Unformatted 2012 CGP Comment Response Essays 

 February 16, 2012

Response to Public Comments 

EPA NPDES 2012 Construction General Permit 

February 16, 2012 

Docket ID #: EPA-HQ-OW-2010-0782

 
Unformatted 2012 CGP Comment Response Essays 

 February 16, 2012

Table of Contents 

Comment Response Essay 1 Permit Authorization and Termination Essay .................................. 1

Comment Response Essay 2 Erosion and Sediment Control Requirements ................................ 16

Comment Response Essay 3 C&D Rule and Numeric Turbidity Limit ....................................... 68

Comment Response Essay 4 Water Quality-Based Effluent Limitations ..................................... 72

Comment Response Essay 5 Inspections ...................................................................................... 84

Comment Response Essay 6 Corrective Action ........................................................................... 97

Comment Response Essay 7 Staff Training................................................................................ 105

Comment Response Essay 8 Stormwater Pollution Prevention Plan (SWPPP) ......................... 107

Comment Response Essay 9 Appendices ................................................................................... 113

Comment Response Essay 10 General Statement of Support .................................................... 119

Comment Response Essay 11 General Statement of Opposition ............................................... 120

Comment Response Essay 12 Request to Extend Permit Period ................................................ 121

Comment Response Essay 13 Miscellaneous Comments ........................................................... 122

Comment Response Essay 14 Structure of the Permit ................................................................ 131

Comment Response Essay 15 Environmental Assessment ........................................................ 132

Comment Response Essay 16 EPA Interaction with Stakeholders ............................................ 133

Comment Response Essay 17 General Comments about Linear Construction .......................... 134

Comment Response Essay 18 No Code, Supplemental Information .......................................... 136

Comment Response Essay 19 Cumulative Impact of CGP and other Regulations of Industry . 137

Comment Response Essay 20 Duplicate Comments .................................................................. 140
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Comment Response Essay 1 Permit Authorization and Termination Essay 

Response 1.1 Permit Applicability

EPA received several comments relating to the applicability of the CGP. One commenter 

requested that EPA specify in the permit that certain North American Industry Classification 

System (NAICS) categories are not covered by the permit. EPA clarifies that, as described in the 

permit fact sheet, the only categories of facilities covered under the permit include those that 

fall into the NAICS codes 233 (Building, Developing and General Contracting) and 234 (Heavy 

Construction). In Part 1.3 of the final CGP, EPA clearly specifies that only stormwater discharges 

described under 40 CFR § 122.26(b)(14)(x) or § 122.26(b)(15)(i), or those designated as needing 

a permit under 40 CFR § 122.26(a)(1)(v) or § 122.26(b)(15)(ii) are eligible for coverage under the 

CGP. Therefore, EPA does not believe that it is necessary to specify that certain NAICS 

categories are not covered by the permit. Commenters requested that EPA specifically exempt 

projects that have individual NPDES permits that include appropriate erosion and sediment 

control requirements from permit coverage. EPA clarifies that, if a site is covered by an individual 

NPDES permit that covers any discharge resulting from the active construction phase of the 

project, then that site is ineligible for obtaining coverage under the CGP. See final permit section 

Part 1.1.d.i. 

Commenters requested that EPA clarify the definition of “disturbance” for the purposes of 

determining whether permit coverage is required. EPA believes that the permit is clear regarding 

which types of disturbances trigger the need for permit coverage. In Appendix A of the permit, 

EPA has defined “construction activity” as “earth-disturbing activities, such as clearing, grading, 

and excavation of land.” This definition is consistent with the regulatory description of 

“construction activities” at 40 CFR §122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i), but includes 

the addition of the term “earth-disturbing activities” to provide clarification to permittees that 

activities requiring permit coverage must result in an “earth disturbance.” EPA has also defined 

“earth-disturbing activity” in Appendix A as “actions taken to alter the existing vegetation 

and/or underlying soil of a site, such as clearing, grading, site preparation (e.g., excavating, 

cutting, and filling), soil compaction, and movement and stockpiling of top soils.” EPA believes 

that these definitions provide clarification to permittees about what specific types of 

disturbances are subject to permit coverage, and that these definitions are consistent with the 

regulatory definition of construction activities subject to permit coverage at 40 CFR § 

122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i). Therefore, EPA does not believe further clarification 

on the definition of “disturbance” in the permit is necessary. In response to a comment that 

suggested that EPA only subject “soil disturbances” to permit coverage, and another comment 

that suggested that EPA only subject “areas of actual excavation” to permit coverage, EPA 

believes that the abovementioned definitions are consistent with the regulatory requirements 

regarding which types of construction activities are subject to permit coverage (which are 

broader than the suggested definitions), and therefore disagrees with the suggestions. 

Commenters questioned why the permit does not require that a site discharge to a water of the 

U.S. to be covered by the permit. EPA clarifies that permit coverage is only required if a site 

discharges to waters of the U.S., and believes that the permit language is clear regarding its 

applicability. The term “discharge” as used in the permit is synonymous with a “discharge of a 

pollutant,” (see Appendix A of the permit), which is defined at 40 CFR § 122.2 as “any addition of 

any ‘pollutant’ or combination of pollutants to ‘waters of the U.S.’ from any ‘point source’.” EPA 

believes that the following language from the cover page of the final CGP clearly limits the 

applicability of the CGP to sites discharging to water of the U.S: “...‘operators’...are authorized 

to discharge pollutants in accordance with the effluent limits and conditions set forth herein.” 

Therefore EPA believes that no modifications to the permit are necessary. 

Response 1.2 The Person(s) Responsible for Permit Coverage
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Commenters observed that EPA proposed different definitions of “operator” in the draft permit 

body and in Appendix A (definitions). EPA notes that the inconsistency of these definitions is due 

to a typographical error. EPA had intended for the definition in Appendix A to be the same as 

the definition as drafted in the proposed permit body, and has made these definitions consistent 

in the final CGP. EPA notes that the definition of “operator” in the final CGP, although slightly 

modified, is consistent with the definition of “operator” from the 2008 CGP. A commenter 

disagreed with the clarification provided in the definition of “operator” in the draft Appendix A 

that states, “This definition is provided to inform permittees of EPA’s interpretation of how the 

regulatory definitions of ‘owner or operator’ and ‘facility or activity’ are applied to discharges of 

stormwater associated with construction activity”, noting that “[t]he above-referenced 

definition does not help permittees understand the role of the owner or how that term varies 

from ‘operator’ or whether the two terms are to be considered one and the same for purposes 

of determining who is to obtain permit coverage.” EPA disagrees, and maintains that the 

definition of “operator” in the final permit indeed clarifies the regulatory definition of “owner or 

operator” at 40 CFR § 122.2 by providing more information about the roles and responsibilities of 

parties associated with a construction projects that EPA has interpreted as meeting the 

definition of operator. EPA has therefore retained this statement in the definition of “operator” in 

the final Appendix A. The commenter also suggested that EPA identify in the permit the specific 

parties that are responsible for each aspects of the permit. EPA has provided clarification in the 

final permit fact sheet by describing that the party meeting the first part of the definition of 

“operator” (i.e., the party with operational control over construction plans and specifications, 

including the ability to make modifications to those plans and specifications) is in most cases the 

owner of the site, and the party meeting the second part of the definition of “operator” (i.e., the 

party has day-to-day operational control of those activities at a project that are necessary to 

ensure compliance with the permit conditions) is in most cases the general contractor of the 

project. See Part VI.1 of the final fact sheet. EPA notes that where there are multiple parties 

meeting the definition of “operator”, each party is required to obtain permit coverage. 

Beyond this clarification, EPA does not believe it is necessary to further define in the permit or 

fact sheet how all of the various construction site positions may or may not meet the definition of 

“operator”. Several commenters urged EPA to retain flexibility in the permit to allow the various 

parties on a construction site to determine who should be the permit holder (i.e., which parties 

meets the definition of “operator”) and to determine overall permit compliance responsibilities. 

EPA agrees with these comments, and therefore believes it is more appropriate for the parties 

involved in a construction site to determine for themselves which party(ies) meet the definition of 

“operator” under the CGP. 

Several commenters argued that EPA's definition of operator in the CGP, which could require 

permit coverage of the owner if they meet the definition, is contrary to the NPDES implementing 

regulations. EPA disagrees. EPA's definition of operator under the CGP is consistent with the 

NPDES regulations at 40 CFR § 122.2, which define "owner or operator" as "the owner or operator 

of any 'facility or activity' subject to regulation under the NPDES program". EPA has consistently 

interpreted this definition to mean that "owners and operators" of construction activities are 

subject to EPA's regulations regarding construction site stormwater discharges in the 2003 and 

the 2008 CGP. See page five of the 2003 CGP fact sheet for a discussion on which parties meet 

the definition of “operator”: http://www.epa.gov/npdes/pubs/cgp2003_fs.pdf. EPA clarifies that 

all parties meeting one or both parts of the definition of “operator” must be covered by the 

permit. EPA also clarifies that landowners are not required to get permit coverage if they do not 

meet the definition of operator (i.e., if a landowner does not have operational control over 

construction plans and specs nor day-to-day operational control of activities at a project, they 

are not required to be covered under the permit). On the same topic, several commenters 

suggested that EPA require the contractor to be the sole construction site operator. A 

commenter also suggested that EPA modify the first part of the definition of “operator” to clarify 

that the definition applies to those with the control necessary to ensure compliance with permit 
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conditions. EPA appreciates the suggested modifications to the definition of “operator” in the 

permit, and understands that in some scenarios, owners (i.e., those having operational control 

over construction plans of specifications, including the ability to make modifications to those 

plans and specifications) have limited involvement on the construction site. However, EPA has 

found that it is necessary to require permit coverage of both the owner (i.e., the party with 

operational control over construction plans and specifications, including the ability to make 

modifications to those plans and specifications) and the general contractor (the party with dayto-day operational control of those activities at a project that are necessary to ensure 

compliance with the permit conditions) to ensure that all parties with responsibilities over the 

control of erosion and sediment on the site are regulated. For example, EPA is aware that it has 

been the experience of some general contractors on especially large transportation and 

commercial construction projects, where the contract is awarded the lowest bid, and the site 

design may have been developed without sufficient regard for stormwater management and 

permit compliance, that it is very difficult to then later develop a Stormwater Pollution Prevention 

Plans (SWPPP) that complies with the permit, but conflicts with the site plans. EPA believes that, 

although in some cases the owner has limited involvement, owners do have the ability to 

approve and/or make modifications to site plans, including SWPPPs, and EPA believes, therefore, 

that owners ultimately have the ability and responsibility to ensure permit compliance. Because 

EPA believes that owners meeting the definition of “operator” should be a permitted entity 

under the CGP, EPA is retaining the definition of “operator” as proposed in the draft permit 

body. 

EPA proposed in the draft CGP definitions for “primary operator” and “secondary operator” for 

situations where there are multiple operators associated with the same project, and described 

that all such operators are considered to be co-permittees and are held jointly and severally 

responsible for complying with the permit. Several commenters disagreed that EPA should define 

the roles of a “primary operator” and “secondary operator”, noting that, where there are 

multiple permittees, it should be up to the permittees to determine their permitting structure. 

Some commenters also indicated that distinguishing between primary and secondary operators 

could cause confusion with determining permit liability, complicating the permitting process. It 

was EPA’s intention that by defining “primary operator” and “secondary operator”, EPA would 

provide administrative efficiency for sites with multiple operators by reducing the amount of time 

that a secondary operator would be subject to review before obtaining permit coverage. 

However, after further reflection, EPA agrees with commenters that permittees should have the 

flexibility to determine their permitting roles and compliance responsibilities, and therefore has 

removed the definitions for “primary operator” and “secondary operator” from the final permit. 

See Part 1.1a of the final permit and Part VI.1 of the final permit fact sheet. EPA has also clarified

in the permit and fact sheet that subcontractors do not meet the definition of “operator”, and 

thus are not required to obtain permit coverage. Several commenters disagreed with EPA’s 

statement in the draft permit that all operators are to be held jointly and severally responsible 

under the permit. Among the concerns were that the joint and several liability provision in the 

permit is inconsistent with industry practice, and could potentially lead to inequalities among 

permittees and permitting process complications. Many commenters suggested that it should 

be up to permittees to determine permit compliance responsibilities. EPA appreciates the 

comments received on this draft permit language. Upon further reflection, EPA has omitted this 

language from the final permit. Given that EPA maintains authority to apply joint and several 

liability under the CWA, it is not necessary to elucidate this as a provision in the permit. 

Commenters suggested that EPA retain language from Part 5.12 of the 2008 CGP that described 

the compliance responsibilities for operators that only have operational control over a portion of 

a larger project. EPA agrees with this suggestion, believing that it will provide clarification to sites 

with multiple operators clarification of the compliance responsibilities for each operator. 
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Therefore, EPA has added to Part 1.1a of the final CGP the following language that is consistent 

with Part 5.12 of the 2008 CGP: 

1. If one operator has control over plans and specifications and a different operator 

has control over activities at the project site, they may divide responsibility for 

compliance with the terms of this permit as long as they develop a group SWPPP (see 

Part 7.1.1), which documents which operator has responsibility for each requirement 

of the permit.

2. If an operator only has operational control over a portion of a larger project (e.g., 

one of four homebuilders in a subdivision), the operator is responsible for compliance 

with all applicable effluent limits, terms, and conditions of this permit as it relates to 

the activities on their portion of the construction site, including protection of 

endangered species, critical habitat, and historic properties, and implementation of 

control measures described in the SWPPP in the areas under their control. 

3. You must ensure either directly or through coordination with other permittees, that 

your activities do not render another party’s pollutant discharge controls ineffective. 

4. If the operator of a “construction support activity” (see Part 1.3c) is different than the 

operator of the main construction site, that operator is also required to obtain permit 

coverage.

Response 1.3 Permit Eligibility

One commenter questioned whether operators permitted under the 2008 CGP will be required 

to follow the conditions of the new CGP. Another commenter indicated that 90 days is not 

sufficient time to comply with the new permit given the substantial changes, and instead 

suggested that existing permittees should be able to maintain coverage under the 2008 CGP. 

EPA clarifies that operators of existing projects (defined in Part 1.4.2 as “construction projects 

that commenced construction activities prior to February 16, 2012”) have up to 90 days after the 

issuance of the 2012 CGP to submit their NOI for coverage under the 2012 CGP. After coverage 

under the 2012 CGP has been obtained, permittees will be required to comply with the terms of 

the 2012 CGP. However, EPA acknowledges that there may be circumstances when a permittee 

of an existing project will have difficulty in complying with certain new permit provisions. For 

example, a site that is permitted under the 2008 CGP that has already conducted earthdisturbing activities within 50 feet of the surface water (i.e., within the buffer) may find it 

infeasible to comply with the requirements to provide a buffer, and may also find it infeasible to 

provide equivalent erosion and sediment controls because they have existing installed 

stormwater controls on their site that meet the requirements of the 2008 CGP. Therefore, EPA has 

included the following note in Part 2 of the final permit: “If your project is an “existing project” 

(see Part 1.4.2.b) or if you are a “new operator of an existing project” (see Part 1.4.2.c), and it is 

infeasible for you to comply with a specific requirement in this Part because (1) the requirement 

was not part of the permit you were previously covered under (i.e., the 2003 or 2008 CGP), and 

(2) because you are prevented from compliance due to the nature or location of earth 

disturbances that commenced prior to February 16, 2012, or because you are unable to comply 

with the requirement due to the manner in which stormwater controls have already been 

installed or were already designed prior to February 16, 2012, you are required to document this 

fact in your SWPPP and be waived from complying with that requirement. This flexibility applies 

only to the requirements in Parts 2.1, and 2.3.3 through 2.3.5 (except for Parts 2.3.3.1, 2.3.3.2b, 

2.3.3.3c.i, and 2.3.3.4).This only applies to those portions of your site that have already 

commenced earth-disturbing activities or where stormwater controls implemented in 

compliance with the previous permit have already been installed.” EPA believes this note 
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addresses concerns expressed by commenters about difficulties with complying with new permit 

provisions. 

EPA received many comments on the draft permit eligibility provision requiring that any CWA 

Section 404 dredge and fill permit(s) have been obtained prior to receiving coverage under the 

CGP. Some of the comments included the following: 

• Requiring any 404 permits to be obtained ahead of time could significantly delay the it 

takes to be covered under the CGP, leading to a delay of construction activities; 

• Operators should be authorized to begin work under the CGP outside of areas requiring 

404 permit coverage while the other necessary permits are being obtained; 

• Including 404 permit coverage as an eligibility condition is an extraneous requirement 

that is duplicative with requirements in the Section 404 permit program; and 

• For emergency-related construction activities, it would be impossible to have applied for 

and received a 404 permit prior to conducting earth-disturbances. 

EPA appreciates the feedback from commenters on this proposed eligibility provision, and upon 

further reflection, EPA does not believe that CWA section 404 permit coverage should be 

included under the scope of the CGP. Therefore, EPA has removed this provision from final 

permit. A commenter also noted that the reference to CWA section 404 permits in the proposed 

permit provision to minimize stream crossings is inconsistent with the requirements in the 

abovementioned eligibility provision. EPA notes that it has also removed this provision from the 

final permit. See comment response essay 2.2.1. 

One commenter noted that EPA should have included as an eligibility provision projects whose 

discharges have been designated by EPA as needing a permit under § 122.26(a)(1)(v) or § 

122.26(b)(15)(ii), to be consistent with proposed Part 1.4.1.2. EPA agrees, and has made the 

suggested change in the final permit. See Part 1.3b. 

EPA received several comments regarding the proposed provision stating that a project is not 

eligible for coverage if it had been “[c]overed by another NPDES stormwater permit in the past 

five (5) years where that permit established site-specific water quality-based effluent limits 

developed for the stormwater component of the discharge.” The comments suggested that the 

provision was overly broad, and could apply in cases where a site appropriately terminated 

permit coverage and subsequently needed to obtain permit coverage due to unforeseen 

circumstances (e.g., a linear utility project that finished earth disturbances and terminated 

coverage, but due to a storm event, needed to obtain permit coverage to repair damages). It 

was not EPA’s intent for this provision to apply to such a scenario. Upon further reflection, EPA 

believes that the intent of the abovementioned proposed provision is actually covered by the 

final permit provision stating that a site is ineligible for permit coverage if discharges from the 

project are “[a]lready covered by a different NPDES permit for the same discharge.” EPA notes 

that this does not include sites currently covered under the 2003 or 2008 CGPs, which are in the 

process of obtaining coverage under this permit, and sites covered under the 2012 permit, 

which are transferring coverage to a different operator. Therefore, EPA has deleted the provision 

of concern. 

EPA received a comment requesting clarification that sites that have stormwater discharges 

covered under a different NPDES permit should not be required to obtain coverage under the 

CGP. Specifically, a commenter wanted clarification that stormwater discharges from mining 

activities that are covered under the Multi-Sector General Permit (MSGP) are not required to 

obtain coverage under the CGP. EPA confirms that discharges covered under the MSGP are not 

under the scope of the CGP, and believes that this is made clear in the final permit provision in 

Part 1.1d.i that states that a site is ineligible for permit coverage if discharges from the project 

are “[a]lready covered by a different NPDES permit for the same discharge.” To clarify, EPA does 
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not require stormwater discharges from construction activities associated with mining activities 

that are covered under the MSGP to also be covered under the CGP. The commenter 

suggested that EPA clarify this in the permit and fact sheet. EPA does not believe this clarification 

is necessary due to the fact that the fact sheet already clearly discusses the NAICS categories 

that are covered by the permit. Another comment similarly requested that EPA exempt from the 

CGP parties that have received NPDES coverage for discharges from construction activities. EPA 

clarifies that, under Part 1.1d.i of the final CGP, if a site’s stormwater discharges are already 

covered by an NPDES permit (other than the 2003 or 2008 CGP) (i.e., an individual NPDES 

permit), then permit coverage under the CGP is not available or required. 

EPA received several comments on the eligibility provision for emergency-related construction 

activities in the draft permit. Many of the comments related to the fact that the proposed 

provision required operators of emergency-related projects to comply with all relevant 

requirements in the permit regarding discharges associated with construction activities as soon 

as they submit their NOI. Some of the concerns with this provision include that, in some 

emergencies, it may not be safe to comply with all parts of the permit, and it may not be 

feasible to comply with all parts of the permit within 7 days after the commencement of earthdisturbing activities, as was proposed. EPA agrees with these concerns, and therefore in the final 

permit allows permittees up to 30 days after the commencement of earth-disturbing activities to

submit the NOI and comply with all parts of the permit. EPA believes that 30 days will provide 

operators of emergency-related projects with sufficient time to safely and effectively develop 

their SWPPP and comply with the permit. One commenter requested that EPA clarify whether 

provisional coverage granted to emergency-related projects would be retained if EPA delays or 

denies permit coverage after receipt of the NOI. EPA clarifies that if the NOI is placed on hold, 

the project will continue to be provisionally covered. However, if permit coverage is denied, 

provisional coverage will be terminated, and the permittee will be required to apply for an 

individual permit, in which case EPA will inform the permittee of any additional requirements. 

EPA also received comments that the proposed requirement for the SWPPP to be developed 

within 7 days after submittal of the NOI is not a reasonable amount of time for emergencyrelated projects. The final permit requires operators of emergency-related projects to complete 

their SWPPP prior to submitting their NOI. However, EPA believes that this permit is responsive to 

the concerns of commenters given that it ultimately provides operators of emergency-related 

projects with more time (i.e., 16 additional days – 30 instead of 14) for SWPPP development than 

was proposed. Commenters expressed concern that the scope of projects that would qualify as 

“emergency-related projects” under the proposed permit was too narrowly limited to natural 

disasters. One commenter requested that EPA include in its emergency-related eligibility 

provisions emergencies relating to telecommunications projects, including health emergencies, 

law enforcement emergencies, resource management emergencies, and natural disasters of all 

kinds. EPA agrees with these comments, and has therefore widened the scope of emergencyrelated projects to also include public emergencies, such as widespread disruptions in essential 

public services, where the work requires immediate authorization to avoid imminent 

endangerment to human health, public safety, or the environment, or to reestablish essential 

public services. EPA believes this modification is responsive to the concerns of the commenters. 

EPA received numerous comments on the eligibility requirements regarding water quality 

standards in the proposed permit. One commenter argued that the proposed water quality 

standards eligibility requirements are inconsistent with the requirements of 40 CFR § 122.4(i), and 

suggested that they “should be revised to require more rigorous and supportable demonstration 

that water quality standards will be met in the receiving water prior to issuance of coverage for 

new sources.” EPA disagrees with the comment based on the fact that EPA expects that, as 

stated in Part 1.2.2 of the final permit, “compliance with the stormwater control requirements of 

this permit, including the requirements applicable to such discharges in Part 3.2, will result in 

discharges that will not cause, have the reasonable potential to cause, or contribute to an 
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excursion above any applicable water quality standard.” Moreover, if EPA has determined prior 

to permit authorization that an excursion of an applicable water quality standard will occur, EPA 

states in Part 1.2.2 of the final permit that it may notify permit applicants that permit coverage 

under the CGP is not available, and that an individual permit is necessary. EPA also provides in 

Part 3.1 of the permit that EPA may impose additional water quality-based limitations on a sitespecific basis after permit authorization if information in the NOI or from other sources indicates 

that the discharges are not controlled as necessary to meet the applicable water quality 

standards. Therefore, EPA does not believe that the permit should require a more rigorous and 

supportable demonstration. The commenter also requested that EPA clarify in the fact sheet 

how the demonstration of compliance with a TMDL will be achieved prior to permit coverage 

being obtained. As EPA points out above, EPA believes that compliance with the permit limits 

and conditions will result in achievement of water quality standards, including compliance with 

TMDL wasteload allocations. EPA believes the following language to Part 3.1 of the final permit 

ensures that discharges covered under the permit will be in compliance with wasteload 

allocations in a TMDL: “EPA will also impose additional water quality-based limitations on a sitespecific basis, or require you to obtain coverage under an individual permit, if information in your 

NOI, or from other sources indicates that your discharges are not controlled as necessary to 

meet applicable water quality standards. This includes situations where additional controls are 

necessary to comply with a wasteload allocation in an EPA established or approved TMDL.” EPA 

notes that, in EPA’s experience, relatively few TMDLs contain WLAs that would be applicable to 

specific construction sites, but if such requirements do exist and are applicable to the operator’s 

site, EPA believes that EPA is in a better position than the operator to determine exactly what the 

operator must do to be consistent with the assumptions and requirements of the TMDL. EPA 

therefore believes this approach is both less burdensome to the permittee, and will better ensure 

that all applicable requirements in EPA approved or established TMDLs are complied with. 

EPA also received several comments that disagreed with the proposed permit’s eligibility 

requirements for discharges to waters with high water quality. As described in the Part VIII.3.2 of 

the fact sheet, the requirements that apply to discharges into high quality waters in the final 

permit establish a process for EPA to determine and specify if further actions are required for 

new or increased discharges to Tier 2, Tier 2.5, and Tier 3 waters, rather than leaving it to the 

construction operator to interpret what it means to comply with each state’s or tribe’s 

antidegradation requirements. By imposing on permittees that discharge to Tier 2, Tier 2.5, or Tier 

3 water the requirement to comply with the additional requirements, on top of the permit’s other 

effluent limits and conditions, EPA believes that authorizing these discharges will not result in a 

lowering of water quality. EPA maintains that it has appropriately applied the antidegradation 

requirements in its eligibility provision in Part 1.2.3 of the final permit. EPA has determined, as 

discussed in Part VIII.3.2 of the fact sheet, that compliance with the CGP (including the eligibility 

condition for discharges to Tier 2, Tier 2.5, and Tier 3 waters, the requirements applicable to those 

discharges in Part 3.3.2 of the final permit, and any other applicable state or tribal 

antidegradation conditions that are included in Part 9 of the permit) generally will be sufficient 

to satisfy Tier 2 (or Tier 2.5) and Tier 3 antidegradation requirements because authorizing these 

discharges will not results in a lowering of water quality, making individualized Tier 2 or Tier 3 

review unnecessary. Commenters also expressed concern that EPA should not specify 

requirements that apply to Tier 2.5 waters, because Tier 2.5 is not recognized in the Federal 

regulations. EPA disagrees, and believes that Tier 2.5 should be specifically included in the Part 

1.2.3 eligibility provisions due to the fact that some states use this terminology to designate 

waters using criteria that EPA considers to be more stringent than the federal Tier 2 designation, 

but less stringent than the federal Tier 3 designation. EPA also believes that it is appropriate to 

include Tier 2.5 waters in the permit because the CWA requires that NPDES permits include limits 

and conditions to meet state water quality standards, which include antidegradation 

requirements. Without identifying these waters in Part 1.2.3, it would be unclear to permittees 

discharging to such waters whether or not the eligibility requirements in Part 1.2.3 apply to them. 
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Commenters also argued that the permit incorrectly applies the test of “will not lower water 

quality” to Tier 2 waters, and that the permit should clarify that the eligibility tests for Tier 2, Tier 

2.5, and Tier 3 waters differ. EPA disagrees. In the fact sheet, EPA describes that the approach in 

the permit with regard to high quality Tier 2 waters meets the Tier 2 requirements by imposing 

requirements that will not result in a lowering of water quality (i.e., that will maintain and protect

water quality), rendering an individualized Tier 2 “review” unnecessary. The fact sheet goes on to 

describe the rationale for how the approach with regard to high quality waters also satisfies the 

requirement for Tier 2 review with regard to necessity and important economic or social 

development. See Part VII.3.2 of the fact sheet. Additionally, as described above, because the 

permit’s approach with regard to antidegradation has already met Tier 2, Tier 2.5, and Tier 3 

requirements, it is not necessary to specify in the permit the differences between the 

requirements since, in this case, no lowering of water quality will ensure that water quality is 

maintained and protected for all three tiers. In summary, EPA disagrees with these suggested 

changes to the eligibility provisions with regard to high quality waters, and maintains that the 

eligibility provision in Part 1.2.3 of the permit appropriately applies the antidegradation 

requirements as described above and in Part VIII.3.2 of the fact sheet. 

In response to a comment that EPA should consider local land use review as another permit 

eligibility requirement, EPA notes that the CGP does not regulate land use, and therefore, it 

would not be appropriate to include eligibility requirements for which the Agency does not have 

the authority. 

Response 1.4 Discharges Authorized by the CGP 

One commenter suggested that the permit should not authorize the discharge of pollutants from 

non-stormwater discharges. EPA points out that is has modified the provision authorizing the 

discharge of non-stormwater discharges to state that non-stormwater discharges are authorized 

under the CGP “provided that, with the exception of water used to control dust and to irrigate 

areas to be vegetatively stabilized, these discharges are not routed to exposed soil on your site 

and you comply with any applicable requirements for these discharges in Part 2.” EPA believes 

that the addition of this language will ensure that any non-stormwater discharges authorized 

under the permit will not lead to a discharge of pollutant that could cause or contribute to an 

exceedance of water quality standards. 

A commenter found that the proposed language describing off-site areas (i.e., construction 

support activities) unclear. EPA clarifies that any stormwater discharges associated with 

construction support activities, such as off-site borrow/fill areas, that meet the requirements in 

Part 1.3c of the final permit, are required to be covered under the permit. 

EPA received many comments on the proposed requirements regarding allowable nonstormwater discharges. A commenter requested that EPA conduct an evaluation to ensure that 

pollutants from the non-stormwater discharges on the list will be adequately controlled. The 

commenter specifically requested that EPA evaluate the need for additional limitations on 

restricting the source water used for the activity, the need for limitations on prohibitions for 

washing activities that may introduce dissolved pollutants, the need for additional limitations to 

address chlorine, and the need for limitations and/or monitoring necessary to determine if 

contaminants are present for certain discharges. EPA would like to point out that additional 

specificity has been added to the allowable non-stormwater discharge requirements in the final 

permit to ensure that these discharges to do not cause or contribute to an exceedance of 

water quality standards. The permit requires that, except for water used to control dust and to 

irrigate areas to be vegetatively stabilized, these discharges must not be routed to areas of 

exposed soil on the site, and all the requirements applicable to the discharges in Part 2 must be 

met. With regard to the comment on the washing limitations, EPA would like to also point out 

that Part 2.3.3.2 and Part 2.3.3.4 contain very specific pollution prevention standards that EPA 

believes will effectively minimize the discharge of pollutants from washing activities, including 
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requirements to provide an effective means of minimizing the discharge of sediment from 

washing activities, requirements regarding the washing of applicators and containers used for 

paint, concrete, or other materials. Part 2.3.1.4 also prohibits the discharge of soaps, solvents, or 

detergents used in vehicle and equipment washing. Additionally, all the allowable nonstormwater discharges are held to the standard in Part 3.1 of the permit that states, “Your 

discharge must be controlled as necessary to meet applicable water quality standards.” 

Because these discharges are ultimately held to the standard that they must meet water quality 

standards, and because the permit contains additional specificity regarding these discharges, 

EPA believes that pollutants from the allowable non-stormwater discharges will be adequately 

controlled. EPA therefore disagrees that further evaluations are necessary. 

A commenter expressed concern with the proposed addition of dewatering discharges as 

allowable non-stormwater discharges, suggesting that the use of the term inappropriately 

describes dewatering water as “wastewater.” EPA agrees that dewatering water is not 

wastewater if treated by an appropriate control, and has modified the language to state 

“Construction dewatering water that has been treated by an appropriate control under Part 

2.1.3.4.” The commenter also took issue with the description that these waters only contain 

“trace amounts of sediment”, describing this as an ambiguous standard. EPA agrees and has 

removed this language from the requirement as well. See Part 1.3d.xii of the final permit. EPA 

believes that these modifications address the concerns of the commenter, and that the addition 

of dewatering water to the list of non-stormwater discharges is justified. 

One commenter suggested that EPA add the following discharges to the list of allowable nonstormwater discharges: water for compaction of earth and aggregate base course for routine 

maintenance of dirt roads and shoulders provided reclaimed or other wastewaters are not used; 

water used for compacting soil provided effluent or other wastewaters are not used; diverted 

stream flows; discharges from riparian habitats and wetlands; and flows used for drilling and 

coring such as for evaluation of foundations materials, where flows are not contaminated with 

additives. While EPA appreciates the suggested additions to the list of allowable non-stormwater 

discharges, EPA does not believe they should be included in the final CGP. EPA describes the 

reasons why each of these discharges should not be included in the CGP as follows: 

• Water for compaction of earth and aggregate base course for routine maintenance of 

dirt roads and shoulders provided reclaimed or other wastewaters are not used and 

water used for compacting soil provided effluent or other wastewaters are not used. 

EPA response: The routine maintenance of dirt roads and shoulders does not trigger CGP 

coverage. Additionally, EPA believes that water used to compact soils will only cause a 

discharge if overapplied, and if it is overapplied, the discharge is likely to be 

contaminated by sediment. Therefore, EPA believes these discharges are not 

appropriate to include in the final CGP. 

• Diverted stream flows and discharges from riparian habitats and wetlands. 

EPA response: These discharges are covered by the CWA Section 404 dredge and fill 

permitting program. Therefore, it would not be appropriate to include these in the final 

CGP. 

• Flows used for drilling and coring such as for evaluation of foundations materials, where 

flows are not contaminated with additives. 

EPA response: EPA believes that through proper management, flows from drilling and 

coring activities can be controlled such that a discharge does not occur. EPA 

furthermore believes that discharges from these activities should not be allowed 

because of the large amounts of turbidity in these discharges. Therefore, EPA disagrees 

with the suggested addition. 
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A commenter also suggested that EPA add “landscape irrigation” to the list of allowable nonstormwater discharges. EPA mistakenly omitted landscape irrigation from the list of allowable 

non-stormwater discharges, which was included in the 2008 CGP, and has added it back in to 

Part 1.3d of the final permit. 

Response 1.5 Discharges Not Authorized by the CGP

EPA received several comments on the draft provisions covering the list of discharges that are 

not addressed under the permit. Some commenters were confused as to why certain discharges 

included in the list would preclude the ability to be covered under the CGP. Upon further 

reflection, EPA believes that the provision is not necessary because it only covers discharges not 

covered by the CGP, and also is concerned that the provision will lead to uncertainty as to 

whether permit coverage is required. Therefore, EPA has removed this provision from the final 

permit. EPA would like to clarify that permit coverage is required for all projects meeting the 

eligibility requirements in Part 1.1, even if the project is also covered by a CWA section 404 

permit. EPA received several comments with regard to discharges to combined sewer systems, 

which were addressed in this provision of the proposed permit. EPA's publication: Guidance 

Manual For The Preparation of NPDES Permit Applications For Storm Water Discharges Associated 

With Industrial Activity (April 1991, available at http://www.epa.gov/npdes/pubs/owm0241.pdf) 

includes a discussion supporting that stormwater discharges to combined sewer systems are 

outside the scope of this CGP. See Section 2.4.

Response 1.6 Permit Authorization and Termination

Response 1.6.1 Required information in the NOI. EPA received several comments on the 

summary of information required on the NOI form. A commenter suggested that the NOI form 

allow more detailed site location information for linear facilities. EPA considered allowing sites to 

enter in more than one project latitude/longitude point on the NOI form, but ultimately 

determined that requiring one latitude/longitude point of the approximate “center of the site, 

and requiring that sites include in their SWPPP a detailed site map, is sufficient information to 

require from permittees. 

A commenter expressed concern with the difficulty of complying with the requirement to list 

receiving water quality information on the NOI. Another commenter suggested that the eNOI 

system be capable of allowing linear projects to enter multiple discharge points due to the fact 

that these projects often cross multiple waterbodies. To assist permittees with determining their 

receiving water quality information, EPA has developed a mapping tool that will be accessible 

within the eNOI system that identifies, based the boundary of the site entered by the user, the 

waters to which the site discharges, and whether any of those waters are impaired waters. This 

tool will be capable of analyzing multiple points of discharge for those projects that may cross 

into multiple catchments, such as linear facilities. EPA believes that this tool will help the vast 

majority of permittees with determining receiving water quality information. EPA notes that the 

mapping tool will not help permittees identify whether they discharge to Tier 2, Tier 2.5, or Tier 3 

waters. However, EPA has made available an appendix with the list of Tier 2, Tier 2.5, and Tier 3 

waters for the geographic areas covered under the permit. See Appendix F. 

One commenter disagreed that EPA should require the latitude and longitude of the project’s 

discharge points to be provided on the NOI form due to the fact that the SWPPP already 

requires the discharge points to be shown on the site map. EPA notes this question was included 

on the proposed NOI form so that EPA could analyze the receiving water information for paper 

NOI applicants that did not use the CGP mapping tool that will be accessible within the eNOI 

system. However, EPA ultimately decided that requiring paper NOI applicants to determine their 

discharge points and provide this information on the NOI form would be difficult in some cases. 

Additionally, EPA was unsure if there would be resources available to analyze this information. 

Therefore, EPA has removed this required piece of information from the paper NOI form. 
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A commenter expressed concern with the requirement to provide with the NOI documentation 

of compliance with threatened and endangered species and historic preservation 

requirements. EPA notes that the information provided on the NOI regarding threatened and 

endangered species and historic preservation is necessary in order for the U.S Fish and Wildlife 

Service and National Marine Fisheries Service (“Services”) and the State Historic Preservation 

Office (SHPO), Tribal Historic Preservation Office (THPO), or other tribal representative, to conduct 

their review to ensure that potential impacts of construction activities on threatened and 

endangered species and historic properties have been appropriately considered and 

addressed. Therefore, the final NOI form includes questions requiring documentation of 

compliance with threatened and endangered species and historic preservation requirements. 

EPA disagrees with a comment that stated that threatened and endangered species and 

historic properties information is not typically available to general contractors. EPA believes that 

this information is indeed available to the general contractor due to the fact that this 

information is also required to be included in the SWPPP (i.e., the general contractor can simply 

get this information from the SWPPP), which is developed prior to submittal of the NOI. 

A commenter suggested that EPA reword the question on the NOI form requesting that 

operators provide the “Estimated Total Area of the Property (to the nearest quarter acre),” to 

instead state “Estimated Total Area of the Project/Site (to the nearest quarter acre).” EPA has 

determined that this information is not necessary for EPA’s purposes, and has therefore removed 

the question from the NOI form. Instead, EPA asks on the NOI form for the “Estimated Area to be 

Disturbed (to the nearest quarter acre).” The commenter also requested that “Section III of the 

NOI form link to the primary permittee’s project tracking number in order to avoid the obligation 

to develop multiple, duplicative SWPPPs.” EPA notes that the NOI form does require operators to 

enter in the tracking number if discharges from their project have been previously covered by 

an NPDES permit by a previous operator; however, this question does not have any association 

with an operator’s SWPPP development responsibilities. EPA clarifies that, where there are 

multiple operators associated with one project, EPA provides flexibility with regard to SWPPP 

development. Part 7.1.1 of the final permit states “You have the option of developing a group 

SWPPP where you are one of several operators who will be engaged in construction activities at 

your site. For instance, if both the owner and the general contractor of the construction site are 

permitted, the owner may be the party responsible for SWPPP development, and the general 

contractor can choose to use this same SWPPP, as long as the SWPPP addresses the general 

contractor’s scope of construction work and obligations under this permit. ” EPA believes that 

this clarification addresses the concerns of the commenter. 

Response 1.6.2 NOI submittal process. EPA received a number of comments on EPA’s proposal

to require that all operators use the eNOI system to submit their NOI form, except in limited 

circumstances where the relevant EPA Regional Office specifically authorizes the use of the 

paper NOI form. Most commenters were supportive of the paperless NOI submittal process, 

citing the environmental, resource, and efficiency benefits of this approach. However, many 

commenters expressed concern with the eNOI system, and urged that EPA retain the ability to 

use paper NOIs as well. Some of the concerns include: potential technological difficulties with 

accessing and using the eNOI system; a lack of computer or internet access for some operators; 

paper trail requirements; and individual preferences. EPA understands these concerns, and 

therefore in the final permit retains the ability for permittees to submit paper NOIs if given 

approval by the EPA Regional Office. 

Response 1.6.3 EPA’s eNOI system. EPA received comments suggesting improvements to the 

eNOI system. Among the suggestions were: 

• EPA should improve the process for transferring access to existing permits from an existing 

preparer to a new individual who is taking over responsibility for submitting the NOT; 
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• EPA should provide the tools and access for applicants to track the eNOI approval 

process electronically, and should generate an electronic receipt at the time the NOI is 

submitted; 

• EPA should allow applicants the ability to submit questions during the application 

submittal process; 

• EPA should allow the eNOI form to be saved and accessed before final submission; and 

• EPA should resolve problems with the latitude/longitude validation page. 

EPA notes that along with the issuance of the new CGP, it has improved the electronic NOI 

submittal process. EPA believes that the new system will address the vast majority of concerns 

raised by commenters. However, EPA acknowledges that while EPA continues its transition to the 

paperless NOI submittal process, issues may arise some circumstances. EPA notes that it will be 

working to address any issues with the use of the system in a timely matter. EPA also notes that 

EPA provides personalized help for eNOI registration questions and eNOI system questions 

through the phone, on email, or via a webform. Additionally, EPA will make available several 

training documents on the CGP eNOI website. EPA believes that, with the improvements to the 

eNOI system, and with the available guidance, the vast majority of permit applicants will not 

experience any difficulty in using the system. EPA also notes that it will take into account some of 

the suggested improvements that are not in the current system in future system enhancements. 

Several commenters also suggested that EPA make available online comprehensive information 

about permittees authorized under the CGP. EPA notes that it has made information submitted 

by permittees on their NOI forms publicly available in the past, and it will continue to do so with 

the 2012 CGP. EPA will be including a public NOI search page as part of the enhancements to 

the new eNOI system. In contrast, a commenter expressed concern making NOIs publically 

accessible online, suggesting that it could result in delays due to concerns from the public. EPA 

understands the concern expressed by the commenter; however, EPA believes that it is 

important for all interested parties to have ready access to permit applications. EPA also notes 

that it has the authority to make available information submitted to EPA on permit applications 

pursuant to 40 CFR § 122.7(b). 

Response 1.6.4 NOI submittal deadlines and the official date of permit coverage. EPA received 

numerous comments on proposed NOI submittal deadlines. Commenters expressed concern 

with EPA’s proposed extension of the waiting period before permit authorization from 7 days to 

30 days, noting that the longer waiting period will delay start times for projects on a fast track or 

with a low work window, could result in an inadequate SWPPP, and could increase project costs. 

Many commenters requested that EPA retain the same 7-day review period as in the 2008 CGP, 

while other commenters indicated that 14 days would be a more reasonable waiting period 

prior to NOI authorization. Some commenters also suggested that EPA retain the 7-day NOI 

waiting period for small-scale projects. EPA notes that the purpose of the waiting period 

extension was to provide the Services with additional time to conduct their review under ESA. 

However, upon further review, EPA learned that a 14-day review period would provide the 

Services and the SHPO/THPO/other tribal representative with adequate time to conduct their 

ESA review. EPA also believes, after reviewing comments, that a 14-day review period will 

present a minimal burden to permittees. EPA disagrees that small-scale projects should be 

provided with a shorter review period due to the fact that small-scale projects can present as 

much of a concern to critical habitat and threatened and endangered species and historic 

properties as larger-scale projects. Therefore, EPA believes they should be subject to the same 

period of ESA and historic properties review as all other projects. EPA clarifies that permittees are 

authorized to discharge 14 days after EPA has acknowledged receipt of the NOI on the 

Agency’s website, unless EPA has notified the applicant that authorization is denied or delayed, 
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and that in the vast majority of cases there will not be additional processing time delays, as one 

commenter expressed concern about. 

One commenter expressed concern that, as a result of the review period, permit coverage can 

be delayed beyond the 14-day review period. Based on past experience, EPA expects that the 

occurrence of this will be very rare, and should only result if the Services and/or the SHPO, THPO, 

or other tribal representative do not have enough information to ensure that a project does not 

present a concern to threatened or endangered species or historic properties. EPA encourages 

permit applicants that are unsure if there is a concern with regard to threatened or endangered 

species or historic preservation to coordinate with the Services and/or the SHPO, THPO, or other 

tribal representative to minimize the likelihood that their project will be delayed during the NOI 

authorization process. Commenters suggested that EPA should allow for NOIs to be processed 

sooner if their ESA and historic properties review was previously addressed during the NEPA 

process or through other ESA consultation efforts, or if there are no endangered species or 

historic property concerns. Although EPA understands the commenters’ line of reasoning, EPA 

explains that the Services still need the opportunity to review NOIs to ensure that permittees 

have accurately “self-certified” their eligibility. EPA points out that it is a requirement for all 

projects to complete their determination with regard to their eligibility under ESA and historic 

properties prior to submitting the NOI, which will require any necessary ESA and/or historic 

properties consultation to have been completed prior to the beginning of the 14-day NOI review 

period. 

EPA received a question from a commenter concerning when permit coverage is required to be 

filed for a primary operator versus secondary operator. One commenter suggested that EPA 

retain the proposed timing distinctions, but remove the reference to the terms in the permit. As 

described in comment response essay 1.2 above, EPA has removed the definitions for primary 

and secondary operator from the final permit. Therefore there is no difference in the NOI 

authorization process among multiple permittees associated with the same project. In other 

words, all operators must apply for permit coverage at least 14 days prior to the planned 

commencement of earth-disturbing activities for their portion of the project. 

Response 1.6.5 Denial of permit coverage. Commenters expressed concern with the statement 

in the draft permit that “[a]ny interested person may request that EPA consider requiring an 

individual permit under this paragraph,” noting that there should be a safeguard to ensure that 

a “nuisance” request does not delay a project. A commenter also suggested that EPA as the 

decision-maker should establish an appeals process or other mechanism for applicants that 

have been denied coverage under the permit. EPA understands the concerns of the 

commenters; however, this statement is consistent with EPA’s NPDES regulations at 40 CFR § 

122.28(b)(3), and EPA is unable to modify this regulation language under the scope of the CGP. 

It is also not under the scope of the CGP to establish an appeals process where permit coverage 

has been denied. 

A commenter requested that EPA include the specific criteria under which denial of coverage 

would require an individual permit. EPA appreciates this suggestion. However, because EPA is 

unaware of all the circumstances that could necessitate denial of permit coverage, it is not 

feasible to include specific permit denial criteria in the permit. EPA would like to note that the 

NPDES regulations describe several cases where individual permits may be required at 40 CFR § 

122.28(b)(3)(A)-(G). 

A commenter expressed that it wasn’t adequate for EPA to include a “brief statement” of the 

reasons for the denial for permit coverage. The commenter also questioned why EPA can deny 

coverage after coverage under the CGP has been granted, and recommended that EPA 

consider a similar process used in the U.S. Army Corps of Engineers (USACE) Nationwide Permits 

that allows a permittee to mitigate concerns prior to denial of permit coverage. With regard to 

the comment on EPA’s “brief statement” describing reasons why permit coverage is denied, EPA 
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notes that this language is consistent with the NPDES regulations at 40 CFR § 122.28(b)(3)(ii). EPA 

included this language in Part 1.4.5 of the final permit to make permittees aware of the minimum 

information that will be provided to permittees that are required to obtain individual permit 

coverage. EPA notes that if an individual permit is required, EPA will provide the permittee with 

sufficient information describing the reasons why an individual permit is required. EPA 

appreciates the suggestion for developing a process similar to that used in the USACE 

Nationwide Permits. However, EPA regulations at 40 CFR § 122.28(b)(3)(ii) provide that EPA may 

require individual permit coverage of permittees authorized by a general permit, and it would 

not be in the scope of the CGP to modify this process. With regard to all of the concerns 

expressed on EPA’s procedures for denial of permit coverage, EPA would like to note that it 

anticipates, based on past practice, that any denial of coverage under the CGP will be an 

extremely rare occurrence. 

Response 1.6.6 Requirement to post a notice of permit authorization. One commenter raised a 

concern that EPA’s proposed requirement to post a notice of permit coverage near the main 

entrance of the site does not take safety into consideration because the main entrance is not 

necessarily a safe location for the public. Another commenter indicated that the proposed 

requirement would be a challenge for linear projects that do not have a main entrance. 

Additionally, one commenter pointed out that the main entrance is sometimes miles from the 

construction site itself. EPA agrees with these comments, and has modified the requirement in 

the final permit to state, “You must post a sign or other notice conspicuously at a safe, publicly 

accessible location in close proximity to the project site.” However, EPA disagrees with a 

commenter’s suggestion that EPA allow permittees the option to post notice online. EPA already 

provides NOI submission information online. EPA believes that it is important for projects to post 

notice at the actual site of disturbance so that it provides clear and immediate information to all 

interested parties about the project. Without a sign at the site, it could be very difficult to find out 

what permit tracking number is associated with the project through an online search. EPA also 

believes that it important that the notice be viewable from a public road so that it is accessible 

to everybody. Additionally, EPA disagrees with a commenter’s belief that the requirement that 

the notice be posted to be viewed from a public right-of-way is unnecessary. EPA clarifies that 

the requirement is that the notice be viewable from a public right-of-way, and not posted within

the right-of-way, as the commenter indicated. EPA also disagrees with the suggestion that 

notice only be posted during the period of actual construction and not during the period when 

stabilization measures are implemented. EPA believes that until final stabilization is reached and 

permit coverage is terminated, there remain potential erosion and sedimentation risks, and 

therefore it is important that notice of permit coverage be posted until permit termination 

occurs. 

Response 1.6.7 Conditions for terminating permit coverage. A commenter requested that EPA 

clarify who should be identified as responsible for ongoing maintenance of any stormwater 

controls left on the site for long-term use following the termination of permit coverage (e.g., a 

person’s name, a position title, a company). Related to this topic, another commenter took note 

that the Notice of Termination (NOT) form did not include a place to identify who is responsible 

for ongoing maintenance of long-term stormwater controls. A commenter also requested that 

EPA clarify what constitutes “long-term” use. EPA notes that it has removed this condition from 

the permit. By removing this provision, EPA believes it has addressed these comments. 

Response 1.6.8 Deadline for submitting the Notice of Termination. One commenter disagreed 

with the proposed requirement that the NOT be submitted within 30 days of any of the triggering 

events, stating that the timeframe is not practicable and that a deadline should not be 

specified. EPA disagrees with this comment. EPA believes that a timeframe is necessary so that 

permittees do not prolong their coverage under the CGP after they have met a triggering 

condition for permit termination. By requiring operators to terminate permit coverage, EPA will 

have more accurate records of active construction projects covered under the permit, which is 
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important for data collection and enforcement purposes. EPA believes that submittal of the NOT 

form will present a minimal burden, and that 30 days is sufficient time for permittees to submit 

their NOT form after meeting the triggering conditions, as it only requires them to submit a short 

form certifying they are eligible to terminate coverage. Therefore, EPA has retained this provision 

in the final permit. 

 
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Comment Response Essay 2 Erosion and Sediment Control Requirements

Response 2.1 Erosion and Sediment Control Requirements General Comments

Response 2.1.1 Permit specificity and complexity. EPA received numerous comments indicating 

that the proposed permit was overly prescriptive and that certain provisions were overly 

complicated. Commenters suggested that EPA should focus on implementation of erosion and 

sediment control BMPs that are flexible, practical, and consistent with existing state and local 

permit requirements, and proven effective in protecting water quality. 

EPA was responsive to many of the concerns expressed about the permit being too prescriptive, 

and has made many provisions in the final permit more flexible, including requirements to 

minimize steep slope disturbances, remove sediment track-out, minimize soil compaction, 

stabilize construction exit points, and requirements for pollution prevention. Where EPA has 

retained specificity in the permit, EPA believes the specificity was necessary so that the permit 

conditions are clear to permittees and protective of water quality. 

Some of the proposed provisions that commenters found to be overly complicated included the 

C-factor stabilization provision, the buffer equivalency demonstration, the benchmark 

monitoring requirements, and the chemical treatment requirements. EPA notes that the permit 

no longer includes the C-factor method as an option for stabilization, nor the benchmark 

monitoring requirements. See comment response essays 2.46 and 4.1. With regard to the buffer 

equivalency demonstration concerns, EPA has provided guidance in Appendix G to assist 

permittees in demonstrating their buffer equivalency. EPA believes that making this 

demonstration will be practicable for most sites required to comply with the buffer requirements. 

EPA also recognizes that for some situations, it will be infeasible to do a 50-foot buffer or to 

provide the buffer equivalency. Therefore, EPA includes specific exceptions to the buffer 

requirements in Part 2.1.2.1e of the final permit. EPA also notes that permittees can avoid this 

demonstration if they choose to provide a 50-foot buffer in compliance with Part 2.1.2.1a.i. 

Additionally, EPA has given special flexibility to small residential lots by developing compliance 

alternatives that provide builders of small residential lots with specific and easy-to-implement 

controls that achieve compliance if a 50-foot buffer is not provided. For more information on the 

buffer requirements, see comment response essay 2.3. With regard to the chemical treatment 

requirements, EPA notes that the chemical treatment provisions only apply to sites that choose 

to use them; if a site does not use chemicals, the requirements do not apply. EPA also believes 

that the requirements regarding the use of treatment chemicals in the final permit are not overly 

complicated; they are primarily focused on practices that minimize the potential for a discharge 

in stormwater. In response to comments received, EPA has eliminated or many of the specific 

chemical treatment use restrictions in the final permit. 

One commenter requested that EPA consider retaining the more prescriptive requirements in 

the permit only for larger sites due to the fact that smaller sites tend to have limited flexibility with 

regard to site design. EPA believes that the provisions in the final permit are practicable for all 

sites, with the exception of the buffer compliance alternatives for which EPA has provided 

special flexibility for small residential lot construction and linear construction projects. EPA notes

that many of the requirements that could affect site design only apply if a site is implementing 

that control. For example, if a site is not implementing sediment basins, stockpiling sediment, 

constructing conveyance channels, conducting dewatering, or employing treatment 

chemicals, which EPA believes will often be the case for small sites, then the associated permit 

provisions will not apply. Therefore, EPA disagrees that it should eliminate certain provisions for 

small sites over and above the flexibility EPA has already provided to small sites in the final 

permit. 

Response 2.1.2 Permit subjectivity. A commenter suggested that EPA avoid the use of the 

subjective terms such as “minimize”, “avoid”, and “limit” due to the fact these terms are not 
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clear to permittees and are unenforceable. EPA notes that the permit retains some use of the 

terms referenced above, but EPA believes that the final permit terms are clear to permittees and 

enforcers. When these terms are used in the permit, they are to provide needed flexibility for 

provisions that are best determined on a site-specific basis. EPA has provided additional 

information in the permit fact sheet to help permittees determine what is required for each of 

the permit requirements. EPA has also defined the terms “minimize” and “infeasible” in Appendix 

A of the final permit. 

Response 2.1.3 Miscellaneous comments. EPA received a suggestion from a commenter that the

permit include “low impact development” (LID) and “post-construction” requirements. EPA 

believes that LID and green infrastructure practices are effective practices for reducing 

stormwater volume and pollutants. However, EPA does not believe that it would be appropriate 

to mandate these as stormwater control requirements in the CGP. EPA believes that, because 

this is a general permit, it is important that the requirements be flexible and not mandate the use 

of specific technologies or practices. With regard to the suggestion that EPA include postconstruction requirements in the permit, EPA notes that the scope of the CGP is stormwater 

discharges during the active phase of construction. Therefore, it would not be appropriate to 

implement post-construction requirements in the CGP. Commenters also suggested that EPA 

make pollution prevention and vegetative cover solutions a priority over structural solutions. EPA 

appreciates the suggestions, and agrees that pollution prevention and vegetative cover are 

critical practices for minimizing the discharge of pollutants from construction sites. EPA points out 

that the permit includes several provisions that implement vegetative and pollution prevention 

measures. Some examples include the requirement in Part 2.1.1.2b for discharges to be directed 

to vegetated areas of the site, the requirement in Part 2.1.2.3 for the minimization of sediment 

track out, the requirement in Part 2.1.2.4 to control discharges from sediment or soil piles, the 

requirement in Part 2.1.2.6 to minimize the disturbance of steep slopes, and the pollution 

prevention requirements in Part 2.3, among others. The permit also includes specific criteria for 

achieving site stabilization through vegetative or non-vegetative cover in Part 2.2. 

One commenter suggested that the permit include specific performance values for turbidity for 

the erosion and sediment control requirements. EPA appreciates the suggestion; however, the 

erosion and sediment control requirements in the permit implement the non-numeric 

technology-based ELGs and new source performance standards (NSPS) promulgated as part of 

the C&D rule, which were developed based on the degree of control that can be achieved 

using various levels of pollutant control technology (BAT and BADCT). As described in comment 

response essay 3.1, the C&D rule did include a numeric limitation on the discharge of turbidity 

from active construction sites (see 40 CFR 450.22). However, since its promulgation, EPA 

discovered that the data used to calculate the numeric limit for turbidity were misinterpreted, 

and that it was necessary to recalculate the numeric limit. EPA issued a direct final regulation 

and a companion proposed regulation to stay the numeric limitation at 40 CFR 450.22 

indefinitely. Because EPA is still in the process of collecting data to support the recalculation of 

the numeric turbidity limit, and therefore a final numeric turbidity limit is not yet available to 

implement, the Agency has finalized the CGP without the numeric limit and related monitoring 

and reporting requirements. 

A commenter indicated that EPA’s proposed language in the draft CGP that “[t]he 

requirements in Part 2 apply in addition to any applicable state or local requirements, regardless 

of whether they are more or less stringent,” is confusing. EPA agrees that this statement could be 

misleading, and has therefore omitted it from Part 2 of the final permit. 

Response 2.2 Requirement to Avoid Sensitive Areas

EPA received numerous comments on the proposed requirements in the draft permit to avoid 

sensitive areas by marking off any sensitive areas, avoiding steep slopes, and minimizing stream 

crossings. These comments are discussed below. 
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Response 2.2.1 Requirement to mark off sensitive areas. EPA received many comments 

disagreeing with the proposed requirements to mark off sensitive areas, such as buffer areas, 

steep slopes, and water crossings. The following is a summary of the specific concerns raised: 

• The requirement should be used either to exclude an area or to designate it, but not for 

both. Excessive flagging will cause confusion. 

• This requirement is a burden that requires constant maintenance, particularly for linear 

projects extending many miles. 

• Certain sensitive areas are not under the scope of the CGP, and whether they should be 

flagged should be determined by the appropriate regulatory agency. 

• Permittees should instead be allowed to delineate sensitive areas on their construction 

documents (such as the SWPPP), or there should be exceptions. 

• The use of marking devices is restricted on certain projects (e.g., active runways), and 

therefore the requirement should be flexible and allow for alternatives. 

• Some projects exist entirely within sensitive areas, and therefore avoidance and 

demarcation is impossible. 

After reviewing the comments, EPA agrees that the marking-off of sensitive areas will be 

problematic in some situations, and may not be always be necessary. EPA has retained the 

requirement to mark off buffer areas in the final permit (see Part 2.1.2.1b.iii) because EPA 

believes that areas of “no disturbance” should be clearly delineated. For other sensitive areas 

that may not necessarily be areas of no disturbance, EPA only requires in the final permit that 

they be identified on the site map in the SWPPP. 

Response 2.2.2 Steep slopes. Numerous commenters disagreed with EPA’s proposed 

requirement to avoid steep slopes areas, including EPA’s proposed definition of steep slopes as 

15%, and the associated requirements if disturbance is unavoidable. 

Comments included on the proposed definition of steep slopes included: 

• The geographic areas that are covered by the permit are very diverse in terms of 

topography. 

• Because 15% is a normal slope for certain mountainous areas, defining steep slopes at 

15% is not realistic. 

• Linear utility projects often extend through steep, natural terrains. 

• Certain industry design standards for steep slopes are greater than 15 percent. 

• EPA should limit steep slope requirements to very steep slopes (e.g.,=, those over 25% or 

those over 33%). 

• EPA should provide a length component in the definition of steep slopes. 

• EPA should just include what is required by the C&D rule (i.e., “Minimize the disturbance 

of steep slopes”) and should require the permittee to describe how this will be achieved 

in the SWPPP. 

• Steep slopes should not be defined due to the fact that many variables influence soil 

erodibility. 

EPA notes that the requirement in the final CGP to minimize the disturbance of steep slopes 

implements the C&D rule requirement at 40 CFR § 450.21(a)(4). EPA added specificity to the 

C&D rule requirement in the proposed permit to assist permittees in determining what EPA 

considers to be a “steep slope.” EPA agrees that the definition of steep slope should be flexible 
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to accommodate different locality or industry specifications steep slopes, and therefore EPA has 

modified the definition in the final permit to “where a state, Tribe, local government, or industry 

technical manual (e.g., stormwater BMP manual) has defined what is to be considered a ‘steep 

slope’, this permit’s definition automatically adopts that definition. Where no such definition 

exists, steep slopes are automatically defined as those that are 15 percent or greater in grade.” 

See Appendix A. EPA believes that the modified definition of steep slopes in the final permit 

accommodates the concerns of the commenters. One commenter requested that EPA explain 

how slope is to be delineated on a site. EPA clarifies that because there are various industry 

practices and locality specifications for determining slope, EPA will accept slope determinations 

made in accordance with good engineering judgment that are in compliance with any 

applicable industry or locality specifications. Because this is a general provision requiring that 

operators minimize the disturbance of steep slopes, EPA believes it is unnecessary for the Agency 

to incorporate a length component into the definition for this provision to be effective. 

EPA also received the following comments on the proposed requirements that apply if steep 

slope disturbances occur, including: 

• Linear projects are often designed such that avoidance of steep slopes is not feasible, 

and, due to narrow rights-of-ways and project requirements, it is not always feasible for 

linear projects to comply with the additional requirements. 

• The other permit requirements are sufficient to protect steep slope disturbances. 

To accommodate the concerns about the practicability of the proposed controls required if 

steep slope disturbances occur, EPA has removed these permit provisions from the final permit. 

EPA agrees that many sites will have difficulty diverting flows around steep slope disturbances, 

and using specialized controls, particularly where the design of the project is such that steep 

slope disturbances are necessary (such as a highway shoulder) or the project is located in a 

mountainous area. EPA also believes that the other erosion and sediment control requirements 

are sufficient to protect water quality where steep slope disturbances occur. EPA has provided 

the following note in the permit, which clarifies EPA’s expectations about how a site would 

comply with the requirement to minimize disturbances to steep slopes: “If a disturbance to steep 

slopes is required for the project, EPA would recognize that it is not economically achievable to 

avoid the disturbance to steep slopes. However, in cases where steep slope disturbances are 

required, minimizing the disturbances to steep slopes consistent with this requirement can be 

accomplished through the implementation of a number of standard erosion and sediment 

control practices, such as by phasing disturbances to these areas and using stabilization 

practices designed to be used on steep grades.” 

EPA received comments on requirements for stabilization of steep slopes, including deadlines. 

See Part 2.2 of the CGP for stabilization requirements and section VII.2 of the 2012 CGP Fact 

Sheet for a discussion on the rationale of stabilization requirements. 

One commenter requested that EPA allow temporary stabilization of steep slopes until the end 

of the project. EPA notes that the 2012 CGP allows for such temporary stabilization. 

For comments related to the proposed 3-day stabilization deadline, EPA notes that the 2012 

CGP requires operators of sites with steep slopes to complete stabilization as soon as practicable 

but no later than 14 calendar days (or 7 for sites discharging to sensitive waters) after the 

temporary or permanent cessation of earth-disturbing activities. The permit also provides 

flexibility to install temporary, non-vegetative stabilization measures until final, permanent 

stabilization is completed. 

See requirements for minimizing the disturbance of steep slopes in Part 2.1.2.6 of the 2012 CGP 

and rationale for those requirements in section VII.1.2 of the 2012 CGP Fact Sheet. 
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Response 2.2.3 Requirement to minimize stream crossings. Commenters raised concern with 

EPA’s proposed requirements that permittees minimize stream crossings. One commenter 

requested that EPA clarify what it meant by limit stream crossings to the “minimum necessary.” 

Another commenter noted that minimizing stream crossings could be difficult for linear projects 

that cross multiple drainageways. After reviewing the comments, EPA has decided to remove 

the requirement to minimize stream crossings in the permit. EPA believes the requirement was 

subjective and also not within the scope of the permit, since stream crossings (e.g., dredge and 

fill) are often covered under the CWA section 404 permit program. EPA believes the removal of 

this requirement addresses the concerns expressed by commenters. 

EPA notes, due to the modifications to the proposed requirements to mark off any sensitive 

areas, avoid steep slopes, and minimize stream crossings, the permit heading “Avoid Sensitive 

Areas,” has been removed from the final permit. 

Response 2.3 Natural Buffers or Equivalent Sediment Controls

EPA received numerous comments on the proposed requirements implementing the C&D rule 

requirement at 40 CFR § 450.21(a)(6) to “Provide and maintain natural buffers around surface 

waters... unless infeasible.” 

Response 2.3.1 EPA’s implementation of the C&D rule buffer requirement. Several commenters 

disagreed that buffers should be required in the permit. Some commenters suggested that 

because buffers are normally planned during the design phase of a project, the requirement is 

beyond the scope of the construction site operator’s responsibilities. Another commenter 

suggested that EPA provide permittees the option to implement buffers, instead of requiring 

them to provide the equivalent sediment reduction through a complicated approach, while 

another commenter suggested that EPA not mandate buffers if more effective BMPs are 

available. EPA points out that EPA is required to implement in the final CGP the C&D rule 

requirement at 40 CFR § 450.21(a)(6) in the permit. While EPA understands the concern of the 

commenters, EPA has developed compliance alternatives that are as straightforward as 

possible and that EPA believes provide flexibility for sites that are unable to provide a 50-foot 

buffer. EPA clarifies that buffers are not mandated where infeasible, and in fact, the 

compliance alternatives allow permittees to install a smaller buffer, or no buffer at all where 

infeasible, as long as they meet the equivalent sediment reduction as the 50-foot buffer through 

additional erosion and sediment controls. 

Several commenters suggested EPA’s implementation of the C&D rule requirements at 40 CFR § 

450.21(a)(6) to be overly prescriptive, and requested that EPA instead simply parrot the C&D rule 

language and issue non-mandatory guidance. Another commenter argued that the C&D rule 

does not support the proposed buffer compliance alternatives that require permittees to 

achieve the equivalent sediment reduction as a 50-foot buffer. One commenter suggested that 

EPA instead allow permittees to document their compliance with the C&D rule requirement in 

their construction documents (e.g., the SWPPP). EPA disagrees with these comments. EPA has 

described its rationale for the buffer requirements in Part VII.1.2 of the fact sheet. EPA explains in

the fact sheet that including minimum specific requirements in the permit is essential so that 

permittees understand how to comply with the terms of the permit, and so that discharges of 

pollutants to surface waters are minimized . Additionally, in the fact sheet EPA describes that it 

was important that the requirements in the permit be flexible to account for different site 

conditions. EPA believes that it has appropriately implemented the C&D rule requirement 

through the buffer provision with compliance alternatives in the permit, and that these provisions 

achieve the balance between being clear, environmentally protective, and flexible for sites with 

designs that are inconsistent with the implementation of a 50-foot buffer. Commenters also 

suggested EPA’s fact sheet rationale for the buffer requirements and buffer appendix to be 

overly-prescriptive. EPA recognizes that making the determination of achieving the equivalent 

sediment reduction if a 50-foot buffer is not provided may be complicated for some sites. 
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Therefore, EPA believes that the level of specificity provided in the permit fact sheet and 

Appendix G guidance is justified. 

Commenters argued that EPA has ignored the language in the C&D rule that a buffer is not 

required if it is “infeasible.” EPA disagrees. In the Part 2.1.2.1a.iii compliance alternative in the

final permit, EPA allows sites to avoid the requirement to provide and maintain an undisturbed 

natural buffer of any size if it is “infeasible.” EPA believes that, although a buffer of any size will be 

infeasible for some sites, permittees should still be held to the requirement to treat the sediment 

load in their discharges to surface waters so that they achieve the equivalent protection as a 50-

foot buffer. EPA believes that this requirement is important to ensure that discharges of pollutants 

to surface waters are minimized. Therefore, compliance alternative 2.1.2.1a.iii states, “If it is 

infeasible to provide and maintain an undisturbed natural buffer of any size, you must implement 

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

natural buffer.” EPA has also identified exceptions to the compliance alternatives that address 

the concerns for when a site might find it infeasible to comply with any of the compliance 

alternatives. Included among the exceptions is specific flexibility for linear projects and for small 

residential lots, and for projects where preexisting development disturbances(e.g., structures, 

impervious surfaces) have eliminated a natural buffer. Related to this topic, some commenters 

disagreed with EPA’s use of the phrase, “if it is infeasible” in the compliance alternative at Part 

2.1.21a.iii because of the subjective nature of the term. EPA notes that, because the phrase 

“unless infeasible” appears in the C&D rule at 40 CFR § 450.21(a)(6), EPA was required to 

incorporate the concept of infeasibility in the permit requirement for buffers. EPA has provided 

examples in the fact sheet and in Appendix G of when it might be infeasible to provide a buffer 

of any size, which EPA believes will provide clarity to permittees about what EPA means by 

“infeasible.” EPA has also defined infeasible in Appendix A. 

Response 2.3.2 Basis for the 50-foot buffer or sediment removal equivalency. Commenters 

requested that EPA describe why a minimum buffer width of 50 feet or sediment removal 

equivalency was selected in the proposed compliance alternatives, and questioned if the 

estimated sediment reduction of the 50-foot buffer is consistent with the C&D rule. EPA notes 

that the 50-foot minimum standard was determined independent of the C&D rule. The C&D rule 

requirement simply stated, “Provide and maintain natural buffers around surface waters... unless 

infeasible.” However, as EPA described above, EPA felt it was important to add specificity to the 

C&D rule requirement in the permit, and has justified the minimum 50-foot width or sediment 

removal equivalency in the fact sheet. One commenter suggested that 50 feet is too 

prescriptive without considering factors such as existing vegetation, slope, and floodplain 

restrictions, and that EPA should leave it up to the local jurisdiction to implement a minimum 

buffer width. Because of the variability of buffer performance, one commenter suggested that 

the 50-foot requirement be replaced with a general requirement to provide a natural buffer to 

the extent it is feasible or appropriate. EPA agrees that consideration of the several factors is 

important when determining buffer effectiveness and feasibility, and in fact, in the fact sheet for 

the permit, EPA reviewed the following topics: 

• The pollutant removal effectiveness of natural buffers; 

• The relationship between buffer width and pollutant removal effectiveness; 

• State/local waterfront zoning requirements; 

• Federal buffer requirements and guidance; and 

• Buffer performance considerations. 

EPA’s review of these topics informed the basis for the 50-foot minimum width or sediment 

removal equivalency requirements in the permit, and justify why EPA is opposed to leaving the 

buffer requirements up to the local jurisdiction or up to the permittee, as suggested by some 
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commenters. EPA believes that the compliance alternatives approach in the permit allows 

permittees to take into account site-specific considerations, and therefore, is not overly 

prescriptive. EPA notes that the permit does not override any state or local requirements for 

buffer widths wider than 50 feet. 

A commenter suggested that the 50-foot buffer should be included exclusively as a BMP option 

to encourage the permittee to consider alternative or more effective approaches for their sitespecific conditions. In response to this comment, EPA believes that the compliance alternatives 

in the permit accomplish this suggested approach. The compliance alternatives allow 

permittees to implement a smaller buffer, or no buffer at all where infeasible to implement any 

buffer, and to implement BMPs that work based on their site-specific conditions, which is 

consistent with the suggested approach. 

Response 2.3.3 Miscellaneous general comments on the buffer requirement. EPA received 

several miscellaneous comments on the proposed buffer requirements, summarized as follows. 

One commenter disagreed with the proposed language requiring that “[t]he compliance 

alternative selected above must be maintained throughout the duration of permit coverage.” 

The commenter suggested that EPA allow operators to switch approaches during permit 

coverage. EPA agrees with this suggestion, and therefore has included the following language 

in the final permit: “The compliance alternative selected above must be maintained throughout 

the duration of permit coverage, except that you may select a difference compliance 

alternative during your period of permit coverage, in which case you must modify your SWPPP to 

reflect this change.” EPA believes this language addresses the concern of the commenter. 

Commenters requested that EPA describe what it meant by the use of the term “natural” in 

terms of the proposed requirement that the permittee provide and maintain “undisturbed 

natural vegetation.” EPA clarifies that it was never the Agency’s intent that permittees establish 

or modify the vegetation that exists within the buffer area on their site. EPA has modified the 

permit language to make this more clear. In the final permit, EPA requires that permittees 

provide and maintain a 50-foot “natural buffer” (or equivalent). EPA also clarifies in the permit 

that permittees are not required to enhance the quality of vegetation that already exists in the 

buffer, or provide vegetation if none exist. Instead, permittees are only required to retain and 

protect from disturbance the buffer that existed prior to the commencement of construction.

This is consistent with EPA’s definition of “natural buffer” in Appendix A of the final permit as “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.” EPA confirms that it does not require 

permittees to enhance the quality of the vegetation (i.e., establish native vegetation) within the 

buffer, but does encourage them to do so if it would lead to improved water quality protection. 

A commenter also requested EPA to clarify if it would consider the harvesting of a few trees in 

the buffer every now and then to be “undisturbed.” EPA has clarified in Appendix G that any 

disturbances within the buffer that are conducted to enhance the vegetation in the buffer are 

permitted, such as removal of non-native species and planting or establishment of vegetation, 

are not considered to be construction disturbances. However, EPA clarifies that tree removal, or 

any vegetation removal, is not permitted in the buffer if the purpose is not to enhance or 

maintain the natural vegetation in the buffer. EPA also notes that the requirement that the buffer 

be left undisturbed only applies during the period of permit coverage. 

One commenter suggested that the permit does not include information regarding the 

limitations of buffers. EPA believes that the permit fact sheet and appendix provide sufficient 

guidance regarding effective buffer implementation, and therefore disagrees that there should 

be a discussion of the limitations of buffers. 
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Commenters expressed that buffers need significant amounts of maintenance to be effective, 

with one commenter suggesting that buffers are not effective in removing sediment from active 

construction discharges. EPA disagrees. In Appendix G in Tables G – 8 through G – 15, EPA has 

modeled the expected sediment reduction of 50-foot buffers in all of the geographic areas 

covered by the permit under various expected vegetation conditions and soil types, and has 

estimated that a 50-foot buffer will generally provide high levels of sediment removal from 

construction sites. Based on this modeling, EPA believes that leaving the existing natural buffer 

undisturbed, including any existing vegetation, without conducting significant maintenance will 

achieve significant sediment removals. EPA believes that, regardless of the quality of vegetation 

within the buffer, buffers provide benefits by displacing earth-disturbances from surface waters, 

allowing for filtration and infiltration of stormwater to occur. EPA also points out that discharges 

to buffers must first be treated by the site’s erosion and sediment controls, including the site’s 

perimeter controls. 

Several commenters pointed out that buffer vegetation quality should be considered in the 

permit, with one commenter suggesting that EPA require permitting authorities to perform an onsite evaluation of buffer quality for any sites discharging to waters with a TMDL, or to waters that 

are natural heritage areas or that contain critical habitat. While EPA appreciates this suggestion, 

EPA does not believe that it would be an appropriate condition to include in the permit. EPA 

recognizes that vegetation varies considerably across the geographic areas covered by the 

permit, and therefore, EPA does not believe it would be appropriate to set a vegetation quality 

standard that applies for all permittees. EPA also does not believe that an on-site evaluation is 

necessary for sites discharging to sensitive waters. EPA points out that the permit contains 

technology-based and water quality-based effluent limitations that EPA believes will result in 

discharges meeting water quality standards. Additionally, EPA does not believe that it is within 

the scope of the CGP to mandate the quality of the vegetative cover to be retained in the 

buffer beyond requiring that it be equivalent to or better than what was there before. EPA 

believes that the intent of the C&D rule’s buffer requirement was for permittees to simply leave 

the area surrounding surface waters undisturbed. 

Commenters indicated to EPA that buffers become ineffective unless sheet flow conditions 

occur. EPA agrees that erosive flow can limit the effectiveness of buffers. Accordingly, the permit 

requires that permittees that are choosing compliance alternative Part 2.1.2.1a.i or 2.1.2.1a.ii 

must “use velocity dissipation devices if necessary to prevent erosion caused by stormwater 

within the buffer.” See Part 2.1.2.1b.i. Similarly, one commenter requested that EPA clarify if the 

discharge requirements apply to discharges through the buffer or discharges to the buffer. EPA 

clarifies that the requirement applies to discharges (i.e., water flowing) to the buffer, and has 

made this consistent in the permit. 

One commenter noted that the permit does not appear to require any additional controls if a 

natural 50-foot buffer is retained. EPA clarifies that permittees are required to comply with all of 

the other requirements in the final CGP, including the requirement to install perimeter controls 

(e.g., a silt fence) along those perimeter areas of the site that will receive stormwater from earth 

disturbing activities. The permit also requires that all discharges from earth-disturbances to the 

buffer be first treated by the site’s erosion and sediment controls. See Part 2.1.2.1b.i. 

One commenter requested that EPA clarify that when the buffer width is less than 50 feet 

whether the requirement to install equivalent erosion and sediment controls extends along the 

entire buffer. EPA clarifies that the additional controls must treat all discharges flowing to the 

buffer area. This situation is also clarified in the Appendix G. 

A commenter suggested that EPA consider allowing “buffer averaging” to provide greater 

flexibility. With this approach, wider and smaller buffers would be allowed on a site as long as the 

average width meets the minimum requirement. EPA considered this approach, but ultimately 

determined that establishing the minimum 50-foot fixed width in compliance alternative Part 
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2.1.2.1a.i would be the most straightforward approach for permittees to implement and for EPA 

to enforce. EPA also believes that the permit establishes flexibility for sites wishing to provide a 

reduced buffer in compliance alternative Part 2.1.2.1a.ii. 

One commenter suggested that allowing a reduced buffer in compliance alternative Part 

2.1.2.1a.ii will reduce the post-construction benefits of a wider buffer. EPA agrees that buffers are 

an important consideration in protecting water quality from post-construction discharges. 

However, as described in comment response essay 2.1.3, post-construction discharges are 

outside the scope of the CGP. Accordingly, EPA only considered the pollutant removal 

effectiveness of the compliance alternatives during the period of time a project would be 

covered under the CGP. 

A commenter expressed disagreement with EPA’s example that a subdivided lot existing within 

the buffer is an example of buffer infeasibility. EPA disagrees with the comment because EPA 

believes that it is not the role of the Agency to make land use determinations. If a permittee is 

allowed by the state or local jurisdiction to construct a property entirely within the 50-foot buffer 

area, EPA would agree with a determination made by that permittee that a buffer would be 

inconsistent with the project, and therefore technically infeasible. If it is infeasible to provide a 

buffer of any size at all, Part 2.1.2.1a.iii requires that the permittee implement erosion and 

sediment controls that achieve the sediment load reduction equivalent to a 50-foot natural 

buffer. EPA notes that, although EPA no longer includes the buffer infeasibility example 

referenced by the commenter in the buffer appendix, EPA agrees with this example of buffer 

infeasibility. 

EPA received support for the proposed buffer requirements from several commenters, with some 

suggesting that EPA consider more stringent requirements. Some commenters suggested that 

EPA require expanded buffer widths, especially for critical habitat areas and other sensitive 

areas. EPA agrees that wider buffers generally provide enhanced environmental protection. 

However, it was EPA’s goal to develop a minimum width applicable to all sites that achieves the 

balance between providing sufficient environmental protection and being technically feasible 

for most sites. EPA believes that the 50-foot minimum width achieves this goal, as described in 

the fact sheet. One commenter suggested that EPA consider requiring 25-foot buffers around 

drainage features such as ditches, storm drains, and arroyos. EPA appreciates the suggestion; 

however, EPA believes that this would expand the requirements beyond what was intended by 

the C&D rule, and therefore disagrees. EPA has clarified in the permit that it does not consider 

stormwater control or conveyance features on-site to constitute “surface waters” for the 

purposes of triggering the requirement to comply with the buffer requirements. The commenter 

also suggested that EPA require permittees to document in the SWPPP any existing local or state 

buffer requirements. Because compliance with any state and local buffer requirements is outside 

the scope of the CGP, EPA does not believe that it should be required documentation in the 

SWPPP. EPA agrees with the suggestion from a commenter that EPA include language in the 

buffer appendix encouraging (but not requiring) that woody debris to be retained in buffers, 

and that invasive species be replaced with native species, and therefore EPA has added this to 

the buffer appendix. See Appendix G. 

Response 2.3.4 Waters affected by the buffer requirement. One commenter requested that EPA 

clarify when a surface water is considered to be located “immediately adjacent” to a site for 

the purposes of determining whether the Part 2.1.2.1 requirements apply. EPA has provided 

guidance in Appendix G, including graphics, that explain when the Part 2.1.2.1 requirements 

apply. EPA agrees that neither the proposed permit requirements, nor the proposed buffer 

appendix, was clear, and EPA agrees that the term “immediately adjacent” was unclear and 

subject to different interpretations. EPA has therefore revised the language in the permit to 

clarify that the Part 2.1.2.1 requirements apply a surface water is located within 50 feet of a 

project’s earth disturbances. For example, if a site’s disturbances occur within 30 feet of a 
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surface water, the requirements in Part 2.1.2.1 would apply. However, if a site’s disturbances 

occur more than 50 feet from the surface water, the Part 2.1.2.1 requirements would not apply 

because a buffer of 50 feet has been accounted for. 

A commenter requested that EPA clarify how the Ordinary Water Mark is identified for the 

purposes of measuring the buffer. EPA notes that the Ordinary High Water Mark does not equate 

to the 100 year 24-hour storm event, as the commenter speculated. Making a determination of 

the Ordinary High Water Mark is very site-specific. EPA has provided guidance on how to 

measure the Ordinary High Water Mark in Appendix G of the final permit. 

Another commenter suggested that EPA require buffers to be measured “perpendicularly” from 

the surface waters (as opposed to “horizontally”). EPA agrees with this suggestion, and has 

modified the language in Appendix G of the final permit. 

EPA also received numerous comments on the proposed application of the buffer requirements 

with respect to “waters of the U.S.”, including: 

• EPA is not justified in applying the requirement to all “waters of the U.S.” because some 

are minor tributaries with intermittent or ephemeral flow and would receive little benefit 

from a buffer. 

• EPA is burdening permittees by requiring them to make the complicated determination if 

a water is a “water of the U.S.”, which is subject to interpretation. EPA should limit the 

requirement to waters that appear on USGS topographic maps, or should develop maps 

of waters to be protected by buffers.

• EPA has not justified its application of the requirement to “waters of the U.S.” instead of 

“surface waters” as required under the C&D rule requirement 40 CFR § 450.21(a)(6)

EPA appreciates the comments received with respect to the use of the term “waters of the U.S.” 

in the buffer requirements. EPA has decided, to be consistent with the C&D rule language, to 

use the term “surface water” in the buffer requirements, but EPA notes that “surface water” is 

synonymous with “water of the U.S.”, as defined in Appendix A. EPA understands the uncertainty 

surrounding making a determination about whether a water body is a “water of the U.S.” 

However, EPA believes that applying the requirement to “waters of the U.S.” is the least 

subjective alternative because waters of the U.S. have been defined under EPA’s regulations, 

and because there is guidance from EPA regarding what a water of the U.S. is. If EPA were to 

apply the requirement to waters other than “waters of the U.S.”, there would be even more 

uncertainty regarding whether the requirements apply. Due to limited resources and the 

unavailability of comprehensive geospatial water of the U.S. information, EPA is not able to 

develop maps of waters to be protected by waters. 

Response 2.3.5 Exceptions. EPA received comments on the proposed exceptions to the buffer 

requirements in the draft permit, as well as comments on exceptions that EPA should consider 

including. 

Several comments were focused on EPA’s proposed exception to the buffer requirements for 

“construction of water crossings authorized under a CWA section 404 permit (where required) 

for water lines, sewer lines, utility lines, and roadways.” Commenters suggested that the CWA 

Section 404 exception also include disturbances related to the maintenance and repair of the 

covered activities and related stream stabilization measures. EPA agrees with these suggestions, 

and therefore has modified the exception in Part 2.1.2.1e.v of the final CGP to include both 

“[c]onstruction approved under a CWA section 404 permit” and “[c]onstruction of waterdependent structures and water access areas (e.g., piers, boat ramps, trails).” This modification 

also addresses suggestions that EPA allow trails to be included as an exception. One commenter 

requested that EPA “[d]efine and allow additional BMPs to support in-channel or shoreline work 

for installation/maintenance of bridges, channel outfalls, utility crossings, and channel bank 
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stabilization.” EPA notes that it believes that the exceptions cited above allow for these types of 

BMPs, as EPA would consider these to be buffer disturbances related to “water-dependent 

structures.” A commenter also suggested that EPA exempt restoration disturbances (e.g., a dam 

removal) from the buffer requirements. EPA also believes that this exception is provided for in 

Part 2.1.2.1e.v, as these disturbances will have been approved under a CWA Section 404 permit. 

Commenters suggested that EPA exempt sites that do not discharge to the buffer, either 

because of the natural topography of the site, or because discharges are captured and 

diverted by BMPs. EPA agrees with this suggestion due to the fact that the buffer requirement is 

based upon a 50-foot sediment removal treatment standard. Therefore, EPA believes that, if 

there would be no discharge of stormwater from construction disturbances within 50 feet of a 

surface water to the surface water, there is no reason to require the site to implement one of the 

compliance alternatives in Part 2.1.2.1a. This would include situations where you a permittee has 

implemented control measures, such as a berm or other barrier, that will prevent such 

discharges. Accordingly, EPA has included this as an exception in Part 2.1.2.1e.i. 

EPA received comments relating to the proposed exception for “[d]evelopment of a site where 

no naturally vegetated buffer area exists due to prior disturbances.” One commenter suggested 

that EPA should include naturally impervious areas in this exemption, while another commenter 

suggested that this should include sites that have no naturally vegetated buffer due to natural 

conditions, such as might occur in arid areas. EPA believes that this exception should only apply 

to sites that have no 50-ft natural buffer due to preexisting development-related disturbances 

(e.g., where previous construction has paved over the buffer area with structures or impervious 

surfaces). Therefore, EPA has clarified the exemption by applying it only to “[w]here no natural 

buffer exists due to preexisting development disturbances (e.g., structures, impervious surfaces)

that occurred prior to the initiation of planning for the current development of the site...” 

Although there may be circumstances in which, due to natural conditions, there is little natural or 

no vegetation, EPA believes that as long as the 50-foot buffer has not been completely paved 

over or replaced by a structure, the retained natural buffer area will provide some level of water 

quality protection, if not through the vegetation then by providing a physical separation of the 

earth-disturbing activities from the surface water and allowing opportunities for stormwater 

infiltration to occur. Moreover, EPA believes that it will be very rare that a site has no vegetation 

whatsoever due to natural circumstances within the buffer area. EPA also believes that sites that 

have preexisting development disturbances only in portions of the buffer should also not be 

exempt from the requirements in Part 2.1.2.1a due to the fact that the areas around the 

preexisting disturbances provide sediment removal benefits. Therefore, EPA provides the 

following clarification for the exception in Part 2.1.2.1e.ii: “Where some natural buffer exists but 

portions of the area within 50 feet of the surface water are occupied by preexisting 

development disturbances, you are required to comply with the requirements in this Part.” EPA 

also provides the following note in Part 2.1.2.1a: “Any preexisting structures or impervious 

surfaces are allowed in the natural buffer provided you retain and protect from disturbance the 

natural buffer area outside the preexisting disturbance.” EPA maintains that it is justified in 

providing an exception in Part 2.1.2.1e.ii only for sites that have absolutely no natural buffer due 

to the fact that there is no possibility that vegetated can be recovered in the areas that have 

been developed (unless substantial remediated is performed). Related to this topic, one 

commenter suggested that EPA not exempt previous disturbances from the buffer requirements 

because further disturbance will lead to water quality impacts. EPA clarifies that the permit does 

not allow permittees to conduct additional disturbances within the buffer without additional 

equivalent controls being provided; it simply provides that the existing disturbance is allowed in 

the natural buffer. Additionally, because the exemption in Part 2.1.2.1e.ii applies only if 

preexisting development has completely eliminated the buffer, in this situation there is no 

possibility for additional buffer disturbances. EPA also notes that the permit requires that if any 
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portion of the preexisting disturbances will be disturbed, they will be deducted from the area 

treated as a natural buffer. For these reasons, EPA disagrees with the suggestion. 

One commenter suggested to EPA that because natural features, such as swales, rills, or gullies, 

could make it difficult to comply with the requirement that discharges through the buffer remain 

non-channelized or non-concentrated, there should be an exception to this requirement. EPA 

notes that the final permit no longer requires that discharges to the buffer remain nonchannelized or non-concentrated. Instead, permittees must use velocity dissipation devices if 

necessary to prevent erosion caused by stormwater within the buffer. EPA believes that if 

discharges flowing to the buffer have the potential to cause erosion and compromise the 

pollutant removal effectiveness of the buffer, it is imperative for the permittee to reduce the 

erosive flow of the discharge through velocity dissipation devices. EPA believes that through the 

use of velocity dissipation devices and through other means, it is practicable for permittees to 

avoid the erosive discharges to the buffer, and therefore EPA does not agree with this suggested 

exception. 

A commenter requested that EPA not allow any exceptions for sites that are at high risk for 

pollution problems. While EPA appreciates the suggestion, EPA believes that the exceptions 

provide needed flexibility for those specified scenarios. Furthermore, EPA believes that the 

permit’s erosion and sediment control requirements and water quality-based requirements will 

ensure that permittees achieve compliance with water quality standards. 

One commenter requested that EPA clarify that projects that are exempt from the buffer 

requirements are exempt from all of the effluent limits for all or just a portion of the site. EPA 

clarifies that the exemptions only apply to the applicable buffer requirements. Sites that qualify 

for one of the buffer exemptions are still required to comply with all other permit requirements, 

including the applicable erosion and sediment control requirements in Part 2.1.

Response 2.3.6 Linear concerns. EPA heard from many commenters expressing concern about 

the infeasibility of the buffer requirements with regard to linear facilities. Commenters suggested 

that, due to limited rights-of-ways, implementation of any of the compliance alternatives will 

often be difficult or impossible to achieve, and therefore a more flexible approach is needed. 

Comments also indicated that requiring a buffer could also result in unintended consequences 

in some cases (e.g., increasing the erosion potential on steep highway slopes), and could limit 

treatment train positioning. Based on the comments received, EPA has decided to provide 

additional flexibility for linear projects with regard to the buffer requirements. EPA has included 

the following exception in Part 2.1.2.1e.iii of the final permit: “For “linear construction projects” 

(see Appendix A), you are not required to comply with the requirements in this Part if site 

constraints (e.g., limited right-of-way) prevent you from meeting any the compliance 

alternatives in Part 2.1.2.1a, provided that, to the extent practicable, you limit disturbances 

within 50 feet of the surface water and/or you provide supplemental erosion and sediment 

controls to treat stormwater discharges from earth disturbances within 50 feet of the surface 

water. You must also document in your SWPPP your rationale as to why it is infeasible for you to 

comply with the requirements in Part 2.1.2.1a, and describe any buffer width retained and/or 

supplemental erosion and sediment controls installed.” EPA believes that this exception 

addresses the concerns expressed by commenters. 

Response 2.3.7 Arid/semi-arid concerns. A number of comments were received with regard to 

the applicability of the buffer requirements in arid and semi-arid areas. Several commenters 

expressed that EPA should take into consideration the differences in vegetation in arid areas, 

and how that impacts buffer effectiveness. EPA believes that the compliance alternatives do in 

fact take into account differences in vegetation throughout the geographic areas of permit 

coverage. If a 50-foot buffer is not retained, permittees must implement additional controls that 

achieve the equivalent sediment reduction at the 50-foot buffer for their area. EPA has modeled 

the expected sediment reduction achieved for the areas of permit coverage in Appendix G of 
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the permit, which include arid and semi-arid areas. EPA also notes that permittees may perform 

an evaluation of buffer effectiveness based on their own site-specific conditions. EPA believes 

this flexibility is consistent with the suggestion that the permit include considerations for 

differences in arid areas. A commenter similarly expressed concern that establishing vegetation 

in a buffer in arid areas may take multiple growing seasons. In response, EPA clarifies that the 

permit does not require vegetation in buffers to be established, but instead, that permittees 

simply leave the area designated as a natural buffer undisturbed. 

Other comments focused on the fact that buffers are not necessary in arid areas for water 

quality protection. For example, one commenter indicated that buffers should not apply to dry 

arroyos that receive flood flows. EPA points out the purpose of the buffer in the permit is to 

minimize pollutants from discharges. Therefore, EPA believes that it is imperative that buffers be 

applied consistently around all surface waters that will receive stormwater discharges from the 

construction site. Another commenter identified that most discharges in arid areas will infiltrate 

before reaching a surface water, and that, therefore, the buffer requirements should not apply. 

EPA notes that if a discharge to a surface water will never occur during the period of permit 

coverage, then Part 2.1.2.1e.i provides an exception to the buffer requirements. Furthermore, if 

there is no discharge of a pollutant to a water of the U.S., there is no need for NPDES permit 

coverage. EPA also notes that filtration and infiltration of stormwater is an important function of 

buffers, as it results in pollutant removal. Therefore, EPA believes that even in areas of sparse 

vegetation, providing a setback between earth disturbances and surface waters will minimize 

pollutant discharges. Another commenter suggested that EPA only require buffers if there is 

support that they will achieve a minimum sediment removal efficiency in RUSLE2. EPA disagrees 

with this approach because, as described above in comment response essay 2.3.5, EPA believes 

that even sparsely vegetated buffers will provide sediment removal benefits. 

A commenter also pointed out that EPA was incorrect in stating in its proposed buffer guidance 

that buffer restoration goals in arid areas should be the establishment of dense native 

vegetation. EPA agrees that this may not be the correct goal for arid and semi-arid areas, and 

therefore EPA has removed this language from Appendix G in the final permit. 

Response 2.3.8 Faster stabilization requirements.EPA received many comments on the proposed 

requirements that sites disturbing within the 50-foot buffer area (i.e., those complying with 

compliance alternative Part 2.1.21a.ii or 2.1.2.1a.iii comply with more stringent stabilization 

requirements. Although there was some support for the requirements, most commenters 

disagreed with the approach. Some of the comments focused on the impracticability and 

technical difficulties of completing the installation of stabilization measures within three days, 

and urged that EPA be more flexible. Commenters also found that having multiple stabilization 

requirements would be confusing on a site. One commenter expressed confusion over whether 

or not disturbances are allowed in the buffer based on this requirement. EPA clarifies that the 

stabilization requirement applied to disturbances within 50 feet of the surface waters, which are 

authorized under compliance alternatives 2.1.2.1aii and 2.1.2.1a.iii. Upon further reflection, EPA 

agrees that this requirement may not have been reasonable, and also believes that that the 

stabilization deadlines applicable to all permittees (whether discharging to sensitive waters or 

not) and the fact that permittees will have treat discharges so that they achieve the equivalent 

sediment removal as a 50-foot buffer will provide sufficient protection to surface waters. 

Therefore, EPA has removed this provision from the final permit. 

Response 2.3.9 Requirement to demonstrate sediment reduction equivalency. EPA received 

numerous comments on EPA’s guidance in the buffer appendix about how to comply with the 

requirement to demonstrate the equivalent sediment reduction for sites providing less than a 50-

foot buffer. The following is a summary of the comments received: 

• Insufficiencies in EPA’s modeling of the 50-foot buffer sediment removal performance: 

EPA’s analysis of the sediment removal effectiveness of a 50-foot buffer using RUSLE2 in 
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the appendix was insufficient and did not include many important considerations. EPA 

should have considered the effect of flow, storm events, buffer effectiveness without 

being cleaned and maintained, rain intensity/duration, the amount of contributing area 

allowing runoff to flow into the buffer, slope, vegetation height and mass, and other 

critical features. Additionally, because natural vegetation varies from site-to-site, the 

tables are not realistic, and this requirement is not practicable. The majority of the 

sediment removal values are unrealistically high, which will be difficult, or impossible, to 

achieve compliance with. EPA should allow an alternative standard of 80 percent for 

any modeled sediment removal greater than 80 percent. 

• Unrealistic assumptions regarding equivalent BMP performance: The effectiveness of the 

BMPs modeled in RUSLE2 are theoretical, based upon “idealized” conditions, and are not 

practical. Determining if controls achieve the equivalent removal is difficult and subject 

to interpretation. BMP effectiveness should be more realistic in terms of what is actually 

obtained in the field by passive stormwater BMPs. However, there is limited field data 

collected on BMP effectiveness. Sediment percent removal efficiencies attributed to 

BMPs, as the permit evaluates, is often a poor measure of BMP performance. Other 

methods, such as how much volume is prevented, how much runoff is treated, etc., are 

better. The permit does not include enough information about what alternative controls 

will achieve compliance. EPA should provide information on BMP performance to assist 

permittees in determining the sediment removal equivalency. 

EPA recognizes the limitations of the approach presented in the buffer appendix for determining 

the sediment removal effectiveness of buffers. EPA used the RUSLE 2 program to model the 

sediment removal efficiencies of 50-foot buffers, one of the more commonly used programs for 

modeling erosion from construction sites, and evaluated buffer effectiveness for the typical soil 

types and vegetation types found in the areas covered under the permit. EPA determined that, 

because of the complicating factors affecting erosion on construction sites, for the purposes of 

simplifying this calculation for permittees, it was appropriate to make assumptions in the model. 

Although the model does not account for all the variables affecting buffer performances on all 

sites, EPA believes the model provides a sound estimate of buffer performance for the areas 

covered under the permit. EPA also believes that most permittees will prefer using the numbers 

provided by EPA over performing their own modeling of their site-specific conditions. Therefore, 

EPA has retained in the final permit the information provided on the expected sediment 

reduction for a 50-foot buffer in the buffer appendix. Because EPA recognizes that the model 

does not take into account all variables impacting buffer effectiveness, EPA notes that, if a 

permittee wishes to perform an evaluation to determine the expected sediment removal on 

their site taking into account their site-specific conditions, they may do so. EPA also recognizes 

that for some areas where EPA determined that a 50-foot buffer will yield very high (e.g., greater 

than 90 percent) sediment removals, it may be difficult to design controls to meet this standard. 

Therefore, in the final permit, EPA has limited the removal efficiencies to a maximum of 90 

percent. Efficiencies that were calculated at greater than 90 percent are shown as 90 percent, 

and this is the percent removal that must be achieved by alternative controls. 

EPA also recognizes potential concerns regarding the performance of BMPs evaluated by EPA in 

its examples in the buffer appendix. As suggested by several commenters, EPA considered 

providing BMP performance information and incorporating a toolbox approach that would 

specify BMPs that a permittee could implement to achieve an equivalent sediment removal. 

However, EPA ultimately determined that such an approach could lead permittees to choose 

BMPs that may not necessarily perform effectively based on their site-specific conditions. EPA 

decided that BMPs are best chosen on a site-specific basis, and therefore has retained the 

proposed approach in the permit requiring permittees to make the determination of which BMPs 

lead them to the equivalent sediment reduction. EPA also understands the concern about 

modeling the performance of BMPs based on theoretical conditions, as opposed to field 
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conditions. EPA notes that if BMPs are designed using good engineering practices to meet the 

sediment removal equivalency, EPA would consider the site to be in compliance, recognizing 

that the field performance of the BMPs may differ. EPA does not require the site to monitor the 

actual sediment removal achieved by their BMPs in the field. EPA notes, however, that the BMPs 

must be implemented in accordance with the specifications of the equivalency design, and 

that the BMPs must be maintained to ensure their effectiveness is not compromised. If an 

operator becomes aware that their BMPs are not working as designed, EPA would expect them 

to repair, modify, or replace the BMP. EPA also notes that, although the Agency relied on the 

RUSLE2 program for its examples, permittees may choose other models to achieve compliance. 

EPA received numerous other miscellaneous comments on the 50-foot sediment removal 

equivalency requirements, described as follows. 

Several commenters indicated that, because EPA has only provided sediment reduction 

performance tables for its geographic areas of permit coverage, NPDES-authorized stated will 

be burdened with developing sediment removal tables for their states. EPA notes that NPDESauthorized states are not required to implement the same buffer approach in their construction 

stormwater permits, and therefore EPA does not believe that the approach will necessarily be a 

burden to other states. Commenters also requested that EPA clarify that the tables provided in 

Appendix G only apply in EPA’s geographic areas of coverage. EPA believes that the permit is 

clear that each of the tables only applies in the area indicated in the title of each table. 

Therefore, EPA does not believe this will present confusion. 

One commenter noted that it must make the information it relied upon in its buffer appendix 

available to the scientific community. EPA notes that all of the information it relied upon came 

from the RUSLE2 model, and there is no additional information to provide. 

A commenter also disagreed that EPA’s analysis of the sediment removal efficiency of a 50-foot 

buffer should include a silt fence. EPA clarifies that it modeled buffer effectiveness with a silt 

fence based upon the fact that the permit requires all sites to install perimeter controls along all 

perimeter areas of the site, including buffer areas, that receive stormwater from earth-disturbing 

activities. EPA also requires that all discharges from the site’s earth-disturbances to the natural 

buffer be first treated by the site’s erosion and sediment controls. Therefore, EPA believes it is 

more realistic to model the expected pollutant removal of a 50-foot buffer with a perimeter 

control. 

Response 2.3.10 Small site flexibility. EPA heard concerns from commenters that the buffer

requirements will disproportionately affect smaller sites. Alternatively, one commenter expressed 

that smaller buffers are not justified for smaller lots because the impacts from them are great 

cumulatively. Commenters also expressed that requiring permittees to conduct modeling of 

buffer equivalency is overly complicated and burdensome. 

EPA believes that some flexibility is warranted for smaller sites due to the fact that they face 

space constraints, making implementation of the 50-foot buffer provision difficult. Additionally, 

EPA agrees that smaller sites may have difficultly evaluating the supplemental erosion and 

sediment controls that provide the equivalent protection of the 50-foot buffer due to limited 

technical resources. 

EPA provides special flexibility for small residential sites to achieve compliance with the buffer 

requirements in Part 2.1.2.1e.iv of the final permit through more flexible small residential lot 

compliance alternatives. The small residential lot compliance alternatives eliminate the 

requirement for builders of small residential lots to model and demonstrate that they have 

achieved the equivalent sediment removal as a 50-foot buffer. Instead, the small residential lot 

compliance alternatives provide builders of small residential lots with specific controls to 

implement based on the width of buffer they will retain on their site. Guidance on 

implementation of the small residential lot compliance alternatives is provided in Appendix G, 
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and Part VII.1.2 of the fact sheet provides the rationale for why this approach is justified for small

residential lots, and why it is not applicable for other sites. 

Response 2.4 Requirements Applicable to All Construction Sites

EPA heard concerns about the proposed permit heading “Requirements Applicable to All 

Construction Sites” due to the fact that certain controls may not be applicable for certain 

projects, especially for linear projects with limited rights-of ways. EPA notes that in the final 

permit, EPA has limited the scope of requirements that apply to all construction sites to only 

those provisions that all sites would need to implement. 

Response 2.5 Required Design Factors

EPA received comments on EPA’s proposed general design requirements, which included 

required design factors, requirements to control stormwater discharges, requirements to use 

vegetated areas for sediment control, and requirements to route non-stormwater to sediment 

controls. 

A commenter suggested that the general design requirements should consider factors for utility 

line construction in existing paved areas (e.g., streets) where the amount of area disturbed at 

one time is limited. EPA points out that each of these specific design factors correspond to the 

C&D rule requirements in 40 CFR 450.21(a)(2) and (5), and believes these factors are critical for 

ensuring that stormwater controls are designed to minimize sediment discharges from the site. 

For example, it is important to consider precipitation characteristics so that earth-disturbing 

activities can be planned during periods with a lower risk of precipitation and so that erosion 

and sediment control practices can be designed to appropriately convey and manage the 

precipitation that is expected to occur. With regard to construction occurring in existing paved 

areas, EPA clarifies that the required design factors apply to discharges that come into contact 

with earth disturbances at the site. EPA would not expect that a site design its stormwater 

controls to account for discharges that do not come into contact with its earth disturbances. 

EPA believes that this clarification addresses the concern of the commenter. 

One commenter pointed out that discharge quality can be negatively impacted by run-on to 

the site, and requested that EPA provide an allowance for run-on quality (e.g., for run-on 

resulting from landowner activities outside of the easement for linear projects). While EPA 

understands the concern raised by the commenter, EPA believes that it is critical that sites 

account for run-on to ensure that stormwater controls are designed to control all flows that will 

potentially come into contact with earth-disturbing activities and that will be discharged from 

the site to waters of the U.S. Therefore, EPA disagrees that EPA should provide an allowance for 

stormwater run-on quality in the permit. EPA received a comment in support of this view which 

suggested that EPA’s design criteria account for run-on flows. EPA agrees with this suggestion, 

and therefore has modified the design requirement to require permittees to consider “The 

nature of stormwater runoff and run-on at the site...”. See Part 2.1.1.2a.ii of the final permit. 

A commenter also requested that EPA define fine silt, clay, or colloidal solids to clarify when 

enhanced treatment would be required in accordance with the proposed requirement stating, 

“If fine silts, clay or colloidal soils are present, then use of enhanced sediment controls such as 

sand filtration and/or polymers or flocculants may be necessary.” Upon further consideration, 

EPA believes that the use of enhanced sediment controls, including sand filtration and chemical 

treatment, is best determined on a site-specific basis. Therefore, EPA has removed the proposed 

language referenced above from the final permit. 

Response 2.6 Requirement to Control Stormwater Discharges. 

EPA received comments with regard to the following proposed requirement: “Design stormwater 

controls to control both peak flowrates and total stormwater volume to minimize erosion at 

outlets and to minimize downstream channel and streambank erosion.” Commenters indicated 
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that the proposed requirement did not take into consideration several factors, including the fact 

that some sites may not have erosion concerns, and therefore should not be required to 

implement controls. Additionally, the requirement does not include specific guidance on how 

peak flow rates are calculated, and how total stormwater volume can be controlled, and would 

require extensive stormwater calculations. A commenter noted that this requirement does not 

include a specific goal to be met to reduce pollutant discharges, making compliance difficult. A 

commenter also indicated that this requirement may not be feasible or applicable for linear 

projects because the control over flowrate presumes an ability to retain stormwater on-site. EPA 

notes that this proposed requirement implements the C&D rule requirement at § 450.21(a)(2). In 

the final CGP, EPA has modified this requirement to only apply in areas where “any stormwater 

flow will be channelized at your site.” See Part 2.1.12.a.ii. With this modification, EPA believes it 

makes it clear that the requirement will not require that all permittees install specific controls. 

Instead, the requirement only applies where flow will be channelized on a site. For example, if a 

linear project does not channelize flow at the site, the requirement to design stormwater controls 

to control peak flowrate and total stormwater volume does not apply. EPA believes that this 

requirement formalizes standard practices that construction site operators generally take into 

account when designing stormwater channelization controls to ensure that erosion and scouring 

from discharges is minimized. EPA believes that through good engineering practices, permittees 

will be able achieve compliance with this requirement, and EPA does believe that the permit 

should specify what specific methods are required to control peak flowrates and total 

stormwater volume. As long as channelized discharges are minimizing downstream channel and 

streambank erosion, compliance will be achieved. EPA notes that the requirement to control 

peak flowrates and total stormwater volume do not necessarily equate to a 2-year, 24-hour 

storm event. 

Another commenter indicated that requirements concerning flowrates and stormwater volume 

are not appropriate parameters for regulation in the NPDES program. EPA again points out that 

this requirement implements the C&D rule requirement at 40 CFR § 450.21(a)(6), and therefore, it 

is not within the scope of this permit to modify this regulatory requirement. Moreover, the 

purpose of this permit requirement is to minimize the discharge of pollutants to waters of the U.S. 

from active construction sites, which is one of the purposes, if not the central purpose, of the 

NPDES program. 

Response 2.7 Requirement to Use Vegetated Areas for Sediment Control

Commenters expressed that requiring sites to discharge stormwater to vegetated areas of the 

site is not realistic when grading and construction activities are occurring. EPA believes that it will 

be feasible to direct stormwater to vegetated areas during grading and construction activities in 

many cases. However, EPA recognizes that in some cases it may not be feasible due not the 

nature of the construction activities occurring. Therefore, Part 2.1.1.2b requires that stormwater 

be directed to vegetated areas in order to increase sediment removal and maximize 

stormwater infiltration, unless infeasible. EPA notes that this requirement implements the C&D rule 

requirement at 40 CFR § 450.21(a)(6). Commenters disagreed with EPA’s proposed requirements 

that permittees use level spreaders to establish a non-concentrated or non-channelized flow, 

suggesting that level spreaders are rarely implemented correctly or effectively. Based on this 

concern, EPA no longer requires the use of level spreaders. EPA has also modified the language 

to only require the use of velocity dissipation devices if necessary to prevent erosion when 

directing stormwater to vegetated areas. See Part 2.1.1.2b of the final permit. 

Response 2.8 Requirement to Route Non-Stormwater to Sediment Controls

Commenters disagreed with EPA’s proposed requirement that allowable non-stormwater be 

directed to sediment controls, stating that sediment-free non-stormwater discharges should not 

be treated by sediment controls, and overuse of the sediment controls will limit their 

effectiveness. EPA appreciates the suggestion, and upon further reflection has omitted this 
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requirement from the final permit. A commenter also suggested that water used for dust control 

or irrigation should be exempt from this requirement. In accordance with these comments, in 

Part 1.3d EPA only requires that non-stormwater discharges not be routed to areas of exposed 

soil on the site, except for water used to control dust and to irrigate. 

Response 2.9 2-Year 24 Hour Storm

In the proposed permit, EPA requested comments on whether EPA should adopt a design storm 

standard, such as the 2-year, 24-hour design storm, for all stormwater controls. EPA received 

many comments supporting the concept, with some suggesting that EPA even consider a larger 

storm event standard. However, many other comments expressed concern with applying the 

concept to all stormwater controls. The following is a summary of the concerns: 

• A design standard should be flexible and should consider other factors such as project 

duration, timing relative to season, etc. A standard is not always necessary depending 

on the length of the project and the season. Also, it is difficult to choose one standard 

that is effective in every location. The 2-year, 24-hour storm varies from state-to-state. 

Instead, EPA should consider selecting a quantity of rainfall as a guideline. 

• Barrier BMPs will not capture sediment from a 2-year, 24-hour storm. A standard should 

only be applied to a sediment containment system (SCS). 

• A design standard is appropriate for volume-based stormwater controls, such as a 

sediment basin. However, it is not appropriate for other types of controls, such as barrier 

BMPs, and there is no information supporting how these controls can be designed to a 

standard. 

• Determining how to design all stormwater controls to meet the standard would require 

an in-depth analysis, which would increase costs and would burden smaller developers. If 

adopted, EPA should provide guidance on how to design BMPs to meet the standard. 

• A design standard is not appropriate for linear projects with limited room for sediment 

basins. A design standard would result in over-engineering of sites. 

Based on these comments, EPA decided that it would not be appropriate to apply a design 

standard to all stormwater controls. However, EPA received support from many commenters on 

adopting a 2-year, 24-hour storm standard for sediment basins. Therefore, in the final permit, EPA 

requires that for any site choosing to implement sediment basins, they must either design the 

basin to meet the calculated runoff from a 2-year, 24-hour storm, or provide storage for 3,600 

cubic feet per acre drained. EPA notes that this design standard is consistent with the design 

standard for sediment basins in the 2008 CGP, and therefore, EPA believes that the permittees 

will be familiar with the concept. 

EPA provides information on determining the volume of runoff from a 2-year, 24-hour storm in 

Appendix H. One commenter noted that the information on the 2-year, 24-hour storm in the 

appendix will be out of date because the National Weather Service will be updating its statistics. 

EPA notes that EPA is only able to incorporate the latest published data at the time of permit 

issuance. If newer information becomes available after the permit is issued, EPA will incorporate 

it into the next permit issuance. EPA will allow permittees to continue to use the information in 

Appendix H for designing sediment basins, but encourages permittees to use more updated 

information if it is available. EPA also notes that permittees may use alternative data sources to 

determine the 2-year, 24-hour storm for their site. A commenter also noted that technical paper 

40, as referenced in Appendix H, is no longer applicable for certain parts of the country. 

Accordingly, EPA removed the reference to technical paper 40 for sites in the District of 

Columbia. A commenter also noted that a conversion factor is required for determining a 2-

year, 24-hour storm for Northeast Regional Climate Center: Atlas of Precipitation Extremes for the 

Northeastern United States and Southeastern Canada map. Accordingly, EPA removed this map 
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and reference from the Appendix, and instead references sites in Massachusetts and New 

Hampshire to technical paper 40. 

Response 2.10 Clarification of which SCMs Need to be in Place Prior to Disturbances and 

Rationale

Response 2.10.1 Clarification of requirement. EPA received comment on the proposed 

requirement to “install and make operational all sediment controls prior to conducting earthdisturbing activities.” Some commenters requested clarification of which sediment controls are 

to be in place prior to land disturbances. EPA notes that the requirement applies to 

“downgradient” sediment controls. Also, the requirement applies “if feasible.” See Part 2.1.1.3 of 

the 2012 CGP for a description of the requirements and section VII.1.1 of the 2012 CGP Fact 

Sheet for a discussion on the rationale for the requirements. See also supplemental explanation 

papers in the C&D rule docket regarding appropriate time for implementation of the various 

BMPs in the construction process. 

Other commenters were concerned that they would be unable to meet the requirement 

because of the size and scope of their projects. To these commenters, EPA notes that the 2012 

CGP allows operators who are disturbing their site in phases to also install stormwater controls in 

phases. See Part 2.1.1.3. The permit requires operators to have completed downgradient 

stormwater controls no later than each phase of earth-disturbance. That is, by the time earthdisturbing activities in any given portion of a site begin , the permittee must have installed and 

made operational any downgradient sediment controls (e.g., buffers or equivalent sediment 

controls, perimeter controls, exit point controls, storm drain inlet protection) that control 

discharges from the initial site clearing, grading, excavating, and other land-disturbing activities 

from that portion of the site. This requirement applies to the downgradient sediment controls 

only. Following the installation of downgradient controls, all other stormwater controls planned 

for a given portion of the site and described in the SWPPP must be installed and made 

operational as soon as conditions on the site allow. Thus, EPA notes that operators of large sites 

would not necessarily need to install controls for their entire site prior to beginning land 

disturbance. The requirement applies to the portion of the site in which operators are 

conducting land-disturbing activities. 

Some commenters were concerned that they would not be able to meet the requirement 

because the act of installing stormwater controls itself results in land disturbance. As discussed 

above, EPA notes that the 2012 CGP requires completion of installation of downgradient 

sediment controls by the time each phase of earth-disturbances begins and allows operators to 

install and make operational all other stormwater controls planned for a given portion of the site 

and described in the SWPPP as soon as conditions on the site allow. EPA does not mandate 

specific downgradient sediment controls but provides a list of examples of downgradient 

sediment controls including buffers or equivalent sediment controls, perimeter controls, exit point 

controls, and storm drain inlet protection. EPA believes that operators will be able to install such 

downgradient sediment controls without disturbing the rest of the site. 

Response 2.10.2 Legal authority for requiring SCMs in place prior to discharge.EPA received 

comment on the Agency’s authority to require the installation of stormwater controls before a 

stormwater discharge is present. EPA has revised the language in Part 2.1.1.3 of the 2012 CGP to 

clarify the requirement. The permit requires that downgradient sediment controls in any given 

portion of the site be in place by the time earth-disturbing activities begin in that portion of the 

site, but not necessarily “before” earth-disturbing activities begin. The permit requires the controls

to be in place no later than the start of land-disturbance because once land-disturbance 

begins, receiving waters are vulnerable to increased stormwater discharges and associated 

pollutant loads. The requirement to have downgradient sediment controls in place no later the 

initiation of land disturbances ensures that measures are in place in time to address the risk and 

to minimize the discharge of pollutants to receiving waters. 
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Response 2.10.3 Definition of “initial site clearing” and what needs to be done prior to “initial site

clearing”. EPA received comment requesting that the Agency clarify the definition of “initial site 

clearing” with respect to the proposed provision to require operators to install stormwater 

controls prior to commencing earth-disturbing activities in any portion of the site, with the 

exception of initial site clearing and the establishment of entry, exit, and access of the site, 

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

disturbance. EPA proposed that “prior to commencing earth-disturbing activities in any portion 

of [the] site, [operator] must install and make operational all stormwater controls...[but] this 

requirement does not apply to earth disturbances related to initial site clearing. As discussed 

below, EPA does not define “initial site clearing” in the 2012 CGP. However, the term generally 

refers to the removal of vegetation and/or top soil at the commencement of construction 

activity at a site. 

Commenters requested that EPA exempt the initial exposing of the site as well as clearing 

related to the construction of BMPs. EPA notes that the 2012 CGP does not distinguish between 

initial site clearing and other earth-disturbing activities or make an exemption for initial site 

clearing because, like other earth-disturbing activities, initial site clearing leads to increases in 

stormwater discharge volume and pollutant loads, including sediments. Thus, EPA does not 

define initial site clearing in the 2012 CGP. However, as discussed above, the permit does not 

require operators to install all stormwater controls prior to earth-disturbing activities. Rather, the

permit requires operators to install “downgradient” sediment controls in a given portion of the 

site no later than the commencement of earth-disturbing activities, including initial site clearing, 

in that portion of the site. Following the installation of these initial controls, all other stormwater 

controls planned for this portion of the site and described in the SWPPP must be installed and 

made operational as soon as conditions on the site allow. Operators will be able to install 

downgradient sediment controls (e.g., buffers or equivalent sediment controls, perimeter 

controls, exit point controls, storm drain inlet protection) that control discharges from the initial 

site clearing, grading, excavating, and other land-disturbing activities without disturbing the rest 

of the site. See Part 2.1.1.3 of the 2012 CGP for a description of the requirements and section 

VII.1.1 of the 2012 CGP Fact Sheet for a discussion on the rationale for the requirements. 

Response 2.11 Flexibility for Linear Construction Projects – Down-Slope Controls

EPA received comments on the proposed requirement to “install stormwater controls along all 

down slope areas...on the level contour of the site, in the flattest area possible, at a distance 

down slope from the toe of the slope, and with the ends of the control paced up slope from the 

rest of the control.” Some commenters indicated that many linear projects slope from beginning 

to end and have no flat areas. Others were concerned that the length of linear projects would 

make the proposed requirement overly burdensome. EPA has clarified the provision in the 2012 

CGP. Operators must install sediment controls along only those perimeter areas of the site that 

will receive stormwater from earth-disturbing activity, rather than the entire perimeter of the site. 

In addition, EPA notes that permittees constructing their projects in phases are eligible to install 

stormwater controls in phases as well. See Part 2.1.2.3 of the 2012 CGP. 

Other commenters asserted that many linear construction projects would lack the space to 

comply with the requirement for down-slope controls due to limited rights-of-way. Another 

commenter suggested that EPA provide flexibility but not a universal exemption for linear 

construction projects for down-slope controls. EPA agrees with this commenter and notes that 

the 2012 CGP includes flexibility for linear projects. For linear projects with rights-of-way that 

restrict or prevent the use of such perimeter controls, permittees must maximize the use of these 

controls where practicable and document in their SWPPP why it is impracticable in other areas 

of the project. 

Response 2.12 Sewer Inlet Protection Provision
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EPA received comments on the proposed requirement to provide protection of sewer inlets. 

Commenters noted that the requirement is a good practice but should be qualified or waived in 

situations where the controls may create unsafe conditions (i.e., flooding around the inlets). One 

commenter suggested that alternative controls should be allowed in these situations. Other 

commenters asserted that inlet protection is ineffective and poses a safety risk, asserting that the 

controls slow water flow and block its exit into the sewer, resulting in flooding of traffic lanes. One

commenter suggested that EPA consider the safety of the traveling public and recognize the 

effectiveness of stormwater controls that minimize sediment before it arrives at the sewer inlet. 

Other commenters suggested that EPA recognize other effective controls. 

The 2012 CGP is responsive to the comments received. The permit requires sewer inlet protection 

only in those cases in which stormwater is not first directed to a sediment basin, sediment trap, or 

similarly effective control. Moreover, the permit allows operators to remove controls in the event 

of flood conditions or to prevent erosion. 

Other commenters noted that stormwater drains are sometimes located on property outside of 

their jurisdiction. EPA notes that the requirement in the 2012 CGP only applies to storm drains for 

which the permittee has authority to access. 

One commenter noted that some storm drains are not yet in service during construction. The 

commenter explains that such storm drains are cleaned out before they are put into service. The 

commenter suggests that these storm drains do not require protection. EPA notes that the 

requirement in the 2012 CGP only applies to storm drains that carry stormwater flow to surface 

waters. If the storm drains in question are out of service and thus do not carry stormwater flow to 

surface waters, then the requirements would not apply. 

EPA also received comment suggesting that the Agency consider inlet protection control prior 

to any land clearing activity. EPA agrees and notes that the 2012 CGP requires downgradient 

sediment controls to be installed in a given portion of the site by the time land disturbance 

begins in that portion of the site and includes sewer inlet protection as an example 

downgradient sediment control. 

Response 2.13 Effective Operating Conditions

EPA received comments requesting that EPA explain what is meant by “effective operating 

condition.” EPA has defined the term in the 2012 CGP. See Appendix A. 

EPA received comments on the proposed requirement to remove sediment once it has reached 

a height of one-half of the height of any exposed silt fence in order to maintain effective 

operating conditions. One commenter asserted that one-half height is too high because 

pressure will cause fabric failure. Another commenter pointed out that many manufacturers 

state that the proper height of removal is one-third of exposed height. EPA appreciates the 

comments, but EPA decided to keep the height at one-half because EPA believes that the 

requirement has worked well in the past. 

Response 2.14 Managing Track-out

EPA received comments on the proposed provision to eliminate track-out from vehicles. Some 

commenters sought clarity on the requirement. Others asserted that it would be impossible to 

“eliminate” track-out. EPA notes that the 2012 CGP requires operators to “minimize” (rather than 

“eliminate”) sediment track-out. See Part 2.1.2.3 of the 2012 CGP. 

Some commenters asserted that removing sediment from vehicles or daily sweeping, shoveling, 

or vacuuming of streets, sidewalks, or other paved areas would be burdensome. EPA notes that 

the 2012 CGP requires controls for removing sediment from tires only “where necessary” and 

requires sweeping, shoveling, or vacuuming of streets, sidewalks, or other paved areas only 

“where sediment has been tracked-out”. The permit also requires operators to minimize 
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sediment track-out in the first place by restricting vehicle use to properly designated exit points 

and by requiring the use of appropriate stabilization techniques at all points that exit onto paved 

roads so that sediment removal occurs prior to vehicle exit. These preventive measures will help 

to minimize track-out in the first place and thus reduce the burden associated with any 

necessary sediment removal from tires or any sweeping, shoveling, or vacuuming. See Part 

2.1.2.3 of the 2012 CGP. 

One commenter requested clarification on the applicability of the requirement for sweeping or 

removing track-out to paved surfaces within the site boundary. EPA notes that the requirement 

applies to “off-site” streets, other paved areas, and sidewalks. See Part 2.1.2.3 of the 2012 CGP. 

The commenter goes on to suggest that EPA limit the requirement to remove track-out to 

“publicly accessible streets and other paved surfaces”. EPA has not limited the requirement to 

streets and paved surfaces that are “publicly accessible.” Rather, the requirement applies to the 

paved areas onto which vehicles enter after exiting the site. EPA believes that if a permittee is 

able to utilize a paved surface to exit the site, then the permittee should have sufficient access 

to the area to remove any track-out. EPA notes that the intent of the requirements in Part 2.1.2.3 

is to minimize track-out in the first place. The requirement to remove track-out only applies in 

those cases where the preventive measures have failed and sediment has been tracked-out. 

One commenter asserted that wheel washouts are not always effective and that they are not 

always an option (e.g., water is not available). EPA notes that the 2012 CGP does not require 

wheel washout. Rather, wheel washout is indicated as an example of a control that could be 

used to remove sediment from vehicles prior to their exit. Another example control given is the 

use of rumble strips. 

Regarding comments on sediment staining and “no visible sign”, EPA recognizes that some fine 

grains may remain visible on the surfaces of off-site streets, other paved areas, and sidewalks 

even after permittee has implemented sediment removal practices from these surfaces. It is not 

the intent of the Agency to consider such “staining” to be a violation of Part 2.1.2.3. 

EPA received general comments asserting the challenges of meeting the track-out for linear 

projects. EPA has reviewed these comments and notes that the final permit language is 

responsive to them. For comments related to dirt roads, EPA notes that the track-out removal 

requirements apply to paved surfaces only. For comments related to “no visible sign”, see 

discussion in previous paragraph. For comments related to the inability to remove track-out (1) 

caused by the traveling public driving over exposed areas in which work is not currently 

occurring or (2) caused during non-work days, EPA notes that the 2012 CGP recognizes the 

challenge in removing the track-out at the end of the day in which the track-out occurred 

under these circumstances and allows permittees in these situations to remove the deposited 

sediment by the end of the next work day if track-out occurs on a non-work day. The language 

provides permittees with flexibility while also ensuring the removal of sediment and protection of 

receiving waters. 

Response 2.15 Dust- Suppression

EPA received comment on the proposed requirement to minimize the generation of dust and 

off-site tracking in order to minimize pollutants being discharged into waters of the U.S. One 

commenter asserted that the requirement was vague and expressed concern that the 

adequacy of actions taken would be subjectively assessed by inspectors without more specific 

criteria in place. 

Some commenters suggested that EPA does not have the authority to regulate airborne dust 

clouds that may leave construction sites, further stating that the NPDES program only regulates 

pollutants associated with certain construction operations that are discharged from a property 

via stormwater through a point source to a water of the U.S. Similarly, another commenter 

asserted that the CWA does not give EPA the authority to regulate airborne particles. The 
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commenter goes on to say that local clean air requirements may conflict with requirements 

under the CGP and that not all jurisdictions allow water to be used as a temporary stabilization 

agent. The commenter recommends that the CGP not contain any language about dust 

suppression because the Clean Air Act already does so and EPA’s Office of Water lacks the 

expertise or authority to regulate air pollutants. 

EPA is not regulating air quality or dust clouds leaving the site under the 2012 CGP. Part 2.1.2.5 of 

the permit requires operators, to the extent feasible, to minimize the generation of dust through 

the application of water or other dust suppression techniques in order to minimize pollutants 

being discharged via stormwater from the site to waters of the U.S. The purpose of the 

requirement is to minimize the discharge of sediment in stormwater from the site to surface 

waters. Dust suppression techniques are best management practices that prevent dust from 

being generated, thereby minimizing the potential for the dust to accumulate where it is likely to 

be blown around within the site and/or to discharge from the site in stormwater discharges. The 

requirement will reduce the amount of dust that rises within the site and settles onto the project 

area not protected by stormwater control measures where it may be subsequently mobilized by 

stormwater and discharged through a point source to a water of the U.S. 

Response 2.16 Requirement to “Eliminate” Sediment Discharges

EPA received several comments citing the difficulty of eliminating sediment discharges. In 

response to these comments, EPA notes that the 2012 CGP includes provisions requiring that 

permittees minimize sediment discharges rather than eliminate sediment discharges. 

Response 2.17 Soil Stockpiles

EPA received several comments on the proposed requirements for soil stockpiles. Some 

commenters supported the proposed requirements. Others suggested alternative language. 

Some commenters challenged the feasibility of the proposed stabilization deadline 

requirements. Some supported requirements to cover stockpiles while others asserted that 

covering stockpiles would not always be feasible. 

While covering stockpiles helps to minimize sediment discharge, EPA recognizes that other 

practices are also effective and notes that the 2012 CGP includes flexibility for minimizing 

sediment discharges from soil stockpiles. See Part 2.1.2.4 of the permit. Stockpiles must be 

located outside of any buffers, physically separated from other stormwater controls, and 

protected from contract with stormwater. The permit requires that stockpiles be protected from 

contact with stormwater (including run-on) using a temporary perimeter sediment barrier (e.g., 

berms, dikes, fiber rolls, silt fences, sandbag, gravel bags, or straw bale). Where practicable, 

permittees must provide cover or appropriate temporary stabilization to avoid direct contact 

with precipitation or to minimize sediment discharge and, where feasible, permittees must 

contain and securely protect stockpiles from wind. 

Response 2.18 Preservation of Native Soils

EPA received multiple comments on the proposed requirements related to the preservation of 

native soils. Some commenters supported the requirement. Others challenged the specificity 

and asserted that the specific requirements would not always be feasible. EPA notes that the 

2012 CGP recognizes the challenges faced by permittees in preserving native soil. The permit 

requires that permittees preserve native topsoil on the site, unless infeasible. 

EPA also received comment on the proposed recommendations related to maintaining soil 

function including guidance on weed growth, height limits, and limitations of soil storage times. 

EPA recognizes the variety of approaches that may be taken to preserve native soil and has 

simplified the language in the 2012 CGP, requiring only that permittees “must preserve native 

topsoil on [the] site, unless infeasible” without giving specific direction on how the permittees 

must preserve the soil. 
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EPA also received comments asserting that the re-use of native soils for restoration projects could 

encourage invasive and non-desirable vegetation. The 2012 CGP language provides sufficient 

flexibility to address the concern raised by the commenters. As noted above, an operator may 

be exempt from the requirement to preserve native soils if it is infeasible to do so. EPA also notes 

that the 2012 CGP includes a provision discussing that permittees should avoid the use of 

invasive species. 

Response 2.19 Soil Compaction

One commenter suggested that EPA’s proposed requirements for minimizing soil compaction 

should exclude access roads, equipment pads, or other similar areas on linear projects that will 

be compacted. EPA did not intend for these provisions to apply to areas of the site that are 

designed to be compacted. EPA has clarified in the final permit fact sheet that the requirement 

to minimize soil compaction does not apply to areas that will not be used for final vegetative 

stabilization or for areas where infiltration practices will be installed. For example, the 

requirements do not apply to disturbed areas that will become paved surfaces, such as roads, 

foundations, footings, or on embankments, or on areas where soil compaction is necessary by 

design. 

Response 2.20 Requirement to Stabilize Entrances and Exits for 50 Feet

EPA received a variety comments on the proposed requirements to stabilize entrance and exit 

points. Commenter concerns included assertions that requiring permittees to stabilize entrances 

and exits for a minimum of 50 feet would be overly burdensome, infeasible (e.g., for lack of 

space), or would not guarantee the intended protection. Commenters suggested that EPA 

allow flexibility and that other techniques could minimize sediment track-out just as well. 

EPA has simplified the requirement in the 2012 CGP. Permittees must “use appropriate 

stabilization techniques at all points that exit onto paved roads so that sediment removal occurs 

prior to vehicle exit.” In addition, permittees must restrict vehicle use to properly designated exit 

points and use appropriate stabilization techniques at all points that exit onto paved roads so 

that sediment removal occurs prior to vehicle exit. 

See Part 2.1.2.3 of the 2012 CGP for the requirements on minimizing track-out and section VII.1.2 

of the 2012 CGP Fact Sheet for a discussion on the rationale. 

Some commenters questioned the need to stabilize entrances. EPA notes that the 2012 CGP 

requires operators to use appropriate stabilization technique at all points that exit onto paved 

roads so that sediment removal occurs prior to vehicle exit. The requirement does not apply to 

locations on the site that are not or will not be used as exits. 

Response 2.21 Requirements for Stabilizing Channels

EPA received comments on the proposed requirements related to constructed stormwater 

conveyance channels. One commenter asserted that it may not be feasible to complete 

stabilization of a stormwater conveyance within the proposed timeframe or “before the first 

predicted storm”. Another commenter stated that the proposed stabilization requirements are 

not practicable and asserted that installing sediment barriers along the length of the channels 

would not be feasible. The commenter also requested clarity on the proposed timelines. 

EPA notes that the 2012 CGP includes requirements for minimizing erosion and sediment 

discharge but does not include specific stabilization requirements for channels or timelines for 

stabilization for channels nor does it require sediment barriers along the length of all channels. 

Rather, the permit requires that stormwater conveyance channels be designed to avoid 

unstabilized areas and to reduce erosion, unless infeasible. In addition, permittees must prevent 

erosion of channels and their embankments, outlets, adjacent streambanks, slopes, and 

downstream waters during discharge conditions through the use of erosion controls and velocity 
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dissipation devices within and along the length of any constructed stormwater conveyance 

channel, and at any outlet to provide a non-erosive flow velocity. See Parts 2.1.1.2 and 2.1.3.1 of 

the 2012 CGP and section VII.1 of the 2012 CGP Fact Sheet. 

Response 2.22 Flocculent Use – Requirements and Rationale

EPA received multiple comments on the proposed requirements for permittees who use 

polymers, flocculants, or other treatment chemicals (e.g., chitosan, polyacrylamide (PAM)) to 

enhance sediment removal. 

Some commenters supported provisions that would regulate the use of treatment chemicals. 

Other commenters suggested that it is not practical for the Agency to issue broad permit 

restrictions on the use of chemical treatments. Others asserted that any restrictions should be 

limited to the manufacturer’s specifications for application. While EPA agrees that operators 

should follow manufacturer’s specifications and notes that the 2012 CGP requires that 

permittees using treatment chemicals must comply with specifications provided by the 

provider/supplier, the Agency also believes that additional permit requirements on the use of 

treatment chemicals are important to ensure that they are properly used and that receiving 

waters are protected. EPA discusses its rationale for requirements on the use of treatment 

chemicals in section VII.1.3 of the 2012 CGP Fact Sheet. EPA also notes that the preamble to the 

C&D Rule (40 CFR Part 450) indicates that “NPDES permitting authorities may establish controls 

on dosage and usage, protocols for residual toxicity testing, require prior approval before the 

use of particular polymers, training requirements for site operators or other measures they deem 

appropriate.” 74 Federal Register 63008 (December 1, 2009). EPA has developed requirements 

on the use of treatment chemicals consistent with the C&D Rule and the preamble to the Rule. 

One commenter requested clarification of the requirements with regard to non-proprietary 

treatment, as compared to proprietary treatment. EPA discusses the requirements in Part 2.1.3.3 

of the 2012 CGP and notes that the requirements on the use of treatment chemicals are the 

same whether the chemicals are proprietary or non-proprietary. 

EPA received comment suggesting that any operator using chemical treatment should be 

required to obtain an individual permit. EPA also received comment recommending that 

chemicals not be used for stormwater control at all and encouraging the use of a combination 

of sediment and erosion control measures instead. EPA agrees that permittees should be 

encouraged to use a combination of sediment and erosion controls and notes that the 2012 

CGP requires that permittees who plan to use chemical treatment must maximize the use of 

conventional erosion and sediment controls as a means to minimizing the amount of treatment 

chemicals that would be required. The provision will help to ensure that treatment chemicals are 

not over-applied. In response to the comment suggesting that chemicals not be used at all, EPA 

recognizes that treatment chemicals can be an effective means to reducing pollutant loads in 

stormwater discharges and, when used correctly, should not pose an environmental risk to 

receiving waters. The 2012 CGP includes several provisions related to chemical treatment to 

ensure proper and safe usage. See Part 2.1.3.3 of the permit. While both anionic and cationic 

chemicals can be used safely and effectively, EPA believes that the use of cationic chemicals 

may require more oversight and/or more stringent controls because of the higher risk of 

environmental impact if they are used improperly and because of the need for greater 

oversight and greater understanding of site-specific conditions to ensure proper and safe use of 

the cationic chemicals. Thus, operators planning to use cationic chemicals to treat their 

stormwater prior to discharge must acquire authorization from their EPA regional office prior to 

submitting their NOIs. Such operators may be subject to additional permit requirements in light of 

their plans to use cationic chemicals to treat stormwater. 
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EPA received multiple comments challenging the required use of treatment chemicals and 

requesting clarification on when chemical treatment is required and which chemicals may be 

used. EPA notes that the 2012 CGP does not require the use of chemical treatment. 

Response 2.22.1 Toxicity concerns. Some commenters expressed concerns with the toxicity of 

polymers, flocculants, or other treatment chemicals. One commenter recommended that 

operators be required to show no toxicity to fish and other aquatic species. Another commenter 

suggested that testing of products prior to use on construction sites should be implemented by 

the manufacturer prior to their use on construction sites. The commenter was concerned that 

requiring testing on-site would result in reduced use of the chemicals, whether beneficial or not. 

EPA notes that the 2012 CGP does not require permittees to test the toxicity of chemicals. EPA 

agrees with commenters asserting that the use of chemicals could pose a risk if used improperly. 

However, as discussed above, EPA recognizes that treatment chemicals can be an effective 

means to reducing pollutant loads in stormwater discharges and, when used correctly, should 

not pose an environmental risk to receiving waters. The 2012 CGP includes several provisions 

related to chemical treatment to ensure proper and safe usage. See Part 2.1.3.3 of the permit. In 

particular, the permit requires that all persons who handle and use treatment chemicals at the 

construction site be provided with appropriate, product-specific training. Among other things, 

the training must cover proper dosing requirements.

EPA received comment questioning, for storm event discharges, whether the Agency had 

evaluated the potential for discharges to contain contaminants that result in stream 

concentrations in exceedance of stream water quality standards due to the addition of 

flocculents and asked whether any additional limitations or monitoring would be necessary to 

address dissolved pollutants and potential changes in pH associated with treatment chemicals. 

The Agency continues to believe that treatment chemicals, when used correctly, should not 

pose an environmental risk to receiving waters. The 2012 CGP includes several provisions to 

ensure proper and safe usage. In particular, operators that plan to use treatment chemicals 

must use conventional erosion and sediment controls prior to and after the application of 

treatment chemicals prior to discharge to ensure effective treatment. This will maximize the 

opportunity for the chemical to combine with sediment and minimize the direct discharge of 

chemicals. Chemicals must be selected that are appropriately suited to the types of soils likely to 

be exposed during construction and based on expected turbidity, pH, and flow rate of 

stormwater flowing into the chemical treatment system. They must comply with state or local 

requirements, which could include residual testing. They must use chemicals in accordance with 

good engineering practices and specifications of the chemical provider/supplier. All persons 

who handle and use treatment chemicals at the construction site must be provided with 

appropriate, product-specific training. Among other things, the training must cover proper 

dosage requirements. The operator must document in the SWPPP the dosage they will use or 

how they will determine the dosage. See Part 2.1.3.3 for a description of the requirements and 

section VII.1.3 for a discussion on the purpose of the requirements. EPA also notes that residual 

tests are not available for all treatment chemicals. 

In addition, operators are subject to the water quality-based effluent limits in Part 3 of the permit,

including the provisions related to sensitive waters (where applicable), as well as the 

technology-based effluent limits in Part 2 of the permit . In the absence of information 

demonstrating otherwise, EPA expects that compliance with the conditions in the 2012 CGP will 

result in stormwater discharges being controlled as necessary to meet applicable water quality 

standards. See also responses to comments regarding Part 3 of the permit. 

One commenter asserted that EPA does not have enough data to determine what level of 

certain polymers (i.e., chitosan) in the discharge can have an impact on plants and benthic 

organisms and that EPA should therefore provide funding for monitoring the effects of polymers 

(i.e. chitosan) on aquatic organisms. EPA notes that the requirements in the 2012 CGP are based 

on the latest data currently available to the Agency and that the permit does not specify 
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maximum dosage rates of chemicals. Comments related to requests for EPA funding for 

monitoring the effects of polymers are beyond the scope of this action. 

One commenter asserted that the application of PAM directly to soil surfaces will likely lead to 

runoff that may be toxic to aquatic species. EPA believes that the provisions on the use of 

chemical treatment in the 2012 CGP address the risk the commenter raises. The requirements 

related to the use of treatment chemicals are described in Part 2.1.3.3 of the permit. In 

particular, the permit requires that chemicals must be selected that are appropriately suited to 

the types of soils likely to be exposed during construction and discharged to locations where 

chemicals will be applied, and the expected turbidity, pH, and flow rate of stormwater flowing 

into the chemical treatment system. This requirement will ensure that the proper dosage is used. 

In addition, the permit requires that any chemicals that are used for treatment may only be 

applied where treated stormwater is directed to a sediment control (e.g., sediment basin, 

perimeter control, etc.) prior to discharge. The sediment control will ensure that the treatment 

chemicals have sufficient opportunity to bond with sediments and settle out or be filtered out of 

stormwater prior to discharge. 

Response 2.22.2 Use of secondary containment. One commenter requested clarification on 

what an appropriate secondary containment would be for flocculants. EPA notes that the 2012 

CGP does not require specific secondary containment for flocculants. Examples of secondary 

containment controls include spill berms, decks, and spill containment pallets. EPA also received 

comment requesting the Agency’s rationale for requiring secondary containment if the 

materials are suitable for treating runoff. EPA notes again that the 2012 CGP does not require 

secondary containment. Operators must store all treatment chemicals in leak-proof containers 

that are kept under storm-resistant cover and surrounded by secondary containment structures 

(e.g., spill berms, decks, spill containment pallets), OR provide equivalent measures, designed 

and maintained to minimize the potential discharge of treatment chemicals in storm water or by 

any other means. In addition, in response to the question, EPA notes that the dose and 

concentration of the treatment chemical makes a difference in the potential for environmental 

effects. Chemicals that are dosed properly and used correctly should pose no environmental risk 

while releases of raw chemicals without proper dosage may cause negative impacts to 

receiving waters. Thus, EPA has included specific storage requirements for treatment chemicals 

so that the risk of discharge from areas where the raw chemical will be stored is eliminated. See 

section VII.1.3 of the 2012 CGP Fact Sheet. 

