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Response to Comment Document

Effluent Limitations Guidelines and Standards for the Construction and 

Development Point Source Category

Proposed Rule

EPA-HQ-OW-2010-0884

1.0 General Comments on Regulatory Text

Summary:

Many commenters supported the proposed changes to the rule. Some commenters offered suggested 

revisions to the proposed regulatory text, which are discussed below. Other commenters were not 

supportive of the proposed changes, or to specific components of the proposed changes. These 

comments are also discussed below. Many commenters were supportive of EPA proposing to remove 

the numeric turbidity standard, although some indicated that it would be preferable for EPA to 

completely remove those portions from the Code of Federal Regulations, as opposed to reserving those 

components.

Response:

EPA has responded to comments specific to each of the eight proposed revisions in the corresponding 

sections below. This response is for comments that were not specific to the eight proposed changes, but 

were rather of a more general or over-arching nature.

Some commenters remarked that EPA's revisions weaken the standards. EPA does not agree that the 

revisions weaken the standards, but rather the revisions provide additional flexibilities and/or clarity, as 

appropriate (see 74 FR 63017). In addition, allowing exemptions from certain provisions because those 

provisions are infeasible does not mean that the permittee is not required to implement any controls. 

EPA expects that permitting authorities will require the use of alternative controls that are feasible to be 

implemented. For example, in EPA's most recently issued Construction General Permit (CGP), if it is 

infeasible to provide and maintain an undisturbed natural buffer of any size on a site, the permittee can 

implement erosion and sediment controls that achieve the sediment load reduction equivalent to a 50-

foot undisturbed natural buffer. Other commenters affirmed this need for additional flexibility, 

particularly with respect to linear projects. The nature of construction activities is such that, for some 

sites, it may be cost-prohibitive or technologically impossible (i.e., infeasible) to implement a given 

requirement. In these cases, it is not EPA's intention to impose on permittees requirements that are not 

economically practicable and achievable (i.e., that are more stringent than the best available technology 

economically achievable or the best available demonstrated control technology). Rather, it is EPA's 

position that the revisions provide appropriate flexibilities with respect to the final rule requirements to 

accommodate unique, site-specific conditions that may arise with a small number of sites. In addition, 

permitting authorities have flexibilities in how they incorporate the final rule requirements into their 
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general and individual permits to accommodate such site-specific conditions. In some cases, EPA agrees 

in principle that the flexibilities included in the final rule may result in exempting certain projects from 

certain permitting requirements implementing the final rule provisions. However, the nature of 

construction site stormwater management is such that there are layers of controls in place, and 

therefore providing such exemptions for certain requirements in certain limited cases to reflect a sitespecific constraint will not result in a significant reduction in pollution control. EPA intends these 

exemptions to only apply in a limited number of cases, since permittees have choices in terms of when 

and how they choose to undertake construction activities and permitting authorities have discretion in 

terms of the types of construction activities that can be permitted and alternative practices that can be 

required if a specific control is deemed to be infeasible.

Some commenters remarked that EPA's revisions introduce additional ambiguity rather than provide 

clarification. They were concerned that this ambiguity may lead to increased compliance costs or 

litigation. EPA does not agree with this comment. As stated above, EPA has determined that additional 

flexibilities are warranted in some limited cases due to the site-specific nature of construction activities

(such as soil types, topographic or climatic characteristics, or other relevant factors (see 74 FR 63000, 

63011)). EPA has determined that, due to the inherent flexible nature of construction activities, the vast 

majority of projects can implement the final rule requirements. However, EPA also acknowledges that, 

due to a site-specific constraint, one or more of the requirements may be infeasible in limited 

circumstances. Rather than require permittees to implement technologically impossible or costprohibitive controls on these sites, it is appropriate to provide additional flexibilities for permittees to 

comply. EPA purposefully drafted the non-numeric effluent limitations to allow for flexibility in how the 

permitting authority implements the requirement in NPDES permits (see 74 FR 63016). EPA expects that 

permitting authorities will incorporate sufficient flexibilities in permits to allow permittees to select 

alternative controls that still provide effective pollutant management, while being more cost-effective.

One commenter requested that EPA provide additional studies to support the technical aspects of the 

rule. The record for the 2009 final rule contains numerous technical references describing the 

performance of controls (see, for example, Chapter 7 of the Technical Development Document). In 

addition, the record for the most recent EPA construction general permit (CGP) contains additional 

technical documentation supporting aspects of the rule as incorporated into the CGP, such as the 

Environmental Assessment (EA) for EPA's Reissuance of the National Pollutant Discharge Elimination 

System (NPDES) General Permit from Construction Activities (EPA-HQ-OW-2010-0782-0175), and the 

Response to Comments document (EPA-HQ-OW-2010-0782-0186). See the docket for the CGP 

reissuance for additional technical references related to performance of erosion and sediment controls.

Some commenters suggested that EPA does not have authority to regulate internal processes at or 

environmental concerns downstream from construction sites, and that EPA can only regulated the 

discharge of pollutants from the site to waters of the U.S. With respect to EPA’s authority to regulate 

internal processes, EPA does not agree with this comment. With respect to construction sites, erosion 

and sediment controls up-slope of the discharge point are an essential component of effective 

stormwater management that reduce the discharge of pollutants and have been a component of EPA 

and State construction general permits, and standard industry practice, for some time. See, for example,
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information in the record to the 2009 final rule specific to this topic (see EPA-HQ-OW-2008-0465-2124

through EPA-HQ-OW-2008-0465-2134). See also the preamble to this final rule. With respect to 

addressing downstream environmental concerns (in this case, erosion occurring downstream as a result 

of changes in flow regime as a result of construction activities), EPA has decided that it is more 

appropriate to consider downstream erosion on a site-specific water quality basis than in this nationally 

applicable, technology-based rule at this time, and thus made corresponding edits to that provision of 

the rule to limit applicability to the immediate vicinity of the discharge point.

********

Comments Addressed by this Response:

Clarification to the language is welcome and warranted, but the proposed revisions do more to weaken 

standards than make them clearer.

 

CICWQ supports the changes to the non numeric effluent limits proposed because it provides clarity and 

removes redundant wording in the rule. Additionally, the changes ensure interpretation of the provisions 

is consistent with a construction projects design and goals.

** **

LCRA believes applying rules that were designed for a conventional construction or development project 

to a linear electric utility transmission line construction project can create a situation where it is 

infeasible or cost prohibitive to comply with the rule. In particular, cost prohibitive requirements create a 

hardship not just for the regulated entity but also for ratepayers who ultimately bear the cost of 

compliance.

 

In general, several of the proposed amendments appear to be an attempt by the EPA to provide 

clarification of specific requirements contained within the 2009 Final Rule. However, in several instances 

EPA has not achieved this goal, and in some cases has increased the level of ambiguity of the proposed 

requirements. The concern exists that uncertainty within the EPA's C&D Rule will lead to further 

ambiguity and inconsistency in the interpretation of the proposed requirements at the state and local 

levels, and within the C&D industry. This could allow individual regulators or environmental nongovernmental organizations to argue that a particular developer is not complying with the rule and the 

construction general permit, even if the developer is following best practices -- leading to increased 

compliance costs and potentially expensive litigation. The majority of the comments that follow 

demonstrate the need for further clarification and simplification of the proposed requirement language.

** **

We also request the EPA provide support, in the form of appropriate studies, for the technical aspects of 

the proposed amendments.
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AGC supports EPA’s recognition of the fundamental principle that it can regulate only the “discharge of 

pollutants through point sources to waters of the U.S.” and agrees with the proposed amendments that 

are premised on these key facts. AGC supports EPA’s efforts to revise current provisions that wrongly 

imply that EPA can control “on-site” activities or even down-stream environmental concerns, neither of 

which could be directly related to the discharge of pollutants from point sources (in this case originating 

from active construction operations subject to NPDES permitting) to waters of the U.S.

** **

WDEQ finds the revisions to be minor, but positive changes to the original rule language. WDEQ supports 

the proposed changes.

 
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Comments on 450.11(b)

450.11(b) Infeasible. Infeasible means not technologically possible, or not economically practicable and 

achievable in light of best industry practices.

TOPIC RESPONSE

EPA received a number of comments on the proposed definition of infeasible. Some commenters 

supported EPA’s inclusion of a definition, while some did not. Some commenters offered specific 

revisions to the definition, while others requested that EPA provide additional examples of specific 

instances of where a given practice may be infeasible. Some comments requested that EPA incorporate 

an infeasibility condition into all of the requirements of the final rule, not just those where it is currently 

proposed.

EPA, in developing the rule language, incorporated an infeasibility provision into those requirements 

that are likely to be broadly applicable at most but not all sites due to site-specific considerations. These 

provisions are those that require buffers and directing stormwater to vegetated areas, preserving 

topsoil, and the use of surface outlets on basins and impoundments. EPA has determined that limiting 

the infeasibility provisions to only these three provisions is appropriate. All other requirements in the 

final rule are feasible at all construction sites. As stated by the Pennsylvania Department of 

Environmental Protection in comments, "there is such a variety of options available to the regulated 

community that there should rarely be a situation that would present a ‘not technologically possible’

project, and in the unlikely event that it does occur, then the site conditions may represent a project 

which is not be suitable for the construction or development activity.“ EPA agrees with this comment, 

except that the "not technologically possible" language applies to specific controls, not the overall 

project.

Permitting authorities, in developing their general or individual permits and design manuals, have the 

ability to identify specific BMP requirements reflective of the range of site-specific conditions necessary 

to comply with the final rule requirements. EPA has done just this in its most recently issued 2012 CGP. 

Individual Comments and Responses:

COMMENT

AASHTO agrees that including the definition of “infeasible” in the body of the proposed rule is vital to 

ensuring consistent application of this term nationwide. However, we are concerned that there are 

measures that may be technologically possible but not technologically practical. For example, it is 

technologically possible to cover the entire construction site with plastic sheeting, but this approach 

would not be technologically practical because it would not be possible to install and remove the plastic 

before and after rain events. Similarly, it may be technologically possible to construct a sediment basin at 

every outlet from the site, but grading constraints may make this impractical. Highway construction sites 

have complex staging and traffic handling requirements that render some approaches impractical. As 
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such, AASHTO recommends that the word “possible” be replaced with the word “practical” so that the 

revised language would state:

Infeasible means not technologically practical, or not economically practicable and achievable in light of 

best industry practices.

RESPONSE

EPA does not agree that "possible" should be replaced with "practical" in the definition of infeasible. The 

commenter provides two examples of where a practice may be possible but not practical. These 

examples are to cover an entire construction site with plastic sheeting or to construct a sediment basin 

at every outlet of the site. However, the C&D rule does not contain either of these requirements. The 

"unless infeasible" provision in the final rule is limited to three requirements: (1) buffers and directing 

stormwater to vegetated areas, (2) preserving topsoil, and (3) using surface outlets on basins and 

impoundments. Since the C&D rule does not require operators to cover an entire site with plastic 

sheeting or to install a sediment basin at every outlet, there is no need for a determination of whether 

such practices are "practical" at a site. Further, since the "unless infeasible" provision is limited to 

buffers and directing stormwater to vegetated areas, preserving topsoil, and using surface outlets, it is 

appropriate to use "technologically possible" instead of "technologically practical" in the definition of 

infeasible. Finally, the definition also includes reference to economically practicable which would likely 

apply to the hypothetical situation suggested by the commenter. 

** **

COMMENT

AGA respectfully requests that EPA clarify that an operator can demonstrate “infeasibility" on a sitespecific basis, consistent with how EPA has discussed “infeasibility” in the preamble to the C&D Rule and 

in several examples in the 2012 CGP.

RESPONSE

EPA does expect that operators will need to demonstrate infeasibility on a site-specific basis and will 

need to document such cases, for example in SWPPPs. Permitting authorities may also describe specific 

circumstances in their general permits related to infeasibility that may apply on a broader basis or may 

include specific provisions in individual permits.

 

COMMENT

AGA requests that EPA clarify that unique circumstances, such as emergency conditions or when projects 

are confined to limited rights-of-way or narrow corridors on larger multi-operator construction sites, 

could render pre-construction control requirements “infeasible” even if they were otherwise achievable 

under other operating conditions.
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RESPONSE

EPA does not agree that unique circumstances regarding infeasibility of controls should be described in 

the rulemaking. It is not reasonable for EPA to describe all such instances in the rulemaking. Permitting 

authorities have flexibility to acknowledge such conditions when developing their permits. See, for 

example, the EPA’s 2012 CGP description of coverage for emergency projects in Parts 1.2.1 and 7.2.3 as 

an example of permit language related to emergency projects. This approach also allows for changes to 

infeasibility criteria to be made more easily in the future as technologies and construction practices 

evolve, since permits are periodically updated and reissued.

** **

COMMENT

AGA believes the definition of “infeasible” should reference “best industry management practices” rather 

than “best industry practices” for consistency with industry terminology and to achieve consistency with 

the 2012 CGP’s reference to “BMPs” (best management practices).

AGA urges EPA to make these clarifications by modifying the definition of “infeasible” in the C&D Rule 

regulations and the 2012 CGP, or at least by including a clarifying explanation in a revised preamble to 

the final C&D Rule.

