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Rule2025-06320

Modification to 2022 National Pollutant Discharge Elimination System (NPDES) Construction General Permit (CGP) for Stormwater Discharges From Construction Activities

Primary source

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Published

April 15, 2025

Effective

April 8, 2025

Issuing agencies

Environmental Protection Agency

Abstract

The Environmental Protection Agency (EPA) is finalizing, largely as proposed, a narrow modification to its 2022 Construction General Permit (CGP) to expand the list of areas eligible for coverage to include construction projects in all Lands of Exclusive Federal Jurisdiction. This modification is necessary because the EPA is the permitting authority in Lands of Exclusive Federal Jurisdiction, and when the CGP was issued on February 17, 2022, the permit did not specifically provide eligibility for these areas as a class. The modification also clarifies the CGP requirements that apply to projects that discharge to receiving waters within Lands of Exclusive Federal Jurisdiction in response to the Supreme Court's recent decision in City and County of San Francisco v. EPA. The permit modification and accompanying permit fact sheet can be found at https://www.epa.gov/ npdes/2022-construction-general-permit-cgp.

Full Text

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<title>Federal Register, Volume 90 Issue 71 (Tuesday, April 15, 2025)</title>
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[Federal Register Volume 90, Number 71 (Tuesday, April 15, 2025)]
[Rules and Regulations]
[Pages 15653-15658]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-06320]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2021-0169; FRL-12219-02-OW]

Modification to 2022 National Pollutant Discharge Elimination
System (NPDES) Construction General Permit (CGP) for Stormwater
Discharges From Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification of final modification.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing,
largely as proposed, a narrow modification to its 2022 Construction
General Permit (CGP) to expand the list of areas eligible for coverage
to include construction projects in all Lands of Exclusive Federal
Jurisdiction. This modification is necessary because the EPA is the
permitting authority in Lands of Exclusive Federal Jurisdiction, and
when the CGP was issued on February 17, 2022, the permit did not
specifically provide eligibility for these areas as a class. The
modification also clarifies the CGP requirements that apply to projects
that discharge to receiving waters within Lands of Exclusive Federal
Jurisdiction in response to the Supreme Court's recent decision in City
and County of San Francisco v. EPA. The permit modification and
accompanying permit 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>.

DATES: For EPA Regions 2, 4, 5, 6, 7, 8, 9, and 10, this final
modification became effective on April 8, 2025. For EPA Regions 1 and
3, this final modification may become effective at a later date in
accordance with the actions outlined in section IV of this document. In
accordance with 40 CFR 23.2, this permit modification shall be
considered issued for purposes of judicial review for EPA Regions 2, 4,
5, 6, 7, 8, 9, and 10 on April 8, 2025. For EPA Regions 1 and 3, the
modification, if finalized, would be considered issued for purposes of
judicial review on the date each Region, consistent with this notice of
final modification, issues a final permit decision modifying the 2022
CGP, prior to its expiration. See section IV of this document for
additional information on judicial review, permit appeal procedures,
and challenges in the course of civil or criminal proceedings to
enforce this permit.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2021-0169. All documents in the docket are
listed on the <a href="https://www.regulations.gov">https://www.regulations.gov</a> website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, EPA Headquarters, Office
of Water, Office of Wastewater Management at (202) 564-0721 or by email
at <a href="/cdn-cgi/l/email-protection#95e6f6fdf4fbf0e7bbf2e7f0f2d5f0e5f4bbf2fae3">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
A. Does this action apply to me?
B. Who are the EPA regional contacts for this permit?
II. Background
A. Permitting of Stormwater Discharges From Construction Activities
B. Background on Lands of Exclusive Federal Jurisdiction
C. Why is a modification to the 2022 CGP necessary?
III. Summary of Final Modification
IV. Effective Dates of Final Modification
V. Paperwork Reduction Act (PRA)
VI. 2022 CGP Incremental Cost Analysis
VII. Executive Order 12866: Regulatory Planning and Review
VIII. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
IX. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

I. General Information

A. Does this action apply to me?

This permit modification covers the following entities, as
categorized in the North American Industry Classification System
(NAICS), where they are conducting construction activities in Lands of
Exclusive Federal Jurisdiction:

[[Page 15654]]

Table 1--Entities Covered by This Proposed Permit
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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 one acre or more, and performing the
following activities:
--------------------------------------------------
Construction of 236
Buildings.
Heavy and Civil 237
Engineering
Construction.
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The EPA does not intend the preceding table to be exhaustive but
provides it as a guide for readers regarding the types of activities of
which the EPA is now aware 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 the existing EPA regulations at
40 CFR 122.26(b)(14)(x) and (b)(15), respectively. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding FOR FURTHER
INFORMATION CONTACT section or the contact listed for the appropriate
Region in the following section.

