[Federal Register Volume 63, Number 128 (Monday, July 6, 1998)] [Notices] [Pages 36490-36519] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 98-17521] [[Page 36489]] _______________________________________________________________________ Part II Environmental Protection Agency _______________________________________________________________________ Reissuance of NPDES General Permits for Storm Water Discharges From Construction Activities in Region 6; Notice Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices [[Page 36490]] ENVIRONMENTAL PROTECTION AGENCY [FRL-6119-7] Reissuance of NPDES General Permits for Storm Water DIscharges from Construction Activities in Region 6 AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of final NPDES general permits. ----------------------------------------------------------------------- SUMMARY: Region 6 is issuing the final National Pollutant Discharge Elimination System (NPDES) general permits for storm water discharges associated with construction activity in Region 6. EPA first issued permits for these activities in September 1992. These permits subsequently expired in September 1997. Today's permits, which replace those expired permits, are similar to the permits issued in 1992. The main changes from those 1992 permits are summarized in the SUPPLEMENTARY INFORMATION section, below. ADDRESSES: The index to the administrative record and the complete administrative record are available at the Water Docket, MC-4101, U.S. EPA, 401 M Street SW, Washington, DC 20460. Copies of information in the record are available upon request. A reasonable fee may be charged for copying. The index to the administrative record is also available from EPA Region 6, Water Quality Protection Division, Customer Service Branch (6WQ-CA) 1445 Ross Avenue, Suite 1200, Dallas, TX 75202. DATES: These general permits shall be effective on July 6, 1998. NOTICE OF INTENT: A Notice of Intent (NOI) form must be submitted to obtain coverage for storm water discharges under these permits. The NOI form is given in Addendum C of these permits. Deadlines for submittal of NOI's are provided in Part II.A of the permits. FOR FURTHER INFORMATION CONTACT: For further information on the NPDES Construction General Permits, call the EPA Region 6 Storm Water Hotline at 1-800-245-6510. Information is also available through the EPA Region 6's storm water web site at ``http://www.epa.gov/region6/sw/ and on the PIPES bulletin board web site at ``http://pipes.ehsg.saic.com/ pipes.htm''. SUPPLEMENTARY INFORMATION: Contents I. Introduction II. Answers to Common Questions III. Section 401 Certification and Coastal Zone Management Act IV. Endangered Species Protection V. Historic Properties Protection VI. Regulatory Review (Executive Order 12866) VII. Unfunded Mandates Reform Act VIII. Paperwork Reduction Act IX. Regulatory Flexibility Act I. Introduction The United States Environmental Protection Agency Region 6 office is reissuing the general permits which authorizes the discharge storm water associated with construction activity. As used in this permit, ``storm water associated with construction activity'' means construction activity disturbing at least five acres, or construction activity disturbing less than five acres which is part of a larger common plan of development or sale with the potential to disturb cumulatively five or more acres (See 40 CFR 122.26(b)(14)(x)). These permits replace the previous Baseline Construction General Permits which were issued for a five-year term in September 1992. The most significant changes from the 1992 permits are:New conditions to protect listed endangered and threatened species and critical habitats; Expanded coverage to construction sites under five acres of disturbed land which are not part of a larger common plan of development or sale when an operator has been designated by the Director to obtain coverage. A requirement to post at the construction site the confirmation of permit coverage (the permit number or copy of the Notice of Intent (NOI) if a permit number has not yet been assigned) including a brief description of the project; Storm water pollution prevention plan performance objectives have been added. These general permits for storm water discharges associated with construction activity was proposed on June 2, 1997 (62 FR 29786), and are hereby issued for the following areas in Region 6: The States of New Mexico and Texas; Indian Country lands in Louisiana, Oklahoma, Texas and New Mexico (except Navajo Reservation Lands and Ute Mountain Reservation Lands); and oil and gas construction in the State of Oklahoma. II. Answers to Common Questions In this section, EPA provides answers to some of the more common questions on the construction storm water permitting program. These answers are fairly broad and may not take into account all scenarios possible at construction sites. More details on these issues are provided at 63 FR 7858 (February 17, 1998) in the ``Summary of Responses to Comments on the Proposed Permit'' section of the reissuance of NPDES General Permits From Construction Activities for Regions 1, 2, 3, 7, 8, 9 and 10. How do I Know if I Need a Permit? You need a storm water permit if you can be considered an ``operator'' of the construction activity that would result in the ``discharge of storm water associated with construction activity.'' You must become a permittee if you meet either of the following two criteria: You have operational control of construction project plans and specifications, including the ability to make modifications to those plans and specifications; or You have day-to-day operational control of those activities at a project which are necessary to ensure compliance with a storm water pollution prevention plan (SWPPP) for the site or other permit conditions (e.g., you are authorized to direct workers at a site to carry out activities required by the SWPPP or comply with other permit conditions). There may be more than one party at a site performing the tasks relating to ``operational control'' as defined above. Depending on the site and the relationship between the parties (e.g., owner, developer), there can either be a single party acting as site operator and consequently be responsible for obtaining permit coverage, or there can be two or more operators with all needing permit coverage. The following are three general operator scenarios (variations on any of the three are possible as the number of ``owners'' and contractors increases): Owner as Sole Permittee. The property owner designs the structures for the site, develops and implements the SWPPP, and serves as general contractor (or has an on-site representative with full authority to direct day-to-day operations). He may be the only party that needs a permit, in which case everyone else on the site may be considered subcontractors and not need permit coverage. Contractor as Sole Permittee. The property owner hires a construction company to design the project, prepare the SWPPP, and supervise implementation of the plan and compliance with the permit (e.g., a ``turnkey'' project). Here, the contractor would be the only party needing a permit. It is under this scenario that an individual having a personal residence built for his own use (e.g., not those to be sold for profit or used as rental property) would not be considered an [[Page 36491]] operator. EPA believes that the general contractor, being a professional in the building industry, should be the entity rather than the individual who is better equipped to meet the requirements of both applying for permit coverage and developing and properly implementing a SWPPP. However, individuals would meet the definition of ``operator'' and require permit coverage in instances where they perform general contracting duties for construction of their personal residences. Owner and Contractor as Co-Permittees. The owner retains control over any changes to site plans, SWPPPs, or storm water conveyance or control designs; but the contractor is responsible for overseeing actual earth disturbing activities and daily implementation of SWPPP and other permit conditions. In this case, both parties may need coverage. However, you are probably not an operator and subsequently do not need permit coverage if: You are a subcontractor hired by, and under the supervision of, the owner or a general contractor (i.e., if the contractor directs your activities on-site, you probably are not an operator); or your activities on site result in earth disturbance and you are not legally a subcontractor, but a SWPPP specifically identifies someone other than you (or your subcontractor) as the party having operational control to address the impacts your activities may have on storm water quality (i.e., another operator has assumed responsibility for the impacts of your construction activities). This particular provision will apply to most utility service line installations. For further information concerning whether utility service line installations meet the definition of operator and require permit coverage, see the discussion under ``Installation of Utility Service Lines'' in Section VIII, Summary Response to Public Comments of the Fact Sheet. In addition, for purposes of this permit and determining who is an operator, ``owner'' refers to the party that owns the structure being built. Ownership of the land where construction is occurring does not necessarily imply the property owner is an operator (e.g., a landowner whose property is being disturbed by construction of a gas pipeline). Likewise, if the erection of a structure has been contracted for, but possession of the title or lease to the land or structure is not to occur until after construction, the would-be owner may not be considered an operator (e.g., having a house built by a residential homebuilder). My Project Will Disturb Less Than Five Acres, but it May Be Part of a ``Larger Common Plan of Development or Sale.'' How Can I Tell and What Must I do? If your smaller project is part of a larger common plan of development or sale that collectively will disturb five or more acres (e.g., you are building on six half-acre residential lots in a 10-acre development or are putting in a parking lot in a large retail center) you need permit coverage. The ``plan'' in a common plan of development or sale is broadly defined as any announcement or piece of documentation (including a sign, public notice or hearing, sales pitch, advertisement, drawing, permit application, zoning request, computer design, etc.) or physical demarcation (including boundary signs, lot stakes, surveyor markings, etc.) indicating construction activities may occur on a specific plot. You must still meet the definition of operator in order to be required to get permit coverage, regardless of the acreage you personally disturb. As a subcontractor, it is unlikely you would need a permit. For some situations where less than five acres of the original common plan of development remain undeveloped, a permit may not be needed for the construction projects ``filling in'' the last parts of the common plan of development. A case in which a permit would not be needed is where several empty lots totaling less than five acres remain after the rest of the project had been completed, providing stabilization had also been completed for the entire project. However, if the total area of all the undeveloped lots in the original common plan of development was more than five acres, a permit would be needed. When Can You Consider Future Construction on a Property To Be Part of a Separate Plan of Development or Sale? In many cases, a common plan of development or sale consists of many small construction projects that collectively add up to five (5) or more acres of total disturbed land. For example, an original common plan of development for a residential subdivision might lay out the streets, house lots, and areas for parks, schools and commercial development that the developer plans to build or sell to others for development. All these areas would remain part of the common plan of development or sale until the intended construction occurs. After this initial plan is completed for a particular parcel, any subsequent development or redevelopment of that parcel would be regarded as a new plan of development, and would then be subject to the five-acre cutoff for storm water permitting. What Must I do to Satisfy The Permit Eligibility Requirements Related to Endangered Species? In order to be eligible for this permit, you must follow the procedures and examples found in Addendum A for the protection of endangered species. You cannot submit your NOI until you are able to certify your eligibility for the permit. Enough lead time should be built into your project schedule to accomplish these procedures. If another operator has certified eligibility for the project (or at least the portion of the project you will be working on) in his NOI, you will usually be able to rely on his certification of project eligibility and not have to repeat the process. EPA created this ``coat tail'' eligibility option for protection of endangered species to allow the site developer/owner to obtain up-front ``clearance'' for a project, thereby avoiding duplication of effort by his contractors and unnecessary delays in construction. What Does the Permit Require Regarding Historic Preservation? Today's permit does not currently impose requirements related to historic preservation, though EPA may modify the permit at a later date after further discussions with the Advisory Council on Historic Preservation. Therefore, under today's permit, EPA will conduct consultations as it did under the pre-existing Baseline Construction General Permit on a case-by-case basis as needed. Removal of the proposed permit provisions related to historic preservation in no way relieves applicants and permittees of their obligations to comply with applicable State, Tribal or local laws for the preservation of historic properties. EPA reminds permittees that according to section 110(k) of the National Historic Preservation Act (NHPA), an intentional action to significantly adversely affect historic resources with intent to avoid Federal historic preservation requirements may jeopardize future permit coverage for such a permittee. How Many Notices of Intent (NOIs) Must I Submit? Where and When Are They Sent? You only need to submit one NOI to cover all activities on any one common plan of development or sale. The site map you develop for the storm water pollution prevention plan identifies which parts of the overall project are [[Page 36492]] under your control. For example, if you are a homebuilder in a residential development, you need submit only one NOI to cover all your lots, even if they are on opposite sides of the development. The NOI must be postmarked two days before you begin work on site. The address for submitting NOIs is found in the instruction portion of the NOI form and in Part II.C. of the CGP. You must also look in Part X of the permit to determine if copies of the NOI form are to be sent to a State or Indian Tribe. If I Am on an ongoing Construction Project, do I Have to Fill in a New NOI To Be Covered by the Permit? Yes, if you are on an ongoing construction project, a construction project which started prior to the effective date of this permit, you must complete a revised NOI Form (EPA Form 3510-9) to obtain coverage under this permit. However, applicants who have previously submitted an NOI for permit coverage prior to the effective date of this permit have the option to leave the section regarding Addendum A on endangered species blank unless there is a potential impact on endangered species or their habitat. How do I Know Which Permit Conditions Apply to Me? You are responsible for complying with all parts of the permit that are applicable to the construction activities you perform. Part III.E. of the permit defines the roles of various operators at a site. In addition, several States and Indian Tribes require alternative or additional permit conditions, and these can be found in Part X of the permit. Do I Have Flexibility in Preparing the Storm Water Pollution Prevention Plan (SWPPP) and Selecting Best Management Practices (BMPs) for My Site? Storm water pollution prevention plan requirements were designed to allow maximum flexibility to develop the needed storm water controls based on the specifics of the site. Some of the factors you might consider include: more stringent local development requirements and/or building codes; precipitation patterns for the area at the time the project will be underway; soil types; slopes; layout of structures for the site; sensitivity of nearby water bodies; safety concerns of the storm water controls (e.g., potential hazards of water in storm water retention ponds to the safety of children; the potential of drawing birds to retention ponds and the hazards they pose to aircraft); and coordination with other site operators. Must Every Permittee Have His Own Separate SWPPP or Is a Joint Plan Allowed? The only requirement is that there be at least one SWPPP for a site which incorporates the required elements for all operators, but there can be separate plans if individual permittees so desire. EPA encourages permittees to explore possible cost savings by having a joint SWPPP for several operators. For example, the prime developer could assume the inspection responsibilities for the entire site, while each homebuilder shares in the installation and maintenance of sediment traps serving common areas. If a Project Will Not Be Completed Before This Permit Expires, How Can I Keep Permit Coverage? If the permit is reissued or replaced with a new one before the current one expires, you will need to comply with whatever conditions the new permit requires in order to transition coverage from the old permit. This usually includes submitting a new NOI. If the permit expires before a replacement permit can be issued, the permit will be administratively ``continued.'' You are automatically covered under the continued permit, without needing to submit anything to EPA, until the earliest of: The permit being reissued or replaced; Submittal of a Notice of Termination (NOT); Issuance of an individual permit for your activity; or The Director issues a formal decision not to reissue the permit, at which time you must seek coverage under an alternative permit. When Can I Terminate Permit Coverage? Can I Terminate Coverage (i.e., Liability for Permit Compliance) Before the Entire Project Is Finished? You can submit an NOT for your portion of a site providing: (1) You have achieved final stabilization of the portion of the site for which you are a permittee (including, if applicable, returning agricultural land to its pre-construction agricultural use); (2) another operator/ permittee has assumed control according to Part VI.G.2.c. of the permit over all areas of the site that have not been finally stabilized which you were responsible for (for example, a developer can pass permit responsibility for lots in a subdivision to the homebuilder who purchases those lots, providing the homebuilder has filed his own NOI); or (3) for residential construction only, you have completed temporary stabilization and the residence has been transferred to the homeowner. III. Section 401 Certification and Coastal Zone Management Act Section 401 of the Clean Water Act states that EPA may not issue an NPDES permit until the State in which the discharge will originate grants or waives certification to ensure compliance with appropriate requirements of the Act and State law. The Region has received section 401 certification from the appropriate States and Indian Tribes for all facilities covered by today's permits. Additional permit requirements were required as a condition of certification by the State of Texas and by the Pueblos of Isleta, Nambe, Picuris, Pojoaque, Sandia, Tesuque and Santa Clara in New Mexico. These additional permit requirements are contained in Part X of the permits. The Coastal Zone Management Act (CZMA) requires all Federal permitting actions to be reviewed for consistency with each approved State Coastal Zone Management Plan. Texas is the only State covered by these permits that has an approved Coastal Zone Management Plan. EPA Region 6 has determined that the permit is consistent with the Texas Coastal Zone Management Plan. The Texas Coastal Zone Management Plan procedures for Federal consistency with Coastal Management Program goals and policies (31 TAC 506.12) state that if an activity requiring a state agency or subdivision action above thresholds requires an equivalent Federal permit, the Texas Coastal Coordination Council may determine the consistency of the state agency/subdivision action or the Federal permit, but not both. Permittees whose construction projects are located within the boundary of the Texas Coastal Management Program above thresholds will be required, as a part of pre-construction project approval, to have a consistency review by the Texas Council. An additional consistency review by the Texas Coastal Coordination Council of the storm water discharges from these construction projects covered by today's permit is, therefore, not required. IV. Endangered Species Protection A. Background The Construction General Permit (CGP) also contains conditions to ensure the activities regulated by it are protective of species that are listed under the Endangered Species Act (ESA) as endangered or threatened (known as ``listed species''), and listed species habitat that is designated under [[Page 36493]] the ESA as critical (``critical habitat''). In addition, the permit's coverage does not extend to discharges and discharge-related activities likely to jeopardize the continued existence of species proposed but not yet listed as endangered or threatened or result in the adverse modification of habitat proposed to be designated critical habitat. The ESA places several different requirements on activities covered by the CGP. First, section 9 of the ESA and the ESA implementing regulations generally prohibit any person from ``taking'' a listed animal species (e.g., harassing or harming it) unless the take is authorized under the ESA. This prohibition applies to all entities and includes EPA, permit applicants, permittees and the public at large. Second, section 7(a)(2) of the ESA requires that Federal agencies consult with the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) (``the Services'') to insure that