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Notice2022-01258

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

Primary source

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Published

January 24, 2022

Effective

February 17, 2022

Issuing agencies

Environmental Protection Agency

Abstract

All ten (10) Environmental Protection Agency (EPA) Regions are finalizing the 2022 National Pollutant Discharge Elimination System (NPDES) general permit for stormwater discharges from construction activities, also referred to as the "2022 Construction General Permit," the "2022 CGP," or the "final permit." The final permit will replace the 2017 CGP that will expire at midnight on February 16, 2022. EPA is issuing this permit for five (5) years to provide permit coverage to eligible operators in all areas of the country where EPA is the NPDES permitting authority, including Massachusetts, New Hampshire, New Mexico, oil and gas activities within Oklahoma, most Indian country lands, the District of Columbia, U.S. territories and protectorates except for the U.S. Virgin Islands, and certain federal facilities. This Federal Register document summarizes the final permit. The final permit and fact sheet can be found at https://www.epa.gov/npdes/2022- construction-general-permit-cgp. EPA's responses to public comments that were submitted in response to the proposed 2022 CGP may be found in the docket for this action (Docket ID No. EPA-HQ-OW-2021-0169).

Full Text

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<title>Federal Register, Volume 87 Issue 15 (Monday, January 24, 2022)</title>
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[Federal Register Volume 87, Number 15 (Monday, January 24, 2022)]
[Notices]
[Pages 3522-3532]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-01258]

[[Page 3522]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2021-0169; FRL-7877-01-OW]

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit issuance.

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SUMMARY: All ten (10) Environmental Protection Agency (EPA) Regions are
finalizing the 2022 National Pollutant Discharge Elimination System
(NPDES) general permit for stormwater discharges from construction
activities, also referred to as the ``2022 Construction General
Permit,'' the ``2022 CGP,'' or the ``final permit.'' The final permit
will replace the 2017 CGP that will expire at midnight on February 16,
2022. EPA is issuing this permit for five (5) years to provide permit
coverage to eligible operators in all areas of the country where EPA is
the NPDES permitting authority, including Massachusetts, New Hampshire,
New Mexico, oil and gas activities within Oklahoma, most Indian country
lands, the District of Columbia, U.S. territories and protectorates
except for the U.S. Virgin Islands, and certain federal facilities.
This Federal Register document summarizes the final permit. The final
permit and fact sheet can be found at <a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>. EPA's responses to public comments
that were submitted in response to the proposed 2022 CGP may be found
in the docket for this action (Docket ID No. EPA-HQ-OW-2021-0169).

DATES: The final permit will become effective on February 17, 2022.
This effective date is necessary to provide dischargers with the
immediate opportunity to comply with Clean Water Act (CWA) requirements
in light of the expiration of the 2017 CGP on February 16, 2022. In
accordance with 40 CFR part 23, the 2022 CGP shall be considered issued
for the purpose of judicial review on February 7, 2022. Under CWA
Section 509(b), judicial review of this general permit can be requested
by filing a petition for review in the United States Court of Appeals
within 120 days after the permit is issued. Under CWA Section
509(b)(2), the requirements in this permit may not be challenged later
in civil or criminal proceedings to enforce these requirements. In
addition, this permit may not be challenged in other agency
proceedings. Deadlines for submittal of a Notice of Intent (NOI) are
provided in Part 1.4.3 of the 2022 CGP. The 2022 CGP also provides
additional dates for compliance with the requirements of the permit.
EPA will host a webinar on February 24 at 1:00 p.m. (Eastern Time
Zone) to provide an overview of the 2022 CGP and an opportunity for
participants to ask questions. Those interested may register for the
webinar at <a href="https://www.zoomgov.com/webinar/register/WN_DsNwf8dQTzC1pCk0HCyVnQ">https://www.zoomgov.com/webinar/register/WN_DsNwf8dQTzC1pCk0HCyVnQ</a>. Further details on the webinar, including a
post-webinar recording, will be made available at <a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>.

FOR FURTHER INFORMATION CONTACT: For further information on the final
permit, contact the appropriate EPA Regional office listed in Section
I.F of this document, or Greg Schaner, EPA Headquarters, Office of
Water, Office of Wastewater Management at 202-564-0721 or email:
<a href="/cdn-cgi/l/email-protection#b5d6d2c5f5d0c5d49bd2dac3">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

I. General Information
A. Does this action apply to me?
B. How can I get copies of these documents and other related
information?
C. Who are the EPA regional contacts for this permit?
II. Background of Permit
A. Technology-Based Effluent Limits (TBELs)
B. Water Quality-Based Effluent Limits (WQBELs)
III. Summary of Final Permit
A. Final Changes That Improve Clarity of the Permit
B. Final Changes That Add Specificity To Permit Requirements
IV. Provisions Not Finalized in the 2022 CGP
V. Implementation Assistance
VI. Paperwork Reduction Act (PRA)
VII. 2022 CGP Incremental Cost Analysis and Future Cost-Benefit
Considerations
VIII. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
IX. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
X. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
XI. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

I. General Information

A. Does this action apply to me?

1. Entities Covered by This Permit
This final permit covers stormwater discharges to waters of the
United States from construction activities located in areas identified
in Appendix B of the permit from the following entities, as categorized
in the North American Industry Classification System (NAICS):

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

EPA does not intend the preceding table to be exhaustive but
provides it as a guide for readers regarding the types of activities
EPA is now aware of that could potentially be affected by this action.
Other types of entities not listed in the table could also be affected.
To determine whether your site is covered by this action, you should
carefully examine the definition of ``construction activity'' and
``small construction activity'' in existing EPA regulations at 40 CFR
122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have questions
regarding the applicability of this action to a particular entity,
consult one of the persons listed for technical information

[[Page 3523]]

in the preceding FOR FURTHER INFORMATION CONTACT section.
2. Types of Construction Sites for Which Operators Are Eligible for
Permit Coverage
Coverage under this permit will be available to operators of
eligible sites located in those areas where EPA is the permitting
authority. A list of eligible areas is included in Appendix B of the
final permit. Eligibility for permit coverage is limited to operators
of ``new sites,'' operators of ``existing sites,'' ``new operators of
permitted sites,'' and operators of ``emergency-related projects.'' A
``new site'' is a site where construction activities commenced on or
after the effective date of the final 2022 CGP. An ``existing site'' is
a site with 2017 CGP coverage where construction activities commenced
prior to the effective date of the final 2022 CGP. A ``new operator of
a permitted site'' is an operator that through transfer of ownership
and/or operation replaces the operator of an already permitted
construction site that is either a ``new site'' or an ``existing
site.'' An ``emergency-related project'' is a project initiated in
response to a public emergency (e.g., mud slides, earthquake, extreme
flooding conditions, disruption in essential public services), for
which the related work requires immediate authorization to avoid
imminent endangerment to human health or the environment, or to
reestablish public services.
3. Geographic Coverage
This 2022 CGP provides coverage to eligible operators for
stormwater discharges from construction activities that occur in areas
not covered by an approved state NPDES program. The areas of geographic
coverage for the 2022 CGP are listed in Appendix B, and include the
states of New Hampshire, Massachusetts, and New Mexico, oil and gas
activities within Oklahoma, as well as most Indian country lands, and
certain federal facilities. Permit coverage can also be obtained by
operators in Puerto Rico, the District of Columbia, and the Pacific
Island territories (i.e., Island of American Samoa, Island of Guam, and
Johnston Atoll, Commonwealth of the Northern Mariana Islands, Midway
Island, and Wake Island). EPA notes that the CGP will no longer provide
coverage to construction sites in the state of Idaho, except for sites
located on Indian country lands, or to sites located in the state of
Texas that involve the exploration, development, or production of oil
or gas or geothermal resources, including transportation of crude oil
or natural gas by pipeline, as both states are now fully authorized to
issue permits for construction stormwater. Eligible operators in these
two states will need to seek permit coverage for their stormwater
discharges from their respective state NPDES authority.