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

For EPA Region 1, contact Meridith Finegan: Email at
<a href="/cdn-cgi/l/email-protection#a8cec1c6cdcfc9c686c5cddac1ccc1dcc0e8cdd8c986cfc7de">[email&#160;protected]</a>.
For EPA Region 2, contact Sieglinde Pylypchuk: Email at
<a href="/cdn-cgi/l/email-protection#80f0f9ecf9f0e3e8f5ebaef3e9e5e7ece9eee4e5c0e5f0e1aee7eff6">[email&#160;protected]</a>, or for Puerto Rico, contact Sergio
Bosques: Email at <a href="/cdn-cgi/l/email-protection#0c6e637f7d79697f227f697e6b65634c697c6d226b637a">[email&#160;protected]</a>.
For EPA Region 3, contact Shana Stephens: Email at
<a href="/cdn-cgi/l/email-protection#0b787f6e7b636e65782578636a656a4b6e7b6a256c647d">[email&#160;protected]</a>.
For EPA Region 4, contact Michael Mitchell: Email at
<a href="/cdn-cgi/l/email-protection#a1ccc8d5c2c9c4cdcd8fccc8c2c9c0c4cde1c4d1c08fc6ced7">[email&#160;protected]</a>.
For EPA Region 5, contact Krista McKim: Email at
<a href="/cdn-cgi/l/email-protection#97faf4fcfefab9fce5fee4e3f6d7f2e7f6b9f0f8e1">[email&#160;protected]</a>.
For EPA Region 6, contact Suzanna Perea: Email at:
<a href="/cdn-cgi/l/email-protection#cabaafb8afabe4b9bfb0aba4a4ab8aafbaabe4ada5bc">[email&#160;protected]</a>.
For EPA Region 7, contact Mark Matthews: Email at:
<a href="/cdn-cgi/l/email-protection#2c414d585844495b5f02414d5e476c495c4d024b435a">[email&#160;protected]</a>.
For EPA Region 8, contact Amy Maybach: Email at:
<a href="/cdn-cgi/l/email-protection#d5b8b4acb7b4b6bdfbb4b8ac95b0a5b4fbb2baa3">[email&#160;protected]</a>.
For EPA Region 9, contact Eugene Bromley: Email at
<a href="/cdn-cgi/l/email-protection#1173637e7c7d74683f746476747f74517461703f767e67">[email&#160;protected]</a>.
For EPA Region 10, contact Jill Seale: Email at <a href="/cdn-cgi/l/email-protection#5e2d3b3f323b70343732321e3b2e3f70393128">[email&#160;protected]</a>.

II. Background

A. Permitting of Stormwater Discharges From Construction Activities

Under Clean Water Act section 402(p)(2) and (p)(6) and 40 CFR
122.26(a)(1)(ii) and (a)(9)(i)(B), stormwater discharges from certain
construction activities into waters of the United States must be
authorized by a State or EPA-issued National Pollutant Discharge
Elimination System (NPDES) permit. 33 U.S.C. 1342(p)(2), (p)(6). More
specifically, NPDES permits are required for discharges from projects
that cause one or more acres of land disturbance and for discharges
from smaller land disturbances that are part of a common plan of
development or sale if the discharges will ultimately disturb one or
more acres of land. Id.; 40 CFR 122.26(a)(9), (b)(14)(x), (b)(15).
Under these authorities, since 1992 the EPA has issued an NPDES
Construction General Permit for stormwater discharges from construction
activities (referred to as the ``CGP''). The CGP provides permit
coverage in areas where the EPA is the NPDES permitting authority. The
EPA issued its most recent CGP on February 17, 2022, for stormwater
discharges from eligible construction projects in three States
(Massachusetts, New Hampshire, New Mexico); the District of Columbia;
Federal facilities in four States (Washington, Colorado, Delaware, and
Vermont); all U.S. territories, except the U.S. Virgin Islands; all
Indian Country, except in Maine; and Denali National Park and
Preserve.\1\ The EPA is also the permitting authority for stormwater
discharges from regulated construction activities that take place on
all ``Lands of Exclusive Federal Jurisdiction.'' \2\
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\1\ 87 FR 3522 (January 24, 2022); 2022 CGP, Appendix B,
available at <a href="https://www.epa.gov/system/files/documents/2022-01/2022-cgp-final-appendix-b-areas-of-permit-cover.pdf">https://www.epa.gov/system/files/documents/2022-01/2022-cgp-final-appendix-b-areas-of-permit-cover.pdf</a>.
\2\ 33 U.S.C. 1342(a), (b) (providing that the EPA shall issue
permits for the discharges of pollutants unless a State receives
approval to administer its own permit program ``for discharges into
navigable waters within its jurisdiction'').
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B. Background on Lands of Exclusive Federal Jurisdiction