RESPONSE

EPA does not agree that the definition of infeasible should reference "best industry management 

practices" instead of "best industry practices." The definition of infeasible is broader in the context of 

referencing industry construction practices, which includes industry best management practices. EPA is 

not modifying the 2012 CGP at this time.

 

COMMENT

There are many circumstances in which a specific stormwater control requirement may be 

technologically “possible”, economically “practicable”, or otherwise “achievable” in light of best 

practices utilized on other construction sites, but may not be an appropriate, effective, or even necessary 

mechanism on a natural gas project site, because site-specific constraints, emergency conditions, or 

unique circumstances do not warrant installation of a specific control.

Gas utilities’ linear construction projects often take place under unique circumstances that should be 

explicitly recognized as a permissible basis for demonstrating the “infeasibility” of specific stormwater 

controls and the utilization of alternative BMPs. These unique circumstances include: gas utility work 

within larger construction sites with several other utilities and project operators; work in narrow, 

confined project corridors and rights-of-way such as highways; or, in limited easements on urban or rural 

private property. If gas utilities could not demonstrate that unique circumstances like a limited 
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construction footprint render certain construction-phase stormwater controls “infeasible,” they could be 

held responsible for expanding their work outside project boundaries to place controls on adjoining areas 

to which they have neither access nor ownership rights.

Therefore, AGA urges EPA to clarify how “infeasibility” may be assessed in emergency conditions, on 

multi-operator construction sites, or in the many other unique circumstances where gas utilities have a 

limited, temporary and confined construction footprint.

RESPONSE

EPA does not agree that unique circumstances regarding infeasibility of controls should be described in 

the rulemaking. It is not reasonable for EPA to describe all such instances in the rulemaking. Permitting 

authorities have flexibility to acknowledge such conditions when developing their permits. See, for 

example, the EPA’s 2012 CGP description of coverage for emergency projects at 1.2.1 and 7.3.2 as an 

example of permit language related to emergency projects. In addition, the infeasibility provision applies 

only to three requirements in the rule: buffers and directing stormwater to vegetated areas, 

preservation of topsoil, and surface outlets. The rule, as written, allows for gas utility projects to 

demonstrate infeasibility of these provisions, as it allows for all projects. EPA is not expanding the 

infeasibility provision to additional requirements for gas utility projects.

** **

COMMENT

AGA members have noted that permitting authorities implementing the NPDES program do not have a 

universal understanding of why a specific control may be infeasible for a given site or situation, and that 

the burden is on the permittees to constantly revisit what is “infeasible” because the current stormwater 

permitting regime does not provide sufficient guidance on what EPA might consider “infeasible”. AGA 

believes our requested clarifications to the definition of “infeasible” will bring needed direction to the 

exercise that permittees and permitting authorities undertake to determine “infeasibility”.

RESPONSE

EPA does not agree that additional clarifications regarding infeasibility are necessary. The burden is and 

will continue to be on the permittee to demonstrate infeasibility as the permittee has first-hand 

knowledge of their construction projects. EPA has provided sufficient guidance in the final rule’s

preamble and record regarding the types of cases where an infeasibility determination may be 

appropriate. Permitting authorities may provide additional information in their permits and may update 

this information as permits are periodically revised and reissued. 

 

COMMENT

ADOT concurs with AASHTO that while some control measures may be possible, applying practicality to 

the requirement is most beneficial in a desert environment where sediment transport and wind-blown 
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dust are very much functions of nature; often dust and sediment are blown into the ADOT rights-of-way 

from adjacent agricultural and mining lands.

RESPONSE

The infeasibility provision only applies to requirements for buffers and directing stormwater to 

vegetated areas, topsoil preservation, and surface outlets. Wind-blown dust and sediment transport 

from adjacent lands that are subsequently discharged by the permittee are the responsibility of the 

permittee. See above response to AASHTO’s comment re “technologically impractical” instead of 

“technologically impossible.”

** **

COMMENT

While many states support and appreciated this important clarification, a few states expressed concerns 

regarding the term itself. Those states proposed the term “maximum extent practicable”, which already 

has a legal foundation and legal history associated with it. States also support EPA providing clarity and 

examples regarding soil compaction, soil stabilization, and the need to maintain, or not maintain, top soil 

depending on the construction application. 

RESPONSE

EPA appreciates commenter's suggestion that “maximum extent practicable” (MEP) be used instead of 

the definition of infeasible included in the C&D rule. EPA has determined that the definition in the final 

rule, which was derived from the CWA, the EPA’s Multi-Sector General Permit (MSGP), and the EPA’s

CGP, is an appropriate definition for an effluent guideline where availability of a technology and 

economic achievability are primary factors in the context of a Best Available Technology Economically 

Achievable (BAT)/New Source Performance Standard (NSPS) standard. EPA has provided examples of 

appropriate practices in the preamble to the proposed rule and in the record that permitting authorities 

can consult when developing permits. EPA acknowledges commenters' support for EPA providing 

examples regarding rule requirements.

 

COMMENT

We agree with EPA’s description contained in the preamble, and we support including a definition of 

what EPA means by infeasible in the rule to provide clarity and consistency for permittees. However, we 

do not support EPA’s new definition of infeasible found at 40 CFR 450.11(b). EPA’s revised definition of 

infeasible at 40 CFR 450.11(b) is vague and provides a weaker standard than the description of EPA’s 

intended meaning of infeasible found within the Preamble of the 2009 ELG. The revised definition fails to 

place the burden of proving infeasibility on the discharger, as was previously the case, and provides less 

clarity to State Administrators as to what is “best industry practice.” We respectfully request that EPA 
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remove the revised definition of infeasible located at 40 CFR 450.11(b), and replace it with the original 

explanation of infeasible provided in the preamble of the 2009 Construction ELG.

RESPONSE

EPA disagrees that the definition of infeasible contained in the rule is vague. Although not contained in 

the definition, the burden to prove infeasibility is with the permittee and EPA expects that permittees 

will document the rationale for claiming infeasibility in their SWPPPs or in other documents. EPA also 

expects that permitting authorities may include additional descriptions of instances where an 

infeasibility determination may be appropriate in their general permits (as EPA did in its 2012 CGP), and 

will describe alternative practices that may be appropriate in these cases. See for example the EPA’s 

2012 CGP, which describes use of alternative sediment controls in the context of requiring buffers.

** **

COMMENT

EPA’s proposed definition of the term infeasible is necessary because the ELG did not provide a definition, 

and the ELG rule language included the term ‘infeasible’. The proposed definition of infeasible is 

consistent with EPA’s recently issued Construction General Permit.

RESPONSE

EPA appreciates comment in support of and on the necessity of the definition. No further response 

needed.

 

COMMENT

...the definition as proposed does not provide the guidance needed for those who must comply with these 

regulations.

The two parts to the definition are that complying with a regulation would be infeasible if it is 

“technically infeasible” or “cost-prohibitive.” The first of these could be improved by changing it to 

“technically questionable.”

The second part is clear, but could perhaps be improved by adding the following clarification: “Costprohibitive does not mean the mere reduction in profit, but rather an economic burden so high that a 

project cannot be undertaken without losing money.”

RESPONSE

EPA does not agree that the definition of infeasible fails to provide the necessary guidance for 

compliance. EPA has provided examples of cases where the requirements with an infeasibility provision 

may be appropriate in the preamble to the proposed rule and in the record (see for example discussion 

of cases where preserving topsoil may be infeasible and cases where stabilization may be infeasible, at 
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78 FR 19439; ). EPA also does not agree with suggested edits to the definition of infeasible. "Technically 

questionable" is a lower standard than "not technologically possible," which is the standard in the final 

rule. "Technically questionable" is also a vague and subjective standard. EPA also does not agree with 

the comment to add a cost-prohibitive description to the definition of infeasible. Economically 

practicable and achievable is the appropriate terminology, which is derived from the CWA and EPA’s

MSGP and CGP.

** **

COMMENT

The rulemaking’s preamble mentions “site specific constraints” relative to infeasibility. The definition 

doesn’t address the situation faced where compliance (e.g., infiltration under inappropriate conditions) 

could actually backfire and be detrimental to the receiving water. It should say: “Infeasible means not 

technologically possible, or not economically practicable and achievable in light of best industry 

practices, or where compliance would have detrimental effects.”

RESPONSE

EPA does not agree that the definition of infeasible should include a term related to compliance having 

detrimental effects with respect to infiltration. The requirement at 450.21(a)(6) states that infiltration 

should be maximized in order to reduce pollutant discharges. If such a case were to exist whereby 

infiltration would be detrimental with respect to pollutant discharges, such as where contaminated soils 

exist, then this would be a reasonable exemption for permitting authorities to allow for that particular 

case since in that instance, infiltration would not result in maximizing pollutant discharges. However, 

these cases are best handled on a site-specific basis through consultation with the permitting authority

rather that attempting to define all of these cases in advance. EPA expects that infiltration of 

stormwater will be appropriate and will reduce pollutant discharges on the vast majority of construction 

sites.

 

COMMENT

However, the text proposed differs from the text found in the preamble to the C&D rule in a way that 

appears to employ a lower standard while failing to clarify the intent.

EPA proposes to alter this definition by stating that “[i]nfeasible means not technologically possible, or 

not economically practicable and achievable in light of best industry practices.” EPA’s initial description 

of infeasible being cost prohibitive would be a higher standard than “not economically practicable.” The 

City therefore urges that EPA continue to use the language of found in the 2009 preamble.

Additionally, EPA introduces ambiguity into the definition by also stating that “infeasible” includes items 

not “achievable in light of best industry practices.” This condition is not defined and could be overly 

broad. Again, the proposed change would establish a lower standard than “cost prohibitive.” In order to 
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be more protective of water quality, it is suggested that this reference to “best industry practices” be 

eliminated from the definition.

RESPONSE

EPA disagrees with this comment. Economically practicable and achievable is the appropriate 

terminology for this definition, which is derived from the CWA and EPA’s MSGP and CGP. Also, the 

inclusion of "best industry practice" recognizes that effluent limitations guidelines are technology based, 

and are based on the performance of the best available technology economically achievable and the 

best demonstrated available control technologies for new sources. Therefore, it is appropriate and 

consistent with the CWA to reference best industry practices in the context of the definition of 

infeasible.

** **

COMMENT

PADEP is strongly opposed to this addition. This term, as introduced in the ELG Rule, creates an 

opportunity for the regulated community to petition or EPA or delegated state programs for their 

regulatory requirements to be relieved. State programs such as PADEP's, have no mechanism prescribed 

in existing regulations to allow them to do so. Not only does PADEP oppose inclusion of the definition 

itself, we are also strongly opposed to its use in all instances throughout the rule. Permitting the 

regulated community to use the term "infeasible" as justification to not follow federal or state 

requirements specifically based on conditions of a project being "not economically practical" is not 

acceptable in Pennsylvania nor is it acceptable under the Clean Water Act especially for proposed 

discharges to special resource waters, impaired waters, or impaired waters with approved TMDLs. 

PADEP's Manual provides the regulated community with a suite of BMPs available to address the 

universe of possible site conditions found within the Commonwealth with regard to earth disturbance 

projects. In addition, potential operators of construction or development activities may propose 

alternative design standards or BMPs which demonstrate that the alternate BMP or design standard 

minimizes accelerated erosion and sedimentation during and after the completion of earth disturbance 

activities to achieve the regulatory standards. Further, there is such a variety of options available to the 

regulated community that there should rarely be a situation that would present a "not technologically 

possible" project, and in the unlikely event that it does occur, then the site conditions may represent a 

project which is not be suitable for the construction or development activity. The proposed addition of 

"not economically feasible" leaves the regulated community with an ambiguous argument or 

expectation that implementation of BMPs at any project will cost too much to meet these federal or 

state regulatory requirements. Finally, PADEP does not currently have staff with the expertise to evaluate 

a claim of economic infeasibility, and inclusion of such a provision in the regulation would present 

significant administrative and legal challenges. In the alternative, PADEP suggests EPA instead consider 

use of the term "to the maximum extent practicable" as this is a term of art that is used in other NPDES 

permitting contexts.
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• The term "technologically possible" does not appear to be necessary in the proposed 

requirement. The realm of "possible" practices and technologies available for the effective 

management of construction site runoff is not expected to be the limiting factor in determination 

as to whether or not meeting one of the requirements is "infeasible." The cost of implementing 

certain practices and technologies, or combinations thereof, is expected to be the lead 

determination of "infeasible." More succinctly: technologies that are not technologically possible 

are de facto not economically practicable and achievable.

• The terms "practicable" and "achievable" are synonymous and redundant. The requirement 

should be revised to include the phrase "economically practicable" or "economically achievable" 

and a clear definition of the phrase should be provided.

• The proposed requirement includes the phase "best industry practices"; however, the definition 

of this phrase is not provided in proposed amendments or in the 2009 Final Rule. Additionally, it 

is unclear as to what "industry" this term is referring (i.e., the C&D industry, the storm water 

industry, etc.). EPA should also recognize that "best industry practices" in one geographic region 

may be very different than those in another geographic region because of climate, slopes, soils, 

and many other site-specific factors.

