[Federal Register Volume 73, Number 135 (Monday, July 14, 2008)]
[Notices]
[Pages 40338-40343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15829]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8690-8; EPA-HQ-OW-2008-0238]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit issuance.

-----------------------------------------------------------------------

SUMMARY: EPA Regions 1, 3, 6, 7, 8, 9, and 10 today are issuing their 
2008 National Pollutant Discharge Elimination System general permits 
for stormwater discharges from new dischargers engaged in large and 
small construction activities. Hereinafter, these NPDES general permits 
will be referred to as ``permit'' or ``2008 construction general 
permit'' or ``2008 CGP.'' ``New dischargers'' are those who did not 
file a notice of intent (``NOI'') to be covered under the 2003 
construction general permit (``2003 CGP'') before it expired. Existing 
dischargers who properly filed an NOI to be covered under the 2003 CGP 
continue to be authorized to discharge under that permit according to 
its terms. The 2008 CGP contains the same limits and conditions as the 
Agency's 2003 CGP with the exception of a few minor modifications which 
are detailed below. EPA is issuing this CGP for a period not to exceed 
two (2) years and will make the permit available to new construction 
activities and unpermitted ongoing activities only.

DATES: This permit shall be effective on June 30, 2008. This effective 
date is necessary to provide dischargers with the immediate opportunity 
to comply with Clean Water Act requirements in light of the expiration 
of the 2003 CGP on July 1, 2008. In accordance with 40 CFR Part 23, 
this permit shall be considered issued for the purpose of judicial 
review on July 28, 2008. Under section 509(b) of the Clean Water Act, 
judicial review of this general permit can be had by filing a petition 
for review in the United States Court of Appeals within 120 days after 
the permit is considered issued for purposes of judicial review. Under 
section 509(b)(2) of the Clean Water Act, the requirements in this 
permit may not be challenged later in civil or criminal proceedings to 
enforce these requirements. In addition, this permit may not be 
challenged in other agency proceedings. Deadlines for submittal of 
notices of intent are provided in Part 2.3 of the permit. This permit 
also provides additional dates for compliance with the terms of these 
permits.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Water Permits Division, 
Office of Wastewater Management (Mail Code: 4203M), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., EPA East, Washington, 
DC 20460; telephone number: (202) 564-0721; fax number: (202) 564-6431; 
e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    If a discharger chooses to apply to be authorized to discharge 
under the 2008 construction general permit (``2008 CGP''), the permit 
provides specific requirements for preventing contamination of 
stormwater discharges from the following construction activities:

[[Page 40339]]



------------------------------------------------------------------------
                                                               North
                                                             American
                                   Examples of affected      Industry
            Category                     Entities         Classification
                                                          System (NAICS)
                                                               code
------------------------------------------------------------------------
Industry.......................   Construction site operators disturbing
                                   1 or more acres of land, or less than
                                    1 acre but part of a larger common
                                    plan of development or sale if the
                                    larger common plan will ultimately
                                  disturb 1 acre or more, and performing
                                         the following activities:
                                ----------------------------------------
                                 Building, Developing                233
                                  and General
                                  Contracting.
                                 Heavy Construction.....             234
------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your facility is affected by this action, you 
should carefully examine the definition of ``construction activity'' 
and ``small construction activity'' in existing EPA regulations at 40 
CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have 
questions regarding the applicability of this action to a particular 
entity, consult the person listed for technical information in the 
preceding FOR FURTHER INFORMATION CONTACT section.
    Eligibility for coverage under the 2008 CGP is limited to operators 
of ``new projects'' or ``unpermitted ongoing projects.'' A ``new 
project'' is one that commences after the effective date of the 2008 
CGP. An ``unpermitted ongoing project'' is one that commenced prior to 
the effective date of the 2008 CGP, yet never received authorization to 
discharge under the 2003 CGP or any other NPDES permit covering its 
construction-related stormwater discharges. This permit is effective 
only in those areas where EPA is the permitting authority. A list of 
eligible areas is included in Appendix B of the 2008 CGP.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2008-0238. Publicly available 
docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Water Docket in the EPA 
Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC 20460. Publicly available docket materials are 
available in hard copy at the EPA Docket Center Public Reading Room, 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/. Electronic versions of the 
final permit and fact sheet are available at EPA's stormwater Web site 
http://www.epa.gov/npdes/stormwater.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov/fdmspublic/component/main 
to view public comments, access the index listing of the contents of 
the official public docket, and to access those documents in the public 
docket that are available electronically. Once in the system, select 
``search'', then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.B.1.
    Response to public comments. EPA received 9 comments on the 
proposed permit from industry (7), state government (1), and the public 
(1). EPA has responded to all significant comments received and has 
included these responses in a separate document in the public docket 
for this permit. See the document titled Proposed 2008 CGP: EPA's 
Response to Public Comments.

