MEMORANDUM

To: File

From: Greg Schaner, Attorney Adviser, U.S. EPA

Re: Summary of Changes Made to EPA’s Draft Construction General Permit at the Request of 

OMB or other Federal Agencies

This memorandum includes a summary of changes made to EPA’s draft Construction 

General Permit (CGP) in response to comments received during Inter-Agency review. The draft 

CGP was submitted to the Office of Management & Budget (OMB) on December 17, 2010 for 

the initiation of formal review. OMB closed its review on April 8, 2011.

The following includes a part-by-part summary of the changes made to the draft permit. 

This list does not include changes initiated by EPA during Inter-Agency review to improve clarity 

or consistency, or to correct errors.

Part 1

Part 1.2 – Added following sentence: “The secondary operator is responsible for 

complying with all aspects of the permit related to the earth-disturbing activities at the 

site.”

Part 1.3.1.8 – Added the underlined text: “You have complied with any specific 

requirements for your construction project respecting your eligibility imposed by the 

state, Indian tribe, or territory listed in Part 10 of this permit.”

Part 1.4.2.3 – Added the underlined text: “Stormwater discharges associated with 

construction activities that have been covered under an individual NPDES permit or a 

different NPDES general permit, unless authorized in writing by EPA.”

Part 1.5 – Added the underlined text: “To be covered under this permit, you must submit 

to EPA a complete and accurate NOI prior to commencing construction activities, 

except for emergency-related construction activities, in which case the NOI must be 

submitted within 7 days after the commencement of earth-disturbing activities (see Part 

1.3.2).”

Table 1-1 – Added the underlined text to the explanation of the NOI deadline for 

“previously permitted new sources”: “By no later than [90 DAYS AFTER PERMIT ISSUANCE], 

if earth-disturbing activities commenced after February 1, 2010 and prior to [DATE OF 

PERMIT ISSUANCE], and the operator is currently covered under the 2003 or 2008 CGPs. 

Provided you submit your NOI by this deadline, your coverage under the 2003 or 2008 

CGP will be automatically continued under those permits until you have been granted 

coverage under this permit or an alternative NPDES permit, or you are denied coverage 

under this permit.” 
Page 2 of 8

Deleted the following text from the explanation of the NOI deadline for “existing 

permitted discharger”: “By no later than [90 DAYS AFTER PERMIT ISSUANCE]. Your 

coverage under the 2003 or 2008 CGP will be automatically continued under those 

permits until you have been granted coverage under this permit or an alternative NPDES 

permit, or you are denied coverage under this permit, or your termination of coverage 

under the 2003 or 2008 CGP prior to [90 DAYS AFTER PERMIT ISSUANCE], whichever is 

earlier.”

Part 2

Part 2.1.1.1.a – Deleted the following text: “All areas where earth-disturbing activities will 

occur (described in your SWPPP consistent with Parts 8.2.4 and 8.2.5)”. 

Added the following text: “All marking devices should be removed after construction has 

been completed, after all areas that were disturbed have been stabilized, and once the 

site meets the criteria for terminating permit coverage in Part 9.2.”

Part 2.1.1.2 – Added the following text: “Avoid earth-disturbing activities on steep slopes 

(i.e., slopes of 15% or greater), unless infeasible or inconsistent with the requirements of 

the project.”

Part 2.1.2.3 – Deleted following provision: “You are required to preserve areas of native 

topsoil on your site, unless infeasible. Where disturbance to such soils is unavoidable, you 

should stockpile and reapply such soils consistent with Part 2.1.3.5.”

Part 2.1.1.4 – Made the following changes: “Limit construction of stream crossings on 

your site to the minimum necessary to provide access to your construction site, and to 

install required infrastructure. Where stream crossings are required for your project, you 

must comply with any limits to such activity covered by a CWA Part 404 permit. Note 

that the CWA Part 404 permit must have been obtained prior to commencement of 

earth-disturbing activity on your site any discharge of dredge or fill materials to waters of 

the U.S.”

