park, Helena, MT 59626-0096, 
Storm Water Coordinator--Vern Berry (303) 312-6234
AZ, CA, HI, NV, American Samoa, Guam, Commonwealth of the Northern 
Mariana Islands, the Goshute Reservation in UT and NV, the Navajo 
Reservation in UT, NM, and AZ, the Duck Valley Reservation in ID, Fort 
McDermitt Reservation in OR, Johnston Atoll, Midway and Wake Island
    United States EPA, Region IX, Water Management Division, (WTR-5), 
Storm Water Staff, 75 Hawthorne Street, San Francisco, CA 94105, Storm 
Water Coordinator--Eugene Bromley (415) 744-1906,
AK, ID (except see Region IX for Duck Valley Reservation lands), OR, WA
    United States EPA, Region X, Office of Water OW-130, Storm Water 
Staff, 1200 6th Avenue, Seattle, WA 90101, Storm Water Coordinator--Joe 
Wallace (206) 553-8399.

Part V--Cost Estimates

    The two major costs associated with pollution prevention plans for 
construction activities include the costs of sediment and erosion 
controls (see Table 1) and the costs of storm water management measures 
(see Table 2). Today's permits would provide flexibility in developing 
controls for construction activities. Typically, most construction 
sites will employ several types of sediment and erosion controls and 
storm water management controls, but not all the controls listed in 
Tables 1 and 2. In general, sites that disturb a large area will incur 
higher pollution prevention costs.

              Table 1.--Sediment and Erosion Control Costs              
------------------------------------------------------------------------
                                                                        
------------------------------------------------------------------------
Temporary seeding.........................  $1.00 per square foot.      
Permanent seeding.........................  $1.00 per square foot.      
Mulching..................................  $1.25 per square foot.      
Sod stabilization.........................  $4.00 per square foot.      
Vegetative buffer strips..................  $1.00 per square foot.      
Protection of trees.......................  $30.00 to $200.00 per tree  
                                             set.                       
Earth dikes...............................  $5.50 per linear foot.      
Silt fences...............................  $6.00 per linear foot.      
Ddrainage swales-grass....................  $3.00 per square yard.      
Drainage swales-sod.......................  $4.00 per square yard.      
Ddrainage swales-riprap...................  $45.00 per square yard.     

[[Page 29803]]

                                                                        
Drainage swales-asphalt...................  $35.00 per square yard.     
Drainage swales-concrete..................  $65.00 per square yard.     
Check dams-rock...........................  $100 per dam.               
Check dams-covered straw bales............  $50 per dam.                
Level spreader-earthen....................  $4.00 per square yard.      
Level spreader-concrete...................  $65.00 per square yard.     
Subsurface drain..........................  $2.25 per linear foot.      
Pipe slope drain..........................  $5.00 per linear foot.      
Temporary storm drain diversion...........  Variable.                   
Storm drain inlet protection..............  $300 per inlet.             
Rock outlet protection....................  $45 per square yard.        
Sediment traps............................  $500 to $7,000 per trap.    
Temporary sediment basins.................  $5,000 to $50,000 per basin.
Sump pit..................................  $500 to $7,000.             
Entrance stabilization....................  $1,500 to $5,000 per        
                                             entrance.                  
Entrance wash rack........................  $2,000 per rack.            
Temporary waterway crossing...............  $500 to $1,500.             
Wind breaks...............................  $2.50 per linear foot.      
------------------------------------------------------------------------
Practices such as sod stabilization and tree protection increase        
  property values and satisfy consumer aesthetic needs.                 
Sources: ``Means Site Work Cost Data,'' 9th edition, 1990, R.S. Means   
  Company. ``Sediment and Erosion Control, An Inventory of Current      
  Practices,'' prepared by Kamber Engineering for U.S. EPA, April 1990. 


Table 2.--Annualized Costs of Several Storm Water Management Options for
                           Construction Sites                           
------------------------------------------------------------------------
                                                  Annualized  Annualized
                                                  cost for 9-  cost for 
                                                     acre       20-acre 
                                                   developed   developed
                                                     area        area   
------------------------------------------------------------------------
Wet Ponds.......................................     $5,872      $9,820 
Dry Ponds.......................................      3,240       5,907 
Dry Ponds with Extended Detention...............      3,110       5,413 
Infiltration Trenches...........................      4,134       6,359 
------------------------------------------------------------------------
Estimates based on methodology presented in ``Cost of Urban Runoff      
  Quality Controls,'' Wiegand, C., Schueler, T., Chittenden, W., and    
  Jellick, D., Urban Runoff Quality-Impact and Quality Enhancement      
  Technology, Proceedings of an Engineering Foundation Conference, ASCE,
  1986, edited by B. Urbonas and L.A. Roesner.                          
Costs are presented in 1992 dollars. Annualized costs are based on a 10 
  year period and 10 percent discount rate. Estimates include a         
  contingency cost of 25 percent of the construction cost and operation 
  and maintenance costs of 5 percent of the construction cost. Land     
  costs are not included.                                               

Part VI--Economic Impact (Executive Order 12866)

    Under Executive Order 12866, [58 FR 51735 (October 4, 1993)] the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs or the rights and obligations of 
recipients thereof; or raise novel legal or policy issues arising out 
of legal mandates, the President's priorities, or the principles set 
forth in the Executive Order.
    EPA has determined that this re-issued general permit is not a 
``significant regulatory action'' under the terms of Executive Order 
12866 and is therefore not subject to formal OMB review prior to 
proposal.

Part VII--Unfunded Mandates Reform Act

    Section 201 of the Unfunded Mandates Reform Act (UMRA), Public Law 
104-4, generally requires Federal agencies to assess the effects of 
their ``regulatory actions'' on State, local, and tribal governments 
and the private sector. UMRA uses the term ``regulatory actions'' to 
refer to regulations. (See, e.g., UMRA section 201, ``Each agency shall 
* * * assess the effects of Federal regulatory actions * * * (other 
than to the extent that such regulations incorporate requirements 
specifically set forth in law)'' (emphasis added)). UMRA section 102 
defines ``regulation'' by reference to section 658 of Title 2 of the 
U.S. Code, which in turn defines ``regulation'' and ``rule'' by 
reference to section 601(2) of the Regulatory Flexibility Act (RFA). 
That section of the RFA defines ``rule'' as ``any rule for which the 
agency publishes a notice of proposed rulemaking pursuant to section 
553(b) of [the Administrative Procedure Act (APA)], or any other law * 
* *''.
    As discussed in the RFA section of this notice, NPDES general 
permits are not ``rules'' under the APA and thus not subject to the APA 
requirement to publish a notice of proposed rulemaking. NPDES general 
permits are also not subject to such a requirement under the CWA. While 
EPA publishes a notice to solicit public comment on draft general 
permits, it does so pursuant to the CWA section 402(a) requirement to 
provide ``an opportunity for a hearing.'' Thus, NPDES general permits 
are not ``rules'' for RFA or UMRA purposes.
    Nevertheless, EPA has considered the draft general permit in light 
of UMRA's requirements. As noted elsewhere in today's notice, the draft 
general permit is virtually the same as the NPDES general permits for 
construction that many construction operators have used over the past 
five years. EPA has determined that the draft permit would not contain 
a Federal requirement that may result in expenditures of $100 million 
or more for State, local and tribal governments, in the aggregate, or 
the private sector in any one year.
    The Agency also believes that the draft general permit would not 
significantly nor uniquely affect small governments. For UMRA purposes, 
``small governments'' is defined by reference to the definition of 
``small governmental jurisdiction'' under the RFA. (See UMRA section 
102(1), referencing 2 U.S.C. section 658, which references section 
601(5) of the RFA.) ``Small governmental jurisdiction'' means 
governments of cities, counties, towns, etc., with a population of less 
than 50,000, unless the agency establishes an alternative definition.
    Under existing regulations, a permit application is not required 
until August 7, 2001, for a storm water discharge associated with 
construction activity where the construction site is owned or operated 
by a municipality with a population of less than 100,000. 40 CFR 
122.26(e)(1)(ii)&(g). In any event, the requirements of the draft 
general permit would not significantly affect small governments because 
most State laws already provide for the control of sedimentation and 
erosion in a similar manner as today's proposed general permit. The 
draft permit's requirements also would not uniquely affect small 
governments because compliance with the proposed permit conditions 
affects small governments in the same manner as any other entities 
seeking coverage under the permit.

Part VIII--Paperwork Reduction Act

    EPA has reviewed the requirements imposed on regulated facilities 
in this proposed general permit under the Paperwork Reduction Act of 
1980, 44 U.S.C. 3501 et seq. In a separate Federal Register notice, EPA 
is proposing a

[[Page 29804]]

revision to the current Information Collection Request (ICR) document 
for today's permit (Approved by the Office of Management and Budget 
(OMB) OMB No. 2040-0086, expiration date of August 31, 1998) to account 
for the increased information requirements proposed in the new Notice 
of Intent (NOI) for the construction general permit. EPA will publish 
the proposed ICR revisions in a separate Federal Register notice EPA 
and will submit the revision to OMB for approval prior to issuance of 
the final permit. EPA estimates a slight increase in the burden 
associated with filling out the Notice of Intent (NOI) form for 
coverage under this permit due to the added requirements under the 
Endangered Species Act and the National Historic Preservation Act. EPA 
also anticipates a small increase in the time due to the requirement to 
submit a notice of termination (NOT) upon completion of construction 
activities.

Part IX--Section 401 and Coastal Zone Management Act Certifications

    Section 401 of the CWA provides that no Federal license or permit, 
including NPDES permits, to conduct any activity that may result in any 
discharge into navigable waters shall be granted until the State/Tribal 
in which the discharge originates certifies that the discharge will 
comply with the applicable provisions of sections 301, 302, 303, 306, 
and 307 of the CWA. The section 401 certification process has been 
initiated for all States, Indian lands and Federal facilities covered 
by today's general permits. Any additional State/Tribal permit 
conditions will be contained in the final permit.
    The Coastal Zone Management Act (CZMA) requires that all Federal 
licensing and permitting actions be reviewed for consistency with each 
approved State coastal zone management plan. EPA has also initiated 
this review.

Part X--Regulatory Flexibility Act

    Section 603(a) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 
603(a), provides that ``[w]henever an agency is required by section 553 
[of the Administrative Procedures Act (APA)], or any other law, to 
publish general notice of proposed rulemaking for any proposed rule,'' 
the agency must conduct an initial regulatory flexibility analysis for 
the proposed rule. Section 605(b) of the RFA provides an exemption from 
this requirement for a proposed rule that the agency head certifies 
``will not, if promulgated, have a significant economic impact on a 
substantial number of small entities.''
    The Agency takes the position that NPDES general permits are not 
subject to rulemaking requirements under APA section 553 or any other 
law. The requirements of APA section 553 apply only to the issuance of 
``rules,'' which the APA defines in a manner that excludes permits. See 
APA section 551 (4), (6) and (8). The CWA also does not require 
publication of a general notice of proposed rulemaking for general 
permits. EPA issues draft NPDES general permits for public comment in 
the Federal Register in order to meet the applicable CWA procedural 
requirement to provide ``an opportunity for a hearing.'' See CWA 
section 402(a), 33 U.S.C. 1342(a).
    Nevertheless, the Agency has considered and addressed the potential 
impact of the draft general permit on small entities in a manner that 
meets the requirements of the RFA. EPA took such action based on the 
likelihood that a large number of small entities may seek coverage 
under the general permit if finalized as proposed. Specifically, EPA 
has analyzed the potential impact of the draft general permit on small 
entities and determined that the permit will not have a significant 
economic impact on a substantial number of small entities. Like the 
existing general permit it will replace, the draft general permit would 
make available to many small entities, particularly operators of 
construction sites, a streamlined process for obtaining authorization 
to discharge. Of the possible permitting mechanisms available to 
dischargers subject to the CWA, NPDES general permits are designed to 
reduce the reporting and monitoring burden associated with NPDES permit 
authorization, especially for small entities with discharges having 
comparatively less potential for environmental degradation than 
discharges regulated under individual NPDES permits. Thus, general 
permits like the existing and draft permit at issue here provide small 
entities with a permitting application option that is much less 
burdensome than NPDES individual permit applications.
    Beyond that, the draft general permit is virtually identical to the 
existing general permit for construction that under which many 
construction operators have operated over the past five years. 
Moreover, there are other, new provisions of the proposed permit were 
designed to minimize burdens on small entities, including provisions in 
the proposal related to subcontractor obligations related to pollution 
prevention plans required by the permit. Under the prior general permit 
for construction site discharges, affected subcontractors expressed 
concern to EPA about the need to prepare their own pollution prevention 
plan to address discharges related to subcontractor activities at a 
construction site. The subcontractors perceived this obligation to be 
redundant, particularly if a general contractor had prepared a 
pollution prevention plan that addressed the activities of 
subcontractors. Today's proposed permit would address this by allowing 
subcontractors to certify that they have reviewed and comply with the 
pollution prevention plan prepared by the general contractor (where the 
general contractor's pollution prevention plan addresses activities of 
subcontractors). EPA believes this modification from the prior permit 
should reduce adverse economic impacts on subcontractors who, in many 
instances, are small entities. In view of the foregoing, the Regional 
Administrators find that the proposed general permit will not have a 
significant economic impact on a substantial number of small entities.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 22, 1997.
John DeVillars,
Regional Administrator, Region I.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 21, 1997.
Jeanne M. Fox,
Regional Administrator, Region 2.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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


[[Page 29805]]


    Dated: May 22, 1997.
Stanley L. Laskowski,
Acting Regional Administrator, Region III.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 21, 1997.
Myron O. Knudsen, P.E.,
Acting Regional Administrator, Region 6.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 21, 1997.
U. Gale Hutton,
Acting Regional Administrator, Region 7.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 20, 1997.
Patricia D. Hull,
Acting Regional Administrator, Region VIII.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 20, 1997.
Alexis Strauss,
Acting Regional Administrator, Region 9.

