[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Notices]
[Pages 35054-35057]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16897]



[[Page 35053]]

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Part X





Environmental Protection Agency





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Draft National Pollutant Discharge Elimination System (NPDES) General 
Permit for Storm Water Discharges From Construction Activities That Are 
Classified as Associated With Industrial Activity; Notice

  Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / 
Notices  

[[Page 35054]]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5848-9]


Draft National Pollutant Discharge Elimination System (NPDES) 
General Permit for Storm Water Discharges From Construction Activities 
That Are Classified as Associated With Industrial Activity

AGENCY: Environmental Protection Agency (EPA).

ACTION: Amendment to the notice of draft NPDES general permit 
reissuance for storm water discharges from construction activities that 
are classified as associated with industrial activity.

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SUMMARY: Today's notice is an amendment to the notice of draft NPDES 
general permit reissuance for storm water discharges from construction 
activities that are classified as associated with industrial activity, 
which was published on April 16, 1997 (62 FR 18605). The draft general 
permit reissuance is being amended to include Indian country lands in 
Part I.A. of the permit, to expand the eligibility in Part I.B., to 
change the requirements of the contents of the Notice of Intent in 
accordance with the national NOI (this will precipitate a change in 
Appendix C), to revise the renewal requirements in Part VII.B, to 
correct a typographical error in the fact sheet, to update the Region 4 
mailing address and to extend the comment permit for the draft general 
permit reissuance.

DATES: Comments relative to the draft permit, or this amendment, are 
not required; however, if you wish to submit comments, the comments 
must be received by August 26, 1997.

ADDRESSES: Persons wishing to comment upon or object to any aspects of 
this permit reissuance, or this amendment, or wishing to request a 
public hearing, are invited to submit the same in writing within sixty 
(60) days of this notice to the Office of Environmental Assessment, 
United States Environmental Protection Agency, Region 4, Atlanta 
Federal Center, 61 Forsyth Street, SW., Atlanta, GA 30303-3104, 
Attention: Ms. Lena Scott.

FOR FURTHER INFORMATION CONTACT: Mr. Floyd Wellborn, telephone number 
(404) 562-9296, or Mr. Michael Mitchell, telephone number (404) 562-
9303, or at the following address: United States Environmental 
Protection Agency, Region 4, Water Management Division, Surface Water 
Permits Section, Atlanta Federal Center, 61 Forsyth Street, S.W., 
Atlanta, GA 30303-3104.

SUPPLEMENTARY INFORMATION:

Procedures for Reaching a Final Permit Decision

    Pursuant to 40 CFR 124.13, any person who believes any condition of 
the permit is inappropriate must raise all reasonably ascertainable 
issues and submit all reasonably available arguments in full, 
supporting their position, by the close of the comment period. All 
comments on the proposed NPDES general permit received within the 60-
day period will be considered in the formulation of final 
determinations regarding the permit reissuance.
    After consideration of all written comments and the requirements 
and policies in the Act and appropriate regulations, the EPA Regional 
administrator will make determinations regarding the general permit 
reissuance. If the determinations are substantially unchanged from 
those announced by this notice, the Administrator will so notify all 
persons submitting written comments. If the determinations are 
substantially changed, the Administrator will issue a public notice 
indicating the revised determinations.
    A formal hearing is available to challenge any NPDES permit issued 
according to the regulations at 40 CFR 124.15 except for a general 
permit as cited by 40 CFR 124.71. Persons affected by a general permit 
may not challenge the conditions of a general permit as a right in 
further Agency proceedings. They may instead either challenge the 
general permit in court, or apply for an individual permit as specified 
at 40 CFR 122.21 as authorized at 40 CFR 122.28, and then request a 
formal hearing on the issuance or denial of an individual permit.

Administrative Record

    The proposed NPDES general permit, fact sheet and other relevant 
documents are on file and may be inspected any time between 9 a.m. and 
4 p.m., Monday through Friday at the address shown below. Copies of the 
draft NPDES general permit, fact sheet or other relevant documents may 
be obtained by writing the United States Environmental Protection 
Agency, Region 4, Atlanta Federal Center, 61 Forsyth Street, S.W., 
Atlanta, GA 30303-3104, Attention: Ms. Lena Scott.