1. Definition of Lands of Exclusive Federal Jurisdiction
Lands of Exclusive Federal Jurisdiction are lands in the U.S. where
the Federal Government retains exclusive jurisdiction in relevant
respects. Not all Federal lands are Lands of Exclusive Federal
Jurisdiction. Rather, exclusive Federal jurisdiction is established
only under limited circumstances pursuant to the Enclave Clause of the
U.S. Constitution.\3\ These circumstances include (1) where the Federal
Government purchases land with State consent to jurisdiction,
consistent with the Enclave Clause; (2) where a State chooses to cede
jurisdiction to the Federal Government; and (3) where the Federal
Government reserved jurisdiction upon granting statehood.\4\
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\3\ U.S. Const. Art. I, Sec. 8, cl. 17 (``The Congress shall
have Power . . . To exercise exclusive Legislation in all Cases
whatsoever . . . over all Places purchased by the Consent of the
Legislature of the State in which the Same shall be, for the
Erection of Forts, Magazines, Arsenals, dock-Yards, and other
needful buildings.'').
\4\ See Paul v. United States, 371 U.S. 245, 263-65 (1963);
Collins v. Yosemite Park Co., 304 U.S. 518, 529-30 (1938); James v.
Dravo Contracting Co., 302 U.S. 134, 141-42 (1937); Surplus Trading
Co. v. Cook, 281 U.S. 647, 650-52 (1930); Ft. Leavenworth R.R. Co.
v. Lowe, 114 U.S. 525, 527 (1895).
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2. Where are Lands of Exclusive Federal Jurisdiction located?
Lands of Exclusive Federal Jurisdiction are all lands where the
Federal Government has exclusive Federal jurisdiction in relevant
respects, including for purposes of implementing the CWA section 402
NPDES program. The EPA does not maintain a map or list of all Lands of
Exclusive Federal Jurisdiction because the jurisdictional status of
Federal lands is tracked by multiple Federal land management agencies
and the jurisdictional status of Lands of Exclusive Federal
Jurisdiction may change over time. The EPA is aware that individual
Federal land management agencies may maintain partial maps or lists but
is unaware of

[[Page 15655]]