Part XI--Official Signatures

    Accordingly, I hereby certify pursuant to the provisions of the 
Regulatory Flexibility Act, that this proposed permit will not have a 
significant impact on a substantial number of small entities.

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

    Dated: May 20, 1997.
Jane S. Moore,
Acting Regional Administrator, Region X.

Storm Water General Permit for Construction Activities

Cover Page

Permit No. [See Part I.A.]

Authorization to Discharge Under the National Pollutant Discharge 
Elimination System

    In compliance with the provisions of the Clean Water Act, as 
amended, (33 U.S.C. 1251 et. seq. the Act), except as provided in Part 
I.B.3 of this permit, operators of storm water discharges from 
construction activities, located in an area specified in Part I.A., are 
authorized to discharge in accordance with the conditions and 
requirements set forth herein.
    Only those operators of storm water discharges from construction 
activities in the general permit area who submit a Notice of Intent in 
accordance with Part II of this permit are authorized under this 
general permit.
    This permit shall become effective on [insert the date of 
publication of the final permit in the Federal Register].
    This permit and the authorization to discharge shall expire at 
midnight, [insert the date five years after the date of publication of 
the final permit in the Federal Register].

Signed and issued this    day of       , 1997.

----------------------------------------------------------------------
(Signature of Water Management Director or Regional Administrator)

    This signature is for the permit conditions in Parts I through IX 
and for any additional conditions in Part X which apply to facilities 
located in the corresponding State, Reservation, or other area.

NPDES General Permits for Storm Water Discharges From Construction 
Activities

Table of Contents

Part I. Coverage Under this Permit
    A. Permit Area
    B. Eligibility
    C. Obtaining Authorization
    D. Terminating Coverage
Part II. Notice of Intent Requirements
    A. Deadlines for Notification
    B. Contents of Notice of Intent
    C. Where to Submit
Part III. Special Conditions, Management Practices, and Other Non-
Numeric Limitations
    A. Prohibition on Non-Storm Water Discharges
    B. Releases in Excess of Reportable Quantities
    C. Spills
    D. Discharge Compliance with Water Quality Standards
    E. Responsibilities of Operators
Part IV. Storm Water Pollution Prevention Plans
    A. Deadlines for Plan Preparation and Compliance
    B. Signature, Plan Review and Making Plans Available
    C. Keeping Plans Current
    D. Contents of Plan
    E. Contractor and Subcontractor Certifications
Part V. Retention of Records
    A. Documents
    B. Accessibility
    E. Addresses
Part VI. Standard Permit Conditions
    A. Duty to Comply
    B. Continuation of the Expired General Permit
    C. Need to Halt or Reduce Activity not a Defense
    D. Duty to Mitigate
    E. Duty to Provide Information.
    F. Other Information
    G. Signatory Requirements
    H. Penalties for Falsification of Reports
    I. Oil and Hazardous Substance Liability
    J. Property Rights
    K. Severability
    L. Requiring an Individual Permit or an Alternative General 
Permit
    M. State/Tribal Environmental Laws
    N. Proper Operation and Maintenance
    O. Inspection and Entry
    P. Permit Actions
Part VII. Reopener Clause
Part VIII. Termination of Coverage
    A. Notice of Termination
    B. Addresses
Part IX. Definitions
    Part X. State/Tribal Specific Conditions
Addenda
    A. Endangered Species Guidance
    B. Notice of Intent (NOI) Form
    C. Notice of Termination (NOT) Form

Part I. Coverage Under This Permit

A. Permit Area

    The permit language is structured as if it were a single permit, 
with area-specific conditions specified in Part XI. Permit coverage is 
actually provided by legally separate and distinctly numbered permits 
covering each of the following areas:
Region 1:
CTR10*#I: Indian Country Lands in the State of Connecticut
MAR10*###I: Commonwealth of Massachusetts, except Indian Country Lands
MAR10*##I: Indian Country Lands in the Commonwealth of Massachusetts
MER10*###I: State of Maine, except Indian Country Lands
MER10*##I: Indian Country Lands in the State of Maine
NHR10*###I: State of New Hampshire, except Indian Country Lands

[[Page 29806]]

NHR10*##I: Indian Country Lands in the State of New Hampshire
RIR10*##I: Indian Country Lands in the State of Rhode Island
VTR10*##I: Indian Country Lands in the State of Vermont
VTR10*##F: Federal Facilities in the State of Vermont
Region 2:
NYR10*##I: Indian Country Lands in the State of New York
PRR10*###I: The Commonwealth of Puerto Rico
Region 3:
DCR10*###I: The District of Columbia
DER10*##F: Federal Facilities in the State of Delaware
Region 4:
    Coverage Not Available. Construction activities in Region 4 must 
obtain permit coverage under an alternative permit.
Region 5:
    Coverage Not Available.
Region 6:
LAR10*##I: Indian Country Lands in the State of Louisiana
NMR10*###: The State of New Mexico, except Indian Country Lands
NMR10*##I: Indian Country Lands in the State of New Mexico, except 
Navajo Reservation lands (see Region 9) and Ute Mountain Ute 
Reservation lands (see Region 8)
OKR10*##I: Indian Country Lands in the State of Oklahoma
TXR10*###: The State of Texas, except Indian Country Lands
TXR10*##I: Indian Country Lands in the State of Texas
Region 7:
IAR10*##I: Indian Country Lands in the State of Iowa
KSR10*##I: Indian Country Lands in the State of Kansas
NER10*##I: Indian Country Lands in the State of Nebraska, except Pine 
Ridge Reservation lands (see Region 8)
Region 8:
COR10*##F: Federal Facilities in the State of Colorado
COR10*##I: Indian Country Lands in the State of Colorado, including the 
portion of the Ute Mountain Ute Reservation located in New Mexico
MTR10*##I: Indian Country Lands in the State of Montana
NDR10*##I: Indian Country Lands in the State of North Dakota, including 
that portion of the Standing Rock Reservation located in South Dakota 
(except for the Lake Traverse Reservation which is covered under the 
permit areas for South Dakota).
SDR10*##I: Indian Country Lands in the State of South Dakota, including 
the portion of the Pine Ridge Reservation located in Nebraska and the 
portion of the Lake Traverse Reservation located in North Dakota 
(except for the Standing Rock Reservation which is covered under the 
permit areas for North Dakota).
UTR10*##I: Indian Country Lands in the State of Utah, except Goshute 
and Navajo reservation lands (see Region 9)
WYR10*##I: Indian Country Lands in the State of Wyoming
Region 9:
ASR10*###: The Island of American Samoa
AZR10*###: The State of Arizona, except Indian Country Lands
AZR10*##I: Indian Country Lands in the State of Arizona, including 
Navajo Reservation lands in New Mexico and Utah
CAR10*##I: Indian Country Lands in the State of California
GUR10*###: The Island of Guam
JAR10*###: Johnston Atoll
MWR10*###: Midway Island and Wake Island
NIR10*###: Commonwealth of the Northern Mariana Islands
NVR10*##I: Indian Country Lands in the State of Nevada, including the 
Duck Valley Reservation in Idaho, the Fort McDermitt Reservation in 
Oregon and the Goshute Reservation in Utah
Region 10
    AKR10*###: The State of Alaska, except Indian Country Lands
    AKR10*##I: Indian Country Lands in Alaska
    IDR10*###: The State of Idaho, except Indian Country Lands
    IDR10*##I: Indian Country Lands in the State of Idaho, except Duck 
Valley Reservation lands (see Region 9)
ORR10*##I: Indian Country Lands in the State of Oregon except Fort 
McDermitt Reservation lands (see Region 9)
WAR10*##F: Federal Facilities in the State of Washington
WAR10*##I: Indian Country Lands in the State of Washington

B. Eligibility

    1. This permit authorizes discharges of storm water from 
construction activities as defined in 40 CFR 122.26(b)(14)(x) and those 
construction site discharges designated by the Director as needing a 
storm water permit under 122.26(a)(1)(v) or under 122.26(a)(9) and 
122.26(g)(1)(i), except for discharges identified under paragraph 
I.B.3. Any discharge authorized by a different NPDES permit may be 
commingled with discharges authorized by this permit.
    2. This permit also authorizes storm water discharges from support 
activities related to a construction site (e.g. concrete or asphalt 
batch plants, equipment staging yards, material storage areas, etc.) 
from which there otherwise is a storm water discharge from a 
construction activity provided:
    a. The support activity is not a commercial operation serving 
multiple unrelated construction projects, and does not operate beyond 
the completion of the construction activity; and
    b. Appropriate controls and measures are identified in the storm 
water pollution prevention plan for the discharges from the support 
activity areas.
3. Limitations on Coverage
    The following storm water discharges from construction sites are 
not authorized by this permit:
    a. Post Construction Discharges. Storm water discharges that 
originate from the site after construction activities have been 
completed and the site has undergone final stabilization.
    b. Discharges Mixed with Non-storm Water. Discharges that are mixed 
with sources of non-storm water other than discharges which are 
identified in Part III.A.2. of this permit and which are in compliance 
with Part IV.D.5 (non-storm water discharges) of this permit. Any 
discharge authorized by a different NPDES permit may be commingled with 
discharges authorized by this permit.
    c. Discharges Covered by Another Permit. Storm water discharges 
associated with construction activity that have been issued an 
individual permit or required to obtain coverage under an alternative 
general permit in accordance with paragraph VI.L;
    d. Discharges Threatening Water Quality. Storm water discharges 
from construction sites that the Director (EPA) determines will cause, 
or have the reasonable potential to cause, excursions above water 
quality standards. (Where such determinations have been made, the 
discharger will be notified by the Director that an individual permit 
application is necessary.);
    e. Discharges that are not Protective of Endangered and Threatened 
Species.
    (1) A discharge of storm water associated with construction 
activity is covered under this permit only if the applicant certifies 
that it meets at least one of the following criteria. Failure to

[[Page 29807]]

continue to meet one of these criteria during the term of the permit 
will result in the storm water discharges associated with construction 
being ineligible for coverage under this permit.
    (a) The storm water discharge(s), and the construction and 
implementation of Best Management Practices (BMPs) to control storm 
water runoff, are not likely to adversely affect species identified in 
Addendum A of this permit or critical habitat for a listed species; or
    (b) The applicant's activity has received previous authorization 
under section 7 or section 10 of the Endangered Species Act (ESA) and 
that authorization addressed storm water discharges and/or BMPS to 
control storm water runoff (e.g., developer included impact of entire 
project in consultation over a wetlands dredge and fill permit under 
Section 7 of the Endangered Species Act); or
    (c) The applicant's activity was considered as part of a larger, 
more comprehensive assessment of impacts on endangered and threatened 
species under section 7 or section 10 of the Endangered Species Act 
that which accounts for storm water discharges and BMPs to control 
storm water runoff (e.g., where an area-wide habitat conservation plan 
and section 10 permit is issued which addresses impacts from 
construction activities including those from storm water, or a National 
Environmental Policy Act (NEPA) review is conducted which incorporates 
ESA section 7 procedures); or
    (d) Consultation under section 7 of the Endangered Species Act is 
conducted for the applicant's activity which results in either a no 
jeopardy opinion or a written concurrence on a finding of no likelihood 
of adverse effects; or
    (e) The applicant's activity was considered as part of a larger, 
more comprehensive site-specific assessment of impacts on endangered 
and threatened species by the owner or other operator of the site and 
that permittee certified eligibility under item (a), (b), (c), or (d) 
above (e.g. owner was able to certify no adverse impacts for the 
project as a whole under item (a), so the contractor can then certify 
under item (e)). Utility companies applying for permit coverage for the 
entire permit area of coverage as defined under Part I.A. may certify 
under item (e) since authorization to discharge is contingent on a 
principal operator of a construction project having been granted 
coverage under this, or an alternative NPDES permit for the areas of 
the site where utilities installation activities will occur.
    (2) All applicants must follow the procedures provided at Addendum 
A of this permit when applying for permit coverage.
    (3) The applicant must comply with any terms and conditions imposed 
under the eligibility requirements of paragraphs (1)(a), (b), (c), (d), 
or (e) above to ensure that storm water discharges or BMPs to control 
storm water runoff are protective of listed endangered and threatened 
species and/or critical habitat. Such terms and conditions must be 
incorporated in the applicant's storm water pollution prevention plan.
    (4) For the purposes of conducting consultation to meet the 
eligibility requirements of paragraph (1)(d) above, applicants are 
designated as non-Federal representatives. See 50 CFR 402.08. However, 
applicants who choose to conduct consultation as a non-Federal 
representative must notify EPA and the appropriate Service office in 
writing of that decision.
    (5) This permit does not authorize any ``take'' (as defined under 
section 9 of the Endangered Species Act) of endangered or threatened 
species unless such takes are authorized under sections 7 or 10 the 
Endangered Species Act.
    (6) This permit does not authorize any storm water discharges nor 
require any BMPs to control storm water runoff that are likely to 
jeopardize the continued existence of any species that are listed as 
endangered or threatened under the Endangered Species Act or result in 
the adverse modification or destruction of habitat that is designated 
as critical under the Endangered Species Act.
    f. Discharges Adversely Affecting Properties Eligible for 
Protection Under the National Historic Preservation Act.
    (1) To be eligible for coverage under this permit, all applicants 
must determine whether their storm water discharges or BMPs to control 
storm water runoff would affect a property that is listed or is 
eligible for listing in the National Historic Register maintained by 
the Secretary of Interior (also known as ``historic properties'' in the 
NHPA regulations at 36 CFR 800.2). Applicants must comply with all 
requirements in this permit (including those pertaining to the 
development of storm water pollution prevention plans and submission of 
NOIs) to protect historic properties. Coverage under this permit is 
available only if:
    (a) The storm water discharges or BMPs to control storm water run 
off do not affect a property that is listed or is eligible for listing 
in the National Historic Register maintained be the Secretary of 
Interior; or,
    (b) The applicant consults with the State Historic Preservation 
Officer (SHPO) or the Tribal Historic Preservation Officer (THPO) on 
the potential for adverse effects which results in a no effect finding; 
or
    (c) The applicant has obtained and is in compliance with a written 
agreement between the applicant and the SHPO/THPO that outlines all 
measures to be undertaken by the applicant to mitigate or prevent 
adverse effects to the historic property; or
    (d) The applicant agrees to implement and comply with the terms of 
a written agreement between another owner/operator (e.g., subdivision 
developer, property owner, etc.) and the SHPO/THPO that outlines all 
measures to be undertaken by operators on the site to mitigate or 
prevent adverse effects to the historic property; or
    (e) The applicant's activity was considered as part of a larger, 
more comprehensive site-specific assessment of effects on historic 
properties by the owner or other operator of the site and that 
permittee certified eligibility under items (a), (b), (c), or (d) 
above. Utility companies applying for permit coverage for the entire 
construction site may certify under item (d) since authorization to 
discharge is contingent on a principal operator of a construction 
project having been granted coverage under this, or an alternative 
NPDES permit for the areas of the site where utilities installation 
activities will occur.
    (2) This permit does not authorize any storm water discharges or 
BMPs to control storm water runoff which are not in compliance with any 
applicable State or local historic preservation laws.