Part 2.1.3.2.a – Added following text: “Note that this requirement does not apply to earth 

disturbances related to initial site clearing and establishing entry, exit, and access of the 

site, which may require that stormwater controls be installed immediately after the earth 

disturbance.” 

Added following request for comments: “EPA requests comments on whether there are 

other situations where it would be infeasible or impractical to install and make 

operational all stormwater controls before commencing earth disturbances. If so, please 

describe these situations.”

Part 2.1.3.4.a.i – Made the following changes: “Where track-out of sediment occurs at 

your site onto sweep, shovel, or vacuum streets, sidewalks, and other paved areas, by 

the end of the same work day in which the track-out is discovered you must sweep, 

shovel, or vacuum these surfaces regularly to remove track-out material or other 

sediment deposits, but not less than once per day.”
Page 3 of 8

Part 2.1.3.4.a.ii – Added the following language: “Immediately begin to remove 

sediment that has been deposited in or near any stormwater conveyance channel or 

storm drain inlet and complete the removal by the close of the next full work day.”

Part 2.1.3.5 – Made the following changes: “Where disturbance to native topsoil will 

occur at your site, unless infeasible, you should stockpile and reuse it in areas that will be 

stabilized with vegetation if applicable. To maximize the native topsoil’s continued 

function, when stockpiling native topsoil, you should mound the soil (e.g., no higher than 

4 feet high for less than 1 year, and preferably for less than 6 months) and cover to 

prevent soil erosion and weed growth. As a guideline, soil should be mounded no higher 

than 4 feet high for less than 1 year, and preferably for less than 6 months.”

Part 2.1.3.7.a – Added following request for comments: “EPA requests comment on the 

feasibility of the requirement to stabilize entrance and exit points for a minimum of 50 

feet. If this distance is not practicable at sites, explain why and what would you suggest 

as a minimum threshold for stabilizing these areas and for what size sites.”

Part 2.1.3.8 – Made the following changes: “If you are using any of the following 

stormwater controls at your site, as they are described below, you must comply with any 

applicable requirements for underground injection wells in the Safe Drinking Water Act 

and EPA’s implementing regulations at 40 CFR Parts 144 -147consult with your state or 

EPA Regional Underground Injection Control (UIC) Program Director with primary 

authority for implementing the requirements for Class V wells in the Underground Injection 

Control (UIC) program to determine if you are subject to the Class V UIC regulations 

under the Safe Drinking Water Act.” 

Part 2.1.4.1 – Deleted the following text: “Complete stabilization of stormwater 

conveyance channels immediately after their installation and before the first predicted 

storm event, or within 7 days, whichever is sooner.”

Part 2.1.4.3 – Added the following language: “For any storm drain inlets that are located 

on your site or that receive stormwater discharges from your site, and for which you have 

access, you must comply with the following:

a. Inlet protection measures. You must install inlet protection measures that 

remove sediment from your discharge prior to entry into the storm drain inlets. 

Examples of inlet protection measures include excavations around the perimeter 

of the drop inlet, fabric barriers around inlet entrance, block and gravel 

protection, stone-filled bag berms, and sandbags. 

b. Maintenance requirements. Clean, or remove and replace, the protection 

measures as sediment accumulates, the filter becomes clogged, and/or 

performance is compromised. The protection measures must be serviced, 

cleaned, or removed and replaced when sediment has filled to 1⁄2 of the 

capacity of available storage.

Part 2.1.4.4.a – Made the following changes: “For any sediment basins or impoundments 

installed at the site, in order to minimize the discharge of pollutants, you must utilize outlet 

structures that withdraw water from the surface, unless infeasible. For example, you 

would not be required to use such an outlet structure for a small sediment trap installed 

at your site. Provide a stabilized emergency overflow for storm events that exceed the 2-

year, 24-hour storm, unless infeasible. If it is infeasible for you to meet this requirement, 

you must document why this is so in your SWPPP;
Page 4 of 8

Part 2.1.4.5.b – Added the following language: “Use treatment chemicals in 

accordance with dosing specifications and application rates provided by the 

manufacturer or supplier, or document departures from the manufacturer specifications 

where appropriate.”