a comprehensive listing of all current Lands of Exclusive Federal
Jurisdiction across all agencies. Notably, 16 U.S.C. chapter 1
identifies the following U.S. National Park Service properties as
containing Lands of Exclusive Federal Jurisdiction: Denali National
Park, Mount Rainier National Park, Olympic National Park, Hot Springs
National Park, Hawai'i Volcanoes National Park, Yellowstone National
Park, Yosemite National Park, Sequoia National Park, Crater Lake
National Park, Glacier National Park, Rocky Mountain National Park,
Mesa Verde National Park, Lassen Volcanic National Park, Mammoth Cave
National Park, and Isle Royale National Park.
3. The EPA's NPDES Authority in Lands of Exclusive Federal Jurisdiction
Clean Water Act section 402(a) authorizes the EPA to establish and
implement the NPDES permitting program (33 U.S.C. 1342(a)), and Clean
Water Act section 402(b) establishes procedures for States and
authorized Tribes to request authorization from the EPA to administer
the program in lieu of the EPA within their respective jurisdictions
(33 U.S.C. 1342(b); see id. at section 1377(e)). Lands of Exclusive
Federal Jurisdiction in relevant respects present a case where States
lack authority for administering the NPDES program, as States do not
have legislative jurisdiction in these areas absent specific
congressional action.\5\ Congress did not take specific action in the
Clean Water Act to authorize States to administer the NPDES program in
Lands of Exclusive Federal Jurisdiction. Due to the Federal
Government's unique jurisdictional authority within Lands of Exclusive
Federal Jurisdiction, and the absence of specific congressional action
within the Clean Water Act providing otherwise, the EPA has the sole
authority to administer the NPDES permitting program on these lands.
Therefore, where NPDES-regulated discharges, including stormwater
discharges from regulated construction activities, will occur within
Lands of Exclusive Federal Jurisdiction, the discharger must obtain
permit coverage under an EPA-issued NPDES permit.
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\5\ See Paul, 371 U.S. at 263 (finding precedent establishes
``that the grant of `exclusive' legislative power to Congress over
enclaves that meet the requirements of Art. I, s 8, cl. 17, by its
own weight, bars state regulation without specific congressional
action'').
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C. Why is a modification to the 2022 CGP necessary?

The 2022 CGP and prior EPA-issued CGPs did not include coverage for
all Lands of Exclusive Federal Jurisdiction. As a result, construction
projects scheduled to commence during the remaining effective period of
the 2022 CGP (i.e., until the general permit expires on February 17,
2027) would be unable to obtain coverage for regulated stormwater
discharges under this permit. For example, the U.S. National Park
Service and Federal Highway Administration are scheduled in 2025 to
commence construction projects requiring NPDES permit coverage in,
among other locations, Olympic and Yosemite National Parks, both of
which contain Lands of Exclusive Federal Jurisdiction. The EPA finds
the most effective way to provide such permit coverage is through a
modification to the 2022 CGP. Therefore, the EPA proposed a permit
modification to the 2022 CGP to extend eligibility under the permit for
construction activities in all Lands of Exclusive Federal Jurisdiction.
See 89 FR 100929 (December 13, 2024).
The EPA is finalizing this permit modification to ensure that
construction projects within any Lands of Exclusive Federal
Jurisdiction are eligible for coverage under the 2022 CGP. This change
will not disrupt any permit coverage for construction activities in
Lands of Exclusive Federal Jurisdiction that was already provided under
the 2022 CGP (e.g., for activities within Denali National Park and
Preserve; Federal facilities in the states of Colorado, Delaware, and
Vermont; and construction carried out by Federal operators in the state
of Washington).
The EPA is modifying the 2022 CGP pursuant to the modification
authorities in the applicable NPDES regulations at 40 CFR 122.62(a)(2);
40 CFR 124.5. The Federal Government's authority within Lands of
Exclusive Federal Jurisdiction, including the EPA's role as the NPDES
permitting authority, pre-dates the 2022 CGP. However, the EPA only
became aware of the gap in coverage in 2024, following the issuance of
the 2022 CGP when the Agency received requests for permit coverage for
construction projects in U.S. National Park Service properties
identified as containing Lands of Exclusive Federal Jurisdiction
pursuant to 16 U.S.C. chapter 1. The EPA views modification of the 2022
CGP to expand the area of coverage to accommodate projects within all
Lands of Exclusive Federal Jurisdiction as the most effective and
appropriate means to address this gap in coverage.
Prior to moving forward with this modification, the EPA considered
the alternative option of issuing individual permits for projects
within Lands of Exclusive Federal Jurisdiction, at least in the interim
period prior to expected final action on the next CGP in 2027. While
this alternative remains available for any specific project, relying
solely on individual permits is not the most efficient way to authorize
regulated stormwater discharges from these projects given the longer
timelines typically associated with the application and permit
development process for individual permits as compared to the more
streamlined authorization approach of the CGP. Moreover, the EPA is not
currently certain how many projects may be planned within Lands of
Exclusive Federal Jurisdiction before February 2027, making it hard to
estimate how long the individual permitting process could take for all
of these projects. Only providing the opportunity for individual
permits until the next CGP could potentially result in unnecessary
construction delays in Lands of Exclusive Federal Jurisdiction,
including for critical infrastructure projects in certain U.S. National
Park Service properties that may have limited construction seasons. In
light of these considerations, the EPA concluded that modifying the
current CGP is the most effective way to provide permit coverage for
these projects.
The EPA also considered whether to issue a standalone general
permit for Lands of Exclusive Federal Jurisdiction or to reissue the
full CGP prior to its expiration in February 2027. A standalone general
permit would have provided a narrower means to target the permitting of
projects in these areas. The EPA determined, however, that issuing a
new general permit would take significantly longer than modifying the
2022 CGP, making a final permit unavailable until later in 2025 and
unnecessarily impeding construction projects scheduled earlier in the
year. The EPA also determined that issuing an entirely new CGP in 2025
would disrupt the Agency's anticipated reissuance of the CGP prior to
its expiration in February 2027 and raise additional implementation
questions about the need to provide coverage for already permitted
projects. Similar to the standalone general permit option, the EPA also
was concerned that it would take longer to reissue the full CGP than to
finalize a limited modification. After consideration of public comments
received (as discussed in section III in this document), the EPA is
therefore finalizing this narrow modification to the 2022 CGP.