C. Obtaining Authorization

    1. In order for storm water discharges from construction activities 
to be authorized to discharge under this general permit, a discharger 
must:
    (a) First develop a Pollution Prevention Plan (covering either the 
entire site or all portions of the site for which they are operators--
see definition in Part IX) according to the requirements in Part IV 
(preparation and implementation of the Plan may be a cooperative effort 
where there is more than one operator at a site), and then
    (b) Submit a Notice of Intent (NOI) in accordance with the 
requirements of Part II, using an NOI form provided by the Director (or 
a photocopy thereof). The Pollution Prevention Plan must be implemented 
upon commencement of construction activities.
    2. For construction sites where the operator changes, or where a 
new operator is added after the submittal of

[[Page 29808]]

an NOI under Part II, a new NOI must be submitted in accordance with 
Part II.
    3. Unless notified by the Director to the contrary, dischargers who 
submit an NOI in accordance with the requirements of this permit are 
authorized to discharge storm water from construction activities under 
the terms and conditions of this permit two (2) days after the date 
that the NOI is postmarked. The Director may deny coverage under this 
permit and require submittal of an application for an individual NPDES 
permit based on a review of the NOI or other information (see Part VI.L 
of this permit).

D. Terminating Coverage

    1. Operators wishing to terminate coverage under this permit must 
submit a notice of termination (NOT) in accordance with Part VIII of 
this permit.
    2. All permittees must submit a NOT within thirty (30) days after 
completion of their construction activities and final stabilization of 
their portion of the site, or another operator taking over all of their 
responsibilities at the site. A permittee cannot submit an NOT without 
final stabilization unless another party has agreed to assume 
responsibility for final stabilization of the site. Appropriate 
enforcement actions may be taken for permit violations where a 
permittee submits a NOT but the permittee has not transferred 
operational control to another permittee or the site has not undergone 
final stabilization. Project-by-project NOTs are not required to be 
submitted by utility company operators for installation of utilities at 
construction sites if the utility company operator has been authorized 
to discharge in the full area of coverage for a given permit as defined 
in Part I.A. of this permit.

Part II. Notice of Intent Requirements

A. Deadlines for Notification

    1. Except as provided in Parts II.A.3, II.A.4, II.A.5, or II.A.6, 
parties with operational control over project specifications, (e.g., 
owner or developer), must submit an initial Notice of Intent (NOI) in 
accordance with the requirements of this Part at least two (2) days 
prior to the commencement of construction activities (i.e., the initial 
disturbance of soils associated with clearing, grading, excavation 
activities, or other construction activities);
    2. Except as provided in Parts II.A.3, II.A.4., or Part II.A.5, 
parties defined as operators solely due to their day-to-day operational 
control over those activities at a project site which are necessary to 
ensure compliance with the storm water pollution prevention plan or 
other permit conditions (e.g., general contractor, erosion control 
contractor, etc.) must submit an NOI at least two (2) days prior to 
commencing work at the site.
    3. For storm water discharges from construction sites where the 
operator changes, (including projects where an operator is added after 
an NOI has been submitted under Parts II.A.1 or II.A.2) an NOI in 
accordance with the requirements of this Part shall be submitted at 
least 2 days prior to when the new operator assumes operational control 
over site specifications or commences work at the site.
    4. Utility Companies (i.e., telephone, electric, gas, water, sewer, 
cable TV, etc. companies that provide service to the public) whose 
involvement in an individual construction project is limited to 
installation of underground or above-ground service lines and 
associated equipment to provide connections from a main transmission 
line to individual customers (e.g., homes, apartments, businesses, 
etc.) or a location where the site operator's utility subcontractor 
will tap in (e.g., public water utility installs a stub with a tap into 
the main trunk line and developer's utility contractors run the 
distribution lines), may file a single NOI to obtain coverage for all 
such activities in the permit areas defined in Part I.A. Permit 
coverage obtained in this manner is limited to the utility company's 
activities on sites where:
    a. An operator of the individual construction project has obtained 
permit coverage under this or an alternative general permit or under an 
individual permit;
    b. The pollution prevention plan for the site identifies control 
measures for utilities installation activities; and
    c. The party responsible for implementation of each control measure 
for utilities installation is clearly identified.
    Where a utility company is constructing a main transmission line, 
or other project for themselves, the utility company must obtain permit 
coverage on a site-by-site basis.

    Note: Utility contractors hired by a utility company or other 
site operator and not meeting the definition of ``operator'' are 
considered subcontractors and are covered by the subcontractor 
certification requirements of Part IV.F.

    5. Dischargers are not prohibited from submitting late NOIs. When a 
late NOI is submitted, authorization is only for future discharges. The 
Agency reserves the right to bring appropriate enforcement actions for 
any unpermitted activities that may have occurred between the time 
construction commenced and authorization of future discharges.
    6. Permittees with construction projects authorized to discharge 
under the previous general permit issued in 1992 and now replaced by 
this permit must:
    a. Submit a new NOI within thirty (30) days of the effective date 
of this permit in order to continue authorization to discharge after 
[insert date 30 days after effective date of permit]. If the permittee 
will be eligible to submit a Notice of Termination (NOT) (e.g., 
construction finished and final stabilization complete) before the 30th 
day, no NOI is required.
    b. During the time between the effective date of this permit and 
[insert date 30 days from the effective date of the permit], comply 
with the terms and conditions of the 1992 baseline general permit they 
were previously authorized under and submitted an NOI for extended 
coverage as described under the Administrative Procedures Act before 
termination of the 1992 baseline general permit.
    c. Update their current pollution prevention plan to comply with 
the requirements of Part IV no later than [insert date 30 days from the 
effective date of the permit].

B. Contents of Notice of Intent

1. Notice of Intent for Individual Construction Projects
    The Notice(s) of Intent shall be signed in accordance with Part 
VI.G of this permit and shall include the following information:
    a. The street address (description of location if no street address 
is available), county, and the latitude and longitude of the 
approximate center of the construction site/project for which the 
notification is submitted;
    b. The name, address, and telephone number of the operator(s) 
filing the NOI for permit coverage and operator status as a Federal, 
State, Tribal, private, or other public entity;
    c. Whether or not the construction project is located on Indian 
Lands;
    d. The name, address, and telephone number of the construction site 
owner and owner's status as a Federal, State, Tribal, private, or other 
public entity;
    e. The name of the receiving water(s), or if the discharge is 
through a municipal separate storm sewer, the name of the municipal 
operator of the storm sewer and the receiving water(s);
    f. The permit number of any NPDES permit(s) for any discharge(s) 
(including

[[Page 29809]]

any storm water discharges or any non-storm water discharges) from the 
site, to the extent available.
    g. An estimate of project start date and completion dates, 
estimates of the number of acres of the site on which soil will be 
disturbed, and
    h. A certification that a storm water pollution prevention plan, 
including both construction and post-construction controls, has been 
prepared for the site in accordance with Part IV of this permit, and 
such plan provides compliance with approved State/Tribal and/or local 
sediment and erosion plans or permits and/or storm water management 
plans or permits in accordance with Part IV.D.2.d of this permit. (A 
copy of the plans or permits should not be included with the NOI 
submission).
    i. Whether, based on the instruction in Addendum A, any species 
identified in Addendum A are in proximity to the storm water discharges 
covered by this permit or the BMPs to be used to comply with permit 
conditions.
    j. Under which section(s) of Part I.B.3.e.(1)(Endangered Species) 
and Part I.B.3.f. (Historical Preservation) the applicant is certifying 
eligibility.
    k. The following certifications shall be signed in accordance with 
Part VI.G.

    I certify under penalty of law that I have read and understand 
the Part I.B. eligibility requirements for coverage under the 
general permit for storm water discharges from construction 
activities, including those requirements relating to the protection 
of endangered species identified in Addendum A.
    I further certify that I have followed the procedures found in 
Addendum A to protect listed endangered and threatened species and 
designated critical habitat and that the discharges covered under 
this permit and BMPs to control storm water runoff meet one of the 
eligibility requirements of Part I.B.3.e.(1) of this permit. Check 
the box(es) corresponding to that part of Part I.B.3.e.(1) under 
which you claim compliance with the eligibility requirements of the 
permit--(a), (b), (c), (d), or (e).
    I further certify, to the best of my knowledge, that such 
discharges, and implementation of BMPs to control storm water 
runoff, do not have an effect on properties listed or eligible for 
listing on the National Register of Historic Places under the 
National Historic Preservation Act, or are otherwise eligible for 
coverage, in accordance with Part I.B.3.f. of the permit, due to a 
previous agreement under the National Historic Preservation Act.
    I understand that continued coverage under this storm water 
general permit is contingent upon maintaining eligibility as 
provided for in Part I.B.
2. Notice of Intent for Permit Issuance Area-wide Coverage of Utility 
Companies While Installing Utility Service
    The Notice(s) of Intent for utility companies filing for area-wide 
coverage in accordance with Part II.A.4. shall be signed in accordance 
with Part VI.G of this permit and shall include the following 
information:
    a. The name, address, and telephone number of the utility company 
filing the NOI for permit coverage and operator status as a Federal, 
State, Tribal, private, or other public entity;
    b. The State or other area for which coverage is being requested 
and whether or not any construction projects will be located on an 
Indian reservation;
    c. The name, address, and telephone number of the utility company's 
point of contact for the utility company's compliance with the area-
wide coverage granted by the permit;
    d. A certification that a storm water pollution prevention plan 
with standard operating procedures for the limited utility company 
construction activities related to installation of service connections 
has been prepared in accordance with Part IV of this permit, and such 
plan provides compliance with approved State/Tribal and/or local 
sediment and erosion plans or permits and/or storm water management 
plans or permits in accordance with Part IV.D.2.d of this permit. (A 
copy of the plans or permits should not be included with the NOI 
submission.)
    e. Under which sections of Part I.B.3.e.1. (Endangered Species) and 
Part I.B.3.f. (Historical Preservation) the applicant is certifying 
eligibility.
    f. The following certifications shall be signed in accordance with 
Part VI.G.

    I certify under penalty of law that I have read and understand 
the Part I.B. eligibility requirements for coverage under the 
general permit for storm water discharges from construction 
activities, including those requirements relating to the protection 
of endangered species identified Part I.B.3.e.
    I further certify that I understand that authorization to 
discharge is contingent on a principal operator of a construction 
project having been granted coverage under this, or an alternative 
NPDES permit for the areas of the site where utilities installation 
activities will occur and that a pollution prevention plan including 
appropriate control measures for activities related to installation 
of utility service has been prepared and will be implemented.
    I further certify that I have followed the procedures found in 
Addendum A to protect listed endangered and threatened species and 
designated critical habitat and that the discharges covered under 
this permit and BMPs to control storm water runoff meet one of the 
eligibility requirements of Part I.B.3.e.(1) of this permit. Check 
the boxe(s) corresponding to that part of Part I.B.3.e.(1) under 
which you claim compliance with the eligibility requirements of the 
permit-(a), (b), (c), (d), or (e).
    I further certify, to the best of my knowledge, that such 
discharges, and implementation of BMPs to control storm water 
runoff, do not have an effect on properties listed or eligible for 
listing on the National Register of Historic Places under the 
National Historic Preservation Act, or are otherwise eligible for 
coverage, in accordance with Part I.B.3.f. of the permit, due to a 
previous agreement under the National Historic Preservation Act.
    I understand that continued coverage under this storm water 
general permit is contingent upon maintaining eligibility as 
provided for in Part I.B.

C. Where to Submit

    1. NOIs, signed in accordance with Part VI.G of this permit, are to 
be submitted to the Director at the address: Storm Water Notice of 
Intent (4203), U.S. EPA 401 M Street, SW., Washington, DC 20460.
    2. A copy of the Director's acknowledgment of coverage under the 
general permit and assignment of a permit number; a local contact 
telephone number/address for public access to view the pollution 
prevention plan at reasonable times during regular business hours 
(advance notice by the public of the desire to view the plan may be 
required, not to exceed two working days). The permit does not require 
that free copies of the plan be provided to interested members of the 
public, only that they have reasonable access to view the document and 
copy it at their own expense. A brief description of the project shall 
also be posted at the construction site in a prominent and safe place 
for public viewing during regular business hours (alongside the 
building permit if the building permit is required to be displayed).