Part 2.1.4.5.c.vi – Made the following changes: “Do not discharge cationic polymers, 

except for chitosan, except in compliance with state and/or local requirements 

designed to protect water quality from such discharges is prohibited.”

Part 2.1.4.5.d – Deleted the following provision: “You may re-apply or dispose of 

treatment residuals as long as no discharge of such sediments from your site is possible.”

Part 2.1.4.5 – Added the following request for comment: EPA is interested in comments 

regarding the above proposed requirements on the use of chemicals for stormwater 

control. EPA is also interested specifically in whether commenters believe that it is 

necessary to require residual testing in connection with the use of chitosan, and whether 

a maximum dosage rate should be included in the permit.

Part 2.2.1.2 – Added the following request for comment: EPA requests comment 

generally on the practicability of these timeframes. EPA requests comment on specific 

instances when the 7-day deadline to complete certain aspects of stabilization may not 

be practicable or where exceptions should be provided.

Parts 2.2.1.3/2.2.1.4 – Added the following request for comment: EPA requests comments 

on the above stabilization requirements applicable to sensitive areas and arid and semiarid areas. Specifically regarding sensitive areas, EPA is interested in comment on 

treating as a sensitive area for stabilization purposes sites that will conduct construction 

activities in critical habitat areas or areas where listed endangered species exist. 

Part 2.2.1.2.d – Deleted following provision: “In accordance with Executive Order 13112, 

you must use only groundcover that is free of noxious or exotic weeds, and must not use 

noxious weeds referenced by the Natural Resources Conservation Service (NRCS) state 

noxious weed list. See list of federal and state noxious weeds at 

http://plants.usda.gov/java/noxiousDriver. You must also use native plant species, unless 

infeasible. Refer to http://plants.usda.gov/checklist.html for a searchable list of native 

plant species by state.”

Part 2.3.2.1.b – Added the following language: “For on-site fueling and maintenance, 

you must provide secondary containment structures or other similarly effective means of

preventing the discharge of spilled or leaked chemicals from the area designated for this 

activity.” Similar changes were also made to Parts 2.3.2.2.b and 2.3.2.3.b.

Added the following request for comment: EPA requests comment on the practicability 

of providing secondary containment or cover for fueling and maintenance areas on the 

site, and whether having provisions like spill kits available at the site is sufficient. Please 

identify specifically the situations where this requirement may not be practical. (Note: A 

similar request for comment was added for Part 2.3.2.3.b.)

Part 2.3.2.4.d – Made the following changes: “At least once per week, you must inspect 

any containers or pits used for washout to ensure structural integrity, adequate holding 

capacity, and to check for leaks. If there are signs of a leak or of holes or other gaps in 

the containers or pits that could lead to a discharge, repair them immediatelyprior to 

further use, and take the corrective action required in Part 6.3.2. For concrete washout 

areas, remove hardened concrete waste whenever necessary to avoid overflows, such 

as whenever the hardened concrete has accumulated to a height of 1⁄2 of the container 

or pit. You must document maintenance procedures in your SWPPP as described in Part 

8.2.12.”
Page 5 of 8

Part 2.3.4 – Made the following changes: “You are prohibited required to minimizefrom

discharges of fertilizers containing nitrogen and phosphorus, with the exception of 

compost, manure, or other natural fertilizers.”

Part 3

Part 3 – Added the following note: If EPA has not finalized its recalculation of the C&D 

rule’s numeric turbidity limit prior to the final issuance of this permit, the numeric limit and 

associated monitoring requirements will not be included in the permit.

Part 3.3.1 – Added the following request for comment: EPA requests comment on 

whether the permit should include a minimum rainfall amount associated with this 

requirement below which no sampling is required. The Agency has some concerns 

about this approach, for instance how it would be implemented in the field prior to the 

permittee knowing how much precipitation will end up falling, but is interested in 

feedback on this issue.