C. Who Are The EPA Regional Contacts for This Permit?

    For EPA Region 1, contact Thelma Murphy at tel.: (617) 918-1615 or 
e-mail at [email protected].
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or e-mail at [email protected], or for Puerto Rico, contact 
Sergio Bosques at tel.: (787) 977-5838 or e-mail at 
[email protected].
    For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 
or e-mail at [email protected].
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at [email protected].
    For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or 
e-mail at: [email protected].
    For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or 
e-mail at: [email protected].
    For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-
mail at: [email protected].
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
e-mail at [email protected].
    For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or 
e-mail at [email protected].

II. Background of Permit

A. Statutory and Regulatory History.

    The Clean Water Act (``CWA'') establishes a comprehensive program 
``to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' 33 U.S.C. 1251(a). The CWA also 
includes the objective of attaining ``water quality which provides for 
the protection and propagation of fish, shellfish and wildlife.'' 33 
U.S.C. 1251(a)(2)). To achieve these goals, the CWA requires EPA to 
control discharges through the issuance of National Pollutant Discharge 
Elimination System (``NPDES'') permits.

[[Page 40340]]

    Section 405 of the Water Quality Act of 1987 (WQA) added section 
402(p) of the Clean Water Act (CWA), which directed EPA to develop a 
phased approach to regulate stormwater discharges under the NPDES 
program. EPA published a final regulation in the Federal Register on 
the first phase of this program on November 16, 1990, establishing 
permit application requirements for ``storm water discharges associated 
with industrial activity.'' See 55 FR 47990. EPA defined the term 
``storm water discharge associated with industrial activity'' in a 
comprehensive manner to cover a wide variety of facilities. 
Construction activities, including activities that are part of a larger 
common plan of development or sale, that ultimately disturb at least 
five acres of land and have point source discharges to waters of the 
U.S. were included in the definition of ``industrial activity'' 
pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the stormwater program 
was published in the Federal Register on December 8, 1999, and required 
NPDES permits for discharges from construction sites disturbing at 
least one acre, but less than five acres, including sites that are part 
of a larger common plan of development or sale that will ultimately 
disturb at least one acre but less than five acres, pursuant to 40 CFR 
122.26(b)(15)(i). See 64 FR 68722. EPA is issuing the 2008 CGP under 
the statutory and regulatory authority cited above.
    NPDES permits issued for construction stormwater discharges are 
required under Section 402(a)(1) of the CWA to include conditions for 
meeting technology-based effluent limits established under Section 301 
and, where applicable, Section 306. Once an effluent limitations 
guideline or new source performance standard is promulgated in 
accordance with these sections, NPDES permits are required to 
incorporate limits based on such limitations and standards. See 40 CFR 
122.44(a)(1). Prior to the promulgation of national effluent 
limitations and standards, permitting authorities incorporate 
technology-based effluent limitations on a best professional judgment 
basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

