1

6560.50

ENVIRONMENTAL PROTECTION AGENCY

[FRL-8970-1, EPA-HQ-OW-2008-0238]

Modification to 2008 National Pollutant Discharge Elimination System (NPDES) 

General Permit for Stormwater Discharges Associated with Construction 

Activities

AGENCY: Environmental Protection Agency (EPA). 

ACTION: Notice.

SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are modifying the 

2008 National Pollutant Discharge Elimination System (NPDES) general permits

for stormwater discharges associated with construction activity in order to extend 

by one year the expiration date of the permit. Hereinafter, these NPDES general 

permits will be referred to as “permit” or “2008 construction general permit” or 

“2008 CGP.” The 2008 CGP was originally issued for a period of two (2) years. 

Today, EPA is modifying the CGP in order to extend the 2 year term of the 2008 

CGP by one year so that it expires on June 30, 2011, instead of June 30, 2010, 

resulting in a permit that will be in effect for a total period of three (3) years. By

Federal law, no NPDES permit may be issued for a period that exceeds five (5) 
2

years. 

DATES: EPA is modifying its 2008 Construction General Permit by extending 

the permit by one year. This permit modification is effective on [INSERT DATE 

OF SIGNATURE BY THE REGIONAL ADMINISTRATORS] The 2008 

Construction General Permit will now expire on midnight June 30, 2011, instead 

of June 30, 2010. 

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Water Permits 

Division, Office of Wastewater Management (Mail Code: 4203M), 

Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, EPA East, 

Washington, DC 20460; telephone number: (202) 564-0721; fax number: (202) 

564-6431; email address: schaner.greg@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this Action Apply to Me?
3

If a discharger chooses to apply for coverage under the 2008 CGP, the 

permit provides specific requirements for preventing contamination of stormwater 

discharges from the following construction activities:

Category Examples of Affected Entities

North 

American 

Industry 

Classificatio

n System 

(NAICS) 

Code

Industry Construction site operators disturbing 1 or more acres of land, or 

less than 1 acre but part of a larger common plan of development 

or sale if the larger common plan will ultimately disturb 1 acre or 

more, and performing the following activities:

Building, Developing and General 

Contracting

233

Heavy Construction 234

EPA does not intend the preceding table to be exhaustive, but provides it as a 

guide for readers regarding entities likely to be regulated by this action. This table 

lists the types of activities that EPA is now aware of that could potentially be 
4

affected by this action. Other types of entities not listed in the table could also be 

affected. To determine whether your facility is affected by this action, you should 

carefully examine the definition of “construction activity” and “small construction 

activity” in existing EPA regulations at 40 CFR 122.26(b)(14)(x) and 

122.26(b)(15), respectively. If you have questions regarding the applicability of 

this action to a particular entity, consult the person listed for technical information 

in the preceding “FOR FURTHER INFORMATION CONTACT” section.

Eligibility for coverage under the 2008 CGP is limited to operators of

“new projects” or “unpermitted ongoing projects.” A “new project” is one that 

commences after the effective date of the 2008 CGP. An “unpermitted ongoing 

project” is one that commenced prior to the effective date of the 2008 CGP, yet 

never received authorization to discharge under the 2003 CGP or any other 

NPDES permit covering its construction-related stormwater discharges. This 

permit is effective only in those areas where EPA is the permitting authority. A 

list of eligible areas is included in Appendix B of the 2008 CGP. 

B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action 

under Docket ID No. EPA-HQ-OW-2008-0238. The official public docket is the 

collection of materials that is available for public viewing at the Water Docket in 

the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution 

Ave., NW, Washington, DC 20460. Although all documents in the docket are 

listed in an index, some information is not publicly available, i.e., Confidential 
5

Business Information (CBI) or other information whose disclosure is restricted by

statute. Publicly available docket materials are available electronically through 

www.regulations.gov and in hard copy at the EPA Docket Center Public Reading 

Room, open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal 

holidays. The telephone number for the Public Reading Room is (202) 566-1744 

and the telephone number for the Water Docket is (202) 566-2426.

2. Electronic Access. You may access this Federal Register document 

electronically through the EPA Internet under the “Federal Register” listings at 

http://www.epa.gov/fedrgstr/. Electronic versions of the final permit and fact 

sheet are available at EPA’s stormwater website 

http://www.epa.gov/npdes/stormwater.

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 http://www.regulations.gov/fdmspublic/component/main 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. Once in the system, select “search”, then key in the appropriate 

docket identification number.

Certain types of information will not be placed in the EPA Dockets. 

Information claimed as CBI and other information whose disclosure is restricted 

by statute, which is not included in the official public docket, will not be available 

for public viewing in EPA's electronic public docket. EPA policy is that 
6

copyrighted material will not be placed in EPA's electronic public docket but will 

be available only in printed, paper form in the official public docket. Although not 

all docket materials may be available electronically, you may still access any of 

the publicly available docket materials through the docket facility identified in 

Section I.B.1.