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

1. Docket. EPA has established an official public docket for this
action under Docket ID No. EPA-HQ-OW-2021-0169. Although all documents
in the docket are listed in an index, some information is not publicly
available, i.e., Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Out of an
abundance of caution for members of the public and our staff, the EPA
Docket Center and Reading Room are closed to the public, with limited
exceptions, to reduce the risk of transmitting COVID-19. When the EPA
Docket Center and Reading Room re-open, publicly available docket
materials will be available in hard copy at the Water Docket in the EPA
Docket Center, (EPA/DC) WJC West Building, Room 3334, 1301 Constitution
Ave. NW, Washington, DC 20460. Our Docket Center staff will continue to
provide remote customer service via email, phone, and webform. For
further information on EPA Docket Center services and the current
status, please visit us online at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
2. Electronic Access. You may access this Federal Register document
electronically through the United States government on-line source for
federal regulations at <a href="http://www.regulations">http://www.regulations</a> .gov.
Electronic versions of the final permit and fact sheet are
available on EPA's NPDES website at <a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at <a href="http://www.regulations">http://www.regulations</a>.gov to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. For additional information about EPA's public docket,
visit the EPA Docket Center homepage at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.

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

For EPA Region 1, contact Sania Kamran: Email at
<a href="/cdn-cgi/l/email-protection#7b101a16091a1555081a15121a3b1e0b1a551c140d">[email&#160;protected]</a>.
For EPA Region 2, contact Stephen Venezia: Email at
<a href="/cdn-cgi/l/email-protection#1f697a717a65767e316c6b7a6f777a715f7a6f7e31787069">[email&#160;protected]</a>, or for Puerto Rico, contact Sergio Bosques:
Email at <a href="/cdn-cgi/l/email-protection#5d3f322e2c28382e732e382f3a34321d382d3c733a322b">[email&#160;protected]</a>.
For EPA Region 3, contact Carissa Moncavage: Email at
<a href="/cdn-cgi/l/email-protection#3a575554595b4c5b5d5f14595b485349495b7a5f4a5b145d554c">[email&#160;protected]</a>.
For EPA Region 4, contact Michael Mitchell: Email at
<a href="/cdn-cgi/l/email-protection#016c68756269646d6d2f6c68626960646d416471602f666e77">[email&#160;protected]</a>.
For EPA Region 5, contact Krista McKim: Email at
<a href="/cdn-cgi/l/email-protection#7419171f1d195a1f061d070015341104155a131b02">[email&#160;protected]</a>.
For EPA Region 6, contact Suzanna Perea: Email at:
<a href="/cdn-cgi/l/email-protection#5222372037337c212728333c3c33123722337c353d24">[email&#160;protected]</a>.
For EPA Region 7, contact Mark Matthews: Email at:
<a href="/cdn-cgi/l/email-protection#5d303c292935382a2e73303c2f361d382d3c733a322b">[email&#160;protected]</a>.
For EPA Region 8, contact Amy Clark: Email at: <a href="/cdn-cgi/l/email-protection#fc9f909d8e97d29d9185bc998c9dd29b938a">[email&#160;protected]</a>.
For EPA Region 9, contact Eugene Bromley: Email at
<a href="/cdn-cgi/l/email-protection#472535282a2b223e692232202229220722372669202831">[email&#160;protected]</a>.
For EPA Region 10, contact Margaret McCauley: Email at
<a href="/cdn-cgi/l/email-protection#137e707072667f766a3d7e72617472617667537663723d747c65">[email&#160;protected]</a>.

II. Background of Permit

The CWA establishes a comprehensive program ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' 33 U.S.C. 1251(a). The CWA also includes the
objective of attaining ``water quality which provides for the
protection and propagation of fish, shellfish and wildlife and * * *
recreation in and on the water.'' 33 U.S.C. 1251(a)(2)). To achieve
these goals, the CWA requires EPA to control discharges of pollutants
from point sources through the issuance of National Pollutant Discharge
Elimination System (NPDES) permits.
The Water Quality Act of 1987 (WQA) added Section 402(p) to the
CWA, which directed EPA to develop a phased approach to regulate
stormwater discharges under the NPDES program. 33 U.S.C. 1342(p). EPA
published a final regulation in the Federal Register, often called the
``Phase I Rule,'' on November 16, 1990, establishing permit application
requirements for, among other things, ``storm water discharges
associated with industrial activity.'' See 55 FR 47990. EPA defines the
term ``storm water discharge associated with industrial activity'' in a
comprehensive manner to cover a wide variety of facilities. See id.
Construction activities, including activities that are part of a larger
common plan of development or

[[Page 3524]]

sale, that ultimately disturb at least five acres of land and have
point source discharges to waters of the U.S. were included in the
definition of ``industrial activity'' pursuant to 40 CFR
122.26(b)(14)(x). The second rule implementing Section 402(p), often
called the ``Phase II Rule,'' was published in the Federal Register on
December 8, 1999. It requires NPDES permits for discharges from
construction sites disturbing at least one acre but less than five
acres, including sites that are part of a larger common plan of
development or sale that will ultimately disturb at least one acre but
less than five acres, pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR
68722. EPA issues the 2022 CGP under the statutory and regulatory
authorities cited in this section.
NPDES permits for construction stormwater discharges are required
under Section 402(a)(1) of the CWA to include conditions to meet
technology-based effluent limits established under Section 301 and,
where applicable, Section 306. Effluent Limitations Guidelines (ELGs)
and New Source Performance Standards (NSPS) are technology-based
effluent limitations that are based on the degree of control that can
be achieved using various levels of pollutant control technology as
defined in Subchapter III of the CWA.
Once a new national standard is established in accordance with
these sections, NPDES permits must incorporate limits based on such
technology-based standards. See CWA Sections 301 and 306, 33 U.S.C.
1311 and 1316, and 40 CFR 122.44(a)(1). On December 1, 2009, EPA
published final regulations establishing technology-based ELGs and NSPS
for the Construction & Development (C&D) point source category, which
became effective on February 1, 2010. See 40 CFR part 450 and 74 FR
62996. EPA amended the Construction & Development Rule, or ``C&D
rule,'' on March 6, 2014 to satisfy EPA's agreements pursuant to a
settlement of litigation that challenged the 2009 rule. See 79 FR
12661. All NPDES construction permits issued by EPA or states after
this date must incorporate the requirements in the C&D rule.