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

A. Prohibition on Non-Storm Water Discharges

    1. Except as provided in paragraph I.B.2 or 3 and III.A.2, all 
discharges covered by this permit shall be composed entirely of storm 
water.
    2. Discharges of material other than storm water that are in 
compliance with a NPDES permit (other than this permit) issued for that 
discharge may be mixed with discharges authorized by this permit.
    3. The following non-storm water discharges are authorized by this 
permit provided the non-storm water

[[Page 29810]]

component of the discharge is in compliance with paragraph IV.D.5: 
discharges from fire fighting activities; fire hydrant flushings; 
waters used to wash vehicles or control dust in accordance with Part 
IV.D.2.c.(2); potable water sources including waterline flushings; 
routine external building washdown which does not use detergents; 
pavement washwaters where spills or leaks of toxic or hazardous 
materials have not occurred (unless all spilled material has been 
removed) and where detergents are not used; air conditioning 
condensate; springs; uncontaminated ground water; and foundation or 
footing drains where flows are not contaminated with process materials 
such as solvents.

B. Releases in Excess of Reportable Quantities

    The discharge of hazardous substances or oil in the storm water 
discharge(s) from a facility shall be prevented or minimized in 
accordance with the applicable storm water pollution prevention plan 
for the facility. This permit does not relieve the permittee of the 
reporting requirements of 40 CFR 117 and 40 CFR 302. Where a release 
containing a hazardous substance in an amount equal to or in excess of 
a reporting quantity established under either 40 CFR 117 or 40 CFR 302, 
occurs during a 24 hour period:
    1. The permittee is required to notify the National Response Center 
(NRC) (800-424-8802; in the Washington, DC metropolitan area 202-426-
2675) in accordance with the requirements of 40 CFR 117 and 40 CFR 302 
as soon as he or she has knowledge of the discharge;
    2. The permittee shall submit within 14 calendar days of knowledge 
of the release a written description of: the release (including the 
type and estimate of the amount of material released), the date that 
such release occurred, the circumstances leading to the release, and 
steps to be taken to minimize the chance of future occurrences to the 
appropriate EPA Regional Office at the address provided in Part V.C 
(addresses) of this permit; and
    3. The storm water pollution prevention plan required under Part IV 
of this permit must be modified within 14 calendar days of knowledge of 
the release to: provide a description of the release, the circumstances 
leading to the release, and the date of the release. In addition, the 
plan must be reviewed to identify measures to prevent the reoccurrence 
of such releases and to respond to such releases, and the plan must be 
modified where appropriate.

C. Spills

    This permit does not authorize the discharge of hazardous 
substances or oil resulting from an on-site spill.

D. Discharge Compliance With Water Quality Standards

    Dischargers seeking coverage under this permit shall not be causing 
or have the reasonable potential to cause or contribute to a violation 
of a water quality standard. Where a discharge is already authorized 
under this permit and is later determined to cause or have the 
reasonable potential to cause or contribute to the violation of an 
applicable State, Tribal or Federal Water Quality Standard, the 
permitting authority will notify the operator of such violation(s) and 
the permittee shall take all necessary actions to ensure future 
discharges do not cause or contribute to the violation of a water 
quality standard and document these actions in the pollution prevention 
plan. If violations remain or re-occur, then coverage under this permit 
will be terminated by the permitting authority and an alternative 
permit may be issued. Compliance with this requirement does not 
preclude any enforcement activity as provided by the Clean Water Act 
for the underlying violation.

E. Responsibilities of Operators

    1. Developer/Owner Operator--The permittee(s) with operational 
control over project specifications (including the ability to make 
modifications in specifications) (e.g. developer or owner) must:
    a. Ensure the project specifications for the portion of the site 
for which they are operators meet the minimum requirements of Part IV 
(Pollution Prevention Plan Development) and all other applicable 
conditions;
    b. Ensure that the pollution prevention plan indicates which areas 
of the project they have operational control over and ensure that if 
modifications are made to the pollution prevention plan, where other 
operators are implementing portions of the plan, that these other 
operators be immediately notified of such modifications.
    c. Ensure that the pollution prevention plan for the portion of the 
site for which they are operators indicates the name and NPDES permit 
number for parties with day to day operational control of those 
activities necessary to ensure compliance with the storm water 
pollution prevention plan or other permit conditions. If these parties 
have not been identified at the time the pollution prevention plan is 
initially developed, the permittee with operational control over 
project specifications shall be considered to be the responsible party 
until such time as the authority is transferred to another party (e.g. 
general contractor hired) and the plan updated;
    d. Ensure that the pollution prevention plan complies with measures 
to identify and protect listed threatened and endangered species and/or 
critical habitat as specified in Part I.B.3.e., Addendum A of this 
permit and as may be required as a result of consultation; and
    e. Ensure that the pollution prevention plan complies with measures 
to protect properties eligible for protection under the National 
Historic Preservation Act as specified in Part I.B.3.f. of this permit.
    2. Full Site Operator--The permittee(s) with day-to-day operational 
control of those activities at a project site which are necessary to 
ensure compliance with the storm water pollution prevention plan or 
other permit conditions (e.g. general contractor) must:
    a. Ensure the pollution prevention plan for the portion of the site 
for which they are operators meets the minimum requirements of Part IV 
(Pollution Prevention Plan Development) and identifies the parties 
responsible for implementation of control measures identified in the 
plan;
    b. Ensure that the pollution prevention plan indicates which areas 
of the project they have operational control over and ensure that if 
modifications are made to the pollution prevention plan, where other 
operators are implementing portions of the plan, that these other 
operators be immediately notified of such modifications;
    c. Ensure that the pollution prevention plan for the portion of the 
site for which they are operators indicates the name and NPDES permit 
number of the party with operational control over project 
specifications (including the ability to make modifications in 
specifications);
    d. Ensure that the pollution prevention plan complies with measures 
to identify and protect listed threatened and endangered species and/or 
critical habitat as specified in Part I.B.3.e., Addendum A of this 
permit and as may be required as a result of consultation; and
    e. Ensure that the pollution prevention plan complies with measures 
to protect properties eligible for protection under the National 
Historic Preservation Act as specified in Part I.B.3.f. of this permit.

[[Page 29811]]

    3. Partial Site Operators. Permittees with operational control over 
only a portion of a larger construction site (e.g., one of four 
homebuilders in a particular subdivision, utility companies, etc.) are 
responsible for compliance with all applicable terms and conditions of 
this permit as it relates to their activities on their portion of the 
construction site, including protection of endangered species, 
protection of historic properties and implementation of pollution 
prevention plan measures. Partial site operators shall ensure (either 
directly or through coordination with another permittee) that their 
activities do not render another party's pollution controls 
ineffective. Partial site operators must either implement their 
portions of a common pollution prevention plan developed by a full site 
operator or develop and implement their own pollution prevention plan.

Part IV. Storm Water Pollution Prevention Plans

    A storm water pollution prevention plan shall be developed for each 
construction site covered by this permit (at least one per permit area 
for utility company service connection permit coverage). For more 
effective coordination of BMPs and opportunities for cost sharing, a 
cooperative effort by the different operators at a site to prepare and 
participate in a comprehensive pollution prevention plan is encouraged. 
Individual operators at a site may, but are not required, to develop 
separate pollution prevention plans that cover only their portion of 
the project provided reference is made to other operators at the site. 
Storm water pollution prevention plans shall be prepared in accordance 
with good engineering practices. The plan shall identify potential 
sources of pollution which may reasonably be expected to affect the 
quality of storm water discharges from the construction site. The plan 
shall describe and ensure the implementation of practices which will be 
used to reduce the pollutants in storm water discharges associated with 
construction activity at the construction site and to assure compliance 
with the terms and conditions of this permit. When developing pollution 
prevention plans, applicants must follow the procedures in Addendum A 
of this permit to determine whether endangered and threatened species 
would be affected by the applicant's storm water discharges or BMPs to 
control storm water runoff. Any information on whether endangered and 
threatened species and their critical habitat are found in proximity to 
the construction site must be included in the pollution prevention 
plan. Any terms or conditions that are imposed under the eligibility 
requirements of Part I.B.3.e and Addendum A of this permit to protect 
endangered and threatened species and/or critical habitat from storm 
water discharges or BMPs to control storm water runoff must be 
incorporated into the pollution prevention plan. Permittees must 
implement the applicable provisions of the storm water pollution 
prevention plan required under this part as a condition of this permit.

A. Deadlines for Plan Preparation and Compliance

    The plan shall:
    1. Be completed (including certifications required under Part IV.F) 
prior to the submittal of an NOI to be covered under this permit and 
updated as appropriate; and
    2. The plan shall provide for compliance with the terms and 
schedule of the plan beginning with the initiation of construction 
activities.

B. Signature, Plan Review and Making Plans Available

    1. The plan shall be signed in accordance with Part VI.G, and be 
retained on-site at the facility which generates the storm water 
discharge in accordance with Part V (retention of records) of this 
permit. If the site is inactive or does not have an onsite location 
adequate to store the pollution prevention plan, the location of the 
plan, along with a contact phone number, shall be posted on site. If 
the plan is located offsite, reasonable local access to the plan, 
during normal working hours, must be provided as described below.
    2. The permittee shall make plans available upon request to the 
Director; a State, Tribal or local agency approving sediment and 
erosion plans, grading plans, or storm water management plans; 
interested members of the public; local government officials; or to the 
operator of a municipal separate storm sewer receiving discharges from 
the site. Viewing by the public shall be at reasonable times during 
regular business hours (advance notice by the public of the desire to 
view the plan may be required, not to exceed two working days). The 
permit does not require that free copies of the plan be provided to 
interested members of the public, only that they have reasonable access 
to view the document and copy it at their own expense. The copy of the 
plan required to be kept onsite (or locally available) must be made 
available to the Director (or authorized representative) for review at 
the time of an onsite inspection.
    3. The Director, or authorized representative, may notify the 
permittee (co-permittees) at any time that the plan does not meet one 
or more of the minimum requirements of this Part. Such notification 
shall identify those provisions of the permit which are not being met 
by the plan, and identify which provisions of the plan require 
modifications in order to meet the minimum requirements of this Part. 
Within 7 calendar days of receipt of such notification from the 
Director, (or as otherwise provided by the Director), or authorized 
representative, the permittee shall make the required changes to the 
plan and shall submit to the Director a written certification that the 
requested changes have been made. The Director may take appropriate 
enforcement action for the period of time the permittee was operating 
under a plan that did not meet the minimum requirements of the permit.

C. Keeping Plans Current

    The permittee must amend the plan whenever:
    1. There is a change in design, construction, operation, or 
maintenance, which has a significant effect on the discharge of 
pollutants to the waters of the United States and which has not 
otherwise been addressed in the plan;
    2. Inspections or investigations by site operators, local, State, 
Tribal or federal officials indicate the storm water pollution 
prevention plan is proving ineffective in eliminating or significantly 
minimizing pollutants from sources identified under Part IV.D.2 of this 
permit, or is otherwise not achieving the general objectives of 
controlling pollutants in storm water discharges associated with 
construction activity; and
    3. The plan shall be amended to identify any new contractor and/or 
subcontractor that will implement a measure of the storm water 
pollution prevention plan (see Part IV.F). The plan must also be 
amended to address any measures necessary to protect endangered and 
threatened species or historic properties. Amendments to the plan may 
be reviewed by EPA in the same manner as Part IV.B above.

D. Contents of Plan

    The storm water pollution prevention plan shall include the 
following items:
1. Site Description
    Each plan shall provide a description of pollutant sources and 
other information as indicated:

[[Page 29812]]

    a. A description of the nature of the construction activity;
    b. A description of the intended sequence of major activities which 
disturb soils for major portions of the site (e.g., grubbing, 
excavation, grading, utilities and infrastructure installation, etc);
    c. Estimates of the total area of the site and the total area of 
the site that is expected to be disturbed by excavation, grading, or 
other activities;
    d. An estimate of the runoff coefficient of the site after 
construction activities are completed and existing data describing the 
soil or the quality of any discharge from the site;
    e. A general location map (e.g. portion of a city or county map or 
similar scale) and a site map indicating drainage patterns and 
approximate slopes anticipated after major grading activities, areas of 
soil disturbance, an outline of areas which are not to be disturbed, 
the location of major structural and nonstructural controls identified 
in the plan, the location of areas where stabilization practices are 
expected to occur, surface waters (including wetlands), and locations 
where storm water is discharged to a surface water;
    f. A description of any discharge associated with industrial 
activity other than construction (including storm water discharges from 
dedicated asphalt plants and dedicated concrete plants) covered by the 
permit; and the location of that activity;
    g. The name of the receiving water(s), and areal extent of wetland 
acreage at the site;
    h. A copy of the permit requirements (may simply attach copy of 
permit language);
    i. Information on whether listed endangered or threatened species 
and/or critical habitat are found in proximity to the construction 
activity and whether such species are adversely affected by the 
applicant's storm water discharges or BMPs to control storm water 
runoff as required under Addendum A of the permit; and
    J. Information on whether the storm water discharges from the 
construction activities, and the construction and implementation of 
BMPs, would have an affect on a property that is listed or eligible for 
listing under the National Historic Register and, where effects may 
occur, any written agreements with the SHPO or THPO to mitigate these 
effects.
12. Controls
    Each plan shall include a description of appropriate controls and 
measures that will be implemented at the construction activity. The 
plan must clearly describe for each major activity identified in Part 
IV.D.1.b: (a) appropriate control measures and the timing during the 
construction process that the measures will be implemented and (b) 
which permittee is responsible for implementation (e.g., perimeter 
controls for one portion of the site will be installed by Contractor A 
after the clearing and grubbing necessary for installation of the 
measure, but before the clearing and grubbing for the remaining 
portions of the site. Perimeter controls will be actively maintained by 
Contractor B until final stabilization of those portions of the site 
upward of the perimeter control. Temporary perimeter controls will be 
removed by Owner after final stabilization). The description and 
implementation of controls shall address the following minimum 
components:
    a. Erosion and Sediment Controls.
    (1) Short and Long Term Goals and Criteria:
    (a) The construction-phase erosion and sediment controls should be 
designed to retain sediment on site to the maximum extent practicable.
    (b) All control measures must be properly selected, installed, and 
maintained in accordance with the manufacturers specifications and good 
engineering practices. If periodic inspections or other information 
indicates a control has been used inappropriately, or incorrectly, the 
permittee must replace or modify the control for site situations.
    (c) If sediments escapes the construction site, off-site 
accumulations of sediment must be removed at a frequency sufficient to 
minimize offsite impacts (e.g., fugitive sediment in street could be 
washed into storm sewers by the next rain and/or pose a safety hazard 
to users of public streets).
    (d) Sediment must be removed from sediment traps or sedimentation 
ponds when design capacity has been reduced by 50%.
    (e) Litter, construction debris, and construction chemicals exposed 
to storm water shall be picked up prior to anticipated storm events 
(e.g. forecasted by local weather reports), or otherwise prevented from 
becoming a pollutant source for storm water discharges (e.g. screening 
outfalls, picked up daily, etc.).
    (f) Offsite material storage areas (also including overburden and 
stockpiles of dirt, etc.) used solely by the permitted project are 
considered a part of the project and shall be addressed in the 
pollution prevention plan.
    (2) Stabilization Practices:
    A description of interim and permanent stabilization practices, 
including site-specific scheduling of the implementation of the 
practices. Site plans should ensure that existing vegetation is 
preserved where attainable and that disturbed portions of the site are 
stabilized. Stabilization practices may include: temporary seeding, 
permanent seeding, mulching, geotextiles, sod stabilization, vegetative 
buffer strips, protection of trees, preservation of mature vegetation, 
and other appropriate measures. Use of impervious surfaces for 
stabilization should be avoided. A record of the dates when major 
grading activities occur, when construction activities temporarily or 
permanently cease on a portion of the site, and when stabilization 
measures are initiated shall be included in the plan. Except as 
provided in paragraphs IV.D.2.(a).(1).(a), (b), and (c) below, 
stabilization measures shall be initiated as soon as practicable in 
portions of the site where construction activities have temporarily or 
permanently ceased, but in no case more than 14 days after the 
construction activity in that portion of the site has temporarily or 
permanently ceased.
    (a) Where the initiation of stabilization measures by the 14th day 
after construction activity temporary or permanently cease is precluded 
by snow cover or frozen ground conditions, stabilization measures shall 
be initiated as soon as practicable.
    (b) Where construction activity on a portion of the site is 
temporarily ceased, and earth disturbing activities will be resumed 
within 21 days, temporary stabilization measures do not have to be 
initiated on that portion of site.
    (c) In arid areas (areas with an average annual rainfall of 0 to 10 
inches), semi-arid areas (areas with an average annual rainfall of 10 
to 20 inches), and areas experiencing droughts where the initiation of 
stabilization measures by the 14th day after construction activity has 
temporarily or permanently ceased is precluded by seasonal arid 
conditions, stabilization measures shall be initiated as soon as 
practicable.
    (3) Structural Practices:
    A description of structural practices to divert flows from exposed 
soils, store flows or otherwise limit runoff and the discharge of 
pollutants from exposed areas of the site to the degree attainable. 
Such practices may include silt fences, earth dikes, drainage swales, 
sediment traps, check dams, subsurface drains, pipe slope drains, level 
spreaders, storm drain inlet protection, rock outlet protection, 
reinforced soil retaining systems, gabions, and temporary or permanent 
sediment basins. Placement of Structural practices in floodplains 
should be avoided to the degree attainable. The installation of these

[[Page 29813]]

devices may be subject to section 404 of the CWA.
    (a) For common drainage locations that serve an area with 10 or 
more acres disturbed at one time, a temporary (or permanent) sediment 
basin providing 3,600 cubic feet of storage per acre drained, or 
equivalent control measures, shall be provided where attainable until 
final stabilization of the site. The 3,600 cubic feet of storage area 
per acre drained does not apply to flows from offsite areas and flows 
from onsite areas that are either undisturbed or have undergone final 
stabilization where such flows are diverted around both the disturbed 
area and the sediment basin. For drainage locations which serve 10 or 
more disturbed acres at one time and where a temporary sediment basin 
providing 3,600 cubic feet of storage per acre drained, or equivalent 
controls is not attainable, smaller sediment basins and/or sediment 
traps should be used. At a minimum, silt fences, vegetative buffer 
strips, or equivalent sediment controls are required for all downslope 
boundaries of the construction area and for those side slope boundaries 
deemed appropriate as dictated by individual site conditions.
    (b) For drainage locations serving less than 10 acres, sediment 
basins and/or sediment traps should be used. At a minimum, silt fences, 
vegetative buffer strips, or equivalent sediment controls are required 
for all downslope boundaries (and those side slope boundaries deemed 
appropriate as dictated by individual site conditions) of the 
construction area unless a sediment basin providing storage for 3,600 
cubic feet of storage per acre drained is provided.
    b. Storm Water Management. A description of measures that will be 
installed during the construction process to control pollutants in 
storm water discharges that will occur after construction operations 
have been completed. Structural measures should be placed on upland 
soils to the degree attainable. The installation of these devices may 
be subject to section 404 of the CWA. This permit only addresses the 
installation of storm water management measures, and not the ultimate 
operation and maintenance of such structures after the construction 
activities have been completed and the site has undergone final 
stabilization. Permittees are only responsible for the installation and 
maintenance of storm water management measures prior to final 
stabilization of the site, and are not responsible for maintenance 
after storm water discharges associated with construction activity have 
been eliminated from the site. However, post-construction storm water 
BMPs that discharge pollutants from point sources once construction is 
completed, may in themselves, need authorization under a separate NPDES 
permit.
    (1) Such practices may include: storm water detention structures 
(including wet ponds); storm water retention structures; flow 
attenuation by use of open vegetated swales and natural depressions; 
infiltration of runoff onsite; and sequential systems (which combine 
several practices). The pollution prevention plan shall include an 
explanation of the technical basis used to select the practices to 
control pollution where flows exceed predevelopment levels.
    (2) Velocity dissipation devices shall be placed at discharge 
locations and along the length of any outfall channel for the purpose 
of providing a non-erosive velocity flow from the structure to a water 
course so that the natural physical and biological characteristics and 
functions are maintained and protected (e.g., no significant changes in 
the hydrological regime of the receiving water).
    c. Other Controls.
    (1) No solid materials, including building materials, shall be 
discharged to waters of the United States, except as authorized by a 
section 404 permit.
    (2) Off-site vehicle tracking of sediments and the generation of 
dust shall be minimized.
    (3) The plan shall ensure and demonstrate compliance with 
applicable State, Tribal and/or local waste disposal, sanitary sewer or 
septic system regulations to the extent these are located within the 
permitted area.
    (4) The plan shall include a narrative description of practices to 
reduce pollutants from construction related materials which are stored 
onsite including an inventory of construction materials (including 
waste materials), storage practices to minimize exposure of the 
materials to storm water, and spill prevention and response.
    (5) A description of pollutant sources from areas other than 
construction (including storm water discharges from dedicated asphalt 
plants and dedicated concrete plants), and a description of controls 
and measures that will be implemented at those sites.
    (6) The plan shall include measures to protect listed endangered 
and threatened species and/or critical habitat (if applicable) 
including any terms or conditions that are imposed under the 
eligibility requirements of Part I.B.3.e and Addendum A of this permit 
to protect such species and/or critical habitat from storm water 
discharges or BMPs to control storm water runoff. Failure to include 
these measures will result in the storm water discharges from the 
construction activities being ineligible for coverage under this 
permit.
    (7) The plan shall include measures to protect properties that are 
listed or eligible for listing under the National Historic Register 
including any measures agreed to through written agreements with the 
SHPO or THPO. Failure to include these measures will result in the 
storm water discharges from the construction activities being 
ineligible for coverage under this permit.
    d. Approved State, Tribal or Local Plans.
    (1) Permittees which discharge storm water associated construction 
activities must include in their storm water pollution prevention plan 
procedures and requirements specified in applicable sediment and 
erosion site plans or site permits, or storm water management site 
plans or site permits approved by State or local officials. Permittees 
shall provide a certification in their storm water pollution prevention 
plan that their storm water pollution prevention plan reflects 
requirements applicable to protecting surface water resources in 
sediment and erosion site plans or site permits, or storm water 
management site plans or site permits approved by State, Tribal or 
local officials. Permittees shall comply with any such requirements 
during the term of the permit. This provision does not apply to 
provisions of master plans, comprehensive plans, non-enforceable 
guidelines or technical guidance documents that are not identified in a 
specific plan or permit that is issued for the construction site.
    (2) Storm water pollution prevention plans must be amended to 
reflect any change applicable to protecting surface water resources in 
sediment and erosion site plans or site permits, or storm water 
management site plans or site permits approved by State, Tribal or 
local officials for which the permittee receives written notice. Where 
the permittee receives such written notice of a change, the permittee 
shall provide a recertification in the storm water pollution plan that 
the storm water pollution prevention plan has been modified to address 
such changes.
    (3) Dischargers seeking alternative permit requirements shall 
submit an individual permit application in accordance with Part VI.L of 
the permit at the address indicated in Part V.C of this permit for the 
appropriate Regional Office, along with a description of why 
requirements in approved State, Tribal or local plans or permits, or 
changes to

[[Page 29814]]

such plans or permits, should not be applicable as a condition of an 
NPDES permit.
3. Maintenance
    A description of procedures to ensure the timely maintenance of 
vegetation, erosion and sediment control measures and other protective 
measures identified in the site plan in good and effective operating 
condition. Maintenance needs identified in inspections or by other 
means shall be accomplished before the next anticipated storm event, or 
as necessary to maintain the continued effectiveness of storm water 
controls. If maintenance prior to the next anticipated storm event is 
impracticable, maintenance must be scheduled and accomplished as soon 
as practicable.
4. Inspections
    Qualified personnel (provided by the permittee or cooperatively by 
multiple permittees) shall inspect disturbed areas of the construction 
site that have not been finally stabilized, areas used for storage of 
materials that are exposed to precipitation, structural control 
measures, and locations where vehicles enter or exit the site at least 
once every fourteen calendar days, before anticipated storm events (or 
series of storm events such as intermittent showers over one or more 
days) expected to cause a significant amount of runoff and within 24 
hours of the end of a storm event of 0.5 inches or greater. Where sites 
have been finally or temporarily stabilized, runoff is unlikely due to 
winter conditions (e.g. site covered with snow, ice, or frozen ground), 
or during seasonal arid periods in arid areas (areas with an average 
annual rainfall of 0 to 10 inches) and semi-arid areas (areas with an 
average annual rainfall of 10 to 20 inches) such inspection shall be 
conducted at least once every month.
    a. Disturbed areas and areas used for storage of materials that are 
exposed to precipitation shall be inspected for evidence of, or the 
potential for, pollutants entering the drainage system. Erosion and 
sediment control measures identified in the plan shall be observed to 
ensure that they are operating correctly. Where discharge locations or 
points are accessible, they shall be inspected to ascertain whether 
erosion control measures are effective in preventing significant 
impacts to receiving waters. Locations where vehicles enter or exit the 
site shall be inspected for evidence of offsite sediment tracking.
    b. Based on the results of the inspection, the site description 
identified in the plan in accordance with paragraph IV.D.1 of this 
permit and pollution prevention measures identified in the plan in 
accordance with paragraph IV.D.2 of this permit shall be revised as 
appropriate, but in no case later than 7 calendar days following the 
inspection. Such modifications shall provide for timely implementation 
of any changes to the plan within 7 calendar days following the 
inspection.
    c. A report summarizing the scope of the inspection, name(s) and 
qualifications of personnel making the inspection, the date(s) of the 
inspection, major observations relating to the implementation of the 
storm water pollution prevention plan (including the location(s) of 
discharges of sediment or other pollutants from the site and of any 
control device that failed to operate as designed or proved inadequate 
for a particular location), and actions taken in accordance with 
paragraph IV.D.4.b of the permit shall be made and retained as part of 
the storm water pollution prevention plan for at least three years from 
the date that the site is finally stabilized. Such reports shall 
identify any incidents of non-compliance. Where a report does not 
identify any incidents of non-compliance, the report shall contain a 
certification that the facility is in compliance with the storm water 
pollution prevention plan and this permit. The report shall be signed 
in accordance with Part VI.G of this permit.
5. Non-Storm Water Discharges
    Except for flows from fire fighting activities, sources of non-
storm water listed in Part III.A.2 of this permit that are combined 
with storm water discharges associated with construction activity must 
be identified in the plan. The plan shall identify and ensure the 
implementation of appropriate pollution prevention measures for the 
non-storm water component(s) of the discharge.

E. Contractor and Subcontractor Certifications

1. Contractors and Subcontractors Implementing Storm Water Control 
Measures
    The storm water pollution prevention plan must clearly identify for 
each control measure identified in the plan, the party that will 
implement the measure. The Permittee(s) shall insure all contractors 
and subcontractors identified in the plan as being responsible for 
implementing storm water control measures sign a copy of the following 
certification statement, in accordance with Part VI.G of this permit, 
before performing any work in the area covered by the storm water 
pollution prevention plan. All certifications must be included with the 
storm water pollution prevention plan.