C. Response to Public Comments: EPA received 4 comments on the proposal to 

extend the 2008 CGP. All commenters were supportive of EPA’s proposed 

extension. Three of the commenters recommended that EPA modify the 2008 

CGP to extend the expiration date of the permit for 3 years, so that the permit 

would expire on June 30, 2013, instead of the proposed expiration date of June 

30, 2011, thus making it a 5-year permit. EPA declined to adopt the commenter’s 

recommendation. It is important to minimize the delay in issuing a new CGP that 

incorporates the new federal requirements for the discharges from construction 

and development sites, which were published in the Federal Register December 1, 

2009. 74 FR 62996. For a copy of the “Construction and Development Effluent 

Limitations Guidelines” (or “C&D rule”), and other related information, go to 

http://www.epa.gov/guide/construction/. 

The 2008 CGP was issued for a shorter term than the statutorily allowed 5 

years so that the newly promulgated C&D rule requirements could be incorporated

into the permit as soon as practicable. Many States will be looking at the 

Agency’s next CGP to gain insight into how to implement the C&D ELG

requirements into permits. The C&D ELG established numeric effluent 
7

limitations and monitoring requirements, both of which may be new to the large 

number of construction sites throughout the country. EPA would like to issue the 

next CGP implementing these requirements as soon as possible. By promulgating 

a final CGP that incorporates the C&D ELG by June 30, 2011 EPA will assist

State agencies that must reissue their permits in the next few years and incorporate 

the C&D ELG into their permits.

One commenter further recommended that EPA make modifications to the 

2008 CGP in addition to the one-year extension of the permit. This commenter 

specifically recommended that EPA take the opportunity to streamline the CGP 

and the process for authorizing dischargers, such as through a simplified option 

for single lot construction projects, a simplified qualified local program option, 

and a certification of no pollutant discharge added to the permit. EPA is aware of 

the issues that the commenter has raised; however, EPA is not inclined to make 

further modifications to the 2008 CGP at this time beyond the one-year extension.

The expiration date of the 2008 CGP is the only issue for which EPA proposed a 

modification; EPA believes the issues raised by the commenter, which will 

require a significant amount of time to consider for incorporation into the permit, 

are best contemplated for the new permit to be issued prior to June 30, 2011. 

D. Who Are The EPA Regional Contacts for This Permit?

For EPA Region 1, contact Jessica Hing at tel.: (617) 918-1560 or e-mail 

at hing.jessica@epa.gov.

For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 or e-
8

mail at venezia.stephen@epa.gov, or for Puerto Rico, contact Sergio Bosques at 

tel.: (787) 977-5838 or e-mail at bosques.sergio@epa.gov.

For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 or email at miller.garrison@epa.gov.

For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail at 

bell.brianc@epa.gov.

For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-mail 

at: larsen.brent@epa.gov.

For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or email at: matthews.mark@epa.gov. 

For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-mail at: 

davis.gregory@epa.gov. 

For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or email at bromley.eugene@epa.gov.

For EPA Region 10, contact Dick Hetherington at tel.: (206) 553-1941 or 

e-mail at hetherington.dick@epa.gov.

II. Background of Permit 

A. Statutory and Regulatory History.

The Clean Water Act (“CWA”) establishes a comprehensive program “to 

restore and maintain the chemical, physical, and biological integrity of the 

Nation’s waters.” 33 U.S.C. § 1251(a). The CWA also includes the objective of 

attaining “water quality which provides for the protection and propagation of fish, 
9

shellfish and wildlife.” 33 U.S.C. § 1251(a)(2)). To achieve these goals, the 

CWA requires EPA to control discharges through the issuance of National 

Pollutant Discharge Elimination System (“NPDES”) permits, which may be 

issued for fixed terms that may not exceed five (5) years. 33 U.S.C. § 

1342(b)(1)(B).

Section 405 of the Water Quality Act of 1987 (WQA) added section 

402(p) of the Clean Water Act (CWA), which directed EPA to develop a phased 

approach to regulate stormwater discharges under the NPDES program. EPA 

published a final regulation in the Federal Register on the first phase of this 

program on November 16, 1990, establishing permit application requirements for 

“storm water discharges associated with industrial activity.” See 55 FR 47990. 

EPA defined the term “storm water discharge associated with industrial activity”

in a comprehensive manner to cover a wide variety of facilities. Construction 

activities, including activities that are part of a larger common plan of 

development or sale, that ultimately disturb at least five acres of land and have 

point source discharges to waters of the U.S. were included in the definition of 

“industrial activity” pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the 

stormwater program was published in the Federal Register on December 8, 1999, 

and required NPDES permits for discharges from construction sites disturbing at 

least one acre, but less than five acres, including sites that are part of a larger 

common plan of development or sale that will ultimately disturb at least one acre 

but less than five acres, pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR 68722. 
10

EPA is proposing to extend the expiration date of the 2008 CGP under the 

statutory and regulatory authority cited above.