Response 2.22.3 Usage in areas with a shallow water table.EPA received comments on the 

proposed provisions on the usage of polymers, flocculants, or other treatment chemicals in areas 

with shallow water tables. Commenters sought to better understand the requirement. One 

commenter offered alternative language to help clarify. Another commenter asserted that the 

requirement would result in eliminating the use of polymers as soil stabilizers. EPA notes that the 

2012 CGP does not include a provision to limit polymers, flocculants, or other treatment 

chemicals in areas with shallow water tables. 

Response 2.22.4 Chitosan. EPA received multiple comments on the usage of chitosan. EPA notes 

that operators planning to use cationic chemicals to treat their stormwater prior to discharge, 

including chitosan, must acquire authorization from their EPA regional office prior to submitting 

their NOIs. Such operators may be subject to additional permit requirements. See Part 2.1.3.3 of 

the 2012 CGP. See section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the purpose of 

these requirements. 

EPA also received comment asserting the benefits of chitosan, that it can be a highly effective 

tool for addressing turbidity at challenging sites, and asserting that over-regulation of its use 

could hinder its potential use. As discussed above, EPA recognizes that treatment chemicals can 

be an effective means to reducing pollutant loads in stormwater discharges and, when used 

correctly, should not pose an environmental risk to receiving waters. The 2012 CGP includes 
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several provisions related to chemical treatment to ensure proper and safe usage. See Part 

2.1.3.3 of the permit. While both anionic and cationic chemicals can be safely and effectively 

used, EPA believes that the use of cationic chemicals may require more oversight and/or more 

stringent controls because of the higher risk of environmental impact if they are used improperly 

and because of the need for greater oversight and greater understanding of site-specific 

conditions to ensure proper and safe use of the chemicals. Thus, operators planning to use 

cationic chemicals to treat their stormwater prior to discharge must acquire authorization from 

their EPA regional office prior to submitting their NOIs. Such operators may be subject to 

additional permit requirements. See Part 2.1.3.3. 

Response 2.22.5 Routing of treated water through sediment trapping, filtering, and/or settling 

devices.EPA received one comment suggesting that that all stormwater should be treated to 

remove sediment anyway. Other commenters were concerned with the site constraints of linear 

construction projects, asserting that the requirement would restrict waste areas of polymerbound sediment and would make it harder to apply liquid treatments in linear applications. 

Commenters asserted that it would be hard to set up enough filtration devices. EPA notes that 

the 2012 CGP does not require chemical treatment. However, the provision to require treated 

stormwater to be directed to a sediment control prior to discharge helps to provide sufficient 

opportunity for treatment chemicals to bond with sediments and removes sediment “flocs” from 

stormwater prior to discharge. See also section VII.1.3 of the 2012 CGP Fact Sheet. 

Response 2.22.6 Dosage requirements and residual testing of polymers. EPA received a variety of 

comments on proposed requirements to set maximum dosages or to require testing for residuals 

of polymers. 

Some commenters challenged any requirements for residual testing of polymers. Some 

commenters supported a maximum dosage requirement. Some suggested dosage 

requirements in place of residual testing requirements. Others asserted that setting a maximum 

dosage would be difficult because of the uniqueness of each project. Another stated that any 

maximum dosage that might be set would be too high for most applications. EPA notes that the 

2012 CGP neither specifies maximum dosage rates nor does it require residual testing of 

polymers. See Part 2.1.3.3 for the requirements on the usage of treatment chemicals included in 

the 2012 CGP and section VII.1.3 of the 2012 CGP Fact Sheet for rationale for those 

requirements. 

Some commenters suggested that permittees follow manufacturer recommendations. EPA 

agrees with this comment and notes that the 2012 CGP requires operators to comply with 

specifications provided by the provider/supplier of the applicable chemicals. 

One commenter stated that the presence of chitosan residuals does not necessarily indicate 

overdosing. See response on “chitosan” above. 

One commenter suggested that operators demonstrate no or very low toxicity to fish and other 

aquatic life rather than rely on residual testing. Another commenter suggested that any residual 

standard be manufacturer driven and specific to each product. See response on “toxicity 

concerns” above. 

Some commenters supported testing requirements. Others asserted that requiring residual testing 

would be onerous or that they would have the effect of limiting the dosages of chemicals that 

operators would be allowed to use, and therefore the effectiveness of chemicals. Some stated 

that requiring residual testing would leave them in a position of having to treat their stormwater 

with few, if any, viable options. The commenters asked that EPA provide and maintain 

adequate flexibility. EPA notes that the 2012 CGP does not require chemical treatment and 

provides permittees with flexibility in managing their stormwater discharges. EPA also notes that 

the 2012 CGP does not require permittees choosing to employ chemical treatment to conduct 

residual testing. However, such permittees are subject to several additional requirements to 
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ensure proper use of treatment chemicals. See Part 2.1.3.3 of the 2012 CGP for the requirements 

and section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the rationale for those 

requirements. 

Response 2.22.7 Training requirements.EPA received comment on training requirements for 

chemical treatment. One commenter asserted that construction workers are not typically 

trained in the harmful effects of these substances on aquatic organisms and that overapplication may occur. EPA notes that the 2012 CGP requires that all persons who handle and 

use treatment chemicals at the construction site be provided with appropriate, product-specific 

training. Among other things, the training must cover proper dosing requirements. See Part 

2.1.3.3 of the 2012 CGP for the requirements and section VII.1.3 of the 2012 CGP Fact Sheet for a 

discussion on the rationale for those requirements. 

Response 2.22.8 Corrective action. EPA received comment on the proposed corrective action 

provisions as they relate to chemical treatment. One commenter asserted that the requirements 

for immediate corrective action during actual discharge from a passive system are not practical 

and that getting to the treatment system during the discharge event could be hazardous. The 

2012 CGP includes language that allows flexibility for corrective action requirements for 

permittees. As specified in Part 5.2, the permit requires that permittees immediately take all 

“reasonable steps” to minimize or prevent the discharge of pollutants until a permanent solution 

is installed. The language recognizes that not all actions will be reasonable. For example, the 

permit would not require immediate corrective action of a malfunctioning system during 

inclement weather if it would pose a safety hazard to the operator. The permit balances this 

flexibility by specifying that corrective action must be completed within 7 days of discovery of 

circumstances requiring correction unless the timeframe is infeasible. Any extensions beyond the 

7-day deadline require documentation. 

The commenter also asserted that the act of disturbing the treatment system could result in 

further violations of both the discharge of the chitosan as well as an exceedance of the numeric 

turbidity limit. See discussion on chitosan above. Also, EPA notes that the 2012 CGP does not 

include a numeric turbidity limit. 

Response 2.23 Dewatering Requirements and Rationale

EPA received comment on the proposed dewatering requirements to prohibit “discharging 

groundwater or accumulated stormwater.... unless such waters are first treated by an 

appropriate control for sediment.” One commenter was concerned that “treated” would be 

misinterpreted and recommended that EPA instead require the use of “appropriate controls.” 

EPA understands why some readers might misinterpret “treated” and has therefore changed the 

language in the 2012 CGP to require that the waters be “managed by appropriate controls.” 

Another commenter suggested that EPA allow dewatering on vegetated, upland portions of the 

site without removing sediment first, asserting that the vegetation would remove the sediment. 

EPA agrees with the commenter that this practice should be employed to the extent feasible. 

The 2012 CGP requires permittees, to the extent feasible, to utilize vegetated, upland areas of 

the site to infiltrate dewatering water before discharge. 

Some commenters requested that EPA explicitly prohibit dewatering onto bare soil. EPA agrees 

with the commenter and notes that the 2012 CGP prohibits the routing of non-stormwater 

discharges from the construction activity to areas of exposed soil on the site, with the exception 

of water used to control dust and to irrigate areas to be vegetatively stabilized. 

One commenter was concerned with the dewatering of water so clean (from water pooled in 

cold bed methane wells) that it would leach salt from the soil and pollute receiving waters. 

Another commenter asserted that dewatered water needs to comply with water quality 

standards. EPA agrees that all discharges from the site must meet applicable water quality 
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standards and, in the absence of information demonstrating otherwise, EPA expects that 

compliance with the conditions in the 2012 CGP will result in stormwater discharges being 

controlled as necessary to meet applicable water quality standards. The 2012 CGP also requires 

corrective action if a discharge is not being controlled as necessary to meet applicable water 

quality standards. EPA believes that the existing requirements to meet water quality standards 

and to conduct corrective action address the concern raised by the commenter. Indeed, if 

stormwater leaches salt from the soil and subsequently discharges into a receiving water in 

exceedance of applicable water quality standards, the permittee would be in violation of the 

permit’s WQBEL and required to take corrective action to address the issue. 

Another commenter requested that EPA clarify that a traditional “sediment sock” is an 

appropriate sediment control for groundwater removal from shallow linear excavations. The 

commenter also asserted that uncontaminated, non-turbid dewatering wastewater should be 

clarified to include all groundwater, not just “well-point ground water.” In the 2012 CGP, EPA 

provides several examples of appropriate controls to control dewatering discharges, including 

“sediment socks.” EPA also notes that the Agency has clarified the language in the dewatering 

provision of the 2012 CGP to include “ground water or accumulated stormwater that is removed 

from excavations, trenches, foundations, vaults or other similar points of accumulation.” 

Response 2.24 Inclusion of Critical Habitats and Areas where Endangered Species Exist in the 

Definition of Sensitive Areas and Associated Stabilization Requirements for these Areas

EPA received comment on the proposed stabilization requirements for sites that discharge to 

sensitive areas, specifically on whether “sensitive areas” under this provision should include 

critical habitat areas or areas where endangered species exist. Some commenters supported 

including these areas in the definition. Others opposed any specific requirements for such sites. 

As discussed in section VII.2.1 of the 2012 CGP Fact Sheet, a shorter stabilization deadline is 

warranted for sensitive areas because of the heightened concern about erosion and the 

impacts from sediment and other pollutant discharges to these areas. In addition, EPA responds 

to comments on the inclusion of specific requirements for sites that disturb or discharge to critical 

habitat areas or to sites where endangered species exist in response 2.25 below. 

EPA received comment on the proposed requirement that permittees mark off and avoid 

disturbing sensitive areas, including federally-listed critical habitats for endangered and 

threatened species. EPA responds to comments on marking off and avoiding the disturbance of 

sensitive areas in response 2.2. 

EPA received comment on stabilization deadlines for sites that discharge to sensitive areas. 

Some commenters suggested that the deadline should be “as soon as practicable” or “as soon 

as possible.” Other commenters supported more stringent stabilization deadlines for sites 

discharging to such areas. EPA agrees with these commenters. Under the 2012 CGP, permittees 

on sites that discharge to sensitive areas are required to complete stabilization of portions of the 

site that discharge to sensitive areas within 7 calendar days after the temporary or permanent 

cessation of earth-disturbing activities, as described in Part 2.2.1.3c of the permit. The more 

stringent deadlines will help to prevent impacts on threatened and endangered species or their 

habitats. EPA discusses rationale for stabilization deadlines in section VII.2.1 of the 2012 CGP Fact 

Sheet and responds to comments on stabilization deadlines in Response 2.26 through 2.39. 

Response 2.25 Specific Requirements for Sites that Disturb or Discharge to Critical Habitat Areas 

or to Sites Where Endangered Species Exist

EPA received comments that opposed the inclusion of specific requirements for sites that disturb 

or discharge to critical habitat areas or to sites where endangered species exist. These 

commenters suggested that requirements specific to these areas are unnecessary, asserting that 

the provisions of the Endangered Species Act (ESA) on their own are sufficient to protect these 

areas. EPA disagrees with these comments, noting that the 2012 CGP is a federal action subject 
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to ESA requirements. Section 7(a)(2) of the ESA requires EPA to insure that that any action the 

Agency authorizes, funds, or carries out is not likely to jeopardize the continued existence of any 

listed species or to result in the destruction or adverse modification of any designated critical 

habitat of each such species. EPA has designed the 2012 CGP to comply with the ESA 

requirements, including provisions with specific requirements for sites that disturb or discharge to 

critical habitat areas or to sites where endangered species exist. 

The specific requirements help to prevent impacts on threatened and endangered species or 

their habitats. See also section XV.D of the 2012 CGP Fact Sheet for discussion on the rationale of 

Endangered Species Act Requirements under the permit. 

Response 2.26 Stabilization Requirements – General Comments (Part 2.2) 

EPA received several comments that were directed at the proposed stabilization requirements 

as a whole, and which were not focused on any one particular provision. The following is a 

summary of those comments and EPA’s response: 

Response 2.26.1 Restructuring of stabilization requirements to improve clarity. One commenter 

recommended that the final permit should be organized by the type of stabilization 

requirement. EPA appreciates this comment, and acknowledges that the proposed stabilization 

requirements could have been organized better. In an effort to improve the clarity of the final 

permit, and in keeping with the commenter’s suggestion, EPA has sought to simplify this section 

and to make it easier to follow. Part 2.2 now includes two subparts, one addressing deadlines for 

initiating and completing stabilization, and the other one establishing the criteria for stabilization. 

Part 2.2.1 presents the requirements for initiating stabilization (Part 2.2.1.1), completing 

stabilization (Part 2.2.1.2), and the exceptions to these requirements (Part 2.2.1.3) in a more 

abbreviated and orderly manner than the proposed permit. Similarly, Part 2.2.2 improves upon 

the proposed permit by keeping the stabilization criteria organized into two subparts, one 

establishing criteria for vegetative stabilization (Part 2.2.2.1) and the other for non-vegetative 

stabilization (Part 2.2.2.2). 

Response 2.26.2 Proposed stabilization requirements are more prescriptive than the C&D rule. 

One commenter objected to the proposed stabilization requirements on the basis that they 

went far beyond the stabilization requirements of the C&D rule, and that because of this the 

proposed requirements are unreasonable, arbitrary, and capricious. The commenter 

recommended that EPA provide flexibility to allow permittees to meet these requirements. In 

response, EPA believes that the changes made in the final permit to the stabilization 

requirements likely address some of the commenter’s concerns. For instance, EPA has 

streamlined these requirements to remove the “C-factor” criteria that appeared in the proposed 

rule, and to no longer impose different stabilization deadlines for steep slope disturbances and 

disturbances within 50 feet of a surface water. 

However, to the extent that the commenter still feels that these requirements go beyond the 

intended stringency of the corresponding C&D rule requirement (i.e., 40 CFR 450.21(b)), EPA 

disagrees. EPA provided permitting authorities with considerable discretion with respect to the 

implementation of the C&D rule requirements generally, and specifically related to the 

stabilization requirements. For example, 40 CFR 450.21(b) provides permitting authorities with the 

ability to establish specific deadlines by which stabilization must be completed, and to develop 

appropriate requirements for vegetative stabilization in arid and semi-arid areas. Using this 

authority, EPA has defined what it considers to be reasonable deadlines for the completion of 

stabilization (Part 2.2.1.2), and has provided appropriate flexibility where circumstances make 

compliance with these deadlines infeasible (Part 2.2.1.3.b). The permit also includes more 

flexible deadlines for projects occurring in arid and semi-arid areas in keeping with the C&D 

rule’s direction to employ “alternative stabilization measures ... as specified by the permitting 

authority.” Therefore, EPA believes that where the final permit’s stabilization requirements may 
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differ from the language in the C&D rule, such differences are consistent with the discretion 

specifically provided to permitting authorities in implementing the rule’s requirements. 

Response 2.26.3 Include incentives for minimizing areas disturbed during construction. One 

commenter noted the difficulty of establishing vegetation in certain arid and semi-arid states, as 

well as the tendency for some construction companies to disturb a much larger area than is 

necessary to develop the site. The commenter observed that the lack of incentives in the 

proposed permit to encourage construction companies to minimize their development footprint 

is the permit’s biggest weakness, and recommended that the final permit include such 

incentives. EPA agrees with the underlying point made by the commenter that minimizing 

ground disturbance is the most effective way to reduce pollutant discharges. See related 

preamble discussion under Section IX.B (Erosion Controls Measures) of the C&D rule at 74 Fed. 

Reg. 63011 (third paragraph). EPA notes that one of the Agency’s primary objectives in 

establishing an acreage threshold for application of the numeric turbidity limit, which has since 

been stayed, was to provide permittees with an incentive to limit the total area of land being 

actively disturbed so as to avoid being required to meet the limit. However, because the 

numeric turbidity limit and associated requirements have been stayed pending the 

promulgation of a new limit, this incentive cannot be included in the final permit. That being 

said, EPA will also continue to explore the use of these types of incentives during the Agency’s 

effort to re-promulgate a numeric turbidity limit. (EPA also notes that the permit requires 

construction operators to “minimize the amount of soil exposed during construction activities” in 

order to minimize the discharge of pollutants. See Part 2.1.1.1.) 

EPA believes it would be challenging to implement incentives of the type the commenter 

recommends, especially without something like an enforceable limit to use as a reason to 

minimize the amount of land disturbed at one time. EPA had considered provisions for the 

proposed permit that would have tied reduced inspection frequencies to sites that limited the 

amount of land disturbed at one time below a certain acreage or that avoided earth disturbing 

activities in areas immediately surrounding surface waters. EPA ultimately did not include these 

provisions based upon the concerns raised by the Agency’s own enforcement office because 

of the difficulty of enforcing such provisions. 

Response 2.26.4 Final stabilization for restoration activities. One commenter raised concerns 

about the potential conflicts brought about by the proposed stabilization requirements with 

respect to restoration projects that rely on natural processes to perform the final stabilization. 

The commenter provided the specific example of a dam removal that intends to restore a freeflowing stream through what is now an impoundment. The following is an excerpt of this 

comment: 

“A created channel accompanied by planting throughout the former impoundment area can 

actually be counterproductive. The river may not naturally follow a designed and excavated river 

channel despite best efforts to intuit the preferred river channel. The newly restored free-flowing 

river will eventually find its own path through the former impoundment and this self-selected course 

will be the most sustainable one. Aggressively stabilizing a restoration site may delay the river's 

ability to create its preferred and more stable channel. DER requests that EPA provide more 

flexibility in the permit to allow for a natural-processes approach for pro-active restoration 

projects.” 

EPA appreciates the commenter’s concerns and believes that some clarification may address 

what appears to be confusion about what activities are within the scope of this permit. EPA 

believes that in some cases the restoration work described above by the commenter will not be 

affected by this permit. Where restoration work is confined to disturbances within the “ordinary 

high water mark” of non-tidal surface waters, this work is subject to the permitting requirements 

of Section 404 of the Clean Water Act, and no Section 402 NPDES stormwater permit is required. 

(For the purposes of Clean Water Act jurisdiction, the term “ordinary high water mark” is defined 

by the U.S. Army Corps of Engineers regulations as “that line on the shore established by the 
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fluctuations of water and indicated by physical characteristics such as a clear, natural line 

impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial 

vegetation, the presence of litter and debris, or other appropriate means that consider the 

characteristics of the surrounding areas.” See U.S. Army Corps of Engineers, Regulatory 

Guidance Letter, No. 05-05, December 7, 2005 at http://www.nap.usace.army.mil/cenapop/regulatory/rgls/rgl05-05.pdf.) It is only where such restoration work extends outside of the ordinary 

high water mark and causes a disturbance of 1 or more acres (or less than 1 acre but part of a 

common plan of development or sale that together causes more 1 or more acre of land 

disturbance) to the “upland” area of the site (i.e., “the dry land area above and ‘landward’ of 

the ordinary high water mark”, see Appendix B) that the requirements of this permit come into 

play. If the extent of the disturbance to the upland area is less than this amount, then no Section 

402 NPDES stormwater permit is required, unless EPA specifically informs you otherwise. If 

disturbance to the upland area requires coverage under an NPDES stormwater permit, then the 

Agency sees no reason why such disturbances should not be subject to the regulatory 

requirement to obtain permit coverage (see 40 CFR 122.26(a)(9)(i)(B)), such as under the CGP. 

EPA hopes that this clarification will address the commenter’s main concern. 

Response 2.27 Definitions Related to Requirement to “Immediately” Initiate Stabilization

One commenter requested definitions for the proposed reference to “working days” and the 

term “immediately” in Proposed Part 2.2.1. EPA did not use the phrase “working days” in this 

proposed section, instead using the phrase “calendar days” (e.g., “... earth-disturbing activities 

have permanently or temporarily ceased, and will not resume for a period exceeding 14 

calendar days.” [emphasis added]) In the final permit, EPA has also adopted the use of the 

phrase “calendar days” for establishing the deadlines for stabilization. By “calendar days,” EPA 

intends to refer to consecutive days of the calendar, irrespective of the days on which work is 

conducted at the site. For example, where in Part 2.2.1.1 the temporary cessation of 

construction activities is defined as such activities stopping and not resuming “for a period of 14 

or more calendar days,” EPA intends that the 14 days begin running on the first day that work 

stops and run on consecutive days until the 14th day after that first day. 

The commenter also asks for EPA to define the term “immediately” in connection with the 

requirement to “initiate soil stabilization measures immediately whenever earth disturbing 

activities have permanently or temporarily ceased ... .” See Part 2.2.1.1 of the final permit. EPA 

agrees that the use of this term could be subject to varying meanings. The use of the term 

“immediately” is taken from 40 CFR 450.21(b) of the C&D rule, which uses the same language as 

the proposed permit. EPA has included the following clarifying note in the permit, which should 

be helpful in addressing the commenter’s request: 

“The term “immediately” is used to define the deadline for initating stabilization measures. In this 

context of this provision, “immediately” means 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.”

Therefore, if the operator has initiated stabilization activities (see list of activities that constitute 

initiation of stabilization in permit) on the required day, EPA would find such steps to constitute 

compliance with the requirement to initiate stabilization measures “immediately.” 

Response 2.28 Support for Alternative Types of Deadlines 

EPA received several comments regarding the lack of flexibility in the proposed requirement to 

“immediately” initiate stabilization following the temporary or permanent cessation of 

construction activities on a site. Some of these commenters argued for replacing the proposed 

deadline with an alternative “as soon as practicable” deadline to initiate stabilization, similar to 

the deadline for stabilization in arid and semi-arid areas. One commenter requested 

consideration of a longer time period for projects that are linear or of a certain size. Several 
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reasons were mentioned for why a more flexible timeframe is needed, including the following 

(EPA’s response follows each of the summarized reasons): 

Response 2.28.1 The C&D rule provided for a stabilization initiation that was less prescriptive (i.e.,

“as soon as practicable”). EPA disagrees with this argument as a rationale for using an 

alternative deadline. EPA is required to implement the requirements in the C&D rule. The 

deadline for initiating stabilization is the same deadline that appears in 40 CFR 450.21(b) of the 

C&D rule, and that was imposed in the 2008 CGP (see Part 3.1.H.2). 

Response 2.28.2 Delays in construction due to scheduling issues or weather. For example, 

several commenters indicated that weather and site conditions quite often can impede 

‘immediate’ initiation of stabilization, and can make it difficult to determine when a temporary 

period of inactivity has begun. EPA agrees with the commenter in part that unanticipated 

scheduling issues could legitimately make it difficult to initiate stabilization. EPA could envision a 

number of scenarios that might result in the sudden and unanticipated stoppage of work, which 

would make it extremely difficult to have predicted ahead of time when a 14-day period of 

inactivity would begin, not to mention planning around these circumstances to initiate 

stabilization. For example, if a project was subject to a sudden and unanticipated delay due to 

problems associated with unavailability of labor, project funding, or extreme weather, it would 

not be possible at first to know with any degree of certainty how long a related work stoppage 

will last. After some period of time, however, the permittee should know with a reasonable 

degree of certainty whether work will continue on the site within 14 days or more, triggering the 

need to immediately initiate stabilization measures on affected portions of the site. Therefore, 

when the permittees knows with reasonable certainty that construction work will be 

discontinued for 14 or more days, it is at that time that stabilization work must begin. EPA has 

included a clarifying note in the permit to this effect, and hopes that this addresses some of the 

commenters’ concerns. 

Having said this, EPA believes that most issues related to scheduling are within the control of the 

construction operator, and that it should only be those circumstances that are truly 

unanticipated where the operator cannot reasonably know how long a work delay will last. In 

EPA’s opinion, proper scheduling of work sequences throughout the site should include well 

planned out timeframes for active construction and for short-term, long-term, or permanent 

periods of no work, which should correspond, as appropriate, with the initiation of site 

stabilization measures. Therefore, for the vast majority of projects, scheduling the cessation of 

work and initiation of stabilization are issues that should be well within the control of the operator. 

On a related note, EPA believes that on or after the day upon which stabilization is required to 

have been initiated, there could very well be sudden and unanticipated problems that make 

initiation or completion of stabilization within the 14-day deadline impracticable. Such problems 

could be very similar to those discussed above, which cause uncertainty with respect to 

temporary cessation of work on the site. For example, were a site to experience delays in 

completing stabilization due to unanticipated heavy rains, frozen ground, or a shortage of 

stabilization product, which are beyond the control of the permittee, EPA agrees that it would 

be impracticable in some cases to comply with deadlines to initiate and complete stabilization. 

For this reason, EPA has modified the permit to include flexibility for this type of situation. Part 

2.2.1.3.b enables the permittee to complete activities related to planting and initial 

establishment of vegetation “as soon as conditions or circumstances allow it on your site” as 

long as stabilization using non-vegetative measures is initiated immediately and installed within 

14 days of the temporary or permanent cessation of construction activities. The permittee is also 

required as a condition of using this provision to document the reasons for the delay in initiating 
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and completing these activities and the schedule that will be followed. EPA believes that this 

language helps to address the concerns raised by these commenters. 

Response 2.28.3 Specific stabilization practices and timeframes vary widely around the country 

depending on geography, climate, and terrain. EPA needs to revise its stabilization deadlines to

reflect this variation, and to provide relief to operators whose particular site conditions make 

stabilization within a narrowly prescribed period impracticable. EPA believes that the final 

permit properly accounts for the range of differing site conditions under which construction 

permittees will be required to complete stabilization. In addition to the alternative deadlines for 

sites in arid and semi-arid areas, EPA has also included additional flexibility to recognize “projects

that are affected by circumstances beyond the control of the permittee that delay the initiation 

and/or completion of vegetative stabilization.” See Part 2.2.1.3.b. The final permit also has 

removed the proposed permit’s more stringent timeframes for completing stabilization for 

disturbances to steep slopes, disturbances within 50 feet of surface waters, and constructed 

stormwater conveyance channels. EPA believes that these changes go a long way towards 

addressing the commenters’ concerns. 

Response 2.28.4 Incompatibility of deadlines to initiate stabilization immediately for areas of the 

site where work may be temporarily stopped, but will resume within a short period of time. 

According to one commenter, such a requirement could result in a redisturbance of a recently 

stabilized site, and would be unnecessary in instances where additional BMPs and surface 

roughening could prove just as effective. In response, EPA clarifies that the permit does not 

require the exclusive use of vegetative stabilization for situations involving temporary 

construction stoppages. The permittee may choose which type of stabilization to use in such 

circumstances. For instance, if surface roughening and the application of straw mulch is 

preferred by the permittee, such an approach would comply with the permit’s requirements as 

long as it was installed by the applicable deadline in Part 2.2.1.2 and met the requirements for 

non-vegetative stabilization in Part 2.2.2.2. This flexibility would enable the permittee to 

temporarily stabilize the site in a manner that is more cost-effective and reasonable than to 

revegetate a disturbed area only to redisturb it a short time later. 

Regarding the commenters’ more general recommendation that the timeframes for initiation of 

stabilization should be replaced by an “as soon as practicable” deadline similar to the deadline 

for arid and semi-arid areas, EPA disagrees. The C&D rule (40 CFR 450.21(b)) is explicit in its 

requirement that stabilization be initiated “immediately” on any portion of the site where work 

has been permanently ceased, or where work has temporarily ceased and will not resume for a 

period of 14 or more days. The rule also specifically allows for alternative measures and 

deadlines for arid and semi-arid areas, but does not include other areas for such treatment. 

Therefore, the C&D rule restricts the Agency’s ability to adopt the approach recommended by 

the commenters. EPA also believes that, apart from the explicit language of the C&D rule, an 

open-ended deadline for initiating stabilization, such as the recommended “as soon as 

practicable” deadline, would leave the permittee with no clear direction on when to begin 

stabilization. While EPA has attempted to include additional flexibility for completing stabilization

due to unforeseen circumstances, which will hopefully address some of the commenters’ major 

concerns, the Agency does not find it appropriate or consistent with the C&D rule to adopt the 

recommended “as soon as practicable” standard. For the same reasons, EPA also does not 

agree that it is necessary or consistent with its regulation to adopt one of the commenter’s 

suggestions to incorporate alternative deadlines for linear projects or projects of a certain size. 

Response 2.29 When Work On A Site Has Temporarily Or Permanently Ceased 

Several commenters elaborated on the difficulties associated with basing a requirement to 

initiate stabilization on when “final grade has been reached.” See proposed Part 2.2.1.1.b. 
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These commenters explained that it is technically impossible to define when final grade has 

been reached. Other difficulties were noted concerning the work that it would take by the 

construction operator to verify that final grade had been reached. Another commenter raised 

concerns about whether the use of “final grade” as one of the clues for when construction work 

has ceased would require that graded, unpaved access roads, driveways, backyards, 

sideyards, etc. be stabilized during construction. 

EPA appreciates these comments, and agrees that establishing a firm point in time when final 

grade has been reached may be practically difficult. EPA acknowledges that it may have 

underestimated the challenges that using such language would present in the field. EPA has 

removed this language in the final permit, and instead more generally defines the cessation of 

work based on when construction activities in an area of the site have been completed or have 

been temporarily stopped and will resume in the future. EPA hopes that these modifications will 

address the commenter’s concerns. 

Regarding the commenter’s concern about requiring access areas to be stabilized once they 

have reached final grade, EPA clarifies that it was not the Agency’s intent to require that such 

areas be stabilized while they are actively being used during construction. EPA believes that by 

removing the “final grade” language the concerns of the commenter may have in part been 

addressed. To the extent that the commenter’s concern extends to the application of the 

stabilization requirements generally, EPA clarifies that these access areas only need to be 

stabilized once they will not be used for a period of 14 or more days. For instance, if a graded, 

unpaved road is established for the purposes of accessing a construction site, this road may be 

left in its unstabilized condition (subject to the requirements in Part 2.1 of the permit regarding 

applicable sediment and erosion controls) until the road will not be used for a period of 14 or 

more days, which should coincide with the end of the project. On the other hand, if a yard area 

of a residential project has been graded, and will not be used for a period of 14 or more days for 

access or equipment or vehicle storage, the requirement to initiate stabilization applies. EPA 

hopes that these clarifications address the concerns of the commenter. 

Response 2.30 Support for Proposed Stabilization Completion Deadlines 

A few comments expressed support for the proposed stabilization deadlines. One commenter 

noted that frequent inspections would be needed to ensure compliance, but acknowledged 

the difficulty that the Agency would have in accommodating increased inspections due to 

limited resources. EPA appreciates these comments. The Agency notes that the final permit has 

been modified to increase the deadline for completing stabilization from 7 to 14 days after the 

temporary or permanent cessation of construction activities. See Part 2.2.1.2. EPA also removed 

some of the more stringent stabilization deadlines for disturbances to steep slopes, disturbances 

within 50 feet of surface waters, and for stabilizing stormwater conveyance channels, but kept a 

tighter deadline for sites discharging to impaired waters, but changed it from a 3-day to a 7-day 

deadline, in response to comments. Some of the other modifications will be discussed in greater 

detail in this section below. 

EPA also appreciates the comment suggesting that a greater number of inspections will be 

needed to ensure compliance with the stabilization requirements. While EPA agrees that 

conducting a greater number of inspections would be beneficial to compliance, as recognized 

by the commenter, it is difficult to predict what type of increase can be accommodated given 

limited resources. EPA notes that the final permit requires that permittees assess areas being 

stabilized during any required inspection (Part 4.1.5.6), and record findings in the inspection 

report (Part 4.1.7). 
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Response 2.31 Clarification of Intended Stabilization Completion Timeframes

One commenter asked for clarification as to what the applicable deadline is for completing 

stabilization. The commenter was uncertain about whether the deadline was meant to be 7 

days, 10 days, or 14 days. EPA agrees that the proposed permit was not as clear as it could 

have been with respect to the deadlines for stabilization. EPA believes that the final permit is 

clearer on the timeframes that apply to stabilization. Part 2.2.1.2 requires the permittee to 

complete, within 14 days of stopping work in an area of the site, certain activities depending on 

whether the measures used are vegetative (i.e., “activities necessary to initially seed or plant the 

area to be stabilized”) or non-vegetative (i.e., “the installation of all such non-vegetative 

measures”). There are some exceptions to the 14-day timeframe, which are provided in Part 

2.2.1.3. However, for the basic 14-day timeframe in Part 2.2.1.2, the following timeline should 

help clarify the requirement further: 

Day 1 Day 14

Period of active 

construction

Another commenter asked EPA to clarify what type of day is intended for the stabilization 

deadline, calendar days or working days. In response, EPA clarifies that the timeframes 

associated with completing stabilization are intended as “calendar days.” EPA has made this 

language explicit in Part 2.2.1.2 by requiring the completion of certain stabilization activities by 

no later than 14 “calendar days” after the temporary or permanent cessation of construction 

activities. 

Response 2.32 Clarification of Area to be Stabilized 

One commenter asked how big of an area was intended by the proposed permit’s requirement 

to complete certain stabilization activities on “exposed portions” of the site. For example, the 

commenter asked whether EPA intended the exposed portion to be of a certain minimum size 

as measured by percentage (e.g., 10 percent) or square footage (e.g., 10 square feet). The 

commenter raises a good question. In response, EPA points out that it intends to target any and 

all areas of the site that are left exposed when work has stopped, no matter the size. Having 

said this, EPA believes that it is not necessary for construction operators to plan their stabilization 

activities at the minute scale suggested by the “ten square feet” example in the comment. In 

fact, EPA would advise operators to examine their construction sites prior to earth disturbance at 

the largest scale possible in order to develop an understanding of when work on large, 

connected areas of the site will stop, and accordingly when stabilization measures will need to 
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be undertaken in those areas. By assigning the stabilization schedule to these large areas, it is 

EPA’s expectation that the stabilization requirements will be taken care of on not only these 

larger areas, but also on the smaller areas of the site as well. It is EPA’s hope that by taking this

approach operators will be able to implement stabilization activities in a sequence that makes 

sense to them and that complies with the requirement to stabilize all exposed portions of the site 

on which work has stopped. 

Response 2.33 Problems Associated with Proposed 7-day Deadline to Complete Stabilization

A large number of commenters raised concerns with the proposed 7-day deadline to complete 

certain stabilization activities. The following is a summary of those comments and EPA’s 

corresponding response. 

Response 2.33.1 A 7-day deadline to complete stabilization on large sites, particularly large linear 

transportation projects, is impracticable. Commenters emphasized the complexities associated 

with scheduling stabilization activities, which by standard practice are planned out in one-week 

increments, and the conflicts that may arise with the 7-day deadline. One commenter 

explained the problem as follows: “The industry standard for construction scheduling, 

particularly on large projects, is to schedule out work in one-week increments. This means 

schedules are updated on a weekly basis. The seven- and three-day standards would routinely 

place an operator in violation of the CGP if he completes work ahead of schedule because the 

stabilization deadline may elapse prior to the next schedule update or because the contractor 

may not have enough response time to fulfill the permit requirements.” Other commenters 

raised issues with the remoteness of some of the areas being stabilized on large projects, and the 

problems associated with the limits of availability of contractors and supplies. Still other 

commenters noted the incompatibility of the 7-day window of time to complete stabilization 

work with the standard practice in large construction projects to group stabilization work 

according to large areas of the project. According to these commenters, the “economy of 

scale” in the construction industry makes it more efficient to mobilize stabilization activities in 

larger areas than to work on smaller areas. The effect of the 7-day deadline would require a 

more inefficient shift towards working on a greater number of smaller areas of the project. 

EPA is sensitive to the particular challenges that are faced by large projects in complying with 

the requirement to stabilize in accordance with a strict deadline. In view of these comments, 

and other considerations, EPA has changed the deadline from 7 to 14 days following the 

cessation of construction work on any exposed portion of the site. EPA believes that this 

change will rectify many of the problems associated with the proposed stabilization deadline for 

large projects, and will be more in line with the timeframes associated with current industry 

practice. 

Response 2.33.2 The 7-day Deadline Would Require Personnel to Work on Weekends. The 7-day 

deadline would result in forcing construction staff to work on the weekends to comply with the 

requirement, if for instance day 6 and 7 of the 7-day timeframe fall on a Saturday and Sunday. 

EPA has modified the permit such that the deadline for completing stabilization is 14 days, 

instead of 7 days, following the cessation of construction work on any exposed portion of the 

site. EPA believes that this change will make it unlikely that stabilization work will be necessary on 

non-work days. 

Response 2.33.3 Unanticipated problems could cause permit violations that are not within the 

control of the permittee. 

• Weather problems, such as extremely wet or frozen ground, could delay the completion 

of stabilization. Several commenters observed that complying with a 7-day deadline 
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would be impracticable in these situations, and especially in muddy conditions, could 

result in a greater amount of damage to the site. EPA finds it plausible that weather 

conditions could cause a delay in the completion of stabilization activities. It is for this 

reason that EPA has modified the permit to provide permittees with the ability, when 

faced with such unanticipated weather delays, to complete initial vegetative 

stabilization steps “as soon as conditions or circumstances allow it on [the] site.” This 

flexibility is provided on the condition that the permittee within 14 days completes the 

installation of temporary, non-vegetative controls to prevent erosion. EPA believes that 

this flexibility should help address the commenter’s concerns. 

• Unforeseen shortages in the supply of stabilization materials could delay completion 

within 7-day timeframe. One commenter provided the example of sod being ordered 

and scheduled within the required timeline for the permit, but that sudden shortage of 

material could delay installation beyond the deadline. The commenter observed that 

problems such as these should not be the fault of the permittee, and should not be 

made into permit violations. In response, EPA agrees that circumstances such as the one 

provided by the commenter could cause a permittee, who would have otherwise been 

in compliance with the stabilization deadline, to violate the 7-day deadline, or any 

specific deadline, for that matter. Having said this, however, EPA has an interest from a 

water quality standpoint in ensuring that during whatever period of delay that results 

stabilization controls are installed to protect the exposed area from erosion. In 

consideration of these types of problems, EPA has provided in Part 2.1.2.3.b the ability for 

permittees, faced with unanticipated circumstances beyond their control that delay the 

completion of stabilization, to complete initial vegetative stabilization steps “as soon as 

conditions or circumstances allow it on [the] site.” This flexibility is provided on the 

condition that the permittee within 14 days completes the installation of temporary, nonvegetative controls to prevent erosion. EPA believes that this flexibility should help 

address the commenter’s concerns. 

• Unforeseen shortages in labor could delay completion within 7-day timeframe. One 

commenter provided the example of a union strike causing a sudden unavailability of 

workers to complete installation of stabilization measures. EPA believes that the example 

of the labor strike would occur only rarely for the projects eligible for coverage under this 

permit, but that such an occurrence is plausible. EPA agrees that during such a 

circumstance, it would not be reasonable to hold the permittee responsible for the 

failure to complete stabilization activities during that time. Having said this, however, EPA 

has an interest from a water quality standpoint in ensuring that during whatever period of 

delay that results from the labor shortage stabilization controls are installed to protect the 

exposed area from erosion. In consideration of these types of problems, EPA has 

provided in Part 2.1.2.3.b the ability of permittees, faced with unanticipated 

circumstances beyond their control that delay the completion of stabilization, to 

complete initial vegetative stabilization steps “as soon as conditions or circumstances 

allow it on [the] site.” This flexibility is provided on the condition that the permittee within 

14 days completes the installation of temporary, non-vegetative controls to prevent 

erosion. EPA believes that this flexibility should help address the commenter’s concerns. 

Response 2.33.4 The 7-day deadline conflicts with existing stabilization timeframes. 

• The 7-day deadline is inadequate for projects that are accustomed to working around 

specific windows of time for seeding. One commenter indicated that when construction 

falls outside of any windows of time that are established for seeding, it is typical for 

operators to be able to wait until conditions are suitable for planting. For instance, for 
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the geographic area described by the commenter, spring planting is conducted 

between the times when the ground is free of frost until June 15, while fall planting occurs 

between September 1 until frost appears on the ground. 

EPA is uncertain whether changing the stabilization deadline from 7 to 14 days addresses 

the commenter’s specific concern. To the extent that this concern is not addressed by 

the modification, EPA clarifies that the permit deadlines do not preclude the construction 

operator from conducting seeding in accordance with these pre-existing schedules. For 

example, if the permittee completed construction in an area outside of the time 

windows specified above, and the project occurs within an arid or semi-arid area, 

seeding could be delayed during those months in conformance with local practice as 

long as non-vegetative stabilization measures are installed no later than 14 days after the 

cessation of work in the area. EPA hopes that this flexibility will address the commenter’s 

concern. 

• The 7-day timeframe conflicts with existing state or local requirements that range 

between 7 days and more than 1 year. This commenter recommended that EPA 

provide flexibility in the permit to ensure consistency with these requirements. In 

response, EPA believes that modifications made to the proposed 7-day deadline and to 

other stabilization requirements most likely go a long way towards addressing the 

commenter’s concerns. First, EPA has modified the permit to extend the deadline for 

completing stabilization to 14 days, instead of 7 days, following the cessation of 

construction work. Second, EPA provides exceptions to the 14-day deadline for specific 

circumstances, such as for construction activities occurring in arid or semi-arid areas (Part 

2.1.2.3.a), and for projects that are subject to unforeseen circumstances beyond the 

control of the permittee (Part 2.1.2.3.b). EPA believes that these exceptions account for 

some of the variation seen in stabilization deadlines among states and localities. 

Response 2.33.5 The 7-day deadline is problematic for sites in arid or semi-arid areas. 

Commenters observed that without rain occurring during the 7-day timeframe, it does not make 

sense to vegetatively stabilize the site, and that it may take weeks to months to establish 

vegetation on a site depending on project size, complexity, and the amount of precipitation. 

EPA is sensitive to the unique challenges faced by construction operators in stabilizing sites in arid

or semi-arid areas. It is for this reason that EPA has adopted different requirements for the 

completion of stabilization in these areas that reflect the concerns raised by the commenters. 

See Part 2.1.2.3.a. Instead of being required to complete soil conditioning, seeding, watering, 

etc. within 14 days, the operator is required to complete these activities “as soon as practicable, 

given conditions or circumstances on your site.” EPA is hopeful that this provision addresses the 

concerns raised by the commenter. 

Response 2.33.6 The 7-day deadline places small business subcontractors at a disadvantage. 

According to the one commenter, stabilization work tends to be contracted to small businesses, 

who will find it difficult to have enough time in 7 days to mobilize and complete stabilization. In 

turn, this will force operators to “eliminate the use of these subcontractors in favor of selfperforming this work which would place a disproportionally negatively impact on small and 

disadvantaged business.” After reflecting on this and other comments, EPA has decided to 

extend the deadline from 7 to 14 days for completing certain stabilization activities. It is EPA’s 

expectation that this change will help to minimize impacts on small business subcontractors, 

while still providing the permittee with specific and enforceable deadline for completing initial 

stabilization activities. 

Response 2.34 Recommendations for alternative deadlines and exceptions to the deadlines
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A number of commenters offered recommendations on alternative deadlines that could be 

adopted to replace the proposed 7-day deadline to complete stabilization activities. The 

following is a summary of those recommendations and EPA’s corresponding response. 

Response 2.34.1 Replace the 7-day deadline with a specific, but longer period of time, such as 

14 days or 20 working days (e.g., 28 calendar days). EPA agrees with those commenters who 

suggested that 14 days is a reasonable amount of time in which to complete stabilization. In 

light of the comments received regarding the problems caused by the 7-day deadline, EPA has 

decided to extend the deadline from 7 to 14 days for completing certain stabilization activities. 

EPA believes that, with certain notable exceptions (see Parts 2.2.1.3.a and b), a timetable of 14 

days is a reasonable period of time during which to complete certain stabilization activities. 

 

Response 2.34.2 Require completion of stabilization “as soon as practicable,” or adopt a specific 

deadline and include exceptions to that deadline, requiring completion as soon as practicable 

following the deadline. A number of commenters who raised concerns about the ability of 

operators to reasonably comply with a 7-day deadline when faced with problems such as 

inclement weather, or saturated or frozen soil conditions, also recommended that the proposed 

deadline be replaced with an “as soon as practicable” deadline to accommodate such 

problems. Many of these same commenters also suggested that the permittee could be 

required to document the need for an extension, and some suggested requiring progress reports 

or a schedule to complete stabilization as soon as practicable. 

EPA disagrees with the recommendation that the permit should adopt a deadline that requires 

all permittees to complete stabilization work “as soon as practicable.” This deadline is too 

vague to be implemented in a permit for all sites. Having said this, however, EPA does believe 

that there are some circumstances beyond the control of the permittee where compliance with 

a specific deadline, such as the 14-day deadline included in the final permit, will be prevented. 

To address this issue, EPA has modified the permit to allow for flexibility if sites are affected by 

circumstances beyond the control of the permittee that delay the completion of stabilization 

activities within the 14-day deadline. See Part 2.2.1.3.b. Similar to the flexibility recommended 

by the commenters, Part 2.2.1.3.b enables permittees facing such uncontrollable circumstances 

to complete activities such as soil conditioning, seeding, watering, mulching, etc. “as soon as 

conditions or circumstances allow it on [the] site.” In order to ensure that some stabilization is 

provided during this period of time, this provision also requires that the permittee complete 

within 14 days the installation of temporary non-vegetative measures to prevent erosion, and 

that the circumstances causing the delay and the schedule to be followed to complete 

stabilization are documented. EPA hopes that the inclusion of this provision in the permit satisfies 

the interests of the commenters in recommending additional flexibility for uncontrollable 

circumstances. 

Response 2.34.3 Allow for flexibility or additional time for drought-stricken areas. One 

commenter suggested that it would reasonable to include recognition in the permit for the 

challenges faced in areas that are experiencing drought conditions. EPA agrees, and notes 

that 40 CFR 450.21(b) of the C&D rule recognizes the need for alternative stabilization 

approaches in drought-stricken areas. EPA has modified the final permit to provide the same 

flexibility for drought-stricken areas that are available to sites in arid or semi-arid areas. See Part 

2.2.1.3.a. 

Response 2.35 Practicality Of Complying With Stricter Deadlines For Completing Stabilization In 

Sensitive Areas. 

EPA received numerous comments concerning the requirement to adhere to a 3-day deadline 

to complete stabilization activities where earth-disturbing activities occur in sensitive areas (i.e.,
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sites discharging to sediment- or nutrient-impaired waters, sites discharging to Tier 2, 2.5, or 3 

waters, steep slopes, buffer areas, and stormwater conveyance channels). These comments 

provided a number of reasons why a 3-day deadline would be unattainable. The following is a 

summary of the arguments made by commenters together with EPA’s response. 

Response 2.35.1 Impracticable to comply with and enforce different stabilization deadlines. 

Several commenters raised concerns about the difficulty of complying with and enforcing 

deadlines for stabilization that vary based on location or presence of sensitive areas. EPA 

appreciates these comments, and has attempted to address these concerns in the final permit 

by reducing the number of different stabilization deadlines. For example, the permit no longer 

requires a different stabilization deadline for disturbances within 50 feet of a surface water, 

disturbances to steep slopes, and constructed stormwater conveyance channels. EPA is 

hopeful that these changes will address the commenter’s concerns. 

Response 2.35.2 Alternative deadlines are not supported by the C&D rule. A few commenters 

challenged the proposed sensitive area requirements on the basis that they are more stringent 

than what EPA found to be economically achievable in the C&D rule. More specifically, the 

commenters mentioned the fact that EPA had adopted a 14-day timeframe to be used to 

initiate stabilization where work in any area has temporarily stopped. These commenters 

supported a timeframe that is consistent with the deadlines in 40 CFR 450.21(b). In response, EPA 

believes that the modification to remove the more stringent stabilization deadlines for 

disturbances to steep slopes and buffer areas, and for stabilization of constructed stormwater 

conveyance channels, should partially address the commenters’ concerns. 

EPA would like to clarify what the Agency regards as the commenters’ misunderstanding of the 

scope of the C&D rule requirement as it applies. The commenters pointed to the fact that EPA, 

in adopting a 14-day cessation time period within which stabilization must be initiated, had 

concluded that any more stringent requirement affecting completion of stabilization was not 

economically achievable. EPA disagrees with this characterization. The C&D rule does indeed 

adopt a 14-day timeframe for triggering the start of stabilization in any area where work has 

stopped for that period of time. However, the rule specifically identifies the deadline for 

completing stabilization as something that should be defined by the permitting authority, stating 

that “stabilization must be completed within a period of time determined by the permitting 

authority.” Therefore, EPA intended the deadline for completing stabilization work to be an issue 

that would be determined on a permit-by-permit basis in accordance with what the applicable 

permitting authority believes to be appropriate. Where a permitting authority establishes 

deadlines within the 14-day period, this would be entirely consistent with its authority in 

implementing 40 CFR 450.21(b). 

Additionally, EPA notes that the stricter stabilization completion deadline for sites discharging to 

sediment- or nutrient-impaired waters or to Tier 2, 2.5, or 3 waters has been retained, but that it 

has been increased from 3 to 7 days. To the extent that these commenters believe this deadline 

to be inconsistent with the C&D rule, EPA disagrees that this is the case. The requirements in the 

C&D rule are technology-based and, by definition, do not restrict limitations that are water 

quality-based. EPA believes the stricter stabilization completion deadlines to be reasonably 

necessary to ensure that sites are not causing or contributing to an exceedance of WQS in 

waters already impaired for sediment and nutrients. These requirements are imposed under the 

authority of CWA section 301(b)(1)(C) and 40 CFR 122.44(d). 

Response 2.35.3 Stricter deadlines do not account for unanticipated weather-related conditions, 

scheduling problems, and financial default. EPA agrees that there may be some circumstances 

that are beyond the control of the site operator that could make compliance with a specific 
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stabilization deadline impracticable. As EPA has mentioned elsewhere in its response to 

comments, EPA has made allowances in the final permit for such unanticipated circumstances, 

and this flexibility would extend to the stabilization deadlines for sites discharging to sensitive 

areas (i.e., sites discharging to sediment or nutrient-impaired waters, or Tier 2, 2.5, or 3 waters). In 

part 2.2.1.3.b, for sites that plan to vegetatively stabilize exposed areas, but unanticipated 

circumstances occur that prevent compliance with the stabilization deadlines, the permittee 

may comply with alternative deadlines and requirements, including the requirement to 

immediately initiate and within 14 days complete the installation of non-vegetative controls for 

the exposed area, and to complete initial planting or seeding activities as soon as conditions or 

circumstances permit them on the site. EPA believes that this added flexibility addresses the 

commenters’ concerns. 

Response 2.35.4 Stricter deadlines for sites discharging to impaired waters are not technically 

justified. One commenter found an insufficient nexus between the accelerated stabilization of 

exposed soil for sites discharging to impaired waters and the presence of excess nitrogen or 

phosphorus in the adjacent waterbody. The commenter noted that accelerated stabilization 

often requires the use of nutrient fertilizers that will themselves increase the discharge of 

phosphorus. EPA disagrees with the commenter. It is EPA’s established view, as stated in the 

C&D rule, that stabilization of exposed soil areas is the most important and effective means of 

reducing erosion and discharge of sediment from construction sites. It is also EPA’s position that 

in watersheds that are already degraded due to sediment or nutrients, the importance of rapidly 

stabilizing exposed soil surfaces is of even greater importance. By limiting the amount of time to 

7 days that areas can be left exposed without completing certain stabilization activities, EPA 

expects that the amount of sediment that will be mobilized through erosion will be reduced, 

resulting in a further reduction of sediment-bound phosphorus. With respect to nitrogen 

discharges, EPA believes that the 7-day deadline will not result in increases as the commenter 

claims. EPA anticipates that, even where operators are using fertilizer to enhance growth of 

seeded areas, nitrogen discharges will not be increased through stabilization activities. It is 

common stabilization practice to implement steps to temporarily stabilize the soil that will 

ultimately vegetated such as through the roughening of the soil and the application of cover 

(e.g., hydraulic, straw, or wood mulches). Furthermore, EPA notes that Part 2.3.5 requires 

permittees to minimize the discharge of fertilizer through compliance with mandatory control 

practices. EPA expects that the combination of these commonly utilized methods for reducing 

soil erosion after seeding, combined with the accelerated schedule to stabilize exposed areas, 

as well as restrictions on the discharge of fertilizers, will not increase nitrogen discharges, but 

rather will result in an overall reduction in pollutant discharges. 

Response 2.35.5 Stricter deadlines are inappropriate for stream restoration work. One 

commenter observed that the faster stabilization schedule for sensitive areas will have the effect 

of forcing time constraints on stream restoration projects that require longer periods of time to 

achieve long-term ecological diversity and sustainability. Furthermore, the commenter stated 

that “rushing to meet time constraints has the potential to interfere with restoration goals. For 

example, during salt marsh restoration it may be necessary to track tidal inundation over a full 

month's neap to spring cycle to determine if the micro- topography of the marsh surface is 

correct. Unintentional depressions or mounds could result in invasive species intrusion onto the 

site. Small elevation changes in a New England marsh surface can allow Phragmites australis to 

establish quickly, which out-competes native salt marsh grasses.” Based on these concerns, the 

commenter requested an exemption from the stricter stabilization requirements for restoration 

projects. 

EPA assumes that when the commenter referred to the fact that most of the work related to 

stream restoration taking place within sensitive areas as meaning that this work tends to occur in 
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buffer and steep slope areas. EPA believes that much of the commenter’s concerns have been 

addressed by the removal of the stricter stabilization deadlines for disturbances to steep slopes 

and buffer areas. EPA does not agree that an exemption for stream restoration work from the 

stricter stabilization schedule for sites discharging to certain impaired waters or to Tier 2, 2.5, or 3 

waters is appropriate. See also EPA’s response concerning the relationship between the scope 

of coverage under this permit as it relates to stream restoration projects as compared to the 

Section 404 wetlands program. Refer to Essay Response 2.26.4. 

Response 2.35.6 Stricter stabilization deadlines are impracticable for linear utility projects. One 

commenter observed that work along utility projects will proceed in phases and may result in 

portions of the project not being active for periods that are longer than the 7-day period. The 

commenter explained that these temporarily inactive areas are continually monitored and 

maintained, and temporary stabilization measures are typically employed, such as straw mulch 

and the installation of check dams and diversion swales. The commenter found the requirement 

to complete stabilization within 3 days would be infeasible for these types of projects due to the 

manner in which work is completed along the length of the project. In response, EPA believes 

that the majority of the commenter’s concerns are addressed by the removal of the stricter 

stabilization schedule for disturbances to buffer areas and steep slopes, and the increase in the 

deadline for other sensitive areas from 3 to 7 days. EPA also observes that the use of temporary 

cover such as straw mulches would suffice as stabilization for the purposes of the permit, as long 

as it was installed appropriately and within the 7-day deadline that applies. 

Response 2.36 Recommended Alternative Deadlines. 

Several commenters offered recommendations on the type of deadline that they felt would 

work better than EPA’s proposed 3-day deadline for sensitive areas. These recommendations 

were typified by deadlines that required stabilization to be completed “as soon as practicable” 

or “as soon as practicable, but no later than” 30 days or another specific deadline. These 

commenters supported flexibility in the implementation of these deadlines by allowing operators 

to document actual stabilization schedules and departures from the schedule due to 

unanticipated problems. One commenter, however, recommended against using an “as soon 

as practicable” deadline given that it is subject to regulatory interpretation in terms of what is 

required. 

EPA agrees with this last commenter that an open-ended deadline for completing stabilization in 

sensitive areas, such as the recommended “as soon as practicable” deadline, would leave the 

permittee without clear direction on when to begin stabilization. While EPA has attempted to 

include additional flexibility for completing stabilization due to unforeseen circumstances, which 

will hopefully address some of the commenters’ major concerns, the Agency does not find it 

appropriate to adopt the recommended “as soon as practicable” standard. 

Response 2.37 Requested Clarification Of Areas Required To Be Stabilized. 

Two commenters asked for clarification regarding whether the special stabilization deadlines 

apply only to the sensitive areas identified or to all other disturbed areas of the site outside of the 

sensitive areas. EPA appreciates the question. In response, EPA clarifies that the stricter 

stabilization timeframes in the final permit for sites discharging to sensitive waters (i.e., sediment

or nutrient-impaired waters or Tier 2, 2.5, or 3 waters) apply only to that portion of the site that 

discharges to such waters. Therefore, if there is a portion of the site that does not discharge to a 

sensitive water, the stabilization deadlines are different (i.e., 14 days) than the deadlines that 

apply to portions of the site that do discharge to such waters. 

Response 2.38 General comments on Stabilization Deadlines for Arid and Semi-Arid Areas.
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Several commenters observed that the deadline requirements for arid and semi-arid areas were 

either confusing or that they did not go far enough to recognize the complexities of operating in 

these areas. One of these commenters noted that the deadlines require initiation, but do not 

appear to have a deadline for completion of stabilization. Another one of these commenters 

found contradictions between the deadlines in this Part of the proposed permit and other 

sections (Parts 5.1.3.1 and 4.2.2.3). EPA attempted to finalize language in Part 2.2.1.3 that is 

clearer and internally consistent with other sections of the permit. EPA believes these changes 

have addressed the commenters’ concerns. With respect to the comment regarding the lack 

of an apparent deadline for completing stabilization, EPA notes that Parts 2.2.2.1.a.i and ii 

provide deadlines for providing immediate non-vegetative stabilization and, within 3 years of 

planting, vegetative establishment of 70 percent or more of the density of vegetation that 

existing prior to construction. 

Response 2.39 Request For Comments On Whether To Combine The Proposed “As Soon As 

Practicable” Deadline With A Specific Fallback Deadline

Response 2.39.1 Comments supportive of concept. EPA received several comments that were 

supportive of the concept of combining the proposed stabilization deadline for projects taking 

place in arid or semi-arid climates with a specific fallback deadline by which stabilization must 

have been initiated. These comments emphasized the fact that the “as soon as practicable” 

deadline in the proposed permit is vague and “may create situations in which the soil 

stabilization is unnecessarily delayed while the meaning of the phrase is debated.” A number of 

these comments also supported the use of a specific fallback deadline to provide a specific 

timeline reference for permittees and to make the requirement more enforceable. One 

commenter suggested adopting the approach in Arizona’s CGP, which requires that if by the 

14th day after construction activity has temporarily or permanently ceased stabilization is 

precluded by seasonal arid conditions, stabilization measures must be initiated as soon as 

practicable. Two commenters suggested deleting the “as soon as practicable” language 

altogether, arguing for the application of the same stabilization deadlines as for all other 

projects. 

EPA appreciates the feedback provided by these commenters, and found them instructive in 

finalizing the stabilization requirements for arid and semi-arid areas. EPA agrees with those 

comments suggesting that a specific timeframe is needed. EPA believes that the final permit 

provides an appropriate balance between flexibility to recognize the constraints of establishing 

vegetation in arid or semi-arid areas and the need for specific deadlines. For instance, Part 

2.2.1.3.a.i requires that if construction is occurring during the seasonally dry period of the arid or

semi-arid area that the permittee must “immediately initiate, and within 14 days [following the 

temporary or permanent cessation of construction activities in any area of the site] complete, 

the installation of temporary non-vegetative stabilization measures to the extent necessary to 

prevent erosion.” At the same time, the permit recognizes that flexibility is needed to initiate 

vegetative stabilization by providing that, in Part 2.2.1.3.a.ii, permittees who intend to 

vegetatively stabilize exposed portions of their site “as soon as practicable, given conditions or 

circumstances on your site, complete all activities necessary to initially seed or plant the area to 

be stabilized” on the site. 

In response to the commenter’s suggestion that EPA eliminate the additional flexibility for 

construction in arid and semi-arid areas, the Agency disagrees, but believes that its final permit 

language strikes the appropriate balance between such flexibility and specifically enforceable 

deadlines. EPA agrees with the commenter’s observations about the need for good erosion 

controls on sites in arid and semi-arid areas. For this reason, EPA has adopted a requirement for 

all sites to install temporary non-vegetative controls within 14 days of the cessation of 
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construction activities. EPA notes that the flexibility provided in the permit for completing initial

planting activities “as soon as practicable, given conditions or circumstances” on the site was 

anticipated in the C&D rule in 40 CFR 450.21(b). The provision specifically indicates that “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.” 

Response 2.39.2 Comments opposing the concept. 

Several commenters responded to the request for comment that they were opposed to 

providing a specific fallback deadline for initiating stabilization measures. A few emphasized the 

fact that a specific deadline, such as the 28-day example in the proposed permit, would not be 

appropriate in all situations. One commenter indicated that it might not always be possible to 

seed the entire area within 28 days. These commenters preferred leaving the proposed 

requirement to “initiate stabilization as soon as practicable following the temporary or 

permanent cessation of construction activities” as the sole stabilization deadline. A few 

commenters suggested adopting the following approach from the Nevada CGP: “In arid areas 

(areas with an average annual precipitation of 0 to 10 inches), semiarid areas (areas with an 

average annual precipitation of 10 to 20 inches), and areas experiencing droughts where the 

initiation of stabilization measures by the fourteenth (14th) day after construction activity has 

temporarily or permanently ceased is precluded by seasonal arid conditions, stabilization 

measures shall be initiated as soon as practicable.” 

EPA acknowledges the need for providing flexibility to permittees as to when they are required 

to initiate stabilization activities, particularly vegetative stabilization. EPA has an interest in 

adopting requirements that are effective in preventing erosion and that are reasonable in light 

of the unique climatic conditions that occur in arid and semi-arid areas. For this reason, EPA has 

adopted requirements in the final permit that strike the balance between flexibility and 

specificity. With that in mind, Part 2.2.1.3.a.i requires that if construction is occurring during the 

seasonally dry period of the arid or semi-arid area, the permittee must “immediately initiate, and 

within 14 days [following the temporary or permanent cessation of construction activities in any 

area of the site] complete, the installation of temporary non-vegetative stabilization measures to 

the extent necessary to prevent erosion.” At the same time, the permit recognizes that flexibility 

is needed to initiate vegetative stabilization by providing that, in Part 2.2.1.3.a.ii, permittees who

intend to vegetatively stabilize exposed portions of their site “as soon as practicable, given 

conditions or circumstances, complete all activities necessary to initially seed or plant the area 

to be stabilized” on the site. EPA believes that this approach is reasonable in that it provides 

flexibility around the initiation of vegetative stabilization measures (i.e., “as soon as practicable 

...”) and that it ensures that at least temporary erosion controls are in place within a shorter 

timeframe. 

EPA did not adopt the suggestion of the commenters to rely solely on the “as soon as 

practicable” language. This language alone, while appropriate in that it acknowledges sitespecific constraints, does not provide permittees or EPA with a specific timeframe from which to 

assess whether the site is in compliance. EPA believes that the approach finalized in the permit 

accomplishes both objectives. 

Response 2.40 Request For Comment On Treating Construction Activities In Critical Habitat Areas 

Or Areas Where Listed Endangered Species Exist As Sensitive Areas For Site Stabilization 

Purposes. 

One commenter recommended that instead of automatically imposing stricter stabilization 

deadlines on projects in such areas, the permit should instead require more generally that the 

permittee comply with the Endangered Species Act (ESA). The commenter noted that adding 
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additional, more stringent deadlines would add an unnecessary and potentially burdensome set 

of requirements. In response, EPA notes that it has not adopted more stringent deadlines for 

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

However, where additional requirements are imposed on a permittee as a condition of eligibility, 

these conditions are enforceable under this permit and must be documented in the permittee’s 

SWPPP. 

Response 2.41 General Comments on Arid/Semi-Arid Stabilization Criteria.

Several commenters raised overall concerns with the proposed vegetative stabilization criteria 

for arid and semi-arid areas, and one commenter suggested that EPA retain the 2008 CGP 

language regarding stabilization in these areas. EPA has modified the proposed stabilization 

criteria to more closely follow the 2008 CGP language, most notably in relation to the language 

in Part 2.2.2.1.a.ii, which stipulates the requirements for areal cover and the timing for vegetative 

establishment. EPA believes that these modifications should address many of these concerns. 

Response 2.42 Requirement To Provide 70 Percent Vegetative Cover. 

EPA received a variety of comments on the draft permit’s requirement for permittees with sites in 

arid or semi-arid climates to achieve a 70 percent vegetative cover requirement. Commenters 

appeared supportive of the use of a 70 percent standard because, if nothing else, it provides a 

quantifiable goal that can be used for determining whether sites are in compliance. EPA agrees 

with these comments and notes that it has retained the 70 percent cover requirement in the 

final permit in Part 2.2.2.1.a.ii. 

A few commenters suggested that permittees be required to achieve the 70 percent cover 

requirement before being allowed to terminate permit coverage. These comments expressed 

concern over what one commenter referred to as the “premature release of liability” without a 

further requirement to maintain established vegetation or an assurance that the vegetation is 

independently viable. EPA shares the concerns of the commenter that areas of sites that are 

being vegetatively stabilized actually achieve this standard. EPA also acknowledges the 

commenter’s point that the permit should not prematurely allow an operator to leave a site if 

the exposed portions will never achieve the required vegetative stabilization. However, EPA 

believes that, on balance, enabling permittees to terminate permit coverage despite the fact 

that the site may not have yet reached 70 percent vegetative cover, as long as the site has 

been reasonably prepared and planted to ultimately achieve the required vegetation cover, 

provides sufficient assurance of stabilization. Additionally, EPA notes that Part 2.2.2.1.a.i of the 

permit requires that non-vegetative erosion controls be used to provide immediate cover so that 

continuous erosion control is provided until vegetation is established. EPA’s concern with 

requiring a permittee to remain permitted until complete stabilization in all cases, as the 

commenter recommends, is that it would risk incentivizing site operators to attempt to 

accelerate growth unnaturally at the site, resulting in vegetation that is not viable long-term. This

is especially true in arid and semi-arid areas where practices such as watering can be counterproductive if, after seeds germinate and plants begin to grow, the watering is stopped and the 

vegetation returns to the natural precipitation levels of the area. Therefore, EPA has decided to 

continue to enable permittees to terminate permit coverage as long as the site has been 

reasonably prepared and planted to achieve the 70 percent vegetative cover requirement. 

Response 2.43 Requirement to provide 70 percent vegetative cover within 3 years for arid/semiarid areas. 

Commenters raised several issues with the draft Part 2.2.2.1.a.i requirement to provide “erosion 

control measures ... to achieve 70 percent vegetative cover within 3 years.” Several 

commenters provided feedback on the practicality of achieving vegetative cover within 3 years 
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in an arid or semi-arid climate. While one commenter suggested that 2 growing seasons was 

necessary to establish vegetation in these areas, others suggested that establishing vegetation 

within 3 years can be difficult, and that it is not uncommon for vegetation to take 3 years to 

germinate, and 2 to 3 more years to develop into plants that will achieve a 70 percent cover. 

EPA is sensitive to these concerns. EPA believes that it is necessary to include in the final permit,

as it has in Parts 2.2.2.1.a.i and ii, a clear standard by which permittees and the Agency can 

assess compliance with this permit. At the same time, EPA understands that whatever standard 

is adopted must take into account the challenges of establishing vegetation in these areas. In 

the 3-year standard that EPA has adopted in the final permit, it is EPA’s expectation that 

permittees will exercise care in selecting “an appropriate seed base” so that, in addition to 

taking steps in the installation and maintenance to promote growth through appropriate 

watering and other measures, 70 percent cover is reasonably expected to be achieved within 3 

years. EPA anticipates that there could be extenuating circumstances, such as drought 

conditions, that could result in the vegetative establishment taking more than 3 years to achieve 

the 70 percent cover standard. In these cases, EPA would expect that as long as the actions 

taken by the permittee at the time were reasonably designed to achieve the 70 percent cover 

standard within 3 years, and in consideration of the circumstances that contributed to the 

incomplete vegetative establishment after the third year following the initiation of stabilization, 

the Agency could take these factors into account when assessing compliance. EPA notes that 

it has incorporated interim protections for the exposed area prior to the full establishment of 

vegetation by requiring that non-vegetative erosion controls be implemented in order to 

provide continuous erosion control. 

Several commenters also requested clarification on what type of non-vegetative erosion control 

was necessary to be used in combination with seed to meet the vegetative stabilization 

criterion. These comments were in response to the example provided of using degradable 

rolled erosion control products. Commenters asked whether straw crimping would be 

acceptable under the permit, and one commenter observed that rolled erosion blankets cost 

almost twice as much as crimped, dry mulch. This commenter also indicated that the use of 

rolled erosion control blankets would not accelerate vegetative establishment under desert 

climates since rolled products quickly evaporate or sublimate precipitation in high evapotranspiration conditions. This is in contrast, according to the commenter, to soil-crimped straw 

mulches that infiltrate the type of “flashy” storms that predominate in these climatic conditions 

and that improve soil moisture conditions. EPA does not disagree with these observations. In 

response, the final permit clarifies that approaches, such as straw crimping, provide one 

example of the type of non-vegetative erosion control that can provide immediate cover as 

required by Part 2.2.2.1.a.i. 

Response 2.44 Requirement to water seeded areas until seeds germinate and grow. 

Commenters raised objections to the draft Part 2.2.2.1.c.iii.1 requirement to water seeded areas 

until the seeds germinate and grow, and suggested that this provision be removed in the final 

permit. The following is a summary of the specific concerns raised: 

• Water is not readily available in these areas. Requiring watering of seeded areas will be 

cost-prohibitive and is an inappropriate use of a precious resource. 

• The requirement runs counter to programs in some municipalities in these areas, which 

have been paying homeowners not to grow grass and other non-desert plants because 

they use so much water. 

• Watering seeded areas is actually counter-productive to long-term vegetative 

establishment. After germination, the plants will be forced to return to an arid/semi-arid 

condition, resulting in a reduction in vegetation after permit termination due to dieoff/plant mortality once watering stops. Instead of watering, to establish vegetation in 

these areas, it is better to allow seeds to germinate naturally. Another problem with 
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watering seeded areas in arid/semi-arid areas is that it encourages the rapid 

establishment of noxious weeds. 

EPA found these comments informative, and after reconsideration, EPA agrees that it is better to 

leave it to the best professional judgment of the site operator to determine whether and to what 

extent watering is necessary. Instead of requiring watering until seeds germinate, EPA requires 

more generally that “other appropriate mechanisms to promote growth”, such as irrigation, be 

used to provide continuous erosion control until vegetation is established. Under the modified 

permit language, the permittee is given flexibility to determine how best to promote the growth 

of vegetation sufficient to meet the 70 percent cover standard. 

Response 2.45 Reasonableness of Vegetative Stabilization Criteria

Response 2.45.1 General comments. Commenters observed that this section was overly

prescriptive and does not reflect the variety of approaches that work for achieving the 70 

percent cover requirement. These comments suggested that the specific practices used to 

promote vegetative growth are best left to the particular permittee, and can be documented in 

the site’s SWPPP. EPA agrees with these comments, and believes that it is sufficient to require the 

permittee to use appropriate practices to achieve the required 70 percent vegetative cover 

requirement, leaving to them the decision on which practices are best for their particular site. 

Therefore, in the final permit, EPA has removed many of the specific requirements in proposed 

Parts 2.2.2.1.c.iii and iv. 

Response 2.45.2 Requirement to roughen area prior to application. While supportive of the 

requirement to “roughen the area with furrows” prior to application, one commenter expressed 

concern about the expense and potential dangers of requiring that the furrows trend “along the 

contours of the slope.” The commenter indicated that this practice cannot be achieved 

without jeopardizing the slope and equipment operators. In response to this comment, EPA has 

decided to modify the permit to remove this requirement. EPA supports the practice of soil 

roughening prior to seed application, but believes that it is better to leave the decision of how 

best to prepare the seeding area to the permittee. For this reason, the final permit requires sites 

to achieve a 70 percent cover requirement for vegetative stabilization without specifying how 

this standard will be achieved. 

Response 2.45.3 Requirement to water seeded areas. Related to the discussion on the previous 

page, several commenters expressed concern, mostly in the context of linear transportation 

construction projects, about the proposed requirement to water seeded areas “until the seeds 

germinate and grow.” These concerns are encapsulated in the following comment excerpt: 

“The use of vegetative watering will also increase cost tremendously and also result in the 

frequency of failed seeding operations. Watering on linear projects is very expensive due to 

trucking charges associated with the transportation of the water. Also, watering from water 

trucks can easily cause germination to occur, but without natural rainfall the seedlings will 

die (without continuous watering). It is best to not start supplemental watering until after a 

natural rainfall has occurred. Repeatedly trucking in water to establish vegetation on 18,000 

acres (many of which are in remote areas of the state) is cost prohibitive. Additionally, in 

cases where we have trucked in water, we have gotten public complaints from nearby 

residents that may be under local water restrictions (e.g. can only water their lawns on 

certain days of the week). This issue would be compounded if we were to water the 

roadside adjacent to agricultural property suffering from lack of water.” 
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Another commenter noted that “linear projects that pass through rugged terrain may not have 

a water source available or may be located in areas where water transport equipment cannot 

access, and that vegetation can be established successfully without watering.” EPA found 

these comments to be informative in finalizing the language used for vegetative stabilization. 

After reviewing these comments, EPA concluded that it is better to leave the decision about 

how best to promote vegetative growth in order to achieve the 70 percent vegetative cover 

requirement to the permittee itself. Therefore, EPA has removed the watering requirement from 

the final permit, and in its place specifies that permittees must meet the 70 percent cover 

requirement and that they must take the actions that are necessary to facilitate the 

establishment of this vegetation. See Parts 2.2.1.2.a and 2.2.2.1. How the permittee achieves 

this requirement in terms of watering and other practices designed to promote vegetative 

establishment is up to them. 

Response 2.45.4 Requirement to protect seeded areas with temporary, non-vegetative cover. 

Several commenters expressed concern with the requirement in proposed Part 2.2.2.1.c.iii.2 to 

“immediately after seeding, protect seeded areas with a temporary, non-vegetative cover”, 

such as erosion control blankets or turf reinforcement mats. These commenters indicated that 

requiring protective non-vegetative cover over seeded areas could increase stabilization costs 

from $5,000 to $8,000 per acre. One of the commenters suggested that providing protective 

cover is not the only way to ensure vegetative growth, suggesting that for highway projects in 

Texas, successful vegetative establishment occurs through a combination of seed bed 

preparation, broadcast seeding, and rolling of seeded areas to help with germination and 

erosion prevention. These comments suggested to EPA the need to provide greater flexibility to 

permittees in how they meet the vegetative cover requirement. For this reason, in the final CGP 

it is left to the permittee to determine how best to achieve the 70 percent cover requirement. 

Response 2.46 Use of the RUSLE C-Factor Values as Vegetative Stabilization Criteria

EPA had proposed in Parts 2.2.2.1 and 2.2.2.2 to adopt as stabilization criteria specific C-factor 

(or “cover management” factor) values from the Revised Universal Soil Loss Equation (RUSLE). 

The C-factor criteria would have provided an alternative stabilization standard to the 70 percent 

vegetative cover requirement and a standard for the use of non-vegetative stabilization 

methods. EPA included an appendix (proposed Appendix H), which included C-factor values 

from past studies on the effectiveness of various vegetative and non-vegetative cover practices 

that are in common use. 

EPA received numerous comments in response to the proposed use of C-factor values as 

enforceable stabilization criteria. While a few of the comments were supportive of the concept, 

with suggestions for how to improve the approach, the vast majority of comments found the 

approach to be extremely problematic. These commenters challenged the accuracy of the 

standardized testing procedures used to evaluate different cover types (even noting the extent 

of disagreement within the erosion and sediment control industry about which standards should 

be in effect), expressed doubt about how well C-factor values for commonly used stabilization 

practices are translated to actual sites, raised concerns about the inequities between the 70 

percent approach and the stringency of the proposed C-factor values, warned of the confusion 

that would be created in the industry by adopting a more complicated approach based on 

RUSLE, and brought to EPA’s attention numerous other concerns. 

In light of these comments, EPA has decided not to adopt the proposed C-factor approach and 

instead has finalized stabilization criteria that more closely resemble that used in past permits. 

While EPA may revisit the C-factor concept in the future to evaluate whether advances have 

been made in standardizing the methods for rating different stabilization cover types, the 
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Agency does not believe that it could have addressed the many valid concerns raised through 

any straightforward set of changes in the final CGP. 

Response 2.47 Request for Comment on Vegetative Stabilization 70 Percent Requirement

Response 2.47.1 General comments. In the proposed permit, EPA had requested comment on 

whether the final permit should replace the 70 percent vegetative cover requirement that had 

been used in past permits with the new C-factor approach. Commenters expressed support for 

retaining the 70 percent cover requirement because it is effective and easily understood. EPA 

appreciates the comments in support of the 70 percent criterion, and notes that this requirement 

has been retained in the final permit. The C-factor approach has not been included s in the 

final permit. 

One commenter asked that EPA retain the formula in the permit for determining how the 70 

percent requirement applies to situations where the background vegetation prior to earth 

disturbance is less than 100 percent. EPA has retained this formula, however, the Agency has 

included this as part of the discussion in the fact sheet elaborating upon the 70 percent cover 

requirement. 

Response 2.47.2 Clarification of requirement. Several commenters asked for clarification as to

whether the 70 percent cover requirement applies to the area covered by vegetation prior to 

commencing earth-disturbing activities. In response, EPA has clarified in the final permit that the 

70 percent criterion applies to the “density of coverage that was provided by native vegetation 

prior to commencing earth-disturbing activities.” See Part 2.2.2.1. 

A few commenters interpreted the proposed permit as requiring the permittee to provide 70 

percent vegetative cover of the entire site and as limiting the developable land to 30 percent of 

the entire site. EPA did not intend for the 70 percent vegetation stabilization requirement to be 

interpreted as a restriction on developable land. The Agency clarifies that the 70 percent 

requirement applies to areas of exposed soil remaining outside of the area where structures and 

other impervious surfaces will be built. Therefore, where areas of the site have been disturbed, 

but where structures will not ultimately be installed, to the extent the permittee will use 

vegetation to stabilize these areas, that vegetation will be required to cover 70 percent of the 

density of vegetation that existed in those areas prior to construction. 

Response 2.47.3 Suggestions for alternative requirements. Several commenters offered 

recommendations on how EPA might modify the 70 percent vegetative cover requirement. 

Each recommended concept is considered below. 

• One commenter suggested the adoption of the following language: “A uniform (e.g., 

evenly distributed, without large bare areas) vegetative cover with a density of 70 

percent of the native background vegetative cover for the area has been established 

on all unpaved areas and areas not covered by permanent structures. Vegetated 

Stabilization of a site requires stabilization with vegetation to a 70% coverage rate. This 

does not mean that 30% of the area to be stabilized with vegetation can remain bare. 

The coverage is defined as looking at a square yard of coverage, in which 

70% of that square yardage is covered with vegetation.” EPA believes that the final 

permit’s vegetative stabilization requirements adopt many of these suggestions. For 

instance, Part 2.2.2.1 specifies that the 70 percent requirement applies to the “density of 

coverage that was provided by native vegetation” prior to construction, which is similar 

to the language suggested above by the commenter. The provision also further clarifies, 
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consistent with the commenter’s suggestion, that establishing “uniform vegetation” 

means that it should be “evenly distributed without large bare areas.” 

• Several commenters recommended that EPA increase the percent cover requirement so 

that it is larger than 70 percent. These suggestions varied from commenter to 

commenter with some suggesting 80 percent vegetative cover, another suggesting 95 

percent, and still another suggesting 100 percent. EPA is sympathetic to these 

suggestions and is open to considering the adoption of an alternative, higher vegetative 

cover standard in future permits. However, at this time, the Agency believes that the 70 

percent cover requirement is a widely accepted standard that provides effective 

erosion control once established. 

• One commenter advised against requiring “uniform perennial vegetation” based on a 

percent vegetative cover. EPA disagrees. EPA believes that requiring that vegetation 

be established uniformly, so that it is evenly distributed without large bare areas, reflects 

widely accepted practices for reducing erosion on exposed soils. EPA also supports the 

use of a percent cover requirement because it is easily translatable to the permittee. 

Another commenter recommended that the 70 percent cover requirement be replaced with a 

70 percent stem density requirement. This commenter noted that stem density is a better 

indicator of vegetative establishment than canopy cover. The commenter also recommended 

that EPA require that vegetation must be native to the area. EPA understands why the 

commenter is suggesting the stem density approach especially for areas with sparse native 

vegetation, and agrees that this would be a workable approach. EPA believes that what has 

been adopted in the final permit offers some of the attributes on the commenter’s approach by 

requiring the permittee to “provide 70 percent or more of the density of coverage that was 

provided by native vegetation” prior to construction. This is because the focus of the vegetation 

reestablishment is on the density of vegetation, which is similar to the concept supported by the 

commenter. 

While EPA acknowledges what the commenter says is true that permittees may be able to count 

weeds as cover in a manner that is equivalent to other types of vegetation, the Agency believes 

that any established vegetation will provide better erosion control than bare soil. EPA also 

believes that most permittees have shown a growing interest in using plant species that are 

effective at providing permanent vegetative cover. EPA is open to further examining the stem 

density approach in future permits and welcomes the commenter to submit additional 

suggestions to the Agency in the meantime on this approach so that the concept can be 

further developed. Additionally, in response to the commenter’s suggestion that EPA require 

permittees to use only native plant species, while EPA agrees with this practice and suggests that 

all permittees use native species, the Agency does not believe it is necessary to explicitly require 

this in the permit. 
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Comment Response Essay 3 C&D Rule and Numeric Turbidity Limit 

Response 3.1 C&D Rule and Numeric Turbidity Limit

Numeric Turbidity Limit 

EPA received many comments relating to the stay of the numeric turbidity effluent limit in the 

C&D rule. EPA notes that the C&D rule promulgation is a separate action from the CGP, and 

therefore EPA considers comments relating specifically to the C&D rule ELGs, including 

comments on the numeric limit and the litigation of the rule, to be outside the scope of the CGP. 

However, EPA believes certain comments can be addressed through the following information 

about the status of the C&D rule numeric turbidity effluent limit. 

The C&D rule was finalized on December 1, 2009, and included non-numeric requirements for 

erosion and sediment control, stabilization, and pollution prevention (see 40 CFR 450.21(a) 

through (f)), and, for the first time, a numeric limitation on the discharge of turbidity from active 

construction sites (see 40 CFR 450.22). Since its promulgation, EPA discovered that the data 

used to calculate the numeric limit for turbidity were misinterpreted, and that it was necessary to 

recalculate the numeric limit. 

On August 12, 2010, EPA filed a motion with the U.S. Court of Appeals for the Seventh Circuit, 

requesting that the Court issue an order vacating and remanding to the Agency limited portions 

of the final C&D rule. To address the specific issues raised by petitioners, the motion also 

provided that EPA: 

• “may address (and if necessary take further regulatory action on) certain impacts of the 

final rule specific to linear gas and electricity utility projects.” 

• will “solicit site specific information regarding the applicability of a numeric limit” to cold 

weather sites and to small sites that are part of a larger plan of development that is 

subject to the numeric limit. 

On August 24, 2010, the U.S. Court of Appeals for the Seventh Circuit remanded the matter to 

EPA but did not vacate the numeric limit. On September 9, 2010, the National Association of 

Home Builders (NAHB) filed a motion for clarification (which EPA did not oppose) asking the 

Court to (1) vacate the limit and (2) hold the case in abeyance instead of remanding the 

matter to EPA. On September 20, 2010, the Court granted the motion in part by ruling to hold 

the matter in abeyance pending EPA consideration of the numeric limit and the other remand 

issues, but the Court did not vacate the numeric limit. Instead, the Court stated that "EPA may 

make any changes to the limit it deems appropriate, as authorized by law.” 

On November 5, 2010, EPA issued a direct final regulation and a companion proposed 

regulation to stay the numeric limitation at 40 CFR 450.22 indefinitely. The stay took effect on 

January 4, 2011, resulting in an indefinite postponement of the 280 NTU limit. Since the numeric 

portion of the rule was stayed, EPA, states, and authorized tribes are no longer required to 

incorporate the numeric turbidity limitation and monitoring requirements found at §450.22(a) 

and §450.22(b) into NPDES permits. However, the remainder of the regulation is in effect and 

must be incorporated into newly issued NPDES permits. 

EPA published a Federal Register notice on January 3, 2012 requesting additional data on the 

performance of technologies in controlling turbidity in stormwater discharges from construction 

sites. The notice also requests information on other topics relevant to establishing numeric 

effluent limitations for stormwater discharges from these sites, including sample collection, 

applicability to linear electric transmission line construction, cold weather considerations, and 

the ability of small sites to meet a numeric standard. 

The final CGP is directly affected by the stay in that, due to the stay, the permit does not need to 

include the numeric turbidity limit. When EPA issued the draft permit for public comment, the 
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Agency was uncertain whether its work to complete the recalculation of the numeric turbidity 

limit would be completed in time to incorporate into the final permit. To be able to implement 

the yet-to-be-promulgated turbidity limit in the final permit, EPA included in the draft permit a 

placeholder for the effluent limit, as well as proposed implementation requirements such as 

turbidity monitoring and reporting protocols. Because EPA is still in the process of collecting data 

to support the recalculation of the numeric turbidity limit, and therefore a final numeric turbidity 

limit is not yet available to implement, the Agency has finalized the CGP without the numeric 

limit and related monitoring and reporting requirements. EPA has, however, implemented the 

remaining portion of the C&D rule that was not affected by the stay of the numeric limit. 

One commenter requested that EPA include specific language in the permit allowing EPA to 

reopen the CGP and insert the recalculated limit. As described above, EPA is in the process of 

collecting data to inform the basis for a recalculated numeric turbidity limit. EPA does not want 

to prejudge the timing and outcome of the data collection effort, and therefore will not include 

language in the permit to reopen the CGP and insert the recalculated limit. Once a new limit is 

promulgated, EPA will revisit options for incorporating it into the next CGP. However, given the 

uncertainty of the timing and outcome of the effort to recalculate the numeric limit, EPA thinks it 

is unlikely that a recalculated limit will be available to be inserted into the reissued CGP during 

the five-year permit term. 

Request to Extend 2008 CGP 

One commenter requested that EPA extend the current 2008 CGP for its full five-year term. This 

will allow the 7th Circuit Court of Appeals to fully adjudicate all issues associated with the 

pending C&D ELG lawsuit. EPA appreciates the comment. However, EPA believes it is critical to 

issue the 2012 CGP in order to implement important new protections provided by the nonnumeric effluent limits. Additionally, EPA believes it is imperative that EPA issue its CGP to provide

needed guidance to the many NPDES-authorized states that rely on EPA’s CGP for developing 

their state construction stormwater permits. Similarly, another commenter requested that EPA 

provide the basis for why the current permit is adequately protecting waters of the US. EPA notes 

that the new requirements in the permit largely relate to the C&D rule, which EPA is required to 

include in the new permit. Other new requirements EPA has included because EPA found they 

were necessary to provide protections to impaired waters and high quality waters. 

EPA’s Removal of the Numeric Turbidity Limit and Sampling Requirements 

EPA notes that, due to the stay of the numeric limit, as described in comment response essay 

“Numeric Turbidity Limit” above, the final permit does not include the numeric turbidity limit or 

sampling requirements. EPA believes that the removal of the placeholder for the numeric limit 

and associated sampling requirements negates the concerns expressed by commenters about 

these proposed requirements. See also discussion above. 

Relationship Between C&D Rule BMPs and Discharges 

One commenter asserted that the C&D rule illegally imposes certain BMPs that regulate internal 

site processes that are not related to point source discharges. EPA disagrees. EPA has 

developed short papers describing how each of the C&D rule ELGs relate to the minimization of 

pollutants in discharges. See the papers located on the C&D rule docket (Docket ID No. EPA–

HQ–OW–2010–0884). 

EPA’s Implementation of the C&D Rule Non-Numeric Requirements 

EPA received several comments on its implementation of the C&D rule effluent limitations 

guidelines as proposed in the permit. Some of the comments included: 

• EPA should only include the C&D rule ELGs after the C&D rule rulemaking process is 

completed. Issues related to the new C&D ELG requirements that EPA has proposed in 
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the CGP must be allowed to be litigated in full prior to inserting them into a new CGP 

and mandating compliance. The C&D ELG can only be assessed an entire package of 

non-numeric and numeric effluent limits. Accordingly, EPA should delink the CGP from 

the C&D rule, and focus the new CGP on modifications and issues not embroiled in the 

C&D ELG. EPA should refocus its efforts on implementing the C&D ELG at an appropriate 

date in the future when the contents of that regulation are fully understood. Or, EPA 

should delay finalizing the CGP until the final C&D ELGs are reissued. Doing so would 

avoid confusion in EPA’s construction stormwater permitting program. 

• EPA should put the C&D ELG and CGP in a joint review and comment process. 

• EPA’s implementation of the C&D rule erosion and sediment control practices is overly 

prescriptive, cost-prohibitive, and is a one-size-fits-all strategy. The CGP should include 

just the ELG language, and EPA should develop separate non-mandatory guidance with 

more specific implementation information. 

• EPA has not determined that the C&D rule requirements as implemented in the permit 

are feasible. EPA should conduct further analyses to account for the specificity added to 

the C&D Effluent Limitations Guidelines (ELGs) and New Source Performance Standards 

(NSPS) in the final CGP. For each control measure promulgated, EPA must conduct an 

analysis that includes information about the industry, estimates costs and economic 

impacts of the proposed effluent control options, reviews comments on the proposed 

effluent limits, and incorporates those comments into a final regulation supported by 

documentation. 

EPA disagrees with the comment suggesting that EPA wait to implement the C&D rule ELGs after 

the C&D rule rulemaking process is complete. EPA clarifies that only the numeric limitation 

portion and associated monitoring requirements of the C&D rule at 40 CFR 450.22 have been 

stayed. The remainder of the regulation, including the non-numeric effluent limitations, is in 

effect and must be incorporated into newly issued permits. Therefore, EPA is required to 

implement the non-numeric ELGs into the new CGP. 

With regard to the comments that EPA was overly prescriptive in its implementation of the C&D 

rule, EPA believes that specificity was needed in order for the permit conditions to be clearly 

articulated, transparent, and enforceable. After receiving comments regarding the stringency 

of some of the specific permit conditions, EPA has in fact refined many of the provisions in the 

final permit to make them more flexible. For example, EPA does not require in the final permit for 

sites disturbing steep slopes to divert flows around steep slopes and use specialized controls. EPA 

also made the definition of steep slope more flexible to account for different regional and 

industry steep slope standards. EPA added flexibility to the buffer requirements for linear 

construction projects and for small residential lots to account for situations where the buffer 

compliance alternatives may be burdensome or infeasible to implement. EPA also removed 

much of the specificity that was proposed with regard to the requirements to preserve topsoil 

and minimize soil compaction. In the final permit, EPA believes that it has added appropriate 

specificity to the C&D rule ELGs to ensure the conditions are both protective of water quality 

and implementable by permittees. EPA notes that it has conducted an economic analysis to 

evaluate requirements an incremental increase in costs on permittees above and beyond the 

costs accounted for in the 2008 CGP or in the C&D rule requirements. See the Economic 

Analysis document in the permit docket. 

EPA disagrees with the suggestion that EPA must conduct further analyses to account for the 

specificity added to the C&D ELGs and NSPS in the final CGP. EPA believes that its 

implementation of the C&D ELGs and NSPS in the final CGP is consistent with the CWA and its 

implementing regulations, and that further analyses are not necessary. Under CWA section 

301(b)(1)(A), 40 CFR 125.3(a)(2) and (c)(1), and 40 CFR § 122.44(a)(1), NPDES permits must 
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include effluent limitations and conditions to implement any applicable ELGs and/or NSPS for the 

point source category that have been promulgated by EPA. There is no requirement under the 

CWA or its implementing regulations that EPA conduct the extra analysis suggested by 

commenters in deriving NPDES permit limits to implement the applicable ELGs and NSPS. EPA 

points out that the C&D rule intended to provide discretion to permitting authorities to determine 

how best to implement the provisions of the rule with respect to including in their permits limits 

and conditions (requiring controls and measures) appropriate for the conditions in their 

permitted areas. As the permitting authority responsible for issuing stormwater permits for 

construction activities in four states, Indian Country, Federal facilities, Washington, DC, and U.S. 

territories/protectorates, EPA believes that it is important in this final permit to include 

requirements that more specifically define what EPA believes is appropriate to implement each 

of the C&D rule’s non-numeric limits. Accordingly, in translating the C&D rule requirements into 

the final CGP, EPA added specificity to many of the C&D rule provisions that it believed would 

benefit from further definition, such the requirements to “Provide and maintain natural buffers” 

and “Minimize soil compaction”, among others. 

 
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Comment Response Essay 4 Water Quality-Based Effluent Limitations 

Response 4.1 Water Quality-Based Effluent Limitations

2012 CGP and Water Quality Standards and TMDLs 

EPA received comment suggesting that the Agency include a requirement that any activity 

authorized by the CGP undergo site-specific review to determine whether increased discharges 

are consistent with TMDL allocations. Similarly, EPA received comment asserting that the process 

of granting coverage under the CGP lacks sufficient opportunity for site-specific analysis and has 

the potential to cause or contribute to water quality standard exceedances without 

appropriate levels of review, disclosure, public comment, and administrative appeal 

opportunities. The commenter described a past situation in which the state had issued a blanket 

certification for CGPs and asserted that, as a result, no recourse was available where sitespecific information later indicated exceedances of state water quality standards, the 

antidegredation policy, or TMDLs. The commenter asserts that such a blanket certification also 

fails to advise permittees to contact the appropriate state staff to determine if their projects are 

in compliance with existing TMDLs and that, as a result, there is no mechanism to ensure that 

discharges covered under the CGP are in compliance with TMDLs and state water quality 

standards. Similarly, another commenter asserted that waters impaired for sediment or siltation 

or that are subject to a TMDL for these pollutants will almost certainly experience greater 

degradation under a general permit. The commenter suggested that individual permits should 

be required for discharges these waters, to high-quality waters, and to streams listed as critical 

habitat for threatened and endangered species. The commenter argued that under an 

individual permit, the projects would receive higher scrutiny and a more robust analysis. 

However, the same commenter also noted that if EPA moves forward with a general permit that 

the commenter supports the Agency’s decision to include new stabilization, inspection, and 

monitoring requirements in the CGP for sites discharging to nutrient- and sediment-impaired 

waters, and for providing specific tools to help determine whether a proposed site will discharge 

to such waters. EPA also received comment asserting that the CWA prohibits new discharges 

into impaired waters for which a TMDL has been established unless there is a WLA available to 

accommodate those discharges, and that this permit should similarly make this clear, disallowing 

its application at all into TMDL-established streams unless it is shown that a WLA is, indeed, 

available, or some other accommodation, such as an off-site offset, is made. 

EPA disagrees that the 2012 CGP lacks sufficient opportunity for site-specific analysis or scrutiny 

to protect water quality and water bodies listed as critical habitat for threatened and 

endangered species and notes that operators seeking coverage under the permit must first 

submit an NOI at least 14 days prior to beginning land-disturbing activities. The 14-day NOI 

submittal deadline provides the Fish & Wildlife Service and the National Marine Fisheries Service, 

and the public, with an opportunity to review these submissions and to inform EPA if more time is 

needed to review the potential impacts from the project. If more time is needed, EPA can delay 

authorization to allow additional assessment to take place. EPA may use the waiting period to 

determine, for example, whether any more stringent requirements are necessary to meet 

applicable water quality standards, to be consistent with an applicable wasteload allocation 

(WLA), or to comply with state or tribal antidegradation requirements. Part 1.2.2 of the permit 

indicates that no permit shall be issued to a new source or a new discharger, if the discharge 

from its construction or operation will cause or contribute to the violation of water quality 

standards. Under Part 1.4.5, EPA may deny coverage under the general permit and notify the 

permittee that an individual permit application is necessary. The individual permit may include 

additional controls or conditions to ensure that discharges from the construction or operation will 

not cause or contribute to an exceedance of water quality standards. 

For the comment on advising permittees to contact the appropriate state staff to determine if 

their projects are consistent with existing TMDLs, EPA also notes that the 2012 CGP requires 
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potential permittees to identify in their NOIs the surface water(s) to which they will discharge, 

whether any waters are impaired, and whether any TMDLs exist for the receiving waters. To assist 

applicants, EPA is providing a mapping tool. Applicants must certify that all information is 

correct. EPA believes that this process will ensure that permittees know if any of the waters to 

which they will discharge are impaired and whether a TMDL exists for those waters. The 

information will be available during the 14-day waiting period discussed above. EPA may 

impose additional water quality-based limitations on a site-specific basis, or require an applicant 

to obtain coverage under an individual permit, if information in the NOI, or from other sources, 

indicates that the discharges are not controlled as necessary to meet applicable water quality 

standards. These provisions will ensure that operators are aware of applicable water quality 

standards and TMDLs and to determine whether additional stormwater controls are necessary. 

EPA disagrees that the 2012 CGP provides no mechanism to ensure that discharges covered 

under the CGP are in compliance or consistent with TMDLs and state water quality standards 

and that the permit provides no mechanism for recourse for cases in which site-specific 

information indicates occurrences of exceedances of state water quality standards. First, as 

discussed above, permittees must determine whether they discharge to impaired waters and 

whether those waters have TMDLs. Applicants will document this information in their NOIs when 

seeking coverage. While EPA expects that compliance with the stormwater control requirements 

described in Part 2 of the permit will result in discharges that will not cause, have the reasonable 

potential to cause, or contribute to an excursion above any applicable water quality standard, 

EPA also notes that the permit allows for the Agency to require corrective action and/or 

additional stormwater controls if the stormwater controls that the permittee has installed and is 

maintaining are not effective enough for the discharge to meet applicable water quality 

standards (See Parts 3 and 5.2.1.2). For example, permittees are required to conduct routine 

inspections. As a result of these inspections, the permittees may become aware of the need to 

conduct repairs of existing controls or to install additional controls to protect water quality. 

Moreover, Part 1.5 of the permit requires permittees to post a sign or other notice conspicuously 

at a safe, publicly accessible location in close proximity to the project site. At a minimum, the 

notice must include the NPDES Permit tracking number and a contact name and phone number 

for obtaining additional project information. This requirement provides the public or other 

interested parties with the opportunity to obtain publicly available information about the 

construction site and to identify the site when reporting potential permit violations. Violations 

identified through such reporting could result in corrective action and/or the installation of 

additional stormwater controls to protect water quality. 

EPA also received comment questioning what is meant by requiring that discharges be 

controlled as necessary to meet applicable water quality standards and that unless EPA clarifies 

the requirement, permittees will be vulnerable to third party lawsuits, enforcement actions, or 

costly studies. EPA discusses the requirement in Part 3 of the 2012 CGP. The requirement means 

that permitted discharges may not cause, have the reasonable potential to cause, or contribute 

to an excursion above any applicable water quality standard. As discussed above, EPA expects 

that compliance with the stormwater control requirements described in Part 2 of the permit will 

result in discharges that will not cause, have the reasonable potential to cause, or contribute to 

an excursion above any applicable water quality standard. However, with regard to third party 

lawsuits, enforcement actions, or studies, EPA believes that the permit must include mechanisms 

to allow the Agency to identify where corrective action and/or additional stormwater controls 

may be needed to meet applicable water quality standards and to require corrective action 

and/or the installation of additional stormwater controls. See Parts 3 and 5.2.1.3 of the 2012 CGP 

for description of requirements and sections VIII and X of the 2012 CGP Fact Sheet for a 

discussion on the purposes of these requirements. 

EPA received comment on the requirement to install additional controls when needed to meet 

applicable water quality standards. The commenter asserted that the regulated party should 
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have the opportunity to review and comment on new requirements before they are imposed. 

EPA notes that the permit does not include an additional public review and comment step. 

However, as discussed in Part 1.4.5, for cases in which permittees are denied permit coverage, 

following submittal of a complete and accurate NOI, the permittee may be notified in writing by 

EPA that they are not covered, and that they must apply for and/or obtain coverage under 

either an individual NPDES permit or an alternate general NPDES permit. This notification will 

include a brief statement of the reasons for this decision and will provide application 

information. Any interested person may request that EPA consider requiring an individual permit 

or alternate general permit under this paragraph. 

The section further explains that if the permittee is already covered under the 2012 CGP, or a 

previously issued CGP, the notice will set a deadline to file the permit application or NOI for an 

alternate general permit, and will include a statement that on the effective date of the 

individual NPDES permit or the date of coverage under an alternate general NPDES permit, 

coverage under this general permit will terminate. EPA may grant additional time to submit the 

application or NOI if the permittee requests it. If a covered permittee fails to submit an individual 

NPDES permit application or NOI as required by EPA, the applicability of this permit is terminated 

at the end of the day specified by EPA as the deadline for application or NOI submittal. EPA 

may take appropriate enforcement action for any unpermitted discharge. If a timely permit 

application is submitted, then when an individual NPDES permit is issued or coverage is provided 

under an alternate general NPDES permit, coverage under this permit is terminated on the 

effective date of the individual permit. 

Applicants are also permitted to discuss the notice with EPA to determine which additional 

controls may be sufficient. EPA notes that 40 CFR section 122.44(d)(1)(vii)(B) provides that where 

a State or EPA has established a TMDL, NPDES permits must contain effluent limits and conditions 

consistent with the assumptions and requirements of the WLAs in the TMDL. 

EPA also received comment asserting that sites discharging to waters with TMDLs should have an 

upper limit imposed for the amount of land that may be “opened” and worked at any given 

time. EPA acknowledges the comment but notes that the CWA gives the Agency authority to 

regulate point source discharges of pollutants to waters of the U.S. but not to establish upper 

limits of construction project sizes. However, while the 2012 CGP does not include an upper limit 

of the amount of land that may be worked on at any given time, EPA notes that permit 

provisions specifying effluent limitations including deadlines for stabilization apply to regulated 

sites, regardless of how large they may be. Thus, the permit provides protection to receiving 

waters from discharges from sites of all sizes at or exceeding minimum size thresholds. 

One commenter asserted that the special stabilization deadlines (Part 3.2.2.2) should apply if the 

permittee discharges to a surface water that is impaired for any parameter, not just for 

sediment-related pollutants or nutrients, unless a reasonable potential analysis shows that there is 

not likely to be a discharge of the impaired parameter. EPA disagrees that the requirement 

should apply to waters impaired for any parameter. The requirement to stabilize more quickly 

applies to sites discharging to waters impaired for sediment or sediment-related pollutants or 

nutrients because of the linkage between stabilization and discharges of these pollutants. 

However, See Part 3.2 of the 2012 CGP, which explains that if the permittee discharges to an 

impaired water that is impaired for a parameter other than a sediment-related parameter or 

nutrients, EPA will inform the permittee if any additional limits or controls are necessary for the 

discharge to be consistent with the assumptions of any available wasteload allocation in the 

TMDL. EPA notes that 40 CFR 122.44(d)(1)(vii)(B) provides that where a State or EPA has 

established a TMDL, NPDES permits must contain effluent limits and conditions consistent with the 

assumptions and requirements of the WLAs in the TMDL.

Stabilization 
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For comments on stabilization, see response on stabilization in section 2 of this document. 

Inspections 

For comments on inspections, see response on inspections in section 5 of this document. 

2008 CGP was Sufficient / the Proposed Terms are Overly Burdensome and Unnecessary 

EPA received general comment asserting that the Agency has not provided any evidence that 

the existing permit program is not working and that because a problem with the current permit 

does not exist that EPA should not revise the current permit. In response to the comment, EPA 

directs the commenter to the 2012 CGP Fact Sheet in which the Agency provides background 

information on the permit and discusses the purposes of permit provisions. In particular, section I 

of the Fact Sheet explains that because the 2012 CGP is being issued after the effective date of 

the C&D rule, EPA is required to incorporate the C&D rule requirements into this permit. For this 

reason, the 2012 CGP includes significant modifications to the 2008 CGP to reflect these new 

C&D rule requirements. 

EPA Must Develop a Cost/Benefit Analysis 

EPA received comment suggesting that the Agency develop a cost-benefit analysis and use 

that analysis to develop more reasonable alternatives. In response to this comment, EPA notes 

that the Agency did develop a cost-benefit analysis in support of the Construction and 

Development Effluent Limitations Guideline and New Source Performance Standards (the “C&D 

rule”) on which the 2012 CGP is based. The analysis is available at 

http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm. EPA also developed an 

economic analysis as part of the administrative record in support of the 2012 CGP. The analysis 

is available in the docket for the 2012 CGP. This analysis evaluates the cost implications of the 

significant changes to the permit. Each significant change is examined in light of the previous 

permit’s (the “2008 CGP”) requirements and the requirements of the C&D rule, which for the first 

time is being incorporated into the CGP. The objective of this examination was to show where 

and/or to what extent the 2012 CGP includes requirements that impose an incremental increase 

in costs on permittees above and beyond costs that are already accounted for in the 2008 CGP 

or in the Economic Analysis developed in support of the C&D rule requirements, which together 

define the baseline of costs. EPA notes that the Agency developed the Construction and 

Development NPDES General Permit Environmental Assessment in support of the 2012 CGP. This 

document is available in the docket for the permit. All three analyses informed the development 

of reasonable alternatives and the final permit provisions. 

Comments Related to Testing for Individual Nutrients 

EPA notes that the 2012 CGP does not include requirements for testing of individual nutrients. 

Comments Related to Turbidity Standard 

EPA notes that the 2012 CGP does not include a numeric turbidity standard. 

Comments Related to Benchmark Monitoring Reports 

EPA notes that the 2012 CGP does not include benchmark monitoring requirements. 

Exceedance of Applicable Water Quality Standard as a Violation 

EPA received comment suggesting that the water quality-based effluent limitations be 

applicable only to water bodies impaired for turbidity, sediment, and TSS and that biological 

impairments should be excluded. In response to the comment, EPA notes that while the specific 

effluent limitations discussed in Part 3.2.2 of 2012 CGP apply to discharges to surface waters that 

are impaired for sediment or sediment-related parameters, such as total suspended solids (TSS) 

or turbidity, and/or impaired for nutrients, including impairments for nitrogen and/or phosphorus, 
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the general requirements in Part 3.2 applies more broadly. The general requirement explains that 

If a permittee discharges to an impaired water that is impaired for a parameter other than a 

sediment-related parameter or nutrients, EPA will inform the permittee if any additional limits or 

controls are necessary for the discharge to be controlled as necessary to meet water quality 

standards, including for it to be consistent with the assumptions of any available wasteload 

allocation in any applicable TMDL, or if coverage under an individual permit is necessary in 

accordance with Part 1.4.5. Thus, EPA disagrees that any impairments should be explicitly 

excluded and notes that if a permittee discharges to an impaired water that is impaired for a 

parameter other than a sediment-related parameter or nutrients, that EPA will inform the 

permittee if any additional limits or controls are necessary to meet WQS. These provisions are 

intended to implement the requirements of 40 CFR 122.44(d)(1)(vii)(B), which requires that water 

quality based effluent limits in permits be “consistent with the assumptions and requirements of 

any available wasteload allocation for the discharge...” and of 40 CFR 122.4(i), which creates 

conditions for the issuance of permits for new sources. 

What happens if a water becomes listed as impaired during the permit term? 

EPA received comment asserting that guidance is needed in the event that a waterway 

becomes listed as impaired during the permit term. In particular, the commenter asks whether a 

permittee would be required to a modification to the NOI and/or whether a permit modification 

will result. EPA notes that operators are required to determine whether they discharge into 

waters that are impaired at the time they submit their NOIs. Part 3.2 of the 2012 CGP requires 

permittees that discharge into to a surface water that is impaired at the time of NOI submission 

for sediment or a sediment-related parameter to comply with specific water quality effluent 

limitation of Part 3 of the permit, including more frequent site inspections, faster stabilization 

schedules, and any additional state or tribal impairment-related requirements. EPA does not 

expect and the permit does not require operators to regularly review updated lists of impaired 

waters to determine whether waters that were not previously impaired have become impaired 

during the course of their permit coverage. However, as discussed in Part 3.2 of the 2012 CGP, If 

at any time a permittee become aware, or EPA determines, that a discharge permitted under 

the 2012 CGP is not being controlled as necessary to meet applicable water quality standards, 

the permittee must take corrective action as required in Part 5.2.1, and document the corrective 

actions as required in Part 5.2.2 and Part 5.4. If they are notified that a water to which they 

discharge has become impaired for sediment or a sediment-related parameter, they would be 

required to comply with the specific water quality-based effluent limitations in Part 3.2.2 of the 

permit for discharges to an impaired water that is impaired for a sediment-related parameter or 

nutrients. Moreover, all permittees, regardless of whether they discharge to waters that are 

impaired are subject to Parts 3.1 and 5.2.1.3 of the permit, which allows the Agency to require 

corrective action and/or additional stormwater controls if the stormwater controls that the 

permittee has installed and is maintaining are not effective enough for the discharge to meet 

applicable water quality standards. 

What is EPA’s authority for including “EPA-approved or established TMDL” within the CGP’s 

definition of impaired waters? 

EPA received comment asserting that the Agency has failed to cite controlling legal authority 

supporting its determination to include waters for which there is an EPA-approved or established 

total maximum daily load within the draft CGP’s definition of “impaired waters.” In response to 

this comment, EPA included this language in the definition because, although most TMDLs are 

adopted by states, territories, or authorized tribes and then approved by EPA, EPA has, in certain 

situations, established TMDLs for waters of the U.S., e.g., where EPA has disapproved a stateestablished TMDL (see CWA section 303(d)(2). Regarding the inclusion of TMDLs in the provision 

of the permit, EPA notes that 40 CFR 122.44(d)(1)(vii)(B) provides that where a State or EPA has 
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established a TMDL, NPDES permits must contain effluent limits and conditions consistent with the 

assumptions and requirements of the WLAs in the TMDL. 

Determining Whether Waters are Impaired / Definition for Sensitive Waters 

EPA received comment on the proposed provision explaining that “if you indicate that you do 

not discharge to an impaired water, EPA may determine, based on additional information, that 

you are considered to be discharging into an impaired water.” Some commenters sought clarity 

on the language “additional information.” Other commenters questioned the Agency’s 

authority supporting this clause. EPA notes that the 2012 CGP does not include this language. 

However, the Agency reserves the right to review for accuracy any information provided in NOIs 

including the list of impaired waters to which a site discharges. 

One commenter asserted that the determination of whether a site discharges to an impaired 

water should be based on whether hydraulic connectivity exists between the permitted 

discharge and a downstream water segment that is impaired, rather than on whether the first 

water body to receive a discharge from the site is impaired, even if the first water body is not 

impaired. Another asserted that the application of Part 4 of the Draft CGP does not address 

downstream protection beyond the discharger’s immediate receiving waters, particularly in the 

case when a discharger could potentially cause or contribute to the impairment of water bodies 

that flow into further downstream waters. In response to these comments, EPA notes that 2012 

CGP requires operators of all sites covered under the permit, as a first step, to determine whether 

they discharge to impaired waters and, if so, to identify those waters. These dischargers are 

subject to additional requirements under the permit. EPA agrees that in some cases it may be 

appropriate to require additional stormwater controls to protect downstream waters, even if the 

immediate water body into which the discharge flows is unimpaired. In accordance with 40 CFR 

sections 131.10(b), 122.44(d), and 122.4(d), the Agency requires the consideration of water 

quality standards (WQS) of downstream waters when establishing WQS and NPDES permit limits. 

In addition, under 122.44(d)(1)(i), NPDES permits must contain limitations for all pollutants or 

pollutant parameters that are or may be discharged at a level that causes, has the reasonable 

potential to cause or contribute to an excursion above any State WQS including state narrative 

criteria for water quality. Effluent limitations must also be consistent with the assumptions and 

requirements made of any wasteload allocation value (e.g., TMDL). Thus, EPA believes that, 

under a general permit, such determinations for necessary downstream protection of WQS can 

be made case-by-case by considering the ranges of geographical sites and the variety of other 

site-specific factors. 

One commenter suggested that EPA change the proposed language applying to discharges to 

impaired waters from “waters included in an EPA-approved or established Total Maximum Daily 

Load (TMDL)” to a water that “has an EPA-approved or established total maximum daily load 

(TMDL).” The commenter described situations in which a water body may not have a TMDL itself 

but it is nonetheless referenced in the documentation of a TMDL for another water body 

because of its relevance to the TMDL of that water body. The commenter points out that in 

some cases, the water body-referenced water may even have a waste load allocation even 

though it is not impaired. EPA disagrees that such water bodies should be excluded from the 

requirements for sites that discharge to impaired waters. If a State has determined that the 

water quality of one water body is relevant enough to the water quality of another that it is 

included in the TMDL, then, in the absence of further information, the Agency believes that that 

water should also be subject to the additional requirements, in addition to the fact that 40 CFR 

122.44(d)(1)(vii)(B) requires that that discharge be consistent with the assumptions and 

requirements of the relevant wasteload allocation in the TMDL. 

EPA received a suggestion that the Agency expand the requirement to include sites located 

within the watershed of major impaired waterways subject to TMDLs for sediment and nutrients. 

EPA notes that sites subject to TMDLs are included in the requirements. 
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EPA also received comment asserting that the Agency is exceeding its authority by requiring 

operators to determine whether a waterbody is impaired for the purposes of local, state, and 

federal law. However, the commenter does support provisions that require operators to take 

measures to limit stormwater discharges to impaired waters. The commenter goes on to assert 

that the determination of whether or not a body of water is impaired should be left of the state. 

EPA notes that the 2012 CGP does not require the applicant to designate waters as impaired. 

Rather, the permit requires applicants to determine (i.e., identify or look up) whether waters 

have already been designated as impaired by the state, tribe or EPA. For the comment on 

deferring to the state, EPA agrees that impaired waters are those that are identified as impaired 

on the CWA Section 303(d) list and thus has been identified by a State, Tribe, or EPA pursuant to 

Section 303(d) of the Clean water Act as not meeting an applicable water quality standard. EPA 

also defines as “impaired” waters that have an EPA-approved or established total maximum 

daily load (TMDL). See response above on EPA-approved or established TMDLs. 

EPA received comment on the proposed definition of “Discharge to an impaired water.” The 

commenter suggested that EPA remove the word “named” from the proposed definition 

indicating that a discharge occurs “if the first named water of the U.S. to which you discharge is 

identified” The commenter points out that some impaired water bodies may be listed as 

impaired. EPA agrees with the commenter that it is unnecessary to limit the definition to named 

waterbodies. The definition included in the 2012 CGP does not specify “named.” 

EPA received comment asserting that the Federal Register does not support including impaired 

waterbodies. EPA does not intend to publish a list of impaired waters in the Federal Register as 

part of this Action. 

EPA received comment asserting that provisions requiring that permittees identify the 

impairment status of their receiving waters along linear projects that may discharge in multiple 

watersheds is burdensome and has the potential for error due to various interpretations of 

impairments and stressors. In response to this comment, EPA notes that the Agency is developing 

a mapping tool that will assist potential permittees to identify in their NOIs the surface water(s) to 

which they will discharge, whether any waters are impaired, and whether any TMDLs exist for the 

receiving waters. The mapping tool functions for small construction projects occurring on a single 

lot as well as for linear projects spanning multiple watersheds. See discussion on the mapping 

tool in this section (Response 4.1). 

Use of Mapping Tools for Determining Whether Site Discharges to Impaired Waters 

EPA received a comment that asserted that e-mapping under the existing eNOI system is 

inaccurate, and suggested that EPA should rectify the existing eNOI e-mapping tool prior to any 

further use by the public. EPA also received comment expressing concern that the mapping tool 

would not be ready in time for issuance of the 2012 CGP. EPA notes that it has not previously 

made available a discharge mapping tool within the eNOI system. The commenter may have 

been referring to problems with EPA’s Water Locator Tool. However, consistent with this 

comment, EPA has developed a new mapping tool embedded within the eNOI system for the 

2012 CGP to assist permittees with determining the surface waters to which they discharge and 

whether any of the waters to which they discharge are impaired. The CGP Mapping Tool utilizes 

the best available data to determine whether or not a site is considered to discharge to an 

impaired water, and in the absence of any other information, EPA assumes that the tool 

correctly determines if a site discharges to an impaired water. However, due to limitations with 

the data, EPA recognizes that there could be circumstances where the mapping tool does not 

generate the correct results. If a permittee does not agree with the tool’s analysis, or is unsure if it 

is correct, EPA recommends that permittees verify the tool’s results by comparing the up-to-date 

and comprehensive list of impaired waters and EPA-approved or established TMDLs associated 

with their state, tribe, territory, etc to the surface waters that the permittee believes they 

discharge to. Much of this information is accessible through the websites of individual states, 
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tribes, territories, etc.; alternatively, you can conduct searches for this information through EPA’s 

website at located at http://epamap32.epa.gov/radims/ or 

http://www.epa.gov/myenvironment/new/. If a permittee is able to verify through other means 

that the tool is not correct for your site, EPA allows applicants to edit the results generated. Or, if

permittees prefer to determine which waterbodies their sites discharge to using alternate 

methods, EPA also notes that applicants are not required to use the e-mapping tool. 

EPA disagrees with the commenter’s assertion that e-mapping is not legally defensible and that 

permittees should be solely responsible for accurate determinations on discharges to impaired 

waters. EPA agrees that the permittee is responsible for submitting accurate information. EPA 

believes, despite the limitations, that it is appropriate to provide discharge mapping assistance 

to permittees. As discussed above, in the absence of other information, because the CGP 

Mapping Tool is utilizing the best available electronic information, it is EPA’s assumption that the 

results generated by the CGP Mapping Tool are correct. However, EPA recognizes that there 

may be cases where the results generated by the tool are inaccurate. Therefore, if an applicant 

is unsure that the information is correct or disagrees with the tool’s results, that applicant should 

review the information generated by the tool prior to certifying their NOIs. EPA maintains that 

allowing permittees to certify the results of the mapping tool, or alternative if the permittee so 

chooses, on their NOIs will eliminate any legal defensibility questions. 

EPA received comment requesting clarification on the ability of the mapping tool to determine 

whether discharges enter CSOs or MS4s. EPA notes that the mapping tool does not have this 

ability. Permit applicants are not required to identify discharges to CSOs because such 

discharges are not covered by the 2012 CGP. However, they must identify discharges to MS4s or 

other storm sewers and the waterbodies to which the MS4 or storm sewer ultimately discharges. 

For these waterbodies, they must note whether the water bodies are impaired, the pollutants for 

which they are impaired, and/or whether TMDLs have been established or approved by EPA. 

EPA received comment recommending that EPA make the mapping tool available early for 

public comment, review, and/or to provide time for planning and that the tool go through 

adequate testing. Unfortunately, the Agency was not able to make the tool available for public 

comment due to timing and resource limitations. As noted above, the CGP Mapping Tool utilizes 

the best available data to determine whether or not a site is considered to discharge to an 

impaired water, and in the absence of any other information, EPA assumes that the tool 

correctly determines if a site discharges to an impaired water. However, EPA welcomes 

comment on the mapping tool once the tool becomes available for public use and intends to 

make any necessary corrections or updates to the tool as needed and as resources allow. EPA 

has created an email address for interested parties to send EPA questions, comments, or 

concerns on the 2012 CGP. The email address is cgp@epa.gov. Also, as noted above, 

applicants are not required to use the mapping tool. 

Comments on Sampling or Benchmark Monitoring 

EPA received multiple comments challenging the proposed requirements for certain dischargers 

to conduct water quality benchmark monitoring or to conduct sampling. EPA also received 

multiple comments in support of the proposed benchmark monitoring requirements. EPA notes 

that the 2012 CGP does not include these requirements. While EPA believes that monitoring can 

be helpful in assisting permittees and EPA in determining whether discharges are controlled 

sufficiently to meet applicable water quality standards, and therefore do not cause or 

contribute to an impairment, and identify situations where further controls may be necessary to 

comply with this requirement, EPA also expects, in the absence of information demonstrating 

otherwise, that compliance with the conditions in this permit will result in stormwater discharges 

being controlled as necessary to meet applicable water quality standards. This is because the 

permit includes several enhanced protections, including provisions to protect impaired and 

sensitive waters and several new requirements for (1) Eligibility for emergency-related 
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construction, (2) use of treatment chemicals, (3) Xncreased usage of the electronic notice of 

intent process, (4) Sediment and erosion controls, (5) Natural buffers or alternative controls, (6) 

Soil stabilization, (7) Pollution prevention, (8) XWater quality-based effluent limits, (9) XSite 

inspections, (10) XCorrective action, (11) XStormwater Pollution Prevention Plans, and (11) 

XPermit termination. Nevertheless, EPA notes that if at any time a permittee becomes aware, or 

EPA determines, that a discharge is not being controlled as necessary to meet applicable water 

quality standards, the permittee must take corrective action as required in Part 5.2.1, and 

document the corrective actions as required in Part 5.2.2 and Part 5.4. 

Daily Visual Examinations for Dischargers into Impaired Waters 

EPA received comment asserting that the proposed provision requiring daily examinations is 

overly burdensome and does not provide valuable information, especially during no stormwater 

flow conditions. The commenter believes that a more appropriate requirement would be to 

examine critical stormwater controls specifically associated with an impaired pollutant within 24 

hours after significant rainfall events during safe conditions. EPA also received comment 

asserting that all inspection requirements should be explicitly limited to include only those areas 

upon which earth-disturbing activities are taking place within the site. 

EPA notes that the 2012 CGP does not require daily visual inspections. See Part 4 of the 2012 

CGP for a description of the inspection requirements and section IX of the 2012 CGP Fact Sheet 

for a discussion on the purpose of the requirements. 

Additional Requirements for Discharges to Impaired Waters / Water Quality-Based Effluent Limits 

One commenter asserted that it is not appropriate for EPA to include water quality-based 

effluent limit requirements in the 2012 CGP that do not yet have an EPA-approved or established 

TMDL and that establishing such requirements may be beyond EPA’s authority under the CWA. 

The commenter is asserting that EPA is inappropriately using the CGP to mandate additional 

requirements that may or may not be needed and may or may not help the waterbodies meet 

their pollutant reduction goals. Another commenter asserted that both the language and 

legislative history of the CWA make it clear that NPDES stormwater permits should include water 

quality limits only when national technology-based standards fail to produce the desired level of 

water quality in a given watershed. The commenter goes on to say that EPA cannot justify the 

additional water-quality based effluent limits (i.e., the new stabilization, inspection and 

monitoring requirements for discharges to impaired waters) asserting that EPA may impose 

additional NPDES permit conditions only if EPA has determined based on specific factors set forth 

in EPA regulations that the terms are necessary to avoid an “excursion” above a specific water 

quality standard. The commenter asserts that EPA has not made the required determinations nor 

provided any justification or scientific rationale for these additional conditions, particularly for the 

benchmark levels. For the comment on benchmark monitoring, EPA notes that the 2012 CGP 

does not include benchmark monitoring requirements. For the comment on water quality-based 

effluent limitations, EPA agrees that effluent limitations must be consistent with the assumptions 

and requirements made of any wasteload allocation (i.e., TMDL) but also notes that under 40 

CFR 122.44(d)(1)(i), NPDES permits must contain limitations for all pollutants or pollutant 

parameters that are or may be discharged at a level that causes, has the reasonable potential 

to cause, or contribute to an excursion above any State WQS including state narrative criteria 

for water quality. See also CWA section 301(b)(1)(C) and 40 CFR 122.4(d). For this reason, the 

permit includes additional inspection and stabilization requirements for dischargers to waters 

impaired for sediment or a sediment-related parameter, such as total suspended solids (TSS) or 

turbidity, and/or nutrients, including impairments for nitrogen and/or phosphorus. EPA discusses 

the purpose of these requirements in greater detail in section VIII.2.2 of the 2012 CGP Fact Sheet. 

As discussed in that section, the inspection requirements enhance the permittee’s ability to find 

and correct problems before a discharge of pollutants occurs, and the stabilization requirements 
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restrict the amount of time that areas exposed during construction on sites that discharge to 

sediment or nutrient-impaired waters are left unstabilized. 

One commenter asserts that EPA should rely on its TMDL program to protect impaired 

waterbodies noting that the program enables the States readily to require NPDES stormwater 

permittees to comply with appropriate TMDLs, which may include numeric benchmarks, in 

addition to stringent controls if these permittees discharge pollutants to waters impaired for 

those pollutants. EPA has included additional requirements for permittees discharging to 

impaired waters for the reasons discussed in the previous paragraph. For the comment on 

States, EPA agrees that States may establish additional requirements. See Part 3.2.2.3. 

EPA received comment suggesting that the permit’s water quality effluent limitations should only 

apply to direct discharges to waters within a mile of a site; otherwise, a facility’s first receiving 

water may be miles away and not be a direct discharge and therefore the discharge would 

have no possible impacts on that receiving water. EPA disagrees with the suggestion to limit 

water quality-based effluent limitations to sites discharging to impaired waters within one mile of 

a site. If a site is discharging into an impaired water, the distance between the site and the 

water is irrelevant because the discharge, by definition, is introducing pollutants into a surface 

water. If a discharge of pollutants to waters of the U.S. does not exist, the requirement does not 

apply, nor is permit coverage needed. 

Discharges to Storm Sewers 

EPA received comment on the proposed provision establishing a linkage between discharges 

that enter a storm sewer system to the waters to which those storm sewers ultimately discharge. 

The 2012 CGP includes language indicating that "for discharges that enter a storm sewer system 

prior to discharge, the first surface water to which you discharge is the waterbody that receives 

the stormwater discharge from the storm sewer system." The commenter asserts that this 

provision redefines the point of discharge, that EPA is expanding its control via this provision, and 

that it is impossible for EPA to determine the separate or distinct impact of any one discharge 

into storm water sewer systems. 

EPA disagrees that it is redefining the point of discharge or expanding control via the 2012 CGP. 

The regulatory requirements apply to the discharges of pollutants from the construction site to 

surface waters, notwithstanding any conduit or conveyance carrying such discharge between 

the site and the surface water. Also, the regulatory requirement subjecting industrial stormwater 

discharges (including construction site discharges from construction activity of five acres or 

more) to NPDES permits applies, regardless of whether these discharges are to a municipal 

separate storm sewer system (MS4). See 40 CFR 122.26(a)(4); 55 Fed. Reg. 47990, 48006 (Nov. 16, 

1990) ("Today's rule requires [all operators of industrial stormwater] discharges through municipal 

separate storm sewer systems to apply for an individual permit, apply as part of a group 

application, or seek coverage under a promulgated general permit for storm water discharges 

associated with industrial activity."). EPA also notes that the 2008 CGP provided that it 

“authorizes stormwater discharges...where those storm water discharges enter surface waters of 

the United States or a municipal separate storm sewer system (MS4) leading to surface waters of 

the United States subject to the conditions set forth in this permit” (Part 1.1) and that it “does not

authorize discharges that...will cause...or contribute to an excursion above any applicable 

water quality standard” (Part 1.3.C.4). The 2008 CGP also established that permittees “are not 

eligible for coverage under this permit for discharges of pollutants of concern to waters for which 

there is a total maximum daily load (TMDL) established or approved by EPA unless [the 

permittee] implement[s] measures or controls that are consistent with the assumptions and 

requirements of such TMDL.” (Part 1.3.C.5.a). Thus, the 2008 CGP already covered discharges to 

MS4s that lead to surface waters and required that such discharges not cause or contribute to 

excursions of water quality standards and be consistent with TMDL assumptions . Consistent with 
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the 2008 CGP, the 2012 CGP covers discharges to storm sewer systems, including MS4s, that 

ultimately discharge to surface waters. 

For the comment on the possibility of determining separate or distinct impacts, EPA agrees that 

quantifying the impact on a receiving water of an individual discharge that first passes through 

an MS4 may be difficult. The extent to which EPA, states, or other authorities will be able to 

determine the separate or distinct impact of any one discharge will depend on the magnitude 

and nature of a particular discharge, the size and complexity of the MS4, and available 

modeling capabilities. However, the 2012 CGP does not require permittees to determine the 

separate or distinct impacts. Rather, the permit requires operators to determine whether they 

discharge to impaired waters, be it directly or through a storm sewer system. An untreated 

stormwater discharge passing through a storm sewer system can contribute a pollutant load 

including sediments and sediment-related parameters, such as total suspended solids (TSS) or 

turbidity, and/or nutrients, including nitrogen and/or phosphorus, to receiving waters and 

contribute to water quality impairments. EPA is requiring additional protections for all sites that 

discharge to sensitive waters (including impaired waters as well as Tier 2, Tier 2.5, and Tier 3 

waters) to minimize the potential that this discharge will contribute to an excursion above water 

quality standards. See section VIII.2 of the 2012 CGP Fact Sheet for a detailed discussion on the 

requirements and their purposes. 

For the comment on establishment of a water quality-based effluent limitation for stormwater 

discharged into sewer systems if those systems eventually drain into impaired waterbodies, see 

above. Also, to the extent that the comment relates to numeric turbidity limits or benchmark 

monitoring, EPA notes that the 2012 CGP does not include numeric turbidity limits or benchmark 

monitoring requirements. 

EPA also received comment asserting that discharges into a storm sewer prior to discharge 

should be regulated in a manner that accounts for the presence of other pollutant sources that 

discharge to the system. The commenter also suggested that discharges should be regulated in 

a manner that accounts for whether the system is subject to an MS4 permit and asserted that 

the application of additional requirements in urban storm sewer locations has the potential to 

contradict growth management goals with little or no water quality benefit and that EPA’s 

impervious surface data should be made more accurate before additional urban TMDL 

requirements are imposed through the permit. For the comment on accounting for other 

pollutant sources, EPA believes the issue is moot given that the proposed benchmark monitoring 

requirements are not included in the final permit. The permit does not include other provisions 

that would require the quantification of pollutant loads from the site. For the comment on MS4 

permits, EPA notes that, for the areas covered by the 2012 CGP, EPA regions serve as the 

permitting authority, and discharges covered under this permit must comply with the terms of 

the permit. To the extent that additional protections are required by local MS4s, then EPA agrees 

that those additional requirements must be met. For the comment on contrasting growth 

management goals with little or no water quality benefit, EPA disagrees and directs the 

commenter to the economic analyses developed in support of the C&D Rule on which the 2012 

CGP is based. See http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm. 

Required use of GI and LID 

EPA received comments suggesting that the Agency require the use of green infrastructure and 

low-impact development, particularly at sites discharging to impaired or sensitive waters. As an 

advocate of green infrastructure and low-impact development, EPA appreciates these 

comments and notes that the Agency encourages the use of green infrastructure and lowimpact development. However, EPA crafted the non-numeric effluent limits in the C&D rule on 

which the 2012 CGP is based to allow flexibility in how the permitting authority implements these 

requirements in permits. See 74 FR 63016. As an example, 40 CFR 450.21(a)(5) requires 

construction operators to design, install, and maintain controls to “minimize sediment discharges 
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from the site.” EPA notes that the permit does allow for the Agency to require corrective action 

and/or additional stormwater controls if the stormwater controls that the permittee has installed 

and is maintaining are not effective enough for the discharge to meet applicable water quality 

standards (See Parts 3 and 5.2.1). 

ESA-Related Comment 

Commenter encourages EPA to consult with the Fish and Wildlife Service and to reach an 

understanding of how much, if any, additional sediment or nutrient loading is compatible with 

maintaining habitats critical for the survival of imperiled species. Commenter points out that in 

some cases, any additional pollutant loading may not be compatible with protecting critical 

habitats and these imperiled species and that in such cases developers should meet a higher 

standard of water quality protection for those projects that might impact designated critical 

habitat. EPA has consulted with the Fish and Wildlife Service in developing the 2012 CGP. See 

also discussion on additional controls in this section (Response 4.1). 

 
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Comment Response Essay 5 Inspections 

Response 5.1 Inspections

Persons Responsible for Inspecting Site 

EPA received a comment that EPA should allow the permittee to identify that staff are qualified 

by a state/municipality and have received inspection certifications to ensure qualified persons 

are on staff. EPA notes that if personnel have received a construction site inspection 

certification, this should be noted in Part 7.2.12.1 of the SWPPP.

Frequency of Inspections 

EPA received numerous comments that disagreed with the proposed inspection frequency 

requirements in the draft permit of once every 14 calendar days and within 24 hours of the end 

of a storm event of 0.25 inches or greater and within 24 hours of a discharge generated by 

snowmelt. 

Many of the comments suggested that the proposed requirements were overly complicated 

and that the increased number of inspections would cause a burden and increase costs. Some 

commenters suggested that the increased inspections would provide little to no environmental 

benefit. One commenter noted that an inspection requirement not tied to storm events would 

be easier to comply with. Another commenter noted that requiring all sites to inspect after 

qualifying storm events will be difficult when a project outsources inspections to a consultant.

Many commenters also specifically disagreed with EPA’s proposal to reduce the storm event 

inspection trigger from 0.5 inches to 0.25 inches. The comments are summarized as follows: 

• The requirement to inspect after 0.25 inch storm event is excessive. Reducing the 

inspection storm event trigger to 0.25 inches will significantly increase the frequency of 

inspections during rain events, increasing the costs. 

• A 0.25 inch rain event will frequently result in no discharge in many locations, and does 

not apply well in the arid west. 

• It takes at least 0.5 inches of rainfall to cause enough damage to stabilization devices to 

necessitate a corrective action.

• Quantifying the storm event in inches doesn’t account for regional variation. 

Many commenters suggested modifications to EPA’s proposed inspection frequency 

requirements. These suggestions are summarized as follows: 

• Retain the inspection frequencies in the 2008 CGP. The choice of inspection frequency 

provided in the 2008 CGP was adequate and provided needed flexibility. 

• The requirement should be revised to allow inspections once every 7 days, with no 

additional requirements for storm events.

• The inspection frequency should be once every two weeks or once every 15 calendar 

days to encourage permittees to complete an inspection on the first working day every 

two weeks. 

• The frequency of inspection requirements should be simplified by using measurable 

discharge as the trigger for site inspection. 

• The most effective inspection program is to conduct weekly scheduled inspections of 

every site, with discharge quality observations of every outfall. Sites that drain to impaired 

waters should be inspected twice per week, with 48 to 72 minimum hours between 

inspections. 
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• Increase the post-discharge inspection time period to 48 hours to provide a broader 

window to complete the inspection.

• Modify the inspection requirements to once per week for sites that do not drain to 

impaired waterways, and twice per week for sites that do discharge to impaired 

waterways. 

• Retain a 0.5 inch storm event inspection trigger from the 2008 CGP.

• The storm event inspection frequency trigger should be increased to 0.75 inches or 

should be identified by the various EPA regions based on rainfall patterns within their 

respective jurisdictions.

• Apply the 0.25 inch storm trigger only to sites that are particularly vulnerable to erosion.

EPA appreciates all of the comments and suggested modifications on the proposed inspection 

frequency requirements. EPA notes that, after reviewing the comments, it has retained a similar 

inspection frequency to the 2008 CGP. The final CGP requires inspections either (1) At least once 

every 7 calendar days; or (2) Once every 14 days and within 24 hours of the occurrence of a 

storm event of 0.25 inches or greater. EPA believes that providing the choice between these 

inspection frequencies will alleviate many of the concerns expressed by commenters about the 

storm event trigger inspection requirements. 

With regard to the concerns expressed about reducing the inspection trigger to storm events of 

0.25 inches, EPA maintains, as described in Part IX.1.2 of the fact sheet, that the 0.5 inch 

threshold in the 2008 CGP accounted for an inadequate number of storms, thereby undermining 

the extent to which inspections would be achieving the type of performance evaluation that 

was intended under the 2008 CGP. Notably, a 0.5 inch storm accounted for only approximately 

14 percent of storms in New Hampshire, 2 percent of storms in Idaho, and 11 percent of storms in 

New Mexico. In contrast, a 0.25 inch storm accounts for approximately 24 percent of storms in 

New Hampshire, 10 percent of storms in Idaho, and 10 percent of storms in New Mexico. EPA 

believes that storms with rainfall totals between 0.25 and 0.5 inches have the potential to 

produce discharges of stormwater that could lead to discharges of pollutants to surface waters, 

particularly if stormwater controls are not functioning effectively. While EPA recognizes the 

concern of some commenters that a 0.25 inch storm will not always produce a discharge, EPA 

does not believe that site inspections should necessarily be linked to discharge-generating 

events. The main purpose of the inspection is to catch problems on the site before a discharge 

of pollutants occurs. Therefore, EPA has retained the 0.25 inch storm event as the inspection 

trigger in the final permit. However, as noted above, EPA believes that concerns about the 0.25 

inch storm event trigger will be alleviated by the fact that the final permit provides permittees 

the option to elect to conduct weekly inspections, allowing permittees to avoid the storm event 

inspection requirements. 

On the contrary, some commenters suggested that EPA require a more stringent inspection 

frequency than proposed in the draft permit. EPA appreciates the suggestions, but believes that 

the inspection requirements in the permit are adequate to ensure that maintenance and 

corrective actions occur promptly, and believes that further increasing the frequency of 

inspections would be overly burdensome for permittees. 

Many commenters expressed concern with the proposed requirement that sites conduct 

inspections within 24 hours of a discharge generated by snowmelt. These concerns are 

summarized as follows:

• Snowmelt events often have no potential for erosion. The inspection requirements for 

snowmelt will require daily inspections whenever temperatures exceed 32° F. In some 

areas, this requirement could require daily inspections for months, which would be 
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burdensome. EPA should instead only require inspections for snowmelt that has the 

potential to cause erosion. 

• It is difficult to conduct inspections during snowmelt conditions in remote utility corridors 

where active construction activities are not actively occurring. EPA should remove the 

requirement to inspect during snowmelt conditions if a project is stabilized or inactive. 

• The permit does not mention snowmelt generating a multiple day discharge, which is 

likely to occur in areas with significant snow accumulations that take weeks or months to 

melt off. 

• It is unclear how one determines that a discharge has been caused by snowmelt.

EPA notes that, in response to the comments on the proposed inspection requirements 

regarding snowmelt, it has removed the requirement to inspect after discharges caused by 

snowmelt. EPA believes this modification addresses the concerns of the commenters expressed 

above. 

One commenter requested that EPA describe the significance of adopting 0.25 inches as the 

trigger for storm event inspections and for removing the option to inspect once every 7 days, as 

proposed. EPA notes that its intention in using 0.25 inches as the trigger for storm event 

inspections and in removing the option to inspect once every 7 days was to increase the 

number of inspections occurring at sites covered under the permit, thereby improving the ability 

for construction sites to identify any problems on the site and to take corrective action. However, 

after reviewing the comments, EPA believes that requiring all sites to inspect after a storm event 

of 0.25 inches would be burdensome. Therefore, to provide needed flexibility, EPA has modified 

the requirements in the final permit to allow permittees site inspection frequency options, as 

described above. 

One commenter indicated that the different inspection frequency requirements throughout the 

permit will complicate inspection tracking and records management, and suggested that EPA 

streamline and simplify the requirements. EPA notes that in the final permit, EPA has moved all of 

the inspections requirements into Part 4, which EPA believes will provide clarity to permittees 

about what the different inspection requirements apply. In the final permit, only sites discharging 

to sensitive waters are subject to different inspection frequency timelines. See Part 4.1.3. 

Several commenters requested that EPA clarify the concept of a “storm event” and clearly 

define what a storm event of 0.25 inches is. EPA notes that “storm event” is defined in Appendix 

A of the permit as “a precipitation event that results in a measurable amount of precipitation.” 

Therefore, EPA clarifies that a storm event of 0.25 is one that produces 0.25 inches of 

precipitation. The commenter also requested that EPA clarify if inspections are required after a 

0.25 inch storm event, after a discharge event, or after both. EPA clarifies that in the final permit,

if the permittee elects to conduct inspections in accordance with the inspection schedule in 

Part 4.1.2.2, inspections are required within 24 hours of the occurrence of a storm event of 0.25 

inches or greater, regardless of whether or not a discharge has occurred. As further clarified the 

permit, this means that the permittee must conduct their inspection within 24 hours once a storm 

event has produced 0.25 inches, even if the storm event is still occurring, regardless of whether a 

discharge has occurred. 

A commenter requested clarification on how a permittee will determine whether a 0.25 inch 

storm event has occurred. EPA notes that the final permit requires permittees electing to 

conduct inspections in accordance with the inspection schedule in Part 4.1.2.2 to either keep a 

properly maintained rain gauge on the site, or to obtain the storm event information from a 

weather station that is representative of the site’s location, in order to determine whether a 0.25 

inch storm event has occurred. 
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EPA received comments requesting clarification on when an inspection would be required 

during multiple day storm events. EPA has provided clarification on what is expected during 

multiple day storm events in the final permit. Part 4.1.2 notes that if “...there is a storm event at 

the site that continues for multiple days, and each day of the storm produces 0.25 inches or 

more of rain, the permittee is required to conduct an inspection within 24 hours of the first day of 

the storm and within 24 hours after the end of the storm.” EPA clarifies that the end of the storm 

during a multiple day storm event would be the last day of consecutive 0.25 inch daily storm 

events. A commenter questioned what is required if a storm event ends but a discharge 

continues more than 24 hours after the storm event ends. EPA clarifies that, if the permittee has 

elected to conduct inspections in accordance with Part 4.1.2.2, as long as they conduct their 

required inspection within 24 hours after the end of the 0.25 inch storm event, there are no 

further inspection requirements even if the discharge continues. However, EPA encourages 

permittees to monitor conditions on their site outside of their normal inspection schedule to 

ensure that their BMPs remain in effective operating condition, especially while the site is 

discharging. The commenter also questioned how an inspector will know if the project had a 

multiple day storm event without the requirement to conduct a daily inspection. EPA clarifies 

that if a permittee has elected to conduct inspections in accordance with Part 4.1.2.2, they must 

keep a record of rainfall occurrences, which will inform them of whether an inspection is 

required. See Part 4.1.7.1d. 