any action authorized, funded or carried out by them (also known as ``agency actions'') are not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. Jeopardizing the continued existence of a listed species means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers or distribution of that species (See 40 CFR 402.02). The ESA section 7 implementing regulations at 50 CFR 402 apply this consultation requirement to any action authorized by a Federal agency that may affect listed species or critical habitat, including permits. This effect, among other things, can be beneficial, detrimental, direct and indirect. The issuance of the CGP by EPA is thus subject to the ESA section 7(a)(2) consultation requirements. Finally, ESA section 7(a)(1) directs Federal agencies to use their authority to further the purposes of the ESA by carrying out programs for the conservation of listed species, and section 7(a)(4) directs Federal agencies to confer with the Services on Agency actions likely to jeopardize the existence of species proposed but not yet finally listed or result in the adverse modification of critical habitat proposed to be designated. The ESA regulations provide for two types of consultation: formal and informal. Informal consultation is an optional process that includes discussions, correspondence, etc. between the Services and a Federal agency or a designated non-Federal representative (NFR) to determine whether a Federal action is likely to have an adverse effect on listed species or critical habitat. During informal consultation the Services may suggest modifications to the action that a Federal agency, permit applicant or non-Federal representative could implement to avoid likely adverse effects to listed species or critical habitat. If adverse effects are likely and those effects cannot be addressed through informal consultation, then formal consultation generally occurs. Also of relevance for the CGP are ESA section 10 incidental taking permits. Section 10 of the ESA allows persons, including non-Federal entities to incidentally take listed animal species, where otherwise prohibited, through the issuance of a permit after development of a habitat conservation plan (HCP). These procedures were developed to allow non-Federal entities such as developers to, among other things, alter habitat without incurring takings liability where take is minimized to the extent practicable. B. Conditions in the June 2, 1997 Proposed Permit To Protect Species and Critical Habitat The CGP was proposed with a number of conditions to ensure that storm water discharges and best management practices (BMPs) to control storm water runoff were protective of listed species or critical habitat. Specifically, coverage under the proposed CGP would be granted only under the following circumstances: 1. An applicant's storm water discharges or BMPs to control storm water runoff were not likely to adversely affect listed species (identified in Addendum A of the permit) or critical habitat; or 2. The applicant's activity was previously authorized under Sec. 7 or Sec. 10 of the Endangered Species Act (ESA) and that authorization addressed storm water discharges and BMPs to control storm water runoff; or 3. The applicant's activity was considered as part of a larger, more comprehensive assessment of impacts on endangered and threatened species under Sec. 7 or Sec. 10 of the ESA which accounted for storm water discharges and BMPs to control storm water runoff; or 4. Consultation under Sec. 7 of the ESA was conducted for the applicant's activity which resulted in either a no jeopardy opinion or a written concurrence on a finding of no likelihood of adverse effects; or 5. The applicant's activity was considered as part of a larger, more comprehensive site-specific assessment of impacts on endangered and threatened species by the owner or other operator of the site and that permittee certified eligibility under items 1., 2., 3. or 4. above. The proposal required that applicants assess the impacts of their ``storm water discharges'' and ``BMPs to control storm water runoff'' on listed species and critical habitat that are located ``in proximity'' to the those discharges and BMPs when developing Storm Water Pollution Prevention Plans (SWPPPs) as part of the application process. The proposed CGP also required applicants to include measures in SWPPPs to protect listed species and critical habitat. ``In proximity'' was defined in Addendum A to include species: Located in the path or immediate area through which or over which contaminated point source storm water flows from construction activities to the point of discharge into the receiving water; Located in the immediate vicinity of, or nearby, the point of discharge into receiving waters; or Located in the area of a site where storm water BMPs are planned or are to be constructed. EPA also solicited comment on whether the area or scope of impacts to be considered by applicants should be broadened to encompass listed species found on the entire construction site and not just those species found ``in proximity'' as currently defined in Addendum A. Failure by permittees to abide by measures in their SWPPPs to protect species and critical habitat would invalidate permit coverage. Attached to the proposed permits were instructions (Addendum A) to assist permit applicants in making this inquiry. The proposal indicated that a county-by-county species list would be included in Addendum A of the final permit to assist applicants in determining if listed species might be ``in proximity'' to storm water discharges and BMPs. EPA did not provide a draft species list in proposed Addendum A. Instead, EPA referred commenters to a similar species list that was used for an earlier EPA-issued storm water permit, the Multisector Storm Water General Permit, that was issued on September 29, 1995 (See 62 FR 29792, note 12, June 2, 1997). [[Page 36494]] C. Final CGP Conditions To Protect Listed Species On April 28, 1997, EPA entered into formal consultation with the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (the ``Services'') for issuance of the CGP. After discussions with the Services, EPA terminated formal consultation and entered into ESA section 7 informal consultation and conferencing with the Fish and Wildlife Service (FWS) and the National Fisheries Service Services (NMFS) on June 11, 1997. On November 4, and 26, 1997, EPA completed ESA informal consultation when NMFS and FWS provided their respective concurrences with EPA's finding that issuance of the CGP was not likely to adversely affect listed species or critical habitat. However, the negotiations on CGP did not consider ongoing construction projects; i.e., construction projects which started prior to the effective date of these permits. In January, 1998, Region 6 decided to address ESA certification issues for ongoing construction projects before finalizing the permit. In February, 1998, EPA Region 6 began a supplemental informal consultation with FWS and NMFS on language to clarify requirements for ongoing construction activity. EPA Region 6 completed ESA informal section 7 consultation and conferencing when FWS and NMFS provided their concurrences that issuance of these permits is unlikely to adversely affect listed species or critical habitat on June 9, and 15, respectively. With the completion of these consultations, EPA Region 6 has reduced the administrative burden associated with obtaining permit coverage for ongoing construction projects for the federal agencies and the regulated community. Based on that consultation and in consideration of comments received on the June 2, 1997, proposal, EPA has placed the following conditions in the permit to protect listed species and critical habitat (See Part I.B.3.e). Coverage under the CGP is available for construction projects only if: a. The storm water discharges and storm water discharge-related activities are not likely to adversely affect listed species or critical habitat (Part I.B.3.e.(2)(a)); or b. Formal or informal consultation with the Services under section 7 of the Endangered Species Act (ESA) has been concluded which addresses the effects of the applicant's storm water discharges and storm water discharge-related activities on listed species and critical habitat and the consultation results in either a no jeopardy opinion or a written concurrence by the Service(s) on a finding that the applicant's storm water discharges and storm water discharge-related activities are not likely to adversely affect listed species or critical habitat. A section 7 consultation may occur in the context of another Federal on (e.g., an ESA section 7 consultation was performed for issuance of a wetlands dredge and fill permit for the project, or as part of a National Environmental Policy Act [NEPA] review); or c. The applicant's construction activities are covered by a permit under section 10 of the ESA and that permit addresses the effects of the applicant's storm water discharges and storm water discharge- related activities on listed species and critical habitat (Part I.B.3.e.(2)(c)); or d. The applicant's storm water discharges and storm water discharge-related activities were already addressed in another operator's certification of eligibility under Part I.B.3.e.(2)(a), (b), or (c) which included the applicant's project area. By certifying eligibility under Part I.B.3.e.(2)(d), the applicant agrees to comply with any measures or controls upon which the other operator's certification under Part I.B.3.e.(2)(a), (b) or (c) was based. The CGP requires that applicants consider effects to listed species and critical habitat when developing SWPPPs and require that those plans include measures, as appropriate, to protect those resources. Failure by permittees to abide by measures in the SWPPPs to protect species and critical habitat may invalidate permit coverage. This permit requires all projects commencing construction after the effective date of this permit, to follow the procedures provided in Addendum A of the permit when applying for permit coverage. The Director may also require any existing permittee or applicant to provide documentation of eligibility for this permit using the procedures in Addendum A, where EPA or the Fish and Wildlife Services determine that there is a potential impaction on endangered or threatened species or a critical habitat. Nothing in the permit relieves applicants which are under construction as of the effective date of this permit of their obligations they may have to comply with any requirements of the Endangered Species Act. Addendum A contains instructions to assist permit applicants in making this inquiry. Those instructions require that applicants ascertain: (1) If their construction activities would occur in critical habitat; (2) whether listed species are in the project area; and (3) whether the applicant's storm water discharges and discharge-related activities are likely to adversely affect listed species or critical habitat. If adverse effects are likely, then applicants would have to meet one of the eligibility requirements of Part I.B.3.e.(2)(b)-(d) (paragraphs b., c., and d. above) to receive permit coverage. ``Discharge-related activities'' include activities which cause point source storm water pollutant discharges including but not limited to excavation, site development, and other surface disturbing activities, and measures to control, reduce or prevent storm water pollution including the siting, construction and operation of BMPs. The ``project area'' includes: 1. Area(s) on the construction site where storm water discharges originate and flow towards the point of discharge into the receiving waters (this includes the entire area or areas where excavation, site development, or other ground disturbance activities occur), and the immediate vicinity; 2. Area(s) where storm water discharges flow from the construction site to the point of discharge into receiving waters; 3. Area(s) where storm water from construction activities discharges into the receiving waters and the area(s) in the immediate vicinity of the point of discharge; and 4. Area(s) where storm water BMPs will be constructed and operated, including any area(s) where storm water flows to and from BMPs. The project area will vary with the size and structure of the construction activity, the nature and quantity of the storm water discharges, the measures (including BMPs) to control storm water runoff, and the type of receiving waters. Addendum A also contains information on where to find information on listed and proposed species organized by State and county to assist applicants in determining if further inquiry is necessary as to whether listed species are present in the project area. Applicants can check the Office of Wastewater Management's website (http://www.epa.gov/owm). CGP applicants can also get updated species information for their county by calling the appropriate FWS or NMFS office. EPA Region 6 applicants can also contact the EPA Region 6 Storm Water Hotline (1- 800-245-6510) for updated species information. The CGP also requires that applicants comply with any conditions imposed under the eligibility requirements of Part I.B.3.e.(2)a., b., c., or d. above to remain eligible for coverage under this [[Page 36495]] permit. Such conditions must be incorporated in the applicant's SWPPP. The CGP does not authorize any prohibited take (as defined under section 3 of the ESA and 50 CFR 17.3) of endangered or threatened species unless such takes are authorized under sections 7 or 10 of the ESA. The CGP does not authorize any storm water discharges or storm water discharge-related activities that are likely to jeopardize the continued existence of any species that are listed or proposed to be listed as endangered or threatened under the ESA or result in the adverse modification or destruction of habitat that is designated or proposed to be designated as critical under the ESA. It is EPA's intention to provide permit applicants with the greatest possible flexibility in meeting permit requirements for protecting listed species and critical habitat. Thus, EPA is allowing applicants to use either section 7 or section 10 ESA mechanisms to address situations where adverse effects are likely (See Part I.B.3.e.(2)(b) and (c)). Also, to give applicants additional flexibility in meeting the Part I.B.3.e. eligibility requirements and with the timing of informal consultations, the permit automatically designates CGP applicants as non-Federal representatives for the purpose of carrying out informal consultation. However, EPA notes that meeting ESA requirements raises difficult implementation issues on how to best ensure that the permits are protective of listed species and critical habitats without unduly burdening permit applicants, permittees, and State, local, and Federal governmental entities. Thus, EPA intends in the future to review those permit conditions and procedures that relate to the ESA and the protection of historic resources to see how well that goal has been achieved and may revise the permits if necessary to better achieve that goal. V. Historic Property Protection A. Background The National Historic Preservation Act of 1966, as amended, (NHPA) establishes a national historic preservation program for the identification and protection of historic properties and resources. Under the NHPA, identification of historic properties is coordinated by the State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs) or other Tribal Representatives (in the absence of a THPO). Section 106 of the NHPA requires Federal agencies to take into account the effects of their actions on historic properties that are listed or eligible for listing on the National Register of Historic Places and to seek comments from the Advisory Council on Historic Preservation (ACHP). The permit was proposed with a number of conditions pertaining to the consideration of historic properties. EPA has decided to not include those conditions because the ACHP and the National Conference of State Historic Preservation Officers (NCSHPO) have requested that EPA not include such conditions in the final permit at this time. The ACHP and the NCSHPO have recommended that EPA issue the permit but recommend that EPA continue working with them and Tribes regarding the possible development of a more comprehensive and efficient approach to ensure that effects to historic properties are given appropriate consideration while ensuring undue burdens are not imposed on applicants and regulatory authorities. EPA plans to continue working with the ACHP, NCSHPO and Tribes on this effort and may modify the permit to incorporate procedures regarding the protection of historic resources at a later date. B. Future CGP Conditions To Protect or Consider Effects to Historic Properties In response to comments received on the permit proposal and because the Agency is still discussing historic preservation with the Advisory Council on Historic Preservation (ACHP), the final permit reserves permit requirements related to historic preservation. Today's final permit does not include the eligibility restrictions and evaluation requirements from the proposed permit. After future discussions with the ACHP, EPA may modify the permit to reflect those discussions. VI. Regulatory Review (Executive Order 12866) Under Executive Order 12866, (58 FR 51735 [October 4, 1993]) the Agency must determine whether the regulatory action is ``significant'' and therefore subject to OMB review and the requirements of the Executive Order. The Order defines ``significant regulatory action'' as one that is likely to result in a rule that may have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities; create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this re- issued general permit is not a ``significant regulatory action'' under the terms of Executive Order 12866. VII. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under UMRA section 202, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, UMRA Sec. 205 generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of UMRA Sec. 205 do not apply when they are inconsistent with applicable law. Moreover, UMRA Sec. 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes an explanation with the final rule why the alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under UMRA Sec. 203 a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating and advising small governments on compliance with the regulatory requirements. A. UMRA Section 202 and the Construction General Permit UMRA Sec. 202 requires a written statement containing certain assessments, estimates and analyses prior to the promulgation of certain general notices of proposed rulemaking (2 U.S.C. 1532). UMRA Sec. 421(10) defines [[Page 36496]] ``rule'' based on the definition of rule in the Regulatory Flexibility Act. Section 601 of the Regulatory Flexibility Act defines ``rule'' to mean any rule for which an agency publishes a general notice of proposed rulemaking pursuant to Sec. 553 of the Administrative Procedure Act. EPA does not propose to issue NPDES general permits based on APA Sec. 553. Instead, EPA relies on publication of general permits in the Federal Register in order to provide ``an opportunity for a hearing'' under CWA Sec. 402(a), 33 U.S.C. 1342(a). Nonetheless, EPA has evaluated permitting alternatives for regulation of storm water discharges associated with construction activity. The general permit that EPA proposes to re-issue would be virtually the same NPDES general permit for construction that many construction operators have used over the past five years. Furthermore, general permits provide a more cost and time efficient alternative for the regulated community to obtain NPDES permit coverage than that provided through individually drafted permits. B. UMRA Section 203 and the Construction General Permit Agencies are required to prepare small government agency plans under UMRA Sec. 203 prior to establishing any regulatory requirement that might significantly or uniquely affect small governments. ``Regulatory requirements'' might, for example, include the requirements of these NPDES general permits for discharges associated with construction activity, especially if a municipality sought coverage under one of the general permits. EPA envisions that some municipalities--those with municipal separate storm sewer systems serving a population over 100,000--may elect to seek coverage under these proposed general permits. For many municipalities, however, a permit application is not required until August 7, 2001, for a storm water discharge associated with construction activity where the construction site is owned or operated by a municipality with a population of less than 100,000. (See 40 CFR 122.26(e)(1)(ii) and (g)). In any event, any such permit requirements would not significantly affect small governments because most State laws already provide for the control of sedimentation and erosion in a similar manner as today's general permit. Permit requirements also would not uniquely affect small governments because compliance with the permit's conditions affects small governments in the same manner as any other entity seeking coverage under the permit. Thus, UMRA Sec. 203 would not apply. VIII. Paperwork Reduction Act On June 2, 1997, EPA solicited comments on the proposed revision to the current Information Collection Request (ICR) document for this permit (ICR approved OMB; OMB No. 2040-0086, expiration, August 31, 1998) to accommodate the increased information requirements in the new NOI for the construction general permit (62 FR 29826). A revised NOI form has been approved (EPA Form 3510-9 OMB No. 2040-0188.) This revised form is included in the permit in Addendum C. EPA estimates an increase in the burden associated with filling out the NOI form for the permit due to added requirements under the Endangered Species Act. EPA also anticipates a small increase in the time because of the requirement to submit an NOT upon completion of construction activities. IX. Regulatory Flexibility Act Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., a Federal agency must prepare an initial regulatory flexibility analysis ``for any proposed rule'' for which the agency ``is required by section 553 of [the Administrative Procedure Act (APA)], or any other law, to publish general notice of proposed rulemaking.'' The RFA exempts from this requirement any rule that the issuing agency certifies ``will not, if