The requirement in the 2009 Final Rule indicated that "[t]he burden is on the permittee to demonstrate 

to the permitting authority that the requirement is infeasible." However, this phrase has been omitted in 

the proposed requirement and it is unclear whether the burden is still on the permittee. Additionally, it is 

recommended that example scenarios or guidance for the determination of "infeasible" be provided for 

each of the existing and proposed requirements to which this term applies.

RESPONSE

EPA appreciates the comment regarding applicability of the "unless infeasible" language and the 

potential burden associated with implementing this requirement. EPA has addressed this concern by 

applying the "unless infeasible" criteria only to a limited subset of the requirements contained in the 

rule -- it applies to only three and does not apply to the remaining rule requirements. Specifically, this 

language only applies to buffers and infiltration of stormwater, preserving topsoil, and the use of surface 

outlets. EPA recognizes that these requirements require additional consideration since EPA expects that 

there will be limited circumstances where these requirements would not be technologically feasible on a 

specific construction site or where their use would not be economically practicable. In the case of 

buffers, it may be impossible to maintain a vegetated buffer on a site that is building a port, since the 

port would be directly adjacent to the waterbody. If there were not exemptions provided from the 

buffer requirement, then it would be impossible to build the port adjacent to the water body. In the 

case of preserving topsoil, it may be infeasible to preserve topsoil on a project that constructs a parking 

lot that consumes the entire footprint of disturbance since there would be nowhere to place the 

preserved topsoil on-site. Use of the topsoil off-site would be a more appropriate practice. In the case of 

surface outlets, it may be infeasible to utilize a surface outlet such as a skimmer on a project during 

periods of time when the surface of the basin is frozen. Therefore, EPA has determined that an "unless 

infeasible" provision is necessary and appropriate for these requirements in such limited cases. This 

requirement also does not preclude the permitting authority from specifying alternative or additional 

BMPs to be implemented in cases, for example, where a buffer is not possible or not economically 

practicable and achievable, as EPA did in its 2012 CGP. For example, the permitting authority may 
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require the use of additional perimeter controls, such as filter berms, adjacent to the water body in 

these cases. EPA agrees that the nature of construction activity allows for alternative controls to be 

utilized where a specific control cannot be, and that some degree of flexibility is needed for these 

specific control measures.

EPA asserts that the adoption of the “unless infeasible” language is not in conflict with the state’s use of 

a BMP manual to define standards for stormwater practices. EPA emphasizes that the “unless 

infeasible” language is only used in the regulation in connection with the requirements for providing 

natural buffers and directing stormwater to vegetated areas, preserving topsoil, and designing surface 

outlet structures for sediment basins and impoundments. It is not clear from the comment whether the 

state’s BMP manual includes standards for these same practices. However, assuming that it does, the 

state’s adoption of specific requirements covering these practices is the equivalent of the state defining 

what is considered to be technologically possible, or economically practicable and achievable in light of 

best industry practice. Therefore, where a BMP manual defines, for example, where and under what 

conditions natural buffers must be provided during construction, this should be viewed as consistent 

with EPA’s requirement in 40 CFR 450.21(a)(6) to provide and maintain natural buffers around waters of 

the U.S., unless infeasible. At the same time, where a BMP manual defines circumstances under which 

providing a natural buffer is not necessary or feasible, the manual would be providing sites with the 

equivalent of the “unless infeasible” flexibility in the regulations. 

EPA also does not agree that economic practicability cannot be utilized in the context of an effluent 

guideline. Indeed, economically achievability (and by extension practicability) is an integral part of a BAT 

determination. While EPA agrees that special considerations may be appropriate for discharges to 

impaired waters, special resource waters or waters with TMDLs, there are other requirements (such as 

Section 404 permits) for construction in or adjacent to waters of the United States and water qualitybased effluent limitations to meet water quality standards that address such situations. The effluent 

guideline’s technology-based provisions, as incorporated into permits, constitute only one layer in the 

array of programs that address construction activities and their impact on water quality.

EPA disagrees with the comment suggesting that the term "not technologically possible" is unnecessary 

in the definition of infeasible. As described above, it may not be technologically possible to preserve a 

natural buffer on a port construction project because the port would be immediately adjacent to the 

water body. While EPA acknowledges that a requirement that is not technologically possible is likely also 

not economically practicable or achievable, both standards are nonetheless necessary in the definition 

of infeasible since they may be applied independently. 

While EPA acknowledges that the terms practicable and achievable are related, EPA does not agree that 

the terms are synonymous and redundant. 

EPA has not provided a definition of what constitutes "best industry practice" because what constitutes 

best industry practice is likely to change over time as the construction industry develops new and 

revised management practices and as construction practices change. EPA agrees with commenter that 

best industry practice may vary geographically or based on other factors. EPA does mean the 

construction and land development industry in the context of this rule. 
January 17, 2014

Page 15 of 52

EPA has not stated in the rule that the burden is on the permittee to demonstrate infeasibility, but EPA 

does expect that permittees will need to provide documentation or some rationale as to why a specific 

provision is infeasible in SWPPPs or other documents. Permitting authorities would then have the ability 

to determine if the infeasibility claim being made by the permittee is appropriate.

 

COMMENT

The sentence "The burden is on the permittee to demonstrate to the permitting authority that the 

requirement is infeasible." which was included in the definition of infeasible in the preamble was omitted 

from the definition in the rule. The omission of this sentence does not follow through with the intent of 

putting the burden of proof on the permittee to show that a requirement is not technologically possible 

or economically practicable. With the proposed definition, the burden of proof would fall on the 

permitting authority to prove if a requirement is not technologically possible or economically practicable 

and achievable in the case of an enforcement action. This would be a very large burden on permitting 

authorities and seems contradictory of the intent of the definition in the preamble.

RESPONSE

EPA has not stated in the rule that the burden is on the permittee to demonstrate infeasibility, but EPA 

does expect that permittees will need to provide documentation or some rationale as to why a specific 

provision is infeasible in SWPPPs or other documents. EPA does not agree that not having this stated in 

the definition means that the burden is on the permitting authority. EPA expects that permitting 

authorities will include appropriate language in their permits or alternative BMPs to be implemented in 

cases of infeasibility. But the ultimate burden on proving infeasibility is on the permittee.

** **

COMMENT

As a threshold matter, Spectra suggests that the "infeasible" definition should be applied globally, such 

that none of the controls permittees must implement would be required where they are infeasible under 

EPA's proposed definition.

RESPONSE

EPA does not agree that the "unless infeasible" criteria should be applied more broadly. As described 

previously, EPA has limited this criterion to three such appropriate requirements. See responses to 

comments above.
January 17, 2014

Page 16 of 52

Comments on 450.21(a)(1)

450.21(a)(1) Control stormwater volume and velocity to minimize soil erosion in order to minimize 

pollutant discharges;

COMMENT

AASHTO agrees with linking this provision to the control of pollutant discharges from the site. Although 

site runoff volume and velocity may influence the erosion of soils, these are only two of many variables, 

such as land cover, conveyance type, land slope, soil type, rainfall intensity, and drainage area that 

impact soil erosion. In many cases, stormwater volume and velocity may not contribute or may not be 

the primary contributor to pollutant discharge. Further, accepted industry practice is to focus on 

stormwater management rather than control. As such, AASHTO recommends deleting “volume and 

velocity” and adding the more general term “manage stormwater” so the language would state:

Manage stormwater to minimize soil erosion in order to minimize pollutant discharges.

RESPONSE:

EPA agrees that there are many factors that influence erosion of soils. However, EPA disagrees with the

comment that the "volume and velocity" term should be omitted from the final rule. Erosion and 

associated transport and discharge of eroded sediment are affected by both the total volume of 

stormwater as well as the velocity of the stormwater. This is due to increases in flow duration resulting 

from the increased runoff volumes, as well as the increase in peak flowrates that result when vegetation 

is removed and soil is compacted during construction. By requiring permittees to manage both total 

volumes as well as velocity of flows, reductions in both the magnitude and duration of erosive flows are 

accomplished. Keeping this provision as is allows permitting authorities to develop appropriate 

volumetric standards and incorporate those requirements into permits. EPA appreciates commenters'

distinction between the words “manage” and “control”, but EPA does not see the distinction in this 

case. Both words, in the context of this requirement, compel the permittee to take action, in the form of 

installing practices or designing site attributes, to address erosion due to flowing water. This translates 

into control of the discharge, which is appropriate since EPA is establishing best practicable control 

technologies, best conventional pollutant control technologies, best available control technologies and 

new source performance standards through this effluent guidelines rulemaking. Therefore, EPA is not 

incorporating the suggested language change into the final rule.

 

COMMENT

EPA suggests eliminating the “within the site” language in 40 C.F.R. § 450.21(a)(1), a provision which 

requires permittees to control stormwater volume and velocity to minimize erosion. Without this “within 

the site language,” gas utilities may be held responsible for installing controls beyond the corridor of 

their limited, temporary earth-disturbing activities if they were not able to demonstrate “infeasibility” on 

the basis of site-specific, unique circumstances.
January 17, 2014

Page 17 of 52

RESPONSE:

EPA notes that the "within the site" language is not necessary for this provision, since by definition this 

regulation applies to stormwater discharges that are discharged from the construction site to waters of 

the U.S. All pollutant discharges within the meaning of EPA’s requirement originate from the 

construction and/or land disturbing activities occurring within the site, or are caused by discharges 

leaving the site (such as a discharge from a pipe outlet causing erosion in the immediate vicinity of the 

point of release from the outlet). EPA does not agree with the implicit suggestion by the commenter 

that installation of controls "beyond the corridor of their limited, temporary earth disturbing activities" 

may not be required by permitting authorities. Indeed, installation of down-slope controls may be 

necessary in some cases if upslope controls are not feasible, such as due to limited space, and such 

down-slope controls are necessary to control the discharge of pollutants from the site to waters of the 

U.S. Infeasibility of installing a particular control does not absolve the permittee of responsibility to 

control their discharges overall. Rather, the permittee is required to design, install and maintain 

appropriate controls to manage their discharges. As noted by the Pennsylvania Department of 

Environmental Protection (PADEP) in comments, the inherent flexibility in construction site stormwater 

controls means that if a permittee is unable to implement a particular control due to a site-specific 

consideration, there are generally alternative controls that can be implemented. After all, the permittee 

is undertaking construction activities, and has the ability to design and construct appropriate controls 

with consideration of any constraints or to utilize activities, such as phasing of land disturbance, to 

address constraints that may arise during construction. If not, as noted by PADEP, then perhaps a given 

construction activity should not be permitted to take place if the permittee is unable to manage its

discharges. Site-specific constraints may increase costs for a particular project, but generally do not 

mean that it is infeasible to control stormwater and associated pollutant discharges. These site-specific 

considerations can be addressed in permit applications and SWPPPs and through consultation with the 

relevant permitting authority. 

EPA notes that it has included appropriate flexibility for the limited number of requirements (i.e., buffers 

and infiltration, preserving topsoil, and surface outlets) where there may be site-specific constrains such 

that a given requirement could be deemed infeasible. Commenter seems to believe that the infeasibility 

provision applies more broadly. It does not. The infeasibility provision only applies to three 

requirements: buffers and infiltration of stormwater, topsoil preservation, and the use of surface 

outlets.

** **

COMMENT

While the stated intent is to “link” the control of soil erosion to the discharge of pollutants, the wording 

could still be seen as ambiguous.

One could interpret the requirement as either applying to (1) any soil erosion that may lead to a greater 

discharge of pollutants from the entire site, or (2) only erosion where the erosion itself contributes 

additional pollutants to the discharge from the site. The difference is important. The first interpretation 
January 17, 2014

Page 18 of 52

allows permitting authorities to control storm water to minimize soil erosion at any location which may 

increase overall pollutant discharge from the site as a whole. The second only allows authorities to 

require controls when erosion from that particular area would contribute its own pollutants to the site’s 

discharges. The EPA’s own clarification of the requirement seems to lend itself to the latter.

This potential interpretation would exempt soil erosion controls from areas which may not contribute 

additional pollutants, but may still reduce the effectiveness of controls in other areas of the site. Further, 

if erosion control is limited to those areas where pollutant discharge is predicted, fewer areas of the site 

will have such controls. Therefore when unforeseen severe weather events occur, greater amounts of 

pollutants will be discharged into waterways than would have had erosion controls been implemented at 

all areas of the site.

While cost is of primary concern for the industry, it must be noted that the “best practicable technology” 

(BPT) standard is being applied.4 Therefore, a cost-benefit analysis is already applied to all provisions 

subject to revision which will account for undue or overly burdensome costs to the industry.

RESPONSE:

EPA does not see the distinction between the two cases described by commenter. The rule requirement, 

as written and finalized, requires permittees to control stormwater volume and velocity to minimize 

erosion and subsequent pollutant discharges. The requirement applies to all areas of the site where 

water flows and can erode soil that is subsequently discharged.

EPA does not agree that a BPT standard means that a cost-benefit analysis has been applied. See 

relevant discussion of BPT in the preamble to the rule.

 

COMMENT

This is too prescriptive. There are certainly other means to control erosion to minimize pollutant 

discharge without controlling volume and velocity. Language should be rewritten as “Control soil erosion 

in order to minimize pollutant discharges,” or “Control erosion for flow rates, volumes and velocities 

expected during construction to minimize pollutant discharge.”