One commenter suggested the storm event inspection requirements to be redundant for 

pipelines projects with preexisting BMPs, and noted that inspecting within 24 hours of a rainfall 

event will be difficult because personnel are not typically scheduled on days of expected 

rainfall, and personnel are not scheduled on weekends. EPA disagrees that the inspection 

requirements are redundant, and conversely believes that they are necessary in order for 

permittees to ensure that their BMPs are properly maintained and operating effectively. EPA also 

clarifies that the permit only requires inspections to be conducted during the project’s normal 

working hours. So, if a 0.25 inch storm event occurs on a Saturday, and work is not scheduled 

until Monday, EPA would not expect an inspection to be conducted on that site until Monday. 

Some commenters noted confusion about whether the requirements in the proposed permit 

that apply “during discharge conditions” are in addition to the proposed requirement to inspect 

within 24 hours of a 0.25 inch storm event. One commenter suggested that EPA remove the 

requirements that apply during discharge conditions. EPA clarifies that in the proposed permit, it 

was EPA’s intention that during the regular site inspections, if the site is actively discharging, the

permittee would be required to comply with the specific requirements that apply during 

discharge conditions, in addition to the other inspection requirements. EPA notes that within 24 

hours of a 0.25 inch storm event, the site may not be discharging; therefore, EPA disagrees that 

these areas would already be observed during a normal inspection, as suggested by a 

commenter. In the final permit EPA has clarified this requirement by specifying the additional 

inspection requirements that apply only “if a discharge is occurring during your inspection.” See 

Part 4.1.6.6. To further clarify, if during an inspection a discharge is occurring, permittees are 

responsible for complying with all of the requirements in Part 4.1.6. If a discharge is not occurring 

during the inspection, the requirements in Part 4.1.6.6 do not apply. 

One commenter noted that the proposed inspection frequencies are not practicable, 

especially where active construction is complete. EPA notes that it provides flexibility in areas 

where active construction is complete and where stabilization has been implemented. For these 

areas, permittees may reduce the frequency of inspection to once per month. See Part 4.1.4.1. 

For more information, see the comment response essay “Reductions in Inspection Frequency” 

below. 

Increased Inspection Frequency for Sites Discharging to Sensitive Waters 
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EPA received many comments that disagreed with the proposed requirement that sites 

discharging to sensitive waters conduct more frequent site inspections. 

One commenter noted that the different inspection frequency requirements on a site could 

cause confusion as to what the requirements apply in different areas of the site. The commenter 

also noted the difficulty of making a determination of whether a site discharges to a water of 

the U.S. and whether that water is impaired. EPA recognizes that certain sites will have portions 

that discharge to impaired waters and portions that do not discharge to impaired waters, and 

understands the concern about potential confusion caused by different inspection frequency 

requirements on the site. The final permit requires, for any portion of a site that discharges to 

sensitive waters (i.e., sediment or nutrient-impaired waters or waters identified as Tier 2, Tier 2.5, or 

Tier 3), that inspections be conducted once every 7 days and within 24 hours of the occurrence 

of a storm event of 0.25 inches or greater. EPA maintains that the increased inspection 

frequency requirements for sites discharging to impaired waters will enhance a permittee’s 

ability to find and correct problems before a discharge of pollutants occur, and are necessary 

to ensure that discharges from sites discharging to impaired waters meet water quality 

standards. EPA notes that, if a permittee is concerned about the potential for confusion caused 

by the different inspection frequency requirements on their site, the permittee has the option of 

choosing to comply with the more frequent inspection requirement on the entirety of the site. 

EPA also notes that it understands that sites may have difficulty determining the waters to which 

they discharge and their impairment statuses. Accordingly, EPA notes that it will make available 

an electronic mapping tool that a permittee can access within the eNOI system that helps them 

to determine the waters to which they discharge and whether the waters are impaired. 

Many commenters specifically disagreed with the proposed requirement that sites discharging 

to impaired waters conduct daily visual examinations. The following summarizes their comments: 

• Stormwater controls often do not require maintenance or need to be replaced or 

repaired even on a weekly basis. Many sites already perform BMP maintenance daily, so 

this shouldn’t be a permit requirement. Daily visual inspections are not necessary 

everyday because wet weather events do not occur every day. This is particularly true in 

arid areas. It would be difficult to determine whether stormwater controls are working as 

intended if a wet weather event has not occurred. 

• There are periods where activities on the site do not require personnel on a daily basis 

and weather conditions present little risk of discharge. 

• A daily visual exam does not have any different result from weekly inspections. The 

weekly and/or post-discharge inspections are sufficient to address any issues that could 

arise. 

• The requirement to inspect daily would be a disincentive for using controls that are suited 

for extended use and that require decreased maintenance. 

• Daily inspections would overburden personnel, particularly for large, irregularly shaped 

sites with long perimeters and for remote sites where little construction is occurring. For 

some sites, the requirement would require a full-time inspection position, which would 

add undue complexity and would be unreasonable. 

• Daily visual examinations are also not practicable for long linear projects where it could 

take a day to complete the inspection. A daily visual examination would be particularly 

onerous for linear projects with extreme terrain. Certain linear projects are not significant 

sources of pollutant loadings (e.g., linear communications projects), and more frequent 

inspections could cause further disturbance and would be counterproductive. Instead, 

linear projects should only be subject to biweekly inspection requirements and be 

allowed to perform representative inspections. 
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Commenters had several suggestions for modifying the inspection frequency requirements for 

discharges to impaired waters in the final permit, including: 

• The inspection frequency requirements should be the same as those specified for sites 

not discharging to impaired waters. 

• A visual examination should only be required prior to predicted storm events or after 

storms events. 

• Inspections should be triggered where the National Weather Service predicts that the 

probability of precipitation is greater than 50 percent. 

• Weekly inspections are sufficient. 

• The daily visual inspection requirement should only apply in the areas where active 

construction is occurring 

• It would be more reasonable to require inspections within 48 hours of a storm event to 

allow a broader window to complete the inspection. 

• The permit should allow each discharger to determine the specific frequency and 

location of visual inspections appropriate for their location and document this in the 

SWPPP. 

• Instead of requiring inspections after a storm event, it would be more practical to require 

inspections at regularly scheduled times so that arrangements can be made to have 

appropriate personnel on site and repairs can be made. 

EPA also notes that several commenters supported the daily visual inspection requirements, 

citing the importance of the requirement near waters with TMDLS. A commenter also noted that 

daily visual examinations are the only way to ensure all practices are properly maintained and 

are functioning, and suggested that they be required for all sites. 

EPA appreciates the comments expressed about the proposed increased inspection frequency 

requirement in the draft permit and the suggestions for what the inspection frequency 

requirements should be. After reviewing the comments, EPA agrees that daily visual 

examinations may not be practicable for many sites discharging to impaired waters, and 

therefore EPA has removed this requirement from the final permit. However, as noted above, 

EPA believes that the increased inspection frequency requirements for sites discharging to 

impaired waters are necessary to ensure that discharges from sites discharging to sensitive 

waters meet water quality standards. Therefore, EPA has retained the requirement in the final 

permit that sites discharging to sensitive waters inspect more frequently than others sites. In the 

final CGP, sites discharging to impaired waters are required to inspect at least once every 7 days 

and within 24 hours of a storm event of 0.25 inches or greater. EPA believes that by removing the 

requirement to conduct a daily visual examination, it has addressed the majority of concerns 

about the increased inspection frequency requirements, and that the inspection frequency 

requirements in the final permit are practicable for sites discharging to sensitive waters. EPA also 

notes that there remains the opportunity for sites discharging to impaired waters to comply with 

more flexible inspection frequency requirements if areas of the site are stabilized, are frozen, or if

the project occurs in arid or semi-arid areas, as described below. 

Several commenters requested clarifications on the proposed increased inspection frequency 

requirements for discharges to sensitive waters. One commenter noted that it was unclear 

whether the daily visual examination is required to be recorded. EPA notes that because this 

requirement is no longer in the final permit, permittees are not required to keep records of daily 

visual inspections. EPA clarifies, however, that all sites are required to keep records of their 

inspections in accordance with Part 4.1.7. 
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One commenter noted that the proposed language that the increased inspection frequency 

requirements apply to “certain portions of your site” was unclear. EPA agrees that this language 

was not clear, and has clarified the language in the final permit. The final permit applies the 

impaired waters inspection frequency requirements to “[a]ny portion of the site that discharges 

to a sediment or nutrient-impaired water ... or to a water that is identified by your state, tribe, or 

EPA as Tier 2, Tier 2.5, or Tier 3 for antidegradation purposes...” 

A commenter requested EPA clarify who is responsible for daily visual inspections and how 

should be reported. Some commenters suggested that the contractor be responsible for daily 

visual examinations. EPA again notes that daily visual examinations are no longer required in the 

permit. However, it is worth clarifying that the permit requires that the person(s) inspecting sites 

be a construction site staff person or a third party, and that they be “qualified”. EPA clarifies in 

the permit that a “qualified person” is a person knowledgeable in the principles and practice of 

erosion and sediment controls and pollution prevention, who possesses the skills to assess 

conditions at the construction site that could impact stormwater quality, and the skills to assess 

the effectiveness of any stormwater controls selected to meet the requirements of the permit. 

With regard to how inspections are reported, EPA again points out the permittees are required 

to report inspections in accordance with Part 4.1.7. 

Several commenters noted that it is unclear which inspection frequency requirements apply for 

sites eligible for reduced inspection frequency requirements and increased inspection frequency 

requirements. A commenter suggested that the allowance to reduce inspections supersede the 

increased inspection frequency requirements. EPA has clarified which requirements apply in this 

situation in comment response essay “Reductions in Inspection Frequency” below. 

A commenter requested that EPA clarify if the daily visual inspection requirements apply only 

during work days or if they apply every day of the week. EPA again notes the daily visual 

examination requirement does not apply in the final permit, but believes it is worth clarifying that 

inspections are only required during the project’s normal working hours. If a site’s normal working 

hours do not fall on a Saturday or Sunday, then the site would not be responsible for conducting 

inspections on Saturdays or Sundays. As an example, if a 0.25 inch storm event occurs on the 

Saturday, and that Saturday is not part of the site’s normal working hours, then an inspection 

would not be required until the next normal working day. 

Reductions in Inspection Frequency 

EPA received several comments on the proposed requirements for reductions in inspection 

frequencies. 

Commenters requested that EPA clarify whether the reduced inspection frequencies replace 

the standard inspection frequency requirements, or if post-storm event inspections would still be 

required. EPA clarifies if a permittee is qualified to conduct reduced inspections in accordance 

with Part 4.1.4 of the final permit, then the reduced inspection frequency replaces the standard 

inspection frequency requirements in Part 4.1.2 of the permit. 

Commenters requested that EPA clarify which inspection frequency requirements apply if a site 

is eligible for a reduced inspection frequency, but is also subject to the inspection frequency 

requirements for sensitive waters. EPA recognizes this discrepancy in the proposed permit, and in 

the final permit includes the following note: “If you qualify for any of the reduced inspection 

frequencies in Part 4.1.4, you may conduct inspections in accordance with Part 4.1.4 for any 

portion of your site that discharges to a sensitive water.” See Part 4.1.3. To clarify, if a portion of a 

site discharges to a sensitive water, but that portion of the site has also been stabilized in 

accordance with Part 2.2.1.2a and Part 2.2.1.2b, the permittee can conduct inspections at the 

reduced frequency in Part 4.1.4.1. However, if a different portion of the site also discharges to an 

impaired water, and that portion of the site has not been stabilized in accordance with Part 
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2.2.1.2a and Part 2.2.1.2b, then in that portion of the site the permittee must conduct inspections 

at the higher frequency required in Part 4.1.3. 

Several commenters suggested that EPA consider allowing reduced inspections for frozen 

conditions. Upon further reflection, EPA agrees that reduced inspections for frozen conditions are 

justified under certain parameters. EPA notes that the 2008 CGP included reduced inspections 

for winter conditions, as well as a waiver of the inspection requirements for frozen conditions 

where land disturbances have been suspended. In the 2012 permit, EPA has made modifications 

to the inspection frequency requirements that apply during frozen conditions from the 2008 

CGP. The 2012 CGP allows sites that have temporarily suspended earth-disturbing activities due 

to frozen conditions to temporarily suspend their inspections until thawing conditions, and sites 

that are actively conducting earth-disturbing activities during frozen conditions to reduce their 

inspection frequencies to once per month. EPA believes the reduced inspection frequency 

requirements for frozen conditions in the 2012 CGP provide needed flexibility to sites that have 

these conditions, but provide a greater assurance that any problems on the site will be identified 

expeditiously. 

EPA received several comments specific to the reduced inspection frequencies for stabilized 

areas. Once commenter suggested that a site should be eligible for reduced inspections if it has 

met the criteria for having completed the installation of stabilization. EPA agrees with this 

suggestion, and it was EPA’s intention that sites that have completed the installation of 

stabilization measures be eligible for the reduced inspection frequency. To provide more clarity, 

EPA has modified the requirement so that sites that complete the installation of stabilization as 

specified in Part 2.2.1.2a and 2.2.1.2b are eligible for reduced inspections. 

One commenter indicated that the reduction in inspection frequency to once a month would 

still be burdensome for long-term linear projects that have little potential for erosion, and 

suggested that EPA consider less burdensome inspection requirements for linear projects, 

especially given that local permits already require inspections after storm events. EPA notes that, 

although there may be some overlap with state or local inspection requirements, EPA does not 

believe that these requirements should supersede EPA’s inspection requirements. A project that 

has to comply with local inspection requirements can take advantage of this by conducting 

one inspection that counts for both. For example, if a state has a requirement to conduct 

inspections after a 0.25 inch storm, the permittee can conduct one inspection that counts for 

both their state inspection requirement and the CGP’s monthly inspection requirement for 

stabilized areas. Additionally, EPA notes that state and local inspection requirements vary across 

the geographic areas covered under this permit, and therefore EPA cannot take into account 

the fact that some areas already have these inspections in the CGP. EPA maintains that 

inspections are necessary at least once a month in order for permittees to ensure that their 

stabilized areas are working effectively. EPA believes that this requirement presents a minimal 

burden, as it would only require that the permittee visually determine whether the stabilization 

measures are effective. It is particularly important that permittee monitor the vegetative 

stabilization measures to ensure the vegetation is growing in order to meet the final stabilization 

criteria. With regard to the comment that EPA should consider a less burdensome standard for 

linear projects, EPA considered providing more flexible requirements for linear projects, but 

ultimately decided, as described in comment response essay “Inspections on Linear Projects” 

below, that all sites should inspect the areas described in Part 4.1.5 of the final permit so that any

potential problems occurring on areas of disturbance or problems with stormwater controls are 

identified expeditiously. 

EPA received a few comments regarding EPA’s proposed reduced inspection frequency 

requirements for sites in arid and semi-arid areas. One commenter indicated that, because in 

some arid areas precipitation only occurs during a small window of time, there is no reason to 

conduct any inspections at all during the time. The commenter suggested that EPA modify the 
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provision to allow “monthly inspections during the rainy season after construction is completed in 

arid areas with average annual precipitation of less than 10 inches.” EPA disagrees with this 

suggestion. Although significant precipitation may not be probable during the dry season, 

throughout the year there always remains the chance that precipitation events may occur that 

could result in stormwater discharges from construction sites, and therefore, it is essential that 

sites are inspected regularly to ensure that erosion and sediment controls are properly 

maintained and in effective operating condition. Therefore, EPA believes that inspections should 

occur at least monthly in areas where rain is not expected so that operators are made aware of 

any potential problems before they result in pollutant discharges. In contrast, one commenter 

noted that reducing inspections in arid and semi-arid areas to once per month is insufficient 

because it does not take into other pollution sources that commonly occur on construction sites. 

Another commenter suggested that EPA require post-storm event inspections for arid and semiarid areas. EPA notes that in the final permit, EPA has included additional criteria for reducing 

inspections in arid and semi-arid areas by requiring that construction occur during the seasonally 

dry period in order for a site to qualify for this reduced inspection frequency. In addition, EPA has 

added a post storm-event inspection requirement. EPA believes that these additions to the 

provision address the concerns of commenters by ensuring that inspections occur in a timely 

manner during conditions that are more likely to produce discharge events. 

Areas that Need to be Inspected 

EPA received comments regarding the requirement for areas that have been “cleared, graded, 

or excavated” to be inspected. Commenters noted that areas cleared for overhead utility 

construction often do not meet the definition of land disturbance, and recommended that EPA 

exclude these areas from the inspection requirements by refining the wording of the requirement 

to state that “all areas that have been cleared and grubbed, graded, or excavated need to be 

inspected.” EPA disagrees with this suggestion. EPA believes that all areas that meet the 

regulatory definition of construction activity at 40 CFR §122.26(b)(14)(x) and (b)(15) should be 

subject to the inspection requirements, which is consistent with the requirement in Part 4.1.5.1 of 

the final permit that all areas that have been “cleared, graded, or excavated” are to be 

inspected. EPA believes that even minimal disturbances that meet the definition of construction 

activity should be inspected because these areas still have the potential to cause erosion and 

sedimentation, resulting in pollutant discharges. However, EPA believes that the burden caused 

by the inspection of disturbances from clearing right-of-way easements for overhead utility 

construction (as described by commenters) will be minimal, as they will primarily involve making 

sure any stormwater controls installed are operating effectively, checking for any signs of visible 

erosion, and checking for the presence of deposited sediment. Also, as described above, EPA 

notes that flexibility is provided for areas that have been stabilized. EPA believes that this 

flexibility will reduce the frequency of inspections for many projects, thereby reducing the 

burden, especially for certain types of linear projects where disturbances are quickly stabilized. 

Inspection Requirements When No Discharge is Occurring 

EPA received several comments on the proposed inspection requirements that apply where no 

discharge is occurring. Two commenters suggested that EPA remove the word “sufficient” from 

the requirement to “...check for the presence of sediment that is deposited in sufficient 

quantities...” because the word is subjective and will lead to inconsistent enforcement 

determinations. EPA agrees with this comment, and accordingly, EPA has removed this word 

from the final permit. A commenter also suggested that the requirement to check for areas of 

“visible erosion” is subjective, and would already be addressed in the requirements that apply 

during discharge conditions. EPA disagrees with this comment. EPA believes that checking for 

signs of erosion and sedimentation at points of discharge is critical in order to ensure that erosion 

and sediment controls are operating effectively on the site. EPA also believes that permittees 

have a good sense of what constitutes “visible erosion,” and can rely on their best professional 
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judgment regarding whether there are signs of visible erosion and sedimentation. Therefore, EPA 

has retained this requirement in the final permit, but has slightly modified it to state, “At points of 

discharge and, if applicable, the banks of any surface waters flowing within your property 

boundaries or immediately adjacent to your property, check for signs of visible erosion and 

sedimentation (i.e., sediment deposits) that have occurred and are attributable to your 

discharge.” EPA does not believe that this requirement is subjective because it does not require 

that the signs of sedimentation be “sufficient.” 

A commenter suggested that EPA change the requirement to check that all stormwater controls 

are “working as intended to remove pollutants prior to discharge” to instead state “working as 

intended to minimize pollutant discharge” to account for stormwater controls that minimize 

pollutant discharges rather than “remove” pollutants. EPA agrees with this comment. Therefore, 

in the final permit EPA has modified the requirement to state “Check whether all erosion and 

sediment controls and pollution prevention controls are installed, appear to be operational, and 

are working as intended to minimize pollutant discharges. Determine if any controls need to be 

replaced, repaired, or maintained in accordance with Parts 2.1.1.4 and 2.3.2.”

Inspection Requirements During Discharge Conditions 

EPA received several comments on the proposed inspection requirements that apply during 

discharge conditions. One commenter suggested that EPA not separate the requirements that 

apply during discharge conditions from the other inspection requirements. EPA agrees with this, 

and in the final permit combined all of the requirements for inspections into one part. See Part 

4.1.6. 

Some commenters disagreed that discharge quality should be observed during inspections, 

especially given that certain sites under the proposed permit would also be required to conduct 

sampling during discharge conditions. One commenter questioned whether EPA has considered 

the costs of increased inspections under the proposed permit. EPA notes that the burden 

associated with observing discharge points during inspection in the final permit has been 

reduced due to the fact that the final permit does not include requirements for discharge 

sampling and the inspection frequency has been made more flexible (i.e., sites can choose 

whether they will conduct inspections after 0.25 inch storm event). EPA notes that it has taken 

into account the costs of the increased inspections under the permit. This analysis is included in 

the Economic Analysis for the permit which is located on the public docket. The analysis 

concluded that the cost of complying with the inspection requirements in the 2012 permit will 

result in an incremental cost increase to some permittees. EPA estimates that reducing the storm 

event trigger from 0.5 inches to 0.25 inches will result in an increase of 2.3 additional inspections 

annually permit permittee, which amounts to an annual incremental increase of $62 for each 

permittee. EPA maintains that inspecting the visual quality during discharge conditions is 

essential during inspections in order to determine whether stormwater controls on the site are 

operating effectively. Therefore, EPA has retained this requirement in the final permit. EPA notes 

that it did receive support for this requirement from a commenter. 

A commenter requested that EPA clarify whether the permit requires that the discharge from 

each outfall be observed during inspections and the visual quality documented, or instead if 

representative observations are allowed. EPA clarifies that if a discharge is occurring during an 

inspection, the requirement is that all discharge points be observed, and that the visual quality 

of all the discharges be observed and documented. 

Inspections on Linear Projects 

In the draft CGP, EPA requested comment on whether linear construction projects should be 

subject to the same frequency of inspections as other construction sites. EPA received many 

comments on this topic, which are discussed as follows. 
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EPA received a comment that the proposed inspection requirements do not delineate clear 

lines of responsibility among other permitted and non-permitted entities in the same right-of-way, 

which could cause linear utility and pipeline projects to incur unreasonable costs to coordinate 

more management and labor required to document events caused by other operators. EPA 

disagrees with this comment. EPA believes it has made it clear what is required by operators in 

the permit. EPA clarifies that if an operator is responsible for any of the areas described in Part 

4.1.5 of the final permit, then they are the party responsible for conducting inspections in those 

areas. EPA does not believe it would be appropriate for the permit to specify further the 

responsibilities of other permitted and non-permitted entities, and instead believes that 

operators should have the flexibility to determine their permit compliance responsibility 

arrangements. 

Several commenters indicated that the proposed inspection requirements are not always 

practicable for linear projects, and urged EPA to allow for representative inspection 

requirements or a waiver where inspections are infeasible, or only require inspections for areas 

that have likely erosion/sedimentation issues. The specific points raised by commenters are 

summarized as follows: 

• It may be challenging to observe and document the visual quality of the discharge at 

every discharge point due to limited access. It may also be difficult to reach all of the 

discharge points prior to the end of the discharge for some projects. 

• EPA is incorrect in assuming that linear projects are completed in phases. Overhead utility 

construction is often phased in a way that results in small discreet disturbances separated 

by long undisturbed areas. In arid areas, stabilization of disturbed areas may need to be 

postponed until climactic conditions are favorable. Linear projects face challenges with 

traffic and safety issues, restrictive boundaries and rights-of-way, and geographic 

constraints that make it difficult to phase. It is common for work to be performed within 

segments of disturbances concurrently.

• It could take days to complete an inspection of all disturbed areas along the length of 

the project. It is unreasonable to require an inspection within 24 hours of a storm event. 

EPA should allow representative inspections within 24 hours of a storm event. 

• It may be infeasible to inspect the entire length of a linear project at any frequency.

• EPA is incorrect in its assumption that representative inspections would impede the 

proper upkeep of stormwater controls because those controls are independently 

mandated and enforceable under the CGP.

• Inspections along the entire site should only be required “where feasible” to eliminate 

challenges of inspecting long linear projects.

EPA recognizes the potential difficulties projects may face in accessing discharge points and 

disturbed areas of the site during inspections. As described above, EPA has modified the 

inspection frequencies requirements that apply to all sites to allow sites the option of choosing 

either a once a week inspection frequency or a bi-weekly and within 24 hours of a storm event 

inspection frequency. EPA believes that this modification will address many of the concerns 

expressed by commenters about the difficulties in accessing all required inspection areas on 

linear projects, particularly the concerns raised about accessing all discharge points. EPA 

clarifies that the permit does not require the entire length of the site to be inspected. Areas that 

have not been disturbed are not required to be inspected. EPA also clarifies that the 

requirement to document the visual quality of discharges only applies if a discharge is occurring 

during the inspection. If a discharge is not occurring during the inspection, the permit does not 

require discharge points to be inspected. In addition, the permit allows permittees to reduce the 

frequency of inspections on areas of the site that have been stabilized to once per month. EPA 
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believes that this provision provides important flexibility, especially for long, linear projects. 

Although one commenter, as described above, suggested that the reduced inspection 

frequency requirement to once a month would still be burdensome, EPA, as described above, 

disagrees, as it would only require that the permittee quickly assess whether the stabilization 

measures remain effective. Although EPA understands that some linear projects have areas that 

are separated by many miles, EPA maintains its belief that all areas described in Part 4.1.5 of the 

final permit should be inspected on all sites so that any potential problems occurring on areas of 

disturbance or problems with stormwater controls are identified expeditiously. With respect to 

the comment that because the proper upkeep of stormwater controls is already required under 

the permit, EPA is incorrect in assuming that representative inspections would impede the proper 

upkeep of stormwater controls, EPA disagrees. EPA maintains its belief that without regular 

inspections of all areas described in Part 4.1.5, it would be impossible for permittees to detect 

problems that occur and fix any problems before a discharge of pollutants occurs. With respect 

to the comment about the challenges of inspecting linear sites, EPA recognizes that for many 

projects, particularly linear projects in difficult terrain, it may be unsafe to access all areas 

required to be inspected. EPA points out that the permit does not require areas of the site that 

are considered unsafe to inspection personnel to be inspected. 

Despite the comments that disagreed with the proposed requirements, EPA received several 

comments supportive of requiring linear projects to comply with the same inspection 

requirements as other sites. One commenter described that the differences in soil types, 

topography, types of construction activity, and stormwater controls are too great to assume that 

representative monitoring will provide a reasonable assessment of the site. These comments 

provide further support to EPA’s position that it is reasonable to require linear projects to inspect 

at the same frequency as other sites. 

Inspection Report Requirements 

EPA received a comment requesting that EPA clarify the extent to which inspection reporting is 

required by a project that operates on an area in which other non-permit holders are causing 

disturbances. EPA notes that inspection reporting is not required, but clarifies that operators are 

required to keep records of inspections in accordance with Part 4.1.7 of the final permit. With 

regard to the concern about responsibilities among multiple entities on a site, as noted above, 

EPA does not believe it would be appropriate for the permit to specify the responsibilities of 

other permitted and non-permitted entities, and instead believes that operators should have the 

flexibility to determine their permit compliance responsibility arrangements. EPA clarifies that if 

an operator is responsible for the areas described in Part 4.1.5, then they are the party 

responsible for conducting inspections on those areas and keeping records as described in Part 

4.1.7. 

A commenter requested that EPA clarify whether inspection records can be kept electronically, 

and recommended that EPA allow that permittees to store records that are over 6 months old 

electronically as long as they are accessible within 24 hours of an EPA request. EPA confirms that 

records may be kept electronically, but must be: 

• In a format that can be read in a similar manner as a paper record; 

• Legally dependable with no less evidentiary value than their paper equivalent; and 

• Accessible to the inspector during an inspection to the same extent as a paper copy 

stored at the site would be, if the records were stored in paper form. 

Inspections by EPA 

One commenter noted that the proposed permit language allowing other federal, state, or 

local agencies to inspect sites would allow any number of persons or entities to enter where 
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records are kept. The commenter questioned what constitutes a representative of a local 

agency, and whether coordination by a representative is required to review private records. The 

commenter also questioned whether EPA has the authority to grant the power of inspections to 

other agencies. Upon further reflection, EPA has modified this requirement to be consistent with 

EPA’s regulations regarding inspections at 40 CFR § 122.41(i) and EPA’s authority under section 

308 of the CWA. EPA believes this modification addresses the concerns of the commenter. 

A commenter disagreed with the requirement that inspections be conducted “at reasonable 

times”, and suggested that they instead be conducted “during normal business hours”, “during 

projects normal working hours”, or “during the hours of operation specified in the SWPPP.” EPA 

notes that EPA’s regulations at 40 CFR § 122.41(i) provide that EPA may inspect “at reasonable 

times.” Therefore, EPA has retained this language in the final permit.

A commenter noted that inspectors must have appropriate safety training and personal 

protective equipment (PPE) for access to sites (utility line ROWs) and should contact the 

appropriate person named in the NOI. EPA notes that all EPA inspectors will have been provided 

with the training necessary for conducting inspections on construction sites. EPA also notes that 

EPA will communicate with the operator identified on the NOI regarding inspection actions. 

 
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Comment Response Essay 6 Corrective Action 

Response 6.1Corrective Action General

Some commenters had general questions on the corrective action requirements, when 

corrective action is required, deadlines, and recordkeeping requirements. EPA notes that Part 5 

of the 2012 CGP discusses corrective action requirements and the conditions under which 

permittees are required to take corrective action. As discussed in the permit, an operator may 

be required to repair, modify, or replace any stormwater control used at the site; clean up and 

properly dispose of spills, releases, or other deposits; or remedy a permit violation. Part 5 of the 

permit also discusses deadlines and recordkeeping requirements associated with corrective 

action. 

EPA received multiple comments on the relationship between corrective action requirements 

and violations and on the proposed provision explaining that the correction of permit violations 

(e.g., a violation of the numeric turbidity limit, evidence of tracked out sediment, excessively 

muddy discharge, occurrence of a prohibited discharge, exceedance of an applicable water 

quality standard) does not remove the original violation. Commenters asserted that the 

proposed corrective action requirements would expose permittees to unnecessary liabilities and 

enforcement actions. Commenters also suggested that permittees should be given an 

opportunity to make corrections or to modify stormwater controls before a violation is incurred. 

For the comment on the relationship between corrective action requirements and violations, 

EPA discusses in Part I.1 of the 2012 CGP’s Appendix I that any permit noncompliance constitutes 

a violation of the Clean Water Act and is grounds for enforcement action, and in Part 5.1 of the 

2012 CGP that corrective actions include actions taken to remedy a permit violation. 

For the comment on corrective action removing the original violation, EPA maintains that 

correction of an underlying permit violation does not and cannot remove the violation from the 

records. 

EPA disagrees with the comments asserting that the corrective action requirements expose 

permittees to unnecessary liabilities and enforcement actions. Both the corrective action 

requirements and consequences of noncompliance will greatly help to ensure compliance with 

the permit and to protect water quality whenever there is a violation of an underlying permit 

condition. EPA discusses the purpose of the corrective action requirements in section X of the 

2012 CGP Fact Sheet. 

For the comment on providing some opportunity to make corrections before a corrective action 

violation is incurred, EPA notes that the 2012 CGP does include that opportunity. The 

maintenance (Part 2.1.1.4) and inspection (Part 4) requirements give permittees the opportunity 

to identify circumstances or stormwater controls needing correction and to correct them before 

an unauthorized discharge occurs and before a corrective action violation is incurred. However, 

if permittees delay maintenance or inspection or otherwise overlook the need for correction until 

after an underlying permit violation has been incurred, then the corrective action requirements 

in Part 5 are triggered, and the underlying permit violation becomes a part of the record for the 

site. 

EPA also received comment seeking clarification on the difference between corrective action 

and routine maintenance. Commenters sought to better understand in which cases the 

corrective action requirements described in Part 5 (e.g., reports, signatures, recordkeeping) 

would be triggered. For example, some commenters asserted that the completion of routine 

maintenance should not trigger corrective action. EPA generally agrees, and the 2012 CGP 

provides that routine maintenance activities will not always trigger corrective action. The 2012 

CGP requires operators to maintain stormwater controls in effective operating conditions. EPA 

has defined “effective operating condition” in Appendix A, specifying that stormwater controls 
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in effective operating conditions are those that are “implemented and maintained in such a 

manner that [they] are working as designed to minimize pollutant discharges.” Maintenance 

activities that do not disrupt the effectiveness of stormwater controls would not trigger corrective 

action. However, if stormwater controls are no longer working properly or if stormwater controls 

malfunction or fail, then they would trigger requirements for corrective action, including the 

provisions on deadlines, reporting, and recordkeeping. 

For comments on track-out, EPA notes that the 2012 CGP requires operators to minimize trackout and, when track-out does occur, provides operators with the opportunity to remove the 

track-out without incurring a violation if they remove the track-out by the end of the same work 

day in which the track-out occurs or by the end of the next work day if track-out occurs on a 

non-work day. See Part 2.1.2.3 of the 2012 CGP for a description of the requirement and section 

VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the requirement. 

EPA also received comment suggesting that corrective action should be limited to those cases 

in which “unauthorized discharge” to U.S. waters has occurred. EPA notes that the 2012 CGP 

authorizes the discharge of pollutants in accordance with effluent limitations and conditions set 

forth in the 2012 CGP. The corrective action requirements ensure that operators comply with the 

terms of the permit. Protection of receiving waters is dependent on compliance with all of the 

terms of the permit, taken as a whole. As a whole, the terms of the permit help to minimize 

unauthorized discharge. Also, under the terms of the permit, the only discharges that are 

authorized are those that occur while permittees meet the conditions of the permit. As a logical 

consequence, for the permittees to be authorized to discharge, they must meet the conditions 

of the permit. 

If any of the provisions of the permit are not being met, EPA believes that it is important for 

permittees to correct the situation pursuant to deadlines discussed in Part 5.2.1 to ensure that 

waters are protected rather than limiting corrective action to only those cases in which 

“unauthorized discharge” is currently occurring (i.e., those cases in which a permittee has not 

conducted corrective action AND a precipitation event and discharge occurs). Such a 

conservative approach is more protective of water quality protection and is in line with the goals 

of the CWA § 101(a). 

Response 6.2 Reason for Reorganizing

EPA received comment on the organization of the 2012 CGP that the discussion of effluent 

limitation requirements, inspection requirements, and corrective action requirements in separate 

sections of the permit creates redundant requirements, additional burden, and confusion. EPA 

disagrees with these comments and notes that the Agency believes that the reorganization 

presents requirements in a more readable manner to enhance the permittees’ understanding of 

and compliance with the permit’s requirements. However, in response to the comment, EPA has 

reviewed the proposed text, and has made changes to clarify requirements and to remove 

redundancies and/or inconsistencies where necessary or appropriate. EPA discusses the purpose 

of the structure and appearance of the permit in section III of the 2012 CGP Fact Sheet. 

Response 6.3 Water Quality Standards

EPA received comments challenging the immediate enforcement of exceedances of water 

quality standards without giving operators the opportunity to correct the issues. EPA also 

received comment challenging the designation of these exceedances as violations and not 

removing them, even after they have been corrected. Some commenters asserted that EPA 

should not characterize exceedances of water quality standards as a permit violation. Others 

agreed, also asserting that the CGP is inconsistent with the settlement agreement that led to the 

approach used in the MSGP. 

See also discussion above in “Corrective Action General.” See also Response 4.1. 
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EPA also notes that the terms of the referenced settlement agreement committed EPA to public 

noticing and taking comment on certain provisions and EPA fulfilled those terms: those provisions 

were included verbatim in the proposed fact sheet of the MSGP, along with a full explanation of 

the terms of the agreement. The agreement did not commit EPA to including those provisions in 

the final MSGP. EPA fulfilled its obligations under the settlement agreement and the petitioner 

withdrew the litigation. 

The final permit attempts to balance two potentially competing concerns that were also present 

when EPA issued the previous permit – (1) to comply with CWA requirements to include 

limitations as necessary to meet applicable water quality standards, and, at the same time, (2) 

to recognize that EPA, not the permittee (or a third party), has the initial responsibility to 

determine the need for such limits and, if so, what those limits should be. To meet the 

requirements of the CWA, the final permit contains a requirement that the discharge must be 

controlled as necessary to meet applicable water quality standards. At the same time, the 

permit clearly states that EPA expects that compliance with the technology-based limits and 

other conditions in the permit will control discharges as necessary to meet water quality 

standards since these requirements because the permit includes several enhanced protections, 

including provisions to protect impaired and sensitive waters and several new requirements for 

(1) Eligibility for emergency-related construction, (2) XIneligibility for coverage for sites using 

certain treatment chemicals, (3) XIncreased usage of the electronic notice of intent process, (4) 

XSediment and erosion controls, (5) XNatural buffers or alternative controls, (6) XSoil stabilization,

(7), XPollution prevention, (8) XWater quality-based effluent limits, (9) XSite inspections, (10) 

XCorrective action, (11) XStormwater Pollution Prevention Plans, and (11) XPermit termination. 

Nevertheless, EPA notes that if at any time a permittee becomes aware, or EPA determines, that 

a discharge is not being controlled as necessary to meet applicable water quality standards, 

the permittee must take corrective action as required in Part 5.2.1, and document the corrective 

actions as required in Part 5.2.2 and Part 5.4. 

Thus, only if EPA determines or the discharger becomes aware that the discharge causes or 

contributes to an exceedence of standards must the discharger take corrective action to 

ensure that further exceedances do not recur by reviewing and potentially modifying existing 

control measures. This requirement is necessary under the Clean Water Act (CWA) to ensure 

that the permit’s limitations are at least as stringent as applicable water quality standards (CWA 

§301(b)(1)(c) and 40 CFR 122.44(d) and 122.44(d)(1)), and that they ensure a level of water 

quality that is tied to water quality standards (40 CFR 122.44(d)(1)(vii)(A)). Acknowledging that 

this narrative standard has been difficult to apply in the field, EPA also clarifies that it is the 

Agency’s expectation that compliance with the permit will control discharges as necessary to 

meet applicable water quality standards. Where this expectation does not hold true for a 

particular site, and either the permittee becomes aware or EPA determines that discharges from 

the site “causes or contributes to an exceedance of applicable water quality standards”, the 

permittee is required to take corrective actions to eliminate the problem, as required in Part 3.1. 

Additionally, as stated above, EPA may impose additional water quality-based limitations or 

require the permittee to obtain coverage under an individual permit. EPA believes it is 

reasonable to ask this of the discharger where the discharger becomes aware of a problem. 

Response 6.4 Clean-up of Materials Should Not be Limited to Cleanup On-Site

One commenter suggested that cleanup of materials should not be limited to cleanup on-site. 

EPA agrees and notes that the 2012 CGP does not specify on-site or off-site for the requirement 

to clean up and properly dispose of spills, releases, or other deposits to the extent that the 

cleanup relates to the discharge of pollutants from the site. See Parts 2.1.2.3.d, 2.3.3.1.e, and 

2.3.3.3.c of the 2012 CGP for requirements to cleanup materials and sections VII.1.2 and VII.3.3 of 

the 2012 CGP Fact Sheet for discussion on the purpose of these requirements. 

Response 6.5 Corrective Action if Discharge Appears Excessively Muddy or Cloudy
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EPA received comment asserting that the proposed requirement to perform corrective action if 

stormwater discharges appear excessively muddy or cloudy was unclear, subjective, and may 

not have any negative impact depending on the receiving stream. Another commenter 

asserted that the appearance of stormwater discharge is subjective. EPA notes that the final 

2012 CGP does not specify that corrective action is required if stormwater discharges appear 

excessively muddy or cloudy. However, the permit does require inspectors to observe and 

document the visual quality of any discharge present during inspection and to take note of the 

characteristics of the stormwater discharge including color, odor, floating, settled, or suspended 

solids, foam, oil sheen, and other obvious indicators of stormwater pollutants. See Part 4.1.6.6.b 

of the 2012 CGP for a description of the requirement and section IX.1.6 of the 2012 CGP Fact 

Sheet for a discussion on the purpose of the requirement. Also, the 2012 CGP requires stormwater 

controls to be maintained in effective operating conditions (2.1.1.4..a) and to repair stormwater 

controls. Part 2.1.1.4.b explains that if a permittee finds that controls need to be replaced, 

repaired, or maintained, the permittee must make the necessary repairs or modifications in 

accordance with the following: 1) Initiate work to fix the problem immediately after discovering 

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

not require significant repair or replacement, or if the problem can be corrected through routine 

maintenance and 2) when installation of a new pollution prevention control or a significant 

repair is needed, permittee must install the new or modified control and make it operational, or 

complete the repair, by no later than 7 calendar days from the time of discovery where feasible. 

If it is infeasible to complete the installation or repair within 7 calendar days, the permittee must 

document in his or her records why it is infeasible and document the schedule for installing the 

stormwater control(s) and making it operational as soon as practicable after the 7-day 

timeframe. While the 2012 CGP does not explicitly describe excessively muddy or cloudy water 

as a violation, EPA notes that it may be an indication that a violation has occurred to the extent 

that a stormwater control has failed, water quality standards are being exceeded, or an 

unauthorized discharge is occurring. 

Response 6.6 Numeric Turbidity Limits

For corrective action comments related to numeric turbidity limits, EPA notes that the 2012 CGP 

does not include numeric turbidity limits. The C&D rule also included a numeric limit for turbidity. 

However, the Agency has issued a stay for the numeric limit for turbidity so that the limit can be 

recalculated. As a result, the EPA and authorized states are no longer required to incorporate 

the numeric turbidity limitation or monitoring requirements into their permits. EPA published a 

Federal Register notice on January 3, 2012 requesting additional data on the performance of 

technologies in controlling turbidity in stormwater discharges from construction sites (77 FR 112). 

The notice also requests information on other topics relevant to establishing numeric effluent 

limitations for stormwater discharges from these sites, including sample collection, applicability to 

linear electric transmission line construction, cold weather considerations, and the ability of small 

sites to meet a numeric standard. 

Response 6.7 Quick Fixes

EPA received comment on references in the proposed permit to quick fixes or easy fixes. 

Commenters had concern with the requirement for quick fixes to be completed by the end of 

the next full work day and that they would not always be able to comply with this requirement. 

One commenter asked whether EPA has an objective definition of “easy fix.” Another asserted 

that “easily fixed” is subjective. Another commenter asserted that permittees should not be 

required to make repairs that are “easily fixed”, asserting that if they are easy to fix then they are

probably not significant. EPA disagrees with the assertion that permitees should not be required 

to make repairs that are “easily fixed”. Any problem with the stormwater controls may contribute 

to potentially avoidable discharges to receiving waters and smaller problems can lead to bigger 

problems if left unchecked and thus should be repaired. The requirements to correct problems 
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according to the timelines established in the permit help to ensure that stormwater controls are 

kept in effective operating conditions and to minimize the discharge of pollutants to receiving 

waters. Regarding the comment on defining “easy fix”, EPA notes that the 2012 CGP does not 

define “easy fix” but requires operators to initiate work to fix problems immediately after 

discovering them and to complete such work by the close of the next full work day, if the 

problem does not require significant repair or replacement or if the problem can be corrected 

through routine maintenance. See Parts 2.1.1.4 and 2.3.2 of the 2012 CGP. For comments on the 

subjectivity of “easy”, EPA notes that the provision does not use the term “easy fix” or “easily 

fixed” but rather uses the phrase “does not require significant repair or replacement.” By not 

defining “easy fix” or “easily fixed”, operators will have incentive to correct the problem 

immediately or by the end of the next full work day if they can. Otherwise, they risk incurring a 

violation if the “easy fix” escalates to an unauthorized discharge that could have been avoided. 

EPA provides examples of easy fixes in the 2012 CGP Fact Sheet. For example, if the permittee 

discovers that a portion of the site’s perimeter controls have fallen down or been driven over, 

repairs to the control must be made by the end of that day. That same would be true if the 

permittee finds that a sediment control (e.g., sewer inlet control device, compost filter sock, 

check dam, silt fence, etc.) requires routine maintenance to remove accumulated sediment so 

that the control will operate effectively during the next storm event. By comparison, a more 

significant repair includes one that might include the complete removal and replacement of a 

device. 

For comments related to inability of some operators to make corrections by the end of the next 

full day, EPA notes that the permit allows for more time to complete corrective action where 

installation of a new erosion or sediment control or a significant repair is needed (as neither of 

these would not qualify as an “easy fix”). In these cases, operators must comply with additional 

documentation requirements. 

Response 6.8 Residual Testing

EPA received comment suggesting that field residual testing be conducted for all permissible 

treatment chemicals to ensure safety levels for all parties and that if a company does not have 

residual testing capability for its products that a batch treatment of flow be required and that 

the water be held on property until a Whole Effluent Toxicity (WET) test be completed showing 

safe discharge levels. EPA acknowledges the comments but disagrees as it believes that the 

multi-barrier approach outlined in Part 2.1.3.3 of the 2012 CGP is protective of receiving waters 

and better balances environmental protection with minimizing permittee burden. Under the 

provisions of the permit, operators must use conventional erosion and sediment controls prior to 

and after the application of treatment chemicals to ensure effective treatment. Chemicals can 

only be applied where treated stormwater will be directed to a sediment control (e.g., sediment 

basin, perimeter control, etc.). This will maximize the opportunity for the chemical to combine 

with sediment and minimize the direct discharge of chemicals. Chemicals must be selected that 

are appropriately suited to the types of soils likely to be exposed during construction and based 

on expected turbidity, pH, and flow rate of stormwater flowing into the chemical treatment 

system. They must comply with state or local requirements, which could include residual testing. 

They must use chemicals in accordance with good engineering practices and specifications of 

the chemical provider/supplier. All persons who handle and use treatment chemicals at the 

construction site must be provided with appropriate, product-specific training. Among other 

things, the training must cover proper dosage requirements. The operator must document in the 

SWPPP the dosage they will use or how they will determine the dosage. See Part 2.1.3.3 for a 

description of the requirements and section VII.1.3 for a discussion on the purpose of the 

requirements. EPA also notes that residual tests are not available for all treatment chemicals. 

For comments related to corrective action following monitoring results, EPA notes that the 2012 

CGP does not include requirements for monitoring. 
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Response 6.9 Corrective Action Related to Chitosan Residual Level

For comments related to the chitosan, EPA received multiple comments on the usage of 

chitosan. EPA notes that operators planning to use cationic chemicals as defined in Appendix A 

of the permit, including chitosan, to treat their stormwater prior to discharge must acquire 

authorization from their EPA regional office prior to submitting their NOIs. Such operators may be 

subject to additional permit requirements. See Part 2.1.3.3 of the 2012 CGP. See section VII.1.3 of 

the 2012 CGP Fact Sheet for a discussion on the purpose of these requirements. 

EPA also received comment asserting the benefits of chitosan, that it can be a highly effective 

tool for addressing turbidity at challenging sites, and asserting that over-regulation of its use 

could hinder its potential use. EPA recognizes that treatment chemicals can be an effective 

means to reducing pollutant loads in stormwater discharges and, when used correctly, should 

not pose an environmental risk to receiving waters. The 2012 CGP includes several provisions 

related to chemical treatment to ensure proper and safe usage. See Part 2.1.3.3 of the permit. 

While both anionic and cationic chemicals can be safely and effectively used, EPA believes 

that the use of cationic chemicals may require more oversight and/or more stringent controls 

because of the higher risk of environmental impact if they are used improperly and because of 

the need for greater oversight and greater understanding of site-specific conditions to ensure 

proper and safe use of the chemicals. Thus, operators planning to use cationic chemicals to 

treat their stormwater prior to discharge must acquire authorization from their EPA regional office 

prior to submitting their NOIs. Such operators may be subject to additional permit requirements. 

See Part 2.1.3.3 of the 2012 CGP. EPA discusses its rationale for requirements on the use of 

treatment chemicals in section VII.1.3 of the 2012 CGP Fact Sheet. EPA also notes that the 

preamble to the C&D Rule (40 CFR Part 450) indicates that “NPDES permitting authorities may 

establish controls on dosage and usage, protocols for residual toxicity testing, require prior 

approval before the use of particular polymers, training requirements for site operators or other 

measures they deem appropriate.” 74 Federal Register 63008 (December 1, 2009). EPA has 

developed requirements on the use of treatment chemicals consistent with the C&D Rule and 

the preamble to the Rule. 

For comments related to corrective action after residual testing, EPA notes that the 2012 CGP 

does not require residual testing of polymers. 

For comments asserting that chitosan usage is safe, see discussion above on chitosan. 

Response 6.10 Deadlines for Completing Corrective Action

EPA received multiple comments on the proposed requirement to install a new or to modify an 

existing stormwater control and to make it operational by no later than 7 days from the time of 

discovery (1) that the installation of a new stormwater control is needed or (2) that an existing 

pollution prevention measure requires significant redesign and reconstruction or replacement. 

Some commenters noted that certain repairs can be made quickly and would not require 7 

days. One commenter suggested that the 7-day deadline be limited to more structural or 

excavation-oriented control measures such as dikes, soil berms, traps, basins, wheel washes, etc. 

and that BMPs such as silt fences, inlet protection, mulch application, etc. should be installed 

within 24 hours. Other commenters asserted that there would be cases in which a 7-day 

deadline would not be feasible. Such commenters cited the need for assessing stormwater 

controls, designing changes, ordering supplies, acquiring financial approvals, or, in the cases of 

catastrophic failure, cleaning and allowing inspections by insurance adjustors, lawyers, and 

government entities. Others asserted that weather or seasonal challenges could delay 

completion of corrective action. Some commenters suggested that deadlines for completing 

corrective action be removed completely or that the deadline should be linked to the next 

predicted storm event. 
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EPA agrees that operators will be able to make some repairs quickly and notes that Part 2.1.1.4 

requires operators to initiate work to fix problems immediately after discovering them and 

completing such work by the close of the next work day, if the problem can be easily repaired 

or replaced or if the problem can be corrected through routine maintenance. Moreover, in 

situations where corrective action is needed, Part 5.2 requires operators, in all circumstances, to 

immediately take all reasonable steps to minimize or prevent the discharge of pollutants until a 

permanent solution is installed and made operational. EPA disagrees that operators should be 

permitted to wait to take any corrective action until the next scheduled weekly inspection or 

predicted storm event because the delay would not be protective of receiving waters and 

could result in avoidable discharges. See sections VII.1.1 and X of the 2012 CGP Fact Sheet for 

discussions on the purpose of these requirements. 

EPA also agrees that in some cases operators may require more than 7 days to complete 

corrective action but disagrees that there should be no deadline at all. EPA discusses the 

purpose of the deadline requirements in section X of the 2012 CGP Fact Sheet. Part 5 of the 2012 

CGP directs operators, by no later than 7 days from the time of discovery of a problem requiring 

correction, to install a new or modified control and to make it operational or to complete a 

repair, but the permit allows more time if 7 days is infeasible. In such cases, the permittee must 

document why it is infeasible to complete the installation or repair within the 7-day timeframe 

and document the schedule for installing the stormwater control(s) and making it (them) 

operational as soon as practicable after the 7-day timeframe. 

Response 6.11 SWPPP Modification

EPA received comment asserting that a requirement to recertify the SWPPP after triggering 

corrective action and after corrective action is taken would be overly burdensome. EPA notes 

that the 2012 CGP does not require operators to recertify the SWPPP after triggering corrective 

action or after corrective action is taken. However, where corrective actions result in changes to 

any of the stormwater controls or procedures documented in the SWPPP, permittees must 

modify the SWPPP accordingly within 7 days of completing the corrective action work. See Part 

5 of the 2012 CGP for a description of the requirement and section X of the 2012 CGP Fact Sheet 

for a discussion on the purpose of the requirement. In addition, permittees developing a 

corrective action report under Part 5 must indicate whether SWPPP modifications are required as 

a result of the condition identified or corrective action. See Part 5 for a description of the 

requirement and section X for a discussion on the purpose of the requirement. 

Response 6.12 Corrective Action Records

EPA received comment on the proposed corrective action recordkeeping requirements. One 

commenter challenged the provision that would have allowed operators to conclude that, 

based on an analysis of site conditions, the source of a problem or violation is or was unrelated 

to their construction activities. The 2012 CGP does not include this provision. Another commenter 

asserted that the entire corrective action records section is redundant to the inspection form 

requirement to document corrective actions. The commenter also had suggestions for 

combining the inspection and corrective action recordkeeping requirements. EPA respectively 

disagrees and discusses the purpose of the corrective action recordkeeping requirements in 

section X of the 2012 CGP Fact Sheet. 

Response 6.13 Reporting Requirements and Deadlines

EPA received comment on the proposed requirement for permittees to notify their applicable 

EPA regional office by the end of the next work day following certain triggers, including the 

occurrence of prohibited discharges. Some commenters supported the proposed deadlines 

while others suggested changes to the requirement. Some asserted that EPA should streamline 

documentation requirements. Others asserted that the documentation requirements are 

excessive. One commenter suggested longer deadline for conditions not hazardous to human 
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health and well being. Another questioned the Agency’s need for the information at all and, in 

particular, by the end of the next full work day. EPA notes that the 2012 CGP does not include 

the proposed requirements to notify the EPA regional office except for cases where the 

stormwater controls the permittee has installed and is maintaining are not effective enough for 

the discharge to meet applicable water quality standards or applicable requirements in Part 3.1 

of the 2012 CGP. In these cases, the permittee must notify the applicable EPA Regional Office 

by the end of the next full work day. See section X of the 2012 CGP Fact Sheet for a discussion 

on the purpose of this requirement. 

In response to the comments, EPA notes that the Agency has streamlined the permit and 

reduced burden. For example, the permit does not include much of the proposed corrective 

action notification requirements. The permit does include, however, deadlines for developing 

corrective action reports and provisions specifying how those reports must be developed and 

stored. Each corrective action report must be signed and certified, and operators are required 

to keep a current signed, paper copy of all corrective action reports at the site or at an easily 

accessible location, so that it can be made available at the time of an onsite inspection or upon 

request by EPA. See Part 5 of the 2012 CGP for a description of the permit corrective action 

requirements and section X of the 2012 CGP Fact Sheet for discussion on the purposes of the 

requirements. 

 
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Comment Response Essay 7 Staff Training 

Response 7.1 Staff Training Requirements

 

EPA received a few comments on the proposed staff training requirements in the draft permit. 

EPA received several comments that EPA believes can be addressed through a clarification of 

what EPA expects in terms of the minimum staff training requirements. The comments are 

summarized as follows: 

• The permit is vague and unclear regarding what specific training is required, leaving it 

open to interpretation and difficult to demonstrate compliance. EPA needs to be clear 

about what must be included in each person’s training. 

• EPA should consider establishing qualification or certification requirements for the 

persons conducting training, or should establish qualifications for the persons preparing 

the SWPPP for large sites. 

• EPA should provide free online training so that operators know what level of staff training 

is expected to achieve compliance with the permit. 

• Formal training requirements should only apply to personnel working on larger projects. 

EPA clarifies that operators can achieve compliance with the staff training requirements in the 

permit merely by making sure that all relevant personnel are trained in the minimum areas 

described in Part 6 of the final CGP. EPA believes that the required minimum training for 

personnel in the permit should already be provided as standard practice on construction sites. 

Therefore, EPA clarifies that staff training is not required to be formal, and disagrees that training

should only be required for large sites. EPA has purposely developed the staff training 

requirements to be general, i.e., applicable to all sites large and small, recognizing that 

operators will conduct training as appropriate for the specific stormwater control practices on 

their site. Therefore, EPA disagrees that it needs to add more specificity to the training 

requirements. EPA clarifies that training can come in many different forms, including instruction 

from the operator or other personnel, professional certification programs, and/or state or local 

programs, among others. EPA notes that EPA will be conducting outreach on how to comply 

with the new permit through webcasts after the permit is finalized, and also has several 

documents on its website that can assist permittees in complying with the permit. EPA also 

disagrees that personnel need to be certified because it believes that training can be provided 

without having obtained certification. Additionally, because there are many different erosion 

and sediment control certification programs in existence, EPA does not believe it would be 

appropriate to require any one specific professional certification or qualification program. 

Commenters suggested that EPA exempt from the training requirements personnel already 

holding professional certifications and experienced builders and developers who have been 

using appropriate stormwater controls. A commented also suggested that it would be 

inappropriate for EPA to require that off-site personnel that prepare the SWPPP or design the 

stormwater controls be trained due to the fact that SWPPP development and stormwater control 

design often occur prior to active construction. EPA has noted in the fact sheet that new training 

may not be necessary for some employees if the permittee is able to ensure that the employee, 

due to prior training, already understands the applicable topic area. So, if as a result of a 

certification or prior experience an employee already has the proper understanding required 

under the staff training requirements, EPA clarifies that new training is not necessary. EPA also 

clarifies that with regard to off-site personnel, as long as operators ensure that these personnel 

have existing knowledge of the minimum areas of understanding required under Part 6, no 

additional training is necessary. One commenter requested that EPA provide an option for 
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documentation of prior training that would “pre-qualify members of the stormwater team to 

perform required activities under this permit.” EPA clarifies that Part 7.2.13 of the final permit 

requires that the SWPPP include documentation that the required personnel were trained in 

accordance with Part 6. This could include documenting that certain personnel have existing 

qualifications that make additional training unnecessary. 

A commenter requested clarification on how to document that the required personnel have 

been trained. EPA clarifies that documentation could simply be confirmation that the required 

personnel have received training to understand the minimum elements required under Part 6, 

and have read and understand the relevant permit provisions. If certain personnel have specific 

certifications, qualifications, or experiences relating to their responsibilities, EPA suggests that the 

operator include documentation of this in the SWPPP, as well. One commenter suggested that 

EPA require documentation of names and titles of the persons providing training. EPA clarifies 

that while this information is not required, that it would be appropriate information to include in 

the SWPPP if the operator chooses. 

A commenter expressed concern that there will not be sufficient time for operators to develop 

training programs to achieve compliance with the new permit conditions, and questioned 

whether EPA would consider an implementation phase. As described above, EPA believes that 

the content and extent of the required training in the permit are consistent with standard 

construction site staff training practices, and therefore, EPA does not believe that it will be 

necessary for operators to develop new training programs. Because many of the new provisions 

implement the C&D rule non-numeric ELGs and New Source Performance Standards (NSPS) 

published in December of 2009, and because EPA proposed the vast majority of the conditions 

that appear in the final CGP in the draft CGP in June of 2011, EPA believes that many operators 

are already familiar with the conditions in the final permit. Furthermore, EPA believes that 

operators will have the opportunity to become familiar with the new conditions in the process of 

developing their SWPPP prior to obtaining permit coverage. Therefore, EPA does not agree that 

an implementation phase is necessary for operators to prepare for the final permit. 

A commenter suggested that it is not appropriate to require personnel to be trained on 

reporting violations and submitting reports because of the fact that individuals would not 

already be familiar with these processes, and suggested that EPA provide a training program on 

this requirement. EPA agrees that this should not be a standard aspect of training, and has 

removed this requirement from the permit. 

One commenter expressed that the staff training requirements in the proposed permit are 

inadequate because there is no requirement that they actually construct and maintain the 

various controls and practices or understand the range of controls and practices and their 

purposes and uses on a construction site. EPA disagrees that the staff training requirements are 

inadequate. EPA believes that the minimum training requirements will ensure that personnel 

understand how to achieve compliance with the permit. EPA notes that because operators are 

held to the erosion and sediment control requirements in Part 2, operators must ensure that their 

personnel adequately install and implement their stormwater controls. Therefore, although the 

staff training requirements in Part 6 of the permit are general, EPA believes that operators will be 

compelled to ensure that their staff have an understanding adequate to achieve compliance 

with all of the permit conditions. 

 
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Comment Response Essay 8 Stormwater Pollution Prevention Plan (SWPPP) 

Response 8.1 SWPPP

Preparer of SWPPP Should Meet Minimum Qualifications 

One commenter suggested that EPA require those preparing SWPPPs for sites that disturb 10 

acres or more to meet some minimal qualifications. EPA disagrees with the need to require 

minimum qualifications for preparers of SWPPPs. Rather, the Agency is specifying the minimum 

information that a SWPPP must include. The requirement creates a minimum standard for SWPPPs 

while maintaining flexibility for operators. EPA discusses requirements for SWPPPS in Part 7 of the 

2012 CGP and the purpose of those requirements in section XII of the 2012 CGP Fact Sheet. 

One commenter suggested that the SWPPP must contain all of the current provisions of the CGP 

(or any applicable State CGP), including an inspection schedule; that the SWPPP should 

designate all known discharge points; and that the SWPPP should designate responsible 

personnel and ensure that they understand their requirements and responsibilities. EPA notes 

that the 2012 CGP is consistent with these recommendations. See Part 7 of the 2012 CGP and 

section XII of the 2012 CGP Fact Sheet. 

Exceptions for Pro-Active Restoration Projects 

EPA received comments requesting that EPA consider exceptions for pro-active restoration 

projects from the preparation of a full SWPPP if other permits, certificates, and/or permissions 

required to undertake the project cover the intent of a SWPPP. EPA disagrees with the comment. 

SWPPPs are an integral part of ensuring and documenting compliance with the permit. EPA 

discusses the rationale for the SWPPP requirements in section XII of the 2012 CGP Fact Sheet. EPA 

does note, however, that those developing the SWPPP would be permitted to reuse material 

gathered through the processes of acquiring other permits, certificates, and/or permissions. That 

is, the preparer would not be required to start from the beginning. This will allow the preparer 

take advantage of work that has already been completed and thus reduce burden. 

Narrative or Numeric Effluent Limits in SWPPP 

The proposed permit included language explaining that “the SWPPP does not contain narrative 

or numeric effluent limits.” One commenter asserted that the SWPPP should contain effluent 

limits. Other commenters sought clarity on this language. EPA has clarified the language in the 

2012 CGP from the language that was used in the proposed permit. The language now explains 

that “the SWPPP does not establish the effluent limits that apply to your site’s discharges; these 

limits are established in this permit.” In other words, the operator identifies in the SWPPP the 

control measures that he or she has put in place to comply with the effluent limitations 

established in the permit, but the SWPPP does not establish the limits. The limits are established in 

the permit, itself. 

Person(s) Responsible for Developing the SWPPP 

EPA received comment on the proposed provisions regarding person(s) responsible for 

developing the SWPPP. Some commenters had general questions regarding who is responsible 

for developing the SWPPP. See Part 7.1.1 of the 2012 CGP. Several others had concerns on a 

proposed requirement for owners to be responsible for SWPPP development. Some commenters 

supported the proposed requirement. EPA disagrees with the need to specify who prepares the 

SWPPPs. Rather, the Agency is specifying the minimum information that a SWPPP must include. 

The requirement creates a minimum standard for SWPPPs while maintaining flexibility for 

operators. See Part 7 of the 2012 CGP and section XII of the 2012 CGP Fact Sheet. 

Requirement to Develop a SWPPP Prior to Submitting the NOI 
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EPA explains in Part 7.1.1 of the 2012 CGP that permittees are required to develop the site’s 

SWPPP prior to submitting the NOI. See section XII.1.1 of the 2012 CGP Fact Sheet for a discussion 

on the purpose of this requirement. In addition, the Agency notes that permittees are not 

required to submit their SWPPPs. However, they are required to keep a current copy of the 

SWPPP at the site or at an easily accessible location so that it can be made available at the 

time of an onsite inspection or upon request by EPA; a state, tribal, or local agency approving 

stormwater management plans; the operator of a storm sewer system receiving discharges from 

the site; or representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine 

Fisheries Service (NMFS). See Part 7 of the 2012 CGP and section XII of the 2012 CGP Fact Sheet. 

Management of Stormwater Post-Construction 

EPA received comment suggesting that the 2012 CGP address “post-construction” stormwater 

discharges. Post-construction stormwater discharges and the control of post-construction 

stormwater discharges are outside the scope of the 2012 CGP. 

Stormwater Team 

EPA received comment on the proposed requirements to assemble a “stormwater team.” Some 

commenters sought clarity on the requirements. The requirements can be found at Part 7.2.1 of 

the 2012 CGP. One commenter asked whether the permittee has discretion to determine the 

size of the team and the roles of individual members. Another asserted that “team” connotes 

multiple members and suggested that the language maintain the flexibility to allow for an 

individual SWPPP person for smaller projects. EPA notes that the 2012 CGP neither specifies the 

size of the SWPPP team nor does it preclude the permittee from establishing a one-person 

“team” and assigning all team responsibilities to that person. One commenter indicated that an 

applicant may not know the names of all members of the stormwater team at the time the NOI 

is submitted. EPA notes that the provisions in Part 7.2.1 of the 2012 CGP require that the SWPPP 

identify the personnel “by name or position” that are part of the stormwater team. Thus, the 

applicant need not necessarily know the name by the time the time the NOI is submitted as long 

as they know the position of the employee who will fill the roll in question. The permittee may 

add names and positions to the SWPPP as team members are added, as suggested by the 

commenter. One commenter requested that EPA require documentation of training 

requirements in the SWPPP. EPA notes that Part 7.2.13 of the 2012 CGP requires that the SWPPP 

include documentation that the required personnel were trained in accordance with the staff 

training requirements of the permit. 

Coverage of Construction Support Activities 

EPA received comment requesting clarification of whether off-site borrow/fill areas are part of a 

common plan of development of a project and, thus, are part of the project required to be 

authorized by a permit. EPA notes that off-site borrow/fill areas may be construction support 

activities subject to permit requirements. See Parts 1.1 and 1.3.c of the 2012 CGP for a discussion 

on requirements for stormwater discharges from construction support activities. The commenter 

goes on to suggest that the permitting of off-site facilities be required of the “operators” of those 

sites. EPA notes that if the operator of a construction support activity is different than the 

operator of the main construction site, then that operator is required to obtain permit coverage. 

The commenter also asserts that discharges from off-site staging and equipment storage areas 

do not satisfy the definition of “storm water associated with industrial activity” and thus not be 

subject to permitting. EPA disagrees with the comment and notes that the definition of “Storm 

water discharge associated with industrial activity” includes “material handling sites...; sites used 

for the storage and maintenance of material handling equipment...; shipping and receiving 

areas...; storage areas...for raw materials, and intermediate and final products...; and areas 

where industrial activity has taken place in the past and significant materials remain and are 

exposed to storm water. For the purposes of this paragraph, material handling activities include 
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storage, loading and unloading, transportation, or conveyance of any raw material, 

intermediate product, final product, by-product or waste product...” (40 CFR 122.26 (b)(14)). 

Coverage of Primary Versus Secondary Operators 

EPA received comments on the proposed requirements to indicate in the SWPPP the names of 

both the primary and the secondary operators. Commenters asserted that this requirement 

would cause legal confusion. EPA also received comment requesting that the Agency modify its 

proposed requirement for secondary operators to be able to work under a primary operator’s 

SWPPP, to include government contracts and projects like those of the Department of 

Transportation. The 2012 CGP includes no references to secondary operators. The permit 

explains that where there are multiple operators associated with the same project, all operators 

are required to obtain permit coverage. If an operator only has operational control over a 

portion of larger project (e.g., one of four homebuilders in a subdivision), the operator is 

responsible for compliance with all applicable effluent limits, terms, and conditions of this permit 

as it relates to the activities on their portion of the construction site, including protection of 

endangered species, critical habitat, and historic properties, and implementation of control 

measures described in the SWPPP. If one operator has control over plans and specifications and 

a different operator has control over activities at the project site, they may divide responsibility 

for compliance with the terms of this permit as long as they develop a group SWPPP (see Part 

7.1.1), which documents which operator has responsibility for each requirement of the permit. If 

the operator of a “construction support activity” (see Part 1.3.c) is different than the operator of 

the main construction site, that operator is also required to obtain permit coverage. See Parts 1.1 

and 1.3 of the 2012 CGP for the permit requirements and section VI.1 of the 2012 CGP Fact 

Sheet for the purpose of the requirements. 

Sequence and Estimated Dates of Construction Activities 

EPA received comment suggesting that applicants may indicate “estimated dates” to comply 

with the requirement to include the sequence and dates of construction activities in the SWPPP. 

EPA agrees and notes that both the proposed CGP as well as the 2012 CGP permit language 

use the language “sequence and estimated dates of construction activities.” See Part 7.2.5. 

EPA also received comment asserting that providing dates for certain activities would be 

difficult, if not impossible. See Part 7.2.5 of the 2012 CGP for the requirements. EPA notes that 

references to “dates when total disturbances occurring at one time” have been removed. EPA 

believes that applicants will be able to estimate dates for the remaining activities listed in Part 

7.2.5 to the extent that they are applicable to the project in question by referring to project 

timelines or schedules or by using best professional judgment. The commenter also questioned 

the purpose of the requirement to indicate sequence and estimated dates of construction 

activities and suggested that it be removed. EPA disagrees that the requirement should be 

removed and explains the purpose of the requirement in Section XII.2.5 of the 2012 CGP Fact 

Sheet. 

Site Map 

EPA received comment on the proposed requirement to include a site map in the SWPPP. EPA 

received comment asserting that the proposed provision to include locations of stormwater 

control measures on the SWPPP site map is a good requirement. EPA agrees and the 2012 CGP 

retains this requirement. EPA discusses the purpose of the requirement in section XII.2.6 of the 

2012 CGP Fact Sheet. 

EPA also received comment suggesting that the Agency remove the requirement “to indicate 

stormwater flow...after major grading activities” because it will not be accurate, will be 

confusing, and would be best represented in a separate series of maps. The commenter 

suggests that the requirement be delayed until project is nearing completion. EPA disagrees 
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with the commenter and believes that including an indication of stormwater flow is fundamental 

to complying with the permit. Operators will need to have an idea of the volume of stormwater 

that will enter and leave the site and of the general direction(s) that the stormwater flow will 

take to be able both to design stormwater controls and also to design and structure stormwater 

controls on the site itself (e.g., to ensure proper drainage and to avoid flooding). Even where 

operators lack certainty of stormwater volume and flow, they will make assumptions in 

developing their designs. Operators should indicate in their site maps with as much certainty as 

they have how the site will be graded and where they expect the flow to occur as a result of the 

grading and construction. EPA disagrees that the information will be confusing. The party 

responsible for creating the site map should develop it to present the information clearly. 

Regarding the comment that presenting would require the development of a series of maps, 

EPA notes that the 2012 CGP includes flexibility to allow applicants to provide the required 

information in either a map or a series of maps. The information provided in the site map, 

including changes to flow, will help reviewers to understand the potential impacts of projects. 

See section XII.2.6 of the 2012 CGP Fact Sheet for a discussion on the purpose of the permit’s 

SWPPP site map requirements. 

Regarding the comment that the SWPPP is a living document, EPA notes that operators are 

required to update the SWPPP if the site will be graded differently than initially indicated as this 

would be a change to the construction plans. See Part 7.4.1 for a list of conditions requiring 

SWPPP Modifications. 

EPA received comment requesting that the Agency define “immediate vicinity” for the 

proposed requirement that applicants indicate locations of all surface waters that exist in the 

immediate vicinity of the site. EPA notes that the 2012 CGP does not define the term “immediate 

vicinity”. The Agency wanted to keep the provision broad enough to give operators flexibility in 

complying with Part 7.2.6. The requirement in Part 7.2.6 compels permittees to develop an 

understanding of the location of any waters flowing through or near the property where the 

construction will take place. Requiring a visual showing these waters will provide permittees with 

information necessary to comply with the requirements for impaired waters (Parts 3.2.2), and Tier 

2, 2.5, and 3-protected waters (Part 3.3.2). Identifying the location of these waters on the site 

map will also help permittees comply with the Erosion and Sediment Control requirements (Part 

2.1), particularly those related to buffers, and Pollution Prevention Standards (Part 2.3.3). 

EPA received comment suggesting that the Agency require operators to identify inlets to 

sanitary sewers and on-site stormwater management features which the commenter asserts 

might be impacted by the project. For the comment regarding on-site stormwater management 

features, EPA notes that the 2012 CGP requires operators to identify locations of stormwater 

control measures (Part 7.2.6.8). For the comment on inlets to sanitary sewers, EPA notes that 

discharges from sanitary sewers are covered under separate regulations and are beyond the 

scope of the 2012 CGP. Thus, the permit does not require operators to identify inlets to sanitary 

sewers in their SWPPP site maps. 

EPA received comment requesting that the permit include exceptions to linear facilities that do 

not routinely collect topographic information or alter the topography along a ROW for the 

requirements to indicate topographic information in their SWPPPs. EPA disagrees. Topographic 

information is widely available and easy to collect at low cost. EPA describes the requirements 

at Part 7.2.6.5 of the 2012 CGP and discusses the purpose of the requirements in section XII.2.6 of 

the 2012 CGP Fact Sheet. 

Construction Site Pollutants 

The 2012 CGP requires applicants to provide a list and description of all the pollutant-generating 

activities on the site. See Part 7.2.7 of the 2012 CGP. The permit provides examples of pollutantgenerating activities to help guide the applicant in providing the required information. EPA 
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disagrees that the requirement is impractical or that it will provide inaccurate information and 

discusses the purpose of this requirement in section XII.2.7 of the 2012 CGP Fact Sheet. 

Description of Stormwater Control Measures 

EPA received comment on the proposed requirements to provide a description of stormwater 

control measures. One commenter suggested that EPA require permittees to include “any 

manufacturer’s or owner’s specifications” in the descriptions of stormwater control measures. 

Another commenter suggested that EPA incorporate flexibility into the requirement and require 

permittees to include “specifications for installation and maintenance based on the industry 

standard and good engineering practice including manufacturer’s specifications where 

appropriate.” The requirements of the 2012 CGP are consistent with both comments. Part 

2.1.1.3.b of the 2012 CGP requires permittees to install all stormwater controls in accordance with 

good engineering practices, including applicable design specifications, and Part 7.2.10.1 

requires permittees to include in their SWPPPs information on the type of stormwater control 

measure to be installed and maintained, including design information. The provisions require 

good engineering practices in all cases but allow permittees the flexibility to follow 

manufacturer’s design specifications where “applicable.” 

EPA also received comment on the requirements to describe the use of chemical treatment. The 

commenter suggested that EPA include requirements for documenting any chemical additives 

used, including the dosages used, applicable Material Data Safety Sheets (MSDS), 

manufacturer’s application instructions and subsequent monitoring results. EPA notes that the 

2012 CGP requires applicants to indicate chemicals to be used, their dosage or methodology 

for determining dosage; to include MSDS where applicable; and to describe manufacturer’s 

application instructions. The commenter also refers to monitoring results. EPA notes that the 2012 

CGP does not require monitoring and thus does not require the submission of monitoring results. 

Training 

EPA received comment on the proposed requirement to document training. One commenter 

suggested that the requirement is redundant. EPA disagrees that the reference to staff training in 

the SWPPP section of the 2012 CGP is redundant. Part 7.2.13 of the 2012 CGP requires that 

applicants include documentation that the required personnel were trained in accordance with 

the staff training requirements of the permit, while Part 6 discusses the actual training 

requirements. EPA discusses the purpose of the requirement to document training in Section 

XII.2.13 of the 2012 CGP Fact Sheet. 

The commenter also recommended that all EPA inspectors be required to successfully complete 

training programs with instruction in construction applications. EPA acknowledges the suggestion 

but notes that comments related to training requirements of EPA inspectors are beyond the 

scope of the 2012 CGP. 

On-Site Availability of Your SWPPP 

EPA received comment suggesting that the Agency also require that a representative of 

applicable and appropriate land management agencies also have access to the SWPPP and 

relative monitoring records. Representatives of “appropriate land management agencies” 

should be able to access the SWPPP, or portions of the SWPPP. EPA notes that Part 7.3 of the 

2012 CGP requires the permittee to keep a current copy of the SWPPP at the site or at an easily 

accessible location so that it can be made available at the time of an on-site inspection or 

upon request by EPA; a state, tribal, or local agency approving stormwater management plans; 

the operator of a storm sewer system receiving discharges from the site; or representatives of the 

U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service (NMFS). EPA may 

also provide access to portions of the SWPPP to a member of the public upon request. 
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For the comment on relative monitoring records, EPA notes that the 2012 CGP does not include 

monitoring requirements so the 2012 CGP does not include requirements related to monitoring 

records. 

EPA received comment seeking clarification on the relationship between the proposed 

requirement to post notice of permit coverage to the proposed requirement to post notice of 

the plan’s location. EPA notes that the permittee does not preclude complying with both 

requirements using the same sign. 

EPA received comment seeking clarification whether the SWPPP may be electronic. EPA notes 

that the 2012 CGP does not specify what form the SWPPP must take and that electronic copies 

are acceptable. 

Submission of SWPPPs to Permitting Authority

EPA received comment suggesting that SWPPPS should be submitted to the permitting authority. 

EPA notes that the 2012 CGP requires that the SWPPPs be available at any time to the Agency. 

See Part 7.3. The requirement to make the SWPPP available at any time to the EPA is sufficient to 

provide the Agency with the ability to review the SWPPP when necessary or appropriate while 

also providing operators with the flexibility to develop SWPPPs in either electronic or paper form. 

Public Availability of SWPPP 

EPA received comment suggesting that SWPPPs should be available for the public to view 

including initial and subsequent versions of the SWPPPs. Some commenters specifically 

recommended that electronic copies of the SWPPP be made available to the public. EPA notes 

not all SWPPPs will be electronic because the 2012 CGP gives operators the flexibility to develop 

SWPPPs in either electronic or paper form. Also, EPA notes that Part 7.3 of the 2012 CGP indicates 

that EPA may provide access to portions of SWPPPs (including updated versions) to a member of 

the public upon request. Confidential Business Information (CBI) will be withheld from the public. 

See Part 7.3 of the 2012 CGP for a description of the requirements and section XII.3 of the 2012 

CGP Fact Sheet for the purpose of the requirements. The provisions in Part 7.3 will ensure that the 

public have access to pertinent parts of SWPPPs. Consistent with the approach taken under the 

2008 CGP, EPA intends to assist members of the public in obtaining access to permitting 

information, including SWPPPs. 

Changes to SWPPP 

EPA received comment suggesting a change in text to prevent the modification of a SWPPP by 

unqualified staff. EPA notes that any changes to the SWPPP must be authorized by a person 

identified in Appendix I, Part I.11.b. The provision to require changes to be authorized will ensure 

that any changes are approved by the appropriate and qualified staff. 

EPA also received comment seeking clarification on whether any changes to the site map 

require SWPPP modification records. See Part 7.4.1.2 and 7.4.3 of the 2012 CGP. 

In response to comment, EPA has clarified the requirement to specify that permittees must 

“maintain records” on SWPPP modifications rather than “log” changes. 

EPA received comment on the requirement to provide notice to other operators of changes. 

The commenter suggested that operators be notified of changes to the SWPPP at the same time 

that they sign weekly or biweekly inspection forms. EPA notes that the 2012 CGP does not 

specify how permittees must notify other operators of SWPPP modifications. Operators have 

flexibility. See Part 7.4.5 of the 2012 CGP for a description of the requirement and section XII.4.5 

of the 2012 CGP Fact Sheet for a discussion on the purpose of this requirement. 

 
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Comment Response Essay 9 Appendices 

Response 9.1 Definitions and Acronyms

EPA received multiple comments on the proposed definitions and acronyms included with the 

proposed CGP. 

One commenter supporting the Agency’s proposal to provide a definition for the term 

“minimize,” noting that it was “important to provide this clarification.” EPA agrees. See Appendix 

A. 

Another commenter noted that the word “areas” was missing from part of the proposed 

definition of the term “action area.” EPA has made the correction. 

One commenter asked whether the term “impervious surface” includes porous pavement or 

vegetated rooftops if such surfaces are designed to have high capacity for soil infiltration. EPA 

notes that the definition of impervious surfaces includes surfaces with “low or no capacity for soil 

infiltration.” Thus, to the extent that the surfaces identified by the commenter have high 

capacity for soil infiltration, they would not be considered impervious surfaces for the purposes 

of the 2012 CGP. 

Another commenter suggested that EPA expand the definition of “linear project” to include the 

construction of railroads and pedestrian or bicycle trails. EPA agrees and has made the change. 

For comments on the proposed definition of “perennial stream,” EPA notes that the 2012 CGP 

neither uses nor defines this term. 

EPA received comment asserting that the proposed permit prohibits the discharge of vehicle 

and equipment wash water. EPA notes that the 2012 CGP does not prohibit the discharge of 

vehicle and equipment wash water. The permit allows operators to discharge water used to 

wash vehicles and equipment in accordance with Part 1.3.d. However, such discharges may not 

contain soaps, solvents, or detergents. See Part 1.3.d. 

EPA also received comments questioning the inclusion of the person “holding the title” of the 

land or property in the definition of “operator.” Commenters asserted that the owners or titleholders would not necessarily have any involvement in the design or details of the construction 

project or in regulatory compliance issues. EPA has clarified the definition of “operator” in the 

2012 CGP. The operator is specified as any party associated with a construction project that 

meets either of the following two criteria: 1) The party has operational control over construction 

plans and specifications, including the ability to make modifications to those plans and 

specifications; or 2) The party has day-to-day operational control of those activities at a project 

that are necessary to ensure compliance with the permit conditions (e.g., they are authorized to 

direct workers at a site to carry out activities required by the permit). See Appendix A. 

EPA received comment on the proposed definitions of “toxic waste” and “hazardous waste.” 

The commenter noted that hazardous waste is defined in the Resource Conservation and 

Recovery Act (RCRA) and suggested that a regulatory definition be provided for “toxic waste.” 

Specifically, the commenter was concerned with a proposed requirement to label containers as 

“Hazardous/Toxic Waste,” asserting that such a labeling approach would be inconsistent with 

the marking requirements of 40 CFR 262.21 or 49 CFR 172. Commenter stated that “permittees 

should not be directed to violate the law.” EPA notes that the 2012 CGP does not direct 

permittees to violate the law. Part 2.3.3.3 of the permit requires operators to label hazardous or 

toxic waste in accordance with applicable Resource Conservation and Recovery Act (RCRA) 

requirements and all other applicable federal, state, tribal, or local requirements. The 2012 CGP 

does not separately define “toxic waste” or provide a regulatory definition, as suggested by the 

commenter. Rather, EPA defines “hazardous or toxic waste” concisely as “for the purposes of this 

permit, any liquid, solid, or contained gas that contains properties that are dangerous or 
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potentially harmful to human health or the environment.” The definition also refers to the 

regulatory definition of hazardous waste at 40 CFR §261.2. EPA believes that the concise 

definition makes the permit readable and understandable and will help to ensure compliance 

with effluent limitations, in particular, the pollution prevention standards of the permit. 

One commenter suggested that EPA change the proposed definition of the term “footprint.” 

EPA notes that the 2012 CGP does not define the term “footprint.” 

Another commenter suggested an alternate definition for the term “stormwater inlet.” EPA 

agrees and has incorporated the suggested definition into the 2012 CGP. 

EPA received comment suggesting that the Agency add “BMP” to the list of acronyms in the 

permit. EPA notes that the 2012 CGP does not use the term “BMP,” but rather uses the term 

“stormwater control.” 

EPA also received comment suggesting that the Agency define “immediately” in the permit. It 

was not clear from the comment to which use of the term “immediately” the commenter was 

referring. 

EPA notes that in the stabilization provisions of the permit (Part 2.2), the term “immediately” is 

used to define the deadline for initiating stabilization measures. In the context of this provision, 

“immediately” means 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. 

See Part 2.2.1. 

EPA did not define the remaining uses of the term “immediately” in the 2012 CGP because the 

Agency believes that the term is already widely used and understood by the regulated 

community and does not need a separate, Agency definition. 

EPA received comment suggesting that the Agency expand the proposed definition of 

“dewatering” to include well point dewatering and draining of any impoundments such as 

ponds or lakes. For the comment on well point dewatering, EPA notes that the 2012 CGP allows 

permittees to discharge uncontaminanted, non-turbid ground water or spring water (see Part 

1.3). For the comment on impoundments such as ponds or lakes, it is unclear from the comment 

whether the "draining of any impoundments such as ponds or lakes" referenced in the comment 

would currently require an NPDES permit. It is also unclear whether the impoundment 

referenced in the comment is a water of the United States. Despite the lack of specificity in the 

comment, EPA notes that under the Water Transfers Rule, discharges from a water transfer do 

not require a NPDES permit. The rule states: "Water transfer means an activity that conveys or 

connects waters of the United States without subjecting the transferred water to intervening 

industrial, municipal, or commercial use. This exclusion does not apply to pollutants introduced 

by the water transfer activity itself to the water being transferred." 40 C.F.R. Sec. 122.3(i). Under 

this rule, if water is released from a water of the United States to another water of the United 

States without subjecting the water to an intervening industrial, municipal, or commercial use, 

the release will not require a NPDES permit. However, if the conveyance itself introduces 

pollutants into the water being conveyed, the release will require an NPDES permit. For further 

information, please see the National Pollutant Discharge Elimination System (NPDES) Water 

Transfers Rule, 73 Fed. Reg. 33697 (June 13, 2008 (codified at 40 C.F.R. Sec. 122.3(i)). 

EPA also notes that if the impoundment referenced in the comment is a waste treatment system 

and is thus not a water of the United States, then a NPDES permit would be required for a 

discharge from the impoundment into a water of the United States. See 40 C.F.R. Sec. 122.2.2. 

Response 9.2 Permit areas eligible for coverage

EPA received comment asserting that in the 2008 CGP, the White Mountain Apache Tribe 

required a copy of the NOI and asking whether this has changed under the 2012 CGP. The 2012 
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CGP does not require potential permittees to provide copies of their NOIs to states, Tribes, or 

territories. However, EPA notes that permit conditions applicable to specific states, Indian 

Country lands, or territories will be established as the states, Indian Country lands, and U.S. 

territories complete their Section 401 certifications for the permit. The White Mountain Apache 

Tribe may include a requirement to receive a copy of the NOI as part of the 401 certification 

process. See Part 9. 

Response 9.3 Small Construction Waivers and Instructions

EPA received comment requesting clarification on the proposed requirement for small sites with 

revised small construction waivers to retain a copy of the revised waver as part of the SWPPP. 

The commenter noted that if the contractor has a waiver, then they will not have a SWPPP. The 

commenter suggests that small sites keep copies of the waivers. EPA agrees with the commenter 

and has made the change in the permit. As described in Appendix C of the 2012 CGP, the 

permit requires small sites with revised small construction waivers to retain a copy of the revised 

waiver as part of site records. 

Response 9.4 ESA Criteria

EPA received comment on the proposed ESA criteria described in Appendix D of the proposed 

CGP. One commenter asserted that the appendix is unworkable and that EPA is shirking its ESA 

responsibilities by not providing clear guidance on the type of stormwater discharges and their 

effects to a variety of different endangered species. The commenter suggested that EPA do a 

programmatic consultation under Section 7 of the ESA with the USFWS to identify which species 

may be adversely affected and to what extent in order to reduce the impacts to endangered 

species and their habitats. The commenter suggested that having each construction agent 

responsible for a development contact USFWS is inefficient and does not result in any 

measurable conservation benefit. The commenter suggested that the Agency instead provide 

guidance on types of construction activities, how they may affect listed species, and how those 

activities can be curtailed to minimize effects. 

For the comment on types of stormwater discharges and their potential effects on a variety of 

different endangered species, EPA notes that the Agency developed a Biological Evaluation 

(BE) for the 2012 CGP that describes the anticipated stressors associated with discharges 

authorized by the permit, their potential effects on species, and how the discharges are 

addressed by permit requirements. 

With respect to the programmatic consultation under Section 7, EPA notes that the Agency has 

consulted with both the USFWS and the NMFS in compliance with Section 7 of ESA. 

For the comment on each construction agent responsible for a development contacting USFWS 

and on EPA guidance, EPA notes that the Agency has developed a step-by-step guidance on 

compliance with the Endangered Species Act requirements of the 2012 CGP in Appendix D of 

the permit. As discussed in the guidance, the permit recommends that potential permittees 

contact local USFWS, NMFS, and/or State or Tribal Heritage Center offices if there are listed 

species and/or critical habitats in the county or township in which the project is occurring. EPA 

disagrees that this is inefficient, noting that the permit does not recommend that potential 

permittees contact these offices in every case. Rather, EPA believes that it may be useful for 

potential permittees to contact these offices when species or critical habitats exist in the 

counties or townships of the projects because these local offices are likely to be more familiar 

with the locations of such species and/or critical habitats than either EPA or the potential 

permittees. 

One commenter asserted that EPA did not provide an opportunity for review and comment on 

the criteria because the proposed permit included language explaining that the proposed 

eligibility criteria were draft and subject to change. The commenter recommended that EPA 
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postpone issuance of the final eligibility criteria until after consultation with USFWS and NMFS is 

complete to allow for public review and comment. EPA disagrees with the commenter, noting 

that the ESA criteria in the 2012 CGP are essentially the same as the proposed criteria. However, 

based on public comment, EPA did add detailed step-by-step guidance to the appendix to 

assist applicants in determining the correct eligibility criteria. 

EPA also received comment requesting that EPA remove the requirements for listing 

endangered species, asserting that they are irrelevant to stormwater management. EPA 

disagrees with the commenter, noting that the issuance of the 2012 CGP is a Federal action 

subject to review under ESA. Thus, to be eligible for coverage under the CGP, permittees must 

meet one of the criteria listed in Appendix D with respect to the protection of any and all 

species that are federally-listed as endangered or threatened under the Endangered Species 

Act (ESA) or of habitat that is federally-designated as “critical habitat” under the ESA in order to 

be eligible for coverage under this permit. EPA requires operators to indicate any listed species 

or their designated critical habitats in their action areas in their NOIs as part of the 

documentation/basis for the eligibility criterion they have selected. 

Response 9.5 Historic Properties

EPA received comment on the proposed historic property requirements. One commenter 

indicated that he was pleased to see the requirements in place. 

Another commenter asserted that the proposed requirements were not consistent with the 

Advisory Council on Historic Preservation’s regulations 36 CFR 800 that implement Section 106 of 

the National Historic Preservation Act of 1966 as amended. The commenter asserted that it is 

EPA’s responsibility to meet the requirements of Section 106 of the National Historic Preservation 

Act and to make critical decisions and determinations about the presence of or effects on 

historic properties and to enter into consultations and agreements to mitigate or avoid adverse 

effects with the SHPO. The commenter further asserted that EPA remains legally responsible for 

all findings and determinations and that the responsibilities to make determinations of adverse 

effect, to participate in consultation, and to enter into agreement documents cannot be wholly 

delegated to applicants or their consultants (36 CFR 800.2(a) and 800.3 to 800.6). The 

commenter also suggested alternative language. 

EPA thanks the commenter for the comment and the suggested language. EPA notes that 

Section 106 of the National Historic Preservation Act (NHPA) requires Federal agencies to take 

into account the effects of Federal “undertakings”, such as the issuance of this permit, on historic 

properties that are either listed on, or eligible for listing on, the National Register of Historic 

Places. To address any issues relating to historic properties in connection with the issuance of this

permit, EPA has developed the required screening process in Appendix E of the 2012 CGP that 

enables construction operators to appropriately consider the potential impacts, if any, of their 

installation of stormwater controls on historic properties and to determine whether actions can 

be taken, if applicable, to mitigate any such impacts. See Appendix E. The screening 

procedures and eligibility criteria involve more detailed documentation requirements related to 

the potential effects resulting from the installation of ground-disturbing stormwater controls, and 

include opportunities for such historic preservation partners to request that EPA place a hold on 

particular authorizations based on concerns regarding potential impacts on historic properties. 

In such circumstances, EPA involvement would include careful evaluation of the requested hold 

and consideration of whether additional measures to address adverse impacts to historic 

properties are warranted. These screening procedures were informed by views EPA received 

from the Advisory Council on Historic Preservation (“ACHP”). In addition, EPA’s efforts to consider 

potential impacts on historic properties as they relate to NHPA Section 106 included a 

conference call joined by the ACHP to obtain the views of State and Tribal Historic Preservation 

Officers. EPA notes that the coverages of individual construction sites under this permit do not 

constitute separate Federal undertakings. 
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Response 9.6 Appendix Impaired Waters

EPA received comment on the proposed benchmark monitoring requirements. Refer to 

Response 4.1. 

EPA received comment asking whether the Agency intends to provide tables of impaired waters 

for Federal Facilities in Colorado. EPA also received comment suggesting that the Agency 

remove the Appendix (which lists impaired waters) completely. EPA has removed the Appendix 

and is not providing a table of impaired waters in the 2012 CGP, but EPA is developing a 

mapping tool that will assist potential permittees to identify in their NOIs the surface water(s) to 

which they will discharge, whether any of those waters are impaired, and whether any TMDLs 

exist for those waters. 

EPA also received comment asserting that while the mapping tool being developed by EPA to 

help identify discharges to impaired waters is likely to be useful for permittees, it will also lead to 

many false positives asserting that in a given catchment area there are likely to be numerous 

areas that are waters of the U.S., and that, therefore, it is likely that many discharges from 

locations within the catchment will drain to other waters of the U.S. before the impaired segment 

in the catchment. In addition, the commenter asserted that it is possible that the discharge 

would be downstream of the impaired segment. The commenter believes that neither of these 

cases should be considered a discharge to an impaired water. EPA agrees that the mapping 

tool will be useful for permittees. EPA disagrees that the tool will lead to many false positives. This 

is because the CGP Mapping Tool utilizes the best available data to determine whether or not a 

site is considered to discharge to an impaired water, and in the absence of any other 

information, EPA assumes that the tool correctly determines if a site discharges to an impaired 

water. However, due to limitations with the data, EPA recognizes that there could be 

circumstances where the mapping tool does not generate the correct results, i.e., leads to a 

false positive or a false negative. If a permittee does not agree with the tool’s analysis, or is 

unsure if it is correct, EPA recommends that that permittee verify the tool’s results by comparing 

the up-to-date and comprehensive list of impaired waters and EPA-approved or established 

TMDLs associated with their state, tribe, territory, etc. to the surface waters that the permittee 

believes that it will discharge to. Much of this information is accessible through the websites of 

individual states, tribes, territories, etc.; alternatively, permittees could conduct searches for this 

information through EPA’s website located at http://epamap32.epa.gov/radims/ or 

http://www.epa.gov/myenvironment/new/. If a permittee is able to verify through other means 

that the tool is not correct for its site, EPA allows applicants to edit the results generated by the

Mapping Tool in the NOI.. Or, if permittees prefer to determine which waterbodies their sites 

discharge to in their NOIs using alternate methods, EPA also notes that applicants are not 

required to use the Agency’s Mapping Tool. 

EPA received comment questioning whether the metrics employed by the Agency to develop 

the draft CGP’s technical provisions, particularly those in Appendix J, Section 4, were created 

using procedures that are consistent with the requirements of the section and that more 

administrative transparency is needed and appropriate. EPA notes that Appendix J did not 

include a Section 4. Without knowing which technical provisions to which the commenter refers, 

EPA is unable to provide a specific response to the comment. If the commenter is referring to 

Part 4 of the proposed CGP, please refer to Response 4.1 on water quality-based effluent 

limitations. See also Section VIII of the 2012 CGP Fact Sheet, which discusses the purposes of the 

water quality-based effluent limitations in the permit. 

Response 9.7 Standard Permit Conditions

EPA received comment suggesting that the Agency include a reopener clause in the CGP so 

that requirements from the revised national post-construction requirements for discharges from 

areas of new development and redevelopment can be incorporated into the permit. EPA notes 
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that like the 2008 CGP, the 2012 CGP also includes a reopener clause. See Part I.16. As discussed 

in Part I.16, permit modification or revocation will be conducted according to 40 CFR §122.62, 

§122.63, §122.64 and §124.5. 

EPA also received comment on the proposed SWPPP certification language. The commenter 

asserted that the language for certifying the SWPPP is inappropriate, claiming that where a 

contractor has had no involvement in developing a SWPPP, it is inappropriate to require that 

contractor to certify that the SWPPP was prepared under the contractor’s direction or 

supervision. EPA disagrees that the requirement is inappropriate. As discussed in Part 7.1.1 of the 

2012 CGP, the permit gives the option of developing a group SWPPP where more than one 

operator will be engaged in construction activities at a site. For instance, under the group 

SWPPP option, if both the owner and the general contractor of the construction site are 

permitted, the owner may be the party responsible for SWPPP development, and the general 

contractor can choose to use this same SWPPP, as long as the SWPPP addresses the general 

contractor’s scope of construction work. Thus, the general contractor would not be required to 

certify that the SWPPP was prepared under the general contractor’s direction or supervision if 

the owner developed one that addresses the general contractor’s scope of construction work. 

 
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Comment Response Essay 10 General Statement of Support 

Response 10.1 Support for Proposed CGP

EPA received multiple comments expressing general support for the proposed CGP. EPA 

appreciates the support. 

Response 10.2 Examples of Impacts of Stormwater Discharges from Construction Sites

EPA received comments identifying some of the potential impacts on surface waters caused by 

stormwater discharges from construction sites. Some commenters provided examples. EPA 

thanks commenters for providing the information. The Agency has considered all comments in 

developing the final 2012 CGP. 

Response 10.3 Permit Should Require State-of-the-Art Control Measures

EPA received comments suggesting that the Agency should further strengthen the permit “to 

require state-of-the-art control measures”. While EPA has not incorporated this language into the 

permit, EPA believes that permittees will use state-of-the-art control measures to the extent that 

they are technologically available and are economically practicable and achievable in light of 

best industry practices. EPA notes that the 2012 CGP implements the technology-based effluent 

limitations in the C&D Rule (40 CFR part 450). The C&D Rule and, more directly, EPA’s 2012 CGP, 

provide and maintain flexibility for operators to choose site-specific BMPs to most appropriately 

meet the non-numeric effluent limitations. The permit requires operators to design, install, and 

maintain erosion and sediment controls that minimize the discharge of pollutants from earthdisturbing activities, as described in Part 2 of the permit. The permit defines “minimize” as “to 

reduce and/or eliminate to the extent achievable using stormwater controls that are 

technologically available and economically practicable and achievable in light of best industry 

practices.” EPA believes that this definition includes the use of “state-of-the-art control 

measures” to the extent that they are technologically available and economically practicable 

and achievable in light of best industry practices. EPA also believes that this approach ensures 

that permittees, each of which faces unique situations, have maximum flexibility in complying 

with permit requirements while allowing them to consider site-specific factors. 

 
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Comment Response Essay 11 General Statement of Opposition 

Response 11.1 Comments Expressing General Concern with the Proposed CGP

EPA received comments expressing general concern with the proposed permit. In general, these 

comments are summary statements that are part of larger comment letters in which 

commenters elaborated on their concerns or provided more specific comments. The comments 

expressing general concerns included the following issues: 

• Level of flexibility in the permit for all construction projects and for linear construction 

projects in particular, 

• Assertions that the permit should take a “BMP approach”, 

• Feasibility of requirements, 

• Provisions related to numeric effluent limits, 

• Economic impacts on construction industry and the economy, 

• Environmental benefit, 

• Clarity and understandability of the permit, 

• Waiting period, and 

• Buffer requirements. 

For the comment on flexibility, see Response 2.1.1 and Response 13.1. 

For the comment on “BMP approach,” to the extent that the commenter means that EPA should 

issue a permit with non-numeric effluent limitations and exclude numeric turbidity limits, EPA 

notes that the 2012 CGP includes non-numeric effluent limitations but does not include a 

numeric turbidity limit. 

For the comment on “feasibility”, see Response 13.1. 

For the comment on numeric effluent limits, see Response See Response 4.1 and Response 6.6. 

For the comments on economic impacts, refer to Response 21 on economic impacts. 

For the comments on environmental benefits, see the Construction and Development NPDES 

General Permit Environmental Assessment developed in support of the 2012 CGP and available 

in the docket for the permit. 

For the comment clarity and understandability of the permit, see Response 13.1. 

For the comment on waiting period, see section II of the 2012 CGP Fact Sheet. 

For the comment on buffer requirements, see Response 2.3. 

EPA also refers the reader generally to the 2012 CGP Fact Sheet in which the Agency explains 

permit provisions in detail and discusses the purpose of each provision. 

 
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Comment Response Essay 12 Request to Extend Permit Period 

Response 12.1 Request to Extend Permit Period

EPA received several comments on the proposed timeline for issuance of the 2012 CGP. Some 

commenters suggested that the EPA delay issuing the permit. Others asserted that the Agency 

needed additional time to clarify or to develop numeric turbidity limits. And others suggested 

that the Agency wait until EPA finalizes the C&D Rule, presumably the numeric limit portion of it 

since the non-numeric portions are already finalized. Some suggested that the Agency keep the 

2008 permit in place for a full five-year term and wait to issue the new permit until June 30, 2013. 

One commenter suggested this in order to give EPA time to streamline the permit, to incorporate 

final C&D rule effluent limitations (presumably numeric since the non-numeric limitations are 

already final), and to allow courts time to fully adjudicate all issues. Still others suggested that the 

Agency wait to issue the permit long enough to accommodate the actions that need to occur, 

as well as to foster a meaningful public process on those actions. 

For comments related to delaying the issuance of the permit because of delays related to the 

turbidity limit, EPA notes that the C&D rule did include a numeric limit for turbidity, but the 

Agency has issued a stay of the numeric limit for turbidity (and related monitoring requirements) 

so that the limit can be recalculated. Until a new numeric turbidity limit has been promulgated, 

the EPA and authorized states are not required to incorporate the stayed numeric turbidity 

limitation (or any other numeric turbidity limitation) or monitoring requirements into their permits. 

However, the remainder of the regulation, including the non-numeric effluent limitations in the 

C&D Rule (40 CFR 450.21), is still in effect and must be incorporated into newly issued permits. 

EPA notes that the 2008 CGP and the authorization to discharge under the 2008 CGP expired at 

midnight, February 15, 2012. EPA is issuing a new CGP rather than extending the 2008 CGP to 

incorporate new requirements that implement the technology-based Effluent Limitation 

Guidelines and New Source Performance Standards for the construction and development 

industry (i.e., the C&D rule), which were issued by EPA on December 1, 2009. The 2012 permit 

also includes water quality-based requirements for construction sites discharging stormwater to 

all surface waters, including impaired and high quality waters requiring additional pollutant 

control. EPA believes that issuing a new permit that incorporates the new C&D rule requirements 

now, rather than waiting until June 30, 2013, is more protective of water quality because the 

permit includes several enhanced protections, including provisions to protect impaired and 

sensitive waters and several new requirements for (1) Eligibility for emergency-related 

construction, (2) provisions for sites using certain treatment chemicals, (3) increased usage of the 

electronic notice of intent process, (4) Sediment and erosion controls, (5) Natural buffers or 

alternative controls, (6) Soil stabilization, (7) Pollution prevention, (8) Water quality-based effluent 

limits, (9) Site inspections, (10) Corrective action, (11) Stormwater Pollution Prevention Plans, and 

(11) Permit termination. 

EPA also received comments suggesting that the Agency delay issuance of the CGP to give EPA 

time to develop a “single lot permit” and provisions for “qualifying local programs.” As discussed 

above, EPA issued the 2012 CGP on February 16, 2012 because the 2008 CGP and the 

authorization to discharge under the 2008 CGP expired at midnight, February 15, 2012 and EPA 

did not want to leave operators without this option of seeking permit coverage for construction 

stormwater discharges. See also responses on “single lot permit” and “qualifying local program” 

in Response 13.1. 

EPA also received a comment suggesting that the Agency provide additional time to states in 

developing their state-specific construction stormwater permits. See discussion above regarding 

the need for EPA to issue this permit now to ensure that operators have coverage options for 

construction stormwater dischargers. In addition, this comment is beyond the scope of the EPA’s 

2012 CGP. 
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Comment Response Essay 13 Miscellaneous Comments 

Response 13.1 Miscellaneous Comments

General Miscellaneous 

EPA received several general suggestions for Agency consideration. Some of these comments 

pointed out typographical and other inadvertent errors in the proposed permit. EPA has 

reviewed these comments and made corrections as necessary to the final permit. EPA 

appreciates all of the suggestions the Agency received and considered them in developing the 

final 2012 CGP. Some comments included suggestions for the permit that would have been 

inconsistent with the effluent limitation guidelines (ELGs) and new source performance standards 

(NSPS) to control the discharge of pollutants from construction sites. See 74 Fed. Reg. 62996, and 

40 CFR 450.21. These requirements, known as the “construction and Development Rule” or “C&D 

rule”, became effective on February 1, 2010. Because the 2012 CGP is being issued after the 

effective date of the C&D rule, EPA is required to incorporate the C&D rule requirements into this 

permit. For this reason, the 2012 CGP includes significant modifications to the 2008 CGP to reflect 

these requirements. 

Many comment letters included introductory language or general statements. EPA has read 

these comment letters in full and responded to the specific comments contained in the letters. 

Similarly, some comment letters indicated that the commenter agrees with the comments of 

others or request that the comments of others be incorporated by reference into their own 

comments. EPA notes that the Agency has responded to these comments where they appear. 

Permit Clarity and Objectivity 

EPA also received comment suggesting that the Agency improve clarity of the proposed permit 

and that the Agency ensure that the final permit is implementable. EPA appreciates the 

comment and has made changes such that EPA believes the final permit is clear and 

implementable. EPA made the proposed permit available for public review and comment and, 

as documented in this response to comment document, EPA has reviewed and considered all 

public comments and made changes, as necessary. In addition, the final permit has gone 

through thorough review both internally, within the Agency, and externally, through interAgency review. These reviews have enhanced the final permit and ensure that the permit is 

clear and implementable. 

For comments on permit objectivity, EPA appreciates the comment and believes that the final 

permit is sufficiently objective. However, the permit is balanced between provisions that have 

numeric components (e.g., stabilization deadlines, buffer requirements, inspection and 

corrective action deadlines, etc.) with provisions that provide more flexibility or are based on the 

concept of minimizing pollutant discharges (e.g., disturbing steep slopes, minimizing track-out, 

etc.). 

Applicability to Other States Where EPA is Not the Permitting Authority 

Some commenters sought clarity on the implications of the 2012 CGP for states for which EPA is 

not the permitting authority. The CGP provides permit coverage in states and other areas where 

EPA is the permitting authority. EPA is the permitting authority in four states (i.e., Idaho, 

Massachusetts, New Hampshire, and New Mexico); the District of Columbia; Puerto Rico; all 

other U.S. territories, with the exception of the U.S. Virgin Islands; federal facilities in four states 

(i.e., Colorado, Delaware, Vermont, and Washington); most Indian lands; and for a few other 

specifically designated activities in specific states. While some states for which EPA is not the 

permitting authority may choose to refer to the 2012 CGP as a model as they develop their own 

general permits for discharges from construction sites, EPA notes that they are not required to do 

so, and the 2012 CGP does not apply to discharges where EPA is not the permitting authority. 
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Instead, these states are required to incorporate the C&D rule requirements into permits that 

they issue after February 1, 2010, the effective date of the C&D rule. See 74 Fed. Reg. 62996, and 

40 CFR 450.21. 

Permit Flexibility 

EPA received general comments asserting that the proposed CGP lacked flexibility, was too 

prescriptive, and was not accommodating of the full range of applicable construction activities, 

including heavy construction and linear construction. EPA disagrees with these comments. EPA 

has been responsive to many of the concerns expressed about the permit being too 

prescriptive, and has made many provisions in the final permit more flexible, including 

requirements to avoid steep slopes, to remove sediment track-out, to minimize soil compaction, 

to stabilize construction entrance and exit points, regarding inspection frequency, and to 

prevent pollution. Where EPA has retained specificity in the permit, EPA believes the specificity is 

necessary so that the permit conditions are clear to permittees and also are protective of water 

quality. 

See also Response 2.1.1 on permit specificity and complexity. 

For general comments related to flexibility with respect to buffer requirements, see Part 2.1.2 of 

the permit for a description of buffer requirements, including alternative options, and section 

VII.1.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the buffer requirements. 

For general comments related to flexibility with respect to stabilization requirements, see Part 2.2 

of the permit for a description of stabilization requirements, including flexibilities in the 

requirement. See section VII.2 of the 2012 CGP Fact Sheet for a discussion on the purpose of the 

stabilization requirements. 

Some commenters asserted that EPA should not issue a permit with requirements that are more 

specific than those in the C&D rule. EPA disagrees with these comments and notes that the C&D 

rule gives the permitting authority discretion in developing permits. EPA is the permitting authority 

for the 2012 CGP. Where EPA has included requirements in the 2012 CGP that are more specific 

than those in the C&D rule, EPA has done so to minimize the discharge of pollutants from active 

construction sites, as authorized by the C&D rule, but also to finalize a clear and enforceable 

active construction activity stormwater general permit. 

Comment Asserting that Proposed Permit is Arbitrary

EPA received comment asserting that the proposed permit is arbitrary. EPA disagrees. As 

discussed above, the permit implements the requirements of the C&D rule. EPA discusses the 

purpose of permit requirements in the 2012 CGP Fact Sheet. 

Permit Burden 

EPA received comment asserting that the 2012 CGP is burdensome. EPA disagrees that the 2012 

CGP adds significant burden. See the economic analysis developed in support of the permit 

available in the docket for the 2012 CGP. 

Permit Length 

EPA received comment asserting that the permit is voluminous. EPA reviewed the proposed 

permit, looking for areas where the Agency could streamline requirements and reduce permit 

length while maintaining permit protections. EPA notes that the Agency was able to significantly 

shorten the final permit. 

Mapping Tool 

EPA received comment asking when the mapping tool will be available and suggesting that the 

tool be made available prior to issuance of the permit. EPA intends to make the mapping tool 
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available with the issuance of the 2012 CGP. Some commenters asserted that EPA should make 

the mapping tool available early to provide time for review and comment or to give operators 

time to plan. 

Unfortunately, the Agency was not able to issue the mapping tool early due to timing and 

resource limitations. As noted in Response 4.1, the mapping tool utilizes the best available data 

to determine whether or not a site is considered to discharge to an impaired water, and, in the 

absence of any other information, EPA assumes that the tool correctly determines if a site 

discharges to an impaired water. However, EPA welcomes comment (e.g., via the email address 

created in support of the 2012 CGP, cgp@epa.gov) on the mapping tool once the tool 

becomes available for public use and intends to make any necessary corrections or updates to 

the tool as needed and as resources allow. Also, as noted in Response 4.1, applicants are not 

required to use the mapping tool. 

See Response 4.1. 

SWPPP Template and Inspection Report Template 

EPA received comment asking when a new SWPPP Template or Inspection Report Template will 

be provided. One commenter asserted that it is important that the Agency provide the SWPPP 

template in a sufficient amount of time before permit issuance to allow operators to develop 

their new SWPPPs. EPA intends to make the SWPPP template available with the issuance of the 

2012 CGP. Unfortunately, the Agency was not able to issue the SWPPP template earlier due to 

timing and resource limitations. EPA also intends to make an inspection report template 

available soon after the issuance of the 2012 CGP, as Agency resources allow. 

Nephelometers 

EPA received comment asking whether the Agency will make any recommendations for 

nephelometers or provide training for their use. EPA does is not planning to make any 

recommendations for nephelometers or to provide training for their use under the 2012 CGP at 

this time, noting that the permit does not include the proposed numeric turbidity limit. 

Training and Guidance 

EPA received comment asking whether the Agency will provide any training on the permit 

before its issuance. EPA also received suggestions that the Agency include tables, flow charts, or 

similar devices in the guidance materials. EPA intends to provide training and other 

implementation assistance through webcasts and guidance documents after the issuance of 

the 2012 CGP. EPA plans to include tables, diagrams, and/or other similar devices in the 

webcasts and guidance documents. 

SWPPP Administration Software 

EPA received comment asking whether the Agency will be making recommendations for SWPPP 

administration software or site inspection software. EPA does not intend to make 

recommendations for SWPPP administration software or site inspection software. 

Information Quality 

EPA received comment asserting that the Agency must comply with the Information Quality Act, 

44 U.S.C § 3516 and that, “to comply, EPA must ensure all information disseminated with respect 

to a listing determination meet OMB’s high standards for objectivity, utility, and integrity before it 

is disseminated and to substantiate information quality ‘through documentation or other means 

appropriate to the information.’ 67 Fed Reg. at 8459.” The commenter also asserts that EPA 

should demonstrate that the Agency has complied. EPA notes that the 2012 CGP was reviewed 

by OMB prior to permit issuance. EPA believes that the permit is consistent with the Information 

Quality Act and EPA’s Information Quality Guidelines (located at 
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http://www.epa.gov/quality/informationguidelines/documents/EPA_InfoQualityGuidelines.pdf). 

The Agency has utilized the best available sources of data and information, including peerreviewed journals and state- and university-developed guidance manuals. EPA has 

documented the sources used by the Agency in support of the 2012 CGP in the docket for the 

permit. The official public docket is the collection of materials that is available for public viewing 

at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 

Constitution Ave., NW, Washington, DC 20460. Materials may also be available through 

http://www.regulations.gov. The docket ID for the 2012 CGP is EPA-HQ-OW-2010-0782. 

Rationale for SWPPP 

EPA received comment questioning the need for the SWPPP requirements. EPA explains the 

purpose of the SWPPP requirements in section XII of the 2012 CGP Fact Sheet. 

Jurisdictional Determination Requests 

EPA received comment asking whether the Agency will provide guidance on identifying “waters 

of the U.S.” The commenter asked whether the CGP “will include ‘jurisdictional determination 

(JD) requests’ and ‘preliminary JDs (PJDs)’” and whether the Army Corps of Engineers or EPA will 

respond to JD requests made for the purposes of the CGP or other, state-issued, CGPs (for the 

buffer requirements, in particular) and whether such requests will be part of the NOI system. 

EPA notes that JD of Waters of the US is outside the scope of this action. 

Invasive Species 

EPA received comment suggesting that the Agency require measures to prevent the spread of 

invasive species. The commenter did not provide a connection between the concern about 

invasive species and pollutant discharges from construction sites. 

Exceptions and Flexibility for Restoration or Revitalization Projects 

EPA received comment suggesting that the Agency include exceptions or flexibility in the 2012 

CGP for restoration or revitalization projects. EPA notes that the 2012 CGP includes flexibility 

throughout the permit. See discussion on flexibility above. While EPA recognizes the ecological 

benefit of restoration or revitalization projects, EPA notes that discharges from construction 

activities (including those associated with restoration or revitalization projects) that meet the 

eligibility criteria under Part 1 of the 2012 CGP would be subject to the permit to protect 

receiving waters from discharges resulting from such projects. 

Requirements for Projects Covered Under 404 Permits

EPA received a comment in which a commenter requested clarification whether “projects 

permitted under §404 of the Clean Water Act need [to] obtain coverage under the general 

construction stormwater permit.” EPA notes that operators of active construction sites that will 

discharge pollutants to waters of the U.S. are subject to section 402 of the CWA (NPDES) and 

must obtain coverage under a section 402 (NPDES) permit (whether the CGP, an individual 

permit, or a state CGP) for such discharges from their construction activities. Part 1 of the permit 

explains the eligibility conditions for the permit. 

Use of Term “Infeasible” 

EPA received comment suggesting that the Agency should avoid use of the term “infeasible”, 

asserting that the term is subjective and makes it difficult for regulators to ensure that an owner is

complying with a permit requirement. EPA notes that the Agency has defined infeasible for the 

purposes of the 2012 CGP. See Appendix A. The term allows EPA to incorporate flexibility into the 

permit and balances environmental protection with technical and economic limitations. EPA 

notes that the 2012 CGP incorporates the requirements established in the C&D rule, which also 

uses the term “infeasible.” 
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Access to Internet 

EPA received one comment asserting that not all owners or operators have access to the 

Internet. To the extent that the commenter is concerned with the Internet-based eNOI system, 

EPA notes that the Agency will allow paper NOIs in limited circumstances if applicants receive 

permission from EPA regional offices prior to submission of application. To the extent that the 

commenter is concerned with Internet access in general, EPA notes that the 2012 CGP does not 

require Internet access but recognizes that Internet access will be helpful. For example, 

webcasts and guidance materials will be available through the Internet. However, noting that 

EPA received only one general comment on this issue, EPA does not believe that a significant 

number of owners or operators will have difficulty accessing the Internet. EPA notes that Internet 

access in homes and offices is common and that many public libraries offer free Internet access 

which will be helpful for those who may not have access in the home or office. EPA also notes 

that owners or operators who cannot access the Internet can always call the Agency. EPA has 

provided phone numbers of EPA regional contacts in the FR notice for the 2012 CGP. 

Technical Proficiency to Understand Requirements 

EPA received comment asserting that small and rural projects will lack the technical proficiency 

to understand requirements. EPA disagrees. See discussion on clarity above. While EPA believes 

the requirements are clear as written in the 2012 CGP, the Agency still plans to host webcasts 

and to develop guidance materials to help permittees fully understand the requirements. 

Removal of All Sediment 

EPA received comment asserting that the removal of all sediment is not always positive and that 

removal of too much sediment may result in downstream erosion. EPA notes that the 2012 CGP 

does not require the removal of all sediment and also that the permit does not address all 

sources of sediments. Rather, the permit requires operators to design, install, and maintain 

erosion and sediment controls that minimize the discharge of sediment and other pollutants from

earth-disturbing activities . That is, the permit uses a “minimization” framework for these pollutants 

rather than a “100% removal” framework, and the permit addresses discharges from “earthdisturbing activities” and not runoff from natural sources. 

Statutory Authority 

EPA received general comments on EPA’s authority to issue the 2012 CGP. For any comments or 

questions related to EPA’s authority to issue the 2012 CGP, see Part I of the 2012 CGP Fact Sheet. 

EPA received comment that the Agency is regulating land use through the permit and lacks the 

authority to do so. EPA notes that the Agency is not regulating land use but rather the discharge 

of pollutants from construction sites and from construction support activities to waters of the 

United States. For further information, see generally the 2012 CGP, the 2012 CGP Fact Sheet, 

and the responses to comments in the docket for this action. 

Determining Receiving Waters and Impairment Status 

EPA received comment asserting that determining the receiving water body and impairment 

status would be difficult. Commenters were concerned with the requirement to identify the 

receiving waters and impairment status of the discharges from the site, asserting that such a 

requirement is onerous. See Response 4.1. 

Daily or Day 

EPA received comment requesting that the Agency clarify the use of the word daily or day to 

clearly distinguish between calendar day and working day. EPA has reviewed the proposed 

permit and clarified the language in the final permit to clearly distinguish between calendar day 

and working day, as necessary. 
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Waiting Period 

Several commenters criticized the proposed 30-day waiting period for being too long. EPA notes 

that the 2012 CGP establishes a 14-day waiting period. 

Comments Related to Numeric Turbidity Limit or Sampling 

See Response 3.1, Response 4.1, and Response 6.6. 

Suggestions for Implementation, Enforcement, Compliance, and Public Participation 

EPA received multiple comments with suggestions for implementation, enforcement and 

compliance of the permit, including suggestions to include opportunities for public participation. 

Some commenters asserted that the causes of erosion and sediment transport are rooted in 

improper implementation of the current permit requirements and a failure on the part of 

contractors or developers to follow current rules. Another commenter asserted that the 

enforcement community is facing dwindling resources and suggested that the Agency establish 

an online information and reporting resource, available to the general public, for “enlisting the 

general public’s assistance” and “to meet the goals of transparency, public participation, and 

collaboration”. EPA appreciates the comments and suggestions and notes that the 2012 CGP 

includes provisions to allow for public participation including (1) an opportunity to review during 

the waiting period (operators must submit their NOIs at least 14 days prior to commencing earthdisturbing activities, which NOIs EPA will immediately post on our website, which gives the public 

the ability to review those NOIs [see www.epa.gov/npdes/cgpenoi]), (2) a requirement for 

permittees to post a notice of permit coverage at a publicly accessible location in close 

proximity to the project site (Part 1.5), and (3) a provision explaining that EPA may provide 

access to portions of the SWPPP to members of the public upon request (Part 7.3). EPA believes 

these provisions will result in increased accountability and compliance. 

EPA also received comment asserting that permittees will not comply unless they are forced to 

do so through enforcement action. EPA disagrees. While EPA will implement an enforcement 

program as one way to ensure permit compliance, EPA believes that operators will comply 

because of increased awareness of permit applicability (because of EPA outreach activities 

including public meetings, outreach activities, and communication strategies) and because of 

the ability for public participation and associated accountability (see above). Others asserted 

that EPA will negotiate away fines and that, therefore, non-compliance is a safe business risk. 

EPA disagrees with this comment, noting that the Agency intends to enforce the 2012 CGP. The 

Clean Water Act and its implementing regulations require strict compliance with the CGP. EPA 

takes its enforcement responsibilities very seriously. EPA will actively enforce the 2012 CGP 

requirements. In addition to EPA's civil enforcement program that protects human health and 

the environment by taking legal action to bring polluters into compliance with federal 

environmental laws, the Agency's criminal enforcement program focuses on cases involving 

negligent, knowing, or willful violations of these laws. 

EPA also received comment suggesting that the Agency ensure that the final permit is 

implementable. EPA believes the final permit is implementable. EPA headquarters developed 

the final permit in collaboration with EPA regional offices. EPA made the proposed permit 

available for public review and comment and, as documented in this response-to-comment 

document, EPA has reviewed and considered all public comments and made changes, as 

appropriate. Included among these comments were comments from states, local governments, 

NGOs, environmental groups, and the regulated community. In addition, the final permit has 

gone through a thorough review both internally, within the Agency, and externally, through 

inter-Agency review. These reviews have enhanced the final permit and ensure that the permit is 

implementable. See also response on permit clarity above. 

Permit Training 
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Some commenters asserted that the permit is complex and suggested that EPA should offer 

training. To help with permit clarity and implementation, EPA plans to host webcasts and to 

develop and update existing guidance materials. 

One commenter asserted that her department will require lead time to identify budget and 

scope necessary to implement training and requested clarity on when the final permit would be 

released and when the final permit would be become effective. EPA notes that the 2012 permit 

was released and became effective at the same time. While EPA understands that the release 

date means that any training on the final permit will have to occur after the permit is issued, the 

Agency notes that EPA made every effort to make the final permit easy to read and 

implementable. See discussion on “permit clarity” above. EPA also notes that the 2012 CGP 

implements the requirements established in C&D rule, which became effective on February 1, 

2010. See 74 Fed. Reg. 62996, and 40 CFR 450.21. 

Use of Chemical Treatment 

For general comments on chemical treatment, EPA notes that the 2012 CGP does not require 

the use of chemical treatment. See Part 2.1.3.3 of the 2012 CGP for a description of provisions 

related to the use of treatment chemicals and section VII.1.3 of the 2012 CGP Fact Sheet for a 

discussion on the purpose of the provisions. 

Permit Provisions Related to Federal Regulations 

One commenter asserted that the proposed permit appears to include provisions that duplicate 

and/or expand upon federal requirements such as Endangered Species Act and Spill Prevention 

Control and Countermeasure (SPCC) requirements. The commenter questioned the 

reasonableness of including such provisions. For the comment on ESA, EPA discusses the purpose 

of the ESA permit requirements in section XV.D of the 2012 CGP Fact Sheet. For the comment on 

SPCC, EPA discusses the purpose of the permit pollution prevention standards in section VII.3.3 of 

the 2012 CGP Fact Sheet. If applicable, permittees must comply with the SPCC requirements in 

40 CFR 112 and Section 311 of the CWA. 

Applicability to Mining Industry 

EPA received comment asking the Agency to clarify the applicability of the 2012 CGP to the 

mining industry. EPA notes that the 2012 CGP does not cover discharges from mining operations 

unless they involve construction activity and are covered by 40 CFR 122.26(b)(14)(x) or (b)(15). 

Thus, the 2012 CGP covers discharges from construction activities required to obtain NPDES 

permit coverage and performing the following activities: construction of buildings, including 

building, developing and general contracting; and heavy and civil engineering construction, 

including land and subdivision. See Part 1.1 of the permit. 

Required Use of GI and LID 

EPA received comments suggesting that the Agency require the use of green infrastructure and 

low-impact development, particularly at sites discharging to impaired or sensitive waters. As an 

advocate of green infrastructure and low-impact development, EPA appreciates these 

comments and notes that the Agency encourages the use of green infrastructure and lowimpact development. However, EPA crafted the non-numeric effluent limits in the C&D rule on 

which the 2012 CGP is based to allow flexibility in how the permitting authority implements these 

requirements in permits. See 74 FR 63016. As an example, 40 CFR 450.21(a)(5) requires 

construction operators to design, install, and maintain controls to “minimize sediment discharges 

from the site.” EPA notes that the permit does allow for the Agency to require corrective action 

and/or additional stormwater controls if the stormwater controls that the permittee has installed 

and is maintaining are not effective enough for the discharge to meet applicable water quality 

standards (See Parts 3.1 and 5.2.1.2). 
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Qualifying State, Tribal, or Local Programs (QLP) 

EPA received comment asserting that the Agency should revamp the QLP program to remove 

impediments and make it more attractive for state and local adoption. The commenter also 

asserted that EPA should also work with the regions to educate them about the QLP and provide 

incentives or other enticements to increase state adoption of this language and streamline the 

permitting process and that EPA should develop a process for facilitating and encouraging 

implementation of the QLP in the CGP. EPA also received comment suggesting that EPA allow 

state agencies to work with local municipalities in the arid Southwest to develop permit 

requirements that are appropriate for local conditions. 

The Agency is not incorporating any QLPs into the CGP at this time. EPA’s NPDES regulations at 

Parts 122 and 124 require that EPA provide public notice for any draft permit before issuing a 

final permit, with the exception of minor modifications, which do not have to follow the Part 124 

procedures. Incorporation of a QLP into the CGP would not be considered a minor modification, 

as defined in 40 CFR § 122.63, thus EPA acknowledges the requirement to publish any QLP in a 

draft permit to provide public notice and opportunity for comment in advance of final permit 

issuance. When approving QLPs, EPA will identify the specific QLP requirements; however, the 

applicability of those local requirements will not change. Qualifying those local requirements will 

eliminate the potential for duplicative or conflicting language in the CGP from being applicable 

to those construction sites operating in QLP jurisdictions. As designed, QLP requirements become 

conditions of the permit, by reference, and as such, incorporating such requirements into the 

permit are considered permit modifications that , as described above, must be made consistent 

with 40 CFR Parts 122 and 124 requirements and procedures. As reflected in 40 CFR §122.63, 

incorporating qualified local program requirements into the CGP does not meet criteria eligible 

for minor permit modifications. EPA envisions that QLPs can be incorporated into construction 

permits as the permits are issued and then again periodically during the life of the permit. No 

mechanism is available to the Agency to provide for automatic incorporation of QLP 

requirements into NPDES permits without first undergoing a 30-day public notice process (as they 

would not be minor modifications, as explained above). 

However, the 2012 CGP does allow for collaboration between local municipalities and states to 

occur and notes that the permit construct allowed for the applicable states to establish permit 

conditions specific to their states, Indian Country lands, or territories as part of their Section 401

certification for the permit (Part 9). For the comment on regional programs, see discussion on 

QLP above. To the extent that the commenter was not referring to a QLP, EPA notes that nothing 

in the 2012 CGP precludes the establishment of other types of regional programs. 

No Discharge Certification 

EPA received comment suggesting that the Agency develop a “no discharge” certification 

program. Under the program, construction sites that do not discharge and receive certification 

that they do not discharge would not require coverage under the CGP. EPA has decided not to 

establish a “no discharge” certification program under the 2012 CGP. EPA notes that neither this 

permit nor CWA section 402 apply to construction sites without discharges of pollutants to waters 

of the U.S. See 40 CFR 122.26(a)(1)(v), (b)(14)(x), (b)(15)(i), and (b)(15)(ii) 

Single Lot Permit 

EPA received comment suggesting that the Agency develop a single lot permit that would 

authorize stormwater discharges from residential construction activities that occur on single lots. 

EPA recognizes the concerns raised by the commenter regarding the challenges faced by small 

developers or developers of small sites. EPA evaluated the possibility of doing a single lot permit. 

EPA determined that a single lot permit would not be significantly different in length or scope 

from the 2012 CGP permit, which was central to the commenter’s reasoning for this suggestion. 

One reason is that like the 2012 CGP, a single lot permit would also include the requirements 
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included in the C&D rule. Another reason is that, like construction sites in general, single lots are

made up of a diverse universe. For example, single lots may be located in wet climates or dry 

climates; they may or may not be around or adjacent to (i.e., within 50 feet of) surface waters; 

they may or may not discharge into impaired waters; and they may exist in flat areas or in steep 

areas. Given these circumstances, EPA believes it would be difficult to significantly simplify the 

permit or to develop a significantly shorter permit for single lots. However, EPA notes that the 

Agency has incorporated flexibility throughout the permit (see discussion on flexibility above). In 

addition, EPA plans to provide technical support including webcasts and guidance materials. 

Stabilization 

For comments on stabilization including comments on C-factor, see response on stabilization in 

section 2 of this document. 

Linear Projects 

For comments on linear projects, see Response 2.3.6. 

 
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Comment Response Essay 14 Structure of the Permit 

Response 14.1 Consistency of Requirements in Proposed Permit

Several commenters raised concerns about the inconsistency of definitions and requirements in 

the proposed permit. The following specific issues were raised, to which EPA responds below: 

• Definitions – A few commenters raised general concerns about terms that were defined 

differently in the proposed permit than in the definitions in Appendix A. EPA found 

several inconsistencies between the permit and the Appendix A definitions, and has 

corrected these in the final permit. 

• Sampling and reporting requirements – One commenter noted the redundant inclusion 

of sampling and reporting requirements in two different sections of the proposed permit 

(Part 3 and 4). These requirements have been removed from the permit, and therefore 

the comment is no longer applicable. No further response is required. 

• Stabilization deadlines – One commenter noted the confusion of imposing different sets 

of deadlines on sites, one that applies generally , and then different ones that apply 

where the site discharges to an impaired water, where the project disturbs steep slopes 

or the buffer, or where stormwater conveyances are being built. EPA has attempted to 

simplify these requirements in the final permit. See Essay Response 2.28, 2.33 thru 2.39. 

• Antidegradation and impaired waters requirements – One commenter noted the 

redundant references in Parts 4.2 and 4.2.3 of the proposed permit to the fact that EPA 

will inform the permittee if additional requirements are necessary. EPA notes the 

commenter’s concern, however, the Agency believes it is important to emphasize in 

both the impaired waters and antidegradation sections that additional requirements 

may be imposed on a case-by-case basis. This is especially important given the fact that 

the requirements for impaired waters and for Tier 2, 2.5, and 3 waters are written to apply 

to all sites discharging to such waters, and the fact that EPA believes that these 

additional requirements, together with the Part 2 technology-based requirements and 

general Part 3 water quality-based requirements, will be sufficiently protective to achieve 

water quality standards. Where additional requirements are considered necessary for a 

specific site, EPA wants permittees to be on notice that the Agency may require 

compliance with such additional requirements or, alternatively, that the operator may 

be required to apply for coverage under an individual permit. 

• Water quality sampling and inspection requirements – One commenter noted the 

inconsistencies between the benchmark monitoring requirements and the inspection 

frequency requirements in the proposed permit. The commenter argued that because 

the requirements for inspecting the site during a rain event and those for taking samples 

both depend on precipitation, they should be consistent. EPA appreciates the 

comment. The benchmark monitoring requirements have been removed in the final 

permit, and therefore the comment is no longer applicable. No further response is 

required. 

Response 14.2 Permit Structure

One commenter raised concerns about the readability of the permit given the organization of 

the permit in two “micro-sublevel headings.” EPA appreciates the comment, and agrees with 

the commenter regarding the importance of the permit readability. During permit finalization, 

EPA attempted to streamline the entire permit in response to comments with the hopeful result 

being that the permit is more readable. EPA believes that these modifications should address 

the commenter’s concerns. 
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Comment Response Essay 15 Environmental Assessment 

Response 15.1 Environmental Assessment

Notice to Prepare an Environmental Assessment (EA) 

EPA received comment through the scoping process pursuant to the National Environmental 

Policy Act (NEPA) regarding the environmental issues and reasonable alternatives related to the 

reissuance of the Construction General Permit (CGP) to be examined in an Environmental 

Assessment (EA). 

One commenter questioned the requirement of conducting a NEPA review for the reissuance of 

the CGP and believes that the initiation of the scoping process should be delayed until the C&D 

ELG is finalized and incorporated into the CGP. The commenter also suggested EPA limit its 

review of environmental issues associated with construction site stormwater runoff to sediment 

only and requested that a modified CGP option be analyzed as an alternative. 

Another commenter requested the scope of analysis addressed in the EA include impacts to 

threatened and endangered species, water quality including oceans and sea-level rise and 

historic properties. Additionally, the commenter stated that “other (State) agencies 

requirements must be reviewed by EPA to its appropriateness in the contribution of water 

pollution”. 

EPA thanks both of the commenters for their comments and suggestions. EPA regulations (40 

CFR 122.29(c)) specify that the issuance of a “new source” NPDES permit, such as the CGP, 

under Section 402 of the Clean Water Act (CWA) is considered a “federal action” that is subject 

to the National Environmental Policy Act (NEPA) and is subject to the review provisions set forth 

at 40 CFR Part 6. As a result, EPA must analyze, document and make public the potential direct, 

indirect, and cumulative environmental impacts that may arise from the reissuance of a CGP. 

EPA believes that the EA considered all reasonable alternatives to the proposed action, 

including a no action alternative. The EA was published in the Federal Register for a 30-day 

public comment period on December 23, 2011 (76FR80366, Dec. 23, 2011). 

The scope of the EA was limited to the environmental resources that may be affected by the 

reissuance of the CGP, including impacts to threatened and endangered species, water quality 

and historic properties. EPA appreciates that there may be additional State protections beyond 

those provided by the CGP; however, EPA focused its EA on the potential impacts of the permit. 

Additionally, the scope of the EA was limited both geographically to those coverage areas 

specified in the CGP (i.e., in which EPA is the permitting authority for the stormwater general 

permit), and categorically to cover only new sources. 

 
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Comment Response Essay 16 EPA Interaction with Stakeholders 

Response 16.1 Process

EPA received comments regarding the Agency’s interaction with the public and stakeholders. 

Commenters encouraged EPA to work closely with stakeholders during the comment review 

process. EPA agrees and notes that it worked closely with stakeholders throughout the 

development of the permit. Through this interaction, EPA became informed about areas of the 

permit that needed flexibility or were overly burdensome. EPA also took into consideration all of 

the significant comments on the proposed permit from the public and from stakeholders. This 

process helped EPA to develop a permit that EPA believes to be both environmentally 

protective and practicable for permittees. EPA greatly appreciates the input provided to 

Agency during the permit development process. 

One commenter insisted that EPA develop the permit in a manner that is transparent, and 

based on sound science and reasoned decision-making that accounts for economic and other 

factors. For the protection of small businesses and to limit excessive costs of federal regulatory 

requirements, the commenter urged EPA to allow for public participation in its decision-making 

process. EPA believes that the process for developing this permit was indeed transparent and 

based on sound science and reasoned decision-making. As noted above, during the comment 

review period, EPA was very receptive to the concerns expressed by stakeholders and the 

public on the proposed permit. EPA took these concerns into consideration in developing its final 

permit. Also noted above, EPA met with stakeholders when requested to discuss permit 

provisions of concern and ideas for addressing the concerns. EPA was deliberately transparent in 

the information it relied on in developing its final permit language, and provides this information 

for each permit provision in the 2012 CGP in the permit fact sheet. 

Commenters also expressed public participation to be a critical component of the permitting 

program, and noted concern about the lack of a provision in the CGP that allows opportunities 

for public review and participation in the permit coverage process. EPA notes that the Agency 

will make available to the public Notices of Intent on its website, which the public can view 

prior to a permit applicant becomes covered under the permit. This will provide the public the 

opportunity to view the relevant information provided in the NOI about proposed stormwater 

discharges and to voice any concerns to EPA in advance of the discharge occurring. EPA 

believes has worked well in the past, and therefore EPA disagrees that there should be a specific 

provision in the CGP for a separate public comment process. EPA also notes that the permit 

includes a requirement that operators post a notice of permit coverage so that it is viewable 

from a public right-of-way, and a provision that EPA provide access to portions of SWPPPs to the 

public upon request. A commenter also requested that permit applicants notify the applicable 

local government that an NOI has been filed. EPA disagrees with this suggestion. EPA does not 

believe it is the role of the Agency to require information to be provided to local governments. 

However, EPA notes that it may be a requirement that permit applicants also notify their local 

government about their proposed discharges in addition to EPA. 

 
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Comment Response Essay 17 General Comments about Linear Construction 

Response 17.1 Linear

EPA received numerous comments that suggested that EPA provide more flexibility in the CGP 

for linear projects. 

Commenters asserted that the requirements in the draft CGP are more applicable to 

conventional perimeter-bound projects, and do not provide practicable guidelines for linear 

projects. The commenters suggested that due to differences between conventional 

construction and linear projects, some of the requirements in the permit are impracticable or 

infeasible. Some commenters expressed that the implementation of the impracticable provisions 

would be costly for linear communications projects, and provide little to no additional 

environmental benefits to the existing effective stormwater management programs employed 

by linear projects. One commenter suggested that permit imposes disproportionate burdens on 

natural gas utility construction. 

Commenters pointed out the following differences between linear projects and conventional 

construction projects that make it infeasible or impracticable to implement some of the erosion 

and sediment control requirements in the draft permit: 

• Linear projects extend tens or hundreds of miles over different natural terrains, soil 

types, waterbodies and watersheds, regulatory boundaries, and numerous 

stormwater flow barriers.

• Unlike conventional construction, linear projects have uncontrolled perimeters. They 

have little or no capacity to control run-on from off-site sources or run-off from the 

site, and an inability to isolate discharges from the disturbance itself. They also have 

many discharge points. 

• Implementation of some permit requirements are beyond the control of linear utilities. 

Linear projects are constructed on narrow easements provided by multiple 

landowners, and operate alongside other permitted and non-permitted entities 

doing road improvements in the same right-of-way, which make it difficult to comply 

with reporting and inspection requirements that apply to conventional construction. 

• Linear communication projects are often very narrow and have limited 

environmental impact. Impacts are often temporary, isolated, and disconnected, 

and only a small fraction of the total project is usually disturbed at any given time. 

Linear communications projects rarely involve fill. Therefore, there is limited potential 

to contribute to sediment loading. 

• Impacts from linear communications projects are best controlled with BMPs 

appropriate for linear settings; there is little need for artificial stormwater controls. 

Installing erosion and sediment controls may be more disruptive than the project 

itself. Stormwater generally flows naturally over the landscape (i.e., isn’t channelized), 

and if flows are contaminated, they are subject to a best practices filtering method.

One commenter suggested that EPA include the following language in the permit to provide 

flexibility for linear projects: “for utility projects disturbing a narrow corridor of earth, erosion 

controls need only be installed in areas of concentrated flow of stormwater runoff.” Some of the 

specific permit requirements that were pointed out as being difficult to comply with include 

requirements related to:

• Perimeter controls;

• Entry and exit points;

• Controlling peak flowrates and total stormwater volume;
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• Steep slopes;

• Natural buffers or equivalent controls;

• Sediment basins;

• Designating fueling areas;

• Monitoring discharges;

• Active treatment systems; and

• Minimizing exposure of stormwater to building materials and other construction site 

materials.

EPA appreciates the comments provided about the differences between linear projects and 

conventional construction projects. In the final permit, EPA was responsive to concerns 

expressed about specific proposed permit requirements. Specifically, EPA provided additional 

flexibility and eliminated proposed permit provisions in response to concerns expressed by 

commenters relating to the following proposed permit requirements: 

• Natural buffers and/or equivalent controls; 

• Marking off sensitive areas; 

• Additional requirements if steep slopes are disturbed; 

• Minimize stream crossings; 

• Required design factors; 

• Perimeter controls; and 

• Soil Compaction, among others. 

For additional information regarding the flexibility provided to linear facilities regarding these 

erosion and sediment controls, see the comment response essay in Part 2. 

EPA also clarifies that certain provisions in the permit that were of concern to linear projects only 

apply if those stormwater controls are being installed. For example, the requirements regarding 

conveyance channels, sediment basins, and treatment chemicals only apply if the site chooses 

to implement these controls. 

EPA disagrees with the suggestion from some commenters that EPA consider a different 

regulatory approach for linear projects, such as exempting certain types of linear projects from 

the permit, or developing an alternative permit approach, such as an NPDES General Permit for 

linear projects. EPA also disagrees with the suggestion from a commenter that statewide 

permitting programs are appropriate for linear construction projects in lieu of the CGP. Although 

EPA recognizes linear projects have many differences that warrant different erosion and 

sediment control approaches than other types of construction projects, EPA believes that the 

CGP accounts for these differences by provided flexibility regarding the implementation of 

erosion and sediment control requirements in the permit. See comment response essay in Part 2. 

 
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Comment Response Essay 18 No Code, Supplemental Information 

Response 18.1 No Code, Supplemental Information

EPA appreciates the supplemental information (e.g., datasets, attachments) provided with the 

comments received. The supplemental information was informative for EPA to better understand 

the comments. 

 
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Comment Response Essay 19 Cumulative Impact of CGP and other Regulations 

of Industry 

Response 19.1 Cumulative Increase in Burden on Construction Industry

A number of commenters observed that the requirements in the proposed permit are 

burdensome and impracticable, and that the cumulative impact of the permit would be 

damaging to the construction industry, which is already impacted heavily by the recession. 

Several of the commenters observed that the new and additive requirements would render the 

permit unusable. The commenters specifically mentioned provisions that were of greatest 

concerns, among which included the 30-day waiting period, the requirement to install 

stormwater controls prior to construction disturbance, the numeric turbidity limit and related 

sampling requirements, the water quality benchmark monitoring requirements, among others. 

The commenter argued for a more streamlined permit, greater flexibility, and less prescription in 

terms of the required stormwater controls. 

EPA is sensitive to the concerns of the commenters, and found these comments to be persuasive 

in many ways. In response, EPA has attempted in the final permit to address many of the 

cumulative burden issues raised by these concerns. The final permit is more streamlined than the 

proposed permit. In addition, several of the provisions of greatest concern were either removed 

or significantly modified in response to comments received. The following is a list of changes 

made, which EPA believes address the bulk of the commenters’ concerns: 

• Authorization waiting period: EPA reduced the waiting period from the proposed 30 

days to 14 days. EPA has also included additional flexibility for existing and new projects 

that will commence earth-disturbing activities immediately after the permit is issued. 