promulgated, have a significant economic impact on a substantial number of small entities.'' EPA did not prepare an initial regulatory flexibility analysis (IRFA) for the proposed CGP. (Note that in today's action, EPA is issuing a separate general permit for each jurisdiction where EPA issues permits; i.e., in certain States, Indian Country lands and Federal facilities within certain States. However, for purposes of readability, reference is made to the permits in the singular form such as ``permit'' or ``CGP'' rather than in plural form.) In the notice of the proposed permit, EPA explained its view that issuance of an NPDES general permit is not subject to rulemaking requirements, including the requirement for a general notice of proposed rulemaking, under APA section 553 or any other law, and is thus not subject to the RFA requirement to prepare an IRFA. Nevertheless, in keeping with EPA's policy to consider the impact of its actions on small entities even when it is not legally required to do so, the Agency considered the potential impact of the permit on small entities that would be eligible for coverage under the permit. EPA concluded that the permit, if issued as drafted, would not have a significant impact on a substantial number of small entities. EPA based its conclusion on the fact that the draft permit was largely the same as the previous permit issued in 1992 and, to the extent it differed, provided dischargers with more flexibility than that permit allowed. Some commenters on the proposed CGP disagreed with EPA's conclusions that NPDES general permits are not subject to rulemaking requirements and that the proposed permit would not have a significant impact on small entities. They asserted that the CGP is subject to rulemaking requirements and thus the RFA, and that the Agency should have prepared an IRFA for the permit. In light of the comments received, EPA further considered whether NPDES general permits are subject to rulemaking requirements. The Agency reviewed its previous NPDES general permitting actions and related statements in the Federal Register or elsewhere. This 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. EPA also reviewed again the applicable law, including the CWA, relevant CWA case law and the APA, as well as the Attorney General's Manual on the APA (1947). On the basis of its review, EPA has concluded, as set forth in the proposal, that NPDES general permits are permits under the APA and thus not subject to APA rulemaking requirements or the RFA. The APA defines two broad, mutually exclusive categories of agency action--``rules'' and ``orders.'' Its definition of ``rule'' encompasses ``an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency * * *'' APA section 551(4). Its definition of ``order'' is residual: ``a final disposition * * * of an agency in a matter other than rule making but including licensing.'' APA section 551(6) (emphasis added). The APA defines ``license'' to ``include * * * an agency permit * * *'' APA section 551(8). The APA thus categorizes a permit as an order, which by the APA's definition is not a rule. Section 553 of the APA establishes ``rule making'' requirements. The APA defines rule making as ``the agency process for formulating, amending, or repealing a rule.'' APA Sec. 551(5). By its terms, then, Sec. 553 applies only to ``rules'' and not also to ``orders,'' which [[Page 36497]] include permits. As the Attorney General's Manual on the APA explains, ``the entire Act is based upon a dichotomy between rule making and adjudication [the agency process for formulation of an order]'' (p. 14). The CWA specifies the use of permits for authorizing the discharge of pollutants to waters of the United States. Section 301(a) of the CWA prohibits discharges of pollutants ``[except as in compliance with'' specified sections of the CWA, including section 402. 33 U.S.C. 1311(a). Section 402 of the CWA authorizes EPA ``to issue a permit for the discharge of any pollutant * * *, notwithstanding section [301(a) of the CWA].'' 33 U.S.C. 1342(a). Thus, the only circumstances in which a discharge of pollution may be authorized is where the Agency has issued a permit for the discharge. Courts, recognizing that a permit is the necessary condition-precedent to any lawful discharge, specifically suggested the use of area-wide and general permits as a mechanism for addressing the Agency's need to issue a substantial number of permits. See NRDC v. Train, 396 F.Supp. 1393, 1402 (D.D.C. 1975); NRDC v. Costle, 568 F.2d 1369, 1381. (D.C. Cir. 1977). Adopting the courts' suggestion, EPA has made increasing use of general permits in its CWA regulatory program, particularly for storm water discharges. In the Agency's view, the fact that an NPDES general permit may apply to a large number of different dischargers does not convert it from a permit into a rule. As noted above, the courts which have faced the issue of how EPA can permit large numbers of discharges under the CWA have suggested use of a general permit, not a rule. Under the APA, the two terms are mutually exclusive. Moreover, an NPDES general permit retains unique characteristics that distinguish a permit from a rule. First, today's NPDES general permit for storm water discharges associated with construction activity is effective only with respect to those dischargers that choose to be bound by the permit. Thus, unlike the typical rule, this NPDES general permit does not impose immediately effective obligations of general applicability. A discharger must choose to be covered by this general permit and so notify EPA. A discharger always retains the option of obtaining its own individual permit. Relatedly, the terms of the NPDES general permit are enforceable only against dischargers that choose to make use of the permit. If a source discharges without authorization of a general or an individual permit, the discharger violates Sec. 301 of the Act for discharging without a permit, not for violating the terms of an NPDES general permit. Because the CWA and its case law make clear that NPDES permits are the congressionally chosen vehicle for authorizing discharges of pollutants to waters of the United States, the APA's rulemaking requirements are inapplicable to issuance of such permits, including today's general permit. Further, while the CWA requires that NPDES permits be issued only after an opportunity for a hearing, it does not require publication of a general notice of proposed rulemaking. Thus, NPDES permitting is not subject to the requirement to publish a general notice of proposed rulemaking under the APA or any other law. Accordingly, it is not subject to the RFA. At the same time, 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. Indeed, the point of issuing a general permit is to provide a speedier means of permitting large number of sources and save dischargers and EPA time and effort. Since the Agency hopes that many dischargers will make use of a general permit and since the CWA requires EPA to provide an opportunity for ``a hearing'' prior to issuance of a permit, EPA provides the public with notice of a draft general permit and an opportunity to comment on it. From public comments, EPA learns how to better craft a general permit to make it appropriate for, and acceptable to, the largest number of potential permittees. This same 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. This process, however, is voluntary, and does not trigger rulemaking or RFA requirements. In the case of the CGP being issued today, 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. Specifically, EPA has analyzed the potential impact of the general permit on small entities and found that it will not have a significant economic impact on a substantial number of small entities. Like the previous general permit that it replaces (the Baseline Construction General Permit), the permit will make available to many small entities, particularly operators of construction sites, a streamlined process for obtaining authorization to discharge. Of the possible permitting mechanisms available to dischargers subject to the CWA, NPDES general permits are designed to reduce the reporting and monitoring burden associated with NPDES permit authorization, especially for small entities with discharges having comparatively less potential for environmental degradation than discharges typically regulated under individual NPDES permits. Thus, general permits like the permit at issue here provide small entities with a permitting application option that is much less burdensome than NPDES individual permit applications. Furthermore, the general permit is virtually identical to its predecessor, the Baseline Construction General Permit, under which many construction operators have operated during the past five years. Moreover, the other new provisions of the permit have been designed to minimize burdens on small entities, including eliminating the requirement that construction site operators require that their contractors and subcontractors sign a standard certification statement agreeing to abide by storm water pollution prevention plan provisions developed for a project. In today's general permit, only the operator(s) of a construction site are required to satisfy certification requirements under the permit. EPA believes this modification from the prior permit should reduce any such adverse economic impacts on both operators and contractors/subcontractors who, in many instances, are small entities. In view of the foregoing, the Regional Administrators find that the final general permit, even if it were a rule, will not have a significant economic impact on a substantial number of small entities. Storm Water General Permit for Construction Activities in Region 6 NPDES Permit No. [See Part I.A.] Authorization to Discharge Under the National Pollutant Discharge Elimination System In compliance with the provisions of the Clean Water Act, as amended, (33 U.S.C. 1251 et. seq.), except as provided in Part I.B.3 of this permit, operators of construction activities located in an area specified in Part I.A. and who submit a Notice of Intent in accordance with Part II, are authorized to discharge pollutants to waters of the United States in accordance with the conditions and requirements set forth herein. This permit shall become effective on [insert the date of publication of the final permit in the Federal Register]. [[Page 36498]] This permit and the authorization to discharge shall expire at midnight, July 7, 2003. Signed: June 24, 1998. William B. Hathaway, Director, Water Quality Protection Division. NPDES General Permits for Storm Water Discharges from Construction Activities Table of Contents Part I. Coverage Under this Permit A. Permit Area B. Eligibility C. Obtaining Authorization D. Terminating Coverage Part II. Notice of Intent Requirements A. Deadlines for Notification B. Contents of Notice of Intent C. Where to Submit Part III. Special Conditions, Management Practices, and Other Non- Numeric Limitations A. Prohibition on Non-Storm Water Discharges B. Releases in Excess of Reportable Quantities C. Spills D. Discharge Compliance with Water Quality Standards E. Responsibilities of Operators F. Consistency with the Texas Coastal Management Program Part IV. Storm Water Pollution Prevention Plans A. Deadlines for Plan Preparation and Compliance B. Signature, Plan Review and Making Plans Available C. Keeping Plans Current D. Contents of Plan Part V. Retention of Records A. Documents B. Accessibility C. Addresses Part VI. Standard Permit Conditions A. Duty to Comply B. Continuation of the Expired General Permit C. Need to Halt or Reduce Activity not a Defense D. Duty to Mitigate E. Duty to Provide Information. F. Other Information G. Signatory Requirements H. Penalties for Falsification of Reports I. Oil and Hazardous Substance Liability J. Property Rights K. Severability L. Requiring an Individual Permit or an Alternative General Permit M. State/Tribal Environmental Laws N. Proper Operation and Maintenance O. Inspection and Entry P. Permit Actions Part VII. Reopener Clause Part VIII. Termination of Coverage A. Notice of Termination B. Addresses Part IX. Definitions Part X. Permit Conditions Applicable to Specific States, Indian Country Lands, or Territories Addenda A. Endangered Species B. Historic Properties (Reserved) C. Notice of Intent (NOI) Form D. Notice of Termination (NOT) Form Part I. Coverage Under This Permit A. Permit Area The permit language is structured as if it were a single permit, with State, Indian Country land, or other area-specific conditions specified in Part X. Permit coverage is actually provided by legally separate and distinctly numbered permits covering each of the following areas: Region 6 LAR10*##I: Indian Country lands in the State of Louisiana NMR10*###: The State of New Mexico, except Indian Country lands NMR10*##I: Indian Country lands in the State of New Mexico, except Navajo Reservation Lands and Ute Mountain Reservation Lands OKR10*##I: Indian Country lands in the State of Oklahoma OKR10*##F: Oil and Gas Sites in State of Oklahoma TXR10*###: The State of Texas, except Indian Country lands TXR10*##I: Indian Country lands in the State of Texas B. Eligibility 1. Permittees are authorized to discharge pollutants in storm water runoff associated with construction activities as defined in 40 CFR 122.26(b)(14)(x) and those construction site discharges designated by the Director as needing a storm water permit under 122.26(a)(1)(v) or under 122.26(a)(9) and 122.26(g)(1)(i). Discharges identified under Part I.B.3 are excluded from coverage. Any discharge authorized by a different NPDES permit may be commingled with discharges authorized by this permit. 2. This permit also authorizes storm water discharges from support activities (e.g., concrete or asphalt batch plants, equipment staging yards, material storage areas, excavated material disposal areas, borrow areas) provided: a. The support activity is directly related to a construction site that is required to have NPDES permit coverage for discharges of storm water associated with construction activity; b. The support activity is not a commercial operation serving multiple unrelated construction projects by different operators, and does not operate beyond the completion of the construction activity at the last construction project it supports; and c. Appropriate controls and measures are identified in a storm water pollution prevention plan covering the discharges from the support activity areas. 3. Limitations on Coverage a. Post Construction Discharges. This permit does not authorize storm water discharges that originate from the site after construction activities have been completed and the site, including any temporary support activity site, has undergone final stabilization. Industrial post-construction storm water discharges may need to be covered by a separate NPDES permit. b. Discharges Mixed with Non-Storm Water. This permit does not authorize discharges that are mixed with sources of non-storm water, other than those discharges which are identified in Part III.A.2. or 3. (exceptions to prohibition on non-storm water discharges) and are in compliance with Part IV.D.5 (non-storm water discharges). c. Discharges Covered by Another Permit. This permit does not authorize storm water discharges associated with construction activity that have been covered under an individual permit or required to obtain coverage under an alternative general permit in accordance with Part VI.L. d. Discharges Threatening Water Quality. This permit does not authorize storm water discharges from construction sites that the Director (EPA) determines will cause, or have reasonable potential to cause or contribute to, violations of water quality standards. Where such determinations have been made, the Director may notify the operator(s) that an individual permit application is necessary in accordance with Part VI.L. However, the Director may authorize coverage under this permit after appropriate controls and implementation procedures designed to bring the discharges into compliance with water quality standards have been included in the storm water pollution prevention plan; e. Storm water discharges and storm water discharge-related activities that are not protective of Federally listed endangered and threatened (``listed'') species or designated critical habitat (``critical habitat''). (1) For the purposes of complying with the Part I.B.3.e. eligibility requirements, ``storm water discharge-related activities'' include: (a) Activities which cause, contribute to, or result in point source storm water pollutant discharges, including but not limited to: excavation, site development, grading and other surface disturbance activities; and (b) Measures to control storm water including the siting, construction and operation of best management practices [[Page 36499]] (BMPs) to control, reduce or prevent storm water pollution. (2) Coverage under this permit is available only if the applicant certifies that it meets at least one of the criteria in paragraphs (a)- (d) below. Failure to continue to meet one of these criteria during the term of the permit will render a permittee ineligible for coverage under this permit. (a) The storm water discharges and storm water discharge-related activities are not likely to adversely affect listed species or critical habitat; or (b) Formal or informal consultation with the Fish and Wildlife Service and/or the National Marine Fisheries Service (the ``Services'') under section 7 of the Endangered Species Act (ESA) has been concluded which addresses the effects of the applicant's storm water discharges and storm water discharge-related activities on listed species and critical habitat and the consultation results in either a no jeopardy opinion or a written concurrence by the Service(s) on a finding that the applicant's storm water discharges and storm water discharge- related activities are not likely to adversely affect listed species or critical habitat. A section 7 consultation may occur in the context of another Federal action (e.g., a ESA section 7 consultation was performed for issuance of a wetlands dredge and fill permit for the project, or as part of a National Environmental Policy Act (NEPA) review); or (c) The applicant's construction activities are authorized under section 10 of the ESA and that authorization addresses the effects of the applicant's storm water discharges and storm water discharge- related activities on listed species and critical habitat; or (d) The applicant's storm water discharges and storm water discharge-related activities were already addressed in another operator's certification of eligibility under Part I.B.3.e.(2)(a), (b), or (c) which included the applicant's project area. By certifying eligibility under Part I.B.3.e.(2)(d), the applicant agrees to comply with any measures or controls upon which the other operator's certification under Part I.B.3.e.(2)(a), (b) or (c) was based. (3) For all projects commencing construction after the effective date of this permit, applicants must follow the procedures provided at Addendum A of this permit when applying for permit coverage. The Director may also require any existing permittee or applicant to provide documentation of eligibility for this permit using the procedures in Addendum A, where EPA or the Fish and Wildlife Services determine that there is a potential impaction on endangered or threatened species or a critical habitat. Nothing in this permit relieves applicants which are under construction as of the effective date of this permit of their obligations they may have to comply with any requirements of the Endangered Species Act. (4) The applicant must comply with any applicable terms, conditions or other requirements developed in the process of meeting eligibility requirements of Part I.B.3.e.(2)(a), (b), (c), or (d) above to remain eligible for coverage under this permit. Such terms and conditions must be incorporated in the applicant's storm water pollution prevention plan. (5) Applicants who choose to conduct informal consultation to meet the eligibility requirements of Part I.B.3.e.(2)(b) are automatically designated as non-Federal representatives under this permit. See 50 CFR 402.08. Applicants who choose to conduct informal consultation as a non-Federal representatives must notify EPA and the appropriate Service office in writing of that decision. (6) This permit does not authorize any storm water discharges where the discharges or storm water discharge-related activities cause prohibited ``take'' (as defined under section 3 of the Endangered Species Act and 50 CFR 17.3) of endangered or threatened species unless such takes are authorized under sections 7 or 10 of the Endangered Species Act. (7) This permit does not authorize any storm water discharges where the discharges or storm water discharge-related activities are likely to jeopardize the continued existence of any species that are listed or proposed to be listed as endangered or threatened under the ESA or result in the adverse modification or destruction of habitat that is designated or proposed to be designated as critical under the ESA. f. Storm water Discharges and Storm Water Discharge-Related Activities with Unconsidered Adverse Effects on Historic Properties. (Reserved) C. Obtaining Authorization 1. In order for storm water discharges from construction activities to be authorized under this general permit, an operator must: a. Meet the Part I.B eligibility requirements; b. Except as provided in Parts II.A.5 and II.A.6, develop a storm water pollution prevention plan (SWPPP) covering either the entire site or all portions of the site for which they are operators (see definition in Part IX.N) according to the requirements in Part IV. A ``joint'' SWPPP may be developed and implemented as a cooperative effort where there is more than one operator at a site; and c. Submit a Notice of Intent (NOI) in accordance with the requirements of Part II, using an NOI form provided in Addendum C of this permit. Only one NOI need be submitted to cover all of the permittee's activities on the common plan of development or sale (e.g., you do not need to submit a separate NOI for each separate lot in a residential subdivision or for two separate buildings being constructed at a manufacturing facility, provided your SWPPP covers each area for which you are an operator). The SWPPP must be implemented upon commencement of construction activities. 