III. Summary of Final Modification

The EPA is finalizing the modifications to the 2022 CGP as proposed
with the exception of additional changes necessary to address permit
conditions specifically

[[Page 15656]]

implicated by the Supreme Court's recent decision in City and County of
San Francisco v. EPA, No. 23-752 (March 4, 2025). The EPA did not
receive any comments requesting changes to the 2022 CGP modification or
providing new information for the Agency's consideration directly
relevant to the terms of the final modification. The EPA only received
one comment on the proposal seeking clarification about the
implementation of the 2022 CGP modification with respect to particular
State laws and particular Lands of Exclusive Federal Jurisdiction in
one State. The EPA considered the comment, but it did not provide a
basis for changing the modification of the 2022 CGP or the final permit
terms. The EPA's response to this comment is included in the docket for
this final modification.
The following section describes the final modifications to the 2022
CGP. These changes are also discussed in the fact sheet accompanying
the modified permit.
<bullet> Expanded CGP eligibility for all Lands of Exclusive
Federal Jurisdiction (CGP Appendix B)--As proposed, the EPA is
expanding the permit eligibility in Appendix B of the 2022 CGP to
include coverage for construction projects taking place within any
Lands of Exclusive Federal Jurisdiction in the U.S. This expansion
covers projects within Lands of Exclusive Federal Jurisdiction in any
of the EPA's 10 Regions. The EPA notes that any permitted activities in
Lands of Exclusive Federal Jurisdiction that the 2022 CGP already
covers (e.g., activities within Denali National Park and Preserve;
Federal facilities in the states of Colorado, Delaware, and Vermont;
and construction carried out by Federal operators in the state of
Washington) are not affected by or subject to the modification.
<bullet> New definition of Lands of Exclusive Federal Jurisdiction
(CGP Appendix A)--The EPA is finalizing the proposed definition of
Lands of Exclusive Federal Jurisdiction in Appendix A of the 2022 CGP.
<bullet> Clarification of requirements for projects discharging to
receiving waters within Lands of Exclusive Federal Jurisdiction (CGP
Part 10)--As proposed, the EPA is requiring in this final modification
that operators of projects discharging to receiving waters within Lands
of Exclusive Federal Jurisdiction will be held largely to the same
discharge requirements in the 2022 CGP that are applicable to
discharges to sensitive waters, including outstanding national resource
waters, referred to as ``Tier 3'' waters in the 2022 CGP (see Appendix
A at A-1). The reasons for this approach are severalfold. As explained
above, the EPA does not have a comprehensive map or list of Lands of
Exclusive Federal Jurisdiction and must base this permitting decision
on the information available to the Agency about the location of such
lands. As explained in the proposal, the EPA's best available
information indicates that Lands of Exclusive Federal Jurisdiction
include areas within certain national parks identified as such by 16
U.S.C. chapter 1, such as Olympic and Yosemite National Parks, where
construction projects are scheduled to commence in 2025.
Waters of the United States in national parks have the potential to
be considered outstanding national resource waters pursuant to the
EPA's regulations at 40 CFR 131.12(a)(3).\6\ Under the 2022 CGP
requirements prior to this modification, projects that discharge to
outstanding national resource waters are required to comply with
heightened requirements to protect water quality because those waters
are generally classified as ``Tier 3'' waters. See 2022 CGP at Appendix
A, A-1. Projects discharging to Tier 3-designated waters must conduct
more frequent inspections, comply with more rapid stabilization