• Stormwater controls: EPA has modified a number of the proposed requirements relating 

to the design and installation of stormwater controls. These modifications provide 

greater flexibility to the operator. For instance, the requirement to stabilize all entrance 

and exit points for a minimum of 50 feet was replaced with a more flexible provision that 

requires sediment track-out onto off-site streets and other paved areas to be minimized 

using appropriate stabilization techniques. See Part 2.1.2.3. Another example is the 

buffer provision, where the final permit includes additional flexibility for small lot 

construction and linear projects so that operators can utilize mostly standard sediment 

and erosion control practices to achieve the buffer requirement. See Part 2.1.2.1.e.v. Still 

another example is the stabilization section of the permit, which has been modified to 

remove provisions related to meeting numeric C-factor criteria for stabilization measures. 

For further discussion, refer to EPA’s response to comments related to Part 2.2.2 of the 

proposed permit. 

• Requirement to install controls prior to disturbance: This requirement has been modified, 

in response to comments received, to focus on the installation of controls prior to each 

individual phase of disturbance rather than requiring their installation for all phases up 

front. Although it was not our intent to require the installation of stormwater controls for 

the entire project prior to construction even though a particular phase of the project will 

not commence for a significant period of time later, many commenters expressed 

concern about this issue, and EPA believed that a clarification was warranted. 

Additionally, EPA emphasized in the final permit (see Part 2.1.1.3) the fact that not all 

controls need to be installed at once for an individual phase of the project, but only 

those that are needed to control the initial discharge. 

• Numeric turbidity limit, monitoring provisions, and reporting requirements: EPA has 

removed the numeric turbidity limit and all related monitoring and reporting 
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requirements from the final permit. This change was made as a result of the continuing 

work that EPA is conducting on recalculating a numeric turbidity limit. 

• Benchmark monitoring requirements: EPA has removed the benchmark monitoring 

requirements that were proposed for sites discharging to sediment and nutrient-impaired 

waters. This change was made in response to the numerous comments received. Refer 

to EPA’s response to comments related to Part 4.2.2 of the proposed permit. 

• Permit streamlining: The final permit has been modified from proposal to streamline 

many of the sections of the permit, including most notably the water quality-based 

effluent limit, inspection, corrective action, and training requirements. 

In conclusion, EPA believes that the modifications made to the final permit go a long way 

towards addressing the cumulative impacts of concern to the commenters. 

Response 19.2 Executive Order 13175 Consultation

One commenter mistakenly submitted its tribal Clean Water Act Section 401 certification as a 

public comment. EPA has incorporated the requested conditions into Part 9 of the permit, along 

with other tribal requirements. No further response is necessary. 

Response 19.3 Executive Order 12866 Review

One commenter raised the concern that there was no indication in the proposed permit that 

E.O. 12866 review was completed prior to proposal. EPA completed E.O. 12866 review for both 

the proposed and final permits. EPA has included documentation of the changes made in 

response to this review in the docket for this permit, and references the completion of this review 

in the final Federal Register notice. 

Response 19.4 Regulatory Flexibility Act

Several commenters raised concerns about the apparent lack of cost-benefit analysis 

associated with the Regulatory Flexibility Act (RFA) to support the proposed permit. EPA 

conducted an economic analysis in support of the proposed permit, which has been updated 

based on modifications in the final permit. The economic analysis is included in the 

administrative record for the final permit. The economic analysis indicates that while there will 

be some incremental increase in the costs of complying with the new permit, these costs will not 

have a significant economic impact on a substantial number of small entities. In arriving at this 

conclusion, EPA used as its baseline data included in the C&D rule’s Economic Analysis of the 

Final Construction & Development Effluent Limitation Guidelines (November 23, 2009), Table 4-3 

Baseline Firm Level Data by Revenue Range and NAICS Sector, page 4-27. 

Response 19.5 Executive Order 13563

Several commenters challenged the adequacy of the proposed permit based on the lack of 

documentation demonstrating consistency with E.O. 13563. EPA performed an economic 

analysis of this general permit, including an examination of the economic impact this permit 

may have on the construction industry as a whole. This economic analysis is included in the 

docket for this permit. EPA concluded from its analysis that the issuance of this permit will not 

have a significant impact on the construction industry. In terms of evaluating alternatives to 

finalizing the general permit, EPA conducted an analysis as part of its Environmental Assessment 

for complying with the National Environmental Policy Act (NEPA), which is relevant to the 

comment. A copy of the Environmental Assessment is included as part of the docket for the 

final permit. 

Response 19.6 Compliance with 33 U.S.C. 1314(b)(1)(B)
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Two commenters raised concerns regarding the proposed permit’s failure to account for the 

CWA Section 304(b)(1)(B) factors required in the establishment of Best Practicable Technologies 

Currently Available (BPT). This comment is not relevant to the issuance of the final permit. The 

BPT factors are required to be assessed when promulgating effluent limitation guidelines for point 

source categories. This analysis was completed during the promulgation of the C&D rule, and 

does not apply to the inclusion of the related BPT requirements (see 40 CFR 450.21 of the C&D 

rule) in an NPDES permit. EPA notes that it is required to implement the effluent limits in the C&D 

rule pursuant to CWA section 301 and 306, 33 U.S.C. 1311 and 1316, and 40 CFR 122.44(a)(1). No 

further response is necessary. 

 
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Comment Response Essay 20 Duplicate Comments 

Response 20.1 Duplicate

EPA received comment letters that were duplicates of other letters, and portions of comment 

letters that were duplicates of other letters. EPA also received comment letters that incorporated 

others’ comments by reference. EPA notes that it has responded to all of the significant 

comments, but where comment letters and portions of comment letters were identified as 

duplicates of other letters, only one response was developed. 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 1, 1.1, 1.2, 1.3, 1.3.1, 1.3.2, 1.3.3, 1.3.4, 1.4, 1.4.1, 1.4.2, 1.5, 1.5.1, 

1.5.2, 1.5.2Q, 1.5.3, 1.5.4, 1.5.5, 1.5.6, 1.6

 
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1 HOW TO OBTAIN PERMIT COVERAGE UNDER THE CGP

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

1.1 APPLICABILITY OF THIS PERMIT

Comment ID 0057-A1.001.002

Author Name: Newlon Thornton 

Organization: Virginia Coal Association, Inc. (VCA) 

Issue Category: 1.1 

As NMA points out, the draft General Permit for Stormwater Discharges from Construction Activities confirms that it is focused upon 

the construction industry sectors classified as "Building, Developing and General Contracting" (NAICS Code 233) and "Heavy 

Construction" (NAICS Code 234). These construction sectors are part of the broader NAICS Code 23 for the Construction Sector. 

Mining is listed under an entirely different NAICS Code, number 21. The draft also notes its close relationship to the pending 

rulemaking to establish numeric Effluent Limitations Guidelines ("ELG") for the new Construction and Development Point Source 

Category. See 76 Fed. Reg. at 22,885 (Apr. 25, 2011). Coal mining is not subject to the proposed Construction and Development Point 

Source Category, in part, because it is subject to its own longstanding effluent limitations (e.g., 40 C.F.R. Parts 434 (Coal Mining) and 

the specific mining sectors of the 2008 Multi-Sector General Permit ("MSGP") for Storm Water Discharges from Industrial Activity. 

For these reasons VCA requests that the draft be amended to clarify that coal mining will not be subject to the General Permit for 

Stormwater Discharges from Construction Activities and the associated Construction and Development ELGs. 

Response 

Refer to Response 1.1 and 1.3. 

Comment ID 0064-A1.001.004

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 1.1 

Section 1.1, page 1 -"You may submit a Notice of Intent (NOI) to be covered by this permit if..." 

•One of the two key criteria that mandated Construction General Permit (CGP) coverage in the 2008 permit was disturbed acreage of 1 or 

more acres AND discharging to waters of the United States. However, the new permit does not mention "discharging to waters of the 

U.S." as a key criterion. Has this been removed from Section 1.1 or is this simply an oversight in the draft language of the permit? 

Response 

Refer to Response 1.1. 
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Comment ID 0087-A1.001.009

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.1 

CGP Eligibility (Section 1.1) [FN 6] 

The need and opportunity for coverage under the CGP is predicated on land "disturbance." However, disturbance is not defined in either 

the CGP or any of the relevant underlying stormwater regulations. UWAG asked EPA to include such a definition in the C&D Rule but, 

to date, EPA has not done so. Such a definition is vital to distinguishing between actual soil disturbance (which may lead to erosion and 

sedimentation if not properly controlled) and other activities on land that may disturb vegetation but not the soil itself (e.g., site 

preparation activities where vegetation is cut to ground level but stumps, root mats, and other cover are left in place). We submit that 

only soil disturbance is subject to permitting requirements, if above applicable acreage thresholds. 

[FN 6] EPA should note in the eligibility section that no NPDES permit is required for construction activities that disturb less than one 

acre, and that special waivers are available for some "small construction" projects that disturb between one and five acres, in keeping 

with EPA stormwater regulations at 40 C.F.R. Part 122. 

Response 

Refer to Response 1.1. EPA has included information about waivers in Appendix C. 

Comment ID 0090-A1.001.029

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 1.1 

The Notice states that the Draft Permit will cover "construction site operators disturbing 1 or more acres of land, or less than 1 acre but 

part of a larger common plan of development or sale if the larger common plan will ultimately disturb 1 acre or more" that engage in 

building, developing, contracting and heavy construction. [FN 10] EPA should exclude linear projects from "common plan" coverage or 

revise the definition to the extent that linear projects running on public or private ROWs will not be included as part of the traditional 

development construction site and thus are not required to follow the traditional development site' sediment plan. These changes reflect 

the reality that only those utility pipeline projects running within a larger "common plan" construction project will be able to follow the 

larger operation's sediment plan. The remainder of linear projects are instead installing some or all of the gas line contiguous to the 

construction area, in ROWs. The current definition of a "common plan" would force this group of utilities into complying with a 

contiguous construction project's sediment plan, a compliance obligation that they simply cannot perform on their ROW excavation 

area. Further, these types of private ROW areas contiguous to a construction project site only run 5-10 feet wide-thus, the 1-5 acres 

requirement in the "common plan" definition is a misfit for linear pipeline projects. Linear construction projects involve a lengthy, 

narrow excavation on private and public property: each work day, only a small portion of the project area is excavated and then 

backfilled, rendering traditional sediment control and design requirements unworkable and ineffective for the purposes contemplated in 

the Draft Permit. 
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[FN 10] 76 F.R. 22883 (April 25, 2011). 

Response 

EPA notes that it is not within the scope of this action to exlude linear projects from "common plan" coverage or to revise the regulatory 

definition. EPA defines "construction activity" at 40 CFR §122.26(b)(14)(x) and 40 CFR §122.26(b)(15)(i) to include disturbances that 

are part of a larger common plan of development or sale. Therefore, EPA disagrees with the suggestion to exclude linear projects from 

"common plan" coverage or to revise the regulatory definition. EPA notes the final CGP does not require utility pipeline projects running 

within a larger "common plan" to comply with a contiguous construction project's sediment plan. While they operators of a common 

plan have the option to develop a group SWPPP (see Part 7.1.1 of the final CGP), they are not required to. In fact, EPA clarifies in Part

1.1 that if an operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a subdivision), the 

operator is responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to the activities 

on their portion of the construction site. EPA notes that it recognizes the need for the permit to be flexible for linear projects. Refer to 

Response 17. 

Comment ID 0130-A2.001.008

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 1.1 

There is no longer a qualifier that links the requirement to obtain permit coverage to a discharge to a water of the United States. Is it the 

intent of the new permit that any construction project, regardless of whether it has the potential to discharge to waters of the United 

States, will require CGP coverage? If that is not the intent, why was this qualifier removed from the proposed permit? 

Response 

Refer to Response 1.1. 

1.2 PERSON(S) RESPONSIBLE FOR OBTAINING PERMIT COVERAGE

Comment ID 0025-A1.001.005

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 1.2 

Please add clarification as to where the owner fits into the definition of Primary Operator and Secondary Operator. For example, in 

Arizona the DOT is required to obtain coverage as the owner with control over specifications and plans; however, the DOT is not the 

primary operator (the Contractor) or secondary operator (Contractor's sub-contractors). Consider "Primary Operator/Owner" & 

"Secondary Operator" or "owner", "Primary Operator" & "Secondary Operator." 
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Response 

Refer to Response 1.2. 

Comment ID 0030-A2.001.004

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 1.2 

Section 1.2, page 1 

In our field experience, not all operators should be held jointly and severally responsible. Permittees should be held solei responsible for 

their permitted area. If there are multiple operators, they should be left to decide if a current permittee wants secondary operators to work 

under their permits or if operators associated with a common plan of development have to pull their own separate permits. The 2008 

CGP language allows the owners and operators to decide who should be the permittees and allows secondary operators to be covered 

under the permit with permission from the permittee. The proposed 2011 CGP language relies on defining an operator as someone with 

operational control at a site, and we believe some operators have limited capacity to influence operational control over a large 

development and therefore should not assume joint liability. Clarification needs to be provided on who needs to apply as co-permittees 

and if operators with operational control can opt out of applying as co-permittees and can apply separately when they are part of a 

common plan of development. 

Response 

Refer to Response 1.2. EPA also notes that it does not require, where there are multiple operators on a site, for all operators to "apply as 

co-permittees." Where there are multiple operators on a site, operators may consider themselves to be co-permittees, but it is not required 

by EPA. EPA clarifies that when there are multiple permittees, all permittees are responsible for applying for permit coverage. EPA 

provides clarity regarding permit compliance responsibilities where there are multiple operators on a site in Part 1.1 of the final CGP: 

"Where there are multiple operators associated with the same project, all operators are required to obtain permit coverage. If an 

operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a subdivision), the operator is 

responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to the activities on their 

portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation 

of control measures described in the SWPPP in the areas under their control. You must ensure either directly or through coordination 

with other permittees, that your activities do not render another party’s pollutant discharge controls ineffective." 

Comment ID 0047-A2.001.001

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 1.2 

Section 1.2, page 1 

The 2008 CGP language allows the owners and operators to decide who should be the permittees and allows secondary operators to be 
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covered under the permit with permission from the permittee. The proposed 2011 CGP language defines an operator as someone with 

operational control at a site. Not all operators on a project have the same level of impact on a project and therefore should not be held 

jointly and severally responsible. If there are multiple operators, the project should decide if secondary operators should work under 

primary operator's permits or if associated with a larger common plan of development does it make more sense for secondary operators 

to pull their own separate permit. Primary verses secondary is getting too complicated and Xcel Energy recommends that the language 

from the 2008 CGP remain the same in the new permit. 

Response 

Refer to Response 1.2. 

Comment ID 0064-A1.001.005

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 1.2 

Section 1.2, page 1 - "Secondary operator - for a construction project that has..." 

•What is the purpose of designating someone a secondary operator? Is the secondary operator any more or less responsible than a 

subcontractor performing work on the project? 

Response 

Refer to Response 1.2. 

Comment ID 0066-A1.001.004

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 1.2 

EPA proposes to, where there are multiple operators at a single site, distinguish between "primary operators" and "secondary operators" 

based on the point in time at which coverage under the CGP is obtained (i.e., "primary operators" are operators who seek coverage under 

the CGP for work in an area for which no other operator has already obtained coverage, whereas "secondary operators" are operators 

who seek coverage under the CGP for work in an area for which another operator has already obtained coverage). It appears that the only 

purposes for this distinction are to, as explained in Parts 1.5.3 and 1.5.4, allow "secondary operators" to (1) file their NOls later in time as 

compared to "primary operators" (7 days prior to commencing earth-disturbing activities, versus 30 days prior to commencing 

earth-disturbing activities), and (2) be authorized by the CGP sooner after EPA's acknowledgment of NOI receipt as compared to 

"primary operators" (7 days after acknowledgment versus 30 days after acknowledgment). 

While TxDOT is not opposed to the differences in timing of NOI filing and authorization under the CGP afforded "primary operators" 

and "secondary operators," TxDOT is opposed to using the terms, "primary operators" and "secondary operators," to categorize 

operators based on the order in which they seek authorization for work at a given site. The terms may be construed to imply that "primary 
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operators" have more substantive responsibilities or potential liabilities than do "secondary operators," which is not the case. TxDOT 

recommends that EPA simply make the timing distinctions at Parts 1.5.3 and 1.5.4 without using the terms "primary operators" and 

"secondary operators," and remove reference to those terms from throughout the draft permit. 

Response 

Refer to Response 1.2 and 1.6.4. 

Comment ID 0068-A1.001.006

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.2 

Beyond defining "operator," there is no reason to further complicate permitting matters by creating a system in which multiple parties 

will be held potentially responsible for a single discharge. Liability under the CWA applies to the "owner and operator" and is joint and 

several. EPA should allow the various parties operating at a site covered by a permit to determine overall NPDES permit compliance 

responsibilities through their construction contracting practices, which will be made clear by the NOI filing. If EPA identifies a permit 

violation, it should assert liability against the party filing the NOI. By creating a primary and secondary "co-permittee" and potentially 

creating multiple permittees for a single discharge, EPA is confusing the NPDES permitting process and creating more levels of 

potential liability for "operators" than intended by the CWA and potentially conflicting with normal contracting practices. EPA should 

allow maximum flexibility regarding whether multiple parties want to become co-permittees or ensure an alternative compliance 

strategies, as long as all regulated discharges are permitted. 

Response 

Refer to Response 1.2. 

Comment ID 0068-A1.001.007

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.2 

EPA also should clarify that it does not intend "subcontractors" to obtain permits. As EPA stated in its Stormwater Question and Answer 

Guidance: 

28. What are the responsibilities of subcontractors at the construction site under EPA's storm water construction general permits? 

A. EPA storm water construction general permits require subcontractors to implement the measures stated in the pollution prevention 

plan and to certify that he/she understands the terms and conditions of the permit requirements. Under EPA's general permits, 

subcontractors are not required to submit NOIs. 

(NPDES Storm Water Program Question And Answer Document Volume II; USEPA B33-F-93-002B; July 1993; at 11). 
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Response 

Refer to Response 1.2. 

Comment ID 0068-A1.001.008

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.2 

EPA also should specifically exempt from CGP requirements those parties that have individual NPDES permits that include appropriate 

sediment and erosion control obligations, whether in the form of non-numeric or numeric effluent limitations for sediment-related 

discharges. Many individual permittees collect stormwater as well as process water and treat all of that water through BMPs or advanced 

treatment devices (of combination thereof). If discharges from any ongoing construction activities is captured and also becomes subject 

to the effluent limits set forth in and contemplated in the development of the individual permit, such persons overseeing such activities 

should not have to obtain separate CGP coverage. 

Response 

EPA notes that the permit excludes parties that are already covered by a different NPDES permit for the same discharge. See Part 1.1.d.i 

of the final permit. 

Comment ID 0087-A1.001.014

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.2 

Section 1.2 of the CGP imposes joint and several liability for compliance on all parties involved in the construction project, regardless of 

their respective roles and responsibilities. This is contrary to EPA's long-standing approach of looking to the party most directly 

responsible for the permitted activity. See, e.g., 40 C.F.R. § 122.21(b) ("When a facility or activity is owned by one person but is 

operated by another person, it is the operator's duty to obtain a permit"). As proposed, Section 1.2 could lead to inequitable results, e.g., 

the joint and several liability of a secondary permit holder who did not have control over operations at the site. This is particularly true of 

linear utility projects, which are usually constructed on easements and where, consequently, landowners are typically not involved in the 

construction project. 

Response 

Refer to Response 1.2. 

Comment ID 0089-A1.001.001

Author Name: Keenum Michael 
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Organization: City of Lubbock 

Issue Category: 1.2 

Section 1.2 Person(s) Responsible for Obtaining Permit Coverage defmes the terms operator and further defines primary and secondary 

operators. However, it is unclear as to which category a municipality would fall for a project that is constructed by a third party 

contractor yet financed by that municipality. 

It seems that the way the rules are written that potentially every project administered by a municipality should have at least two NOr's. If 

we as a municipality have the "right" to initiate changes to plans and specifications, then by definition that would make us an operator 

and most likely a primary operator (and not secondary operator). At the same time, if the general contractor has day-to-day operational 

control then that would make him a primary operator as well. Is that a correct interpretation of the rules and the intent? I cannot think of 

many instances at all of a "tum-key" operation where the owner would not have the "right" to initiate changes if he so desired. It may not 

be the "intent" to make changes, but the reality is that changes do occur out of necessity. 

Ultimately, this interpretation would mean that a municipality is essentially paying for NO[ fee twice because the general contractor will 

bill his fee back to the owner. Please clarifY the intent of the operator and how it is supposed to be applied to municipalities. 

Response 

With regard to the comment on primary and secondary operators, Refer to Response 1.2. With regard to the comment suggesting that 

every project should have at least two NOIs be submitted, EPA clarifies that only the parties meeting the definition of operator, as 

defined in Part 1.1.a are required to obtain permit coverage. EPA notes that there is no fee for operators applying for coverage under 

EPA's CGP. 

Comment ID 0093-A2.001.021

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.2 

AGC notes that the definition of "operator" in this part is different from the definition of "operator" provided in Appendix A on page 

A-8. AGC prefers the definition in Appendix A because it adds the phrase: "The party possesses the title of the land where the 

construction activity will take place ..." in the first part of the definition, as shown below. 

"Operator" - for the purpose of this permit and in the context of stormwater associated with construction activity, any party associated 

with a construction project that meets either of the following two criteria: 

1.The party possesses the title of the land where the construction activity will take place and has operational control over construction 

plans and specifications, including the ability to make modifications to those plans and specifications; or 

2.The party has day-to-day operational control of those activities at a project which are necessary to ensure compliance with a SWPPP 

for the site or other permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the SWPPP or 

comply with other permit conditions)... (emphasis added). 
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The extra language in Part 1 helps to clarify that the property owner has responsibility for obtaining permit coverage. 

Of concern, however, is that Appendix A (as currently drafted) goes on to state: "This definition is provided to inform permittees of 

EPA's interpretation of how the regulatory definitions of ‘owner or operator' and ‘facility or activity' are applied to discharges of 

stormwater associated with construction activity." AGC finds this sentence to be completely misplaced and confusing. The 

above-referenced definition does not help permitees understand the role of the owner or how that term varies from "operator" or whether 

the two terms are to be considered one and the same for purposes of determining who is to obtain permit coverage. AGC recommends 

that EPA delete this sentence. 

AGC also requests that EPA clarify where the owner fits into the newly-proposed definitions of "primary operator" and "secondary 

operator." 

In addition, AGC asks that EPA clarify that it does not intend for "subcontractors" to obtain permits. As EPA stated in its Stormwater 

Question and Answer Guidance: 

28. What are the responsibilities of subcontractors at the construction site under EPA's storm water construction general permits? 

A. EPA storm water construction general permits require subcontractors to implement the measures stated in the pollution prevention 

plan and to certify that he/she understands the terms and conditions of the permit requirements. Under EPA's general permits, 

subcontractors are not required to submit NOIs. See NPDES Storm Water Program Question And Answer Document Volume II; 

USEPA B33-F-93-002B; July 1993; at 11. 

To avoid the sort of confusion called out above - which has plagued the construction and development industry since the introduction of 

the construction stormwater permit program - AGC recommends that EPA specifically reference in Part 1.2 of the permit all of the 

parties to the construction process that EPA seeks to require to obtain permit coverage. Beyond that (and throughout the entire permit) 

EPA should clearly identify the exact party(ies) who are responsible for compliance with each specific part of the permit. For example, 

see AGC's comments below on Draft CGP Part 8.1.2, Person(s) Responsible for Developing SWPPP. To this end, AGC continues to be 

concerned by the fact that there is no reference anywhere in the Draft to the architect, designer or professional engineer, all of whom 

clearly play key roles in controlling construction site stormwater runoff on any given project. 

Response 

Refer to Response 1.2. In addition, EPA appreciates the comment on the definition of "operator" in Appendix A. However, EPA notes 

that it has received comments that disagree that the "operator" should be the party that possesses title of the land because those holding 

title to the land will not always be the entities in control of the plans and specifications. EPA agrees that this definition could cause 

confusion, and therefore, EPA has retained the definition of "operator" that was included in the permit body. 

Comment ID 0096-A1.001.020

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 1.2 
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Under EPA’s proposed framework, the developer remains the owner of a subdivision for 

as long as the individual lot builders/owners are still operating. As often occurs in the home 

building industry, a developer initiates the development of a subdivision, and then sells off 

individual lots to home builders to construct single-family homes on each lot. Typically, the developer and the home builder do not have 

any continuing business relationship after the initial 

purchase and sale. Considering the nature of these transactions, it is unrealistic and very 

problematic for EPA to expect the developer (or a single lot owner) to shoulder all 

responsibilities under the permit even after the developer’s activities on the development 

property cease. 

NAHB is unaware of any other industry where EPA holds multiple permit holders

responsible for an infraction by a single permit holder. EPA must allow for the transfer of 

stormwater responsibilities to new owners, builders, and contractors after the developer finishes 

his work at the development property. The original developer should not be held responsible for 

any NPDES Construction Stormwater Permit requirements placed on new permit holders. EPA’s 

provision to hold multiple operators responsible under a single permit for the same property is 

bound to cause unnecessary confusion and litigation, is unlikely to enhance compliance, and 

appears beyond EPA’s authority under the Clean Water Act. 

Response 

Refer to Response 1.2. In addition, EPA notes that Part 1.1 of the final permit clarifies that where there are multiple operators associated 

with one site, if an operator only has operational control over a portion of a larger project (e.g., one of four homebuilders in a 

subdivision), the operator is responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it 

relates to the activities on their portion of the construction site. EPA also notes that Part 8.2.2 of the final permit provides that where an 

operator has transferred control of all areas of the site for which they are responsible under this permit to another operator, and that 

operator has submitted an NOI and obtained coverage under this permit, the operator may terminate permit coverage (for example, a 

developer can pass permit responsibility for lots in a 

subdivision to the homebuilder who purchases those lots, providing the homebuilder has filed his or her own NOI). EPA believes that 

these clarifications address the comment. 

Comment ID 0096-A1.001.021

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 1.2 

The proposed CGP considers all operators within a particular construction and development project co-permittees and holds all of them 

jointly and severally responsible for compliance with the permit in part 1.2 of the permit. NAHB urges EPA to retain the language in the 

2008 CGP section 5.12 C. Requiring multiple businesses to obtain one permit and then holding them joint and several liable is 

impractical, inconsistent with the way the agency treats other industries and fundamentally unfair. By way of example, a developer who 

owns a 100 acre parcel contracts with four separate builders, each of which would separately construct homes on separate 25 acre parcels 

on individualized schedules. Under this scenario and the proposed CGP definitions, the developer would be considered an operator, as 
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the developer owns the 100 acre parcel and (under EPA’s theory) has operational control over the construction plan for the entire 100 

acre parcel. As operator is defined in Appendix A of the CGP, an operator may be the“party [that] possesses the title of the land where 

the construction activity will take place and has operational control over construction plans and specifications, including the ability to 

make 

modifications to those plans and specifications.” 

However, each of the builders would also be considered an operator, as each builder would both have operational control over the 

construction plans and specifications for the individual homes to be constructed on the smaller parcels within the 25 acres, and would 

also be considered to have day-to-day operational control of the activities at a project that are necessary 

to ensure compliance with the permit conditions in section 1.2. Based on the proposed CGP’s provisions for joint and several liability, 

NAHB is concerned that the developer and all of the builders would be considered liable for any violation of the terms of the proposed 

CGP on any portion of the larger 100 acre parcel even though they lack control over the operations 

occurring on the other 75 acres, and do not have a direct contractual relationship. In NAHB’s view, the addition of joint and several 

liability to the proposed CGP in this regard is impractical, inappropriate and should be removed. 

The addition of joint and several liability provisions is problematic because it is contrary to applicable law. Joint and several liability is 

not expressly authorized under the Clean Water Act.[FN 35] Section 301 states that “the discharge of any pollutant by any person shall 

be unlawful.” [FN 36] A “discharge of a pollutant” is “any addition of any pollutant to navigable waters from any point source.” [FN 37] 

A “point source” is any discernible, confined and discrete conveyance, including but 

not limited to any pipe, ditch, channel, tunnel, conduit . . . from which pollutants are or may be discharged.” [FN 38] Every operator at a 

construction site will not have control over every discharge and every point source at a construction site. Thus, it is in appropriate to 

impose joint and several liability; it is inconsistent with the Act and fundamentally unfair. 

Moreover, the implementing regulations for NPDES permits expressly provide for segregation of responsibility to comply with a 

permit’s requirements as between a facility’s owner and its operator. In the case of an individual NPDES permit: "when a facility or 

activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit."[FN 39] The implementing 

regulations for general permits additionally provide that a discharger’s filing of a Notice of Intent fulfills the duty to obtain a permit. [FN 

40] 

While the Proposed CGP would require only “operators,” as defined in the Proposed CGP, to obtain permit coverage, the definition of 

operator could be so broadly construed as to include owners as well (as in the case of a developer as discussed above), who are not 

required to obtain permit coverage under the NPDES regulations described above. [FN 41] The Proposed CGP’s expansive definition of 

an operator, such that it would include the developer-owner of a development project, and then hold that developer-owner jointly and 

severally responsible for the actions of other operators on the property owned, is contrary to the NPDES’ implementing regulations and 

the Clean Water Act. 

Even under the CWA, due process considerations require that there be causation between the discharge by a permittee and a violation of 

the permit. [FN 42] There are federal pollution laws pursuant to which joint and several liability for polluters has been upheld. For 

example, the scope of liability in a cost recovery action under § 107(a) of the Comprehensive Environmental 

Response, Compensation and Liability Act of 1980 (CERCLA) is said to be strict, joint, and several - unless the harm is divisible. [FN 

43] However, potentially responsible parties will not be held jointly and severally liable where a defendant can show that the harm at 

issue is capable of apportionment and provide sufficient evidence for the court to allow it to apportion liability. [FN 44] Here, EPA is 
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trying to impose joint and several liability without a congressional mandate and without the protections (such as apportionment) 

provided in statutes where Congress intended to impose joint and several liability. 

Under the proposed CGP and its definition of operators, an operator could be liable for violations resulting from the non-compliance of 

other operators on a large development project even where the cause of the violation is readily apparent and limited to one of several 

operators. As violations of the requirements of the proposed CGP will be easily attributable to particular acreage under development, 

assigning joint and several liability is unnecessary and is contrary the Clean Water Act and the legal requirement of causation discussed 

above. 

[FN 35] If Congress had intended to create a joint and several liability scheme, it knows how to do so. See e.g., 

Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607. 

[FN 36] 33 U.S.C. § 1311(a). 

[FN 37] Id. at § 1362(12). 

[FN 38] Id. at § 1362(14). 

[FN 39] 40 CFR 122.21(b) 

[FN 40] 40 CFR 122.28(b)(2)). 

[FN 41] For this reason, the definition of “operator” in Appendix A, which discusses a party’s possession of the title to 

land where a construction activity will take place, is also inappropriate under the CWA. 

[FN 42] See Appalachian Power Co. v. Train (4th Cir. 1976) 545 F.2d 1351, 1377 (It is beyond EPA’s authority to require 

permittees to treat and reduce pollutants other than those added by each individual point source’s process); 

American Iron and Steel Institute v. EPA (3d Cir. 1975) 526 F.2d 1027, 1055-1056 (individual point sources entitled 

to adjustment in effluent where inability to meet limitation is due to significant background pollutants); and see 

Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995) 515 U.S. 687, 712 (O’Connor 

concurring) (Under ESA, “In the absence of congressional abrogation of traditional principles of causation,, then, 

private parties should be held liable... only if their habitat-modifying actions proximately cause death or injury to 

protected animals”) (emphasis added). 

[FN 43] See U.S. v. Burlington Northern & Santa Fe Ry. Co., 520 F.3d 918, 934 (9th Cir.2008) (citing Fireman's Fund 

Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002) and Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 

863, 871 (9th Cir.2001)). 

[FN 44] See Burlington Northern & Santa Fe Ry. Co., 520 F.3d at 942 (9th Cir.2008); Carson Harbor Vill., Ltd. v. Unocal 

Corp., 270 F.3d 863 (9th Cir.2001) [Once liability is established, the defendant may avoid joint and several liability 

by establishing that it caused only a divisible portion of the harm]. 

Response 

Refer to Response 1.2. 

Comment ID 0098-A1.001.001

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 1.2 
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The definition of "operator" that appears in the 2008 CGP is a definition that has been used for several permit cycles. It is well 

understood by the regulated community and, because of that, it is generally well understood who must obtain a permit in states where 

EPA is the permitting authority. We believe that the new permit should retain this definition, both because it functions well and because 

a change could unnecessarily throw a settled and important issue into confusion. We would ask that the Agency clarify that the new 

concepts of "primary" and "secondary" permittees do not alter the fundamental definition of "operator." 

Response 

Refer to Response 1.2. 

Comment ID 0100-A2.001.003

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 1.2 

The USEPA should define role of the "owner" as well as its responsibility. 

Response 

EPA clarifies in the final permit fact sheet that the party that meets the first part of the definition of "operator" (the party has operational 

control over construction plans and specifications, including the ability to make modifications to those plans and specifications) in most 

cases will be the owner of the site. See Part VI.1. If an "owner" meets this definition, then EPA clarifies that they are required to obtain 

permit coverage. 

Comment ID 0103-A3.001.004

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 1.2 

In Part 1.2, Persons responsible for obtaining permit coverage, EPA provides separate NOI requirements for "primary operators" and 

"secondary operators." It appears that most landowners who are operators would be considered "primary operators," while all other 

persons meeting the definition of "operator" at a regulated construction site would be considered "secondary operators," and have 

slightly different requirements. For instance, "secondary operators" would have provisional coverage within seven days while "primary 

operators" would have coverage in 30 days. "Primary operators" would be responsible for SWPPP implementation. 

TCEQ recommends that EPA clarify that individual landowners, who tend to have limited operational control at their sites, would not be 

considered primary operators and would not be required to submit a NOI nor be responsible for SWPPP implementation. This would be 

consistent with TPDES Construction General Permit (CGP), TXR150000, which also includes the terms "primary operator" and 

"secondary operator," however, they are used quite differently. In the current TPDES permit, which was issued March 2008, a 

landowner may be a secondary operator due to having very limited operational control at the site; while most operators under the TPDES 

CGP are considered "primary operators." 
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Response 

Refer to Response 1.2. EPA clarifies that all parties meeting the definition of "operator" are required to submit an NOI, and that if the 

owner meets the definition of operator, then they will be required to be covered under the permit. 

Comment ID 0128-A2.001.002

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 1.2 

Beyond defining "operator," there is no reason to further complicate permitting matters by creating a system in which multiple parties 

will be held potentially responsible for a single discharge. Liability under the CWA applies to the "owner and operator" and is joint and

several. EPA should allow the various parties operating at a site covered by a permit to determine overall NPDES permit compliance 

responsibilities through their construction contracting practices, which will be made clear by the NOI filing. If EPA identifies a permit 

violation, it should assert liability against the party filing the NOI. By creating a primary and secondary "co-permittee" and potentially 

creating multiple permittees for a single discharge, EPA is confusing the NPDES permitting process and creating more levels of 

potential liability for "operators" than intended by the CWA and potentially conflicting with normal contracting practices. EPA should 

allow maximum flexibility regarding whether multiple parties want to become co-permittees or ensure an alternative compliance 

strategies, as long as all regulated discharges are permitted. 

EPA also should clarify that it does not intend "subcontractors" to obtain permits as expressly indicated in its "NPDES Storm Water 

Program Question And Answer Document Volume II; USEPA B33-F-93-002B; July 1993; at 11, Question #28". 

Response 

Refer to Response 1.2. 

Comment ID 0130-A2.001.009

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 1.2 

8. OPERATORS. Part 1.2. We believe the contractor should be the sole operator, responsible for temporary controls, within specified 

parameters. The contractor has day-to-day control over phasing, construction methods, SWPPP implementation, and BMP maintenance. 

The option to have the Contractor as sole operator is available in many state permits. Requiring both DOT‟s and Contractors to obtain 

permit coverage as operators forces DOTs into a pseudo regulatory role over contractors on projects. In Part 1.2 the Secondary Operator 

requirement is ambiguous and redundant. The prime contractor, by definition, is the responsible party. EPA echoes this responsibility in 

Part 1.2.2. Managing the NOI‟s and NOT‟s of secondary operators (subcontractors) will become a complex contract administration 

issue for the state, although the task would be more feasible if the Prime Contractor were the sole operator. 

Response 
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Refer to Response 1.2. 

Comment ID 0131-A1.001.001

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 1.2 

The Proposed CGP, unlike the 2008 CGP, considers all operators within a particular construction and development project co-permittees 

and holds all of them jointly and severally responsible for compliance with the permit. Proposed CGP, § 1.2; see Fact Sheet at 16-17. 

While the Proposed CGP largely maintains the same definition of an operator for the purposes of designating who must obtain permit 

coverage, the proposed permit adds joint and several responsibility for compliance. 

Section 1.2 provides in relevant part: 

For the purposes of this permit, an "operator" is any party associated with a construction project that meets either of the following two 

criteria: 

1. The party has operational control over construction plans and specifications, including the ability to make modifications to those plans 

and specifications; or 

2. The party has day-to-day operational control of those activities at a project that are necessary to ensure compliance with the permit 

conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit)." 

Section 1.2 then explains that all "operators" associated with the same parcel will be jointly and severally responsible for permit 

compliance associated with the project: 

Where there are multiple operators associated with the same project, all operators are required to obtain permit coverage. Once covered 

by a permit, all such operators are to be considered as co-permittees if their involvement in the construction activities affects the same 

project site, and are held jointly and severally responsible for complying with the permit. In contrast, the 2008 CGP provided at § 

5.12.C. If you have operational control over only a portion of a larger project (e.g., one of four homebuilders in a subdivision), you are 

responsible for compliance with all applicable effluent limits, terms, and conditions of this permit as it relates to your activities on your 

portion of the construction site, including protection of endangered species, critical habitat, and historic properties, and implementation 

of control measures described in the SWPPP. 

LBA respectfully submits that this language from the 2008 CGP should be retained. 

The change is concerning to LBA and its members for two reasons. First, given the manner in which LBA and its members frequently 

undertake construction and development projects that would be subject to the requirements of the Proposed CGP, the proposed change to 

joint and several liability is impractical and fundamentally unfair. By way of example, a developer who owns a 100 acre parcel often 

contracts with four separate builders, each of whom would separately construct homes on separate 25 acre parcels utilizing separate, 

individualized schedules. Under this scenario and the Proposed CGP definitions, the developer would be considered an operator, as the 

developer owns the 100 acre parcel and theoretically has operational control over the construction plan for the entire 100 acre parcel. The
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definition of an operator in Appendix A provides that an operator may be the "party [that] possesses the title of the land where the 

construction activity will take place and has operational control over construction plans and specifications, including the ability to make 

modifications to those plans and specifications." Proposed CGP, Appendix A, at A-8. That definition is not consistent with industry 

practice, however, because the owner may not have operational control over construction plans and specifications in each separate 25 

acre parcel. In contrast, each of the builders would also be considered an operator, and actually has both have operational control over the 

construction plans and specifications for the individual homes to be constructed on the smaller parcels within the 25 acres, and also has 

actual day-to-day operational control of the activities at a project and would be the only ones in a position to ensure compliance with 

permit conditions only on that builder's individual 25 acre site. Proposed CGP, § 1.2. Based on the Proposed CGP's provisions for joint 

and several liability, LBA is concerned that the developer and all of the builders would be considered liable for any violation of the terms 

of the Proposed CGP on any portion of the larger 100 acre parcel even though the owner does not have operational control over 

construction on the entire parcel, and each individual builder lacks control over the operations occurring on the other 75 acres, and does 

not have a direct contractual relationship with any of the other builders. In LBA's view, the addition of joint and several liability to the 

Proposed CGP in this regard is impractical, inappropriate, and should be removed. 

Second, the addition of joint and several liability provisions is problematic because it is contrary to applicable law. Nowhere does the 

Clean Water Act provide for joint and several liability for violation of an NPDES permit. On the contrary, the implementing regulations 

for NPDES permits expressly provide for segregation of responsibility to comply with a permit's requirements as between a facility's 

owner and its operator. In the case of an individual NPDES permit: 

"when a facility or activity is owned by one person but is operated by another person, it is the operator's duty to obtain a permit." 40 CFR

122.21(b). 

The implementing regulations for general permits additionally provide that a discharger's filing of a Notice of Intent fulfills the duty to

obtain a permit. 40 CFR 122.28(b)(2)). 

While the Proposed CGP would require only "operators," as defined in the Proposed CGP, to obtain permit coverage, the definition of 

operator could be broadly construed to include owners as well (as in the case of a developer in the hypothetical discussed above), who are 

not required to obtain permit coverage under the NPDES regulations described above..[FN 1] 

The Proposed CGP's expansive definition of an operator, such that it would include the developer-owner of a development project, and 

then hold that developer-owner jointly and severally responsible for the actions of operators on the property owned, is contrary to the 

NPDES' implementing regulations. 

Even for strict liability statutes such as the Clean Water Act, due process considerations require that there be causation between the 

discharge by a permittee and a violation of the permit. See Appalachian Power Co. v. Train (4th Cir. 1976) 545 F.2d 1351, 1377 (It is 

beyond EPA's authority to require permittees to treat and reduce pollutants other than those added by each individual point source's 

process); American Iron and Steel Institute v. EPA (3d Cir. 1975) 526 F.2d 1027, 1055-1056 (individual point sources entitled to 

adjustment in effluent where inability to meet limitation is due to significant background pollutants); and see Babbitt v. Sweet Home 

Chapter of Communities for a Great Oregon (1995) 515 U.S. 687, 712 (O'Connor concurring) (Under ESA, "In the absence of 

congressional abrogation of traditional principles of causation,, then, private parties should be held liable... only if their 

habitat-modifying actions proximately cause death or injury to protected animals") (emphasis added). 
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Concepts from other statutes governing pollution control have been imported into the Clean Water Act previously, but that has been 

done by Congress in statutes. See, e.g., NRDC v. EPA (D.C. Cir. 1987) 822 F.2d 104, 116 fn. 13 (Congress borrowed "standards of 

performance" from the Clean Air Act and imported into Clean Water Act). Here, it appears that EPA is doing the same thing by creating 

joint and several liability. There are federal pollution laws under which joint and several liability for polluters has been upheld. For 

example, the scope of liability in a cost recovery action under § 107(a) of the Comprehensive Environmental Response, Compensation 

and Liability Act of 1980 (CERCLA) is said to be strict, joint, and several - unless the harm is divisible. See U.S. v. Burlington Northern 

& Santa Fe Ry. Co., 520 F.3d 918, 934 (9th Cir.2008) (citing Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002) 

and Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 871 (9th Cir.2001)).) However, potentially responsible parties will not be 

held jointly and severally liable where a defendant can show that the harm at issue is capable of apportionment and provide sufficient 

evidence for the court to allow it to apportion liability. See Burlington Northern & Santa Fe Ry. Co., 520 F.3d at 942 (9th Cir.2008); 

Carson Harbor Vill., Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir.2001) [Once liability is established, the defendant may avoid joint and 

several liability by establishing that it caused only a divisible portion of the harm]. 

Under the Proposed CGP and its definition of operators, an operator could be liable for violations resulting from the non-compliance of 

other operators on a large development project even where the cause of the violation is readily apparent and limited to one of several 

operators. As violations of the requirements of the Proposed CGP will be easily attributable to particular acreage under development, 

assigning joint and several liability is unnecessary and is contrary to the policy rationale expressed in the CERCLA case law and the 

legal requirement of causation applicable to the Clean Water Act. 

In addition, the joint and several liability requirement has left the NEL compliance obligation in section 3.1.1 unclear. Based on 

Proposed CGP section 1.2, described above, Proposed CGP section 3.1.1's requirement of compliance with the turbidity NEL - should it 

be in place at the time the Proposed CGP is finalized - is unclear. Section 3.1.1 requires compliance with the turbidity NEL based on the 

number of acres disturbed at one time. Proposed CGP, § 3.1.1. Between August 1, 2011 and February 1, 2014, if more than 20 acres are 

disturbed at one time, a permittee's discharges will be subject to the turbidity NEL. On or after February 2, 2014, the threshold for 

compliance with the turbidity NEL decreases to 10 acres. Id. Based on section 1.2's requirement that all operators, as defined, be 

co-permittees and based on the manner in which many LBA members' construction and development projects proceed, it is unclear how 

the thresholds for compliance will be calculated when different portions of a larger acreage under common ownership are under 

construction by different operators. Consistent with LBA's proposal to remove the joint and several liability provision from the Proposed 

CGP, LBA proposes that the compliance threshold be evaluated based strictly on the acreage under construction by the operator who is 

individually and separately developing specified parcels under its control. 

In summary, LBA urges EPA to remove the joint and several responsibility provisions included in section 1.2 of the Proposed CGP. 

Such removal is consistent with the provisions of the CWA and the policy pursuant to which responsibility for environmental 

compliance is allocated based on easily identifiable actions. LBA proposes that the designation of responsibility for CGP compliance 

remain as is required under the 2008 CGP - on an operator-by operator basis. See, e.g., 2008 CGP at § 5.12.C. ["If you have operational 

control over only a portion of a larger project (e.g., one of four homebuilders in a subdivision), you are responsible for compliance with 

all applicable effluent limits, terms, and conditions of this permit as it relates to your activities on your portion of the construction site, 

including protection of endangered species, critical habitat, and historic properties, and implementation of control measures described in 

the SWPPP."]. This approach makes clear what each operator's responsibility is and makes clear for EPA which operator is responsible 

for any permit violations. 

[FN 1] This is additionally the case, as the definition of an operator in Appendix "A" of the Proposed CGP - which differs significantly 
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from that in Part 1.2 - includes the concept of "title to the land." Proposed CGP, Appendix "A". Adding a "title to the land component" to 

the permit confuses the issue of who qualifies as the operator since, ,as described herein, those holding title to the land will not always be 

the entities in control of the plans and specifications. For example, there will be instances where long term lessees or utility companies 

with easements will be the entities with control over the plans and specifications. For this reason, the definition of "operator" in 

Appendix A, which discusses a party's possession of the title to land where a construction activity will take place, is also inappropriate 

under the Clean Water Act. Consistent with LBA's recommendation that the present CGP's language in section 5.12.C. regarding the 

compliance responsibility of an operator with operational control over only a portion of a larger project be revised, LBA submits that the 

definitions of operator in section 1.2 and Appendix A be made consistent with EPA's regulations, and that title to land be omitted from 

the definition of operator in Appendix A. 

Response 

Refer to Response 1.2 and 3.3. 

Comment ID 0133-A2.001.004

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 1.2 

As specified in 40 CFR 122.21 , when a facility or activity is owned by one person, but operated by another, it is the operator's duty to 

obtain an NPDES permit. While MDT agrees that it is useful to further define "operator" within the cap, MDT is concerned with both the 

proposed definition, as well as the requirement that all operators obtain permit coverage. 

In the last year, MDT has worked cooperatively with the EPA Region VIII office to determine the appropriate entity responsible for 

obtaining permit coverage on our public transportation projects. In accordance with public contract law, our contracts must be structured 

in a manner that allows for open and competitive bidding, so that taxpayer dollars are expended in the most cost-effective manner. 

Activities that do not affect the end product are an important variable in contract bidding. As such, MDT does not dictate construction 

methodologies, sequencing, equipment, etc. As a result, our ability to exert the operational control necessary to ensure pennit compliance 

is limited. Instead, our control is primarily associated with permanent structures and facilities. Because of this issue, the EPA Region 

VIII, Helena Office, has expressed a preference for the contractor to be the sole permittee under the CGP for our transportation projects. 

This permitting scenario has been successfully implemented on MDT projects covered under the state's Montana Pollutant Discharge 

Elimination System stonn water construction general permit. Specifying the contractor as the sole permittee eliminates potential for " 

finger-pointing," which can hamper actions to bring a facility into compliance in the most expeditious manner possible and complicate 

enforcement actions. For that reason, MDT recommends modifYing the definition of "operator " to clarify that the operational control 

over construction plans and specifications, including the ability to make modifications, must include the control necessary to ensure 

compliance with permit conditions. In addition, flexibility should be allowed in the permit for determining the appropriate permit holder 

in each situation. 

Response 

Refer to Response 1.2. 
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Comment ID 0170-A2.001.001

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 1.2 

APS appreciates EPA's efforts to promote responsibility for permit compliance among multiple operators at a site. However, the 

inclusion of joint and several responsibility creates risk that is unreasonable and unmanageable for contractors with limited site control. 

It is not uncommon for subcontractors who are "operators" on a project to be separated by distance and time in their site operations even 

though they may have concurrent Construction General Permit ("CGP") permit coverage for the same project. Holding one operator 

responsible for the actions of another operator where there is not common place or time between them is unreasonable. Furthermore, a 

subcontractor typically has no recourse against another subcontractor from committing permit violations due to the contractual nature of 

subcontracts. To hold these subcontractor operators jointly and severally responsible for each other's compliance activities creates a risk 

that cannot be managed. If a subcontractor at a project is deemed to be in violation of the permit it is reasonable to hold that subcontractor 

and the "primary operator" responsible for the violations but not all other site operators. The provision for joint and several liability 

should be removed from the permit. 

Response 

Refer to Response 1.2. 

1.3 ELIGIBILITY CONDITIONS

Comment ID 0021-A1.001.003

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 1.3 

3. Will Construction Sites currently holding an EPA NPDES CGP be held liable to follow the conditions of this new CGP? 

Response 

Refer to Response 1.3. 

Comment ID 0034-A1.001.001

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 1.3 

Proposed Requirement/Section Addressed: CGP Sections 1.3.1.7 and 2.1.1.3, Requirement for CWA section 404 permits to be obtained 

prior to filing an NOI. 
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Comment: Requirement to obtain CWA Section 404 permits for stream crossing and other potential wetland impacts prior to filing NOI 

for CGP coverage is unnecessary. 

Discussion: In general, permits under sections 402 and 404 of the CWA are two independent processes with different regulatory 

agencies and timelines. The limited benefit to be gained by requiring that section 404 permits be obtained first is not commensurate with 

the potential impact of delaying application for the CGP, particularly since the waiting period has been extended from 7 to 30 days. 

Recommendation: Recommend deleting the requirement to obtain CWA Section 404 permits before filing an NOI for coverage under 

the CGP. 

Response 

Refer to Response 1.3. 

Comment ID 0068-A1.001.009

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.3 

Proposed Part 1.3.1.7 (see also similar language in Part 2.1.1.3) would establish an eligibility provision requiring CGP applicants to 

already have obtained any appropriate CWA 404 permits for actions subject to such permitting. But construction sites that require CWA 

Section 404 permitting must obtain such permits regardless of what EPA sets forth in its CGP. However, EPA should not repeat those 

obligations within a final CGP to avoid creating additional and unnecessary liability under the NPDES program for requirements clearly 

set forth in the CWA's Section 404 program. FSWA recommends that EPA avoid such unnecessary cross-referencing and further 

simplify the CGP by removing extraneous and unnecessary duplication with other programs. 

Appropriately regulated sites are subject to these requirements whether or not they also must obtain NPDES stormwater permits. In 

addition, the requirement to have "already" obtained any necessary CWA Section 404 permits prior to seeking coverage under the 

Proposed CGP could result in difficult timing and implementation issues especially for larger construction sites that may have only a 

small portion needing CWA Section 404 permit coverage, but such coverage could hold up all other construction activities. Without the 

provision, construction operators could commence construction on certain parts of the property while awaiting its final Section 404 

approval. The eligibility requirement in Part 1.3.1.7 should be removed (as well as the similar language in the last sentence of Part 

2.1.1.3). 

Response 

Refer to Response 1.3. 

Comment ID 0087-A1.001.010

Author Name: Smith Brooks 
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Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.3 

As drafted, a construction project is not eligible for CGP coverage unless the operator has "already obtained any necessary CWA Part 

404 dredge and fill permit(s) for any disturbances (e.g., stream crossings, infrastructure work, stream restoration) to waters of the U.S., 

including wetlands, associated with [the] construction project." Section 1.3.1.7. In effect, this makes the CGP the "critical path" permit, 

which may be unworkable for some projects. Along long linear projects, in particular, other permits may only be necessary for discrete 

areas (e.g., at jurisdictional water crossings). In these situations, the operator should be authorized to begin work under the CGP outside 

of these discrete areas while the other necessary permits are being processed. 

Response 

Refer to Response 1.3. 

1.3.1 ELIGIBILITY CONDITIONS FOR ALL PROJECTS

Comment ID 0037-A1.001.001

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 1.3.1 

The permit has conflicting information regarding when a CWA Part 404 dredge and fill permit(s) must be obtained. In Part 1.3.1.7, it 

states that you must have already obtained any necessary CWA Part 404 permits in order to be eligible to obtain coverage under the 

CGP. However, in Part 2.1.1.3 Minimize stream crossings of the CGP, it states that the CWA Part 404 permit must have been obtained 

prior to any discharge of dredge or fill materials to waters of the U.S. In the Purpose section for the Part 2.1.1.3. Minimize stream 

crossings in the Fact Sheet (page 32), it states "This section also reinforces the sequence that operators are required to follow with respect 

to wetland disturbances - they must first obtain coverage under a CWA Part 404 permit to authorize the discharge of dredged or fill 

material prior to obtaining coverage under the CGP." The statement in Part 2.1.1.3 does not support the requirement listed in Part 1.3.1.7 

nor the statement in the Purpose section for Part 2.1.1.3 in the Fact Sheet. EPA should clarify what the time frame is for obtaining a CWA 

Part 404 permit for consistency. 

The requirement to have CWA Part 404 permit coverage prior to obtaining CGP coverage is not practicable particularly for projects that 

will be covered by a Nationwide Permit requiring the submittal of a preconstruction notification and that have a short turnaround time 

from project conception and funding to project completion. It is not always possible to plan a year or more in advance particularly for 

small linear projects which also have a great potential for requiring coverage under a Section 404 Nationwide Permit. For these fast track

projects where project plans may not be finalized, any required permits are typically obtained concurrently if at all possible. The U.S. 

Army Corps of Engineers has 45 days to approve a complete application. If wetlands will be impacted, a wetland delineation report must 

be submitted prior to or with the preconstruction notification. There may be time constraints on when the wetland delineation can be 

conducted (typically, after vegetation has matured in the spring and before vegetation has died back in the fall). Assuming 30 days are 

required to complete a wetland delineation and prepare the report, the operator would have to initiate Section 404 permitting at least 105 

days prior to the start of any disturbance at the project to meet the proposed permit requirement. Finally, the CWA Section 404 permit 
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coverage, unlike the CGP coverage, may be required for only certain locations within the project; and these locations may not be 

disturbed immediately but later in the project timeline. Because operators need as much flexibility as possible when planning and 

scheduling permit activities in order to meet project deadlines, it is recommended that EPA only require that the CWA Section 404 

permit is obtained prior to any discharge of dredge or fill material. 

Response 

Refer to Response 1.3. 

Comment ID 0038-A1.001.001

Author Name: Minervini W. 

Organization: 

Issue Category: 1.3.1 

For consistency with Part 1.4.1.2, expand Part 1.3.1.2 to include construction projects with "stormwater discharges designated by EPA 

as needing a permit under 40 CFR § 122.26(a)(1)(v) or § 122.26(b)(15)(ii)." 

Response 

Refer to Response 1.3. 

Comment ID 0064-A1.001.006

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 1.3.1 

Section 1.3.1, page 2 - "In order to determine if you are eligible for permit coverage..." 

•Is "discharging to waters of the U.S." still a key criterion requiring National Pollutant Discharge Elimination System (NPDES) 

coverage? 

Response 

Refer to Response 1.1. 

Comment ID 0067-A1.001.003

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 1.3.1 

One complicating factor in determining the impact of the proposed CGP is that some NPDES-delegated states (Arkansas in particular) 

have adopted an interpretation that the acreage threshold triggers used to determine the application of the CGP are tied to a broader 
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definition of "soil disturbance" rather than to the actual acreage of excavation trigger historically used by EPA. Within the definition of 

soil disturbance, ADEQ includes haul roads and essentially any other activities that denude the ground surface of cover vegetation. 

Entergy reasonably can control and sequence areas where actual excavation it to occur, but since support structure erection can involve 

positioning equipment throughout a utility line right-of-way ("ROW"), roadway and equipment trail or tracking areas are also captured 

in the acreage of impact. Consequently, on a linear project the ten acre threshold existing in the draft permit concerning monitoring 

requirements could be quickly exceeded even though the actual excavation for the project is well under ten acres and the project's design 

is not reasonably expected to cause the type or amount of offsite stormwater runoff that logically requires the more stringent monitoring 

requirements. ESI requests that EPA provide direction to the States that, as far as the CGP is concerned, the ten-acre threshold should be 

measured as areas of actual excavation. 

Response 

Refer to Response 1.1. EPA also notes that the 10 acre threshold with regard to the numeric turbidity limit is not in the final permit. Refer 

to Response 3.3. 

Comment ID 0067-A1.001.008

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 1.3.1 

C. The CGP establishes an authorization to conduct emergency repairs under the CGP conditioned upon the receipt of the notice of intent 

to conduct work under the CGP within 7 days of starting work. However, language in the CGP effectively prohibits initiation of 

construction in upland areas prior to securing a wetland dredge or fill permit under § 404 of the Clean Water Act, if such a permit will be 

required for completion of the portion of the work to occur in waters of the United States ("WOUS"), such as a jurisdictional wetland. It

would be impossible to apply for and receive a § 404 permit in order to comply with the previous condition within that time period. 

Entergy requests that EPA remove this §404-related requirement from the CGP and allow the permit applicant to begin work in an 

upland area associated with the emergency project immediately, with the understanding that the applicant must separately obtain the 

appropriate authorization for dredge or fill of a WOUS. 

Response 

Refer to Response 1.3. 

Comment ID 0067-A1.001.021

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 1.3.1 

Regarding eligibility requirements in section 1.3.1.4(c) of the permit, one criteria of CGP coverage is that the project could not have been 

"covered by another NPDES stormwater permit within the past 5 years...". It should be noted out that electrical lines are very vulnerable 

to storm events and that it is within the realm of possibility that a line could be destroyed and require rebuilding immediately following 

submittal of a NOT. Entergy requests that EPA add an exception to the CGP for this type of situation. 
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Response 

Refer to Response 1.3. 

Comment ID 0098-A1.001.002

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 1.3.1 

We understand that the provision stating that the new CGP is not available to authorize a discharge that was covered by another permit in 

the past 5 years is intended to avoid "permit shopping" where the holder of a permit that contains water quality-based effluent limitations 

might seek coverage under the CGP to avoid those conditions. The language of this subsection (c) is broad, however, and could apply to 

other circumstances, including cases where a prior permit was appropriately terminated during an extended cessation of work. We would 

ask either that EPA clarify the narrow scope of this subsection or that it state that the "Note" appearing immediately below subsection (c) 

is intended to provide relief from the broad language of subsection (c) in cases where "permit shopping" is not a concern. 

Response 

Refer to Response 1.3. 

Comment ID 0106-A2.001.001

Author Name: Hamanishi Henry 

Organization: J. R. Simplot Company 

Issue Category: 1.3.1 

1.A. General Comment on Applicability of the Proposed Permit 

Simplot believes that EPA needs to clarify that this draft General Permit is focused on the construction industry and not the mining 

industry. As noted below (1.B. Specific Comments), there are other Clean Water Act (CWA) permitting requirements specific to mining 

activities. In order to avoid confusion as to what regulatory requirements are applicable to mining operations in relation to the General 

Permit for Stormwater Discharges from Construction Activities, EPA should address this issue in the final permit. 

Response 

Refer to Response 1.3. 

Comment ID 0106-A2.001.002

Author Name: Hamanishi Henry 

Organization: J. R. Simplot Company 

Issue Category: 1.3.1 
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1 B. Specific Comments on the Applicability of the Proposed Permit 

Eligibility Conditions (1.3) 

To be eligible for CGP permit coverage, there are several conditions. The proposed permit states in section 1.3.1.4 that: 

Your project is not (eligible if): 

a) Already covered by another NPDES stormwater permit for the same discharge, except where a site requires permit coverage under 

this permit and a state construction stormwater permit because earth disturbing activities will take place in areas covered by both 

permits; 

In the 2008 Multisector Stormwater General Permit (MSGP), the current stormwater permit for Subpart J - Sector J - Non-Metallic 

Mineral Mining and Dressing, four specific stormwater discharges are covered in 8.J.1.1 through 8.J.1.4: 

8.J.1.1 Covered Discharges from Inactive Facilities. All stormwater discharges. 

8.J.1.2 Covered Discharges from Active and Temporarily Inactive Facilities. All stormwater discharges, except for most stormwater 

discharges subject to the existing effluent limitation guideline at 40 CFR Part 436. Mine dewatering discharges composed entirely of 

stormwater or uncontaminated ground water seepage from: construction sand and gravel, industrial sand, and crushed stone mining 

facilities in Regions 1, 2, 3, 6, 9, and 10 are covered by this permit. 

8.J.1.3 Covered Discharges from Exploration and Construction of Non-Metallic Mineral Mining Facilities. All stormwater discharges. 

8.J.1.4 Covered Discharges from Sites Undergoing Reclamation. All stormwater discharges. 

In particular, in 8.J.1.3, the covered discharges from Construction have the following definition in the permit: 

8.J.3.3 Construction phase - Includes the building of site access roads and removal of overburden and waste rock to expose mineable 

minerals. The construction phase is not considered part of "mining operations". 

For Simplot's phosphate mining activities in southeastern Idaho, SIC code 1475, which is included in Subsector J3 of Sector J of the 

MSGP permit, Simplot asserts that the MSGP permit is the only permit required for stormwater in construction related activities as 

described in S.J.3.3 based on the proposed CGP section 1.3.1.4 a. 

In addition, the Clean Water Act section 402(/)(2) exempts uncontaminated stormwater discharges associated with "mining operations" 

from NPDES permitting requirements: 

The Administrator shall not require a permit under this section, nor shall the Administrator directly or indirectly require any State to 

require a permit, for discharges of stormwater runoff from mining operations ... composed entirely of flows which are from conveyances 

or systems of conveyances ... used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or 

do not come into contact with any overburden, raw material, intermediate products, finished product, byproduct, or waste products 
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located on the site of such operations. 

EPA should recognize in the CGP and Fact Sheet the applicability of the exemption to qualifying stormwater dischargers from mine 

construction sites, particularly site access roads. 

Response 

Refer to Response 1.3. 

Comment ID 0128-A2.001.003

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 1.3.1 

EPA also should specifically exempt from CGP requirements those parties that have individual NPDES permits that include appropriate 

sediment and erosion control obligations, whether in the form of non-numeric or numeric effluent limitations for sediment-related 

discharges. Many individual permittees collect stormwater as well as process water and treat all of that water through BMPs or advanced 

treatment devices (of combination thereof). If discharges from any ongoing construction activities is captured and also becomes subject 

to the effluent limits set forth in and contemplated in the development of the individual permit, such persons overseeing such activities 

should not have to obtain separate CGP coverage. 

Response 

Refer to Response 1.1. 

Comment ID 0170-A2.001.002

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 1.3.1 

The requirement to obtain the necessary CWA Part 404 dredge and fill permits prior to obtaining CGP permit coverage is unneeded and 

will result in unnecessary project delays. The 402 and 404 programs are separate CWA programs which in no way rely on each other for 

implementation or enforcement. It is entirely possible to engage in a project that requires a 404 permit but does not require a 402 permit 

and vice versa; this clearly illustrates the independence with which each program operates. EPA's justification in the CGP Fact Sheet 

offers little to support the addition of this requirement to the permit: "By requiring that such permits be abtained first, EPA believes that 

it will enable those agencies charged with 404 permit issuance to be able to evaluate the proposed impacts to wetlands and/or surface 

waters independent from the construction project as a whole." The 404 program already evaluates proposed impacts to jurisdictional 

waters independent from the construction project as a whole. In fact, not only does the 404 program evaluate impacted waters separately 

from the project as a whole but it evaluates each impacted water as a sole and separate project. That is to say, a linear construction project 

which crosses multiple distinct jurisdictional waters must obtain separate 404 permit coverage for each crossing. The 404 program has a 

long history of successfully evaluating the distinct areas of a project over which it has jurisdiction and has not shown any deficiency that 

would warrant the requirement at Part 1.3.1.7. 
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Furthermore, the 404 permit requirement will make it nearly impossible to pursue multiple permits concurrently during the permitting 

phase of a project. It is not uncommon for local construction permitting authorities or federal land agencies to require a copy of a CGP 

Notice of Intent many months before a project begins. Historically, these requests have not created delays, as obtaining CGP coverage 

was not dependent on the issuance of other, unrelated permits. Given the long lead time that 404 permits can require, in some districts the 

process can take more than a year, a bottleneck will be created in the permitting process if project permitting cannot proceed without the 

needed 404 permit. This requirement has no clear justification or benefit and will serve to slow the construction permitting process 

significantly. We respectfully request that Part 1.3.1.7 be removed from the permit. 

Response 

Refer to Response 1.3. 

1.3.2 ELIGIBILITY FOR EMERGENCY-RELATED CONSTRUCTION 

ACTIVITIES 

Comment ID 0025-A1.001.006

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 1.3.2 

For emergency-related construction projects, please add language "as soon as safe to reasonably do so or as soon as practicable." A 

common emergency for a DOT is a failed highway slope - such as landslide or a debris flow. In this case, it may not be safe to attempt to 

comply with all the requirements in the permit. 

Response 

Refer to Response 1.3. 

Comment ID 0034-A1.001.002

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 1.3.2 

Proposed Requirement/Section Addressed: FR 22888; CGP Section 1.3.2, Emergency related construction. 

Comment: Proposed deadlines for NOI submission (within 7 days) and Stormwater Pollution Prevention Plan (SWPPP) development 

(within 7 days of submitting NOI) during emergency-related construction may be unattainable. 

Discussion: DoD supports EPA's proposal to provide immediate authorization for construction activities required for response to public 
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emergencies; however, submission of an NOI within 7 days of commencing earth-disturbing activities may not be feasible in some 

emergency situations. Likewise, development of a SWPPP within 7 days of the NOI submission is unattainable given some emergency 

situations (i.e., those which result in loss of power for several days at a time or require evacuation of personnel). 

Recommendation: Extend the NOI submission to within 14 days after earth-disturbing activity commences. Recommend extending the 

proposed SWPPP development to within 14 days of NOI submission. 

Response 

Refer to Response 1.3. 

Comment ID 0067-A1.001.005

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 1.3.2 

It should also be noted that, for emergency construction, the requirement to submit a SWPPP within seven days following submittal of 

the NOI would be extremely difficult for a major line repair project, particularly during hurricane restorations where numerous lines may 

be damaged and require total rebuild. ESI requests that EPA revisit this timeline to allow construction to begin in a more timely manner, 

such as within seven days of submission of the NOI unless the permitting authority notifies the applicant that construction should be 

further delayed. 

Response 

Refer to Response 1.3. 

Comment ID 0080-A2.001.004

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 1.3.2 

Partner Comment: The Permittees appreciate the ability to perform work in emergency situations and supports the additional flexibility 

with the inclusion of this new permit language. 

Response 

EPA appreciates the comment. 

Comment ID 0087-A1.001.012

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 
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Issue Category: 1.3.2 

UWAG supports EPA's provision for emergency-related construction activities in Section 1.3.2. However, UWAG is concerned that 7 

days may not be sufficient time to prepare and submit an NOI after commencing the emergency earth-disturbing activity. After the 

emergency (e.g., wildfires, floods, earthquakes, hurricanes), utilities (e.g., electric, gas, communications) are the first services that must 

be restored to support other response activities. Delays in restoring these utilities will lead to overall delays in restoring communities. A 

short deadline (i.e., 7 days) is particularly problematic in emergency situations that are, themselves, on-going and for which the scope of 

the work can expand over time. For example, in a flood emergency, the flood conditions may continue for days if not weeks. Rather than 

require the NOI to be submitted within 7 days after commencing the earth-disturbing activity, EPA should allow the NOI to be submitted 

"within 30 days after commencing the earth-disturbing activity or after the emergency conditions have been abated, whichever occurs 

later." We note that for some emergencies, like earthquakes, the physical disruption may occur for just a few minutes, but the emergency 

conditions may persist for days if not weeks or longer. If EPA does not provide the requested relief, project operators may be forced to 

put paperwork ahead of emergency response. [FN 7] 

[FN 7] We support EPA's decision in Section 8.1.3 to extend the deadline for developing a SWPPP for emergency projects. To avoid 

confusion, EPA should include the same language in Section 1.5, which would otherwise compel the operator to develop a SWPPP prior 

to submitting the NOI. 

Response 

Refer to Response 1.3. 

Comment ID 0093-A2.001.023

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.3.2 

For emergency-related construction projects, Part 1.3.2, operators would receive immediate authorization to discharge stormwater 

provided that "all relevant requirements in the permit" are met. AGC recommends that EPA add language "as soon as safe to reasonably 

do so" or "as soon as practicable" to the end of this sentence. A common emergency on a highway project is a failed highway slope - such 

as a landslide or a debris flow. In this case, it may not be safe to attempt to comply with all of the requirements of the permit. 

Response 

Refer to Response 1.3. 

Comment ID 0099.001.001

Author Name: Anonymous Anonymous 

Organization: 

Issue Category: 1.3.2 

The reguirements for a construction permit for emergency events in Section 1.3.2 - Eligibility for Emergency-Related Construction 

Activities are unreasonable and impractical, particularly for small government entities with only a few people handling cleanups. In an 
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emergency, everyone should be busy with initial response and clean up which may take up to several weeks depending on the type and 

extent of the emergency which has most probably done most of the environmental damage even before clean up begins. Preparing a 

lengthy NOI within seven (7) days is unreasonable and beyond the capability of small government entities. Small government units also 

face limited resources. 

Thought should be given to less detailed response reports and longer time frames within which to report. 

Response 

Refer to Response 1.3. 

Comment ID 0125-A2.001.001

Author Name: Johnson Michelle 

Organization: Northeast Ohio Areawide Coordinating Agency (NOACA)

Issue Category: 1.3.2 

B. There are two (2) types of emergencies: major and minor. 

1. In a minor emergency (which could be a train wreck, bridge washout, fire, minor storm damage) requiring a permit might be 

reasonable. However, requiring all of the intricate details such as wetlands, endangered species, impaired waters, etc. is not reasonable or 

practical. 

2. In a major emergency, everyone is too busy saving lives and cleaning up the damage which generally will take many days to several 

weeks depending on the type and extent of the event. Also, in a major emergency, the environmental damage has been done. If there are 

impaired waters, historical issues, etc. these issues are not important until after the initial cleanup, assessment of the overall damage and 

impact to the area. The idea of having to prepare a lengthy NOI within seven (7) days is unreasonable and will take important resources 

from the incident during critical time. 

Recommend: 

A. Define major and minor event with the following modifications: 

1. Minor event - submit your NOI within thirty (30) days waiving the historical, endangered species, SWPPP, sampling, records keeping, 

TMDL's etc., and only require very basic information. 

2. Major event - the NOI should be totally eliminated and replaced with a letter giving notice of the event containing the type of event, a 

list of responsible parties and the estimated duration of the cleanup and a brief, verbal damage assessment. 

You might require the lead agency to provide a general assessment report following the completion of the cleanup indicating the type of 

event; a timeline for restoration; what general precautions will be taken to protect any historical areas, impaired waters, endangered 

species; and also the impact to wetlands, waters, forests and other sensitive facilities in the event area. 
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The report could indicate what (if any) provisions for sediment, TMDL monitoring, etc. were used during the cleanup and restoration, 

including what provisions to comply with the permit were considered and applied. 

This report should be submitted within six (6) months of the completion of the cleanup and damage assessment phase. 

Response 

EPA appreciates the recommended modifications to the eligibility procedures regarding emergency-related construction activities. 

However, EPA believes that that 30 days is a reasonable amount of time for a site to develop its necessary stormwater pollution 

prevention procedures and to comply with the permit. Refer to Response 1.3. 

Comment ID 0125-A2.001.002

Author Name: Johnson Michelle 

Organization: Northeast Ohio Areawide Coordinating Agency (NOACA)

Issue Category: 1.3.2 

3. The permit process is impossible for small communities and rural areas who do not have the expertise or the personnel to prepare a 

permit submittal even in seven days. They will have to hire the expertise - money they may not have. Remember FEMA, if declared, is 

a reimbursement process at 75/25 and takes several days/weeks to get approval and cash flowing. A state usually has some emergency 

funds which can help, however they still don't have the expertise to complete the NOI nor the time to do it. 

4. Many areas have an emergency management cooperative group. However this group manages a large number of activities in a major 

event. In an event that would cover several jurisdictions, the questions become: 

A Is the EMA responsible for the NOI and all the permit provisions? 

B. Who's responsible if the event covers multiple EMA jurisdictions? 

C. Is each individual government unit responsible for an NOI in its individual jurisdiction? 

D. If EMA is responsible for an overall NOI and compliance, do they assign to one of the government units the NOI and compliance 

work? Do they hire outside help and where are the funds coming from? 

5. Emergencies are like a Chinese fire drill. Lots of things are happening at once and even when you think you're ready, you frequently 

find that you are not (as we found out in New Orleans and Houston in the past, or recently with all the bad weather in spring of 2011). 

With nature devastating the environment we know the environment is taking a hit. Therefore, we need to address the emergency at hand. 

It will take some serious time for the environmental impacts to right themselves. No governmental unit involved in a cleanup and 

restoration will neglect good stewardship in protecting its sensitive assets. 

There is a time and place for everything in a major emergency. It is not the time for excessive paperwork or regulations. 
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Response 

In response to the concern about the time required to submit the NOI, Refer to Response 1.3. To address the questions raised, EPA 

clarifies that EMA is responsible for the NOI and compliance with the permit to the extent the EMA meets the definition of "operator" 

(i.e., the party has operational control over construction plans and specifications, including the ability to make modifications to those 

plans and specifications; or the party has day-to-day operational control of those activities at a project that are necessary to ensure 

compliance with the permit conditions (e.g., they are authorized to direct workers at a site to carry out activities required by the permit). 

If the event covers multiple EMA jursidctions, all parties meeting the definition of "operator" within those jursidictions are responsible 

for being covered under the permit. Similarly, to the extent that any individual government unit meets the definition of "operator", they 

are required to be covered under the permit. If EMA is an operator, they would be required to comply with the NOI and the permit for the 

areas covered under their permit, as would other operators covered under the permit. With regard to the question about hiring outside 

help and obtaining funds, EPA notes that it is not the role of the Agency to determine whether personnel need to be hired or where 

funding for the construction activities come from. 

Comment ID 0126-A2.001.002

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 1.3.2 

The CSC is pleased with the proposed ability to perform work in an emergency situation pending subsequent submission of an NOI. 

Response 

EPA appreciates the comment. 

1.3.3 WATER QUALITY STANDARDS – ELIGIBILITY FOR NEW

SOURCES AND EXISTING UNPERMITTED DISCHARGERS

Comment ID 0040-A1.001.005

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 1.3.3 

The Section 1.3.3 requirement that permittees identify the impairment status of their receiving waters (especially along linear projects 

that may cross or discharge into multiple different watersheds) is similarly burdensome and is rife with potential for 

Response 

Refer to Response 4.1. 

Comment ID 0040-A1.001.006

Author Name: Reynolds Paul 
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Organization: Sunflower Electric Power Corporation 

Issue Category: 1.3.3 

confusion and/or error, particularly in states where impairments are described generally (e.g., aquatic life use impairment) without 

reference to particular pollutant stressors (e.g., nutrients or sediments). 

Response 

Refer to Response 4.1. 

Comment ID 0068-A1.001.010

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.3.3 

EPA should maintain the same impaired waters eligibility requirements as set forth in the 2008 CGP, which relies extensively and 

appropriately on EPA's TMDL program to address these issues. While that is what EPA has proposed, the CGP Fact Sheet references 

proposed Appendix J, which FSWA believes is an inappropriate complication of the 2008 CGP approach (see Section III.D. comments 

below). In this case, EPA is properly establishing eligibility based on the CWA's water quality program by certifying compliance with 

any appropriate TMDLs, which would require compliance before construction activity commences. 

Response 

EPA notes that the proposed APP J has been removed from the permit, and the reference to it in this provision of the fact sheet has been 

removed. See also response Part 4. 

Comment ID 0086-A1.001.008

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 1.3.3 

The Section 1.3.3 requirement that permittees identifY the impairment status of their receiving waters (especially along linear projects 

that may cross or discharge into multi ple different watersheds) is similarly burdensome, and is rife with potential for confusion andlor 

error, particularly in states where impairments are described generally (e.g. , aquatic life use impairment) without reference to particular 

pollutant stressors (e.g., nutrients or sediments).

Response 

Refer to Response 4.1. 

Comment ID 0093-A2.001.024

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.3.3 

In addition, Part 1.3.3 describes permit eligibility with regard to new sources and existing unpermitted dischargers who are discharging 

to impaired waters. EPA should maintain the same impaired waters eligibility requirements as set forth in the 2008 CGP, which relies 
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extensively and appropriately on EPA's TMDL program to address these issues. The proposed CGP Fact Sheet (see page 19) appears to 

confirm that EPA intends to follow this approach: "The proposed requirements in Part 1.3.3 are the same as the corresponding 

requirements in Part 1.3.C.4 of the 2008 CGP." However, the exact same page of the Draft references proposed Appendix J, which AGC 

believes is an inappropriate complication of the 2008 CGP approach (see AGC's comments, Section IV above). 

Comment ID 0105-A2.001.012

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 1.3.3 

 The Draft Permit does not sufficiently address the requirements of 40 C.F.R. § 122.4(i) [FN 5] as interpreted by the Ninth Circuit in 

Friends of Pinto Creek v. EPA 504 F.3d 1007 (9th Cir. 2007), and should be revised to require a more rigorous and supportable 

demonstration that water quality standards will be met in the receiving water prior to issuance of coverage for new sources.[FN 6] In the 

absence of such a demonstration, new sources would need to retain all stormwater (and associated pollutants) on site. Moreover, the 

process for review of new sources (or existing unpermitted discharges) proposing to discharge to waters with a TMDL is only vaguely 

alluded to in the Fact Sheet, and the entirety of the analysis appears to rest with EPA during the 30-day waiting period prior to coverage. 

EPA should clarify in the Final CGP how this demonstration will be made prior to permit coverage or commencement of construction. 

[FN 5] 40 C.F.R. Part 122.4(i) provides: No permit may be issued . . . [t]o a new source or a new discharger, if the discharge from its 

construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or 

new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to 

meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, 

and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must 

demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow 

for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment 

into compliance with applicable water quality standards. The Director may waive the submission of information by the new source or 

new discharger required by paragraph (i) of this section if the Director determines that the Director already has adequate information to 

evaluate the request. An explanation of the development of limitations to meet the criteria of this paragraph (i)(2) is to be included in the 

fact sheet to the permit under §124.56(b)(1) of this chapter. 

[FN 6] "New Source" is defined in Appendix A of the Draft CGP as "a construction project that commenced construction activities after 

February 1, 2010, and that requires NPDES permit coverage for its construction discharges . . . ." 

Response 

Refer to Response 1.3. 

Comment ID 0119-A2.001.001

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 1.3.3 
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1. General Eligibility Provisions (Section 1.3.3): The Draft Permit provides that a discharger is not eligible for coverage under the Permit 

if EPA determines, before authorization of the discharge, that the discharge will cause, have the reasonable potential to cause, or 

contribute to an excursion above an applicable water quality standard. It is very important that this provision only disqualifies a 

discharger from eligibility if EPA determines, before authorization, that there is a water quality problem associated with the discharge. 

This gives the discharger notice, before coverage is granted, that EPA has identified a problem. The discharge then has the opportunity to 

fix the problem and obtain coverage, without having to be concerned about civil or criminal penalties for permit violations or about 

qualifying for the permit and then losing coverage. We agree with EPA's approach and urge that it be retained in the final Permit. 

Response 

EPA appreciates the comment. EPA notes that it has retained this permit language. 

Comment ID 0128-A2.001.004

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 1.3.3 

EPA should maintain the same impaired waters eligibility requirements as set forth in the 2008 CGP, which relies extensively and 

appropriately on EPA's TMDL program to address these issues. While that is what EPA has proposed, the CGP Fact Sheet references 

proposed Appendix J, which the Chamber believes is an inappropriate complication of the 2008 CGP approach (see Section III.D. 

comments below). 

Part 1.3.3 of the Draft Permit provides that a discharger is not eligible for coverage under the Permit if EPA determines, prior to 

authorization of the discharge, that the discharge will cause, have the reasonable potential to cause, or contribute to an excursion above 

an applicable water quality standard. It is very important that this provision only disqualifies a discharger from eligibility if EPA 

determines, before authorization, that there is a water quality problem associated with the discharge. This gives the discharge notice, 

before coverage is granted, that EPA has identified a problem. The discharge then has the opportunity to fix the problem and obtain 

coverage, without having to be concerned about civil or criminal penalties for permit violations or about qualifying for the permit and 

then losing coverage. We agree with EPA's approach and urge that it be retained in the final Permit. 

Response 

EPA notes that the proposed APP J has been removed from the permit, and the reference to it in this provision of the fact sheet has been 

removed. See also response Part 4. 

EPA also notes that it has retained the language in proposed Part 1.3.3 referenced above. 

Comment ID 0158-A1.001.008

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 1.3.3 
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The Section 1.3.3 requirement that permittees identify the impairment status of their receiving waters (especially along linear projects 

that may cross or discharge into multiple different watersheds) is similarly burdensome and is rife with potential for confusion and/or 

error, particularly in states where impairments are described generally (e.g., aquatic life use impairment) without reference to particular 

pollutant stressors (e.g., nutrients or sediments). 

Response 

Refer to Response 4.1. 

1.3.4 ELIGIBILITY FOR NEW SOURCES AND EXISTING UNPERMITTED 

DISCHARGERS DISCHARGING TO WATERS WITH HIGH WATER 

QUALITY

Comment ID 0068-A1.001.011

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.3.4 

The Proposed CGP also appears to expand the application of antidegradation requirements to tier 2 and 2.5 waters unnecessarily. In such 

waters, newly permitted discharges may be allowed without the additional limitations proposed by the Proposed CGP. EPA should treat 

such waters consistently with its own guidance and not unnecessarily encumber construction in such watersheds. FSWA agrees with 

EPA's statement and the Agency's general approach that compliance with the CGP presumes compliance with Tier 2 or 3 antidegradation 

requirements. 

Response 

Refer to Response 1.3. 

Comment ID 0093-A2.001.025

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.3.4 

Also, Part 1.3.4 of the Draft appears to unnecessarily expand the application of antidegradation requirements to Tier 2 and 2.5 waters. 

EPA should not unnecessarily encumber construction in such watersheds. AGC recommends that EPA follow the general approach that 

compliance with the CGP presumes compliance with Tier 2 or 3 antidegradation requirements. 

Response 

Refer to Response 1.3. 
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Comment ID 0100-A2.001.002

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 1.3.4 

Section 1.3.4 suggests projects will be considered to discharge to a water identified by a state, tribe, or EPA as Tier 2, Tier 2.5, or Tier 3

for antidegradation purposes if the first water of the U.S. to which you discharge is identified by a state or EPA as a Tier 2, Tier 2.5, or 

Tier 3 water. The City is concerned with this approach in that the 303d list issued by the State of Indiana Department of Environmental 

Management (IDEM) is inconsistent impaired waterbodies described by USEPA. 

Response 

EPA notes that the 303(d) listed by a state is the list by which permittees will be required to use to determine if they discharge to an 

impaired water. Therefore, EPA disagrees that the approach in the permit is inconsistent. EPA also clarifies that the requirements that 

apply to discharges to Tier 2, Tier 2.5, or Tier 3 waters are different than the requirements that apply to discharges to impaired waters. 

Comment ID 0119-A2.001.002

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 1.3.4 

2. Eligibility Provisions for Discharges to High Quality Waters (Section 1.3.4): For discharges to Tier 2, Tier 2.5 or Tier 3 waters, EPA 

provides that the discharge is eligible for coverage only if it "will not lower the water quality of the applicable water." We have two 

concerns about this provision, which relates to the three tiers of EPA's antidegradation policy (found in 40 CFR 131.12). First, we do not 

think that EPA should specify requirements that apply to Tier 2.5 waters. The concept of Tier 2.5 does not appear in EPA regulations or 

guidance; it is strictly up to each State whether it wants to create a category between Tier 2 and Tier 3, and there are no Federal 

requirements that apply to these waters beyond what is required for Tier 2 waters. Second, the test of "will not lower the water quality" is 

not the correct test to apply to Tier 2 waters. In EPA's antidegradation policy and guidance, new or increased discharges to Tier 2 waters 

can lower water quality if certain demonstrations are made related to their economic or social benefit. Also, EPA allows States to adopt 

exceptions to antidegradation review for certain discharges, including those that meet a "de minimis" test of significance. Therefore, 

Section 1.3.4 should be modified to clarify that the test of eligibility for Tier 2 (and Tier 2.5) waters is different than the test for Tier 3 

waters. 

Response 

Refer to Response 1.3. 

Comment ID 0119-A2.001.003

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 1.3.4 

In one other respect, though, we support the language of Section 1.3.4: it provides that in the absence of contrary information, EPA 
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expects that compliance with the requirements of the Draft Permit will result in discharges that "will not lower the water quality of the 

applicable water." We agree with that determination, which is justified given the stringent conditions contained in the Draft Permit.[FN 

1] 

[FN I] In fact, we do not believe that all of the Draft Permit's conditions are necessary in order for EPA to make this determination. We 

encourage EPA to reconsider the Draft Permit's stringent conditions, such as the proposed notice, buffer and monitoring provisions, to 

streamline the Permit and make its conditions more reasonable and flexible. Recommendations on these issues are set forth in the 

comments of FSW A and FWQC member organizations. 

Response 

EPA appreciates the comment. Refer to Response 1.3. 

Comment ID 0128-A2.001.005

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 1.3.4 

Part 1.3.4 of the Draft Permit proposes that discharges to Tier 2, Tier 2.5 or Tier 3 waters that the discharge is eligible for coverage only 

if it "will not lower the water quality of the applicable water." The Chamber has two concerns with this provision, which relates to the 

three tiers of EPA's antidegradation policy (found in 40 CFR 131.12). 

• First, the EPA should not specify requirements that apply to Tier 2.5 waters. The concept of Tier 2.5 does not appear in EPA regulations 

or guidance; it is strictly up to each State whether it wants to create a category between Tier 2 and Tier 3, and there are no Federal 

requirements that apply to these waters beyond what is required for Tier 2 waters. 

• Second, the test of "will not lower the water quality" is not the correct test to apply to Tier 2 waters. In EPA's antidegradation policy and 

guidance, new or increased discharges to Tier 2 waters can lower water quality if certain demonstrations are made related to their 

economic or social benefit. Also, EPA allows States to adopt exceptions to antidegradation review for certain discharges, including those 

that meet a "de minimis" test of significance. Therefore, Section 1.3.4 should be modified to clarify that the test of eligibility for Tier 2 

(and Tier 2.5) waters is different than the test for Tier 3 waters. 

In one other respect, though, the Chamber supports the language of Section 1.3.4. It provides that in the absence of contrary information, 

EPA expects that compliance with the requirements of the Draft Permit will result in discharges that "will not lower the water quality of 

the applicable water." The Chamber agrees with that determination, which is justified given the stringent conditions contained in the 

Draft Permit. 

Response 

EPA appreciates the comment. Refer to Response 1.3.
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1.4 TYPES OF DISCHARGES AUTHORIZED UNDER THE CGP

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

1.4.1 LIST OF ALLOWABLE DISCHARGES

Comment ID 0024-A2.001.007

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 1.4.1 

The CGP should be limited to storm water discharges. EPA should revise the section addressing non-storm water discharges to ensure 

the permit language will not be construed as authorizing the discharge of pollutants through non-stormwater discharges. Specifically, 

section 1.4.1 .4 of the draft 2011 CGP authorizes the following non-stormwater discharges, which have the potential to carry significant 

amounts of various pollutants to receiving streams: (a) Discharges from fire-fighting activities, (c) Waters used to wash vehicles where 

detergents are not used, (d) Water used to control dust, (f) Routine external building wash down that does not use detergents, and (g) 

Pavement wash water where spills or leaks or hazardous materials have not occurred (unless all spilled material has been removed) and 

where detergents are not used. Absent further qualification to these allowable non-storm water discharges, as suggested below, the CGP

should not authorize these discharges at all. 

Response 

Refer to Response 1.4. 

Comment ID 0025-A1.001.007

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 1.4.1 

Consider adding: water for compaction of earth and aggregate base course for routine maintenance of dirt roads and shoulders provided 

reclaimed or other wastewaters are not used; water used for compacting soil provided effluent or other wastewaters are not used; diverted 

stream flows; discharges from riparian habitats and wetlands; and flows used for drilling and coring such as for evaluation of foundations 

materials, where flows are not contaminated with additives. 

Response 

Refer to Response 1.4. 

Comment ID 0038-A1.001.002

Author Name: Minervini W. 
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Organization: 

Issue Category: 1.4.1 

For consistency with Part 1.4.2.1, change the opening clause of Part 1.4.1.4 to read "The following non-stormwater discharges from your 

construction activity:" This change makes it clear that the stormwater discharges listed in Parts 1.4.1.4.a through 1.4.1.4.k are the only 

non-stormwater discharges allowable under Part 1.4.1, and are not merely examples of allowable non-stormwater discharges. 

Response 

EPA agrees with the suggestion, and has made the permit and fact sheet consistent with the suggestion. 

Comment ID 0069-A1.001.001

Author Name: Cramer M. 

Organization: 

Issue Category: 1.4.1 

1. Part 1.4.1.4 of the draft EPA CGP identifies additional non-stormwater discharges from construction activity, including: 

k. Uncontaminated construction dewatering wastewaters that have been treated by an appropriate control under Part 2.1.4.6. 

Wastewaters that have been treated in accordance with Part 2.1.4.6, but still contain trace amounts of sediment, are not considered 

contaminated. 

This is a new allowable non-storm water discharge to NPDES. We do not believe that it should be added to the allowable non-storm 

water list because dewatering of sediment ponds does not produce wastewater, but only captured storm water. The term "trace amounts" 

is ambiguous and could be considered unachievable when dewatering colloidal soils. 

Response 

Refer to Response 1.4. 

Comment ID 0098-A1.001.003

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 1.4.1 

It is unclear how this section treats various off-site areas that are not contiguous with the permitted site. Please see comments to Part 

8.2.2 (Nature of Construction Activities) below and accept those comments in connection with this Part 1.4.1.3 as well. 

Response 

Refer to Response 1.4. 
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Comment ID 0131-A1.001.030

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 1.4.1 

Landscape irrigation should be added to the Proposed CGP as an allowable nonstormwater discharge. Part 1.3 B of the current permit 

includes "landscape irrigation" as an allowable non-stormwater discharge; Part 1.4.1.4 of the Proposed CGP does not include landscape 

irrigation as a non-stormwater discharge. 

The installation of sod and other types of vegetation is a permit stabilization requirement and requires significant watering during the 

initial stages of establishing the vegetation as a soil cover. It is agreed that, like other allowable non-stormwater discharges, landscape 

irrigation has the potential to carry pollutants off site but it is unrealistic to prohibit landscape irrigation waters as an allowable 

non-stormwater discharge. 

The permit includes controls to minimize the impact of allowable non-stormwater discharges from the site and these same measures, 

when applied to landscape irrigation waters, will minimize impacts of non-stormwater discharges from landscape irrigation. 

Part 8.2.9 of the Proposed CGP requires the SWPPP to identify the sources of nonstormwater and to describe the measures taken to 

comply with the requirements in Part 2.1.3.1d to route non-stormwater discharges to sediment controls. The Proposed CGP also includes 

fertilizer discharge restrictions in Part 2.3.4 that are designed to minimize discharges of fertilizers containing nitrogen and phosphorus. 

Landscape irrigation is not specifically included as a prohibited discharge in the Proposed CGP or the C & D rule and should be 

specifically included as an allowable nonstormwater discharge in the Proposed CGP. 

Response 

Refer to Response 1.4. 

Comment ID 0401.001.002

Author Name: Unknown Unknown 

Organization: Colorado Department of Public Health and Environment - Colorado 

Issue Category: 1.4.1 

Part 1.4.1.4 ofthe Permit authorizes discharges from several non-stormwater sources. Part 8.2.9 of the permit requires the routing of 

non-stonnwater discharges to sediment controls. Sediment controls are primarily focused at removal of suspended solids from the 

discharge, and may not address additional pollutant sources. As currently defined in 1.4.1.4, there is a potential for some of the listed 

non-stormwater discharges to contain dissolved-pollutants, or other pollutants that may not be adequately controlled with sediment 

controls. The Division requests that EPA evaluate the discharges in this list to determine if sediment controls will adequately minimize 

the potential pollutants in the discharges as necessary to meet applicable water quality standards. If the EPA finds that this condition is 

not being met, the Division requests that EPA further define or restrict the list of non-stonnwater discharges to remove those discharges 

which would result in a potential to exceed water quality standards, or require additional effluent limits for those discharges. Specific 

examples include, but are not limited to: 
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Evaluate the need for limitations restricting the source water used for the activity, where applicable (e.g., only authorize discharges from 

potable water sources for dust control, washing, etc.). 

1.4.1.4 .c: Evaluate the need for limitations or prohibitions for washing activities that may introduce dissolved pollutants (e.g., limit 

washing to the exterior ofvehicles and prohibit discharges from washing vehicle beds, chutes, or other surfaces used for containing or 

transferring materials). 

Evaluate the need for additional limitations to address chlorine. 

4.1.4.i and j: Evaluate the need for limitations and/or monitoring necessary to determine if contaminants are present. Note that the 

presence of contaminants may be variable throughout the period of discharge since there is a potential for contaminant plumes to be 

"drawn in." 

Note that some of these discharges are addressed by the Division's Low Risk discharge policy. For these sources, the Division has done 

a full evaluation and included specific exclusigns and limitations to address potential pollutants. From more information, see the Low 

Risk Policy and Fact Sheets, available here: http://www.cdphe.state.co.us/wq/PermitsUnitlguidanceandpolicynewpage.html 

Response 

Refer to Response 1.4. 

1.4.2 LIST OF DISCHARGES NOT ADDRESSED BY THIS PERMIT

Comment ID 0038-A1.001.003

Author Name: Minervini W. 

Organization: 

Issue Category: 1.4.2 

Under this provision, "stormwater and/or allowable non-stormwater discharges associated with construction activities that are 

discharged to a combined sewer system" are among the discharges "that are not addressed under this permit because they are either 

covered by another permit or they are not within the scope of designated discharges requiring NPDES permit coverage." 

Please confirm (and provide legal basis for that confirmation) that under no circumstance can any stormwater or non-stormwater 

discharge to a combined sewer system be designated by EPA or a State as needing a permit under 40 CFR § 122.26(a)(1)(v), § 

122.26(a)(9), or § 122.26(b)(15)(ii), or under section 402(p) of the Clean Water Act. 

(40 CFR § 122.26(a)(7) states that "conveyances that discharge storm water runoff combined with municipal sewage are point sources 

that must obtain NPDES permits in accordance with the procedures of § 122.21 and are not subject to the provisions of this section." 40 

CFR § 122.26(a)(7) makes it clear that discharges from combined sewer systems cannot be required to obtain a permit under 40 CFR § 

122.26. However, 40 CFR § 122.26(a)(7) might not make it clear that discharges to combined sewer systems cannot be required to obtain 
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a permit under 40 CFR § 122.26 or section 402(p) of the Clean Water Act. In contrast, USEPA's April 1991 Guidance Manual For The 

Preparation Of NPDES Permit Applications for Storm Water Discharges Associated With Industrial Activity states flatly (page 9) that 

"permits are not required for industrial [storm water] discharges to sanitary sewers systems, including combined sewer systems" 

[underline in original].) 

Response 

Refer to Response 1.5. 

Comment ID 0056-A2.001.002

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 1.4.2 

Section 1.4.2.2 of the draft permit appears to indicate projects regulated under part 404 of the Clean Water Act (CWA) are exempt from 

the general construction stormwater permit. Several restoration projects advanced by the division have obtained both a §404 permit and 

applied for a general stormwater permit per instructions from the regulating authorities. DER would like clarification on this section of 

the stormwater permit. If a project obtains a §404 permit from the Corps of Engineers, is the entire project exempt from the NPDES 

stormwater program? Are there qualifications or limitations? 

Response 

Refer to Response 1.5. 

Comment ID 0093-A2.001.022

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.4.2 

EPA also should specifically exempt from CGP requirements those parties that have individual NPDES permits that include appropriate 

sediment and erosion control obligations, whether in the form of non-numeric or numeric effluent limitations for sediment-related 

discharges. Many individual permittees collect stormwater as well as process water and treat all of that water through BMPs or advanced 

treatment devices (of combination thereof). If discharges from any ongoing construction activities is captured and also becomes subject 

to the effluent limits set forth in and contemplated in the development of the individual permit, such persons overseeing such activities 

should not have to obtain separate CGP coverage. 

Response 

Refer to Response 1.1. 

Comment ID 0105-A2.001.017
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Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 1.4.2 

 EPA should clarify the requirements and regulatory pathway applicable to construction and development site operators located in 

combined sewer drainage areas. Section 1.4.5 of the Draft CGP states that "[s]tormwater and/or allowable non-stormwater discharges 

associated with construction activities that are discharged to a combined sewer system" are not eligible for coverage under the CGP. This 

appears to presume that all construction site runoff will receive treatment at a municipal treatment plant. However, given the frequency 

of combined sewer overflows in many geographic areas with this type of infrastructure, it is entirely predictable that untreated 

construction site runoff will contribute to the likelihood of overflows and will directly contribute substantial loads of pollutants into 

receiving waters during overflow conditions.[FN 7] Absent CGP coverage, rational site operators in CSO areas will not install a 

comparable level of control measures to prevent stormwater volume and pollutants from reaching municipal drainage systems. For these 

reasons, EPA should strongly consider requiring construction and development sites discharging to combined systems to meet 

stormwater control and pollution prevention requirements no less stringent than sites in MS4 areas, with an emphasis on retaining 

stormwater volume on site. Alternatively, EPA should clarify that construction site operators must obtain coverage under the NPDES 

pretreatment program and meet requirements analogous to the CGP. 

[FN 7] Further compounding the problem, the routine discharges of sediment-laden runoff from construction sites to municipal 

combined sewer infrastructure will increase maintenance requirements and costs. A number of communities in Massachusetts and New 

Hampshire face substantial financial and technical challenges in reducing or eliminating CSOs. 24 communities in Massachusetts 

discharge combined sewer effluent from a total of 312 outfall locations. See MassDEP, Combined Sewer Overflows: Frequently Asked 

Questions, available at http://www.mass.gov/dep/ water/wastewater/csofaqs.htm. In New Hampshire, six communities discharge 

combined sewer effluent from 35 remaining CSO outfalls. See New Hampshire Dep't of Envt'l Services, Environmental Fact Sheet: 

Combined Sewer Overflows (2010), available at http://des.nh.gov/organization/ 

commissioner/pip/factsheets/wwt/documents/web-9.pdf. Costs of reducing CSOs in New Hampshire have been estimated in the 

hundreds of millions of dollars. Id. 

Response 

Refer to Response 1.5. 

1.5 SUBMITTING YOUR NOTICE OF INTENT (NOI)

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

1.5.1 INFORMATION REQUIRED IN YOUR NOI

Comment ID 0075-A2.001.001

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 
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Issue Category: 1.5.1 

The Operator is required to identify "Impaired Waters" (i.e., 303(d) listed waters) which in Wyoming is not user friendly, comprising 

five different tables including TMDL listings. The DEQ listing priorities (tables) also change from year-to-year. The contractor must be 

able to understand Hydrologic Units (HUC's), the 8-digit sub-basin codes used in Federal water databases. A separate 16 digit watershed 

10 must also be used. A 10-mile linear highway project may cross many individual watersheds that would be typically be researched by 

a general contractor, not a hydrologist. 

Response 

Refer to Response 1.6.1. 

Comment ID 0075-A2.001.002

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 1.5.1 

The NOI further requires repetitious documentation of threatened and endangered species and historic (Sec. 106) NEPA documentation 

already in public record from the project planning stage. These documents are not normally part of a contractual bid package that is 

available to the general contractor (i.e., operator). 

Response 

Refer to Response 1.6.1. 

Comment ID 0130-A2.001.010

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 1.5.1 

9. INFORMATION ON NOI. In Part 1.5.1, the applicant is required to provide the latitude and longitude of discharge points. The 

discharge points are already shown in the SWPPP. A requirement for latitude & longitude on the NOI is additional work with no 

apparent benefit. On DOT linear projects, this requirement will be particularly cumbersome due to the potential number of discharge 

points. 

Response 

Refer to Response 1.6.1. 

1.5.2 HOW TO SUBMIT YOUR NOI. [REQUEST FOR COMMENT] - USING 

ELECTRONIC NOTICE OF INTENT SYSTEM (ENOI) - DEVELOPMENT 
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OF A “PAPERLESS” APPLICATION PROCESS

Comment ID 0024-A2.001.019

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 1.5.2 

We support EPA's proposal to require that all construction operators use the e-NOI system in the interest of developing a "paperless" 

process, see Part 1.5, 

Response 

Refer to Response 1.6.2. 

Comment ID 0030-A2.001.005

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 1.5.2 

Section 1.5.2, page 6 

While we support EPA's efforts to transition to a paperless system, some operators may not be able to access the e-NOI system, due to 

computer or firewall restrictions. E-NOI submittal should be encouraged, but not required. 

Response 

Refer to Response 1.6.2. 

Comment ID 0051-A2.001.002

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 1.5.2 

The required use of the paperless eNOI except where a paper NOI is specifically authorized (Part 1.5.2). MRWC supports this 

sustainable initiative and EPA's efforts to hold a standard of environmental protection in all aspects of permitting and regulation. This 

requirement will not only reduce costs related to processing paper NOIs, but it will also help to reduce natural resource consumption. 

Additionally, we hope that this more efficient system of submitting NOIs will result in the development of an online public permit 

database, thus making permit information available to local conservation organizations and the public. We understand that this process is 

still in transition and therefore support the temporary acceptance of paper NOIs in limited circumstances until the transition is complete.

Response 
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Refer to Response 1.6.2. EPA also notes that it will make available permit application information on its website. 

Comment ID 0053-A2.001.001

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 1.5.2 

1. Page 5; Section 1.5. SUBMITTING YOUR NOTICE OF INTENT (NOI). Past experience using the ENOI system Latitude and 

Longitude Validation page under the "Project Site Information" Tab resulted in coordinates delineated to be 850 miles away from 

verified project coordinates. 

Consider revisions/updates to the ENOI system Latitude and Longitude Validation page. 

Response 

Refer to Response 1.6.2 and 1.6.3. 

Comment ID 0068-A1.001.013

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.5.2 

While EPA continues to implement an eNOI system, FSWA supports a flexible system in which the party filing the NOI can select to use 

the eNOI system or file a paper NOI. 

Response 

Refer to Response 1.6.2. 

Comment ID 0080-A2.001.005

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 1.5.2 

Partner Response: The ease of electronic filing and reporting is appreciated. However, a 30-day review time on most Notices of Intents 

(NOIs) is problematic. The variance from the existing 7-day waiting period makes it difficult for permit holders, such as the NMDOT to 

begin construction on projects that are on a fast track or ones that become available within a very short notice. Electronic submittals are 

much quicker than paper submittals, with that being the case, why require a 30 day advance notice? 

Response 

Refer to Response 1.6.2 and 1.6.4. 
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Comment ID 0085-A2.001.003

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 1.5.2 

The City supports and encourages a transition to a paperless NOI system. 

Response 

Refer to Response 1.6.2. 

Comment ID 0093-A2.001.028

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.5.2 

In addition, as a threshold matter, AGC is very concerned that EPA's new process of making NOIs (and discharge monitoring reports) 

publicly accessible through EPA's website is furthering public confusion in ways that will harm job growth and economic recovery. As 

EPA states in the proposed CGP Fact Sheet, during the extended 30-day waiting period, "the public will have the opportunity to review 

the NOIs, to request to review the SWPPPs, and to provide feedback to EPA." This will foster situations wherein people who have 

objectives unrelated to protection of water quality will take issue with construction site operator's electronic submissions in order to 

delay important projects. These concerns are compounded by the draft permit provisions that would allow "any interested person" to 

object to coverage under the CGP (see AGC's comments at Section IX on Draft CGP Part 1.5.6, Procedures for Denial of Coverage), as 

well as provisions that would require site operators to electronically report within 24 hours any exceedances of the numeric turbidity 

limit (see AGC's comments at Section V above and at Section IX on Draft CGP Part 3.3.8, Actions Required if You Violate Numeric 

Turbidity Limit and Part 6.6, Reporting to EPA). 

Response 

Refer to Response 1.6.3. 

Comment ID 0107-A2.001.003

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 1.5.2 

In addition, Amigos Bravos supports EPA's efforts to transition towards a paperless NOI process. EPA's resources have been 

continuously attacked and whittled away in recent years and Amigos Bravos supports any efforts to spend less time and resources on 

administration paperwork and more on inspections and enforcement actions. The lack of EPA and state oversight of stormwater 

activities in the state of New Mexico, due in no small part to the lack of staff and resources to conduct inspections and enforcement 

actions, is common knowledge among the New Mexico regulated community. As a result, many don't bother to obtain permit coverage.
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Response 

Refer to Response 1.6.2. 

1.5.2Q TRANSITION TO A PAPERLESS NOI SYSTEM FOR THE CGP

Comment ID 0015-A2.001.002

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 1.5.2Q 

Ql. Electronic NOls - Agree, seems reasonable 

Response 

Refer to Response 1.6.2. 

Comment ID 0037-A1.001.002

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 1.5.2Q 

The Southern Ute Growth Fund supports the proposed requirement in the CGP to require the use of the eNOI except where a paper NOI 

is specifically authorized because the eNOI is a paperless process and the waiting period begins the same day. If the NOI is submitted via 

mail, the waiting period does not start until EPA Stormwater Processing Center receives the NOI and enters it into the NOI system. Since 

there is no delay waiting for the NOI to be received and entered into the system by EPA, it is more advantageous for the operator to use 

the eNOI system. 

Response 

Refer to Response 1.6.2. 

Comment ID 0037-A1.001.003

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 1.5.2Q 

With respect to EPA's request for comments on the experience of using the eNOI system, the Southern Ute Growth Fund has the 

following comments. If a person uses the eNOI system frequently, it is fairly user friendly. However, the system can be intimidating for 
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the infrequent user, e.g., the responsible corporate officer or manager who only certifies the documents that have been prepared by 

others. Typically, these infrequent users require guidance every time they need to use the system. Because there can be a change in 

personnel, it is highly recommended that EPA improve the process for transferring access to existing permits from an existing preparer 

to a new individual who is taking over responsibilities for preparing NOTs and submitting reports for certification for existing permits. 

The current process requires the information on the eNOI to be re‐entered. 

Response 

Refer to Response 1.6.2 and 1.6.3. 

Comment ID 0046-A1.001.001

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 1.5.2Q 

The Department currently utilized the electronic system to submit Notice of Intent (NOI) and other notices Without issue. 

Response 

Refer to Response 1.6.2. 

Comment ID 0047-A2.001.002

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 1.5.2Q 

Section 1.5.2, page 5 

Xcel Energy supports EPA's efforts to transition to a paperless system; however some operators may not be able to access the e-NOI 

system, due to computer or firewall restrictions. E-NOI submittal should be encouraged, but not required. 

Response 

Refer to Response 1.6.2. 

Comment ID 0054-A2.001.003

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: 1.5.2Q 

Issue: U. S. Steel supports the concept of an electronic Notice of Intent (eNOl) or electronic submission of the necessary application 

forms and encourages the use of technology to improve the efficiency of the permitting process. 
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Recommended Change: U. S. Steel recommends that EPA go beyond automating the application step and provide the necessary tools 

and access for applicants to receive confirmation of eNOl receipt and to track the approval process electronically. 

Response 

Refer to Response 1.6.2. and 1.6.3. 

Comment ID 0055-A1.001.002

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 1.5.2Q 

ODOT agrees with the transition to a paperless NOI submittal. Members of our staff have experience using the eNOI submittal process 

in other states. We encourage the use of a paperless submittal process with the following suggestions:

- Using an online form provides the opportunity to incorporate GIS mapping links for ease of the user when filling out the form. Project 

data required on the form including outfall coordinates; watershed mapping; ecological critical areas; etc. should be incorporated into the 

electronic format for convenience of use. 

- Integrate online tracking of NOI. Create a format for applicant to submit questions during process to the EPA. 

- Allow the eNOI to be saved and accessed repeatedly by the applicant before final submission. 

Response 

Refer to Response 1.6.2 and 1.6.3. 

Comment ID 0062-A1.001.006

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 1.5.2Q 

Brevard County Comment: EPA is assuming that every business has internet access and computer literate staff. This is not the case in 

many rural areas. Requiring E permitting discriminates against the rural and marginal operators. Most permittees will use E-permitting 

without the requirement. EPA should also accommodate organizations which require a hard copy trail of signatures. 

Response 

Refer to Response 1.6.2. 

Comment ID 0064-A1.001.007

Author Name: Dees Richard 

Organization: City of Meridian 
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Issue Category: 1.5.2Q 

Section 1.5.2, pages 5-6 - "Nevertheless, EPA is aware that the permitting program is still in the process of making the transition to a 

paperless process..." 

•If a paperless process is EPA's goal, is there an opportunity to simply maintain an electronic Stormwater Pollution Prevention Program 

(SWPPP) for a project requiring CGP coverage? 

Response 

Refer to Response 8.1. 

Comment ID 0066-A1.001.006

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 1.5.2Q 

Comment: An electronic reporting and permitting system has been in place in Texas for several years, and has been a great benefit to 

obtaining coverage in a timely manner for our projects. We recommend that EPA encourage the use of their eNOl system for filing 

electronically. The primary benefit of the electronic STEERS program in Texas is that we are able to obtain permit coverage almost 

immediately, when we are prepared to begin actual construction on any of our sites that meet the existing requirements for obtaining an 

NOI.

Response 

Refer to Response 1.6.2. 

Comment ID 0070-A1.001.003

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 1.5.2Q 

a. "Paperless" NOI - Alcoa agrees with the concept of electronic filing of the NOI. 

Response 

Refer to Response 1.6.2. 

Comment ID 0074-A2.001.004

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 1.5.2Q 

EPA's CGP should preserve the ability to accept paper NOls, as well as eNOls in all circumstances, since the DEQ's permitting program 

is still in the process of making the transition to a paperless process. 
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Response 

Refer to Response 1.6.2. 

Comment ID 0077-A1.001.008

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 1.5.2Q 

The commenter agrees with EPA's strong preference to require all construction operators to use the eNOI system in the interest of 

developing a "paperless" application process and of minimizing the administrative cost of continuing to process paper NOIs. 

Response 

Refer to Response 1.6.2. 

Comment ID 0087-A1.001.034

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.5.2Q 

While UWAG welcomes an e-NOI system (Section 1.5.2), the system needs to be capable of accepting location information for linear 

projects, such as starting point and ending point GPS-type locations with routes attached, rather than limiting the available input to only 

one physical address. The system also needs to allow for many potential outfalls, since a long linear project may cross multiple 

waterbodies. Two or three lines will not be enough to capture all the outfall names. As an alternative, linear projects should identify the 

watersheds into which the projects will discharge. 

Response 

Refer to Response 1.6.2 and 1.6.3. 

Comment ID 0090-A1.001.022

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 1.5.2Q 

EPA requested input on Section 1.5.2 of the draft permit, regarding how to submit filings through the Notice of Inquiry System and the 

possible mandatory use of the eNOI system, as well as current experience in the use of eNOI. [FN 9] AGA members have observed that 

the eNOI filing system is an efficient method to submit the NOI and allows the 30-day waiting period for permit authorization to start 

ticking upon electronic submission. The system works well for updating permit information, verifying that the permit's receipt and 

review status, and receiving a paperless approval. The system also allows immediate authorization when amendments are submitted for 
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a project NOI. 

[FN 9] Proposed CGP, at 13. 

Response 

Refer to Response 1.6.2. 

Comment ID 0093-A2.001.029

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.5.2Q 

EPA has requested comment on the transition to a "paperless" NOI system for the CGP. The agency has made clear its strong preference 

to require all construction operators to use the eNOI system in the interest of developing a "paperless" application process and of 

minimizing the administrative cost of continuing to process paper NOIs. A total paperless system for the NOI may be desirable for EPA, 

but the agency admits that the permitting program is still transitioning to a paperless process. 

AGC strongly urges EPA to continue accepting paper NOIs. There are still some small contractors that are hesitant about totally relying 

on the computer and also the security of electronic sites. 

In addition, EPA must be mindful of circumstances that would require a paper submittal. For example, some construction companies are 

required to generate the paperwork for the project owner, and they must obtain written signature of the responsible authority prior to 

submission. This can only be accomplished via paper submittal. Also, if EPA expects state permitting authorities to switch over to an all 

electronic NOI filing system, it must make provisions for payment of permit fees by non-electronic means (a paper check) to 

accommodate operators that do not have an available means of electronic payment. For example, a company must pay by credit card to 

use the current electronic notice system in Florida. Many AGC member companies do not put these types of expenses on credit cards 

and/or do not issue company credit cards to the people who will be completing these tasks. Also, some AGC companies report that when 

they are required to generate paperwork for the project owner, they must get the signature of the responsible authority prior to 

submission. This can only be accomplished via paper submittal. 

In any event, EPA should phase in any requirement for electronic NOI and provide training to small businesses. Some AGC members 

who have experience using the eNOI system reported problems with the Latitude and Longitude Validation page (under the "Project Site 

Information" Tab). 

Response 

Refer to Response 1.6.2. EPA also notes that it doesn't expect state permitting authorities to switch over to an all electronic NOI filing 

system. 

Comment ID 0096-A1.001.019
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Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 1.5.2Q 

While EPA continues to implement an eNOI system, NAHB supports a flexible system in 

which the party filing the NOI has the option to select the eNOI system or file a hard copy NOI. 

There are many cases where a business entity may prefer to submit hard copies, including where 

computer access and availability is limited. At a minimum, EPA should phase in any requirement 

for electronic NOI submission and provide training to potential permittees. 

Response 

Refer to Response 1.6.2. 

Comment ID 0097-A1.001.001

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 1.5.2Q 

1. I would support electronic filing of the NOI provided an electronic receipt is generated at that time. 

Response 

Refer to Response 1.6.2. 

Comment ID 0105-A2.001.002

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 1.5.2Q 

 Required use of eNOI system (Part 1.5.2). Electronic Notices of Intent ("NOIs") have already proven a convenient means of 

compliance for permittees and an efficient mechanism for gathering basic information about construction stormwater discharges for 

dissemination to the public, while reducing the costs, waste, and potential for errors associated with paper NOIs. Requiring electronic 

NOI submission (absent special provision by an EPA Regional Office) is a sound step consistent with electronic filing required by other 

regulatory programs and courts around the country. To maximize the public benefits of this requirement, EPA should provide 

transparent, automatic, and comprehensive online access to information associated with covered activities, including the information in 

reports required of permittees under the new provisions of the Draft CGP. In addition, EPA should add a requirement that Stormwater 

Pollution Prevention Plans ("SWPPPs") - in most cases the essential document governing permittee activities - be filed and accessible to 

the public in electronic form. 

Response 

Refer to Response 1.6.2 and 8.1. 
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Comment ID 0110-A1.001.001

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 1.5.2Q 

The use of electronic NOI is a great idea and is what should be done moving forward. 

Response 

Refer to Response 1.6.2. 

Comment ID 0111-A2.001.001

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 1.5.2Q 

Dow generally supports the proposed use of an electronic system for submission of Notification of Intent. However, Dow also 

recommends that EPA provides sufficient time for delegated authorities to implement the electronic system to accept NOI input and 

submissions from affected operators in accordance with 40 CFR §122.22, including those requirements for a corporation's responsible 

corporate officer. Dow also supports the proposal to allow paper NOI submission and related items to the appropriate permitting 

authority. 

Response 

Refer to Response 1.6.2. EPA also notes that EPA does not require authorized states to follow the same NOI submittal process as EPA.

Comment ID 0117-A1.001.008

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 1.5.2Q 

The commenter agrees with EPA's strong preference to require all construction operators to use the eNOI system in the interest of 

developing a "paperless" application process and of minimizing the administrative cost of continuing to process paper NOIs. 

Response 

Refer to Response 1.6.2. 

Comment ID 0123-A2.001.002
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Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 1.5.2Q 

Comment: CRWD supports the requirement to submit NOIs electronically, with exceptions for Regional Offices that have determined it 

is acceptable to submit paper NOIs 

Response 

Refer to Response 1.6.2. 

Comment ID 0126-A2.001.003

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 1.5.2Q 

The CSC acknowledges and appreciates the ease of electronic filing. 

Response 

Refer to Response 1.6.2. 

Comment ID 0128-A2.001.006

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 1.5.2Q 

While EPA continues to implement an eNOl system, the Chamber supports a flexible system in which the party filing the NOI can select 

to use the eNOl system or file a paper NOI. 

Response 

Refer to Response 1.6.2. 

Comment ID 0131-A1.001.003

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 1.5.2Q 

LBA supports the transition to a paperless system. The use of electronic submittal process provides an efficient, timely, and cost 

effective means for NOI submittal. 
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Response 

Refer to Response 1.6.2. 

Comment ID 0133-A2.001.005

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 1.5.2Q 

While MDT generally supports the use of an e-NOI system, tribal application submittals are not addressed in this proposed cap. MDT 

encourages EPA to work cooperatively with the Tribes to develop a streamlined electronic submittal process that includes all entities. 

Response 

Refer to Response 1.6.2. EPA also clarifies that NOIs for tribal areas covered under this permit are submitted in the same manner as all 

other projects. 

Comment ID 0134-A2.001.004

Author Name: Gaines John 

Organization: City and County of Denver, Department of Public Works 

Issue Category: 1.5.2Q 

Section 1.5.2, page 6 We support EPA's effort to transition to a paperless system. 

Response 

Refer to Response 1.6.2. 

Comment ID 0137-A2.001.003

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 1.5.2Q 

The paperless eNOI seems fairly straightforward and streamlined and allows for a staff member to prepare the report before sending to a 

certifying member. It makes sense that all requests are required to be filed online since it is easily accessible and straight forward. 

Exceptions to the eNOI should be made on a case by case basis and subject to the regional office's preference and circumstances. 

Response 

Refer to Response 1.6.2. 
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Comment ID 0145-A2.001.002

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 1.5.2Q 

From our perspective, the general permitting process is a compromise between easing the regulatory burden for developers and 

regulators associated with collecting pertinent information about a proposed project and providing the general public access to 

information about development projects in their community. Up to now, this "balance" has been more to the benefit of regulators and 

developers than to those of us seeking information about those projects. We understand that electronic submission of a developer's 

"Notice of Intent" (the eNOI) may facilitate the general permitting process and minimize the expense involved, both for the developer 

and the regulator. We see the wisdom of electronic submissions and support the use of eNOIs with very few exceptions. 

We hope the EPA will not miss the opportunity to enhance the public's access to that information by storing the eNOI in a searchable 

database available to the public. Public access and review of that information can improve accountability of all the parties and help 

identify misinformation or shortcomings in the information listed in Section 1.5.1 upon which the NOI is based. 

Response 

Refer to Response 1.6.2. and 1.6.3. 

Comment ID 0153-A1.001.002

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 1.5.2Q 

It is acceptable to allow an eNOl as an option to submit. However there are many "operators" who will not be able to do so electronically. 

EPA should allow for paper copies to be submitted. 

Response 

Refer to Response 1.6.2. 

Comment ID 0159-A1.001.002

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 1.5.2Q 

The paperless eNOI seems fairly straightforward and streamlined and allows for a staff member to prepare the report before sending to a 

certifying member. It makes sense that all requests are required to be filed online since it is easily accessible and straight forward. 

Exceptions to the eNOI should be made on a case by case basis and subject to the regional office's preference and circumstances. 

Response 
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Refer to Response 1.6.2. 

1.5.3 DEADLINES FOR SUBMITTING YOUR NOI

Comment ID 0021-A1.001.011

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 1.5.3 

1. In Section VI.5.3 of the Proposed CGP Fact Sheet, guidance is provided for the NOI submission deadlines for different types of 

construction projects. Particularly the "Previously Permitted New Source" and "Existing Permitted Discharger" requirements state there 

is a requirement for these types to submit an NOI 90 days after permit issuance. This can pose many detrimental obstacles for these 

projects considering these contracts were likely solicited and awarded years ago before any draft permit or known new regulations 

existed. I would propose that "Existing Permitted Dischargers" and "Previously Permitted New Sources" can maintain permit coverage 

under the 2008 CGP. 

Response 

Refer to Response 1.3. 

Comment ID 0025-A1.001.008

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 1.5.3 

Please add language that allows the NOI to be processed sooner if proof that the Endangered Species Act and historic properties have 

been addressed through the NEP A process. A 30-day period for NOI submittal may have an extremely negative impact on a DOT. 

Contractors are not allowed to submit an NOI until the DOT has reviewed and approved their SWPPPs; this process alone usually takes 

about two weeks. By adding an additional month for NOI submittal, we could potentially have a contractor for a small 60-day project 

who is unable to commence work for the first 45 days 

Response 

Refer to Response 1.6.4. 

Comment ID 0030-A2.001.006

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 1.5.3 
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Section 1.5.3, Table 1-1, page 7 

The 2008 CGP eNOI has a 7-day review period. 30 days is a significant change, given the limited information required on the NOI form. 

We feel that 7-14 days would be more appropriate and provide adequate time for review, the NOI system should be set up so that 

multiple agencies can be reviewing simultaneously especially if permittees are using the eNOI system. 

Also, it isn't clear if a secondary operator can fill for permit coverage before a primary. For example, a light rail project is proposed for an 

area and utilities start being relocated when the design of the light rail is only at 70%. Can the utilities pull their own permit even though 

in some ways they are secondary operators? This language on primary and secondary operators may need to be adjusted (see comment 

1), and the time lines for approval may need to be clarified based on these definitions. 

Response 

Refer to Response 1.6.4. 

Comment ID 0033.001.001

Author Name: Soga Cheeta 

Organization: Nitsch Engineering 

Issue Category: 1.5.3 

Docket ID No. EPA-HQ-OW-2010-0782 

Comment regarding "1.5.3. Deadlines for Submitting Your NOI." 

Nitsch Engineering would like clarification on the permit requirements for construction projects that fall under the following two 

categories: "previously permitted new source" and "existing permitted discharger." Specifically, will these two categories of 

construction projects be grandfathered under the 2003 or 2008 CGP that they are currently covered under? Or will they be required to 

meet the conditions of the proposed new CGP once they have been granted coverage under this permit? If projects that are currently 

under construction have to meet the new permit requirements, this could create additional costs and disruption on a construction project 

and confusion if the project is substantially complete. Please clarify. 

Response 

Refer to Response 1.3. 

Comment ID 0037-A1.001.004

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 1.5.3 

A 30 day deadline is not practicable for some projects. A 10‐day deadline is more reasonable especially for small construction projects 

(such as residential lot size) that are on a fast track and do not fall under the secondary operator category. 

Response 
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Refer to Response 1.6.4. 

Comment ID 0047-A2.001.003

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 1.5.3 

Section 1.5.3, Table 1-1, page 7 

The 2008 CGP eNOI has a 7-day review period. 30 days is a significant change. Given the limited information required on the NOI form, 

7-14 days would be more appropriate and provide adequate time for review. 

Also, it isn't clear if a secondary operator can file for permit coverage before a primary. For example, Xcel Energy (a secondary operator) 

needs to relocate utilities as part of a larger common plan of development (i.e. before a street widening project begins or a light rail 

project is built). Quite often the utility relocation work needs to occur long before the primary operator is ready to pull their permits. 

Again, this concept of primary verses secondary operator is confusing. Can Xcel Energy pull our own permit even though we are 

secondary operator? 

Response 

Refer to Response 1.6.4. 

Comment ID 0063-A1.001.002

Author Name: Tobin Kathleen 

Organization: Verizon 

Issue Category: 1.5.3 

Verizon is also providing an additional comment within this letter. The proposal is increasing the "waiting period" from 7 days to 30 

days for new projects. The new timeframe is intended to better reflect the endangered species-related reviews that must take place prior 

to authorization. If the project has already conducted a National Environmental Policy Act (NEPA) review for endangered species there 

does not appear to be a need for additional time. Since EPA is proposing to maximize the use of the electronic Notice of Intent (NOI) 

process for authorizing construction discharges to be more efficient, projects that have already completed an endangered species review, 

be allowed to maintain the 7 day "waiting period". 

Response 

Refer to Response 1.6.4. 

Comment ID 0064-A1.001.008

Author Name: Dees Richard 

Organization: City of Meridian 
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Issue Category: 1.5.3 

Section 1.5.3, Table 1-1, page 7 - "Except for secondary operators, at least 30 days prior to commencing..." 

•For operators with extensive environmental programs, a 30-day waiting period seems overly burdensome and could result in significant 

delays in construction. Departments of Transportation (DOTs) and many large cities often have experienced environmental staff that 

completes environmental clearance documents well in advance of NOI submission. In the case of DOTs, this work is often mandated as 

a means of ensuring federal funding for construction projects. Perhaps as part of the NOI submission process, an operator would indicate 

whether or not clearances have been obtained. If an operator does not have existing environmental and/or historical clearances clearly 

documented at the time of NOI submission, then their waiting period would be 30 days. If an operator already has the proper 

environmental and/or historical clearances, then their waiting period would only be 7 days. 

Response 

Refer to Response 1.6.4. 

Comment ID 0066-A1.001.007

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 1.5.3 

Discussion: In Table 1.1, the requirement that primary operators submit NOI at least 30 days prior to commencing earth disturbing 

activities is too long. This could delay construction activities/project schedules that are dictated by contract requirements. As noted 

above in 1.5.2, we currently experience very little lag time in when we submit, versus when coverage is obtained. 

Additionally, all projects previously permitted under the 2008 permit or existing state permit should be allowed to be completed under 

the existing permit. For state DOTs, contract requirements and specifications have been developed specifically for the 2008 permit. 

Requiring a new permit with new requirements will require development of new specifications, training, guidelines, and contract 

modifications to on-going permitted projects. These changes are not feasible and would be very costly to state DOTs. 

Suggestion: A more reasonable time period is to allow 7 days for obtaining permit coverage/submitting an NOI. Also, allow all projects 

permitted under the 2008 permit or existing permit to complete construction without being required to retroactively comply with the new 

rules (grandfather ongoing projects). 

Response 

Refer to Response 1.3 and 1.6.4. 

Comment ID 0067-A1.001.004

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 1.5.3 
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A. NOI submittal timing requires that the document be filed via the e-NOI process thirty days prior to initiation of construction activities. 

The applicant then is required to delay construction start for 30 days following notification by the agency that the NOI/SWPPP package 

is complete. Assuming a typical agency processing lag of one month from NOI submission to a completeness determination, permittees 

could face a sixty-day minimum interval from NOI submittal until construction could commence under the CGP. For major linear energy 

projects, this delay can be factored into the overall project management sequence; however, for minor line upgrade projects that may not 

qualify as true emergencies but that are otherwise dependent upon receiving an electrical outage authorization from a customer, or that 

are being driven from a Federal Energy Regulatory Commission ("FERC") or regional electric reliability organization mandate, that 

time delay could affect electrical reliability to customers as well as potentially place Entergy in violation of FERC or derivative electrical 

reliability standards. 

Response 

Refer to Response 1.6.4. 

Comment ID 0068-A1.001.012

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 1.5.3 

EPA should not implement new source performance standards set forth in the C&D ELG (see Section II. above). EPA also should 

remove the provisions relating to "primary" and "secondary" operators, which could result in multiple permits for a single discharge (see 

Section II.A.1. above). 

Response 

Refer to Response 1.2 and 3.5. 

Comment ID 0093-A2.001.027

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.5.3 

Also, AGC requests that EPA add language to Part 1.5.3, Table 1-1 that would allow the NOI to be processed sooner if the permit 

applicant demonstrates that the legal requirements under the Endangered Species Act and Historic Properties Act were addressed 

previously through the National Environmental Policy Act (NEPA) process. In addition, if the permit applicant can show that a site does 

not have endangered species or historic properties (which are EPA's reasons for requiring the additional review time), then EPA should 

allow for an expedited permit approval process. 

Response 

Refer to Response 1.6.4. 
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Comment ID 0098-A1.001.004

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 1.5.3 

The language here is confusing, mixing timing provisions that will apply only during the changeover to the new permit with NOI 

deadlines that will apply for the rest of its term. We suggest that the Agency separate these two kinds of timing provisions for the sake of 

clarity. 

Response 

EPA appreciates the comment, but believes it is necessary that these timelines be included in the permit so that all types of operators are 

aware of when they need to submit their NOI. EPA simplified this provision in the final permit. 

Comment ID 0105-A2.001.004

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 1.5.3 

 30-day submittal deadlines for new sources (Part 1.5.3). Requiring the submission of NOIs for new sources at least 30 days prior to 

covered activities promotes advance planning by permittees and could enable appropriate review of NOI information by EPA, other 

federal, state, and local resource agencies, and the public. Secondary operators should also be subject to the 30-day deadline, rather 

than the 7-day deadline proposed in the Draft CGP. 

Response 

Refer to Response 1.6.4. 

Comment ID 0107-A2.001.002

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 1.5.3 

Amigos Bravos believes that it is appropriate to require NOI submittal at least 30 days prior to commencement of construction activities. 

A minimum of thirty days is needed to review a NOI submittal and to ensure that all relevant requirements, such as compliance with the 

Endangered Species Act (ESA) are met. 

Response 

Refer to Response 1.6.4. 
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Comment ID 0111-A2.001.002

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 1.5.3 

Dow does not support the proposed NOI submission deadline of 30 days for new sources. Alternatively, Dow recommends that the 

current 7 days NOI submission deadline (from the 2008 Construction General permit (CGP) be maintained in order to provide the 

necessary time for affected stakeholders to develop and implement their Stormwater Pollution Prevention Plans (SWPPP). 

Response 

Refer to Response 1.6.4. 

Comment ID 0130-A2.001.011

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 1.5.3 

10. PERMIT GRANDFATHERING. Part 1.5.3 discusses deadlines for submitting the NOI for the new permit. Per Part 1.5.3, all 

existing projects must initiate a new permit NOI within 90 days. It will be a burden to operators, with little to no return on effort, to 

terminate NOIs, update SWPPPs, and fill out new NOIs to apply for coverage under the new 2011 permit. 

We request the EPA allow the applicants to determine if they should complete the project under the old permit, or apply for the new one, 

based on their individual project schedule circumstances. If that is not acceptable, we request consideration of the following options: 

 „Grandfather‟ projects with 2008 permit coverage where construction activities are complete, and all that remains is final vegetative 

stabilization. This is especially pertinent to projects completed and seeded in the fall of 2011, which would achieve vegetative 

stabilization in spring 2012 and would file a NOT just outside the 90 day window. 

 Extend the 90 window for projects awaiting final vegetative stabilization (under the 2008 CGP) to allow one full spring growing 

season to achieve stabilization 

Response 

Refer to Response 1.3. 

Comment ID 0133-A2.001.006

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 1.5.3 

MDT notes that the time for 'existing permitted dischargers' and 'previously permitted new sources' to submit an NO! for coverage under 

the renewed CGP is 90 days. This time is not reasonable given the substantial changes proposed in the CGP. Storm Water Pollution 
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Prevention Plans (SWPPPs) will need to be updated; additional and/or different controls may need to be implemented in order to comply 

with the proposed effluent limitations; design changes will need to be explored; and contract amendments will need to be negotiated and 

issued. MDT strongly encourages EPA to consider a longer period of time for existing discharges to obtain permit coverage under the 

renewed CGP, perhaps a year or more. 

Response 

Refer to Response 1.6.4. 

Comment ID 0136-A1.001.002

Author Name: Conlon Royce 

Organization: PDC Inc. Engineers 

Issue Category: 1.5.3 

The change from 7 to 30 days from NOI to beginning of construction does not seem to have any productive purpose and could further 

impede construction progress in our Alaska's short seasons. Project funding has been later and later every year, this change could cause 

further impediments in the initiation of construction. Alaska has very short construction seasons and further impediments have huge 

ramifications. What is the purpose and value of this change? 

Response 

Refer to Response 1.6.4. 

Comment ID 0171-A1.001.010

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 1.5.3 

The 30-day waiting period for coverage may be unworkable and cause undue project delay. While the CGP establishes authorization to 

conduct emergency repairs conditioned upon the receipt of the notice of intent within 7 days, it would be unworkable to apply for and 

receive documentation on eligibility under other federal laws in order to comply with notice of intent requirements within the time period 

provided. 

Response 

Refer to Response 1.6.4. 

1.5.4 YOUR OFFICIAL START AND END DATES FOR PERMIT 

COVERAGE
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Comment ID 0024-A2.001.020

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 1.5.4 

and for increasing the waiting period before authorizing coverage from 7 to 30 days, see Part 1.5.4. 

Response 

Refer to Response 1.6.4. 

Comment ID 0034-A1.001.003

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 1.5.4 

3. Assessment of Impacts under Endangered Species Act (ESA) and National Historic Preservation Act (NHPA) 

Proposed Requirement/Section Addressed: CGP Section 1.5.3, Table 1-1; Fact Sheet pages 23, 25 & 26, 30 day waiting period for 

assessment of impacts under the ESA and NHPA for new sources. 

Comment: The fact sheet (page 23) states that if the Fish and Wildlife Service , the National Marine Fisheries Service or a State or Tribal 

Preservation Office request additional assessment time to address ESA or NHPA concerns, EPA can delay authorization to allow the 

assessment to be completed. 

Discussion: The proposed permit already extends the time for this assessment from 7 to 30 days. The fact sheet (page 26) states that EPA 

can delay authorization even further, although this is not stated in the CGP. This practice could significantly delay construction. 

Although it may be useful to allow some flexibility for additional assessment for impacts under ESA or NHPA, there should be a limit on 

the amount of time that EPA can delay authorization for these assessments. 

Recommendation: Recommend that the provision for allowing additional assessment time to address ESA or NHPA concerns be limited 

to 30 days. Also recommend that language be added to the permit to clarify the assessment process. 

Response 

Refer to Response 1.6.4. 

Comment ID 0040-A1.001.004

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 
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Issue Category: 1.5.4 

The 30-day waiting period for coverage (Section 1.5.4) may be unworkable and cause undue project delay. While the CGP establishes 

authorization to conduct emergency repairs conditioned upon the receipt of the NOI within 7 days. It would be unworkable to apply for 

and receive documentation on eligibility under other federal laws in order to comply with NOI requirements within the time period 

provided. For example, EPA estimates that, on average, Section 404 permits are issued within 2 to 6 months from receipt of a completed 

application. 

Response 

Refer to Response 1.6.4. 

Comment ID 0046-A1.001.002

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 1.5.4 

The Department beiieves the increase from a 7 -day waiting period to a 30-day waiting period for new source NOls is too long. This will 

have a substantial and negative effect on our projects. 

Response 

Refer to Response 1.6.4. 

Comment ID 0076-A1.001.002

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 1.5.4 

Target would encourage the EPA to hold their current permit processing waiting period of 7 days after permit acknowledgement. 

Response 

Refer to Response 1.6.4. 

Comment ID 0086-A1.001.007

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 1.5.4 

The 30-day waiting period for coverage (Section 1.5.4) may be unworkable and cause undue project delay. While the COP establishes 

authorization to conduct emergency repairs conditioned upon the receipt of the NOI within 7 days, it would be unworkable to apply for 

and receive documentation on eligibility under other federal laws in order to comply with NOI req uirements within the time period 
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provided. For example, EPA estimates that, on average, Section 404 permits are issued within 2 to 6 months from receipt of a completed 

application. 

Response 

Refer to Response 1.6.4. 

Comment ID 0087-A1.001.011

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.5.4 

UWAG believes that the 30-day waiting period for coverage under Section 1.5.4 is far too long, is arbitrary, and presents undue project 

complications. UWAG acknowledges that EPA has imposed 30-day waiting periods in other permits, such as MSGP-2008. However, 

the activities authorized under those permits are not nearly as episodic or dynamic as activities under the CGP. As a result, UWAG 

believes that a shorter waiting period (e.g., 7 days or 14 days) would be appropriate for the types of activities covered by the CGP. EPA 

should also clarify that the 30-day waiting period is triggered upon submittal of a complete NOI, rather than administrative 

acknowledgement by EPA. 

Response 

Refer to Response 1.6.4. 

Comment ID 0087-A1.001.013

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.5.4 

In addition, in Section 1.5.4, EPA says that "[f]or operators of emergency-related projects, you are considered provisionally covered 

under the terms and conditions of this permit immediately, and are unprovisionally covered 30 days after EPA acknowledges receipt of 

your NOI ... unless EPA notifies you that your authorization has been delayed or denied." EPA should clarify that such notification of 

delay or denial will simply keep the provisional coverage in place until such time as EPA specifies what further steps the permittee may 

need to take and gives the permittee a reasonable period to respond. 

Response 

Refer to Response 1.3. 

Comment ID 0088-A1.001.007

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 
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Issue Category: 1.5.4 

Among the unrealistic requirements are: 

-- the 30-day waiting period for coverage 

Response 

Refer to Response 1.6.4. 

Comment ID 0093-A2.001.026

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.5.4 

The Draft would require NOI submission at least 30 days prior to commencing earth-disturbing activities. This is a significant change 

from the 2008 CGP which includes a 7-day waiting period. Specifically, EPA proposes to increase the "waiting period" from 7 days to 30 

days to accommodate the endangered species and historic properties-related reviews that must take place prior to authorization. 

AGC strongly urges EPA to retain the 7-day waiting period. A 30-day waiting period would increase the cost of construction projects 

and it would be impracticable on many small-scale projects that may only last a few months. If the 7-day period cannot be retained for all 

projects, at a minimum, AGC recommends that it continue to apply on all small projects (e.g., those disturbing less than 10 acres). In 

addition, if EPA determines a change is absolutely necessary for larger projects, a two week (14-day) waiting period would be much 

better than 30 days. 

Response 

Refer to Response 1.6.4. 

Comment ID 0096-A1.001.022

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 1.5.4 

EPA is proposing to require NOI submission at least 30 days prior to commencing earthdisturbing 

activities. This is a significant change from the 2008 CGP which had a 7 day waiting 

period. EPA proposes to increase the “waiting period” from 7 days to 30 days to accommodate 

the endangered species and historic properties-related reviews that must take place prior to 

authorization. EPA should consider adopting an expedited permit approval process for sites that 

do not have Endangered Species or Historic Properties – the stated reason behind the additional 

review time. A 30 day waiting period increases the costs for construction projects, but has little 

effect on improving overall environmental protection. NAHB strongly urges EPA to retain the 7 

day waiting period. If the 7 day period cannot be retained for all permittees, at a minimum, it 
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should continue to apply for all small projects (e.g., those disturbing less than 10 acres). 

Response 

Refer to Response 1.6.4. 

Comment ID 0098-A1.001.005

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 1.5.4 

Where off-site borrow/spoil sites are obtained by contractors after the commencement of work on a job the 30-day waiting period for a 

permit to become effective could delay projects and result in additional costs. In many cases contractors are required to procure their own 

borrow/spoils sites. This information would not be known at the time of primary permitting and may not be known at the time of bid. A 

30-day lead time would be problematic in such cases, and especially where the contractors are typically the primary permit holder on 

these borrow/spoil sites. We request that the Agency consider clarifying that, in such circumstances, the contractor would be a 

"secondary" permittee subject to the more reasonable 7-day waiting period. 

Response 

EPA appreciates the comment. EPA believes that the reduced waiting period in the final permit to 14 days will be less problematic for 

these situations. See also Response 1.6.4. 

Comment ID 0127-A2.001.001

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 1.5.4 

Proposed Language 

1.5.4 Following your submittal of complete and accurate NOI consistent with this Part, unless you are a secondary operator, new 

operators of a new source or existing permitted discharger, and operators of emergency‐related projects, you are considered covered 

under the terms and conditions of this permit 30 calendar days after EPA acknowledges receipt of your NOI through posted information 

on EPA's website. 

Concern 

The 30‐day waiting period is too long. The long waiting period requires the SWPPP to be completed too early in the process, potentially 

resulting in an inadequate product. Since the SWPPP must be completed prior to submitting the NOI and with multiple revisions during 

the approval process, the SWPPP may be written approximately 60 days prior to the permit coverage beginning. The plans and scope of 

work may be incomplete 60 days prior to construction commencing. The result will be in incomplete SWPPP based on assumptions. 
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Suggested Correction 

7‐day waiting period for all projects. Or at least a 7‐day waiting period for all projects less than 10 acres. 

Response 

Refer to Response 1.6.4. 

Comment ID 0130-A2.001.012

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 1.5.4 

11. WAITING PERIOD. Part 1.5.4. This is a significant adverse impact for our business. The change from a 7 day NOI waiting period to 

a 30 day NOI waiting period will impact project delivery & startup times significantly, especially in mountainous regions with 

potentially short work windows. This will also affect projects in or near water, where work must be completed under no or low flow 

conditions, again with very small work windows. DOT transportation projects have received Endangered Species Act (ESA) and 

Cultural Clearances prior to filing the NOI for the Project. ITD strongly encourages EPA to continue to utilize the 7 day NOI waiting 

period. Require all parties to have required clearances prior to the NOI to facilitate the 7 day waiting period. 

