[Federal Register Volume 86, Number 90 (Wednesday, May 12, 2021)]
[Notices]
[Pages 26023-26033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09961]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2021-0169; FRL-10023-19-OW]


National Pollutant Discharge Elimination System (NPDES) 2022 
Issuance of General Permit for Stormwater Discharges From Construction 
Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; request for public comment.

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SUMMARY: All ten Environmental Protection Agency (EPA) Regions are

[[Page 26024]]

proposing for public comment on the proposed 2022 National Pollutant 
Discharge Elimination System (NPDES) general permit for stormwater 
discharges from construction activities, also referred to as the 
``proposed 2022 Construction General Permit (CGP)'' or the ``proposed 
permit.'' The proposed permit, once finalized, will replace the 
existing 2017 CGP that will expire on February 16, 2022. EPA proposes 
to issue this permit for five (5) years, and to provide permit coverage 
to eligible operators in all areas of the country where EPA is the 
NPDES permitting authority, including Massachusetts, New Hampshire, New 
Mexico, most Indian country lands, the District of Columbia, U.S. 
territories and protectorates except for the U.S. Virgin Islands, and 
certain federal facilities. EPA seeks comment on the proposed permit 
and on the accompanying fact sheet, which contains supporting 
documentation. This Federal Register document describes the proposed 
permit in general and includes specific topics on which the Agency is 
particularly seeking comment. EPA encourages the public to read the 
fact sheet to better understand the proposed permit. The fact sheet and 
proposed permit can be found at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.

DATES: Comments on the proposed permit must be received on or before 
July 12, 2021. EPA will host at least one webcast during the week of 
June 14, 2021 that will provide an overview of the proposed 2022 CGP 
and an opportunity for participants to ask questions. EPA will announce 
details of all webcasts and post webcast recordings at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2021-0169 to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Once submitted, comments cannot be edited or withdrawn. EPA 
may publish any comment received to its public docket. Do not submit 
electronically any information you consider to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Multimedia submissions (audio, video, etc.) must be 
accompanied by a written comment. The written comment is considered the 
official comment and should include discussion of all points you wish 
to make. EPA will generally not consider comments or comment contents 
located outside of the primary submission (i.e. on the web, cloud, or 
other file sharing system). For additional submission methods, the full 
EPA public comment policy, information about CBI or multimedia 
submissions, and general guidance on making effective comments, please 
visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For further information on the 
proposed permit, contact the appropriate EPA Regional office listed in 
Section I.F of this document, or Greg Schaner, EPA Headquarters, Office 
of Water, Office of Wastewater Management at 202-564-0721 or email: 
[email protected].

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of these documents and other related 
information?
    C. What should I consider as I prepare my comments for EPA?
    D. Will a public hearing be held on this action?
    E. What process will EPA follow to finalize the permit?
    F. Who are the EPA regional contacts for this permit?
II. Background of Permit
    A. Technology-Based Effluent Limits
    B. Water Quality-Based Effluent Limits (WQBELs)
III. Process Used To Identify Proposed Permit Changes
IV. Summary of Proposed Permit Changes
    A. Changes to Clarity of the Permit
    B. Added Specificity to Permit Requirements
V. Provisions for Which EPA Is Soliciting Comment
VI. Paperwork Reduction Act (PRA)
VII. Proposed 2022 CGP Incremental Cost Analysis and Future Cost-
Benefit Considerations
VIII. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
IX. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
X. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
XI. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use
XII. Compliance With the National Environmental Policy Act (NEPA) 
for the National Pollutant Discharge Elimination System (NPDES) 
General Permit for Discharges From Construction Activities

I. General Information

A. Does this action apply to me?

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

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

    EPA does not intend the preceding table to be exhaustive but 
provides it as a guide for readers regarding the types of activities 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your site is covered by this action, you should 
carefully examine the definition of ``construction activity'' and 
``small construction activity'' in existing EPA regulations at

[[Page 26025]]

40 CFR 122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have 
questions regarding the applicability of this action to a particular 
entity, consult one of the persons listed for technical information in 
the preceding FOR FURTHER INFORMATION CONTACT section.
2. Construction Projects for Which Operators Are Eligible for Permit 
Coverage
    Coverage under this permit will be available to operators of 
eligible projects located in those areas where EPA is the permitting 
authority. A list of eligible areas is included in Appendix B of the 
proposed permit. Eligibility for permit coverage is limited to 
operators of ``new sites,'' operators of ``existing sites,'' ``new 
operators of new or existing sites,'' and operators of ``emergency-
related projects.'' A ``new site'' is a site where construction 
activities commenced on or after the effective date of the final 2022 
CGP. An ``existing site'' is a site where construction activities 
commenced prior to the effective date of the final 2022 CGP. A ``new 
operator of a new or existing site'' is an operator that through 
transfer of ownership and/or operation replaces the operator of an 
already permitted construction site. An ``emergency-related project'' 
is a project initiated in response to a public emergency (e.g., mud 
slides, earthquake, extreme flooding conditions, disruption in 
essential public services), for which the related work requires 
immediate authorization to avoid imminent endangerment to human health 
or the environment, or to reestablish public services.
3. Geographic Coverage
    This 2022 CGP can provide coverage to eligible operators for 
stormwater discharges from construction activities that occur in areas 
not covered by an approved state NPDES program. The areas of geographic 
coverage for the 2022 CGP are listed in Appendix B, and include the 
states of New Hampshire, Massachusetts, and New Mexico, as well as most 
Indian country lands, and areas in selected states operated by a 
federal operator. Permit coverage can also be obtained by operators in 
Puerto Rico, the District of Columbia, and the Pacific Island 
territories (i.e., Island of American Samoa, Island of Guam, and 
Johnston Atoll, Commonwealth of the Northern Mariana Islands, Midway 
Island, and Wake Island). EPA notes that the CGP will no longer offer 
coverage to construction sites in the state of Idaho, except for sites 
located on Indian country lands, or to sites located in the state of 
Texas that involve the exploration, development, or production of oil 
or gas or geothermal resources, including transportation of crude oil 
or natural gas by pipeline, as both states are now authorized to issue 
permits for construction stormwater. Eligible operators in these two 
states will need to seek permit coverage for their stormwater 
discharges from their respective state NPDES authority.