B. Summary of Permit

    Construction operators choosing to be covered by the 2008 CGP must 
certify in their notice of intent (NOI) that they meet the requisite 
eligibility requirements, described in Part 1.3 of the permit. If 
eligible, operators are authorized to discharge under this permit in 
accordance with Part 2. Permittees must install and implement control 
measures to meet the effluent limits applicable to all dischargers in 
Part 3, and must inspect such stormwater controls and repair or modify 
them in accordance with Part 4. The permit in Part 5 requires all 
construction operators to prepare a stormwater pollution prevention 
plan (SWPPP) that identifies all sources of pollution, and describes 
control measures used to minimize pollutants discharged from the 
construction site. Part 6 details the requirements for terminating 
coverage under the permit.
    The 2008 CGP is effective for a period of not to exceed two years. 
The 2008 CGP includes conditions and limits that are nearly identical 
to the 2003 CGP, with the exception that the 2008 CGP only applies to 
new and unpermitted ongoing construction projects. Discharges from 
ongoing projects (or ``existing dischargers'') will continue to be 
covered under the existing 2003 CGP. (However, EPA clarifies that if an 
operator of a permitted ongoing project transfers ownership of the 
project, or a portion thereof, to a different operator, that subsequent 
operator is required to submit a complete and accurate NOI for a new 
project under the 2008 CGP.) Although the existing permit expired on 
July 1, 2008, dischargers who filed notices of intent (NOIs) to be 
authorized under that permit prior to the expiration date will continue 
to be authorized to discharge in accordance with EPA's regulations at 
40 CFR 122.6. The 2008 CGP only applies to dischargers who were not 
authorized under the 2003 CGP, which includes both ``new projects'' and 
``unpermitted ongoing projects.'' Operators of new projects or 
unpermitted ongoing projects seeking coverage under the 2008 CGP would 
be expected to use the same electronic Notice of Intent (eNOI) system 
that is currently in place for the 2003 CGP.
    The other significant difference between the 2003 and 2008 CGPs is 
that this permit has been reorganized so that it is clearer which 
requirements are effluent limitations, which are inspection 
requirements, and which are SWPPP documentation requirements. As a 
result, the 2008 CGP now includes new sections (Part 3--Effluent 
Limits, Part 4--Inspections, and Part 5--Stormwater Pollution 
Prevention Plans) reflecting this reorganization. However, EPA 
emphasizes that although the requirements in the 2008 CGP have been 
placed in different sections, the requirements are substantially the 
same as they were in the 2003 CGP. The reorganized permit will be 
discussed further in Section III.B, Summary of Significant Changes from 
the 2003 CGP.

C. What Is EPA's Rationale for the Two-Year Duration of the 2008 CGP?

    As stated, EPA is issuing the 2008 CGP for a period not to exceed 
two years. As a result of recent litigation brought against EPA 
concerning the promulgation of effluent limitations guidelines and 
standards for the construction and development (``C&D'') industry, EPA 
is required by court order to propose effluent limitations guidelines 
and new source performance standards (hereinafter, ``effluent 
guidelines'') for the C&D industry by December 2008, and promulgate 
those effluent guidelines by December 2009. See Natural Resources 
Defense Council, et al. v. U.S. Environmental Protection Agency, No. 
CV-0408307-GH (C.D. Cal.) (Permanent Injunction and Judgment, December 
5, 2006). EPA projects that the Agency may publish a proposed rule 
ahead of the court-ordered deadlines. If EPA publishes the proposed 
rule ahead of schedule, this may allow the Agency to promulgate a final 
rule ahead of schedule as well. The Agency currently hopes to 
promulgate a final rule as early as the end of this calendar year. 
However, completion of the tasks necessary to do so is dependent on the 
timing of numerous future activities and factors associated with the 
effluent guidelines rulemaking process.
    EPA believes it will be appropriate to propose a revised CGP once 
EPA has issued C&D effluent guidelines. The maximum two-year duration 
for this permit is intended to coincide with the court-ordered 
deadlines for the C&D rule. EPA intends to propose and finalize a new, 
revised CGP sooner, if the C&D rule is promulgated earlier than the 
date directed by the court.

D. Why Is EPA Using Requirements That Are Nearly Identical to the 2003 
CGP?

    The expiration of the 2003 CGP on July 1, 2008, made it incumbent 
upon EPA to make available a similar general permit that provided 
coverage for the estimated 4,000 new dischargers per year commencing 
construction in the areas where EPA is the permitting authority. 
Without such a permit vehicle, the only other available option for 
construction site operators is to obtain coverage under an individual 
permit. As has been described in the past, issuance of individual 
permits for every construction activity disturbing one acre or more is 
infeasible given the resources required for the Agency to issue 
individual permits. EPA is issuing a CGP that adopts the same limits 
and conditions as the previous permit (the 2003 CGP) for a limited 
period of time. This action is appropriate for several