A. Technology-Based Effluent Limits (TBELs)

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

[[Page 3525]]

implement chemical spill and leak prevention and response procedures.
<bullet> Prohibited Discharges--The following discharges from C&D
sites are prohibited:
1. Wastewater from washout of concrete, unless managed by an
appropriate control;
2. Wastewater from washout and cleanout of stucco, paint, form
release oils, curing compounds, and other construction materials;
3. Fuels, oils, or other pollutants used in vehicle and equipment
operation and maintenance; and
4. Soaps or solvents used in vehicle and equipment washing.
<bullet> Surface Outlets--When discharging from basins and
impoundments, permittees are required to utilize outlet structures that
withdraw water from the surface, unless infeasible.
The accompanying fact sheet details how EPA has incorporated these
requirements into the final permit. The discussion in the fact sheet
includes a summary of each provision and the agency's rationale for
articulating the provision in this way.

B. Water Quality-Based Effluent Limits (WQBELs)

EPA's regulations at 40 CFR 122.44(d)(1) require permitting
authorities to include additional or more stringent permit requirements
when necessary to achieve water quality standards. The 2022 CGP
contains several provisions to protect water quality that were retained
from the 2017 CGP. The final permit includes a narrative WQBEL
requiring that discharges be controlled as necessary to meet applicable
water quality standards. Failure to control discharges in a manner that
meets applicable water quality standards is a violation of the permit.
In addition to the narrative WQBEL, the 2022 CGP includes related
provisions that act together to protect water quality. For example, the
permit requires operators to implement stormwater controls and to take
corrective action in response to any exceedance of applicable water
quality standards. In addition, the permit requires more stringent site
inspection frequencies and stabilization deadlines for construction
sites that discharge to those waters that are sediment or nutrient-
impaired, which are parameters typically associated with stormwater
discharges from construction sites, or waters identified by a state,
tribe, or EPA as requiring enhanced protection under antidegradation
requirements. In the 2022 CGP, EPA also included an additional water
quality-based requirement for dewatering discharges to sediment-
impaired and high-quality waters that requires operators to monitor the
discharge for turbidity in comparison to a benchmark threshold. This
new requirement is discussed in Section III.B.
Additionally, EPA received CWA Section 401 certifications for the
final 2022 CGP. Some of those certifications included additional
conditions that are required by states, Indian tribes, and territories,
pursuant to relevant provisions of the CWA and/or their respective
legal authorities. These conditions were incorporated into the permit
as legally binding permit limits and requirements in the specific
geographic areas that are located within the jurisdiction of the
certifying authority.

III. Summary of Final Permit

This section summarizes the most significant modifications that are
included in the 2022 CGP relative to the 2017 CGP. The fact sheet for
the permit explains in more detail each permit condition and the
rationale for any changes to those conditions. The final permit and
fact sheet can be found in the docket for this action and at <a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>. A comprehensive
list of the final changes, as well as the corresponding parts of the
permit that are modified, is included in a table in Section III.B of
the fact sheet.
The types of final changes in the 2022 CGP generally fall into one
of two categories: (1) Changes to improve the clarity of the permit,
and (2) changes that added specificity to the permit requirements. The
table of modifications in Section III.B of the fact sheet specifies
which changes fall under the type (1) category and which fall into the
type (2) category. The following sections briefly describe the most
significant final changes within these two broad categories.

A. Final Changes That Improve Clarity of the Permit

EPA finalized a number of relatively minor changes that focus on
improving the clarity of provisions where operators, EPA compliance
staff, or other stakeholders have raised questions. These changes
generally do not change the underlying requirement from the 2017 CGP,
but rather attempt to make EPA's original intent clearer. These
clarifications in the 2022 CGP should improve the overall understanding
of the permit's requirements from all perspectives, including the
permitting authority, permittees, and the general public.
The final changes to improve clarity include the following:
<bullet> Approved stormwater control and stormwater pollution
prevention plan products--EPA includes new language in the permit to
clearly state that the agency does not endorse specific stormwater
control or stormwater pollution prevention plan (SWPPP) products or
vendors. Industry stakeholders suggested that the permit include such
language to help discourage some vendors from misleadingly suggesting
that EPA or the permit approves of specific products. See footnotes 13
and 84 in Parts 2.1 and 7.1, respectively, of the permit.
<bullet> Differentiate between routine maintenance and corrective
action--EPA defines routine maintenance as minor repairs or other
upkeep performed to ensure the site's stormwater controls remain in
effective operating condition, not including significant repairs or the
need to install a new or replacement control. If a stormwater control
needs a significant repair or a new or replacement control is needed,
the permit requires that it be treated as a corrective action. This
change addresses feedback provided by industry stakeholders who have
observed that there is considerable confusion about which maintenance
repairs are considered routine versus those that should be treated as
corrective actions. Based on comments received on the proposed permit,
EPA provided further flexibility for routine maintenance, which cannot
be completed by the close of the next business day after the condition
requiring maintenance is discovered, by enabling operators to have up
to seven days to complete this work. The additional time is conditioned
on the operator documenting in the site inspection report why it would
be infeasible to finish the work by the close of the next business, and
why the repairs or other upkeep should still be treated as routine
maintenance. Where the operator finds that the same routine maintenance
fix must be repeatedly (i.e., three or more times) made to the same
stormwater control at the same location, the operator must complete the
work for any subsequent occurrences of the same problem under the
corrective action procedures in Part 5 of the permit, or document in
the site inspection report why the specific reoccurrence of the problem
should still be addressed as a routine maintenance fix. See Parts
2.1.4.b, c, and d, and 5.1.1 of the permit.
<bullet> Include additional stormwater control design
considerations--The CGP requires operators to take into account several
factors in designing stormwater

[[Page 3526]]