RESPONSE:

EPA agrees that there are other means to control soil erosion to minimize pollutant discharge, and 

indeed the rule does contain such requirements (for example, the soil stabilization requirements). 

However, EPA does not agree that the requirement at 450.21(a)(1) is too prescriptive. This provision 

specifically addresses erosion caused by, for example, high flow rates and increases in flow duration 

resulting from the increased volume of runoff that may result at a construction site following alteration 

of site conditions (such as removal of vegetation and compaction of soil). Therefore, EPA does not agree 

that this requirement is too prescriptive, and instead finds this requirement to be a necessary 

component of stormwater management at construction sites. See the numerous studies in the record 
January 17, 2014

Page 19 of 52

for the 2009 final rule describing increases in soil erosion due to flowing water over disturbed soil areas 

and in conveyances as evidence for the need for such a requirement. Also see the supplemental 

information contained in the 2009 final rule docket (EPA-HQ-OW-2008-0465-2124 through 2134) and 

the revised comment response document for the 2009 final rule (EPA-HQ-OW-2008-0465-2135).

** **

COMMENT

At the same time we disagree with certain aspects of the description found in the preamble. NAHB 

believes that EPA’s previous regulatory language exceeded its authority because the Agency only has 

authority over discharges of pollutants; it may not regulate the internal processes of a facility. By 

requiring operators to control erosion within the site the Agency was regulating the internal process of a 

construction site. The new regulatory language prevents the agency from exceeding its statutory 

authority by tying the control of volume and velocity to actual discharges.

Overland flow that has not been channelized is simply sheet flow, and does not fall within EPA’s section 

301 authority.

RESPONSE:

EPA does not agree that the EPA lacks authority to promulgate non-numeric effluent limitations that 

regulate internal processes at construction sites in order to control and minimize the discharge of 

pollutants to surface waters. See the discussion in the preamble for references to case law on this topic.

EPA does not agree that all overland flow is sheet flow. Overland flow in the context of a construction 

site is generally water that runs across disturbed land after rainfall (although overland flow can also 

occur on a construction site where water pumped from dewaterating activities, groundwater that 

emerges from the ground on a cut slope, or where a discharge or seepage through berms or sediment 

controls flows over land). Sheet flow is a subset of overland flow, specifically overland flow that is not 

concentrated into channels larger than rills. But such flow can be and is concentrated into rills and 

channels as flow velocity increases - this flow is still overland (e.g., not in a pipe) and is no longer sheet 

flow, but rather is a pollutant discharge from a point source. Therefore, EPA may regulate such 

discharge under the CWA.

 

COMMENT

... focus on volume control in terms of volume reduction-for the purposes of minimizing erosion during 

the construction phase is not commonly a primary design objective in the development of a SWPPP. 

Additionally, in some cases minimization of infiltration is essential for construction (e.g., for slope 

stability or during retaining wall construction). Furthermore, dewatering is a necessary part of many 

construction projects
January 17, 2014

Page 20 of 52

EPA provided references to the Virginia Erosion and Sediment Control Handbook and in last paragraph of 

Section II.B.2.a. provides a hypothetical example that includes the conclusive statement "[t]herefore, 

reducing the volume and velocity of stormwater, which reduces the amount of erosion, can directly 

reduce the quantity of sediment and associated pollutants that are discharged." It is recommended that 

EPA provide studies in support of this recommendation rather than references to state or non-EPA 

guidance documents and hypothetical scenarios.

RESPONSE:

EPA disagrees that control of volume is not a primary consideration of construction activities in order to 

minimize pollutant discharges. Indeed, it is common industry practice to install sediment basins 

downslope of large disturbed areas due to the increased volume of stormwater produced. During 

construction, removal of vegetation and compaction of soil typically results in an increase in runoff 

volumes because interception of precipitation by vegetation and capture and infiltration of precipitation 

is reduced due to soil compaction and changes in soil structure, such as removal of organic material. This 

increased runoff volume results in increased flow rates as water flows concentrate downslope. 

Therefore, channels and other conveyances, as well as storage practices such as sediment basins, must 

be designed with consideration of factors such as increased runoff volumes and velocity of stormwater. 

Otherwise, the increased volume, flow rates and duration of elevated flows can cause significantly 

increased rates of erosion and subsequent discharge of pollutants. As a result, EPA's inclusion of 

requirements to control runoff volume and velocity is appropriate and reflective of BAT and BDACT.

See the docket for the 2009 final rule for numerous studies indicating the relationship between 

increased erosion and increased pollutant discharge from construction sites, and the effectiveness of 

various practices in removing sediment and other pollutants from construction site stormwater. Many of 

these studies are described and referenced in Chapter 7 of the TDD.

** **

COMMENT

When the sites are inspected by SDDENR personnel, evidence of soil erosion is examined on the site, not 

the volume and velocity of the runoff that caused the soil erosion. It is difficult to quantify the volume

and velocity from one event to another, especially after the fact. This would put a burden on the 

permitting authority to prove if volume and velocity was properly controlled on a site, which would be 

very difficult to prove.

Also, SDDENR has no authority over drainage. The drainage laws in South Dakota require drainage to be 

regulated at the local level, so SDDENR would have a difficult time enforcing violations of this rule. 

Removing the phrase "within the site" could lead to interpretations of the rule that could make 

permittees responsible for waters down gradient of their site where the site storm water discharge has 

intermingled with other storm water. Removing the phrase "within the site" would create ambiguity as 

to what the permittee is responsible for.
January 17, 2014

Page 21 of 52

RESPONSE:

EPA's regulation does not require quantifying the volume and velocity of runoff from one event to the 

other. Rather, the controls implemented at the site must be designed, installed and maintained with 

consideration of these factors. Evaluation of designs and sizing of practices in SWPPPs is one example of 

a way in which permitting authorities may determine if consideration of volume and velocity of flows 

has been accomplished. Also, evidence of insufficient control of volume and velocity could be 

established during inspections, considering factors such as erosion in channels and on slopes, sediment 

discharge downslope of the construction site, evidence of flows bypassing sediment controls, etc. Thus, 

commenters' statement that inspectors look for evidence of soil erosion is directly related to 

determining if volume and velocity of stormwater has been addressed. Evidence of erosion in channels, 

erosion on slopes, and deposition of sediment in receiving waters would be examples of instances of 

where volume and velocity of stormwater may not be adequately controlled.

As to authority over drainage, implementation of this requirement does not require such authority. As 

described above, consideration of designs in SWPPPs as well as inspection of construction sites can be 

used to determine if the permittee is adequately controlling volume and velocity of stormwater. This 

requirement also meshes with the requirement at 450.21(a)(2), minimization of channel and stream 

bank erosion in the immediate vicinity of discharge points, as well as 450.21(a)(6) with respect to 

maximizing stormwater infiltration. With respect to channel and stream bank erosion, design of upslope conveyance and storage practices is a critical element of managing the peak flow rate and flow 

duration of discharges. With respect to maximizing stormwater infiltration, consideration of what flows 

can be directed to vegetated areas to allow for infiltration is also a critical design element. Proper 

implementation of these three regulatory requirements at 450.21(a)(1), (a)(2) and (a)(6) will require 

consideration of site topography, the timing of land disturbances, and the quantity, flow rate and 

duration of flows, as well as other factors, likely to be encountered during the period of construction 

activity.

As described earlier, removal of the "within the site" language does not cause ambiguity because the 

rule by definition applies to the construction activity and the discharges from the construction activity. 

Consideration of how the discharges from construction sites combine with receiving water flows and 

potentially contribute to downstream impacts is an important consideration for permittees and 

permitting authorities when designing controls for construction sites in the context of achieving water 

quality standards and the antidegradation provisions of the Clean Water Act.

 

COMMENT

Industry petitioners have argued – and AGC supports the finding – that the current C&D ELG text at 

450.21(a)(1) exceeds EPA’s authority because the Agency only has authority over discharges of 

pollutants; it may not regulate the internal processes of a facility. By requiring operators to control 

erosion within the site, EPA is in effect regulating the internal process of a construction site. The new 
January 17, 2014

Page 22 of 52

regulatory language keeps the Agency from exceeding its authority by tying to the control of volume and 

velocity to actual discharges.

RESPONSE:

See earlier response regarding EPA's authority to promulgate effluent limitations that regulate internal 

processes at construction sites in order to control and minimize the discharge of pollutants to surface 

waters.
January 17, 2014

Page 23 of 52

Comments on 450.21(a)(2)

450.21(a)(2) Control stormwater discharges, including both peak flowrates and total stormwater 

volume, to minimize channel and streambank erosion and scour in the immediate vicinity of discharge 

points;

COMMENT

AASHTO supports the clarification of permittee responsibility for erosion only in the “immediate vicinity 

of discharge points.” Many stream systems are subject to general scour (lowering of the streambed over 

long reaches due to head cuts and changes in hydrology controls) due to urbanization in the watershed 

or other alterations that can cause hydromodification, such as manmade reservoirs. To clarify that this 

proposed language would not hold permittees responsible for general scour, AASHTO recommends that 

erosion at storm drain outfalls be more accurately characterized as “local scour” (scour that occurs at 

local erosion control devices) rather than channel and stream bank erosion, which are normally discussed 

in the context of general scour. In addition, controlling local scour is generally not related to volume 

control and may not relate to peak flow. Accordingly, AASHTO proposes that the language be revised to 

read:

Manage stormwater discharges to minimize local scour in the immediate vicinity of discharge points.

RESPONSE:

This requirement as proposed requires control of stormwater discharges to minimize channel and 

streambank erosion in the immediate vicinity of discharge points. Commenter requests that EPA change 

this requirement to use the term "local scour" as opposed to "channel and streambank erosion."

Commenters' reason was that local scour represents erosion that occurs at storm drain outfalls, and not 

erosion that occurs as a result of upstream changes in watershed hydrology. 

EPA notes that the requirement at 450.21(a)(2) is complementary to the requirement at 450.21(a)(1). 

The requirement at 450.21(a)(1) addresses erosion occurring within the site that leads to a discharge of 

pollutants. This would include erosion in channels and conveyances downslope of sediment basins or 

where a slope drain empties into a conveyance channel, for example, but prior to the discharge point. 

Erosion at these locations would mobilize additional sediment that would be discharged from the site 

absent additional sediment controls downslope (or to state this in another manner, a sediment control 

device would be needed downslope of a sediment basin if the water flowing out of the sediment basin 

caused erosion prior to being discharged from the site. This illustrates the need for proper management 

of flows in order to eliminate re-introduction of pollutants prior to discharge). The requirement at 

450.21(a)(2) addresses erosion in the receiving water body’s channel or streambank in the immediate 

vicinity of the discharge point. This requirement is intended to control erosion that may occur if factors 

including peak flowrates and total stormwater volume of discharges from the site are not properly 

managed, or if discharges are introduced into the receiving water in such a manner or in such a quantity 

as to cause destabilization and/or erosion in the receiving water’s channel or streambank. It would make 

little sense to remove pollutants from stormwater from a construction site prior to discharge only to 
January 17, 2014

Page 24 of 52

discharge that water into the receiving water in such as manner as to cause erosion and mobilization of 

pollutants in or next to the receiving water. While EPA does not disagree that local scour may be an 

appropriate term of art in certain areas of the construction industry (for example, amongst 

transportation agencies), the term "local scour" is not as encompassing as the term "channel and 

streambank erosion in the immediate vicinity of discharge points" that was proposed. However, in order 

to provide consistency with what may be common industry usage amongst transportation agencies for 

one aspect of this requirement, EPA has revised the final rule requirement to incorporate the phrase 

"and scour". The final rule requirement states that discharges must be controlled "to minimize channel 

and streambank erosion and scour in the immediate vicinity of discharge points." Addition of "and 

scour" also addresses discharges to other waters that are not streams, such as lakes, that do not have 

channels and streambanks. It was EPA's intent that this requirement limit erosion of soils in and next to 

all receiving waters, not just waters with channels and streambanks.

** **

COMMENT

By specifying "in the immediate vicinity" EPA is intending the provision to apply only to stream bank 

erosion that would be caused solely by the discharge and not by upstream flow. But even with this 

provision there is no assurance that erosion near the discharge point is solely caused by the discharge; in 

fact the imposed control measures may have no effect whatsoever on stream bank erosion if the 

upstream water velocity is sufficiently high. Effluent guidelines are technology-based standards that 

regulate pollutants in the discharge, not the receiving stream, and regulate them based on the 

performance of technologies alone.

Dictating Channel and Stream Bank Erosion on a national basis can lead to many redundant and 

unnecessary requirements with little to no beneficial outcomes. Additionally, duplicate regulation leads 

to inefficient use of already strained public resources.

API recommends this provision be deleted altogether as duplicative, unnecessary, and not consistent 

with the purpose and objective of effluent guidelines.