[[Page 40341]]

reasons. First, as discussed above, EPA is working on the development 
of a new effluent guideline that will address stormwater discharges 
from the same industrial activities (i.e., construction activities 
disturbing one or more acres) as the CGP. Because the development of 
the C&D rule and the issuance of the CGP are on relatively similar 
schedules, and the C&D rule will establish national technology-based 
effluent limitations and standards for construction activities, EPA 
believes that it is more appropriate to proceed along two tracks to 
permit construction discharges. The first track entails issuing the 
2008 CGP for a limited period of time, not to exceed 2 years, that 
contains the 2003 CGP limits and conditions, but for only operators of 
new and unpermitted ongoing projects, so that such entities can obtain 
valid permit coverage for their discharges. The second track involves 
proposing and issuing a revised 5-year CGP that incorporates the 
requirements of the new C&D rule shortly after the rule is promulgated.
    Second, EPA believes that issuing a substantially revised CGP by 
July 1, 2008, would have been impracticable given the number of 
unknowns concerning the outcome of the C&D rule. EPA does not believe 
that it would be appropriate to issue a permit containing technology-
based limitations that would be outdated so quickly, given the fact 
that the C&D rule may be promulgated only a few months after permit 
issuance. For similar reasons, if EPA had attempted to approximate the 
requirements of the new C&D rule and incorporate such limits into a new 
CGP, such a permit would presuppose the outcome of the C&D rule and 
potentially conflict with the scope and content of the effluent 
limitation guideline prior to full consideration of public comments. 
Instead, the Agency believes it is a much better use of Agency 
resources to wait the short time until after the C&D rule promulgation 
to issue a revised CGP that is fully reflective of the new effluent 
limitation guideline. In the meantime, during this relatively short 
period of time prior to the C&D rule's promulgation and prior to the 
issuance of the revised CGP that incorporates those standards, EPA is 
using the permit limits and conditions from the 2003 CGP as an 
effective vehicle to control new discharges. EPA notes that it has 
minimized the amount of time during which the 2008 CGP will remain 
effective in order to underscore the Agency's intention to issue a 
revised CGP once the C&D rule is finalized.
    Third, EPA found the alternative of allowing the 2003 CGP to expire 
without a replacement, relying instead on an enforcement discretion 
approach prior to the issuance of the next permit (similar to the 
practice used for the NPDES Multi-Sector General Permit (MSGP) for 
stormwater discharges from industrial activities), to be an 
unacceptable option for stormwater discharges from construction 
activities. The CGP potentially has an estimated 4,000 new dischargers 
per year that seek coverage. EPA has made progress with the regulated 
community in terms of compliance assistance that would be compromised 
if a permit is not in place during the interim period prior to the 
promulgation of the C&D rule. For instance, EPA Regional offices have 
led substantial efforts to boost compliance with the CGP, resulting in 
an increased rate of compliance among construction operators. EPA 
anticipated that such efforts would have been undermined, and the 
compliance rate would have declined, if a new permit were not issued by 
July 1, 2008. Additionally, the enforcement discretion approach would 
leave construction operators without a reasonable way to obtain 
authorization to discharge and would expose them to liability from 
third party lawsuits for violating the Clean Water Act for unpermitted 
discharges. A short-term permit that mirrors the existing 2003 CGP 
addresses these concerns by providing a Federal permit with provisions 
that have already been reviewed in the previous permit issuance 
process, and by avoiding any period of time during which dischargers 
are not able to obtain permit coverage.