controls that comply with permit conditions. The factors include the
expected amount, frequency, intensity, and duration of precipitation.
See Part 2.1.1 of the permit. EPA clarifies that the relevant data used
must be the most recent data available to account for recent
precipitation patterns and trends. EPA also suggests that operators
include consideration and contingencies for the implementation of
structural improvements, enhanced or resilient stormwater controls, and
other mitigation measures to help minimize the stormwater discharge
impacts from major storms (e.g., hurricanes, storm surges, extreme
precipitation, or flood events) where the site has been exposed to or
previously experienced such storms.
<bullet> Clarify factors where infiltration would be infeasible or
inadvisable--The CGP requires that operators direct stormwater to
vegetated areas and maximize stormwater infiltration and filtering to
reduce pollutant discharges, unless infiltration would be inadvisable
due to the underlying geology and groundwater concerns, or infeasible
due to site constraints. EPA suggests some of the considerations
operators should take into account in determining whether infiltration
at a particular site is infeasible or inadvisable, such as factors
relating to the underlying soils or geology, hydrology, depth to the
groundwater table, proximity to source water protection area(s), or
specific contaminant concerns. See Part 2.2.2 and footnote 19 in the
permit.
<bullet> Clarify application of perimeter control and natural
buffer requirements--EPA understands from conversations with
stakeholders that there is confusion about whether perimeter controls
are necessary on the site when the operator is already providing a
natural buffer pursuant to the requirements of the permit. To address
this confusion, EPA clarifies that perimeter controls must be installed
upgradient of any natural buffers except in situations where the
perimeter control is being used by the operator to fulfill one of the
buffer alternative requirements, in which case the operator would not
be required to install a second perimeter control. See Part 2.2.3.a of
the permit.
<bullet> Clarify the permit flexibilities for arid and semi-arid
areas--The 2017 CGP maintained from previous CGPs alternative
stabilization and inspection schedules for arid and semi-arid areas
that are reflective of the different climatic and precipitation
conditions that exist in those areas. These stabilization and
inspection schedule flexibilities apply during the ``seasonally dry
period'' of the year when there is less risk of a discharge-producing
storm event. The permit did not previously define the term ``seasonally
dry period,'' and EPA has received a number of questions from
construction operators over the past several years about what this term
means. For this reason, the final 2022 CGP establishes a new definition
for seasonally dry period to provide clarity and includes resources in
the form of maps and zip code tables to assist construction operators
located in an arid or semi-arid area in determining when they may be
operating during a seasonally dry period of the year. See Parts
2.2.14.b, 2.2.14.c, and 4.4.2 of the permit, as well as the definition
of ``seasonally dry period'' in Appendix A. See also EPA's Seasonally
Dry Period Locator Tool at <a href="https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates">https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates</a>.
<bullet> Clarify pollution prevention requirements for construction
waste--The 2022 CGP extends existing pollution control flexibilities
that apply to building materials and products in Part 2.3.3.a to
certain types of construction wastes in Part 2.3.3.e. Waste containers
are not required for the waste remnant or unused portions of any
construction materials or final products where the exposure to
precipitation and to stormwater will not result in a discharge of
pollutants, or where exposure of a specific material or product poses
little risk of stormwater contamination, provided that these wastes are
stored separately from other construction or domestic wastes that do
not meet these criteria, are stored in designated areas of the site,
and are described in the SWPPP. See Parts 2.3.3.e, 7.2.4.i, and
7.2.6.b.ix of the permit.
<bullet> Clarify proper handling of washing applicators and
containers used for stucco, paint, concrete, form release oils, curing
compounds, or other materials--The permit includes some additional
details based on feedback provided in the public comments regarding how
operators should handle washout or cleanout wastes. This includes not
allowing liquid wastes to enter site drainage features, not allowing
such wastes to be disposed of through infiltration or to otherwise be
disposed of on the ground, and complying with applicable state, tribal,
or local requirements for disposal. See Part 2.3.4.b of the permit.
<bullet> Clarify requirements for inspections during storm events--
In meetings with stakeholders prior to the proposed permit, and in
comments submitted during the public comment period, it has become
clear that clarification is needed to better explain the required
frequency of inspections during and after storm events. For inspections
required in response to storm events producing 0.25 inches of rain
within a 24-hour period, EPA provided additional text explaining when
inspections are required under different storm length scenarios. See
Part 4.2.2.a. For inspections required in response to discharges from
snowmelt, the permit adds a numeric inspection threshold for snowfall
precipitation that is equivalent to the 0.25-inch rain event to help
operators determine when an inspection may be required. This change
clarifies that where there is a discharge from snowmelt caused by an
accumulation of 3.25 inches or greater of snow within a 24-hour period,
an inspection is required. Some operators requested this change and
explained to EPA that without a numeric threshold, it is difficult for
operators to know which snow events may trigger the need to inspect the
site during the winter season. EPA relied on information from the
National Oceanic and Atmospheric Administration (NOAA) to derive the
3.25-inch snowfall equivalent to the 0.25-inch rain event. See Part
4.2.2.b of the permit.
<bullet> Availability of stormwater pollution prevention plan
(SWPPP), inspection reports, and corrective action log in electronic
form--The 2017 CGP enabled operators to keep their SWPPP, inspection
reports, and corrective action records in electronic form, as long as
they could be accessed and read by the operator and by any EPA, state,
or local inspection authorities in the same manner as a paper copy. EPA
heard from permittees, however, who were uncertain about whether the
flexibility to keep these documents in electronic form was available to
them. EPA acknowledges that part of the problem was that its
explanation about retaining documents in electronic form was only
included in a frequently asked question section of its construction
stormwater website, and was not clearly stated in the 2017 CGP. For
this reason, the final 2022 CGP includes text to make it clear that
electronic versions of the SWPPP, inspection reports, and corrective
action logs may be used as long as they meet certain minimum
requirements. See footnotes 76, 78, and 92 to Parts 4.7.3, 5.4.3, and
7.3, respectively, of the permit.
<bullet> Updated process for Endangered Species Act eligibility
determinations--EPA updated Appendix D of the CGP, which establishes
procedures for operators to follow in determining their eligibility for
coverage with respect to

[[Page 3527]]

the protection of endangered and threatened species. The changes to
Appendix D are primarily in the form of clarifications to existing
procedures or updates to resources that operators can use to determine
whether species are located in the ``action area'' of the construction
site. EPA finalized similar changes as part of the Endangered Species
Act (ESA) consultation it completed as part of its issuance of the 2021
Multi-Sector General Permit (MSGP) for discharges from industrial
activities (See Appendix E of the 2021 MSGP at <a href="https://www.epa.gov/npdes/stormwater-discharges-industrial-activities-epas-2021-msgp">https://www.epa.gov/npdes/stormwater-discharges-industrial-activities-epas-2021-msgp</a>).
During the ESA consultation on the 2022 CGP and based on EPA's
experience with consultation for the 2021 MSGP, EPA agreed to reformat
Appendix D and the corresponding Endangered Species Protection section
of the electronic NOI in the NPDES eReporting Tool (NeT) into a
worksheet-style format. The worksheet breaks apart the procedures,
criterion selection, and required supporting documentation into a
series of individual questions and fillable answers, rather than long
narrative instructions. It is EPA's intention that presenting the ESA
procedures in a more dynamic, structured way will help the operator
arrive at the correct ESA criterion selection by eliminating ones that
do not apply to their site and will ensure that all required supporting
documentation is included when submitting the NOI. See Appendix D of
the permit, and related information at <a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>.