Revised Draft NPDES Permits for Storm Water Discharges From 
Construction Activities That are Classified as Associated With 
Industrial Activity

Part I. Coverage Under This Permit

A. Permit Area
    The permit, except the parts listed below, covers all areas 
administered by Region 4:

All Indian Country Lands within the State of Alabama, except Part IV 
and Part V.D.2.a.(1), NPDES Permit No. ALR10 *##I
State of Florida, excluding Indian lands, NPDES Permit No. FLR10 *###
All Indian Country Lands within the State of Florida, except Part IV 
and Part V.D.2.a.(1), NPDES Permit No. FLR10 *##I
All Indian Country Lands within the State of Mississippi, except Part 
IV and Part V.D.2.a.(1), NPDES Permit No. MSR10 *##I
All Indian Country Lands within the State of North Carolina, except 
Part IV and Part V.D.2.a.(1), NPDES Permit No. NCR10 *##I
All Indian Country Lands within the State of South Carolina, except 
Part IV and Part V.D.2.a.(1), NPDES Permit No. SCR10 *##I
B. Eligibility
* * * * *
    1. This permit may authorize all discharges identified in the 
pollution prevention plan of storm water associated with industrial 
activity from construction sites, (those sites or common plans of 
development or sale, including unpaved roads, that will result in the 
disturbance of five or more acres total land area or less than five 
acres if the Director designates the site),1 (henceforth 
referred to as storm water discharges from construction activities) 
occurring after the effective date of this permit (including discharges 
occurring after the effective date of this permit where the 
construction activity was initiated before the effective date of this 
permit), except for discharges identified under paragraph I.B.3.
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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. (Nos. 90-70671 
and 91-70200). Section 402(p)(2)(E) of the Clean Water Act shall be 
used as a basis for any designations.
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* * * * *
    3.e. Storm water discharges from construction sites if the 
discharges may adversely affect a listed or proposed to be listed 
endangered or threatened species or its critical habitat;
    (1) A discharge of storm water associated with construction 
activity

[[Page 35055]]

may be covered under this permit only if the applicant certifies that 
they meet at least one of the following criteria. Failure to continue 
to meet one of these criteria during the term of the permit will result 
in the storm water discharges associated with construction 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 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 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 
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 ``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 of 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.
* * * * *
    g. Storm water discharges that would affect a property that is 
listed or is eligible for listing in the National Historic Register 
maintained by the Secretary of Interior may be in violation of the 
National Historic Preservation Act. A discharge of storm water 
associated with construction activity may be covered under this permit 
only if the applicant certifies that either:
    (1) The storm water discharge(s), and the construction and 
implementation of BMPs to control storm water runoff, do not affect a 
property that is listed or is eligible for listing in the National 
Historic Register maintained by the Secretary of Interior; or,
    (2) 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
    (3) The applicant has obtained and is in compliance with a written 
agreement between the applicant and the SHPO or THPO that outlines all 
measures to be undertaken by the applicant to mitigate or prevent 
adverse effects to the historic property; or
    (4) 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 or THPO that outlines all 
measures to be undertaken by operators on the site to mitigate or 
prevent adverse effects to the historic property; or
    (5) 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 item (1), (2), (3), or (4) above. 
Utility companies applying for permit coverage for the entire 
construction site may certify under item (4) 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.
* * * * *

Part II.B. Contents of Notice of Intent

* * * * *
    The contents of the notice of intent are published in the June 2, 
1997 Federal Register (62 FR 29785).
    8. 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). The applicant shall also submit a copy of the cover page 
of the State permit issued by FDEP or a FWMD to the facility for the 
storm water associated with construction activity.
    9. 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.
    10. 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.

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    11. 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 Appendix C.''
    ``To the best of my knowledge the discharges covered under this 
permit, and the construction and operation of BMPs to control storm 
water runoff, are not likely to adversely affect any species 
identified in Addendum A of this permit, or are otherwise eligible 
for coverage under this permit, in accordance with Part I.B.3.e of 
the permit, due to previous authorization under the Endangered 
Species Act, or agreement to implement protective measures required 
by the Director as a condition of eligibility.''
    ``I further certify, to the best of my knowledge, that such 
discharges, and construction 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.''
* * * * *