III. Scope and Availability of the 2008 CGP

A. Geographic Coverage

    This permit provides coverage for discharges from construction 
sites that occur in areas not covered by an approved State NPDES 
program. EPA Regions 1, 3, 6, 7, 8, 9, and 10 are issuing the 2008 CGP 
to replace the expiring 2003 CGP for operators of new and unpermitted 
ongoing construction projects. The geographic coverage and scope of the 
2008 CGP is listed in Appendix B of the permit. The only change from 
the scope of coverage in the 2003 CGP is that the State of Maine is now 
the permitting authority for all discharges in the state, including 
operators in Tribal Lands, and as such, discharges in the State of 
Maine are no longer eligible for coverage under EPA's CGP. In addition, 
because certifications required by section 401 of the Clean Water Act, 
and for a few states, certifications required by the Coastal Zone 
Management Act, were not received in time, new and unpermitted ongoing 
construction projects in the following areas are not yet eligible for 
coverage under this permit:
     The State of New Hampshire;
     Indian country within the State of New York;
     The Commonwealth of Puerto Rico;
     Indian country within the State of Michigan;
     Indian country within the State of Minnesota;
     Indian country within the State of Wisconsin, except the 
Sokaogon Chippewa (Mole Lake) Community;
     Indian country within the State of Oklahoma;
     Indian country within the State of New Mexico;
     Oil and gas, or geothermal energy, operations in Texas;
     Oil and gas operations, or certain point source discharges 
associated with agriculture and silviculture in Oklahoma;
     Federal Facilities in the State of Colorado, except those 
located on Indian country;
     Indian country within the State of Colorado, as well as 
the portion of the Ute Mountain Reservation located in New Mexico; and
     Indian country within the State of Montana.
    EPA will announce the availability of coverage under the CGP for 
these areas in separate Federal Register notice(s) as soon as possible 
after the certifications are completed. In the meantime, EPA has 
decided to make administrative or civil enforcement for lack of permit 
coverage against dischargers in the above areas a low priority because 
the 2008 CGP will not yet apply to those areas. The Agency's position 
is outlined in a memorandum from EPA's Office of Enforcement and 
Compliance Assurance, available in the docket for this permit. This low 
enforcement priority does not apply to criminal violations or to 
situations where there are egregious circumstances, such as those 
resulting in serious actual harm or which may present an imminent and 
substantial endangerment to public or the environment, or where no 
control measures are in place to protect public health or the 
environment. The Office of Enforcement and Compliance Assurance also 
reserves the right, at any time, to initiate an appropriate enforcement 
response with respect to a specific discharger should circumstances 
warrant. Under this low enforcement priority approach, EPA will not 
pursue actions against dischargers that lack a permit but are meeting 
the obligations that would have been imposed by the expired 2003 CGP. 
These obligations include, but are not limited to,

[[Page 40342]]

complying with the required effluent limitations, Stormwater Pollution 
Prevention Plan development and implementation, inspections, and proper 
installation and maintenance of storm water control measures.

B. Summary of Significant Changes From the 2003 CGP.

    As discussed above, EPA is issuing the 2008 CGP for a period not to 
exceed two years. This permit includes the same limits and conditions 
as the 2003 CGP with the following differences:
     Type of Construction Projects That Can Be Covered: 
Eligibility for coverage under the 2008 CGP is limited to operators of 
new and unpermitted ongoing construction projects. However, dischargers 
from existing dischargers, otherwise referred to as ongoing permitted 
construction projects, are not eligible for coverage under the 2008 
CGP.
     Distinction Between Effluent Limits and SWPPP 
Documentation Requirements: In response to comments, the permit was 
clarified to clearly distinguish between the effluent limits from the 
documentation requirements relating to the development of the SWPPP. 
The effluent limitations (in Part 3) are permit requirements to which 
all permittees are subject in order to minimize the discharge of 
pollutants from the site, while the SWPPP (in Part 5) is a planning 
document that must be prepared by all construction operators that 
describes the site and the pollutants discharged, and documents the 
control measures selected, installed, and maintained to meet the 
effluent limitations in Part 3. Additionally, the inspection 
requirements, which were previously included in the SWPPP section, have 
been moved to a separate section (Part 4) to highlight their 
importance. EPA emphasizes that though the permit has been reorganized, 
the requirements themselves have not been substantially changed. 
However, in response to recommendations received by two commenters, EPA 
included the following two new requirements: (1) A requirement to 
educate employees or subcontractors as necessary so that they 
understand their role in implementing stormwater controls (Part 3.6), 
and (2) a requirement to remove sediment from silt fences before the 
deposit reaches fifty percent of the above-ground fence height.
     Eligibility for Tribal Lands in Maine: Because the State 
of Maine now has permit authority over Tribal Lands in its state, EPA 
removed eligibility for operators in Tribal Lands in Maine from the 
list of areas in Appendix B where this permit is effective.

These changes are discussed in greater detail in the 2008 CGP fact 
sheet.