B. How can I get copies of these documents and other related 
information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2021-0169. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) WJC West 
Building, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20460. 
Although all documents in the docket are listed in an index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Out of an abundance of caution for members of the public 
and our staff, the EPA Docket Center and Reading Room are closed to the 
public, with limited exceptions, to reduce the risk of transmitting 
COVID-19. Our Docket Center staff will continue to provide remote 
customer service via email, phone, and webform. We encourage the public 
to submit comments via https://www.regulations.gov/ or email, as there 
may be a delay in processing mail and faxes. Hand deliveries and 
couriers may be received by scheduled appointment only. For further 
information on EPA Docket Center services and the current status, 
please visit us online at https://www.epa.gov/dockets.
    2. Electronic Access. You may access this Federal Register document 
electronically through the United States government on-line source for 
Federal regulations at http://www.regulations.gov.
    Electronic versions of this proposed permit and fact sheet are 
available on EPA's NPDES website at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.
    An electronic version of the public docket is available through the 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. For additional information about EPA's 
public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the Docket Facility identified in Section 
I.B.1 of this preamble.

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

    1. Submitting CBI. Do not submit CBI information to EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as 
CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    EPA's policy is that public comments, whether submitted 
electronically or in paper, will be made available for public viewing 
in EPA's electronic public docket as EPA receives them and without 
change, unless the comment contains copyrighted material, CBI, or other 
information whose disclosure is restricted by statute. As noted 
previously, CBI information should not be submitted through 
regulations.gov or by email. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in EPA's electronic public 
docket. The entire printed comment, including the copyrighted material, 
will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify this proposed permit by docket number and other 
identifying

[[Page 26026]]

information (subject heading, Federal Register date and page number).
     Where possible, respond to specific questions or organize 
comments by referencing a section or part of this proposed permit.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     To ensure that EPA can read, understand, and therefore 
properly respond to comments, the Agency would prefer that commenters 
cite, where possible, the paragraph(s) or section in the proposed 
permit or fact sheet to which each comment refers.
     Make sure to submit your comments by the comment period 
deadline identified.

D. Will a public hearing be held on this action?

    EPA has not scheduled a public hearing to receive public comment 
concerning the proposed permit. All persons will continue to have the 
right to provide written comments during the public comment period. 
However, interested persons may request a public hearing pursuant to 40 
CFR 124.12 concerning the proposed permit. Requests for a public 
hearing must be sent or delivered in writing to the same address as 
provided above for public comments prior to the close of the comment 
period. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
EPA shall hold a public hearing if it finds, on the basis of requests, 
a significant degree of public interest in a public hearing on the 
proposed permit. If EPA decides to hold a public hearing, a public 
notice of the date, time and place of the hearing will be made at least 
30 days prior to the hearing. Any person may provide written or oral 
statements and data pertaining to the proposed permit at the public 
hearing.
    EPA is hosting at least one public webcast during the week of June 
14, 2021 that will provide an overview of the proposed 2022 CGP and an 
opportunity for participants to ask questions. EPA will announce 
details of all webcasts and post webcast recordings at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.

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

    After the comment period closes, EPA intends to issue a final 
permit prior to the expiration date of the current 2017 CGP. EPA will 
consider all significant comments and make appropriate changes before 
issuing this permit. EPA's responses to public comments received will 
be included in the docket as part of the final permit issuance. Once 
the final permit becomes effective, eligible operators of existing and 
new sites may seek authorization under the 2022 CGP. Any construction 
site operator obtaining permit coverage prior to the expiration date of 
the 2017 CGP will automatically remain covered under that permit until 
the earliest of:
     Authorization for coverage under the 2022 CGP following a 
timely submittal of a complete and accurate Notice of Intent (NOI);
     Submittal of a Notice of Termination (NOT); or
     EPA issues an individual permit or denies coverage under 
an individual permit for the site's stormwater discharges.

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

    For EPA Region 1, contact David Gray: email at [email protected].
    For EPA Region 2, contact Stephen Venezia: email at 
[email protected], or for Puerto Rico, contact Sergio Bosques: 
email at [email protected].
    For EPA Region 3, contact Carissa Moncavage: email at 
[email protected].
    For EPA Region 4, contact Michael Mitchell: email at 
[email protected].
    For EPA Region 5, contact Krista McKim: email at 
[email protected].
    For EPA Region 6, contact Suzanna Perea: email at: 
[email protected].
    For EPA Region 7, contact Mark Matthews: email at: 
[email protected].
    For EPA Region 8, contact Amy Clark: email at: [email protected].
    For EPA Region 9, contact Eugene Bromley: email at 
[email protected].
    For EPA Region 10, contact Margaret McCauley: email at 
[email protected].

II. Background of Permit

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

[[Page 26027]]

    Once a new national standard is established in accordance with 
these sections, NPDES permits must incorporate limits based on such 
technology-based standards. See CWA sections 301 and 306, 33 U.S.C. 
1311 and 1316, and 40 CFR 122.44(a)(1). On December 1, 2009, EPA 
published final regulations establishing technology-based ELGs and NSPS 
for the Construction & Development (C&D) point source category, which 
became effective on February 1, 2010. See 40 CFR part 450 and 74 FR 
62996. EPA amended the Construction & Development Rule, or ``C&D 
rule,'' on March 6, 2014 to satisfy EPA's agreements pursuant to a 
settlement of litigation that challenged the 2009 rule. See 79 FR 
12661. All NPDES construction permits issued by EPA or states after 
this date must incorporate the requirements in the C&D rule.