Response 

Refer to Response 1.6.4. 

Comment ID 0133-A2.001.007

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 1.5.4 

MDT notes that the lime for obtaining permit coverage after submittal of a complete and accurate NOI has increased from 7 days to 30 

days. This increased waiting period may result in costly delays in project construction and delivery. MDT is of the understanding that 

EPA has proposed this increased waiting period to allow for additional administrative time to address compliance with such laws as the 

National Historic Preservation Act and the Endangered Species Act. In the interest of environmental streamlining, MDT suggests 

incorporating an expedited review time for federal agencies thaI are able to submit their own demonstration of compliance with these 

Acts similar to the US Army Corps of Engineers' Clean Water Act Section 404 Nationwide Permits. 

Response 

Refer to Response 1.6.4. 

Comment ID 0158-A1.001.007
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Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 1.5.4 

The 30-day waiting period for coverage (Section 1.5.4) may be unworkable and cause undue project delay. While the CGP establishes 

authorization to conduct emergency repairs conditioned upon the receipt of the NOI within 7 days, it would be unworkable to apply for 

and receive documentation on eligibility under other federal laws in order to comply with NOI requirements within the time period 

provided. For example, EPA estimates that, on average, Section 404 permits are issued within 2 to 6 months from receipt of a completed 

application. 

Response 

Refer to Response 1.6.4. 

Comment ID 0170-A2.001.003

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 1.5.4 

The 30-day waiting period for permit coverage is too long and should be reduced to 10 business days with an expedited option for permit 

coverage within 24 hours. Furthermore, a lack of response by EPA within 10 business days of submittal of a complete and accurate 

Notice of Intent should result in automatic permit coverage for the operator. Currently, the Arizona Department of Environmental 

Quality offers immediate permit coverage under the Arizona Construction General Permit through its Smart NOI system. That is to say 

that the moment an operator submits a complete and accurate NOI via the Arizona Smart NOI system it receives coverage under the 

Arizona CGP permit. This type of efficient permitting should serve as an example to EPA. While, under proposed Part 1.3.2, EPA would 

offer immediate permit coverage for projects that occur in response to natural disasters ("e.g., tornado, hurricane, earthquake, flood"), it 

would not recognize other situations where earth disturbing activities are required on short notice to avoid severe economic or social 

consequences. For example, a damaged transmission line tower may require immediate replacement to avoid a disruption in electrical 

service or to re-establish electrical service. When one considers access roads and the area of actual construction it is not uncommon for 

these projects to exceed one acre in earth disturbance and therefore require CGP coverage. A 30-day delay to engage in this type of 

critical work is not reasonable. EPA must provide an expedited option for permit coverage for those emergency situations requiring work 

to be started inunediately, but which are not specifically listed in Part 1.3.2. 

Response 

Refer to Response 1.6.4 and 1.3. 

1.5.5 CONTINUATION OF COVERAGE FOR EXISTING PERMITTEES IF 

THE PERMIT EXPIRES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.
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1.5.6 PROCEDURES FOR DENIAL OF COVERAGE

Comment ID 0025-A1.001.009

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 1.5.6 

"Any interested person may request that the EPA consider requiring an individual permit ... " This could become a tool for persons to 

delay projects simply because they do not like them. There needs to be safeguards in place to protect against nuisance requests and an 

allowance for the permittee to respond. Please include some sort of response deadline a allow projects to move forward. 

Response 

Refer to Response 1.6.5. 

Comment ID 0034-A1.001.004

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 1.5.6 

Proposed Requirement/Section Addressed: CGP Section 1.5.6, Procedures for denial of coverage. 

Comment: The permit requires EPA, if denying coverage, to "include a brief statement of the reasons for this decision." Denial of 

coverage would significantly postpone a construction project and in some cases force cancelling the project. Providing only a "brief 

statement" of the rationale for the decision is not sufficient for an action with such significant ramifications. 

Discussion: It is unclear whether EPA can deny coverage after it has already been granted, and what the standards/criteria EPA would 

use to remove or deny coverage. Denying coverage on a project that is underway could reasonably result in work to stop with significant 

cost ramifications. Additionally, removing coverage would tend to minimize (and conceivable prohibit) upkeep of in-place practices to 

minimize soil erosion. The U.S. Army Corps of Engineers (USACE) Nationwide Permits allow the applicant to develop a mitigation 

plan that would reduce the adverse effects on the aquatic environment instead of being denied coverage under the permit. 

Recommendation: DoD recommends EPA develop a similar process to that in the USACE Nationwide Permits. EPA should allow the 

permittee to mitigate concerns prior to coverage denial. 

Response 

Refer to Response 1.6.5. 

Comment ID 0093-A2.001.030
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Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 1.5.6 

This Part of the Draft states that "any interested person may request that EPA consider requiring an individual permit...." This language 

is very problematic because it could force contractors to submit individual permits for invalid reasons. Of utmost concern to AGC is the 

likelihood that this provision would become a tool for persons to delay projects either in protest to a specific project or out of ideological 

or political motivations. Individual permits are extremely burdensome, time consuming, and costly, and the CGP already contains 

requirements to ensure water quality is not compromised. 

In addition, AGC is very concerned that EPA has not identified the specific criteria that would require an individual permit. This lack of 

specifics would likely result in unnecessary project delays and illegitimate claims. EPA must also clarify that it is the decision-maker and 

establish an appeals process or other mechanism that applicants can use if they believe the requirement to obtain an individual permit is 

not warranted. In addition, there need to be safeguards in place to protect against nuisance requests and an opportunity for the 

prospective permittee to respond. There should also be a deadline by which this process must conclude to allow projects to move forward 

in a timely manner. 

Response 

Refer to Response 1.6.5. 

Comment ID 0096-A1.001.023

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 1.5.6 

EPA has not identified the specific criteria that will trigger the obligation to operate under 

an individual permit. In Part 1.5.6 “Procedures for Denial of Coverage” EPA states that “Any 

interested person may request that EPA consider requiring an individual permit under this 

paragraph.” Because this language contains no criteria for when an individual permit is 

appropriate, it could lead to operators being required to submit individual permits for invalid 

reasons, such as opposition to the project because of reasons unrelated to stormwater or other 

arbitrary reason. Individual permits are extremely burdensome, time consuming, and costly, and 

the CGP already contains requirements to ensure water quality is not compromised. EPA should 

first remove the language “Any interested person may request that EPA consider requiring an 

individual permit under this paragraph.” Then, EPA should list the specific criteria that may lead 

to a project being required to obtain an individual permit to avoid unnecessary project delays and 

illegitimate claims. EPA must also clarify that it is the decisionmaker and establish an appeals 

process or other mechanism that allows applicants to challenge the requirement to obtain an 

individual permit. 

Response 
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Refer to Response 1.6.5. 

1.6 REQUIREMENT TO POST A NOTICE OF YOUR PERMIT 

COVERAGE.

Comment ID 0066-A1.001.008

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 1.6 

Discussion: The posting location of the NOI and other permit documents must take safety into consideration. The main entrance for a 

typical transportation related construction site at TxDOT may not necessarily be a safe location for the traveling public, and in fact the 

project location may have multiple "primary entrances". On a linear project, these entrances may be where new phases of construction 

have commenced and be miles apart. 

Suggestion: Add in language that the NOI must be posted at a safe, publicly accessible location near where construction is occurring and 

where it will be apparent to someone who is looking for it. On a linear transportation project the main entrance may not be clearly 

defined or marked, and many of these posting locations may be potentially unsafe for public access. We suggest that the permit be 

written that allows for flexibility regarding where the NOI is located, with consideration given to existing on-site safety conditions. 

Response 

Seee Response 1.6.6. 

Comment ID 0087-A1.001.035

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 1.6 

Additionally, the Section 1.6 requirement that permittees post a notice of permit coverage is a significant challenge for linear utility 

construction projects. There is no main entrance to a linear utility construction area. Sometimes there will be a construction trailer and 

lay down area, but the property leased for the lay down area is rarely located within or adjacent to the right-of-way in which the actual 

construction will take place. EPA needs to provide linear utility project operators with flexibility to post or provide notice in a manner 

that makes the most sense for the particular project, including the option simply to post such notice on-line. 

Response 

Refer to Response 1.6.6. 
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Comment ID 0098-A1.001.006

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 1.6 

There may be times when posting permit documents on a public right of way is unnecessary. For example, on projects where there is a 

publicly accessible location that is not on a public right of way (in a parking lot, for example), document posting at that location would 

provide the same or better access without requiring viewers to actually enter the active construction site. Indeed, posting on a public right 

of way could result in dangerous situations where someone stops to read the posting from a travel lane. We request that EPA consider 

expanding the approved locations for such postings as described. 

Response 

Refer to Response 1.6.6. 

Comment ID 0105-A2.001.003

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 1.6 

 Requirement to post notice of coverage (Part 1.6). The new requirement in the Draft CGP that site operators post a notice of CGP 

coverage and key contact information at the facility entrance is an important improvement to the public notification provisions, and 

should be retained in the final permit. This requirement imposes minimal burden on the site operator while providing clear and 

immediate information to the public. 

Response 

EPA appreciates the comment.Refer to Response 1.6.6. 

Comment ID 0127-A2.001.002

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 1.6 

Section 1.6 

Proposed Language 

You must post a sign or other notice conspicuously near the main entrance of the construction site, which at a minimum, must include the 

NPDES Permit tracking number and a contact phone number for obtaining permit information, such as the SWPPP. The notice must be 

located so that it is visible from a public road that is nearest to the active part of the construction site, and it must use a font large enough 

to be readily viewed from a public right‐of‐way. 
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Concern 

On a Federal Installation, the posting would be located at the gate entrance to be visible from a public right‐of‐way and could be miles 

from the construction entrance site. 

Suggested Correction 

Revise language as follows "...readily viewed from a public right‐of‐way or general base population access road." 

Response 

Refer to Response 1.6.6. 

Comment ID 0133-A2.001.008

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 1.6 

The proposed CGP requires a sign or other notice to be posted conspicuously near the main entrance of the construction site. The posting 

of additional signs on linear transportation projects can present considerable safety risks both by placing additional obstacles within the 

clear zone (total roadside border area available for safe use by errant vehicles) and by changing driving behaviors whereby drivers 

un-expectantly slowdown in order to read the sign. Additionally, in a semi-arid state such as Montana, there can be a substantial amount 

of time from the end of active construction to final stabilization. Maintaining a sign for long periods after construction has ended and 

stabilization measures have been implemented does not seem warranted, as it will not lead to any water quality improvements and can 

present safety hazards within roadside clear zones. MDT suggests exploring other methods for informing the public, such as a more 

robust EPA website. If a sign must be posted, it should be required during active construction periods only. 

Response 

Refer to Response 1.6.6. 

Comment ID 0145-A2.001.003

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 1.6 

This requirement is very important from our perspective. The lack of "before-the-fact" public notification about projects covered under 

"general permits" is a challenge for those of us hoping to understand what activities are planned for our watersheds. However, when no 

information can be located for an ongoing project that is need of regulatory attention, our frustrations are multiplied. Without accessible, 

on-site posting of that information, bringing attention to problems, if those exist, is much more difficult. We appreciate seeing an explicit 

requirement here. 
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Response 

EPA appreciates the comment. Refer to Response 1.6.6. 

 
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Construction General Permit 

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2 EFFLUENT LIMITATIONS APPLICABLE TO ALL DISCHARGES

FROM CONSTRUCTION SITES

Comment ID 0024-A2.001.003

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 2 

EPA should include Low-Impact Development ("LID") requirements in the cap. LID is a nationally-proven set of site-specific 

architectural and engineering practices that both reduce the volume of and pollutants in storm water coming off of a site, approximate 

pre-development hydrologic conditions, and often bring economic benefit to the operator if incorporated into the project's initial design. 

LID has been shown to reduce damaging impacts of urban storrnwater runoff more than conventional site designs and Best Management 

Practices ("BMPs"). LID should therefore be required in NPDES permits as part of the Clean Water Act's mandate to reduce stormwater 

pollution. Accordingly, EPA should add to the site plarming requirement set forth in § 2.1 a requirement that operators design their sites 

using LID or similar environmental site design principles and approaches. 

Response 

See Response 2.1.2. 

Comment ID 0024-A2.001.004

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 2 

Related to the need for more robust LID language is the lack of clear language relating to post-construction runoff, which can often be a 

more significant long-term contributor to pollution than sediment escaping a site during construction. As an example, over 125 miles of 

the Cahaba River that flows through Alaban1a are impaired by siltation (causing habitat . alteration), and about 55 miles of Shades 

Creek, a major tributary of the river, are the subject of a TMDL for siltation, turbidity, and habitat alteration. The Shades Creek TMDL 

found that between 62% (2001) and 73% (1991) of the sediment loading is from "Streambanks." In other words, the majority of sediment 

in Shades Creek is from bank erosion associated with increased storm water discharges arising from a cumulative increase in the amount 

of impervious surfaces in that watershed. Field observations and the draft Cahaba River TMDL prepared in October 2003 indicated that 

instream erosion and scour due to increased post-construction runoff is also a significant and growing source of sedin1ent and habitat 

destruction in the Cahaba mainstem and many of its tributaries. This significant and harmful source of sediment can only be managed 

through post-construction controls. Unless LID and environmental site design become standard practice in the Cahaba and sin1ilar 

watersheds throughout the nation, TMDL targets carmot be met and degradations will cumulatively worsen with approval of each new 

development. 

Response 

See Response 2.1.2. 
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Comment ID 0068-A1.001.014

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2 

In its final C&D ELG, EPA relaxed many of the overly-prescriptive erosion and sediment control practices that it had proposed, often 

stating that, for example, the "need for these controls is dictated by site-specific considerations," because they were "not always 

feasible," or that "implementing the requirement would be cost-prohibitive." See 74 Fed. Reg. at 63,018. Now, EPA, through its 

permitting authority in four states and in various parts of many other states (recognizing also that EPA's CGP "acts" as a model CGP for 

the other 46 states), is reverting to the type of overly-prescriptive BMP mandates that it addressed in promulgating the final C&D ELG.

If in fact many BMPs are best assessed on a site-specific basis or may prove to be "cost-prohibitive" in certain circumstances, EPA 

should develop guidance for implementing the BMPs set forth in the C&D ELG rulemaking and then rely upon the individual permittee 

to assess and analyze the appropriate BMPs and their implementation to meet the standards set forth in the C&D ELG. For example, at 

the appropriate time after the C&D ELG is completed (the next CGP renewal process, not the current process subject to these 

comments), EPA should adopt in a final CGP only that which is required by the C&D ELG with regard to slopes; "minimize the 

disturbance of steep slopes" and then require the permittee to justify in its stormwater management plan the appropriate steps it will take 

to achieve that end. EPA should be proposing separate guidance concurrent with the C&D ELG rulemaking that sets forth more precise 

implementation strategies that reflect the need for site-specific flexibility. Under no circumstance should EPA be attempting to provide 

what appears to be essentially a one-size-fits-all implementation strategy as proposed in the Proposed CGP. 

Response 

See Response 3.5. 

Comment ID 0068-A1.001.016

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2 

After a dozen years of studying technology controls to support the C&D ELG rulemaking during which concluded that a flexible 

approach is appropriate, why is EPA now attempting to implement an approach even more prescriptive than the C&D ELG proposal by 

way of promulgating a new CGP permit? When the appropriate time arrives to implement a revised C&D ELG, EPA should require 

precisely what is contained in that regulation (as EPA states, "simply parroting" the C&D ELG), and use the extensive information (and 

more) in developing separate guidance that may assist site operators to more knowledgably implement such requirements without 

unnecessarily complicating the Proposed CGP. 

Response 

See Response 3.5. 
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Comment ID 0098-A1.001.007

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2 

The statement that the requirements in Part 2 apply in addition to any applicable state or local requirements "regardless of whether they 

are more or less stringent" is confusing. We suggest that the Agency delete the quoted language or otherwise replace it with a savings 

clause making clear that this permit and other applicable state or local requirements constitute independent compliance obligations. 

Response 

See Response 2.1.3. 

Comment ID 0102-A2.001.011

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2 

8. What about suggesting the use of vegetative solutions, such as composting, as a first priority, with structural measures to be used as a 

second priority? This is consistent with the approach to reduce erosion first (pollution prevention) and trap sediment second (pollution 

treatment). This approach is more technically effective in minimizing sediment discharges from sites and is a more cost-effective 

approach to erosion and sediment control. 

Response 

See Response 2.1.3. 

Comment ID 0131-A1.001.002

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2 

A review of EPA's materials in support of the Proposed CGP indicates that EPA has not undertaken a separate analysis of the 

Technology-Based Effluent Limitations (TBELS) for the non-numeric standards included in proposed permit. Although EPA conducted 

a technology control analysis of certain non numeric standards when it promulgated in the Construction and Development Rule ("C&D 

Rule") in 2009 [http://water.epa.gov/scitech/wastetech/guide/construction/index.cfm], these were admittedly far less specific than those 

included in the Proposed CGP. Fact Sheet at 12 ["The proposed permit includes specific requirements that implement the C&D rule's 

sediment and erosion control limits. While many of these requirements are included in the 2008 CGP, the proposed permit includes more 

specifics in order to properly implement the C&D rule."] EPA has not conducted the required analysis for the specific requirements 

added (which EPA states are simply explanation (id.)) in crafting the proposed TBELs in the CGP even though the additions materially 

affect the technology utilized and the feasibility and cost of implementation. This is because in incorporating the C&D Rule limitations, 

EPA has applied them with greater specificity than what is included in the C&D Rule Code of Federal Regulations section to which the 
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permit refers. E.g., compare 40 CFR § 450.21(a)(6) ["Minimize the disturbance of steep slopes"] with Proposed CGP § 2.1.1.2 [Avoid 

earth-disturbing activities on steep slopes (i.e., slopes of 15% or greater), unless infeasible or inconsistent with the requirements of the 

project. Where avoiding disturbance to such areas is infeasible you must comply with the design requirements in Part 2.1.4.2."]; compare 

40 CFR § 450.21(e) ["Prohibited discharges"] with Proposed CGP, §§ 2.3.2.1, 2.3.2.3 [EPA request for comments on practicability of 

providing secondary containment for fueling and maintenance areas (§ 2.3.2.1), staging and storage areas (§ 2.3.2.3)]. 

Another problem with the CGP's inadequate TBEL analysis is that EPA is requesting comments on 26 different aspects of the Proposed 

CGP, including requests for information regarding feasibility of certain aspects of the permit's non-numeric effluent limitations (see, 

e.g., Proposed CGP at 12 [EPA requests comments on the buffer compliance alternatives in Part 2.1.2.1....EPA is also interested in 

comments relating to whether additional flexibility is warranted for small sites that intend to implement the buffer alternative...EPA 

welcomes the submission of performance and cost data for treatment devices that might be implemented under compliance 

alternatives"]). While EPA has requested that commenters include information regarding the costs of some of the non-numeric limitation 

options described, it has not conducted any economic analysis of its own for these provisions or shown that the proposed permit 

requirements are feasible as required. 

Dr. David Sunding, Principal Economist for the Brattle Group, has examined the costs of compliance with the non-numeric effluent 

limitations included in the Proposed CGP. As described in his attached letter (attached hereto, along with Dr. Sunding's present 

curriculum vitae), there may be significant costs to permittees associated with the aspects of the non-numeric effluent limitations upon 

which EPA has requested comment. For example, in regard to the requirements for the use of chemical treatment included in sedition 

2.1.4.5 of the Proposed CGP, implementation information and hypothetical cost estimates for chemical treatment show that the costs of 

the technology become prohibitive as the volume of runoff decreases (either in dry climates and/or for smaller sites). Comparative 

studies show that chemical treatment costs are significantly higher than implementing both standard and/or enhanced traditional BMPs 

on a construction site. Additionally, the costs of specific runoff controls such as secondary containment can be large on a per-acre basis, 

especially for small projects (see Proposed CGP §§ 2.3.2.1 and 2.3.2.3). As described in Dr. Sunding's report, EPA has not analyzed the 

costs associated with these options. 

EPA's adoption of TBELs requires rigorous assessment of technology factors specified in the CWA and its implementing regulations. 33 

U.S.C. §1314(b)(2)(B); 40 C.F.R. §125.3(d); 51 Fed.Reg. 24974, 24980; NRDC v. EPA (9th Cir. 1988) 863 F.2d 1420, 1424. Failure to 

conduct the requisite analysis is a violation of the CWA. Each factor must be fully considered for each control measure promulgated, and 

the economic achievability based on the total cost to the industry and overall effect of the proposed regulation on the industry's financial 

health must be considered. This entails an iterative process requiring the permit drafter to gather information about the industry, estimate 

costs and economic impacts of the proposed effluent control options, review comments on the proposed effluent limits, and incorporate 

those comments into a final regulation supported by documentation. Mark A. Ryan, The Clean Water Act Handbook (2003 ed.) at 24. 

The fact that the analysis has not been made available for public comment for these additional specific permits requirements has 

impaired the ability of LBA and others in the homebuilding and construction industry to provide meaningful comments. 

EPA recognizes that the Proposed CGP will include TBELs in the form of both nonnumeric effluent limitations and a turbidity ELG (if 

EPA is able to promulgate a supportable ELG prior to the finalization of the CGP). See Fact Sheet at 4-5. For the inclusion of TBELs in 

the Proposed CGP, EPA has not considered any analysis of the pollutant control factors mandated by 33 U.S.C. §1314. The technology 

control factors "shall" be considered. 33 U.S.C. §1314(b)(4)(B). EPA is required to but has not considered the technology control 

factors. 33 U.S.C. §1314(b)(4)(B); 40 C.F.R. §125.3(d)(2); NRDC v. EPA, 863 F.2d at 1424. Accordingly, the iterative process required 

to establish the CGP's TBELs has not been followed, and must be before the permit is issued. Marathon Oil. Co. v. EPA (9th Cir. 1977) 
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564 F.2d 1253, 1268; The Clean Water Act Handbook at 24. 

Response 

See Response 3.5. 

Comment ID 0166-A1.001.002

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: 2 

II. My company warns EPA against implementing overly-prescriptive erosion and sediment control requirements not specifically called 

for by the C&D ELG. EPA's CGP must be adjustable to site conditions. EPA should develop guidance for implementing the 

non-numeric best management practices (BMPs) required by the C&D ELG rule so the individual permittee can assess and analyze the 

most appropriate method of implementation to meet the standards. Historically, EPA's CGP has recognized and provided sufficient 

flexibility to address the stochastic nature of precipitation and the variability of other site attributes (such as soils type and topography) 

by allowing discretion in the design and implementation of BMPs. My company is concerned that EPA's CGP proposal reverts back to 

the type of overly-prescriptive erosion and sediment control mandates that the Agency appropriately eliminated from the final C&D 

ELG rule. In the final C&D ELG rule, EPA recognizes the 'need for these [BMP ] controls is dictated by site-specifc considerations,' 

because they are 'not always feasible,' or that 'implementing the requirement would be cost-prohibitive.' See 74 Fed. Reg. at 63,018. We 

oppose EPA`s attempt to use the new CGP to implement an approach even more prescriptive than the C&D ELG rule. 

Response 

See Response 3.5 and 2.1.1. 

Comment ID 0168-A1.001.014

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 2 

-- Many new permit requirements, such as site stabilization using the uniform soil loss equation ("e-factors"), site buffer design, water 

quality monitoring, and the potential use of chemicals to enhance flocculation and clarification water treatment processes, are typically 

taught in upper level college engineering classes. Many contractors and local regulatory staff do not have the necessary training or 

expertise to correctly implement these measures, or assess effectiveness. This means that the projects may entail additional costs for 

necessary consultant assistance, increased levels of staff technical expertise or that significant training that will be required to support 

effective implementation and compliance. 

Response 

See Response 2.1.1. 
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2.1 EROSION AND SEDIMENT CONTROL REQUIREMENTS

Comment ID 0029-A1.001.004

Author Name: Pebley Trey 

Organization: McAllen Construction, Inc. 

Issue Category: 2.1 

EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local 

permit requirements, and proven effective in protecting water quality.. 

Response 

See Response 2.1.1. 

Comment ID 0031-A2.001.005

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: 2.1 

The COP must be adjustable to site conditions. The current NPDES program for construction site discharges recognizes and provides 

sufficient flexibility to address the variable nature of precipitation and other site attributes (such as soils type and topography) by 

allowing flexibility in the design and implementation of Best Management Practice (BMPs) and other pollutant control measures. This 

approach has fostered the implementation of appropriate controls on a state and regional basis, while guarding against inappropriate 

andlor overly excessive requirements. We continue to support that approach, and EPA's new requirement mandating buffers or 

alternatives practices and steep slope provisions, and stabilization requirements are highly prescriptive and does not take into account 

limitations posed by individual site conditions. OHBA encourages EPA to maintain the flexibility in the ELO language when adopting it 

into the COP. 

Response 

See Response 2.1.1, 2.2.2, and 2.3. 

Comment ID 0031-A2.001.008

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: 2.1 

EPA should focus on implementation of erosion and sediment control Best Management Practices (BMPs) that are practical and 

consistent with existing state and local permit requirements, and proven effective in protecting water quality. 
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Response 

See Response 2.1.1. 

Comment ID 0052-A1.001.002

Author Name: Hamilton Kristopher 

Organization: E.S. Wagner Company 

Issue Category: 2.1 

EPA should avoid implementing overly-prescriptive erosion and sediment control requirements. EPA's CGP must be adjustable to site 

conditions. Mandating specific BMPs at a national level is an inappropriate way to protect water quality. We are concerned that EPA's 

CGP proposal reverts back to the type of overly-prescriptive erosion and sediment control mandates that the Agency appropriately 

eliminated from the Final C&D ELG rule. If implemented, these overly-prescriptive requirements will lead to unnecessary and costly 

implementation of BMPs that may not be appropriate for a specific site. Instead, EPA should issue guidance documents that will allow 

the design professionals to tailor the proper BMPs to each specific site. 

-- Recommendation - Remove the overly-prescriptive erosion and sediment control requirements not specific to the December 2009 

C&D ELG rule and issue guidance document(s) for proper implementation of various BMPs. 

Response 

Se Response 2.1.1 and 3.5 

Comment ID 0074-A2.001.003

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.1 

Where possible, DEQ also encourages EPA to remove the overly prescriptive erosion and sediment control requirements not specific to 

the ELGs. DEQ appreciates the opportunity to offer written comments on the proposed revisions. 

Response 

See Response 3.5. 

Comment ID 0090-A1.001.015

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1 

Given the distinct and minimal nature of earth disturbance from linear installation projects, EPA should exempt these projects from any 

erosion controls in the Draft Permit that focus on reducing impacts from soil stresses and impervious surface creation. While the earth 
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disturbed in constructing or renovating a housing development or suburban shopping mall is rectangular in nature, natural gas pipeline 

projects do not install acres of new impervious surfaces (e.g., asphalt parking lots, roads, buildings, concrete sidewalks or patios) that 

will make permanent changes to the hydrology of a large track of land. Instead, linear excavations take a short time and once the pipe is 

installed or repaired, the soil is replaced, original contours are restored, and the area is re-seeded with grass and/or native foliage. 

Further, when existing impervious surfaces (e.g., pavement) are disturbed as part of a linear project, they are typically replaced after the 

project but do not result in an increased amount of impervious surfaces. 

Response 

See Response 17. 

Comment ID 0090-A1.001.024

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1 

It is difficult if not impossible to implement many of the proposed stormwater controls in a linear project. Gas pipeline work typically 

takes place in public and private utility ROWs under easement contracts with respective surface owners. During construction, the utility 

easements generally remain in use by the landowners. Requiring the same generic stormwater controls for linear projects as for 

traditional projects would limit landowner access and use of their property, including their front lawn, sidewalks, and accessible portions 

of paved roadway. Even if adequate space were available to install stormwater retention areas within or adjacent to the ROW, the 

required manipulation would merely add to the disturbed surface area. This would also increase the utility's liability risk in areas beyond 

the natural gas line project easement for possible hazards to the health and property of others, particularly in populated, urban areas. 

Response 

See Response 17. 

Comment ID 0093-A2.001.003

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1 

The C&D ELG includes non-numeric requirements for erosion and sediment control, stabilization, and pollution prevention (see 40 CFR 

§ 450.21(a) thru (f)). And now, according to EPA, the CGP "must incorporate the C&D rule requirements." See 76 Fed. Reg. at 22,885. 

The C&D ELG does require site operators to implement several specified best management practices (BMPs) to control erosion and the 

runoff of sediment from construction sites. And at an appropriate point, EPA and the state permitting authorities will have to incorporate 

these requirements into their CGPs. The Draft, however, is far more prescriptive than the C&D ELG, and does not merely incorporate its 

non-numeric requirements. 

From the final version of the C&D ELG, EPA properly excluded the overly-prescriptive requirements that had made their way into its 

proposal (such as the requirement for sediment basins on all large construction sites), and the agency sought to respond to the great 
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variation in construction sites, often stating, for example, that the "need for these controls is dictated by site-specific considerations," that 

they are "not always feasible," or that "implementing the requirement would be cost-prohibitive." See 74 Fed. Reg. at 63,018. In the 

process of revising its CGP, EPA now improperly attempts to reverse its reasoned decision to exclude such requirements. The Draft 

inappropriately reverts back to the type of overly-prescriptive BMP mandates that it eliminated from the final C&D ELG. 

If, in fact, many BMPs are best assessed on a site-specific basis or may, in certain cases, prove to be cost-prohibitive, then EPA should 

simply provide non-mandatory guidance for implementing those BMPs and give site operators the latitude to assess and determine the 

BMPs they require to meet the standards set forth in the C&D ELG. The CGP should, for example, mandate only the controls that the 

C&D ELG requires for slopes (i.e., "minimize the disturbance of steep slopes") and then give the site operator the latitude to develop a 

stormwater management plan that includes the appropriate steps it will take to achieve that end. The operator will still have and retain the 

obligation to justify whatever plan it develops. This more flexible approach is preferable to Part 2.1.1.2 of the Draft, which would add 

that the operator must "[a]void earth-disturbing activities on steep slopes (i.e., slopes of 15% or greater), unless infeasible or inconsistent 

with the requirements of the project." 

Response 

See Response 3.5. 

Comment ID 0093-A2.001.008

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1 

Historically, EPA's CGP has recognized and provided sufficient flexibility to address the stochastic nature of precipitation and the 

variability of other site attributes (such as soil types and topography) by allowing discretion in the design and implementation of BMPs. 

This approach has fostered the implementation of appropriate controls on a state and regional basis, while guarding against inappropriate 

and/or excessive requirements. AGC continues to support such a flexible approach and does not agree that the C&D ELG requirements 

support such a dramatic departure from that approach in its implementation into the CGP. AGC encourages EPA to delete its 

overly-prescriptive requirements for erosion and sediment controls from the Draft, limiting itself to the requirements found in the C&D 

ELG, and then, as appropriate, issuing non-mandatory guidance on such controls. 

In addition, AGC urges EPA fully to comply with the CWA. Ostensibly, the Draft sets forth the "best practicable control technology" 

that the agency has found necessary to meet the technology-based effluent limits that the agency has established under CWA section 301 

(33 U.S.C. § 1311) and section 306 (33 U.S.C. § 1316). See 76 Fed. Reg. at 22,885. There is, however, no evidence the agency has 

"considered the total cost of the application of this technology in relation to the effluent reduction benefits to be achieved from such 

application," in accordance with the Act. The relevant subsection of the statute, 33 U.S.C. § 1314(b)(1)(B), provides in part: 

Factors relating to the assessment of best practicable control technology currently available to comply with...section 1311 of this title 

shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from 

such application , and shall also take into account...the engineering aspects of the application of various types of control technology, 

process changes, non-water quality environmental impact (including energy requirements), and such other factors as the Administrator 

deems appropriate... . 
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Unless and until EPA properly calculates and considers both the total costs and the effluent reduction benefits of the very prescriptive 

measures that it has included in the Draft, the Draft will not only go well beyond anything the C&D ELG requires, but also conflict with 

the CWA. 

Response 

See Response 3.5. 

Comment ID 0093-A2.001.031

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1 

In its final C&D ELG, EPA relaxed many of the overly-prescriptive erosion and sediment control practices that it had proposed, often 

stating that, for example, the "need for these controls is dictated by site-specific considerations," because they were "not always 

feasible," or that "implementing the requirement would be cost-prohibitive." See 74 Fed. Reg. at 63,018. The Draft inappropriately 

reverts back to the type of overly-prescriptive BMP mandates that EPA eliminated from the final C&D ELG. 

If, in fact, many BMPs are best assessed on a site-specific basis or may prove to be "cost-prohibitive" in certain circumstances, then EPA 

should develop non-mandatory guidance for implementing the BMPs set forth in the C&D ELG rulemaking and then rely upon the 

individual permittees to assess and analyze the appropriate BMPs and their implementation to meet the standards set forth in the C&D 

ELG. For example, at the appropriate time, EPA should adopt in a final CGP only that which is required by the C&D ELG with regard to 

slopes; "minimize the disturbance of steep slopes" and then require the permittee to justify in its stormwater management plan the 

appropriate steps it will take to achieve that end. EPA should be proposing separate guidance concurrent with the C&D ELG rulemaking 

that sets forth more precise implementation strategies that reflect the need for site-specific flexibility. Under no circumstance should 

EPA be attempting to provide what appears to be essentially a one-size-fits-all implementation strategy as proposed in the Draft (see 

AGC's comments at Section III above). 

Response 

See Response 3.5 and 2.2.2. 

Comment ID 0093-A2.001.033

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1 

When the appropriate time arrives to implement a revised C&D ELG, EPA should address more precisely the requirements contained in 

that regulation and use the existing extensive information (and more) in developing separate non-mandatory guidance that may assist site 

operators to more knowledgably implement such requirements without unnecessarily complicating the proposed CGP. 
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Response 

See Response 3.5. 

Comment ID 0096-A1.001.017

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1 

In the final C&D ELG, EPA purposely relaxed many of the overly-prescriptive erosion and sediment control practices that it had 

proposed, often stating that, for example, the “need for these controls is dictated by site-specific considerations,” because they were “not 

always feasible,” or that “implementing the requirement would be cost-prohibitive.” [FN 33] Now, EPA is reverting to the type of 

overly-prescriptive BMP mandates that it addressed and dismissed in promulgating the final C&D ELG. Until now, EPA has relied on a 

flexible program that allowed permittees to select their BMPs based on Best Professional Judgment and consideration of site conditions. 

This has worked well, and although EPA has provided no details to suggest otherwise, the Agency is now proposing an about face by 

essentially dictating what must occur on every project every time. As the Agency has recognized in the past, however, many BMPs are 

best assessed on a site-specific basis or may prove to be “cost-prohibitive” in certain circumstances. Thus, instead of mandating the use 

of a specific BMP (or series of BMPs) that may be ineffectual or otherwise problematic, EPA should develop guidance for implementing 

the BMPs set forth in the C&D ELG rulemaking and then rely upon the individual permittee to assess and analyze the appropriate BMPs 

and their implementation to meet the standards set forth in the C&D ELG. 

For example, at the appropriate time after the C&D ELG is completed (during the next CGP renewal process, not the current process 

subject to these comments), EPA should adopt a final CGP that includes only that which is required by the C&D ELG with regard to 

slopes (“minimize the disturbance of steep slopes” vs. the proposal’s “avoid earth-disturbing activities 

on steep slopes (i.e., slopes of 15% or greater”) and then require the permittee to justify in his or her stormwater management plan the 

appropriate steps that will be taken to achieve that end. EPA is not an expert in the geology or topography of the nation and should not 

expect to set national standards that depend on a keen understanding of individual site characteristics. Instead, EPA should propose a 

separate guidance concurrent with the C&D ELG rulemaking that 

sets forth more precise implementation strategies and options that reflect the need for sitespecific flexibility. Under no circumstance 

should EPA attempt to provide a one-size-fits-all implementation strategy as proposed in the CGP. 

[FN 33] 74 Federal Register 63,018 (December 1, 2009). 

Response 

See Response 3.5. 

Comment ID 0096-A1.001.018

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1 
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Likewise, NAHB is concerned with the number of new practices that must be considered 

or implemented that are not dictated by the final C&D ELG and are unrelated to the control of 

stormwater discharges. For example, requirements to minimize stream crossings, minimize dust, 

and mandates regarding stabilization requirements in sensitive areas and critical habitat are clear 

stretches of EPA’s authority and should be considered beyond the scope of this rulemaking. 

Overall, NAHB suggests that EPA carefully reconsider a number of provisions within the 

proposed CGP, including the strict list of BMPs and the new, non-ELG related mandates. While 

we believe many of these should be eliminated, some of the prescriptive provisions, if retained, 

should be limited to larger construction sites. This approach would recognize the fact that larger 

sites typically pose a higher risk of pollutant discharge while smaller projects and individual lots 

within subdivisions are less likely to have significant erosion potential. Likewise, this approach 

would recognize there is limited flexibility for smaller parcels to redesign or accommodate 

certain BMPs, such as the proposed steep slope and buffer requirements, and would reduce the 

costs associated with the additional steps because they would be imposed on fewer entities. 

Finally, applying the additional BMPs and other requirements only to larger projects would also 

provide relief to small businesses, as directed by the Administration [FN 34]. Finally, such an approach 

is consistent with the C&D ELG and earlier versions of the CGP, which dictated additional 

measures for larger sites only, but did not compromise environmental protection. 

[FN 34] 76 Federal Register 3828 (January 21, 2011)

Response 

See Response 2.1.1. With regard to the concern about new practices that are not dictated by the final C&D ELG and unrelated to the 

control of stormwater discharges, EPA notes that it has eliminated the requirement to minimize stream crossings. EPA maintains that the 

requirements to minimize dust and to stabilize areas discharging to sensitive waters relate to the minimization of pollutants from 

stormwater discharges. 

Comment ID 0098-A1.001.008

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.1 

In addition, we question use of subjective words such as "minimize," "avoid" and "limit" in the body of this Part. Such terms are more 

suitable to guidance than to an enforceable document because they do not clearly identify what is required of a permit holder. We 

understand that the Agency is trying to reduce its reliance on such subjective terminology in this permit and we applaud that effort. We 

also understand, however, that the new ELG employs such words in several key sections. To the extent that the use of these kinds of 

subjective terms is not mandated by the ELG we urge EPA to further purge the final permit of such value-laden terminology. 

Response 
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See Response 2.1.2. 

Comment ID 0105-A2.001.005

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 2.1 

 Non-numeric effluent limitations (Part 2.1.1). New provisions of the Draft CGP establish narrative requirements for covered 

activities, including requirements for site planning (including avoidance of impacts to sensitive areas), erosion and sediment controls, 

and pollution control measures. Many of these provisions are clearer and more specific than in prior CGPs or in the C&D Rule itself. We 

agree with EPA that these provisions, to the extent they establish clear and enforceable requirements, are superior to the more 

generalized requirements typical of prior permits, in that they are better organized to follow the construction process, clarify permittee 

obligations, and enable effective enforcement by EPA, states, and citizens under Clean Water Act authorities. Importantly, EPA appears 

to recognize that bright-line requirements are usually more effective at promoting compliance and should be utilized wherever possible, 

especially in general permits like the CGP. 

Response 

EPA appreciates the comment. 

Comment ID 0109-A2.001.002

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 2.1 

The Permit should require best management practices that reflect the stateof- the art for construction activities, including active 

stormwater treatment to remove sediment. We support the proposed requirements that operators implement protective measures on steep 

slopes, avoid sensitive areas and stream crossings, establish a 50-foot buffer zone set back, and install truck wheel wash stations. 

Response 

We appreciate the comment. EPA notes that the Agency does not feel it is appropriate to specify implementation of specific stormwater 

controls for all sites, because many controls are best determined on a site-specific basis. Specificaly, active treatment is not a necessary 

control for all sites, and EPA believes permittees should be able to determine if such controls are needed on their sites. 

Comment ID 0129-A2.001.002

Author Name: Lauenstein P. 

Organization: 

Issue Category: 2.1 

Vegetative cover should be required as a control measure. Without explicit requirements to retain vegetative cover, denuded landscapes 

like the one shown in these photos [See Docket ID 0129-A2 for photos] are all too common at construction and development sites. This 
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inevitably results in loss of topsoil and pollution of nearby waterways. 

Response 

See Response 2.1.3. 

Comment ID 0139-A2.001.004

Author Name: Aho Andrew 

Organization: Geosynthetic Materials Association (GMA) 

Issue Category: 2.1 

GMA believes the proposed regulations should include performance values for erosion and sediment control technologies. The current 

draft has insufficient performance requirements in the specifications. 

The draft lacks a clear understanding of what the turbidity measurement requirements are. GMA believes the performance measure 

should be based on turbidity levels rather than just C-factors and 50 foot buffer equivalents. 

Response 

See Response 2.1.3. 

Comment ID 0154-A1.001.002

Author Name: Loehr Aaron 

Organization: Pace Construction 

Issue Category: 2.1 

Remove the overly-prescriptive erosion and sediment control requirements not specific to the December 2009 "Effluent Limitations 

Guidelines" for the "Construction and Development Industry" (C&D ELG rule) and issue guidance 

Response 

See Response 3.5. 

Comment ID 0167-A1.001.002

Author Name: Alberto Feliciano Jose 

Organization: Puerto Rico Homebuilder Assn 

Issue Category: 2.1 

In the case of Puerto Rico, a tropical island of irregular topography, with a central mountainous region, the need to retain this flexibility 

is particularly necessary in relation to turbidity. 

Contrary to conditions in the continental United States, surface water bodies in Puerto Rico are, with exceptions, mostly small streams or 
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creeks with flows defined by the rainy season extending generally from April to November. Concerning the amount of turbidity, 

generally determined by the number and size of particles in the water, small streams have significant natural variability of turbidity, 

which can go as high as hundreds or even thousands of NTU as runoff from banks and culverts cloud the streams. This variability 

significantly increases in areas which, like Puerto Rico, combine both high precipitation and mountainous geography. 

Aware of the presence of natural background levels of certain contaminants, the Puerto Rico Environmental Quality Board recently 

approved (March 31, 2010) significant revisions to the Island's water quality standards, including a new Rule 1305.2, establishing 

mechanisms to address the existence of natural background concentrations which exceed one or more of the water quality standards that 

apply to a specific water body classification. EPA's prescriptive proposals are also in conflict with this acknowledgement of site specific 

circumstances. 

The PRHBA has similar concerns for the establishment of fixed buffer zones, when other options, which take into consideration soil 

types, vegetation and topography, amongst other factors, less intrusive upon property rights, will attain the same reductions in sediment 

loads. In addition, the proposed 15% threshold, taking into consideration the Island's topography, is unrealistically limiting. 

Response 

EPA notes that the turbidity limit is not included in the final permit. See Response 3.1. For the comment about flexibility regarding 

buffer zones, see Response 2.1.1 and 2.3. 

2.1.1 AVOID SENSITIVE AREAS

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

2.1.1.1 MARK OFF ANY SENSITIVE AREAS

Comment ID 0017-A1.001.003

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.1.1 

1) 2.1.1.1 ‐ Requires that a permittee must delineate, and clearly mark off sensitive areas, including buffer areas, steep slopes that will be 

left undisturbed, and stream crossings. This is an excessive and onerous requirement for linear projects which often cover several miles.

Response 

See Response 2.2.1. 

Comment ID 0025-A1.001.002
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Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.1.1 

Flagging should be utilized for either exclusionary purposes or to designate certain areas, but not for both. 

Response 

See Response 2.1.1. 

Comment ID 0025-A1.001.010

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.1.1 

It is common to have contractors flag or demarcate sensitive areas such as those listed in this section. Flagging, therefore, denotes 

avoidance. It seems strange then, to flag points where a water of the US will be crossed. It is more consistent to flag the area where a 

water of the US may not be crossed. 

Response 

See Response 2.1.1. 

Comment ID 0056-A2.001.003

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.1.1.1 

Delineating and maintaining a flagged perimeter around resources areas presents a challenge for restoration projects. In almost all cases 

work is being done within rivers and wetlands since most restoration projects must first remediate historical impacts to resource areas 

before implementing habitat restoration and modifications to improve functionality. The intent of the stormwater permit requirement is 

to prevent accidental intrusion into resource areas during conventional construction project. For aquatic restoration work the opposite 

intent exists. For these reasons, the DER requests that the permit exempt pro-active restoration project from this requirement. 

Response 

See Response 2.1.1. 

Comment ID 0087-A1.001.015

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.1.1 
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Section 2.1.1 requires operators to "delineate, and clearly mark off, with flags, tape, or other similar marking device," any sensitive 

areas, including buffers, steep slopes, jurisdictional water crossings, protected habitat, species, and structures. For some projects, it may 

not be possible, or feasible, to mark off all of these areas before initiating construction. This is especially true for long linear projects that 

are constructed in phases. Instead of requiring field marking, EPA should allow operators to identify sensitive areas on their construction 

documents. Doing so will enable the operators, and their contractors, to adjust their access and operational plans to avoid sensitive areas.

Response 

See Response 2.1.1. 

Comment ID 0091-A2.001.017

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.1.1.1 

17. Part 2.1.1: The indicated marking may not be feasible or effective at some construction sites. On and active runway, the use of flags 

or tape may be prohibited or restricted. There should be an option to install alternative area controls. This could include fencing or 

protective barriers around the identified sites to prevent damage. Language allowing equivalent protective measures should be included 

with marking requirements which appear in a number of places in the permit. In areas with access restrictions or alternative vehicle 

management procedures, the marking requirement should be waived. An example of a vehicle control procedure would be to escort all 

vehicles on and off the worksite. 

Response 

See Response 2.1.1. 

Comment ID 0115-A2.001.003

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.1.1 

2.1.1.1 Mark off sensitive areas. For cross-country utility projects, such as electric transmission line projects where activities are 

conducted across several miles of right-ofways (ROW), often in phases, the delineation and marking off of the items listed in 2.1.1.1 can 

become an extensive and costly exercise, and in some cases, may be duplicative of compliance with other laws and regulations. For 

example, wetlands are typically already flagged, in compliance with the requirements of the state wetlands protection act laws and the 

federal Clean Water Act. The use of multiple flags in the field may cause confusion for field crews, annulling the current benefit of flags 

to alert crews to the presence of wetland resource areas. 

In other cases, entire portions of a ROW will fall within a buffer zone to wetlands, across rivers and streams, along steep slopes, and 

within federally-listed critical habitat [FN 1]. Avoidance of these areas is impossible, as maintenance and development activities are 

required within an established ROW approved as part of the Federal Energy Regulatory Commission filings or by state energy siting 

boards. The ROWs run cross country, over and through multiple sensitive areas. 
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Where feasible, access to work areas is conducted via off-ROW easements to avoid access-related impacts to sensitive areas. On a 

case-by-case basis, National Grid already marks off sensitive areas for some projects and will continue to do so. National Grid is 

concerned that the general language mandating such marking (i.e. a "cook book" approach) across the entire linear project is excessive 

and unnecessary. National Grid recommends either an exception for linear projects in compliance with CWA 404 provisions or an 

acknowledgement that sensitive areas are to be marked off on a case by case basis with locations included in the Stormwater Pollution 

Prevention Plan (SWPPP), based on field conditions and monitored in accordance with the SWPPP. 

The proposed CGP requests that all flagging be removed upon completion of construction activities. While this request may be 

appropriate in some instances, linear projects may have miles and miles of wetland flagging along a ROW. These flags are very rarely, if 

ever removed. National Grid is not in support of the requirement to remove all flagging, except for those portions of the project that have 

localized flagging to assist contractors identify work areas and unique sensitive areas. 

With respect to flagging of rare species habitats that fall along ROWs, National Grid is concerned that Massachusetts Natural Heritage & 

Endangered Species Program is cautious about calling attention called to the species in question. The CGP should mention that 

coordination with the appropriate state agency should be conducted prior to flagging areas of threatened or rare species. On occasion, 

National Grid has flagged areas of rare species on a site, but it has been identified as a NO WORK zone. 

[FN 1] In general National Grid questions the need to mark off federally-listed critical habitat areas as these areas are often broad and 

cover large geographic areas (e.g. Bald Eagle Habitat). It is not possible to mark off these types of areas on a project site. National Grid 

recommends that clarification of this requirement be provided (e.g. insert where feasible or if requested by the U.S. Fish and Wildlife 

Service). 

Response 

See Response 2.1.1. 

Comment ID 0130-A2.001.007

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.1.1.1 

6. FLAGGING. The proposed permit requires flagging or marking of buffer areas, steep slopes, water crossings, discharge locations, 

ESA habitat, historical properties, fueling and maintenance areas, vehicle and equipment wash areas, staging and storage areas, and 

concrete and material wash out areas. The visual clutter of the flagging will not only be potentially confusing, but possibly dilute the 

intended effect which is to highlight or designate sensitive areas. We recommend the requirement be more general and flexible and allow 

the applicant to decide the method of delineation of sensitive areas. Areas may be flagged, signed, shown on plan sheets, specified, or 

other methods to retain and protect. 

Response 

See Response 2.1.1. 
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Comment ID 0131-A1.001.029

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.1.1.1 

The Proposed CGP requires the permittee to physically mark off, flag, tape or use a similar device to delineate certain areas. The 

referenced Parts include flagging requirements for buffer areas, steep slopes (15%), crossings of waters of the US, historical properties, 

endangered species related areas, wheel wash down areas, fueling and maintenance areas, equipment or vehicle washing areas, staging 

and storage areas, building materials storage areas, equipment storage areas, vehicle storage areas, washout areas for paint, concrete and 

other materials, sampling/discharge locations, no disturbance areas including setbacks, buffers, and steep slopes. 

Requiring a permittee to physically mark off and maintain flagging in all of these areas on a construction site during the entire course of 

construction is an unnecessary burden that will not further the goal of minimizing the discharges of pollutants. 

It is prudent to mark off sensitive areas such as historical places and endangered species areas, as well as very steep slopes, but those 

tasks and requirements are usually conditions issued by the agency regulating that activity on a site-by-site basis. Crossing waters of the 

U.S. usually is regulated by a separate permit and the requirements for crossing those waters are usually contained in the respective 

permits conditions of approval. Flagging for these items should be removed from the Proposed CGP and EPA should allow the 

appropriate regional regulatory agencies to establish the conditions and requirements of approval for work in areas with endangered 

species, historical places and crossings of waters of the U.S. 

The fact sheet and proposed permit do not make a case that flagging is necessary and the C & D rule does not include such a requirement. 

Flagging for the balance of the items is not needed and will pose an unnecessary cost and compliance burden on the construction 

industry. What is the purpose and benefit of imposing such an arduous task upon the construction industry? 

Flagged delineation specifically of all slopes greater than 15% (6:1 slope) is not practical at most sites, potentially costly, and 

unnecessary to achieve the intended purpose. Furthermore, the clear identification on and use of an effective SWPPP plan can 

adequately provide the necessary information and fulfill the intended purpose; to make site personnel aware of areas that present 

elevated erosion risk as a result of slope steepness. Many construction sites have large quantities of area that exceed 15% and often these 

areas may not be easily demarcated as they can be interspersed with less steep areas. Furthermore, slope steepness is only one of many 

factors (slope shape, length, etc...) affecting erosion on slopes. Identification of areas susceptible to increased erosion and potentially in 

need of aggressive stabilization is best judged by the engineer of record in developing a well designed SWPPP. It may be appropriate, 

practical, and protective of the environment to classify "steep slopes" as areas with slopes greater than or equal to 25% (4:1 slope) and 

flag only in areas that are assessable safely and can be maintained. Ideally the engineer should specifically identify high erosion areas 

that may require flagging as part of SWPPP development. 

Construction sites by nature are subject to the elements and the flagging materials will require constant maintenance. They will wear out, 

be subject to damage from normal construction operations and traffic and need replacement throughout the course of construction, 

perhaps on a daily basis. Flagging materials will be blown over by high winds and degraded by seasonal hot and cold weather. 

Vandalism is a problem on construction sites. From the experiences of several members who conduct land development and home 

building operations, wood stakes and ribbon are constantly being vandalized by children and "off-roaders" during off hours and 
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weekends. If chain link fencing or steel posts and "snow fence" are used in place of wood stakes and ribbon, the costs would be 

significant and maintenance would still be a factor. 

A workable alternative to the flagging requirement would be to show the locations of the various items on the SWPPP site plan. This 

would identify where these areas are located and create a permanent record to document compliance with the permit. It would be a 

simple matter for the permittee to change the locations of these items as construction progresses. It would be the permittee's 

responsibility to implement the appropriate BMPs per the permit and SWPPP in the specified areas of concern. 

Response 

See Response 2.1.1. For the comment on "steep slopes", see Response 2.2.2. 

Comment ID 0133-A2.001.009

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.1.1 

This proposed permit condition would require specified sensitive areas to be delineated and clearly marked, including areas of federally 

listed critical habitat for endangered and threatened species and historic properties. MDT believes these specific areas should be 

regulated by the agencies with jurisdiction, and that these areas are not appropriate as Clean Water Act permit conditions. If these 

conditions must remain, MDT suggests limiting them to only those areas that will not be disturbed. 

Response 

See Response 2.1.1. 

2.1.1.2 AVOID STEEP SLOPES

Comment ID 0038-A1.001.008

Author Name: Minervini W. 

Organization: 

Issue Category: 2.1.1.2 

This comment pertains to the definition of "steep slope." In the April 25, 2011 Federal Register notice for the draft CGP, USEPA 

explained (79 Fed. Reg. 22887): 

"When EPA was writing the C&D rule's final non-numeric effluent limits listed above, it intended to provide discretion to permitting 

authorities to determine how best to implement these provisions with respect to requiring controls and measures appropriate for the 

conditions in their permitted areas. For example, in the preamble to the C&D rule, EPA states ‘* * * in the erosion and sediment control 

section * * * EPA simply required that permittees ‘minimize the disturbance of steep slopes' leaving it up to the permitting authority to 
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determine the specific requirements applicable to owners or operators of C&D sites to minimize disturbance of steep slopes in order to 

minimize the discharge of pollutants from the site.' See 74 FR 63016. As the permitting authority responsible for issuing stormwater 

permits for construction activities in four States, Indian Country lands, Federal facilities, Washington, DC, and U.S. 

territories/protectorates, EPA believes that it is important in this draft permit to include requirements that more specifically define what 

is necessary to implement each of the C&D rule's non-numeric limits. Accordingly, in translating the C&D rule requirements into the 

draft CGP, EPA added specificity to many of the C&D rule provisions that it believed call for further definition, such as the requirements 

to ‘Provide and maintain natural buffers', ‘Minimize steep slopes', and ‘‘Minimize soil compaction'', among others. In EPA's view, 

adding specificity to the C&D rule-based requirements in the CGP will assist permittees in understanding the Agency's view of what is 

required to comply with the permit." [emphasis added] 

In regard to steep slopes, Part VII.1.1 of USEPA's Proposed Construction General Permit (CGP) - Fact Sheet further explained: 

"Purpose: Part 2.1.1.2 implements the C&D rule requirement to ‘minimize the disturbance of steep slopes' at 40 CFR 450.21(a)(4). EPA 

added specificity to what is to be considered a ‘steep slope' under the permit by defining steep slopes as those that are 15 percent or 

greater. EPA used 15 percent to define steep slopes based on the Agency's past use of this slope, as well as the prevalence of slopes close 

to 15 percent being used by the states to define steep slopes..." 

Accordingly, the draft CGP defines steep slopes as those that are 15 percent or greater throughout locations such as New Hampshire, 

Massachusetts, New Mexico, Idaho, Puerto Rico, the District of Columbia, Pacific Island territories, and Indian Country lands in many 

States including Alabama, Alaska, Florida, Minnesota, Nebraska, New York, Oklahoma, South Dakota, and Washington. Collectively, 

these locations include areas with a tremendous range of climate, topography, soil, vegetation, and land use. The question then is, if 

defining steep slopes as those that are 15 percent or greater is appropriate for these diverse areas, what rational basis could State 

permitting authorities have for defining steep slopes differently in their NPDES CGPs? Will USEPA now consider amending 40 CFR § 

450.21(a)(4) to define steep slopes as those that are 15 percent or greater? 

Response 

EPA notes that it has made the definition for "steep slopes" more flexible in the final CGP to account for state, tribal, local, or 

industry-specific steep slope definitions or specifications. See Response 2.2.2.EPA also notes that state permitting authorities are not 

required to define steep slopes the same as EPA has defined in the CGP. States permitting authorities are only required to implement the 

C&D rule requirements, and if they choose to define steep slopes, they may define it according to what is appropriate for their state. 

Comment ID 0049-A1.001.001

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.1.2 

Slopes that are 15% or larger is a norm in many locations. This is not a realistic requirement for mountainous areas of the United States.

Response 

See Response 2.2.2. 
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Comment ID 0060-A1.001.002

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.1.2 

2. Section 2.1.1.2 - This section requires the owner, during the site planning phase of a project, to avoid earth disturbing activities on 

steep slopes (i.e. slopes of 15% or more), unless infeasible or inconsistent with the requirements of the project. Please define "unless 

infeasible or inconsistent with the requirements of the project". This language is not clear and will be subject to different interpretations. 

In addition, since this requirement is under the "Site Planning" requirements, does EPA expect the owner of a proposed construction 

project to restrict the size of their development to meet this requirement? 

It is unclear from the definition for "Steep Slopes" in Appendix A as to the method for calculating slope. For instance, over what length 

is the slope calculated (i.e. 100 ft, 50 ft, 25 ft, etc.)? Is there a minimum width and length of steep slope that would trigger this 

requirement? Does this requirement apply to any piece of ground with a slope of 15% or greater? For instance, does the requirement 

apply to a small embankment or rolling terrain? What was the basis for the steep slope criteria being set at 15%? EPA must provide a 

more detailed description for "steep slope" so that the requirement is implemented on a consistent basis. 

Response 

See Response 2.2.2.EPA notes that it has provided information about what it means to "minimize" the disturbance to steep slopes in the 

fact sheet. EPA also provides a description of the basis for EPA's definition of steep slope in the fact sheet. EPA notes that it no longer 

includes this requirement under the "Site Planning" requirements. Accordingly, EPA does not expect the owner of a proposed 

construction project to restrict the size of their development to meet this requirement. 

Comment ID 0067-A1.001.015

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.1.1.2 

The draft CGP contains a provision discouraging disturbances on slopes exceeding 15% (8.5 degrees). One of the objectives on linear 

projects constructed on servitudes is to minimize changes to pre-existing contours; therefore, vehicle trails and structure locations may 

frequently be located on slopes exceeding 15% grade to preserve the approximate original contour. Areas where construction occurs on 

slopes exceeding 15% grade require either diversion of stormwater around the slope and/or installation of specialized erosion control 

measures and immediate stabilization of the slope when construction is completed or will be temporarily suspended for seven days. As a 

point of reference, a 15% slope is the maximum grade recommended for a logging truck haul road. Given the very narrow corridors 

required for utility line ROWs, diversion of site run-on and installation of specialized erosion controls may not be possible due to space 

constraints. Entergy requests that EPA clarify that this provision is a recommendation only, which can be countermanded by other 

factors such as preserving original contours or restrictions created by the narrowness of linear projects. 

Response 
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See Response 2.2.2. 

Comment ID 0075-A2.001.003

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.1.2 

The contractor is expected to avoid "steep slopes" defined as 15% or greater (6:1, H:V). In mountainous regions in Wyoming, rock 

slopes commonly exceed 1:1, H:V (e.g., 100% slope) in native repose. WYDOT design standards on shoulder fills are at 6:1 and steeper 

(AASHTO Design Guidance). Accordance to this requirement, all WYDOT highways would need to comply with Part 2.1.4.2 

including: linear diversions, specialized erosion and sediment controls, all fertilizing, seeding, watering and mulching items completed 

within 3-work days of permanent/temporary ceasing of earthwork with the vast majority or areas in arid or semi-arid climates. 

Response 

See Response 2.2.2. 

Comment ID 0080-A2.001.016

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.1.2 

4. Minimize disturbance of steel slopes - Minimizing steep slopes is always a good idea where it is applicable and conditions allow. 

Response 

EPA appreicates the comment. See Response 2.2.2. 

Comment ID 0087-A1.001.036

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.1.2 

The CGP requires the permittee to "[a]void earth disturbing activities on steep slopes (i.e., slopes of 15% or greater), unless infeasible or 

inconsistent with the requirements of the project." Section 2.1.1.2. Due to the nature of linear utility projects, such activities will often be

necessary because these projects are designed to avoid or minimize changes to pre-existing contours and often extend through steep, 

natural terrains. UWAG believes that the other controls and practices required for activities on steep slopes are sufficient to protect 

down-slope waterbodies or sensitive areas. 

Response 

See Response 2.2.2 and 17. 
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Comment ID 0110-A1.001.002

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.1.1.2 

Typically, in the construction/erosion control world, a "steep" slope is one that is equal to or greater than 33% (3 horizontal: 1 vertical). 

A 15% slope is only a 6.67 H:1V slope which is not considered to be steep in construction/erosion applications. 

Therefore, if you want to avoid slopes greater than 15%, then don't call them steep slopes. Or if you want to avoid what are typical steep 

slopes, then choose something closer to 33%. 

Consider breaking slopes into: 

Mild: < 15% 

Moderate: > 15% and < 30% 

Steep: > 30 % and < 60 % 

Severe: > 60% 

Response 

See Response 2.2.2. 

Comment ID 0128-A2.001.008

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 2.1.1.2 

EPA should adopt in a final CGP only that which is required by the C&D ELG with regard to slopes; "minimize the disturbance of steep 

slopes" and then require the permittee to justify in its stormwater management plan the appropriate steps it will take to achieve that end.

EPA should be proposing separate guidance concurrent with the C&D ELG rulemaking that sets forth more precise implementation 

strategies that reflect the need for site-specific flexibility. Under no circumstance should EPA be attempting to provide what appears to 

be essentially a one-size-fits-all implementation strategy as proposed in the Proposed CGP. 

Response 

See Response 2.2.2 and 3.5. 

Comment ID 0133-A2.001.010

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.1.2 
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MDT acknowledges that the new Effluent Limitation Guidelines require the disturbance of steep slopes to be minimized. However, 

MDT does not believe that slopes of 15% or greater should be considered "steep". Unlike building·construction and subdivision 

development, linear transportation projects present unique challenges. The disturbance of steep slopes is often required in order to 

provide necessary access to transportation networks, as well as balance the earthwork needed to construct a project. Under the proposed 

threshold, greater right-of-way acquisition would likely be required, resulting in displacement of homes and businesses, farmland 

conversion, increased project costs, etc. Montana's topography is such that avoiding the disturbance of slopes 15 % or greater would be 

infeasible in many cases. As such, a substantial amount of time and money would be spent demonstrating infeasibility in those instances. 

Generally, MDT projects will involve disturbance to slopes greater than 15%. MDT's road design standards developed to comply with 

the Federal Highway Administration's requirements for protection of public safety, typically specify ditch and fill slopes ranging from 6: 

1 (16.7%) to 1.5: 1 (66.7%). Steeper slopes are considered when necessary to avoid and minimize impacts to sensitive resources, such as 

wetlands, historic properties, endangered species habitat, right·of.way acquisition, etc. In terms of MDT design, slopes of 15% are 

considered gentle slopes allowing complete rccoverability for errant vehicles. In following our design standards, which were developed 

with public safety in mind, MDT would have to provide an extraordinary amount of documentation to demonstrate that the disturbance 

to steep slopes is infeasible, as well as implement additional (sometimes unwarranted) control measures on the vast majority of projects. 

It has been MDT's experience that slope steepness is only onc variable influencing the likelihood for erosion. Other influences, such as 

soil types, distance traveled, etc. need to be considered as one metric is not appropriate. As a result, MDT does not believe a specific 

slope should be specified. If one must be specified, MDT recommends substantially increaSing the proposed 15% threshold, as well as 

allowing additional considerations for linear tramportation projects. 

Response 

See Response 2.2.2 and 17. 

2.1.1.3 MINIMIZE STREAM CROSSINGS

Comment ID 0062-A1.001.007

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.1.3 

Brevard County Comment: Who decides what the "minimum necessary" is? Minimizing stream crossings may greatly increase costs and 

time of construction for tight sites by limiting haul truck access. 

Response 

See 2.2.3. 

Comment ID 0075-A2.001.004

Author Name: McOmie Delbert 
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Organization: Wyoming Department of Transportation 

Issue Category: 2.1.1.3 

The contractor is expected to minimize stream crossings which is very difficult on linear, narrow highway corridors crossing numerous 

drainages and structural design/construction elements at each crossing. 

Response 

See Response 2.2.3. 

Comment ID 0107-A2.001.007

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 2.1.1.3 

Additional protections for stream crossing are needed. While it is crucial to require permittees to limit stream crossing as EPA has done 

in section 2.1.1.3, additional protection such as requiring the wheel washing steps outlined in section 2.1.3.7 (c) prior to driving through 

the stream and gravel areas on both sides of the stream crossing (with language that informs permittees that placement of gravel in a 

water of US requires 404 permit coverage) is needed. 

Response 

EPA appreciates the comment. However, after review of the comments, EPA has removed the requirement to minimize stream 

crossings. EPA believes that because stream crossings are addressed by the CWA section 404 program, the requirement is outside the 

scope of the CGP. 

2.1.2 PROTECTION OF SURFACE WATERS: NATURAL BUFFERS AND 

EQUIVALENT SEDIMENT CONTROLS

Comment ID 0017-A1.001.004

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.2 

2) 2.1.2 ‐ Requires a 50‐foot buffer or equivalent controls adjacent to waters of the U.S. to minimize sediment discharge. The buffer 

guidance in Appendix M provides a way to estimate the percent reduction in sediment discharge assuming a 50 foot buffer is present 

based upon computer modeling. Fundamentally, if the agency is relying on modeling to estimate the reduction in discharge through 

vegetation, then the agency should also be providing information on the equivalency of Best Management Practices (BMPs) that will 

achieve the required sediment discharge reduction. 
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Response 

See Response 2.3.9. 

Comment ID 0025-A1.001.003

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.2 

The 50-foot buffer requirement may be difficult to attain for a DOT who has limited rights of way and where a project uses all but a small 

portion ofthat right of way. In addition, desert southwest vegetation is sparse and does not tend to provide the same level of "treatment" 

for sediment as it does in the eastern United States. As the EPA has done in other areas of the permit, ADOT urges some site specific 

considerations with regards to the buffer requirement. 

Response 

See Response 2.3.6 and 2.3.7. 

Comment ID 0030-A2.001.008

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.2 

Section 2.1.2, page 11 

WWE has two primary concerns with this language. The first is that this buffer requirement may not be scientifically justified for all 

"waters of the U.S." Currently, "waters of the U.S." can include small tributaries that have only ephemeral flow and minor connections to 

downgradient waters. Implementing the buffer setback rules around these types of features would place additional permitting burdens on 

the applicant while possibly providing only minimal downstream water quality benefits. The second concern is regarding the difficulty 

in defining which features at a site constitute "waters of the U.S." Following the U.S. Supreme Court cases Rapanos v. United States and 

Carabell v. United States, EPA and the U.S. Army Corp of Engineers (COE) have provided memorandums and guidance that attempt to 

clarify which hydrologic features will be considered "waters of the U.S." Despite these attempts, confirmation of which features on a site 

constitute "waters of the U.S." typically requires a consultant to identify potential "waters of the U.S." and the COE to make a 

jurisdictional determination as to which features are, in fact, "waters of the U.S." Implementation of the buffer requirement as currently 

written would require the applicant to identify and obtain confirmation for "waters of the U.S." within 50 feet of all projects, placing 

additional financial and timing burdens on the applicant. 

As an alternative to the currently proposed buffer requirement, we propose Ethat PA consider limiting buffer requirements to "waters " 

which are indicated on the USGS topographic maps. These are streams that have perennial or seasonal flow (generally those features that 

flow at least seasonally and have groundwater contribution). 

Response 

See Response 2.3.4. 
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Comment ID 0038-A1.001.005

Author Name: Minervini W. 

Organization: 

Issue Category: 2.1.2 

USEPA has not justified its determination, via the draft CGP definition of "buffer," that the term "surface waters" in 40 CFR § 

450.21(a)(6) is limited to "waters of the United States" as defined at 40 CFR § 122.2. Would delegated States be able to apply 40 CFR § 

450.21(a)(6) more broadly to watercourses that are tributary to "waters of the United States," but that are not themselves "waters of the 

United States"? Such watercourses are sometimes a major means of channeling pollutants from construction activity to "waters of the 

United States." 

Response 

See Response 2.3.4.EPA clarifies that the C&D rule does not limit the waters to which a state permitting authority may apply the buffer 

requirements. EPA notes, however, that the C&D rule requirement was not intended to apply to stormwater control features on sites. 

Comment ID 0038-A1.001.009

Author Name: Minervini W. 

Organization: 

Issue Category: 2.1.2 

Part 2.1.2 uses such terms as “undisturbed natural vegetation,” “undisturbed naturally vegetated buffer,” and “naturally vegetated 

buffer.” The Appendix A definition of “Buffer” uses the term “natural vegetation.” 

In such terms, is the “natural” vegetation limited to vegetation that is primarily “native vegetation” as defined in Appendix A, or could 

“natural” vegetation also consist mainly or wholly of invasive or non-native plant species (which have stabilized many previously 

disturbed riparian areas)? For example, if a riparian area was disturbed long ago for agricultural, timber or mineral removal, or urban 

development purposes, but is now thickly vegetated (via planting or ecological succession) with non-native grasses, shrubs, or trees, is 

that current vegetation “natural vegetation”? 

Two more examples: In a residential or commercial area, is a streamside lawn of perennial non-native grass “natural vegetation”? In an 

agricultural area, is a streamside pasture of perennial non-native grass “natural vegetation”? 

Also, if a few trees are harvested now and then from a streamside wooded area, can that area still be considered “undisturbed” natural 

vegetation? 

Response 

See Response 2.3.3. 
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Comment ID 0045-A1.001.001

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 2.1.2 

2.1.2 - This section proposes the requirement for minimum 50' undisturbed, natural buffers, or equivalent sediment controls (in tenns of 

erosion and sediment pollutant load reduction) if the fonner are infeasible, if a project is adjacent to waters of the United States. The 

same are required under Section 2.1.4.2 under steep slope situations. We agre:e with this approach as a necessary best practice, with the 

extensive infonnation available as to the pollution-ameliorating effects of good buffers.[FN 4] 

 

[FN 4] Maryland Department of Natural Resources (Straughan Environmental Services, Inc.), Riparian Buffer Effectiveness Literature 

Review, Annapolis, MD: January 2003; US EPA, Riparian Buffer Width, Vegetative Cover, and Nitrogen Removal Effectiveness: A 

Review of Current Science and Regulations, EPA/600/R-05/118/0ctober 2005. 

Response 

EPA appreciates the comment. 

Comment ID 0046-A1.001.003

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.2 

Natural buffers are great BMP for improving the quality of discharge from a site. However, EPA has made the assumption that water will 

flow from the site through the 50 ft buffer and into the waterbody. If the topography does not allow water into the receiving body, there 

is no need for a buffer. If a Best Management Practice (BMP) is installed that captures all the water and diverts it to a new location, the 

buffer is not needed. In addition, siting buffers in a development plan is something that would have to happen during the design phase of 

the project and is outside the control of the contractor (i.e. it is not a temporary erosion and sedimentation control measure). The CGP as 

it stands now focuses on "Construction". However, this requirement needs to happen before construction begins and perhaps should be a 

requirement of another permit such as the MS4 that focus on site development and local site design approval. 

Response 

See Response 2.3.5 and 2.3.1. 

Comment ID 0047-A2.001.004

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.2 

Section 2.1.2, page 11 

"Waters of the U.S." can include small tributaries that have only ephemeral flow and minor connections to down gradient waters. 
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Implementing the buffer setback rules around these types of features would place additional permitting burdens on the applicant and not 

really provide any water quality benefit. Buffer setbacks should be implemented on streams that have perennial or seasonal flows. 

Response 

See Response 2.3.4. 

Comment ID 0047-A2.001.005

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.2 

Section 2.1.2, page 11 

Furthermore, the 50-foot buffer requirement may not be feasible for all types of project particularly linear projects due to Right-of-Way 

constraints. While Xcel Energy utilizes vegetative buffers on our projects whenever possible, we cannot use vegetative buffers as a BMP 

if it is outside of our Right-of-Way. 

Response 

See Response 2.3.6. 

Comment ID 0047-A2.001.006

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.2 

Section 2.1.2 page 11 

The requirement to stabilize within 3 working days of initiating stabilization may not be practicable or feasible depending on weather, 

time of year, etc. 

Response 

See Response 2.3.8. 

Comment ID 0049-A1.001.002

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.2 

Using buffer strips in the western US is not the norm. For example, identifying use of a buffer strip in the arid environment of Arizona 
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will be very difficult to achieve since many of the waterways are dry arroyo's that do not contain water except for flood flow conditions. 

Response 

See Response 2.3.7. 

Comment ID 0049-A1.001.003

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.2 

If buffer strips are to be effective, they require significant amounts of maintenance. Also, establishing adequate vegetation in a semi-arid 

environment for a buffer strip may take up to two growing seasons. Thus, requiring buffer strips is not a practical method for sediment 

control. 

Response 

Response 2.3.3. 

Comment ID 0049-A1.001.004

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.2 

A major flaw exists with advocating use of buffer strips in that they have a very limited use before they become ineffective. Since "sheet 

flow" conditions are necessary, concentrated runoff can render these BMPs nearly worthless. Insisting on use of buffer strips might work 

for humid and tropic regions of the United States, but are not a realistic BMP in arid and semi-arid climates. While use of buffer strips 

should be one BMP considered by any designer and regulatory agency, EPA should not be mandating use of buffer strips especially if 

more effective BMPs are available. 

Response 

See Response 2.3.3, 2.3.1, and 2.3.7. 

Comment ID 0051-A2.001.006

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 2.1.2 

Also in Part 2.1.2, buffer quality should be considered in the provided buffer requirements. These requirements should be altered to 

allow the permitting authority to consider the quality of the buffer, in addition to its width, before approving it as a measure of sediment 

control. Providing a uniform buffer standard is an important aspect of the Construction General Permit's task of ensuring proper 
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sediment control, either through a wide natural buffer or substitute measure. However, a designated width of buffer does not adequately 

determine the pollutant removal potential for the buffer. The quality of the buffer, including but not limited to, the vegetation type, 

vegetation coverage, gradient and soil type, affects the pollutant removal potential and thus should be considered when determining the 

adequacy of a buffer. 

Response 

See Response 2.3.3. 

Comment ID 0051-A2.001.007

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 2.1.2 

As documented in the EPA Fact Sheet regarding this permit, EPA recognizes that determining a standard buffer width for adequate 

pollutant removal is challenging, and that the pollutant removal performance of 50-foot buffers will vary from site to site. We propose 

that qualifications should be written into the permit to account for this uncertainty in buffer performance. An on-site evaluation of buffer 

quality by permitting authorities should be required in instances where a construction site discharges into any waters with Total 

Maximum Daily Loads (TMDL), or impairments for substances related to discharge from construction sites. This should also apply to 

waters that are natural heritage areas or contain habitat for endangered or threatened species. In these evaluations, authorities should be 

granted the ability to require additional sediment controls, natural vegetation or artificial substitutes as listed in Appendix M, prior to 

approving a permit. Furthermore, town conservation commissions or local conservation advisories should have the ability to contest the 

efficacy and quality of the buffer at any local site, with the guarantee that the permitting authority will respond to their comments and 

evaluate the site's buffer quality in the manner outlined above. This will allow for a specific evaluation of buffer pollutant-removal 

potential on a site-by-site basis that will promote optimal sediment and discharge control into waters that need additional protection. 

Response 

See Response 2.3.3. 

Comment ID 0060-A1.001.003

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.2 

3. Section 2.1.2 - This section requires an owner to minimize sediment discharges to any waters of the U.S. located on or immediately 

adjacent to their site by maintaining a natural buffer or by using equivalent sediment controls. Please define "or immediately adjacent 

to". This language is not clear and will be subject to different interpretations. 

In addition, will the final "Guidance on Identifying Waters Protected by the Clean Water Act" document that is being prepared by the 

EPA and the US Army Corps of Engineers have any impact on this requirement? It is our understanding that this document is currently 

going through a public review and comment process with comments due by July 31, 2011. 
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Response 

See Response 2.3.4. EPA notes that the guidance regarding waters of the U.S., once finalized, will provide assistance to permittees in 

determining what waters are required to be protected by buffers. 

Comment ID 0062-A1.001.008

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.2 

Brevard County Comment: Equivalent treatment prior to leaving site? 50' buffer on all sides of square 1 ac site leaves only 2/3 ac. The 

buffer requirement disproportionately impacts small sites. 

Response 

See Response 2.3.10. 

Comment ID 0065-A1.001.002

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.2 

As drafted, the scope of the CGP irrationally extends well beyond construction activities and demands compliance with project design 

requirements, which are entirely beyond the control and expertise of the construction sector. One example of this fundamental problem 

is the requirement of a 50-foot buffer zone. If a project was not designed with a 50-foot buffer zone, the construction company simply 

cannot meet that term of the CGP. This irrationally and unnecessarily exposes the construction company to noncompliance liabilities. 

EPA's authority to regulate sector activities under any NPDES general or individual permit is legally circumscribed by the activities 

engaged in by the sector or individual source being regulated. EPA lacks authority to impose through the CGP permit, requirements that 

do not relate to construction. 

Response 

See Response 2.3.1. 

Comment ID 0068-A1.001.015

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.2 

EPA's proposed 50-foot buffer (or equivalent) mandate in Part 2.1.2 is another example of regulatory over-reach. In the C&D ELG, EPA 

eliminated many of the specific vegetated buffer requirements because the Agency could not justify its initially prescriptive approach, 
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ultimately requiring site operators to "provide and maintain natural buffers around surface waters..." to "increase sediment removal." 

See 40 CFR § 450.21(a)(6). Now, EPA has proposed two pages of prescriptive permit language, 17-pages of Fact Sheet explanation and 

an additional 16-page permit "appendix," to mandate how sites must implement that requirement. EPA also appears to ignore in the 

Proposed CGP the important language in the C&D ELG proposal that providing and maintaining a natural buffer is not required when it 

is infeasible. 

Response 

See Response 2.3.1 

Comment ID 0071-A3.001.001

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.2 

•Part 2.1.2 Protection of Surface Waters: Natural Buffers and Equivalent Sediment Controls. This part is too restrictive and/or does not 

offer adequate alternatives. Linear transportation projects are frequently located immediately next to waters of the U.S. in areas with 

limited Right of Way (ROW) and/or geography. An example would be a mountain highway with a drop off to a river, which allows no 

opportunity for a buffer and limits the sediment and erosion control options. A second example would be a roadway located next to a dry 

gulch, with a ROW that extends only a foot or two beyond the edge of the road. Frequently, in situations such as these, administrative 

BMPs offer the best alternative to the buffer. CDOT encourages that administrative controls, such as sweeping, working only during 

the dry season, an increase in inspection frequency and so forth are added to or supplement the alternatives. 

Response 

See Response 2.3.6. 

Comment ID 0072-A2.001.002

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.1.2 

MoDOT understands and agrees with the importance of maintaining natural vegetative stream buffers where practical; however, linear 

transportation projects involve the construction of bridge or culvert crossings to carry traffic over waters of the u.s. The construction 

process typically requires, at a minimum, clearing to the stream edge, and therefore the buffer requirement is impractical in these 

situations 

Response 

See Response 2.3.6. 
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Comment ID 0075-A2.001.005

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.2 

Compliance with maintaining 50-foot native vegetated buffers adjacent to US Waters, toe stakes (e.g., disturbance boundaries) and no 

construction activities allowed within designated buffer strips would have unintended consequences on steep highway fill slopes leading 

to increased erosion potential and enhanced sediment delivery to riparian zones, especially mass wasting (i.e., mud slides). Many 

WYDOT rural secondary corridors have a mere 66-80 feet wide right-of-ways with 24-feet of that devoted to two travel lanes. 

Response 

See Response 2.3.6. 

Comment ID 0075-A2.001.015

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.2 

Similarly, the 50-foot "no construction activity" buffer would restrict gravity flow and polymer treatment train positioning between point 

of discharge and land-side of the buffer edge (i.e., narrow linear projects). 

Response 

See Response 2.3.6. 

Comment ID 0076-A1.001.003

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.2 

1. Target requests that the Environmental Protection Agency (EPA) identify the significance of 50 foot buffer (100 feet of buffer around 

a surface water) distance and why the value was selected. Does this estimated reduction align with the Construction & Development rule 

(C & 0 rule)? Target requests additional guidance on all integrated performance standards that were utilized in addition to RUSLE 2.0 in 

determining buffer performance. 

2. Target requests that the EPA provide further explanation as to why a universal 50 foot buffer is desired. Would a larger buffer be 

required for a larger drainage area or a reduced buffer for areas that do not receive runoff? Target suggests that this could be included as 

a buffer option to universal buffer width and could provide most protection where practical. 

Response 

See Response 2.3.2, 2.3.9, and 2.3.5. 
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Comment ID 0077-A1.001.003

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 2.1.2 

The buffer requirement is based on Waters of the United States, but the definition is very broad and subject to interpretation. In order to 

prevent confusion on the part of designers and reviewers, maps of waters to be protected should be developed and the buffer requirement 

should be based on the maps. 

Response 

See Response 2.3.4. 

Comment ID 0091-A2.001.001

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.1.2 

I. Fact Sheet Item 2. Part 2.1.2, 2.1.2.1 and Appendix M: The term "naturally vegetated" is somewhat confusing. Could a buffer area be 

seeded with a native plant mix one year in advance of the proposed construction to qualify as a naturally vegetated buffer? If a buffer area 

was graded 5, 10, or even 20 years in the past and vegetation was established through natural processes which include the establishment 

of invasive species or weeds, would this area qualify as a naturally vegetated buffer. Though invasive species are not desirable, the plant 

type in the buffer is probably not critical to the final water quality improvements. 

Response 

See Response 2.3.3. 

Comment ID 0093-A2.001.006

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.2 

Part 2.1.2 of the Draft, where it mandates a 50-foot buffer (or equivalent), is another problem. From the C&D ELG, EPA omitted many 

of the specific requirements for vegetated buffers because the agency could not justify its initially prescriptive approach. Instead, EPA 

simply required site operators to "provide and maintain natural buffers around surface waters ..." to "increase sediment removal." See 40 

CFR § 450.21(a)(6). Now, EPA proposes two pages of prescriptive permit language, a 17-page explanation or "fact sheet," and an 

additional 16-page permit "appendix" to mandate in excruciating detail exactly how site operators must implement the buffer 

requirement. After a dozen years of studying technology controls to support the C&D ELG rulemaking, during which EPA concluded 

that a flexible approach is appropriate, EPA is now proposing - without reasoned explanation - to take an approach even more 

prescriptive than the originally proposed C&D ELG. EPA should require precisely and only what it kept in the C&D ELG. If necessary, 
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it can then issue non-mandatory guidance that may assist site operators to more knowledgably implement that buffer requirement. 

Response 

See Response 2.3.1. 

Comment ID 0093-A2.001.034

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.2 

As proposed, AGC is concerned that the 50-foot buffer requirement will be particularly difficult to meet on linear highway projects 

where DOTs have limited rights-of-way and where most projects use all but a small portion of that space. Also, the proposed buffer 

requirements will be difficult to implement where linear projects (roadways) abut wetlands, which is a common occurrence in coastal 

states. There are times that work must take place right up to the right-of-way line which is also beside the wetlands area. 

Response 

See Response 2.3.6. 

Comment ID 0094-A1.001.002

Author Name: Oppenheimer Jonathan 

Organization: Idaho Conservation League 

Issue Category: 2.1.2 

We strongly support the inclusion of a naturally vegetated buffer to control sediment from construction sites. We encourage you to 

consider expanded buffers in designated critical habitat for listed Endangered and Threatened species, on sensitive landtypes and on 

steep slopes. You should consider the effectiveness of a 50-foot vegetated buffer compared with the buffers established by the Forest 

Service and Dept. of Interior through the PACFISH and INFISH Strategies for protection of Riparian Habitat Conservation Areas to 

protect and conserve listed salmonids. 

Response 

See Response 2.3.3. 

Comment ID 0105-A2.001.007

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 2.1.2 

 Natural riparian buffers with minimum width of 50 feet around waters of the U.S., or equivalent level of control (Part 2.1.2). The Draft 

CGP's proposed requirement for natural buffers of at least 50 feet between construction activities and waters of the U.S. is a common 
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sense, practical provision that implements the C&D Rule and is analogous to the buffer zone requirements of wetland protection laws, 

including Massachusetts's Wetlands Protection Act, M.G.L .c. 131, § 40. The Draft CGP's natural buffer provision cannot be considered 

unduly restrictive; it provides for compliance alternatives that result in a level of control equivalent to the otherwise required buffer. CLF 

urges EPA to retain this requirement in the final permit. 

Response 

EPA appreciates the comment. 

Comment ID 0107-A2.001.005

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 2.1.2 

Sensitive areas such as areas adjacent to waters of the US, stream crossings, steep slopes and critical habitat deserve added protection. 

Amigos Bravos supports the addition of buffer requirements and suggests adding language that requires permittees to identify in the 

SWMPP any already existing local or state stream buffer requirements. In addition, Amigos Bravos recommends adding a buffer 

requirement of 25 feet to areas adjacent to drainage features such as ditches, storm drains, and arroyos. An added benefit of the buffer 

requirement is the ability to better control the spread of noxious weeds. Disturbed areas, especially here in the arid southwest, are prone 

to serious noxious weed infestation and when these disturbed areas are adjacent to waterways or drainage features noxious species are 

more easily and quickly spread to downstream areas.

Response 

See Response 2.3.3. 

Comment ID 0117-A1.001.003

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 2.1.2 

The buffer requirement is based on Waters of the United States, but the definition is very broad and subject to interpretation. In order to 

prevent confusion on the part of designers and reviewers, maps of waters to be protected should be developed and the buffer requirement 

should be based on the maps. 

Response 

See Response 2.3.4. 

Comment ID 0128-A2.001.009

Author Name: Robertson Mike 
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Organization: Minnesota Chamber of Commerce 

Issue Category: 2.1.2 

EPA's proposed 50-foot buffer (or equivalent) mandate in Part 2.1.2 is another example of regulatory over-reach. In the C&D ELG, EPA 

eliminated many of the specific vegetated buffer requirements because the Agency could not justify its initially prescriptive approach, 

ultimately requiring site operators to "provide and maintain natural buffers around surface waters..." to "increase sediment removal." See 

40 CFR § 450.21(a)(6). Now, EPA has proposed two pages of prescriptive permit language, 17-pages of Fact Sheet explanation and an 

additional 16-page permit "appendix," to mandate how sites must implement that requirement. After a dozen years of studying 

technology controls to support the C&D ELG rulemaking during which concluded that a flexible approach is appropriate, why is EPA 

now attempting to implement an approach even more prescriptive than the C&D ELG proposal by way of promulgating a new CGP 

permit? When the appropriate time arrives to implement a revised C&D ELG, EPA should require precisely what is contained in that 

regulation (as EPA states, "simply parroting" the C&D ELG), and use the extensive information (and more) in developing separate 

guidance that may assist site operators to more knowledgably implement such requirements without unnecessarily complicating the 

Proposed CGP. 

Response 

See Response 2.3.1. 

Comment ID 0133-A2.001.011

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.2 

MDT supports the proposed compliance alternatives for protection of surface waters. It is often infeasible in linear transportation 

projects to provide an undisturbed naturally vegetated buffer between the disturbed portion of the site and waters of the United States. 

Additionally, specified buffer widths alone fail to account for site·specific conditions that influence water quality. As such, compliance 

flexibility is necessary and warranted. 

Response 

See Response 2.3.6. 

Comment ID 0145-A2.001.004

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.1.2 

Natural Buffers are fundamentally important where development projects are adjacent to waters of the U.S. or their tributaries. We 

strongly support including this requirement in the final CGP. The benefits of still wider buffers are described in pages 33-50 of the EPA's 

fact sheet for the CGP, but are not particularly encouraged in the CGP. Perhaps EPA can find a way to encourage adoption of yet wider 

buffers where feasible. 
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Here in the Southeast, we have recommend a wider buffer of 75 feet on each side of 1st and 2nd order streams and a 150 foot buffer on 

each side of 3rd order or larger streams. Where slopes are greater than 30% within the buffer, the buffer width should be extended to the 

military crest of the slope. 

Our recommendation for buffers wider than the 50 foot recommendation presented in this CGP proposal may in part be justified by our 

experiences with stream channel widening that accompanies altered hydrologic conditions of urbanizing watersheds. On the Cahaba 

River, we have seen where an admittedly inadequate original buffer has been diminished dramatically by streambank slumping, leaving 

no buffer whatsoever (see photo below). [Please page 3 of original letter (Docket ID 0782-0145.] 

This bank collapse removed the entire small existing buffer, leaving a mere 12 feet to the base of the adjacent building foundation. Thus, 

existing buffers can shrink significantly, resulting in the loss of all water quality protection benefits. 

Response 

See Response 2.3.3. 

Comment ID 0153-A1.001.004

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.2 

1. Many sediment control BMPs can easily be designed and implemented to achieve sediment removal capabilities of a vegetated buffer 

as shown in the appendices of the draft EPA CGP. 

2. This requirement assumes that a 5O ft. buffer is an acceptable standard for TSS removal from construction site runoff. Barfield (2004) 

conducted simulations using the widely used Grassfil model of Hayes et al. (1984) and showed that for Greenville County, SC, 

conditions during a 2-yr. storm on a slope of 12% and a slope length of SO ft in the active construction area would inundate a SO ft. 

buffer strip downstream of the source and the discharge would contain sediment concentrations approaching 10,000 mgjliter (see figure 

below). The fact is that a vegetated filter strip (VFS) which is designed to effectively trap sediment must be regularly mowed to keep 

dense vegetation, thus there would need to be a maintenance requirement. Under these conditions, the amount of sediment storage before 

inundation is small and the filter quickly becomes ineffective. A VFS is not effective for reducing the high sediment TSS load from 

construction sites unless it has a very long flow path through the vegetation. These strips can be effective, however, for newly stabilized 

areas and for post construction. 

[Please see page 4 of the original letter (Docket ID 0153-A1.001) to view the graph of TSS concentration and Source Length and Filter 

Length.] 

3. This is a back door way of requiring a % sediment removal on an annual basis. This is not supported in the Federal Register. EPA 

appears to base the % removal on an annual loading equivalent to that of a 50-foot buffer strip. There does not seem to be a regard for the 

volume limitation the 50-ft. buffer will hold before failure. This is based on a RUSClE calculation not considering the effect of flow. 

Suggest the EPA analysis be redone and the % removal be set based on a design storm event that the buffer can attain without being 

cleaned and maintained. In addition, this requirement appears to not require any additional controls if you have a natural buffer in place. 
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This idea will simply not work. There is no way DOTs or other linear type projects can comply. 

Response 

See Response 2.3.3, 2.3.9, and 2.3.6. With respect to the comment that the requirement establishes a percentage of sediment removal on 

an annual basis, EPA clarifies that the requirement only applies to discharges to surface waters within 50-feet of the site. The 

requirement does not apply to other discharges from the site (i.e., discharges to an MS4 or discharges that are more than 50-feet from a 

surface water. 

Comment ID 0157-A2.001.001

Author Name: McGoff Steve 

Organization: Nevada DEP 

Issue Category: 2.1.2 

NDEP feels this approach will work in areas of the country with good vegetative cover and consistent rainfall, but it won't work in other 

parts of the country where waters of the U.S. include dry washes or ephemeral streams. Buffers in those arid regions would usually 

consist of sparse vegetation intermingled with large areas of native soil that contain no vegetation. If that site in Nevada happens to be 

located adjacent to waters of the U.S., where is the economic and environmental benefit to installing additional BMPs to meet the 

equivalent buffer requirements? The 2-year, 24-hour storm event in Nevada produces much less than one inch of precipitation. It has 

been NDEP's experience that the small amount of discharge that might leave these sites would soak into the soil long before it would ever 

reach any waters of the U.S. It has been NDEP's policy that BMPs properly installed and maintained will minimize the amount of 

sediment and pollutants leaving a construction site. Nevada has stated numerous times to EPA that making a "one size fits all" guidance 

or regulation based upon climactic conditions on the East Coast, South or the Midwest does not work in arid regions. Nevada and the 

Southwest have a unique climate and topography. Nevada is willing to implement new stormwater permit requirements when they make 

sense for our region, but it appears that this proposed buffer requirement would require additional costs for maintenance and modeling 

with no visible environmental benefit. 

Response 

See Response 2.3.7. 

Comment ID 0168-A1.001.026

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 2.1.2 

-- In-stream BMPs (Section 2.1.2, Page 11-12): Please consider defining and allowing additional BMPs such as temporary crossings, 

flow diversion, coffer-dams with well-pointing, silt curtains, and other measures as necessary to support in-channel or shoreline work 

required for installation/maintenance of bridges, channel outfalls, utility crossings, and channel bank stabilization (including riprap and 

grouted riprap). Silt fence, bio-Iogs, mats and rock check dams may not meet this particular need. Also, grouted riprap is listed as a BMP 

for channel work; there can be serious adverse in-stream impacts associated with installing this type of bank protection without some 

other BMP to protect the waterway. 
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Response 

See Response 2.3.5. 

2.1.2.1 COMPLIANCE ALTERNATIVES [REQUEST FOR COMMENT]

Comment ID 0037-A1.001.005

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.2.1 

This Part states that if compliance alternatives a or b are selected then "All discharges through the buffer must be non‐channelized or 

non‐concentrated, and must first be treated by the site's sediment and erosion controls." In the first sentence under the bullet Discharges 

to the Buffer in Appendix M Buffer Guidance (page M‐7), it states "Part 2.1.2.1 requires that any discharges to your buffer area be 

non‐channelized or non‐concentrated." Due to these inconsistencies, EPA should clarify whether discharges through OR discharges to 

buffer areas must be non‐channelized or non‐concentrated. 

If EPA's intent was to require that all discharges through the buffer must be non‐channelized or nonconcentrated if compliance 

alternatives a or b are selected, the Southern Ute Growth Fund has the following comment. In the southwest, there are often natural 

features (swales, rills or gullies) within the existing buffer areas for waters of the U.S. that channelize stormwater runoff already. 

Therefore, even if the flow leaving the construction site is diffuse, it will have a tendency to reconcentrate when the flow intercepts these 

features. This Part should be modified to include an exception to this requirement if the buffer has channelized or concentrated flow 

through it prior to any construction activities. 

Response 

See Response 2.3.3 and 2.3.5. 

Comment ID 0040-A1.001.007

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.1.2.1 

The 50-foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not 

themselves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns within the unique constraints of the 

particular linear project area. Often a utility line right of way (ROW) is parallel to a Water of the United States (WOUS) and, since the 

line support structures can be staggered to span a WOUS, no wetland permit may be needed. Implementation of the buffer requirement 

could trigger the need to obtain significantly more wetlands permits because the structures may not be able to span both the WOUS and 

the buffer. Relief from the buffer requirement is needed for this type of situation. Under the new EPA/Corps interpretation of WOUS, 
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50-foot buffer requirements would apply to intermittent and ephemeral drainages, which would be very problematic and practically 

unworkable. 

Response 

See Response 2.3.6. 

Comment ID 0045-A1.001.003

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 2.1.2.1 

Finally, this section proposes the use of sediment percent removal efficiencies attributed to Best Management Practices (BMPs), in order 

to evaluate and choose substitutes for the implementation of a full-scale buffer, if necessary. EPA and others have shown that the use of 

such efficiencies is often a "poor measure of BMP performance,[FN 5]" and that other methods of assessing effectiveness are better (e.g., 

how much stormwater runoff is prevented by volume; how much runoff that does occur is treated; and, of the runoff treated, what is the 

effluent quality by way of any of a number of pollutant parameters?). 

[FN 5] Strecker, et aI., A Reassessment of the Expanded EPA/ASCE National BMP Database (2001); US EPA, Three Keys to BMP 

Performance - Concentration, Volume and Total Load, http://cfpub1.epa.gov/npdes/stormwater/urbanbmp/bmptopic.cfm (percent 

removal). 

Response 

See Response 2.3.9. 

Comment ID 0054-A2.001.004

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: 2.1.2.1 

Issue: It is unclear what EPA's justification is for the imposition of the 50 foot buffer of natural vegetation. It is also unclear how the 50 

foot buffer mandate supports the C+D guidelines in 40 CFR 450.21 (a)(6). 

Firstly, if there is some data to support that 50 feet of natural vegetation provides 75% removal of solids, as an example, then there would 

be a standard (in this case 75% solids removal) by which other controls or even augmentation of the existing topography would provide 

similar reductions and could be implemented. 

If EPA wishes to maintain the "natural buffer" provision, it will be imperative to define "natural vegetation" and identify specific 

characteristics of the natural vegetation (e.g., a certain density, species, etc.). At some industrial facilities, vegetation may exist to 

stabilize shorelines or stream banks, but may consist of weeds, invasive species, and sparse density. USS recommends that "natural 

vegetation" be defined in the final regulation. 
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Response 

See Response 2.3.2 and 2.3.3. 

Comment ID 0054-A2.001.005

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: 2.1.2.1 

Secondly, the C+D guidelines in 40 CFR 450.21 (a)(6) state, "Provide and maintain natural buffers around surface waters, ... unless 

infeasible." There is no reference to a certain width of natural vegetation that must be maintained and it seems arbitrary that EPA would 

indicate this as a requirement. Further, if the site-specific situation indicates the maintenance of a buffer is infeasible, then the 50 foot 

requirement would be moot. 

Recommended Change: USS recommends continued use of 450.21 (a)(6) as currently written for addressing natural buffers in the CGP.

Response 

See Response 2.3.1. 

Comment ID 0055-A1.001.003

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 2.1.2.1 

Section 2.1.2.1.c. "If it is infeasible to provide an undisturbed naturally vegetated buffer of any size..." The statement "if it is infeasible" 

is left open to regulatory interpretation with varying opinions. We suggest that this language be removed or modified. 

Response 

See Response 2.3.1. 

Comment ID 0060-A1.001.004

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.2.1 

4. Section 2.1.2.1.c - This section states "If it is infeasible to provide an undisturbed naturally vegetated buffer of any size between the 

disturbed portion of your site and the waters of the U.S....". The terminology "if it is infeasible" is subjective and open to interpretation. 

The general permit must define the criteria that an owner can use to say that "it is infeasible" for them to provide a buffer. 
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Response 

See Response 2.3.1. 

Comment ID 0064-A1.001.009

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.2.1 

Section 2.1.2.1, page II - "The compliance alternative selected above must be maintained... All discharges through the buffer must be 

channelized or non-concentrated, and must first be treated by the site's sediment and erosion controls." 

•This requirement is overly burdensome. If an operator chooses to switch approaches and still meets COP requirements, the permit 

should not prohibit such a switch in best management practices. 

Response 

See Response 2.3.3. 

Comment ID 0065-A1.001.005

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.2.1 

Section 2.1.2.1 requires an undisturbed naturally vegetated 50-foot buffer, a smaller buffer, or where any buffer is infeasible, "sediment 

and erosion controls achieve the equivalent sediment load reduction as an undisturbed naturally vegetated, 50-foot buffer." The CGP 

establishes the limits for stormwater discharges at a construction project, making the "operator" with "control over construction plans 

and specifications" (CGP 1.2) liable for any violations of those limits. 

The 50-foot buffer requirement is not a construction activity over which the operator has any control. Rather, it is a design feature of a 

project, and the operator may simply not be able to modify the plans and specifications to meet that design feature. The CGP should not 

impose terms that establish an unachievable compliance baseline. 

Anticipating that the buffer zone requirement may be unachieveable, the CGP incudes compliance alternatives. Although the permit 

term on its face is beyond the rational scope of this CGP, if the term is included, alternative means to comply are critical, because in most 

projects undertaken by CCWC members, the location and project footprint do not allow for a 50-foot or even smaller buffer. Alternatives 

must be available to achieve compliance when a buffer of undisturbed natural vegetation cannot be installed. However, it is 

inappropriate for the permit to require alternative control measures to meet a baseline sediment load reduction based on a 50- foot buffer, 

which does not account for slope and other critical features of the project area. In addition, the permit lacks precision as to what 

alternative controls will be sufficient for compliance. 
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Response 

See Response 2.3.1 and 2.3.9. 

Comment ID 0066-A1.001.010

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.2.1 

Discussion: Concerning the 50 foot buffer of undisturbed natural vegetation near Waters of the U.S., we find this requirement 

unreasonable and not practicable in many instances. In most cases it is almost impossible not to disturb some of the areas surrounding 

and adjacent to surface waters. The alternatives listed need to be more realistic in terms of what is actually obtainable in the field by 

passive stormwater BMPs, when compared to the sediment load reduction offered by a 50 foot buffer of undisturbed natural vegetation.

Suggestion: This requirement for maintaining a 50 foot buffer of undisturbed natural vegetation or equivalent measures to equate to 

sediment load reduction is not practicable. In many instances, natural vegetation around waters of the U.S., is dissimilar and changes 

according to climate regime. What one area may offer for sediment removal might not be at all similar to something in another 

geographic location. 

Response 

See Response 2.3.6 and 2.3.9. EPA also notes that it modeled the sediment removal efficiency of 50-foot buffers, accounting for 

different vegetation and soil types expected in the areas covered under the permit. EPA recognizes, however, that some site conditions 

will not be recognized in the tables of sediment removal efficiency that EPA has provided, and therefore, EPA allows sites to either 

choose the vegetation and soil type that most closely matches their conditions, or peform a site-specific calculation. 

Comment ID 0086-A1.001.009

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 2.1.2.1 

The 50-foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not themse 

lves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns within the unique constra ints of the particular 

linear project area. Often a utility transmission line right-of-way (ROW) is constructed parallel to a Water of the United States (WOUS) 

where line support structures can be staggered to span the WOUS, and no wetland permit may be needed. Implementation of the buffer 

requirement contained in the proposed COP could require significantly more wetlands permits because the transmission line structures 

may not be able to span both the WOUS and meet the proposed buffer requirement. Tri-State believes this is unnecessa!), and relief from

the buffer requirement is needed for this type of situation. Under the new EPNCorps interpretation of WOUS, the 50-foot buffer 

requirements would apply to intermittent and ephemeral drainages and will present impractical work scenarios that will do nothing to 

protect water quality. 

Response 
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See Response 2.3.6. 

Comment ID 0088-A1.001.017

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.1.2.1 

Among the unrealistic requirements are: 

-- we don't consider that any selection from Appendix M would be applicable to eastern North Dakota & northwestern Minnesota. Our 

operating region is significantly different than the closest areas indicated. Our current state DOT recommended stabilization plans work 

the best in our operating region. Therefore, 2.1.2.1 b (a combination of vegetation and other supplemental controls) would normally be 

the best option since an actual 50 foot vegetative buffer would not normally be feasible for our substation or line projects. 2.1.2.1 c 

should also remain as an alternative so that we may have more flexibility in achieving the required buffer width 

Response 

See Response 2.3.6. In addition, EPA recognizes that some site conditions will not be recognized in the tables of sediment removal 

efficiency that EPA has provided, and therefore, EPA allows sites to either choose the vegetation and soil type that most closely matches 

their conditions, or peform a site-specific calculation. 

Comment ID 0096-A1.001.025

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.2.1 

EPA is proposing to require natural buffers or equivalent sediment controls as compliance alternatives to meet the buffer requirements, 

purportedly to implement the C&D ELG. NAHB strongly disagrees with this approach and urges it removal. In the C&D ELG, EPA 

eliminated many of the specific vegetated buffer requirements because the Agency could not justify its initially prescriptive approach. In 

the end, EPA ultimately required site operators to “provide and maintain natural buffers around surface waters...” to “increase sediment 

removal.” [FN 46] Also in the C&D ELG rulemaking, EPA, in certain respects, opted for a more flexible approach, as demonstrated by 

certain non-numeric requirements. It is uncertain why and it is quite concerning that EPA is now attempting to implement an approach 

that is even more prescriptive than the C&D ELG proposal through the new CGP permit. Instead of mandating compliance with 

unnecessarily strict standards, EPA should address the implementation of the forthcoming C&D ELG requirements through separate 

guidance to assist site operators in complying with those requirements instead of unnecessarily complicating the proposed CGP. EPA 

must also revisit the proposed alternatives. 

The alternative measures provided in lieu of constructing a 50 foot natural buffer, as explained in the proposed CGP are only theoretical 

and not practical. There are many drawbacks that require further guidance. For example, one of NAHB’s concerns with the buffer 

requirement is the potential for the states to adopt similar provisions in their state permits. The 

EPA CGP will be used as a model for states when revising their state CGPs going forward and some of the provisions such as the buffer 

requirements or equivalent method will be difficult for states to develop. Tables 1 through 8 in Appendix M list very specific localized 
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vegetation and sediment removal performance for the specific States and territories covered by the EPA CGP. 

These tables, however, will not necessarily be applicable in other states that may adopt the EPA CGP, or applicable even in all regions 

within a single state. This will place an undue burden on the states that have their own CGP to develop similar estimated removal tables 

for the various regions and cover vegetation typical within their state. EPA should clarify that natural buffer sediment removal values in 

other states or regions within other states will not necessarily be 

equivalent to these tables, and that they are derived only for the specific localities where the EPA CGP is currently in force. 

Further, the majority of the sediment removal values presented in these tables are unrealistically high for many rain events. Only Table 1 

for Idaho may approach a realistic estimate when the rain event is less than 1 inch in a 24 hour period. For most of these tables, the fine 

clay sediment is being predicted to be removed at over 80%, but this is a completely 

impractical estimate. Further, EPA appears not to have made any consideration as to the type of rain event intensity or duration in 

making these percentage removal predictions, even though these factors will have a significant impact on removal efficiencies. 

Even within the Tables in Appendix M, EPA has acknowledged that not every vegetation type, soil type, and slope condition is covered. 

For vegetation and soil type, EPA suggests that the selection that most closely matches the site conditions be selected; a higher slope 

should be calculated using RUSLE2 or some other accepted model. EPA should consider that the 

“effective equivalent” sediment removal for most BMPs is not a single, immutable number, but is frequently given in theoretical ranges 

of effectiveness. It is clear that within the general guidelines presented here, there is a substantial amount of subjective judgment 

required as to whether a given set of alternative BMPs will work, and there will not always be only one correct equivalent BMP setup for

every situation. This actually is a good feature, as long as EPA and the various state agencies recognize this, and do not subject sites to 

enforcement when the buffer solution used at a site is defensible using good engineering judgment. 

Another issue is that several of the natural vegetative buffers in Tables 1-8 are shown to achieve extremely high removal (90-99%), 

whereas for other soils and other natural vegetative cover, the same size buffer is considerably less effective, with some only removing 

60% or less of the sediment. NAHB’s concern is that with certain soil types, natural vegetation, locations, etc., there will be no feasible 

equivalent BMP that will be able to theoretically remove sediment 

to the level that is calculated in the tables. For example, even complete diversion of the water to a sediment pond with polymer might not 

achieve 95% removal. If this is the case, the EPA CGP provides no solution. The RUSLE2 values calculated in the table are also 

approximate estimates that have a significant margin for error, and may or may not be achievable in practice. Therefore, we suggest that, 

in situations where it is infeasible to implement a full 50 foot buffer 

of natural vegetation, and where the estimated sediment removal for that buffer from the appropriate table is greater than 80%, EPA 

allow the alternative BMP requirement for the site (in combination with any remaining buffer) to be compliance if it achieves the greater 

than 80% theoretical removal. 

[FN 46] 40 CFR § 450.21(a)(6) 

Response 

See Response 2.3.1and 2.3.9. 
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Comment ID 0108-A2.001.001

Author Name: Paul Roger 

Organization: Bernalillo County Public Works, New Mexico 

Issue Category: 2.1.2.1 

With regard to Subpart 2.1.2.1 (Buffer Compliance Alternatives) in the draft permit, the County of Bernalillo states that buffers have 

limited effectiveness in our arid area due to low cover percentages. Our preference is to only allow buffers with a supporting RUSLE2 

analysis and a minimum sediment removal efficiency.

Response 

See Response 2.3.7. 

Comment ID 0112-A2.001.001

Author Name: Karimi Hamid 

Organization: DC Dept of Environment 

Issue Category: 2.1.2.1 

Section 2.1.2: Protection of surface waters: Natural buffers and equivalent sediment controls 

With regards to compliance Alternative 2.1.2.1.c, EPA should make available a set of tables to show pounds or tons per acre of sediment 

that a buffer saves or prevents from reaching a water body in relation to the percent of sediment removals similar to Tables 1-8 shown on 

Pages M-10 through M-12 in Tables 1-8. Such a relationship would be very useful in comparing actual tonnage which can be better 

visualized rather than percentages. 

Response 

EPA appreciates the suggestion. However, EPA notes that the amount of sediment removal in terms of pounds or tons that will be 

achieved by a buffer is very site specific, and depends on the amount of sediment entering the buffer. For example, if two sites have 

buffers that achieve 50% sediment removal efficiences, but have different sediment loads to the buffer, there will be different amounts of 

sediment removed from each site. 

Comment ID 0126-A2.001.004

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.1.2.1 

Construction of "stream stabilization" measures authorized under a CWA Section 404 permit should also be excluded from this 

requirement. Additionally, "trails" should be added to types of water crossings excluded from this requirement. 

Many streams and associated buffers in our region are frequently narrower than 50' and/or at slopes greater than 9%, thereby making the 

Buffer Compliance Alternative not applicable. The 50' requirement seems too prescriptive without consideration of other important 

factors such as: 1) existing vegetation, 2) slope of the vegetated buffer 3) floodplain/floodway restrictions etc. Additionally, Tables 1-8 
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may not be applicable given their limitations to slope and vegetative cover thus leaving the local regulator at a loss as to what reasonable 

alternatives can replace the Buffer requirement. 

Therefore, it is the CSC's request to change the 50-foot buffer to a recommendation and left up to the local jurisdiction to implement 

based on site specific issues. 

Response 

See Response 2.3.5 and 2.3.2. In addition, EPA recognizes that some site conditions will not be recognized in the tables of sediment 

removal efficiency that EPA has provided, and therefore, EPA allows sites to either choose from the table the closest match to their 

conditions, or peform a site-specific calculation. 

Comment ID 0130-A2.001.013

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.1.2.1 

12. BUFFER ALTERNATIVES. Part 2.1.2.1 COMPLIANCE ALTERNATIVES. The requirement to maintain the selected alternative 

throughout the project duration is restrictive. As worded, you cannot apply different alternatives to different areas, or change the 

alternative to accommodate project changes. We request more flexibility in this language. 

Response 

See Response 2.3.3. 

Comment ID 0163-A1.001.001

Author Name: Fronczak Robert 

Organization: Assoc. of American Railroads 

Issue Category: 2.1.2.1 

One area where railroads would be particularly adversely affected is with respect to the 50 foot buffer requirement. Railroad 

rights-of-way (ROW) are generally 100 foot wide, with the track located near the center of the ROW. Therefore a 50 foot buffer is not 

possible in most railroad applications. 

Response 

See Response 2.3.6. 

Comment ID 0168-A1.001.003

Author Name: Jordan Jill 

Organization: City of Dallas 
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Issue Category: 2.1.2.1 

Buffers (Section 2.1.2, Page 11-12): There are multiple issues about the buffer zone rule: First, contractors bid plans developed by others

who may not have included a buffer zone.Second, long narrow sites for projects like bike trails may not accommodate a buffer zone. 

Third, determining whether the proposed BMP's meet the 98% effectiveness criteria. is going to be difficult and subject to professional 

interpretation. Fourth, the proposed permit is not clear as to whether the buffer zone is permanent (post-construction) or only temporary 

during construction. Finally, the buffer zone requirement is better addressed in EPA's current stormwater rulemaking focused on 

post-construction controls. An alternate approach for the CGP would be to include language to retain and protect natural buffers as 

indicated on the construction documents, or "as practicable". 

Response 

See Response 2.3.1, 2.3.6, and 2.3.9. EPA also clarifies that the requirements in Part 2.1.2.1 only apply during the period of permit 

coverage. 

2.1.2.2 ADDITIONAL REQUIREMENTS FOR COMPLIANCE 

ALTERNATIVES

Comment ID 0017-A1.001.005

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.2.2 

3) 2.1.2.2 ‐ Requires documentation of buffer width if it is less than 50 feet, along with the information used to rely upon the requirement 

to achieve the equivalent sediment load reduction as an undisturbed, naturally vegetated 50‐foot buffer. In order to document the percent 

sediment load reduction, the agency is proposing modeling using RULSE (Appendix H). This is a perfect example of where EPA should 

provide information on the equivalency of BMPs to reduce sediment discharge from a site. Requiring permittee's to model locations 

where less than a 50‐foot vegetative buffer is present is extremely burdensome and an excessive recordkeeping requirement, especially 

for linear projects where multiple soil and vegetation types are encountered. Having information on the equivalency of BMPs would 

significantly reduce the documentation burden to knowing what soil types are present within the construction area and what BMPs are 

appropriate to achieve the sediment reduction requirements. In addition, 2.1.3.2 requires the installation of physical stormwater controls 

on any portion of the site. This would include all buffer areas. Having equivalency information upfront in the design of stormwater 

controls will help ensure permittee's are meeting the proposed removal limitations. 

Response 

See Response 2.3.9 and 2.3.6. 

Comment ID 0037-A1.001.006

Author Name: Valdez Bruce 
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Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.2.2 

There should be an exception to the requirement to complete stabilization on disturbed areas within buffer areas within 3 workdays of 

initiating stabilization in the event that 1) a storm event occurred during the 3‐day deadline period which prevented stabilization 

activities from taking place or 2) soil conditions due to an earlier storm event are too wet for stabilization activities, (e.g. preparing the 

soil for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period precluding any further activities. If any of these 

events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable. 

Response 

See Response 2.3.8. 

Comment ID 0040-A1.001.008

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.1.2.2 

The proposed deadline for completing initialization of stabilization is unrealistic. Three working days for sensitive areas and seven 

calendar days for non-sensitive areas are too short for completion and do not take into consideration rain versus dry season. See Section 

2.1.2.2.b.; 2.1.4.2.ii; 4.2.2.2.b. A reasonable alternative could be "as soon as practicable, but no later than 30 days after the cessation of 

construction activity in that area unless weather conditions (rainy session) make it impractical to initialize stabilization." EPA also 

should define "working days" and clarify the definition of "immediately" in reference to how soon you must stabilize an area. Id. 

Response 

See Response 2.3.8 and 2.27. 

Comment ID 0045-A1.001.002

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 2.1.2.2 

2.1.2.2(b) - This section requires stabilization of exposed areas in a buffer where earthdisturbing activities have ceased either temporarily 

or permanently (i.e. will not resume for a period exceeding seven days). [Note: the same requirement is found with respect to steep 

slopes in §2.1.4.2]. While better than what has been required in the past, seven days is actually the maximum period of time within which 

open and exposed soils should be pennitted, without stabilization, on any site. 

We have previously commented upon this matter with respect to the Construction ELGs that apply nationally, citing our direct 

experience in the Chesapeake Bay watershed observing projects where soils uncovered for seven or 10 or up to 14 days have 

overwhelmed sediment and erosion control practices when several days of substantial rain has occurred -- a not uncommon experience 

within a one or two week period. (In that set of comments, we recommended that stabilization begin within 72 hours of earth-disturbing 

activities' ceasing.) Given the ability to now deploy earth-moving machinery quickly and cost-efficiently in an almost "just-in-time" 
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manner, there is no excuse in 2011 to allow any longer period of open soils than seven days on any construction site. We strongly 

recommend that the 14-day general stabilization deadline stated in 2.2.1 should no longer prevail on any part of a development site 

across the U.S. On the other hand, we still recommend, and think reasonable from an economic and efficiency perspective, a 72-hour 

limit in any and all special protection areas such as buffers, steep slopes, and proximate to sensitive waters. 

Response 

See Response 2.3.8. With regard to the comment on the 14-day requirement to initiate stabilization, EPA clarifies that the provision 

requires that stabilization be initiated "immediately" whenever whenever earth-disturbing activities have permanently or temporarily 

ceased on any portion of the site, consistent with the C&D rule requirement. In the final permit, permittees are required to complete 

stabilization within 14 days after it has been initiated. EPA believes that this clarification is consistent with the commenter's 

recommendation. 

Comment ID 0056-A2.001.005

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.1.2.2 

Restorations afford a unique situation with regards to stabilization. It has been the experience of DER that some restoration sites are best 

left to naturally revegetate. Other sites, especially when invasive species eradication is a part of the restoration objectives, require 

repeated denuding of the site to make inroads into long-term control. 

As this examples illustrates, restoration may be hampered by immediate and generic revegetation efforts. The DER requests pro-active 

restoration projects be exempt from the stabilization requirements contained in the draft permit. 

Response 

See Response 2.3.8. 

Comment ID 0062-A1.001.009

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.2.2 

Brevard County Comment: Who's going to keep track? Does the 7 days apply to all areas or individual portions? So if I run the grader 

over the area once/wk no stabilization is necessary? 

Response 

See Response 2.3.8. 
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Comment ID 0062-A1.001.010

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.2.2 

ii. Within 3 work days of initiating stabilization, you are required to have completed: (1) For vegetative cover, all soil conditioning, 

seeding, watering, mulching, and any other required activities related to the planting and establishment of vegetation; and/or Brevard 

County Comment: Not practical for large areas without sprinkler system. (2) For non-vegetative cover, the installation or application of 

all non-vegetative measures. 

Brevard County Comment: For example? 

Response 

See Response 2.3.8. 

Comment ID 0064-A1.001.010

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.2.2 

Section 2.1.2.2.b.ii, page 12 - "Within 3 work days of initiating stabilization..." 

•For large, linear projects, this may be overly burdensome. Perhaps remove "3 work days" and replace with "as quickly as feasible." 

Response 

See Response 2.3.8 and 2.3.6. 

Comment ID 0065-A1.001.006

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.2.2 

Section 2.1.2.2(b)(ii) imposes stabilization requirements. The draft CGP requires completion of the following activities within three 

work days of initiating stabilization: (a) for vegetative cover, all soil conditioning, seeding, watering, mulching, and any other required 

activities related to the planting and establishment of vegetation and (b) for non-vegetative cover, the installation or application of all 

non-vegetative measures. This requirement does not allow enough flexibility to accommodate unique or unplanned circumstances that 

might prevent the completion of these activities within three days. The proposed rule should be modified to allow exceptions to this 

requirement for unique or unplanned circumstances. 

Response 
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See Response 2.3.8. 

Comment ID 0066-A1.001.011

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.2.2 

Discussion: Stabilization historically has been initiated within 7 calendar days of work being temporarily or permanently stopped on 

certain portions of a project site, with final stabilization measures initiated within 14 days. The requirement for having this completed 

within 3 work days of initiating stabilization is not practicable, and in our opinion is untenable. Our projects are often in remote areas 

where materials are not always immediately available, and it may involve large areas that can't possibly be conditioned, seeded, 

mulched, etc. within 3 days. 

Suggestion: Leave the requirement the same as the existing permit. 

Response 

See Response 2.3.8. 

Comment ID 0076-A1.001.004

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.2.2 

If buffer width is less than 50 feet on a portion of the buffer, will additional controls and reduced stabilization be required on the entire 

buffer? 

Response 

EPA has removed the requirement for faster stabilization for buffer disturbances. See Response 2.3.8. EPA has clarified in the buffer 

appendix (Appendix G) that if a portion of the buffer is 50-feet or greater, the requirement to treat discharges with additional controls 

does not apply for discharges to that portion. 

Comment ID 0098-A1.001.009

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.1.2.2 

The two deadlines for the initiation of stabilization (where construction will not resume for 14 days as a general rule, but where 

construction will not resume for 7 days in certain specific circumstances) are confusing and will engender confusion in the field. A 

uniform standard is far better and more likely to facilitate compliance than a "decision tree" structure that results in the imposition of 

different requirements on different parts of a site depending on such variable factors as location, slope and the characteristics of the 
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receiving waters. 

Response 

See Response 2.3.8. 

Comment ID 0100-A2.001.006

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 2.1.2.2 

Section 2.1.2.2 suggests stabilization requirements for sites where construction will not resume for a period of 7 or more days. Please 

describe in detail the conditions in which a site would require stabilization. Indiana receives several inches of rain in a given week. 

Would this still apply or is the 7 or more day requirement a planned or known break in construction activity? This is not practical. 

Response 

See Response 2.3.8. 

Comment ID 0130-A2.001.017

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.1.2.2 

16. STABILIZATION REQUIREMENTS WITHIN BUFFER. Part 2.1.2.2.b.ii. 1 & 2. The 3 day stabilization requirement in the buffer 

zone may be infeasible for large linear projects. That said, since Part 2.1.2.1 does not allow for disturbance to the buffer, this requirement 

is confusing 

Response 

See Response 2.3.8 and 2.3.6. EPA clarifies that, because compliance alternatives 2.1.2.1a.i and 2.1.2.1a.ii allow for disturbances within 

50-feet of the surface water, the intent of this provision was to require faster stabilization of these disturbances. 

Comment ID 0133-A2.001.012

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.2.2 

MDT does not believe it is reasonable to require more stringent timelinesfor stabilization in buffer areas. The new Effluent Limitation 

Guidelines already specify that soil stabilization measures must be initiated on disturbed areas where activities have temporarily ceased 

and will not resume for a period exceeding 14 calendar days. A more stringent timeframe was not found to be economically achievable; 

as such the proposed technology based limit is unsupported. Also, the proposed compliance timeframes do not account for seeding 
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timing requirements. 

Response 

See Response 2.3.8. 

Comment ID 0145-A2.001.005

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.1.2.2 

However, for the sake of flexibility, we would allow "buffer averaging" such that for 1st and 2nd order streams, the averaged buffer area 

for the subject property equals the surface area that would have resulted from a strict application of the buffer requirements, and for 3rd 

order or higher streams a minimum width of 35 feet is always maintained. In addition, averaging may only be applied to a maximum of 

50% of the linear distance of the property's stream frontage on each side of the stream. 

We also encourage the EPA to consider the use of "buffer averaging" as a way to potentially secure buffers that are, on average, wider 

than 50 feet, so long as some minimum width, somewhat less than 50 feet, is always maintained. This approach may bring more 

flexibility to this requirement. We acknowledge that 2.1.2.1 b. might provide that very flexibility if "a wider buffer in some places" is 

interpreted to compensate for a naturally vegetated buffer that is somewhat less than 50 feet wide in some places. 

Response 

See Response 2.3.3. 

2.1.2.2Q BUFFER COMPLIANCE ALTERNATIVES

Comment ID 0007-A1.001.001

Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 2.1.2.2Q 

Comment: I believe additional flexibility is warranted in allowing alternatives to the buffer. For example, if working on a very steep site 

for which the steep terrain goes to the edge of the stream, alternatives to a buffer could indeed work better, I think, during construction 

than leaving the natural buffer. The requirements need flexibility to accommodate site‐specific situations. 

Response 

EPA appreciates the comment. EPA believes the compliance alternatives in the permit support this comment. 
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Comment ID 0015-A2.001.003

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.2.2Q 

Q2. Buffer compliance - Agree, appendix M seems to work. 

Response 

EPA appreciates the comment. 

Comment ID 0067-A1.001.016

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.1.2.2Q 

A. The draft CGP establishes a 50-foot vegetated buffer requirement when working adjacent to or crossing a jurisdictional WOUS. Often 

a utility line ROW is parallel to or spans a jurisdictional WOUS; however, since the line support structures can be staggered to span the 

WOUS, no wetland permit may be needed. Consequently, to satisfy the buffer requirement and the recommendation in the CGP to 

minimize stream crossings will result in unnecessary backtracking on the ROW and would be unachievable on narrow ROWs paralleling 

or crossing numerous streams and wetlands. Entergy requests that EPA remove this requirement where the requirement would result in 

an unacceptable environmental impact 

Response 

See Response 2.3.8 and 2.2.3. 

Comment ID 0070-A1.001.004

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 2.1.2.2Q 

b. Natural Buffers or Equivalent - Alcoa agrees with having at least 3 alternatives for protection of surface waters. In addition, Alcoa 

believes it is critical to include the ‘infeasible" option to natural buffers. This could be an issue at existing manufacturing locations that 

would need to utilize the CGP for any construction activities in locations with little to no space for natural buffers. 

Response 

See Response 2.3.1. 
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Comment ID 0074-A2.001.005

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.1.2.2Q 

The DEQ recognizes the benefits of a natural buffer for sediment control during construction and water quality controls after completion 

of construction. Also sediment controls (such as silt fence, swales, sediment basins, and others) are widely accepted and proved to be 

workable to control sediment at construction sites. EPA's CGP should allow operator/owners to use a natural buffer as one of the 

sediment controls for those construction sites that immediately discharge into any waters of the US. Allowing for a buffer alternative 

provides flexibility in permit implementation without compromising water quality. The proposed permit seems complicated and it is 

difficult to determine whether it is feasible to provide a buffer of less than 50 ft or design a treatment to provide equivalent sediment 

reduction as a 50 ft buffer (see Appendix M buffer guidance, compliance alternatives Part 2.1.2.1.b or 2.1.2.1.c). 

Response 

EPA appreciates the comment. EPA recognizes that making the designing controls to meet the equivalent sediment reduction of a 

50-foot buffer may be difficultfor some sites. Although Appendix G may appear complex to some sites, EPA believes the specificity in 

the guidance is necessary to assist permittees in meeting the compliance alternative requirements. 

Comment ID 0080-A2.001.006

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.2.2Q 

Partner Response: The alternative given is the implementation of a sediment and erosion control measure that achieves equivalent 

sediment load reduction as the 50-foot buffer would achieve. This additional requirement may necessitate large sediment ponds or other 

measures that may not be feasible due to right-of-way constraints. This is the case particularly on Linear Transportation Projects located 

in urban areas where space simply is not available for structural BMPs. 

Additionally, stream stabilization measures that involve construction practices in the stream are required to limit erosion and sediment 

loss in drainage ways due to urbanization in the watershed. The proposed CGP currently lists construction of water crossings, 

water-dependant structures, and water access areas as exclusions to this requirement. Construction of stream stabilization measures 

authorized under a CWA Section 404 permit should also be excluded from this requirement. "Trails" are another example of 

infrastructure that should be added to the list of types of water crossings excluded from this requirement. 

Finally, the Partners question whether the EPA will undertake the challenging task of establishing definitive removal efficiencies for 

these structural BMPs that will offset the 50-foot buffer? In the arid west it is very difficult and in some cases impossible to establish a 

vegetative buffer and structural BMPs may be the only viable option. 

Response 

See Response 2.3.6, 2.3.5, and 2.3.9. 
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Comment ID 0085-A2.001.004

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.1.2.2Q 

The City disagrees with EPA's description of circumstances where the provision of a buffer is infeasible and recommends a more limited 

description. On page M-7 of Appendix M, EPA states: 

EPA recognizes that there will be a number of situations in which it will be infeasible to provide and maintain a buffer of any width on a 

site. Some examples include, but are not limited to, the following: . . . 

o Subdivided lots exist entirely within the buffer thereby making the retention of vegetated areas infeasible; and 

Except for redevelopment that occurs within an urban area where buffers are no longer part of the prevailing development scheme, EPA 

should not allow permittees to locate entire subdivided lots within the buffer. At a minimum, EPA should always require a combination 

of some buffer and additional BMPs in development not located in urbanized areas. To allow development to circumvent the buffer 

requirement by merely subdividing individual lots within the buffer defeats the purpose of the buffer requirement. 

Response 

See Response 2.3.3. EPA also clarifies that the example provided would still require the equivalent sediment reduction as the 50-foot 

buffer. 

Comment ID 0103-A3.001.005

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.1.2.2Q 

In Part 2.1.2.1. Compliance Alternatives, EPA proposes requiring a 50-foot buffer (or equivalent control) of undisturbed natural 

vegetation between the disturbed portions of the construction site and waters of the U.S. 

In light of data from the literature EPA describes in the factsheet, TCEQ recommends that the 50-foot buffer requirement be replaced 

with a general requirement to provide a natural buffer to the extent it is feasible or appropriate, or replaced with a "recommendation" for 

a 50 foot buffer. Studies show that buffer strip's pollutant removal efficiency varies greatly and depends on many factors, such as soil 

type, slope, vegetative cover, and runoff characteristics. This is further supported by the fact that buffer strip width used by various cities 

and states, referred to in the fact sheet, varies anywhere from 10 to 300 feet depending on nature of slope and water quality in the 

receiving water body. TCEQ requests that flexibility be provided for operators and local authorities to establish specific buffer distance 

requirements based on regional conditions. TCEQ believes that this would be consistent with the effluent limitations guidelines (ELGs) 

for construction and development activities, 40 CFR §450.21(a)(6), which require that controls be designed, installed, and maintained to 

"provide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and 

maximize stormwater infiltration, unless infeasible;...." 
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Response 

See Response 2.3.1. 

Comment ID 0111-A2.001.004

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.1.2.2Q 

Dow does not agree with the explicit requirement for a 50-foot buffer or equivalent zone between the disturbed portions of the site and 

the waters of the U.S. However, Dow does support the inclusion of a 50-foot buffer zone as a possible BMP option. This BMP option 

approach would encourage the permittee to consider alternative and perhaps more effective (including those measures outlined in 

Appendix M) approaches in lieu of the 50-foot buffer zone, and implement the most effective BMP for their unique site characteristics. 

Permittees should be given alternatives should unique site geographical restrictions, practices or considerations prohibit a 50-foot natural 

buffer (or equivalent) zone. For example, a new or on-going remediation activity may include or result in work on the banks of a river, 

thus not allowing a 50-foot buffer zone. In this scenario, EPA should allow the permittee alternative compliance approaches to the 

50-foot buffer zone. 

Response 

See Response 2.3.2. 

Comment ID 0123-A2.001.003

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.1.2.2Q 

Comment: CRWD generally supports the concept of undisturbed vegetated buffers for protection of water bodies. However, Compliance 

Alternative b.) reduces the post construction benefits of a buffer by reducing the 50 foot width without guidance on when it is acceptable 

to reduce the buffer width. Appendix M should include guidance on what site conditions may make a 50 foot buffer infeasible. 

Response 

See Response 2.3.1. EPA clarifies that Appendix G and the fact sheet include guidance on when a buffer of any size may be 

infeasible.EPA also clarifies that operators are not required to demonstrate that it is infeasible to comply with compliance alternative 

2.1.2.1a.ii. 

Comment ID 0124-A2.001.005

Author Name: Eubanks Kevin 

Organization: Clark County Regional Flood Control District 

Issue Category: 2.1.2.2Q 
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It should be obvious that conditions in the desert call for different requirements than those that might be used in wet areas. The language 

of the Draft Permit does not seem to recognize that plant life in deserts is sparse, not dense. For example, the draft permit would require 

developers to "implement sediment and erosion controls that achieve the equivalent sediment load reduction as an undisturbed naturally 

vegetated, 50-foot buffer" (paragraph 2.1.2.1.c). But the natural vegetation in a 50-foot strip of desert would do little or nothing to 

improve stormwater quality. 

Response 

See Response 2.3.7. 

Comment ID 0145-A2.001.006

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.1.2.2Q 

As for whether additional flexibility for small sites that intend to implement buffer alternatives is warranted, we point out impacts of less 

stringent buffer requirements for smaller lots would be cumulative. We do not agree that a smaller lot size justifies smaller buffers. 

Response 

See Response 2.3.10. 

Comment ID 0170-A2.001.004

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 2.1.2.2Q 

The requirements in Part 2.1.2 and Appendix M are burdensome and require a level of technical expertise that is inappropriate for this 

permit. Effective sediment controls are essential to minimizing the discharge of pollutants from a construction site however EPA has 

embraced an approach that is so complicated that it is unlikely that it can be instituted in the manner in which EPA intended. The use of 

mathematical models to determine compliance with the sediment control requirements requires a skill set that few, if any, construction 

site operators possess. Furthermore, very few stormwater professionals have experience operating the mathematical models that EPA 

references in the CGP. These models are not user friendly, intuitive computer programs; these are highly technical mathematical models 

which require a signjfjcant amount of time and training to become proficient in their use. The sediment removal efficiency calculation 

requirements should be removed from the permit and replaced with a more user friendly option. One alternative approach would be to 

include in the permit a list of pre-approved control measures or combinations of control measures which achieve known levels of 

sediment load reduction. This simple approach would essentially provide a "menu" of control measures from which the operator could 

choose to achieve the desired reduction in sediment load. 

Response 

See Response 2.3.9 and 2.3.10. 
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Comment ID 0171-A1.001.008

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 2.1.2.2Q 

The 50-foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not 

themselves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns within the unique constraints of the 

particular linear project area. 

Response 

See Response 2.3.6. 

2.1.2.3 EXCEPTIONS

Comment ID 0017-A1.001.006

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.2.3 

4) 2.1.2.3 ‐ Provides exemptions from the natural buffers and equivalent sediment controls portion of the rule. The exemptions are 

limited to sites with CWA 404 permits or areas where no natural buffer area exists due to prior disturbances. Given the unique and 

complex conditions of linear projects, linear projects should be exempt from numerical discharge limitations (as found in Appendix M) 

and subject to BMP requirements for erosion control. 

Response 

See Response 2.3.6. 

Comment ID 0025-A1.001.011

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.2.3 

In addition to "construction" of water crossings, there should be exceptions for maintenance and repair of these structures. 

Response 

See Response 2.3.5. 
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Comment ID 0037-A1.001.007

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.2.3 

In Part 2.1.2.3.c, it states that one of the exceptions to complying with the requirement to either provide and maintain a 50 foot buffer of 

undisturbed natural vegetation or implement one of the other two alternatives is in the situation where no naturally vegetated buffer area 

exists due to prior disturbances. In Appendix M (page M‐8), EPA discusses situations where it will be infeasible to provide and maintain 

a buffer of any width, provides some example situations, and then states that the operator will need to implement sediment and erosion 

controls that achieve the equivalent sediment load reduction as an undisturbed naturally vegetated, 50-foot buffer. EPA qualifies this 

requirement with the following statement: "Note: If pre‐existing development on the site has resulted in significant disturbances within 

the 50‐foot buffer (for example, sites where all vegetation in the 50‐foot buffer area has been removed and replaced with impervious 

surfaces as a result of prior development), you are exempt from complying with the requirements in Part 2.1.2." 

However, the last sentence in the second paragraph of the Fact Sheet (page 47) appears to be in contradiction to what is stated in Part 

2.1.2.3.c or Appendix M discussed above. As stated in the Fact Sheet, "The Agency believes that the proposed buffer requirement, by 

providing an alternative for stormwater controls to be used that reduce sediment loads by the same amount as if an undisturbed, naturally 

vegetated buffer of 50 feet was established, offers a solution for facilitating the development of site‐constrained sites without a buffer but 

requiring at the same time that the lost vegetative buffer functions be retained." As written, this statement seems to negate the exemption 

from the buffer requirement for sites where no buffer area existed prior to development. It is assumed that EPA was referring to sites 

where it is infeasible to maintain a buffer of any width not sites that meet the exception requirement in Part 2.1.2.3.c. To improve 

readability of this sentence and to remove confusion it is recommended that the last part of the sentence is changed as follows ‘offers a 

solution for facilitating the development of site‐constrained sites where providing a buffer is infeasible but requiring at the same time 

that the lost vegetative buffer functions be retained.' If the original sentence in the Fact Sheet should be interpreted otherwise, EPA 

should clarify what type of situations would result in an exemption from Part 2.1.2. 

Response 

EPA appreciates the comment. EPA has modified the language in the permit, fact sheet, and buffer guidance regarding which sites 

qualify for an "exception" and which sites qualify for the compliance alternative where a buffer of any size is infeasible. EPA notes that 

it has retained the exemption for sites where no natural buffer exists due to preexisting development disturbances. 

Comment ID 0051-A2.001.008

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 2.1.2.3 

Lastly, in regards to buffer, we suggest that the exceptions to the required sediment controls (Part 2.1.2.3) be altered to protect waters 

that already are at risk for significant pollution problems. Exception (c) states that operators are not required to comply with buffer 

requirements for construction projects that can be described as the development of a site where no naturally vegetated buffer area exists 

due to prior disturbances. New construction on a previously disturbed area has a high possibility of increasing the polluted discharge and 
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potential soil erosion to levels harmful to the adjacent water body. Due to the already fragile state of the buffer and the land adjacent to it, 

operators should be required to provide some method of sediment control to prevent the additional damage and pollution that might 

result from their construction activities. They should be encouraged to create a naturally vegetated buffer that could remain after 

construction has been completed, but an artificial substitute measure would also suffice. 

Response 

See Response 2.3.5. 

Comment ID 0053-A2.001.006

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.2.3 

The Permit states: "Development of a site where no naturally vegetated buffer area exists due to prior disturbances." However, in the arid 

southwest many areas will not have a naturally vegetated buffer area not due to prior disturbance, but because they have never existed 

naturally. 

Consider revising sentence to read: "Development of a site where no naturally vegetated buffer area exists due to prior disturbances, or 

are naturally non-existent." 

Response 

See Response 2.3.5. 

Comment ID 0056-A2.001.004

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.1.2.3 

Certain restoration projects may appear to be inconsistent with the intent of the construction stormwater permit to protect waterways 

from degradation through direct redirection of runoff and preventative measures to keep soils and sediments from entering a resource 

area. The best illustration of how a restoration plan counters the basic foundation of the construction stormwater permit involves dam 

removal. Dams on rivers create low energy impoundments. Most impoundments gradually accumulate sediments and this effectively 

starves downstream reaches of the material needed to maintain a stable gradient, slope and channel morphology. Restoring a free 

flowing river by removing or breaching a dam can include a controlled release of the accumulated material to the sediment starved 

downstream reaches to help a river system finds its natural level. This is critical to attain long term channel stability in the river system. 

In these situations it would be counterproductive to the resource to prevent materials from being released downstream though runoff 

during rain events are usually not a component of a controlled release. The DER proposes that restoration projects be exempt from this 

requirement under the general permit, subject to compliance with the limitations and conditions on the work and the materials release 

that would be imposed in the separate §404 permit. 
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Response 

See Response 2.3.5. 

Comment ID 0056-A2.001.006

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.1.2.3 

The DER requests that pro-active restoration and revitalization projects be added to this list of exemptions. Similar to the construction of 

water dependent structures and access areas [2.1.2.3(b)], restoration work must be done in and adjacent to water and wetland resources. 

Restoration projects are also approved under a CWA Part 404 permit. 

Response 

See Response 2.3.5. 

Comment ID 0061-A1.001.007

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.1.2.3 

We very much appreciate the Agency's willingness to consider alternatives to the baseline 50 foot buffer of undisturbed vegetation 

between active construction and streams. In many cases LCPs are located well in excess of 50 feet from any water of the United States. 

However, where rights-of-way parallel creeks or where roadside ditches that LCPs parallel are considered jurisdictional waters [FN 10] 

that offset simply is not physically available. Moreover, given the extreme narrowness of the project sites for these projects, there is 

virtually no capability to deploy alternative measures to supplement an existing sub-50-foot buffer or to replace the function of a buffer 

entirely by other means. 

For these reasons we request that the Agency consider adding a subsection (d) to Part 2.1.2.1 that excuses all or a portion of any LCP 

from the 50-foot-or equivalent requirement where the primary operator includes documentation in its SWPPP that implementation of 

that requirement is infeasible for some or all of its project site. 

[FN 10] Particular examples of such parallel creeks and roadside ditches have been determined to be jurisdictional waters by the U.S. 

Court of Appeals for the Fourth Circuit, and some likely will be under EPA and the U.S. Corps of Engineers' Draft Guidance on 

Identifying Waters Protected by the Clean Water Act. 

Response 

See Response 2.3.6. 
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Comment ID 0065-A1.001.007

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.2.3 

Section 2.1.2.3 of the draft CGP provides several exceptions from the requirement to comply with the effluent limitations that are 

applicable to all discharges from construction sites. CCWC supports EPA's inclusion of an exception for water crossings; however, the 

scope of the exception for water crossings needs to be clarified. Section 2.1.2.3 states that the effluent limitations do not apply to "the 

following types of construction projects." It is unclear whether the effluent limitations do not apply just to the portion of the project 

where the water crossing is located or to the entire roadway project. 

Response 

See Response 2.3.5. 

Comment ID 0071-A3.001.002

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.2.3 

Part 2.1.2 Protection of Surface Waters: Natural Buffers and Equivalent Sediment Controls. Appendix M notes an exemption when the 

buffer zone has been developed with impervious surface. CDOT agrees with this exemption and sees the need for additional 

exemptions for smaller linear sites with restrictive ROW (definition of small could be less than certain acreage or based on project or 

ROW width). Additionally, exemptions should be considered for projects where the buffer occurs in a naturally impervious area, such 

as a granite outcropping. This exemption is similar to the current exemption for developed impervious buffer. 

Response 

See Response 2.3.6 and 2.3.5. 

Comment ID 0071-A3.001.003

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.2.3 

•Part 2.1.2.3 Exceptions. This Part should be modified to indicate that exemptions from this requirement should still require sediment 

and erosion controls. 

Response 

See Response 2.3.5. EPA believes that it is clear that the exceptions do not exempt the sites from all other effluent limit requirements. 
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Comment ID 0072-A2.001.003

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.1.2.3 

MoDOT commends the EPA for retaining Part 2.1.2.3 - Exceptions, which allows exception to the buffer rule for roadway/utility 

crossings, and stream access authorized by a Clean Water Act (CWA) Section 404 permit. 

Response 

EPA appreciates the comment. 