Part VII. Standard Permit Conditions

B. Continuation of the Expired General Permit
    This permit expires at midnight 5 years from the effective date of 
the permit. However, an expired general permit continues in force and 
effect until a new general permit is issued. Only those facilities 
authorized to discharge under the expiring general permit are covered 
by the continued permit. Upon reissuance of a new general permit, the 
permittee is required to notify the permit issuing authority of the 
intent to be covered by the new general permit by use of the NOI 
requirements of the reissued permit, unless otherwise noted in the 
reissued permit. These requirements are discussed in Part II of this 
general permit.
    Facilities that have not obtained coverage under this permit by the 
expiration date of this permit cannot become authorized to discharge 
under the continued permit. The authorization to discharge under the 
continued permit expires 90 days from the effective date of this 
permit.
* * * * *

Part X. Definitions

    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).
Beverly H. Banister,
Acting Director, Water Management Division.

Draft NPDES Permits for Storm Water Discharges From Construction 
Activities That Are Classified as ``Associated With Industrial 
Activity''; Fact Sheet

    Today's notice is an amendment to the notice of draft NPDES general 
permit reissuance for storm water discharges from construction 
activities that are classified as associated with industrial activity 
(62 FR 18605). The draft general permit reissuance is being amended to 
include Indian country lands in Part I.A. of the permit. This includes 
the Catawba Indian Nation in South Carolina, Eastern Band of Cherokee 
Indians in North Carolina, the Miccosukee Tribe of Indians of Florida, 
the Mississippi Band of Choctaw Indians, the Poarch Band of Creek 
Indians in Alabama, and the Seminole Tribe of Florida. The amendment 
expands the eligibility in Part I.B. to include discharges of storm 
water from construction sites less than five acres in accordance with 
40 CFR 122.26(a)(v). The determination of inclusion for construction 
sites less than five acres will be on a case by case basis. Part I.B.e. 
and the NOI contents requirements in Part II.B. are also being changed 
in accordance with the provisions of the National General Permit for 
the Discharge of Storm Water from Construction Activities published in 
the June 2, 1997 Federal Register (62 FR 29785). Part I.B.g. has been 
included in the permit to exclude facilities that would affect a 
property that is listed or is eligible for listing in the National 
Historic Register maintained by the Secretary of Interior may be in 
violation of the National Historic Preservation Act. This provision was 
inadvertently omitted from the original draft published in the April 
16, 1997 Federal Register (62 FR 18605). Part VII.B. is being amended 
to allow coverage under a continued permit for facilities that are 
covered under the permit upon its expiration without having to submit 
an NOI until the reissued general permit is finalized. This change is 
to reduce administrative burden on the permittees by not requiring an 
NOI to be submitted for continued coverage and then another NOI for 
coverage under the reissued permit.
    The April 16, 1997 notice of the proposed general permit is being 
amended to extend the comment permit for the draft general permit 
reissuance. Persons wishing to comment upon or object to any aspects of 
this permit reissuance or wishing to request a public hearing, are 
invited to submit the same in writing within sixty (60) days of this 
notice to the Office of Environmental Assessment, United States 
Environmental Protection Agency, Region 4, Atlanta Federal Center, 61 
Forsyth Street, S.W., Atlanta, GA 30303-3104, Attention: Ms. Lena 
Scott. The fact sheet published in the April 16, 1997 Federal Register 
is being changed, as follows, to correct a typographical error 
regarding the effective date of the permit and the deadlines for 
submission of the NOI:

    Dates: These general permits are proposed to become effective on 
the first day of the month following the publication of the final 
issued permit in the Federal Register. Deadlines for submittal of 
Notices of Intent to be authorized to discharge under these permits are 
as follows:
    (1) On or before September 25, 1997, for storm water discharges 
associated with industrial activity from construction sites where 
disturbances associated with a construction project occur on or before 
September 25, 1997, and final stabilization is completed after 
September 25, 1997;
    (2) For storm water discharges associated with industrial activity 
from construction sites where disturbances associated with a 
construction project do not occur until after September 25, 1997, at 
least 2 days prior to the commencement of construction; and
    (3) For storm water discharges associated with industrial activity 
from construction sites where the original permittee at the site 
changes or an additional operator submits an NOI for coverage as a 
copermittee, a new NOI shall be submitted at least 2 days prior to when 
the new operator commences work at the site. The final general permits 
provide additional dates for compliance with the terms of the permit.