NPDES permits issued for construction stormwater discharges are required 

under Section 402(a)(1) of the CWA to include conditions for meeting 

technology-based effluent limits established under Section 301 and, where 

applicable, Section 306. Once an effluent limitations guideline or new source 

performance standard is promulgated in accordance with these sections, NPDES 

permits are required to incorporate limits based on such limitations and standards. 

See 40 CFR 122.44(a)(1). Prior to the promulgation of national effluent 

limitations and standards, permitting authorities incorporate technology-based 

effluent limitations on a best professional judgment basis. CWA section 

402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

B. Summary of 2008 CGP.

EPA announced the issuance of the 2008 CGP on July 14, 2008. See 73 

FR 40338. Construction operators choosing to be covered by the 2008 CGP must 

certify in their notice of intent (NOI) that they meet the requisite eligibility

requirements, described in Part 1.3 of the permit. If eligible, operators are 

authorized to discharge under this permit in accordance with Part 2. Permittees 

must install and implement control measures to meet the effluent limits applicable 

to all dischargers in Part 3, and must inspect such stormwater controls and repair 

or modify them in accordance with Part 4. The permit in Part 5 requires all 

construction operators to prepare a stormwater pollution prevention plan 
11

(SWPPP) that identifies all sources of pollution, and describes control measures

used to minimize pollutants discharged from the construction site. Part 6 details 

the requirements for terminating coverage under the permit.

The 2008 CGP permit provides coverage for discharges from construction 

sites that occur in areas not covered by an approved State NPDES program. EPA 

Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 issued the 2008 CGP to replace the expired

2003 CGP for operators of new and unpermitted ongoing construction projects. 

The geographic coverage and scope of the 2008 CGP is listed in Appendix B of 

the permit. 

C. What Is EPA’s Rationale for the Modification of the 2008 CGP for a OneYear Extension of the Expiration Date?

As stated above, any NPDES permit issued after the effective date of the 

C&D rule, whether issued by EPA or an authorized state, must incorporate the 

substantive technology-based requirements of the rule into the permit. The 

effective date of the C&D rule is February 1, 2010. Therefore, EPA’s next permit,

which will be issued after the effective date of the C&D rule, will require that the 

requirements of the rule be incorporated into the permit. While as discussed 

above, EPA wants to issue a CGP that incorporates the C&D ELG as soon as 

possible in order to provide guidance to state permitting authorities, today’s oneyear extension is necessary due to EPA’s judgment that an extension of one year

is needed to provide sufficient time to incorporate the new C&D rule 

requirements, provide guidance to state permitting authorities, and to be able to 
12

manage the additional actions and initiatives that are being undertaken at the same

time by the Agency. Without the one-year extension, EPA fears that it would be 

left with an inadequate amount of time to issue a new CGP, placing potentially

thousands of construction projects at risk of discharging without an effective 

stormwater permit. 

Prior to the extension, the 2008 CGP would have expired on June 30, 

2010, giving EPA approximately seven months to propose and finalize a new 

CGP. In EPA’s judgment, the seven-month period would have been insufficient to 

properly draft new requirements that reflect the C&D rule, and to modify these 

permit conditions in response to public comments. The seven-month timeframe 

to propose and finalize a new permit would have been impracticable based on 

EPA’s past experience in issuing stormwater general permits, in general, and with 

the construction general permit specifically. In the past, EPA required an 

estimated eighteen months to propose and finalize the 2003 CGP, and a similar 

amount of time for the previous construction general permits. While EPA does 

not believe the 2008 Multi-Sector General Permit (MSGP) for stormwater 

discharges associated with industrial activities was typical, that permit required 

almost three years to finalize after the proposed permit was published. Beyond 

incorporating updated modifications to the permit based on changes to the 

technology-based and water quality-based effluent limitations into the permit, 

EPA is required to conduct many additional tasks that are automatically required 

of final Federal actions, such as conducting consultations under the Endangered 
13

Species Act and National Historic Properties Act, obtaining CWA section 401 

certifications for the permit from States and Indian Country lands, providing the 

public with an opportunity to comment, and responding to all comments received 

during the public comment period. Separately, these tasks have historically

required more than seven months. The combined effect of these tasks, which are 

each necessary to issue a general permit, on EPA’s schedule for permit issuance is 

to make a seven-month permit issuance timeframe impracticable. 