Comment ID 0076-A1.001.005

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.2.3 

4. Please highlight the exemption for redevelopment or previously impacted buffers into the permit rather than only identifying it in 

Appendix M as a "note" on page M8. Target believes this is an important Best Management Practices (BMP) option and had difficulty 

indentifying it. 

5. Target agrees with the EPA's exceptions of the 50 ft. buffer. Target will have many sites where natural existing vegetation is not 

present. However, Target would like clarification on what constitutes "natural vegetation". 

Response 

EPA has provided greater clarity in the permit regarding buffers that have preexisting development impacts. See also Response 2.3.5 and 

and 2.3.3. 

Comment ID 0087-A1.001.016

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.2.3 

Section 2.1.2 provides that "if any waters of the U.S. are located on or immediately adjacent to your site," you must "provide and 

maintain a 50-foot buffer of undisturbed natural vegetation between the disturbed portions of your site and the waters of the U.S." or 

equivalent sediment controls. We support EPA's decision to provide exceptions to this requirement, but we are concerned that the 

exceptions do not go far enough. 

For example, EPA has included an exception for the "[c]onstruction of water crossings authorized under a CWA Part 404 permit (where 

required) for water lines, sewer lines, utility lines, and roadways." Section 2.1.2.3.a. This exception should be helpful in linear utility 

projects involving water crossings. However, some of those projects also run parallel to jurisdictional waters. Given the size of the utility 

rights-of-way and the different safety, reliability, and operational factors that influence their location, it may not be feasible to provide 
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and maintain a 50-foot buffer, or equivalent controls, within a particular right-of-way. This is particularly true if this requirement will 

apply to intermittent and ephemeral waters in the southwest U.S. Moreover, since the industry practice is to maintain natural grade and 

topography to the extent possible, while disturbing as little soil as possible, natural or engineered buffers within a particular right-of-way 

are not necessary, as a general matter, to protect neighboring surface waters. 

Response 

See Response 2.3.5 and 2.3.6. 

Comment ID 0090-A1.001.011

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.2.3 

AGA strongly urges EPA to exempt linear utility projects from any such riparian buffer requirement. Riparian buffer requirements might 

be appropriate for the construction of buildings and homes, but they are totally inappropriate and infeasible for linear utility construction. 

Linear utility lines are designed to move natural gas across streams. They must cross streams, in order to deliver the natural gas to 

customers. They typically are installed within road rights-of-way (ROW) that cross streams. It is not possible to impose a riparian buffer 

requirement on linear gas utility projects. [FN 6] [FN6] 76 Fed. Reg. at 22888; Proposed CGP at 11-12 and Appendix M at M-1. 

Response 

See Response 2.3.6. 

Comment ID 0093-A2.001.036

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.2.3 

AGC recommends that EPA expand subsection (a) of this part to include the maintenance and repair of water crossings authorized under 

a CWA section 404 permit (where required) for water lines, sewer lines, utility lines, and roadways. 

Response 

See Response 2.3.5. 

Comment ID 0107-A2.001.008

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 2.1.2.3 

The exception outlined in section 2.1.2.3 (c), which allows permittees to not follow the buffer requirements if the site is already 
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disturbed, is not needed and will result in increased water quality impacts. This exception will merely lead to more disturbance close to 

waters of the US in areas where that disturbance will have more of impact because there isn't any vegetative cover to slow down and 

filter runoff. This exception should be removed. 

Response 

See Response 2.3.5. 

Comment ID 0115-A2.001.005

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.2.3 

2.1.2.3 Exceptions. National Grid supports the exception for construction of water crossings authorized under a CWA Part 404 permit 

for utility lines. National Grid requests a similar exception for Part 2.1.1.2 and 2.1.4.2 as well (See notes above). 

Response 

See Response 2.3.5 and 2.2.2. 

Comment ID 0158-A1.001.009

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 2.1.2.3 

The 50-foot buffer requirement (Section 2.1.2.1) is excessive for utility projects, including linear projects, many of which are not 

themselves more than 50 feet wide. Flexibility is needed to allow permittees to address concerns within the unique constraints of the 

particular linear project area. Often a utility line right of way (ROW) is parallel to a Water of the United States (WOUS) and, since the 

line support structures can be staggered to span a WOUS, no wetland permit may be needed. Implementation of the buffer requirement 

could trigger the need to obtain significantly more wetland permits because the structures may not be able to span both the WOUS and

the buffer. Relief from the buffer requirement is needed for this type of situation. Under the new EPA/Corps interpretation of WOUS, 

50-foot buffer requirements would apply to intermittent and ephemeral drainages, which would be very problematic and practically 

unworkable. 

Response 

See Response 2.3.6. 

2.1.2.4 STATE AND LOCAL REQUIREMENTS (BUFFERS)

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.
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2.1.3 REQUIREMENTS APPLICABLE TO ALL CONSTRUCTION SITES

Comment ID 0017-A1.001.009

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.3 

7) Section 2.1.3. ‐ This section is written with the expectation that the project site will have space for the design of topsoil storage areas, 

stormwater retention basins, vehicle washing areas, fueling areas, and entrance/exit tracking pads that extend a minimum of 50 feet from 

the entrance/exit point. Linear projects have limited right‐of‐way corridors, which make the installation of all of these proposed controls 

infeasible. Also, linear utility projects are temporary impacts. Often, no new impervious surfaces are added. A stormwater retention pond 

should not be required for temporary impacts. Linear projects should be exempted from these requirements. 

Response 

See Response 17. 

Comment ID 0060-A1.001.005

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.3 

5. Section 2.1.3 - The heading for this section indicates that the requirements apply to all construction sites. Given the variability in 

construction projects (i.e. size, soil type, slope, distance to surface waters, duration of construction/soil disturbance etc.) and the 

numerous erosion and sediment control practices available to a designer, EPA should consider developing a national erosion and 

sediment control technical standard that includes all erosion and sediment controls available and then reference this technical standard in 

the general permit. EPA should not limit a project owner or their designer to just the erosion and sediment controls listed in the draft 

general permit. In addition, not every erosion and sediment control identified in the draft general permit may be required or applicable at 

every construction project. The proposed permit language seems to require an owner to use all the practices included in the draft permit 

for every project. The choice of which practices to use on a particular construction site should be determined by the "qualified person" 

(i.e. a person knowledgeable in the principles and practices of erosion and sediment control) developing the SWPPP. If EPA developed 

a national technical standard, they would be able to update the technical standard as technology changes and not have to wait until the 

general permit was renewed. Please refer to the New York State Standards and Specifications for Erosion and Sediment Control, dated 

August 2005, for a sample erosion and sediment control technical standard (see http://www.dec.ny.gov/chemical/29066.html). 

Response 

EPA notes that the requirements in this section do not limit the erosion and sediment controls that an operator may implement under the 

permit. The final permit specifies "General Requirements Applicable to All Construction Sites" and "Erosion and Sediment Control 

Requirements Applicable to All Sites." The provisions under this section are those that all operators must implement at a minimum to be 
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in compliance with the effluent limits in the permit. EPA notes that the practices in these sectionsimplement the non-numeric C&D rule 

effluent limitations, which apply to all sites and must be included in the permit. EPA also believes that the requirements in these sections 

are practicable for all sites, and that flexibility is provided for many of the requirements. 

2.1.3.1 GENERAL DESIGN REQUIREMENTS/REQUIRED DESIGN

FACTORS [REQUEST FOR COMMENT]

Comment ID 0015-A2.001.026

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.3.1 

2.1.3.1. The design criteria should also account for runon flows, i.e. waters needing conveyance across the property from adjacent sites. 

This issue is partially discussed in section 2.1.4.1 but should also be added here. 

Response 

See Response 2.5. 

Comment ID 0030-A2.001.010

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.3.1 

Section 2.1.3, page 13 

If a design criteria is established, a 2-year, 24-hour event seems appropriate. However it opens the door that, if a site experiences a storm 

event greater than a 2-year, 24-hour event, then BMP failure can reasonably be expected to occur. BMPs in series or a BMP treatment 

train are preferred (i.e., use more of a toolbox approach and less of a modeling approach). If a design storm standard is implemented, we 

suggest that EPA provide guidance on how to design silt fence or wattles for the 2-year, 24-hour event. Based on our experience, we 

believe standards should be more flexible and consider project duration, timing relative to wet/dry seasons and other factors. Also, a 

limit should be placed on the project duration and/or size, below which this standard would not necessarily apply. 

Response 

See Response 2.9. 

Comment ID 0049-A1.001.006

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 
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Issue Category: 2.1.3.1 

Flood waters will flow under, between, around and (if one is lucky) over the top of these commonly used barriers. As a result, very little 

removal of sediment out of runoff waters will occur. Only an effective SCS will capture 2-year, 24-hour storm runoff and should be part 

of a S&EC plan. 

Response 

See Response 2.9. 

Comment ID 0049-A1.001.007

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.1 

Few (if any) of the typical barrier BMPs found on construction sites have been field tested to assess their effectiveness to remove 

sediment during flood flow conditions. Requiring a 2-year, 24-hour standard to anything but a professionally designed SCS is 

meaningless! 

Response 

See Response 2.9. 

Comment ID 0049-A1.001.008

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.1 

Finally, the emphasis of discharging stormwater onto vegetative areas is not a realistic while construction activities occur. Using level 

spreaders is a good idea----but only after final stabilization conditions exist. Applying the concept when grading and construction 

activities are occurring is not realistic. 

Response 

See Response 2.7. 

Comment ID 0053-A2.001.007

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.3.1 

The Permit states; "Use level spreaders..." Level spreaders are rarely, if ever, installed correctly/effectively. Usually, true level is never 

achieved and rills/gullies form on one end of the spreader. This BMP is ineffective and costly. Please seek input from industry. 
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Response 

See Response 2.7. 

Comment ID 0066-A1.001.012

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.1 

Discussion: The description for item (b) implies, but does not directly state, that it only addresses temporary stormwater controls. In 

addition, since the wording requires control of peak flow and total volume, it also implies that pavement is to be included in the disturbed 

area. If it is meant to include runoff from pavement during construction, for example, if 1/4 of the 10 acres is to be paved, then the 

required volume of storage changes to 33,000 cubic feet (0.76 acre-ft). 

There are several things that must be taken into consideration in regard to item (b): 1) "to minimize erosion"--If the downstream channel 

is non-erodible, such as limestone, or is lined, erosion would not be a problem. A requirement such as this which doesn't allow the 

control to fit the need would lead to a needless expenditure of federal funds. 2) "to control both peak flowrates"--Peak flowrate is time 

dependent. Less vegetation = faster velocity = runoff reaches outfall faster = higher peak. We are not aware of a method to calculate how 

long (in minutes) it takes velocity dissipation devices (check dams, etc) to slow down runoff. 3) "and total stormwater volumes" Less 

vegetation/more pavement = higher C value (rational method) = more volume. Typical detention works by spreading out the release so 

the peak remains the same, but there is still more total volume. Reducing volume back to undisturbed would require infiltration or 

evaporation. Ten acres of disturbed soil would require roughly 12,000 cubic feet (0.28 acre-ft) of storage for long enough duration for it 

to evaporate or infiItrate. 

Figure [Please see page 8 of the original letter (Docket ID 0066-A1.001)]. 

Suggestion: There are instances due to physical site conditions where erosion may naturally not take place regardless of if measures are 

implemented on site or not. EPA should acknowledge that there are places where the background physical characteristics do not erode 

(no devices needed) The methodology for determining storm water release rates through differing BMPs, to verify that we can actually 

control peak flow rates, is not clear and should be explained on how EPA expects this to be calculated. Total stormwater volume is to be 

controlled; excess volumes can only be controlled through evaporation or infiltration. There are regions where neither of these may be 

feasible. Inherently when a project is completed, stormwater volumes in many instances are necessarily increased. If the intent is to rely 

on either of these factors to reduce volume, please explain how this would be achieved otherwise? 

Response 

EPA has provided clarity to this requirement in the final permit, and describes that it only applies to stormwater that will be channelized. 

See Response 2.6. EPA also notes that if downstream channel and streambank erosion are not a concern, then the requirement would 

already be achieved. EPA confirms that the requirement applies only to BMPs during the period of permit coverage. 
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Comment ID 0068-A1.001.017

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.3.1 

Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing construction stormwater controls. However, 

stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not appropriate "parameters" for regulation 

under the NPDES permit program. While retention/detention ponds and other control devices must be sized to handle an appropriate 

volume to become effective at removing pollutants, EPA cannot otherwise merely regulate flowrate or total volume of stormwater that 

otherwise meets appropriate technology-based or water quality-based pollutant-related effluent limitations. 

Response 

See Response 2.6. 

Comment ID 0068-A1.001.018

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.3.1 

Part 2.1.3.1(d) requires that any allowable non-stormwater be directed into sediment controls that are or will be installed at a 

construction site. This is an unworkable and inappropriate standard and should be removed from the CGP. For example, how will this 

standard be applied to discharges from emergency fire-fighting activities? Further, the standard does not make sense as applied to 

discharges such as uncontaminated, non-turbid discharges of groundwater or spring water. Doing so will only decrease the volume of the 

pond for stormwater and reduce its overall effectiveness. 

Response 

See Response 2.8. 

Comment ID 0080-A2.001.014

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.3.1 

1. Control stormwater volume & velocity - This requirement will make plan development and implementation more burdensome by 

requiring extensive stormwater calculations to support decision making under the permit. 

2. Control stormwater discharges including both peak flow rates and total stormwater volume - Again, this requirement will require 

extensive stormwater calculation sand make plan development and implementation more burdensome. 

Response 
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See Response 2.6. 

Comment ID 0080-A2.001.017

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.3.1 

5. Minimize sediment discharges from the site. The design, installation and maintenance of erosion and sediment controls must address 

factors such as the amount, frequency, intensity, and duration of precipitation, the nature of resulting stormwater runoff, and soil 

characteristic - This is the overall goal of erosion and sediment control. 

6. Direct stormwater to vegetated areas - Minimizing directly connected impervious areas (MDCIA) is a prudent approach were 

applicable and in line with the COA's low impact development (LID) goals. 

Response 

EPA appreciates the comments. 

Comment ID 0087-A1.001.018

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.1 

Furthermore, Section 2.1.3.1.d of the proposed CGP requires routing of allowed non-stormwater to sediment controls prior to discharge.

However, this section should specifically exempt water beneficially reused for dust control or irrigation. This type of exemption would 

help to harmonize Section 2.1.3.1.d with Section 2.1.3.4.c, which calls for "minimiz[ation of] the generation of dust...through the 

application of water or other dust suppression techniques." We note that beneficial reuse is itself a stormwater best management practice 

that has the effect of reducing erosion and sedimentation. 

Response 

See Response 2.8. 

Comment ID 0090-A1.001.012

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.3.1 

In addition, AGA notes that the Draft Permit's focus on dissolved pollutants requires full system controls that make little sense for a 

linear project. Unlike traditional projects, there is no long-term, sustained flow to "one source" where catch-and-control technology can 

be employed. 
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Response 

See Response 2.3.6. 

Comment ID 0090-A1.001.013

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.3.1 

In linear projects, sediment is the only pollutant typically discharged, and even this discharge in stormwater is minimized because (i) 

project disturbances involve excavating only a narrow ditch in a narrow band of surface, and (ii) projects apply Best Management 

Practices (BMPs) to minimize this discharge. Most linear construction projects receive a stormwater Phase II permit for construction 

affecting 1-5 acres. Still others fall within the Phase I rule for construction projects affecting more than 5 acres, because the gas lines will 

provide new natural gas service to housing developments (and thus may be deemed to be part of a larger plan of development). However, 

the gas utility line portion of these projects, for the most part, typically involve only a small trenching area and are back-filled or 

"buttoned up" at the end of the day. These circumstances substantially limit sediment discharge events. 

In part 2.1.3 of the Draft Permit, EPA has issued a variety of design factors for stormwater erosion and sediment controls to minimize 

discharge of pollutants from earth-disturbing activities to reduce sediment load equal to that achieved by 50 feet of natural vegetation, 

including stabilization and re-establishment of surrounding natural buffer areas.. These requirements are inapplicable to linear utility 

construction- AGA requests that EPA clarify and confirm that this is the case. The proposed requirements would be asking linear project 

managers to reestablish already stable vegetative areas, creating more earth disturbance and potential erosion than the projects 

themselves entail. Preexisting best practices are a sufficient alternative to proposed buffer compliance measures-pipeline construction 

operators discharge wastewater so that sediment settles out into a preexisting vegetative area and is never vulnerable to direct discharge 

into surface waters. These best practices are consistent with discharge requirements EPA proposes in the Draft Permit under 2.1.4.6 

(a)(iii) to "utilize vegetated areas of the site to infiltrate wastewater from dewatering activities" associated with trenches and shallow 

excavations. 

Response 

EPA clarifies that the design requirements apply to all construction sites, but that the requirement to design controls to control peak 

flowrates and total stormwater volume only applies to stormwater flows that are channelized. For flexibility provided to linear projects, 

see Response 17. See also Response 2.6. 

Comment ID 0093-A2.001.037

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.1 

Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing construction stormwater controls. However, 

stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not appropriate "parameters" for regulation 

under the NPDES permit program. While retention/detention ponds and other control devices must be sized to handle an appropriate 
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volume to become effective at removing pollutants, EPA cannot otherwise merely regulate flowrate or total volume of stormwater that 

otherwise meets appropriate technology-based or water quality-based pollutant-related effluent limitations. 

Response 

See Response 2.6. 

Comment ID 0093-A2.001.039

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.1 

The Draft would require the "use of level spreaders." AGC members report that level spreaders are rarely installed correctly or 

effectively. Contractors have found that "true level" is never achieved in rills/gullies and this BMP is ineffective and costly. 

Response 

See Response 2.7. 

Comment ID 0097-A1.001.002

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 2.1.3.1 

3. The 2 year, 24 hour storm is he appropriate size for design 

Response 

See Response 2.9. 

Comment ID 0128-A2.001.010

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 2.1.3.1 

Part 2.1.3 proposes to use flowrates and stormwater volume as primary criteria in designing construction stormwater controls. However, 

stormwater flowrate and volume on their own (absent "pollutant" control considerations) are not appropriate "parameters" for regulation 

under the NPDES permit program. While retention/detention ponds and other control devices must be sized to handle an appropriate 

volume to become effective at removing pollutants, EPA cannot otherwise merely regulate flowrate or total volume of stormwater that 

otherwise meets appropriate technology-based or water quality-based pollutant-related effluent limitations. 
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Response 

See Response 2.6. 

Comment ID 0137-A2.001.004

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.3.1 

The permit requires the control of peak flow rate and total stormwater volume, which we believe is to 2 year storm event although it is 

not specifically mentioned in the regulations. The regulation is absent of a specific goal to be met such as reduce discharge to the runoff 

amount from a wooded site, meadows or pasture, cropland, the existing condition at the time of disturbance, etc. Since the goal is not 

identified, it will be difficult to make a determination of an impact to achieving the goal. In addition, in Maryland, there are effectively 3 

types of devices that can release water. The first is silt fence or other perimeter filtering devices which have no mechanism to control a 

release rate that can be measured. In addition the requirement implies storage behind the silt fence which would cause failure, increasing 

sediment leaving the site. Second, sediment traps that use a stone weir on flat sites; it is not possible control the release rate unless there 

is a secondary pipe to use as a control structure. This will not happen in flat sites because there is insufficient fall to a discharge point 

unless the embankment was raised. The concern would be the increased failure rate of earthen embankments that are raised higher with 

little or no increase in proper construction methods. Thirdly, for sediment traps with pipe outfalls or sediment basins, it would be 

possible to provide a control structure of sorts to provide quantity control. Since many of the devices would not easily be able to provide 

a measured control rate equal to some storm event, it would be next to impossible to state a specific release rate has been met. 

In our experience, applicants are not permitted to pump water directly to a sediment control. Constant use of the sediment control will 

make it less likely to provide the necessary volume to control a storm event and therefore increase the sediment discharge. This is due 

to the time necessary to allow sediment to settle out and slowly discharge clearer water through a dewatering device as it does depend on 

lack of flow and time to allow the sediment to settle. 

Response 

See Response 2.6. 

Comment ID 0153-A1.001.006

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.1 

The requirement to control storm water volume is outside the scope of the Federal Register requirements. We suggest EPA refer to 

non-erosive discharges to minimize downstream erosion. 

Response 

See Response 2.6. 
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Comment ID 0153-A1.001.007

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.1 

EPA should modify this requirement. Allowable non-storm water discharge that is sediment free should be discharged to receiving 

waters or to vegetated areas not to the sediment control device. This will absorb capacity and not improve the quality of discharge. 

Response 

See Response 2.8. 

Comment ID 0159-A1.001.021

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.1.3.1 

Could an explanation of routing of non stormwater to sediment controls be provided. We are assuming from your comment that the 

intent is to pump water thru the sediment device. Generally, we are not allowed to pump water into directed to a sediment control. 

Constant use of the sediment control will make it less likely to provide the necessary volume to control a storm event and therefore 

increase the sediment discharge. This is due to the time necessary to allow sediment to settle out and slowly discharge clearer water thru 

a dewatering device as it does depend on lack of flow and time to allow the sediment to settle. 

Response 

See Response 2.8. 

Comment ID 0172-A1.001.001

Author Name: Enssle Colin 

Organization: GE Water & Process Technologies 

Issue Category: 2.1.3.1 

Section 2.1.3.1. Requirements for Designing. Installing, and Maintaining Stormwater Controls. Requirements Applicable to All 

Construction Sites, General Design Requirements, states "if fine silts, clay or colloidal soils are present, then the use of enhanced 

sediment controls such as sand filtration and/or polymers or flocculonts may be necessary." We suggest that a definition be given for fine 

silt, clay, or colloidal solids. Clearly defining at what levels each soil type would require use of enhanced treatment will provide the 

industry with more direct guidance. For instance, will enhanced treatment be required only when fine silts, clay or colloidal soils are 

present and the to-be-defined turbidity limits ore reached, or at all times? This should be clarified.

Response 

See Response 2.5. 
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2.1.3.1Q 2-YR, 24-HR DESIGN STORM STANDARD

Comment ID 0007-A1.001.002

Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 2.1.3.1Q 

Comment: The 2‐year, 24‐hour design storm requirement proposed works well due to the probability of exceedance being low because 

of the restricted time frame for most construction sites. The greatest weakness I observed with the previous CGP was the lack of intensity 

considerations. Those appear to have been addressed in the proposed CGP. 

Response 

See Response 2.9. 

Comment ID 0015-A2.001.004

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.3.1Q 

Q3. 2-year, 24 hour storm sizing - Disagree, it seems overly large. 2-year, 24 hour storm events are more traditionally used for 

post-development flows. While we understand the EPA desire to keep the similar storm size for facility sizing and monitoring 

compliance, the proposed sizing would create overly large facilities. A 10 year design storm is more traditionally found in erosion 

guidance documents and seems more appropriate for initial sizing regulation. Also with a specific 24 hour time frame, EPA should 

dictate when the 24 hours occurs, mid-night to mid-night or from start of work day to start of work day. 

Response 

See Response 2.9. 

Comment ID 0021-A1.001.014

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.1.3.1Q 

3. In CGP Section 2.1.3 the EPA is requesting comments on the 2‐year, 24‐hour storm design standard for stormwater controls. This type 

of design is not easily produced from a site operator and permit holder which is usually the owner or general contractor. This design 

standard would have to be subcontracted out to an engineering firm thus increasing construction cost substantially. Design would have to 

be constantly changing as the site layout changes, impervious area changes, BMP configuration changes, etc. Stormwater controls and 
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the SWPPP Site Plan are not designed just one time; it changes daily in some cases. So this could mean an engineering firm would 

possibly have to be involved throughout the lifecycle of a project constantly re‐designing the site to meet this design standard. 

Response 

See Response 2.9. 

Comment ID 0037-A1.001.008

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.3.1Q 

Adopting a minimum design storm standard would be beneficial for the design of some stormwater controls such as a sediment basin, 

level spreader, or drainage\diversion channel. A 2‐year, 24‐hour storm would be an appropriate minimum design storm standard to use 

for these types of controls. However, there is not a lot of readily available information on designing other types of stormwater controls 

such as sediment barriers, inlet protection, water bars, or check dams to a design storm standard or based on the criteria in Part 2.1.2.1 

(i.e., the amount, frequency, intensity, and duration of precipitation, the nature of resulting stormwater runoff, and soil characteristics, 

including the range of soil particle sizes expected to be present on the site). Typically, these types of stormwater controls are designed 

based on a maximum drainage area for the control. Therefore, many operators will need additional information or tools that they can use 

in order to show that they have selected/designed their stormwater controls based on the permit's design criteria (either the current 

requirement in the proposed permit or the proposed requirement to design of stormwater controls for the local 2‐year, 24‐ hour storm). It 

is recommended that EPA provide guidance on designing controls to meet the proposed design factors or provide sources where this 

information is available. 

Response 

See Response 2.9. 

Comment ID 0045-A1.001.004

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 2.1.3.1Q 

2.1.3 - This section discusses general design requirements, but no standard is yet set. It requests comment upon the standard used in 

previous permits, i.e. designing and managing for the two year, 24-hour storm. We believe that a standard is important, and that this one 

is appropriate for these regulations. 

Response 

See Response 2.9. 
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Comment ID 0047-A2.001.007

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.3.1Q 

Section 2.1.3, page 13 

If a design storm standard is implemented, we suggest that EPA provide guidance on how to design BMPs for the 2-year, 24-hour event. 

Standards should be more flexible and consider project duration, timing relative to wet/dry seasons and other factors. Also, EPA should 

consider a limit be placed on the project duration and/or size, below which this standard would not necessarily apply. Xcel Energy has 

many projects that are completed in a matter of weeks, sometimes days depending on the project. BMPs should always be used, however 

it is not always necessary for a project to spend additional costs designing and implementing BMPs for a 2-year, 24 hour storm. 

Response 

See Response 2.9. 

Comment ID 0054-A2.001.006

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: 2.1.3.1Q 

Issue: The typical storm design considerations identified have been 10-, 25-, 50-, and 100-year storm events. In assessing whether there 

should be a set storm design, EPA should consider the frequency of occurrence relative to these, and other, storm design years. In 

practice, design for 100-year, 50- year, and even 25-year events have not been feasible because of the necessary size and capability of 

storm water controls. 

Recommended Change: USS recommends that EPA include a frequency evaluation of each 10-, 25-, 50-, and 1 OO-year storm events 

for design determinations. 

Response 

See Response 2.9. 

Comment ID 0061-A1.001.008

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.1.3.1Q 

In its request for comments associated with Part 2.1.3.1, the Agency seeks input on inclusion of a 2 year/24 hour storm event as the 

design standard to be used for the purpose of sizing stormwater controls. We agree that inclusion of a design standard is appropriate for 

traditional construction, including the traditional projects that the EHSCP's members are engaged in either independently or when they 
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lay utility lines within another developer's traditional footprint development. However, a design standard of this sort does not appear to 

be feasible for LCPs. That design standard would often require installing a stormwater retention pond at end of a roadside swale where it 

would otherwise discharge into a stream, to collect sediment and reduce velocity at the outfall. As noted above, the LCP operator's 

easement typically would give it no right to install such a pond or basin, which furthermore might sometimes require a width greater than 

that of the easement itself. 

Even if the LCP operator had the legal and practical ability to install such a basin, it would be disproportionate for the Agency to require 

that. That same swale would otherwise be carrying the same amount of stormwater from the same drainage area, whether or not the LCP 

was installed there. It would seem anomalous for the happenstance of an LCP being placed in or near, with its minimal if any incremental 

effect on sediment loading, to trigger such a construction requirement. 

We therefore request that, if a design requirement of the sort described in the Draft Permit is adopted, there be an exclusion for LCPs 

where the primary operator includes documentation in its SWPPP that implementation of the design standard is infeasible for some or all 

of its project site. 

Response 

See Response 2.9. 

Comment ID 0062-A1.001.011

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.1Q 

Brevard County Comment: You can't expect smaller developers and property owners to follow this. Appendix I: Wonderful opportunity 

to cook the books. 

Response 

See Response 2.9. 

Comment ID 0062-A1.001.012

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.1Q 

Brevard County Comment: NWS is revising and digitizing the rainfall statistics. Including the charts and tables in this document means 

the document will be out of date and based on erroneous data within the year. 

Response 

See Response 2.9. 
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Comment ID 0064-A1.001.011

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.3.1Q 

Section 2.1.3, page 13 - Full "Request for Comment" paragraph 

•These requirements seem feasible and would allow for more science-derived designs. 

Response 

See Response 2.9. 

Comment ID 0065-A1.001.008

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.3.1Q 

Section 2.1.3 requires the consideration of several factors when designing stormwater controls. EPA requested comment on establishing 

a 2-year, 24-hour design storm standard for stormwater controls. Contractors can find the closest weather station on the NOAA website 

and gather the historical data. Note that in some cases weather stations within 5 miles do not exist, specifically for remote projects. 

Response 

See Response 2.9. EPA notes that the numeric limit is not in the final 2012 CGP, and therefore permittees are not required to monitor the 

occurrence of a 2-year, 24-hour storm event to qualify for the 2-year, 24-hour storm event exception. However, EPA does require 

operators that are complying with the bi-weekly inspection frequency to record rainfall events. EPA allows operators to use a rain gauge 

at their site, or storm event information from a weather station representative of their site's location. 

Comment ID 0067-A1.001.022

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.1.3.1Q 

A. Regarding sizing the stormwater BMPs to a 2 year, 24-hour storm event should detention of stormwater runoff be required in order to 

add flocculants, EPA should note that for areas where the 2 year, 24-hour event corresponds to a 6 inch rain or more (much of Entergy's 

service area), detention capacity would be approximately 163,350 gallons per acre of watershed assuming saturated soil conditions. For 

a linear electric utility line construction project, spanning numerous watersheds, that runoff storage capacity would be impossible to 

accomplish within normal ROW boundaries. This requirement would also very likely result in an unnecessary over-engineering of the 

siltation/erosion controls measures with an associated inflation in installation costs. Entergy requests that EPA remove this provision as 

impracticable in application to linear ROW-type projects. 
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Response 

See Response 2.9. 

Comment ID 0070-A1.001.005

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 2.1.3.1Q 

c. Fixed design storm size - Alcoa is not sure that utilizing a fixed design storm size, such as the proposed 2 year, 24 hour storm event, 

should be specified in the CGP. It is difficult to choose one storm size that would be effective in every location or in every area of the 

country for every situation. Alcoa does recognize the advantages that a fixed design storm size has for the design of controls, but is not 

sure that advantage outweighs potential compliance concerns with a fixed design storm. 

Response 

See Response 2.9. 

Comment ID 0071-A3.001.026

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.3.1Q 

•Part 2.1.2. Protection of Surface Waters: Natural Buffers. CDOT is strongly supportive of a design storm standard for stormwater 

controls, such as the 2-year, 24 hr. storm. CDOT feels this will create an achievable standard, whereas, currently there is ambiguity in 

regards to determining the effectiveness of BMPs. 

Response 

See Response 2.9. 

Comment ID 0072-A2.001.004

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.1.3.1Q 

MoDOT is not in favor of implementing a design storm standard for all sediment control devices due to the fact that site conditions and 

variables can differ greatly from project site to project site across the state. It would take a tremendous amount of time, effort and 

additional cost to run hydraulic analysis for the 2-year, 24-hour event for each sediment control device, or system of devices. For certain 

sediment control devices, such as a sediment basin, the 2- year, 24-hour stoml event would be more reasonable to design for; however, 

for applications, such as ditch checks this standard would be impractical because of the many variables (e.g., slope, area, soil type, 
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compaction, storm intensity, runo[fve!ocity, etc.) that would have to be accounted for at each device.

Response 

See Response 2.9. 

Comment ID 0074-A2.001.006

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.1.3.1Q 

The DEQ would prefer to retain flexibility within our stormwater controls. Having the 2-year, 24-hour storm as a minimum standard is 

acceptable as long as provisions are made for variances for exceptional circumstances. 

Response 

See Response 2.9. 

Comment ID 0076-A1.001.006

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.3.1Q 

Target supports the EPA in including the 2yr-24hour design storm standard for sediment basins as referenced in the 2003, 2008 and 

C&D Rule. This inclusion provides a consistent design standard and the ability to consistently determine compliance for permitted 

projects for design professionals, inspectors and regulators. We are hopeful the EPA will include the proposed revision as noted in your 

request for comment. 

Response 

See Response 2.9. 

Comment ID 0080-A2.001.007

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.3.1Q 

Partner Response: The 2-year, 24-hour design storm criteria and associated BMP design is not something easily calculated by staff 

working for a "traditional" CGP holder or construction site operator. These organizations would likely need to procure the services of a 

storm drainage engineer or other qualified professional. The services of the qualified professional would need to be retained throughout 

the duration of the project as the site will likely change over time until its completion. The Partners recommend that the EPA add 

language stating that this criterion is applicable only to temporary stormwater control during construction. Municipalities in the arid west 
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require permanent water quality BMPs that are designed for a larger storm than the 

2-year, 24-hour event. 

Response 

See Response 2.9. 

Comment ID 0085-A2.001.005

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.1.3.1Q 

Rockville agrees that the 2-year/24 hr. storm is currently the standard design for jurisdictions implementing sediment control. Rockville 

encourages EPA to investigate the efficacy of this standard, particularly in light of climate change. EPA should also include language 

referencing the source of IDF curve numbers and requiring that operators design controls to the most current number provided. From an 

anecdotal perspective, the 2 year storm seems to occur every eight to ten months in Rockville. 

Response 

See Response 2.9. 

Comment ID 0091-A2.001.002

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.1.3.1Q 

2. Fact Sheet Item 3. Part 2.1.3.1.a: The 2-year 24-hour design storm is appropriate for the design of storm water controls. In Washington 

State, models have been developed to calculate design storms for specificsites based on historic rainfall data. Will models and other 

alternatives be acceptable for the calculation of rainfall design storms? 

Response 

See Response 2.9. 

Comment ID 0093-A2.001.038

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.1Q 

EPA has asked for comment on whether or not it should require a 2-year, 24-hour design storm standard for stormwater controls, which 

would need to be met unless it was infeasible to achieve at the particular site. EPA has proposed a 2-year, 24-hour design storm standard 

for stormwater controls. Many state CGPs currently require ponds to be sized to contain (and allow reasonable settling time for) a 2-year, 
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24- hour rain event if practical. AGC stresses the importance of the feasibility clause. Many sites do not have the area for such a large 

pond. And for some sites, especially roads or other linear projects, there is no room to install ponds at all. 

Recognizing that a 2-year, 24-hour storm varies greatly from state to state and location to location, AGC questions whether it would be 

more appropriate for EPA to select a quantity of rainfall (in inches) as a guideline. For example, some AGC members suggested a 

guideline of two inches in 24 hours. 

In the alternative, AGC finds that a 1-year, 24-hour storm event would be a more reasonable standard. The 1-year, 24-hour storm event 

accounts for the majority (upwards of 90%) of the precipitation annually. Adopting a 2-year, 24-hour standard would achieve only a 

minor incremental increase in TSS reduction at a significant increase in cost. Many state and local governments have adopted the 1-year, 

24-hour storm event as the standard over the 2-year, 24-hour event based on the minimal increase in benefit in proportion to the 

increased cost. 

Setting the volume based standard such as the 1-year, 24-hour storm event would be reasonably applicable to volume based BMPs such 

as detention ponds. However, beyond ponds, it is not clear what other BMPs exist where the size would be considered adequate for a 

2-year, 24-hour rain event. Sizing and placement of many, if not most BMPs other than ponds are not based on any particular volume of 

rainfall. For example, silt fences, rolled fabric, soil enhancers, etc. are primarily sized and located on exposed slopes, with their size 

based on the topography and length of the immediate slope behind them. Any reference to specific sizes being equal to a given rain event 

would contain so many caveats and/or exceptions so as to make the point useless. Similarly, a volume-based standard would not apply to 

flow based BMPs such as check dams which are impacted by water velocity and peak flow. 

Response 

See Response 2.9. 

Comment ID 0096-A1.001.026

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.3.1Q 

EPA is proposing a 2-year, 24-hour design storm standard for stormwater controls. Many state CGPs do require that, if feasible, a pond 

should be sized so as to contain and allow reasonable settling time for a 2-year, 24-hour rain event. However, the feasibility clause is very 

important. Many sites do not have the area for such a large pond, and for some sites, especially for roads or other linear projects, they 

cannot accomodate any ponds at all. 

However, beyond ponds, it is not clear what other BMPs exist where the size would be considered adequate for a 2-year, 24-hour rain 

event. Sizing and placement of many, if not most BMPs other than ponds are not based on any particular volume of rainfall. For example, 

silt fences, rolled fabric, soil enhancers, etc. are primarily sized and located on exposed slopes, with 

their size based on the topography and length of the immediate slope behind them. Any reference to specific sizes being equal to a given 

rain event would contain so many caveats and exceptions so as to make the requirements useless. 

Passive Treatment Systems (PTS) such as PAM-infused fiber check dams or PAM logs upstream from ponds do require a rather narrow 
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range of flow for optimum performance. However, their size also depends on the location of the ditch in which they are installed and the 

upstream watershed. Significant trial and error is often required to appropriately size a passive 

treatment system at a particular site. Also, “designing” a passive treatment system strictly for a 2-year, 24-hour rain event may not be 

optimum for normal sized rain events, because smaller rain events may cause the flow through or over the polymer feed point to be too 

slow for adequate polymer mixing and flocculation. Does EPA have any other specific BMPs in mind that would be amenable to a 

2-year, 24-hour size specification? 

In Part 2.1.3.a.iii EPA states “Account for the following factors in designing your stormwater controls... The soil characteristics at the 

site.” Sediment controls must be designed with consideration of the range of soil particle sizes expected to be present on the site. If fine 

silts, clay or colloidal soils are present, then the use of enhanced sediment controls such as sand filtration and/or polymers or flocculants 

may be necessary. Even EPA recognizes that a design

standard is not always the best criteria in developing a stormwater control. EPA must clearly define which BMPs must meet this standard 

and how compliance will be measured. NAHB suggests the 2-year, 24-hour criteria be limited to ponds only. 

Response 

See Response 2.9. 

Comment ID 0097-A1.001.003

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 2.1.3.1Q 

4. Construction of temporary sediment control ponds and other facilities are often constructed with materials developed from site work 

activities and cannot be constructed prior to construction start. 

Response 

See Response 2.10. 

Comment ID 0100-A2.001.007

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 2.1.3.1Q 

Section 2.1.3 describes USEPA's consideration of proposing 2-year, 24-hour design storm standard for stormwater controls. The City 

believes the 2-year, 24-hour design storm is not always the most appropriate size storm for the design of stormwater controls. The City 

does not always use the National Standard. 

Response 

See Response 2.9. 
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Comment ID 0102-A2.001.001

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2.1.3.1Q 

1. Regarding the 2-year, 24-hour design requirement for stormwater controls - what is the definition of "stormwater controls" in this 

context? Is this design requirement valid for all features or basins only? If for all, this seems to be a larger design storm event than is 

normally used (up to four times as much - see the 3600 cubic foot per acre requirement in many states for sediment trap sizing - that is 

equivalent to 1/2" of runoff when allowing for the wet storage in the trap). Also, the example cited in the 2008 CGP for this design 

requirement is for sediment basins, which are used less often and in few numbers when compared to smaller devices (i.e., sediment traps, 

check dams, etc.). If the proposed design storm is intended for all features, this may be an overly-conservative approach. A more 

reasonable approach may be to use a design storm that matches the proposed or expected duration of the project or section of project. For 

instance, if an area is being disturbed for 2 years, than it is reasonable to expect that a 2-year storm event would occur within that time 

frame. However, it is not statistically reasonable to design for a 2-year storm if a site, or portion of a site, will be disturbed for only 6 

months. In an effort to provide for affordable and reasonable E&SC designs, the duration should determine the design storm event. 

Response 

See Response 2.9. 

Comment ID 0103-A3.001.006

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.1.3.1Q 

In Part 2.1.3.a. General design requirements, EPA proposes that operators design controls to account for three factors: the amount, 

frequency, intensity and duration of precipitation; the nature of runoff; and the soil characteristic at the site. EPA suggests further 

proposing a 2-year, 24-hour design storm water standard for storm water controls, which would need to be met unless it was infeasible to 

achieve at the particular site. EPA states that including this standard will assist the permittees in design and selection of controls, and 

argues that it is it already used as design criteria for sedimentation basins required for construction sites greater than 10 acres. 

TCEQ requests that the EPA's CGP not include a specific storm event to design for, and instead recommends that the general permit be 

consistent with EPA's recently promulgated effluent limitations guidelines (ELGs) for construction and development activities, at 40 

CFR Sections (§§)450.21(a)(1) and (2) which require that controls be maintained to "(1) Control stormwater volume and velocity within 

the site to minimize soil erosion;" and "(2) Control stormwater discharges, including both peak flowrates and total stormwater volume, to 

minimize erosion at outlets and to minimize downstream channel and streambank erosion;...." 

Response 

See Response 2.9. 
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Comment ID 0105-A2.001.006

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 2.1.3.1Q 

 Necessity of a sizing requirement for control measures (Part 2.1.3.1). CLF agrees with EPA's suggestion that sizing for all structural 

control measures and best management practices ("BMPs") be specified in the CGP, and urges EPA to include this requirement in the 

final permit -- at minimum, BMPs should be sized for the 2-year, 24 hour storm. Such a uniform minimum standard would give site 

operators the clear directive needed to build adequately sized control measures into their budget and standard operating procedures. In 

turn, this would provide a more level ‘playing field' among site operators. A sizing requirement would also promote enforceability of the 

permit and provide predictability of impacts for those who use and enjoy downstream receiving waters. CLF strongly recommends that 

EPA enlarge the minimum sizing requirement in the final permit to account for climate change, which has increased and will continue to 

increase the frequency and intensity of storm events in many regions including the Northeast United States.[FN 2] 

[FN 2] See Union of Concerned Scientists Northeast Climate Impacts Assessment Synthesis Team, Confronting Climate Change in the 

Northeast: Science, Impacts, and Solutions, 8-10 (2007) (finding that during the 1980s and 1990s, the Northeast experienced a rise in 

heavy-precipitation events and predicting further increases), available at http://www.northeastclimateimpacts.org/pdf/ 

confronting-climate-change-in-the-u-s-northeast.pdf. 

Response 

See Response 2.9. 

Comment ID 0108-A2.001.002

Author Name: Paul Roger 

Organization: Bernalillo County Public Works, New Mexico 

Issue Category: 2.1.3.1Q 

With regard to Subpart 2.1.3 (Design Storm Standard) of the draft permit, the County of Bernalillo agrees with the proposed 2yr -24hr 

design storm standard. 

Response 

See Response 2.9. 

Comment ID 0110-A1.001.003

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.1.3.1Q 

As a practicing professional Hydraulic Engineer, I strongly believe that the 2-yr, 24 hour storm event is inadequate and not conservative 

for design purposes and if the permittees are not responsible for conditions greater than this, that the receiving waters will be severely 
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polluted with sediment when the larger events do occur. Many cities and counties across the country use design storms that are much 

greater, such as the 10, 25 or even the 100 yr events. 

Response 

See Response 2.9. 

Comment ID 0110-A1.001.021

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.1.3.1Q 

As a practicing professional Hydraulic Engineer, I strongly believe that the 2-yr, 24 hour storm event is inadequate and not conservative 

for design purposes and if the permittees are not responsible for conditions greater than this, that the receiving waters will be severely 

polluted with sediment when the larger events do occur. Many cities and counties across the country use design storms that are much 

greater, such as the 10, 25 or even the 100 yr events. 

Response 

See Response 2.9. 

Comment ID 0115-A2.001.006

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.3.1Q 

2.1.3.1 Required Design Factors. National Grid has significant concerns regarding the proposal to establish a design storm standard for 

stormwater controls. At present the language requires stormwater controls to control both peak flow rates and total stormwater volume 

for a construction site, without comparison of pre-development versus postdevelopment runoff rate or volume. A 2 year, 24-hour design 

storm is, as described in Appendix I, equivalent to a storm event with over 3 inches of rain in the northeast. On a linear project the need 

to control storm events of this magnitude within a ROW would require the construction of basins and diversion structures, as well as 

perimeter controls. It is National Grid's position that in addition to proper design and monitoring of sedimentation and erosion controls,

completion of construction in a timely and efficient manner and initiation of final stabilization is an equally important component to 

stormwater management. Because linear projects are constructed in phases which move along/within a ROW, as opposed to being 

focused on one parcel of land for a several month period, constructing significant stormwater control structures is not feasible. 

Construction of basins and diversion structures would require more earth disturbance than that required for many utility projects and 

would significantly increase the design and construction costs, as well as the length of time to complete the project. In addition, as 

National Grid holds easements for much of its cross-country ROWs in Massachusetts; the construction of such controls would require 

coordination and approval (which may not be forthcoming) by the underlying property owner thereby increasing project costs and 

timeframes. 
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Response 

See Response 2.9. 

Comment ID 0121-A2.001.002

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 2.1.3.1Q 

At present the draft language at section 2.1.3.1 requires stormwater controls to control both peak flow rates and total stormwater volume 

for a construction site, without comparison of pre-development versus post-development runoff rate or volume. A 2 year, 24-hour design 

storm, as described in Appendix I, is equivalent to a storm event with over 3 inches of rain in the northeast. On a linear project the need 

to control storm events of this magnitude within a ROW would require the construction of basins and diversion structures, as well as 

perimeter controls. It is noted that, in addition to proper design and monitoring of sedimentation and erosion controls, completion of 

construction in a timely and efficient manner and initiation of final stabilization is an equally important component to stormwater 

management. Because linear projects are constructed in phases which move along/within a ROW, as opposed to being focused on one 

parcel of land for a several month period, constructing significant stormwater control structures is not feasible. Construction of basins 

and diversion structures to control a 2 year, 24-hour storm could significantly increase the design and construction costs, as well as the 

length of time to complete the project. 

Response 

See Response 2.9. 

Comment ID 0123-A2.001.004

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.1.3.1Q 

Comment: EPA should include the 2-year 24-hour design storm within the requirements for the reasons identified within the Request for 

Comment. 

Response 

See Response 2.9. 

Comment ID 0126-A2.001.005

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.1.3.1Q 

The CSC supports a design storm standard for sediment basins as long as regionally appropriate standards are used. The CSC does not 

support applying a design storm standard to all temporary BMP's and believe BMP's should be implemented on other, effective 
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performance standards. 

Response 

See Response 2.9. 

Comment ID 0130-A2.001.014

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.1.3.1Q 

13. DESIGN, INSTALL, MAINTAIN CONTROLS. Part 2.1.3. We support the 2-year, 24 hour design storm standard for stormwater 

controls. 

Response 

See Response 2.9. 

Comment ID 0133-A2.001.013

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.3.1Q 

MDT supports the inclusion of a design storm standardfor stormwater controls, including criteria that addresses snow melt. Specifying a 

certain design stonn standard would greatly simplify design and would increase uniformity and application of storm water controls. The 

2·year, 24·hour stonn event seems reasonable given its use in the Effluent Limitation Guidelines. 

Response 

See Response 2.9. 

Comment ID 0145-A2.001.007

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.1.3.1Q 

EPA should adopt a design storm standard as a part of this permit. Such a requirement would provide stormwater engineers a standard to 

which their design efforts may be directed. This would help eliminate the variability in stormwater management goals adopted by the 

diverse community of developers and would likely elevate and improve the stormwater management goals at some sites to an 

achievable, relatively consistent level. 

In many urbanizing watersheds, the sediment delivery rate into the stream is higher than the stream's capacity or competence to keep that 
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sediment moving on downstream. Thus, more sediment accumulates in the stream channel than is typically removed in a given year. 

This is partly due to the relative infrequency of "channel-forming flows" compared to the frequency of flows that actually deliver 

sediment into the stream. For example, nearly every rain event that generates stormwater in the Cahaba River watershed results in 

delivery of significant sediment loads into the mainstem channel. Once that sediment is delivered to the mainstem, however, the flow 

velocity is not typically high enough to keep that sediment suspended. Rain events large enough to create flow that is fast enough to 

resuspend that sediment and move it downstream happen only once every or every other year. Moreover, those 1.5-year events probably 

will not last long enough to move as much sediment downstream as is regularly being delivered into the stream. The 1.5-year flood event 

is a well-known phenomenon amongst hydrologist and has been designated the "effective discharge" or "effective flow" of that stream. 

Based on the previous paragraph, effectively treating stormwater (volume and delivery rate) up to the 2- year, 24-hour standards would 

appear to be a reasonable first step toward matching an acceptable sediment delivery rate with a river's competence to actually move that 

sediment downstream. However, the 2-year, 24-hour design storm standard does not offer much of a "margin for error" in this respect. 

We recommend the design storm standard be the 5-year, 24-hour storm. 

This is a difficult topic and we recognize it is fraught with technical issues and economic considerations. However, in our watershed we 

have noticed that projects that "over-designed" the stormwater controls compared to the "typical" level of care taken, have had a much 

lower (but not non-existent) failure rate. The widely used standard designs have consistently failed here. For many years, the standard 

stormwater management standards, even when met, have failed to keep our river from experiencing excessive sedimentation. It is well 

past time to raise the bar for stormwater management standards. 

Response 

See Response 2.9. 

Comment ID 0148-A1.001.002

Author Name: Esparza J. 

Organization: USACE-Sacremento 

Issue Category: 2.1.3.1Q 

2. Part 2.1.2.1.a. A set or minimum design storm standard appears appropriate. 

Response 

See Response 2.9. 

Comment ID 0153-A1.001.005

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.1Q 

1. The use of a design storm has a long history. Users are familiar with the concept and data bases are available for models. It would be 

difficult to develop a good system for using continuous. simulation model for each location. For the present time, the design storm is a 
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good approach. 

2. We know that a combination of a performance standard (i.e., % removal of sediment) for a specific design storm event can be a 

successful control strategy. For example, South Carolina's Storm Water Management and Sediment Reduction Act of 1991 (48-14-10 

and following), and pursuant Regulation 72-300, require an 80% TSS removal efficiency of sediment during a design storm of 10-year 

24-hour as defined by NCRS. This has proved very effective since 1991 as there are very few waterbodies now listed on the 303d list in 

South Carolina as impaired for sediment or turbidity. Many sediment control BMPs can be designed using a variety of techniques to 

meet the 80% TSS removal requirement. See the South Carolina Design Aids for examples of how this is done. We encourage EPA to 

consider this approach and eliminate the buffer analogy. We encourage EPA to set a % TSS removal requirement for a lO-year, 24-hour 

design storm event for all sediment control devices. This will also encourage the use of source controls. We also encourage EPA to 

consider an alternative fallback requirement to meet a settable solid standard much like the 0.5 mill used by Office of Surface Mining 

(OSM).This combination allows much flexibility in design of systems to prevent sediment discharge. 

Response 

See Response 2.9. 

Comment ID 0155-A1.001.003

Author Name: Legnatto Paul 

Organization: Onondaga County, NY 

Issue Category: 2.1.3.1Q 

EPA is considered proposing a 2-year, 24-hour design storm standard for stormwater controls, which would need to be met unless it was 

infeasible to achieve at the particular site. We agree that the inclusion of such a standard would have the benefit of assisting construction 

operators in the design and selection of controls by introducing a definitive standard by which to assess compliance. 

Response 

See Response 2.9. 

Comment ID 0159-A1.001.003

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.1.3.1Q 

b. Control stormwater discharges. This is a request to control the peak flow rate and total stormwater volume, which we believe is to 2 

year storm event although it is not specifically mentioned in the regulations. The regulation is absent of a specific goal to be met such as 

reduce discharge to the runoff amount from a wooded site, meadows or pasture, cropland, the existing condition at the time of 

disturbance, etc. Since the goal is not identified, it will be difficult to make a determination of an impact from achieving the goal. In 

addition, in Maryland, there are effectively 3 types of devices that can release water. The first is silt fence or other perimeter filtering 

devices which have no mechanism to control a release rate that can be measured. In addition you are implying the use of storage behind 

the silt fence which is not a good idea as it could case failure, hence creating what you are trying to prevent which is sediment leaving the 
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site. Sediment traps that use a stone weir can be problematic as well. For flatter sites with a stone weir, it is not possible control the 

release rate unless there is a secondary pipe to use as a control structure. This will not happen in flat sites because there is insufficient fall 

to a discharge point unless the embankment was to be raised. The concern would be the increased failure rate of earthen embankments 

that are raised higher with little or no increase in proper construction methods. Additionally, sediment traps with pipe outfalls or 

sediment basins; it would be possible to provide a control structure of sorts to provide quantity control. 

Since many of the devices would not easily be able to provide a measured control rate equal to some storm event, it would be next to 

impossible to state a specific release rate has been met. 

Response 

See Response 2.6. 

2.1.3.2 INSTALL STORMWATER CONTROLS BEFORE CONSTRUCTION 

STARTS [REQUEST FOR COMMENT]

Comment ID 0017-A1.001.007

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.3.2 

5) 2.1.3.2 ‐ Requires the installation of stormwater controls along all down slope areas of disturbance prior to construction starts in any 

portion of the site. This section should be clarified to specify that physical controls are only needed on down slope areas where a 50 foot 

vegetative buffer is not present. 

Response 

Refer to Response 2.10. 

Comment ID 0025-A1.001.013

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.3.2 

For DOTs, it may be difficult to install perimeter controls on slopes if the slope extends out beyond the right-of-way (that we 

own/control). In these cases, we can only place controls at the limits of our property. 

Response 

Refer to Response 2.11. 

Comment ID 0038-A1.001.012

Author Name: Minervini W. 
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Organization: 

Issue Category: 2.1.3.2 

The requirement in this provision should also not apply to earth-disturbing activities that are necessary to install and make operational 

the stormwater controls in question. 

Response 

Refer to Response 2.10. 

Comment ID 0049-A1.001.005

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.2 

EPA must be very careful in requiring a 2-year, 24- hour design standard for storm water controls since such a standard is realistically 

applicable only to Sediment Containment Systems (SCS) such as sediment ponds. 

Applying such a standard for the many small barriers found on a construction site (e.g., silt fence barriers, fiber rolls, inlet barriers, etc.) 

is not realistic. Few, if any, typical barrier BMPs found on construction sites will be effective in removing sediment when flood flow 

(caused by 2-year, 24-hour runoff) conditions exist. 

Response 

Refer to Response 2.6 and Response 2.9. 

Comment ID 0049-A1.001.010

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.2 

Is EPA advocating the use of barriers at the discharge end of a storm drain pipe? Installing silt fence barriers at the discharge end of a 

pipe ensures failure and should always be avoided. 

Response 

Refer to Part 2.1.2.2 of the 2012 CGP and section VII.1.1 of the 2012 CGP Fact Sheet. 

Comment ID 0049-A1.001.011

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.2 

Installing sediment controls in accordance with "sound engineering practices" has no meaning to the contractor. Since sediment and 

erosion control is NOT an engineering discipline, a better statement would be to "select" sediment and erosion control practices based 

upon sound science and engineering. 
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Response 

Refer to Part 2.1.1 of the 2012 CGP and section VII.1.1 of the 2012 CGP Fact Sheet. 

Comment ID 0056-A2.001.007

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.1.3.2 

Installing stormwater controls before construction is a necessary step for most conventional construction projects but, again, restoration 

is a unique situation. In some instances the work to restore ecological function and a sustainable system requires fit-in-the-field work. 

This could result in stormwater controls interfering with this sensitive work. Restoration activity is focused within the resource area so 

installing temporary stormwater controls may lead to an increase in disturbance to the resource areas in order to fit both the active 

working area and stormwater control structures. The DER requires all sponsored designs incorporate the best resource area protections 

feasible for each site and restoration objectives. This effort is furthered by other agencies' review of the project under their pertinent 

regulations. The DER requests the requirement to install stormwater controls be waived for restoration work 

Response 

Refer to Response 2.3.5. Refer also to Response 2.10. 

Comment ID 0061-A1.001.009

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.1.3.2 

As written, the Draft Permit would require controls downslope of all disturbances. Downslope perimeter controls are not feasible for all 

areas of disturbance on LCPs. Disturbance will consist of several miles of trench, each linear foot of which will be actively subject to 

trenching activity for only a short time period. Installation and subsequent removal of perimeter controls of the kind listed in this Part 

will create more land disturbance and sediment loss than would preservation of undisturbed adjacent areas. Moreover, in projects that 

run parallel to roadways, perimeter BMP installations would need to be placed in roadside ditches, which could adversely impact 

carefully engineered roadway drainage and also likely would violate access agreements with state and local departments of 

transportation. For these reasons, LCPs should not be subject to the requirements of this Part. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0062-A1.001.013

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.2 

Install perimeter controls. You must install stormwater controls along all down slope areas of disturbance at your site, including areas to 

be used for stockpiling soils removed during construction, and along those side slope boundaries that will receive stormwater flow from 

disturbed areas of your construction site. All down slope sediment controls should be installed on the level contour of the site, in the 

flattest area possible, at a distance down slope from the toe of the slope, and with the ends of the control placed up slope from the rest of 

the control. 
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Brevard County Comment: Add if the entire site slopes? 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0066-A1.001.014

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.2 

Discussion: Most down slope boundaries on linear projects are at water body crossings. The requirement to install "All down slope 

sediment controls...at a distance down slope from the toe of the slope..." would locate such controls too close to or within those water 

bodies. Side slope sediment controls present problems in the case of linear projects. The width of the disturbed earth, over which runoff 

flows before laterally leaving the site, may be very narrow and easily controlled with a relatively narrow buffer. Controls like silt fence 

may not be necessary at all, and tend to funnel water towards the main downslope boundaries. This frequently causes erosion and 

undercutting of the silt fence, and can cause non-compliance with the permit. 

Suggestion: Add language in the permit that allows some flexibility on this item for linear transportation projects. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0067-A1.001.024

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.1.3.2 

The CGP also contains a suggestion that down-slope siltation/erosion controls be installed on the "flattest area possible at some distance 

from the toe of the slope." This would be extremely difficult to achieve within the boundaries of ROWs on linear projects given the 

topographic relief in parts of Entergy's service area. Entergy requests that EPA remove this provision as impracticable in application to 

linear ROW-type projects. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0076-A1.001.007

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.3.2 

Target ascertains that the installation of all stormwater controls before construction begins is not practical. The provisions of this permit 

encourage phasing of projects, which by nature would phase construction BMP installation during the project. Target believes that this 

expectation fails to address phasing of BMPs that may be encountered in urban redevelopment projects such as demolition. Large 

buildings that are demolished and rebuilt may have paved surfaces that require a different phasing of BMPs. Target suggests that the 
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intent of this proposed requirement should be addressed by requiring a stormwater BMP phasing discussion or clearly delineated plan in 

the Stormwater Pollution Prevention Plan (SWPPP) document. 

Response 

Refer to Response 2.10. 

Comment ID 0087-A1.001.020

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.2 

Moreover, the CGP requires installation of controls around storm drain inlets. Section 2.1.3.2.b. This is a good practice, but one that 

needs to be qualified or waived in situations where the controls may create unsafe conditions (e.g., flooding around the inlets). To avoid 

such situations, alternative controls, such as up-gradient chevrons, should be allowed. 

Response 

Refer to Response 2.12. 

Comment ID 0087-A1.001.038

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.2 

The CGP requires down-slope siltation/erosion controls to be installed on the flattest area possible at some distance from the toe of the 

slope. Section 2.1.3.2.b. These controls would be extremely difficult to achieve within the boundaries of rights-of-way for linear projects 

given the topographic relief in parts of certain service areas, due to the distances that may be involved, lack of legal access to these areas, 

and the need to obtain property owner approvals. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0088-A1.001.008

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.1.3.2 

Among the unrealistic requirements are: 

-- the obligation to install all BMPs before initiating construction, including the 50-foot buffer requirement 

Response 

Refer to Response 2.10. 
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Comment ID 0096-A1.001.028

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.3.2 

Finally, EPA does not have authority to require landowners to install stormwater controls before commencing earth disturbances, 

because the CWA framework focuses NPDES regulatory authority entirely on actual discharges of pollutants to navigable waters. 

Congress defined “discharge of a pollutant” to mean the addition of pollutants to waters from a point source. [FN 47] Discharges are 

prohibited unless they are authorized under an NPDES permit or otherwise allowed under the Act.[FN 48] Nothing in the CWA 

authorizes EPA to require operators to take affirmative steps before any actual discharge occurs and certainly not before construction 

activities begin.[FN 49] If a construction site operator (or any other potential discharger) generates a point source discharge without an 

NPDES permit, the discharger is subject to an array of enforcement measures for the discharge. 

Rather, under the CWA framework, persons who lack NPDES permit coverage (and who are not statutorily excluded from the 

permitting program) simply do not have authorization to discharge and will face severe penalties (up to $37,500 per day, per violation) if

they do so. 

If a construction site operator (or any other potential discharger) generates a point source discharge without an NPDES permit, the 

discharger is subject to an array of enforcement measures for the discharge. Rather, under the CWA framework, persons who lack 

NPDES permit coverage (and who are not statutorily excluded from the permitting program) simply do not have authorization to 

discharge and will face severe penalties (up to $37,500 per day, per violation) if 

they do so. [FN 50] Congress established this enforcement framework to discourage and punish any unauthorized discharge, but it did 

not affirmatively require any potential (or even likely) discharger to take affirmative steps before initiating construction activities. Thus, 

“the Clean Water Act gives the EPA jurisdiction to regulate and control only actual discharges – not potential discharges, and certainly 

not point sources themselves.”[FN 51] Absent such discharges – 

even if future discharges are possible – EPA has no authority to impose NPDES obligations, to impose conditions on construction 

activities, or to impose conditions on pre-construction activities [FN 52] In other words, the CWA “does not prohibit construction of a 

new source without a permit,” just as it does not penalize the failure to install controls before beginning earth disturbing activities.[FN 

53] In fact, the installation of controls on a construction site would likely 

require earth disturbing activities, so this requirement is counter-intuitive. 

 

[FN 47] “Discharge of a pollutant” is defined as “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 

1362(12)(A). 

[FN 48] See 33 U.S.C. § 1311(a) (“[e]xcept as in compliance with this section and [other] sections . . . of this title, the 

discharge of any pollutant by any person shall be unlawful.”). 

[FN 49] Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005) (“unless there is a ‘discharge of a pollutant,’ 

there is no violation of the Act, and point sources are, accordingly, neither statutorily obligated to comply with EPA 

regulations for point source discharges, nor are they statutorily obligated to seek or obtain an NPDES permit.”). 

[FN 50] See 33 U.S.C. § 1319. 

[FN 51] Waterkeeper Alliance, 399 F.3d at 504 (emphasis in original); National Pork Producers Council v. EPA, 635 F.3d 

738, 750 (5th Cir. 2011) (“the scope of the EPA’s authority under the CWA is strictly limited to the discharge of 

pollutants into navigable waters.”). 

[FN 52] See NRDC v. EPA, 822 F.2d 104, 128 n.24 (D.C. Cir. 1987) (“The Clean Water Act regulates the discharge of 
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pollutants, not the construction of sources. The Act does not prohibit construction of a new source without a permit; 

. . . [t]he Act only prohibits new sources from discharging pollutants without a permit, or in violation of existing 

NSPS standards.”); NRDC v. EPA, 859 F.2d 156, 169-170 (D.C. Cir. 1988) (“EPA can properly take only those 

actions authorized by the CWA – allowing, prohibiting, or conditioning the pollutant discharge. . . . And, contrary to 

EPA’s assumption, the CWA does not empower the agency to regulate point sources themselves; rather, EPA’s 

jurisdiction under the operative statute is limited to regulating the discharge of pollutants. Thus, just as EPA lacks 

authority to ban construction of new sources pending permit issuance, so the agency is powerless to impose permit 

conditions unrelated to the discharge itself.”) (emphases added). 

Response 

Refer to Response 2.10. Refer also to Response 2.10.2. 

Comment ID 0098-A1.001.010

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.1.3.2 

The Agency should consider clarifying the language that allows "initial site clearing" without installation of primary stormwater 

controls. This clearing should be limited to that necessary to establish entry, exit and access for the purpose of installing other BMPs. 

The exemption should not be so broadly stated as to be capable of being interpreted to include exposing the entire acreage of a site. 

Response 

Refer to Response 2.10.3. 

Comment ID 0111-A2.001.005

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.1.3.2 

Dow believes that this requirement should be clarified to include a provision to allow earth disturbing activities if it is specifically 

required to implement the stormwater control. For example, a permittee may need to excavate a pit for primary sediment control. 

Response 

Refer to Response 2.10. 

2.1.3.2Q INFEASIBLE TO INSTALL CONTROLS BEFORE DISTURBANCE

Comment ID 0015-A2.001.005

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.3.2Q 

Q4. Stormwater controls in place first - Agree, it is reasonable in most cases. Also consider inlet protection controls for installation prior 
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to any land clearing activity. 

Response 

Refer to Response 2.10. Refer also to Response 2.12. 

Comment ID 0021-A1.001.015

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.1.3.2Q 

4. CGP Section 2.1.3.2 requests comment on the requirement to make operational all stormwater controls before earth disturbing 

activities. It is of my opinion that additional verbiage should be incorporated stating that "all stormwater controls should be installed 

before earth disturbing activities and before the next anticipated storm event." This would give operators more flexibility to stage the 

construction process and perhaps begin land disturbing activities in concurrence with perimeter BMP installation if no storm events are 

anticipated. There also needs to be a more objective definition of "initial site clearing". This can be interpreted in many fashions and 

numerous types of construction activities can be considered initial site clearing. The industry's definition of this term may not be 

consistent with the EPA's intent. A more objective definition would make this requirement more easily enforceable. 

Response 

Refer to Response 2.10. 

Comment ID 0022-A1.001.001

Author Name: Huxtable David 

Organization: Danch, Harner, & Associates, Inc. 

Issue Category: 2.1.3.2Q 

Regarding section 4. ii. "Installation of Sediment Controls Prior to Construction- Operators must install and make operational all 

sediment controls prior to conducting earth disturbance operations." many temporary BMP's are not capable of being installed prior to 

whatever earth disturbance operation is contemplated; therefore this often copied paragraph should be changed to indicate that sediment

controls shall be installed before earth disturbances in any given area of the work may proceed, and where infeasible to install in 

advance, those sediment controls shall be installed as soon as practicable in any given area, such as inlet protection, straw wattles, outlet 

filter risers, temporary and permanent sediment basins. Earthwork and drainage work shall proceed from downstream to upstream with 

construction of sediment and erosion controls taking precedence over any mass grading operations. 

Response 

Refer to Response 2.10. 

Comment ID 0025-A1.001.012

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.3.2Q 

Response to EPA's request for comment: Please add clarification that this is for the portion of the project that is being disturbed. It may 

not be feasible to install and make operational all stormwater controls On a 15-mile long roadway project. Some stormwater controls will 

be placed simultaneously with the construction. DOTs typically phase larger construction projects and there is little benefit installing 
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stormwater controls in a portion of the project where there is not scheduled to be ground disturbance for an entire year. 

Response 

Refer to Response 2.10. 

Comment ID 0030-A2.001.011

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.3.2Q 

Section 2.1.3.2, page 14 

In most cases, construction activities are conducted in phases to limit and control the amount of surface disturbance. Appropriate BMPs 

are initially included in the initial design and site development plans, but should be installed on an as-needed basis, prior to earth 

disturbance activities. Some examples are provided below. 

For example, sediment basins, sediment traps and drainage swales all require earth disturbance and would be installed after initial 

perimeter BMPs. A second example is linear construction, in which BMPs are designed to move with construction. Linear construction 

sites that start on one street but are not scheduled to occur on the next street until later don't have BMPs installed on the inactive street. If 

BMPs are installed too early, there is a risk of requiring BMP maintenance prior to any upgradient disturbance occurring (because of 

traffic hazards, slow flows through municipal inlets due to heavy precipitation, unattended BMPs, etc.). 

We suggest clarification to language to address BMP installation requirements for individual phases of construction, rather that all at 

once prior to commencing initial earth-disturbance activities. 

Response 

Refer to Response 2.10. 

Comment ID 0037-A1.001.009

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.3.2Q 

It is not always feasible or possible to install all stormwater controls before commencing earth disturbances. Stormwater controls are 

often selected based on the phase of construction. It would be more practicable to require the stormwater controls to be installed based on 

the phase of the project. Situations where it is infeasible or impractical to install all stormwater controls prior to earth disturbances 

include the following: 

 Stormwater controls used to protect storm sewer inlets cannot be installed until the storm sewer pipe is installed. 

 The location and type of down slope controls as well the down slope control area will change during the construction of a subdivision. 

As storm sewers are installed, the storm sewer inlets become part of the down slope control area. If there is any disturbance or stockpile 

soil located up stream of the inlet, sediment control barriers will need to be installed. 

 Check dams cannot be installed until the drainage channel, ditch, or swale is constructed. 

 Outlet protection cannot be installed until the culvert or ditch is installed. 

 Temporary slope drains are frequently installed during the grading phase once slopes and grades have been established. 
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 Surface roughening cannot be implemented prior to earth disturbances. 

 Sediment control barriers installed along the contour at intervals along the length of a slope to reduce slope length cannot be installed 

until the slope has been graded. 

Response 

Refer to Response 2.10. 

Comment ID 0046-A1.001.004

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.3.2Q 

The Department appreciates placing an upper limit on the amount of precipitation / runoff for which design standards are sufficient. 

Response 

Refer to Response 2.9. 

Comment ID 0046-A1.001.005

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.3.2Q 

In general, this is a good practice. However, in heavy highway construction, the installation of the BMPs may require earthwork. 

Sedimentation ponds that are created in fills, access to install silt fence, temporary causeways to drive sheeting and driving piles all 

require earthwork to make the BMP functional. In addition, access along limited width Rights of Ways can be a challenge and projects 

with multiple traffic control phases sometimes limit what can be feasibly accomplished. 

Response 

Refer to Response 2.9. Refer also to Response 2.11. 

Comment ID 0047-A2.001.008

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.3.2Q 

Section 2.1.3.2, page 14 

Construction activities are often conducted in phases to limit the amount of disturbance. Appropriate BMPs are included in the design 

(initial, interim and final) and site development plans, but should be installed on an as-needed basis, prior to earth disturbing activities.

Some examples are provided below. 

Water quality structures, such as sediment basins/ponds/traps and drainage swales all require earth disturbance and would be installed 

after perimeter BMPs are installed. 

Linear construction sites often design the project to move the BMPs with construction. Xcel Energy projects are encouraged to work a 
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section of the line, stabilize, than move on to the next section. This approach keeps the area of disturbance minimized and eliminates 

BMPs installed on inactive areas and thus subject to potential damage and maintenance requirements. 

Xcel Energy recommends the permit language address BMP installation requirements for individual phases of construction, rather than 

requiring all BMPs installed prior to commencing initial earth-disturbing activities. 

Response 

Refer to Response 2.10. 

Comment ID 0049-A1.001.009

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.2Q 

Installing stormwater controls before construction starts 

This may be great in theory, but will be limited to barriers (e.g., silt fence) where sheet flows occur. Only after grading activities begin 

will construction of an SCS occur, which is the most effective method to remove sediment from runoff. 

Response 

Refer to Response 2.10. 

Comment ID 0053-A2.001.008

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.3.2Q 

The Permit states: "Prior to commencing earth-disturbing activities in any portion of your site, you must first install and make 

operational all stormwater controls required in this Part and described in your SWPPP." 

This clause is unachievable. Interim BMPs cannot be installed in areas that have not been graded to design or partially graded. In these 

examples below, BMPs would not be considered related to initial site clearing. 

Examples: 

• Check dams in V-ditches that have not been excavated. 

• Cut/Fill Transition rock armor in transitions that do not exist yet. 

• Sediment Basins cannot be installed where vegetation has not been cleared 

Response 

Refer to Response 2.10. 

Comment ID 0054-A2.001.007

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 
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Issue Category: 2.1.3.2Q 

Issue: As acknowledged in the C+D guidelines, "Site planning, sequencing of landdisturbing activities and phasing of construction 

activities are important management practices [74 FR 63012]." Further, disturbing small portions of a larger construction site can also 

reduce the potential impacts of denuding the entire construction area. Neither of these concepts supported by EPA aligns with mandates 

on permitees to install all storm water controls prior to beginning construction. In some cases, the specific storm water control may not 

be feasible or adequate for the corresponding phase of construction. 

Recommended Change: USS recommends that EPA revise the requirement for permittees to identify the appropriate controls for each 

construction phase as part of the Storm Water Pollution Prevention Plan (SWPPP) and allow for the implementation of these controls 

prior to initiating the activities of each phase. 

Response 

Refer to Response 2.10. 

Comment ID 0061-A1.001.010

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.1.3.2Q 

LCPs often require several months to complete. Installation of all storm water controls listed in the SWPPP is not feasible or warranted 

for projects where disturbance will not occur at a specific location along the project site until some distant time in the future. Installation 

and maintenance of all BMPs prior to the commencement of construction in such cases would not only add cost without any 

environmental benefit, the installation, inspection and maintenance of BMPs in otherwise undisturbed areas would result in increased 

environmental impact. 

For these reasons we suggest that the Agency exclude LCPs from this requirement, because it would be both infeasible and 

environmentally counterproductive as applied to those projects. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0065-A1.001.009

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.3.2Q 

Section 2.1.3.2 states that prior to installing earth-disturbing activities in any portion of a site, all stormwater controls must be installed 

and operational. The draft CGP additionally clarifies that "this requirement does not apply to earth disturbances related to initial site 

clearing and establishing entry, exit, and access to the site." CCWC supports the inclusion of this exception for earth disturbances 

because installing initial stormwater controls will include earth-disturbing activities while the initial best management practices (BMPs) 

are installed (e.g., track-out at entrances, exits, birms). 

Response 

Refer to Response 2.10. 
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Comment ID 0066-A1.001.013

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.2Q 

Discussion: In response to the comment: "EPA requests comment on whether there are other situations where it would be infeasible or 

impractical to install and make operational all stormwater controls before commencing earth disturbances. If so, please describe these 

situations." In the case of linear construction, which may progress through time along the length of the project, installing sediment 

controls in areas that have not been disturbed (and may not be disturbed for some period of time) would unnecessarily increase 

disturbance in otherwise undisturbed areas. At other times, certain portions of a site may be under very intensive and active construction, 

working to achieve final grades, which then could have their perimeter controls installed when completed. 

Suggestion: Allow flexibility in the timing of sediment control installation so that it may be customized to fit project-specific 

circumstances. 

Response 

Refer to Response 2.10. 

Comment ID 0067-A1.001.023

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.1.3.2Q 

B. The CGP requires installation of all erosion control measures in advance of initiation of construction. While perimeter controls are 

typically installed in advance of construction, some of the controls, notably dry crossings of stream beds to minimize tracking, require 

significant excavation to install. 

Response 

Refer to Response 2.10. 

Comment ID 0069-A1.001.002

Author Name: Cramer M. 

Organization: 

Issue Category: 2.1.3.2Q 

2. Part 2.1.3.2.a. of the draft EPA CGP requires operators to install and make operational all stormwater controls described in the 

SWPPP before commencing earth disturbances. Linear road projects require continuous phasing that necessitates installation and 

modification of erosion and sediment controls contiguous with construction progress. Outfalls and flow directions can change daily; 

therefore, installing "all" BMPs prior to the start of construction is impractical. Installation of controls prior to the time of their functional 

necessity only leads to additional maintenance and inspection costs. Only those stormwater controls that are needed and will be 

functional for the current phase of a project should be installed and operational. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 
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Comment ID 0072-A2.001.005

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.1.3.2Q 

When practicable, MoDOT practice is to install all peripheral or border best management practices (BMPs) prior to general site clearing. 

MoDOT commends the EPA for acknowledging the fact that in many instances (e.g., forested areas, steep terrain, etc.) it is impractical to 

install perimeter controls before initial site clearing and the establishment of site access. However, there are also other instances where 

installing "all stormwater controls" prior to commencing other earth-disturbing activities is impractical. For example, highway projects 

often involve significant cuts and fills in order to reach the desired roadbed grade. As such, project phasing is crucial to assure the best 

use of time and resources. It is difficult to develop adequate "phased" project plans ahead of time that will cover every erosion and 

sediment control scenario that may arise during this period of transition. Most designed erosion and sediment control plans show those 

devices that will be installed once final grade is achieved. As such, many times it is left up to the discretion of trained engineers and 

inspectors to install and remove controls as deemed necessary in the interim. These SWPPP changes occur during active grading, based 

on best judgment and are then handdrawn into site plans. 

MoDOT is concerned with the all inclusive language currently written in this Part. The following language gives more flexibility to the 

construction team while at the same time assuring there is no discharge of pollutants from the construction site. MoDOT's suggested 

language for this Part would be: Prior to commencing earth-disturbing activities in any portion of your site, you must first install and 

make operational the necessary stormwater controls required in this Part and described in your SWPPP to assure there is no discharge of 

sediment or other pollutants fom the construction site. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0074-A2.001.007

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.1.3.2Q 

The proposed language should include provisions for circumstances when stormwater controls for each stage of construction cannot be 

completed before that specific stage is started, i.e. on sites with certain types of geological limitations and on certain linear projects. 

Response 

Refer to Response 2.10. 

Comment ID 0080-A2.001.008

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.3.2Q 

Partner Response: The language specifies that ALL stormwater controls be installed before commencing earth disturbance activities. 

The Partners question the word ALL and suggests alternative language such as "all stormwater controls should be installed before earth 

disturbing activities or prior to a "significant" precipitation event." The SWPPP would further address this issue if phasing were to be 
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incorporated into the scheduling of the construction project. Also, it is unclear whether EPA requires all stormwater controls be 

operational for the entire site "prior to commencing earth-disturbing activities in any portion of the site" or whether controls must be 

installed and operational for only the disturbed portion of the site. Perhaps the EPA could better define terms such as earth disturbance, 

initial site clearing, etc. Clearly defining these terms for Municipalities and CGP holders will greatly assist the regulated community in 

implementing the Permit and help in understanding EPA's intent. 

Response 

Refer to Response 2.10. 

Comment ID 0085-A2.001.006

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.1.3.2Q 

The requirement for installation of all controls prior to construction is reasonable. However, this section should reference the emergency 

related construction exceptions contained in 1.3.2. Furthermore, the emergency related exceptions should be clarified to include 

emergency construction related to the failure of aging infrastructure. 

Response 

Refer to Part 1.2.1 of the 2012 CGP. 

Comment ID 0087-A1.001.019

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.2Q 

Additionally, the CGP requires installation of all erosion control measures before construction starts. Section 2.1.3.2. This may be 

appropriate for traditional site development, where clearing and grading activities occur at the same time throughout all or most of the 

site. However, it is not appropriate for linear utility projects, especially those that are constructed in phases over different periods of time. 

We urge EPA to revise this section to allow land disturbance activities on portions of the total construction site, as long as the stormwater 

controls for the area being disturbed are installed and operational (i.e., the implementation of the SWPPP, including BMPs, is conducted 

prior to the soil disturbing activities in the area of the actual soil disturbance). EPA should also clarify that controls are only needed on 

down slope areas where a 50-foot vegetative buffer is not present. 

Response 

Refer to Response 2.10. Refer to Part 2.1.2.1 on buffer requirements and Part 2.1.2.2 on perimeter controls. 

Comment ID 0087-A1.001.043

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.2Q 

Where construction sites will first be cleared or graded prior to their use for other activities (e.g., laydown area, maintenance, storage), it 

will not be possible to install the BMPs associated with those subsequent activities prior to the earth disturbing activities. For instance, 

pollution prevention BMPs for the maintenance area cannot be installed until the site is cleared and leveled for the maintenance area. 

Similarly, the permit should allow incremental removal from the project's permitted area those areas where earth disturbing activities 
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have been completed and stabilization is achieved. 

Response 

Refer to Response 2.10. 

Comment ID 0090-A1.001.014

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.3.2Q 

Second, EPA states in the Notice that permittees must ―design, install, and maintain‖ these controls and have them operational prior to 

commencing earth-disturbing activity. [FN 7] It is unfeasible to install and make operational all stormwater controls before commencing 

earth disturbance. Depending on the project, some linear projects may be backfilled the same day that the work is begun. Further, due to 

limited space at the work site, soils may be simply trucked out of the work location and erosion controls could not realistically be 

installed until the actual work begins (e.g. silt fences around the bore pits or soil piles). The operating procedures are a stark contrast to 

the large-scale, open excavation that characterizes initial earth disturbance from commercial or residential construction activity. AGA 

asks EPA to clarify that the proposed requirement that controls be installed and made operational before commencing earth disturbance 

does not apply to linear projects, on the grounds that this requirement is impractical, unnecessary and infeasible for linear projects. [FN 

7] 76 Fed. Reg. at 22886. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0091-A2.001.003

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.1.3.2Q 

3. Fact Sheet Item 4. Part 2.1.3.2.a: Stormwater control features should be installed at the site in advance of upstream soil disturbing 

activities. Larger constructions sites may include multiple phases for earthwork. Installing all stormwater controls prior to construction 

may not be feasible. Control structures such as swales and perimeter dykes may be constructed with native soils removed from the 

construction area. Natural barriers such as hay may become degraded before the upstream earthwork begins. Recommend that the 

SWPPP include milestones for establishment of storm water controls prior to various phases of earthwork. 

Response 

Refer to Response 2.10. 

Comment ID 0093-A2.001.040

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.2Q 

The Draft states that prior to starting earth disturbing activities in any portion of the site, stormwater controls would be required. EPA has 

requested comment on whether there are situations in which it would be infeasible or impracticable to make operators install all 

stormwater controls before commencing earth disturbances. 
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AGC finds that it would be infeasible, impractical and pollution producing to install all controls prior to the start of any work. It is a 

common circumstance, particularly on larger sites, for only a portion of the site to be constructed (or disturbed) at one time; other 

portions of the site may remain undisturbed for many months. For example, oftentimes during a road construction project, lanes (or other 

project features) on the one side of the roadway will have no disturbed earth for more than a year while the other side of the roadway is 

being modified. Installation of controls on the side of the roadway with no activity will serve no purpose and will increase the cost of 

construction through the installation of controls that will only need to be replaced prior to the actual start of work in that portion of the 

site. Installation of the controls before they are needed and then needing to replace them prior to actual construction will generate 

unnecessary waste (pollution). On a very large, phased-development site, the same situation could occur. 

While most often the SWPPP will specify all BMPs throughout all phases, BMP installation is predicated on the work to be completed 

within each phase. Furthering the example used above, a roadway project has numerous phases including clearing and rough grading 

followed by rough drainage, which is refined as the roadway is built to include pavement, curb inlets, etc. It would be impossible to 

install curb inlet protection at the rough grading stage, because the inlets would not exist. It would be impossible to install all ditch 

checks at the clearing stage, because the planned ditches would not exist. In addition, there are many areas during the construction season 

where it is next to impossible to get the perimeter control BMPs installed prior to any construction. These areas may be in flood plains, 

areas with brush and small trees, areas on bridge construction sites, slopes, etc. For these reasons, it is not feasible to install "all" storm 

water controls prior to commencing earth disturbing activities. 

AGC requests that EPA clarify that the requirements under this Part are for the portion of the project that is being disturbed only. AGC 

also asks that EPA modify the term "all" with "all applicable." 

EPA must acknowledge that most construction projects are phased, with BMP selection and installation corresponding to each phase. 

AGC requests that EPA allow contractors to install controls as they are needed so that they can continue to limit the amount of area 

cleared at one time. Such phasing helps maintain natural vegetation, which is the best control. A requirement to install all controls prior 

to start of construction would cause the contractor to "hop around" the site installing controls before they are needed. Contractors would 

also have to inspect and maintain those controls. These may exist in areas where the contractor has no active work for quite some time. 

We see this as an item that will greatly increase the cost of construction without a definable environmental benefit. 

Response 

Refer to Response 2.10. 

Comment ID 0096-A1.001.027

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.3.2Q 

EPA states that prior to starting earth disturbing activities in any portion of the site, stormwater controls are required. This language is 

very restrictive and cannot be met under many scenarios. Below are a few examples that illustrate the problems with this provision. 

First, many stormwater basins require the importation of material to construct their walls. The efficient way, in terms of cost, land 

disturbance, and reducing energy use and air pollution, is to clear the area around the temporary basin and use the material from the 

surrounding area. In many cases, disturbance and construction must start before stormwater controls can be installed. But if EPA’s 
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language is too restrictive, it will lead to even more problems because if the area cannot be cleared without a basin in place, the material 

has to be imported. Then, the material adjacent to the basin (that could have been used in the basin construction) has to be exported to 

keep the job balanced. EPA must ensure that the proposed language allows for the minimal clearing necessary to obtain suitable soil 

needed to build required stormwater devices. 

Similarly, in some cases, construction must occur before stormwater controls are installed and some stormwater controls do not work 

until grading is partially completed. In these instances, building stormwater controls early on the construction process is a waste of time, 

costs more, and sometimes cannot be physically constructed. For example, if a developer is 

constructing a road that crosses a stream, the main controls initially will be silt fences followed by diversion ditches. Prior to building the 

road elevation up (i.e. placing the fill), a silt fence is all that is needed as an erosion device. But the plans would show diversion ditches 

so that water coming off the new slopes could be diverted to the new lowest elevation where a basin would be constructed. A diversion 

ditch cannot be built prior to road construction process. EPA’s provision should clarify those scenarios where a stormwater control will 

not need to be implemented prior to construction. At a minimum, it must recognize that sometimes installing controls before 

construction starts is infeasible and provide for these occurrences. 

Response 

Refer to Response 2.10. 

Comment ID 0115-A2.001.008

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.3.2Q 

2.1.3.2 General Installation Requirements. National Grid recommends acknowledgement of phased projects in this part of the proposed 

CGP. Typically, for cross country distribution/transmission projects, erosion, sediment and stormwater controls are installed only in 

areas where construction is active. For example, while earth disturbing activities (e.g. excavation for pole replacements, drilling for 

foundations, or grading for access and work envelopes) may be underway on the northern portion of a utility corridor, similar activities 

may not be occurring for months in the southern section. As crews move from structure to structure, controls are installed before ground 

disturbance takes place but after mowing and clearing (not grubbing), access road upgrades, and swamp mat installations are complete 

(unless road upgrades include significant grading). All controls are then monitored and maintained through all phases of construction. 

Therefore, National Grid suggests that installation of stormwater controls prior to earthdisturbing activities on ANY portion of the "site" 

(ROW) is not feasible or practicable for linear projects of significant length. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0117-A1.001.009

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 2.1.3.2Q 

The installation of all stormwater controls before commencing earth disturbances may not be achieved if the disturbance is creation of a 

stormwater control (i.e. detention/retention basin construction). There also may be sites that have a phased approach where it would not 
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make sense to install a permanent stormwater control until the tributary area is constructed. 

Response 

Refer to Response 2.10. 

Comment ID 0123-A2.001.005

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.1.3.2Q 

Comment: CRWD supports the proposed permit language. 

Response 

EPA thanks the commenter for the support. 

Comment ID 0131-A1.001.004

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.1.3.2Q 

This requirement essentially allows the engineer to specify which controls are appropriate for the commencement of earth disturbance, 

so in the typical case, this approach is feasible. However, there are some situations where due to field conditions, the location, scale and 

scope, and minimal risk for a discharge ,that it may be appropriate or environmentally beneficial to concurrently commence earth 

disturbance and install controls rather than installing controls first. In some cases, installation of perimeter controls is infeasible prior to 

minor earth disturbance. This can be the case in locations that are in extremely rough terrain, in very rocky soils (or no soil), or are very 

densely wooded such that proper and effective installation of perimeter controls is extremely challenging without some minor grading. It 

can also be difficult to discern the difference between earth disturbance and storm water control installation (e.g., in a pond construction 

project, wetland restoration, etc...) Accordingly, LBA requests that the permit provide for situations in which installing controls before 

commencement of construction is allowed. 

Response 

Refer to Response 2.10. 

Comment ID 0133-A2.001.014

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.3.2Q 

The proposed pennit condition requires the installation of all stormwater controls before commencing earth·disturbing activities in any 

portion of the site. This requirement is overly burdensome and is not feasible in many instances. Linear transportation projects are 

dynamic and require flexibility. Erosion and sediment controls that are necessary at the beginning of a project change as construction 

progresses and final stabilization commences. Additionally, linear transportation projects are often constructed in phases, and in fact, 

phased construction is explicitly encouraged in the new Effiuent Limitation Guidelines. It does not seem reasonable to require the 

placement of storm water controls for portions of the site that are not and will not be disturbed for some time. This proposed condition 

places an undue burden on the regulated community, without any benefit to water quality. As such, MDT requests that additional 
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flexibility be provided. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0137-A2.001.005

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.3.2Q 

Installation of all stormwater controls before construction starts is impractical under many circumstances. Phasing of a project may make 

installation of all devises impossible. Installation of devices may require significant grading. Also, projects utilizing Environmental Site 

Design may not have "controls" as contemplated by the permit and may require detailed grading to control flows. 

Response 

Refer to Response 2.10. 

Comment ID 0145-A2.001.008

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.1.3.2Q 

We urge the EPA to be very cautious in codifying when it is allowable for developers to begin earthdisturbing activities prior to 

installation of operational stormwater controls. Exceptions that allow earthdisturbing activities prior to installation should be very 

limited. 

Response 

Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0170-A2.001.005

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 2.1.3.2Q 

EPA's requirement to install and make operational all stormwater controls before commencing earth disturbances does not adequately 

address the unique nature of linear construction projects. Because linear construction projects are typically undertaken using a phased 

approach, this requirement will result in the installation of control measures in areas of a project where no earth disturbing activities will 

take place for a significant period of time. This will subject an operator to unnecessary maintenance and inspection costs with no benefit 

to the environment. A more effective approach would be to allow the operator to install control measures in areas of disturbance 

immediately before they are disturbed. We respectfully suggest the following language be used in Part 2.1.3.2(a): "You must intall and 

make operational any stormwater controls required in this Part and described in your SWPPP before upgradient land is disturbed." This 

approach will allow operators the flexibility needed to effectively manage their stormwater controls while maintaining an equivalent 

level of environmental protection. 

Response 
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Refer to Response 2.10. Refer also to Response 2.11. 

Comment ID 0077-A1.001.009

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 2.1.3.2Q 

The installation of all stormwater controls before commencing earth disturbances may not be achieved if the disturbance is creation of a 

stormwater control (i.e. detention/retention basin construction). There also may be sites that have a phased approach where it would not 

make sense to install a permanent stormwater control until the tributary area is constructed 

Response 

Refer to Response 2.10. 

2.1.3.3 MAINTENANCE REQUIREMENTS

Comment ID 0049-A1.001.012

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.3 

What is meant by "effective operating condition?" For example, does this mean it is operating in a manner that effectively removes 

sediment from runoff waters? If so, how much is to be removed and over what time period? Perhaps this means the BMP is allowing 

water to discharge in a correct manner----as determined by whom? 

Response 

See Response 2.13. 

Comment ID 0049-A1.001.013

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.3.3 

Few individuals on a construction site can assess the effectiveness of any BMP to remove sediment from runoff waters. It would be 

helpful if the EPA could provide some guidelines for the inspector and contractor on this topic. 

Response 

EPA plans to develop guidance. 

Comment ID 0053-A2.001.009

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.3.3 
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a. Keep stormwater controls in effective operating condition. The Permit states: "You must ensure that all stormwater controls remain in 

effective operating condition and are protected from activities that reduce their effectiveness." 

This clause is too vague. It is improbable to protect all BMPs from damage. 

Response 

See Response 2.13. 

Comment ID 0062-A1.001.014

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.3 

Remove accumulated sediment. Remove sediment before it has accumulated to a height of 1⁄2 of any exposed silt fence fabric or 1⁄2 of the 

height of any filter berm. 

Brevard County Comment: 1⁄2 height is too high, pressure will cause fabric failure below this height. 

Response 

See Response 2.13. 

Comment ID 0091-A2.001.018

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.1.3.3 

18. PART 2.1.3.3: The language in the text implies that the sediment from the storm water controls is different from other fill materials 

removed from the site. If there is no contamination, the contractor should be free to manage the soil as fill material on or offsite.The 

permit is specifically directing how the material may be managed. Since specific management actions are defined, tracking may be 

required to demonstrate this material was managed in accordance with the permit. One use that is not listed is to transfer the material to 

a third party for use. On sites with excess fill the material could be added to the fill transferred offsite. Reuse and beneficial use of any 

excess construction material should be encouraged before disposal. 

Response 

See Response 2.13. EPA notes that the 2012 CGP does not include the proposed provision on managing sediment that is removed from 

stormwater controls. 

Comment ID 0093-A2.001.041

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.3 

The Draft states: "You must ensure that all stormwater controls remain in effective operating condition and are protected from activities 

that reduce their effectiveness." AGC maintains that this clause is too vague. It is not possible to protect all BMPs from damage, which 

is why this permit includes corrective action provisions. AGC requests that EPA define the meaning of this statement. 
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Response 

See Response 2.13. 

Comment ID 0102-A2.001.002

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2.1.3.3 

2. Section 2.1.3.3 - Maintenance requirements, subsection b - Remove accumulated sediment 

a. Where does the 1/2 of exposed silt fence requirement come from? Many manufacturers state the proper height of removal is at 1/3 of 

exposed height. This height depends upon the materials used, and whether the silt fencing is backed with chain link fencing ("super silt 

fencing"). Please specify the context of this requirement. . 

Response 

See Response 2.13. 

Comment ID 0115-A2.001.009

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.3.3 

2.1.3.3 Maintenance requirements. National Grid supports the language in this part. It is useful to have a discrete measure for 

maintenance. 

Response 

EPA appreciates the support. 

2.1.3.4 GOOD HOUSEKEEPING REQUIREMENTS

Comment ID 0017-A1.001.010

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.3.4 

8) 2.1.3.4 ‐ Indicates sediment tracked onto streets and other paved areas must be cleaned up by the end of the same workday. However, 

2.1.3.7 indicates vehicle tires must be washed and "No visible signs of soil tracking from vehicles should be present on public or private 

roadways exiting the site". The two conditions contradict each other. In addition, requiring vehicles to be washed at exit points creates a 

significant problem for linear projects already working within a narrow access corridor. Requiring vehicle washing would result in 

tracking pads to become inundated with sediment and increase the likely hood of the release of oil and grease from vehicles into the wash 

water. Good housekeeping practices, such as cleaning of paved areas each workday (or more frequently if required) are effective 

methods for controlling sediment tracking. 
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Response 

See Response 2.14. 

Comment ID 0025-A1.001.014

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.3.4 

For a DOT project, many of the resulting soil stockpiles are so large as to be completely infeasible to cover or contain them. Additionally 

it makes more sense to have one large pile to control versus many small ones. It also may not be reasonable to provide final stabilization 

to these stockpiles if their product is to be reincorporated into the project later. As a common practice for ADOT, we require the use of 

parameter controls around any stockpiles. 

Response 

See Response 2.17. 

Comment ID 0030-A2.001.012

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.3.4 

Section 2.1.3.4, page 15 

What about flexibility for short duration piles in arid and semi-arid regions? (For example, linear utility projects that have small piles that 

exist for only one week and have protection around the toe of the pile). The proposed requirement might apply to stockpiles that exist for 

a longer period. We recommend providing language to exempt short-duration, small piles. 

Response 

See Response 2.17. 

Comment ID 0047-A2.001.009

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.3.4 

Section 2.1.3.4, page 15 

Xcel Energy recommends providing language in the permit for short duration piles and when working in arid and semi-arid regions? (For 

example, linear utility projects that have small piles that exist for a matter of days have protection around the toe of the pile). This 

proposed language should only apply to larger projects that will have stockpiles for a longer duration

Response 

See Response 2.17. 
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Comment ID 0064-A1.001.012

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.3.4 

Section 2.1.3.4.a.i, page 15 - "Where track-out of sediment occurs at your site onto streets...you must sweep, shovel, or vacuum these 

surfaces to remove track-out material or other sediment deposits." 

•Is this section suggesting that sweeping, shoveling, or vacuuming can be done in lieu of stabilized construction entrances? 

Response 

See Response 2.14. 

Comment ID 0065-A1.001.010

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.3.4 

Section 2.1.3.4(b)(iii) requires projects control of discharges from sediment or soil piles, by "providing cover or other appropriate 

temporary or permanent stabilization to avoid direct contact with precipitation or to prevent sediment discharge." Providing cover for 

major infrastructure and other similar projects open to the elements is infeasible. As an alternative, CCWC recommends that EPA 

modify the requirement to require the installation of proper BMPs, followed by evaluation of the effectiveness of those BMPs prior to 

assessing whether coverage is necessary. 

Response 

See Response 2.17. 

Comment ID 0065-A1.001.011

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.3.4 

Section 2.1.3.4(b)(v) requires containing and securely protecting sediment and soil piles from wind unless they are actively being used. 

This requirement is vague. In order to be able to comply with this requirement, further clarification is necessary regarding the sufficiency 

of "to the extent possible" and what it means for sediment and soil piles to be "actively" used. CCWC recommends the installation of 

proper BMPs associated with these piles, followed by evaluation of the effectiveness of those BMPs prior to securely protecting the piles 

if they are not actively being used 

Response 

See Response 2.17. 

Comment ID 0065-A1.001.012

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 
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Issue Category: 2.1.3.4 

Section 2.1.3.4(c) requires minimizing the generation of dust. This requirement is unreasonably vague. No specific criteria are provided 

to give regulated entities assurance they are in compliance with the requirement. Therefore, even if regulated entities apply water and use 

other dust suppression techniques, the adequacy of those measures will be subjectively assessed by an inspector. 

Response 

See Response 2.15. 

Comment ID 0066-A1.001.015

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.4 

Discussion: This requirement is problematic when the storm water conveyance channel or inlet is an integral part of the construction 

project itself. It's impossible to prevent sediment from being deposited in or near a ditch when the purpose of the activity is to build the 

ditch in the first place. Additionally, when building roads it is often necessary to use the ditch as part of the system of storm water 

controls - to route water, to site ditch checks, to site sediment basins and traps, etc. It's impossible to keep sediment out of the ditch when 

the ditch is part of the system designed to remove sediment from runoff. 

Suggestion: It appears impracticable to ask on one hand for someone to do water sampling during a storm event, and on the other ask us 

to clean out the sediment at the same time. Allow for flexibility in time to repair and maintain BMPs. 

Response 

See Response 2.21. 

Comment ID 0066-A1.001.016

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.4 

Discussion: Inlet protection is very ineffective and poses a huge safety risk. The types of curb inlet controls that can be installed at drop 

inlets adjacent to active traffic at the very minimum slow water and in some cases block it (excavating a pit in front of it isn't an option 

because that's where the road and traffic is, or potentially could enter the area accidentally). This means that runoff backs up into active 

traffic lanes during storm events, which presents safety and liability issues. 

Suggestion: Revise this section's language to take the safety of the travelling public into consideration. It is safer and more effective to 

take precautions to minimize the amount of sediment that can enter the runoff before it gets to the inlet, or in some cases even to establish 

controls at the discharge point of the storm sewer. 

Response 

See Response 2.12. 

Comment ID 0068-A1.001.021

Author Name: Longsworth Jeffrey 
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Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.3.4 

This Part also attempts to regulate "dust" leaving construction sites as well as other materials via wind dispersion. To the extent that 

stormwater collects dust as sediment, appropriate controls can be implemented to control dust-generating activities or treating the 

dust-laden stormwater. To the extent that EPA is proposing to use the NPDES permit program to regulate airborne dust clouds that may 

leave a construction site aloft, FSWA does not believe that airborne dust clouds are subject to permitting under the NPDES program. 

That program only regulates pollutants associated with certain construction operations that are discharged from a property via 

stormwater through a point source to a water of the U.S. General dust dispersion that settles off site is not subject to such permitting. 

Response 

See Response 2.15. 

Comment ID 0093-A2.001.042

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.4 

This part would require contractors, at the end of each workday, to sweep, shovel or vacuum the streets, sidewalks, and other paved areas 

around the construction site to remove track-out material or other sediment deposits. In addition, it would require contractors to 

immediately start to remove sediment that has been deposited in or near any stormwater conveyance channel or storm drain inlet and 

complete the removal by the close of the next full work day. AGC is concerned about these new requirements - that are not part of the 

2008 CGP - would indirectly require daily site inspections, which AGC believes is XXXX (see AGC's Comments below...) 

Response 

See Response 2.14. 

Comment ID 0093-A2.001.043

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.4 

According to this part of the Draft, "For any stockpiled or land clearing debris composed, in whole or in part, of sediment or soil, you 

must ... [p]rovide cover or other appropriate temporary or permanent stabilization to avoid direct contact with precipitation or to prevent 

sediment discharge ... [and to] the extent possible, contain and securely protect from wind unless actively being used ... ." On a highway 

project, many of the resulting soil stockpiles are so large that it would not be possible to cover or contain them. From a business 

operations standpoint, it makes more sense to have one large pile to control versus many small ones. It also may not be feasible to 

provide final stabilization to these stockpiles if their product is to be re-incorporated into the project at a later date. AGC recommends 

that EPA delete these provisions and instead require perimeter controls around any stockpiles. 

Response 

See Response 2.17. 

Comment ID 0093-A2.001.044
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Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.4 

The Draft also attempts to regulate "dust" leaving construction sites. To the extent that stormwater collects dust as sediment, appropriate 

controls can be implemented to control dust-generating activities or treating the dust-laden stormwater. To the extent that EPA is 

proposing to use the NPDES permit program to regulate airborne dust clouds that may leave a construction site aloft, AGC does not 

believe that airborne dust clouds are subject to permitting under the NPDES program. That program only regulates pollutants associated 

with certain construction operations that are discharged from a property via stormwater through a point source to a water of the U.S. 

General dust dispersion that settles off site is not subject to such permitting. 

Response 

See Response 2.15. 

Comment ID 0096-A1.001.029

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.3.4 

EPA is proposing to require dust suppression to avoid discharging sediment into waters 

of the U.S. through wind erosion. The CWA, however, does not give EPA authority to regulate 

airborne particles; that is within the purview of the Clean Air Act (CAA). [FN 54] Furthermore, the 

CAA only provides the Agency the authority regulate fugitive dust, which it has done effectively 

through its national ambient air quality standard (NAAQS) for particulate matter (2.5 - 10 

microns in diameter). The statutory provisions for the NAAQS program to regulate fugitive dust 

and other criteria pollutants are quite extensive, but nowhere authorize EPA to use another 

statute or regulations to control an air pollutant. Moreover, the dust suppression requirement will 

only complicate matters for builders working within CAA-identified “non-attainment areas.” [FN 55] 

In these cases, builders are already required to have a clean air permit and requirements for dust 

suppression that may conflict with the proposed requirements of the CGP. For example, in 

Maricopa County, Arizona, the Dust Permits allow water to be used as a “crusting” temporary 

stabilization agent, but the Arizona Department of Environmental Quality states in its permit 

Fact Sheet that that it does not recognize temporary stabilization of areas by the use of water 

crusting. In addition, areas that are in attainment for particulate matter are required to have an 

air quality implementation plan that “contain emissions limitations and measures” for the 

“prevention of significant deterioration.” [FN 56]. In other words, dust is already addressed through 

several provisions of the CAA and state implementing programs. The authority to regulate air 

pollutants comes specifically from the CAA and not the CWA. To avoid confusion and needless 

duplication, NAHB recommends that the CGP not contain any language about dust suppression because the CAA already does so and 

EPA’s Office of Water does not have the expertise or the 

authority to regulate air pollutants. 

[FN 54] 42 U.S.C. 7401 et seq. 

[FN 55] 42 U.S.C. §7407(d). 
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[FN 56] 42 U.S.C. §7471. 

Response 

See Response 2.15. 

Comment ID 0098-A1.001.011

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.1.3.4 

We recommend that the Agency reconsider the requirement to manage removed sediment by spreading it over exposed areas or utilizing 

it as fill. Removed/eroded earth typically loses the cohesive properties inherent in native soil. As a result, sediments may be unacceptable 

as fill and more erosive than other, more appropriate cover materials. 

Response 

EPA notes that the 2012 CGP does not include the proposed provision to which the commenter refers. 

Comment ID 0128-A2.001.011

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 2.1.3.4 

Part 2.1.3 also proposes mandatory street cleaning and wheel wash requirements to control "track out." In doing so, it creates an 

unreasonable standard of "no visible signs" of sediment being present on impervious surfaces. However, the December 2009 C&D ELG 

rejected proposed provisions associated with mandatory wheel washing and "same-day" street cleaning because appropriate 

implementation of such provisions must be based on the particular "site's configuration." 74 Fed. Reg. at 63,018. EPA should develop 

more flexible and reasonable control practices to address any track-out concerns. 

This Part also attempts to regulate "dust" leaving construction sites. To the extent that stormwater collects dust as sediment, appropriate 

controls can be implemented to control dust-generating activities or treating the dust-laden stormwater. To the extent that EPA is 

proposing to use the NPDES permit program to regulate airborne dust clouds that may leave a construction site aloft, FSWA does not 

believe that airborne dust clouds are subject to permitting under the NPDES program. That program only regulates pollutants associated 

with certain construction operations that are discharged from a property via stormwater through a point source to a water of the U.S. 

General dust dispersion that settles off site is not subject to such permitting. 

Response 

See Response 2.14. 

Comment ID 0133-A2.001.015

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.3.4 

The proposed permit condition requires the removal of track-out sediment by the end of the same workday in which the track-out is 

discovered. Again, this condition fails to account for the unique challenges presented for linear transportation projects. Disturbed areas 
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must be kept open for the traveling public even when construction is not actively occurring. This can result in track-out sediment into 

areas outside of the project limits. The proposed timeframes also do not account for times when active construction is no longer 

occurring such as winter shut down. It would be impracticable for our maintenance forces to implement these req uirements once active 

construction is over and stabilization measures have been implemented. Additionally, no consideration is provided for rural areas where 

dirt roads are common. MDT requests that more reasonable time frames be provided and that exceptions be included for sites that have 

been temporarily or p ermanently stabilized and/or must remain open to public travel. 

Response 

See Response 2.14. 

Comment ID 0133-A2.001.016

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.3.4 

The proposed permit condition requires cover or other stabilization measures to be provided for all soil piles. This condition fails to 

address times when the piles are being actively handled. MDT recommends incorporating additional flexibility into this condition, 

including time frames for implementation. 

Response 

See Response 2.17. 

Comment ID 0153-A1.001.008

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.4 

This statement should specify "off-site" or from areas that do not directly discharge to a sediment control structure. 

Response 

See Response 2.14. 

2.1.3.5 USE OF NATIVE TOPSOIL

Comment ID 0015-A2.001.027

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.3.5 

2.1.3.5 Add additional guidance about turning or seeding stockpiles to assure they stay aerobic. 

Response 

See Response 2.18. 
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Comment ID 0017-A1.001.011

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.3.5 

9) 2.1.3.5 ‐ The guideline for limiting soil mounds to no more than 4' appears to be a random number without any basis and should be 

removed. 

Response 

See Response 2.18. 

Comment ID 0018-A2.001.001

Author Name: Pollock Dr. 

Organization: Ocean County Soil Conservation District (OCSCD) 

Issue Category: 2.1.3.5 

# 2.1.3.5 Use of native topsoil. topsoil.- OCSCD applauds the specification for utilizing native topsoil and especially the statement "to 

maximize the native topsoil's continued function, when stockpiling native topsoil, you should mound "no higher than 4 feet for less than 

1 year, and preferably less than 6 months." OCSCD would prefer to have this recommendation further specified. Maintaining a soil's 

"function" requires consideration of the all three soil quality (or health) parameters: chemical, biological and physical. 

OCSCD agrees that this approach is the most practical when the soil is suitable for vegetation growth. OCSCD in partnership with NRCS 

conducted a study which is attached. "Impact of Soil Disturbance During Construction on Bulk Density and Infiltration in Ocean 

County, New Jersey" This study was conducted of undisturbed and disturbed urban soils in Ocean County, New Jersey, to investigate the 

impact on soil infiltration rates due to modification and compaction during construction operations, to examine if the effects are 

significant enough to alter the Hydrologic Soil Group (HSG) classification or Runoff Curve Number, and to provide additional guidance 

in the use of TR-55 for the design of structural stormwater management practices. It illustrates the impact that typical construction 

practices have on the ability of soil to function. 

USDA Natural Resources Conservation Service (NRCS) in NJ regarding the use of the current New Jersey Soil Survey data on the web 

at the following URL: 

http://www.nj.nrcs.usda.gov/technical/soils/#soilsurveyproducts. This Soil Survey 

information shall be utilized by Soil Conservation Districts, the NJDA State Soil 

Conservation Committee (SSCC) as well as engineers, planners and others to 

ascertain the intrinsic characteristics, capabilities and limitations of soils. These 

factors impact engineering design. 

A2501 Requires State Soil Conservation Committee to adopt standards concerning soil restoration measures. * New Jersey rule 

amend/soil restoration signed by Governor on January 5, 2011. This new rule requires that soils be returned to functioning upon 

completion of construction activities. 

"Soil restoration measures" means those measures taken to ensure, to the maximum extent possible, cost-effective restoration of the 

optimal physical, chemical, and biological functions for specific soil types and the intended land use. 
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Response 

See Response 2.18. 

Comment ID 0025-A1.001.015

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.3.5 

DOTs typically stockpile topsoil to reuse it at the end of a project to expedite vegetative grown on the disturbed areas. To include a 

limitation of "not longer than 1 year" is problematic since some roadway projects may last longer than a year. In Arizona, the DOT has an 

agreement with the Bureau of Land Management and Forest Service that soil stockpiles will not be taller than 5 feet (Guidelines for 

Highways on Bureau of Land Management and US Forest Service Land). 

Response 

See Response 2.18. 

Comment ID 0030-A2.001.013

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.3.5 

Section 2.1.3.5, page 15 

EPA should recommend covering topsoil piles. Other criteria should be based on stability of the pile and not on height. Higher piles 

allow for smaller footprints and may allow for higher soil moisture content than shorter piles that are spread out. It is difficult to interpret

whether EPA guidelines and recommendations are actually requirements. This may be a section of the permit that needs language 

referring "to the extent feasible." 

Response 

See Response 2.17. See also Response 2.18. 

Comment ID 0046-A1.001.006

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.3.5 

What does EPA consider "Weed Growth"? The Department encourages growing grass on its topsoil piles. Having a nice thick vegetative 

growth on a humus pile is very effective at controlling erosion, retaining nutrients and increasing organic matter in the soil. This 

requirement appears to drift into invasive plant control and is not water quality based. 

Response 

See Response 2.18. 
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Comment ID 0060-A1.001.006

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.3.5 

6. Section 2.1.3.5 - This section requires the owner to stockpile and reuse native topsoil for establishing vegetation, unless infeasible. 

This requirement seems overly restrictive. Instead, EPA should specify the type of material to be used to establish vegetation and let the 

owner determine where they will get material that meets this specification. In addition, the language "unless infeasible" is subjective and 

should be deleted. This language makes it difficult for a regulator to ensure that an owner is complying with a permit requirement. 

Response 

See Response 2.18. 

Comment ID 0062-A1.001.015

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.5 

2.1.3.5 Use of native topsoil. Where disturbance to native topsoil will occur at your site, unless infeasible, you should stockpile and reuse 

it in areas that will be stabilized with vegetation if applicable. To maximize the native topsoil's continued function, when stockpiling 

native topsoil, you should mound the soil and cover to prevent soil erosion and weed growth. As a guideline, soil should be mounded no 

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

Brevard County Comment: Mounding less than 4' is impractical on most sites. Enforcement will require multiple handlings of soil. 

Reuse encourages invasive and other non desirable vegetation to sprout thus requiring the application on much more herbicides. 

Response 

See Response 2.18. 

Comment ID 0064-A1.001.013

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.3.5 

Section 2.1.3.5, page 15 - Full "Use of native topsoil" paragraph 

•Consider stating that stockpiling topsoil for extended periods can cause topsoil to become inert and, therefore, reduce likelihood of 

achieving final stabilization through 

re-vegetation. 

Response 

See Response 2.18. 
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Comment ID 0066-A1.001.017

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.5 

Discussion: The guidance in the draft permit states that soil should be mounded no higher than 4 feet and for less than 1 year, preferably 

for less than 6 months. It is unclear whether or not this is a permit requirement or just a guideline. Because of restricted and oftentimes

limited ROWs, state DOTs may need to store soil higher than 4 feet. Due to long and varying project durations this material may be 

stockpiled on site for more than 1 year. The recommendation for mounding topsoil no higher than 4 feet for less than a year to protect the 

microbial activity in the soil which would be destroyed within large stockpiles is understood. However, the recommendation for 

covering the stockpiles to control erosion and prevent weeds would also result in killing microbial activity. The impact is that you are 

destroying the nutrient and microbial value of topsoil and making it useless. Plant growth on the stockpiles is a good method for erosion 

control. 

Suggestion: Consider modifying this section's requirement to cover topsoil stockpiles, as this may result in reduced or total lack of 

microbes in the soil when it is ultimately replaced on a project site where vegetative cover may be the final BMP. This section also needs 

clarification; it is our opinion that this should not be a requirement, but more generally a best management practice guideline (i.e. 

preferred alternative). 

Response 

See Response 2.18. 

Comment ID 0076-A1.001.008

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.3.5 

1. Target requests that the EPA explain the intent of the soil stockpile limits of 4 feet high and the 1 year storage timeline. If the EPA's 

desired outcome is erosion control performance, are there alternate BMPs that would allow larger stockpiles to be stabilized longer than 

I year? 

2. Targets requests that the EPA consider adding a definition of stockpiles to the permit. 

Response 

See Response 2.18. 

Comment ID 0093-A2.001.045

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.5 
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The Draft states: "As a guideline, soil should be mounded no higher than 4 feet high for less than 1 year, and preferably for less than 6 

months." This timetable is problematic because many construction projects, especially large infrastructure projects such as highways, 

last for more than a year. At the conclusion of the project, it is common practice to reuse topsoil stockpiles to expedite vegetative growth 

on disturbed areas. 

Response 

See Response 2.18. 

Comment ID 0153-A1.001.009

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.5 

EPA should require a soil test for reuse purposes and fertilize and lime applications prior to removal from the storage pile. 

Response 

See Response 2.18. 

2.1.3.6 MINIMIZE SOIL COMPACTION

Comment ID 0015-A2.001.028

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.3.6 

2.1.3.6 Also add areas of permanent stormwater management to the areas where compaction should be avoided. 

Response 

See Response 2.19. 

Comment ID 0018-A2.001.002

Author Name: Pollock Dr. 

Organization: Ocean County Soil Conservation District (OCSCD) 

Issue Category: 2.1.3.6 

#2.13.6 Minimize Soil Compaction in areas where vegetative stabilization will occur at your site: 

a. Restrict Vehicle/equipment use or 

b. Use soil conditioning techniques 
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Response 

See Response 2.19. 

Comment ID 0062-A1.001.016

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.6 

Brevard County Comment: Soil conditioning encourages erosion during heavy rainfall events. Also raises construction costs in areas 

where additional work will occur at a later date. 

Response 

See Response 2.19. 

Comment ID 0066-A1.001.018

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.6 

Discussion: We agree that renovation of compacted soil to support vegetation growth is recommended. However, discing, deep-ripping, 

and sub-soiling is impractical and dangerous on sloped areas of 3:1 or greater (steeper). Placing equipment on 3:1 or steeper slopes 

destroys the integrity of the slope and is very dangerous to equipment operators. In many instances, these 3:1 or greater slopes are 

necessary due to ROW considerations and drainage. 

Suggestion: Do not require the minimization of soil compaction by these methods on slopes of 3:1 or greater. 

Response 

See Response 2.19. 

Comment ID 0076-A1.001.009

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.1.3.6 

2.1.3.6-Soil Compaction: Is infiltration the desired outcome of this requirement? For sites that have known soil contamination, is 

infiltration still a priority for the EPA? Target is concerned that this requirement seems site specific and does not utilize best design 

practices for all sites to ensure environmental priorities are realized. 

Response 

See Response 2.19. 

Comment ID 0080-A2.001.018

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 
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Issue Category: 2.1.3.6 

7. Minimize soil compaction and preserve topsoil - Both of these practices are supported by the COA in an effort to minimize 

stormwater runoff as it promotes infiltration techniques which is a key component of LID implementation strategizes for the fully 

developed site. 

Response 

See Response 2.19. 

Comment ID 0110-A1.001.004

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.1.3.6 

On steep slopes, equal to or greater than 30%, a minimum level of compaction will be required (suggest greater than 85%) to ensure that 

the slope will be geotechnically stable. Other geotechnical considerations should also be reviewed by the designer. 

Response 

See Response 2.19. 

2.1.3.7 STABILIZE CONSTRUCTION ENTRANCE AND EXIT POINTS 

[REQUEST FOR COMMENT]

Comment ID 0028-A1.001.001

Author Name: Jones P. 

Organization: 

Issue Category: 2.1.3.7 

Essentially, with or without a construction wheel wash (not feasible in freezing temperatures), it would be impossible to "Eliminate" 

track-out with "no visible signs of soil tracking from vehicles". Even the most meticulous sites will have evidence of some tracking, even 

in dry summer weather. 

Proper stabilized exits, wheel washes, and daily sweeping will not totally eliminate track-out; there will still remain "visible signs of soil

tracking". 

This phrase will essentially place every construction site in non compliance at all times. The verbiage utilized in the 2008 CGP "track out 

should be minimized to the maximum extent practicable" should be retained. 

Response 

See Response 2.20. 

Comment ID 0030-A2.001.015

Author Name: Keyes Jennifer 
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Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.3.7 

Section 2.1.3.7 b, page 16 

Wheel wash outs are only effective for limited projects for most construction sites. In many cases, they tend to cause more of a problem. 

Water is also not always available, particularly in arid, rural locations such as oil and gas developments, rural utility projects, and 

roadway projects. Many projects may not need wheel washouts or traditional rock VTCs that extend for a minimum of 50 feet (see 

comment 9). Many areas do use mechanical sweeping to address sediment track out and this is not addressed in the CGP. Also, 

"eliminate" is an absolute term that is nearly impossible to truly comply with; "minimize" is a more reasonable term in terms of 

achieving compliance. 

Response 

See Response 2.20. 

Comment ID 0037-A1.001.011

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.3.7 

It is requested that EPA clarify whether the requirement to wash vehicle tires or provide a similarly effective way of preventing track out 

(Part 2.1.3.7b) is in addition to the requirement to stabilize all entrance and exit points. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0038-A1.001.013

Author Name: Minervini W. 

Organization: 

Issue Category: 2.1.3.7 

Change "course aggregate" to "coarse aggregate." 

Response 

See Response 2.20. 

Comment ID 0046-A1.001.007

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.3.7 

These BMPs are effective and should be required. However, it is not attainable: to require "no sediment is discharged during storm 

events". 

2.1.3.7.b. Eliminate track-out from vehicles. 

Track-out cannot be eliminated but it can be controlled. It is not prudent to require wheel washing in New Hampshire. It is cold in the 
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winter and wheel washing is not feasible. It would be very problematic if it were required. Stabilized construction entrances and e:xits, 

and sweeping are generally very effective at controlling track-out. EPA should also consider contacting equipment manufacture to 

determine the effect on construction vehicles, especially braking systems. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0047-A2.001.011

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.3.7 

Section 2.1.3.7b, page 16 

Projects will never be able to completely "eliminate" track-out. The more appropriate term would be to "minimize" this type of pollutant 

source. Requiring wheel wash outs is not an effective BMP and in some cases will cause other problems especially with controlling the 

wastewater and disposal methods. Some types of construction projects just do not have the space for such a BMP (see comment 8 above). 

In addition, water is also not always available at the site which would then require trucking it in and storing it onsite. The more 

appropriate BMP, which is not addressed in the CGP, would be to use mechanical sweeping to address sediment track out. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0053-A2.001.011

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.3.7 

b. Eliminate track-out from vehicles. Some effort should be made to define the difference between "Trackout" and "Staining". Trackout 

has been defined as materials that adhere to and agglomerate on the surfaces of paved areas accessible to the public. Staining on the other 

hand is fine material, or even a dried liquid that remains in the cracks/crevices of pavements accessible to the public that cannot be swept 

up or remediated. Typically, violations are not assessed for staining. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0062-A1.001.018

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.7 

c. Wheel washdown requirements. If you wash vehicle tires before exiting the site: i. Identify and designate wheel washdown areas to be 

used at your site, and clearly flag off such areas or mark them with signs; 

ii. Conduct wheel washdown outside of any buffers established consistent with Part 2.1.2; 

iii. Refrain from the use of soaps and solvents; and 
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iv. Direct wash water into a sediment trap or alternative control that provides equivalent or better treatment prior to discharge. 

Brevard County Comment: 

1) And if water is not available? 

2) What of high water tables where infiltration is not feasible? 

3) Small operator penalty. 

4) Restricted access sites will limit feasibility. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0064-A1.001.015

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.3.7 

Section 2.1.3.7.b, page 16 - Full "Eliminate track-out from vehicles" paragraph 

•This section is potentially redundant with 2.1.3.4. Consider deleting this paragraph. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0064-A1.001.016

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.3.7 

Section 2.1.3.7.b, page 16 - Full "Eliminate track-out from vehicles" paragraph 

•The use of "Eliminate" is a very definite word regarding track out. A change to "minimize track out to MPE" will be more achievable. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0065-A1.001.013

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.1.3.7 

Section 2.1.3.7(a) requires that all construction entrance and exit points be stabilized for a minimum of 50 feet from the entry or exit. It 

will not be possible to comply with this strict 50- foot requirement in all instances. Some sites lack adequate space to stabilize the 

entrance and/or exit a minimum of 50 feet. 

CCWC recommends that EPA modify Section 2.1.3.7(a) to allow alternative BMPs if space is limited followed by evaluation of the 
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effectiveness of those BMPs. For example, possible alternatives where space is limited include establishing a suitable exit point for 

wheel wash downs in order to prevent tracking sediment offsite. Another alternative might be designating vehicles for onsite use only 

and not permitting any other vehicles on the jobsite. 

Response 

See Response 2.20. 

Comment ID 0066-A1.001.020

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.7 

Discussion: Because of limited ROW and safety concerns, when active traffic must be maintained through the construction project, it 

may be unreasonable not to have some material tracking on public roads within the project limits (the material has not left to project 

limits). It is not practicable to suggest that no off site tracking occur during storm events. Previously the requirement was to minimize 

off-site tracking to the maximum extent practicable. 

Suggestion: Suggest revising this section to allow SWPPP to address this issue by implementing proper BMPs for the project (e.g. daily 

sweeping). 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0068-A1.001.019

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.3.7 

Part 2.1.3 also proposes mandatory street cleaning and wheel wash requirements to control "track out." In doing so, it creates an 

unreasonable standard of "no visible signs" of sediment being present on impervious surfaces. However, the December 2009 C&D ELG 

rejected proposed provisions associated with mandatory wheel washing and "same-day" street cleaning because appropriate 

implementation of such provisions must be based on the particular "site's configuration." 74 Fed. Reg. at 63,018. EPA should develop 

more flexible and reasonable control practices to address any track-out concerns. In fact, the2008 CGP language (see Part 3.1(B)) 

provides such flexibility and should be used in lieu of the overly-prescriptive language in the Proposed CGP. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0068-A1.001.020

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.3.7 

Part 2.1.3 imposes stringent entrance and exit point requirements that require stabilization for a minimum of 50 feet as well as a standard 

that "no" soil can be left exposed and "no" sediment can be discharged during storm events. The basis for the 50-foot limit is unclear and 
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therefore appears to create an arbitrary standard. The combination of the arbitrary 50-foot limit as well as the unreasonable standards that 

"no" soil can be left exposed and "no" sediment can be discharged creates an difficult and unreasonable requirement. The 2008 CGP 

language should be used in lieu of the Proposed CGP provision. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0071-A3.001.004

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.3.7 

•Part 2.1.3.7 Entrance and Exit Points. (b) Eliminate track-out from Vehicles and Part 2.1.3. Good housekeeping requirements. (a) 

Remove deposited sediment. Part 2.1.3.7(b) contradicts Part 2.1.3.4 (a), which requires sweeping at the end of the day in instances of 

track out, whereas Part 2.1.3.7(b) requires the elimination of track out. Elimination is not feasible. Even the suggested wheel wash 

could leave staining due to dust or water residue. Altering the language from "eliminate" to "minimize, control, or curtail" is a 

reasonable alternative. Additionally, changing "no visible signs of tracking" to "no visible signs of tracking accumulations" provide a 

feasible alternative. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0071-A3.001.005

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.3.7 

Implementing a wheel wash on a site restricted by ROW or geography could be difficult to impossible, as the wheel wash requires a 

sediment trap. In addition, the wheel wash will cause a backup in traffic, which cannot be accounted for on a restricted site. A wheel 

wash might be merited on one site and not another. Tracking on sandy soils might be accomplished on one site with a 20 ft. tracking pad, 

but on a site with clays, even a 50 ft. might not be adequate. Add language that states "vehicle washout is required on sites where tracking 

cannot be controlled with other methods". 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0071-A3.001.014

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.3.7 

•Part 2.1.3.7 (b) Eliminate Track-out from Vehicles contradicts Part 2.1.3.4 (a) Remove deposited sediment, which requires sweeping at 

the end of the day in instances of track out, whereas this Part requires the elimination of track out. 

Response 
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See Response 2.20. Refer also to Response 2.14. 

Comment ID 0071-A3.001.015

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.3.7 

•Part 2.1.3.7 (b) Eliminate track out from vehicles. This Part requires that vehicles wash tires before exiting the site or provide a similarly 

effective way of removing sediment from wheels and preventing track out and lists rumble strips and aggregate as examples. Does this 

mean that a tracking pad alone is enough? 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0075-A2.001.009

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.3.7 

A better definition of "All construction entrance and exit points" is needed for linear projects. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0077-A1.001.001

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 2.1.3.7 

The permit proposes to require construction entrances to be fifty feet long, and to require tire washing. Neither of these is practical for 

residential home construction. The Blue Book allows for a thirty foot length for residential sites. Tire washing is not practical for most 

small sites. The requirement to eliminate track‐out should be simply that no significant signs of soil tracking shall be present on 

roadways. 

Response 

See Response 2.20. 

Comment ID 0087-A1.001.021

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.7 

Finally, the CGP includes wheel washdown requirements at Section 2.1.3.7.c, which are far too detailed for a general permit and should 

be addressed, if at all, in a permittee's SWPPP. 
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Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0088-A1.001.019

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.1.3.7 

Among the unrealistic requirements are: 

-- In this region, Class V gravel mix is most often used at an 8 to 12 inch thickness. This works much better and is more available than 

crushed rock or coarse aggregate. This is also most often recommended by geotechnical engineers. We would use a geo-fabric if the 

geotechnical investigation recommends it 

Response 

See Response 2.20. 

Comment ID 0091-A2.001.004

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.1.3.7 

4. Fact Sheet Item 5. Part 2.1.3.7.a: The statement "No visible signs of soil tracking from vehicles should be present on public or private 

roadways exiting the site" is not practical. If BMPs are in place and small amounts of sediment are still tracking out of the site, it seems 

reasonable to implement an additional daily BMP to sweep or remove sediments tracking out. Request a change to above statement to 

allow minimal amounts of track out with a requirement to sweep tracked sediments at the end of each work day. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0093-A2.001.004

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.7 

Other provisions of the Draft are similarly overreaching. Part 2.1.3 of the Draft would mandate street cleaning and wheel wash 

requirements to control "track out." In doing so, it would create an unreasonable requirement for "no visible signs" of sediment being 

present on impervious surfaces. In December of 2009, when it took what it thought would be final action on the C&D ELG, EPA rejected 

such mandates for wheel washing and "same-day" street cleaning, because the appropriate implementation of such provisions must be 

based on the particular "site's configuration." See 74 Fed. Reg. at 63,018. EPA should continue to take this more flexible and reasonable 

approach to the control practices necessary to address any track-out concerns. 

Response 

See Response 2.20. Refer also to Response 2.14. 
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Comment ID 0093-A2.001.047

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.7 

AGC also finds the provision prohibiting sediment discharge from a construction exit to be unreasonable. Construction exits by their 

function remove mud from vehicle wheels. This mud accumulates within the construction exit aggregate. During a single storm event 

mud can accumulate to the point where it discharges as storm water runoff passes through the aggregate. In addition, EPA in Subsection 

B states that "No visible sign of tracking from vehicles should be present on public or private roadways exiting the site." The term "No 

visible" is too restrictive and unreasonable. Even the most rigorous methods of mud removal such as wheel washing will leave traces of 

silt on a roadway. It is impossible to completely remove all traces that construction vehicles are exiting a site. EPA should remove this 

provision. 

Finally, it is common for construction sites to have separate (one-way) construction entrance and exit points. Limited or no stormwater 

management value is gained from stabilizing, or installing a construction exit, at a designated one-way construction entrance point. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0093-A2.001.048

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.7 

The Draft states: "No visible signs of soil tracking from vehicles should be present on public or private roadways exiting the site." This 

is impossible even when exiting from fields which have no construction on them. The phrase "exiting the site" must be removed. In 

addition, EPA should allow for the fact that often some fine materials may remain in the cracks/crevices of pavement; it may be visible 

to the public, but it cannot be swept up or remediated easily. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0096-A1.001.030

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.3.7 

The 50-foot minimum length for stabilizing the construction entrance is not possible for 

small construction sites, such as single lots within a larger subdivision. Such sites can also be 

found in urban areas or where a locality may seek to increase the density of housing, in which 

case this requirement cannot be met. A clause should be added to the language of the 50-ft 

stabilization requirement that specifically exempts single lots from this requirement and also 

recognizes that small sites may be limited by size of the permitted building site, thus may have 

limited opportunities to install stabilized construction entrances at the site. Perhaps including 

language such as “as feasible” or “where practical” would provide sufficient flexibility. 
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Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0096-A1.001.031

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.3.7 

Part 2.3.1 proposes mandatory street cleaning and wheel wash requirements to control 

“track out.” In doing so, it creates an unreasonable standard of “no visible signs” of sediment 

being present on impervious surfaces. However, the final C&D ELG rejected proposed 

provisions associated with mandatory wheel washing and “same-day” street cleaning because 

appropriate implementation of such provisions must be based on the particular “site’s 

configuration.” [FN 57] EPA should develop more flexible and reasonable control practices to address 

any track-out concerns. 

[FN 57] 74 Federal Register 63,018 (2009). 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0117-A1.001.001

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 2.1.3.7 

The permit proposes to require construction entrances to be fifty feet long, and to require tire washing. Neither of these is practical for 

residential home construction. The Blue Book allows for a thirty foot length for residential sites. Tire washing is not practical for most 

small sites. The requirement to eliminate track‐out should be simply that no significant signs of soil tracking shall be present on 

roadways. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0121-A2.001.016

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 2.1.3.7 

Section 2.1.3.7.b indicates that the permittee must eliminate track-out (sediments). Although there are a number of measures that can 

reduce track-out, it is not possible to completely eliminate it under all conditions. For example, during cold weather conditions, wheel 

washing is not practicable. Furthennore, like all mitigation measures, the other methods described in the pennit, rumble strips and 

aggregate stone, are effective at minimizing track out rather than completely eliminating it. Therefore, the pennit should be revised to 

require minimizing (not eliminating) track-out. 
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Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0127-A2.001.004

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 2.1.3.7 

Section 2.1.3.7.a 

Proposed Language 

Stabilize construction entrance and exit points. You must stabilize all construction entrance and exit points for a minimum of 50 feet 

from the point of entry/exit so that no soil is left exposed and no sediment is discharged during storm events. Examples of stabilization 

techniques include use of a 6‐inch thick pad of crushed rock, course aggregate, or stone (greater than 1.5 inches) with an underlying filter 

fabric. 

Concern 

Areas that have a directional one‐way entrance should not be required to have stabilized entrances, only stabilized exits. This is an 

unnecessary cost and maintenance burden. 

Suggested Correction 

Specify exit points only requiring stabilization. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0131-A1.001.006

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.1.3.7 

Part 2.1.3.7 (a) states "You must stabilize all construction entrance and exit points for a minimum of 50 feet from the point of entry/exit 

so that no soil is left exposed and no sediment is discharged during storm events." Requiring that no sediment is discharged during storm 

events is a discharge prohibition that is unrealistic (i.e., minor trackout and subsequent clean-up with no further downstream transport on 

roadway surfaces occurs at almost every site) and conflicts with C & D rule 450.21 (a) (5) which requires the minimization of sediment 

discharges from the site. Part 2.1.3.7 (b) is titled "Eliminate track out from vehicles". Sediment is not listed as a discharge prohibition in 

the C & D rule. Further, sediment is not included in part 2.3.2 of the Proposed CGP titled "prohibited discharges" nor is it included in 

Appendix "A," definitions of prohibited discharges. LBA respectfully submits that that Part 2.1.3.7 (a & b) should be reworded to 

"minimize the discharge of sediment" rather than "eliminate" or "prevent" the discharge of sediment. 
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Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0139-A2.001.001

Author Name: Aho Andrew 

Organization: Geosynthetic Materials Association (GMA) 

Issue Category: 2.1.3.7 

GMA recommend the entrance and exit points be stabilized at a minimum of 50 feet. GMA also recommends additional language be 

added to 2.1.3.7 Entrance and exit points, subsection a., delete the term "filter fabric" and replace it with "geotextile and/or geogrid." 

Response 

See Response 2.20. 

Comment ID 0146-A1.001.001

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 2.1.3.7 

2.1.3.7b: Requires eliminating track out, providing a wheel wash, and "No visible signs of soil tracking from vehicles should be present 

on public or private roadways exiting the site." 

Eliminating track out is possible. However, wheel washes are not feasible in areas where public water is not readily available, and often 

create a bigger mess to work with at the entrance/exit of the site. A well-constructed construction entrance and daily street cleaning (not 

just sweeping - sometimes bobcats or shovels are needed) should be substituted. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0153-A1.001.011

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.7 

The wheel/wash is outside of the scope and should not be required. 

Response 

See Response 2.20. 

Comment ID 0159-A1.001.006

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.1.3.7 

We are extremely concerned about the permit language, "that no soil is left exposed and no sediment is discharged during storm 
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events..." The no sediment discharge language would require permitees to establish and maintain conditions that may not exist when the 

site is in its natural state. This language appears to exceed water quality standards and exceed performance criteria elsewhere in this 

permit. EPA should show cause for this level of regulation 

Response 

See Response 2.20. Refer also to Response 2.14. 

2.1.3.7Q STABILIZING ENTRANCE AND EXIT POINTS FOR A MINIMUM 

OF 50 FEET

Comment ID 0015-A2.001.006

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.3.7Q 

Q5. 50' stabilized entrance - Agree. Need to add additional guidance for paved surface access points-are they considered stabilized? 

They likely need additional bumper pad or other controls to shake off loose materials from tires. 

Response 

See Response 2.20. 

Comment ID 0021-A1.001.016

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.1.3.7Q 

5. CGP Section 2.1.3.7 proposed a new requirement for the stabilization of entrance / exit points for a minimum of 50 feet. There are 

situations where is infeasible. For example, sometimes there are small satellite areas of a construction site separate from the main site 

where a contractor constructs a small building. This small separate site can often times has limited access and limited material laydown 

where a 50 foot stabilized entrance in not feasible. Since these sites are small, so is the traffic and potential for sediment transport 

considering the limited workers in the area and the small amount of disturbed area. I agree with the 50 foot minimum for the main 

entrances/exits and most situations but it is of my opinion that additional verbiage be incorporated to relieve the operator of these 

requirements where 50 foot is not able to be achieved. We could document the reasons for not being able to meet the requirement in our 

SWPPP. 

Response 

See Response 2.20. 

Comment ID 0028-A1.001.002

Author Name: Jones P. 

Organization: 

Issue Category: 2.1.3.7Q 
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Additionally, EPA has requested comments on the feasibility of the requirement to stabilize entrance and exit points for a minimum of 50 

ft. This requirement is not always practicable, and sometimes not needed. A good example is a single building lot where the structure and 

or construction activities will incorporate most of the construction area. The requirement of a stabilized exit would not be feasible due to 

useable area constraints, and may even result in a safety hazard. Minimum standards, in these cases could include daily sweeping, 

limiting access to the site by vehicles, etc. 

I believe most areas over 1 acre could include a stabilized entrance/exit, however, there should remain latitude for the SWPPP designer 

to make the determination based on specific site requirements. 

Response 

See Response 2.20. 

Comment ID 0030-A2.001.014

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.3.7Q 

Section 2.1.3.7, Page 16 

There is a great deal of variation regarding the types of sites that are covered under this CGP. Most standard details for traditional VTCs 

with rock have a minimum 50-foot length. However, there are small projects that may be part of a larger plan of development (or linear 

projects) where traditional VTCs will cause more disturbance than benefits. These projects often use TRMs or proprietary products such 

as mud mats. Mud mats come in 15-foot sections and are used when there is limited vehicle access into vegetated areas, such as pole 

removals or a bore pit for the installation for an underground utility. Also, not all sites need a stabilized construction entrance (for 

example, a well pad off a dirt road or other rural sites accessed by dirt road). Construction sites are highly variable in nature and may not 

be large subdivisions in urban or suburban areas where requiring a 50-foot construction entrance is appropriate. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0037-A1.001.010

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.3.7Q 

A 50 foot stabilized construction entrance/exit is not practicable on many small single family home lots particularly if building setback is 

less than 50 feet from the street and construction access to the lot is principally via the future driveway. For example, it is not uncommon 

to have a 20 or 25 foot setback in subdivisions in our area. For these types of projects, the minimum stabilized construction entrance/exit 

length should be based on the setback or distance between the building and the street used for ingress and egress by construction traffic. 

It is recommended that EPA modify this Part to account for this type of situation. 

Response 

See Response 2.20. 

Comment ID 0047-A2.001.010
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Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.1.3.7Q 

Section 2.1.3.7, page 16 

Construction sites are very different and may not necessarily be large developments where requiring a 50-foot construction entrance is 

appropriate. For example, small projects that may be part of a larger plan of development where traditional rock vehicle tracking control 

pads will cause more disturbance than benefits. Or linear projects, such as pole removals or a bore pit for the installation for an 

underground utility, that have limited space for vehicle access and a typical rock vehicle tracking control pad. Xcel Energy has often 

used other alternative BMPs in these types of situations such as regular sweeping, turf reinforcement mats or proprietary products such 

as mud mats. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0053-A2.001.010

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.3.7Q 

a. Stabilize construction entrance and exit points. The Permit does not address the width of the stabilized construction entrance points. 

Additionally, construction entrance/exit points may not be able to realize the full 50 foot length from the point of entry/exit. 

Alternatively, permittees are able to stabilize the entry/exit point to the full extent of property that they own or have a temporary 

construction easement. 

Maricopa County Air quality Department Rule 310 states this scenario. 

"Minimum dimensions must be 30 feet wide by 3 inches deep and 50 feet long, or the length of the longest haul truck, whichever is 

greater. If an unpaved surface exit does not have adequate width to install a 30-foot wide gravel pad, then the width of the gravel pad 

must cover the full width of the unpaved surface exit and such shorter width must be adequate to prevent trackout." 

Similar language could be drafted in the EPA CGP. 

Response 

See Response 2.20. 

Comment ID 0055-A1.001.004

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 2.1.3.7Q 

ODOT does not recommend specifying a minimum distance for stabilization on either side of the point of entrance/exit. The requirement 

also states "no sediment is discharged during storm events." The 50-feet requirement for stabilization does not ensure compliance. A 

contractor may better meet this requirement with less stabilized distance, but the incorporation of other methods. The specified distance 

does not provide for flexibility in meeting this requirement and may actually promote sediment discharge in certain instances. 
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Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0061-A1.001.011

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.1.3.7Q 

In LCPs, construction equipment proceeds along the narrow right-of-way and there is neither a reason nor a feasible method to create 

stabilized entry or exit points. Doing so typically would be infeasible, because development of such points would require disturbance 

extending beyond the narrow right-of-way that legally constrains where work can be done. 

Even if land were available, development of stabilized entry/exit locations would result in the disturbance of a greater area than is 

required to perform the work, doing so would be counterproductive for environmental protection. That is because equipment used in 

LCPs does not repeatedly arrive at or depart from the work site through the same entry and exit points, and the on-road transport vehicles 

typically do not come in contact with the disturbed portion of the site. Physically creating a formal construction entrance/exit at a point 

that will be used by vehicles only once or a few times therefore would disturb more area and create more run-off risk than it would 

prevent. 

To address this circumstance, we suggest that a proviso be added to Part 2.1.3.7. a stating that, for LCPs, stabilization need only occur 

where there exists an entry or exit point that is used repeatedly during the course of construction. 

Response 

See Response 2.20. 

Comment ID 0062-A1.001.017

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.3.7Q 

Request for Comment: EPA requests comment on the feasibility of the requirement to stabilize entrance and exit points for a minimum 

of 50 feet. If this distance is not practicable at sites, explain why and what would you suggest as a minimum threshold for stabilizing 

these areas and for what size sites. 

Brevard County Comment: Narrow site access pts across/ beside waters of US will render 50' minimum problematic. Many sites 

(majority in Brevard County) have access near waters of the US. Small scale crossings of minor ditch systems combined with 50 buffer 

requirement will result in contradictory requirements at some sites. 

Response 

See Response 2.20. 

Comment ID 0064-A1.001.014

Author Name: Dees Richard 

Organization: City of Meridian 
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Issue Category: 2.1.3.7Q 

Section 2.1.3.7 .a, page 16 - Full "Stabilize construction entrance and exit points" paragraph 

•DOT projects and pipeline projects often have tight right-of-way that can make meeting this requirement difficult. Not specifying a 

distance while highlighting requirements of 

2.1.3.4 could be a good compromise. 

Response 

See Response 2.20. 