A. Technology-Based Effluent Limits

    All NPDES construction stormwater permits issued by EPA or states 
after March 6, 2014, must incorporate the requirements in the C&D rule, 
as amended. The non-numeric effluent limitations in the C&D rule are 
designed to prevent or minimize the mobilization and discharge of 
sediment and sediment-bound pollutants, such as metals and nutrients, 
and to prevent or minimize exposure of stormwater to construction 
materials, debris, and other sources of pollutants on construction 
sites. In addition, these non-numeric effluent limitations limit the 
generation of dissolved pollutants. Soil on construction sites can 
contain a variety of pollutants such as nutrients, pesticides, 
herbicides, and metals. These pollutants may be present naturally in 
the soil, such as arsenic or selenium, or they may have been 
contributed by previous activities on the site, such as agriculture or 
industrial activities. These pollutants, once mobilized by stormwater, 
can detach from the soil particles and become dissolved pollutants. 
Once dissolved, these pollutants would not be removed by down-slope 
sediment controls. Source control through minimization of soil erosion 
is, therefore, the most effective way of controlling the discharge of 
these pollutants.
    The non-numeric effluent limits in the C&D rule, upon which certain 
technology-based requirements in the proposed permit are based, include 
the following:
     Erosion and Sediment Controls--Permittees are required to 
design, install, and maintain effective erosion controls and sediment 
controls to minimize the discharge of pollutants. At a minimum, such 
controls must be designed, installed, and maintained to:
    1. Control stormwater volume and velocity to minimize soil erosion 
in order to minimize pollutant discharges;
    2. Control stormwater discharges, including both peak flow rates 
and total stormwater volume, to minimize channel and streambank 
erosion, and scour in the immediate vicinity of discharge points;
    3. Minimize the amount of soil exposed during construction 
activity;
    4. Minimize the disturbance of steep slopes;
    5. Minimize sediment discharges from the site. The design, 
installation and maintenance of erosion and sediment controls must 
address factors such as the amount, frequency, intensity and duration 
of precipitation, the nature of resulting stormwater discharge, and 
soil characteristics, including the range of soil particle sizes 
expected to be present on the site;
    6. Provide and maintain natural buffers around waters of the United 
States. Direct stormwater to vegetated areas and maximize stormwater 
infiltration to reduce pollutant discharges, unless infeasible;
    7. Minimize soil compaction. Minimizing soil compaction is not 
required where the intended function of a specific area of the site 
dictates that it be compacted; and
    8. Unless infeasible, preserve topsoil. Preserving topsoil is not 
required where the intended function of a specific area of the site 
dictates that the topsoil be disturbed or removed.
     Soil Stabilization Requirements--Permittees are required 
to, at a minimum, initiate soil stabilization measures immediately 
whenever any clearing, grading, excavating, or other earth disturbing 
activities have permanently ceased on any portion of the site or 
temporarily ceased on any portion of the site and will not resume for a 
period exceeding 14 calendar days. In arid, semiarid, and drought-
stricken areas where initiating vegetative stabilization measures 
immediately is infeasible, alternative stabilization measures must be 
employed as specified by the permitting authority. Stabilization must 
be completed within a period of time determined by the permitting 
authority. In limited circumstances, stabilization may not be required 
if the intended function of a specific area of the site necessitates 
that it remains disturbed.
     Dewatering Requirements--Permittees are required to 
minimize the discharge of pollutants from dewatering trenches and 
excavations. Discharges are prohibited unless managed by appropriate 
controls.
     Pollution Prevention Measures--Permittees are required to 
design, install, implement, and maintain effective pollution prevention 
measures to minimize the discharge of pollutants. At a minimum, such 
measures must be designed, installed, implemented, and maintained to:
    1. Minimize the discharge of pollutants from equipment and vehicle 
washing, wheel wash water, and other wash waters. Wash waters must be 
treated in a sediment basin or alternative control that provides 
equivalent or better treatment prior to discharge;
    2. Minimize the exposure of building materials, building products, 
construction wastes, trash, landscape materials, fertilizers, 
pesticides, herbicides, detergents, sanitary waste, and other materials 
present on the site to precipitation and to stormwater. Minimization of 
exposure is not required in cases where the exposure to precipitation 
and to stormwater will not result in a discharge of pollutants or where 
exposure of a specific material or product poses little risk of 
stormwater contamination (such as final products and materials intended 
for outdoor use); and
    3. Minimize the discharge of pollutants from spills and leaks and 
implement chemical spill and leak prevention and response procedures.
     Prohibited Discharges--The following discharges from C&D 
sites are prohibited:
    1. Wastewater from washout of concrete, unless managed by an 
appropriate control;
    2. Wastewater from washout and cleanout of stucco, paint, form 
release oils, curing compounds, and other construction materials;
    3. Fuels, oils, or other pollutants used in vehicle and equipment 
operation and maintenance; and
    4. Soaps or solvents used in vehicle and equipment washing.
     Surface Outlets--When discharging from basins and 
impoundments, permittees are required to utilize outlet structures that 
withdraw water from the surface, unless infeasible.
    The accompanying fact sheet details how EPA has incorporated these 
requirements into the proposed permit. The discussion in the fact sheet 
includes a summary of each provision and the Agency's rationale for 
articulating the provision in this way.

[[Page 26028]]

B. Water Quality-Based Effluent Limits (WQBELs)

    EPA's regulations at 40 CFR 122.44(d)(1) require permitting 
authorities to include additional or more stringent permit requirements 
when necessary to achieve water quality standards. The 2017 CGP 
contains several provisions to protect water quality and the proposed 
permit includes those same provisions. It includes a narrative WQBEL 
requiring that discharges be controlled as necessary to meet applicable 
water quality standards. Failure to control discharges in a manner that 
meets applicable water quality standards is a violation of the permit.
    In addition to the narrative WQBEL, the 2017 CGP includes related 
provisions that act together to protect water quality. These provisions 
are retained in the proposed 2022 CGP. For example, the 2017 CGP and 
proposed 2022 CGP permit require permittees to implement stormwater 
control measures and to take corrective action in response to any 
exceedance of applicable water quality standards. In addition, the 
permit requires more stringent site inspection frequencies and 
stabilization deadlines for construction sites that discharge to 
sensitive waters, such as those waters that are sediment or nutrient-
impaired, which are parameters typically associated with stormwater 
discharges from construction sites, or waters identified by a state, 
tribe, or EPA as requiring enhanced protection under antidegradation 
requirements. EPA is also weighing whether to include an additional 
water quality-based requirement for dewatering discharges to certain 
sensitive waters in the form of a requirement to monitor the discharge 
for turbidity, possibly in comparison to a benchmark value. The 
proposed permit includes a request for public comment that is focused 
specifically on the potential turbidity monitoring requirement. See 
specific requests for comment in Section V of this document.
    Additionally, EPA expects that, as with the 2017 CGP, the Agency 
will receive CWA Section 401 certifications for the final 2022 CGP. 
Some of those certifications may include additional conditions that are 
required by states, Indian tribes, and territories, pursuant to 
relevant provisions of the Clean Water Act or their respective legal 
authorities, and that, when properly submitted, will be incorporated 
into the permit as legally binding permit limits and conditions in the 
specific geographic areas that are located within the jurisdiction of 
the certifying authority.

