[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Pages 43120-43123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20595]




Final EPA Region 4 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 Region 4 is issuing the final National Pollutant Discharge 
Elimination System (NPDES) general permit for stormwater discharges 
from new dischargers engaged in large and small construction activities 
on Indian Country Lands within Region 4. Hereinafter, this NPDES 
general permit will be referred to as ``permit'' or ``2009 construction 
general permit'' or ``2009 CGP.'' ``New dischargers'' are those who did 
not file a notice of intent (``NOI'') to be covered under the 2004 
construction general permit (``2004 CGP'') before it expired. Existing 
dischargers who properly filed an NOI to be covered under the 2004 CGP 
continue to be authorized to discharge under that permit according to 
its terms. This 2009 CGP contains generally the same limits and 
conditions as the National CGP that was issued by other EPA regions and 
became effective on June 30, 2008 (``2008 National CGP''). EPA Region 4 
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: The effective date of this permit is September 1, 2009 and will 
expire at midnight August 31, 2011. 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 2004 CGP. In 
accordance with 40 CFR part 23, this permit shall be considered issued 
for the purpose of judicial review on September 15, 2009. 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 

FOR FURTHER INFORMATION CONTACT: Alanna Conley, Water Protection 
Division, Stormwater and Nonpoint Source Section, Environmental 
Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, GA 30303; 
telephone number: (404) 562-9443. In addition, copies of the permit and 
fact sheet may be downloaded at http://www.epa.gov/region4/water/permits/stormwater.html.


I. General Information

A. Does This Action Apply to Me?

    If a discharger chooses to apply to be authorized to discharge 
under the 2009 construction general permit (``2009 CGP''), the permit 
provides specific requirements for preventing contamination of 
stormwater discharges from the following construction activities:

[[Page 43121]]

                                                       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
                              Building, Developing  233
                               and General
                              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 
    Eligibility for coverage under the 2009 CGP would be limited to 
operators of ``new projects'' or ``unpermitted ongoing projects.'' A 
``new project'' is one that commences after the effective date of the 
2009 CGP. An ``unpermitted ongoing project'' is one that commenced 
prior to the effective date of the 2009 CGP, yet never received 
authorization to discharge under the 2004 CGP or any other NPDES permit 
covering its construction-related stormwater discharges. This proposal 
is limited to those areas where EPA Region 4 is the permitting 
authority, including all Indian Country Lands within the States of 
Alabama, Florida, Mississippi, and North Carolina.

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 the discharges through the issuance of National Pollutant 
Discharge Elimination System (``NPDES'') permits.
    Section 405 of the Water Quality Act of 1987 (WQA) added Section 
402(p) of the 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 United States 
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 2009 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

    EPA noticed the draft 2009 CGP for public review and comment on May 
7, 2009. No comments were received from the public, and therefore, the 
requirements and provisions of the final permit are not different from 
those proposed in the draft permit.
    Construction operators choosing to be covered by the 2009 CGP must 
certify in their notice of intent (NOI) that they meet the requisite 
eligibility requirements, described in Subpart 1.3 of the permit. If 
eligible, operators are authorized to discharge under this permit in 
accordance with Part 2. The 2009 CGP includes conditions and limits 
that are generally identical to the 2008 National CGP issued by other 
EPA Regional offices, with a few requirements carried over from the 
2004 CGP. Note that the 2009 CGP only applies to new and unpermitted 
ongoing construction projects. Discharges from ongoing projects (or 
``existing dischargers'') continue to be covered under the existing 
2004 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 will be 
required to submit a complete and accurate NOI for a new project under 
the 2009 CGP.) Dischargers who filed NOIs to be authorized under the 
2004 permit prior to the expiration date will continue to be authorized 
to discharge in accordance with EPA's regulations at 40 CFR 122.6. 
Operators of new projects or unpermitted ongoing projects seeking 
coverage under the 2009 CGP are expected to use the same electronic 
Notice of Intent (eNOI) system that is currently in place for the 2004 
CGP. 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

[[Page 43122]]

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.