Comment ID 0066-A1.001.019

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.3.7Q 

Discussion: Because of restricted/limited ROW, it may be impossible to have 50 feet reserved for these entrance/exit construction points.

Additionally, the width of the construction may actually be less than 50 feet. 

Suggestion: Language should be added to the permit that allows some flexibility on this item based on project dimensions and ROW 

constraints. 

Response 

See Response 2.20. 

Comment ID 0067-A1.001.017

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.1.3.7Q 

B. The draft CGP requires a 50-foot minimum length for construction entrance/exit points to allow for removal of dirt and mud from 

construction equipment to minimize off-site tracking. Meeting this requirement will not always be compatible with ROW width and 

orientation. Entergy requests that EPA remove this requirement for linear ROW projects. 

Response 

See Response 2.20. 

Comment ID 0069-A1.001.003

Author Name: Cramer M. 

Organization: 

Issue Category: 2.1.3.7Q 

3. Part 2.1.3.7.a. of the draft EPA CGP requires operators to stabilize all construction entrance and exit points for a minimum of 50 feet 

so that no soil is left exposed and no sediment is discharged during storm events. Linear construction projects typically do not have a 

singular entrance and exit point over the life of the project and a temporary entrance/exit location may not have sufficient space for a 50 

foot structure that can achieve these requirements. EPA should consider differentiating between permanent and temporary entrance/exit 
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locations, or provide some flexibility in this length depending on the site layout. 

Response 

See Response 2.20. 

Comment ID 0071-A3.001.027

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.3.7Q 

•Part 2.1.3.7 (a) Stabilize construction entrance and exit points. A 50 ft. pad is not always feasible. Linear transportation projects are 

limited by ROW, utilities and geography. Sometimes there is simply not 50 ft. available for a tracking pad, for example highway 

medians. Additionally this limited space also poses safety issues, such as when installation interferes with providing a clear shoulder for 

vehicles to pull off the highway. In such cases CDOT frequently needs to alter the design and add additional BMPs, such as sweeping. A 

benchmark for alternate technologies similar to the 50 foot buffer benchmark might be a feasible alternative. There are constantly new 

technologies or innovative site techniques that might be as effective or more effective than a tracking pad. A way to evaluate these 

methods (rumble strips, bamboo mats, etc.) would allow greater flexibility and compliance. Additionally, administrative controls such as 

more frequent sweeping (end of day, throughout the day, as determined by site conditions, etc.) and restricting access to essential 

vehicles. Administrative controls such these, use in combination with a modified tracking pad provide a reasonable alternative. These 

practices are essential when ROW is restrictive on a linear project. A 50 ft. pad might be practical on larger sites, but often the restriction 

is due to width versus total acreage. 

Response 

See Response 2.20. 

Comment ID 0072-A2.001.006

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.1.3.7Q 

The establishment of stabilized entrance and exit points is much more practical when dealing with one or two points of entry per job site, 

such as when constructing a large box store or small subdivision. However, the linear nature of highway projects, often traversing 

several miles within a given corridor, leads to many access points along the project alignment. MoDOT has found that installing and 

maintaining stabilized construction entrances (our contractors primarily utilize rock/aggregate entrances) at each of these points can be 

extremely costly and problematic. Problems arise when the continual passage of equipment causes the interstices of the compacted rock 

to fill with sediment and the control device is rendered ineffective. The contractor must then either clean or replace the rock. This is a 

recurrent process that has become a point of contention on many jobs. The cost of installing a wheel wash station at each entrance/exit 

would be much more cost prohibitive. As often as stabi lized entrances/exits become ineffective, most contractors find it necessary to 

maintain clean pavement by supplemental pavement scraping and sweeping. 

Additionally, though a 50-foot stabilized construction entrance may be desirable, requiring a 50-foot minimum stabilized entrance may 

be impractical on many highway jobs where right-of-way is limited and active grading for new or additional lanes may be just a few feet 

away from existing lanes. 
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In this scenario, where cuts or fills are in proximity to existing roadways, it would not be possible to install the required 50 feet when 

grading is taking place 10 to 20 feet away from existing lanes. Suggested language for this Part would be: Where practical andfeasible, 

you must stabilize all construction entrance and exit points for a suggested distance of 50 feet Fom the entry/exit so (hat no soil is left 

exposed and no sediment is discharged during storm events. When necessary, supplemental pavement scraping and/or sweeping may be 

necesswy at entry/exit points to maintain clean pavement on public or private roadways. (Also, it seems reasonable that if vehicle 

track-out is located upgrade of an effective sediment capture device, then the sediment capturing BMP should be a recognized practice 

for dealing with track-out.) 

In line with the above statement, and also under this Part, MoDOT would like there to be language that would protect permit holders 

from being held liable for non-construction vehicle track-out resulting from day to day activities of local patrons in proximity to the 

construction site. In past regulatory action, MoDOT has been cited for track-out associated with situations like rural mailbox turnouts, 

agricultural field entrances, rural county road entrances and private driveway entrances that line highway corridors and are often found 

within the project limits of construction jobs. Though many times these types of entrances do introduce sediment and/or gravel onto our 

paved roadways, these materials are not the result of construction vehicle track-out, and therefore should be exempt. 

A suggested note for this Part would be: Note: Permittees are only responsible for track-out materials that originate from 

construction-related ingress and egress from construction sites, and shall not be held accollntable for non-construction related track-ollt 

associated with mailbox turnouts, agricultural field entrances, rllral county road entrances, private driveway entrances, etc. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0074-A2.001.008

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.1.3.7Q 

Having a minimum of 50 ft is acceptable as long as there are variances given for exceptional circumstances. 

Response 

See Response 2.20. 

Comment ID 0080-A2.001.009

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.3.7Q 

Partner Response: The minimum 50-foot requirement seems to be practicable for the majority of construction sites. However, on small 

urban infill development and redevelopment (retrofit) sites with restricted access and limited plan area available, meeting this 

requirement is not always possible. In these cases language stating why the 50-foot criteria cannot be achieved could be clearly 

documented in the SWPPP. It is suggested that in these cases this approach would be acceptable to the EPA. This language should be 

added to the proposed CGP. It is recommended that the EPA also add language that states that in addition to the 50-feet minimum criteria 

that all vehicles entering and exiting the construction site must use or drive over the BMP when gaining access or leaving the site. Our 

experience has been that the Vehicle Tracking Control (VTC) BMP is not always utilized as the only points of access and egress. 
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Response 

See Response 2.20. 

Comment ID 0085-A2.001.007

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.1.3.7Q 

This requirement is reasonable. In the following Part 2.1.4.1.b, EPA should clarify whether visible soil tracking from vehicles constitutes 

a violation of the CGP. The current language only mandates washing or similar sediment removal techniques, it does not set an 

enforceable standard for performance, ie. no sediment may be tracked off site. 

Response 

See Response 2.20. Refer also to Response 2.14. Refer also to Part 2.1.2.3 of the 2012 CGP. 

Comment ID 0087-A1.001.039

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.1.3.7Q 

The requirement in Section 2.1.3.7.a to stabilize entrance and exit points for a minimum of 50 feet is excessive and particularly 

unworkable for linear projects, as it will rarely be compatible with right-of-way width and orientation. For example, entrance and exit 

points often cannot be stabilized for a minimum of 50 feet for linear projects because the area available for tracking control is constrained 

by conditions where the access points for dirt roads meet the paved roads. Also, often there are not main or permanent construction 

entrances associated with a linear utility construction area. Access points are usually provided by landowners, and there may be several 

that are infrequently used along the length of the right-of-way. Some landowners' properties are residential or agricultural, and the 

owners understandably will not allow for a 50-foot rocked area in their fields or lawns. Wheel wash areas are equally impractical in these

situations. Use of tracking controls such as rattle plates, where necessary, and/or daily (i.e., on days with construction activities) removal 

of any sediment tracked onto paved surfaces is more feasible. Because many entry/exit points for linear projects are spread out over the 

length of the line and do not have a high frequency of traffic like that found on traditional projects, there should be no minimum 

threshold for stabilization of these areas on linear projects. 

Response 

See Response 2.20. 

Comment ID 0088-A1.001.018

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.1.3.7Q 

Among the unrealistic requirements are: 

-- a 50 foot access drive is feasible on only a few of our substation projects and practically none of our line projects 
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Response 

See Response 2.20. 

Comment ID 0090-A1.001.016

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.3.7Q 

EPA has stated in the Notice that its entry and exit stabilization requirements from Part 2.1.3.7of the Draft Permit reflect a concern that 

operators should remove sediment deposits that are tracked out of the site or accumulated near sediment controls, to protect on-site 

controls and prevent discharge to surface waters.[FN 8] EPA requested comment on its proposal to require stabilization of all such points 

for a minimum of 50 feet into the operation area. For the following reasons, AGA urges EPA to exclude linear projects from this 

requirement. 

Pipe installation projects often take place along a public ROW or in utility easements where the purported "entry" and "exit" points from 

the ROW are merely pipeline installation work space facilitating on-road and off-road activity, staging areas for storage, 

accommodations for projects in curved areas, or drop off points along the project site. (See Exhibits). EPA should not treat these points 

of ingress and egress as "entrance and exit points" in the scope of this rule. AGA urges EPA to clearly exempt linear projects from Part 

2.1.3.7: "where a pipeline construction project operates parallel to and within 50 feet of a public ROW or a private utility easement on 

private landowners' access roads, the points of ingress and egress between the public road or easement and the adjacent operating area 

does not constitute an "entry" or "exit" for the purposes of this subsection." While this subsection concerns sediment deposit and tracking 

concerns, linear pipeline projects already employ best practices to minimize ground disturbance and maintain clear, unsoiled roadways. 

Examples include the use of timber mats and street sweepers. Thus, AGA asks EPA to narrowly define "entry and exit" points for the 

purpose of stabilization activity to exclude working points of ingress and egress in pipeline linear projects. 

[FN 8] 76 Fed. Reg. at 22888; Proposed CGP, at, ¶ 2.1.3.7. at 23. 

Response 

See Response 2.20. 

Comment ID 0093-A2.001.046

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.7Q 

EPA has requested comment on the feasibility of the requirement to stabilize entrance and exit points for a minimum of 50 feet. 

The current wording of this part is unacceptable to AGC. The language should read 50 feet in length to eliminate confusion. The current 

wording would require stabilization of all points (presumably in all directions) 50 feet from the point of exit or entrance. On a home site 

this is the whole front yard. 

Length is only one factor which must be balanced with others including available space for safe ingress and egress to the construction 

area. EPA should allow the site operator flexibility to stabilize the proper width distance as necessary for anticipated traffic. 
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In addition, EPA must also recognize that a 50-foot limit is not practical at all sites. AGC recommends that EPA provide an exemption 

for space constrained projects such as highway projects where work area space may not allow a 50-foot construction exit (e.g., within 

medians of roadways) or projects in highly developed areas such as central cities. 

Response 

See Response 2.20. 

Comment ID 0097-A1.001.004

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 2.1.3.7Q 

5. Wrong section noted - 2.1.3.7; agree with 50 feet. 

Response 

See Response 2.20. 

Comment ID 0097-A1.001.005

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 2.1.3.7Q 

6. Wrong section noted - 2.1.4.5; guidelines are acceptable 

Response 

See Response 2.20. 

Comment ID 0103-A3.001.007

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.1.3.7Q 

In Part 2.1.3.7.a Stabilized construction entrance and exit points, EPA requires permittees to stabilize all construction entrance and exit 

points for a minimum of 50 feet from the point of entry/exit so that no soil is left exposed and no sediment is discharged during storm 

events. 

TCEQ believes the distance of 50 feet is arbitrary and may not be feasible, practical or necessary for many sites. TCEQ believes the 

specific distance should be left at the discretion of the permittee, and recommends this requirement follow 40 CFR §450.21(a)(6), which 

requires the controls be designed, installed, and maintained to "provide and maintain natural buffers around surface waters, direct 

stormwater to vegetated areas to increase sediment removal and maximize stormwater infiltration, unless infeasible;....". 

Response 

See Response 2.20. 
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Comment ID 0111-A2.001.006

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.1.3.7Q 

Dow does not agree with the requirement to stabilize all construction entrance and exit points for a minimum 50 feet from the point of 

entry/exit so that no soil is left exposed and no sediment is discharged during storm events. Dow is concerned that some site geographies 

may prohibit a 50 foot length. Dow encourages EPA to consider a more flexible approach and allow the permittee to implement an 

"equivalent" BMP control in lieu of the 50 foot entrance/exit stabilization requirement. 

Response 

See Response 2.20. 

Comment ID 0115-A2.001.010

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.3.7Q 

2.1.3.7.a Entrance and Exit Points. While National Grid concurs that a 50 foot access point is worthwhile on many development sites 

with a main access point that is used repeatedly and over a long duration during the course of construction, the requirement for a 50 foot 

access point may not be necessary on utility maintenance projects. Linear projects typically do not have only 1 or 2 main access points. 

As work progresses along a ROW, access follows the work activities with access points from different cross streets and easements. 

Access may be required for several trips over a few days before another access is used further down the ROW. Using multiple access 

points is often used to avoiding crossing wetlands along the ROW between structures. Many utility corridors contain existing, 

established access roads along the entire length of the ROW. Many of these roads are hard packed dirt, gravel or grassed. These access 

points do not necessarily need to be stabilized as presented in the draft CGP. In those instances where they do need upgrade work, 

National Grid concurs that a length of 50 feet is appropriate. 

Additionally, short term utility maintenance work conducted during dry periods may not need the construction of a 50 foot access point 

because work is conducted with minimal ground disturbance and without multiple crossings. Installing a stabilized access point may 

result in more soil disturbance than the actual activity. 

Finally, in those instances where access is granted across private property to reach a part of the ROW while avoiding sensitive areas, this 

work may be localized to only a part of the ROW (e.g. access for one pole replacement). The landowner granting access may not approve 

of the stabilization measures proposed in the CGP. 

National Grid recommends that, for utility maintenance projects and smaller construction projects, this requirement be necessary only 

where field conditions warrant. Further, National Grid recommends that the project-specific SWPPP specify the locations for 

entrance/exit point stabilization and the method of stabilization. 

Response 

See Response 2.20. 

Comment ID 0123-A2.001.006
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Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.1.3.7Q 

Comment: CRWD supports the proposed permit language. 

Response 

EPA thanks the commenter for the support. 

Comment ID 0126-A2.001.006

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.1.3.7Q 

Where feasible, the requirement of 50 foot length of stabilized construction access points is reasonable. However, this amount of space is 

not always available. The CSC believes an alternative to the standard should be to eliminate tracking when the 50 foot length is not 

available. 

Response 

See Response 2.20. 

Comment ID 0130-A2.001.015

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.1.3.7Q 

14. ENTRANCE AND EXITS. Part 2.1.3.7. Linear projects have restricted widths and it may be difficult to meet the 50 foot 

requirement. We believe the current permit requirements to prevent track out are adequate and easily visually monitored for compliance.

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0131-A1.001.005

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.1.3.7Q 

LBA supports the requirement for stabilizing entrance and exit points for a minimum of 50 feet pursuant to Part 2.1.3.7 (a). There is 

however, language contained in part 2.1.3.7 that should be revised to properly reflect the practical realities at construction sites and intent 

of the rule. 

Response 

See Response 2.20. 

Comment ID 0133-A2.001.017
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Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.3.7Q 

The proposed permit condition requires all construction entrance and exit points to be stabilized for a minimum of 50 feet from the point 

of entry/ex it so that no soil is left exposed. As discussed above, this requirement fails to account for the unique challenges presented for 

linear transportation projects. No consideration is provided for rural areas where dirt roads are common, the many access points that 

must be maintained within project limits, or the necessity to keep disturbed areas open for the traveling pUblic. All of these factors 

present challenges in implementing such a condition. Additionally, it is not clear to MDT which entrances and exits are subject to this 

requirement. As such, MDT recommends defining "construction" entrances/exits, as well as providing greater flexibility for linear 

constraints. 

Response 

See Response 2.20. 

Comment ID 0137-A2.001.006

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.3.7Q 

50 foot stabilization is achievable in some cases but it should be made clear that small sites such as commercial / retail pad sites and 

urban locations are not subject to 50 foot stabilization. We are extremely concerned about the permit language, "that no soil is left 

exposed and no sediment is discharged during storm events..." The no sediment discharge language would require permitees to establish 

and maintain conditions that may not exist when the site is in its natural state. This language appears to exceed water quality standards 

and exceed performance criteria elsewhere in this permit. EPA should show cause for this level of regulation. 

Response 

See Response 2.20. 

Comment ID 0145-A2.001.009

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.1.3.7Q 

EPA should require that entrance and exits be stabilized for at least 50 feet. The comparatively heavy impacts entrances and exits 

experience make them especially significant potential sources of sediment discharge. Any exceptions to the 50 foot minimum should be 

very rarely allowed. 

Response 

See Response 2.20. 

Comment ID 0153-A1.001.010

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.3.7Q 
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1. This statement should say a "minimum of 50-feet where applicable but in no case less than lO-feet". It should also say "non-woven 

filter fabric" to not confuse with fabric such as silt fence material. 2. The requirement for a 50-foot stable entrance/exit is a minimum. 

This is not specified in the Federal Register and does not belong in this Permit. As guidance, you can make a recommendation. However, 

most tractor/trailer rigs will need more space to eliminate tracking. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0159-A1.001.005

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.1.3.7Q 

50 foot stabilization is achievable in some cases but it should be made clear that small sites such as commercial / retail pad sites and 

urban locations are not subject to 50 foot stabilization. 

Response 

See Response 2.20. 

Comment ID 0168-A1.001.025

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 2.1.3.7Q 

-- Site Entrance and Exit Stabilization (Section 2.1.3, Page 16): The recommendation for providing a minimum of 50 feet entrance/exit 

stabilization is excessive for the urban environment, and would be prohibitive on small or narrow sites. A minimum of 25-feet should be 

adequate for most sites, with the caveat that the entrance/egress protection may need to be extended if there is evidence of off-site 

tracking. 

Response 

See Response 2.20. Refer also to Response 2.14. 

Comment ID 0170-A2.001.006

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 2.1.3.7Q 

The 50' minimum requirement for stabilized construction entrances and exits is not feasible for many small projects and linear projects. 

Small construction sites (i.e., less than 5 acres), quite often do not have the available space to provide a 50' stabilized construction access 

point. This requirement becomes even more difficult to satisfy as the project is constructed and less space is available on site. Linear 

projects often occur in very narrow rights of way where sufficient space is not available to meet the 50' minimum. Also, a linear project 

may have many points of access which would result in an excessive amount of disturbance to install and remove the stabilized 

construction access points. EPA should consider a less prescriptive approach to the prevention of track-out. This approach should 

include a requirement to use a stabilized construction access point, where feasible, along with a performance standard which would 

prohibit visible signs of track-out from the construction site. 
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Response 

See Response 2.20. Refer also to Response 2.14. 

2.1.3.8 COMPLIANCE WITH SAFE DRINKING WATER ACT

Comment ID 0046-A1.001.008

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.3.8 

This is not a construction BMP. The requirement needs to go elsewhere in the permit or eliminated. 

Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

Comment ID 0064-A1.001.017

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.3.8 

Section 2.1.3.8, pages 16-17 - Full "Compliance with Safe Drinking Water Act underground injection control requirements for certain 

subsurface stormwater controls" section 

•Many states maintain jurisdiction over groundwater pollution as it does not fall under the jurisdiction of NPDES. This requirement may 

conflict or cause unnecessary additional coordination if a state maintains jurisdiction over a groundwater pollution prevention program. 

Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

Comment ID 0068-A1.001.022

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.1.3.8 

Part 2.1.3 also proposes to adopt through reference certain Safe Drinking Water Act requirements to underground injection control laws 

and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA includes them in the Proposed CGP. 

To avoid creating additional and unnecessary liability under the NPDES program for requirements found in the SDWA and to simplify 

the Proposed CGP, FSWA recommends that EPA avoid such unnecessary cross-referencing. Appropriately regulated sites are subject to 

these requirements whether or not they also must obtain NPDES stormwater permits. If additional "guidance" is necessary, EPA 

references a 2008 memorandum that clarifies such issues, and the Agency can use that memorandum in future CGP compliance 

assistance guidance. See Proposed CGP Fact Sheet at 55. 
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Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

Comment ID 0093-A2.001.049

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.3.8 

The Draft also proposes to adopt through reference certain Safe Drinking Water Act (SDWA) requirements relating to underground 

injection control laws and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA includes them in 

the Draft. To avoid creating additional and unnecessary liability under the NPDES program for requirements found in the SDWA and to 

simplify the Draft, AGC recommends that EPA avoid such unnecessary cross-referencing. Appropriately regulated sites are subject to 

these requirements whether or not they also must obtain NPDES stormwater permits. If additional "guidance" is necessary, EPA 

references a 2008 memorandum that clarifies such issues, and the agency can use that memorandum in the future CGP as compliance 

assistance guidance. See proposed CGP Fact Sheet at 55. 

Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

Comment ID 0115-A2.001.011

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.3.8 

2.1.3.8 Compliance with Safe Drinking Water Act underground injection control requirements. National Grid recommends an exception 

for linear projects that are in compliance with state regulations regarding dewatering 

Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

Comment ID 0121-A2.001.018

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 2.1.3.8 

2.1.3.8 Compliance with Safe Drinking Water Act underground injection control requirements. It is recommended that an exception for 

projects that are in compliance with state regulations regarding dewatering. 

Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

Comment ID 0128-A2.001.012

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 
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Issue Category: 2.1.3.8 

Part 2.1 also proposes to adopt through reference certain Safe Drinking Water Act requirements to underground injection control laws 

and regulations. Construction sites are subject to SDWA requirements regardless of whether EPA includes them in the Proposed CGP.

To avoid creating additional and unnecessary liability under the NPDES program for requirements found in the SDWA and to simplify 

the Proposed CGP, FSWA recommends that EPA avoid such unnecessary cross-referencing. Appropriately regulated sites are subject to 

these requirements whether or not they also must obtain NPDES stormwater permits. If additional "guidance" is necessary, EPA 

references a 2008 memorandum that clarifies such issues, and the Agency can use that memorandum in future CGP compliance 

assistance guidance. See Proposed CGP Fact Sheet at 55. 

Response 

EPA notes that the requirement is to document compliance with other Federal requirements. Refer to Part 7.2.14. 

2.1.4 REQUIREMENTS APPLICABLE TO SPECIFIC STORMWATER 

CONTROLS

Comment ID 0066-A1.001.021

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.4 

Discussion: The draft requirements of this section are not reasonable and will greatly increase construction costs. 

Suggestion: Suggest that EPA consider drafting rules on this issue specifically for linear DOT projects. 

Response 

Refer to Response 2.1 and Response 2.11. 

2.1.4.1 CONSTRUCTED STORMWATER CONVEYANCE CHANNELS

Comment ID 0025-A1.001.016

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.4.1 

For a DOT that is constructing a road project, it may not be feasible to complete stabilization of a stormwater conveyance within the 

timeframes identified. Stormwater conveyances channels typically parallel the roads - often on both sides and in the median. For any 

given project, this condition would appear to require that we "armor" tens of miles of channel. This will be incredibly expensive and of 

limited benefit. 

Response 
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Refer to Response 2.21. 

Comment ID 0037-A1.001.012

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.4.1 

Are the requirements in this Part only applicable to channels that carry stormwater runoff that runs onto the site or within the site that has 

not come in contact with exposed soils? Or, does it apply to all channels that are constructed within the project area? The Southern Ute 

Growth Fund believes that the stabilization requirements in Part 2.1.4.1.b are not practicable for stormwater conveyance channels that 

convey stormwater runoff from disturbed areas within the project area. See the comments for Part 2.1.4.1.b. below. 

Response 

Refer to Response 2.21. 

Comment ID 0037-A1.001.013

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.4.1 

Part 2.1.4.1.b. states that stabilization of stormwater conveyance channels that divert concentrated flow of stormwater running onto the 

site and within the site to avoid contact with soils exposed during construction must be completed before the first predicted storm event 

or within 7 days, whichever is sooner. It is not clear when this stabilization must be initiated. It is assumed that it should be initiated as 

soon as the channel construction is completed. EPA should clarify when the stabilization activities must be initiated. 

Response 

Refer to Response 2.21. 

Comment ID 0037-A1.001.014

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.1.4.1 

It is not always practicable to stabilize all stormwater conveyance channels as soon as they are constructed, specifically conveyance 

channels or drainage swales used to manage stormwater runoff that originates within the project area. These types of channels are 

frequently roughed in during the initial phase of the project. An appropriate sediment removal control measure (e.g., sediment trap, 

sediment basin, rock filter berm, etc.) is installed to remove sediment in the runoff prior to discharge offsite. Areas discharging to and/or 

adjacent to these channels may be actively under construction for a significant period of time after the channel is installed. For some 

projects, it is not practicable to install sediment barriers along the length of the channel to prevent sediment discharges from the disturbed 

areas into the channel. Thus, sediment deposition in the channel is likely during the construction phase. 

In addition, the channel itself may be disturbed due to the installation of utilities across the channel or by construction activities within 

the immediate vicinity of the channel. Finally, the channel may need to be regraded during final grading activities. Therefore, any 

stabilization that was implemented will need to be replaced. It should be left up to the operator to determine whether or not vegetative or 

nonvegetative stabilization of the conveyance channel as required by this Part is appropriate for their project. The Southern Ute Growth 
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Fund recommends that the stabilization requirements in Part 2.1.4.1b should not be applicable for conveyance channels that will carry 

stormwater runoff from disturbed areas and this Part should be revised accordingly. 

Response 

Refer to Response 2.21. 

Comment ID 0046-A1.001.009

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.4.1 

"predicted storm event" This term can be very problematic. Our state regulators require prestorm event inspection for "predicted storms 

of greater than 0.5" of rain". It has taken years to sort this out because of questions such as: 

What weather forecaster do you use? 

Forecasts cannot be retrieved post event. 

The forecast changes every 6 hours thus the amount of forecasted rain changes. What about mix precipitation events, how much is liquid, 

ice or snow? 

Unless you are ready to specify these issues, you may want to change this requirement. 

Response 

Refer to Response 2.21. 

Comment ID 0049-A1.001.014

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.4.1 

For clarification, EPA needs to indicate that use of dry mulch, hydraulic mulch, tackifiers, and so forth are suitable for embankment 

protection as long as they are not used where concentrated flows occur. 

Response 

Refer to Response 2.21. 

Comment ID 0062-A1.001.019

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.4.1 

Stabilize stormwater conveyance channels. Complete stabilization of stormwater conveyance channels before the first predicted storm 

event, or within 7 days, whichever is sooner. Examples of vegetative and non-vegetative stabilization techniques include channel liners, 

rolled erosion control products (e.g., erosion control blankets and turf reinforcement mats), riprap, geotextiles, or other armoring 

materials that are suitable for use in areas with concentrated or channelized flow. You are prohibited from applying mulch, hydromulch, 

tackifier, or similar erosion prevention practices that are not suitable for use in areas with concentrated or channelized flow in 

stormwater conveyance channels. 
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Brevard County Comment: Small site penalty. Summer time in Florida means daily Tstorms and you can't stabilize in 1 day. 

Response 

Refer to Response 2.21. 

Comment ID 0066-A1.001.022

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.4.1 

Discussion: Completing stabilization of channels prior to the establishment of permanent vegetation is infeasible. The use of vegetative 

and non-vegetative stabilization techniques before the first predicted storm is expensive and not practical. 

Suggestion: It not cost effective to utilize channel liners as a temporary erosion control device in roadside ditches, only for them to be 

replaced later. Sediment control devices such as silt fences, rock check dams, and sediment control logs could be used to protect the 

channel until final construction of the conveyance is completed. Once final grades are achieved, channel liners or turf reinforcement 

mats can then be installed and permanent vegetation established as designated on the site plans. 

Response 

Refer to Response 2.21. 

Comment ID 0093-A2.001.050

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.4.1 

The Draft would require "[c]omplete stabilization of stormwater conveyance channels before the first predicted storm event, or within 

seven (7) days, whichever is sooner ... [using] ... armoring materials that are suitable for use in areas with concentrated or channelized 

flow." On a highway project, it may not be feasible to complete stabilization of a stormwater conveyance channel within the timeframes 

identified. Stormwater conveyance channels typically parallel roadways - often on both sides and in the median. For any given project, 

EPA's proposed provision would require highway contractors to "armor" tens of miles of channel. This would be incredibly expensive 

and of limited benefit. 

Response 

Refer to Response 2.21. 

Comment ID 0111-A2.001.007

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.1.4.1 

Dow supports the requirement for designing stormwater channels which minimize disturbed areas and to reduce erosion. However, Dow 

is concerned with the requirement that stormwater conveyance channels must be stabilized before the first predicted storm event or 

within seven days, whichever is sooner. The verbiage "first predicted storm event" is ambiguous and should be removed, as this could be 
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dependent upon the particular news source. Dow is also concerned that the seven days requirement will place undue hardship on the 

permittee due to unpredictable seasonal influences, weather effects, and site specific characteristics. An alternative approach would be 

for the permittee to develop (and implement) a critical path timeline for stabilization of stormwater conveyance channels. 

Response 

Refer to Response 2.21. 

Comment ID 0139-A2.001.002

Author Name: Aho Andrew 

Organization: Geosynthetic Materials Association (GMA) 

Issue Category: 2.1.4.1 

Complete stabilization of stormwater conveyance channels before the first predicted storm event, or within 7 days, whichever is sooner. 

Examples of vegetative and non-vegetative stabilization techniques include channel liners, rolled erosion control products (e.g., erosion 

control blankets and turf reinforcement mats), riprap, geotextiles, geogrids, geomembranes, geocells, geocomposites, synthetic turf or 

other armoring materials that are suitable for use in areas with concentrated or channelized flow. ... 

Response 

Refer to Response 2.21. 

Comment ID 0146-A1.001.002

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 2.1.4.1 

2.1.4b: Requires stabilization of stormwater conveyance channels. It is not practical and a waste of money to stabilize a channel that 

carries turbid water to a sediment trap because it would quickly be covered in mud, and it accomplishes far less than correctly spaced 

check dams in the channel. 

Response 

Refer to Response 2.21. 

Comment ID 0153-A1.001.012

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.4.1 

This section references a 7-day stabilization requirement. All of these requirements are much too prescriptive for inclusion in the general 

permit. As suggested previously, set the performance standard for design and the storm event to be used will provide boundary 

conditions for the BMPs yielding these sections most in the permit. 

Response 

Refer to Response 2.21. 
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2.1.4.2 STEEP SLOPE CONTROLS

Comment ID 0017-A1.001.008

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.4.2 

6) 2.1.4.2 ‐ Indicates site stabilization must begin within 7 calendar days of the permanent or temporary completion of earth disturbing 

activities, and that all stabilization must be completed within 3 working days of initiation of stabilization. The onset of site stabilization 

within 7 calendar days of the permanent or temporary completion of earth disturbing activities should be clarified "if site conditions 

allow", and completion of stabilization activities "as soon as possible and as site conditions allow".

Response 

Refer to Response 2.2.2. 

Comment ID 0017-A1.001.012

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.4.2 

10) 2.1.4.2 ‐ The designation of a 15% slope as being "steep" and requiring additional controls without recognizing site specific 

conditions is too restrictive. Site specific information, such as land contours, the area down slope (i.e., if it is an actively cultivated field) 

should be considered before requiring the use of specialized controls. 

Response 

Refer to Response 2.2.2. 

Comment ID 0025-A1.001.017

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.4.2 

The requirement for final (vs. temporary) stabilization when work has ceased on a particular slope, will cause great-added expense to 

DOT projects in the form of multiple mobilizations of seeding subcontractors. It may not be feasible to stabilize a partial slope as 

identified in this condition. Please consider adding language to allow the contractor to maintain temporary stabilization until the end of 

the project, and then the seeding contractor can seed the entire project area at once. The fact of the matter is that this requirement will 

only lead to contractors never "fmishing" with a slope. They will continue to push dirt around on it until the end of the project in order to 

avoid fmal stabilization. I would much prefer that the contractor initiate temporary stabilization techniques with extra 

documentation/insjlections required in the SWPPP. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 
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Comment ID 0025-A1.001.018

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.1.4.2 

For a large slope, three days may not be sufficient time to complete these activities. Please consider retaining the current requirement or 

14 days. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0049-A1.001.015

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.4.2 

Why is 15% considered to be steep? In Colorado, 15% is approaching something flat! If EPA is going to address steepness, confine 

steepness to 30% and higher. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0053-A2.001.002

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.4.2 

When working steep slopes (i.e., slopes of 15% or greater) the Permit directs to design requirements in Part 2.1.4.2 of the permit starting

on page 17. Part 2.1.4.2.c stabilization requirements are required. 

In Part 2.1.4.2.c the Permit states that installation or application of all non-vegetative measures be complete within 3 working days of 

stabilization initiation for the greater than 15% slope areas. 

Typical linear transportation projects span great lengths and have a majority of 3:1 slopes (33%) over the length of the project. In the arid 

southwest, initiation of vegetative cover or even non-vegetative cover within 3 working days is unrealistic and/or unachievable. 

Consider including provisions for linear transportation projects. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0053-A2.001.003

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.4.2 
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• Conflict exists between the first sentence and second sentence of this paragraph. In the first sentence it states "You must immediately 

initiate stabilization in any exposed steep slope areas where earth-disturbing activities have permanently or temporarily ceased ...

" In the second sentence it states "Any area of your construction site". This sentence is not specific to "steep slope areas", yet the entire 

clause of Part 2.1.4.2 is specifically addressed to steep slope areas. Additionally, many projects are worked in phases and may have 

separate areas of varying stabilization. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0053-A2.001.004

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.4.2 

• Consider removing ", and final grade has been reached." Stabilization is required whether final grade is achieved or not in areas where 

the ground has been disturbed. Permittees could argue this particular language as part of the entire definition, inclusive of the sum used 

to define the benchmark, and would therefore exclude/excuse stabilization in these areas because final grade has not been reached. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0053-A2.001.005

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.4.2 

• Consider including language pertaining to weather, such as: "Where stabilization by the 3rd day is precluded by snow cover or frozen 

ground conditions, stabilization measures shall be initiated as soon as practicable." 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0060-A1.001.007

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.4.2 

7. Section 2.1.4.2 - See comment ID 0060-A1.001.002 on Section 2.1.1.2 and the General comment above. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0064-A1.001.018
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Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.4.2 

Section 2.1.4.2.c.i, page 18 - "You must immediately initiate stabilization in any exposed steep slope areas where earth-disturbing 

activities have permanently or temporarily ceased, and will not resume for a period exceeding 7 calendar days." 

•Why did EPA reduce the timeframe for initiating stabilization on an exposed slope from 14 to 7 days? Suggest increasing time period 

back to 14 days. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0066-A1.001.009

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.4.2 

Discussion: As written, this draft permit does not take into consideration the practical requirements of linear transportation projects. The 

major components of linear construction projects often involve excavation and embankment work. On large projects this may involve 

vast quantities of materials; to expect that excavation to take place and be stabilized within a three day period is not practicable. (e.g. 

steep slopes are often excavated to get materials for other areas to be filled on the same project site-movement from material positive 

areas to material negative areas) Safety, cost, public benefit, construction time constraints are not being considered. 

In the requirements of 2.1.4.2 Steep Slope Controls- It is stated that you should avoid disturbance to steep slopes of 15 percent or greater 

and to either divert the flows around the slopes or use specialized controls such as BMPs. This will increase the cost of the project when 

in most cases this is not necessary. In many cases, TxDOT ROWs are very limited and will not provide enough space to implement these 

special requirements. 

When a slope is determined for a project, it is already given special consideration through use of existing internal standard specifications 

and general roadway design principles. 

Suggestion: Suggest changing this to a general requirement to "minimize disturbance to steep slopes," to allow for project-appropriate 

measures, rather than requiring specifics that may not be possible in all instances. Allow this to be addressed in the SWPPP, and give the 

opportunity for the SWPPP and project site developer to use reasonable judgment to make it practicable for linear construction projects. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0066-A1.001.023

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.4.2 

Discussion: The seven day period (calendar days) when earth-disturbing activities have permanently or temporary ceased is too short. It 
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should be at least 14 days as in the last general permit. During construction activities 7 days without soil disturbance is very uncommon 

and restrictive. If a sloped area is left undisturbed for 14 days, it is likely that it will remain so for a longer period and need final 

stabilization, which may take longer on sloped areas. As mentioned previously, it will also be impossible to complete stabilization 

activities within 3 days in some instances. 

Suggestion: Increase the timeframes, and/or create a performance-based standard (e.g. stabilize on a timeframe such that there are no 

preventable off-site discharges of sediment). 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0075-A2.001.010

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.4.2 

See "Steep" comments under Part 2.1.1. [See comment ID 0075-A2.001.003] 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0075-A2.001.011

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.4.2 

Suggest that the timeframe be extended to 14 days of temporary stoppage of earthwork activities or permanent completion instead of 7 

days. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0075-A2.001.012

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.4.2 

Suggest that the timeframe be extended to 7 work days instead of 3 work days. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0077-A1.001.002

Author Name: DeStefano Anthony 
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Organization: Village of Solvay 

Issue Category: 2.1.4.2 

The steep slope requirement should be modified to include a length. It is very common to have short lengths of steep slopes present on a 

site, either to get back to adjacent grade at property lines or to construct landscape berms. Since soil loss is determined by both length and 

slope, it would make sense to eliminate special requirements for short steep slopes. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0093-A2.001.032

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.4.2 

The Draft defines "steep slopes" as slopes of 15% or greater. In areas with steep slopes, EPA would require avoidance unless infeasible, 

in which case EPA would require the use of specialized controls. 

While the language provides some flexibility, AGC remains concerned about how this proposed requirement would be applied on the 

ground. Typical linear transportation projects span great lengths and AGC highway contractors report they commonly have a 3:1 slope 

(33%) over the majority of the project. AGC suggests that EPA require specialized controls only for very steep slopes - i.e., outside of 

what is typical on a highway project. Of course, the operator would have the option of using these specialized controls on typical 

highway projects if effective and conditions make these controls practical. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0093-A2.001.051

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.4.2 

The Draft provides that if it is not feasible to avoid disturbing steep slopes, the operator must immediately initiate stabilization on any 

exposed steep slope areas where earth-disturbing activities have permanently or temporarily ceased, and will not resume for a period 

exceeding seven (7) calendar days. For the purposes of this permit, earth-disturbing activities have temporarily ceased when clearing, 

grading, and excavation within any area of a construction site will not resume for a period of seven (7) or more days, and earth-disturbing 

activities have permanently ceased when clearing and excavation within any area of a construction site has been completed, and final 

grade has been reached. 

AGC wants to point out that a conflict exists between the first and second sentences of the paragraph above. In the first sentence, EPA 

refers to "any exposed steep slope areas." But in the second sentence, EPA refers to "any area of your construction site." AGC also 

recommends that EPA remove the phrase "... and final grade has been reached." Stabilization appears to be required whether or not final 

grade is achieved in areas where ground has been disturbed. 

This Part goes on to require contractors to completely install all vegetative and non-vegetative cover "[w]ithin 3 work days of initiating 
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stabilization." This final (as opposed to temporary) stabilization requirement will add huge expense to highway projects because seeding 

subcontractors would need to be brought to the jobsite multiple times. For a large slope, three days may not be sufficient time to 

complete these activities. Moreover, it may not be feasible to stabilize a partial slope as EPA assumes by this provision. 

For the reasons outlined above, AGC recommends that EPA retain the 2008 CGP requirement or 14-day deadline for achieving final 

stabilization. In addition, EPA should consider including language pertaining to weather, such as: "Where stabilization by the [insert 

date] is not possible due to snow cover or frozen ground conditions, stabilization measure shall be initiated as soon as practicable." In the 

alternative, EPA should consider adding permit language that would allow the contractor to maintain temporary stabilization until the 

end of the project - at which time the seeding contractor would come in and seed the entire area at one time. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0096-A1.001.024

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.2 

EPA defines steep slopes as slopes of 15% or greater. In areas with steep slopes, EPA’s 

proposal requires avoidance unless infeasible, in which case specialized controls must be in 

place. NAHB is concerned with EPA’s definition of steep slope. EPA’s requirement for 

stabilization of slopes >15% -- (Part 2.1.4.2.b) -- are often not practical and are better applied to 

very steep slopes of 25% or more. Slopes are not regarded as exceptionally steep in most 

stormwater management manuals until they are greater than 25%. For example, roadways 

commonly try to keep the slope under 25% if possible in cuts and fills. However, slopes of 15% 

are frequently disturbed for general grading purposes. Most of the sediment controls listed in 

Section 2.1.4.2.b [FN 45] are intended for slopes much steeper than 15%. We suggest two improvements to these requirements, which 

can be utilized separately or in combination. First, 

EPA should increase the lower percent slope from 15%; we suggest 25%. Twenty-five percent is 

practical and consistent with standard practice for roadways. Second, we suggest that Parts 

2.1.4.2.a -2.1.4.2.c only become active for slopes of >25%. Of course, the operator would have 

the option of using these controls on slopes <25% if effective and conditions make these controls 

practical. 

While the language appears to provide sufficient flexibility, we are concerned about how 

this requirement will be applied on the ground. We are also concerned about EPA’s increasing 

regulatory overreach in inappropriately trying to direct land use and dictate outcomes. 

[FN 45] Sediment controls include such as temporary and permanent seeding with soil binders, erosion control blankets, 

surface roughening, reducing continuous slope length with terracing or diversions, gradient terraces, interceptor 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 
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Comment ID 0107-A2.001.006

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 2.1.4.2 

In New Mexico there are a number of regional specific factors that increase runoff including sparse vegetation and steep topography 

(Gautam et al, 2010). Desert soils can often consist of the silty low permeable vesicular A (Av) horizon (Ritter et al. 2002) which can 

lead to low infiltration rates resulting in more runoff and erosion potential than areas with more humid soil and associated layers of 

organic litter. Thus, paying attention to the topography and sensitive areas of a site is all the more critical in the desert southwest. 

Avoiding disturbance on steep slopes is especially important to prevent erosion. Amigos Bravos supports the proposed requirement to 

avoid disturbance on slopes 15% or greater and recommends adding language to section 2.1.4.2 that explicitly requires limiting 

unavoidable disturbance on sleep slopes to the smallest area possible. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0115-A2.001.004

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.4.2 

2.1.1.2 Avoid Steep Slopes. This part makes reference to Part 2.1.4.2. As described further under comments to part 2.1.4.2 below, utility 

projects may not be able to avoid areas of steep slope within ROWs. National Grid supports the use of specialized controls, however, 

National Grid has concerns about the requirements of 2.1.4.2 a. and c.

With respect to 2.1.4.2 a., because linear utility ROWs tend to be narrow without legal access to off ROW properties, it is not always 

possible to divert flows around steep slope disturbances. Where feasible or practicable, stormwater can be diverted, however, in many 

instances this could result in increased flow to adjacent properties. In these circumstances, the use of specialized controls is critical to 

maintaining a stable and safe work environment. Careful monitoring is also employed under such situations. 

With respect to 2.1.4.2 c., cross country transmission/distribution construction is performed in a manner that allows necessary activities 

to be completed along certain sections of the ROW, while other portions may remain inactive. Depending on the nature of the work, 

crews may change location day to day or week to week. As a result, there may be periods where work within one segment may cease for 

a period of 7 or more days. In these instances, temporary stabilization measures are applied and monitoring is conducted. However, it is 

not feasible or practical to apply permanent stabilization measures when work will continue. 

National Grid recommends an exemption from the stabilization requirements set forth in 2.1.1.2 for linear utility projects that have 

obtained Clean Water Act approvals. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0115-A2.001.012
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Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.1.4.2 

2.1.4.2 Steep Slope Controls. As in our comments above regarding part 2.1.1.2, the CGP needs to allow for site specific flexibility. 

Linear utility projects cannot comply with these requirements in all instances. National Grid recommends that compliance with this part 

be conducted on a case-by-case basis reflective of actual site conditions and project activities. The SWPPP should specify the exact 

locations where compliance can or cannot occur and should specify which specialized control will apply in each instance. 

National Grid recommends an exemption from the stabilization requirements set forth in 2.1.4.2.c for linear utility projects that have 

obtained Clean Water Act approvals. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0117-A1.001.002

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 2.1.4.2 

The steep slope requirement should be modified to include a length. It is very common to have short lengths of steep slopes present on a 

site, either to get back to adjacent grade at property lines or to construct landscape berms. Since soil loss is determined by both length and 

slope, it would make sense to eliminate special requirements for short steep slopes. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0127-A2.001.003

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 2.1.4.2 

Section 2.1.4.2.c.i 

Proposed Language 

Stabilization requirements. For all disturbances to steep slopes, you must comply with the following stabilization requirements, which 

replace the corresponding requirements in Part 2.2.1: i. You must immediately initiate stabilization in any exposed steep slope areas 

where earth‐disturbing activities have permanently or temporarily ceased, and will not resume for a period exceeding 7 calendar days. 

For the purposes of this permit, earth‐disturbing activities have temporarily ceased when clearing, grading, and excavation within any 

area of your construction site will not resume for a period of 7 or more days, and earth‐disturbing activities have permanently ceased 

when clearing and excavation within any area of your construction site has been completed, and final grade has been reached. 

Concern 
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Compliance could be difficult to achieve and potentially damaging to the site. There are no exceptions for weather delays, wet site 

conditions, frozen ground, arid conditions, other construction delays, etc. 

Suggested Correction Revise requirement to require immediate stabilization as soon as site conditions permits. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0137-A2.001.007

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.4.2 

This section strongly suggests avoidance of disturbance to all steep slopes at 15% or greater. This will dramatically affect areas in 

Western Maryland as most slopes are greater than 15%. This will also affect many other areas in the country including places like San 

Francisco or Pittsburgh that have steep slopes. This will effectively minimize the ability to develop a project, road, etc. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

Comment ID 0159-A1.001.004

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.1.4.2 

This section strongly suggests avoidance of disturbance to all steep slopes at 15% or greater. This will dramatically affect areas in 

Western Maryland as most slopes are greater than 15%. This will also affect many other areas in the country including places like San 

Francisco or Pittsburgh that have steep slopes. This will effectively minimize the ability to develop a project, road, etc. 

Response 

Refer to Response 2.2.2. See also responses in section 2 of this document on stabilization. 

2.1.4.3 STORM DRAIN INLET PROTECTION

Comment ID 0049-A1.001.016

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.4.3 

Barriers place in front of storm sewer inlets on a grade (e.g., street curb inlets, road median area drains) will divert runoff and causes 

downstream flooding and sedimentation. Placing barriers around an inlet opening should only occur when the structures are in a "sump" 

condition. However, when overflow conditions occur at these barriers, little sedimentation will take place and a majority of the sediment 

in runoff waters will enter the storm sewer system 
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Response 

Refer to Response 2.12. 

Comment ID 0053-A2.001.012

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.4.3 

The Permit States: "For any storm drain inlets that are located on your site or that receive stormwater discharges from your site, and for 

which you have access, you must comply with the following ..." 

Municipalities' jurisdiction may prevent addressing BMPs a city has established, yet are still within your project area/access. The simple 

fact you have access, does not provide permission to address the property of a separate party(s). Consider changing the word "access" to 

"jurisdiction", "authority", or "easements". 

Response 

Refer to Response 2.12. 

Comment ID 0093-A2.001.052

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.4.3 

The Draft states: "For any storm drain inlets that are located on your site or that receive stormwater discharges from your site, and for 

which you have access, you must comply with the following ... ." Municipalities' jurisdiction may prevent addressing a BMP that a city 

has established, yet are still within a contractor's project area/access. The simple fact that a contractor has access, does not provide 

permission to address the property of a separate party(ies). AGC suggests that EPA consider changing the word "access" to 

"jurisdiction," "authority," or "easements." 

Response 

Refer to Response 2.12. 

Comment ID 0096-A1.001.032

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.3 

In Part 2.1.4.3A, the Draft CGP states: “For any storm drain inlets that are located on your site or 

that receive stormwater discharges from your site, and for which you have access, you must 

comply with the following ....” Municipalities’ jurisdiction may prevent addressing BMPs a city 

has established, yet are still within your project area/access. The simple fact you have access, 

does not provide permission to address the property of a separate party(s). EPA should consider 

changing the word “access” to “jurisdiction”, “authority”, or “easements.” The prescriptive 

language of this section does not take into account storm drain inlets that do not discharge offsite 
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before additional treatment. It appears that inlet protection must be provided for all inlets even if 

it drains to a sediment trap or basin. There are a number of issues with this requirement on most 

sites. EPA should consider specific site limitations, and remove the word ‘any’ from this section 

Response 

Refer to Response 2.12. 

Comment ID 0133-A2.001.018

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.4.3 

When constructing storm drainage systems, it is common practice to use manholes as catch basins during construction and then to clean 

them out before placing into service. To allow greater operational flexibility, the proposed inlet protection measures should be restricted 

to "in-service" inlets only. 

Response 

Refer to Response 2.12. 

Comment ID 0137-A2.001.008

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.4.3 

it appears that inlet protection must be provided for all inlets even if drain to a sediment trap or basin. There are a number of issues with 

this requirement on most sites for inlet protection in closed section roadways when implemented for all inlets. Open section roadways 

have a larger margin for handling the flows. This does not mean that if the inlet protection is the only treatment practice that it should be 

eliminated, only the ones that drain to another treatment Concerns are as follows. 

a. Contractors use the inlet protection as a form of ramp which then allows the truck to drive over a storm drain inlet top and breaking the 

top. 

b. Most of the water will flow past the inlet until it reaches the low point and then flow overland to a trap or basin. This could cause 

erosion in the overflow path. 

c. When it is somewhat effective. The sediment is spread over the roadway and then gets tracked around the site. This is a big 

housekeeping issue. It is even worse when there are residents of the neighborhood who need to drive on the roads and track the sediment 

onto their lots and possibly into their house. 

Response 

Refer to Response 2.12. 

Comment ID 0146-A1.001.003

Author Name: Matthews Jean 
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Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 2.1.4.3 

Storm drain inlet protection on roads will create a hazardous back up of water that can result in flooding and cause vehicles to 

hydroplane. We worked in a subdivision in which a car hydroplaned in a large puddle created by storm drain protection and then hit an 

occupied home. Injury to persons and property resulted. Storm drain inlets will back up water if they are working properly; it's the way

that they trap sediment. Maintenance (cleaning) would be required after every rain event, and will be very expensive. I consider storm 

drain protection one of the tools in our toolbox, and sometimes, it's not the best choice. I would eliminate this as a construction permit 

requirement and shift the burden of keeping storm drain systems clean to the municipalities to require evidence of a clean storm drain 

system before it is accepted and the bonds released. The contractors should be delivering a clean system to the municipalities, anyway.

Response 

Refer to Response 2.12. 

Comment ID 0159-A1.001.020

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.1.4.3 

In Section 2.1.4.3A Inlet Protection Measures. it appears that inlet protection must be provided for all inlets even if they drain to a 

sediment trap or basin. There are a number of issues with this requirement on most sites for inlet protection in closed section roadways 

when implemented for all inlets. Open section roadways have a larger margin for handling the flows. This does not mean that if the inlet 

protection is the only treatment practice that it should be eliminated, only the ones that drain to another treatment Concerns are as 

follows. 

a. Contractors use the inlet protection as a form of ramp which then allows the truck to drive over a storm drain inlet top so as not to break 

the top. 

b. Most of the water will flow past the inlet until it reaches the low point and then flow overland to a trap or basin. This could cause 

erosion in the overflow path. 

c. When it is somewhat effective. The sediment is spread over the roadway and then gets tracked around the site. This is a big 

housekeeping issue. It is even worse when there are residents of the neighborhood who need to drive on the roads and track the sediment 

onto their lots and possibly into their house. 

Response 

Refer to Response 2.12. 

2.1.4.4 SEDIMENT BASIN AND IMPOUNDMENTS

Comment ID 0060-A1.001.008

Author Name: Gasper David 
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Organization: NYS Department of Environmental Conservation 

Issue Category: 2.1.4.4 

8. Section 2.1.4.4 - It is unclear from the language in this section as to what criteria are used to size a sediment basin/impoundment. This 

section must be updated accordingly. 

Response 

Refer to Response 2.9. 

Comment ID 0062-A1.001.020

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.4.4 

Maintenance requirements. Remove accumulated sediment before it reaches 1⁄2of the capacity of the sediment basin. Brevard County 

Comment: How will 1⁄2 full be determined? 

Response 

Refer to Response 2.13. Refer also to Part 2.1.2.2 of the 2012 CGP. 

Comment ID 0066-A1.001.024

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.4.4 

Discussion: The structures being implied are known as skimmers. They tend to be maintenance intensive because they clog, and the 

hoses get caught up so that the skimmers are not able to function properly. To keep these operational would require more frequent 

inspection and maintenance, and thus increase project costs. 

Suggestion: Provide flexibility and make this an alternative BMP, due to their high maintenance costs and frequency of clogging. 

Response 

EPA thanks the commenter and notes that the 2012 CGP does not require the use of sediment basins. 

Comment ID 0075-A2.001.013

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.4.4 

Field experience in other states show these skimmers may be vandal prone and have potential plugging issues with litter. Rural, 

temporary detention ponds normally designed with rock weirs for lower maintenance and high runoff allowance (an emergency 

spillway) may be more effective. 

Response 

EPA thanks the commenter and notes that the 2012 CGP does not require the use of skimmers. 
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Comment ID 0078-A1.001.001

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.4.4 

EPA must require (when feasible) operators to install one or more SCSs at the beginning of grading activities that meet at least the 

following criteria: 

• Each structure must successfully treat at least a volume of runoff anticipated from the contributing bare ground watershed due to a 

2-year, 24-hour storm event (V2, 24). 

• Each structure must be able to capture at least 20 microns and larger TSS particles. 

• Discharge waters of the V2,24 for each structure must have NTU turbidity readings that are no greater than 5% to15% (see comments 

on Section 3.2) above historic conditions. 

• Each structure must safely discharge at least 5-year, 24-hour flood flows via a professionally designed overflow system. 

• Designers must assess and report on the effectiveness of their structures to remove sediments and reduce turbidity when overflow 

conditions occur. 

• Designers and regulatory agencies must be accountable for the use of polymers in runoff waters entering and discharging from each 

structure that happens for during grading, during construction and after construction activities. 

Response 

EPA thanks the commenter and notes that the 2012 CGP does not require the use of sediment basins. See Part 2.1.4.4. 

Comment ID 0153-A1.001.013

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.4.4 

This statement justifies excluding temporary sediment traps from top water withdrawal requirements. 

2.1.4.5 CHEMICAL TREATMENT [REQUEST FOR COMMENT]

Comment ID 0030-A2.001.003

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.1.4.5 

A third concern involves the proposed use of flocculants for treatment of stormwater runoff, which contradicts the current CGP for 
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Stormwater Discharges Associated with Construction Activities. 

Response 

Refer to Response 2.22. 

Comment ID 0049-A1.001.018

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.4.5 

If standing water is not evident, I do not know of any reason as to why polymers cannot be used in areas where a 4-feet or less water table 

exists. 

Response 

Refer to Response 2.22. 

Comment ID 0049-A1.001.019

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.1.4.5 

Cationic chitosan must be treated as a cationic polymer. If the EPA prohibits the discharge of cationic polymers, then the discharge of 

cationic chitosan cannot occur! 

Response 

Refer to Response 2.22. 

Comment ID 0062-A1.001.021

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.4.5 

Storage requirements. Store all treatment chemicals in leak-proof containers that are kept under storm-resistant cover or surrounded by

secondary containment structures designed to eliminate potential discharge of stormwater from this area. Brevard County Comment: If 

the materials are suitable for treating runoff then why is containment needed? 

Response 

Refer to Response 2.22. 

Comment ID 0062-A1.001.022

Author Name: McClure Bach 
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Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.4.5 

i. Do not apply within areas established under Part 2.1.2; 

Brevard County Comment: Buffer areas! 

ii. Do not apply in areas with a shallow water table (i.e., 4 feet or less); 

Brevard County Comment: Most of FL 

iii. Limit any use of sediment containing polyacrylamide, chitosan, and other biopolymers as fill material on-site to not closer than 100 

feet from waters of the U.S.; 

Brevard County Comment: Why? Use of these materials are allowed in waters of the US. Don't limit use when necessary. ? 

Route stormwater treated with polymers, flocculants, or other treatment chemicals through sediment trapping, filtering, and/or settling 

device(s) to ensure adequate removal of sediment flocculent; 

Brevard County Comment: Why specificity? Water should be treated to remove sediments anyway. 

Response 

Refer to Response 2.22. 

Comment ID 0071-A3.001.016

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.4.5 

•Part 2.1.4.5 Chemical treatment (a) Storage requirements. This section discusses the proper storage of Chemical Treatment, such as 

flocculants. It is unclear what an appropriate secondary containment would be for flocculants. Does the secondary containment need to 

be lined to prevent groundwater contamination? Bermed? Or would silt fence or sediment control log be adequate? 

Response 

Refer to Response 2.22. 

Comment ID 0071-A3.001.017

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.4.5 

•Part 2.1.4.5 Chemical treatment (c) Use restrictions. ii. Perhaps change "Do not apply in areas with a shallow water table (i.e., 4 feet or 

less)" to "Do not apply in areas with a shallow water table (i.e., within 4 feet of water table)". The current language could imply, for 

example, that if you had a 10' water table you could dig a sediment basin to within 3' and add flocculent. 

Response 

Refer to Response 2.22. 
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Comment ID 0071-A3.001.018

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.4.5 

•Part 2.1.4.5 Chemical Treatment (c). Use restrictions.vi. This Part states that you cannot discharge cationic polymers. Unlike sediment, 

polymers are not visible in water, therefore you cannot visibly assess whether they are present. What is your measure of success? 

Response 

Refer to Response 2.22. 

Comment ID 0093-A2.001.053

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.4.5 

AGC anticipates that polymers, flocculants, or other treatment chemicals to enhance sediment removal will be required on construction 

sites that must comply with any numeric turbidity limit. Given the wide array and variations among chemical products on the market, it 

is not practicable for EPA to issue broad permit restrictions on the use of chemical treatments. Restrictions should be limited to the 

manufacturer's specifications for application. The manufacturers should get EPA approval and then EPA can have an approved list with 

guidelines for their use. This is particularly relevant to chitosan, which is made from the shells of crustaceans, is one of the most 

abundant biodegradable materials in the world, and is marketed in many forms as a natural plant growth enhancer and a human health 

supplement. 

Response 

Refer to Response 2.22. 

Comment ID 0096-A1.001.033

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.5 

The proposed CGP includes restrictions on the use of polymers, flocculants, and other 

treatment chemicals. Some of the proposed polymer use restrictions are common sense, such as 

the storage requirements, managing the chemicals so that they are not spilled, following the 

precautions in the MSDS, and insuring that chemically treated sediment is routed through some 

sort of trap or basin before discharge, which presumably would be necessary to also remove the 

turbidity. However, there are some provisions that are not clear or appear contradictory to other 

requirements of the CGP and C&D ELG. Further, given the lack of sufficient data and the 

relative newness of using chemicals, polymers and ATS systems to trap sediment from storm 

water discharges and prevent it from entering waterways, we remain concerned about the 
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required use of any chemical treatment. 

First, the “do not apply (polymers) within areas established under Part 2.1.2 (vegetative 

buffers within 50 feet of a water of the United States)” stated in 2.1.4.5.c.i is unclear. Because 

there are alternative provisions in Part 2.2.1 that allow for less than a 50 foot vegetative buffer, it 

is not clear whether polymers can be used in these alternative setback areas. These would likely 

be situations where site constraints force active construction to occur closer to the stream, and in 

such situations, the polymer treatment may also be forced closer to the stream, which would have 

to be the low point drainage for at least a portion of the site. Furthermore, the use of polymer may not be optional; it may be required to 

meet the C&D ELG turbidity limit or a TMDL. EPA 

should clarify this section to either allow chemical treatment on a site specific basis or provide 

exemptions if a site will otherwise be required to use chemicals to meet a specific requirement. 

Response 

Refer to Response 2.22. 

Comment ID 0096-A1.001.034

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.5 

Second, Part 2.1.4.5.c.ii states that no polymer may be applied in areas with a shallow 

water table (defined as four feet or less). This provision is far too restrictive, to the point of 

making construction impossible for many tracts of land. Compliance with this restriction may 

completely prohibit polymer use in most coastal areas and in many other areas of the USA. 

Furthermore, the water table in most areas is variable depending on the season and how much 

rain has been received in the area and can very easily be within 4 feet of the surface at times. In 

light of the new C&D ELG (depending on the final numeric effluent limit), the use of polymer in 

most areas may not be optional, since a numeric turbidity limit must be met unless that turbidity 

limit is set sufficiently high that polymers are not necessary even under adverse conditions (e.g., 

high intensity rain, high clay content in soil, etc.) or an exemption from the turbidity limit has 

been allowed in the situation. 

Response 

Refer to Response 2.22. 

Comment ID 0096-A1.001.035

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.5 

Third, Part 2.1.4.5.c.iv limits any use of sediment containing polyacrylamide, chitosan, or 
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other biopolymers as on-site fill material to not closer than 100 feet from waters of the US. This 

rule seems to imply that even sediment basins within 100 feet of a water of the US where the 

polymer was used to settle sediment cannot be filled in (if the basins were temporary) without 

first excavating out all the sediment that settled there. This, as written, is totally impractical. 

Again, the settling basins or ponds very often must be located near drainage areas, and many will 

necessarily be within 100 feet of a water body given the Agency’s broad interpretation of this 

term. Likewise, because the sediment in question has likely existed within 100 feet of the water 

of the US for a long period of time already, it is unclear what is gained through the prohibition. 

Either this absolute prohibition needs to be removed or EPA must create an exception that allows 

temporary sediment basins, traps, or ponds to be filled in place, even if they are within 100 feet 

of a water of the US. 

Response 

Refer to Response 2.22. 

Comment ID 0096-A1.001.036

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.5 

Fourth, Part 2.1.4.5.c.vi states that cationic polymers (except chitosan) may not be 

discharged except in compliance with state and local requirements that are designed to protect 

water quality from such discharges. The use of polymers for the purpose of sediment control is 

heavily regulated and all of the states prohibit the use of polymers that have toxic components 

that may adversely impact their water ways. In the proposed C&D ELG, EPA recognizes the 

risks, as it quotes California’s draft permit fact sheet, which states: 

“These systems can be very effective in reducing the sediment in storm water runoff, but 

the systems that use additives/polymers to enhance sedimentation also pose a potential 

risk to water quality (e.g., operational failure, equipment failure, additive/ polymer 

release, etc.). We are concerned about the potential acute and chronic impacts that the 

polymers and other chemical additives may have on fish and aquatic organisms if 

released in sufficient quantities or concentrations. In addition to anecdotal evidence of 

polymer releases causing aquatic toxicity in California, the literature supports this 

concern. For example, cationic polymers have been shown to bind with the negatively 

charged gills of fish, resulting in mechanical suffocation. Due to potential toxicity 

impacts, which may be caused by the release of additives/polymers into receiving waters, 

residual polymer monitoring and toxicity requirements have been established in this 

General Permit for discharges from construction sites that utilize an ATS in order to 

protect receiving water quality and beneficial uses.” [FN 58] 

If a progressive state like California has reservations about the use of polymers, EPA should take 
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heed and remove any requirements for its use. Further, if other states are to allow the use of 

polymers, they will likely have to develop new laws or regulations governing their use. Forcing 

such a process on the states, particularly in the absence of reliable data, would place an 

unnecessary and significant strain on most, if not all, of the state permitting authorities, many of 

whom have raised resource constraints associated with many existing demands on their 

permitting programs. 

Further, the true passive systems examined by EPA in the C&D ELG (which presumably 

formed the basis of the rule by relying on passive treatment technology using polymer induced 

settling) all used polyacrylamide, not chitosan. This might be due to the current unavailability of 

chitosan in block or log form, which is a popular passive method of administering PAM, or some 

other, unknown reason. But because polyacrylamide flocculation chemicals can be formulated in 

cationic, nonionic, or anionic forms, it is not clear which one(s) the Agency is referring to. For 

example, the McLaughlin 2009 study [FN 59] used fiber check dams with PAM (FCD/PAM) on two 

sections of a North Carolina highway construction project. McLaughlin states that only the 

anionic form was used for erosion control, but does not state which PAM formulation he used in 

the FCD/PAM passive treatment to reduce turbidity in the runoff. Given these uncertainties, 

EPA should be more explicit as to which polymers may be used and discharged in passive 

turbidity removal systems. 

[FN 58] 73 Federal Register 72,573 (November 28, 2008). 

[FN 59] Passive Treatment To Meet the EPA Turbidity Limit, TMDL 2010 Watershed Management to Improve Water 

Quality Proceedings, 2009, McLaughlin 2009. 

Response 

Refer to Response 2.22. 

Comment ID 0096-A1.001.037

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.5 

Finally, NAHB still believes the use of chemicals to treat stormwater discharges is suspect. 

Studies have found that polymers and cationic polymers, including chitosan, are “quite toxic to 

aquatic organisms and should never be used in an open environment or allowed to discharge to 

the environment without complete reaction to the intended target.” [FN 60] Similarly, EPA found, 

“This polymer [chitosan] is listed as Resource Conservation and Recovery Act (RCRA) as 

hazardous due to the acidity (at a pH of about 4).” [FN 61] Further, EPA lacks sufficient data 

regarding: (1) the use of chemicals, including the long-term effects of the chemicals on the soil 

(which could be significant given the vast array of construction sites where it may be used, if 

required); (2) expected polymer dosages and how these are impacted by the site-specific features, 

such as the turbidity of the water to be treated, the surface charge of particles to be removed, 
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water temperature, pH, and the presence of constituents that consume or otherwise affect 

polymer effectiveness that impact optimum dosages; [FN 62] and (3) sediment disposal issues raised by the hazardous waste disposal 

requirements of RCRA. The concern over the lack of sufficient 

information on the use of chemicals to treat storm water runoff also is evident in states’ reactions 

to its use. Tellingly, there are currently only four states (MI, WI, WA, CA) that require the use 

of polymers to address sediment in stormwater runoff, but, even then, polymer use is typically 

limited to certain types of sites. The conflicting information and high degree of uncertainty 

regarding the toxicity of both the polymer itself and the waste products it contributes to 

(including infused sediment sludge) must prompt EPA to conduct further review and research on 

the use of all polymers as a stormwater mitigation option prior to allowing or prescribing its use. 

[FN 60] Polymer Enhanced Best Management Practices for Erosion, Sedimentation and Stormwater, S.R. Iwinski, 2008, 

accessed at http://www.remtech2008.com/watertech/2008/pdf/Paper23.pdf. 

[FN 61] Development Document For Proposed Effluent Guidelines and Standards for the Construction & Development 

Category, November 21, 2008, Table 7-28. Chitosan Acetate Study results, p. 7-94. 

[FN 62] City of Tacoma, WA, Surface Water Management Manual, September 22, 2008, Appendix B, accessed at 

www.cityoftacoma.org/File.ashx?cid=10908. 

Response 

Refer to Response 2.22. 

Comment ID 0109-A2.001.004

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 2.1.4.5 

The Permit should require treatment and pollution prevention measures to prevent chemicals from being carried off-site in runoff. The 

permit should emphasize natural erosion management practices (such as vegetative cover) rather than chemically-based methods. 

Response 

Refer to Response 2.22. 

Comment ID 0111-A2.001.008

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.1.4.5 

Dow believes that the requirement to provide cover and containment for all onsite storage of treatment chemicals is burdensome and 

duplicative with reasonable BMPs. This requirement should be addressed by the permittee during development and implementation of 

the SWPPP and related BMPs. 

Response 
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Refer to Response 2.22. 

Comment ID 0126-A2.001.007

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.1.4.5 

EPA should recognize that some states will not allow chemical treatment or additives. 

Response 

Refer to Response 2.22. 

Comment ID 0131-A1.001.008

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.1.4.5 

Although the use of chemical treatments should be unnecessary on most sites when properly designed passive control strategies have 

been implemented, the use of passive chemical treatment represents a potentially viable and safe alternative in a limited number of 

situations where conventional treatment alone is challenging or inadequate. LBA recommends that flexibility in the application and 

appropriateness of chemical treatment be broadly allowed, but not mandated, and that the means and methods for their proper 

application are the responsibility of the design engineer in developing an appropriate SWPPP for a site based on site specific and 

receiving water requirements. 

Response 

Refer to Response 2.22. 

Comment ID 0137-A2.001.009

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.4.5 

This treatment is alternately described as "natural & biodegradable" 

and "potentially toxic to fish and other aquatic life". The best observation I read was that using a chemical (even a naturally occurring 

one) in a water treatment plant is far different than in a construction site. The former has a relatively constant flow rate and the chemical 

is introduced accordingly, by highly trained personnel. At the construction site, the water flow is highly variable, and even if the 

operator is sufficiently trained, there is a temptation to use more than necessary since the object is to keep the turbidity below permitted 

release values. Strategies generically originating from potable water treatment are inherently risky as the goal is to make the water so 

clean as to be devoid of any life which can be counterproductive to maintaining the integrity of naturally occurring receiving waters. 

Clear swimming pools are not hospitable habitats. 

If not enough earns you a citation for too much turbidity, and too much earns you one for toxicity/fish kills, this approach may be more 
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problematic than problem solving. The prototypical applications are oriented to small drainage areas, precisely the ones that are not 

expected to need it. Large drainage areas, where the permit requirements may include advanced treatment, are susceptible to larger 

unintended releases. 

This underscores the need to rethink using flocculants in constructions sites at all. To the extent that there are toxicity concerns, the 

so‐called cure could be worse than the original problem. 

Response 

Refer to Response 2.22. 

Comment ID 0141-A2.001.007

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: 2.1.4.5 

4. Authorization of Active Treatment: Region X does not recognize active treatment such as the use of polymers as a means of CGP 

compliance. Idaho does not recognize active treatment as a tool to improve water quality by reducing offsite sediment discharges. Other 

states do utilize the use of chemical treatment to improve water quality in offsite discharges. It would be beneficial if the CGP could 

authorize the use of chemical treatment on a national basis. 

Response 

Refer to Response 2.22. 

Comment ID 0153-A1.001.014

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.1.4.5 

1. The requirement should include detailed acute toxicity testing requirements for the chemicals beyond what is included in MSDS. The 

results of these toxicity tests should conclude the toxic (acute and chronic) level of the specific chemical typically given in ppm. These 

results can then be used to require that the application of the chemicals do not reach the toxic levels from the toxicity testing results. The 

end result would be a maximum dosage rate for all chemicals, whether it is chitosan, anionic, neutral, or a net positive (cationic) product. 

2. This section is inadequate based on the prescriptive nature of the previous sections. The EPA has no idea how to administer chemicals 

in a passive treatment system. The actual application dosage procedures are complicated. 

Response 

Refer to Response 2.22. 

Comment ID 0159-A1.001.017

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 
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Issue Category: 2.1.4.5 

This treatment is alternately described as "natural & biodegradable" and "potentially toxic to fish and other aquatic life". The best 

observation we read was that using a chemical (even a naturally occurring one) in a water treatment plant is far different than in a 

construction site. The former has a relatively constant flow rate and the chemical is introduced accordingly, by highly trained personnel. 

At the construction site, the water flow is highly variable, and even if the operator is sufficiently trained, there is a temptation to use more 

than necessary since the object is to keep the turbidity below permitted release values. Strategies generically originating from potable 

water treatment are inherently risky as the goal is to make the water so clean as to be devoid of any life which can be counterproductive 

to maintaining the integrity of naturally occurring receiving waters. Clear swimming pools are not hospitable habitats. 

If not enough earns you a citation for too much turbidity, and too much earns you one for toxicity/fish kills, this approach may be more 

problematic than problem solving. The prototypical applications are oriented to small drainage areas, precisely the ones that are not 

expected to need it. Large drainage areas, where the permit requirements may include advanced treatment, are susceptible to larger 

unintended releases. 

This underscores the need to rethink using flocculants in constructions sites at all. To the extent that there are toxicity concerns, the 

so-called cure could be worse than the original problem. 

Response 

Refer to Response 2.22. 

Comment ID 0168-A1.001.017

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 2.1.4.5 

-- Chemical Treatment for Sediment Removal (Section 2.1.4, Page 19): The potential for using chemical treatment to address site 

sediment discharges is deeply troubling, and provides a significant cause for concern. This may be a case of 

"the-old-Iady-who-swallowed-the-fly", where one pollutant is abated through the use of another, resulting in the use of more and more 

chemicals onsite, and more and more related regulatory requirements. Our experience has been that given time and adequate design, 

passive measures are generally effective in achieving background concentrations of turbidity and suspended sediment, and chemical 

treatment may not be necessary or desirable. If an applicant elects chemical treatment to reduce sediment transport, then the minimum 

permit requirements as proposed should be sufficient. 

Response 

Refer to Response 2.22. 

Comment ID 0401.001.001

Author Name: Unknown Unknown 

Organization: Colorado Department of Public Health and Environment - Colorado 

Issue Category: 2.1.4.5 

Part 2.1.4.5 of the Permit includes limitations for discharge for which chemical treatment has been used. The Division requires all 
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chemicals used in the treatment process be identified on the permit application or through permit modification for our construction sector 

general permits (i.e., stormwater, dewatering, remediation, and hydrostatic discharges). The Uivision has not authorized discharges with 

chemical treatment under our stormwater construction general permit to date. Under our other general permits, the Division will evaluate 

the reasonable potential for pollutants associated with chemical treatment to be in the discharge, and includes numeric effluent 

limitations where such potential exists. The Division recommends that the EPA evaluate if the limitations in Part 2. 1.4.5 will be 

effective at preventing discharges that are in exceedance of stream standards due to pollutant additions resulting from chemical 

treatment. Specifically, for storm event driven discharges, where holding times and other variables may change dramatically, has the 

EPA evaluated the potential for the discharges to contain contaminants at concentrations that result in exceedance of stream standards 

due to the addition of flocculants? Has the impacts on beneficial uses from flocculants and associated pollutants in the discharge been 

evaluated? Are additional limitations and monitoring necessary to address dissolved pollutants and potential changes in pH associated 

with all chemicals that may be covered in this authorization? 

Response 

Refer to Response 2.22. 

2.1.4.5Q RESTRICTIONS ON POLYMERS, FLOCCULANTS OR OTHER

Comment ID 0007-A1.001.003

Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 2.1.4.5Q 

Comment: I believe the allowable chemical treatment alternatives should be limited to those that are able to show zero or very low 

toxicity to fish and other aquatic life rather than requiring residual testing. Once the horse is out of the barn, it is too late to close the gate! 

Accidents will happen, and if a toxic agent is used on site, there is a high probability that we will experience fish kills and other adverse 

affects. Chemicals can do a great job in helping precipitate fine soils but if we are using toxic chemicals to assist in that effort, the risk to 

the environment would be less if we just capture the sediment that we can through strictly mechanical means and let the rest go. 

Response 

Refer to Response 2.22. 

Comment ID 0015-A2.001.007

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.4.5Q 

Q6. Chitosan testing - Agree for sensitive tier 2 and 3 waters. Residual standard should be manufacturer driven and specific to each 

product. 

Response 
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Refer to Response 2.22. 

Comment ID 0034-A1.001.005

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 2.1.4.5Q 

Proposed Requirement/Section Addressed: CGP Section 2.1.4.5, Chemical treatment. 

Comment: Do not limit chitosan residuals in discharge water to levels that would limit their effectiveness. 

Discussion: This section as currently written provides reasonable flexibility to employ appropriate sediment treatment technology. If 

residual testing is required and limited to the point of inadequate performance, some technologies would no longer be available. 

Depending on the extent, it could place the dischargers in a position of requiring treatment but having few, if any, viable options. 

Recommendation: Recommend that the permit maintain adequate flexibility to employ appropriate treatment. 

Response 

Refer to Response 2.22. 

Comment ID 0046-A1.001.010

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.4.5Q 

The restriction is unwarranted and would practically eliminate the use of PAM or other polymers as a soil stabilizer. PAM and other 

polymers attach readily and irreversibly to soil particles. The PAM would hardly penetrate 4 inches into the soil and would never reach 

to a 4-foot water table. Like the condition below, it may be more practical to require a 100' buffer from Waters of the US or require 

capture of runoff in sedimentation basins. PAM will not penetrate vertically through the soil column. 

Response 

Refer to Response 2.22. 

Comment ID 0055-A1.001.005

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 2.1.4.5Q 

Technology for polymers and flocculants is changing rapidly. Testing of products prior to use on construction sites should be 

implemented by the manufacturer prior to use as an approved chemical. Continued commissioning of the products should also be the 

responsibility of the manufacturer. Requiring testing to be included in the project budget, could result in a reduction of a chemical's use, 

whether beneficial or not. 
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Response 

Refer to Response 2.22. 

Comment ID 0062-A1.001.023

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.1.4.5Q 

Brevard County Comment: Max dosage too high for most applications. So default max dosages are always wrong. 

Response 

Refer to Response 2.22. 

Comment ID 0064-A1.001.019

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.4.5Q 

Section 2.1.4.5.a-c, page 19 - Full "Chemical treatment" section 

•Attempting to dictate a specific dosing or maximum dosing given uniqueness of each project and application would be difficult. Suggest 

that operator should be required to follow manufacturer recommendations and that the permit not specify any specific or maximum 

dosage. 

Response 

Refer to Response 2.22. 

Comment ID 0064-A1.001.020

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.1.4.5Q 

Section 2.1.4.5, page 19 - Full "Request for Comment" paragraph 

•The presence of chitosan residuals does not necessarily indicate overdosing. In addition, during EPA presentations on Construction & 

Development Effluent Guidelines during a March 2010 webcast, EPA staff noted that the acute toxicity level of anionic PAM for 

daphnia and rainbow trout is orders of magnitude higher than the effective dose. This suggests that significant overdosing resulting in 

significant residual would be required to have negative impacts on receiving water bodies. By requiring 2.1.4.5.b, this should limit 

dosing to only required amounts as recommended by manufacturer information. 

Response 
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Refer to Response 2.22. 

Comment ID 0066-A1.001.025

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.1.4.5Q 

Discussion: Requiring the use of flocculants and chemical treatments (e.g. chitosan, polyacrylamide) to enhance sediment removal 

would have a large impact on construction costs. The use of these chemicals could potentially require applicants to clean up the water 

after these chemicals were used, where the chemicals used have now become a pollutant. Many of the items required by this section seem 

to be overly burdensome and will have a negative effect on construction projects and could double or triple the costs of individual 

construction projects. 

Suggestion: If an ELG is established that requires the use of chemical treatments, then you should not consider the chemical utilized as a 

pollutant, if it is used in good faith and at recommended application levels. If EPA is uncertain of the safety of chemical treatments, then 

an ELG should not be established that requires their use. 

Response 

Refer to Response 2.22. 

Comment ID 0071-A3.001.028

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.1.4.5Q 

•Part 2.1.4.5. Chemical Treatment. CDOT is supportive of testing and establishing a maximum dosage in the permit. 

Response 

Refer to Response 2.22. 

Comment ID 0074-A2.001.009

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.1.4.5Q 

The DEQ does not recommend using chemicals for stormwater control. Therefore, it is not necessary to require residual testing and 

specify a maximum dosage rate. The DEQ encourages the use of a combination of sediment and erosion control measures in order to 

achieve maximum pollutant removal. If chemical treatment is used, the chemical pollutants shall not be allowed to discharge to the 

waters of the US. Residual testing may be an onerous requirement for owners/operators. 

Response 

Refer to Response 2.22. 
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Comment ID 0075-A2.001.014

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.4.5Q 

This would greatly restrict waste areas of polymer-bound sediment on-project, considering the typical narrow right-of-way on linear 

construction areas. 

Response 

Refer to Response 2.22. 

Comment ID 0075-A2.001.016

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.1.4.5Q 

Requirements like this make it harder to apply liquid treatments in linear applications. When it is used on haul roads, steep cut and fills 

and topsoil piles, it makes it hard to set up enough filtration devices. A maximum dosage rate should be included in the permit. 

Response 

Refer to Response 2.22. 

Comment ID 0080-A2.001.010

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.1.4.5Q 

Partner Response: One such innovative technology is Chitosan-Enhanced Sand Filtration (CESF). Derived from waste crab and shrimp 

shells, chitosan can coagulate colloidal sediment suspensions in water that can be subsequently sand filtered producing a clear filtrate 

that may be legally discharged directly to surface water. Unlike most water treatment agents, chitosan becomes bound to the sediment 

particles and is completely captured in the sand filter so that only clear, pure water is discharged. Chitosan contains no polyacrylamide, 

polyamine, aluminum, or toxic byproducts and is biodegradable. (From IECA web site). Would the state of New Mexico even allow the 

use of chemical additives for this purpose? Based on the limited turbidity testing that has been conducted in the Albuquerque 

metropolitan area it is unclear if the purposed limits would be reached. The EPA must recognize that some states will not allow chemical 

treatment or additions for the purposes of surface water TSS removal. Requiring or recommending the use of chitosan or other 

bio-polymer and further prescribing dosage rates seems inappropriate language to be included in the CGP. 

Response 

Refer to Response 2.22. 
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Comment ID 0085-A2.001.008

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.1.4.5Q 

Rockville supports appropriate limitations on the use of chemical flocculants and encourages EPA to further investigate the risks and 

benefits of using these treatments. 

Response 

Refer to Response 2.22. 

Comment ID 0090-A1.001.019

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.4.5Q 

EPA requested comments on the proposed requirement governing the use of chemicals for stormwater control, in Part 2.1.4.5 of the 

Draft Permit. AGA understands that some local permitting authorities believe that anionic polymers are important additions that keep 

sediment on-site, and that some local SWPPP permits require their inclusion. In general, chemical treatment is effective only if properly 

designed and maintained. Natural gas utilities have had limited experience using polymers. Their use typically requires expertise to 

ensure both the proper use of the correct polymer and adequate mixing. As for EPA's proposal on requiring residual testing in connection 

with the use of chitosan, AGA supports the inclusion of a maximum dosage rate as an alternative to testing the residual. For example, in 

areas with fine silty clay, polymers may be the only option available to keep these soils from leaving the site during dewatering or 

stormwater discharges. 

Response 

Refer to Response 2.22. 

Comment ID 0096-A1.001.069

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.1.4.5Q 

EPA is proposing to require residual chitosan testing, presumably to ensure no adverse effects from its use. EPA, however, has not 

provided any justification for only selecting this particular chemical polymer for residual testing. Does the Agency now believe chitosan 

is much more toxic than any other polymer? If so, how would the Agency know this, as chitosan was not used in any of the true passive 

treatments examined by EPA when developing the C&D ELG. In short, the proposal for residual chitosan testing does not have any 

foundation and runs counter to EPA's justification in the C&D ELG that chitosan was a safe natural product. NAHB raised several 

concerns with the use of chemicals during the development of the ELG including toxicity of such chemicals. EPA dismissed the 

comments regarding potential toxicity of chitosan and stated that passive treatment, by its nature, does not tightly control the polymer 

dosage, stating that the only documented case of possible toxicity or adverse effect was due to mismanagement and/or misuse of the 

polymer. The Agency justified the final ELG and its turbidity limit in part by stating: 
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"EPA has determined that when properly used, environmental impacts from polymers or flocculants should not occur through the use of 

passive treatment systems." 

and 

"Based on the information in the record EPA has determined that when polymers are properly applied the risks of toxicity to aquatic life 

or adverse effects to the receiving water are minimal." [FN 79] 

Now, EPA may not only require monitoring for chitosan, but apparently the Agency is also considering draconian measures even from 

the mere detection of any chitosan, such as 24 hour notification, immediate corrective action, and measurement of chitosan every two 

hours (day and night?) until the discharge ends. This is an incredible response to a problem that was termed "minimal" in the preamble to 

the final C&D ELG rule. 

EPA received many comments on the proposed C&D ELG raising concerns that any passive treatment did not, of necessity, administer 

exact dosages of polymer (otherwise the systems would cease to be passive), and thus could potentially introduce too much polymer with 

adverse effects. The main examples of passive treatment examined by EPA were those used and studied by McLaughlin, which simply 

applied scoops of polymer (PAM, not chitosan) to fiber check dams as they were installed in runoff ditches and simply allowed the rain 

events to cause water to dissolve the polymer. PAM logs and PAM blocks were also used in other McLaughlin tests and papers. These 

systems clearly did not meter out exact dosages of polymer, and did not use chitosan. McLaughlin states in his papers that he does not 

believe that these systems posed any real hazard to the receiving streams, in essence agreeing with the EPA's opinion from the final C&D 

ELG [FN 80] NAHB opposes any mandatory monitoring for chitosan, or any other polymer used in passive treatment. EPA was warned 

in comments to the C&D ELG that this could be a problem with an ELG that relied on passive treatment to meet a mandatory turbidity 

limit, and this was dismissed out of hand by EPA. Now EPA is essentially repudiating what was determined in the ELG, and adding costs 

to that ELG that were not part of the consideration for that rule. EPA should either not require testing for chitosan or any other polymer, 

or remove the C&D ELG the numeric limit ( which is the reason why polymers such as chitosan must be used). 

Finally, the requirements for immediate corrective actions during actual discharge from a passive system are not practical. Polymers 

such as chitosan are likely in the form of logs or socks under flowing water, upstream from ponds or settling traps. Getting to them might 

be hazardous, depending on the rain event and volume. Furthermore, pulling out the logs would almost certainly result in a violation of 

the yet to be determined numeric turbidity limit and the SWPPP, and it is uncertain what could be used instead to guarantee no further 

detection of polymer. The end result could well be violations both for the discharge of chitosan (or other polymer) and also exceeding the 

turbidity limit. 

NAHB remains strongly concerned about any permit requirement that essentially mandates the use of unstudied or questionable 

chemicals. It is clear that EPA lacks sufficient data on the use of various polymers for this purpose. EPA must refrain from enacting any 

permit requirement that relies on chemical treatment, at least until which time it has sufficient data to demonstrate both its benefits and 

detriments. 

[FN 79] 74 Federal Register 63,008 (December 1, 2009). 

[FN 80] Dr. Richard A. McLaughlin's Publications. http://www.soil.ncsu.edu/people/detail.php?who=36 Accessed July 11, 

2011 
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Response 

Refer to Response 2.22. 

Comment ID 0102-A2.001.003

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2.1.4.5Q 

a. c, i, what are the areas "established" in Section 2.1.2? All Waters of the U.S. or just impaired/sensitive? 

Response 

Refer to Response 2.22. 

Comment ID 0102-A2.001.004

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2.1.4.5Q 

b. c, vi, Why is chitosan given special treatment/allowances by allowing this cationic material to be released when all others may not be?

Response 

Refer to Response 2.22. 

Comment ID 0102-A2.001.005

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2.1.4.5Q 

c. On shallow groundwater provision - c, ii, is this a seasonal groundwater table depth? It should be the expected groundwater table depth 

that matches the expected season/duration of the use of the treatment. 

Response 

Refer to Response 2.22. 

Comment ID 0102-A2.001.006

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 2.1.4.5Q 

d. b, what is the treatment used is non-proprietary? 
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Response 

Refer to Response 2.22. 

Comment ID 0110-A1.001.018

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.1.4.5Q 

The use of PAMs applied directly to soil surfaces will likely lead to runoff that may be toxic to aquatic species. 

Response 

Refer to Response 2.22. 

Comment ID 0112-A2.001.005

Author Name: Karimi Hamid 

Organization: DC Dept of Environment 

Issue Category: 2.1.4.5Q 

Part 2.1.4.5 Chemical Treatment 

Residual testing for polymers and dosage rates should be included in the Permit. EPA should include maximum dosage rates to prevent 

over application. Typically,construction workers or operators are not trained in the harmful effects of these substances on aquatic 

organism and over application may occur. The use of polymers, while providing a good sediment control system, must be monitored 

closely to reduce or eliminate the possible added pollution and environmental degradation it would cause if excess amounts are released 

into a receiving stream. It appears that EPA does not have enough data to determine what level of certain polymers (i.e. Chitosan) in the 

discharge can have an impact on plants and benthic organisms. Therefore, EPA should provide funding for the monitoring of the effects 

of polymers (i.e Chitosan) on aquatic organisms. 

Response 

Refer to Response 2.22. 

Comment ID 0131-A1.001.025

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.1.4.5Q 

The use of passive and active treatment including the use of chitosan can in some cases be a highly effective tool for addressing turbidity 

at challenging sites. The allowance for chitosan to be used as a potential tool can be hindered through the potential over regulation of its 

use through excessive monitoring requirements. Practical design of treatment systems and passive deployment of chitosan based 

coagulants can be accomplished without the need for residual chitosan testing. The requirement for residual testing potentially precludes 

chitosan's use in many simple passive treatment systems, the specific technologies that have been used in the past by EPA in helping to 

establish effluent limitation guidelines for turbidity reduction at construction sites. 
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In addition, the levels of acceptable chitosan residuals should be established specific to the receiving water. There are many receiving 

waters where it is likely that low level chitosan residuals would present little or no likely harm to the environment. 

Rather than require testing on every site that employs chitosan (or other coagulants such as polyacrylamide), it would be much more 

cost-effective for EPA or the states to conduct more well thought out studies of potential passive applications and toxicity tests and then 

develop appropriate guidance on their use (e.g. establish appropriate application/dosage rates, etc.) 

Response 

Refer to Response 2.22. 

Comment ID 0133-A2.001.019

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.1.4.5Q 

With the incorporation of a turbidity limitation in this permit, MDT anticipates the need to provide chemical treatment for compliance 

purposes. At this time, chemical treatment has not been used in the state of Montana for construction storm water controls. MDT is 

concerned thaI the inclusion of residual testing and/or a maximum dosage rale would be problematic to implement and would drive up 

costs, likely discouraging the use oj these innovative technologies. That said, MDT sees value in testing to ensure Montana 's waterways 

are not damaged. 

Response 

Refer to Response 2.22. 

Comment ID 0137-A2.001.010

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.1.4.5Q 

From an environmental perspective, the use of chemicals such as flocculants and polymers poses a risk to the environment and human 

health if used improperly. If chemicals are to be used for enhanced sediment removal, then an additional permit and residual testing 

should be required. Optionally, the operator could supply credentials such as training in the use of these chemicals and give a reason that 

the chemicals will be better suited for the treatment of the wastewater to warrant their use. 

Response 

Refer to Response 2.22. 

Comment ID 0159-A1.001.007

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 
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Issue Category: 2.1.4.5Q 

From an environmental perspective, the use of chemicals such as flocculants and polymers poses a risk to the environment and human 

health if used improperly. If chemicals are to be used for enhanced sediment removal, then an additional permit and residual testing 

should be required. Optionally, the operator could supply credentials such as training in the use of these chemicals and give a reason that 

the chemicals will be better suited for the treatment of the wastewater to warrant their use. 

Response 

Refer to Response 2.22. 

Comment ID 0172-A1.001.002

Author Name: Enssle Colin 

Organization: GE Water & Process Technologies 

Issue Category: 2.1.4.5Q 

Section 2.1.4.5, Requirements Applicable to Specific Stormwoter Controls, Chemical Treatment, begins, "If you are using polymers, 

flocculants, or other treatment chemicals (e.g., chitoson, polyacrylamide (PAM)) to enhance sediment removal, you must..." It is 

appropriate to include the classes of chemistries that are proven methods for enhancing sediment removal. It is inappropriate, however, 

to specificlly mention any potential treatment chemistry in detail. Specifying a particular chemistry like chitosan could be read as EPA's 

endorsement of that 

chemistry,and give it an unwarranted and unfair competitive advantage. 

Response 

Refer to Response 2.22. 

Comment ID 0172-A1.001.003

Author Name: Enssle Colin 

Organization: GE Water & Process Technologies 

Issue Category: 2.1.4.5Q 

Section 2.1.4.5 (c) (iii) places a use restriction on chemical treatment, such that any use of sediment containing polyacrylamide, chitosan, 

and other bio-polymers as fill material on-site is limited "to not closer than 100 feet from waters of the U.S" The 100-feet requirement 

seems excessive, and is not tied to a specific mark - bank, high water mark, stream midpoint, etc. More clarity is necessary as to why this 

distance was chosen and how it is measured. If this is detailed in other sections of the Construction General Permit, there should be a 

reference. 

Response 

Refer to Response 2.22. 

2.1.4.6 DEWATERING PRACTICES
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Comment ID 0015-A2.001.029

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.1.4.6 

2.1.4.6 Add a clear statement that dewatering to bare soil areas is prohibited. 

Response 

Refer to Response 2.23. 

Comment ID 0017-A1.001.013

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.1.4.6 

11) 2.1.4.6 ‐ The dewatering practices listed do not address the discharge of groundwater or stormwater to upland areas where natural 

vegetation can remove sediment. If the discharge occurs within the construction area, it should be acceptable to discharge to an upland

area and allow the water to infiltrate without having to remove sediment first. 

Response 

Refer to Response 2.23. 

Comment ID 0019-A1.001.001

Author Name: Owens Kelly 

Organization: Bureau of Land Management (BLM) 

Issue Category: 2.1.4.6 

1.Paragraph 2.1.4.6 Dewatering practices a.This comment is in reference to the sentence "Uncontaminated, non-turbid dewatering 

wastewater, such as well point groundwater, can be discharged without being routed to a control..." Consideration needs to be given to 

the situation of produced water from coal bed methane. In some instances, the surrounding soil may have a relatively high salt content. 

Often produced water from coal bed methane wells is so clean that when it is discharged onto the ground, it leaches salt from the soil and 

increases the salt content in the water. This could pose a problem in the Colorado River Basin, where salt contents are already high. 

Response 

Refer to Response 2.23. 

Comment ID 0034-A1.001.006

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 2.1.4.6 

Proposed Requirement/Section Addressed: CGP Section 2.1.4.6, Dewatering practices: prohibition of discharging groundwater or 
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accumulated stormwater that is removed from excavations, trenches, foundations, vaults, or other points of accumulation associated with 

a construction activity, unless such waters are first treated by an appropriate control for sediment. 

Comment: The term "treated" may imply requirements beyond traditional structural sediment controls such as those included in a 

Stormwater Pollution Prevention Plan. 

Discussion: Many control measures may not fit the definition of "treatment.". Deleting the word "treated" reduces confusion regarding 

types of control measures that are acceptable. 

Recommendation: Recommend changing first sentence to "You are prohibited from discharging groundwater or accumulated 

stormwater...unless appropriate controls for sediment are applied." 

Response 

Refer to Response 2.23. 

Comment ID 0046-A1.001.011

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.1.4.6 

This section seems more complicated than it needs to be. It seems prudent to say that discharges need to comply with State Water Quality 

Standards. 

EPA needs to define "Non-Turbid". If the turbidity ELG is invoked, this condition would supersede the EGL. 

If there were oil in the water, one would need a Remedial General Permit (RGP). Let the RGP permit stand on its own and do not mix the 

conditions ofthe CGP and RGP. 

Why did EPA change the terminology from Stormwater to Wastewater? 

Condition vi and wi seem out of place. EPA should regulate the discharge and not attempt to control the Contractors mean and methods.

Response 

Refer to Response 2.23. 

Comment ID 0053-A2.001.013

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.1.4.6 

11. Page 19; Part 2.1.4.6 Dewatering practices: a. Discharge requirements. Consider adding language informing permittees that separate 

permits and/or monitoring conditions may be required to cover "dewatered" discharges to "waters" based on TMDL limits or designated 
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drinking water intake stream reaches, such as Aquifer Protection Permits or Department of Water Resources notification. 

Response 

Refer to Response 2.23. 

Comment ID 0090-A1.001.020

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.1.4.6 

Under Part 2.1.4.6 on Dewatering Practices, EPA should clarify that an appropriate sediment control for groundwater removal from 

shallow linear excavations is the traditional "sediment sock" method of covering the ends of discharge hoses to filter out sediment. Also, 

uncontaminated, non-turbid dewatering wastewater should be clarified to include all groundwater, not just "well-point ground water" as 

stated in the Draft Permit under 2.1.4.6. 

Response 

Refer to Response 2.23. 

Comment ID 0093-A2.001.054

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.1.4.6 

AGC recommends that EPA consider adding language to inform permittees that separate permits and/or monitoring conditions may be 

required to cover "dewatered" discharges to "waters" based on TMDL limits or designated drinking water intake stream reaches, such as 

Aquifer Protection Permits or Department of Water Resources notification. 

Response 

Refer to Response 2.23. 

2.2 STABILIZATION REQUIREMENTS

Comment ID 0049-A1.001.020

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2 

While it is possible to "minimize" erosion, it may be impossible to "prevent" sediment discharge whenever runoff events occur. If 

"prevent" means total removal of sediment from runoff waters, then this is an unrealistic criterion that nobody can meet! However, it is 

feasible to "minimize" the discharge of sediment. 
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Response: 

EPA agrees with the commenter that the objective of typical stabilization measures is to minimize erosion. The final permit does not 

depart from this goal. EPA’s decision to not finalize the proposed C-factor approach and associated stabilization criteria likely 

addresses the commenter’s concerns. 

Comment ID 0056-A2.001.008

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.2 

Restoration projects often rely on natural processes to perform the final stabilization. A specific example is a dam removal to restore a 

free flowing stream where there is an impoundment. A created channel accompanied by planting throughout the former impoundment 

area can actually be counterproductive. The river may not naturally follow a designed and excavated river channel despite best efforts to 

intuit the preferred river channel. The newly restored freeflowing river will eventually find its own path through the former 

impoundment and this self-selected course will be the most sustainable one. Aggressively stabilizing a restoration site may delay the 

river's ability to create its preferred and more stable channel. DER requests that EPA provide more flexibility in the permit to allow for a

natural-processes approach for pro-active restoration projects. 

Response: 

Refer to Essay Response 2.26.4. 

Comment ID 0071-A3.001.019

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2 

•Part 2.2 Stabilization Requirements. In general this Part is unclear. Restructuring this section might be beneficial. For example, 

breaking the sections down into Requirements for each type of Stabilization, Deadlines for establishing each type of Stabilization, 

Seeding Requirements, etc. might provide clarity. 

Response: 

Refer to Essay Response 2.26.1. 

Comment ID 0080-A2.001.015

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.2 

3. Minimize the amount of soil exposed during construction - Phasing is always a good idea. 

Response: 
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EPA agrees with the commenter. See Part 2.1.1.1 of the final permit. 

Comment ID 0091-A2.001.019

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.2 

19. Part 2.2: The definitions in this section are not identical to the definitions for these terms in Appendix A. The Appendix should 

include the "for the purpose of this permit" definitions. 

Response: 

EPA appreciates the comments. These discrepancies have been corrected. EPA has used the phrase “for the purposes of this permit” 

for many of the definitions in the final permit. 

Comment ID 0096-A1.001.038

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.2 

EPA has proposed a complex set of stabilization requirements that are detailed in Part 

2.2. The stabilization requirements vary depending on the location of the construction activities, 

such as stabilization requirement for steep slopes, sensitive areas and arid regions. The language 

in the CGP is far more prescriptive than the language in the final ELG. Overall, EPA has 

removed the language from the ELG that allows for stabilization initiation ‘as soon as 

practicable’ and instead relies on prescriptive deadlines. This is very problematic, as many times 

it is unclear whether there will be further disturbance of the area within a specified timeframe 

due to perfectly legitimate and reasonable contingencies (i.e., weather, scheduling, etc.). EPA’s 

mandate on the stabilization requirements is unreasonable, arbitrary, and capricious. EPA must 

provide flexibility in the stabilization requirement to allow permittees meet this requirement and 

stay in compliance. 

Response: 

Refer to Essay Response 2.26.2.

Comment ID 0107-A2.001.011

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 2.2 

One of the most effective mechanisms to control sediment runoff both during construction and post construction is to limit the amount of 

ground that is disturbed during the construction activity. Because New Mexico is so dry and it is difficult for vegetation to get 

established, it important to maintain the natural and preferably native vegetation that already exists. Too often homebuilders and 

developers will blade an entire 3, 5, or 10 acre plot of land to put in one small house or trailer in a misguided belief that they should get 

rid of the "brush" around the home. This brush is often native vegetation like sagebrush or rabbit bush that provides critical erosion 
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control functions. In addition, once the native vegetation is removed noxious weeds almost always take over. Amigos Bravos would like 

to see incentives for disturbing less area incorporated into the permit. Perhaps if a permittee can show that a minimum footprint was 

disturbed a more lenient stabilization deadline could be given. Regardless, there should be multiple incentives for disturbing less area 

built into the structure of the permit. The lack of adequate incentives for minimizing the construction footprint is the biggest weakness of 

the draft permit. 

Response: 

Refer to Essay Response 2.26.3. 

2.2.1 DEADLINES FOR INITIATING AND COMPLETING 

STABILIZATION [REQUEST FOR COMMENT]

Comment ID 0015-A2.001.030

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.2.1 

2.2.1 Add additional requirements for stabilization of stockpiles. We suggest "stabilize all stockpiles within 7 days of cessation of 

materials adds to the pile." 

Response: 

EPA appreciates the comment. The final permit adopts erosion and sediment control requirements for stockpiles. See Part 2.1.2.4. 

Although the permit does not specify stabilization requirements for such stockpiles, the operator is subject to controls that the Agency 

believes are similarly effective. 

Comment ID 0046-A1.001.012

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.2.1 

The Department supports this condition 

Response: 

EPA notes the commenter’s support for this requirement. 

Comment ID 0087-A1.001.022

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.2.1 

EPA has proposed different deadlines for stabilization, depending on other practices implemented at a construction site. See e.g., 
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Sections 2.1.2.2.b (stabilization for sites with buffers less than 50 feet in which disturbance occurs), 2.1.4.1.b (stabilization for 

stormwater conveyance channels), 2.1.4.2.c.ii (stabilization for disturbances to steep slopes), 2.2.1 (general stabilization requirements), 

2.2.1.3 (stabilization for discharges/disturbances to sensitive areas), 2.2.1.4 (stabilization deadlines for arid/semi-arid areas), and 

4.2.2.2.b (stabilization for sites with discharges to impaired waters). UWAG is concerned that none of these deadlines is achievable or 

appropriate, given the range of different conditions that operators will encounter. Specific stabilization practices and timeframes vary 

widely around the country depending on geography, climate, and terrain. EPA needs to revise its stabilization deadlines to reflect this 

variation, and to provide relief to operators whose particular site conditions make stabilization within a narrowly prescribed period 

impracticable. We support EPA's proposal to do so for projects in arid and semi-arid areas (Section 2.2.1.4), but we urge EPA to extend 

this relief to other areas, as well. Specifically, we urge EPA to replace the proposed stabilization deadlines with a "as soon as practicable" 

standard or, alternatively, to provide longer time periods for completing initial stabilization for sites that meet a certain acreage and/or 

linear threshold. 

Response: 

Refer to Essay Responses 2.28.1, 2.28.3, and 2.28.4. 

2.2.1.1 DEADLINE TO INITIATE STABILIZATION

Comment ID 0030-A2.001.016

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.2.1.1 

Section 2.2, page 20 

Immediate stabilization may be more appropriate for sites where earth-disturbing activities have permanently ceased and are not 

anticipated to resume in the future than for sites where earth-disturbing activities have temporarily ceased but in some instances may 

resume. Immediate stabilization of an area where construction activities have been temporarily ceased but are expected to resume within 

a short period of time, could result in a redisturbance of a recently stabilized site and is considered unnecessary in instances where 

additional BMPs are installed providing protection. Stabilization should be encouraged to occur quickly, but immediately seems 

impractical. 

Additionally, there needs to be clarification on the language that "within in any area of your construction site" will trigger these 

stabilization requirements. If you have final grades on a small area of your site but you are scheduled to finish another area two days 

later, is this requirement stating you must immediately stabilize the smaller area and can't wait two days to stabilize both when there are 

additional sediment BMPs and the area has been surface roughened to reduce the potential of erosion? 

We recommend stating that stabilization practices will be initiated as soon as feasible at sites where earthdisturbing activities have been 

either temporarily or permanently ceased. 

Response: 

Refer to Essay Response 2.28.4. 
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Comment ID 0037-A1.001.016

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.1 

portions of your site where earth‐disturbing activities have permanently ceased or temporarily ceased (and will not resume for a period 

exceeding 14 calendar days) if 1) soil conditions due to an earlier storm event are too wet for stabilization activities (e.g. preparing the 

soil for planting, seeding and mulching, etc.) or 2) the soil was frozen during this period precluding any further activities. If any of these 

events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable. 

Response: 

Refer to Essay Responses 2.28.2 and 2.28.4.

Comment ID 0047-A2.001.012

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.2.1.1 

Section 2.2, page 20 

Stabilization should be implemented as quickly as possible, but "immediately" is not always practical or feasible. Weather and site 

conditions quite often can impede "immediate" stabilization measures and in some instances can cause more damage (i.e. if the ground is 

frozen, or too wet for equipment to access). That is why additional BMPs should be used such as surface roughening or perimeter 

control. 

Xcel Energy recommends stating that stabilization practices will be implemented as soon as possible/feasible at sites where earth 

disturbing activities have been either temporarily or permanently ceased. 

Response: 

Refer to Essay Response 2.28.4. 

Comment ID 0062-A1.001.024

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.1.1 

Brevard County Comment: "Exposed portions": How big an area? 10% of site? 10 sq ft? 

Response: 

Refer to Essay Response 2.32. 

Comment ID 0062-A1.001.025
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Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.1.1 

Brevard County Comment: Which "final" grade? Subbase, base, paved or sodded? 

Response: 

Refer to Essay Response 2.29. 

Comment ID 0093-A2.001.055

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.2.1.1 

In several parts of the Draft pertaining to the stabilization requirement, EPA states: "You must immediately initiate stabilization ... ." 

This language appears in every stabilization scenario in the CGP as written (section 2.1.2.2.b.i, 2.1.4.2.c.i, 2.2.1.1). It is completely 

impractical and infeasible, and more importantly technical compliance with such a standard is often not really practical. Any EPA 

inspector or any environmental watchdog group could claim that stabilization was not started "immediately," and this generally cannot 

be disproved, because technically, even a minor delay is not "immediate." 

Response: 

Refer to Essay Responses 2.27 and 2.28.4. 

Comment ID 0096-A1.001.042

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.2.1.1 

In several sections of the proposed CGP pertaining to the stabilization requirement, EPA 

states “You must immediately initiate stabilization...” This language appears in every 

stabilization scenario (Parts 2.1.2.2.b.i, 2.1.4.2.c.i, 2.2.1.1). It is completely infeasible, and more 

importantly, often technically impossible to comply with this standard. Any EPA inspector or 

any environmental watchdog group could claim that any stabilization was not started 

“immediately,” and this generally cannot be disproved because technically, even a minor delay is 

not “immediate.” A Site Operator/Owner may not be aware that land disturbance is complete 

for the next fourteen days (or shorter for some specialized situations) until someone verifies that 

the grading is correct. For example, stabilization is often performed by a different work crew, 

which would need to be summoned after grading was complete, and may not commence work 

until the following day. Also, separate surveying crews need to check the graded/filled elevations to confirm that they are correct. If not 

correct more grading or filling might be 

required. This is a time consuming process and not conducive to immediate action. 

Instead, the stabilization requirements should give a time frame within which the 
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stabilization must be completed. For example, Part 2.2.1.2 states that even general stabilization 

must be complete within seven calendar days, and special situations have shorter time limits for 

completion of stabilization. With these deadlines for completion, it is clear that an operator 

cannot delay the initiation of stabilization for very long, even if that were the intent. NAHB 

suggests the language should read, “Stabilization should be initiated as soon as is practical after 

grading or disturbing activities have permanently ceased, or have temporarily ceased and it is 

verified that they will not resume within the next 14 days.” This, coupled with the requirements 

for stabilization to be complete, is a standard that can feasibly be met by an operator. 

Response: 

Refer to Essay Responses 2.27, 2.28.4, and 2.29. 

Comment ID 0100-A2.001.008

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 2.2.1.1 

Section 2.2.1 describes USEPA's deadline for initiating and completing stabilization on construction sites that will not resume activity 

for a period of 14 or more days, or for a period of 7 or more days if any of the conditions in Part 2.2.1.3a apply to the site, but such 

activities will resume in the future. The City believes the 7-day suggested timeframe is not practical in the least. Fort Wayne experiences 

several days of rain, especially in the spring. There are often instances where there are only limited non-rain days within a month's time. 

USEPA should take this into consideration and determine what the intent of cease activity means. 

Response: 

Refer to Essay Response 2.28.2. 

Comment ID 0131-A1.001.031

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.2.1.1 

These Proposed CGP parts cited above require immediate stabilization of "any area of your construction site" when earth disturbing 

activity is temporarily or permanently ceased. Earth disturbing activity is defined as clearing, grading, and excavation. 

This is written such that work areas including front yards, back yards, side yards, drives and sidewalks, or streets, etc. that have been 

graded and are used for access to the active construction areas will need to be stabilized during active construction. This presents an 

impossible situation. It is suggested that working areas surrounding active construction activity are to be stabilized in accordance with 

the Proposed CGP once they are no longer needed to support the adjacent construction activity. 

Response: 

Refer to Essay Responses 2.28.4 and 2.29. 
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Comment ID 0153-A1.001.015

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.2.1.1 

1. This section includes the 14 day stabilization clause, but also introduces a 7 day clause for certain conditions. The EGL stated 14 days, 

so suggest staying consistent with that requirement. The 7 day stabilization requirement may become a scheduling nightmare especially 

if the 7 days have exceeded, but . work is to be done on day 10 because of weather, or working days (weekend). 

2. The 7-day timeframe is probably not achievable for DOT projects. In some cases, weather may create a situation where work is ceased

for 7 days invoking this requirement. A 14 day deadline is more reasonable. 

Response: 

Refer to Essay Response 2.33.1 and 2.33.2. 

2.2.1.2 DEADLINE TO COMPLETE STABILIZATION ACTIVITIES

Comment ID 0021-A1.001.010

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.2.1.2 

10. What if the stabilization deadline in 2.2.1.2 is not feasible? It may not be feasible to stabilize large areas in 7 days. On some projects 

the construction activities associated with stabilization can take weeks or even months. 

Response: 

Refer to Essay Response 2.33. 

Comment ID 0021-A1.001.017

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.2.1.2 

6. CGP Section 2.2.1.2 states that within 7 calendar days of initiating stabilization on exposed portions of your site you are required to 

have completed vegetative cover or non‐vegetative cover. It is not feasible to complete stabilization activities within 7 days in most 

cases. This is a labor intensive scope of work that can often times take weeks or even months depending on the project's size. If it is the 

EPA's intent to categorize a site into smaller portions for this requirement than further verbiage needs to be incorporated stating such. 

Often times, large areas are final graded and become ready for stabilization all at once and it is not possible to complete these activities 

in 7 days. 

Response: 
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Refer to Essay Responses 2.32 and 2.33. 

Comment ID 0053-A2.001.014

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.2.1.2 

12. Page 21; Part 2.2.1. Deadlines for Initiating and Completing Stabilization. Consider including language: "Where stabilization by the 

7th day is precluded by snow cover or frozen ground conditions, stabilization measures shall be initiated as soon as practicable." 

Response: 

Refer to Essay Response 2.33.3. 

Comment ID 0064-A1.001.021

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.2.1.2 

Section 2.2.1.2, page 21 - "Within 7 calendar days of initiating stabilization..." 

•Recommend keeping timeframes consistent throughout this section to avoid confusion. 

Response: 

Refer to Essay Response 2.35.1. 

Comment ID 0076-A1.001.011

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.2.1.2 

Target asks for additional clarification be provided on the temporary and permanent stabilization timing to clarify if a site needs to be 

stabilized within 7 (Time to begin stabilization), 10 (+3 days to compete stabilization) or 14 days (calendar / business days). 

Response: 

Refer to Essay Response 2.31. 

Comment ID 0093-A2.001.056

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.2.1.2 

AGC finds it unreasonable for EPA to require contractors to complete final stabilization seven (7) days after initiating stabilization on 
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exposed portions of the job site (and three (3) days after initiating stabilization practices on slopes in excess of 15% and for projects 

impacting sensitive areas or discharging to impaired waters). First, the industry standard for construction scheduling, particularly on 

large projects, is to schedule out work in one-week increments. This means schedules are updated on a weekly basis. The seven- and 

three-day standards would routinely place an operator in violation of the CGP if he completes work ahead of schedule because the 

stabilization deadline may elapse prior to the next schedule update or because the contractor may not have enough response time fulfill 

the permit requirements. Similarly, if construction on an area is completed in the middle of the week, the stabilization deadline may 

expire over a weekend. Secondly, it is common for operators to use subcontractors for stabilization. Stormwater contractors tend to be 

small business. The seven-day requirement would not provide enough time for a subcontractor to mobilize and complete the 

stabilization. This would force operators to eliminate the use of these subcontractors in favor of self-performing this work which would 

place a disproportionally negatively impact on small and disadvantaged business. Third, when sod is required, at times there are limits on 

the receipt of sod (the fields are wet, transportation challenges, etc). These items are not in the control of the contractor. Fourth, the 

language in the Draft is far more prescriptive than the language in the final C&D ELG. Overall, EPA has removed the language from the 

C&D ELG that allows for stabilization initiation ‘as soon as practicable' and instead relies on prescriptive deadlines. 

AGC recommends that EPA consider an approach that would require contractors to start stabilization practices when construction is 

substantially complete and then make weekly progress until completion of the stabilization practices. EPA should also include language 

recognizing weather conditions like snow cover or frozen ground that would preclude stabilization practices from taking place on the 

jobsite.

Response: 

Refer to Essay Responses 2.33 and 2.35. 

Comment ID 0115-A2.001.013

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.2.1.2 

2.2.1 Deadlines for Initiating and Completing Stabilization. Similar to our comments on Part 2.1.1.2 c., linear utility projects cannot 

always comply with the timeframes for achieving compliance with the current language. Specifically in sensitive areas, because of 

construction phasing associated with larger utility projects, activities along portions of the line may not be active for a period that may 

exceed 7 days (2.2.1.3). These areas continue to be monitored and maintained in accordance with the SWPPP, and temporary 

stabilization measures are typically employed (including straw mulch and the installation of check dams and diversion swales). Proper 

temporary (or permanent) stabilization is conducted as best meets the requirements of ROW conditions. Of concern, however, is the 

requirement to achieve vegetative or non-vegetative stabilization for activities that have temporarily ceased for a period of 7 days or 

longer. Since work areas are re-visited on multiple occasions due to construction sequencing (e.g. foundation drilling, followed by pole 

installation, followed by wire pulling) this requirement is not feasible. 

Response: 

Refer to Essay Response 2.35. 

Comment ID 0158-A1.001.010
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Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 2.2.1.2 

The proposed deadline for completing initialization of stabilization is unrealistic. Three working days for sensitive areas and seven 

calendar days for non-sensitive areas are too short for completion and do not consider limitations during wet and during dry seasons. See 

Section 2.1.2.2.b.; 2.1.4.2.ii; 4.2.2.2.b. A reasonable alternative could be "as soon as practicable, but no later than 30 days after the 

cessation of construction activity in that area unless weather conditions (seasonal wet periods) make it impractical to initialize 

stabilization." EPA also should define "working days" and clarify the definition of "immediately" in reference to how soon one must 

stabilize an area. Id. 

Response: 

Refer to Essay Responses 2.27 and 2.35. 

2.2.1.2Q PRACTICABILITY OF THE STABILIZATION TIMEFRAMES

Comment ID 0015-A2.001.008

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.2.1.2Q 

Q7. 7-day stabilization - Agree. Immediate / end of day for disturbances within buffer areas. 

Response: 

Refer to Essay Response 2.30. 

Comment ID 0037-A1.001.017

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.2Q 

An exception should be provided to the requirement to complete stabilization on disturbed areas within 7 workdays of initiating 

stabilization in the event that in the event that 1) a storm event occurred during the 7‐day deadline period which prevented stabilization 

activities from taking place, 2) soil conditions due to an earlier storm event are too wet for stabilization activities, (e.g. preparing the soil 

for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period precluding any further activities. If any of these 

events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable. 

Response: 

Refer to Essay Responses 2.28.2, 2.33, and 2.34. 
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Comment ID 0049-A1.001.022

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.1.2Q 

Not all sites can be stabilized within 7 days. EPA must allow for flexibility that takes into account weather conditions (e.g., winter time), 

local conditions, growing seasons, etc. 

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34. 

Comment ID 0060-A1.001.009

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.2.1.2Q 

9. Section 2.2.1.2 - This section requires the owner to complete stabilization activities within 7 calendar days of initiating stabilization on 

exposed portions of the site, with no exceptions. While the 7 days may be sufficient on some sites, it may not be practical for every 

construction site. The time frame to complete stabilization can vary based on site conditions (i.e. size of the disturbance to be stabilized, 

final topography/steep slope areas, etc.) and by the weather conditions (i.e. several days of rain that prevents the construction equipment 

from accessing the site, high intensity rain event that results in erosion and requires additional land grading, etc.). EPA should modify 

this section to provide an owner with additional time to complete stabilization activities if certain criteria/conditions are met. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0062-A1.001.026

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.1.2Q 

Brevard County Comment: Large area paving projects may require exposed base rock for extended periods to avoid damage to asphalt 

during building construction. 

Response: EPA clarifies that the stabilization requirements in Part 2.2 are focused on exposed soil surfaces. 

Comment ID 0065-A1.001.014

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.2.1.2Q 

Section 2.2.1 requires the contractor to initiate stabilization procedures after permanently ceasing earth-disturbing activities, or when 

activities cease for more than 14 calendar days or for more than 7 days under certain circumstances. Stabilization must be completed in 
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7 days. 

These timelines should be revised to allow additional flexibility for unique or unusual circumstances, which can reasonably be expected 

to occur. For example, it may not be possible to meet either the 14- or 7-day timeline if there are no workers available to complete the 

task because a union has gone on strike. Additionally, it may not be possible to initiate stabilization activities within 7 days on sensitive 

areas where BMPs need to be significantly re-designed or modified, which would require engineers to reassess the circumstances and 

re-design or modify the BMPs. The CGP should not require less than a 14-day period for stabilization initiation or completion, which 

will ensure projects have a reasonable ability to comply. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0066-A1.001.026

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.2.1.2Q 

Comment: As previously discussed, many of our projects involve very large scale seeding operations, often in remote areas of the state. 

For this reason, we are concerned that 7 days to complete seeding operations is not sufficient. 

Response: Refer to Essay Response 2.33. 

Comment ID 0069-A1.001.004

Author Name: Cramer M. 

Organization: 

Issue Category: 2.2.1.2Q 

4. Part 2.2.1.2. of the draft EPA CGP requires operators to complete stabilization activities within 14 days for all areas, 7 days for 

sensitive areas, steep slopes and stormwater conveyances, and for buffer areas within 3 days. For linear projects where the construction 

sequence is always in flux due to weather, soil condition, unexpected rock, and a host of other factors, a 3-day stabilization requirement 

would be overly burdensome and often completely impractical. Consideration of specifying more stringent requirements for certain 

potentially sensitive areas is more appropriate for the SWPPP design level where site conditions can be directly assessed and not 

arbitrarily required by a "one size fits all" permit requirement. The language of this section should be modified to recommend the 

reduced stabilization times for sensitive and buffer areas, but allow flexibility of this period to be based on consideration of site and 

project conditions that would be addressed in the SWPPP. 

Response: Refer to Essay Response 2.35. 

Comment ID 0071-A3.001.006

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.1.2Q 

•Part 2.2.1.2 Deadline to complete stabilization activities. 7 days to initiate stabilization is too restrictive in certain circumstances. Most 

specifically, when projects are very large, remote (limits availability of contractors and supplies), and/or when terrain or soil conditions 
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are difficult. In these instances completing stabilization within 7 days is not be feasible. Allowing the engineer to determine and 

document extensions in the SWPPP is a reasonable alternative to the 7 day requirement. 

Response: Refer to Essay Response 2.33. 

Comment ID 0071-A3.001.029

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.1.2Q 

•Part 2.2.1.2 Deadline to complete stabilization activities. CDOT is supportive of timelines, but not as requirements, as many site 

specific conditions could impact this deadline. For example, breakdown of equipment in a mountain area where replacing the equipment 

may take a few days. See Comments on Proposed Requirements above for additional reasons. CDOT suggests that the timelines be used 

as guidance or that exemptions be allowed and that compliance can still be achieved if the timeline is exceeded in unusual conditions or 

scenarios by documenting the reason and a new deadline in the SWPPP. 

Response: Refer to Essay Response 2.33. 

Comment ID 0072-A2.001.007

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.2.1.2Q 

It is MoDOT's contention that an allowance for the 7-day stabilization deadline should be granted if inclement weather should occur 

either before or during the 7-day window, which would preclude the contractor from completing the work. The contractor would then 

have to assure stabilization is initiated once the weather clears and the site dries sufficiently. The reason for this allowance is because of 

the potential to create more erosive conditions from rutting or other equipment damage if the stabilization practices were applied during 

wet site conditions. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0074-A2.001.010

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.2.1.2Q 

The stabilization timeframes are acceptable as long as there are variances given for exceptional circumstances. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0075-A2.001.006

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 
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Issue Category: 2.2.1.2Q 

The alternative "equivalent sediment load reduction" which allows for reduced 50-foot buffers (Appendix M) appears beyond skills of a 

typical general contractor in manipulating USDA's RULSE, WEPP, SEDCAD or SEDIMOT erosion modeling. The contractor would be 

missing critical input data on particle size analysis on a 10 mile long linear project. 

Response: Refer to Essay Response 2.46. 

Comment ID 0075-A2.001.007

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.2.1.2Q 

Suggest that the timeframe be extended to 14 days of temporary stoppage of earthwork activities or permanent completion instead of 7 

days. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0075-A2.001.017

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.2.1.2Q 

On a larger construction project, 7 days to perform the final seeding, erosion control blanket, etc. may be a bit difficult to complete. 

WYDOT has specific windows for seeding, (spring planting - frost free ground until June 15) (fall planting - September 1 until frost in 

ground). Construction completed outside these windows may not have seeding completed until conditions are appropriate. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0080-A2.001.011

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.2.1.2Q 

Partner Response: Reducing the allowable period for site stabilization from 14 days to 7 days is problematic particularly in the arid west 

where there are months at a time when precipitation is unlikely to occur. Without rain stabilizing these disturbed areas in 7 days (or 14 

days) simply does not make sense nor is it attainable through vegetative means. 

The 7-day deadline would also add considerable cost to the overall C&D project. On construction projects where the contractor 

commences soil disturbing activities at several different locations within the site, additional time is needed to provide adequate 

temporary stabilization. Special consideration must be given to earth disturbing activities in the arid west where the task of completing 

stabilization is labor intensive and often requires weeks or months to occur depending on project size, complexity, and the amount of 

natural precipitation. 

On linear transportation projects, to stabilize constructed stormwater channels in 7 days the contractor needs to stabilize the roadside 

ditches while still working on the roadway, shoulder, pipe installation, or other activity adjacent to ditches. This requirement is infeasible 
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during construction since other work may be performed in the same area. 

Additionally, if final stabilization (seeding) will be implemented at the end of a project; why require in the CGP that additional steps be 

taken to stabilize channels earlier at a time when construction is still in progress and BMPs are in place to mitigate the runoff from these 

same disturbed areas? 

Finally, in arid areas, if the site is being stabilized using a 70 percent vegetative cover criteria, erosion control measures (e.g., degradable 

rolled erosion-control products) must be selected and installed with an appropriate seed base to provide erosion control for at least three 

years while awaiting cover. In arid areas, final stabilization is anticipated to take the entire three year period, and may still not result in a 

70% vegetative cover. This scenario provides further evidence that the one size fits all approach to stormwater regulation including 

establishing prescriptive stabilization deadlines do not apply very well in Albuquerque and the arid west. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0085-A2.001.009

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.2.1.2Q 

The timeframes for installing stabilization appear reasonable. EPA should consider how it plans to assess compliance with these time 

frames. Frequent inspections would be one way to assess compliance. However, this may not be feasible due to limited resources. 

Response: Refer to Essay Response 2.30. 

Comment ID 0086-A1.001.010

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 2.2.1.2Q 

The proposed deadline for initi alizing stabilization is unrealistic. Three working days for sens itive areas and seven calendar days for 

non-sensitive areas are too short for completion and do not take into consideration rain versus dry season c limatic conditions. See 

Section 2.1.2.2.b.; 2. 1.4.2. ii; 4.2.2.2.b. A reasonable alternative could be "as soon as practicable, but no later than 30 days after the 

cessation of construction activity in that area unless weather conditions (rainy season) make it impractical to initialize stabilization." 

EPA a lso should define "work ing days" and clarify the definition of " immediate ly" in reference to how soon you must stabil ize an 

area. 

Response: Refer to Essay Responses 2.27, 2.28.2, 2.33, and 2.34. 

Comment ID 0088-A1.001.012

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.2.1.2Q 
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Among the unrealistic requirements are: 

-- the proposed deadline for completing initialization of stabilization of three working days for sensitive areas and seven calendar days 

for non-sensitive areas we conSider too short for completion. They also don't take into consideration wet versus dry periods. A 

reasonable alternative could be "as soon as practicable, but no later than 30 days after the cessation of construction activity in that area 

unless weather conditions make it impractical to initialize stabilization. Additionally, if it is too late in the season, the grass may not have 

a chance to become fully established until the following spring. Therefore, time frames longer than 30 days should be allowed under 

certain circumstances. 

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, and 2.35. 

Comment ID 0090-A1.001.017

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.2.1.2Q 

Also on the issue of site stabilization under Part 2.2, EPA should be aware that local and state permits already may require site 

stabilization within a certain number of days. EPA should take note that those stabilization requirements may be as short as a 7-day 

period or more than a year; for example, vegetative stabilization in the desert-southwest could take almost two years to achieve, given 

sparse rainfall and an exceptionally short natural seed germination season. 

Response: Refer to Essay Responses 2.33 and 2.41. 

Comment ID 0091-A2.001.005

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.2.1.2Q 

5. Fact Sheet Item 7. Part 2.2.1.2 and 2.2.1.1.a and 4.2.2.2.b: These deadlines may not be practical during cold weather when ground is 

snow covered, frozen or temperatures are below freezing. In some cases, overnight frost, it may not be appropriate to seed the site. The 

type of day should always be identified clearly to avoid confusion. The terms 14 calendar days, 14 or more days, 7 or more days, are used 

in the indicated sections. In a subsequent section the term 3 working days is used. 

Response: Refer to Essay Responses 2.35. 

Comment ID 0097-A1.001.006

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 2.2.1.2Q 

7. Must be an extension for weather, particularly on large sites 
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Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0103-A3.001.008

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.2.1.2Q 

In Part 2.2.1.2 Deadline to complete stabilization activities, the EPA proposes to require that, within 7 calendar days of initiating 

stabilization on exposed areas of the construction site, certain aspects of stabilization have to be completed. These aspects include: (1) 

For vegetative cover: soil conditioning, seeding, watering, mulching, and other all other activities related to planting and establishment 

of vegetation; and (2) for non-vegetative cover: the installation or application of all non-vegetative measures. 

TCEQ believes that this timeframe is too restrictive and requests that the EPA maintain the timeframe as in the current CGP. The current 

time frame is to initiate stabilization measures as soon as practicable, but in no case more than 14 days after the construction activity has 

ceased. This timeframe corresponds to the TPDES CGP TXR150000. TCEQ believes there will be too many instances where the 7 day

deadline is not practicable, such as during frozen conditions or other weather conditions or in cases where the construction activity is 

ceased for a shorter period of time. Alternatively, TCEQ proposes that EPA's CGP follow the ELGs at 40 CFR §450.21(b), which 

requires stabilization of disturbed areas be initiated immediately whenever construction activities have temporarily ceased on any 

portion of the site and will not resume for more than 14 days. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0111-A2.001.009

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.2.1.2Q 

Dow believes that the seven calendar days requirement to complete stabilization activities (after initiation) on exposed portions of the 

site presents an unreasonable burden to the permittee. For example, weather may prevent the safe operation of equipment that is required 

to complete stabilization efforts after initial stabilization measures have occurred. Dow suggests that alternant verbiage be considered: 

"Complete stabilization activities as soon as practicable. If stabilization can not be completed in a timely manner, then suitable BMPs 

must be implemented as soon as practicable." 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0123-A2.001.007

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.2.1.2Q 

Comment: Exceptions should not be provided for stabilization requirements. 
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Response: EPA disagrees with the commenter. EPA has tried to minimize exceptions to the stabilization requirements, but the 

Agency believes there are legitimate reasons to include flexibility in the stabilization requirements to account for unforeseen 

circumstances. 

Comment ID 0126-A2.001.008

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.2.1.2Q 

The 7-day deadline is not practical and exceptions should be provided for weather/season, complexity of installation of stabilization 

BMP's or scheduling with other phases. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0127-A2.001.005

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 2.2.1.2Q 

Section 2.2.1.2 

Proposed Language 

Request for Comment: EPA requests comment generally on the practicability of these timeframes. EPA requests comment on specific 

instances when the 7‐day deadline to complete certain aspects of stabilization may not be practicable or where exceptions should be 

provided. 

Concern 

Compliance could be difficult to achieve and potentially damaging to the site. There are no exceptions for weather delays, wet site 

conditions, frozen ground, arid conditions, other construction delays, etc. 

Suggested Correction 

Add acceptable allowances/ exceptions for delays, especially when completing the certain aspects of stabilization that could cause more 

harm than corrective actions. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0131-A1.001.009
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Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.2.1.2Q 

The 7-calendar day deadline to complete stabilization is not practical considering there will be variability in the size and nature of the 

areas of disturbance and the availability of sufficient labor, equipment and materials to complete the task. Additionally, by establishing 

a 7 calendar day requirement EPA is suggesting that certain projects will need to be staffed on Saturday and Sunday in order to meet the 

deadline for stabilization. This will require the operator to increase the number of mobilizations and to work on smaller areas to keep 

ahead of the 7 day deadline. There is an economy of scale in the construction industry whereby it is more economical to mobilize and 

work on a larger area that it is to mobilize several times to work on smaller areas. If the operator is required to increase the number of 

mobilizations and work on smaller areas, it will be less productive and the cost of stabilization will increase, especially if the operator is 

required to work on Saturday and Sundays. It would also likely extend the period of unstabilized portions of the site due to a delayed 

construction schedule. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0145-A2.001.010

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.2.1.2Q 

We consider establishment of vegetative or non-vegetative cover on areas that will not have further earth-disturbing activity to be of the 

utmost importance. We urge EPA to adopt the deadlines proposed in this draft CGP. 

Response: EPA appreciates the commenter’s support. See Essay Response 2.30. 

Comment ID 0168-A1.001.027

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 2.2.1.2Q 

-- Stabilization Timing Criteria (Section 2.2.1, page 21): Performing site stabilization within 7 days of terminating earth-moving 

activities is not always practicable. Twenty (20) working days (28-calendar days) or "as soon as practicable", whichever is longer, is 

more realistic, and reasonable - particularly for large, or complex sites. Considerations for stabilization in arid and semi-arid areas are 

supported. It may be reasonable to also incorporate language to allow additional time for site stabilization in areas where there is a 

federal declaration of drought (by the United States Department of Agriculture, or National Weather Service), or documentation of a 

related declared state of emergency. Many areas in the south and west, such as Dallas, are currently experiencing a regional drought with 

multiple 90-plus degree days, making initial germination challenging (even with irrigation). 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0171-A1.001.009

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 
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Issue Category: 2.2.1.2Q 

The proposed deadline for completing initialization of stabilization is unrealistic. Three working days for sensitive areas and seven 

calendar days for non-sensitive areas are too short for completion and do not consider limitations during wet and during dry seasons 

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, and 2.35. 

2.2.1.3 STABILIZATION CRITERIA AND DEADLINES FOR 

DISCHARGES/DISTURBANCES TO SENSITIVE AREAS

Comment ID 0025-A1.001.019

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.2.1.3 

Perhaps the reference to 2. 1.2. 1.i.4 should be 2.1.2.2.b? 

Response: EPA appreciates the comment, and has corrected mistaken references throughout the permit. 

Comment ID 0025-A1.001.020

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.2.1.3 

The agency applauds the flexibility afforded by this condition; however, we are concerned about the lack of specificity of when 

stabilization should be initiated. Some may say that it may not be practicable until the end of the project to begin stabilization. In the 

Arizona CGP, stabilization is to be initiated within 14 days and that seems to work for the state. 

Response: Refer to Essay Responses 2.28.2, 2.33, and 2.34. 

Comment ID 0037-A1.001.018

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.3 

An exception should be provided to the requirement to immediately initiate stabilization on disturbed areas within buffer areas, on steep 

slopes, or on sites that discharge to a sediment or nutrient impaired water where earth‐disturbing activities have permanently ceased or 

temporarily ceased (and will not resume for a period exceeding 7 calendar days) if 1) soil conditions due to an earlier storm event are too 

wet for stabilization activities (e.g. preparing the soil for planting, seeding and mulching, etc.) or 2) the soil was frozen during this period 

precluding any further activities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as 

soon as practicable. 
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Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, 2.35 and 2.36. 

Comment ID 0037-A1.001.019

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.3 

There should be an exception to the requirement to complete stabilization on disturbed areas within buffer areas, on steep slopes, or on 

sites that discharge to a sediment or nutrient impaired water within 3 workdays of initiating stabilization in the event that 1) a storm event 

occurred during the 3‐day deadline period which prevented stabilization activities from taking place, 2) soil conditions due to an earlier 

storm event are too wet for stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil was 

frozen during this period precluding any further activities. If any of these events were to occur, EPA could require that stabilization 

activities should be initiated as soon as practicable in these sensitive areas. 

Response: Refer to Essay Responses 2.28.2, 2.33, 2.34, 2.35 and 2.36. 

Comment ID 0045-A1.001.005

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 2.2.1.3 

2.2.1.3 - This section discusses several situations concerning proximity to special waters and seeks comments upon whether stabilization 

deadlines noted previously for buffers and on steep slopes should generally prevail in these situations as well. As noted above, we 

believe that the maximum amount of time within which stabilization on any;regular construction site should begin to occur is seven days, 

and that in the special geo-physical situations described in this section (as previously), an even shorter timeframe for beginning 

stabilization-- 72 hours after earth-moving disturbance has stopped temporarily or permanently -- should prevail. 

Response: EPA appreciates the comment. EPA has tried to balance the need to stabilize exposed portions of construction sites as 

soon as possible with the need to recognize the practical challenges that operators face in meeting definitive deadlines for vegetative 

stabilization. EPA believes this balance has been reached in the final permit. 

Comment ID 0053-A2.001.015

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.2.1.3 

13. Page 21; 2.2.1.3 Stabilization criteria and deadlines for discharges/disturbances to sensitive areas. 

Consider language discussed in comment number 2, above. [See Comment Id 0053-A2.001.002] 

Response: See related response. 
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Comment ID 0055-A1.001.006

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 2.2.1.3 

This section overlaps effluent limitation guidelines. We do not see the need to require additional stabilization requirements if effluent 

limitations warrant more stringent sediment controls. 

Response: Refer to Essay Response 2.35. 

Comment ID 0055-A1.001.007

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 2.2.1.3 

Language stating "as soon as practicable" is subject to regulatory interpretation and should not be included. 

Response: Refer to Essay Response 2.36. 

Comment ID 0056-A2.001.009

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.2.1.3 

As above, the criteria for stabilization for sensitive areas may be overly rigid for a restoration activity which, by definition, is likely 

within or associated with a sensitive area. Returning a wetland or waterway to a functioning system with native species is an important 

milestone in restoration. In some restoration projects revegetation and stabilization may need to be an iterative process to achieve long 

term ecological diversity and sustainability. Rushing to meet time constraints has the potential to interfere with restoration goals. For 

example, during salt marsh restoration it may be necessary to track tidal inundation over a full month's neap to spring cycle to determine 

if the micro- topography of the marsh surface is correct. Unintentional depressions or mounds could result in invasive species intrusion 

onto the site. Small elevation changes in a New England marsh surface can allow Phragmites australis to establish quickly, which out 

competes native salt marsh grasses. As these examples illustrate, stabilization requirements may not be advantageous for restoration 

projects. The DER requests restoration projects be exempt from the requirements in 2.2.1.3. 

Response: Refer to Essay Response 2.35. 

Comment ID 0065-A1.001.015

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.2.1.3 

Section 2.2.1.3 provides stabilization criteria for sensitive areas. Under certain circumstances (within 50 feet of US jurisdictional waters, 
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certain impaired waters and slopes of at least 15 percent) stabilization must commence in 3 days, consistent with Parts 2.1.2.1.i.4, 

2.1.4.2c, and 4.2.2.2. As identified above, there should be flexibility with the schedule to allow time to achieve stabilization and not the 

3 days as proposed. 

Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0071-A3.001.007

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.1.3 

•Part 2.2.1.3(a) Criteria for special stabilization deadlines (iv). Three days to achieve stabilization on a 3% slope is too restrictive. These 

are often the most difficult to stabilize as installation is more difficult and slopes are more dangerous. Restricting the deadline may often 

result in poor installation of the product. CDOT often works in mountain areas where slopes are very steep, even up to 90%. Stabilization 

in these scenarios is time consuming and difficult. Allowing extensions to be documented in the SWPPP may be a reasonable alternative 

to the three day deadline. 

Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0076-A1.001.010

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.2.1.3 

The EPA has proposed different stabilization schedules for buffers, slopes and the balance of the site. Target recommends that the 

stabilization criteria be consistent across all areas of the permitted site for consistency and ease of implementation, while not lessening 

environmental provisions. 

Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0103-A3.001.009

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.2.1.3 

In Part 2.2.1.3 Stabilization criteria and deadlines for discharges/disturbances to sensitive areas, EPA established deadlines for 

stabilization of sites located in sensitive areas. EPA suggests that stabilization should be initiated immediately if work is ceased for more 

than 7 days. 

Once again, TCEQ believes that this timeframe is too restrictive and might not be practicable to meet. TCEQ recommends clarifying that 

stabilization must be initiated immediately if construction is not planned for the next seven days or has not occurred within the previous 

seven days. 
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Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0115-A2.001.014

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.2.1.3 

2.2.1.3 b. Typographical Error. Part b makes reference to deadlines specified in parts 2.1.2.1.i.4, among other parts. Part 2.1.2.1.i.4. was 

not found. 

Response: EPA appreciates the comment, and notes that it has corrected typographical errors found in the draft permit. 

Comment ID 0130-A2.001.035

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.2.1.3 

33. Part 2.2.1.3.b. Special Stabilization Deadlines, says you must comply with the special stabilization deadlines specified in Part 

2.1.2.1.i.4......... There is no such part in the proposed permit. Perhaps the reference was meant to be to Part 2.1.2.2.b? 

Response: EPA appreciates the comment, and notes that it has corrected typographical errors found in the draft permit. 

Comment ID 0133-A2.001.020

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.2.1.3 

MDT does not believe it is reasonable to require more stringent stabilization timelines for sensitive areas. The new Effluent Limitation 

Guidelines already specify that soil stabilization measures must be initiated on disturbed areas where activities have temporarily ceased 

and will not resume for a period exceeding 14 calendar days. A more stringent timeframe was not found to be economically achievable; 

as such the proposed technology based limit is unsupported. In addition, disturbance in these sensitive areas already requires 

implementation of additional controls. More stringent stabili zation measures seem unwarranted. 

Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0137-A2.001.011

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.2.1.3 

This section requires accelerated stabilization when impairment or certain conditions such as 15% steep slopes are present. Projects may 

stop work for more than 7 days due to bad weather. This permit would require stabilization in those cases. The three day stabilization 
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requirement is not feasible. Even larger companies stabilize at a rate of about 5 acres per day when we are usually working on 20 acre 

grading units. The language contains no provisions for weather or difficulties with contractor scheduling or default. We also see no 

technical justification or sufficient nexus between accelerated stabilization of sediment and the presence of excess nitrogen or 

phosphorous in the adjacent water body. EPA should consider that accelerated stabilization often requires the use of nutrient fertilizers 

that will increase the discharge of phosphorous. 

Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0159-A1.001.009

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.2.1.3 

This section requires accelerated stabilization when impairment or certain conditions such as 15% steep slopes are present. Projects may 

stop work for more than 7 days due to bad weather. This permit would require stabilization in those cases. The three day stabilization 

requirement is not feasible. Even larger companies stabilize at a rate of about 5 acres per day when we are usually working on 20 acre 

grading units. The language contains no provisions for weather or difficulties with contractor scheduling or default. We also see no 

technical justification or sufficient nexus between accelerated stabilization of sediment and the presence of excess nitrogen or 

phosphorous in the adjacent water body. EPA should consider that accelerated stabilization often requires the use of nutrient fertilizers 

that will increase the discharge of phosphorous. 

Response: Refer to Essay Responses 2.35 and 2.36. 

2.2.1.4 CDEADLINES FOR ARID/SEMI-ARID AREAS

Comment ID 0037-A1.001.021

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.4 

The Southern Ute Growth Fund supports retaining the current requirements in Part 2.2.1.4 of the proposed permit for initiating 

stabilization in arid/semi‐arid areas, i. e., "...,you must initiate stabilization as soon as practicable following the temporary or permanent 

cessation of construction activities, ...". 

Response: Refer to Essay Response 2.39. 

Comment ID 0037-A1.001.022

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.4 

There appears to be an error in the first sentence of this Part. This Part states ".......you must initiate stabilization as soon as practicable 
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following the temporary or permanent cessation of construction activities, in lieu of meeting the deadlines in Parts 2.2.2.1 and 2.2.2.2." 

Parts 2.2.2.1 and 2.2.2.2 do not have deadlines for stabilization. EPA should verify that the correct Parts are being referenced. 

Response: EPA has corrected these and other errors in the final permit. 

Comment ID 0040-A1.001.010

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.2.1.4 

The Section 2.2.1.4 deadlines for arid and semi-arid areas also should apply to sensitive areas. 