2. Any new operator on site, including those who replace an operator who has previously obtained permit coverage, must submit an NOI to obtain permit coverage. 3. Unless notified by the Director to the contrary, operators who submit a correctly completed NOI in accordance with the requirements of this permit are authorized to discharge storm water from construction activities under the terms and conditions of this permit two (2) days after the date that the NOI is postmarked. The Director may deny coverage under this permit and require submittal of an application for an individual NPDES permit based on a review of the NOI or other information (see Part VI.L). D. Terminating Coverage 1. Permittees wishing to terminate coverage under this permit must submit a Notice of Termination (NOT) in accordance with Part VIII of this permit. Compliance with this permit is required until an NOT is submitted. The permittee's authorization to discharge under this permit terminates at midnight of the day the NOT is signed. 2. All permittees must submit a NOT within thirty (30) days after one or more of the following conditions have been met: a. Final stabilization (see definition Part IX.I) has been achieved on all portions of the site for which the permittee is responsible (including if applicable, returning agricultural land to its pre- construction agricultural use); b. Another operator/permittee has assumed control according to Part VI.G.2.c. over all areas of the site that have not been finally stabilized; or c. For residential construction only, temporary stabilization has been completed and the residence has been transferred to the homeowner. Enforcement actions may be taken if a permittee submits a NOT without [[Page 36500]] meeting one or more of these conditions. Part II. Notice of Intent Requirements A. Deadlines for Notification 1. Except as provided in Parts II.A.3, II.A.4, II.A.5 or II.A.6 below, parties defined as operators (see definition in Part IX.N) due to their operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications, must submit a Notice of Intent (NOI) in accordance with the requirements of this Part at least two (2) days prior to the commencement of construction activities (i.e., the initial disturbance of soils associated with clearing, grading, excavation activities, or other construction activities). 2. Except as provided in Parts II.A.3, II.A.4, II.A.5 or II.A.6 below, parties defined as operators (see definition in Part IX.N) due to their day-to-day operational control over activities at a project which are necessary to ensure compliance with a storm water pollution prevention plan or other permit conditions (e.g., general contractor, erosion control contractor) must submit a NOI at least two (2) days prior to commencing work on-site. 3. For storm water discharges from construction projects where the operator changes, including instances where an operator is added after a NOI has been submitted under Parts II.A.1 or II.A.2, the new operator must submit a NOI at least two (2) days before assuming operational control over site specifications or commencing work on-site. 4. Operators are not prohibited from submitting late NOIs. When a late NOI is submitted, authorization is only for discharges that occur after permit coverage is granted. The Agency reserves the right to take appropriate enforcement actions for any unpermitted activities that may have occurred between the time construction commenced and authorization of future discharges is granted (typically 2 days after a complete NOI is submitted). 5. Operators of on-going construction projects as of the effective date of this permit which received authorization to discharge for these projects under the 1992 baseline construction general permit must: a. Submit a NOI according to Part II.B. within 90 days of the effective date of this permit. If the permittee is eligible to submit a Notice of Termination (e.g., construction is finished and final stabilization has been achieved) before the 90th day, a new NOI is not required to be submitted; b. For the first 90 days from the effective date of this permit, comply with the terms and conditions of the 1992 baseline construction general permit they were previously authorized under; and c. Update their storm water pollution prevention plan to comply with the requirements of Part IV within 90 days after the effective date of this permit. 6. Operators of on-going construction projects as of the effective date of this permit which did not receive authorization to discharge for these projects under the 1992 baseline construction general permit must: a. Prepare and comply with an interim storm water pollution prevention plan in accordance with the 1992 baseline construction general permit prior to submitting an NOI; b. Submit a NOI according to Part II.B; and c. Update their storm water pollution prevention plan to comply with the requirements of Part IV within 90 days after the effective date of this permit. B. Contents of Notice of Intent (NOI) 1. Use of Revised NOI Form The revised NOI form [EPA Form 3510-9] shall be signed in accordance with Part VI.G of this permit and shall include the following information: a. The name, address, and telephone number of the operator filing the NOI for permit coverage; b. An indication of whether the operator is a Federal, State, Tribal, private, or other public entity; c. The name (or other identifier), address, county, and latitude/ longitude of the construction project or site; d. An indication of whether the project or site is located on Indian Country lands; e. Confirmation that a storm water pollution prevention plan (SWPPP) has been developed or will be developed prior to commencing construction activities, and that the SWPPP will be compliant with any applicable local sediment and erosion control plans. Copies of SWPPPs or permits should not be included with the NOI submission; f. Optional information: the location where the SWPPP may be viewed and the name and telephone number of a contact person for scheduling viewing times; g. The name of the receiving water(s); h. Estimates of project start and completion dates, and estimates of the number of acres of the site on which soil will be disturbed (if less than 1 acre, enter ``1''); i. Based on the instructions in Addendum A, whether any listed or proposed threatened or endangered species, or designated critical habitat, are in proximity to the storm water discharges or storm water discharge-related activities to be covered by this permit; j. Under which section(s) of Part I.B.3.e. (Endangered Species) the applicant is certifying eligibility; and Note that as of the effective date of this permit, reporting of information relating to the preservation of historic properties has been reserved and is not required at this time. Such reservation in no way relieves applicants or permittees from any otherwise applicable obligations or liabilities related to historic preservation under State, Tribal or local law. After further discussions between EPA and the Advisory Council on Historic Preservation, the Agency may modify the permit. Any such modification may affect future Notice of Intent reporting requirements. C. Where To Submit 1. NOIs must be signed in accordance with Part VI.G. and sent to the following address: Storm Water Notice of Intent (4203), US EPA, 401 M Street, SW, Washington, DC 20460. Part III. Special Conditions, Management Practices, and Other Non- Numeric Limitations A. Prohibition on Non-Storm Water Discharges 1. Except as provided in Parts I.B.2 or 3 and III.A.2 or 3, all discharges covered by this permit shall be composed entirely of storm water associated with construction activity. 2. Discharges of material other than storm water that are in compliance with an NPDES permit (other than this permit) issued for that discharge may be discharged or mixed with discharges authorized by this permit. 3. The following non-storm water discharges from active construction sites are authorized by this permit provided the non-storm water component of the discharge is in compliance with Part IV.D.5 (non-storm water discharges): discharges from fire fighting activities; fire hydrant flushings; waters used to wash vehicles where detergents are not used; water used to control dust in accordance with Part IV.D.2.c.(2); potable water sources including waterline flushings; routine external building wash down which does not use detergents; pavement washwaters where spills or leaks of toxic or hazardous materials have not occurred (unless all spilled material has been removed) and where detergents are not used; air [[Page 36501]] conditioning condensate; uncontaminated ground water or spring water; and foundation or footing drains where flows are not contaminated with process materials such as solvents. B. Releases in Excess of Reportable Quantities The discharge of hazardous substances or oil in the storm water discharge(s) from a facility shall be prevented or minimized in accordance with the applicable storm water pollution prevention plan for the facility. This permit does not relieve the permittee of the reporting requirements of 40 CFR 110, 40 CFR 117 and 40 CFR 302. Where a release containing a hazardous substance or oil in an amount equal to or in excess of a reportable quantity established under either 40 CFR 110, 40 CFR 117 or 40 CFR 302, occurs during a 24 hour period: 1. The permittee is required to notify the National Response Center (NRC) (800-424-8802; in the Washington, DC, metropolitan area call 202- 426-2675) in accordance with the requirements of 40 CFR 110, 40 CFR 117 and 40 CFR 302 as soon as he or she has knowledge of the discharge; 2. The storm water pollution prevention plan required under Part IV of this permit must be modified within 14 calendar days of knowledge of the release to: provide a description of the release, the circumstances leading to the release, and the date of the release. In addition, the plan must be reviewed to identify measures to prevent the reoccurrence of such releases and to respond to such releases, and the plan must be modified where appropriate. C. Spills This permit does not authorize the discharge of hazardous substances or oil resulting from an on-site spill. D. Discharge Compliance With Water Quality Standards Operators seeking coverage under this permit shall not be causing or have the reasonable potential to cause or contribute to a violation of a water quality standard. Where a discharge is already authorized under this permit and is later determined to cause or have the reasonable potential to cause or contribute to the violation of an applicable water quality standard, the Director will notify the operator of such violation(s). The permittee shall take all necessary actions to ensure future discharges do not cause or contribute to the violation of a water quality standard and document these actions in the storm water pollution prevention plan. If violations remain or re- occur, then coverage under this permit may be terminated by the Director, and an alternative general permit or individual permit may be issued. Compliance with this requirement does not preclude any enforcement activity as provided by the Clean Water Act for the underlying violation. E. Responsibilities of Operators Permittees may meet one or both of the operational control components in the definition of ``operator'' found in Part IX.N. Either Parts III.E.1 or III.E.2 or both will apply depending on the type of operational control exerted by an individual permittee. Part III.E.3 applies to all permittees. 1. Permittees with operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications (e.g., developer or owner), must: a. Ensure the project specifications that they develop meet the minimum requirements of Part IV (Storm Water Pollution Prevention Plans (SWPPP)) and all other applicable conditions; b. Ensure that the SWPPP indicates the areas of the project where they have operational control over project specifications (including the ability to make modifications in specifications), and ensure all other permittees implementing portions of the SWPPP impacted by any changes they make to the plan are notified of such modifications in a timely manner; and c. Ensure that the SWPPP for portions of the project where they are operators indicates the name and NPDES permit number for parties with day-to-day operational control of those activities necessary to ensure compliance with the SWPPP or other permit conditions. If these parties have not been identified at the time the SWPPP is initially developed, the permittee with operational control over project specifications shall be considered to be the responsible party until such time as the authority is transferred to another party (e.g., general contractor) and the plan updated. 2. Permittee(s) with day-to-day operational control of those activities at a project which are necessary to ensure compliance with a SWPPP for the site or other permit conditions (e.g., general contractor) must: a. Ensure that the SWPPP for portions of the project where they are operators meets the minimum requirements of Part IV (Storm Water Pollution Prevention Plan) and identifies the parties responsible for implementation of control measures identified in the plan; b. Ensure that the SWPPP indicates areas of the project where they have operational control over day-to-day activities; c. Ensure that the SWPPP for portions of the project where they are operators indicates the name and NPDES permit number of the party(ies) with operational control over project specifications (including the ability to make modifications in specifications); 3. Permittees with operational control over only a portion of a larger construction project (e.g., one of four homebuilders in a subdivision) are responsible for compliance with all applicable terms and conditions of this permit as it relates to their activities on their portion of the construction site, including protection of endangered species and implementation of BMPs and other controls required by the SWPPP. Permittees shall ensure either directly or through coordination with other permittees, that their activities do not render another party's pollution controls ineffective. Permittees must either implement their portions of a common SWPPP or develop and implement their own SWPPP. F. Consistency With the Texas Coastal Management Program This permit does not relieve permittees whose construction project is located within the boundary of the Texas Coastal Management Program of their responsibility to insure consistency with all applicable requirements of this State program. While pre-construction approval of development projects is not within the jurisdiction of the Federal NPDES permit program, State or local pre-construction project approvals and/or permits may be required. The permittee's Storm Water Pollution Prevention Plan must be consistent with any storm water discharge- related requirements established pursuant to, or necessary to be consistent with, the Texas Coastal Management Program. This permit may be reopened, upon petition by the State, to include more stringent discharge requirements applying to areas within the State's designated coastal zone. The Texas Coastal Management Program boundary covers part or all of the following Texas Counties: Aransas, Brazoria, Calhoun, Cameron, Chambers, Galveston, Harris, Jackson, Jefferson, Kenedy, Kleberg, Matagorda, Nueces, Orange, Refugio, San Patricio, Victoria, and Willacy. To determine if a construction project is located within the Texas Coastal Zone, and if so, the applicable requirements of the Texas Coastal Management Program, please [[Page 36502]] contact the Texas General Land Office's Coastal Hotline at 1-800-85- BEACH or access their Internet site at ``http://red.glo.state.tx.us/ res-mgmt/coastal/''. Information is also available from the Texas Coastal Coordination Council's Coastal Permitting Assistance Office at 1-888-3-PERMIT or via the Internet at ``http://red.glo.state.tx.us/ coastalpermits/''. Part IV. Storm Water Pollution Prevention Plans At least one storm water pollution prevention plan (SWPPP) shall be developed for each construction project or site covered by this permit. For more effective coordination of BMPs and opportunities for cost sharing, a cooperative effort by the different operators at a site to prepare and participate in a comprehensive SWPPP is encouraged. Individual operators at a site may, but are not required, to develop separate SWPPPs that cover only their portion of the project provided reference is made to other operators at the site. In instances where there is more than one SWPPP for a site, coordination must be conducted between the permittees to ensure the storm water discharge controls and other measures are consistent with one another (e.g., provisions to protect listed species and critical habitat). Storm water pollution prevention plans shall be prepared in accordance with good engineering practices. The SWPPP shall identify potential sources of pollution which may reasonably be expected to affect the quality of storm water discharges from the construction site. The SWPPP shall describe and ensure the implementation of practices which will be used to reduce the pollutants in storm water discharges associated with construction activity at the construction site and assure compliance with the terms and conditions of this permit. When developing SWPPPs, applicants must follow the procedures in Addendum A of this permit to determine whether listed endangered or threatened species or critical habitat would be affected by the applicant's storm water discharges or storm water discharge-related activities. Any information on whether listed species or critical habitat are found in proximity to the construction site must be included in the SWPPP. Any terms or conditions that are imposed under the eligibility requirements of Part I.B.3.e and Addendum A of this permit to protect listed species or critical habitat from storm water discharges or storm water discharge-related activity must be incorporated into the SWPPP. Permittees must implement the applicable provisions of the SWPPP required under this part as a condition of this permit. A. Deadlines for Plan Preparation and Compliance The storm water pollution prevention plan shall: 1. Be completed prior to the submittal of an NOI to be covered under this permit (except as provided in Parts II.A.5 and II.A.6) updated as appropriate; and 2. Provide for compliance with the terms and schedule of the SWPPP beginning with the initiation of construction activities. B. Signature, Plan Review and Making Plans Available 1. The SWPPP shall be signed in accordance with Part VI.G, and be retained on-site at the facility which generates the storm water discharge in accordance with Part V (Retention of Records) of this permit. 2. The permittee shall post a notice near the main entrance of the construction site with the following information: a. The NPDES permit number for the project or a copy of the NOI if a permit number has not yet been assigned; b. The name and telephone number of a local contact person; c. A brief description of the project; and d. The location of the SWPPP if the site is inactive or does not have an on-site location to store the plan. If posting this information near a main entrance is infeasible due to safety concerns, the notice shall be posted in a local public building. If the construction project is a linear construction project (e.g., pipeline, highway, etc.), the notice must be placed in a publicly accessible location near where construction is actively underway and moved as necessary. This permit does not provide the public with any right to trespass on a construction site for any reason, including inspection of a site; nor does this permit require that permittees allow members of the public access to a construction site. 3. The permittee shall make SWPPPs available upon request to the Director, a State, Tribal or local agency approving sediment and erosion plans, grading plans, or storm water management plans; local government officials; or the operator of a municipal separate storm sewer receiving discharges from the site. The copy of the SWPPP that is required to be kept on-site or locally available must be made available to the Director for review at the time of an on-site inspection. Also, in the interest of public involvement, EPA encourages permittees to make their SWPPPs available to the public for viewing during normal business hours. 