B. Final Changes That Add Specificity to Permit Requirements

EPA finalized select modifications to the permit to address
specific problems that have come to the agency's attention during the
permit term or to incorporate enhancements that reflect current best
practices. These changes are narrowly focused on specific topics. The
following is a summary of these changes:
<bullet> Include additional perimeter control installation and
maintenance requirements--Due to the vital role that sediment controls
installed along the downslope side of the construction site perimeter
play in minimizing sediment discharges, it is important for the CGP
requirements related to these controls to reflect best practices that
are available, effective, and practicable. Reviewing a number of state
permits and best management practice manuals during the development of
the proposed and final permit, EPA concluded that some targeted changes
to the perimeter control requirements in the CGP are appropriate and
warranted at this time. For this reason, EPA finalized additional
perimeter control installation and maintenance requirements that are
focused on ensuring that these controls continue to work effectively.
For example, under the new provision, if there is evidence of
stormwater circumventing or undercutting the perimeter control after a
storm event, the operator is required to extend the length of the
perimeter control or repair any undercut areas, whichever applies. This
change is intended to ensure that maintenance of these controls is
focused on fixing problems as soon as they are found and making sure
they work effectively before the next storm event occurs. See Part
2.2.3 of the permit.
<bullet> Update pollution prevention requirements for chemicals
used and stored on site--EPA finalized changes to the pollution
prevention requirements for diesel fuel, oil, hydraulic fuels, or other
petroleum products, and other chemicals. These changes respond to
feedback EPA received from some permittees who recommended reframing
the 2017 CGP permit requirements so they are proportionate to the
volume of chemicals being used and stored on the site, and relative to
the risk of a spill or leak. EPA agreed that the requirements in this
section could be improved by strengthening the linkage between the type
of pollution prevention control needed and the volume of chemical
containers kept on site. Consistent with this principle, the final
permit establishes control requirements that are appropriate for
chemical containers with a storage capacity of less than 55 gallons by
requiring that the operator use water-tight containers, place them on a
spill containment pallet (or similar device) if kept outside, and have
a spill kit available at all times and in good working condition, and
personnel available to respond quickly to a spill or leak. These
controls will be effective at preventing a discharge from a spill or
leak, while also having the added advantage of being moved more easily
around the site. The final permit also includes controls that are more
suitable to larger chemical containers with a storage capacity of 55
gallons or more, such as requiring a temporary roof or secondary
containment to prevent a discharge from a leak or spill. Based on
public comments, EPA modified the requirements so that they are applied
based on the volume of container at the site (i.e., containers with a
storage capacity of less than 55 gallons, or 55 gallons or more) versus
the proposed approach of applying requirements based on the total
volume of chemicals at the site. EPA also added some additional
specificity to the final provisions to require that all containers be
closed, sealed, and secured when not being actively used. EPA also
added an additional flexibility to allow operators with certain site
constraints to store larger volume containers as far away from
receiving waters, site drainage features, and stormwater inlets as
possible if it is infeasible to store them at least 50 feet away. See
Part 2.3.3.c of the permit.
<bullet> Specify new dewatering discharge requirements--EPA
finalized several changes to the permit's dewatering requirements to
improve compliance and further reduce pollutant loads to receiving
waters. EPA has noted violations with the permit's dewatering
requirements at sites with controls that are improperly installed and
maintained, resulting in significant discharges of sediment and other
pollutants to receiving waters. Given the high rate at which dewatered
water may be discharged, EPA inspection personnel have observed that it
is possible that a site may discharge more sediment in several hours of
poorly managed dewatering activities than might otherwise be discharged
from a site via stormwater discharges over the entire course of the
construction project. Additionally, EPA has found there to be good
example provisions from state construction stormwater permits and
standalone NPDES dewatering permits that can be used to strengthen the
CGP's dewatering conditions.
The final dewatering revisions to the permit add clarity to the
existing pollutant control provisions, increase the number of
inspections required while the dewatering discharge is occurring,
establish a tailored checklist of problems to review during the
inspection, and identify specific triggers for when corrective action
is required. For example, one new dewatering-related inspection
provision requires the operator to check whether a sediment plume,
foam, and/or other evidence of pollutants such as a visible sheen or
oily deposit on the bottom or shoreline of the receiving water was
observed during the inspection at the point of discharge to any
receiving water flowing through or immediately adjacent to the site
and/or to drainage features. If such pollutant indicators are observed,
the permit requires the operator to, among other things, take immediate
steps to minimize the discharge of pollutants, including the
possibility of shutting off the dewatering discharge depending on the
severity of the condition and to ensure that the dewatering controls

[[Page 3528]]

being used are operating effectively. During an inspection of the
dewatering operation, the operator would also be required to take
photographs of (1) the dewatering water prior to treatment by a
control(s) and the final discharge after treatment; (2) the dewatering
control(s); and (3) the point of discharge to any receiving waters
flowing through or immediately adjacent to the site and/or to site
drainage features, storm drain inlets, and other conveyances to
receiving waters. This documentation will help demonstrate how well the
dewatering controls are working and will show where adaptations made
after any problems have been found have resulted in improved pollutant
control. See Parts 2.4, 4.3.2, 4.6.3, 5.1.5, and 5.2.2 of the permit.
<bullet> Require turbidity benchmark monitoring for sites
discharging dewatering water to sensitive waters--The 2022 CGP requires
targeted sampling of dewatering discharges to sediment-impaired waters
or waters designated as Tier 2, Tier 2.5 or Tier 3 waters (referred to
in the permit as ``sensitive waters''). Under this new requirement,
operators must collect at least one turbidity sample of the dewatering
discharge each day a discharge occurs and compare the weekly average of
the results with a benchmark turbidity value of 50 Nephelometric
Turbidity Units (NTU). EPA derived this benchmark threshold based on a
review of water quality standards for states and certain territories
where EPA is the permitting authority, other NPDES dewatering permit
conditions, literature related to the effects of turbidity on aquatic
life, and public comments received during the comment period on the
proposed 2022 CGP. EPA is also providing operators with the flexibility
to request an alternate benchmark for their site that is higher than 50
NTUs if the operator has information demonstrating that the higher
number is supported by the receiving water's water quality standard for
turbidity.
For clarity, EPA emphasizes that the benchmark threshold for
turbidity is not an effluent limit. As such, an exceedance of the
benchmark threshold does not itself constitute a permit violation.
Rather, the benchmark threshold acts as a warning sign to the operator
that changes may be needed in the dewatering controls to improve
pollutant removal and protect water quality. Accordingly, if the weekly
average of the turbidity samples exceeds the benchmark (or an alternate
benchmark based on state WQS), the operator is required to conduct
follow-up corrective action designed to lower the turbidity levels in
the discharge. The new corrective action provisions for a benchmark
exceedance require the operator to immediately take all reasonable
steps to minimize or prevent the discharge of pollutants until a
solution can be implemented, including safely shutting off the
dewatering discharge depending on the severity of the condition;
determining whether the dewatering controls are operating effectively
and whether they are causing the conditions; and making any necessary
adjustments, repairs, or replacements to the dewatering controls to
lower the turbidity levels or remove the visible plume or sheen.
Operators are also required to report their weekly average turbidity
results to EPA on a quarterly basis either electronically using the
agency's NeT or the paper form in Appendix K, if EPA grants a waiver
from electronic reporting.
For the 2022 CGP, EPA is focused on turbidity monitoring for
sensitive waters because sediment is a major cause of impairment of the
nation's waters. Excessive sediment can impair waterbody uses such as
aquatic life, navigation, recreation, and sources of drinking water.
The monitoring requirements for dewatering discharges to sediment-
impaired waters will help ensure that such discharges do not further
contribute excess pollutants to waters that are impaired for sediment
and that existing uses are maintained and protected. Turbidity
monitoring will provide operators with a baseline and comparable
understanding of dewatering discharge quality, potential water quality
problems, and dewatering control measure effectiveness. These data will
supplement information provided through the daily inspections during
dewatering activities and allow EPA to review the pollutant
concentrations in dewatering discharges. See Part 3.3, 5.1.5, and 5.2.2
of the permit.
EPA includes an extensive discussion of the rationale behind the
decision to include benchmark monitoring for dewatering discharges to
sensitive waters in this permit and a more thorough discussion of the
key parts of these requirements. See Section VI, Part 3.3 of the fact
sheet. EPA has also provided additional technical assistance resources
for operators to use in implementing these provisions. For example, EPA
has developed a Monitoring and Inspection Guide for Construction
Dewatering, available on EPA's website at <a href="https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit">https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit</a>, which provides guidelines on how to correctly monitor for
turbidity, determine if the weekly average exceeds the benchmark, and,
if so, how to proceed with corrective action, as well as how to comply
with the permit's dewatering inspection requirements. EPA has also
compiled a list of all the current state and tribal turbidity water
quality standards in effect in areas covered by the CGP, in the event
that operators choose to pursue a request for an alternate benchmark.
See List of State-Specific Water Quality Standards for Turbidity,
available at <a href="https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit">https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit</a>.
<bullet> Update training requirements for personnel conducting site
inspections--EPA finalized modifications to the training requirements
for personnel conducting site inspections. These changes address
problems found during many of the agency's own construction site
inspections, in which EPA observed that while some permittees are
properly conducting inspections and documenting their findings in
accordance with the permit, a large number are not. To address this
problem, EPA strengthened the training requirements for inspection
personnel to ensure their competency to conduct such inspections. For
this reason, the permit specifies that a qualified person carrying out
inspections must either (1) have completed the new EPA construction
inspection course developed for this permit and passed the exam, or (2)
hold a current valid construction inspection certification or license
from a program that covers essentially the same core material as EPA's
inspection course. These new requirements are an extension of what the
2017 CGP (and 2012 CGP) already required for the ``qualified person''
to conduct inspections. EPA is in the process of developing a free
construction inspection training program that will be made available as
an option to fulfill this new requirement to CGP permittees along with
an accompanying exam that, if passed, will provide the person with
documentation showing that they have successfully completed the EPA
course. EPA is delaying the implementation of the requirement for one
year from the permit effective date until the EPA training is
available, which the agency anticipates will be in the summer or fall
of 2022. For this reason, for construction projects that receive permit
coverage prior to February 17, 2023, any personnel conducting site
inspections must, at a minimum, be a person knowledgeable in the
principles and practice of erosion and sediment