    I certify under penalty of law that I understand the terms and 
conditions of the National Pollutant Discharge Elimination System 
(NPDES) general permit that authorizes storm water discharges 
associated with construction activity from the construction site 
identified as part of this certification.

    The certification must include the name and title of the person 
providing the signature in accordance with Part VI.G of this permit; 
the name, address and telephone number of the contracting firm; the 
address (or other identifying description) of the site; and the date 
the certification is made.
2. Contractors and Subcontractors Impacting Storm Water Control 
Measures
    The permittee shall insure contractor(s) and/or subcontractor(s) 
that will conduct activities that may impact the effectiveness of 
control measures identified in the plan, but who do not meet the 
definition of ``operator'' (Part IX), sign a copy of the following 
certification statement, in accordance with Part VI.G of this permit, 
before beginning work on site. All certifications must be included with 
the storm water pollution prevention plan.

    I certify under penalty of law that I will coordinate, either 
through the general contractor, owner, or directly, with the 
contractor(s) and/or subcontractor(s) identified in the pollution 
prevention plan having responsibility for implementing storm water 
control measures to minimize any impact my actions may have on the 
effectiveness of these storm water controls measures.

    The certification must include the name and title of the person 
providing the signature in accordance with Part VI.G of this permit; 
the name, address and telephone number of the contracting firm; the 
address (or other identifying description) of the site; and the date 
the certification is made.
3. Utility Companies
    The storm water pollution prevention plan must clearly identify, 
for each control measure identified in the plan relating to the 
installation of utility service, the party that will implement the 
measure. The Permittee(s) shall provide to the site operator(s) 
responsible for maintenance of the pollution prevention plan addressing 
impacts of utilities installation, a copy of the following 
certification statement, signed in accordance with Part VI.G of

[[Page 29815]]

this permit, before performing any work in the area covered by the 
storm water pollution prevention plan. All certifications must be 
included with the storm water pollution prevention plan.

    I certify under penalty of law that I understand the terms and 
conditions of the National Pollutant Discharge Elimination System 
(NPDES) general permit that authorizes storm water discharges 
associated with construction activity from the portion of the 
construction site that will be disturbed during my installation of 
utility service.

    The certification must include the name and title of the person 
providing the signature in accordance with Part VI.G of this permit; 
the name, address and telephone number of the permittee; the address 
(or other identifying description) of the site; and the date the 
certification is made.

Part V. Retention of Records

A. Documents

    The permittee shall retain copies of storm water pollution 
prevention plans and all reports required by this permit, and records 
of all data used to complete the Notice of Intent to be covered by this 
permit, for a period of at least three years from the date that the 
site is finally stabilized. This period may be extended by request of 
the Director at any time.

B. Accessibility

    The permittee shall retain a copy of the storm water pollution 
prevention plan required by this permit (including a copy of the permit 
language) at the construction site (or other local location accessible 
to the Director and the public) from the date of project initiation to 
the date of final stabilization. The permittees with day to day 
operational control over pollution prevention plan implementation shall 
have a copy of the plan available at a central location onsite for the 
use of all operators and those identified as having responsibilities 
under the plan whenever they are on the construction site.

C. Addresses

    Except for the submittal of NOIs (see Part II.C of this permit), 
all written correspondence concerning discharges in any State, Indian 
land or from any Federal Facility covered under this permit and 
directed to the U.S. Environmental Protection Agency, including the 
submittal of individual permit applications, shall be sent to the 
address of the appropriate Regional Office listed below:
Region 1: CT, MA, ME, NH, RI, VT
United States EPA, Region I, Office of Ecosystem Protection, Municipal 
Assistance Unit, John F. Kennedy Federal Building--CMU, Boston, MA 
02203
Region 2: NJ, NY, PR, VI
United States EPA, Region II, Division of Environmental Planning and 
Protection, (2DEPP-WPB), Water Programs Branch, 290 Broadway, New York, 
NY 10007-1866
Region 3: DE, DC, MD, PA, VA, WV
United States EPA, Region III, Water Management Division, (3WM55), 
Storm Water Staff, 841 Chestnut Building, Philadelphia, PA 19107
Region 6: AR, LA, NM (Except See Region IX for Navajo Lands, and See 
Region VIII for Ute Mountain Ute Reservation Lands), OK, TX
United States EPA, Region VI, Storm Water Staff, Enforcement and 
Compliance Assurance Division (GEN-WC), EPA SW Construction GP, P.O. 
Box 50625, Dallas, TX 75205
Region 7: IA, KS, MO, NE (Except See Region VIII for Pine Ridge 
Reservation Lands)
United States EPA, Region VII, Water, Wetlands, and Pesticides 
Division, NPDES and Facilities Management Branch, Storm Water Staff, 
726 Minnesota Avenue, Kansas City, KS 66101
Region 8: CO, MT, ND, SD, WY, UT (Except See Region IX for Goshute 
Reservation and Navajo Reservation Lands)
United States EPA, Region VIII, Office of Ecosystems Protection, and 
Remediation (8EPR-EP), Storm Water Staff, 999 18th Street, Denver, CO 
80202-2466

    Note--For Montana Indian Lands, please use the following 
address: United States EPA, Region VIII, Montana Operations Office, 
Federal Office Building, 301 South Park, Drawer 10096, Helena, MT 
59626-0096
Region 9: AZ, CA, HI, NV, Guam, American Samoa, the Commonwealth of the 
Northern Mariana Islands, the Goshute Reservation in UT and NV, the 
Navajo Reservation in UT, NM, and AZ, the Duck Valley Reservation in 
ID, Fort McDermitt Reservation in OR
United States EPA, Region IX, Water Management Division, WTR-5, Storm 
Water Staff, 75 Hawthorne Street, San Francisco, CA 94105
Regions 10: AK, ID (Except See Region IX for Duck Valley Reservation 
Lands), OR (Except See Region IX for Ft. McDermitt Reservation), WA
United States EPA, Region X, Office of Water OW-130, Storm Water Staff, 
1200 6th Avenue, Seattle, WA 98101

Part VI. Standard Permit Conditions

A. Duty To Comply

    1. The permittee must comply with all conditions of this permit. 
Any permit noncompliance constitutes a violation of CWA and is grounds 
for enforcement action; for permit termination, revocation and 
reissuance, or modification; or for denial of a permit renewal 
application.
    2. Penalties for Violations of Permit Conditions.
    The Director will adjust the civil and administrative penalties 
listed below in accordance with the Civil Monetary Penalty Inflation 
Adjustment Rule (Federal Register: December 31, 1996, Volume 61, Number 
252, pages 69359-69366, as corrected, March 20, 1997, Volume 62, Number 
54, pages 13514-13517) as mandated by the Debt Collection Improvement 
Act of 1996 for inflation on a periodic basis. This rule allows EPA's 
penalties to keep pace with inflation. The Agency is required to review 
its penalties at least once every four years thereafter and to adjust 
them as necessary for inflation according to a specified formula. The 
civil and administrative penalties listed below were adjusted for 
inflation starting in 1996.
a. Criminal
    (1) Negligent Violations. The CWA provides that any person who 
negligently violates permit conditions implementing sections 301, 302, 
306, 307, 308, 318, or 405 of the Act is subject to a fine of not less 
than $2,500 nor more than $25,000 per day of violation, or by 
imprisonment for not more than 1 year, or both.
    (2) Knowing Violations. The CWA provides that any person who 
knowingly violates permit conditions implementing sections 301, 302, 
306, 307, 308, 318, or 405 of the Act is subject to a fine of not less 
than $5,000 nor more than $50,000 per day of violation, or by 
imprisonment for not more than 3 years, or both.
    (3) Knowing Endangerment. The CWA provides that any person who 
knowingly violates permit conditions implementing sections 301, 302, 
306, 307, 308, 318, or 405 of the Act and who knows at that time that 
he is placing another person in imminent danger of death or serious 
bodily injury is subject

[[Page 29816]]

to a fine of not more than $250,000, or by imprisonment for not more 
than 15 years, or both.
    (4) False Statement. The CWA provides that any person who knowingly 
makes any false material statement, representation, or certification in 
any application, record, report, plan, or other document filed or 
required to be maintained under the Act or who knowingly falsifies, 
tampers with, or renders inaccurate, any monitoring device or method 
required to be maintained under the Act, shall upon conviction, be 
punished by a fine of not more than $10,000 or by imprisonment for not 
more than two years, or by both. If a conviction is for a violation 
committed after a first conviction of such person under this paragraph, 
punishment shall be by a fine of not more than $20,000 per day of 
violation, or by imprisonment of not more than four years, or by both. 
(See section 309.c.4 of the Clean Water Act).
b. Civil Penalties
    The CWA provides that any person who violates a permit condition 
implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act 
is subject to a civil penalty not to exceed $27,500 per day for each 
violation.
c. Administrative Penalties
    The CWA provides that any person who violates a permit condition 
implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act 
is subject to an administrative penalty, as follows:
    (1) Class I penalty. Not to exceed $11,000 per violation nor shall 
the maximum amount exceed $27,500.
    (2) Class II penalty. Not to exceed $11,000 per day for each day 
during which the violation continues nor shall the maximum amount 
exceed $137,500.

B. Continuation of the Expired General Permit

    This permit expires five years after the effective date. However, 
an expired general permit may continue in force and effect. To retain 
coverage under the continued permit, permittees should provide notice 
of their intent to remain covered under this permit at least 2 days 
prior to the expiration date. The notice must be signed in accordance 
with Part VI.G.1. of this permit and must contain the following 
information:
    1. Name, address and telephone number of the operator.
    2. The existing storm water construction permit number.
    This information may be submitted on a post card or in a letter and 
shall be submitted to the EPA Storm Water Notice of Intent Center at: 
Storm Water Notice of Intent (4203), US EPA, 401 M Street, SW, 
Washington, D.C. 20460.

C. Need To Halt or Reduce Activity Not a Defense

    It shall not be a defense for a permittee in an enforcement action 
that it would have been necessary to halt or reduce the permitted 
activity in order to maintain compliance with the conditions of this 
permit.

D. Duty to Mitigate

    The permittee shall take all reasonable steps to minimize or 
prevent any discharge in violation of this permit which has a 
reasonable likelihood of adversely affecting human health or the 
environment.

E. Duty to Provide Information

    The permittee shall furnish to the Director or an authorized 
representative of the Director any information which is requested to 
determine compliance with this permit or other information.

F. Other Information

    When the permittee becomes aware that he or she failed to submit 
any relevant facts or submitted incorrect information in the Notice of 
Intent or in any other report to the Director, he or she shall promptly 
submit such facts or information.

G. Signatory Requirements

    All Notices of Intent, storm water pollution prevention plans, 
reports, certifications or information either submitted to the Director 
or the operator of a large or medium municipal separate storm sewer 
system, or that this permit requires be maintained by the permittee, 
shall be signed as follows:
    1. All Notices of Intent shall be signed as follows:
    a. For a corporation: by a responsible corporate officer. For the 
purpose of this section, a responsible corporate officer means: a 
president, secretary, treasurer, or vice-president of the corporation 
in charge of a principal business function, or any other person who 
performs similar policy or decision-making functions for the 
corporation; or the manager of one or more manufacturing, production or 
operating facilities employing more than 250 persons or having gross 
annual sales or expenditures exceeding $25,000,000 (in second-quarter 
1980 dollars) if authority to sign documents has been assigned or 
delegated to the manager in accordance with corporate procedures;
    b. For a partnership or sole proprietorship: by a general partner 
or the proprietor, respectively; or
    c. For a municipality, State, Federal, or other public agency: by 
either a principal executive officer or ranking elected official. For 
purposes of this section, a principal executive officer of a Federal 
agency includes (1) the chief executive officer of the agency, or (2) a 
senior executive officer having responsibility for the overall 
operations of a principal geographic unit of the agency (e.g., Regional 
Administrators of EPA).
    2. All reports required by the permit and other information 
requested by the Director or authorized representative of the Director 
shall be signed by a person described above or by a duly authorized 
representative of that person. A person is a duly authorized 
representative only if:
    a. The authorization is made in writing by a person described above 
and submitted to the Director.
    b. The authorization specifies either an individual or a position 
having responsibility for the overall operation of the regulated 
facility or activity, such as the position of manager, operator, 
superintendent, or position of equivalent responsibility or an 
individual or position having overall responsibility for environmental 
matters for the company. (A duly authorized representative may thus be 
either a named individual or any individual occupying a named 
position).
    c. Changes to authorization. If an authorization under paragraph 
II.B.3. is no longer accurate because a different operator has 
responsibility for the overall operation of the construction site, a 
new notice of intent satisfying the requirements of paragraph II.B must 
be submitted to the Director prior to or together with any reports, 
information, or applications to be signed by an authorized 
representative.
    d. Certification. Any person signing documents under paragraph VI.G 
shall make the following certification:

    I certify under penalty of law that this document and all 
attachments were prepared under my direction or supervision in 
accordance with a system designed to assure that qualified personnel 
properly gathered and evaluated the information submitted. Based on 
my inquiry of the person or persons who manage the system, or those 
persons directly responsible for gathering the information, the 
information submitted is, to the best of my knowledge and belief, 
true, accurate, and complete. I am aware that there are significant 
penalties for submitting false information, including the 
possibility of fine and imprisonment for knowing violations.

H. Penalties for Falsification of Reports

    Section 309(c)(4) of the Clean Water Act provides that any person 
who knowingly makes any false material

[[Page 29817]]

statement, representation, or certification in any record or other 
document submitted or required to be maintained under this permit, 
including reports of compliance or noncompliance shall, upon 
conviction, be punished by a fine of not more than $10,000, or by 
imprisonment for not more than two years, or by both.