RESPONSE:

EPA disagrees that the provision to limit erosion in the immediate vicinity of discharge points should be 

deleted. It makes little sense to remove pollutants in practices such as sediment basins only to create

more pollutants by discharging erosive flows to the receiving water. Indeed, this provision is intended to 

limit the discharge of pollutants from the site to waters of the U.S. caused by erosive flows and is 

therefore within EPA's authority. Also, commenter states that there is no assurance that erosion near 

the discharge is caused solely by the discharge and that controls implemented may have no effect on 

stream bank erosion if the upstream water velocity is sufficiently high. EPA agrees that upstream flows 

can also contribute to erosion in the immediate vicinity of the discharge point. However, EPA's 

requirement is not to eliminate any and all erosion, over which the permittee may not have full control,

but rather to minimize erosion, which the permittee does have control over. Also, EPA notes that the 
January 17, 2014

Page 25 of 52

effect of implementing practices such as sediment basins to remove pollutants may result in discharges 

from construction sites occurring over a much longer duration, since these practices are often designed 

to drain over a period of 12 to 24 hours. During this timeframe, it is likely that flows in the receiving 

water may have receded as the hydrograph declines. Therefore, flows from the construction site, where 

drawn out due to the effect of detention structures, can be discharged long after upstream flows have 

become non-erosive. Implementation of controls to minimize erosion in and next to the receiving water

in the immediate vicinity of discharge points would reduce erosion in these instances. For all of these 

reasons, it is appropriate for EPA to include this requirement in the final rule.

EPA does not agree that this provision will lead to redundant and unnecessary requirements with little 

to no beneficial outcomes or will lead to inefficient use of public resources. EPA has determined that this 

provision is an important component of comprehensive erosion and sediment control at construction 

sites in order to minimize pollutant discharges to waters of the U.S. due to the effects of erosive 

discharges.

 

COMMENT

While it could be argued that the ambiguous language in the original statute placed an unfair burden on 

the permittees, the newly proposed language is far from a fair compromise in light of the best interests 

of the environment. The revised statute does much more than simply clarify that permittees need not 

“address streambank and channel erosion caused by other sources,” which the EPA offers as a primary 

reason for the revision. There is no need for the language to be so limited. A broader scope that at least 

entertains the possibility of imposing downstream liability on a permittee would be more appropriate 

here, no matter how remote the possibility that it would be imposed in any given case.

RESPONSE

While EPA understands that some would find a requirement to also include downstream erosion 

environmentally beneficial, it is more appropriate to consider downstream erosion on a site-specific 

water quality basis than in this nationally applicable, technology-based rule.

However, EPA recognizes that additional parameters beyond peak flowrates and total stormwater 

volume, such as flow duration, can also be important metrics for evaluating changes in receiving water 

erosion due to discharges from construction activity. EPA is not including additional metrics in the final 

rule, but the final rule language does not prohibit permitting authorities from including additional 

metrics, such as flow duration, recognizing the unique receiving water geomorphologic characteristics 

within their permitted areas and the contribution to changes in receiving water erosion that may result 

from construction activities. 

** **

COMMENT
January 17, 2014

Page 26 of 52

... the ADOT municipal separate storm sewer system, managed in part by a state-issued pollutant 

discharge elimination system permit, relies heavily upon reduction of scour in the immediate vicinity of 

drainage structures to maintain the highway infrastructure and has little to no influence on adjacent 

land use practices. Without consideration of downstream channel and stream bank erosion processes in 

designing appropriate drainage features, ADOT could face potential realignments and increased 

maintenance costs to preserve pass through systems. Therefore, this reiterates the need to include the 

requirement as a design consideration.

RESPONSE

EPA agrees that consideration of downstream channel and stream bank erosion processes is important 

in designing drainage features. While the C&D rule regulates discharges of pollutants from construction 

activities, it is not intended to address the design of what is being built or to factors unrelated to the 

discharge of pollutants to waters of the U.S. Therefore, while appropriate from a design perspective, 

consideration of drainage features outside of the active construction period is outside of the scope of 

this rule.

 

COMMENT

However, AAR is concerned regarding ambiguity and potential technical infeasibility with respect to the 

language, “Control stormwater discharges, including both peak flow rates and total stormwater volume, 

to minimize channel and streambank erosion . . .” AAR’s concern is that stormwater volume is not easily 

controlled, and for linear projects such as transportation projects, options to control peak flow rates and 

total volumes are limited or in some cases not available. Engineering design and safety criteria within 

what is often a narrow right of way which may include operating trains provides constraints to peak flow 

and volume control. Further, AAR is concerned that the language requiring control of volume is 

ambiguous and may be read as if EPA is requiring a reduction in volume, which is not possible for most 

construction sites and therefore outside of the appropriate scope of 33 U.S.C. §§ 1311, 1314, and 1316.

AAR has the same concerns to the extent that ‘control of stormwater volume and velocity’ is not defined 

and may be construed as requiring reductions in stormwater volume unachievable at most construction 

sites and in peak flow and volume unachievable for most linear transportation construction projects.

RESPONSE

While volume reduction is one possible means of controlling stormwater volume and velocity to 

minimize soil erosion, it is not the only means. Other means include detention, dispersion, energy 

dissipation and flow duration control. EPA recognizes that linear construction projects have constraints 

that do not exist on other types of construction projects. EPA expects that permitting authorities will 

include appropriate considerations for linear projects in their permits and guidance manuals with 

respect to control of volume and velocity to minimize soil erosion, and for controlling peak flowrates 

and total volume to minimize erosion in the immediate vicinity of discharge points.
January 17, 2014

Page 27 of 52

** **

COMMENT

Importantly, this revision removes responsibility from the discharger to ensure that sediment discharges 

shall not result in downstream impacts. It is foreseeable that erosion controls at the discharge point 

could reduce impacts in the immediate vicinity (e.g. placement of riprap below the outfall) yet could still 

discharge a significant volume of sediment, resulting in a number of geomorphologic changes 

downstream. We urge EPA to continue requiring dischargers to be responsible for sediment discharges 

that impact downstream beneficial uses by removing the language “in the immediate vicinity of 

discharge points,” and retaining the original language in 40 CFR 450.21(a)(2).

RESPONSE

While EPA understands that some would find a requirement to also include downstream erosion 

environmentally beneficial, it is more appropriate to consider downstream erosion and sediment 

impacts on a site-specific water quality basis than in this nationally applicable, technology-based rule.

 

COMMENT

While it seems fair to limit the responsibility of permit holders to streambank erosion around the 

“immediate vicinity” of discharge points, this requirement runs contrary to the purpose and provisions of 

the CWA.

§ 302(a) of the CWA states that “[w]henever... discharges of pollutants from a point source or group of 

point sources... would interfere with the attainment or maintenance of the water quality in a specific 

portion of the navigable waters.... effluent limitations... for such point source or sources shall be 

established which can reasonably be expected to contribute to the attainment or maintenance of such 

water quality.” This holds true for nontoxic pollutants unless, per § 302(b)(A), “the applicant 

demonstrates... there is no reasonable relationship between economic and social costs and the benefits 

to be obtained... from achieving such limitations.” Limitations are to be determined from the point of 

view of maintaining the water quality of our nation’s navigable waters. Limitations are not to be 

determined by ensuring each permit holder’s responsibilities are equal. If a particular waterway is 

impacted by multiple permit holders, the controls imposed on those holders should and must be different 

than situations where a waterway is impacted by only a single permit holder. The cumulative impact 

needs to be assessed and accounted for.

As proposed, the C&D rule would eliminate any responsibility on the permit holder to mitigate damage 

the holder causes to the waterway, provided the damage occurs at some distance from the point of 

discharge. If an upstream site is causing increased erosion and discharge further downstream, any 

downstream site must take this into account in implementing their own controls. Otherwise it creates the 

untenable situation where a waterway can be destroyed with no one held accountable. Worse, scenarios 

can be envisioned where a permit holder would be in a position to easily and cheaply prevent damage, 
January 17, 2014

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but is absolved from having to do so. If the purpose of the revision is to save a permit holder from liability 

for discharges of unrelated upstream activity, then the rule should be worded to eliminate responsibility 

for upstream erosion but maintain responsibility for all downstream erosion.

RESPONSE

While EPA understands that some would find a requirement to also include downstream erosion or 

consideration of downstream impacts from construction environmentally beneficial, it is more 

appropriate to consider downstream erosion and sediment impacts on a site-specific water quality basis 

than in this nationally applicable, technology-based rule. EPA disagrees that the rule eliminates any 

responsibility on the permit holder to mitigate damages the holder causes to the waterway. The rule 

requires control of factors, including peak flowrates and total stormwater volume, to minimize erosion 

in the immediate vicinity of discharge points. Limiting this requirement to the generation and discharge 

of pollutants at and in the immediate vicinity of the discharge is appropriate for a technology-based 

regulation.

** **

COMMENT

EPA should delete from any final rulemaking preamble the two sentences preceding EPA’s request for 

comments for this section because the first sentence references, inter alia, the “far bank,” which cannot 

possibly be directly related to the point source discharge, and the other sentence provides an incomplete 

and unnecessary list of example BMPs more appropriate for guidance.

RESPONSE

EPA notes commenter's opposition to the language cited in the proposed rule preamble. EPA generally 

disagrees that examples cited in the preamble to the proposed rule are more appropriate for guidance. 

EPA notes that other commenters suggested that the examples were helpful, and some commenters 

requested additional examples. See additional response below, in Section 3.0. EPA also disagrees that 

erosion of the far bank of a stream cannot be directly related to a point source discharge from a 

sediment basin (or construction site) and by extension should not be considered in the immediate 

vicinity of the discharge in some cases. If a discharge from a sediment basin (or construction site) is to a 

small stream that is, for example, only a foot or two wide, then this discharge could certainly contribute 

to erosion of the far bank. The linkage of the extent of erosion to a discharge will depend upon a 

number of factors, including the volume and flowrate of the discharge in relation to the volume and 

flowrate of the receiving water, the composition of the bed and bank material, the duration of the flow, 

and the location and orientation of the discharge in relation to the stream.

 

COMMENT

This is too prescriptive. There are other means to minimize channel and stream bank erosion in the 

immediate vicinity of discharge points without controlling volume and velocity. We favor the primary 
January 17, 2014

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intent of this revision to pull the application of this regulation closer to the source and separate it from 

other sources outside of the permittee’s control.

RESPONSE

EPA disagrees that this requirement is too prescriptive. The requirement is to "control stormwater 

discharges, including both peak flowrates and total stormwater volume, to minimize erosion ..." EPA 

agrees that there are other means, besides controlling peak flowrates and total stormwater volume, to 

minimize erosion. However, peak flowrates and the total volume of the discharge are important 

considerations. The requirement, as written, does not preclude permitting authorities from including 

additional parameters.

EPA notes support for limiting the applicability of this provision to the immediate vicinity of discharge 

points, which is what is contained in the final rule.

** **

COMMENT

The location where channel and streambank erosion manifests itself is often difficult to specify precisely 

because discharge from an outfall does not necessarily cause erosion in the “immediate vicinity of 

discharge points,” but rather may, in combination with other sources, cause erosion further downstream. 

Holding permittees responsible only for erosion in the “immediate vicinity of discharge points” thus 

potentially fails to hold permittees accountable for downstream erosion properly attributable to the 

permitted construction activity.

To accomplish the goal of controlling erosion problems from “peak flowrates and total stormwater 

volume,” the rule should require that the peak and total flow leaving the site be the same before, during, 

and after construction. The City suggests that the text “in the immediate vicinity of discharge points” be 

eliminated from the requirement since it does not directly address the identified problem.

RESPONSE

EPA agrees that the location where channel and streambank erosion manifests is often difficult to 

specify precisely. This can be due to a number of factors, such as the discharge from the construction 

site combining with other discharges in a storm drainage network prior to being discharged to the 

receiving water. EPA also agrees that discharges from construction sites may not cause erosion in the 

immediate vicinity of the discharge, but may contribute to erosion downstream of the discharge.

While EPA understands that some would find a requirement to also include downstream erosion 

environmentally beneficial, it is more appropriate to consider downstream erosion and sediment 

impacts on a site-specific water quality basis than in this nationally applicable, technology-based rule.

Requiring that the peak and total flow leaving the site be the same before, during and after 

construction, as suggested by commenter, may be an appropriate requirement for permitting 

authorities to consider, both in the context of technology-based standards as well as water quality 

based requirements.
January 17, 2014

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COMMENT

The language referring to "in the immediate vicinity of discharge points" is not supported by PADEP. The 

use of the term discharge points would result in the overuse of conventional treatment approaches, such 

as ponds or other centralized facilities, which exhibit a number of inherent practical, environmental and 

economic limitations including elevated water temperatures, costly maintenance burdens, destruction of 

wetlands, accelerated stream erosion and the inability to replicate predevelopment watershed 

hydrology. Alternative language offered by PADEP includes: 

"Control construction stormwater discharges, including peak flow rates and total stormwater volume, at 

or near the perimeter of the project site to assure that water quality standards are achieved and that 

there is no contribution to any existing impairment". This approach would establish consistency and 

compatibility with post construction stormwater management and promotion of low impact design 

principles such as a hydrologically functional landscape, uniform distribution of small controls and 

strategic timing, which can be universally applied to all urban, suburban and rural development.

RESPONSE

EPA notes opposition to the language limiting consideration of erosion to the immediate vicinity of 

discharge points. Commenter notes that this requirement may lead to overuse of conventional 

approaches, such as ponds, that may cause negative impacts. The requirement does not require the use 

of ponds or other specific practices. Rather, the rule requires consideration of factors, including peak 

flowrates and total stormwater volume that should be evaluated when practices such as ponds (or more 

correctly, sediment basins) are used during the construction phase on a project. The intent of this 

provision is to require management of the discharge so that scour and erosion does not occur. For 

example, if practices such as basins or traps are utilized, then stabilization or energy dissipation 

practices in conveyances and at the discharge point would potentially be effective practices to utilize to 

limit scour and erosion in the immediate vicinity of discharge points. 