[[Page 3529]]

controls and pollution prevention, who possesses the appropriate skills
and training to assess conditions at the construction site that could
impact stormwater quality, and the appropriate skills and training to
assess the effectiveness of any stormwater controls selected and
installed to meet the requirements of the permit. Operators will be
notified via email when the new 2022 CGP training is available. EPA
will also announce the training on its 2022 CGP website (<a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>). Documentation
that the relevant personnel has completed the EPA course and passed the
exam will serve as proof that the operator has met the new inspection
training requirements. Alternatively, if the relevant personnel elect
to obtain the required training through a different program that covers
the same basic principles, the operator will need to provide
documentation that these personnel have successfully completed the
program and are in possession of a current, valid certification or
license. See Parts 4.1, 6.3, and 7.2.2 of the permit.
<bullet> Specify requirements for documenting signs of
sedimentation attributable to construction site discharges--EPA
specifies in the permit that during an inspection, operators must check
for signs of sediment deposition that are visible from the site and
attributable to the operator's discharge, for example sand bars with no
vegetation growing on top in adjacent receiving waters or in other
constructed or natural site drainage features, or the buildup of
sediment deposits on nearby streets, curbs, or open conveyance
channels. This change is intended to address a frequent problem
observed during EPA's compliance inspections that the permittee does
not document obvious signs of sedimentation in the receiving water or
in drainage features that convey to receiving waters. The intent of
this addition is to emphasize that the site inspection is an ideal time
to examine whether there are any obvious signs of sedimentation
attributable to the site's discharges, and to require documentation of
such sedimentation. EPA notes that the CGP already requires operators
to check for signs of visible erosion and sedimentation (i.e., sediment
deposits) that have occurred and are attributable to the operator's
discharge at points of discharge and, if applicable, on the banks of
any receiving waters. flowing within or immediately adjacent to the
site. See Part 4.6.1.e of the permit.
<bullet> Require photo documentation of adequate site
stabilization--EPA's compliance inspectors have observed cases when
operators prematurely terminate coverage under the CGP before the site
is properly stabilized. The final permit adds a new provision requiring
operators as part of their Notice of Termination (NOT) to take and
submit photographs showing the stabilized areas of the site following
completion of construction. EPA includes this requirement primarily as
an additional level of documented evidence that operators are complying
with the stabilization requirements prior to terminating coverage.
Given the importance of stabilization to preventing continuing erosion
and sedimentation, EPA views the additional photo documentation
requirement to be a relatively inexpensive, effective, and
straightforward way for the operator to show the agency that it has
complied with the permit's final stabilization requirements. See Part
8.2.1.a of the permit. Related to this new requirement, EPA added a
check box to the NOT form to confirm that the operator has attached
photographs as required by Part 8.2.1.a, including the date each
photograph was taken, and a brief description of the area of the site
captured by the photograph.
<bullet> Add new Notice of Intent (NOI) questions--EPA added new
questions to the NOI form that construction operators will use to
obtain coverage under the 2022 CGP. One question asks operators if
dewatering water will be discharged during the course of their permit
coverage. While EPA suspects that most CGP-covered projects discharge
dewatering water during construction, it is useful to the agency to
know what the prevalence of this practice is at its permitted sites.
This question will provide a straightforward way of compiling
information broadly about permittees and enable EPA to know which
operators may be affected by the permit's new dewatering requirements.
A follow-up question asks operators who indicate that there will be a
dewatering discharge to identify if their site is located on a current
or former remediation site. This question is intended to provide EPA
with additional information regarding sites and their potential for
contaminated discharge. Another question asks the operator completing
the NOI whether there are other operators who are also covered by the
CGP at the same site and, if so, what their NPDES ID numbers are.
Because the 2017 CGP NOI did not ask the operator to indicate whether
there are multiple operators permitted for the same site, EPA is often
unable to easily determine who all the permitted entities are at larger
projects and whether there may be some parties that should have
obtained permit coverage as operators but have yet to do so. The NOI
form also includes a new question that requires the operator to confirm
that any personnel conducting inspections at the site will meet the
modified training requirements in Part 6 of the permit. EPA also
finalized clarifying edits to better explain the types of documentation
that are needed for several of the eligibility criteria. As mentioned
in Section III.A in the summary of the ``Updated process for Endangered
Species Act eligibility determinations,'' EPA has also reformatted the
Endangered Species Protection section of the electronic NOI, which now
consists of questions that were previously contained in narrative
instructions in Appendix D along with updated links to available
mapping tools to assist operators in determining whether any listed or
threatened species are known to occur in the action area of their site.

IV. Provisions Not Finalized in the 2022 CGP

After further consideration and evaluation of public comments
received, the following changes that were considered in requests for
comment in the proposed permit were not modified or finalized in the
2022 CGP:
1. Modifying the definition of operator--In the 2022 CGP, EPA
retains the 2017 CGP definition of ``operator.'' EPA had requested
comment on modifying the definition of operator to specifically include
parties that determine acceptance of work and pay for work performed.
Many public comments indicated that such a change was not necessary,
and other comments requested additional details be added if the change
was made. EPA has some concerns about the effects of changing the
definition of operator and that it may become too specific or too
prescriptive. The agency has determined, at this time, that the
existing definition is broad enough to capture those parties intended
to be addressed by the possible change. Due to the highly case-specific
nature of construction projects, EPA prefers to rely on the language of
the definition alone, rather than including more specific examples in
the definition, and to leave the determination of which parties in any
particular scenario are functioning as operators to a project-by-
project evaluation. However, the 2022 CGP Fact Sheet has been updated
to describe examples of the types of