I. Oil and Hazardous Substance Liability

    Nothing in this permit shall be construed to preclude the 
institution of any legal action or relieve the permittee from any 
responsibilities, liabilities, or penalties to which the permittee is 
or may be subject under section 311 of the CWA or section 106 of the 
Comprehensive Environmental Response, Compensation and Liability Act of 
1980 (CERCLA).

J. Property Rights

    The issuance of this permit does not convey any property rights of 
any sort, nor any exclusive privileges, nor does it authorize any 
injury to private property nor any invasion of personal rights, nor any 
infringement of Federal, State or local laws or regulations.

K. Severability

    The provisions of this permit are severable, and if any provision 
of this permit, or the application of any provision of this permit to 
any circumstance, is held invalid, the application of such provision to 
other circumstances, and the remainder of this permit shall not be 
affected thereby.

L. Requiring an Individual Permit or an Alternative General Permit

    1. The Director may require any person authorized by this permit to 
apply for and/or obtain either an individual NPDES permit or an 
alternative NPDES general permit. Any interested person may petition 
the Director to take action under this paragraph. Where the Director 
requires a discharger authorized to discharge under this permit to 
apply for an individual NPDES permit, the Director shall notify the 
discharger in writing that a permit application is required. This 
notification shall include a brief statement of the reasons for this 
decision, an application form, a statement setting a deadline for the 
discharger to file the application, and a statement that on the 
effective date of issuance or denial of the individual NPDES permit or 
the alternative general permit as it applies to the individual 
permittee, coverage under this general permit shall automatically 
terminate. Applications shall be submitted to the appropriate Regional 
Office indicated in Part V.C of this permit. The Director may grant 
additional time to submit the application upon request of the 
applicant. If a discharger fails to submit in a timely manner an 
individual NPDES permit application as required by the Director under 
this paragraph, then the applicability of this permit to the individual 
NPDES permittee is automatically terminated at the end of the day 
specified by the Director for application submittal.
    2. Any discharger authorized by this permit may request to be 
excluded from the coverage of this permit by applying for an individual 
permit. In such cases, the permittee shall submit an individual 
application in accordance with the requirements of 40 CFR 
122.26(c)(1)(ii), with reasons supporting the request, to the Director 
at the address for the appropriate Regional Office indicated in Part 
V.C of this permit. The request may be granted by issuance of any 
individual permit or an alternative general permit if the reasons cited 
by the permittee are adequate to support the request.
    3. When an individual NPDES permit is issued to a discharger 
otherwise subject to this permit, or the discharger is authorized to 
discharge under an alternative NPDES general permit, the applicability 
of this permit to the individual NPDES permittee is automatically 
terminated on the effective date of the individual permit or the date 
of authorization of coverage under the alternative general permit, 
whichever the case may be. When an individual NPDES permit is denied to 
an owner or operator otherwise subject to this permit, or the owner or 
operator is denied for coverage under an alternative NPDES general 
permit, the applicability of this permit to the individual NPDES 
permittee is automatically terminated on the date of such denial, 
unless otherwise specified by the Director.

M. State/Tribal Environmental Laws

    1. Nothing in this permit shall be construed to preclude the 
institution of any legal action or relieve the permittee from any 
responsibilities, liabilities, or penalties established pursuant to any 
applicable State/Tribal law or regulation under authority preserved by 
section 510 of the Act.
    2. No condition of this permit shall release the permittee from any 
responsibility or requirements under other environmental statutes or 
regulations.

N. Proper Operation and Maintenance

    The permittee shall at all times properly operate and maintain all 
facilities and systems of treatment and control (and related 
appurtenances) which are installed or used by the permittee to achieve 
compliance with the conditions of this permit and with the requirements 
of storm water pollution prevention plans. Proper operation and 
maintenance also includes adequate laboratory controls and appropriate 
quality assurance procedures. Proper operation and maintenance requires 
the operation of backup or auxiliary facilities or similar systems, 
installed by a permittee only when necessary to achieve compliance with 
the conditions of the permit.

O. Inspection and Entry

    The permittee shall allow the Director or an authorized 
representative of EPA, the State/Tribe, or, in the case of a 
construction site which discharges through a municipal separate storm 
sewer, an authorized representative of the municipal operator or the 
separate storm sewer receiving the discharge, upon the presentation of 
credentials and other documents as may be required by law, to:
    1. Enter upon the permittee's premises where a regulated facility 
or activity is located or conducted or where records must be kept under 
the conditions of this permit;
    2. Have access to and copy at reasonable times, any records that 
must be kept under the conditions of this permit; and
    3. Inspect at reasonable times any facilities or equipment 
(including monitoring and control equipment).

P. Permit Actions

    This permit may be modified, revoked and reissued, or terminated 
for cause. The filing of a request by the permittee for a permit 
modification, revocation and reissuance, or termination, or a 
notification of planned changes or anticipated noncompliance does not 
stay any permit condition.

Part VII. Reopener Clause

    A. If there is evidence indicating that the storm water discharges 
authorized by this permit cause, have the reasonable potential to cause 
or contribute to, a violation of a water quality standard, the 
discharger may be required to obtain individual permit or an 
alternative general permit in accordance with Part I.C of this permit 
or the permit may be modified to include different limitations and/or 
requirements.
    B. Permit modification or revocation will be conducted according to 
40 CFR 122.62, 122.63, 122.64 and 124.5.

[[Page 29818]]

Part VIII. Termination of Coverage

A. Notice of Termination

    Where a site has been finally stabilized and all storm water 
discharges from construction activities that are authorized by this 
permit are eliminated, or where the operator of all storm water 
discharges at a facility changes, the permittee must submit a Notice of 
Termination that is signed in accordance with Part VI.G of this permit. 
The Notice of Termination shall include the following information:
    1. The street (description of location if no street address is 
available) address of the construction site for which the notification 
is submitted;
    2. The name, address and telephone number of the permittee 
submitting the Notice of Termination;
    3. The NPDES permit number for the storm water discharge identified 
by the Notice of Termination;
    4. An indication of whether the storm water discharges associated 
with construction activity have been eliminated or the operator of the 
discharges has changed;
    5. For changes in operators, the name, address, and phone number of 
the new operator, and
    6. The following certification signed in accordance with Part VI.G 
(signatory requirements) of this permit:

    I certify under penalty of law that either: (a) all storm water 
discharges associated with construction activity from the portion of 
the identified facility where I was an operator have ceased or have 
been eliminated or (b) I am no longer an operator at the 
construction site and a new operator has assumed operational control 
for those portions of the construction site where I previously had 
operational control. I understand that by submitting this notice of 
termination, I am no longer authorized to discharge storm water 
associated with construction activity under this general permit, and 
that discharging pollutants in storm water associated with 
construction activity to waters of the United States is unlawful 
under the Clean Water Act where the discharge is not authorized by a 
NPDES permit. I also understand that the submittal of this notice of 
termination does not release an operator from liability for any 
violations of this permit or the Clean Water Act.

    For the purposes of this certification, elimination of storm water 
discharges associated with construction activity means that all 
disturbed soils at the portion of the construction site where the 
operator had control have been finally stabilized and temporary erosion 
and sediment control measures have been removed or will be removed at 
an appropriate time to insure final stabilization is maintained, or 
that all storm water discharges associated with construction activities 
from the identified site that are authorized by a NPDES general permit 
have otherwise been eliminated from the portion of the construction 
site where the operator had control.

B. Addresses

    All Notices of Termination are to be sent, using the form provided 
by the Director (or a photocopy thereof), to the address specified on 
the NOT form.

Part IX. Definitions

    ``Best Management Practices'' (``BMPs'') means schedules of 
activities, prohibitions of practices, maintenance procedures, and 
other management practices to prevent or reduce the discharge of 
pollutants to waters of the United States. BMPs also include treatment 
requirements, operating procedures, and practices to control plant site 
runoff, spillage or leaks, sludge or waste disposal, or drainage from 
raw material storage.
    ``Control Measure''--As used in this permit, refers to any Best 
Management Practice or other method used to prevent or reduce the 
discharge of pollutants to waters of the United States.
    ``Commencement of Construction''--The initial disturbance of soils 
associated with clearing, grading, or excavating activities or other 
construction activities.
    ``CWA'' means the Clean Water Act or the Federal Water Pollution 
Control Act, 33 U.S.C 1251 et seq.
    ``Director'' means the Regional Administrator of the Environmental 
Protection Agency or an authorized representative.
    ``Discharge of Storm Water Associated with Construction 
Activity''--As used in this permit, refers to storm water ``point 
source'' discharges from areas where soil disturbing activities (e.g., 
clearing, grading, or excavation, etc.), construction materials or 
equipment storage or maintenance (e.g., fill piles, concrete truck 
washout, fueling, etc.), or other industrial storm water directly 
related to the construction process (e.g., concrete or asphalt batch 
plants, etc.) are located.
    ``Final Stabilization'' means that all soil disturbing activities 
at the site have been completed, and that a uniform (e.g., evenly 
distributed, without large bare areas) perennial vegetative cover with 
a density of 70% of the native background vegetative cover for the area 
has been established on all unpaved areas and areas not covered by 
permanent structures, or equivalent permanent stabilization measures 
(such as the use of riprap, gabions, or geotextiles) have been 
employed. In some parts of the country, background native vegetation 
will cover less than 100% of the ground (e.g. arid areas). Establishing 
at least 70% of the natural cover of native vegetation meets the 
vegetative cover criteria for final stabilization. For example, if the 
native vegetation covers 50% of the ground, 70% of 50% would require 
35% total cover for final stabilization.
    ``Flow-weighted composite sample'' means a composite sample 
consisting of a mixture of aliquots collected at a constant time 
interval, where the volume of each aliquot is proportional to the flow 
rate of the discharge.
    ``Large and Medium municipal separate storm sewer system'' means 
all municipal separate storm sewers that are either:
    (i) Located in an incorporated place (city) with a population of 
100,000 or more as determined by the latest Decennial Census by the 
Bureau of Census (these cities are listed in Appendices F and G of 40 
CFR 122); or
    (ii) Located in the counties with unincorporated urbanized 
populations of 100,000 or more, except municipal separate storm sewers 
that are located in the incorporated places, townships or towns within 
such counties (these counties are listed in Appendices H and I of 40 
CFR 122); or
    (iii) Owned or operated by a municipality other than those 
described in paragraph (i) or (ii) and that are designated by the 
Director as part of the large or medium municipal separate storm sewer 
system.
    ``NOI'' means notice of intent to be covered by this permit (see 
Part II of this permit.)
    ``NOT'' means notice of termination (see Part VIII of this permit).
    ``Operator'' means any party associated with the construction 
project that meets either of the following 2 criteria: (1) The party 
has operational control over project specifications (including the 
ability to make modifications in specifications), or (2) the party has 
day-to-day operational control of those activities at a project site 
which are necessary to ensure compliance with the storm water pollution 
prevention plan or other permit conditions (e.g., they are authorized 
to direct workers at the site to carry out activities identified in the 
storm water pollution prevention plan or comply with other permit 
conditions).
    ``Point Source'' means any discernible, confined, and discrete 
conveyance, including but not limited to, any pipe, ditch, channel, 
tunnel, conduit, well, discrete fissure,

[[Page 29819]]

container, rolling stock, concentrated animal feeding operation, 
landfill leachate collection system, vessel or other floating craft 
from which pollutants are or may be discharges. This term does not 
include return flows from irrigated agriculture or agricultural storm 
water runoff.
    ``Runoff coefficient'' means the fraction of total rainfall that 
will appear at the conveyance as runoff.
    ``Storm Water'' means storm water runoff, snow melt runoff, and 
surface runoff and drainage.
    ``Storm Water Associated with Industrial Activity'' is defined at 
40 CFR 122.26(b)(14) and incorporated here by reference. Most relevant 
to this permit is 40 CFR 122.26(b)(14)(x), which relates to 
construction activity including clearing, grading and excavation 
activities.
    ``Waters of the United States'' means:
    (a) All waters which are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters which are subject to the ebb and flow of the tide;
    (b) All interstate waters, including interstate ``wetlands'';
    (c) All other waters such as interstate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, wetlands, 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds 
the use, degradation, or destruction of which would affect or could 
affect interstate or foreign commerce including any such waters:
    (1) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (2) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (3) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters of the 
United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this definition;
    (f) The territorial sea; and
    (g) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) through (f) of this 
definition.
    Waste treatment systems, including treatment ponds or lagoons 
designed to meet the requirements of CWA (other than cooling ponds as 
defined in 40 CFR 423.11(m) which also meet the criteria of this 
definition) are not waters of the United States. Waters of the United 
States do not include prior converted cropland. Notwithstanding the 
determination of an area's status as prior converted cropland by any 
other federal agency, for the purposes of the Clean Water Act, the 
final authority regarding Clean Water Act jurisdiction remains with 
EPA.

Part X. State/Tribal Specific Conditions

    The provisions of this Part provide modifications or additions to 
the applicable conditions of Parts I through IX of this permit to 
reflect specific additional conditions identified as part of the State 
Section 401 or CZMA certification process or as otherwise established 
by the permitting authority. The additional revisions and requirements 
listed below are set forth in connection with particular State, Indian 
lands and Federal facilities and only apply to the States, Indian lands 
and Federal facilities specifically referenced.

Other conditions to be added as result of 401/CZMA certifications:

(To be added upon completion of certification processes. Added 
conditions will be specific to each State/Tribal area.)