C. Permit Appeal Procedures

    In accordance with 40 CFR part 23, this permit shall be considered 
issued for the purpose of judicial review on July 28, 2008. Under 
section 509(b) of the Clean Water Act, judicial review of this general 
permit can be had by filing a petition for review in the United States 
Court of Appeals with 120 days after the permit is considered issued 
for purposes of judicial review. Under section 509(b)(2) of the Clean 
Water Act, the requirements in this permit may not be challenged later 
in civil or criminal proceedings to enforce these requirements. In 
addition, this permit may not be challenged in other agency 
proceedings. In addition, rather than submitting an NOI to be covered 
under this permit, persons may apply for an individual permit as 
specified at 40 CFR 122.21 (and authorized at 40 CFR 122.28), and then 
petition the Environmental Appeals Board to review any conditions of 
the individual permit (40 CFR 124.19 as modified on May 15, 2000, 65 FR 
30886).

IV. Qualified Local Programs

    EPA requested comments in the proposal on a draft set of criteria 
to use in determining which local erosion and sediment control 
requirements satisfy the 40 CFR 122.44(s) requirements for 
incorporating qualified local programs (QLPs) into future CGPs. The 
Agency received several comments relating to the draft QLP criteria. 
EPA appreciates the feedback provided by these comments. EPA's 
responses are included in the response to comment document associated 
with this Federal Register notice. EPA clarifies that the draft 
criteria were not intended to be promulgated as changes to the NPDES 
regulations. The purpose of the proposal was to share with the public 
the Agency's current thinking with regard to factors that would be 
taken into account when proposing to incorporate a QLP into future 
CGPs. In addition, should the Agency propose to incorporate a QLP into 
the CGP, it will first need to propose such a modification for public 
comment as a permit modification.

V. Compliance With the Regulatory Flexibility Act

A. EPA's Approach to Compliance With the Regulatory Flexibility Act for 
General Permits

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The legal question of whether a general permit (as opposed to an 
individual permit) qualifies as a ``rule'' or as an ``adjudication'' 
under the Administrative Procedure Act (APA) has been the subject of 
periodic litigation. In a recent case, the court held that the CWA 
Section 404 Nationwide general permit before the court did qualify as a 
``rule'' and therefore that the issuance of that general permit needed 
to comply with the applicable legal requirements for the issuance of a 
``rule.'' National Ass'n of Home Builders v. U.S. Army Corps of 
Engineers, 417 F.3d 1272, 1284-85 (DC Cir. 2005) (Army Corps general 
permits under Section 404 of the Clean Water Act are rules under the 
APA and the Regulatory Flexibility Act; ``Each NWP [nationwide permit] 
easily fits within the APA's definition `rule'.* * * As such, each NWP 
constitutes a rule * * *'').
    As EPA stated in 1998, ``the Agency recognizes that the question of 
the applicability of the APA, and thus the RFA, to the issuance of a 
general permit is a difficult one, given the fact that a large number 
of dischargers may choose to use the general permit.'' 63 FR 36489, 
36497 (July 6, 1998). At that time, EPA ``reviewed its previous NPDES 
general permitting actions and related statements in the Federal 
Register or elsewhere,'' and stated that ``[t]his review suggests that 
the Agency has generally treated NPDES general permits effectively as 
rules, though at times it has given contrary indications as to whether 
these actions are rules or permits.'' Id. at 36496. Based on EPA's 
further legal analysis of the issue, the Agency ``concluded, as set 
forth in the proposal, that NPDES general permits are permits [i.e., 
adjudications] under the APA and thus not subject to APA rulemaking 
requirements or the RFA.'' Id. Accordingly, the Agency stated that 
``the APA's rulemaking requirements are inapplicable to issuance of 
such permits,'' and thus ``NPDES permitting is not subject to the 
requirement to publish a general notice of proposed rulemaking under 
the APA or any other law * * * [and] it is not subject to the RFA.'' 
Id. at 36497.
    However, the Agency went on to explain that, even though EPA had 
concluded that it was not legally