III. Process Used To Identify Proposed Permit Changes

    EPA made a concerted effort in the early stages of developing this 
proposed permit to reach out to stakeholders that would be affected by 
any modifications to the permit requirements. This outreach included 
meetings with stakeholders representing the construction industry, 
environmental interests, and state permitting authorities. The purpose 
of these meetings was to help identify areas of the 2017 CGP that 
require further clarification or modification to more effectively 
achieve the pollutant reduction objectives of the permit. EPA also 
queried its Regional enforcement personnel to determine where the 
permit could be clarified or where further specifics would help improve 
compliance. The individual feedback obtained from these meetings 
informed the types of clarifications and other changes EPA is proposing 
here, as well as the areas where the Agency is soliciting further 
feedback during the public comment period.

IV. Summary of Proposed Permit Changes

    EPA proposes to make several modifications in the 2022 CGP, which 
are summarized below and discussed in more detail in the fact sheet. 
EPA also specifically requests comment on several potential permit 
modifications, which are summarized in Section V of this document. The 
fact sheet for the proposed permit explains in more detail each 
proposed permit condition and the rationale for including those 
conditions and any changes to those conditions. The fact sheet and 
proposed permit can be found at https://www.epa.gov/npdes/stormwater-discharges-construction-activities. A comprehensive list of all the 
proposed changes, as well as the corresponding parts of the permit that 
are modified, is included in a table in Section III.B of the fact 
sheet.
    The types of changes generally fall into one of two categories: (1) 
Changes to improve the clarity of the permit, and (2) added specificity 
to the permit requirements. The table of proposed modifications in 
Section III.B of the fact sheet specifies which changes fall under the 
type (1) category and which fall into the type (2) category. The 
following sections briefly describe the proposed changes that are 
proposed within these two broad categories.

A. Changes to Clarity of the Permit

    EPA proposes a number of relatively minor changes that focus on 
improving the clarity of provisions where permittees, EPA compliance 
staff, or other stakeholders have raised questions. These changes 
generally do not change the underlying requirement from the 2017 CGP, 
but rather attempt to make EPA's original intent clearer. It is EPA's 
hope that these proposed clarifications improve the overall 
understanding of the permit's requirements from all perspectives, 
including the permitting authority, permittees, and the general public.
    The proposed changes to improve clarity include the following:
     Approved stormwater control and stormwater pollution 
prevention plan products--EPA includes new language in the permit to 
clearly state that the Agency does not endorse specific stormwater 
control or stormwater pollution prevention plan (SWPPP) products or 
vendors. Industry stakeholders suggested to include such language to 
help discourage some vendors from misleadingly suggesting that EPA or 
the permit approves of specific products. See footnotes 12 and 59 in 
Parts 2.1 and 7.1, respectively, of the proposed permit.
     Differentiate between routine maintenance and corrective 
action--EPA proposes to define routine maintenance as repairs to or 
replacement of stormwater controls that can be completed within 24 
hours of first discovering the need for the repair or replacement. If a 
repair (or replacement) takes longer than 24 hours, the permit would 
require that it be treated as a corrective action. This change 
addresses feedback provided by industry stakeholders who have observed 
that there is considerable confusion about which maintenance repairs 
are considered routine versus those that should be treated as 
corrective actions. See Parts 2.1.4.b and c, and 5.1.1 of the proposed 
permit.
     Clarify application of perimeter control and natural 
buffer requirements--EPA understands from conversations with 
stakeholders that there is confusion about whether perimeter controls 
are necessary on the site when the operator is already providing a 
natural buffer pursuant to the requirements of the permit. To address 
this confusion, EPA clarifies that perimeter controls must be installed 
upgradient of any natural buffers except in situations where the 
perimeter control is being used by the permittee to fulfill one of the 
buffer alternative requirements, in which case the permittee would not 
be required to install a second perimeter control. See Part 2.2.3.a of 
the proposed permit.
     Clarify the permit flexibilities for arid and semi-arid 
areas--The 2017

[[Page 26029]]