4. The Director may notify the permittee at any time that the SWPPP does not meet one or more of the minimum requirements of this Part. Such notification shall identify those provision of this permit which are not being met by the SWPPP as well as those requiring modification in order to meet the minimum requirements of this Part. Within seven (7) calendar days of receipt of such notification from the Director (or as otherwise provided by the Director), the permittee shall make the required changes to the SWPPP and shall submit to the Director a written certification that the requested changes have been made. The Director may take appropriate enforcement action for the period of time the permittee was operating under a plan that did not meet the minimum requirements of this permit. C. Keeping Plans Current The permittee must amend the storm water pollution prevention plan whenever: 1. There is a change in design, construction, operation, or maintenance which has a significant effect on the discharge of pollutants to the waters of the United States which has not been addressed in the SWPPP; or 2. Inspections or investigations by site operators, local, State, Tribal or Federal officials indicate the SWPPP is proving ineffective in eliminating or significantly minimizing pollutants from sources identified under Part IV.D.1 of this permit, or is otherwise not achieving the general objectives of controlling pollutants in storm water discharges associated with construction activity. D. Contents of Plan The storm water pollution prevention plan (SWPPP) shall include the following items: 1. Site Description Each SWPPP shall provide a description of potential pollutant sources and other information as indicated below: a. A description of the nature of the construction activity; b. A description of the intended sequence of major activities which disturb soils for major portions of the site (e.g., grubbing, excavation, grading, utilities and infrastructure installation); c. Estimates of the total area of the site and the total area of the site that is [[Page 36503]] expected to be disturbed by excavation, grading, or other activities including off-site borrow and fill areas; d. An estimate of the runoff coefficient of the site for both the pre-construction and post-construction conditions and data describing the soil or the quality of any discharge from the site; e. A general location map (e.g., a portion of a city or county map) and a site map indicating the following: drainage patterns and approximate slopes anticipated after major grading activities; areas of soil disturbance; areas which will not be disturbed; locations of major structural and nonstructural controls identified in the SWPPP; locations where stabilization practices are expected to occur; locations of off-site material, waste, borrow or equipment storage areas; surface waters (including wetlands); and locations where storm water discharges to a surface water; f. Location and description of any discharge associated with industrial activity other than construction, including storm water discharges from dedicated asphalt plants and dedicated concrete plants, which is covered by this permit; g. The name of the receiving water(s) and the areal extent and description of wetland or other special aquatic sites (as described under 40 CFR 230.3(q-1)) at or near the site which will be disturbed or which will receive discharges from disturbed areas of the project; h. A copy of the permit requirements (attaching a copy of this permit is acceptable); i. Information on whether listed endangered or threatened species, or critical habitat, are found in proximity to the construction activity and whether such species may be affected by the applicant's storm water discharges or storm water discharge-related activities; and j. Information on whether storm water discharges or storm water discharge-related activities would have an affect on a property that is listed or eligible for listing on the National Register of Historic Places; where effects may occur, any written agreements with the State Historic Preservation Officer, Tribal Historic Preservation Officer, or other Tribal leader to mitigate those effects. 2. Controls Each SWPPP shall include a description of appropriate control measures (i.e., BMPs) that will be implemented as part of the construction activity to control pollutants in storm water discharges. The SWPPP must clearly describe for each major activity identified in Part IV.D.1.b: (a) appropriate control measures and the general timing (or sequence) during the construction process that the measures will be implemented; and (b) which permittee is responsible for implementation (e.g., perimeter controls for one portion of the site will be installed by Contractor A after the clearing and grubbing necessary for installation of the measure, but before the clearing and grubbing for the remaining portions of the site; and perimeter controls will be actively maintained by Contractor B until final stabilization of those portions of the site up-gradient of the perimeter control; and temporary perimeter controls will be removed by the owner after final stabilization). The description and implementation of control measures shall address the following minimum components: a. Erosion and Sediment Controls. (1) Short and Long Term Goals and Criteria: (a) The construction-phase erosion and sediment controls should be designed to retain sediment on site to the extent practicable. (b) All control measures must be properly selected, installed, and maintained in accordance with the manufacturers specifications and good engineering practices. If periodic inspections or other information indicates a control has been used inappropriately, or incorrectly, the permittee must replace or modify the control for site situations. (c) If sediment escapes the construction site, off-site accumulations of sediment must be removed at a frequency sufficient to minimize offsite impacts (e.g., fugitive sediment in street could be washed into storm sewers by the next rain and/or pose a safety hazard to users of public streets). (d) Sediment must be removed from sediment traps or sedimentation ponds when design capacity has been reduced by 50%. (e) Litter, construction debris, and construction chemicals exposed to storm water shall be prevented from becoming a pollutant source for storm water discharges (e.g., screening outfalls, picked up daily). (f) Offsite material storage areas (also including overburden and stockpiles of dirt, borrow areas, etc.) used solely by the permitted project are considered a part of the project and shall be addressed in the SWPPP. (2) Stabilization Practices: The SWPPP must include a description of interim and permanent stabilization practices for the site, including a schedule of when the practices will be implemented. Site plans should ensure that existing vegetation is preserved where attainable and that disturbed portions of the site are stabilized. Stabilization practices may include but are not limited to: establishment of temporary vegetation, establishment of permanent vegetation, mulching, geotextiles, sod stabilization, vegetative buffer strips, protection of trees, preservation of mature vegetation, and other appropriate measures. Use of impervious surfaces for stabilization should be avoided. The following records shall be maintained and attached to the SWPPP: the dates when major grading activities occur; the dates when construction activities temporarily or permanently cease on a portion of the site; and the dates when stabilization measures are initiated. Except as provided in Parts IV.D.2.a.(2)(a), (b), and (c) below, stabilization measures shall be initiated as soon as practicable in portions of the site where construction activities have temporarily or permanently ceased, but in no case more than 14 days after the construction activity in that portion of the site has temporarily or permanently ceased. (a) Where the initiation of stabilization measures by the 14th day after construction activity temporary or permanently cease is precluded by snow cover or frozen ground conditions, stabilization measures shall be initiated as soon as practicable. (b) Where construction activity on a portion of the site is temporarily ceased, and earth disturbing activities will be resumed within 21 days, temporary stabilization measures do not have to be initiated on that portion of site. (c) In arid areas (areas with an average annual rainfall of 0 to 10 inches), semi-arid areas (areas with an average annual rainfall of 10 to 20 inches), and areas experiencing droughts where the initiation of stabilization measures by the 14th day after construction activity has temporarily or permanently ceased is precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable. (3) Structural Practices: The SWPPP must include a description of structural practices to divert flows from exposed soils, store flows or otherwise limit runoff and the discharge of pollutants from exposed areas of the site to the degree attainable. Structural practices may include but are not limited to: silt fences, earth dikes, drainage swales, sediment traps, check dams, subsurface drains, pipe slope drains, level spreaders, storm drain inlet protection, [[Page 36504]] rock outlet protection, reinforced soil retaining systems, gabions, and temporary or permanent sediment basins. Placement of structural practices in floodplains should be avoided to the degree attainable. The installation of these devices may be subject to section 404 of the CWA. (a) For common drainage locations that serve an area with ten (10) or more acres disturbed at one time, a temporary (or permanent) sediment basin that provides storage for a calculated volume of runoff from a 2 year, 24 hour storm from each disturbed acre drained, or equivalent control measures, shall be provided where attainable until final stabilization of the site. Where no such calculation has been performed, a temporary (or permanent) sediment basin providing 3,600 cubic feet of storage per acre drained, or equivalent control measures, shall be provided where attainable until final stabilization of the site. When computing the number of acres draining into a common location it is not necessary to include flows from offsite areas and flows from onsite areas that are either undisturbed or have undergone final stabilization where such flows are diverted around both the disturbed area and the sediment basin. In determining whether installing a sediment basin is attainable, the permittee may consider factors such as site soils, slope, available area on site, etc. In any event, the permittee must consider public safety, especially as it relates to children, as a design factor for the sediment basin and alternative sediment controls shall be used where site limitations would preclude a safe design. For drainage locations which serve ten (10) or more disturbed acres at one time and where a temporary sediment basin or equivalent controls is not attainable, smaller sediment basins and/or sediment traps should be used. Where neither the sediment basin nor equivalent controls are attainable due to site limitations, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries of the construction area and for those side slope boundaries deemed appropriate as dictated by individual site conditions. EPA encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal. (b) For drainage locations serving less than 10 acres, smaller sediment basins and/or sediment traps should be used. At a minimum, silt fences, vegetative buffer strips, or equivalent sediment controls are required for all down slope boundaries (and for those side slope boundaries deemed appropriate as dictated by individual site conditions) of the construction area unless a sediment basin providing storage for a calculated volume of runoff from a 2 year, 24 hour storm or 3,600 cubic feet of storage per acre drained is provided. EPA encourages the use of a combination of sediment and erosion control measures in order to achieve maximum pollutant removal. b. Storm Water Management. A description of measures that will be installed during the construction process to control pollutants in storm water discharges that will occur after construction operations have been completed must be included in the SWPPP. Structural measures should be placed on upland soils to the degree attainable. The installation of these devices may also require a separate permit under section 404 of the CWA. Permittees are only responsible for the installation and maintenance of storm water management measures prior to final stabilization of the site, and are not responsible for maintenance after storm water discharges associated with construction activity have been eliminated from the site. However, post-construction storm water BMPs that discharge pollutants from point sources once construction is completed may, in themselves, need authorization under a separate NPDES permit. (1) Such practices may include but are not limited to: storm water detention structures (including wet ponds); storm water retention structures; flow attenuation by use of open vegetated swales and natural depressions; infiltration of runoff onsite; and sequential systems (which combine several practices). The SWPPP shall include an explanation of the technical basis used to select the practices to control pollution where flows exceed predevelopment levels. (2) Velocity dissipation devices shall be placed at discharge locations and along the length of any outfall channel to provide a non- erosive flow velocity from the structure to a water course so that the natural physical and biological characteristics and functions are maintained and protected (e.g., no significant changes in the hydrological regime of the receiving water). c. Other Controls. (1) No solid materials, including building materials, shall be discharged to waters of the United States, except as authorized by a permit issued under section 404 of the CWA. (2) Off-site vehicle tracking of sediments and the generation of dust shall be minimized. (3) The SWPPP shall be consistent with applicable State, Tribal and/or local waste disposal, sanitary sewer or septic system regulations to the extent these are located within the permitted area. (4) The SWPPP shall include a description of construction and waste materials expected to be stored on-site with updates as appropriate. The SWPPP shall also include a description of controls to reduce pollutants from these materials including storage practices to minimize exposure of the materials to storm water, and spill prevention and response. (5) The SWPPP shall include a description of pollutant sources from areas other than construction (including storm water discharges from dedicated asphalt plants and dedicated concrete plants), and a description of controls and measures that will be implemented at those sites to minimize pollutant discharges. (6) The SWPPP shall include a description of measures necessary to protect listed endangered or threatened species, or critical habitat, including any terms or conditions that are imposed under the eligibility requirements of Part I.B.3.e(4) of this permit. Failure to describe and implement such measures will result in storm water discharges from construction activities that are ineligible for coverage under this permit. d. Approved State, Tribal or Local Plans. (1) Permittees which discharge storm water associated with construction activities must ensure their storm water pollution prevention plan is consistent with requirements specified in applicable sediment and erosion site plans or site permits, or storm water management site plans or site permits approved by State, Tribal or local officials. (2) Storm water pollution prevention plans must be updated as necessary to remain consistent with any changes applicable to protecting surface water resources in sediment and erosion site plans or site permits, or storm water management site plans or site permits approved by State, Tribal or local officials for which the permittee receives written notice. 3. Maintenance All erosion and sediment control measures and other protective measures identified in the SWPPP must be maintained in effective operating condition. If site inspections required by Part IV.D.4. identify BMPs that are not operating effectively, maintenance shall be performed before the next anticipated storm event, or as necessary to maintain the continued effectiveness of storm [[Page 36505]] water controls. If maintenance prior to the next anticipated storm event is impracticable, maintenance must be scheduled and accomplished as soon as practicable. 4. Inspections Qualified personnel (provided by the permittee or cooperatively by multiple permittees) shall inspect disturbed areas of the construction site that have not been finally stabilized, areas used for storage of materials that are exposed to precipitation, structural control measures, and locations where vehicles enter or exit the site, at least once every fourteen (14) calendar days and within 24 hours of the end of a storm event of 0.5 inches or greater. Where sites have been finally or temporarily stabilized, runoff is unlikely due to winter conditions (e.g., site is covered with snow, ice, or frozen ground exists), or during seasonal arid periods in arid areas (areas with an average annual rainfall of 0 to 10 inches) and semi-arid areas (areas with an average annual rainfall of 10 to 20 inches) such inspections shall be conducted at least once every month. Permittees are eligible for a waiver of monthly inspection requirements until one month before thawing conditions are expected to result in a discharge if all of the following requirements are met: (1) the project is located in an area where frozen conditions are anticipated to continue for extended periods of time (i.e., more than one month); (2) land disturbance activities have been suspended; and (3) the beginning and ending dates of the waiver period are documented in the SWPPP. a. Disturbed areas and areas used for storage of materials that are exposed to precipitation shall be inspected for evidence of, or the potential for, pollutants entering the drainage system. Sediment and erosion control measures identified in the SWPPP shall be observed to ensure that they are operating correctly. Where discharge locations or points are accessible, they shall be inspected to ascertain whether erosion control measures are effective in preventing significant impacts to receiving waters. Where discharge locations are inaccessible, nearby downstream locations shall be inspected to the extent that such inspections are practicable. Locations where vehicles enter or exit the site shall be inspected for evidence of offsite sediment tracking. b. Based on the results of the inspection, the SWPPP shall be modified as necessary (e.g., show additional controls on map required by Part IV.D.1; revise description of controls required by Part IV.D.2) to include additional or modified BMPs designed to correct problems identified. Revisions to the SWPPP shall be completed within 7 calendar days following the inspection. If existing BMPs need to be modified or if additional BMPs are necessary, implementation shall be completed before the next anticipated storm event. If implementation before the next anticipated storm event is impracticable, they shall be implemented as soon as practicable. c. A report summarizing the scope of the inspection, name(s) and qualifications of personnel making the inspection, the date(s) of the inspection, and major observations relating to the implementation of the SWPPP shall be made and retained as part of the SWPPP for at least three years from the date that the site is finally stabilized. Major observations should include: the location(s) of discharges of sediment or other pollutants from the site; location(s) of BMPs that need to be maintained; location(s) of BMPs that failed to operate as designed or proved inadequate for a particular location; and location(s) where additional BMPs are needed that did not exist at the time of inspection. Actions taken in accordance with Part IV.D.4.b of this permit shall be made and retained as part of the storm water pollution prevention plan for at least three years from the date that the site is finally stabilized. Such reports shall identify any incidents of non- compliance. Where a report does not identify any incidents of non- compliance, the report shall contain a certification that the facility is in compliance with the storm water pollution prevention plan and this permit. The report shall be signed in accordance with Part VI.G of this permit. 5. Non-Storm Water Discharges Except for flows from fire fighting activities, sources of non- storm water listed in Part III.A.2 or 3 of this permit that are combined with storm water discharges associated with construction activity must be identified in the SWPPP. The SWPPP shall identify and ensure the implementation of appropriate pollution prevention measures for the non-storm water component(s) of the discharge. Part V. Retention of Records A. Documents The permittee shall retain copies of storm water pollution prevention plans and all reports required by this permit, and records of all data used to complete the Notice of Intent to be covered by this permit, for a period of at least three years from the date that the site is finally stabilized. This period may be extended by request of the Director at any time. B. Accessibility The permittee shall retain a copy of the storm water pollution prevention plan required by this permit (including a copy of the permit language) at the construction site (or other local location accessible to the Director, a State, Tribal or local agency approving sediment and erosion plans, grading plans, or storm water management plans; local government officials; or the operator of a municipal separate storm sewer receiving discharges from the site) from the date of project initiation to the date of final stabilization. Permittees with day-to- day operational control over SWPPP implementation shall have a copy of the SWPPP available at a central location on-site for the use of all operators and those identified as having responsibilities under the SWPPP whenever they are on the construction site. C. Addresses Except for the submittal of NOIs and NOTs (see Parts II.C and VIII.B, respectively), all written correspondence concerning discharges in any State, Indian Country land or from any Federal facility covered under this permit and directed to the EPA, including the submittal of individual permit applications, shall be sent to the address listed below: United States EPA, Region 6, Storm Water Staff, Enforcement and Compliance Assurance Division (GEN-WC), EPA SW Construction GP, P.O. Box 50625, Dallas, TX 75205. Part VI. Standard Permit Conditions A. Duty To Comply 1. The Permittee Must Comply With All Conditions of This Permit Any permit noncompliance constitutes a violation of CWA and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or for denial of a permit renewal application. 