[[Page 3530]]

decision-making activities that EPA frequently finds equate to
operational control within the permit's definition of operator. See
Section VI, Part 1.1 of the permit fact sheet.
2. Prohibition of dewatering discharges from contaminated sites--In
the 2022 CGP, EPA includes a clarification that discharges of
construction dewatering water must be uncontaminated. In the context of
authorized non-stormwater discharges, this means that the discharge
meets applicable water quality standards. EPA had proposed that
dewatering water discharged from a contaminated site be considered a
prohibited discharge under the CGP and had requested comment on whether
additional sites should be prohibited from coverage under the permit
due to the possibility of discharging dewatering water that is
contaminated. Ultimately, EPA decided not to finalize this change based
on the compelling public comments received that recommended against
this approach and focused on the need for the permit to only authorize
those dewatering discharges that are uncontaminated because they meet
applicable water quality standards. Additionally, requiring dewatering
discharges to be uncontaminated to be authorized under the CGP, as
opposed to focusing exclusively on whether the dewatering discharge is
extracted from a contaminated site, is consistent with how EPA
authorizes other types of non-stormwater discharges that must be
uncontaminated.
3. Waiting Period for Discharge Authorization--In the 2022 CGP, EPA
retains the 14-day authorization waiting period from the 2017 CGP. EPA
had requested comment on whether to extend the waiting period between
the operator's submittal of the NOI and the authorization to discharge
from 14 days to 30 days to facilitate review of the site's eligibility
related to the protection of endangered or threatened species. Almost
all public comments opposed this change, citing that it would cause
further delays to already tight construction deadlines. Comments also
pointed out that the permit already allows EPA to delay discharge
authorization (i.e., putting an NOI ``on hold'') if there are issues or
concerns related to the project's discharges or the impact on
threatened or endangered species, thereby providing the agency and
other federal agencies additional time where needed to review a
particular site.
4. Stabilization deadlines--In the 2022 CGP, EPA retains the
stabilization thresholds and deadlines from the 2017 CGP. EPA had
requested feedback on whether the 5-acre disturbance threshold for
stricter stabilization deadlines has had the intended effect of
encouraging the phasing of construction disturbances. Some public
comments recommended keeping the requirement as is, while others noted
that the incentive of an additional seven days to stabilize is not
enough of an incentive to phase disturbances. Other comments suggested
alternatives to longer stabilization deadlines, such as increasing the
disturbance threshold from 5 acres to 25 acres, requiring a phasing
plan instead of a disturbance threshold, or establishing a disturbance
threshold based on percentage of total land being developed. EPA had
also requested comment on whether there was merit to capping total
construction disturbances for all operators at 10 acres at any one
time, similar to some state CGPs. EPA received mixed comments that both
opposed and supported this approach. EPA did not receive sufficiently
consistent feedback to justify making a change to the existing
requirement or to remove the requirement entirely at this time. In
future permits, EPA will continue to look for opportunities and
alternatives to incentivize construction site sequencing.

V. Implementation Assistance

Following issuance of the 2022 CGP, EPA plans to provide further
assistance to construction site operators and other interested parties
on various aspects of this new permit. The following activities or
documents are planned:
1. Final permit webinar--EPA will host a webinar on February 24 at
1:00 p.m. (Eastern Time Zone) that will provide an overview of the 2022
CGP and an opportunity for participants to ask questions. Those
interested may register for the webinar at <a href="https://www.zoomgov.com/webinar/register/WN_DsNwf8dQTzC1pCk0HCyVnQ">https://www.zoomgov.com/webinar/register/WN_DsNwf8dQTzC1pCk0HCyVnQ</a>. Further details on the
webinar, including a post-webinar recording, will be made available at
<a href="https://www.epa.gov/npdes/2022-construction-general-permit-cgp">https://www.epa.gov/npdes/2022-construction-general-permit-cgp</a>.
2. Updated SWPPP, Inspection Report, and Corrective Action Log
templates--EPA provides the following updated templates that can be
used to comply with 2022 CGP requirements: Construction Stormwater
Pollution Prevention Plan (SWPPP) Template, Inspection Report Template,
and Corrective Action Log Template. EPA has also developed a new
Dewatering Inspection Report Template to assist operators in
documenting information required for dewatering inspections in Part
4.6.3 of the permit. See <a href="https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates">https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates</a> for more details.
3. eReporting resources--EPA plans to update or provide new
tutorials and training materials for how to submit forms and data to
EPA via NeT-CGP. These materials will be available at the NeT Help
Center web page under ``EPA CGP'' located at <a href="https://epanet.zendesk.com/hc/en-us">https://epanet.zendesk.com/hc/en-us</a>.
4. Small residential lot resources--EPA plans to update the Small
Residential Lot SWPPP template and guidance brochure to be consistent
with the 2022 CGP requirements.
5. Turbidity monitoring guide--EPA has developed a companion guide
for the permit's new dewatering inspection and turbidity monitoring
requirements. The document, Monitoring and Inspection Guide for
Construction Dewatering, is available at <a href="https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit">https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit</a>.
6. List of Tier 2, 2.5, and 3 waters--EPA has updated the 2017
CGP's list of Tier 2, 2.5, and 3 waters to assist operators in
identifying whether their discharge may be subject to additional
inspection, stabilization, and dewatering requirements. In past CGPs,
this list was maintained as an appendix to the permit, but has been
moved to <a href="https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates">https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates</a> so that it is easier to find and update.
7. List of state and tribal water quality standards for turbidity--
EPA has established a list of applicable turbidity standards that are
currently in effect in the states and tribes, as well as the citations
that can be used for the requests. See <a href="https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit">https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit</a>.
8. Seasonally Dry Period Locator Tool--EPA developed a tool that
operators can use to if their construction project site is in an arid
or semi-arid area, and if any months out of the year are considered
seasonally dry. This is important for operators who may be subject to
different inspection and stabilization schedules due to their location.
The Seasonally Dry Period Locator Tool can be found at <a href="https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates">https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates</a>.

VI. Paperwork Reduction Act (PRA)

The information collection activities in this permit have been
submitted for approval to the Office of Management and Budget (OMB)
under the PRA. The

[[Page 3531]]

Information Collection Request (ICR) document that EPA prepared has
been assigned EPA ICR No. 2686.01, OMB Control No. 2040-NEW. You can
find a copy of the ICR in the docket for this permit (Docket ID No.
EPA-HQ-OW-2021-0169), and it is briefly summarized here.
CWA section 402 and the NPDES regulations require collection of
information primarily used by permitting authorities, permittees
(operators), and EPA to make NPDES permitting decisions. The burden and
costs associated with the entire NPDES program are accounted in an
approved ICR (EPA ICR number 0229.23, OMB control no. 2040-0004).
Certain changes in this permit require revisions to the ICR to reflect
changes to the forms and other information collection requirements. EPA
is reflecting the paperwork burden and costs associated with this
permit in a separate ICR instead of revising the existing ICR for the
entire program for administrative reasons.
EPA is collecting new information as part of the 2022 CGP. The NOI
form was updated from the 2017 CGP to collect new information related
to the following: Added one new question related to whether operators
will be discharging construction dewatering water during the course of
their permit coverage, and, if so, whether the site they are
discharging from is a current or former federal or state remediation
site; added questions about whether there are other operators who are
also covered by the CGP at the same site and, if so, what their NPDES
ID numbers are; added a check box for the operator to confirm that any
personnel conducting inspections at the site will meet the modified
training requirements in Part 6 of the permit; and added clarifying
edits to better explain the types of documentation that are needed for
several of the eligibility criteria related to endangered and
threatened species and edits to provide links to updated available
mapping tools to assist operators in determining whether any such
species are known to occur in the vicinity of their project.
EPA developed new electronic and paper turbidity monitoring forms
for operators subject to the Part 3.3 requirements for dewatering
discharges to sensitive waters to use in reporting their weekly average
turbidity results. This reporting will occur on a quarterly basis until
the dewatering discharge has been discontinued.
EPA added one check box for operators who are submitting an ``NOT''
to confirm that the operator has attached photographs taken to document
compliance with the final stabilization requirements pursuant to Part
8.2.1.a.
Respondents/affected entities: Construction operators in the areas
where EPA is the NPDES permitting authority.
Respondent's obligation to respond: Compliance with the CGP's
information collection and reporting requirements is mandatory for CGP
operators.
Estimated number of respondents: EPA estimates that for the
duration of the three-year ICR period approximately 7,800 operators
will obtain coverage under the 2022 CGP, or 2,600 operators per year.
Frequency of response: Response frequencies in the 2022 CGP vary
from once per permit term to quarterly.
Total estimated burden: EPA estimates that the information
collection burden of the 2022 CGP is 142,511 hours per year. Burden is
defined at 5 CFR 1320.3(b).
Total estimated cost: EPA estimates that the final information
collection cost of the 2022 CGP is $9,637,018 per year.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. EPA responded to
ICR-related comments in the Response to Comments document for this
final permit.