EPA understands commenter's concerns regarding potential negative impacts of stormwater 

management practices, such as elevated temperatures and increased erosion due to increases in the 

amount of work done on receiving channels. Consideration of these factors has historically been 

relegated to the post-construction arena. Post-construction stormwater management is outside of the 

scope of this regulation. EPA notes, however, that consideration of these factors during the planning 

phase of construction is important since postconstruction stormwater ponds and other practices are 

built during the construction phase. It is EPA's understanding that states and permitting authorities have 

been increasing the use of green infrastructure and other practices to address these and other impacts. 

EPA supports such approaches.

EPA has not adopted commenter's suggestion that the language include a provision that "water quality 

standards are achieved and that there is no contribution to any existing impairment". These items are 

outside of the scope of this regulation, which is technology-based not water quality-based.
January 17, 2014

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** **

COMMENT

The phrase "immediate vicinity" as presented in the proposed requirement should be defined. 

Additionally, in some instances, controls to protect against downstream impacts (i.e., damage to 

infrastructure) due to channel and streambank erosion that could result from a specific construction site 

may be warranted. Consideration should be included in this requirement for the evaluation of 

construction sites on a case-by-case basis to address foreseeable downstream impacts.

More specifically the need for concern about erosive velocities is receiving water specific. Ideally these 

concerns would be addressed through local watershed specific plans or local regulations, not at a 

national level.

RESPONSE

EPA has not defined the term "immediate vicinity" and is instead leaving this determination up to the 

permitting authority as site-specific differences makes defining this term difficult in a national rule.

EPA agrees that downstream erosion concerns should not be addressed through a national, technologybased effluent guideline.

 

COMMENT

Again, SDDENR believes that the language about controlling both peak flow rates and total storm water 

volume is important for the prevention of erosion, but again SDDENR has no authority over drainage. 

Controlling the discharge to minimize channel and stream bank erosion is also important, but this 

description should be broadened because not all discharges are to a channel or stream bank. Also, a 

definition of immediate vicinity would be needed to define exactly what area in the vicinity of the 

discharge point would need to be inspected for signs of erosion. As of now, the immediate vicinity is 

undefined and would be up for interpretation, and there would likely be many interpretations of what 

the "immediate vicinity" is.

RESPONSE

EPA has not defined the term "immediate vicinity" and is instead leaving this determination up to the 

permitting authority as site-specific differences makes defining this term difficult in a national rule. EPA 

notes that commenter states that SDDENR has no authority over drainage. However, since this 

requirement is regulating the discharge at an NPDES permitted activity, and that practices such as 

stabilized outlets or the use of energy dissipation devices at construction sites is standard industry 

practice and is included in most, if not all, design manuals developed for erosion and sediment control, 

EPA does not agree that the permit authority lacks authority to implement this requirement. EPA has 

included the term "and scour" to this provision to acknowledge that the requirement is meant to 

address erosion in receiving waters that do not have channels or streambanks (e.g., lakes).
January 17, 2014

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** **

COMMENT

The WVDOH understands the need to prevent stream degradation through pollution prevention and 

erosive force prevention; however, the WVDOH does not believe that it is prudent, feasible or practical to 

manage stormwater volume unless you have unlimited resources.

The WVDOH does not have the funds available to eliminate the volume of stormwater from the roadway 

system and adjacent properties. However, there are numerous prudent, feasible or practical engineering 

techniques that are applicable to pollution prevention and erosive force prevention. The WVDOH 

manages stormwater discharge (cubic feet/meters per second) for projects by requiring the postconstruction discharge to be equal to or less than the preconstruction discharge; thereby preventing 

increased stressors on the stream and stream bank.

Furthermore, the WVDOH believes that the EPA is exceeding its authority, granted through the Clean 

Water Act, by attempting to regulate stormwater volume. U.S. District Court Judge Liam O'Grady's 

January 2013 decision discussed the fact that the EPA could not regulate stormwater flow because 

stormwater itself is not considered a pollutant. The EPA is charged with establishing limits on pollutants, 

"that does not give them authority to regulate non pollutants ... " While the US District Court decision is 

limited in scope, the basic principle is still sound.

RESPONSE

EPA disagrees with the comment that managing stormwater volume at construction sites is not prudent, 

feasible, or practical unless one has unlimited resources. While volume reduction is one possible means 

of controlling stormwater volume and velocity to minimize soil erosion, it is not the only means. Other 

means include detention, dispersion, energy dissipation and flow duration control. EPA recognizes that 

linear construction projects have constraints that do not exist on other types of construction projects. 

EPA expects that permitting authorities will include appropriate considerations for linear projects in 

their permits and guidance manuals with respect to control of volume and velocity to minimize soil 

erosion, and for controlling peak flowrates and total volume to minimize erosion in the immediate 

vicinity of discharge points.

EPA does not agree that the agency has exceeded its authority under the Clean Water Act with this 

provision. See the supplemental information added to the 2009 C&D Final Rule record (see EPA-HQ-OW2008-0465-2124 through EPA-HQ-OW-2008-0465-2134) for a description of the linkage between 

controlling volume and velocity of stormwater and the discharge or pollutants. See also responses 

above to public comments re EPA’s authorities.
January 17, 2014

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Comments on 450.21(a)(6)

450.21(a)(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;

AASHTO agrees with the intent of the proposed clarifications and offers additional proposed changes to 

further clarify the intent of the measure. Natural buffers can be effective to provide pollutant removal 

and infiltration of stormwater. Pollutant removal can be accomplished in buffer areas through filtering, 

sedimentation and infiltration. Maximizing stormwater infiltration, while desirable in many cases, is 

secondary to the primary objective of reducing pollutant discharges. As such, we recommend striking, 

“...and maximize stormwater infiltration...” so the measures taken to reach the goal of reducing pollutant 

discharges will not be limited to infiltration measures.

There are instances, such as stream crossings, where buffers are infeasible. We recommend discussing 

these instances in the proposed rule to provide context for application of this provision. Further, we 

recommend clarification in the case where the alteration of waters of the U.S. has been granted through 

a Section 404 permit process to avoid the potential inference of being subject to multiple Clean Water 

Act permits at a discrete location. The EPA should specify that the 404 Permit would govern activities in 

this instance.

AASHTO recommends that EPA revise the language to state:

Provide and maintain natural buffers around waters of the United States, direct stormwater to vegetated 

areas to reduce pollutant discharges, unless infeasible.

REPONSE:

EPA disagrees with the comment that the language regarding maximizing infiltration should be deleted. 

Directing stormwater to vegetated areas such as buffers and infiltrating stormwater is an effective way 

of reducing pollutant discharges, as noted by commenter. Where vegetated buffers exist, they can be 

effectively used in many cases to reduce to total volume of stormwater discharged through interception, 

evapotranspiration and infiltration and to provide filtration of water that is subsequently discharged. 

Careful design is necessary to ensure that these discharges are applied in an appropriate manner, such 

as by using level spreaders or other dispersion methods, so as to not cause erosion. However, proper 

consideration of opportunities for utilizing vegetated areas for filtration and for infiltration can reduce 

the quantity of pollutants discharged to waters of the U.S. Therefore, EPA is not making any changes to 

this proposed requirement. EPA also notes that the infiltration provision contains an "unless infeasible" 

qualifier, which provides flexibility for permittees in cases where infiltration is not feasible.

EPA acknowledges the comment requesting that additional examples of where buffers are infeasible in 

the preamble, but EPA has determined that permitting authorities can best describe these cases in their 

permits, design manuals or in other appropriate locations where it will be more apparent to permittees 

and where these examples can be updated as needed as practices change.
January 17, 2014

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With respect to CWA Section 404 permits, the C&D rule requirement for buffers is not intended to 

conflict with any construction activities approved under a CWA Section 404 permit. See the 2012 EPA 

CGP as an example of how permitting authorities can make this clear in their permits.

 

COMMENT

... considering linear rights-of-way, implementing buffers and maintaining vegetated areas is generally 

impracticable.

RESPONSE

EPA does not disagree that, in certain cases, implementing buffers and maintaining vegetated areas may 

be impracticable. This is particularly true on linear projects with limited rights-of-way. For this reason, 

EPA has included an "unless infeasible" qualifier for this requirement to provide flexibility in these and 

other cases.

** **

COMMENT

This also is too prescriptive. If pollutant discharge can be controlled by other means, compliance should 

result. This is just one tool in the toolbox. Extra considerations such as this for sites which discharge 

directly to a WOUS may be appropriate, but research in the arid west has demonstrated the infeasibility 

(detrimental effects) of encouraging infiltration given certain hydrogeological conditions.

RESPONSE

EPA does not agree that the provision to maximize infiltration is too prescriptive. EPA has included an 

"unless infeasible" qualifier for this requirement. EPA agrees that there are other "tools in the toolbox." 

Indeed, this requirement is only one component of a comprehensive strormwater management 

program on construction sites. In addition to pollution removal, buffers and infiltration can provide a 

variety of other water quality and non-water quality environmental impacts. EPA does not disagree that 

infiltration may be detrimental in certain hydrogeological conditions. Permitting authorities may choose 

to utilize the "unless infeasible" provision in this and other cases (for example, if pollutants in 

contaminated soils may be mobilized by increased infiltration).

 

COMMENT

Generally, PADEP opposes the change to this section of the proposed ELG Rule revisions, particularly 

without further clarification of terms as introduced. Specifically, PADEP opposes each of the following 

proposed changes to this part of the ELG Rule:
January 17, 2014

Page 35 of 52

1. "Waters of the United States" is a broader definition than "Surface Waters", as defined in PADEP's 

Chapter 102 Regulations.

Inclusion of "Waters of the United States" will require installation, or maintaining buffers around waters 

more extensively than currently required, including the requirement of buffers to be installed or 

maintained around jurisdictional wetlands. This is especially problematic as it introduces Rapanos et ux., 

et al. v. United States, and the "significant nexus" determination and other guidance used to clarify 

protection of waters under the Clean Water Act established by the EPA and the Army Corps of Engineers. 

This definition will result in delay and additional burden on the permitting agency and the regulated 

community in determining permitting and other relevant actions that are necessary for the permit 

decision and to support by the administrative record.

2. The term "natural buffers" is not specific. The term needs to be better defined to establish what is 

acceptable in the proposed ELG Rule to be considered a "natural buffer". PADEP recommends that EPA 

include revised language regarding the specific requirements that will be acceptable to meet this 

obligation, such as criteria, width, composition, etc. of a "natural buffer" in relation to "Waters of the 

United States". PADEP Chapter 102 regulations provide this type of specificity in 25 Pa. Code Section 

102.14.

RESPONSE

With respect to the change to "Waters of the U.S", these waters represent the same set of waters that 

EPA intended to address with the previous "surface waters" language. As evidence of this, EPA defined

“surface waters” in the 2012 Construction General Permit section implementing the natural buffer 

requirements to mean “waters of the U.S.” (see Appendix A, page A-10). 

EPA is not defining the term "natural buffer." Due to the diversity in factors such as climate and 

vegetation across the U.S., allowing permitting authorities to define in their permits appropriate buffer 

conditions is a more flexible approach. EPA notes that the criteria described by commenter in state code 

may be an appropriate language for that state to use. Other definitions may also be appropriate, 

including, for example, the following definition of "natural buffer" contained in the EPA CGP: "For the 

purposes of this permit, an area of undisturbed natural cover surrounding surface waters within which 

construction activities are restricted. Natural cover includes the vegetation, exposed rock, or barren 

ground that exists prior to commencement of earth-disturbing activities."

** **

COMMENT

Clarification should be provided with respect to the use of "provide ... natural buffers ... " For example, it 

is unclear whether "provide" means that the permittee is required to establish natural buffers where 

natural buffers do not exist. Additionally, the phrase "natural buffers" should be clearly defined

Maximizing infiltration in areas with polluted soils may be feasible but may have adverse impacts on 

groundwater. EPA should add "or undesirable due to potential contamination of groundwater
January 17, 2014

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RESPONSE

EPA expects that if a natural buffer is not present, that a vegetated buffer, or equivalent control if 

allowed by permit, would need to be implemented by the permittee, unless site conditions make it 

infeasible to do so. EPA has intentionally not specified what it means to provide a buffer so that 

permitting authorities can establish their own requirements based on what makes the most sense in 

their states. EPA refers the commenter to Part 2.1.2.1 of the Agency’s 2012 CGP for an example of how 

permitting authorities may choose to implement this provision in permits. 

EPA does not disagree that infiltration may be detrimental in certain hydrogeological conditions, for 

example where pollutants in contaminated soils may be mobilized through increased infiltration. 

Permitting authorities may choose to acknowledge in their permits what conditions on a site make it 

infeasible to require infiltration. The regulation provides this flexibility because it requires that natural 

buffers be provided “unless infeasible.” ).