2. Penalties for Violations of Permit Conditions The Director will adjust the civil and administrative penalties listed below in accordance with the Civil Monetary Penalty Inflation Adjustment Rule (Federal Register: December 31, 1996, Volume 61, Number 252, pages 69359-69366, as corrected, March 20, 1997, Volume 62, Number 54, pages 13514- [[Page 36506]] 13517) as mandated by the Debt Collection Improvement Act of 1996 for inflation on a periodic basis. This rule allows EPA's penalties to keep pace with inflation. The Agency is required to review its penalties at least once every four years thereafter and to adjust them as necessary for inflation according to a specified formula. The civil and administrative penalties listed below were adjusted for inflation starting in 1996. a. Criminal. (1) Negligent Violations. The CWA provides that any person who negligently violates permit conditions implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a fine of not less than $2,500 nor more than $25,000 per day of violation, or by imprisonment for not more than 1 year, or both. (2) Knowing Violations. The CWA provides that any person who knowingly violates permit conditions implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a fine of not less than $5,000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years, or both. (3) Knowing Endangerment. The CWA provides that any person who knowingly violates permit conditions implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act and who knows at that time that he is placing another person in imminent danger of death or serious bodily injury is subject to a fine of not more than $250,000, or by imprisonment for not more than 15 years, or both. (4) False Statement. The CWA provides that any person who knowingly makes any false material statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under the Act or who knowingly falsifies, tampers with, or renders inaccurate, any monitoring device or method required to be maintained under the Act, shall upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than two years, or by both. If a conviction is for a violation committed after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than $20,000 per day of violation, or by imprisonment of not more than four years, or by both. (See section 309.c.4 of the Clean Water Act). b. Civil Penalties. The CWA provides that any person who violates a permit condition implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to a civil penalty not to exceed $27,500 per day for each violation. c. Administrative Penalties. The CWA provides that any person who violates a permit condition implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to an administrative penalty, as follows: (1) Class I Penalty. Not to exceed $11,000 per violation nor shall the maximum amount exceed $27,500. (2) Class II Penalty. Not to exceed $11,000 per day for each day during which the violation continues, nor shall the maximum amount exceed $137,500. B. Continuation of the Expired General Permit If this permit is not reissued or replaced prior to the expiration date, it will be administratively continued in accordance with the Administrative Procedures Act and remain in force and effect. Any permittee who was granted permit coverage prior to the expiration date will automatically remain covered by the continued permit until the earlier of: 1. Reissuance or replacement of this permit, at which time the permittee must comply with the Notice of Intent conditions of the new permit to maintain authorization to discharge; or 2. The permittee's submittal of a Notice of Termination; or 3. Issuance of an individual permit for the permittee's discharges; or 4. A formal permit decision by the Director not to reissue this general permit, at which time the permittee must seek coverage under an alternative general permit or an individual permit. C. Need To Halt or Reduce Activity Not a Defense It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit. D. Duty To Mitigate The permittee shall take all reasonable steps to minimize or prevent any discharge in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment. E. Duty To Provide Information The permittee shall furnish to the Director or an authorized representative of the Director any information which is requested to determine compliance with this permit or other information. F. Other Information When the permittee becomes aware that he or she failed to submit any relevant facts or submitted incorrect information in the Notice of Intent or in any other report to the Director, he or she shall promptly submit such facts or information. G. Signatory Requirements All Notices of Intent, Notices of Termination, storm water pollution prevention plans, reports, certifications or information either submitted to the Director or the operator of a large or medium municipal separate storm sewer system, or that this permit requires be maintained by the permittee, shall be signed as follows: 1. All Notices of Intent and Notices of Termination shall be signed as follows: a. For a corporation: by a responsible corporate officer. For the purpose of this section, a responsible corporate officer means: a president, secretary, treasurer, or vice-president of the corporation in charge of a principal business function, or any other person who performs similar policy or decision-making functions for the corporation; or the manager of one or more manufacturing, production or operating facilities employing more than 250 persons or having gross annual sales or expenditures exceeding $25,000,000 (in second-quarter 1980 dollars) if authority to sign documents has been assigned or delegated to the manager in accordance with corporate procedures; b. For a partnership or sole proprietorship: by a general partner or the proprietor, respectively; or c. For a municipality, State, Federal, or other public agency: by either a principal executive officer or ranking elected official. For purposes of this section, a principal executive officer of a Federal agency includes (1) the chief executive officer of the agency, or (2) a senior executive officer having responsibility for the overall operations of a principal geographic unit of the agency (e.g., Regional Administrators of EPA). 2. All reports required by this permit and other information requested by the Director or authorized representative of the Director shall be signed by a person described above or by a duly authorized representative of that person. A person is a duly authorized representative only if: a. The authorization is made in writing by a person described above and submitted to the Director. b. The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity, such as the position of manager, operator, superintendent, or position of equivalent responsibility or an [[Page 36507]] individual or position having overall responsibility for environmental matters for the company. (A duly authorized representative may thus be either a named individual or any individual occupying a named position). c. Changes to Authorization. If an authorization under Part II.B is no longer accurate because a different operator has responsibility for the overall operation of the construction site, a new Notice of Intent satisfying the requirements of Part II.B must be submitted to the Director prior to or together with any reports, information, or applications to be signed by an authorized representative. The change in authorization must be submitted within the time frame specified in Part II.A.3, and sent to the address specified in Part II.C. d. Certification. Any person signing documents under Part VI.G shall make the following certification: ``I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.'' H. Penalties for Falsification of Reports Section 309(c)(4) of the Clean Water Act provides that any person who knowingly makes any false material statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including reports of compliance or noncompliance shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than two years, or by both. I. Oil and Hazardous Substance Liability Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties to which the permittee is or may be subject under section 311 of the CWA or section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA). J. Property Rights The issuance of this permit does not convey any property rights of any sort, nor any exclusive privileges, nor does it authorize any injury to private property nor any invasion of personal rights, nor any infringement of Federal, State or local laws or regulations. K. Severability The provisions of this permit are severable, and if any provision of this permit, or the application of any provision of this permit to any circumstance, is held invalid, the application of such provision to other circumstances, and the remainder of this permit shall not be affected thereby. L. Requiring an Individual Permit or an Alternative General Permit 1. The Director may require any person authorized by this permit to apply for and/or obtain either an individual NPDES permit or an alternative NPDES general permit. Any interested person may petition the Director to take action under this paragraph. Where the Director requires a permittee authorized to discharge under this permit to apply for an individual NPDES permit, the Director shall notify the permittee in writing that a permit application is required. This notification shall include a brief statement of the reasons for this decision, an application form, a statement setting a deadline for the permittee to file the application, and a statement that on the effective date of issuance or denial of the individual NPDES permit or the alternative general permit as it applies to the individual permittee, coverage under this general permit shall automatically terminate. Applications shall be submitted to the appropriate Regional Office indicated in Part V.C of this permit. The Director may grant additional time to submit the application upon request of the applicant. If a permittee fails to submit in a timely manner an individual NPDES permit application as required by the Director under this paragraph, then the applicability of this permit to the individual NPDES permittee is automatically terminated at the end of the day specified by the Director for application submittal. 2. Any permittee authorized by this permit may request to be excluded from the coverage of this permit by applying for an individual permit. In such cases, the permittee shall submit an individual application in accordance with the requirements of 40 CFR 122.26(c)(1)(ii), with reasons supporting the request, to the Director at the address for the appropriate Regional Office indicated in Part V.C of this permit. The request may be granted by issuance of any individual permit or an alternative general permit if the reasons cited by the permittee are adequate to support the request. 3. When an individual NPDES permit is issued to a permittee otherwise subject to this permit, or the permittee is authorized to discharge under an alternative NPDES general permit, the applicability of this permit to the individual NPDES permittee is automatically terminated on the effective date of the individual permit or the date of authorization of coverage under the alternative general permit, whichever the case may be. When an individual NPDES permit is denied to an owner or operator otherwise subject to this permit, or the owner or operator is denied for coverage under an alternative NPDES general permit, the applicability of this permit to the individual NPDES permittee is automatically terminated on the date of such denial, unless otherwise specified by the Director. M. State/Tribal Environmental Laws 1. Nothing in this permit shall be construed to preclude the institution of any legal action or relieve the permittee from any responsibilities, liabilities, or penalties established pursuant to any applicable State/Tribal law or regulation under authority preserved by section 510 of the Act. 2. No condition of this permit shall release the permittee from any responsibility or requirements under other environmental statutes or regulations. N. Proper Operation and Maintenance The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit and with the requirements of storm water pollution prevention plans. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. Proper operation and maintenance requires the operation of backup or auxiliary facilities or similar systems, installed by a permittee only when necessary to achieve compliance with the conditions of this permit. O. Inspection and Entry The permittee shall allow the Director or an authorized representative of EPA, the State/Tribe, or, in the case of a construction site which discharges [[Page 36508]] through a municipal separate storm sewer, an authorized representative of the municipal owner/operator or the separate storm sewer receiving the discharge, upon the presentation of credentials and other documents as may be required by law, to: 1. Enter upon the permittee's premises where a regulated facility or activity is located or conducted or where records must be kept under the conditions of this permit; 2. Have access to and copy at reasonable times, any records that must be kept under the conditions of this permit; and 3. Inspect at reasonable times any facilities or equipment (including monitoring and control equipment). P. Permit Actions This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition. Part VII. Reopener Clause A. If there is evidence indicating that the storm water discharges authorized by this permit cause, have the reasonable potential to cause or contribute to, a violation of a water quality standard, the permittee may be required to obtain an individual permit or an alternative general permit in accordance with Part I.C of this permit, or the permit may be modified to include different limitations and/or requirements. B. Permit modification or revocation will be conducted according to 40 CFR 122.62, 122.63, 122.64 and 124.5. C. EPA may propose a modification to this permit after further discussions between the Agency and the Advisory Council on Historic Preservation for the protection of historic properties. Part VIII. Termination of Coverage A. Notice of Termination Permittees must submit a completed Notice of Termination (NOT) that is signed in accordance with Part VI.G of this permit when one or more of the conditions contained in Part I.D.2. (Terminating Coverage) have been met at a construction project. The NOT form found in Addendum D will be used unless it has been replaced by a revised version by the Director. The Notice of Termination shall include the following information: 1. The NPDES permit number for the storm water discharge identified by the Notice of Termination; 2. An indication of whether the storm water discharges associated with construction activity have been eliminated (i.e., regulated discharges of storm water are being terminated) or the permittee is no longer an operator at the site; 3. The name, address and telephone number of the permittee submitting the Notice of Termination; 4. The name of the project and street address (or a description of location if no street address is available) of the construction site for which the notification is submitted; 5. The latitude and longitude of the construction site; and 6. The following certification, signed in accordance with Part VI.G (signatory requirements) of this permit. For construction projects with more than one permittee and/or operator, the permittee need only make this certification for those portions of the construction site where the permittee was authorized under this permit and not for areas where the permittee was not an operator: ``I certify under penalty of law that all storm water discharges associated with industrial activity from the identified facility that authorized by a general permit have been eliminated or that I am no longer the operator of the facility or construction site. I understand that by submitting this notice of termination, I am no longer authorized to discharge storm water associated with industrial activity under this general permit, and that discharging pollutants in storm water associated with industrial activity to waters of the United States is unlawful under the Clean Water Act where the discharge is not authorized by a NPDES permit. I also understand that the submittal of this Notice of Termination does not release an operator from liability for any violations of this permit or the Clean Water Act.'' For the purposes of this certification, elimination of storm water discharges associated with construction activity means that all disturbed soils at the portion of the construction site where the operator had control have been finally stabilized (as defined in Part IX.I) and temporary erosion and sediment control measures have been removed or will be removed at an appropriate time to ensure final stabilization is maintained, or that all storm water discharges associated with construction activities from the identified site that are authorized by a NPDES general permit have otherwise been eliminated from the portion of the construction site where the operator had control. B. Addresses 1. All Notices of Termination, signed in accordance with Part VI.G of this permit, are to be submitted using the form provided by the Director (or a photocopy thereof), to the address specified on the NOT form. Part IX. Definitions A. Best Management Practices (``BMPs'') means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the discharge of pollutants to waters of the United States. BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. B. Control Measure as used in this permit, refers to any Best Management Practice or other method used to prevent or reduce the discharge of pollutants to waters of the United States. C. Commencement of Construction the initial disturbance of soils associated with clearing, grading, or excavating activities or other construction activities. D. CWA means the Clean Water Act or the Federal Water Pollution Control Act, 33 U.S.C. Sec. 1251 et seq. E. Director means the Regional Administrator of the Environmental Protection Agency or an authorized representative. F. Discharge when used without qualification means the ``discharge of a pollutant.'' G. Discharge of Storm Water Associated With Construction Activity as used in this permit, refers to a discharge of pollutants in storm water runoff from areas where soil disturbing activities (e.g., clearing, grading, or excavation), construction materials or equipment storage or maintenance (e.g., fill piles, borrow areas, concrete truck washout, fueling), or other industrial storm water directly related to the construction process (e.g., concrete or asphalt batch plants) are located. H. Facility or Activity means any NPDES ``point source'' or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the NPDES program. I. Final Stabilization means that either: 1. All soil disturbing activities at the site have been completed and a uniform (e.g., evenly distributed, without large bare areas) perennial vegetative cover with a density of 70% of the native background vegetative cover for the area [[Page 36509]] has been established on all unpaved areas and areas not covered by permanent structures, or equivalent permanent stabilization measures (such as the use of riprap, gabions, or geotextiles) have been employed. In some parts of the country, background native vegetation will cover less than 100% of the ground (e.g., arid areas, beaches). Establishing at least 70% of the natural cover of native vegetation meets the vegetative cover criteria for final stabilization (e.g., if the native vegetation covers 50% of the ground, 70% of 50% would require 35% total cover for final stabilization; on a beach with no natural vegetation, no stabilization is required); or 2. For individual lots in residential construction by either: (a) the homebuilder completing final stabilization as specified above, or (b) the homebuilder establishing temporary stabilization including perimeter controls for an individual lot prior to occupation of the home by the homeowner and informing the homeowner of the need for, and benefits of, final stabilization. (Homeowners typically have an incentive to put in landscaping functionally equivalent to final stabilization as quick as possible to keep mud out of their homes and off their sidewalks and driveways.); or 3. For construction projects on land used for agricultural purposes (e.g., pipelines across crop or range land), final stabilization may be accomplished by returning the disturbed land to its preconstruction agricultural use. Areas disturbed that were not previously used for agricultural activities, such as buffer strips immediately adjacent to ``waters of the United States,'' and areas which are not being returned to their preconstruction agricultural use must meet the final stabilization criteria in (1) or (2) above. J. Flow-Weighted Composite Sample means a composite sample consisting of a mixture of aliquots collected at a constant time interval, where the volume of each aliquot is proportional to the flow rate of the discharge. K. Large and Medium Municipal Separate Storm Sewer System means all municipal separate storm sewers that are either: 1. Located in an incorporated place (city) with a population of 100,000 or more as determined by the latest Decennial Census by the Bureau of Census (these cities are listed in Appendices F and G of 40 CFR 122); or 2. Located in the counties with unincorporated urbanized populations of 100,000 or more, except municipal separate storm sewers that are located in the incorporated places, townships or towns within such counties (these counties are listed in Appendices H and I of 40 CFR 122); or 3. Owned or operated by a municipality other than those described in paragraph (i) or (ii) and that are designated by the Director as part of the large or medium municipal separate storm sewer system. L. NOI means Notice of Intent to be covered by this permit (see Part II of this permit). M. NOT means Notice of Termination (see Part VIII of this permit). N. Operator for the purpose of this permit and in the context of storm water associated with construction activity, means any party associated with a construction project that meets either of the following two criteria: 1. The party has operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or 2. The party has day-to-day operational control of those activities at a project which are necessary to ensure compliance with a storm water pollution prevention plan for the site or other permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the SWPPP or comply with other permit conditions). This definition is provided to inform permittees of EPA's interpretation of how the regulatory definitions of ``owner or operator'' and ``facility or activity'' are applied to discharges of storm water associated with construction activity. O. Owner or operator means the owner or operator of any ``facility or activity'' subject to regulation under the NPDES program. P. Point Source means any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff. Q. Pollutant is defined at 40 CFR 122.2. A partial listing from this definition includes: dredged spoil, solid waste, sewage, garbage, sewage sludge, chemical wastes, biological materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial or municipal waste. R. Runoff coefficient means the fraction of total rainfall that will appear at the conveyance as runoff. S. Storm Water means storm water runoff, snow melt runoff, and surface runoff and drainage. T. Storm Water Associated With Industrial Activity is defined at 40 CFR 122.26(b)(14) and incorporated here by reference. Most relevant to this permit is 40 CFR 122.26(b)(14)(x), which relates to construction activity including clearing, grading and excavation activities that result in the disturbance of five (5) or more acres of total land area, or are part of a larger common plan of development or sale. U. Waters of the United States means: 1. All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; 2. All interstate waters, including interstate ``wetlands''; 3. All other waters such as interstate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: a. Which are or could be used by interstate or foreign travelers for recreational or other purposes; b. From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or c. Which are used or could be used for industrial purposes by industries in interstate commerce; 4. All impoundments of waters otherwise defined as waters of the United States under this definition; 5. Tributaries of waters identified in paragraphs (a) through (d) of this definition; 6. The territorial sea; and 7. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs 1. through 6. of this definition. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the CWA (other than cooling ponds for steam electric generation stations per 40 CFR 423 which also meet the criteria of this definition) are not waters of the United States. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean [[Page 36510]] Water Act jurisdiction remains with EPA. Part X. Permit Conditions Applicable to Specific States and Indian Country Lands The provisions of this Part provide additions to the applicable conditions of Parts I through IX of this permit to reflect specific additional conditions required as part of the State or Tribal CWA Section 401 certification process. The additional revisions and requirements listed below are set forth in connection with, and only apply to, the following States and Indian Country lands. 1. LAR10*##I: Indian Country Lands in the State of Louisiana No additional requirements. 2. NMR10*###: The State of New Mexico, Except Indian Country Lands No additional requirements. 3. NMR10*##I: Indian Country Lands in the State of New Mexico, Except Navajo Reservation Lands (see Region 9) and Ute Mountain Reservation Lands (see Region 8) a. Pueblo of Isleta. Copies of Notices of Intent (NOI), Notices of Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs) must be submitted to the Pueblo of Isleta's Environment Department, Water Quality Program. (1) Part II.C.2 of the permit is added as follows: Special NOI Requirements for the Pueblo of Isleta. NOIs shall also be submitted to the Pueblo of Isleta's Environment Department, Water Quality Program, concurrently with their submission to EPA at the following address: Isleta Environment Department, Water Quality Program, Pueblo of Isleta, PO Box 1270, Isleta, New Mexico 87022. (2) Part VIII.B.2 is added to the permit as follows: Special NOI Requirements for the Pueblo of Isleta. NOTs shall also be submitted to the Pueblo of Isleta's Environment Department, Water Quality Program, concurrently with their submission to EPA. NOTs are to be sent to the address given in Part II.C.2. (3) Part IV.A.3 is added to the permit as follows: Special Storm Water Pollution Prevention Plan Requirements for the Pueblo of Isleta. Storm water pollution prevention plans must be submitted to the Pueblo of Isleta Environment Department, Water Quality Program, ten working days prior to commencing the project on Pueblo of Isleta tribal lands. SWPPPs are to be sent to the address given in Part II.C.2. b. Pueblo of Nambe. Copies of Notices of Intent (NOI), Notices of Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs) must be submitted to the Pueblo of Nambe Department of Environment and Natural Resources. (1) Part II.C.2 is added to the permit as follows: Special NOI Requirements for the Pueblo of Nambe. NOIs shall also be submitted to the Pueblo of Nambe Department of Environment and Natural Resources at the same time they are submitted to EPA at the following address: Pueblo of Nambe, Department of Environment and Natural Resources, Route 1 Box 11788, Santa Fe, New Mexico 87501, Phone (505) 455-2036, Fax (505) 455-2038. (2) Part VIII.B.2 is added to the permit as follows: Special NOT Requirements for the Pueblo of Nambe. NOTs shall also be submitted to the Pueblo of Nambe Department of Environment and Natural Resources at the same time they are submitted to EPA. NOTs are to be sent to the address given in Part II.C.2. (3) Part IV.A.3 is added to the permit as follows: Special Storm Water Pollution Prevention Plan Requirements for the Pueblo of Nambe. Storm water pollution prevention plans must be submitted to the Pueblo of Nambe Department of Environment and Natural Resources before the project on Pueblo of Nambe tribal lands begins. SWPPPs are to be sent to the address given in Part II.C.2. c. Pueblo of Picuris. Copies of Notices of Intent (NOI), Notices of Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs) must be submitted to the Pueblo of Picuris Environment Department. (1) Part II.C.2 is added to the permit as follows: Special NOI Requirements for the Pueblo of Picuris. NOIs shall also be submitted to the Pueblo of Picuris Environment Department at the same time they are submitted to EPA at the following address: Pueblo of Picuris, Environment Department, P.O. Box 127, Penasco, New Mexico 87553, Phone (505) 587-2519, Fax (505) 587-1071. (2) Part VIII.B.2 is added to the permit as follows: Special NOT Requirements for the Pueblo of Picuris. NOTs shall also be submitted to the Pueblo of Picuris Environment Department at the same time they are submitted to EPA. NOTs are to be sent to the address given in Part II.C.2. (3) Part IV.A.3 is added to the permit as follows: Special Storm Water Pollution Prevention Plan Requirements for the Pueblo of Picuris. Storm water pollution prevention plans must be submitted to the Picuris Environment Department before the project on Pueblo of Picuris tribal lands begins. SWPPPs are to be sent to the address given in Part II.C.2. d. Pueblo of Pojoaque. Copies of Notices of Intent (NOI), Notices of Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs) must be submitted to the Pueblo of Pojoaque Environment Department Director. (1) Part II.C.2 is added to the permit as follows: Special NOI Requirements for the Pueblo of Pojoaque. NOIs shall also be submitted to the Pueblo of Pojoaque Environment Department Director at the same time they are submitted to EPA at the following address: Pueblo of Pojoaque, Environment Department, Route 11, P.O. Box 208, Santa Fe, New Mexico 87501, Phone (505) 455-3383, Fax (505) 455- 3633. (2) Part VIII.B.2 of the permit is added as follows: Special NOT Requirements for the Pueblo of Pojoaque. NOTs shall also be submitted to the Pueblo of Pojoaque Environment Department Director at the same time they are submitted to EPA. NOTs are to be sent to the address given in Part II.C.2. (3) Part IV.A.3 is added to the permit as follows: Special Storm Water Pollution Prevention Plan Requirements for the Pueblo of Pojoaque. Storm water pollution prevention plans must be submitted to the Pueblo of Pojoaque Environment Department Director before the project on Pueblo of Pojoaque tribal lands begins. SWPPPs are to be sent to the address given in Part II.C.2. e. Pueblo of San Juan. No additional requirements. f. Pueblo of Sandia. Copies of Notices of Intent (NOI), Notices of Termination (NOT), and Storm Water Pollution Prevention Plans (SWPPPs) must be submitted to the Pueblo of Sandia Environment Department. (1) Part II.C.2 of the permit is added as follows: Special NOI Requirements for the Pueblo of Sandia. NOIs shall also be submitted to the Pueblo of Sandia Environment Department at the same time they are submitted to EPA at the following address: Pueblo of Sandia, Environment Department, Box 6008, Bernalillo, New Mexico 87004, Phone (505) 867-4533; Fax (505) 867-9235. [[Page 36511]] (2) Part VIII.B.2 is added to the permit as follows: Special NOT Requirements for the Pueblo of Sandia. NOTs shall also be submitted to the Pueblo of Sandia Environment Department at the same time they are submitted to EPA. NOTs are to be sent to the address given in Part II.C.2. (3) Part IV.A.3 is added to the permit as follows: Special Storm Water Pollution Prevention Plan Requirements for the Pueblo of Sandia. Storm water pollution prevention plans must be submitted to the Pueblo of Sandia Environment Department before commencement of the project on Pueblo of Sandia tribal lands. SWPPPs are to be sent to the address given in Part II.C.2. g. Pueblo of Tesuque. Copies of Notices of Intent (NOI), Notices of Termination (NOT), Storm Water Pollution Prevention Plans (SWPPPs), inspection reports, all certifications and ``other information'' must be submitted, by hand delivery or certified mail, to the Pueblo of Tesuque. (1) Part II.C.2 of the permit is added as follows: Special NOI Requirements for the Pueblo of Tesuque. NOIs shall also be submitted to the Pueblo of Tesuque at least five (5) days prior to any ground disturbing activity at the following address: Pueblo of Tesuque, Environment Department, Route 5, Box 3260-T, Santa Fe, New Mexico 87501, Phone (505) 983-2667; Fax (505) 982-2331. (2) Part VIII.B.2 is added to the permit as follows: Special NOT Requirements for the Pueblo of Tesuque. NOTs shall also be submitted to the Pueblo of Tesuque at the same time they are submitted to EPA. NOTs are to be sent to the address given in Part II.C.2. (3) Part IV.A.3 is added to the permit as follows: Special Storm Water Pollution Prevention Plan Requirements for the Pueblo of Tesuque. Storm water pollution prevention plans must be submitted to the Pueblo of Tesuque at least five (5) days prior to any ground disturbing activity on Pueblo of Tesuque tribal lands. SWPPPs are to be sent to the address given in Part II.C.2. (4) Part V.D is added to the permit as follows: Special Reporting Requirements for the Pueblo of Tesuque. Copies of all certifications required by Section IV.D, and copies of ``other information'' required by Section VI.F shall be provided to the Pueblo of Tesuque, by hand delivery or certified mail. Also, copies of all inspection reports required under Section IV.D.4.c. shall be submitted within five (5) days of completion of the inspection. All information sent to the Pueblo of Tesuque is to be sent to the address given in Part II.C.2. h. Santa Clara Pueblo. Copies of Notices of Intent (NOI) and Notices of Termination (NOT) must be submitted to the Santa Clara Pueblo Governors Office with a copy to the Office of Environmental Affairs. (1) Part I.C.4. is added to the permit as follows: Special Authorization Requirements for the Santa Clara Pueblo. Prior to submitting a Notice of Intent, the operator must obtain permission from the Santa Clara Governors Office to do the construction. If the project is approved by the tribal administration, the operator may proceed with submitting a Notice of Intent (NOI). (2) Part II.C.2 is added to the permit as follows: Special NOI Requirements for the Santa Clara Pueblo. NOIs shall also be submitted to the Santa Clara Pueblo Governors Office with a copy to the Office of Environmental Affairs at least two (2) weeks prior to the start of construction at the following address: Santa Clara Governors Office, PO Box 580, Espanola, New Mexico 87532, Phone (505) 753-7326; Fax (505) 753-8988. (3) Part VIII.B.2 is added to the permit as follows: Special NOT Requirements for the Santa Clara Pueblo. NOTs shall also be submitted to the Santa Clara Pueblo Governors Office with a copy to the Office of Environmental Affairs at least two (2) weeks prior to the start of construction. NOTs are to be sent to the address given in Part II.C.2. i. All Other Indian Country lands in New Mexico. No additional requirements. 4. OKR10*##I: Indian Country Lands in the State of Oklahoma No additional requirements. 5. OKR10*##F: Oil and Gas Sites in the State of Oklahoma No additional requirements. 6. TXR10*###: The State of Texas, Except Indian Country Lands a. Part III of the permit is modified as follows: Change the title of Part III. (Special Conditions, Management Practices, and other Non- Numeric Limitations) to: Part III. Special Conditions, Management Practices, and other Limitations. b. Part III.G is added to the permit as follows: Special Numeric Limitations for Discharges from Ready-Mixed Concrete Plants in the State of Texas, except Indian Country lands. All discharges of storm water from ready-mixed concrete plants covered by this permit must comply with the following limitations: pH--Between 6.0 and 9.0 standard units Oil and Grease--15 mg/l as a daily maximum Total Suspended Solids--65 mg/l as a daily maximum These limitations must be taken into account when designing the storm water control measures to be used for areas draining any ready- mixed concrete plants operated by the permittee. 7. TXR10*##I: Indian Country Lands in the State of Texas No additional requirements. Addendum A--Endangered Species I. Instructions for Applicants A. Background To meet its obligations under the Clean Water Act and the Endangered Species Act (ESA) and to promote those Acts' goals, the Environmental Protection Agency (EPA) is seeking to ensure the activities regulated by the Construction General Permit (CGP) are protective of endangered and threatened species and critical habitat. To ensure that those goals are met, applicants for CGP coverage are required under Part I.B.3.e. to assess the impacts of their storm water discharges and storm water discharge-related activities on Federally listed endangered and threatened species (``listed species'') and designated critical habitat (``critical habitat'') by following Steps One through Six listed below. EPA strongly recommends that applicants follow these steps at the earliest possible stage to ensure that measures to protect listed species and critical habitat are incorporated early in the planning process. At minimum, the procedures should be followed when developing the storm water pollution prevention plan. Permittees and applicants also have an independent ESA obligation to ensure that their activities do not result in any prohibited ``takes'' of listed species.\1\ Many of the measures required in the CGP and in these instructions to protect species may also assist permittees in ensuring that their construction activities do not result in a prohibited take of species in violation of Sec. 9 of the ESA. Applicants who plan construction activities in areas that harbor endangered and threatened species are advised to ensure that [[Page 36512]] they are protected from potential takings liability under ESA Sec. 9 by obtaining either an ESA Sec. 10 permit or by requesting formal consultation under ESA Sec. 7 (as described in more detail in Step Seven below). Applicants who seek protection from takings liability should be aware that it is possible that some specific construction activities may be too unrelated to storm water discharges to be afforded incidental take coverage through an ESA Sec. 7 consultation that is performed to meet the eligibility requirements for CGP coverage. In such instances, applicants should apply for an ESA Sec. 10 permit. Where applicants are not sure whether to pursue a Sec. 10 permit or a Sec. 7 consultation for takings protection, they should confer with the appropriate Fish and Wildlife Service (FWS) or National Marine Fisheries Service (NMFS) office. --------------------------------------------------------------------------- \1\ Section 9 of the ESA prohibits any person from ``taking'' a listed species (e.g., harassing or harming it) unless: (1) the taking is authorized through a ``incidental take statement'' as part of undergoing ESA Sec. 7 formal consultation; (2) where an incidental take permit is obtained under ESA Sec. 10 (which requires the development of a habitat conservation plan); or (3) where otherwise authorized or exempted under the ESA. This prohibition applies to all entities including private individuals, businesses, and governments. --------------------------------------------------------------------------- This permit provides for the possibility of multiple permittees at a construction site. Applicants should be aware that in many cases they can meet the permit eligibility requirements by relying on another operator's certification of eligibility under Part I.B.3.e.(2)(a), (b), or (c). This is allowed under Part I.B.3.e.(2)(d) of the permit. However, the other operator's certification must apply to the applicant's project area and must address the effects from the applicant's storm water discharges and storm water discharge-related activities on listed species and critical habitat. By certifying eligibility under Part I.B.3.e.(2)(d), the applicant agrees to comply with any measures or controls upon which the other operator's certification under Part I.B.3.e.(2)(a), (b) or (c) was based. This situation will typically occur where a developer or primary contractor, such as one for construction of a subdivision or industrial park, conducts a comprehensive assessment of effects on listed species and critical habitat for the entire construction project, certifies eligibility under Part I.B.3.e.(2)(a), (b) or (c), and that certification is relied upon by other operators (i.e., contractors) at the site. However, applicants that consider relying on another operator's certification should carefully review that certification along with any supporting information. If an applicant does not believe that the operator's certification provides adequate coverage for the applicant's storm water discharges and storm water discharge-related activities or for the applicant's particular project area, the applicant should provide its own independent certification under Part I.B.3.e.(2)(a), (b), or (c). B. Procedures To receive coverage under the Construction General Permit, applicants must assess the potential effects of their storm water discharges and storm water discharge-related activities on listed species and their critical habitat. To make this assessment, applicants must follow the steps outlined below prior to completing and submitting Notice of Intent (NOI) form. Applicants who are able to certify eligibility under Parts I.B.3.e.(2)(b), (c) or (d) because of a previously issued ESA Sec. 10 permit, a previously completed ESA Sec. 7 consultation, or because the applicant's activities were already addressed in another operator's certification of eligibility may proceed directly to Step Six. Note.--The revised NOI form which was included in the CGP (see 62 FR 29822-29823, June 2, 1997) requires that applicants provide detailed certification information on listed species. That form is still under development and is not expected to be finalized before this permit is issued. Until the revised NOI form is finalized, applicants must use the existing NOI form which does not contain the specific certification provisions relating to listed species and critical habitats at construction projects. However, use of the existing NOI form does not relieve applicants of their obligation to follow the procedures listed below to determine if their construction storm water discharges or storm water discharge-related activities meet permit eligibility requirements for the protection of listed species and critical habitat. By following these instructions, applicants will have sufficient information on listed species and critical habitat in order to complete either the existing or revised NOI form and sign the certification statement. Step One: Determine if the Construction Site Is Found Within Designated Critical Habitat for Listed Species Some, but not all, listed species have designated critical habitat. Exact locations of such habitat is provided in the Service regulations at 50 CFR Parts 17 and 226. To determine if their construction site occurs within designated critical habitat, applicants should either: Contact the nearest Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) Office. A list of FWS and NMFS offices is found in Section II of this Addendum; or Contact the State or Tribal Natural Heritage Centers. These centers compile and disseminate information on Federally listed and other protected species. They frequently have the most current information on listed species and critical habitat. A list of these centers is provided in Section III of this Addendum; or Review those regulations (which can be found in many larger libraries). If the construction site is not located in designated critical habitat, then the applicant does not need to consider impacts to critical habitat when following Steps Two through Six below. If the site is located within critical habitat, then the applicant must look at impacts to critical habitat when following Steps Two through Six. Note that many but not all measures imposed to protect listed species under these steps will also protect critical habitat. Thus, meeting the eligibility requirements of this permit may require measures to protect critical habitat that are separate from those to protect listed species. Step Two: Determine if Listed Species Are Located in the County(ies) Where the Construction Activity Will Occur Section IV of the Addendum contains a county-by-county list of listed endangered and threatened species (``listed species''), and proposed endangered and threatened species (``proposed species''). Since the list was current as of September 1, 1997, applicants must also check with other sources for updated species and county information. These sources include: Sections II and III of this Addendum; EPA's Office of Wastewater Management's web page at ``http://www.epa.gov/owm'' where updates of the county-by-county list will be posted on a periodic basis; Federal Register Notices; State wildlife protection offices; a biologist or similar professional in the environmental field; or any other method which can be reasonably expected to provide this information. Applicants with construction projects located in EPA Region 2 and Region 6 can call the Storm Water General Permits Hotline at (800) 245-6510 for further assistance, while applicants with projects located in EPA Regions 1, 3, 7, 8, 9 and 10 may contact the appropriate EPA Regional Office. Where a facility is located in more than one county, the lists for all counties should be reviewed. Where a facility discharges into a water body which serves as a border between counties or which crosses a county line which is in the immediate vicinity of the point of discharge, applicants should also review the species list for the county which lies immediately downstream or is across the water body from the point of discharge. After a review of the available information from the sources mentioned above, if no listed species are located in a facility's county or if a facility's county is not listed, and the construction site is not located in critical habitat as described under Step One, an applicant is eligible for CGP coverage without further inquiry into the presence of, or effect to, listed species. The applicant must check the appropriate certification item on the revised NOI form (Part I.B.3.e.