timeframes than discharges that fall into other categories, and conduct
turbidity monitoring of any dewatering discharges.
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\6\ ``Where high quality waters constitute an outstanding
National resource, such as waters of National . . . parks . . . that
water quality shall be maintained and protected.'' 40 CFR
131.12(a)(3); see also 33 U.S.C. 1251(a), 1313(a), (c)(2)(A),
(d)(4)(B).
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The EPA is therefore finalizing its proposal to apply the
heightened protections for Tier 3 waters in the 2022 CGP to all newly
eligible projects that discharge into waters of the United States
within Lands of Exclusive Federal Jurisdiction. Finalizing this
approach, as proposed, will protect all receiving waters within Lands
of Exclusive Federal Jurisdiction subject to this permit, including
those that flow through a national park or other Tier 3 water. The EPA
recognizes that some waters subject to this permit in Lands of
Exclusive Federal Jurisdiction may not have the potential to be
designated as outstanding national resource waters or otherwise be
subject to 40 CFR 131.12(a). Given that the EPA knows that some waters
in Lands of Exclusive Federal Jurisdiction have the potential for
designation as outstanding national resource waters, however, and that
the Agency does not have a complete list of all Lands of Exclusive
Federal Jurisdiction, requiring heightened protection for all waters
within these areas subject to this permit is the most effective and
efficient way to ensure that all such waters are appropriately
protected. This protective approach is reasonable based on the best
information currently available to the Agency.
In a key change from the proposal, the EPA is finalizing water
quality-based limitations that apply to the newly eligible construction
activities in Lands of Exclusive Federal Jurisdiction in light of the
Supreme Court's decision in San Francisco. In that decision, the
Supreme Court held that the Clean Water Act does not authorize ``NPDES
permit requirements that condition permitholders' compliance on whether
receiving waters meet applicable water quality standards.'' The Court
found that these types of requirements, such as permit terms
prohibiting discharges that contribute to a violation of a water
quality standard in a receiving water, are unlawful under the Clean
Water Act. Consistent with this holding, this CGP modification removes
the proposed generic narrative prohibition analogous to the permit text
rejected by the Court in San Francisco, replacing it with final water
quality-based limitations that tie compliance to the condition of the
discharge (not the receiving water). Section 10 also makes a conforming
change to indicate that triggering conditions for corrective actions in
Part 5.1.3 and limits on the use of treatment chemicals in Part 7.2.6
focus on conditions within the construction site's discharge. As
proposed, the permit addresses all modifications to the water quality-
based limitations for Lands of Exclusive Jurisdiction in one place,
Part 10.
Even with the changes to Part 10, including the removal of the
applicability of the generic water quality-based effluent limitation,
the EPA has concluded that the permit contains provisions for newly
eligible entities in Lands of Exclusive Federal Jurisdiction as
necessary to meet water quality standards as required by CWA section
301(b)(1)(C).\7\ As discussed, the EPA knows that some waters in Lands
of Exclusive Federal Jurisdiction have the potential to be designated
as Tier 3 outstanding national resource waters and is therefore
applying the approach to water quality-based limitations used for Tier
3 waters in the 2022 CGP to all discharges to waters in Lands of
Exclusive Federal Jurisdiction subject to this modification. Given the
limits of the EPA's current knowledge about Lands of Exclusive Federal
Jurisdiction,

[[Page 15657]]