Part 3.3.2 – Added the following language: “You may take more than 3 samples in a 

given day provided the samples, taken as a whole, are representative of your discharge 

for that day. You must use all valid sample results in calculating compliance with the 

numeric limit.”

Part 3.3.3 – Added the following request for comment: The Agency’s preference is to 

limit the use of representative monitoring to linear-type projects. However, EPA requests 

comment on whether there are other specific situations where the permit should allow 

representative samples for other types of construction projects.

Part 3.3.6.2 – Added the following language: “If you will analyze your sample results on 

site, use a field-calibrated nephelometer or turbidity meter (also referred to as a 

“turbidimeter”).”

Part 3.3.6.3 – Made the following change: “Wear gloves to prevent contamination of the 

sample; andComply with additional requirements in accordance with 40 CFR Part 136 

procedures and manufacturer’s specifications.”

Part 3.3.8 – Added the following request for comment: EPA requests comment on 

whether allowance should be made in the permit for quarterly reporting for those sites 

where no exceedances occur.

Part 3.3.9.3.c – Made the following changes: “Arithmetic average of samples taken on 

each day of discharge, Result of each individual sample taken in NTUs on this date, or, if 

there was no discharge during the sampling period for that discharge point indicate “no 

discharge.” You are required to report all sampling results, including those that reflect 

samples taken beyond the minimum amount required in Part 3.3.2. You must also 

indicate in your report if there were days when a discharge occurred, but you were not 

able to take the minimum required 3 samples;”

Part 4

Part 4.2.2.1 – Added the following request for comment: EPA requests comment on the 

practical utility of benchmark monitoring and whether it is an appropriate tool for use in 

assessing the effectiveness of construction stormwater controls in not contributing to 

existing impairments. EPA also requests comment on whether benchmark monitoring 

should be required for impaired waters regardless of whether or not a TMDL has been 

approved or established, or only for those impaired waters without an approved or 
Page 6 of 8

established TMDL. EPA solicits feedback on the 10-acre disturbance threshold in Part 

4.2.2.1 below which no benchmark monitoring is required. Among other things, EPA is 

interested in whether the disturbance threshold should be set at a different size, either 

lower or higher. EPA also requests comment on the specific benchmark levels in 

Appendix J, which are based on low-flow conditions rather than conditions likely to be 

present during stormwater discharges. EPA also requests comment on whether use of 

nitrogen or phosphorous fertilizer on vegetative cover for stabilization would impact 

ability to achieve benchmark levels and if so, should the benchmark provisions include 

an exception for this situation. EPA also requests comment on whether it should account 

for natural variability in stormwater discharges in establishing benchmark requirements, 

and if so, how. Finally, in addition to requiring benchmark monitoring for discharges to 

sediment and nutrient-impaired waters, EPA also welcomes comment on how 

benchmark monitoring might be used for discharges to waters that are habitat for listed 

fish species (e.g., white sturgeon, sockey salmon).

Part 4.2.2.3 – Added the following request for comment: EPA requests comment on the 

practicability of conducting daily visual examinations as proposed above, and on the 

practicability of the timeframes for stabilization in Part 4.2.2.2.

Part 5

Part 5.1.2 – Made the following edits: “... If there is a discharge from your site on multiple 

days, you are required to conduct an inspection within 24 hours of the end of the storm

for each day that the discharge occurs. 

Part 6

Part 6.3 – Added the following language: “You must complete the following corrective 

actions in accordance with the deadlines specified in this Part. However, if based on 

further analysis of the site conditions, you find that the source of the problem or violation 

is unrelated to your construction activity, you do not have to comply with the following 

required corrective actions and deadlines, and must document the reasons supporting 

your conclusion in Part 6.4.2.3.”

Part 6.3.1.3 – Added the following request for comment: EPA requests comment on 

whether there is a level of chitosan residual below which the proposed corrective action 

would not be necessary.