(2)(a)). Once the applicant has determined which listed species are located in his or her facility's county, the applicant must follow Step Three. Step Three: Determine if any Federally Listed Endangered and Threatened Species May Be Present in the Project Area The project area consists of: The areas on the construction site where storm water discharges originate and flow toward the point of discharge into the receiving waters (including areas where excavation, site development, or other ground disturbance activities occur) and the immediate vicinity. Example(s) 1. Where bald eagles nest in a tree that is on or bordering a construction site and could be disturbed by the construction activity. 2. Where grading causes storm water to flow into a small wetland or other habitat that is on the site which contains listed species. The areas where storm water discharges flow from the construction site to the point of discharge into receiving waters. Example(s) 1. Where storm water flows into a ditch, swale, or gully which leads to receiving waters and where listed species (such as amphibians) are found in the ditch, swale, or gully. The areas where storm water from construction activities discharge into receiving waters and the areas in the immediate vicinity of the point of discharge. [[Page 36513]] Example(s) 1. Where storm water from construction activities discharges into a stream segment that is known to harbor listed aquatic species. The areas where storm water BMPs will be constructed and operated, including any areas where storm water flows to and from BMPs. Example(s) 1. Where a storm water retention pond would be built. The project area will vary with the size and structure of the construction activity, the nature and quantity of the storm water discharges, the storm water discharge-related activities and the type of receiving water. Given the number of construction activities potentially covered by the CGP, no specific method to determine whether listed species may be located in the project area is required for coverage under the CGP. Instead, applicants should use the method which allows them to determine, to the best of their knowledge, whether listed species are located in their project area. These methods may include: Conducting visual inspections: This method may be particularly suitable for construction sites that are smaller in size or located in non-natural settings such as highly urbanized areas or industrial parks where there is little or no natural habitat, or for construction activities that discharge directly into municipal storm water collection systems. Contacting the nearest State or Tribal wildlife agency, the Fish and Wildlife Service (FWS), or the National Marine Fisheries Service (NMFS). Many endangered and threatened species are found in well-defined areas or habitats. Such information is frequently known to State, Tribal, or Federal wildlife agencies. A list of FWS and NMFS offices is provided in Section II of this Addendum below. Contacting local/regional conservation groups or the State or Tribal Natural Heritage Centers (see Section III of this Addendum). State and local conservation groups may have location specific listed species information. The Natural Heritage Centers inventory species and their locations and maintain lists of sightings and habitats. Submitting a data request to a Natural Heritage Center. Many of these centers will provide site specific information on the presence of listed species in a project area. Some of these centers will charge a fee for researching data requests. Conducting a formal biological survey. Larger construction sites with extensive storm water discharges may choose to conduct biological surveys as the most effective way to assess whether species are located in the project area and whether there are likely adverse effects. Biological surveys are frequently performed by environmental consulting firms. A biological survey can be used to follow Steps Four through Six of these instructions. Conducting an environmental assessment under the National Environmental Policy Act (NEPA). Some construction activities may require environmental assessments under NEPA. Such assessments may indicate if listed species are in the project area. Coverage under the CGP does not trigger such an assessment because the permit does not regulate any dischargers subject to New Source Performance Standards under Section 306 of the Clean Water Act, and is thus statutorily exempted from NEPA. See CWA Sec. 511(c). However, some construction activities might require review under NEPA because of Federal funding or other Federal involvement in the project. If no species are found in the project area, an applicant is eligible for CGP coverage. Applicants must provide the necessary certification on the revised NOI form. If listed species are found in the project area, applicants must indicate the location and nature of this presence in the storm water pollution prevention plan and follow Step Four. Step Four: Determine if Listed Species or Critical Habitat Are Likely To Be Adversely Affected by the Construction Activity's Storm Water Discharges or Storm Water Discharge-Related Activities To receive CGP coverage, applicants must assess whether their storm water discharges or storm water discharge-related activities are likely to adversely affect listed species or critical habitat. ``Storm water discharge-related activities'' include: Activities which cause, contribute to, or result in point source storm water pollutant discharges, including but not limited to excavation, site development, grading, and other surface disturbance activities; and Measures to control storm water discharges including the siting, construction, operation of best management practices (BMPs) to control, reduce or prevent storm water pollution. Potential adverse effects from storm water discharges and storm water discharge-related activities include: Hydrological. Storm water discharges may cause siltation, sedimentation or induce other changes in receiving waters such as temperature, salinity or pH. These effects will vary with the amount of storm water discharged and the volume and condition of the receiving water. Where a storm water discharge constitutes a minute portion of the total volume of the receiving water, adverse hydrological effects are less likely. Construction activity itself may also alter drainage patterns on a site where construction occurs which can impact listed species or critical habitat. Habitat. Excavation, site development, grading, and other surface disturbance activities from construction activities, including the installation or placement of storm water BMPs, may adversely affect listed species or their habitat. Storm water may drain or inundate listed species habitat. Toxicity. In some cases, pollutants in storm water may have toxic effects on listed species. The scope of effects to consider will vary with each site. If the applicant is having difficulty in determining whether his or her project is likely to adversely Affect a listed species or critical habitat, then the appropriate office of the FWS, NMFS or Natural Heritage Center listed in Sections II and III of this Addendum should be contacted for assistance. If adverse effects are not likely, then the applicant should make the appropriate certification on the revised NOI form and apply for coverage under the permit. If adverse effects are likely, applicants must follow Step Five. Step Five: Determine if Measures Can Be Implemented To Avoid Any Adverse Effects If an applicant makes a preliminary determination that adverse effects are likely, it can still receive coverage under Part I.B.3.e.(2)(a) of the CGP if appropriate measures are undertaken to avoid or eliminate the likelihood of adverse effects prior to applying for permit coverage. These measures may involve relatively simple changes to construction activities such as re-routing a storm water discharge to bypass an area where species are located, relocating BMPs, or by changing the ``footprint'' of the construction activity. Applicants may wish to contact the FWS and/or NMFS to see what appropriate measures might be suitable to avoid or eliminate the likelihood of adverse impacts to listed species and/or critical habitat. (See 50 CFR 402.13(b).) This can entail the initiation of informal consultation with the FWS and/or NMFS which is described in more detail in Step Six. If applicants adopt measures to avoid or eliminate adverse effects, they must continue to abide by those measures during the course of permit coverage. These measures must be described in the storm water pollution prevention plan and may be enforceable as permit conditions. If appropriate measures to avoid the likelihood of adverse effects are not available to the applicant, the applicant must follow Step Six. Step Six: Determine if the Eligibility Requirements of Part I.B.3.e.(2)(b)-(d) Can Be Met Where adverse effects are likely, the applicant must contact the EPA and FWS/NMFS. Applicants may still be eligible for CGP coverage if any likely adverse effects can be addressed through meeting the criteria of Part I.B.3.e.(2)(b)-(d) of the permit. These criteria are as follows: 1. An ESA Section 7 Consultation Is Performed for the Applicant's Activity (See Part I.B.3.e.(2)(b) Formal or informal ESA Sec. 7 consultation is performed with the FWS and/or NMFS which addresses the effects of the applicant's storm water discharges and storm water discharge-related activities on listed species and critical habitat. The formal consultation must result in either a ``no jeopardy opinion'' or a ``jeopardy opinion'' that identifies reasonable and prudent alternatives to avoid jeopardy which are to be implemented by the applicant. The informal consultation must result in a written concurrence by the Service(s) on a finding that the applicant's storm water discharge(s) and storm water discharge-related activities are not likely to adversely affect listed species or critical habitat (for informal consultation, see 50 CFR 402.13). [[Page 36514]] Most consultations are accomplished through informal consultation. By the terms of this permit, EPA has automatically designated applicants as non-Federal representatives for the purpose of conducting informal consultations. See Part I.B.3.e.(5) and 50 CFR 402.08 and 402.13. When conducting informal ESA Sec. 7 consultation as a non-Federal representative, applicants must follow the procedures found in 50 CFR 402 of the ESA regulations. Applicants must also notify EPA and the Services of their intention and agreement to conduct consultation as a non-Federal representative. Consultation may occur in the context of another Federal action at the construction site (e.g., where ESA Sec. 7 consultation was performed for issuance of a wetlands dredge and fill permit for the project or where a NEPA review is performed for the project which incorporates a section 7 consultation). Any terms and conditions developed through consultations to protect listed species and critical habitat must be incorporated into the SWPPP. As noted above, applicants may, if they wish, initiate consultation with the Services at Step Five. Whether ESA Sec. 7 consultation must be performed with either the FWS, NMFS or both Services depends on the listed species which may be affected by the applicant's activity. In general, NMFS has jurisdiction over marine, estuarine, and anadromous species. Applicants should also be aware that while formal Sec. 7 consultation provides protection from incidental takings liability, informal consultation does not. 2. An Incidental Taking Permit Under Section 10 of the ESA Is Issued for the Applicants Activity (See Part I.B.3.e.(2)(c)) The applicant's construction activities are authorized through the issuance of a permit under Sec. 10 of the ESA and that authorization addresses the effects of the applicant's storm water discharge(s) and storm water discharge-related activities on listed species and critical habitat. Applicants must follow FWS and/or NMFS procedures when applying for an ESA Section 10 permit (see 50 CFR Sec. 17.22(b)(1) (FWS) and Sec. 222.22 (NMFS)). Application instructions for Section 10 permits for NMFS species can be obtained by (1) accessing the ``Office of Protected Resources'' sector of the NMFS Home Page at ``http://www.nmfs.gov'' or by contacting the National Marine Fisheries Service, Office of Protected Resources, Endangered Species Division, F/PR3, 1315 East-West Highway, Silver Spring, Maryland 20910; telephone (301) 713-1401, fax (301) 713- 0376. 3. The Applicant Is Covered Under the Eligibility Certification of Another Operator for the Project Area (See Part I.B.3.e.(2)(d)) The applicant's storm water discharges and storm water discharge-related activities were already addressed in another operator's certification of eligibility under Part I.B.3.e.(2)(b), or (c) which also included the applicant's project area. By certifying eligibility under Part I.B.3.e.(2)(d), the applicant agrees to comply with any measures or controls upon which the other operator's certification under Part I.B.3.e.(2)(a), (b) or (c) was based. Certification under Part I.B.3.e.(2)(d) is discussed in more detail in Section I.A. of this addendum. The applicant must comply with any terms and conditions imposed under the eligibility requirements of paragraphs I.B.3.e(2)(a), (b), (c), (d) to ensure that its storm water discharges and storm water discharge-related activities are protective of listed species and/or critical habitat. Such terms and conditions must be incorporated in the project's SWPPP. If the eligibility requirements of Part I.B.3.e.(2)(a)-(d) cannot be met, then the applicant may not receive coverage under the CGP. Applicants should then consider applying to EPA for an individual permit. II. List of Fish and Wildlife Service and National Marine Fisheries Service Offices A. U.S. Fish and Wildlife Service Offices National Website for Endangered Species Information Endangered Species Home page: http://www.fws.gov/\r9endspp/endspp.html Regional, State, Field and Project Offices USFWS Region Two Regional Office Division Chief, Endangered Species, U.S. Fish and Wildlife Service, ARD Ecological Services, P.O. Box 1306, Albuquerque, NM 87103 State, Field, and Project Offices (Region Two) Field Supervisor, U.S. Fish and Wildlife Service, Corpus Christi Field Office, 6300 Ocean Dr., Campus Box 338, Corpus Christi, TX 78412 Field Supervisor, U.S. Fish and Wildlife Service, Arlington Field Office, 711 Stadium Dr., East, Suite 252, Arlington, TX 76011 Field Supervisor, U.S. Fish and Wildlife Service, Clear Lake Field Office, 17629 El Camino Real, Suite 211, Houston, TX 77058 Field Supervisor, U.S. Fish and Wildlife Service, Oklahoma Field Office, 222 S. Houston, Suite a, Tulsa, OK 74127 Field Supervisor, U.S. Fish and Wildlife Service, New Mexico Field Office, 2105 Osuna, NE, Albuquerque, NM 87113 Field Supervisor, U.S. Fish and Wildlife Service, Austin Ecological Serv. Field Office, 10711 Burnet Road, Suite 200, Austin, TX 78758 Field Supervisor, U.S. Fish and Wildlife Service, Arizona State Office, 2321 W. Royal Palm Road, Suite 103, Phoenix, AZ 85021-4951 USFWS Region Four Regional Office Division Chief, Endangered Species, U.S. Fish and Wildlife Service, ARD--Ecological Services, 1875 Century Blvd., Suite 200, Atlanta, GA 30345 State, Field, and Project Offices (Region Four) Field Supervisor, U.S. Fish and Wildlife Service, Panama City Field Office, 1612 June Avenue, Panama City, FL 32405-3721 Field Supervisor, U.S. Fish and Wildlife Service, South Florida Ecosystem Field Office, 1360 U.S. Hwy 1, #5; P.O. Box 2676, Vero Beach, FL 32961-2676 Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Field Office, P.O. Box 491, Boqueron, PR 00622 Field Supervisor, U.S. Fish and Wildlife Service, Puerto Rican Parrot Field Office, P.O. Box 1600, Rio Grande, PR 00745 Field Supervisor, U.S. Fish and Wildlife Service, Brunswick Field Office, 4270 Norwich Street, Brunswick, GA 31520-2523 Field Supervisor, U.S. Fish and Wildlife Service, Jacksonville Field Office, 6620 Southpoint Drive S., Suite 310, Jacksonville, FL 32216- 0912 Field Supervisor, U.S. Fish and Wildlife Service, Charleston Field Office, 217 Ft. Johnson Road, P.O. Box 12559, Charleston, SC 29422- 2559 Field Supervisor, U.S. Fish and Wildlife Service, Clemson F.O., Dept. of Forest Resources, 261 Lehotsky Hall, Box 341003, Clemson, SC 29634-1003 Field Supervisor, U.S. Fish and Wildlife Service, Raleigh Field Office, P.O. Box 33726, Raleigh, NC 27636-3726 Field Supervisor, U.S. Fish and Wildlife Service, Cookeville Field Office, 446 Neal Street, Cookeville, TN 38501 Field Supervisor, U.S. Fish and Wildlife Service, Asheville Field Office, 160 Zillicoa Street, Asheville, NC 28801 Field Supervisor, U.S. Fish and Wildlife Service, Daphne Field Office, P.O. Drawer 1190, Daphne, AL 36526 Field Supervisor, U.S. Fish and Wildlife Service, Vicksburg Field Office, 2524 S. Frontage Road, Suite B, Vicksburg, MS 39180-5269 Field Supervisor, U.S. Fish and Wildlife Svc., Lafayette Field Office, Brandywine II, Suite 102, 825 Kaliste Saloom Road, Lafayette, LA 70508 Field Supervisor, U.S. Fish and Wildlife Service, Jackson Field Office, 6578 Dogwood View Pkwy Suite A, Jackson, MS 39213 B. National Marine Fisheries Service Offices The National Marine Fisheries Service is developing a database to provide county and territorial water (up to three miles offshore) information on the presence of endangered and threatened species and critical habitat. The database is projected to be available to the public sometime in December 1997. The database should be found at the ``Office of Protected Resources'' site on the NMFS Homepage at ``http://www.nmfs.gov''. Regional and Field Office Southeast Region Protective Species Management Branch, National Marine Fisheries Service, Southeast Region, 9721 Executive Center Drive, St. Petersburg, Florida 33702-2432 III. Natural Heritage Centers The Natural Heritage Network comprises 85 biodiversity data centers throughout the Western Hemisphere. These centers collect, organize, and share data relating to endangered and threatened species and habitat. The network was developed to inform land-use decisions for developers, [[Page 36515]] corporations, conservationists, and government agencies and is also consulted for research and educational purposes. The centers maintain a Natural Heritage Network Control Server Website (http:// www.heritage.tnc.org) which provides website and other access to a large number of specific biodiversity centers. Some of these centers are listed below: Oklahoma Natural Heritage Inventory Oklahoma Biological Survey, 111 East Chesapeake Street, University of Oklahoma, Norman, OK 73019-0575, 405/325-1985 Fax: 405/325-7702, Web site: http://obssun02.uoknor.edu/biosurvey/onhi/home.html Louisiana Natural Heritage Program Department of Wildlife & Fisheries, P.O. Box 98000, Baton Rouge, LA 70898-9000, 504/765-2821 Fax: 504/765-2607 Navajo Natural Heritage Program P.O. Box 1480, Window Rock, Navajo Nation, AZ 86515, (520) 871- 7603, (520) 871-7069 (FAX) Texas Biological and Conservation Data System 3000 South IH-35, Suite 100, Austin, TX 78704, 512/912-7011 Fax: 512/912-7058 IV. County List of Endangered and Threatened Species Please see February 17, 1998, Federal Register Vol. 63 no. 31 for county by county listing or contact EPA Region 6 Storm Water Hotline (1-800-245-6510). EPA's Office of Wastewater Management's web page at ``http://www.epa.gov/owm'' will post periodic updates of the county-by-county list. You may also check the list of endangered and threatened species published by the Fish and Wildlife Service on the Endangered Species Home Page (http://www.fws.gov/ r9endspp/enddspp.htm) which is also attached to the FWS Home Page in the ``Nationwide Activities Category''. List of species under NMFS jurisdiction can be found on the NMFS Homepage (http:www.nmfs.gov) under the ``Protected Resources Program.'' Lists and maps of critical habitat can be found in the Code of Federal Regulations (CFRs) at 50 CFR parts 17 and 226. Addendum B--Historic Properties (Reserved) Instructions related to historic preservation have not been included in the permit at this time. EPA may modify the permit to include such provisions at a later date. This does not relieve applicants or permittees of their responsibility to comply with applicable State, Tribal or local laws for the protection of historic properties. Addendum C--Revised Notice of Intent Form The Notice of Intent form (EPA3510-9) replaces the Notice of Intent form (EPA 3510-6 (8-98)). The revised form is contained in this Addendum. According to the provisions in Part II.B.1 of this permit, applicants are reminded they must certify that they meet all eligibility requirements of Part I.B. of this permit and are informing the Director of their intent to be covered by, and comply with, those terms and conditions. These conditions include certifications that the applicant's storm water discharges and storm water-related discharge activities will not adversely affect listed endangered or threatened species, or their critical habitat. EPA may modify this permit to include provisions relating to historic preservation. BILLING CODE 6560-50-P [[Page 36516]] [GRAPHIC] [TIFF OMITTED] TN06JY98.000 [[Page 36517]] [GRAPHIC] [TIFF OMITTED] TN06JY98.001 [[Page 36518]] Addendum D--Notice of Termination Form From the effective date of this permit, permittees are to use the existing Notice of Termination form (EPA Form 3510-7) contained in this Addendum until they are instructed by the Director (EPA) to use a revised version. Permittees are to complete, sign and submit the form in accordance with Part VIII of the permit when terminating permit coverage at a construction project when one or more or the conditions contained in Part I.D.2 have been met. [GRAPHIC] [TIFF OMITTED] TN06JY98.002 [[Page 36519]] [GRAPHIC] [TIFF OMITTED] TN06JY98.003 [FR Doc. 98-17521 Filed 7-2-98; 8:45 am] BILLING CODE 6560-50-C