 

COMMENT

... there may be situations where it would be more beneficial to direct storm water flow directly to a 

basin, channel, or storm sewer inlet. In such situations, it may not be infeasible to direct the flow to the 

buffer first, but it could be less practical. Site conditions would really dictate whether or not a buffer is 

feasible and practical. It may also be a large burden on the permitting authority to prove whether or not 

a buffer is feasible around waters of the United States.

RESPONSE

The requirement to direct stormwater to vegetated areas can be implemented before or after water is 

first directed to a basin or channel - the rule does not specify when and where stormwater is to be 

directed to vegetated areas, only that it is to be done and that stormwater infiltration is to be 

maximized, unless infeasible. Also, the vegetated area does not have to be a buffer - it could be any 

vegetated area located on a site. For example, an outlet from a basin can be directed to level spreader 

where the stormwater can be filtered and/or infiltrated prior to being discharged from the site. Another 

example would be to direct stormwater flowing down a disturbed slope to a vegetated area prior to that 

stormwater being collected in a channel and conveyed to a sediment basin. In this case, the vegetated 

area need not be a buffer. EPA expects that the opportunities to direct stormwater to vegetated areas 

will vary across different sites and in different climatic locations. 

EPA agrees that site conditions and topography may dictate whether or not a buffer is feasible. There 

may be some burden on the part of permittees and on permitting authorities to determine whether or 

not a buffer is feasible. EPA expects that permittees would be required to implement buffers in most 

cases, and only a site-specific constraint would preclude their use. EPA notes that the use of buffers is 

already common practice in a number of states, indicating that the practice is broadly applicable and 

feasible.
January 17, 2014

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** **

COMMENT

EPA may not lawfully require operators to direct sheet flow to vegetated areas, as the Agency does not 

have regulatory authority over sheet flow until it is channelized and discharged (see related discussion 

above).

RESPONSE

The requirement to direct stormwater to vegetated areas applies to all permitted discharges from the 

construction site. See responses above regarding EPA’s authority over discharges from construction 

sites to waters of the U.S.
January 17, 2014

Page 38 of 52

Comments on 450.21(a)(7)

450.21(a)(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

COMMENT

... the integrity of highway infrastructure requires compaction to preserve the mobility and safety of the 

public.

RESPONSE

EPA agrees with this comment, and the requirement does not apply to areas of the site where the 

intended function dictates that it be compacted.

 

COMMENT

AAR members construct facilities for rail transportation, service, and associated activities. These facilities 

require compaction of soils and should be included in EPA’s current list of examples which currently 

includes foundation pads for buildings or road subgrade material.

RESPONSE

The requirement to minimize soil compaction does not apply to areas of the site where the intended 

function dictates that it be compacted. EPA agrees that foundation pads for buildings, road subgrade 

materials, and rail beds may be appropriate areas for compaction, among others. EPA has not provided 

a list of all of these cases as enumerating all cases would be infeasible. EPA has left this determination 

up to the permitting authority, as this allows for updates as permits are revised.

** **

COMMENT

EPA enters into an unnecessary and confusing discussion of site conditions and site management (in 

sections (a) and (2)), which are better left for guidance documents and which, in some cases, are 

completely inappropriate. For example, EPA suggests that one manner to preserve topsoil is by “limiting 

clearing . . . to accommodate the building footprint.” This statement raises an issue that the proposed 

revisions are attempting to resolve – that EPA can assert authority over the site and how site operations 

are conducted, and not the discharge of pollutants from a point source. EPA also cannot mandate postconstruction controls or stormwater infiltration because, again, such considerations are not subject to 

EPA’s NPDES or Clean Water Act authority.

RESPONSE
January 17, 2014

Page 39 of 52

EPA disagrees that the discussion of site conditions and site management is inappropriate. EPA received 

other comments indicating that the examples contained in the proposed rule preamble were helpful. 

See earlier response regarding EPA's authority to address pollution reduction through infiltration. EPA 

disagrees that the Agency does not have the ability to regulate internal processes if those processes lead 

to a discharge of pollutants. See responses to comments on this topic above. Post-construction 

stormwater discharges are outside of the scope of this rulemaking.

 

COMMENT

... the methods to be used to demonstrate compliance with this requirement are unclear. This 

requirement should be accompanied by clear guidance on the specific meaning and interpretation of the 

requirement. For example, the guidance should include discussion on topics such as soil rehabilitation 

through the use of soil amendments and deep-ripping of areas temporarily compacted during 

construction (e.g., temporary haul roads). Without clearer guidance, the current lack of specificity of this 

requirement will likely lead to a wide range of interpretation at the state and local levels, and within the 

C&D industry.

RESPONSE

EPA has determined that the level of detail requested by commenter is best addressed by permitting 

authorities in their permits or design manuals due to the variation in project types and soil and other 

factors present across the country. This also allows for updates to permits and manuals as practices 

evolve over time.

** **

COMMENT

... the rule should allow for compaction related to temporary stabilization. There are several temporary 

stabilization methods that need some soil compaction to help prevent erosion. This temporary 

stabilization does not have anything to do with the function of the site area, but is a permit requirement. 

This rule change would prohibit potential temporary stabilization methods.

RESPONSE

EPA agrees that compaction may be an appropriate temporary soil stabilization measure in some cases. 

An example would be tracking a slope with a dozer. EPA does not agree that the rule language would 

prohibit compaction for temporary stabilization. EPA expects that permitting authorities that consider 

compaction for temporary stabilization as being appropriate will include such measures in their permits 

and design manuals.
January 17, 2014

Page 40 of 52

Comments on 450.21(a)(8)

450.21(a)(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.

COMMENT

EPA suggests that one manner to preserve topsoil is by “limiting clearing . . . to accommodate the 

building footprint.” This statement is problematic for two reasons. First, it suggests authority over the 

facility, not the discharge of pollutants from a point source. Second, it ignores the reality that to 

construct a home the builder must clear an area larger than that required for the “building footprint.” 

The explanatory language should be removed.

RESPONSE

EPA disagrees with this comment. The term “accommodate” in this example means that the permittee 

would be permitted to clear as much area of the site as necessary to construct whatever is being 

constructed. This would not limit clearing to just the building footprint, as this would almost certainly be 

infeasible. EPA notes that the examples provided in the preamble to the proposed rule are examples 

only, and that the permits and guidance manuals developed by permitting authorities will contain 

additional details on how to implement the requirements, including descriptions of appropriate clearing 

and grading requirements.

 

COMMENT

The intent of §450.21(a)(8) about preserving topsoil is not clear. Is the intention to minimize disturbance 

or preserve topsoil for reuse (or both)? The intent could be clarified by rewording to:

“Unless infeasible, preserve topsoil in place and/or preserve for reuse elsewhere on the project. ...”

RESPONSE

The intent of this requirement is to both limit the disturbance of topsoil, as well as to retain topsoil for 

use on-site. The ability to do this on individual sites will depend on site-specific conditions, which is why 

there is an “unless infeasible” provision included, as well as the second sentence that EPA added where 

the intended function of a specific area of the site dictates that the topsoil be disturbed or removed. 

EPA is not incorporating the changes in language suggested by the permittee. EPA expects that 

permitting authorities will include additional details in their permits and guidance manuals on 

implementation of this requirement.

** **

COMMENT
January 17, 2014

Page 41 of 52

SDDENR agrees that preserving topsoil on a site is important for stabilization, but certain situations could 

prevent a permittee from preserving topsoil. Again, the burden should be on the permittee to explain in 

the plans and specifications and the SWPPP why the topsoil would not be preserved. SDDENR does not to 

tell permittees what to do with materials on their site other than to minimize their exposure to storm 

water. The main concern of SDDENR is with the quality of water that is discharged from the site. Though 

preserving topsoil may help improve the quality of water by providing a means to stabilization, other 

options to provide stabilization are available so long as the disturbed area is stabilized in accordance 

with permit requirements.

RESPONSE

EPA agrees that there are certain situations where it may be infeasible to preserve topsoil, which is why 

this provision contains an “unless infeasible” qualifier. EPA agrees that the burden should be on the 

permittee to demonstrate infeasibility. EPA agrees that there are other options to provide stabilization, 

but notes that good soil structure can be obtained through use of quality topsoil that can facilitate 

vegetation establishment, which is a highly effective means of reducing erosion and subsequent 

pollutant discharges. Good soil structure also promotes infiltration, which can reduce pollutant 

discharges.
January 17, 2014

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Comments on 450.21(b)

450.21(b) Soil Stabilization. Stabilization of disturbed areas must, at a minimum, be initiated 

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 remain disturbed.

COMMENT

The proposal to allow exemption for site areas that are to remain disturbed is consistent with industry 

operation and AASHTO supports this language. Also, we recommend an exemption for areas less than 

one acre in size as minor site disturbed areas should not be a priority for “immediate” initialization of 

stabilization as they have little or no potential to discharge offsite. An exemption for areas less than one 

acre in size would give the site operator sufficient latitude to schedule stabilization operations 

considering the site as a whole, in the most economical manner.

In addition, the term “initiate immediately” as defined in the EPA Construction General Permit should be 

included in the proposed rule. The Construction General Permit definition is, “as soon as practicable but 

no later than the end of the next work day, following the day when the earth-disturbing activities have 

temporarily or permanently ceased.” This intrinsic 24-hour planning window is an important aspect that 

provides a practical basis for interpreting the requirement.

RESPONSE

EPA is not adopting the requested change to exempt areas less than one acre in size from the immediate 

stabilization requirement. The requirement applies to all areas of the site, regardless of size. EPA does 

not agree that areas less than one acre on a site have little or no potential to discharge. If the area is 

adjacent to a stream or storm drain or other discharge location, or the water from this area flows 

downslope to receiving waters, then there is a potential for discharge. As stated in the 2009 final rule, 

the requirements represent BAT/BADCT for all sites that disturb one or more acre of land.

EPA is also not including the term “initiate immediately” from the EPA CGP and is instead allowing 

permitting authorities to define this in their permits. EPA notes that permitting authorities may choose 

to use the language from EPA's CGP as a guide in developing language for permits.

 

COMMENT

... in arid systems, it is appropriate to provide additional latitude to allow for vegetation to propagate.
January 17, 2014

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RESPONSE

EPA agrees and has included appropriate language in the rule requirement.

** **

COMMENT

AAR believes that the revisions proposed by EPA for 40 CFR 450.21(b) (Section 6 on page 19439 of the 

Federal Register) do not go far enough in clarifying the time requirements for initiation and completion 

of soil stabilization when soil disturbing activities have ceased. AAR believes the term “immediately” 

should have been reasonably defined in the proposed ELG revisions. An acceptable definition of 

“immediately” is provided in the EPA CGP

Also the proposed C&D ELG changes seem to provide for only two situations that qualify as exemptions 

for initiating or completing stabilization. ). In contrast, the guidance in Section 2.2 of the 2012 EPA 

Construction General Permit (CGP) (signed February 16, 2012) is much more detailed, and allows for 

several additional exemptions.

exemption from initiating stabilization for areas of your worksite where permanent structures 

will be built.

additional contingencies that that provide a basis for an exemption from deadlines for initiating 

and finalizing stabilization, which include “sudden work stoppage due to unanticipated problems 

associated with construction labor, funding, or other issues related to the ability to work on the 

site; weather conditions rendering the site unsuitable for the continuation of construction work

additional exemptions for the initiation or completion of vegetative stabilization that are beyond 

the control of the operator, allowing temporary stabilization measures to be initiated instead.

The final modifications to the ELG should provide that these additional contingencies and exemptions in 

the 2012 EPA CGP also apply to the deadlines for the initiation and completion of soil stabilization 

required by the ELG.

AAR recommends that the final revision to the effluent limitations guidelines and standards for C&D 

provide NPDES permitting authorities with greater flexibility to determine when alternative stabilization 

measures, or in the alternative substitute sediment control technologies, may be appropriate. Examples 

include areas and conditions of low temperatures, or excessive or inadequate moisture to support seed 

germination. 

RESPONSE

EPA is not adopting the language contained in the current EPA CGP into the rule language and is instead 

allowing permitting authorities to define this in their permits. EPA notes that permitting authorities may 

choose to use this language as a guide in developing language for permits. The rule language provides 

sufficient flexibility for permitting authorities to develop implementing language in permits reflective of 
January 17, 2014

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the range of conditions present in their permitting areas, as EPA did in its 2012 CGP (as pointed out by 

the commenter).

 

COMMENT

However, the language as proposed is overly broad.

If the exemption is meant to be as narrow as the EPA states, then it should be more carefully worded. For 

example, it could be worded as follows: “In very limited circumstances, stabilization may not be required 

if the intended function of a specific area of the site after development of the project is complete 

necessitates that it remain disturbed.” If the exemption is not limited to “intended functions” of an area 

after development, then it would seem any function which would facilitate active construction in other 

areas of the site would be exempt, even if there is no purpose for leaving it disturbed after construction 

ceases.

RESPONSE

EPA does not agree with the suggested language. EPA expects that there are very limited circumstances 

where an area would need to remain unstabilized during construction, or remain unstabilized following 

the completion of construction (e.g, a motocross track). The language as finalized provides sufficient 

flexibility for permitting authorities to develop appropriate implementing language for this requirement.