CGP establishes alternative stabilization and inspection schedules for 
arid and semi-arid areas that are reflective of the different climatic 
and precipitation conditions that exist in those areas. These 
stabilization and inspection schedule flexibilities apply during the 
``seasonally dry period'' of the year when there is less risk of a 
discharge-producing storm event. The permit did not previously define 
the term ``seasonally dry period,'' and EPA has received a number of 
questions from construction operators over the past several years about 
what this term means. For this reason, the proposed permit establishes 
a new definition to provide clarity, and includes resources in the form 
of maps and zip code tables to assist construction operators located in 
an arid or semi-arid area in determining when they may be operating 
during a seasonally dry period of the year. See Parts 2.2.14.b, 
2.2.14.c, and 4.4.2 of the proposed permit, as well as the definition 
of ``seasonally dry period'' in Appendix A.
     Clarified requirements for inspections during snowmelt 
conditions--The permit proposes to add a numeric inspection threshold 
for snowfall precipitation that is equivalent to the 0.25-inch rain 
event, which triggers the need for an inspection if the operator 
chooses to inspect its site on a bi-weekly basis pursuant to Part 
4.2.2. This change would clarify that where there is a discharge from 
snowmelt caused by an accumulation of 3.25 inches or greater of snow, 
an inspection would be required. Permit holders requested this change 
and explained to EPA that without a numeric threshold, it is difficult 
for operators to know which snow events may trigger the need to inspect 
the site during the winter season. EPA relied on information from the 
National Oceanic and Atmospheric Administration (NOAA) to derive the 
3.25-inch snowfall equivalent to the 0.25-inch rain event. See Part 
4.2.2 of the proposed permit.
     Availability of stormwater pollution prevention plan 
(SWPPP), inspection reports, and corrective action log in electronic 
form--The 2017 CGP currently enables operators to keep their SWPPP, 
inspection reports, and corrective action records in electronic form, 
as long as it can be accessed and read by the permittee and by any EPA, 
state, or local inspection authorities in the same manner as a paper 
copy. EPA heard from permittees, however, who were uncertain about 
whether the flexibility to keep these documents in electronic form was 
available to them. EPA acknowledges that part of the problem is that 
its explanation about retaining documents in electronic form is 
currently included in a frequently asked question section of its 
stormwater website (see https://www.epa.gov/npdes/construction-general-permit-cgp-frequent-questions), and is not clearly stated in the 
permit. For this reason, the proposed permit includes text to make it 
clear that electronic versions of the SWPPP, inspection reports, and 
corrective action logs may be used as long as they meet certain minimum 
requirements. See footnotes 54, 55, and 66 to Parts 4.7.3, 5.4.3, and 
7.3, respectively, of the proposed permit.
     Updated process for Endangered Species Act eligibility 
determinations--EPA proposes several updates to Appendix D of the CGP, 
which establishes procedures for operators to follow in determining 
their eligibility for coverage with respect to the protection of 
endangered and threatened species. The changes to Appendix D are 
primarily in the form of clarifications to existing procedures or 
updates to resources that operators can use to determine whether 
species are located in the ``action area'' of the construction site. 
EPA finalized similar changes as part of the Endangered Species Act 
consultation it completed as part of its issuance of the 2021 Multi-
Sector General Permit (MSGP) for discharges from industrial activities 
(See Appendix E of the 2021 MSGP at https://www.epa.gov/npdes/stormwater-discharges-industrial-activities-epas-2021-msgp). See 
Appendix D of the proposed permit.

B. Added Specificity to Permit Requirements

    EPA is proposing select modifications to the permit to address 
specific problems that have come to the Agency's attention during the 
permit term or to incorporate enhancements that reflect current best 
practices. These proposed changes are narrowly focused on specific 
topics. The following is a summary of these proposed changes:
     Perimeter control installation and maintenance 
requirements--Due to the vital role that sediment controls installed 
along the downslope side of the construction site perimeter play in 
minimizing sediment discharges, it is important for the CGP 
requirements related to these controls to reflect best practices that 
are available, effective, and practicable. Reviewing a number of state 
permits and best management practice manuals during the development of 
the proposed permit, EPA concluded that some targeted proposed changes 
to the perimeter control requirements in the CGP are appropriate at 
this time. For this reason, EPA is proposing additional perimeter 
control installation and maintenance requirements that are focused on 
ensuring that these controls continue to work effectively. For example, 
under the proposed provision, if there is evidence of stormwater 
circumventing or undercutting the perimeter control after a storm 
event, the operator would be required to extend the length of the 
perimeter control or repair any undercut areas, whichever applies. This 
change is intended to ensure that maintenance of these controls is 
focused on fixing problems as soon as they are found and making sure 
they work effectively when the next storm event occurs. See Part 2.2.3 
of the proposed permit.
     Pollution prevention requirements for chemicals used and 
stored on site--EPA is proposing changes to the pollution prevention 
requirements for diesel fuel, oil, hydraulic fuels, or other petroleum 
products, and other chemicals. These proposed changes respond to 
feedback EPA received from some permittees who recommended reframing 
the current permit requirements so they are proportionate to the volume 
of chemicals being used and stored on the site, and relative to the 
risk of a spill or leak. EPA agrees that the requirements in this 
section could be improved by strengthening the linkage between the type 
of pollution prevention control needed and the volume of the pollutant 
kept on site. Consistent with this principle, the proposed permit 
establishes control requirements that are appropriate for smaller-sized 
containers by requiring that the operator use water-tight containers, 
place them on a spill containment pallet (or similar device) if kept 
outside, and have a spill kit available at all times and in good 
working condition, and personnel available to respond quickly to a 
spill or leak. These controls will be effective at preventing a 
discharge from a spill or leak, while also having the added advantage 
of being moved more easily around the site. The proposed permit also 
includes controls that are more suitable to larger volumes of chemicals 
on site, such as requiring a temporary roof or secondary containment to 
prevent a discharge from a leak or spill. See Part 2.3.3.c of the 
proposed permit.
     Dewatering discharge requirements--EPA is proposing 
several changes to the permit's dewatering requirements to improve 
compliance and further reduce pollutant loads to waterways. EPA has 
noted violations with the permit's dewatering requirements at sites 
with controls that are improperly installed and maintained, resulting 
in significant

[[Page 26030]]