however, the EPA welcomes information from prospective permittees to
inform the water quality-based limitations for their discharges. If any
permittee believes the water quality-based limitations approach adopted
in this modification is not warranted for its activity, that permittee
may request an individual permit containing permit-specific
limitations. The EPA is available to provide technical assistance for
such individual permit requests and will endeavor to process them
expeditiously. The EPA also plans to continue to evaluate the water
quality-based limitations applicable to projects discharging to
receiving waters in Lands of Exclusive Federal Jurisdiction for future
permit actions as the Agency gains more experience and information with
permitting discharges in these locations.
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\7\ 33 U.S.C. 1311(b)(1)(C).
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At this time, the EPA is only modifying the conditions of the 2022
CGP to add coverage for all Lands of Exclusive Federal Jurisdiction not
already included in the 2022 CGP. The EPA has not reopened and is not
reopening any other conditions of this permit as part of this
modification in accordance with 40 CFR 122.62 and 40 CFR 124.5(c)(2).
As the 2022 CGP (including provisions that are part of this
modification) expires on February 16, 2027, the EPA plans to propose
the next CGP in the near term and any concerns with other aspects of
the permit can be raised at that time. In particular, the EPA intends
to propose and take comment on changes to the water quality-based
limitations in the underlying CGP to ensure compliance with the Supreme
Court's decision in San Francisco. In the meantime, the EPA notes that
it is working expeditiously to assess the scope of water quality-based
limitations implicated by San Francisco, and the extent to which
existing limitations (including those that continue to appear in Part
3.1 of the 2022 CGP) are enforceable. The EPA hopes to provide clarity
to the public, including regulated entities, on this issue in the near
future.
<bullet> Clarification of eligibility requirements related to
endangered species (CGP Appendix D)--During the development of the
proposed modification, the EPA met with the U.S. National Park Service
and other Federal agencies to better understand, among other things,
these agencies' typical practices related to compliance with the
Endangered Species Act for construction projects.\8\ Based on these
conversations, it is the EPA's understanding that these agencies
complete their Section 7 Endangered Species Act consultations for these
projects prior to commencing construction. 16 U.S.C. 1536. Consistent
with this understanding, Federal entities and associated contractors
engaged in construction activity within Lands of Exclusive Federal
Jurisdiction will be eligible only after completion of Section 7
consultation, consistent with Notice of Intent Criterion E.
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\8\ 16 U.S.C. 1531 et seq.
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IV. Effective Dates of Final Modification

The effective dates for the final modification are described in
this section. The EPA is establishing separate effective dates to
account for the different timing needs of various EPA Regions. The EPA
finds it necessary to move forward with the final modification
expeditiously in most EPA Regions so that CGP eligibility is extended
to construction projects scheduled to commence on Lands of Exclusive
Federal Jurisdiction in early 2025. However, additional time is needed
for two EPA Regions to complete required Clean Water Act section 401
procedures, thus making different, subsequent effective dates for these
Regions appropriate. As described in this section, the different
effective dates are consistent with the NPDES regulations for such
dates at 40 CFR 124.15(b).
For most EPA Regions, the effective date is the date of issuance of
the final permit modification. Therefore, for EPA Regions 2, 4, 5, 6,
7, 8, 9, and 10, the final modification became effective on April 8,
2025. This effective date is established under authority of 40 CFR
124.15(b)(3), which provides an exception to the effective date of 30
days after service of notice of the permit decision in cases where
``[n]o comments requested a change in the draft permit, in which case
the permit shall become effective immediately upon issuance.'' Making
the permit effective for these Regions upon issuance is appropriate
because the EPA received no comments that requested a change to the
proposed modification. The one comment the EPA received on the draft
permit modification raised questions about how the Agency would
implement the modified CGP but did not request changes to the draft
modification. The EPA views it as appropriate, therefore, to make the
modification effective upon issuance based on the lack of comments
recommending a change to the draft modification.
By contrast, a different effective date is necessary for EPA
Regions 1 and 3. Consistent with 40 CFR 124.15(b)(1), the EPA is
providing notice of an effective date for the final modification in EPA
Regions 1 and 3 that is later than 30 days after service of notice of
this decision. These Regions require a different effective date than
the one for the other eight EPA Regions due to the additional time
needed to complete the Clean Water Act section 401(a)(2) process. If,
upon completion of that process, these Regions proceed with issuing the
final permit modification, each Region would make this modification
effective upon issuance of the modified permit. The EPA notes that,
given the specific process each Region is undergoing, it is possible
that either or both Regions may not finalize this modification prior to
expiration of the 2022 CGP and that, even if they did, there could be a
different effective date for each Region. Notice of when the final
modification in EPA Regions 1 and 3 is issued will be provided through
the EPA's 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>.
Under Clean Water Act section 509(b), judicial review of this
general permit can be requested by filing a petition for review in a
United States Court of Appeals within 120 days after the permit is
considered issued.\9\ As provided in 40 CFR 124.19(o), this final
modification of a general permit is not subject to the permit appeal
procedures at 40 CFR 124.19. Under Clean Water Act section 509(b)(2),
this permit is not subject to challenge in the course of civil or
criminal proceedings to enforce this permit or in any other agency
proceedings.
---------------------------------------------------------------------------