** **

COMMENT

The second sentence in the amended requirement for stabilization of disturbed areas should include cold 

weather conditions along with “arid, semiarid, and drought-stricken areas where initiating vegetative 

stabilization measures immediately is infeasible,” since vegetative stabilization is also infeasible in cold 

weather conditions.

PADEP recommends revising the existing language from immediate stabilization to include "areas under 

snow cover" to be added to the "arid, semiarid and drought stricken" language where temporary 

stabilization may not be required until conditions allow.

RESPONSE

EPA notes that 450.21(b) does not require vegetative stabilization. Both vegetative and non-vegetative 

stabilization may be appropriate measures, consistent with permit requirements. The sentence "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"

states that alternative "e.g., non-vegetative" stabilization measures must be employed in these areas 
January 17, 2014

Page 45 of 52

because vegetative stabilization is infeasible (because adequate moisture would not be present to 

establish and maintain such vegetation). However, the language does not limit the use of non-vegetative 

stabilization in other instances, such as during cold weather conditions. All areas (except those where 

the intended function necessitates that it remain disturbed) would require stabilization, vegetative or

non-vegetative, consistent with requirements developed by the permitting authority.

After consideration of all comments on this provision, EPA did not make any changes to the proposed 

requirement for today's final rule. EPA has determined that the requirement contains sufficient 

flexibility for permitting authorities to develop appropriate criteria for vegetative and non-vegetative 

stabilization, and to develop permit language regarding the timing of such stabilization activities.

 

COMMENT

The term "immediately" provided both in the 2009 Final Rule and in the proposed amendment should be 

defined

The lack of definition for this term presents a challenge in clearly understanding a critical timing aspect 

of this requirement from both an implementation and compliance perspective.

clarification should be provided for instances where earth-disturbing activities are unexpectedly 

temporarily ceased for 14 days or more

The first sentence of §450.21(b) should be reworded. “Immediately” is subject to various interpretations 

and has been elsewhere defined to be accomplished within 15 minutes. We recommend that 

“immediately” be replaced with “as soon as practicable”.

RESPONSE

EPA is not defining the term “immediately” in this rule and is instead allowing permitting authorities to 

define this in their permits. EPA notes that the EPA CGP contains an interpretation that permitting 

authorities may choose to use as a guide when developing permit language for this requirement.

** **

COMMENT

... there is some concern about not requiring stabilization in limited circumstances where the intended 

function of the specified area of the site necessitates that it remains disturbed. If this is the case, the 

SWPPP can be written to leave an area disturbed and the permitting authority would be burdened to 

prove whether or not the intended use actually does necessitate the area remain undisturbed. This could 

potentially lead to problems if permittees take advantage of this rule and leave areas undisturbed, 

claiming it is for the intended use of the site. Since SDDENR may not be more restrictive than the EPA, if 

the EPA does not require stabilization for intended use, SDDENR can do nothing about this even if it is 

obvious the permittee is taking advantage of this rule. One way to combat this issue would be to require 

permittees to request a variance for not stabilizing certain areas of the project site based on the intended 
January 17, 2014

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use of that site. The cases where an area needs to remain disturbed would be rare enough where 

SDDENR believes the permittee should have to request a variance in order to leave that area disturbed. 

The reasoning as to why the area needs to remain disturbed should also be submitted to the permitting 

authority for review, documented in the plans and specs, and documented in the SWPPP. This would help 

relieve the burden on the permitting authority for this issue.

RESPONSE

EPA expects that there are very limited circumstances where an area would need to remain unstabilized 

during construction, or remain unstabilized following the completion of construction (e.g., a motocross 

track). If the permit authority decides to implement this requirement by way of a variance request and 

by requesting information to substantiate the request in SWPPPs, this would not be prohibited by or 

inconsistent with this rule and may be an effective means of implementing this requirement.

 
January 17, 2014

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Comments on 450.21(d)(2)

450.21(d)(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

Comment

... in most linear construction settings, buildings are not available in which to house building material, 

products, wastes, or trash. In addition, covering materials that will ultimately be left in place out in the 

natural environment is impractical. Construction staging areas may relocate several times during a 

project.

RESPONSE

Permittees are not required by this rule to have buildings available in which to house building material, 

products, wastes or trash. Permittees are required, however, to minimize exposure of these materials 

(and others) to precipitation and to stormwater. The purpose of minimizing exposure is to minimize the 

discharge of pollutants from these materials. EPA agrees that it may be impractical to cover some 

materials that will ultimately be left in place in the environment, such as materials intended for outdoor 

use, and has included appropriate language addressing this situation in the rule.

** **

COMMENT

While I generally support this change, I’m not sure that the words “precipitation and stormwater” are 

the best. I cannot find a definition for stormwater in 40 CFR 450, so I can’t be sure, but I believe 

“stormwater runoff” is more descriptive and would be a better wording for this.

RESPONSE

EPA has not adopted the proposed change, but notes that the commenter’s recommended language is 

already incorporated into the intended meaning of “precipitation and stormwater.” The use of the 

words “precipitation and stormwater” in the context of this requirement is intended to include both 

direct contact by rainfall or snow (i.e., precipitation), and contact by stormwater runoff, snowmelt 

runoff, and surface runoff and drainage (i.e., stormwater). The definition of the term “stormwater” can 

be found at 40 CFR 122.26(b)(13).

 

COMMENT
January 17, 2014

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The language as written appears to put the burden of proof on the developer for insuring that products 

"intended for outdoor use" do not pose a risk of storm water contamination

RESPONSE

EPA agrees that the burden is on the permittee to ensure that materials pose little risk of stormwater 

contamination, since the permittee is in control of the site, not the permit authority.

** **

COMMENT

One question that arises is with pesticides and herbicides. They are intended for outdoor use, and the 

intended use for pesticides and herbicides in outdoor applications will likely not contaminate storm 

water. However, the rule change states that materials intended for outdoor use have little risk to 

contaminate storm water. This rule should clarify that exposure of the storage of pesticides and 

herbicides needs to be minimized, as large quantities of pesticides and herbicides can contaminate storm 

water. The way the rule is rewritten is contradictory without distinguishing the storage of pesticides and 

herbicides to the use of pesticides and herbicides.

RESPONSE

The rule does not state that all materials intended for outdoor use pose little risk of stormwater 

contamination. By incorporating the language “such as” in this requirement, the rule states that 

materials intended for outdoor use are an example of materials that may pose little risk of stormwater 

contamination. However, it will be up to the permittee, and ultimately the permit authority, to make a 

determination on specific materials. EPA expects that permitting authorities will describe the types of 

materials that should be minimized or prevented from being exposed to precipitation and to 

stormwater, and that pesticides and herbicides are examples of materials that should be prevented 

from being exposed to stormwater and precipitation prior to being applied.
January 17, 2014

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Comments on Removing the Numeric Turbidity Limitation and Monitoring Requirements

COMMENT

AASHTO recommends that the statement reserving the paragraphs in the regulation be removed, as 

reserving this statement is confusing. EPA could propose any future requirement in a future rulemaking.

RESPONSE

EPA acknowledges this comment, but reserving paragraphs 450.22(a) and (b) preserves linkages of 

subsequent paragraphs to previous sections of the rule. Therefore, EPA has elected to reserve these 

paragraphs instead of re-numbering all subsequent paragraphs for efficiency.

 

COMMENT

I believe a turbidity standard should be applied to stormwater from construction sites, as turbidity is an 

excellent surrogate parameter for many pollutants. I urge the EPA to continue to work on finding a 

defensible turbidity standard for construction site runoff, and to include that in future rulemaking.

RESPONSE

EPA acknowledges support for continuing efforts to collect data and develop a numeric turbidity 

standard.

** **

COMMENT

The third element of the Proposal withdraws numeric turbidity effluent limitations guidelines (“ELGs”) in 

40 CFR 450.22(a) altogether. The EPA claims this revision is necessary to resolve the scope of certain 

provisions and exceptions in the original 2009 statute, but it also represents a significant concession that 

may not be in the best public interest. Rather than completely abandon the current numeric guidelines 

limiting turbidity in stormwater discharge from C&D sites, the EPA should strive to incorporate elements 

of both the numeric system and the already established non-numeric standards...

Rather than coming to a complete concession on this particular issue, and eliminating the numeric limits 

altogether, it is more reasonable for the EPA to take following steps as a direct response to the issues 

raised by the industry petitioners: Collect sufficient data; Re-open the Final Rule for public comment; 

Revise the numeric guidelines; Take a firmer position on whether C&D sites should be regulated entirely 

as “point sources”, rather than as a mix of point and non-point sources.

 

We urge EPA to re-establish a scientifically supported numeric effluent limit for turbidity in the 

Construction ELG.
January 17, 2014

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Numeric effluent limits (NELs) are required where feasible, as is the case with stormwater discharges 

associated with construction activity.

Instead of resolving any potential deficiencies in the record, EPA abandoned many hard years of work 

and withdrew the turbidity NEL and monitoring requirements. We urge EPA to re-evaluate the data and 

promulgate an ELG that establishes an NEL for turbidity.

The CWA, its implementing regulations, and case law interpreting the establishment of technology-based 

effluent limitations in NPDES permits, all require that NPDES permits contain NELs when feasible.

States need guidance from EPA to set appropriate NELs for construction activities.

Rather than committing to conduct the proper analysis to promulgate a turbidity NEL for the 

Construction ELG, EPA proposes to simply remove the NEL and revert back to a BMP-based permitting 

scheme. However, EPA’s authority to include BMP requirements in NPDES permits is limited.14 The EPA’s 

authority to impose BMPs is supplemental to its duty to impose numeric, technology-based effluent 

limitations – a point the regulations themselves make clear when allowing for BMPs when they are 

“reasonably necessary to achieve effluent limitations,” (i.e., to supplement the effluent limitations by 

ensuring measures are taken to meet them).15 The allowance for BMPs in NPDES permits is separate and 

distinct from the requirement that permits contain numeric, technology-based effluent limitations.

We respectfully request EPA heed its own recommendation to the states, and promulgate a turbidity NEL 

for inclusion in the Construction ELG.

In years past, it may have been difficult to set NELs for discharges associated with construction activities. 

However, new data,21 and progress in scientific understanding and technical capabilities have made it 

feasible to establish and implement NELs.

RESPONSE

EPA acknowledges commenters’ request that EPA reinstate a numeric standard for turbidity and 

commenters’ submission of data and references in support of a numeric turbidity limitation. EPA 

previously stated in the 2009 final rule that numeric effluent limitations are feasible. While EPA does not 

disagree with this statement, the Agency currently lacks sufficient data to establish such limitations that 

are reflective of the best available technology economically achievable given the variations in 

performance due to factors such as soil types, climate and precipitation duration and intensity that 

occur across the country. While informative, data submitted by commenters, in combination with data 

that EPA has in-house, is not sufficient to support a numeric limitation for all project types and locations 

at this time. Therefore, it is EPA's position that it is premature to establish revised numeric effluent 

limitations for this category at this time, and that the resulting final rule represents the best available 

technology economically achievable and the best available demonstrated control technology.
January 17, 2014

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3.0 Comments concerning examples included in the proposed rule preamble

Several commenters were opposed to the examples of BMPs and other explanatory discussion in the 

preamble to the proposed rule. These commenters indicated that this discussion was extraneous and 

unnecessary and that these examples may confuse permit writers, permitting authorities, permittees 

and the general public. EPA disagrees with all of these comments. The majority of comments received 

from permit writers, permitting authorities, permittees and the general public did not indicate that 

these examples caused confusion. While EPA appreciates concerns that these examples may have 

caused confusion, EPA believes that the discussion contained in the preamble to the proposed rule may 

aid permitting authorities in developing permit language to implement the requirements. EPA notes that 

permitting authorities oftentimes need to develop specific language to implement the narrative rule 

requirements in permits. One may consult the most recently issued EPA CGP as an example. The permit 

contains extensive, specific controls that serve to implement the narrative requirements of the C&D 

rule, as well as other requirements that are not associated with the C&D rule. As industry practice and 

technology changes over time, permitting authorities (including EPA) will generally update those permits 

to reflect current best practices, reflective of the C&D rule requirements as well as other requirements. 

Therefore, including examples of practices that reflect industry best practices at this point in time is 

appropriate. EPA notes that permitting authorities are able to include language they determine is 

appropriate in permits or guidance when implementing the rule consistent with their interpretation of 

the rule, and are not obligated to include the specific examples cited by EPA in the preamble to the 

proposed rule. 
January 17, 2014

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4.0 Other comments

EPA notes that one comment (ID EPA-HQ-OW-2010-0884-0165) was not germane to the C&D rule 

revisions.

** **

COMMENT

Finally, NAHB strongly encourages EPA to revise the National Pollutant Discharge Elimination System 

general permit for stormwater discharges from construction activities (CGP) to make it consistent with 

the revised C&D rule language

RESPONSE

EPA is not revising the current construction general permit to be consistent with the final rule 

requirements at this time. Permitting authorities are not required to incorporate new or modified 

effluent limitations guidelines into applicable NPDES permits until they are next up for issuance. EPA 

will evaluate what changes may be appropriate when the Agency begins the process of issuing its next 

CGP. EPA believes that the 2012 CGP was written in a manner that is consistent with the rule changes 

promulgated today. Therefore, the Agency does not anticipate making significant modifications to the 

permit as a result of these rule revisions when it is next reissued.