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

The cost analysis accompanying this final permit monetizes and
quantifies certain incremental cost impacts of the final permit changes
as compared to the 2017 CGP. EPA analyzed each change in the 2022 CGP
considering the previous permit's (i.e., the 2017 CGP) requirements.
The objective of this incremental cost analysis is to show where or to
what extent the final 2022 CGP requirements impose an incremental
increase in administrative and compliance costs (such as the cost to
conduct site inspections or to prepare compliance reports) on operators
in relation to costs that are already accounted for in the 2017 CGP.
More broadly, EPA notes that additional unquantified costs and
benefits result from this action. In developing the next CGP (or
another NPDES general permit, as appropriate), EPA plans to estimate
the broader impacts arising from these actions, including costs and
benefits. Estimates under consideration may include: (1) Assessing how
costs and benefits are attributed between the CGP and applicable water
quality standards (including TMDLs) that may be in effect; (2)
developing a new modeling framework to assess how regulated entities
understand and implement pollutant controls related to existing and new
permit obligations; (3) examining whether any underlying cost and
benefit assumptions need to be updated; (4) examining more broadly how
EPA can analyze benefits when developing permits; (5) developing more
robust approaches to assessing uncertainties associated with the
analytic approaches, including how to quantitatively assess
uncertainties of key assumptions; and (6) developing a framework to
analyze the effect of cooperative federalism.
EPA expects the incremental cost impact on entities that will be
covered under the 2022 CGP, including small businesses, to be minimal.
EPA anticipates the approximate average annual incremental cost
increase (compared to the 2017 CGP) will be $1,292 per year for each
permitted project, and the total annual incremental cost to be
$3,979,000 based on an estimated 3,080 projects per year. A copy of
EPA's incremental cost analysis for the final permit, titled
``Incremental Cost Impact Analysis for the 2022 Construction General
Permit (CGP),'' is available in the docket (Docket ID No. EPA-HQ-OW-
2021-0169).

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

This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations will be documented in the
docket for this action (Docket ID No. EPA-HQ-OW-2021-0169).

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

At proposal, EPA made the preliminary determination that this
permit will not have disproportionately high and adverse human health
or environmental effects on minority or low-income populations because
the requirements in the permit apply equally to all construction
projects that disturb one or more acres (or are part of a larger common
plan of development that disturbs one or more acres) in areas where EPA
is the permitting authority, and the erosion and sediment control
provisions increase the level of

[[Page 3532]]

environmental protection for all affected populations over the 2017
CGP. EPA requested comments on this preliminary determination and/or
any modifications that EPA should make to the proposed permit to
address environmental concerns. EPA received no comments directly
applicable to the request for feedback. Therefore, in the absence of
comments that contradict the preliminary determination, EPA finds that
this action does not have disproportionately high and adverse human
health or environmental effects on minority populations, low-income
populations and/or indigenous peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).

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

This action has tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. With limited exceptions,
EPA directly implements the NPDES program in Indian country as no tribe
has yet obtained EPA authorization to administer the NPDES program. As
a result, almost all eligible facilities with stormwater discharges
from construction activities in Indian country fall under EPA's CGP or
may be covered under an individual NPDES permit issued by EPA.
EPA consulted with tribal officials under EPA's Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this permit to have meaningful and timely input into its
development to gain an understanding of and, where necessary, to
address the tribal implications of the permit. During this
consultation, EPA conducted the following activities:
<bullet> August 13, 2020--EPA initiated a tribal consultation and
coordination process for this action by sending a ``Notice of
Consultation and Coordination'' letter to all 573 federally recognized
tribes. The letter invited tribal leaders and designated consultation
representative(s) to participate in the tribal consultation and
coordination process. The consultation period was from August 13, 2020
to October 27, 2020.
<bullet> September 9, 2020--EPA participated in the National Tribal
Water Council monthly conference call and received written comments in
response.
<bullet> September 16, 2020--EPA led an informational webinar to
provide an overview of the 2017 CGP and information regarding the
ongoing consultation to the National Tribal Caucus. A total of 34
tribal representatives attended.
<bullet> June 24, 2021--EPA hosted an information webinar for
tribal representatives on the proposed 2022 CGP. A total of 41
participants attended.
EPA received comments providing input from tribes. These comments
are described in EPA's tribal consultation summary, which is can be
accessed at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a> in the docket for this permit
(refer to Docket ID No. EPA-HQ-OW-2021-0169). In addition, EPA received
comments during the September 16, 2020 informational webinar and a
September 9, 2020 National Tribal Water Council monthly conference call
with EPA staff. EPA also received comments on the proposed permit,
which the agency considered as part of the finalization of this permit.
EPA's responses to comments can be found <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a> in
the docket for this permit (refer to Docket ID No. EPA-HQ-OW-2021-
0169).
EPA also notes that as part of the finalization of this permit, the
agency completed the Section 401 certification procedures with all
applicable tribes where this permit applies (see Appendix B). EPA
hosted two CWA Section 401 pre-filing meetings for tribes on the
proposed 2022 CGP prior to requesting CWA Section 401 certification, as
required. These meetings provided certifying tribes an opportunity to
meet with EPA about the proposed permit before completing their
certification. For the first meeting on June 3, 2021, there were 20
tribal representatives who signed up to participate, and for the second
meeting on June 17, 2021 there were 24 representatives who signed up.
EPA plans to provide email notification to all tribes of the final 2022
CGP.
As required by section 7(a) of the Executive Order, the EPA's
Tribal Consultation Official has certified that the requirements of the
executive order have been met in a meaningful and timely manner. A copy
of the certification is included in the docket for this action.

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

This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy. This is a renewal of a stormwater
discharge permit for construction sites and was submitted to OMB for
review.
Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
Javier Laureano,
Director, Water Division, EPA Region 2.
Carmen Guerrero-Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Catherine A. Libertz,
Director, Water Division, EPA Region 3.
Jeaneanne Gettle,
Director, Water Division, EPA Region 4.
Tera Fong,
Director, Water Division, EPA Region 5.
Charles W. Maguire,
Director, Water Division, EPA Region 6.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
Darcy O'Connor,
Director, Water Division, EPA Region 8.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.
Daniel D. Opalski,
Director, Water Division, EPA Region 10.
[FR Doc. 2022-01258 Filed 1-21-22; 8:45 am]
BILLING CODE 6560-50-P

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