discharges of sediment and other pollutants to receiving waters. Given 
the high rate at which dewatered water may be discharged, EPA 
inspection personnel have observed that it is possible that a site may 
discharge more sediment in several hours of poorly managed dewatering 
activities than might otherwise be discharged from a site via 
stormwater discharges over the entire course of the construction 
project. Additionally, EPA has found there to be good example 
provisions from state construction stormwater permits and standalone 
NPDES dewatering permits that can be used to strengthen the CGP's 
dewatering conditions.
    The proposed revisions to the permit add clarity to the existing 
pollutant control provisions, increase the number of inspections 
required while the dewatering discharge is occurring, establish a 
tailored checklist of problems to review during the inspection, and 
identify specific triggers for when corrective action is required. For 
example, one new inspection provision would require the operator to 
check whether a sediment plume, sheen, or hydrocarbon deposit on the 
bottom or shoreline of the receiving water was observed during a 
dewatering discharge. If such a plume, sheen, or deposit is observed, 
the permit would require the operator to, among other things, take 
immediate steps to suspend the discharge and ensure that the dewatering 
controls being used are operating effectively. During an inspection of 
the dewatering operation, the operator would also be required to take 
photographs of (1) the dewatering water prior to treatment by a 
stormwater control(s) and the final discharge after treatment; (2) the 
stormwater control; and (3) the point of discharge to any waters of the 
U.S. flowing through or immediately adjacent to the site. This 
documentation will help demonstrate how well the dewatering controls 
are working and will show where adaptations made after any problems 
have been found have resulted in improved pollutant control. See Parts 
2.4, 4.3.2, 4.5.5, 4.6.3, and 5.1.5 of the proposed permit.
     Training requirements for personnel conducting site 
inspections--EPA is proposing to include modifications to the training 
requirements for personnel conducting site inspections. EPA considers 
these changes reasonable to address problems found during many of the 
Agency's own construction site inspections, in which EPA has observed 
that while some permittees are properly conducting inspections and 
documenting their findings in accordance with the permit, a large 
number are not. EPA proposes to address this problem is by 
strengthening the training requirements for inspection personnel to 
ensure their competency to conduct such inspections. For this reason, 
the proposed permit specifies that anyone carrying out inspections must 
either (1) have completed the new EPA construction inspection course 
developed for this permit and passed the exam, or (2) hold a current 
valid certification or license from a program that covers essentially 
the same principles as EPA's inspection course. The proposal also 
includes an exception to the new training requirement if the personnel 
are working under the supervision of a person who has the met the 
qualifications described above. These new proposed requirements are 
essentially an extension of what the 2017 CGP (and 2012 CGP) already 
required for the ``qualified person'' to conduct inspections. EPA is in 
the process of developing a construction inspection training program 
that will be made available as an option to fulfill this new 
requirement to CGP permittees along with an accompanying exam that, if 
passed, will provide the person with documentation showing that they 
have successfully completed the EPA course. EPA plans to have the 
training program ready for use by the issuance of the final 2022 CGP, 
or to delay the implementation of the requirement until the EPA 
training is available. Documentation that the relevant personnel has 
completed the EPA course and passed the exam will serve as proof that 
the operator has met the new inspection training requirements. 
Alternatively, if the relevant personnel elect to obtain the required 
training through a different program that covers the same basic 
principles, the operator will need to provide documentation that these 
personnel have completed the program and are in possession of a 
current, valid certification or license. See Parts 4.1 and 6.3 of the 
proposed permit.
     Documenting signs of sedimentation attributable to 
construction site discharges--EPA specifies in the proposed permit that 
during the inspection, operators must check for signs of sedimentation 
(e.g., sand bars with no vegetation growing on top) at points 
downstream from the point of discharge that could be attributable to 
their discharges. This change is intended to address a frequent problem 
observed during EPA's compliance inspections that the permittee does 
not document obvious signs that its discharges have caused 
sedimentation in the receiving water. The intent of this proposed 
addition is to emphasize that the site inspection is an ideal time to 
examine whether there are any obvious signs of sedimentation 
attributable to the site's discharges, and to require documentation of 
such sedimentation. EPA does not specify in the permit a specific 
distance downstream of the site that operators much check for 
sedimentation that could be attributable to the discharge, given 
variable site-specific conditions. Instead, EPA expects that operators 
will account for the amount of sediment leaving the site in determining 
this distance. EPA notes that the CGP already requires operators to 
check for signs of visible erosion and sedimentation (i.e., sediment 
deposits) that have occurred and are attributable to the permittee's 
discharge at outfalls and, if applicable, on the banks of any waters of 
the U.S. flowing within or immediately adjacent to the site. See Part 
4.6.1.d of the proposed permit.
     Photo documentation of adequate site stabilization--EPA's 
compliance inspectors have observed cases when operators prematurely 
terminate coverage under the CGP before the site is properly 
stabilized. The proposed permit adds a new provision requiring 
operators as part of their Notice of Termination (NOT) to take and 
submit photographs showing the stabilized areas of the site following 
completion of construction. EPA proposes this requirement primarily as 
an additional level of proof that permittees are complying with the 
stabilization requirements prior to terminating coverage. Given the 
importance of stabilization to preventing continuing erosion and 
sedimentation, EPA views the additional proposed photo documentation 
requirement to be a relatively inexpensive, effective, and 
straightforward way for the permittee to show the Agency that it has 
complied with the permit's final stabilization requirements. See Part 
8.2.1.a of the proposed permit. Related to this proposed new 
requirement, EPA is also adding a check box to the NOT form to confirm 
that the operator has attached photographs as required by Part 8.2.1.a 
to document compliance with the permit's final stabilization 
requirements.
     Notice of Intent (NOI) questions--EPA proposes to add new 
questions to the NOI form that construction operators will use to 
obtain coverage under the 2022 CGP. One question asks operators if 
dewatering water will be discharged during the course of their permit 
coverage. While EPA suspects that most CGP-covered projects discharge 
dewatering water during

[[Page 26031]]

construction, it would be useful to the Agency to know what the 
prevalence of this practice is at its permitted sites. This question 
will provide a straightforward way of compiling information broadly 
about permittees and enable EPA to know which permittees may be 
affected by the permit's new proposed dewatering requirements. Another 
question asks the operator completing the NOI whether there are other 
operators who are also covered by the CGP at the same site and, if so, 
what their NPDES ID numbers are. Because the 2017 CGP NOI does not ask 
the operator to indicate whether there are multiple operators permitted 
for the same site, EPA is often unable to easily determine who all the 
permitted entities are at larger projects. The NOI form will also 
include a proposed new question that requires the operator to confirm 
that any personnel conducting inspections at the site will meet the 
modified training requirements in Part 6 of the permit. EPA also 
proposes clarifying edits to better explain the types of documentation 
that are needed for several of the eligibility criteria and edits to 
provide links to updated available mapping tools to assist operators in 
determining whether any listed or threatened species are known to occur 
in the action area of their project.