While a seven-month schedule to finalize a new CGP would be 

impracticable under the circumstances, as discussed above, what would have 

made this period of time even more challenging is the incorporation of the new 

Federal C&D rule requirements into the general permit. The C&D rule has 

introduced several concepts that may be new to most construction sites, including 

the requirement for certain sized construction sites to comply with a numeric 

effluent limitation for turbidity. Additionally, the non-numeric effluent 

limitations in the C&D ELG will need to be properly translated into permit 

conditions and modified based on public comments received. The additional oneyear extension will ensure that the Agency has sufficient time to accomplish these 

tasks.

Also weighing heavily in favor of extending the expiration date of the 

2008 CGP are the risks associated with failing to issue a replacement permit prior 

to the 2008 CGP’s original expiration date. If EPA fails to issue a new CGP 

before the expiration of the 2008 CGP, no new construction projects would be 
14

able to be eligible for coverage by the 2008 CGP, leaving individual NPDES 

permits as the only available option for permitting new projects. The sole reliance 

on individual permits will mean that discharge authorizations will be delayed due 

to the greater amount of time and Agency resources that are required for 

developing and issuing individual permits. EPA is unwilling to risk the 

possibility of such delays. The one-year extension to the 2008 CGP’s expiration 

date will provide the Agency with the time needed to issue a new permit, without 

any gaps in permit coverage. 

D. EPA’s Authority to Modify NPDES Permits

EPA regulations establish when the permitting authority may make 

modifications to existing NPDES permits. In relevant part, EPA regulations state 

that “[w]hen the Director receives any information...he or she may determine 

whether or not one or more of the causes listed in paragraph (a)...of this section 

for modification...exist. If cause exists, the Director may modify...the permit 

accordingly, subject to the limitations of 40 CFR 124.5(c).” 40 CFR 122.62. For 

purposes of this Federal Register notice, the relevant cause for modification is at 

40 CFR 122.62(a)(2), which states a permit may be modified when “[t]he Director 

has received new information” and that information was not available at the time 

of permit issuance...and would have justified the application of different permit 

conditions at the time of issuance.” Pursuant to EPA regulations, “[w]hen a 

permit is modified, only the conditions subject to the modification are reopened.” 

40 CFR 122.62. 
15

In the case of the 2008 CGP, a permit modification is justified based on 

the new information EPA received since issuance of the 2008 CGP in July 2008, 

in terms of the new actions EPA is planning or undertaking that are putting new 

demands on the Agency’s available resources in the NPDES stormwater program.

New actions and the resulting resource demands have come about as a result of 

EPA’s desire to respond to the 2008 National Research Council report, Urban 

Stormwater Management in the United States (see 

http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf), and to take action 

under the President’s May 2009 Executive Order on Chesapeake Bay Protection 

and Restoration (see http://www.whitehouse.gov/the_press_office/ExecutiveOrder-Chesapeake-Bay-Protection-and-Restoration/). Related to these efforts, 

EPA has announced its intention to initiate a national rulemaking to establish a 

program to reduce stormwater discharges from new development and 

redevelopment, and to make other regulatory improvements to strengthen its 

stormwater program. Refer to http://www.epa.gov/npdes/stormwater/rulemaking.

EPA’s meeting these new demands, while implementing new Federal 

requirements for the construction and development industry, is not practical in a 

seven-month time period. Additionally, at the time of the 2008 CGP was issued, 

EPA did not know the final content of the C&D ELG. If this information was 

available at the time of permit issuance, it would have justified EPA establishing 

an expiration date for the 2008 CGP later than midnight June 30, 2010. As a 

result, cause exists under EPA regulations to justify modification of the 2008 CGP 
16

to extend the expiration date of the permit from midnight June 30, 2010 to 

midnight June 30, 2011. 

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

Dated: January 20, 2010.

Curt Spalding,

Regional Administrator, EPA Region 1.

Dated: January 20, 2010.

Carl-Axel P. Soderberg, 

Division Director, Caribbean Environmental Protection Division, EPA Region 2.

Dated: January 20, 2010.

Barbara A. Finazzo, 

Division Director, Division of Environmental Planning & Protection, EPA Region 

2.
17

Dated: January 20, 2010.

Jon M. Capacasa, 

Director, Water Protection Division, EPA Region 3.

Dated: January 20, 2010.

Timothy C. Henry, 

Associate Director, Water Division, EPA Region 5.

Dated: January 20, 2010.

Miguel I. Flores, 

Director, Water Quality Protection Division, EPA Region 6.

Dated: January 20, 2010.

William A. Spratlin, 

Director, Wetlands and Pesticides Division, EPA Region 7.

Dated: January 20, 2010.
18

Stephen S. Tuber, 

Assistant Regional Administrator, Office of Partnerships & Regulatory

Assistance, EPA Region 8.

Dated: January 20, 2010.

Alexis Strauss, 

Director, Water Division, EPA Region 9.

Dated: January 20, 2010.

Michael A. Bussell,

Director, Office of Water and Watersheds, EPA Region 10.