[[Page 35057]]

Appendix C--Endangered Species Guidance

I. Instructions

    A list of species that EPA has determined may be affected by the 
activities covered by the construction general permit will be 
included in the final issued permit. These species will be listed by 
county. In order to get construction general permit coverage, 
applicants must:
     Certify by signing the NOI whether any species listed 
in this Addendum are in proximity to the facility, and
     Certify pursuant to Section I.B.3.e. of the 
construction general permit that their storm water discharges, and 
BMPs constructed to control storm water runoff, are not likely, and 
will not be likely to adversely affect species identified in 
Addendum H of this permit.
    To do this, please follow steps 1 through 4 below.

Step 1: Review the County Species List To Determine if any Species 
Are Located in the Discharging Facility County

    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 construction general permit coverage and may indicate by signing 
the NOI that no species are found in proximity which provides the 
necessary certification. If species are located in the county, 
follow step 2 below. Where a facility is located in more than one 
county, the lists for all counties should be reviewed.

Step 2: Determine if any Species May Be Found ``In Proximity'' To 
the Facility

    A species is in proximity to a facility'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 
industrial 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 of the facility, the nature and quantity of 
the storm water discharges, and the type of receiving waters. Given 
the number of facilities potentially covered by the construction 
general permit, no specific method to determine whether species are 
in proximity is required for permit coverage under the construction 
general permit. 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 facility. These 
methods may include:
     Conducting visual inspections: This method may be 
particularly suitable for facilities that are smaller in size, 
facilities located in non-natural settings such as highly urbanized 
areas or industrial parks where there is little or no nature 
habitat; and facilities that discharge directly into municipal storm 
water collection systems. For other facilities, a visual survey of 
the facility site and storm water drainage areas may be insufficient 
to determine whether species are likely to be located in proximity 
to the discharge.
     Contacting the nearest State 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 or federal wildlife agencies. FWS has offices in every 
state. For Florida, the offices are located in Panama City, 
Jacksonville, and Vero Beach. NMFS has a regional offices in St. 
Petersburg, Florida.
     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 
facilities 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.
    If no species are in proximity, an applicant is eligible for 
construction general permit coverage and may indicate that in the 
NOI and provide the necessary certification. If listed species are 
found in proximity to a facility, applicants must follow step 3 
below.

Step 3: Determine if Species Could Be Adversely Affected by the 
Facility'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.
    Using earlier ESA authorizations for construction general permit 
eligibility: In some cases, a facility may be eligible for 
construction general permit coverage because actual or potential 
adverse affects were addressed or discounted through an earlier ESA 
authorization. Examples of such authorization include:
     An earlier ESA Section 7 consultation for that 
facility.
     A Section 10(a) permit issued for the facility.
     An area-wide Habitat Conservation Plan applicable to 
that facility.
     A clearance letter from the Services (which discounts 
the possibility of an adverse impacts from the facility).
    In order for applicants to use an earlier ESA authorization to 
meet eligibility requirements: (1) The authorization must adequately 
address impacts for storm water discharges and BMPs from the 
facility on endangered and threatened species, (2) it must be 
current because there have been no subsequent changes in facility 
operations or circumstances which might impact species in ways not 
considered in the earlier authorization, and (3) the applicant must 
comply with any requirements from those authorizations to avoid or 
mitigate adverse effects to species. Applicants who wish to pursue 
this approach should carefully review documentation for those 
authorizations ensure that the above conditions are met.
    If adverse effects are not likely, an applicant is eligible for 
construction general permit coverage and may indicate in the NOI 
that species are found in proximity and provide the necessary 
certification. If adverse effects are likely, follow step 4 below.

Step 4: 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 facility operations such as re-routing a storm 
water discharge to bypass an area where species are located.
    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 species.
    If applicants adopt these measures, they must continue to abide 
by them during the course of permit coverage.
    If appropriate measures are not available, the applicant is not 
eligible at that time for coverage under the construction general 
permit. Applicants should contact the appropriate EPA regional 
office about either:
     Entering into Section 7 consultation in order to obtain 
construction general permit coverage, or
     Obtaining an individual NPDES storm water permit.

[FR Doc. 97-16897 Filed 6-26-97; 8:45 am]
BILLING CODE 6560-50-P