C. What Is EPA's Rationale for the Two-Year Duration of the 2009 CGP?

    The 2009 CGP is effective 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 was 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 believes it 
is appropriate to propose a revised National CGP once EPA has issued 
C&D effluent guidelines, and therefore proposes a maximum two-year 
duration for this permit to better coincide with the court-ordered 
deadlines for the C&D rule. EPA intends to propose and finalize a new, 
revised National 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 2004 

    In consideration that the 2004 CGP expired on April 30, 2009, it is 
incumbent upon EPA Region 4 to make available a similar general permit 
that provides coverage for any new dischargers commencing construction 
in the areas where EPA Region 4 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. EPA is 
issuing a CGP that adopts generally the same limits and conditions of 
the 2008 National CGP issued by other EPA regions for a limited period 
of time. This action is appropriate for several reasons. One main 
reason, as discussed above, is that 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 a CGP 
for a limited period of time, not to exceed 2 years, that contains the 
2004 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 after the rule is promulgated.
    In addition, EPA believes that issuing a substantially revised CGP 
would be 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 could be quickly outdated, given the timing of a promulgation of 
the C&D rule and permit issuance. 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. Instead, EPA Region 4 has decided 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 proposing to use similar 
permit limits and conditions as the 2004 CGP as an effective vehicle to 
control new discharges. EPA notes that it has minimized the amount of 
time during which the 2009 CGP will remain effective in order to 
underscore the Agency's intention to issue a revised CGP once the C&D 
rule is finalized.

E. Significant Changes From 2004 CGP

    As discussed above, the 2009 CGP will provide coverage for a period 
not to exceed two years. This permit would include similar limits and 
conditions as the 2004 CGP with the following noteworthy differences:
    1. Clarification that eligibility for coverage under the 2009 CGP 
is limited to operators of new and unpermitted ongoing construction 
    2. Clarification that operators of ongoing permitted construction 
projects are not eligible for coverage under the 2009 CGP.

F. Geographic Coverage

    EPA is only authorized to provide permit coverage for classes of 
discharges that are outside the scope of a State's NPDES program 
authorization. The EPA Region 4, 2009 CGP replaces the expired 2004 CGP 
for operators of new and unpermitted ongoing construction projects. The 
geographic coverage and scope of the 2009 CGP includes all Indian 
Country Lands within the States of Alabama, Florida, Mississippi, and 
North Carolina, where EPA Region 4 is the NPDES permitting authority. 
There is no change in the scope of coverage from the 2004 CGP.

III. 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 CWA 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

[[Page 43123]]

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 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 CWA. Accordingly, EPA has committed to operate 
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).

B. Application of RFA Framework to Proposed Issuance of CGP

    EPA has concluded, consistent with the discussion in Section IV.A 
above, that the issuance of the 2009 CGP could affect a handful of 
small entities. In the areas where the CGP is effective (see Section 
II.E), (those areas where EPA is the permit authority), a total of 27 
construction projects were authorized under the 2004 CGP--some of these 
project could have been operated by small entities. However, EPA has 
concluded that the proposed issuance of the 2009 CGP is unlikely to 
have an adverse economic impact on small entities. The 2009 CGP 
includes the same requirements as those of the national 2008 CGP issued 
by other EPA regions. Additionally, an operator's use of the CGP is 
volitional (i.e., a discharger could apply for an individual permit 
rather than for coverage under this general permit) and, given the more 
streamlined process for obtaining permit coverage, is less burdensome 
than an individual NPDES permit. EPA intends to include an updated 
economic screening analysis with the issuance of the next national CGP.

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

    Dated: August 17, 2009.
James D. Giattina, Director,
Water Protection Division, Region 4.
[FR Doc. E9-20595 Filed 8-25-09; 8:45 am]