Part 6.3.2 – Made the following changes: Make every effort to minimize the prohibited 

discharge (Part 6.3.2.1); Initiate work to fix the problem immediately after discovering the 

problem, and complete such work by the close of the next full work day, if the problem 

can be easily fixed through a quick repair or the performance of regular maintenance of 

the stormwater control or pollution prevention measure (e.g., accumulated sediment on 

roads not swept up, perimeter controls knocked down, piles of graded or discarded soil 

left unstabilized or uncontained, spent fuels/oils dumped in leaky construction waste bin) 

(Part 6.3.2.2); Take immediate action to prevent, by the end of the same day the 

problem is discovered, the discharge, or the continuation of the discharge, from 

reaching a stormwater conveyance channel or water of the U.S.

Part 6.3.2.4 – Added the following request for comment: EPA requests comment on 

whether there are situations when the 7-day deadline is not feasible. Please provide 

specific examples, and suggest alternative timeframes.
Page 7 of 8

Part 6.4.2 – Added the following language: “If you conclude that, based on further 

analysis of the site conditions, the source of the problem or violation is unrelated to your 

construction activity, you must document this fact and the reasons supporting your 

conclusion.”

Part 8

Part 8.2.6.1 – Made the following changes: “The SWPPP must document efforts you take 

to avoid disturbing existing steep slopes on your site, including alternatives that were 

considered and reasons why avoiding such slopes is infeasible for your site. If avoiding

disturbance to such steep slopes is considered infeasible, or inconsistent with the 

requirements of the project, you must document how you intend to comply with the Part 

2.1.4.2 requirements applicable to steep slope disturbances.”

Part 8.3 – Added the following note: “(Note: Information covered by a claim of 

confidentiality will be disclosed by EPA only to the extent of, and by means of, the 

procedures set forth in 40 CFR Part 2, Subpart B. In general, submitted information 

protected by a business confidentiality claim may be disclosed to other employees, 

officers, or authorized representatives of the United States concerned with implementing 

the CWA. The authorized representatives include employees of other executive branch 

agencies, who may review CBI during the course of reviewing draft regulations.)”

Part 8.4.1.1 – Added the following language: “You do not need to modify your SWPPP if 

the estimated dates provided for Part 8.2.4 change during the course of construction;”

Part 9

Part 9.2.1.2 – Added the following language: “You have removed and properly disposed 

of all construction materials, waste and waste handling devices, and have removed all 

equipment and vehicles that were used during construction, unless intended for longterm use following your termination of permit coverage;”

Part 9.2.1.3 – Made the following changes: “You have removed all stormwater controls 

that were installed and maintained during construction, includingexcept those that are 

not intended for long-term use following your termination of permit coverage;”

Part 9.2.1.4 – Made the following addition: “You have removed all potential pollutants 

and pollutant-generating activities associated with construction, unless needed for longterm use following your termination of permit coverage;”

Part 9.2.1.5 – Made the following changes: “If during your permit coverage, you installed 

and were responsible for the implementation of a stormwater control (e.g., sediment 

basin) that was designed to receive stormwater runoff from multiple sites, and 

construction at those sites is either ongoing or planned for the future, you must have 

transferred authority for maintenance of all such stormwater controls to another entity 

(e.g., another permitted operator) before you are eligible to terminate your permit 

coverage. In the transfer of authority, you must indicate that the entity now responsible 

for maintenance has obtained permit coverage for its portion of the construction 

activityYou must identify who is responsible for ongoing maintenance of any stormwater 

controls left on the site for long-term use following your termination of permit coverage; 

or”

Part 9.2.1.6 – Deleted the following requirement: “If you are subject to the long-term 

stormwater management requirements in Part 438 of the Energy Independence and 
Page 8 of 8

Security Act of 2007 for construction activities at a Federal Facility that has a footprint of 

5,000 square feet or more, you certify that such requirements have been met; and”

Part 9.2.1.7 – Deleted the following requirement: “If you are subject to the control 

requirements for stormwater discharges from newly developed, redeveloped, or 

developed sites in an applicable state, tribal, or local ordinance or other similar 

instrument, you certify that such requirements have been met; or”