Note on Addendum A

    Proposed Addendum A is a set of instructions for applicants to 
follow, including a State/County listing of endangered species that 
applicants can refer to, to ensure compliance with the eligibility 
terms and conditions of this proposed permit. The proposed instructions 
are included in this notice, however, the State/County listing of 
species of Addendum A is not included in this notice, but can be found 
in Addendum H to the Multi-Sector Storm Water General Permit published 
in the Federal Register on September 29, 1995 (60 FR 50804). EPA will 
prepare a final Addendum A species listing to accompany the issuance of 
the final permit after the public comment period. Reviewers wishing to 
make comment on the species listing in Addendum A for today's proposed 
permit may do so by reviewing the species listing in Addendum H of the 
Multi-Sector Permit.

Addendum A--Endangered Species Guidance

I. Instructions

    Below is a list of endangered and threatened species that EPA 
has determined may be affected by the activities covered by the 
baseline construction general permit (BCGP). These species are 
listed by county. In order to get BCGP coverage, applicants must:
     Indicate in box provided on the NOI whether any species 
listed in this Addendum or critical habitat are in proximity to the 
facility,
     Certify pursuant to Section I.B.3.e that they have 
followed the procedures found in Addendum A to protect listed 
endangered and threatened species and designated critical habitat and 
that the storm water discharges and BMPs to control storm water run off 
covered under this permit meet one or more of the eligibility 
requirements of Part I.B.3.e.(1) of this permit, while checking the 
box(es) that correspond to paragraph (a), (b), (c), (d), or (e) of Part 
I.B.3.e.(1) for which eligibility is claimed.
    To do this, please follow steps 1 through 6 below when 
developing the pollution prevention plan below.

Step 1: Determine if the Construction Site Is Found Within Designated 
Critical Habitat for Listed Species

    Some (but not all) listed species have designated critical 
habitat. Exact locations of such habitat is provided in the Service 
regulations at 50 CFR part 17 and part 226. To determine if their 
construction site occurs within (also known as ``in proximity to'') 
critical habitat, applicants should either review those regulations 
or contact the nearest Fish and Wildlife Service (FWS) and National 
Marine Fisheries Service (NMFS) Office. FWS has offices in every 
state. NMFS has regional offices in: Gloucester, Massachusetts; St. 
Petersburg, Florida; Long Beach, California; Portland, Oregon; and 
Juneau, Alaska.
    If the construction site is not located in designated critical 
habitat, then the applicant need not consider impacts to critical 
habitat when following steps 2 through 5. If the applicant's site is 
located within (i.e. in proximity to) critical habitat then the 
applicant most look at impacts to critical habitat when following 
steps 2 through 6.
    (EPA notes that many measures imposed to protect listed species 
under steps 2 through 6 will also protect critical habitat. However, 
obligations to ensure that an action is not likely to result in the 
destruction or adverse modification of critical habitat are separate 
from those of ensuring that an action is not likely to jeopardize 
the existence of threatened and endangered species. Thus, meeting 
the eligibility requirements of this permit may require measures to 
protect critical habitat that are separate and distinct from those 
to protect listed species.)

Step 2: Review the County Species List To Determine if any Species Are 
Located in the County Where the Construction Activities Occurs

    If no species are listed in a facility's county or if a 
facility's county is not found on the list, an applicant is eligible 
for BCGP coverage and may indicate in the NOI that no species are 
found in proximity and certify that it is eligible for BCGP coverage 
under Part I.B.3.e.(1)(a) of the permit by marking box a. in the 
certification provisions of the NOI. Where a facility is located in 
more than one county, the lists for all counties should be reviewed. 
If species are located in the county, follow step 3 below.

[[Page 29820]]

Step 3: Determine if any Species May Be Found ``In Proximity'' to the 
Construction Activity's Storm Water Discharges

    A species is in proximity to a construction activity's storm 
water discharge when the species is:
     Located in the path or immediate area through which or 
over which contaminated point source storm water flows from 
construction activities to the point of discharge into the receiving 
water.
     Located in the immediate vicinity of, or nearby, the 
point of discharge into receiving waters.
     Located in the area of a site where storm water BMPs 
are planned or are to be constructed.
    The area in proximity to be searched/surveyed for listed species 
will vary with the size and structure of the construction activity, 
the nature and quantity of the storm water discharges, and the type 
of receiving waters. Given the number of construction activities 
potentially covered by the BCGP, no specific method to determine 
whether species are in proximity is required for permit coverage 
under the BCGP. Instead, applicants should use the method or methods 
which best allow them to determine to the best of their knowledge 
whether species are in proximity to their particular construction 
activities. These methods may include:
     Conducting visual inspections: This method may be 
particularly suitable for construction sites that are smaller in 
size or located in non-natural settings such as highly urbanized 
areas or industrial parks where there is little or no natural 
habitat, or for construction activities that discharge directly into 
municipal storm water collection systems.
     Contacting the nearest State or Tribal Wildlife Agency 
or U.S. Fish and Wildlife Service (FWS) or National Marine Fisheries 
Service (NMFS) offices. Many endangered and threatened species are 
found in well-defined areas or habitats. That information is 
frequently known to State, Tribal, or Federal wildlife agencies.
     Contacting local/regional conservation groups. These 
groups inventory species and their locations and maintain lists of 
sightings and habitats.
     Conducting a formal biological survey. Larger 
construction sites with extensive storm water discharges may choose 
to conduct biological surveys as the most effective way to assess 
whether species are located in proximity and whether there are 
likely adverse effects.
     Conducting an Environmental Assessment Under the 
National Environmental Policy Act (NEPA) . Some construction 
activities may require environmental assessments under NAPA. Such 
assessments may indicate if listed species are in proximity. (BCGP 
coverage does not trigger NAPA because it does not regulate any 
dischargers subject to New Source Performance Standards under 
section 306 of the Clean Water Act. See CWA Sec. 511(c). However, 
some construction activities might require review under NEPA because 
of Federal funding or other Federal nexus.)
    If no species are in proximity, an applicant is eligible for 
BCGP coverage and may indicate that in the NOI and certify that it 
is eligible for BCGP coverage under Part I.B.3.E.(1)(a) of the 
permit by marking box a. in the certification provisions of the NOI.
    If listed species are found in proximity to a facility, 
applicants must indicate the location and nature of this presence in 
the Pollution Prevention Plan and follow step 4 below.

Step 4: Determine if Species or Critical Habitat Could Be Adversely 
Affected by the Construction Activity's Storm Water Discharges or by 
BMPS To Control Those Discharges

    Scope of Adverse Effects: Potential adverse effects from storm 
water include:
     Hydrological. Storm water may cause siltation, 
sedimentation or induce other changes in the receiving waters such 
as temperature, salinity or pH. These effects will vary with the 
amount of storm water discharged and the volume and condition of the 
receiving water. Where a storm water discharge constitutes a minute 
portion of the total volume of the receiving water, adverse 
hydrological effects are less likely.
     Habitat. Storm water may drain or inundate listed 
species habitat.
     Toxicity. In some cases, pollutants in storm water may 
have toxic effects on listed species.
    The scope of effects to consider will vary with each site. 
Applicants must also consider the likelihood of adverse effects on 
species from any BMPs to control storm water. Most adverse impacts 
from BMPs are likely to occur from the construction activities. 
However, it is possible that the operation of some BMPs (for 
example, larger storm water retention ponds) may affect endangered 
and threatened species.
    If adverse effects are not likely, then the applicant should 
certify that it is eligible for BCGP coverage under Part 
I.B.3.e(1)(a) of the permit by marking box a. in the certification 
provisions of the NOI. If adverse effects are likely, applicants 
should follow step 5 below.

Step 5: Determine if Measures Can Be Implemented To Avoid any Adverse 
Effects

    If an applicant determines that adverse effects are likely, it 
can receive coverage if appropriate measures are undertaken to avoid 
or eliminate any actual or potential adverse affects prior to 
applying for permit coverage. These measures may involve relatively 
simple changes to construction activities such as re-routing a storm 
water discharge to bypass an area where species are located, 
relocating BMPs, or limiting the size of construction activity that 
will be subject to storm water discharge controls.
    At this stage, applicants may wish to contact the FWS and/or 
NMFS to see what appropriate measures might be suitable to avoid or 
eliminate adverse impacts to listed species and/or critical habitat. 
(See 50 CFR 402.13(b)). This can entail the initiation of informal 
consultation with the FWS and/or NMFS which is described in more 
detail below at Step Six.
    If applicants adopt measures to avoid or eliminate adverse 
affects, they must continue to abide by them during the course of 
permit coverage. These measures must be described in the pollution 
prevention plan and may be enforceable as permit conditions.
    If appropriate measures to avoid the likelihood of adverse 
effects are not available to the applicant, the applicant should 
follow Step 6 below.

Step 6: Determine if the Eligibility Requirements of Part I.B.3.E.(1) 
(b)-(e) Can Be Met

    Where adverse effects are likely, the applicant must contact the 
EPA and FWS/NMFS. Applicants may still be eligible for BCGP coverage 
if any likelihood of adverse effects are addressed through meeting 
the criteria of Part I.B.3.e.(1)(b)-(e) of the permit. To do so the 
applicant may:
     I.B.3.e.(1)(b). The applicant's activity has received 
previous authorization through an earlier section 7 consultation or 
issuance of a ESA section 10 permit (incidental taking permit) and 
that authorization addressed storm water discharges and/or BMPs to 
control storm water runoff. (e.g., developer included impact of 
entire project in consultation over a wetlands dredge and fill 
permit under Section 7 of the Endangered Species Act). If the 
applicant is eligible for coverage under this criteria, it should 
indicate this by marking box (b) of the certification provisions.
     I.B.3.e.(1)(c). The applicant's activity was considered 
as part of a larger, more comprehensive assessment of impacts on 
endangered and threatened species and/or critical habitat under 
section 7 or section 10 of the Endangered Species Act that which 
accounts for storm water discharges and BMPs to control storm water 
runoff (e.g., where a area-wide habitat conservation plan and 
section 10 permit is issued which addresses impacts from 
construction activities including those from storm water or a NEPA 
review is conducted which incorporates ESA section 7 procedures). If 
the applicant is eligible for coverage under this criteria, it 
should indicate this by marking box (c) of the certification 
provisions.
     I.B.3.e.(1)(d). Enter section 7 consultation with the 
FWS and/or NMFS for the applicant's storm water discharges and BMPs 
to control storm water runoff.
    In such cases, EPA automatically designates the applicant as a 
non-federal representative. See I.B.3.e.(4). When conducting section 
7 consultation as a non-federal representative, applicants should 
follow the procedures found in 50 CFR 402 the ESA regulations. 
Applicants must also notify EPA and the appropriate FWS/NMFS office 
of its intention to conduct consultation as a non-federal 
representative.
    Coverage by the BCGP is permissible under Part I.B.3.E.(1)(b) if 
the consultation results in either: (1) FWS/NMFS written concurrence 
with a finding of no likelihood of adverse effects (see 50 CFR 
402.13) or (2) issuance of a biological opinion in which FWS and/or 
NMFS finds that the action is not likely to jeopardize the continued 
existence of listed endangered threatened species or result in the 
adverse modification or destruction of adverse habitat (see 50 CFR 
403.14(h)).
    Any terms and conditions developed through consultations to 
protect listed species and critical habitat must be incorporated 
into the pollution prevention

[[Page 29821]]

plan. As noted above, applicants may, if they wish, initiate 
consultation during Step Five above (upon becoming aware that 
endangered and threatened species are in proximity to the facility).
    If the applicant is eligible for coverage under this criteria, 
it should indicate this by marking box (d) of the certification 
provisions.
     I.B.3.e.(1)(e). The applicant's activity was considered 
as part of a larger, more comprehensive site-specific assessment of 
impacts on endangered and threatened species by the owner or other 
operator of the site when it developed a SWPPP and that permittee 
certified eligibility under items I.B.3.e.(1)(a), (b), (c), or (d) 
of the permit (e.g. owner was able to certify no adverse impacts for 
the project as a whole under item (a), so contractor can then 
certify under item (e)). Utility companies applying for area-wide 
permit coverage may certify under item (e) since authorization to 
discharge is contingent on a principal operator of a construction 
project having been granted coverage under this, or an alternative 
NPDES permit for the areas of the site where utilities installation 
activities will occur.
    If the applicant is eligible for coverage under this criteria, 
it should indicate this by marking box (e) of the certification 
provisions.
    The applicant must comply with any terms and conditions imposed 
under the eligibility requirements of paragraphs I.B.3.e.(1)(a), 
(b), (c), (d), (e) to ensure that storm water discharges or BMPs to 
control storm water runoff are protective of listed endangered and 
threatened species and/or critical habitat. Such terms and 
conditions must be incorporated in the applicant's storm water 
pollution prevention plan.
    If the eligibility requirements of Part I.B.3.e.(1)(a)-(e) 
cannot be met then the applicant may not receive coverage under the 
BCGP. Applicants should then consider applying to EPA for an 
individual permit.
    This permit does not authorize any ``taking'' (as defined under 
section 9 of the Endangered Species Act) of endangered or threatened 
species unless such takes are authorized under sections 7 or 10 the 
Endangered Species Act. Applicants who believe their construction 
activities may result in takes of listed endangered and threatened 
species should be sure to get the necessary coverage for such takes 
through an individual consultation or section 10 permit.
    This permit does not authorize any storm water discharges or 
BMPs to control storm water runoff that are likely to jeopardize the 
continued existence of any species that are listed as endangered or 
threatened under the Endangered Species Act or result in the adverse 
modification or destruction of designated critical habitat.

II. Endangered Species County-by-County List

    (See Addendum H to the Multi-Sector Storm Water General Permit 
published in the Federal Register on September 29, 1995 (60 FR 
50804).

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[FR Doc. 97-14191 Filed 5-30-97; 8:45 am]
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