V. Provisions for Which EPA Is Soliciting Comment

    While EPA encourages the public to review and comment on all 
provisions in the proposed permit, EPA has included in the body of the 
proposed permit several proposed provisions on which EPA specifically 
requests feedback. The following list summarizes these specific 
requests for comment, and where they are included in the permit. EPA 
notes that these are only summaries of the requests for comment. The 
Agency recommends that the public see the specific wording of each 
comment request within the body of the permit. Additionally, the 
request for comment numbers 1, 3, 4, and 5 are not accompanied by a 
proposed change to the permit, but rather are inviting input on 
possible revisions to the CGP.
    1. Permit coverage clarification--Request for comment on 
potentially modifying the definition of operator to specifically 
include parties that determine acceptance of work and pay for work 
performed. See Request for Comment 1 in Part 1.1.1 of the proposed 
permit.
    2. Prohibition of dewatering discharges from contaminated sites--
Request for comment on whether additional sites should be prohibited 
from coverage under this permit due to the possibility of discharging 
dewatering water that is contaminated, and whether certain sites should 
be given case-by-case flexibility if stormwater contact with 
underground contamination has been prevented through implementation of 
cleanup controls, such as capping. See Request for Comment 2 in Part 
1.3.6 of the proposed permit.
    3. Waiting period for discharge authorization--Request for comment 
on whether to extend the waiting period between the operator's 
submittal of the NOI and the authorization to discharge from 14 days to 
30 days to facilitate review of the site's eligibility related to the 
protection of endangered or threatened species. See Request for Comment 
3 in Part 1.4.3 of the proposed permit.
    4. Stabilization deadlines--Request for comment on whether the 5-
acre disturbance threshold for stricter stabilization deadlines has the 
intended effect of encouraging the phasing of construction 
disturbances. See Request for Comment 4 in Part 2.2.14.a of the 
proposed permit.
    5. Pollution prevention requirements for construction waste--
Request for comment on whether existing pollution control flexibilities 
such as those that apply to building materials and products in Part 
2.3.3.a should be applied to certain types of construction wastes. See 
Request for Comment 5 in Part 2.3.3.e of the proposed permit.
    6. Water quality-based requirements for dewatering discharges--
Request for comment on requiring targeted sampling of the dewatering 
discharges from sites discharging to sediment-impaired waters or waters 
designated as Tier 2, Tier 2.5 or Tier 3 waters. See Request for 
Comment 6 in Part 3.3 of the proposed permit.
    7. Training Requirements--Request for comment on the proposed 
modifications to the site inspection training requirements, 
specifically on how EPA can design its own inspection training program 
and the criteria used to describe the minimum requirements for third-
party training programs. See Request for Comment 7 in Part 6.3 of the 
proposed permit.
    8. Photographic documentation of site stabilization--Request for 
comment on the proposed requirement to take photographs of the 
stabilized areas of the site and submit them with the NOT. See Request 
for Comment 8 in Part 8.2.1.a of the proposed permit.

VI. Paperwork Reduction Act (PRA)

    The information collection activities in this permit have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The Information Collection Request (ICR) document that 
EPA prepared has been assigned EPA ICR No. 2686.01, OMB Control No. 
2040-NEW. You can find a copy of the ICR in the docket for this permit 
(Docket ID No. EPA-HQ-OW-2021-0169), and it is briefly summarized here.
    CWA section 402 and the NPDES regulations require collection of 
information primarily used by permitting authorities, permittees 
(operators), and EPA to make NPDES permitting decisions. The burden and 
costs associated with the entire NPDES program are accounted in an 
approved ICR (EPA ICR number 0229.23, OMB control no. 2040-0004). 
Certain changes in this permit require revisions to the ICR to reflect 
changes to the forms and other information collection requirements. EPA 
is reflecting the paperwork burden and costs associated with this 
permit in a separate ICR instead of revising the existing ICR for the 
entire program for administrative reasons.
    EPA is proposing to collect new information as part of the 2022 
CGP. The NOI form was updated from the 2017 CGP to collect new 
information related to the following: Added one new question related to 
whether operators will be discharging construction dewatering water 
during the course of their permit coverage; added questions about 
whether there are other operators who are also covered by the CGP at 
the same site and, if so, what their NPDES ID numbers are; added a 
check box for the operator to confirm that any personnel conducting 
inspections at the site will meet the modified training requirements in 
Part 6 of the permit; and added clarifying edits to better explain the 
types of documentation that are needed for several of the eligibility 
criteria related to endangered and threatened species and edits to 
provide links to updated available mapping tools to assist operators in 
determining whether any such species are known to occur in the vicinity 
of their project.
    EPA added one check box for operators who are submitting an ``NOT'' 
because all construction activities have ended and the site has met all 
of the requirements for terminating permit coverage in Part 8.2.1. The 
check box confirms that the operator has attached photographs taken to 
document compliance with the final stabilization requirements pursuant 
to Part 8.2.1.a.
    Respondents/affected entities: Construction operators in the areas 
where EPA is the NPDES permitting authority.

[[Page 26032]]

    Respondent's obligation to respond: Compliance with the CGP's 
information collection and reporting requirements is mandatory for CGP 
operators.
    Estimated number of respondents: EPA estimates that for the 
duration of the three-year ICR period approximately 7,800 operators 
will obtain coverage under the 2022 CGP, or 2,600 operators per year.
    Frequency of response: Response frequencies in the 2022 CGP vary 
from once per permit term to quarterly.
    Total estimated burden: EPA estimates that the information 
collection burden of the 2022 CGP is 134,059 hours per year. Burden is 
defined at 5 CFR 1320.3(b).
    Total estimated cost: EPA estimates that the final information 
collection cost of the 2022 CGP is $8,195,357 per year.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. EPA will respond to 
ICR-related comments in the final permit.