\9\ The EPA notes the 120-day period for judicial review under
Clean Water Act section 509(b) is based on the date the final permit
decision is issued in each Region. Therefore, if either Region 1 or
3 signs a final permit modification in the future, that issuance
date would be different than the issuance date for the permit
modifications finalized in other EPA Regions for purposes of
judicial review.
---------------------------------------------------------------------------

V. Paperwork Reduction Act (PRA)

This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing permit and has assigned OMB
control number 2040-0305. This final modification is limited to
providing eligibility under the 2022 CGP to construction projects
carried out by Federal entities and associated contractors on Lands of
Exclusive Federal Jurisdiction and, as such, does not result in an
increase in information collection burden.

VI. 2022 CGP Incremental Cost Analysis

The EPA conducted a cost analysis for the final 2022 CGP, which
monetized

[[Page 15658]]

and quantified certain incremental cost impacts of the final permit
changes as compared to the 2017 CGP. The objective of this incremental
cost analysis was to show where or to what extent the final 2022 CGP
requirements imposed 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 were
already accounted for in the 2017 CGP. A copy of the EPA's incremental
cost analysis, titled, ``Incremental Cost Impact Analysis for the 2022
Construction General Permit (CGP),'' is available in the docket for the
final permit (Docket ID No. EPA-HQ-OW-2021-0169).
Projects that are eligible under the modified 2022 CGP's inclusion
of Lands of Exclusive Federal Jurisdiction are subject to the same set
of permit requirements that already apply to projects located in other
areas. The modification specifies that newly eligible construction
sites within Lands of Exclusive Federal Jurisdiction will be subject to
the same heightened inspection, stabilization, and corrective action
requirements that already apply to permittees discharging to sensitive
waters under the CGP, but these do not alter the incremental costs for
operators who will be covered under the 2022 CGP. As a result, the EPA
does not expect there to be calculable changes to the CGP Incremental
Cost Analysis resulting from the expansion of eligibility in the 2022
CGP to include construction activities within Lands of Exclusive
Federal Jurisdiction. For this reason, the EPA expects the costs
associated with the modification to be already captured by the analysis
that was completed for the full permit.
Overall, finalizing the modification will further the cost savings
realized by use of the general permit to provide coverage for regulated
discharges from construction activities. The final modification will
result in allowing eligible projects to obtain efficient permit
coverage within 14 days; otherwise, each project would need to apply
for coverage under an individual permit, which could take up to a year
to obtain absent this permit modification to the 2022 CGP.

VII. Executive Order 12866: Regulatory Planning and Review

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

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

In compliance with Executive Order 13175, the EPA completed
consultation with Tribal officials on the 2022 CGP and included a
summary report on the EPA's outreach activities and comments received
during the consultation in the docket for the final permit. The Tribal
consultation summary 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 No. EPA-HQ-OW-2021-0169). A
formal consultation with Tribal officials was not required for this
action since it is limited to the described narrow modifications to the
2022 CGP. The EPA has, however, notified Tribes of this modification
and invited those interested to provide the Agency with comments or to
request further coordination or consultation. The EPA did not receive
comments or requests for further coordination or consultation.

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

This action is not subject to Executive Order 13211, because it is
not a significant action under Executive Order 12866.

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

Mark Sanborn,
Regional Administrator, EPA Region 1.
Javier Laureano Perez,
Director, Water Division, EPA Region 2.
Carmen Guerrero Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Michelle Price-Fay,
Director, Water Division, EPA Region 3.
Kathlene Butler,
Director, Water Division, EPA Region 4.
Tera Fong,
Director, Water Division, EPA Region 5.
Troy Hill,
Director, Water Division, EPA Region 6.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
Stephanie DeJong,
Manager, Clean Water Branch, EPA Region 8.
Tomas Torres,
Director, Water Division, EPA Region 9.
Mathew Martinson,
Director, Water Division, EPA Region 10.
[FR Doc. 2025-06320 Filed 4-14-25; 8:45 am]
BILLING CODE 6560-50-P

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