[[Page 40343]]

required to do so, the Agency would voluntarily perform the RFA's 
small-entity impact analysis. Id. EPA explained the strong public 
interest in the Agency following the RFA's requirements on a voluntary 
basis: ``[The notice and comment] process also provides an opportunity 
for EPA to consider the potential impact of general permit terms on 
small entities and how to craft the permit to avoid any undue burden on 
small entities.'' Id. Accordingly, with respect to the NPDES permit 
that EPA was addressing in that Federal Register notice, EPA stated 
that ``the Agency has considered and addressed the potential impact of 
the general permit on small entities in a manner that would meet the 
requirements of the RFA if it applied.'' Id.
    Subsequent to EPA's conclusion in 1998 that general permits are 
adjudications rather than rules, as noted above, the DC Circuit 
recently held that Nationwide general permits under section 404 are 
``rules'' rather than ``adjudications.'' Thus, this legal question 
remains ``a difficult one'' (supra). However, EPA continues to believe 
that there is a strong public policy interest in EPA applying the RFA's 
framework and requirements to the Agency's evaluation and consideration 
of the nature and extent of any economic impacts that a CWA general 
permit could have on small entities (e.g., small businesses). In this 
regard, EPA believes that the Agency's evaluation of the potential 
economic impact that a general permit would have on small entities, 
consistent with the RFA framework discussed below, is relevant to, and 
an essential component of, the Agency's assessment of whether a CWA 
general permit would place requirements on dischargers that are 
appropriate and reasonable. Furthermore, EPA believes that the RFA's 
framework and requirements provide the Agency with the best approach 
for the Agency's evaluation of the economic impact of general permits 
on small entities. While using the RFA framework to inform its 
assessment of whether permit requirements are appropriate and 
reasonable, EPA will also continue to ensure that all permits satisfy 
the requirements of the Clean Water Act.
    Accordingly, EPA has committed to operating in accordance with the 
RFA's framework and requirements during the Agency's issuance of CWA 
general permits (in other words, the Agency has committed that it will 
apply the RFA in its issuance of general permits as if those permits do 
qualify as ``rules'' that are subject to the RFA). In satisfaction of 
this commitment, during the course of this CGP proceeding, the Agency 
conducted the analysis and made the appropriate determinations that are 
called for by the RFA. In addition, and in satisfaction of the Agency's 
commitment, EPA will apply the RFA's framework and requirements in any 
future issuance of other NPDES general permits. EPA anticipates that 
for most general permits the Agency will be able to conclude that there 
is not a significant economic impact on a substantial number of small 
entities. In such cases, the requirements of the RFA framework are 
fulfilled by including a statement to this effect in the permit fact 
sheet, along with a statement providing the factual basis for the 
conclusion. A quantitative analysis of impacts would only be required 
for permits that may affect a substantial number of small entities, 
consistent with EPA guidance regarding RFA certification.\1\

B. Application of RFA Framework to Issuance of 2008 CGP
---------------------------------------------------------------------------

    \1\ EPA's current guidance, entitled Final Guidance for EPA 
Rulewriters: Regulatory Flexibility Act as Amended by the Small 
Business Regulatory Enforcement and Fairness Act, was issued in 
November 2006 and is available on EPA's Web site: http://www.epa.gov/sbrefa/documents/rfafinalguidance06.pdf. After 
considering the Guidance and the purpose of CWA general permits, EPA 
concludes that general permits affecting less than 100 small 
entities do not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

    EPA has concluded, consistent with the discussion in Section IV.A 
above, that the issuance of the 2008 CGP could affect a substantial 
number of small entities. In the areas where the CGP is effective (see 
Section III.A), an estimated 4,000 construction projects per year were 
authorized under the 2003 CGP, a substantial number of which could be 
operated by small entities. However, EPA has concluded that the 
issuance of the 2008 CGP is unlikely to have an adverse economic impact 
on small entities. The 2008 CGP includes substantially the same 
requirements as those of the 2003 CGP. EPA intends to include an 
updated economic screening analysis with the issuance of the next CGP. 
EPA concludes that this action will not have a significant economic 
impact on a substantial number of small entities.

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

    Dated: June 30, 2008.
Robert W. Varney,
Regional Administrator, EPA Region 1.
    Dated: June 30, 2008.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.
    Dated: June 30, 2008.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.
    Dated: June 30, 2008.
William A. Spratlin,
Director, Wetlands and Pesticides Division, EPA Region 7.
    Dated: June 30, 2008.
Stephen S. Tuber,
Assistant Regional Administrator, Office of Partnerships & Regulatory 
Assistance, EPA Region 8.
    Dated: June 30, 2008.
Nancy Woo,
Acting Director, Water Division, EPA Region 9.
    Dated: June 30, 2008.
Michael F. Gearheard,
Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. E8-15829 Filed 7-11-08; 8:45 am]
BILLING CODE 6560-50-P