VII. Proposed 2022 CGP Incremental Cost Analysis and Future Cost-
Benefit Considerations

    The cost analysis accompanying this proposed permit monetizes and 
quantifies certain incremental cost impacts of the proposed permit 
changes as compared to the 2017 CGP. EPA analyzed each change in the 
proposed 2022 CGP considering the previous permit's (i.e., the 2017 
CGP) requirements. The objective of this incremental cost analysis is 
to show where or to what extent the proposed 2022 CGP requirements 
impose an incremental increase in administrative and compliance costs 
(such as the cost to conduct site inspections or to prepare compliance 
reports) on operators in relation to costs that are already accounted 
for in the 2017 CGP.
    More broadly, EPA notes that additional unquantified costs and 
benefits result from this action. In developing the next CGP (or 
another NPDES general permit, as appropriate), EPA plans to estimate 
the broader impacts arising from these actions, including costs and 
benefits. Estimates under consideration may include: (1) Assessing how 
costs and benefits are attributed between the CGP and applicable water 
quality standards (including TMDLs) that may be in effect; (2) 
developing a new modeling framework to assess how regulated entities 
understand and implement pollutant controls related to existing and new 
permit obligations; (3) examining whether any underlying cost and 
benefit assumptions need to be updated; (4) examining more broadly how 
EPA can analyze benefits when developing permits; (5) developing more 
robust approaches to assessing uncertainties associated with the 
analytic approaches, including how to quantitatively assess 
uncertainties of key assumptions; and (6) developing a framework to 
analyze the effect of cooperative federalism.
    EPA expects the incremental cost impact on entities that will be 
covered under the 2022 CGP, including small businesses, to be minimal. 
EPA anticipates the approximate average annual incremental cost 
increase (compared to the 2017 CGP) will be $704 to $714 per permitted 
project per year. A copy of EPA's incremental cost analysis for the 
proposed permit, titled ``Incremental Cost Impact Analysis for the 
Proposed 2022 Construction General Permit (CGP),'' is available in the 
docket (Docket ID No. EPA-HQ-OW-2021-0169).

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

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

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

    Executive Order (E.O.) 12898 (59 FR 7629 (February 16, 1994)) 
establishes federal executive policy on environmental justice. Its main 
provision directs federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has preliminarily determined that this proposed permit will not 
have disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because the requirements 
in the proposed permit apply equally to all construction projects that 
disturb one or more acres (or are part of a larger common plan of 
development that disturbs one or more acres) in areas where EPA is the 
permitting authority, and the erosion and sediment control proposed 
provisions increase the level of environmental protection for all 
affected populations over the 2017 CGP. EPA requests comment on this 
preliminary determination and/or any modifications that EPA could make 
to the proposed permit to address environmental justice concerns.

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

    In compliance with Executive Order 13175, EPA consulted with tribal 
officials to gain an understanding of and, where necessary, to address 
the tribal implications of the proposed permit. During this 
consultation, EPA conducted the following activities:
     August 13, 2020--EPA mailed notification letters to all 
tribal leaders, initiating consultation and coordination on the 
proposed permit. The consultation period was from August 13, 2020 to 
October 27, 2020.
     September 9, 2020--EPA participated in the National Tribal 
Water Council monthly conference call and received written comments in 
response.
     September 16, 2020--EPA led an informational webinar to 
provide an overview of the current CGP and information regarding the 
ongoing consultation to the National Tribal Caucus. A total of 34 
tribal representatives attended.

EPA received comments providing input from tribes. These comments are 
described in EPA's tribal consultation summary, which is can be 
accessed at https://www.epa.gov/dockets in the docket for this permit 
(refer to Docket No. EPA-HQ-OW-2021-0169). In addition, EPA received 
comments during the September 16, 2020 informational webinar and a 
September 9, 2020 National Tribal Water Council monthly conference call 
with EPA staff.
    EPA will provide email notification to tribes of the proposed 
permit and invite those interested to provide the Agency with comments. 
EPA also notes that as part of the finalization of this proposed 
permit, it will complete the Section 401 certification procedures with 
all applicable tribes where this permit will apply (see Appendix B).

XI. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy and has not otherwise been designated

[[Page 26033]]

by the Administrator of the Office of Information and Regulatory 
Affairs as a significant energy action.

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

    Pursuant to the National Environmental Policy Act (NEPA) (42 U.S.C. 
4321-4307h), the Council on Environmental Quality's NEPA regulations 
(40 CFR part 15), and EPA's regulations for implementing NEPA (40 CFR 
part 6), EPA has determined that the 2022 reissuance of the CGP is 
eligible for a categorical exclusion requiring documentation under 40 
CFR 6.204(a)(1)(iv). This category includes ``actions involving 
reissuance of a NPDES permit for a new source providing the conclusions 
of the original NEPA document are still valid, there will be no 
degradation of the receiving waters, and the permit conditions do not 
change or are more environmentally protective.'' EPA completed an 
Environmental Assessment/Finding of No Significant Impact (EA/FONSI) 
for the 2012 CGP. The analysis and conclusions regarding the potential 
environmental impacts, reasonable alternatives, and potential 
mitigation included in the EA/FONSI are still valid for the 2022 
reissuance of the CGP because the proposed permit conditions are either 
the same or more environmentally protective. Actions may be 
categorically excluded if the action fits within a category of action 
that is eligible for exclusion and the proposed action does not involve 
any extraordinary circumstances. EPA has reviewed the proposed action 
and determined that the 2022 reissuance of the CGP does not involve any 
extraordinary circumstances listed in 6.204(b)(1) through (10). EPA 
made a similar determination for the 2017 CGP. Prior to the issuance of 
the final 2022 CGP, the EPA Responsible Official will document the 
application of the categorical exclusion and will make it available to 
the public on EPA's website at https://cdxnodengn.epa.gov/cdx-enepa-public/action/nepa/search. If new information or changes to the 
proposed permit involve or relate to at least one of the extraordinary 
circumstances or otherwise indicate that the permit may not meet the 
criteria for categorical exclusion, EPA will prepare an EA or 
Environmental Impact Statement (EIS).

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

Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
Javier Laureano,
Director, Water Division, EPA Region 2.
Carmen Guerrero-Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Leslie Gillespie-Marthaler,
Deputy Director, Water Division, EPA Region 3.
Jeaneanne Gettle,
Director, Water Division, EPA Region 4.
Tera Fong,
Director, Water Division, EPA Region 5.
Charles Maguire,
Deputy Director, Water Division, EPA Region 6.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
Humberto Garcia,
Acting Director, Water Division, EPA Region 8.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.
Daniel D. Opalski,
Director, Water Division, EPA Region 10.
[FR Doc. 2021-09961 Filed 5-11-21; 8:45 am]
BILLING CODE 6560-50-P