Response: Refer to Essay Responses 2.34 and 2.39. 

Comment ID 0065-A1.001.016

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.2.1.4 

Section 2.2.1.4 provides stabilization criteria for arid/semi-arid areas. CCWC supports requiring stabilization "as soon as practicable" 

after ceasing construction. A more specific deadline such as "no later than 28 days after the cessation of construction activities in an 

area" would not be appropriate in all situations. 

Response: Refer to Essay Response 2.39. 

Comment ID 0071-A3.001.020

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.1.4 

-Part 2.2.1.4 Deadlines for arid/semi-arid areas. This Part states that if your site is located in an arid/semi-arid area you must initiate 

stabilization as soon as practicable in lieu of meeting the deadlines in Parts 2.2.2.1 (Vegetative Stabilization) & 2.2.2.2 (Non-Vegetative 

Stabilization). The only deadline in these sections deals specifically with arid/semi-arid areas. The wording implies that stabilization 

needs to be initiated but not completed. Was the intent to refer to different Part(s) of the permit? 

Response: Refer to Essay Response 2.39. Also, refer to requirements in Part 2.2.2.b related to the deadlines for providing vegetative 

stabilization within 3 years. 
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Comment ID 0090-A1.001.039

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.2.1.4 

Typically, arid plant species postpone germination until ideal moisture conditions are available. It is a common practice in the arid 

regions to expect these species to germinate three years after seeding and to expect the plants to take three more years to develop into 

plants that will achieve a 70% re-vegetation standard. 

Response: Refer to Essay Response 2.39, 2.42, 2.43, and 2.44.

Comment ID 0096-A1.001.040

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.2.1.4 

EPA has proposed deadlines for initiating and completing stabilization of exposed areas 

of the site in arid and semi-arid areas. Arid and semi-arid areas present problems for stabilization 

because there are periods of the year where a vegetative cover cannot be readily established 

without irrigation, and irrigation is not always practicable. Of course, during these dry periods, 

there most often is very little rainfall. The following is an excerpt from the current Nevada state 

CGP (Section 5.c.iii) that could serve as a guide for stabilization in arid or semiarid areas: 

In arid areas (areas with an average annual precipitation of 0 to 10 inches), semiarid areas 

(areas with an average annual precipitation of 10 to 20 inches), and areas experiencing 

droughts where the initiation of stabilization measures.... (original Nevada CGP says “by 

the 14th day, which is their standard stabilization time frame)...after construction activity has temporarily or permanently ceased is 

precluded by seasonal arid conditions, 

stabilization measures shall be initiated as soon as practicable. (emphasis added). 

Due to the constraints these sites pose, NAHB urges EPA to provide more flexibility through the 

adoption of this, or similar language. 

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44. 

Comment ID 0107-A2.001.010

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 2.2.1.4 

Section 2.2.1.4 gives an open-ended stabilization timeframe to sites located in arid or semi arid regions. Why are semi arid regions given 

this exemption? While vegetative cover may be difficult to establish in these areas (almost all of New Mexico falls into these two 
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categories), it is still critical to quickly stabilize a site to stop discharges. Degradable erosion control products can be quickly installed 

(just as quickly as putting in soil and seeds in non arid regions) and permittees in arid and semi arid regions should have to meet the same 

deadlines as other locations. Many construction activities occur during the summer months when New Mexico has a regional monsoon 

period, which can deliver daily rain in the afternoon making stormwater controls and site stabilization critically important. No exemption 

should be given and if one is a specific fallback deadline should most certainly be set. 

Response: Refer to Essay Response 2.39. 

Comment ID 0130-A2.001.036

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.2.1.4 

Part 2.2.1.4 says you must initiate s;tabillzation as soon as practicable following cessation of construction activities, in lieu of meeting 

the deadlines in Parts 2.2.2.1 and 2.2.2.2. There were no deadlines in 2.2.2.1 or 2.2.2.2. These two parts describe how to achieve 

vegetative or nonvegetative stabilization. It appears the contents would leave ~ as soon as practicable- as the only description of when 

stabilization is required on projects in arid and semi-arid areas. This is a very widely interpretable statement. Sornething more 

measureable would be appropriate for a stabilization deadline. Clarification .and/or correction to this part is required 

Response: EPA believes that it has provided more specificity with respect to the stabilization requirements in arid and semi-arid areas. 

Refer to Essay Responses 2.37 and 2.38. 

Comment ID 0157-A2.001.002

Author Name: McGoff Steve 

Organization: Nevada DEP 

Issue Category: 2.2.1.4 

NDEP would like to point out that requiring seeding to achieve stabilization also requires irrigation in this part of the country. Until 

recently, Nevada was in a decade-long drought and water conservation became a necessity. NDEP believes this requirement will waste 

an essential resource with little or no benefit to improving water quality. 

NDEP has worked diligently with its MS4 Permittees to develop stormwater programs that are appropriate for local conditions, and that 

will not cause environmental harm or interfere with local programs that are environmentally beneficial. EPA needs to allow states to 

develop flexible stormwater programs that work for their particular region. When using a "one size fits all" approach, EPA assumes that 

climate, topography, soil conditions, population densities and other factors are consistent throughout the country. Obviously, that is not 

true. EPA needs to have a serious discussion with the states and listen to the different ways the states will be affected if EPA requires 

states to include some of these proposed measures of this draft GCP in new state GCPs. 

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44. 
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2.2.1.4Q STABILIZATION IN SENSITIVE AND ARID/SEMI-ARID AREAS

Comment ID 0037-A1.001.015

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.4Q 

There should be an exception to the requirement to complete stabilization on all disturbed steep slopes within 3 workdays of initiating 

stabilization in the event that 1) a storm event occurred during the 3‐day deadline period which prevented stabilization activities from 

taking place, 2) soil conditions due to an earlier storm event are too wet for stabilization activities, (e.g. preparing the soil for planting, 

seeding and mulching, etc.), or 3) the soil was frozen during this period precluding any further activities. If any of these events were to 

occur, EPA could require that stabilization activities should be initiated as soon as practicable 

Response: Refer to Essay Responses 2.35 and 2.36. 

Comment ID 0037-A1.001.020

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.1.4Q 

It is not appropriate to include a specific fall back deadline for the initiation of stabilization activities (e.g., no later than 28 days after 

cessation of construction activities in an area) in addition to the proposed requirement to initiate stabilization as soon as practicable 

following the temporary or permanent cessation of construction activities for the following reason. The timing of the seeding is often 

critical in the southwest. Sufficient moisture is required to establish the seedlings. If seeding is to occur during the late spring and 

summer months, delaying seeding until the monsoonal rain weather pattern begins (i.e., mid‐July) will improve the chances of success in 

seedling establishment. Another opportune time to seed in the southwest is during the dormant season so that the seeding is completed in 

the late fall or early winter so that the seed does not germinate till spring taking advantage of residual winter moisture. If there is a 

requirement to seed within a certain number of days after the cessation of construction activities which results in the seeding being 

conducted at the wrong time in the fall, the seedlings may not survive the first killing frost. The operator should have the option to delay 

the seeding so that the seed does not germinate until spring. It is recommended that no change is made to the proposed permit 

requirement, i.e., initiate stabilization as soon as practicable. 

Response: Refer to Essay Responses 2.39, 2.42, 2.43, and 2.44. 

Comment ID 0062-A1.001.027

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.1.4Q 
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Brevard County Comment: What is an "area"? 10 sf? 

Response: Refer to Essay Responses 2.32. 

Comment ID 0065-A1.001.017

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.2.1.4Q 

EPA requested comment on whether sites in critical habitat areas or those where species listed under the Endangered Species Act (ESA) 

exist should be subject to the stabilization requirements that apply to sensitive areas. The CGP should not include stabilization 

requirements related to listed species or critical habitat, which are protected most effectively through the ESA analysis and any 

conditions required to meet eligibility criteria for utilizing the CGP. Requirements for species and habitat are highly variable and unique 

to each species and location. Even a requirement that stabilization be initiated "as soon as practicable" may not be appropriate for any 

given species. For example, if there are endangered nesting species with specific protective requirements, requiring stabilization as soon 

as practicable after construction could result in disturbing the area where the nest is located, and could conflict with the site- and 

species-specific protections. Or, for example, some phases of a project might be on the Critical Path during the dry season and, therefore, 

immediately initiating vegetation restoration is not necessary. The CGP should not create the potential for inconsistencies between 

regulatory requirements by adding requirements that are duplicative of conditions otherwise covered by the permit. 

Response: Refer to Essay Response 2.40. 

Comment ID 0074-A2.001.011

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.2.1.4Q 

"As soon as practicable" deadline is appropriate for arid/semi-arid areas, as well as sensitive areas. The DEQ believes the proposed 

stabilization deadlines (see Parts 2.2.1.1 and 2.2.1.2) were revised to reflect those special conditions (such as sensitive area, impaired 

streams or site slopes of 15% or greater), and it is not necessary to create new criteria for special stabilization deadlines. 

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44. 

Comment ID 0075-A2.001.008

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.2.1.4Q 

Suggest that the timeframe be extended to 7 work days instead of 3 work days. 

Response: Refer to Essay Response 2.35. 
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Comment ID 0080-A2.001.012

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.2.1.4Q 

Partner Response: The Partners support the recommend "as soon as possible", 28-day fall back deadline for all projects in arid areas 

including those located in sensitive areas. 

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44. 

Comment ID 0085-A2.001.010

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.2.1.4Q 

Rockville has no comment on proposed deadlines for initiating stabilization specific to arid areas. However, Rockville supports strict 

requirements to stabilize disturbed areas as quickly as possible after construction ends. As a general comment, the portion of the CGP 

covering stabilization criteria for discharges/disturbances to sensitive areas is confusing. Part 2.2.1.3.b refers to requirements contained 

in 2.1.2.1.i.4, but no part numbered 2.1.2.1.i.4 appears elsewhere in the document. Furthermore, Rockville questions whether 

enforcement officers and construction managers will be able to keep track of differing stabilization time frames for different areas of a 

site. While the intent of the rule is correct, this may prove unwieldy to track and enforce. 

Response: Refer to Essay Responses 2.35. 

Comment ID 0086-A1.001.012

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 2.2.1.4Q 

The Section 2.2. 1.4 deadlines for arid and semi-arid areas also should apply in sensitive areas. Although EPA has acknowledged 

regional variation, its approach to conditions in the arid west may not be adequate to protect permittees operating under arid conditions.

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44. 

Comment ID 0091-A2.001.006

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.2.1.4Q 
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6. Fact Sheet Item 8. Part 2.2.14: Are the special stabilization deadlines applicable only to the areas identified or to all other disturbed 

areas on the site? The terminology "as soon as practical" should be adequate for the subject arid sites. In some cases, it might not be 

practical to seed an arid site within 28 days. 

Response: Refer to Essay Responses 2.35, 2.39, 2.42, 2.43, and 2.44. 

Comment ID 0093-A2.001.057

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.2.1.4Q 

For permittees who conduct construction activities in critical habitat areas or areas where listed endangered species exist, AGC 

recommends that EPA instruct all permit holders to adhere to the provisions of the Endangered Species Act (ESA), which is designed to 

ensure the protection of species and their critical habitats - rather than add an additional set of unnecessary and potentially burdensome 

requirements. 

24. Part 2.2.1.4. Stabilization Deadlines for Arid/Semi-arid Areas and Sensitive Areas. 

EPA has requested comment on the proposed deadlines for initiating and completing stabilization of exposed areas of the site in arid and 

semi-arid areas. EPA also requested comment on treating as a sensitive area for stabilization purposes sites that will conduct construction 

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

See response above concerning reducing stabilization timeframes. Regarding arid/semi-arid areas, EPA should retain the language "as 

soon as practicable" due to the extended time required to establish vegetation and because the risk of discharge is low given the lack of 

precipitation in these areas. The requirement for stabilization to be complete at the time of the notice of termination is sufficient. 

For stabilization in arid or semi-arid areas, the following excerpt from the current Nevada state CGP (Section 5.c.iii) could serve as a 

guide: 

In arid areas (areas with an average annual precipitation of 0 to 10 inches), semiarid areas (areas with an average annual precipitation of 

10 to 20 inches), and areas experiencing droughts where the initiation of stabilization measures.... (original Nevada CGP says "by the 

14th day, which is their standard stabilization time frame)...after construction activity has temporarily or permanently ceased is 

precluded by seasonal arid conditions, stabilization measures shall be initiated as soon as practicable. 

Response: Refer to Essay Responses 2.35, 2.39, 2.40, 2.42, 2.43, and 2.44. 

Comment ID 0096-A1.001.039

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.2.1.4Q 

In Part 2.2.1.4, EPA has requested comment on the possibility of establishing separate 

requirements for permittees who conduct construction activities in critical habitat areas or areas 
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where listed endangered species exist. Rather than adding unnecessary and potentially burdensome requirements for construction 

projects conducted in critical habitat, EPA should 

instead instruct all permit holders to adhere to the provisions of the Endangered Species Act 

(ESA), which is designed to ensure the protection of species and their critical habitats. The ESA 

also imposes lengthy and extensive planning and consultation requirements on federal agencies 

and applicants to ensure their activities meet its requirements, including those established to 

protect land designated as critical habitat. In short, under the ESA, habitat modifications cannot 

reduce the value of the critical habitat both in terms of the survival and recovery of a listed 

species. Those that may potentially adversely modify critical habitat must comply with the Fish 

and Wildlife’s (FWS) consultation framework, which requires the FWS and the action agency to: 

a) Determine the “Status of the Species/Critical Habitat” in a mandatory biological 

opinion; 

b) Develop an “Environmental Baseline” analysis which provides information on the 

current condition of the targeted Critical Habitat area; 

c) Conduct an “Effects of the Action” analysis which characterizes the direct and 

indirect effects of the action and those of interrelated and interdependent actions on 

the proposed or designated critical habitat; and 

d) Conduct a “Cumulative Effects” analysis to characterize the effects of future, nonfederal 

actions reasonably certain to occur in the action area. 

Enforcing the current provisions through the ESA, while flawed and at times costly to the 

permitee, is more logical than adding a new set of provisions to a program that already contains 

extensive requirements. Importantly, adding additional provisions does not guarantee the 

preservation of a listed species; it can, however, make the regulated community resistant to 

working on projects in impacted areas regardless of agreements such as Habitat Conservation 

Plans (HCPs) and other collaborative processes intended to garner support for species. For 

example, HCPs have been successfully used in areas where development and conservation 

collide by providing for partnerships with non-federal parties to conserve the ecosystems upon 

which listed species depend, ultimately contributing to their recovery. Given these benefits, it 

would be a shame for EPA to embargo these opportunities. 

While it is well understood that EPA’s CGP is tailored for the states and territories for 

which it is the permitting authority, it is also serves as the baseline for all other stormwater 

permits across the nation. It is important to note, however, that EPA’s CGP permit, which by 

design is intended to be operated by EPA delegated states, is by definition not a “federal permit 

or approval” (except for those 5 states where EPA administers the CWA 402 program) and thus 

does not “trigger” the ESA Sec. 7 process when a landowner is getting a CGP permit for 

activities within “unoccupied critical habitat.” A number of courts have found that where an 

agency lacks the requisite discretion to act, the agency (likewise) simply does not possess the 

authority to implement measures that inure to the benefit of the protected species.63 Simply 

because EPA has the decision-making authority to implement the CGP does not empower the 
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agency to act to protect endangered species or their critical habitat. 

Response: Refer to Essay Response 2.40. 

Comment ID 0108-A2.001.003

Author Name: Paul Roger 

Organization: Bernalillo County Public Works, New Mexico 

Issue Category: 2.2.1.4Q 

With regard to implementing soil stabilization in arid, semi-arid and drought-stricken areas (Subpart 2.2.1.4), the County of Bernalillo 

cautions EPA that the term "as soon as practicable" is vague and may create situations in which the soil stabilization is unnecessarily 

delayed while the meaning of the term is debated. Establishing a specific timeframe for soil stabilization, in consultation with 

Cooperative Extension Service experts in arid regions, is preferable. 

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4. 

Comment ID 0123-A2.001.008

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.2.1.4Q 

Comment: CRWD supports treating critical habitat area and areas where listed endangered species exist as sensitive areas. 

Response: Refer to Essay Response 2.40. 

Comment ID 0126-A2.001.009

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.2.1.4Q 

The CSC appreciates the differentiation for arid and semi-arid areas. A timeline is a useful reference, less ambiguous and more easily 

enforceable. 

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4. 

Comment ID 0158-A1.001.012

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 2.2.1.4Q 

The Section 2.2.1.4 deadlines for arid and semi-arid areas also should apply to sensitive areas. Further, although EPA has acknowledged 

regional variation, its approach to conditions in the arid west may not be adequate to protect permittees operating under arid conditions. 

For example, Section 5.1.3.2, which allows for reduction in frequency of inspections in arid and semi-arid areas, appears to contradict 

the Section 4.2.2.3 requirement of daily inspections of BMPs. 
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Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4. 

Comment ID 0170-A2.001.007

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 2.2.1.4Q 

APS supports EPA's approach to the unique nature of arid and semi-arid environments. The stabilization and inspection frequency 

requirements for arid and semi-arid environments reflect the fact that these areas require a different approach to inspection and 

stabilization timeframes. APS urges EPA to keep these important provisions in the permit. 

Furthermore; Part 5.1.3.2 provides, "For arid and semi-arid areas. You may reduce the frequency of inspections to once per month if 

your site is located in an arid area (i.e., areas with an average annual rainfall of less than 10 inches) or semi-arid area (i.e., areas with an 

average rainfall of 10 to 20 inches)." EPA should apply this approach to sensitive areas and to Part 4.2.2.3. Currently Part 4.2.2.3 and 

Part 5.1.3.2 contradict each other and create confusion as to what the proper inspection frequency should be in arid and semi-arid areas. 

EPA should incorporate the requirements of Part 5.1.3.2 into Part 4.2.2.3. 

Response: Refer to Essay Responses 2.35, 2.39, 2.4.2, 2.4.3, and 2.4.4. 

2.2.2 CRITERIA FOR STABILIZATION

Comment ID 0030-A2.001.017

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.2.2 

Section 2.2.2., page 23 

Roadway projects, oil and gas developments and other projects that might require significant cuts or fills that create steep slopes may 

need non-traditional seeding options as well as exemptions from furrowing or tilling where it is too steep to safely operate equipment on 

a steep slope. Soil compaction may occur on these slopes due to the act of cutting or filling the slope (for example, a road cut or well 

pad). Well pads are traditionally built with steep side slopes that are difficult to safely work on with heavy equipment. If the slopes are 

made less steep, the disturbance footprint is larger. In some cases, crews installing erosion control blanket are tied off due to the 

steepness of the slope. For these reasons, we recommend there be more flexibility in dealing with soil compaction, while recognizing 

that traditional sites should use techniques to reduce the impacts of soil compaction during construction to the extent feasible. 

Response: EPA appreciates the comment. Part 2.1.2.8 includes modifications that make this provision more flexible by focusing on 

the minimization of impacts and on those areas where vegetative stabilization will occur or where infiltration practices will be used. 

Comment ID 0030-A2.001.018

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 
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Issue Category: 2.2.2 

Section 2.2.2, page 22 

Seed mix is often prescribed by permitting agencies on federal lands or in accordance to landowner agreements. Is the primary intent to 

ensure 70% vegetative cover within 3 years? It is difficult in arid or semiarid areas to get good vegetation growth. We recommend 

changing to state that final stabilization is anticipated to be within three growing seasons. However, if stabilization is not achieved during 

this time period, an area will be reseeded or otherwise stabilized. 

Response: Refer to Essay Responses 2.41. 

Comment ID 0040-A1.001.009

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.2.2 

Additionally, temporary stabilization requirements should not be limited to only cover-type BMPs. See Section 2.2. Other 

non-vegetative, non-cover erosion and sediment control BMPs can be used on flat or sloped ground that will also reduce erosion and 

provide effective sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with some other materials 

or practices to provide protection in many instances. Sometimes providing temporary cover after one phase of construction may mean 

that more damage is done to the area to remove the temporary cover in preparation for the next phase. This unnecessary damage may be 

avoided if other types of temporary stabilization are used. 

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for 

sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site. 

Comment ID 0046-A1.001.013

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.2.2 

The Department requests that both be kept in the permit. One would cover the growing season and other would be useful during the 

winter months. 

Response: Refer to Essay Response 2.41. 

Comment ID 0049-A1.001.021

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2 

It appears EPA is advocating that the use of non-vegetative practices cannot apply to "temporary stabilization" measures. Temporary 

stabilization methods must include non-vegetative techniques such as hydraulic mulch, soil binders, ECBs, and other methods. 
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Response: EPA appreciates the comment, and notes that it has expanded the types of examples listed for non-vegetative stabilization 

measures. 

Comment ID 0068-A1.001.023

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.2.2 

EPA proposes to institute a site stabilization standard based on soil loss C-factor associated with the Revised Universal Soil Loss 

Equation (RUSLE) regression formula. See Proposed Fact Sheet at 62. However, EPA rejected such an approach in the December 2009 

C&D ELG ("EPA [believes] it would be difficult to calculate an area-weighted C-factor. Permitting authorities may want to adopt such 

an approach in their permits, but EPA has chosen not to implement such a requirement in the national rule.") However, the Proposed 

CGP is essentially national in scope. Once again, EPA can require appropriate stabilization requirements, but it should reserve its 

lengthy discussion in the Proposed CGP, Fact Sheet and Appendix H for a subsequent guidance document that would provide insight and 

assistance for site operators for implementing the final C&D ELG and subsequent CGP. 

Response: Refer to Essay Response 2.46. 

Comment ID 0087-A1.001.023

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.2.2 

In addition, temporary stabilization requirements should not be limited to only cover-type BMPs. See Section 2.2. Other non-vegetative, 

non-cover erosion and sediment control BMPs (e.g., silt fencing and wattles, tracking) can be used on flat or sloped ground to reduce 

erosion and provide effective sediment control. These alternatives may also help to avoid unnecessary damage resulting from the 

removal of temporary cover in preparation for subsequent phases of construction. 

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for 

sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site. 

Comment ID 0088-A1.001.013

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.2.2 

Among the unrealistic requirements are: 

-- temporary stabilization requirements should not be limited to only cover-type BMPs. Other non-vegetative, non-cover erosion and 

sediment control BMPs can be used on flat or sloped ground that will effectively reduce erosion and provide effective sediment control. 

Silt fencing, wattles, and other BMPs can be used alone or in combination with some other materials or practices to provide protection in 

many instances. Sometimes providing temporary cover after one phase of construction may mean that more damage is done to the area to 
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remove the temporary cover in preparation for the next phase. This unnecessary damage may be avoided if other types of temporary 

stabilization are used 

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for 

sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site. 

Comment ID 0093-A2.001.007

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.2.2 

The Draft would also set a site stabilization standard based on the C-factor associated with the Revised Universal Soil Loss Equation 

(RUSLE) regression formula. See explanation in proposed CGP Fact Sheet at 62. EPA rejected such an approach for the C&D ELG, 

explaining that it would be difficult to calculate an area-weighted C-factor. Once again, EPA can require appropriate stabilization 

requirements, but it should reserve the lengthy discussion included in the Draft, proposed CGP Fact Sheet and Appendix H for 

subsequent guidance that would provide insight and assistance for site operators, but not fundamentally change the legal requirements 

that the C&D ELG establishes. 

Response: Refer to Essay Response 2.46. 

Comment ID 0093-A2.001.059

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.2.2 

AGC is concerned that the specific C-factors chosen by EPA are not explained and seem to be arbitrarily chosen. They seem to be 

extremely conservative, and would limit the choices of BMPs found in Table H-1. Under the Draft, EPA would require three levels of 

C-factor. A factor of 0.05 or less would be required for all final stabilizations, which appears to be basically equal to fully mature 

vegetative cover or sod. (The only other choice from Table H-1 with a C-factor "less than 0.05" is a rock surface cover.) Vegetative cover 

equal to a 0.05 C-factor may not be achievable during winter in many areas of the country. In fact, for arid and semi-arid areas, a 0.05 

C-factor could never be achieved with native cover, and non-native grass would require constant and permanent irrigation to maintain, 

which may not be practical at many construction sites. For temporary stabilization, a factor of 0.1 or less would be required for all 

disturbed areas of slopes less than 15%, where disturbance activities would not resume within 14 days. A factor of 0.3 or less would be 

required for temporary stabilization of slopes greater than 15%. Only two similar BMPs - "straw fiber with netting" or "straw fiber with 

tackifier" - are able to meet these requirements according to Table H-1. These specific choices of required C-factors need to be 

thoroughly vetted by the construction community as to the reasons for the specific "C" factor requirements EPA has chosen. 

What is more, contractors working on or constructing sites are not familiar with all the various C-factors and would have to rely on 

someone else to tell them if they are in compliance. Also, there is a lot of disparity between various manufacturers on the C-factor of 

their products. According to some of the research conducted, C-factor does not stay constant over time or with various runoff conditions 

such as high runoff or spring runoff. 

The 70% cover approach is much easier to use. The main drawback is on semi-arid areas where it takes a long time for vegetation to 

establish. On semi-arid sites (e.g., less than 17 inches annual rainfall) the amount of cover could be reduced to 30%. 
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Response: Refer to Essay Response 2.46. 

Comment ID 0112-A2.001.002

Author Name: Karimi Hamid 

Organization: DC Dept of Environment 

Issue Category: 2.2.2 

Section 2.2.2: Criteria for Stabilization 

EPA proposes two options for vegetative stabilizing of exposed portions of the site, including the 2008 CGP's 70% criteria and the new 

cover management factor "C-factor value" approach. For the 70% criteria, EPA does not specify what happens to the remaining 30% of 

the site with respect to total stabilization, if a site operator decides for this option. 

Response: Refer to Essay Response 2.46 and 2.47. 

Comment ID 0128-A2.001.013

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 2.2.2 

EPA proposes to institute a site stabilization standard based on soil loss C-factor associated with the Revised Universal Soil Loss 

Equation (RUSLE) regression formula. See Proposed Fact Sheet at 62. However, EPA rejected such an approach in the December 2009 

C&D ELG ("EPA [believes] it would be difficult to calculate an area-weighted C-factor. Permitting authorities may want to adopt such 

an approach in their permits, but EPA has chosen not to implement such a requirement in the national rule.") However, the Proposed 

CGP is essentially national in scope. Once again, EPA can require appropriate stabilization requirements, but it should reserve its 

lengthy discussion in the Proposed CGP, Fact Sheet and Appendix H for a subsequent guidance document that would provide insight and 

assistance for site operators for implementing the final C&D ELG and subsequent CGP. 

Response: Refer to Essay Response 2.46 and 2.47. 

Comment ID 0158-A1.001.011

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 2.2.2 

Additionally, temporary stabilization requirements should not be limited to only cover-type BMPs. See Section 2.2. Other 

non-vegetative, non-cover erosion and sediment control BMPs can be used on flat or sloped ground that will also reduce erosion and 

provide effective sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with some other materials 

or practices to provide protection in many instances. Sometimes providing temporary cover after one phase of construction may mean 

that more damage is done to the area to remove the temporary cover in preparation for the next phase. This unnecessary damage may be 

avoided if other types of temporary stabilization are used. 
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Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for 

sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site. 

Comment ID 0171-A1.001.012

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 2.2.2 

Other non-vegetative, non-cover erosion and sediment control best management practices can be used on flat or sloped ground that will 

also reduce erosion and provide effective sediment control. These options should be considered and incorporated for use in the 

permitting effort. 

Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended by other commenters 

offering this same recommendation are designed for sediment control and not for erosion control, and would therefore not be appropriate 

for stabilizing a site. 

2.2.2.1 VEGETATIVE STABILIZATION [REQUEST FOR COMMENT]

Comment ID 0021-A1.001.009

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.2.2.1 

9. For the arid or semi‐arid stabilization requirements in 2.2.2.1 how do you determine if your stabilization method will provide erosion 

control for at least 3 years? I.E. rolled erosion control blanket with seeding VS. Straw Crimping with seeding? Does straw crimping, 

hydromulch, and other methods in conjunction with a native seed mix qualify? 

Response: Refer to Essay Response 2.43. 

Comment ID 0025-A1.001.021

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.2.2.1 

The agency understands and appreciates the reasoning behind this section. However, would argue that the product pool that may meet 

this condition may be very limited, thus adding considerable cost to projects. 

Response: Refer to Essay Response 2.45. 
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Comment ID 0025-A1.001.023

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.2.2.1 

This condition is not appropriate for the arid areas. ADOT specifically uses custom- designed native seed mixes containing seeds that 

germinate in different seasons. The requirement for watering defeats the purpose of using native seeds that grow in low water conditions. 

In addition, it may be difficult to say if an area "failed to germinate" without waiting for an entire year to see if different species 

germinate in the appropriate season. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0030-A2.001.002

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.2.2.1 

Another concern with the proposed CGP involves revegetation requirements which, in arid and semi-arid regions of the country, will be 

difficult to achieve. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0037-A1.001.024

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.2.1 

The C‐factor for temporary non‐vegetative stabilization (0.1 to 0.3 depending on the percent slope) is greater than the C‐factor for 

permanent non‐vegetative stabilization (0.05 or less). The C‐factor for temporary vegetative stabilization is the same as for permanent 

vegetative stabilization, i.e., 0.05 or less? In Table H‐1. Reported RUSLE C‐Factor Cover Values in Appendix H‐ Compliance with the 

C‐Factor Stabilization Criteria, three types of vegetative surface covers are listed. All have reported C‐Values of 0.5 or less. The 

vegetative cover with the lowest percent cover of the three is described as ‘thin stalked grass (> 60% density) w/mulch). This particular 

vegetative cover probably has a greater percent cover than non‐disturbed vegetation in some project areas in southwest Colorado. Why 

does EPA not allow a greater C value for temporary vegetative stabilization? The operator will be inclined to just apply straw mulch for 

temporary stabilization rather than utilizing vegetative stabilization (which may be a better temporary stabilization measure on some 

sites than just mulch). 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0037-A1.001.025
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Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.2.2.1 

The permit states "After seeding you must water, as applicable, until the seeds germinate and grow, ....." In the southwest or for linear 

projects, it is not always practicable or possible to water a newly seeded area. It is recommended that ‘as applicable' is replaced with 

‘'unless infeasible." 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0047-A2.001.013

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.2.2.1 

Section 2.2,2, page 23 

Some sites may not be able to condition soils that are compacted due to location (i.e. steep slopes or top of a mountain) where it is not 

safe/possible for equipment to access. Xcel Energy recommends there be more flexibility and steer clear of using words like "must" in 

the permit. More appropriately it would be better to say where feasible, sites should use techniques to reduce the impacts of soil 

compaction during construction to support vegetative growth. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0047-A2.001.014

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.2.2.1 

Section 2.2,2, page 23 

Projects do not necessarily have control over the choice of a seed mix. Many permitting authorities (i.e. cities, counties, US Forest 

Service, BLM, etc) dictate what has to be used and some federal jurisdictions may have requirements that do not comply with this 

permit. Need some clarification with this language - Is the primary intent to ensure 70% vegetative cover within 3 years? It is difficult in 

arid or semiarid areas to get good vegetative growth; in some cases it can take as long as 3 to 5 years to establish growth to the 70 percent 

pre-disturbance level. 

Response: Refer to Essay Responses 2.43, 2.44, and 2.45. 

Comment ID 0049-A1.001.023

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.1 

Mandating "uniform perennial vegetation" using percent of vegetative cover is not advisable. 
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• EPA's mandate means that it will be possible to introduce broad leaf vegetation (e.g., weeds) to meet the EPA's proposed 70% cover 

criteria, which has minimal root systems for erosion control.. 

• Stem density, which indirectly accounts for a good root system to minimize erosion, is more important than canopy cover. EPA's 

standard should be 70% of the stem density when comparing to historic conditions----not ground cover. 

• EPA must mandate that establishment of perennial vegetation consist of indigenous species that are native to the area. • EPA's wording 

for arid or semi-arid regions appears to mandate a 70% vegetative cover within three years. However, native vegetation might only have 

a 65% cover. This needs to be corrected to reflect 70% of historic stem density. 

Response: Refer to Essay Response 2.47. 

Comment ID 0049-A1.001.028

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.1 

Removal of all of section "iii" by EPA as written needs to occur for the following reasons: 

 • EPA should NOT be dictating what is necessary to establish vegetation on disturbed lands that may not be applicable to local areas. 

This is a task that designers must include in their S&EC Plans, which will vary throughout areas where the CGP applies. 

• Since water is not readily available in arid and semi-arid environments, EPA's mandate of watering until "seeds germinate and grow" is 

not realistic. This will be cost prohibitive and may violate water right decrees. 

• Establishment of native vegetation in arid and semi-arid environments may require up to two growing seasons. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0053-A2.001.016

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.2.2.1 

This has potential to release permittees from liability prematurely. Germination may take place, the permittee submits a Notice Of 

Termination and within a week, cover will die off or be predated resulting in lower coverage percentages and exposed areas. What 

established criteria are there to determine an appropriate seed base cover for the 3 year determination? Example: Pure Live Seed (PLS) 

recommended amounts will not guarantee germination, or coverage amounts for any time period. This is especially true in the arid 

southwest and the variable of animal predation of seed. Most permittees successfully terminate permit coverage well before as 

establishment timeframe and are under no further obligation to continue maintenance of vegetation. Simply putting in writing that 

adequate seed has been applied does not equate to erosion/sediment control. A 70 % cover of established vegetation would be a better 

condition with a definition of the term "established" being "independently viable plants" without irrigation systems operating. 
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This wording of the clause 2.2.2.1.a. i. requires clarification: " ... provide erosion control for at least three years to achieve 70 percent 

vegetative cover within 3 years." 

Response: Refer to Essay Responses 2.42, 2.43, 2.44 and 2.45.

Comment ID 0060-A1.001.010

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 2.2.2.1 

10. Section 2.2.2.1.a. - This section requires the owner to establish a uniform perennial vegetative cover which covers 70% or more of 

the area that was covered by vegetation prior to commencing earth-disturbing activities. EPA should require the owner to establish 

vegetation that covers 100% of the disturbed area so that all areas of disturbance are adequately stabilized. The establishment of 

vegetation is one of the most basic and efficient measures for controlling erosion. 

Response: EPA appreciates the comment. EPA supports the continued use of the 70 percent criteria for vegetative stabilization, and 

notes that it correlates with very high erosion control effectiveness as evidenced by the C-factor values shown with 70 percent 

establishment. 

Comment ID 0062-A1.001.028

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.2.1 

Brevard County Comment: Exemption should include areas being converted to ag. 

Response: See Part 2.2.1.c. 

Comment ID 0062-A1.001.030

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.2.1 

c. You must also comply with the following requirements: 

i. If you are relying on the C-factor values in Appendix H, you must apply and maintain the cover measure(s) consistent with the 

specifications provided in Table H-1 in Appendix H; 

ii. If soil compaction has occurred in areas that you intend to apply vegetative stabilization, you must use techniques that condition the 

soils in locations where soil compaction has occurred to support vegetative growth, consistent with Part 2.1.3.6; 

Brevard County Comment: IE: increase erodibility. 
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Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0062-A1.001.031

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.2.1 

iii. If you are using seed to establish vegetation, you must: (1) Prior to application, roughen the area with furrows trending along the 

contours of the slope. After seeding, you must water, as applicable, until the seeds germinate and grow, re-seed areas that failed to 

germinate, and protect seeded areas from further disturbance; and 

Brevard County Comment: Reseed w/ in how long? To prevent erosion you must loosen the soil, plant seed, and water. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0066-A1.001.027

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.2.2.1 

Discussion: Placing protective cover for all seeding operations will lead to pronounced expenditure increases. For example, TxDOT 

seeds approximately 18,000 acres per year; the vast majority of this is broadcast seeding. Our specs call for seedbed preparation to 4 

inches, and rolling once the seeding is performed. Rolling helps germination and prevents erosion, but the real issue is not all sites 

necessitate mulches or covering. Requiring mulches or erosion control blankets (ECB) on 18,000 acres would lead to increasing costs to 

TxDOT, at an estimated 90M per year. Providing a mulch cover can cost approximately $5,000 per acre. Requiring this on temporary 

seeding will only compound this issue. 

We agree that soil roughening is a good tool and BMP. TxDOT's specifications call for seedbed prep, but soil roughening along the 

contours and slopes will be extremely expensive and dangerous. Seedbed preparation is usually done on an up and down method on steep 

slopes for safety reasons. Requiring contouring along the contour on steep slopes cannot be achieved without jeopardizing the slope and 

equipment operators. 

The use of vegetative watering will also increase cost tremendously and also result in the frequency of failed seeding operations. 

Watering on linear projects is very expensive due to trucking charges associate with the transportation of the water. Also, watering from 

water trucks can easily cause germination to occur, but without natural rainfall the seedlings will die (without continuous watering). It is 

best to not start supplemental watering until after a natural rainfall has occurred. Repeatedly trucking in water to establish vegetation on 

18,000 acres (many of which are in remote areas of the state) is cost prohibitive. Additionally, in cases where we have trucked in water, 

we have gotten public complaints from nearby residents that may be under local water restrictions (e.g. can only water their lawns on 

certain days of the week). This issue would be compounded if we were to water the roadside adjacent to agricultural property suffering 

from lack of water. 
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Suggestion: The requirement of for covering seeding operations and vegetative watering should be a BMP that can be incorporated into 

the project's SWPPP, and given flexibility based on local conditions while the project is being constructed. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0069-A1.001.006

Author Name: Cramer M. 

Organization: 

Issue Category: 2.2.2.1 

We would like to comment on another part of this section that states: "When background vegetation covered less than 100 percent of the 

ground prior to commencing earth-disturbing activities, the 70 percent coverage criteria is adjusted as follows: if vegetation covered 50 

percent of the ground prior to construction, then the requirement would be to provide a total vegetative cover at final stabilization of 70 

percent of 50 percent (0.70 X 0.50 = 0.35), or 35 percent of the site." We support this methodology and recommend that it be included in 

the final permit language. 

Response: This language is included in the permit fact sheet.

Comment ID 0071-A3.001.008

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.2.1 

•Part 2.2.2.1 Vegetative Stabilization (c).(iii).(1). Requiring watering in arid/semi-arid areas is not practicable for a variety of reasons. 

First, accessible water supplies for these projects are often not available. Second, watering is actually counter-productive. The seeds will 

be watered until vegetation is established and then returned to an arid/semi-arid condition, resulting in a reduction in vegetation after the 

permit has been closed for achievement of stabilization. (Depending on how EPA clarifies Part 2.2.1.4 this comment may not be 

applicable as this Part may not to be required for Arid/Semi-Arid sites) 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0071-A3.001.021

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.2.1 

-Part 2.2.2.1 Vegetative stabilization. This Part discusses the establishment of vegetation based on the area covered by vegetation prior 

to commencing earth-disturbing activities. Does this mean pre-existing historic? Or does this mean just prior to the earth disturbing 

activities associated with the permit? For example if earth disturbing activities were in what had previously been a dirt parking lot, 

would pre-existing conditions be considered zero percent cover? 

Response: Refer to Essay Responses 2.44 and 2.45. See clarified language in Part 2.2.2.1, which EPA believes better articulates the 
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70 percent requirement. 

Comment ID 0071-A3.001.022

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.2.1 

-Part 2.2.2.1 Vegetative Stabilization. (a).(i). This Part is awkward and unclear. Does vegetation need to be established within 3 years in 

arid/semi-arid areas or does the seed mix need to be one that typically establish within 3 years? Or both? Establishing vegetation 

within 3 years in an arid/semi-arid area is difficult regardless of the seed mix. CDOT suggests the permit remain open until vegetation is 

established. 

Response: Refer to Essay Response 2.43. 

Comment ID 0075-A2.001.018

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.2.2.1 

In Wyoming high desert climate conditions (e.g., <10-inches annual precipitation and extreme evapo-transpiration (ET) rates), it is not 

unusual for four growing seasons to recover 70% of the baseline vegetative cover post-construction. This rule seems to imply whole 

project coverage with rolled erosion blankets, even flat areas for minimum of 3-years. Only long term temporary rolled blankets would 

meet this time stipulation at much higher cost including an extreme labor commitment for a whole project install of 100 acres or more. 

The WYDOT actual weighted bid prices, FY2010, Bid Item 216.03955 erosion prevention using Long Term Temporary Rolled Blanket 

(100% coconut) including seed and fertilizer = $8,721/acre installed versus Bid Item 216.03900 erosion prevention using Crimped, Dry 

Mulch (cereal straw) including seed and fertilizer = $4921acre. 

The proposed 100% blanket stipulation would increase erosion prevention costs by $8,229/acre or in typical 100 acre-disturbed project 

by $822,900 cost inflation. This cost inflation would not increase speed of vegetative cover under high desert climates since the surface 

rolled erosion blankets hold and quickly evaporate or sublimate precipitation in high evapo-transpiration conditions in contrast to 

soil-crimped straw mulches that infiltrate flashy storm events and improve soil moisture conditions. Desert DOT's like Wyoming only 

operate under arid conditions but should not be penalized for natural vegetative climate restrictions beyond their control. In contrast, 

construction disturbed agricultural lands with much higher erosion potential are exempt from this final stabilization criteria. 

Response: Refer to Essay Responses 2.44 and 2.45. 

Comment ID 0110-A1.001.005

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.2.2.1 
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See comments in Appendix H. The break point of 15% for slopes and the products that are listed in the Appendix H do not all meet the 

desired C-Factor values. For example, by only classifying slopes as greater than 15% or greater as steep, it is implied that a user could 

pick any of the products in the list of Appendix H for a slope as steep as 30 to 60 %, and many products/technologies on the list will fail 

miserably. 

Response: Refer to Essay Response 2.46. 

Comment ID 0110-A1.001.007

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.2.2.1 

The C-Factor values of 0.1 for slopes less than 15% and 0.3 for slopes greater than 15% appear to be backwards. With a steeper slope, 

you would want a lower C-Factor requirement as more sediment would likely be eroding. To follow up with my previous suggestion 

for slopes: 

Mild: < 15% - C-Factor of 0.3 or less 

Moderate: 15 - 30 % - C-Factor of 0.1 or less 

Steep: 30 - 60 % - C-Factor of 0.05 or less 

Severe: > 60 % - C-Factor of 0.05 or less 

The C-Factor values as stated before, should all be normalized to account for differences in testing facilities/field locations. I have 

developed an equation that allows for this to happen and would be happy to discuss this further. Using the reported C-Factors from 

various laboratory/field conditions in their current form does not provide for a proper comparison and will lead to non-conservative 

results. 

Response: Refer to Essay Response 2.46. 

Comment ID 0115-A2.001.015

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.2.2.1 

2.2.2.1 Vegetative Stabilization. In some circumstances, achievement of 70% vegetative stabilization may contradict special permit 

conditions regarding certain state rare or threatened species. For example, in Massachusetts, the MA Natural Heritage & Endangered 

Species Program (NHESP) may specify that post construction conditions leave portions of the ROW as open sandy areas suitable for 

turtle habitat. Therefore, National Grid recommends that the language regarding percentage cover include recognition of unique permit 

conditions that may require a lesser cover. 

Response: Refer to Essay Responses 2.45 and 2.47. 

Comment ID 0120-A2.001.002

Author Name: Batson Jon 
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Organization: Anderson County, South Carolina 

Issue Category: 2.2.2.1 

ADD: "Acceptance of Vegetation" means that: 

1. All soil disturbing activities at the Site have been temporarily or permanently completed and either of the two following criteria are 

met: 

a. A uniform (e.g., evenly distributed, without large bare areas) vegetative cover with a density of 70 percent of the native background 

vegetative cover for the area has been established on all unpaved areas and areas not covered by permanent structures. Vegetated 

Stabilization of a site requires stabilization with vegetation to a 70% coverage rate. This does not mean that 30% of the area to be 

stabilized with vegetation can remain bare. The coverage is defined as looking at a square yard of coverage, in which 70% of that square 

yardage is covered with vegetation.; or 

b. Equivalent stabilization measures (such as the use of mulch, riprap, gabions, or geotextiles) have been employed. 

Response: Refer to Essay Responses 2.45 and 2.47. 

Comment ID 0124-A2.001.003

Author Name: Eubanks Kevin 

Organization: Clark County Regional Flood Control District 

Issue Category: 2.2.2.1 

EPA's demand for vegetation can also be harmful. For arid areas, the draft permit requires "an appropriate seed base . . . to achieve 70 

percent vegetative cover within 3 years" (paragraph 2.2.2.1.a.1). But seed-based vegetative cover can be inappropriate in the desert 

where requisite irrigation might waste a precious resource. Local municipal entities have been buying up turf- meaning homeowners are 

paid not to grow grass and other non-desert plants because they use so much water, which has been in unusually short supply during the 

recent drought. EPA's stormwater program should not encourage wasteful uses of water, especially during a drought. 

Response: Refer to Essay Responses 2.42, 2.43, and 2.44, 2.45, and 2.47. 

Comment ID 0137-A2.001.012

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.2.2.1 

We oppose idea of using another method other than 70% stabilization as the factor to determine if the site is stabilized for the following 

reasons. 

a. Many people in the industry are not familiar with using the Universal Soil loss equation. I am specifically referring to inspectors, 

contractors, technicians, agency staff, many engineers and other specialties. The purpose of the equation appears to be calculation of a 

volume of soil loss. This is important if the intent is to determine the amount of sediment that could reach a lake or may be transported 

down a riverine system, and a determination of how fast the wet volume of a sediment is being reduced by sediment. We however are 

more interested in reducing the amount of sediment leaving the site. 
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b. The effort to train the tens of thousands of people who will need to make the determination will be time consuming and expensive for 

little apparent effect. 

c. The calculation to determine a value of less than 0.05 for a site cannot be done with any precision if a range of values or "insufficient 

data available" are the choices in order to average to less than 0.05. Leaving aside the training and cost to implement issues noted above, 

for this to work, a constant for the C‐value must be established to use in an equation otherwise it is subject to a wide range of 

interpretation and therefore doomed to fail. 

Response: Refer to Essay Responses 2.45, 2.46, and 2.47. 

Comment ID 0153-A1.001.017

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.2.2.1 

This item is too prescriptive to include in the permit. These practices vary from site to site and should be part of a design implementation 

manual. This section should be removed. This is not permit language, this is a seeding specification! 

Response: Refer to Essay Responses 2.45 and 2.47. 

Comment ID 0170-A2.001.008

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 2.2.2.1 

The requirement to water seeds in situations where vegetation has been selected to satisfy the stabilization requirements should be 

removed from the permit. This requirement is overly prescriptive, may have negative consequences to the growth of vegetation, and is 

not feasible in many situations. Watering seeds to the point of germination and growth during the dry season in arid and semi-arid 

climates would result in almost certain plant mortality once watering has stopped. To establish a perennial vegetative cover, the plants 

must be allowed to germinate and grow as the natural environment dictates. Furthermore, watering seeded areas can result in the rapid 

growth of noxious weed species. 

Watering seeded areas at linear projects may not be feasible in many situations. Linear projects that pass through rugged terrain may not 

have a water source available or may be located in areas where water transport equipment cannot access. APS regularly achieves 

vegetative stabilization at construction sites without watering. The watering requirement is not needed in the permit and should be 

removed. 

Response: Refer to Essay Responses 2.43, 2.44, 2.45 and 2.47.

2.2.2.1Q C-FACTOR ONLY APPROACH

Comment ID 0007-A1.001.004
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Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 2.2.2.1Q 

Comment: I believe the two option approach as proposed will work well. It will be difficult, though, to objectively judge the 70% of 

preconstruction cover. Allowing this flexibility is good, but putting it into practice will be very subjective. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0015-A2.001.009

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.2.2.1Q 

Q9. 70% cover & C factor - Ok with both, although 80% cover seems more consistent with other regulations and best guidance. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0017-A1.001.014

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.2.2.1Q 

12) 2.2.2 - EPA is requesting comment on whether to include the 2008 70 percent coverage criteria and/or include the new "C‐factor" 

approach. The use of the C‐factor approach is overly restrictive compared to the 70% coverage criteria. The C‐factor approach requires 

that the site,once established, has a C‐factor of 0.05 or less, but does not take into account the conditions of the site prior to construction 

(where the C‐factor may have been higher). The proposed rule indicates that in order to reach the desired C‐factor, the site needs to have 

either 75 to 96% growth cover, 60% thin stalk grass (>60%density with mulch), sod, or 1⁄4 to 1 1⁄2" crushed stone. This should be the 

standard for evaluating whether or not a site has achieved stabilization, and not the proposed "C‐factor" approach. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0025-A1.001.022

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.2.2.1Q 

In response to EPA's request for comment: In Arizona, vegetative cover can be very sparse. The method for determining stabilization in 

the 2008 CGP (achieving 70% of background) provides a quantifiable goal that can be used for determining whether fmal stabilization 

has been achieved. 

Response: Refer to Essay Response 2.47. 

Comment ID 0049-A1.001.024

Author Name: Fifield Jerald 
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Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.1Q 

Assuming stabilization of all sites must achieve a specific C-Factor value of 0.05 is not realistic or achievable and should not be an EPA 

criterion. Many of the C-Factor values found in Table H-1 have not been substantiated for construction site conditions. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0049-A1.001.025

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.1Q 

Assigning a C-Factor value of 0.30 for roughen soil (all designers will use this value) is ludicrous. Even if it were correct, one rainfall 

event can change that value to nearly 1.0. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0049-A1.001.026

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.1Q 

Low C-Factor values may never be achieved in arid and semi-arid environments for historic conditions. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0049-A1.001.027

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.1Q 

• EPA should avoid prescribing C-Factors values based upon "one size fits all" concept. Let designers and regulatory agencies determine

values for their locations based upon historic vegetative conditions. 

• Much more research needs to be completed before assuming all C-Factor values in Table H-1 are accurate enough to ensure 

applicability to construction site stabilization. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0061-A1.001.012

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.2.2.1Q 

The Agency requests comments on whether the 70% revegetation standard and the new "C-factor" approach should both be included in 
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the final permit. The EHSCP supports the inclusion of both methods as criteria to support final stabilization. The 70% revegetation 

standard is a functional and effective measure of final stabilization. Additionally, that standard is understood by those involved with 

implementation of the SWPPP without the requirement for additional documentation, new calculations which serve to increase cost 

without the realization of any environmental benefit, and without adding unnecessary confusion on the jobsite. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0062-A1.001.029

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.2.1Q 

Brevard County Comment: EPA should not expect small contractors, municipalities/ developers to keep track of this. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0065-A1.001.018

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.2.2.1Q 

CCWC members see no environmental benefit to restricting the contractor to using only the Cfactor. CCWC supports allowing 

contractors the choice of using either the 2008 CGPS 70% criteria or the C-factor. Contractors should be provided this choice because 

some stabilization methods may be more efficient and productive for the contractor to implement than utilizing the C-factor methods 

provided in Appendix H. Neither approach is more advantageous from an environmental protection perspective, and therefore it is not 

rational to foreclose the use of equally protective, more effective compliance measures 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0069-A1.001.005

Author Name: Cramer M. 

Organization: 

Issue Category: 2.2.2.1Q 

5. Part 2.2.2.1. of the draft EPA CGP discusses whether the C-factor stabilization criteria should be used as the sole option for complying 

with the permit's stabilization requirements, as opposed to allowing, as the draft permit does, permittees to choose either the C-factor 

method or the 70 percent areal cover approach. We recommend keeping both options, as more experience with the day-to-day 

practicality of the C-factor method under various conditions should be acquired before its use is mandated in the permit. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0071-A3.001.030

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 
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Issue Category: 2.2.2.1Q 

•Part2.2.2.1 Vegetative Stabilization. CDOT is supportive of having both the option of 70% pre-existing vegetation or the C-Factor 

method. This still establishes vegetation requirements, but allows some flexibility. CDOT would not be supportive of only the 

C-Factor method. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0074-A2.001.012

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.2.2.1Q 

EPA should allow permittees to choose either the C-factor method or the 70% cover approach in the proposed permit and to state which 

approach they selected in the SWPPP. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0080-A2.001.013

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.2.2.1Q 

Partner Response: Compliance with the C-factor Stabilization Criteria is a reasonable alternative; however, design engineers are really 

going to have to do their homework and apply the criteria correctly in order to achieve compliance under the proposed CGP. The 

Partners support having multiple options in achieving compliance under the CGP. The proposed language and alternative approach to 

achieving site stabilization would not limit contractors or the Partners from using the C-factor option or the 70% criteria. The Partners 

support a tool-box approach for permit implementation and compliance. However, this new requirement will add to the workload of the 

engineers designing the BMPs to assure that the required 0.05 C factor in the RSULE is reached by final stabilization. As mentioned 

earlier in our responses, in arid areas it is difficult enough to get 70% of existing cover through precipitation. The additional requirement 

would add to the project workload and cost and increase the difficulty in file CGP Notice of Terminations (NOTs). 

The Partner's interpretation of the draft permit language is that this criteria only applies to temporary stabilization practices where the 

area has not undergone construction activity for 7 or 14 days. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0085-A2.001.011

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.2.2.1Q 

Rockville supports using the C-factor stabilization criteria as the sole option for meeting stabilization requirements. If EPA continues to 

accept stabilization achieved solely through vegetative stabilization, then EPA should consider requiring final cover densities well above 

70% for non-arid regions. For example, Maryland has required densities as high as 95%. See Maryland Standards and Specifications for 

Soil and Erosion Control (1994). 
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Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0087-A1.001.044

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.2.2.1Q 

UWAG supports the continued use of the 70% vegetative cover requirement in lieu of solely utilizing the C-Factor requirements. The 

70% requirement has been, and continues to be, an effective and easily understood requirement for vegetative stabilization. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0090-A1.001.018

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.2.2.1Q 

AGA also requests that EPA clarify whether the C-factor value approach noted in Part 2.2.2.1 under Criteria for stabilization will 

incorporate the 70% cover option as a means of obtaining final stabilization. If this is the case, AGA considers the C-factor value to be 

appropriate and reasonable. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0091-A2.001.007

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.2.2.1Q 

7. Fact Sheet Item 9. Part 2.2.2.1: Recommend allowing the permitee to choose either the C--factor or 70% areal coverage approach. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0093-A2.001.058

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.2.2.1Q 

In the Draft, EPA provides two options for stabilizing exposed portions of the site with vegetation, including the 2008 CGP's 70% 

criteria and the new C-factor value approach. EPA has requested comment on whether the C-factor stabilization criteria should be used 

as the sole option for complying with the permit's stabilization requirements, as opposed to allowing permittees to choose either the 

C-factor method or the 70% area cover approach. 

AGC finds that the C-factor approach should not be the only criteria for stabilization. As stated above, EPA rejected such an approach for 

the C&D ELG, explaining that it would be difficult to calculate an area-weighted C-factor. ("EPA [believes] it would be difficult to 
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calculate an area-weighted C-factor. Permitting authorities may want to adopt such an approach in their permits, but EPA has chosen not 

to implement such a requirement in the national rule.") However, the Draft is essentially national in scope. EPA can require appropriate 

stabilization requirements, but it should reserve its lengthy discussion in the Draft, proposed CGP Fact Sheet and Appendix H for 

subsequent guidance that would provide insight and assistance for site operators for implementing the final C&D ELG and subsequent 

CGP. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0096-A1.001.041

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.2.2.1Q 

EPA has requested comment on whether the “C”-factor stabilization criteria should be 

used as the sole option for complying with the permit’s stabilization requirements, as opposed to 

allowing permittees to choose either the “C”-factor method or the 70 percent areal cover 

approach. EPA’s proposal seeks to institute a site stabilization standard based on the soil loss 

“C”-factor associated with the Revised Universal Soil Loss Equation (RUSLE) regression 

formula, even though EPA rejected such an approach in the final C&D ELG, stating “EPA 

[believes] it would be difficult to calculate an area-weighted “C”-factor. Permitting authorities 

may want to adopt such an approach in their permits, but EPA has chosen not to implement such 

a requirement in the national rule.” [FN 64] However, because the proposed CGP will likely have a 

national impact, it is uncertain why EPA now believes such an approach is appropriate. 

The “C” factor approach should not be the only criteria for stabilization. It is not always 

practicable in every circumstance, and operators may need the flexibility to define stabilization 

by some other parameter. In some cases, the 70% vegetative cover option is more definitive and 

easier to implement if vegetation is to be used for temporary or final stabilization. There are 

many ambiguities and inconsistencies in the “C” factor method, as discussed below. 

First, the BMP approaches for erosion control and stormwater management need to be 

flexible enough to cover a wide range of site and weather conditions. Requiring that only the 

“C” factor method can be used unnecessarily boxes operators into a corner, and forces them to 

make decisions that are not best for the site situations they confront. The requirements for 

stormwater erosion control at construction sites have gotten exponentially more complex over 

the years, and reducing acceptable options makes the issues more difficult, not easier. 

Second, the specific “C” factors identified by EPA are not explained and seem to be 

arbitrarily chosen. They seem to be extremely conservative, and in fact severely limit the 

choices of BMPs found in Table H-1. The “C” factor option in the CGP requires that three 

levels of “C” factor must be attained. A factor of 0.05 or less is required for all final 

stabilizations, which appears to be basically equal to fully mature vegetative cover or sod. (The 

only other choice from Table H-1 with a “C” factor “less than 0.05” is a rock surface cover.) 
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Vegetative cover equal to a 0.05 “C” factor may not be achievable during winter in many areas 

of the country. In fact, for arid and semiarid areas, a 0.05 “C” factor could never be achieved 

with native cover, and non-native grass would require constant and permanent irrigation to 

maintain, which may not be practical at many construction sites. For temporary stabilization, a 

factor of 0.1 or less must be achieved for all disturbed areas of slopes less than 15% where 

disturbance activities will not be resumed within 14 days. A factor of 0.3 or less must be 

achieved for temporary stabilization of slopes greater than 15%. Only two similar BMPs, “straw 

fiber with netting” or “straw fiber with tackifier,” are able to meet these requirements according 

to Table H-1. These specific choices of required “C” factors need to be thoroughly vetted 

through the construction community, including identifying the source(s) of the “C” and the 

justification for the specific “C” factor requirements EPA has chosen.

Third, the assignment of specific “C” factors to various BMP techniques seems rather 

arbitrary and ambiguous. Table H-1 in Appendix H is supposed to be the list of tested BMPs 

where the “C” factor is known. However, for many of the non-vegetative BMP materials, the 

“C” factors given in the table for specific BMPs are presented as a very large range of values. 

For example, “hydromulch with netting” has a “C” factor range from 0.1 to 0.4 for slopes less than 15%, and 0.1 to 0.6 for slopes greater 

than15%, so it is not clear at all whether this BMP

would meet the required “C” factor for temporary stabilization. EPA only says that the 

manufacturer should be consulted for BMPs that have ranges of “C” factors. However, since this 

is now a permit compliance issue, what BMP documentation would EPA require to ensure 

compliance with the CGP? There needs to be a more definitive explanation as to how an 

operator will verify compliance with specific “C” factors when such wide ranges of “C” factors 

are assigned. 

Finally, the exclusive use of the “C” factor can be counterproductive to the use of new 

and innovative erosion control BMPs. If a BMP technology is currently not listed in Table H-1, 

EPA says that the operator must provide documentation of the unlisted BMP “C” factor based on 

recognized standard testing procedures such as ASTM 6459, even though, as discussed above, 

the results of such testing often seems to be ambiguous. The practical effect is that no BMP 

technology that is currently not listed in Table H-1 will likely ever be used. EPA is strongly 

urged to allow the use of either the “C” factor or the 70% areal cover. 

[FN 64] 74 Federal Register 63,050 (December 2009) 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0098-A1.001.012

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.2.2.1Q 

 Part 2.2.2.1.b Criteria for stabilization The Agency asks whether the C-Factor approach alone should be adopted as the test for final 
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stabilization or whether the new permit also should retain the traditional 70% cover standard. We believe that making both approaches 

available to define final stabilization is appropriate because the 70% standard is familiar to site personnel who have implemented it for 

years and because the C-Factor approach requires highly technical skills that are not commonly found on construction sites. We also 

suggest utilizing the C-Factor approach when the establishment of 70% density of cover over 100% of the exposed soils in difficult or 

unlikely, such as in arid climates. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0103-A3.001.010

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.2.2.1Q 

In Part 2.2.2 Criteria for Stabilization, EPA provides detailed description of vegetative stabilization coverage. EPA continues the 2008 

CGP's 70 percent (%) vegetation criteria, and adds an alternative to use a cover management factor ("C-factor") value approach. EPA 

requests comments on whether both options should be included in the final permit or whether only the C-factor approach should be 

included. 

TCEQ recommends including both the 70% criteria option and the new C-factor value option, as they provide flexibility to the 

permittees. The 70% vegetation calculation may be easier for permittees to implement, since it is relatively easy and familiar; 

particularly in the short term as operators gain experience in calculating a C-factor. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0110-A1.001.006

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.2.2.1Q 

I think that both methods have utility and the 70% criteria is something that users are familiar with, so it is good to have that as an option. 

The C-Factor method needs to be worked on quite a bit to develop a consistent method for users to determine the values and not have a 

table of values for various products/techniques with C-Factors that are not comparable (most of the C-Factors provided in Appendix H 

tables were developed from varied testing/field conditions and are not comparable). 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0110-A1.001.009

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 2.2.2.1Q 

Further, if you are going to implement the use of C-Factors for soil stabilization, an understanding of the relationship between C-Factor 

and Turbidity should be explored as I have performed some research that shows the relationship is inversely proportional for many of the 

historical erosion control products, meaning that a low C-factor does not mean a low NTU. 
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Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0115-A2.001.016

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.2.2.1Q 

National Grid appreciates the opportunity to demonstrate compliance with the vegetative stabilization requirements by utilizing the new 

C-Factor approach (RUSLE). However, due to the complexity of this approach on some sites (e.g., varied terrain, slope, soil types, etc.) 

and novelty of the approach at this point, we recommend offering the C-Factor approach as an optional alternative to the 70% vegetative 

stabilization requirement. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0126-A2.001.010

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.2.2.1Q 

Per EPA requested commentary, the CSC appreciates the feels that having both options is the best alternative and does not want to be 

limited to only the C-factor option 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0130-A2.001.016

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.2.2.1Q 

15. STABILIZATION METHODS. In Part 2.2.2.1, EPA is requesting comments regarding the two options for vegetatively stabilizing

exposed portions of the site, including the 2008 CGP‟s 70 percent criteria and the new C-factor value approach. 

ITD‟s preference is to keep both the 70% vegetation criteria and the "C-factor" criteria. The "Cfactor" is based on ASTM 6459. This test 

is for rolled erosion control products (i.e. blankets). Many manufacturers also use this test to determine a "C-factor" for hydraulically 

applied erosion control products. There is considerable industry controversy over the efficacy of this test for hydraulically applied 

products since it was designed for rolled products. Given this controversy, the "C-factors" provided by manufacturers may not meet the

intent of this permit requirement. In addition the standard NTPEP test for ASTM 6459 tests slopes at a 3:1 slope to find a "C-Factor". A 

3:1 slope does not meet the slope requirements of this permit (5% and 15%). It appears that a modified ASTM 6459 test will be required. 

Given these issues it seems absolutely necessary to keep the 70% vegetative cover approach, and further analysis is required by EPA into 

the C-factor requirements presented in the permit 

Response: Refer to Essay Responses 2.46 and 2.47. 
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Comment ID 0131-A1.001.011

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.2.2.1Q 

A C-factor of 0.05 is not practical for arid and semi arid regions which would naturally not have such a C-factor in most cases. The only 

permanent stabilization that will comply with a C-factor of 0.05 is crushed rock, vegetative surface cover of 75% or grasses with 60% 

density. Crushed rock is not economical for larger areas of soil disturbance. 

The C-factor approach would be practical for areas with rainfall that support 75% vegetative surface cover. However, in areas with low 

rainfall, irrigation must compensate for the lack of precipitation to ensure growth and maturity for a cover that would meet the 0.05 

C-factor (as well as reduce the potential for fires). In areas with restricted water use, irrigation is costly and water conservation must be 

taken into consideration. 

LBA suggests instead that EPA retain the 70% aerial cover (Appendix A of the 2008 CGP) approach as an option for stabilization in 

areas that can support it and allowing projects to select an appropriate C factor based on upon natural C factors. Fire suppression must be 

a consideration. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0133-A2.001.021

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.2.2.1Q 

MDT supports the inclusion of both options for stabilization: vegetatively stabilizing exposed portions of the site and the new Cjactor 

value approach. Especially in arid and semi-arid areas, flexibility must be provided to reach final stabilization. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0153-A1.001.016

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.2.2.1Q 

1. This requirement is not consistent with typical determination of 70% coverage. Typical interpretation of 70% vegetation 

establishment is that when analyzing an area (square foot, square yard, etc.) that 70% of the analyzed area has 70% establishment of 

vegetation. In black and white, this CGP statement says that if the site was 100% vegetated prior to earthdisturbing activities, it must be 

70% covered with vegetation at the completion of the project! This says that a construction site can only result in a maximum of 30% 

non-vegetated area. This is a landuse requirement or a maximum imperious area requirement which would allow only 30% of the project 

area to be built upon. The permit allows for the 70% rule or the C-factor rule, but the 70% rule as defined here would be very difficult to 

implement.. 

2. Based on experimental studies, the C factor is related directly to the % coverage and the presence of stabilized mulch (mulch tacked to 

the soil) used in seeding. In calculations that are typically used for design purposes, the assumption is used that the C factor changes with 
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time after soil preparation and seeding. In the real world, climate factors such as sunshine, temperature, and precipitation along with 

proper fertilization determine how long it actually takes to establish 90% cover. Taking a C factor from a chart does not mean that the C 

factor will actually be attained at any given time. To prove that the C factor was attained, the only reasonable method would be to 

determine the % cover. Therefore, attaining a given % cover is a reasonable requirement. 

3. The condition of the site related to vegetation cover should not be a consideration for stabilization post construction. 

4. If you meet the 70% criteria for stabilization, you should be close to meeting a cover practice percentage of 0.05. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0159-A1.001.010

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 2.2.2.1Q 

We are against the idea of using another method other than 70% stabilization as the factor to determine if the site is stabilized for the 

following reasons. 

a. Many people in the industry are not familiar with using the Universal Soil loss equation. I am specifically referring to inspectors, 

contractors, technicians, agency staff, many engineers and other specialties. The purpose of the equation appears to be calculation of a 

volume of soil loss. This is important if the intent is to determine the amount of sediment that could reach a lake or may be transported 

down a riverine system, and a determination of how fast the wet volume of a sediment is being reduced by sediment. We however are 

more interested in reducing the amount of sediment leaving the site. 

b. The effort to train the tens of thousands of people who will need to make the determination will be time consuming and expensive for 

little apparent effect. 

c. The calculation to determine a value of less than .05 for a site cannot be done with any precision if a range of values or "insufficient 

data available" are the choices in order to average to less than .05. Leaving aside the training and cost to implement issues noted above, 

for this to work, a constant for the C-value must be established to use in an equation otherwise it is subject to a wide range of 

interpretation and therefore doomed to fail. 

Response: Refer to Essay Responses 2.46 and 2.47. 

2.2.2.2 NON-VEGETATIVE STABILIZATION

Comment ID 0049-A1.001.029

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 2.2.2.2 
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Assigning C-Factor values to temporary measures may be meaningless. 

• C-Factor values are not meant for temporary conditions. 

• There is no sustaining information on the longevity of C-Factor values for temporary measures. 

Response: Refer to Essay Responses 2.46 and 2.47. 

Comment ID 0062-A1.001.032

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.2.2.2 

2.2.2.2 Non-Vegetative Stabilization. If you are using non-vegetative cover methods (e.g., hydromulch or straw/fiber with netting, soil 

bonding agents with polyacrylamide, riprap, geotextiles, gravel) to stabilize an exposed portion of your site, you must comply with one 

of the following criteria depending on whether you are providing temporary or final stabilization: 

Brevard County Comment: Organic materials are contaminants in many instances. 

Response: EPA believes that if properly applied to exposed areas there should not be significant loss of organically-based materials 

from the stabilized surface sufficient to cause an exceedance of applicable water quality standards. EPA would suspect that, barring an 

unusually large and intense storm, a significant loss of materials from a stabilized site suggests improper application of the stabilization 

cover. 

Comment ID 0071-A3.001.009

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.2.2.2 

•Part 2.2.2.2 Non-Vegetative (b) Final Stabilization. It would be valuable to have the 70% pre-existing cover option in this Part as well. 

Response: EPA disagrees with the commenter. Where non-vegetative cover is used it should be applied to all exposed surfaces. See 

Part 2.2.2.2. 

Comment ID 0086-A1.001.011

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 2.2.2.2 

Additionally, temporary stabilization requirements should not be limited to only cover-type BMPs. See Section 2.2. Non-vegetative, 

non-cover erosion, and sediment control BMPs can be used on flat or sloped ground that will also reduce erosion and provide effective 

sediment control. Silt fencing, wattles, and other BMPs can be used alone or in combination with other materials or practices to provide 

protection in many instances. Sometimes providing temporary cover after one phase of construction may mean that more damage is done 

to the area to remove the temporary cover in preparation for the next phase. This unnecessary damage may be avoided if other types of 

temporary stabilization are allowed to be used in the CGP. 
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Response: EPA agrees with the general idea of the comment, but notes that some of the BMPs recommended are designed for 

sediment control and not for erosion control, and would therefore not be appropriate for stabilizing a site. 

Comment ID 0139-A2.001.003

Author Name: Aho Andrew 

Organization: Geosynthetic Materials Association (GMA) 

Issue Category: 2.2.2.2 

2.2.2.2 Non-Vegetative Stabilization. If you are using non-vegetative cover methods (e.g., hydromulch or straw/fiber with netting, soil 

bonding agents with polyacrylamide, riprap, geotextiles, geogrids, geomembranes, geocells, geocomposites, synthetic turf, gravel) to 

stabilize an exposed portion of your site, you must comply with one of the following criteria depending on whether you are providing 

temporary or final stabilization: 

Response: EPA notes that it has added geotextiles to the list of examples. The examples provided by the commenter, if applied 

correctly, are all good examples of non-vegetative stabilization covers. 

2.2.3 USE OF SITE STABILIZATION TO REDUCE DISTURBED ACRES 

COUNTED TOWARDS APPLICATION OF NUMERIC TURBIDITY LIMIT

Comment ID 0076-A1.001.012

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.2.3 

Target commends the EPA for providing flexibility within the C&D rule, which creates reduced monitoring requirements for phasing 

construction sites. 

Response: EPA appreciates the comment. As noted elsewhere in the comment response document, the permit does not include a 

numeric turbidity limit, therefore this provision has removed. 

Comment ID 0133-A2.001.022

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.2.3 

MDT supports the use of temporary andjinal stabilization measures to reduce the acres counted towards application of the numeric 

turbidity limit. Inclusion of such a provision will greatly encourage the use of phased construction, which has been shown to 

substantially reduce the amount of sediment present in stonn water discharges. 

Response: EPA appreciates the comment. As noted elsewhere in the comment response document, the permit does not include a 

numeric turbidity limit, therefore this provision has removed. 
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2.3 POLLUTION PREVENTION REQUIREMENTS

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

2.3.1 PROHIBITED DISCHARGES

Comment ID 0068-A1.001.024

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.3.1 

Part 2.3 proposes to prohibit certain discharges otherwise allowed by the December 2009 C&D ELG. For example, EPA specifically 

allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Proposed CGP creates an absolute 

prohibition. EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be quashing that flexibility in 

implementing any ELG. 

Response: EPA has modified the permit to better reflect the language of the C&D rule with respect to prohibited discharges. See Part 

2.3 and 40 CFR 450.21(e). For instance, in the proposed permit, all discharges from the washout of concrete were prohibited, whereas 

in the final permit these discharges are prohibited “unless managed by an appropriate control ...” (see Part 2.3.1.1). 

Comment ID 0068-A1.001.025

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.3.1 

EPA also unnecessarily proposed a strict and overly-broad prohibition in Part 2.3.1.6 ("Waste, garbage, floatable debris, construction 

debris, and sanitary waste."). The purpose of obtaining a NPDES permit for stormwater associated with construction activity is to obtain 

authorization for pollutants that are expected to be present in such stormwater discharges, such as construction waste or debris. 

"Construction waste" is defined to include many likely and mostly harmless pollutant discharges (in reasonable quantities), including 

"soil generated by construction activity." (Appendix A at 3). Obviously, EPA cannot expect to prohibit the discharge of some soil 

particles from construction operations. 

The term "construction debris" is not defined, but arguably might be interpreted to include saw dust, wood chips or other possible 

floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention of 

the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obligations it has proposed to impose site 

operators. 

Response: EPA has modified the permit to remove the referenced language from the list of prohibited discharges. The final permit 

reflects more precisely the list of prohibited discharges in 40 CFR 450.21(e). 
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Comment ID 0091-A2.001.020

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.3.1 

20. Part 2.3.1.3: Many installations have established facility procedures, spill plans, and onsite first responders. In these cases the 

permitee should comply with installation requirements. 

Response: EPA allows for use of existing plans such as these to the extent that they are sufficient to comply with the requirements in 

Part 2.3.1. See Part 7.2.11.1.b of the final permit. 

Comment ID 0093-A2.001.005

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.3.1 

Part 2.3 would prohibit certain discharges that the C&D ELG allows, such as concrete washout, provided only that it is managed by 

appropriate controls. This is another example of the Draft depriving operators of the flexibility that EPA has already determined to be 

necessary and appropriate, and trying to undue decisions already made, on a proper rulemaking record. While EPA has a certain amount 

of discretion, it cannot go so far as to rewrite the C&D ELG on which its revisions to the CGP are based. 

Response: See response to Comment 0068-A1.001.025. 

Comment ID 0093-A2.001.060

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.3.1 

Part 2.3 proposes to prohibit certain discharges otherwise allowed by the December 2009 C&D ELG. For example, EPA specifically 

allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Draft creates an absolute prohibition. 

EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be quashing that flexibility in any implementing 

CGP. 

EPA also unnecessarily proposed a strict and overly-broad prohibition in Part 2.3.1.6 ("Waste, garbage, floatable debris, construction 

debris, and sanitary waste."). The purpose of obtaining a NPDES permit for stormwater associated with construction activity is to obtain 

authorization for pollutants that are expected to be present in such stormwater discharges, such as construction waste or debris. 

"Construction waste" is defined to include many likely and mostly harmless pollutant discharges (in reasonable quantities), including 

"soil generated by construction activity." (Appendix A at 3). Obviously, EPA cannot expect to prohibit the discharge of some soil 

particles from construction operations. 

The term "construction debris" is not defined, but arguably might be interpreted to include saw dust, wood chips or other possible 

floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention of 

the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obligations it has proposed to impose site 
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operators. 

Comment ID 0096-A1.001.043

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.3.1 

EPA proposes to prohibit certain discharges otherwise allowed by the C&D ELG in Part 2.3. For example, the C&D ELG allows 

concrete washout to be discharged, as long as it ismanaged by appropriate controls. This is another example of EPA providing more 

flexibility within the context of promulgating a final C&D ELG, only to subsequently propose implementing the ELG in a more 

prescriptive CGP. 

EPA’s proposed prohibition in Part 2.3.1.6 also is overly broad (“Waste, garbage, floatable debris, construction debris, and sanitary 

waste.”). Arguably, the purpose of obtaining a NPDES permit for stormwater associated with construction activity is to obtain 

authorization for pollutants expected to be present in such stormwater discharges, such as construction waste or 

debris. Construction waste is defined to include all sorts of possible discharges, including “soil generated by construction activity.” 

(Appendix A P. 3). Construction debris is undefined, but arguably might be interpreted to include saw dust, wood chips or other possible 

floatable materials that are otherwise environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention 

of the term “construction waste” throughout this Part so that it does not create unreasonable or illogical obligations on the part of the site 

operator. 

Response: EPA has modified the permit to remove the referenced language from the list of prohibited discharges. The final permit 

reflects more precisely the list of prohibited discharges in 40 CFR 450.21(e). 

Comment ID 0128-A2.001.014

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 2.3.1 

Part 2.3 proposes to prohibit certain discharges otherwise allowed by the December 2009 C&D ELG. For example, EPA specifically 

allowed concrete washout to be discharged, as long as it is managed by appropriate controls. The Proposed CGP creates an absolute 

prohibition. EPA provided necessary flexibility in promulgating the C&D ELG, and EPA should not be quashing that flexibility in 

implementing any ELG. 

EPA also unnecessarily proposed a strict and overly-broad prohibition in Part 2.3.1.6 ("Waste, garbage, floatable debris, construction 

debris, and sanitary waste."). The purpose of obtaining a NPDES permit for stormwater associated with construction activity is to obtain 

authorization for pollutants that are expected to be present in such stormwater discharges, such as construction waste or debris. 

"Construction waste" is defined to include many likely and mostly harmless pollutant discharges (in reasonable quantities), including 

"soil generated by construction activity." (Appendix A at 3). Obviously, EPA cannot expect to prohibit the discharge of some soil 

particles from construction operations. 

The term "construction debris" is not defined, but arguably might be interpreted to include saw dust, wood chips or other possible 

floatable materials that are mostly environmentally benign. EPA must remove or clarify this prohibition and each subsequent mention of 
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the term "construction waste" throughout this Part, and eliminate the unreasonable or illogical obligations it has proposed to impose site 

operators. 

Response: EPA has modified the permit to remove the referenced language from the list of prohibited discharges. The final permit 

reflects more precisely the list of prohibited discharges in 40 CFR 450.21(e). 

2.3.2 POLLUTION PREVENTION STANDARDS

Comment ID 0015-A2.001.031

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.3.2 

2.3.2. Add portable restrooms to the list of activities to consider. They can be significant pollution sources when leaking or vandalized. 

Such bacterial discharges are discussed later in the permit. 

Add spill training to requirements for any materials stored onsite. Training should include identification of emergency response agency 

or firm and the location and use of spill materials that are onsite. 

Response: The final permit addresses “portable toilets” in Part 2.3.3.3.f. EPA’s training requirements are included in Part 6 of the 

permit, and provides for procedures on spill prevention and response to be included in the operator’s SWPPP (see Part 7.2.11.1). 

Comment ID 0051-A2.001.003

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 2.3.2 

Pollution prevention standards for fueling and maintenance of equipment and vehicles and for staging and storage areas (Part 2.3.2). The 

implementation of such standards, including secondary containment and the requirement of onsite spill kits, is a practicable solution for 

the necessary prevention of chemical pollution. 

Response: EPA notes the supportive comment. The final requirements are reflective of the language that the commenter supported in 

the proposed permit. 

Comment ID 0087-A1.001.026

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.3.2 

Moreover, the CGP includes many pollution prevention requirements, which are far too detailed for a general permit and should be 

addressed, if at all, in a permittee's SWPPP, including requirements pertaining to washing of equipment of vehicles (Section 2.3.2.2); 

washing of applicators and containers used for paint, concrete, or other materials (Section 2.3.2.4); and storage, handling, and disposal of 

construction waste (Section 2.3.2.5). Furthermore, in Section 2.3.2.1, EPA should simply state that "permittees are required to comply 
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with applicable SPCC laws and regulations." Similarly, in Section 2.3.2.5, EPA should simply state that "permittees are required to 

comply with applicability solid and hazardous waste laws and regulations." 

Response: EPA has streamlined Part 2.3 to provide more flexibility to the operator to determine how best to minimize pollution 

sources at the site and to document such controls or procedures in the SWPPP. See Part 7.2.11. 

Comment ID 0168-A1.001.028

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 2.3.2 

-- Pollution Prevention Standards (Section 2.3.2, page 25-27): The pollution prevention measures as proposed in the draft permit should 

be sufficient to provide adequate site protection from spills or accidental release. There are no comparable associated benefits that would 

justify the significant costs that would be associated with adding a requirement for secondary containment or covers for the fueling and 

maintenance areas of the site, nor for the staging and storage areas of the site. This would not be practical for any construction site. 

Response: EPA has added flexibility to the proposed permit’s requirements to provide cover or secondary containment. The final 

permit now provides cover or secondary containment as an option, and specifies that operators may use “similarly effective means” 

designed to prevent or minimize the discharge from pollution sources. Among the similarly effective means referenced as examples are 

spill kits. 

2.3.2.1 FUELING AND MAINTENANCE OF EQUIPMENT OR VEHICLES 

[REQUEST FOR COMMENT]

Comment ID 0017-A1.001.015

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.3.2.1 

13) 2.3.2.1 - Establishing vehicle fueling areas on a linear project where all fueling must occur is not feasible. Linear projects often cover 

several miles. Requiring heavy equipment to travel back and forth to a fueling area will 1) waste fuel, 2) increase the idle time and 

duration of a project, 3) result in greater compaction of soil that will need to be restored as the machinery travels to and from the work 

area, and 4) result in increased air emissions. Having a designated fueling location for a linear project is not a feasible, viable alternative. 

Industry standard is to have a fueling truck come to the heavy equipment. Existing regulations cover the reporting and cleanup of 

chemicals and petroleum products. As long as fueling is being conducted outside of a sensitive area, whether the fueling is in a 

designated area or out within the job site, and the activity is being conducted in a responsible manner, the overall goal of preventing of 

spills from getting to waters of the US is achieved. 

Response: The requirements in the final permit address the commenter’s requirements by adding in greater flexibility to the prevention 

measures that are required. See Part 2.3.3.1. These requirements were specifically modified from the proposal to provide flexibility to 

vehicle fueling and maintenance activities for linear projects given the constraints that these types of projects operate under related to the 

fact that vehicles and equipment move as the project progresses. 
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Comment ID 0017-A1.001.016

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.3.2.1 

14) 2.3.2.1(d) - The proposed rule required weekly inspections, documentation, and maintenance of vehicles and equipment that have 

signs of leaks or spills. It is inevitable that equipment will have signs of leaks. However, the sign of a leak does not mean that there is a 

release to the environment. Requiring maintenance of equipment whenever a leak is detected is overly burdensome and should be limited 

to the visible presence of a spill (a drip or visible staining of the ground). Maintaining equipment with a visible presence of a spill is 

industry standard but the proposed documentation is cumbersome and offers no value. 

Response: During the site’s regular inspections, the operator is required to look for leaks, spills, or other releases. If these conditions 

are found, Part 2.3.2 requires that action be taken to fix the problem immediately. EPA agrees with the commenter that a leak does not 

necessarily mean that a discharge of that substance has occurred. However, the permit requires as stated above that action be taken 

immediately to fix the problem. 

Comment ID 0040-A1.001.012

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.3.2.1 

Section 2.3.2.1.b as proposed would require secondary containment for all staging and storage activities (or other effective means) "to 

eliminate discharges of stormwater from these areas" (emphasis added). The purpose of BMPs is to control and minimize the discharge 

of pollutants in stormwater, not to eliminate the discharge completely 

Response: The discharges that are prohibited are listed in Part 2.3.1. Regarding the commenter’s observation about secondary 

containment, see response to Comment 0168-A1.001.028. 

Comment ID 0046-A1.001.015

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.3.2.1 

The SWPPP preparer and monitors are not mechanics and not all maintenance activities are relevant to spills and leaks. These 

requirements need more focus on stormwater. 

Response: EPA has modified these requirements to bring more focus to maintenance that targets the proper functioning of pollution 

prevention measures, and to look for signs of leaks or spills. Where those are found immediate action is required. 

Comment ID 0049-A1.001.030

Author Name: Fifield Jerald 
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Organization: HydroDynamics Incorporated 

Issue Category: 2.3.2.1 

Is EPA recommending that fuel trucks for equipment not be allowed on construction sites except at designated refueling areas? 

Clarification by EPA on this issue is necessary. 

Response: No, EPA is not prohibiting access to the site by vehicles or equipment. However, sources of pollution from vehicles or 

equipment are controlled under the permit. See Parts 2.3.3.1 and 2.3.3.2. 

Comment ID 0056-A2.001.010

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 2.3.2.1 

The DER appreciates that EPA is soliciting input on this permit requirement. Good housekeeping practices for refueling and 

maintenance are a necessity but the practicality of providing secondary containment and cover for areas used for these activities would 

be a burden to smaller, short-term restoration projects. DER consistently works toward eliminating on-site refueling and maintenance 

though there is always the potential for unexpected malfunctions or necessary adjustments to on-site heavy equipment. We believe a spill 

kit is an adequate back-up to accepted on-site preventive measures for restoration projects, and that the permit should allow for this 

approach in the above circumstances. 

Response: See response to Comment 0168-A1.001.028. 

Comment ID 0062-A1.001.034

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.3.2.1 

Brevard County Comment: No contractor will follow on a regular basis without vigorous enforcement. How will areas be cleaned? Burn 

off? 

Response: EPA has made the requirements in the final permit clearer and has provided greater flexibility. It is EPA’s expectation that 

sites will be able to comply with these requirements. 

Comment ID 0064-A1.001.022

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.3.2.1 

Section 2.3.2.1.d, page 26 - Full "Maintenance requirements" section 

•How does EPA propose daily inspections be documented on a weekly basis? 

Response: EPA found that it was unnecessary to have additional inspections focusing exclusively on pollution prevention 

requirements when there are already site-wide inspections required in Part 4. Given that the operators is already required as part of their 

inspection to examine the pollution prevention measures, it is unnecessary to impose additional stand-alone inspection requirements 
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focusing on pollution prevention. Therefore, the inspection requirements have been removed from this section of the final permit. No 

additional response is necessary. 

Comment ID 0065-A1.001.019

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 2.3.2.1 

Section 2.3.2.1 provides pollution prevention standards for fueling and maintenance of equipment or vehicles. These provisions should 

be eliminated from the CGP because they unnecessarily duplicate requirements in Spill Prevention Control and Countermeasure (SPCC) 

plans. There is no reasonable basis to impose two separate standards to achieve the same regulatory outcome, particularly where there is 

no additional environmental benefit. 

Response: See response to Comment 0087-A1.001.026. 

Comment ID 0066-A1.001.028

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.3.2.1 

Discussion: Often on state DOT projects a mobile fuel/lube truck is utilized to service heavy equipment, and does that servicing at 

numerous locations throughout the project limits. On some projects, it is not economically feasible or practicable to have a central or 

designated location for fueling (i.e. it could involve driving tens of miles through the project to get to It, or it may not be possible to move 

the equipment if it is involved in a complex or time-sensitive stage of the project. 

Suggestion: This requirement to have the locations clearly delineated and marked is not practicable in all situations. An exception should 

be considered for when mobile fuel trucks are being utilized. 

Response: EPA has removed the location restrictions from the final permit in part due to the concerns of linear construction projects. 

Comment ID 0068-A1.001.026

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 2.3.2.1 

Proposed Part 2.3.2.1(c)(i) is not consistent with the C&D ELG proposal (see 40 CFR § 450.21(d)(3)). The language in this subpart 

should simply track or parrot the language from 40 CFR § 450.21(d)(3). 

Response: EPA has removed this language from the final permit. 

Comment ID 0087-A1.001.040

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 
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Issue Category: 2.3.2.1 

The CGP includes pollution prevention standards for fueling and maintenance of equipment and vehicles that are not appropriate or 

feasible for linear utility projects. Section 2.3.2.1. In linear projects, fueling and maintenance tend to be mobile instead of fixed. EPA 

needs to allow different pollution preventions standards (e.g., mobile BMPs), if pollution prevention measures are warranted, for these 

activities. 

At a minimum, linear projects should be exempt from any and all designated storage and staging area requirements (e.g., Section 2.3.2.3) 

due to infeasibility and limited space within the corridor. 

Response: See response to comment 0066-A1.001.028. 

Comment ID 0093-A2.001.061

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.3.2.1 

This part states: "If you conduct fueling and/or maintenance activities at your site for equipment or vehicles used for your construction 

activities... you must ... [c]learly flag off and designate areas to be used for fueling and maintenance activities and conduct such 

activities only in these areas." AGC maintains that this would be very problematic. Moving equipment to central areas will be hard on 

road projects. It would be a waste of fuel, waste of time, and result in inefficient operations and potentially more environmental harm 

(e.g., further land disturbance and dust). Contractors need to maintain the ability to perform mobile fueling. 

Response: See response to comment 0066-A1.001.028.

Comment ID 0111-A2.001.010

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 2.3.2.1 

Part 2.3.2.1.b/Part 2.3.2.3.b: Fueling and maintenance of equipment or vehicles / Staging and storage areas - Design requirements 

Dow believes that the proposed design requirement for secondary containment structures or similar effective means to prevent the 

discharge of spilled or leaked chemicals from fueling and maintenance of equipment or vehicles / staging and storage areas is overly 

burdensome. Dow believes that a more reasonable approach would be to allow the permittee to implement containment and controls for 

the most likely failure scenario (of a de minimis amount), similar to the Spill Prevention Control and Countermeasures (SPCC) 

requirements for in-service regulated oil equipment. 

In the event that a permittee meets the SPCC applicability threshold aboveground oil storage of 1,320 gallons (55 gallons or larger oil 

storage containers), then the provisions of SPCC should be incorporated as appropriate. 

Response: See response to comments 0168-A1.001.028 and 0087-A1.001.026. 

Comment ID 0115-A2.001.017
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Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.3.2.1 

2.3.2.1 Fueling and Maintenance of Equipment or Vehicles. National Grid makes every effort to avoid refueling and maintaining 

equipment within 100 feet of wetlands, however, the provision of 50 foot buffers and vegetative buffers is not feasible along utility 

ROWs. National Grid recommends provision of an exception similar to the utility exception within 2.1.2.3. 

Response: EPA has removed many of the proposed location restrictions from the final permit. Where such restrictions are included, 

they are provided as examples of effective controls. See for example Part 2.3.3.2.a. EPA notes that where the permittee will retain a 

natural buffer in compliance with Part 2.1.2.1 of the permit, earth-disturbing activities in those areas are prohibited. 

Comment ID 0120-A2.001.003

Author Name: Batson Jon 

Organization: Anderson County, South Carolina 

Issue Category: 2.3.2.1 

Suggest this section to say: "b. Design requirements for stormwater controls. For all areas dedicated for on-site vehicle maintenance and 

storage areas or areas on-site where equipment and vehicles may be refueled, install effective means to eliminate discharges of 

stormwater from these areas and spill kits must be made available for these areas." 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0121-A2.001.017

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 2.3.2.1 

• Section 2.3.2.l(a) ofthe pennit requires that fueling and maintenance activities be located outside of any buffers. However, fixed 

equipment, such as large cranes and drilling equipment, must be fueled in place. Moreover, other construction equipment such as 

excavators, backhoes, etc. that are not registered for on-road travel and requires movement off-site by a trailer, are commonly fueled by 

a fuel truck that comes to the construction site. To move this equipment outside ofthe buffer for regular fueling or maintenance would be 

impractical and counterproductive, and would likely result in further soil disturbance and would increase the potential for water quality 

impacts. Therefore, the pennit should allow for re-fueling in the buffer on the condition that a representative of the contractor is present 

and a spill kit is immediately accessible. 

Response: See response to comment 0115-A2.001.017. 

Comment ID 0133-A2.001.023

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.3.2.1 

The proposed pennit condition requiring secondary contairunent structures be provided for all fueling and maintenance activities is 

impracticable. Exemptions need to be included for portable fuel distribution where it is necessary to carry fuel to grading equipment 
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located large distances from fixed fuel storage locations. Secondary containment requirements are already addressed under existing 

SPCC regulations. Inserting additional and/or contradictory requirements within the COP creates potential for regulatory confusion and 

would more appropriately be addressed by updating SPCC rules. Additionally, MDT is unsure of the specific equipment intended to be 

subject to this condition. As such, MDT recommends addressing SPCC deficiencies through SPCC rulemaking efforts. If this condition 

must remain, MDT requests thai greater flexibility, such as the use of spill kits as suggested, be provided in the permit, as well as a 

specific listing of the equipment subject to this condition and a threshold (i.e. gallons) above which this condition is triggered. 

Response: See response to comments 0168-A1.001.028 and 0087-A1.001.028. 

2.3.2.1Q SECONDARY CONTAINMENT OR COVER FOR 

FUELING/MAINTENANCE AREAS

Comment ID 0015-A2.001.010

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.3.2.1Q 

Q10 & 11. Secondary containment - Agree. Cover and berms or other containment vessels should be required. Spill kits should be 

required within 100 feet of any inlet that leads directly offsite without any other treatment facility downstream. 

Response: EPA notes the supportive comment. However, EPA notes that it has provided flexibility in the final permit that focuses 

less on the actual control selected, and more on their effectiveness at “eliminating the discharge of spilled or leaked chemicals.” See 

Part 2.3.3.1 and response to comment 0168.A1.001.028. 

Comment ID 0025-A1.001.024

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.3.2.1Q 

Response to EPA's request for comment: Both secondary containments and spill kits are reasonable requirements; covering a fueling 

location is not. On a large construction project, a fueling location may consist of several large (thousands of gallons) above-ground 

storage tanks. Covering such a location would be prohibitively expensive. As an alternative, consider including language regarding the 

prevention of water accumulation in the secondary containment which reduces the available containment volume. 

Response: See response to comment 0168.A1.001.028. 

Comment ID 0030-A2.001.019

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.3.2.1Q 

Section 2.3.2.1, page 26 
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It will be difficult to supply covered fueling areas for smaller projects or linear projects where it is likely that equipment is fueled using 

mobile units. Providing a spill kit should be adequate. Stationary fueling and maintenance areas over a certain size, for projects that are 

anticipated to occur for more than one year, may be appropriate to require a cover. Adding a minimum project size and duration to this 

requirement would allow more flexibility for smaller and shorter duration projects. 

Response: See response to comment 0168.A1.001.028. 

Comment ID 0037-A1.001.026

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.3.2.1Q 

It is not practical to provide secondary containment for fueling and maintenance operations for small equipment such as gas engine 

pumps or generators that might be used on construction sites. Smaller construction sites may not have a staging area but equipment 

fueling or maintenance may need to be conducted on site on occasion. It is not practicable to require secondary containment for these 

types of activities. Having spill kits available on site and/or implementing procedural best management practices (BMPs) for fueling and 

maintenance should be sufficient. The operator should have the option to select effective means of preventing the discharge of spilled or 

leaked chemicals that are appropriate for their jobsite. 

Response: See response to comment 0168.A1.001.028.

Comment ID 0046-A1.001.014

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.3.2.1Q 

Fueling construction vehicles has not been an issue on construction sites. In addition, moving construction equipment to a central fueling 

location can be difficult, and expensive. Existing traffic patterns, safety barriers, right-of-way restrictions, waterways and wetlands 

usually restrict the movement of vehicles on linear construction projects with active traffic. Current requirements such as spill kits are 

sufficient. 

Response: See response to comments 0168.A1.001.028 and 0115-A2.001.017.

Comment ID 0047-A2.001.015

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.3.2.1Q 

Section 2.3,2,1, page 26 

It is not practicable to cover fueling areas for smaller or linear projects where typically the equipment is fueled using mobile units. 

Providing a spill kit should be adequate for these types of projects. Stationary fueling and maintenance areas should use secondary 

containment but it is not practicable to have to cover the area. If a project elects to use a cover as a BMP that is great, but it should not be 

required 
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Response: See response to comment 0168.A1.001.028. 

Comment ID 0053-A2.001.017

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.3.2.1Q 

The Permit does not define the term "secondary containment". 40 CFR 112 § 112.5. 3. ii defines secondary containment as, "secondary 

means of containment for the entire capacity of the largest single container plus additional capacity to contain precipitation." It has been 

represented as 1.5 times the capacity of the largest container Consider defining the term "secondary containment" in the Permit and 

include calculation of volume requirements to be reflected in the SWPPP document. 

Response: EPA included examples of secondary containment in Part 2.3.3.1. See also response to comment 0168.A1.001.028. 

Comment ID 0054-A2.001.008

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: 2.3.2.1Q 

Issue: Any requirement by the general storm water permit for secondary containment or cover for fueling and maintenance where oil is 

involved would be duplicitous and confusing when considering the existing regulations under the Clean Water Act, specifically 40 CFR 

112. The Spill Pollution Control and Countermeasures (SPCC) program lays our specifically what needs to be contained and has a low 

aboveground container threshold (1,320 gallons), which most construction projects would easily exceed. Therefore, it is unnecessary for 

the GSP to pose separate and potentially conflicting requirements. 

Recommended Change: USS recommends that EPA reference by rule the SPCC requirements where applicable. 

Response: See response to comment 0087-A1.001.028. 

Comment ID 0061-A1.001.013

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.3.2.1Q 

This Part would require full secondary containment or similar structures for fueling areas. In LCPs, however, the location of the 

construction effort and equipment -- and thus the fueling activities -- can change by miles from day to day as the project progresses. 

Utility construction in particular utilizes small mobile containers transported to the current equipment location, therefore there are no 

dedicated equipment fueling locations at which structures or berming would be appropriate. Moreover, all fueling occurs consistent with 

applicable SPCC requirements, and the presence of spill cleanup equipment is sufficient to address the kind of relatively small spill that 

might be associated with these activities. 

We recommend that LCPs be excluded from coverage under Part 2.3.2.1.b and, instead, be required to provide protections required by 

applicable SPCC regulations. 
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Response: See response to comments 0168-A1.001.028 and 0087-A1.001.028. 

Comment ID 0062-A1.001.033

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.3.2.1Q 

Brevard County Comment: The site may not allow designation of a fueling area. If fueling takes place at the equipment instead of 

centralized location then secondary containment may not be possible. In general, spill kits are not useful because they can conveniently 

be "forgotten" until an inspector shows up on site.

Response: EPA has provided flexibility in the final permit for the operator to select and implement controls that provide “an effective

means of eliminating the discharge of spilled or leaked chemicals.” See also response to comments 0168-A1.001.028, 

0066-A1.001.028, and 0115-A2.001.017. 

Comment ID 0067-A1.001.018

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.3.2.1Q 

A. As written, the CGP effectively prohibits "wet-hose" refueling of construction equipment on ROWs using mobile refuelers. Fueling 

areas must be flagged and containers provided with secondary containment. This condition would require that all heavy construction 

vehicles transit the ROW numerous times to return to refueling areas rather than having a single fueling vehicle distribute fuel to the 

construction equipment at the work location. This requirement is counterproductive to the intent of the stormwater regulations. Entergy 

requests that EPA remove this requirement where the requirement would result in an unacceptable environmental impact. 

Response: See response to comments 0168-A1.001.028, 0066-A1.001.028, and 0115-A2.001.017. 

Comment ID 0069-A1.001.007

Author Name: Cramer M. 

Organization: 

Issue Category: 2.3.2.1Q 

6. Part 2.3.2.1. of the draft EPA CGP specifies pollution prevention standards for fueling and maintenance of equipment and vehicles 

and the need to provide secondary containment or cover for fueling and maintenance areas on the site. The current language is too broad 

and would seem to apply to all fueling and maintenance activities, no matter how minor. This requirement would be very burdensome to

small projects that don't have the space or resources for a dedicated fueling/maintenance area. Oil storage has been covered by other 

rulemaking. The EPA CGP should simply refer to 40 CFR 112 for compliance requirements and not double-regulate the same fuel 

storage situation. 

Response: See response to comment 0168-A1.001.028. 
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Comment ID 0072-A2.001.008

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 2.3.2.1Q 

MoDOT believes the spec requirements outlined within 40 eFR 112 and Section 311 of the eWA are sufficient to cover any secondary 

containment requirements for construction sites discussed in this Part. Any site not exceeding the 1 ,320-gallon above-ground storage 

capacity requirement should not be required to provide secondary containment as outlined in 40 eFR 112. We do understand that under 

40 eFR 110 we must comply with Part 2.3.1 (Prohibited Discharges) of this eGP, and there are multiple ways to comply with that Part 

beyond just providing secondary containment, as outlined in Part 2.3.2.1.c. 

For a specific example, Part 2.3.2.1 (Pollution Prevention Standards) is currently worded in a manner implying that any fueling or 

maintenance activity on the site would require secondary containment, which is more stringent than the current spec regulations. To give 

a realistic scenario of this regulatory contradiction, think about portable diesel refueling tanks situated on the bed ofa pick-up. Under 

current spec regulations, these tanks are exempt when mounted on the truck. This exemption is important when you consider that in 

linear transportation projects, these truck-mounted portable tanks carry fuel to grading equipment that may be located a mile or more 

from a fixed fuel storage location. It would be impractical to require the pick-up and the dozer to have secondary containment around 

them oul on an active grading location just for refueling the dozer, or to require the dozer to track a mile back to the fuel storage area in 

order to refuel. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0074-A2.001.013

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.3.2.1Q 

Providing secondary containment for fueling tanks and having spill kits at the site is practicable and sufficient. The DEQ requires a spill 

prevention plan (as a part of the SWPPP) be available at the site. This would not be required when mobile vehicle fueling is performed.

Response: See response to comment 0168-A1.001.028. 

Comment ID 0075-A2.001.019

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.3.2.1Q 

In a typical highway linear construction sequence, daily fueling and lubrication is a mobile operation at the pace of dirt hauling, it is not 

easily adaptable to secondary containment nor one with a covered, designated area in miles-long corridor. SPCC requirements are 

currently met with good housekeeping spill containment at these mobile stations and equipment lines at daily shutdowns. Spill kits 

should be sufficient to contain spills. 

Response: See response to comment 0168-A1.001.028.
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Comment ID 0077-A1.001.010

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 2.3.2.1Q 

The installation of a secondary containment for fueling and maintenance areas on small sites may be impracticable since costs and 

disturbances for installation of such a system could be greater than the potential clean up of a spill

Response: See response to comment 0168-A1.001.028. 

Comment ID 0080-A2.001.019

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.3.2.1Q 

Partner Response: Secondary containment is not always a practicable pollution prevention (P2) approach at active construction sites. 

Secondary containment of storage containers is permissible and fueling and maintenance areas should be required to have spill plans and 

spill kits. However, fueling and maintenance areas should not be required to be covered under the CGP or necessitate provision for 

secondary containment. Additionally, active construction sites often require temporary storage of materials. Does EPA intend to require 

that temporary storage areas have secondary containment? If not, is there a time element or duration that applies to the temporary storage 

of materials and the need for any required additional P2 measures. Are the P2 measures the same as for permanent storage areas - 

secondary containment, covering, etc.? The Partners recommend that the EPA further define, in the proposed CGP, what specifically 

secondary storage is and what specific materials require secondary storage. These definitions will help clarify for the regulated 

community the specific CGP requirements. 

Response: See response to comment 0168-A1.001.028.

Comment ID 0085-A2.001.012

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.3.2.1Q 

The improper storage and care of fuel and other hydrocarbons is a frequent cause of accidental discharges and Rockville supports efforts 

to reduce the frequency of these discharges. EPA should not only consider requiring spill kits be kept on site, but also requiring that the 

operator provide training to their employees on spill response. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0091-A2.001.008

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.3.2.1Q 

8. Fact Sheet Item 10. 2.3.2.1.b: Fueling often occurs in the field for heavy equipment. At these locations secondary containment or a 

cover are not practical. Procedures to prohibit unattended fueling should minimize the risk of a spill. Proper spill response procedures 
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will address spills before they are released to stormwater. At sites with SPCC coverage and established first responders the permitee 

should follow the established spill response procedure for the installation or facility. 

Response: See response to comments 0168-A1.001.028 and 0087-A1.001.028. 

Comment ID 0093-A2.001.062

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.3.2.1Q 

AGC maintains that it is reasonable to require contractors to keep spill kits on the jobsite at areas where equipment fueling and/or 

maintenance activities occur. On linear projects, for example, a mobile fuel truck refuels equipment located along the right of way at 

various locations. The truck is equipped with means to clean up any fuel that may get on the ground by use of absorbent pads, a pail in 

which to place contaminated soil, etc. 

AGC finds that it would not be practical for EPA to require secondary containment for fueling and maintenance areas on the site beyond 

what is already required under the Spill Prevention Control and Countermeasures (SPCC) requirements in 40 CFR 112 and Section 311 

of the CWA. Secondary containment will not work for vehicles that move up and down the road and this is recognized by the SPCC rules 

that exempt "motive power" sources. Fueling and maintenance activities do not always occur in centralized areas; larger projects rely on 

mobile refueling/maintenance trucks to service construction vehicle at their working location. The common practice of conducting 

maintenance and fueling at the equipment's current location limits the potential volume of spills at any one location and reduces fuel 

consumption and exhaust emissions by eliminating the need to transfer equipment to centralized locations. The use of spill kits at a site 

is a good practice that is adequate in preventing spills from becoming an issue. 

In addition, AGC maintains that it is not reasonable for EPA to require contractors to "cover" a fueling location. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0096-A1.001.044

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 2.3.2.1Q 

EPA should describe ‘appropriate secondary containment’ in the CGP. It is not clear if cover and berms are considered to be appropriate 

secondary containment or if drain pans and drop cloths must be used in addition to the cover and berms. If a spill kit is made available 

onsite, additional containment should not be necessary. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0097-A1.001.007

Author Name: Knutsson John 

Organization: Daniel Corporation 
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Issue Category: 2.3.2.1Q 

10. Secondary containment should be required 

Response: EPA notes the support for secondary containment. EPA received numerous comments on this issue, and found that 

providing flexibility in terms of what specific controls provide “an effective means of eliminating the discharge of spilled or leaked 

chemicals” was warranted. See response to comment 0168-A1.001.028. 

Comment ID 0103-A3.001.011

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.3.2.1Q 

In Part 2.3.2.1 Fueling and maintenance of equipment or vehicles, EPA provides pollution prevention standards for fueling and 

maintenance of equipment or vehicles. Storm water controls for on-site fueling are required to have secondary containment structures or 

other similar effective means of preventing the discharge of spilled or leaked chemicals from the area. 

TCEQ requests the EPA provide flexibility in the permit. Permittees might use either spill kits or containment. For some sites, requiring 

containment is neither practicable nor feasible. Plus, on some linear construction sites these fueling stations move along the Right of 

Way and containment is not practicable. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0117-A1.001.010

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 2.3.2.1Q 

The installation of a secondary containment for fueling and maintenance areas on small sites may be impracticable since costs and 

disturbances for installation of such a system could be greater than the potential clean up of a spill. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0123-A2.001.009

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.3.2.1Q 

Comment: The proposed language to require secondary containment is reasonable. 

Response: EPA notes the support for secondary containment. EPA received numerous comments on this issue, and found that 

providing flexibility in terms of what specific controls provide “an effective means of eliminating the discharge of spilled or leaked 

chemicals” was warranted. See response to comment 0168-A1.001.028.
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Comment ID 0126-A2.001.011

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.3.2.1Q 

The CSC feels this is not practicable in most cases. Secondary containment for storage containers is achievable. Staging and storage 

areas should be required to have spill kits and spill plans but not covers. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0131-A1.001.012

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.3.2.1Q 

Part 2.3.2.1 (b) is ambiguous and the language needs to be clarified to make sure compliance is feasible and practical. As written, it could 

be interpreted to mean that the entire fueling and maintenance area needs secondary containment or needs to be under cover. Secondary 

containment structures are not defined in the Appendix and have a wide range of meanings including structures that are built out of 

concrete or other materials. The purpose of this section should be to keep oil and other vehicle related fluids from coming in contact with 

the ground. The permit should require the use of drip pans or other appropriately sized secondary containment measures to capture leaks 

or spills from equipment, fueling nozzles and storage tanks. 

A fueling area for a large earthmoving operation using heavy earthmoving equipment could require a half-acre or more. To develop an 

entire half-acre as a secondary containment structure or keep a half acre under cover would not be practical and would be cost 

prohibitive. It may also increase the overall area of land disturbance. 

LBA suggests that the regulation be written so that it is clear that appropriately sized secondary containment measures are needed for 

containing leaks or spills from maintenance and fueling of equipment or vehicles. 

LBA disagrees with the requirement to flag fueling and maintenance areas and has provided comment as a separate item. 

Response: See response to comments 0168-A1.001.028 and 0115-A2.001.017. 

Comment ID 0137-A2.001.013

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 2.3.2.1Q 

We are unaware of circumstances that might prevent the use of secondary containment or cover. Perhaps the amount of space or type 

terrain could be a limiting factor. 

All on‐site fueling and maintenance should also be conducted outside of a certain buffer area of streams, wetlands, and other ecologically 

sensitive area. 

Response: EPA notes that support for locating activities outside of the buffer. EPA agrees with the commenter that where a buffer is 
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provided in compliance with Part 2.1.2.1, these pollutant-generating activities should not occur within those areas. 

Comment ID 0145-A2.001.011

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 2.3.2.1Q 

Secondary containment for fueling and maintenance areas on the construction sites are essential and must not be allowed to be 

discontinued even if spill kits are available. The topography of a construction site is often sufficiently steep that spill kits may not be 

adequate to contain spills. As for covering the fueling area, we see the environmental advantages, but the expense may outweigh the 

advantages. 

Response: EPA appreciates the comment, and notes that although flexibility to use spill kits is provided in the final permit, that the 

operator is required to provide “an effective means of eliminating the discharge of spilled or leaked chemicals.” Therefore, EPA 

believes that the final permit addresses the concerns of the commenter. See also response to comment 0168-A1.001.028. 

Comment ID 0153-A1.001.018

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.3.2.1Q 

1. This statement may want to consider the size of the fueling operations to establish a limit when secondary containment or a cover is 

required. For example, permanent on-site fueling tanks containing more than 500 gallons require secondary containment. In all other 

cases spill prevention kits must be on-site. 

2. For most construction sites it is not feasible to install infrastructure for fueling and maintenance. It would be best to require that fuel be 

trucked to the site in fueling equipment. 

“an effective means of eliminating the discharge of spilled or leaked chemicals” 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0158-A1.001.013

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 2.3.2.1Q 

Section 2.3.2.1.b as proposed would require secondary containment for all staging and storage activities (or other effective means) "to 

eliminate discharges of stormwater from these areas" (emphasis added). The purpose of BMPs is to control and minimize the discharge 

of pollutants in stormwater, not to eliminate the discharge completely. 

The CGP requires placement of covers over all construction materials to prevent contact with rainfall. Section 2.3.2.3.c. Many materials 

used on utility projects (e.g., bricks, blocks, exposed structural steel, utility poles) are designed to be exposed to stormwater and should 

be specifically exempted from this requirement. Also, Section 2.3.2.3.c.iii needs to clarify that it does not require these types of materials 
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(e.g., oil) to be located under a roof (i.e., covered). 

Response: See response to comment 0168-A1.001.028. 

2.3.2.2 WASHING OF EQUIPMENT OR VEHICLES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

2.3.2.3 STAGING AND STORAGE AREAS [REQUEST FOR COMMENT]

Comment ID 0017-A1.001.017

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 2.3.2.3 

15) 2.3.2.3 - This section indicates secondary containment must be installed around staging and storage areas and eliminate stormwater 

discharges from these areas. Having secondary containment around materials such as fuel storage tanks or chemicals is reasonable, but 

requiring secondary containment around areas that do not have the potential to introduce pollutants to a water of the US, such as storage 

areas for pipelines or electrical equipment, is impractical and unnecessary. On a pipeline project there may be miles of pipe which is 

stored "strung" in a linear fashion prior to being installed in the ground. Secondary containment is impossible for this scenario. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0025-A1.001.026

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.3.2.3 

Again, it is neither possible nor necessary to cover all construction materials. This should only be required for those materials that pose 

a threat (i.e. chemicals and fuels). 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0030-A2.001.020

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.3.2.3 

Section 2.3.2.3, page 27 

This raises several questions. Would an earth berm around the area suffice? What size must the berm be? Would the bermed area have to 

be lined? Secondary containment should be used around liquid materials that have the potential to spill (but not necessarily around 

construction materials that have no significant potential to interact with stormwater and act as a pollutant). If you line and berm a staging 

area, it will likely have ponding issues. What about short duration projects where the staging is within the right-of-way or projects with 
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no design staging area? What type of secondary containment would be required? If liquid materials stored in staging areas have 

secondary containment, why would the entire staging area need secondary containment. 

We recommend secondary containment around liquid chemicals and fuels but not around the entire staging or storage area. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0030-A2.001.021

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.3.2.3 

Section 2.3.2.3., page 27 

If the construction material is PVC piping or other type of "inert" construction material, why does it need to be covered? It would be 

better if it was stated that construction materials that have the potential to adversely impact stormwater quality should be covered or have 

secondary containment. 

Response: EPA appreciates the comment, and found it instructive in finalizing the permit. To address this issue, EPA has included 

the following note in Part 2.3.3.3: These requirements do not apply to those products, materials, or wastes that are not a source of 

stormwater contamination or that are designed to be exposed to stormwater.

Comment ID 0040-A1.001.013

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.3.2.3 

The CGP requires placement of covers over all construction materials to prevent contact with rainfall. Section 2.3.2.3.c. Many materials 

used on utility projects (e.g., bricks, blocks, exposed structural steel, utility poles) are designed to be exposed to stormwater and should 

be specifically exempted from this requirement. 

Response: See response to comment 0030-A2.001.021. 

Comment ID 0040-A1.001.014

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 2.3.2.3 

Also, Section 2.3.2.3.c.iii needs to clarify that it does not require these types of materials (e.g., oil) to be located under a roof (i.e., 

covered). 

Response: The final permit provides flexibility to the permittee to choose between cover or a similarly effective means of preventing 

the discharge of pollutants from these areas. See Part 2.3.3.3.c.i. 

Comment ID 0047-A2.001.017

Author Name: Kilty Quinn 
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Organization: Xcel Energy Inc. 

Issue Category: 2.3.2.3 

Section 2.3,2,3, page 27 

If on an Xcel Energy project, wooden poles are staged in a storage yard, why do they need to be covered? These poles are not covered 

when erected in the field. Materials that have the potential to adversely impact water quality should be covered or have secondary 

containment, but not all construction materials should be subject to this requirement. 

Response: See response to comment 0030-A2.001.021. 

Comment ID 0061-A1.001.014

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 2.3.2.3 

As with fueling, staging and storage typically do not occur on-site at LCPs. This is because of the limited size of the jobsite and the value 

of the materials involved. The EHSCP would like for the permit to be as clear as possible that the pollution prevention requirements of 

this Part apply only to on-site staging and storage and do not implicate warehouse or offsite areas at which there is no land disturbance 

related to the project. Stormwater discharged from such off-site activities does not constitute "construction stormwater" as defined at 40 

CFR 122.26(b)(14)(x). Thus, we propose the following alternative language: 

2.3.2.3 Staging and Storage Areas. 

a. Location Restrictions. When located at the construction site. you must locate areas to be used for staging and storage of building 

materials, equipment, or vehicles outside any buffers established consistent with Part 2.1.2.(no changes subsequent) 

b. Design requirements of stormwater controls. For all areas at the construction site which are designated for staging and storage 

activities, you must install secondary containment or similarly effective means to eliminate discharges to stormwater from these 

areas.(no changes subsequent) 

Response: For the location restrictions, see response to comment 0066-A1.001.028. For the design requirements, EPA notes that it 

has adopted language very similar to that recommended by the commenter. See Part 2.3.3.3.c.i. 

Comment ID 0062-A1.001.036

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.3.2.3 

iii. Store diesel fuel, oil, hydraulic fluids, other petroleum products, chemicals, and other materials that could contaminate stormwater in 

covered, water-tight containers, or provide secondary containment. 

• Label all containers that could be susceptible to spillage or leakage to encourage proper handling and facilitate rapid response if spills 

or leaks occur. 

Brevard County Comment: All containers are capable of spillage. Not practical. More labels. Which safety warning should be covered? 
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Opens up huge contractor liability when other labels are covered. 

Response: EPA has removed the referenced labeling requirement in the final permit. 

Comment ID 0076-A1.001.014

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.3.2.3 

3. Target requests that a definition for staging area be provided. 

4. Target requests that the EPA provide a definition of "spill" in the permit instead of several citations referenced in the federal register. 

Response: EPA no longer uses the term “staging areas” in the permit, but instead uses the phrase “Storage, Handling, and Disposal of 

Construction Products, Materials, and Wastes”, which the Agency believes is clearer. EPA includes the following definition of “spill” 

in Appendix A: “for the purpose of this permit, the release of a hazardous or toxic substance from its container or containment.” 

Comment ID 0087-A1.001.025

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.3.2.3 

The CGP also requires the operator to "[p]rotect exposed construction materials with plastic sheeting or temporary roofs to prevent 

contact with rainwater, or provide secondary containment structures designed to eliminate the potential discharge of runoff from these 

areas." Section 2.3.2.3.c. However, some construction materials will become an integral part of the post-construction design, and will 

remain exposed to rainwater both during and after construction (e.g., bricks, blocks, exposed structural steel, utility poles). It makes no 

sense to cover these materials during construction because they are designed to be exposed to stormwater. Instead, EPA should 

specifically exempt such materials from the cover requirement. 

Response: See response to comment 0030-A2.001.021. 

Comment ID 0115-A2.001.018

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 2.3.2.3 

2.3.2.3.a. Flagging designated areas to be used for staging and storage. This may be feasible for larger construction projects that have 

designated staging and storage areas, however it is not feasible for smaller linear construction projects and maintenance projects. 

Typically smaller construction activities along a utility ROW do not have a constant staging and storage area. In these instances, staging 

and storage areas are relocated as crews move from one structure/activity to the next, within a discreet part of the ROW. Therefore, the 

requirement to flag a designated area is not feasible for most utility projects, as the location is constantly changing. National Grid 

recommends that this language be amended to include recognition that it may not be feasible or appropriate for small utility projects. 

Response: See response to comment 0030-A2.001.021. 
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Comment ID 0131-A1.001.014

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.3.2.3 

The second item of concern is the requirement to eliminate stormwater discharges from storage and staging areas. 

Eliminating stormwater discharges from storage and staging areas is unwarranted for several reasons. 1) The prescriptive BMPs that are 

included in the pollution prevention standards set forth in each Part of 2.3 Pollution Prevention Requirements are adequate minimize the 

discharge of pollutants from the site. 2) Eliminating stormwater discharges is not consistent with the effluent limitation guidelines set 

forth in Parts 450.21 (d) (2) and (3) of the C & D rule which require the minimization of the discharge of pollutants from spills and leaks 

and minimizing exposure of building materials to precipitation and stormwater. 3) The NPDES permit and authorization to discharge 

allow the discharge of stormwater from a construction site. 4) The cost to capture, contain, and treat or dispose of stormwater discharges 

from storage and staging areas where on-site disposal and/or treatment (e.g., land application, ATS) is infeasible would be cost 

prohibitive. For example costs can run approximately $30 per 1000 gallons for offsite haul and treat. A 10,000 sq. ft. area in many places 

in the country (assuming 40 inches of runoff) could have as much as 250,000 gallons per year of runoff that could not be discharged. 

Hauling and treating water just from this small area of a site might cost more than $7500 per year. The cost of the requirements set forth 

in Part 2.3.2.3 (b) would outweigh the environmental benefits. 

LBA suggests that the wording of Part 2.3.2.3 (b) be revised to remove the requirement to eliminate discharges of stormwater from 

storage and staging areas and to more clearly define the term secondary containment. 

Response: See response to comments 0030-A2.001.021. Also with respect to the requirement to eliminate discharges, EPA has 

modified the language as follows: “You must minimize the exposure to stormwater of any of the products, materials, or wastes that are 

not a source of stormwater contamination or that are designed to be exposed to stormwater.” 

2.3.2.3Q SECONDARY CONTAINMENT OR COVER FOR STAGING AND 

STORAGE AREAS

Comment ID 0021-A1.001.018

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.3.2.3Q 

7. CGP Section 2.3.2.3 states that for all areas designated for staging you must install secondary containment structures or similarly 

effective means to eliminate discharges of stormwater from these areas. Further guidance needs to be provided on what materials require 

this. As it is stated now, all stored construction materials require secondary containment. What about wood, steel, and numerous other 

material types that have no threat of contamination? Also, materials are often transported daily to various areas of the site for active 

usage. Would these materials that are often times moved hourly need to have secondary containment? Or would these materials just need 

secondary containment for where they are stored for prolonged periods of time? More information needs to be provided here as to what 

types of storage areas and what specific materials need secondary containment. 
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Response: See response to comments 0030.A2.001.021 and 0168-A1.001.028. 

Comment ID 0025-A1.001.025

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 2.3.2.3Q 

Response to EPA's request for comment: No, it is not practical to require either secondary containment or cover for staging and storage 

areas. Staging and storage areas can be extremely large. It is better to require the containment and cover for specific materials (i.e. 

chemicals, fuels) that require it. The requirement for the entire area to be covered or contained is defmitely not feasible, overly 

burdensome, and excessively costly. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0037-A1.001.027

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.3.2.3Q 

It is not practical to install secondary containment structures to eliminate discharges of stormwater from staging and storage sites at all 

construction sites. Secondary containment is practical for the storage five gallon or larger containers of petroleum products, chemicals, 

and other materials that could contaminate stormwater. Although enclosed storage structures (typically construction trailers) are often 

used on construction sites, they are not always practical for the storage of larger construction materials that are temporarily on 

construction sites, e.g. metal or nonmetal pipe, wire, lumber, brick, or stone. Does EPA expect these non‐chemical and typically inert 

construction materials to be protected from contact with rainwater? Constructing a roof over these materials on a small construction 

project such as residential construction and small linear project is impractical because of the amount of space required to do so. Activities 

within the project area are constantly changing at a small construction site so it is impossible to permanently dedicate an area just to a 

staging area. Furthermore, pipe materials for linear projects may be staged a various locations along the right of way. If these materials 

(e.g. metal or nonmetal pipe, wire, lumber, brick, or stone) are required to be protected from contact with rain, covering such materials 

with tarps or other water resistance sheeting would be more practical than secondary containment. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0046-A1.001.016

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 2.3.2.3Q 

Generally, Contractors stage and store equipment and materials in areas that will eventually be impacted by the project. These are 

protected by the same BMPs as the rest of the project. It is not practical to cover these areas. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 
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Comment ID 0047-A2.001.016

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 2.3.2.3Q 

Section 2.3,2,3, page 27 

Secondary containment should be used around liquid materials. It is not practicable or necessarily to install secondary containment 

around construction staging/storage areas with materials that have no significant potential to interact with stormwater. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0053-A2.001.018

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.3.2.3Q 

16. Page 26, 27; Part 2.3.2.3 Staging and storage areas. b. Design requirements for stormwater controls. Secondary containment of the 

entire staging/storage area is not necessary if Parts 2.3.1.2 - 2.3.2.2 have been adhered to. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0055-A1.001.008

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 2.3.2.3Q 

Secondary containment may not be practicable in staging areas, since these generally occur at project perimeters. Additional 

requirements beyond 40 CFR 112 are not necessary under this permit. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0062-A1.001.035

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.3.2.3Q 

Brevard County Comment: Not necessary on all sites: wood, precast concrete structures, clean gravel are examples where cover and 

containment are unnecessary. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0065-A1.001.020

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 
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Issue Category: 2.3.2.3Q 

CCWC supports the requirement in Section 2.3.2.3 to clearly mark and flag the area used for staging and storage activities. However, 

CCWC does not support the requirement to install secondary containment structures or use similar methods to eliminate discharges of 

stormwater from these areas. The size and type material at issue make it infeasible to comply with this requirement. For example, power 

plants and major industrial facilities have storage yards with permanent materials pre-fabricated by vendors that are piled multiple 

stories high and wide. In such situations, the use of plastic sheeting and temporary roofs is not possible. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0066-A1.001.029

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 2.3.2.3Q 

Discussion: The requirement of secondary containment structures for staging and storage areas is unreasonable. For example, often a 

staging area may be more than 5 acres in size It is not possible to "eliminate discharges of stormwater from these areas", only to 

minimize through the use of on-site BMPs. Plastic sheeting or temporary roofs are not practicable in many instances. This should be 

addressed in the project's SPCC plan. 

Suggestion: Add language requiring that proper BMPs, as determined by the project's SPCC plan, be implemented as specified. Require 

that the discharge of pollutants be minimized, not that all stormwater discharges be eliminated. 

Response: Refer to response 0087-A1.001.028. Also with respect to the requirement to eliminate discharges, EPA has modified the 

language as follows: “You must minimize the exposure to stormwater of any of the products, materials, or wastes that are not a source 

of stormwater contamination or that are designed to be exposed to stormwater.” 

Comment ID 0067-A1.001.019

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 2.3.2.3Q 

B. The CGP requires placement of cover over all construction materials to prevent contact with rainfall, not just those construction 

materials that could contribute to pollutant loading of stormwater. Also, secondary containment requirements in staging areas are 

directed at the area, not the container. This mplies that the entire staging/fueling area must be provided with secondary containment, not 

just those materials that could pose a risk of stormwater pollution. Entergy requests that the provisions be rewritten to avoid the problems 

stated. 

Response: See response to comment 0168-A1.001.028, which EPA believes addresses the commenter’s point. 

Comment ID 0069-A1.001.008

Author Name: Cramer M. 

Organization: 

Issue Category: 2.3.2.3Q 

7. Part 2.3.2.3.b. of the draft EPA CGP specifies pollution prevention standards for staging and storage areas and the need for secondary 
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containment or cover for staging and storage areas on the site. Other than oil storage containers, exposed construction materials do not 

pose a significant pollution risk that would necessitate temporary roofs or secondary containment. Oil and other chemical storage should 

be addressed separately from exposed construction materials which are typically inert in nature. Again, this requirement would be very 

burdensome to small projects that don't have the space or resources for a dedicated storage area. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0071-A3.001.031

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 2.3.2.3Q 

•Part 2.3.2.3 Staging and storage areas b & c.i. This section states that secondary containment will be installed to "eliminate discharges 

of stormwater from these areas". CDOT does not feel like this is an attainable requirement for an entire staging or storage area. On large 

sites the staging areas can be very large. This requirement could mean berming the entire area and pumping out any water that collects 

and removing it from site. This would not be attainable. Instead, CDOT would be agreeable to providing containment that allows 

treatment and release of stormwater for the staging and storage areas and then providing secondary containment that does not allow the 

release of stormwater for specific items, such as petroleum products. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0074-A2.001.014

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 2.3.2.3Q 

Providing secondary containment for staging and storage areas is more practical on most sites in use over one week than providing cover 

for these areas. Typical secondary containment measures should be used on these sites. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0075-A2.001.020

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.3.2.3Q 

Not all designated staging sites are used for hydrocarbon storage and disbursing. Many are just temporary building material staging 

locations. A better list of construction materials that need plastic sheeting needs to be created. Not all construction materials need to be 

covered. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. Additionally, EPA has attempted to more clearly 

articulate the types of products, materials, and wastes that are affected by the Part 2.3.3.3 requirements, which the Agency believes 

addresses the commenter’s point. 
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Comment ID 0076-A1.001.013

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 2.3.2.3Q 

1. 2.3.2.3 b-EPA is proposing secondary containment for the entire staging area. Target would like further explanation on this proposal 

as we are concerned that the requirement is duplicative of existing tank requirements for chemical containers. If there is a specific 

concern with a material or activity we would suggest that these be identified instead of entire areas of the facility. 

2. Target believes current secondary containment language is not conducive with large commercial developments and request that the 

EPA consider these types of development in crafting permit language. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0080-A2.001.020

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 2.3.2.3Q 

Partner Response: Please see the Partner's previous response. Secondary containment is not always practical at active construction sites. 

Secondary containment for "permanent" storage containers is permissible. Staging and storage areas should be required to have spill 

plans and spill kits but these areas should not be required under the CGP to be covered or necessitate provisions for secondary 

containment. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0085-A2.001.013

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 2.3.2.3Q 

See comment 10 above. [The improper storage and care of fuel and other hydrocarbons is a frequent cause of accidental discharges and 

Rockville supports efforts to reduce the frequency of these discharges. EPA should not only consider requiring spill kits be kept on site, 

but also requiring that the operator provide training to their employees on spill response.] 

Response: EPA agrees with the commenter, but prefers to leave the choice as to what controls will be implemented to “minimize the 

exposure to stormwater” of these types of pollution sources to the operator. The permit requires also that the SWPPP specify the spill 

prevention and response procedures that will be in effect at the site (Part 7.2.11.1) and training is required of key personnel in these 

procedures (Part 6). 

Comment ID 0086-A1.001.014

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 2.3.2.3Q 
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The CGP requires placement of covers over all construction materi als to prevent contact with rainfall. Section 2.3.2.3.c. Many materials 

used on utility projects (e.g., bricks, blocks, exposed structural steel, utility pol es) are des igned to be exposed to precipitation and 

eventual storm water. The CGP should specifically exempt these materials from the requirement to be covered. Also, Section 2.3.2.3 

.c.iii needs to clarify that it does not require these types of materials (e.g., oil) to be located under a roof (i. e., covered). 

Response: See response to comment 0030-A2.001.021. 

Comment ID 0087-A1.001.024

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 2.3.2.3Q 

The CGP requires staging and storage areas to be equipped with "secondary containment structures or similarly effective means to 

eliminate discharges of stormwater from these areas." Section 2.3.2.3.b. We agree with EPA that staging and storage areas should be 

managed and controlled with BMPs to avoid or minimize stormwater impacts. However, we do not believe that elimination of 

stormwater discharges from these areas is necessary, feasible, or appropriate. In order to completely contain such discharges, the 

operator would need to install some kind of detention or retention facility, even if the stormwater is otherwise clean. This makes no 

sense, is infeasible, and would be a logistical nightmare to try to accomplish. For example, on a pipeline or transmission project, there 

may be many miles of pipe or poles and cable that are stored in a linear fashion or at multiple points along a right-of-way prior to 

installation. Secondary containment is practically impossible in such a scenario. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0088-A1.001.014

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 2.3.2.3Q 

Among the unrealistic requirements are: 

-- The pollution prevention section as proposed would require secondary containment for all staging and storage activities "to eliminate 

discharges of stormwater from these areas." The purpose of BMPs is to control and minimize the discharge of pollutants in stormwater, 

not to eliminate the discharge completely 

Response: See response to comments 0030-A2.001.021. Also with respect to the requirement to eliminate discharges, EPA has 

modified the language as follows: “You must minimize the exposure to stormwater of any of the products, materials, or wastes that are 

not a source of stormwater contamination or that are designed to be exposed to stormwater.” 

Comment ID 0090-A1.001.021

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 2.3.2.3Q 

The requirements of the Draft Permit in Part 2.3.2.3 for storage of all materials, equipment, and vehicles outside of established buffers is 

not practical for linear utility projects working within road right-of-way or utility easements. For example, multiple sections of pipe may 
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be welded or fused together before being installed into the excavated trench-it would be impracticable, cost-prohibitive, and cause 

substantial delays if the construction team were required to move the amalgam of this process, including the pipe, stone, and related 

equipment out of the buffer area at the end of each work day. A sufficient alternative for pollution prevention is the availability of spill 

kits along with the requirement to refuel and store equipment 100 feet from a wetland or water body. EPA should recognize that its 

concern for buffer integrity is not relevant for pipeline linear construction processes. Thus, EPA should either modify the storage 

provisions or exempt all major above-ground installation activities taking place within the buffer area during linear construction 

projects. 

AGA submits that there could be cause for providing secondary containment for fuel-containing equipment but observes that the current 

text of pollution prevention standards under Part 2.3.2.3 applies to companies with equipment that contains potential fuel or other 

contaminants (i.e. new pipe), requiring them to "protect exposed construction materials with plastic sheeting or temporary roofs to 

prevent contact with rainwater, or provide secondary containment structures designed to eliminate the potential discharge of runoff from 

these areas Under these standards, linear construction projects' excavation methods create stockpiles (See Exhibits) for which plastic 

sheeting is an adequate and effective protection- temporary roofs are not feasible for these projects. 

AGA requests that EPA exempt equipment that does not contain potential contaminates from the secondary containment provisions 

because such containment is unnecessary. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0091-A2.001.009

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.3.2.3Q 

9. Fact Sheet Item 11. Part 2.3.2.3.b and 2.3.2.3.c: Providing secondary containment for all construction material is not practical or 

required. A number of inert material such as precast concrete pipe or vaults, fiberglass or HDPE pipes, clean aggregate, or clay roofing 

tiles have very limited potential to contaminate storm water. In many cases, these materials will be staged near the final installation 

location. The term "exposed" should be defined. Plastic wrapping of the construction materials described above would not be practical 

for many items. 2.3.2.3.c.i Containers should be labeled in accordance with OSHA requirements. 2.3.2.3.c.v Spill clean-up procedures 

will vary based on the spilled material and location. Dry clean-up measures may not be appropriate for every spill. Some material may 

require that a liquid stabilizer or neutralizer be applied to the material before the clean-up. 

Response: See response to comment 0030-A2.001.021. 

Comment ID 0093-A2.001.063

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.3.2.3Q 

EPA has requested comment on the practicability of providing secondary containment or cover for staging and storage areas on the site. 

These parts state: "You must also clearly flag off and designate areas to be used for staging and storage of building materials, equipment, 

or vehicles... and conduct such activities only in these areas" and "you must install secondary containment structures or similarly 

effective means to eliminate discharges of stormwater from these areas." 
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AGC opposes this language because it would make it easier for vandals/thieves to target equipment and materials. In addition, it would 

not be possible for contractors to move all of their heavy equipment to one area because some large machines are not mobile and must 

remain in place on the project to perform their intended function. 

In addition, it is not practical to provide cover for all construction equipment and materials. Covering staging areas is not necessary and 

is impractical for large projects which tend to have multiple large staging areas. Also, the vast majority of material stored within staging 

areas is inert material such as lumber, iron, etc that do not represent a storm water pollution threat. Elsewhere, the Draft would address 

the stock piling of any materials that could represent a stormwater pollution threat, such as soil stock piles, which are required to be 

protected with stormwater controls. 

As stated above, EPA should continue to rely on the SPCC requirements in 40 CFR 112 and Section 311 of the CWA and avoid creating 

a duplicate program. 

Response: See response to comments 0066-A1.001.028 and 0115-A2.001.017. 

Comment ID 0097-A1.001.008

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 2.3.2.3Q 

1. These areas should be included in the stormwater controls for the site. Non hazardous materials should be in the control area. 

Hazardous or high polluting materials should have an initial system controlling that storage area ahead of the site controls. 

Response: EPA agrees with the commenter, and believes it has incorporated this basic concept into Part 2.3.3.3.d of the permit. 

Comment ID 0103-A3.001.012

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 2.3.2.3Q 

In Part 2.3.2.3 Staging and storage area, EPA provides pollution prevention standards for staging and storage areas. Storm water controls 

for staging and storage areas are required to have secondary containment structures or other similar effective means of preventing the 

discharge of spilled or leaked chemicals from the area. 

TCEQ provides the same comment as provided to Part 2.3.2.1 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0123-A2.001.010

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 2.3.2.3Q 

Comment: Secondary containment for storage of materials or equipment that do not pose a threat of discharge of chemicals or other 
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contaminants should not be required. 

Response: See response to comments 0168-A1.001.028 and 0030-A2.001.021. 

Comment ID 0126-A2.001.012

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 2.3.2.3Q 

The CSC believes this is not practicable in most cases. Secondary containment for storage containers is achievable. Staging and storage 

areas should be required to have spill kits and spill plans but not covers. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0131-A1.001.013

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 2.3.2.3Q 

b. Design requirements for stormwater controls. For all areas designated for staging and storage activities, you must install secondary 

containment structures or similarly effective means to eliminate discharges of stormwater from these areas. 

The term "secondary containment structures" as it is used in this paragraph is neither clear nor defined. It is unclear whether EPA intends 

the definition to mean a simple appropriately sized and localized secondary containment measure placed directly under a storage tank, 

barrel, or materials, or EPA is suggesting that a containment structure be built for the entire area potentially consisting of a 

non-permeable surface and berm made of concrete covering the entire staging and storage area's surface. 

It is not practical, reasonable, feasible, or cost effective to provide cover or secondary containment for an entire construction site staging 

or storage area. 

The components for "Pollution Prevention Standards" in Part 2.3.2.3 (c) are well written to minimize the exposure of potential pollutants 

to stormwater. They are effective measures that will prevent the materials from coming in contact with stormwater and would be just as 

effective as building some type of containment structure or cover over the entire area. 

Response: See response to comment 0168-A1.001.028. 

Comment ID 0133-A2.001.024

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.3.2.3Q 

Permanent staging areas are not typical for long, linear transportation projects. Also, right-of-way constraints can make location of the 

staging areas outside of buffer areas infeasible. As such, MDT requests greater flexibility be provided to account for linear constraints.

Response: See response to comments 0115-A2.001.017 and 0066-A1.001.028. 
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Comment ID 0153-A1.001.019

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 2.3.2.3Q 

1. This requirement is not practicable and too severe for staging and storage areas for building materials, equipment, or vehicles. Most of 

the construction materials that actually require storage or cover are listed in 2.3.2.3.c. 

2. This section should say:" b. Design requirements for stormwater controls. For all areas designated for staging and storage activities, 

you must install effective means to eliminate discharges of stormwater from these areas. "

Response: See response to comment 0168-A1.001.028. EPA notes that it has adopted language that is compatible with the 

commenter’s recommended language. See Part 2.3.3.3. 

Comment ID 0171-A1.001.013

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 2.3.2.3Q 

The CGP requires placement of covers over all construction materials to prevent contact with rainfall. Many materials used on utility 

projects such as bricks, blocks, exposed structural steel, utility poles are designed to be exposed to stormwater and should be specifically 

exempted from this requirement. 

Response: See response to comment 0030-A2.001.021. 

2.3.2.4 WASHING OF APPLICATORS AND CONTAINERS 

Comment ID 0014-A1.001.001

Author Name: Jeffrey Richard 

Organization: CWS Colorado, LLC 

Issue Category: 2.3.2.4 

Part 2.3.2.4 Washing of applications and containers used for paint, concrete, or other materials. 

Item b section i. reads as follows: Design requirements for stormwater controls. You must: Direct all washwater into a leak proof 

container or pit: 

For clarification we would recommend: Direct all washwater into a leak-proof container or leak-proof pit. 

This added verbiage will reinforce and clarify the requirements to ensure structural integrity for washout pits. The original draft does not 

specifically call for a leak-proof pit. Too many construction sites have cut comers by digging a pit for washwater, but fail to properly line 

the pit to prevent leakage into the groundwater. This change would also address the issue of leaking liners, which is a common 
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occurrence. 

Response: EPA has incorporated the commenter’s recommended modification to the final permit. See Part 2.3.3.4.a. 

Comment ID 0014-A1.001.002

Author Name: Jeffrey Richard 

Organization: CWS Colorado, LLC 

Issue Category: 2.3.2.4 

Part 2.3.2.4, section C Pollution Prevention Standards. 

Items i. and ii. address liquid wastes, and item iii. addresses hardened concrete waste, but there is no mention of the management of the 

toxic washwater generated by the washing ofthe ready-mix trucks and pump trucks. Although items ii. and iii. Refer to Part 2.3.2.5 for 

guidance, 2.3.2.5 does not address this issue. As wastewater from washout of concrete is highly toxic, and is specifically identified as a 

Prohibited Discharge, in Part 2.3.1.1, it should be managed properly. Therefore, we recommend the following language be added as 

2.3.2.5, iv; 

All concrete washout water must be disposed of in an approved treatment facility. 

This would insure that the toxic concrete washwater is properly managed and not allowed to contaminate local groundwater or surface 

streams. This would also allow state or local agencies to determine what is "approved". Lacking proper washwater disposal regulations, 

many contractors have found it easier to just make it go away instead of treating it as a toxic waste. 

Response: EPA disagrees that the proposed language is necessary. The final permit requires that the container or pit used for this 

purpose be “leak-proof” and that it be designed so that “no overflows can occur due to inadequate sizing or precipitation.” Therefore, 

from a pollutant discharge, EPA believes that these requirements are stringent and and guard against the type of risks the commenter 

raises in the comment. 

Comment ID 0030-A2.001.022

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 2.3.2.4 

Section 2.3.2.4.d, page 28 

Half-full of a pre-fabricated container is not very full. Special considerations should be listed that the washout area can be filled if 

scheduled to be picked up after it is more than half full (for example, bridge pours or roadway pours in an arid climate, where the wash 

out can be filled up and picked up in one day). 

Response: The proposed requirement was removed from the permit. 

Comment ID 0037-A1.001.028

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 2.3.2.4 
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Part 2.3.2.4.b requires that all washwater is directed "into a leak‐proof container or pit." Do the pits used to collect washwater need to be 

‘leakproof'? If so, do they need to be leakproof regardless of the depth to groundwater? It does not make sense to require the operator to

line these pits if the depth to groundwater is great enough that the potential for groundwater contamination is negligible. The permit 

could specify that best management practices must be implemented to protect groundwater, such as requiring that soils have adequate 

buffering capacity, washout sites should be used for less than a year, the washout site should not be located in an area where shallow 

ground water may be present such as near natural drainages, springs, or wetlands. 

Response: EPA appreciates the commenter’s points about the importance of focusing on risk to groundwater contamination. 

However, EPA believes it is important to manage these wastes at the source so that discharges are from these areas are eliminated 

consistent with 40 CFR 450.21(e)(2). 

Comment ID 0062-A1.001.037

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 2.3.2.4 

b. Design requirements for stormwater controls. You must: i. Direct all washwater into a leak-proof container or pit; and ii. Design 

washwater containers or pits so that no overflows can occur during rainfall or after snowmelt. 

Brevard County Comment: How big a storm...1000 yr storm is too broad, even 25 year- 24 hour event may be excessive. Not possible on 

many sites, small site penalty. 

Response: EPA does not define the size storm that the container or pit needs to be designed around, nor does it believe it is necessary 

to do so. The operator will need to use their best professional judgment to determine how best to design these containers or pits so that 

overflows will not occur. 

Comment ID 0064-A1.001.023

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.3.2.4 

Section 2.3.2.4.b.ii, page 28 - "Design wash water containers or pits so that no overflows can occur during rainfall or after snowmelt." 

•Is this requirement feasible? What size storm event do wash water containers need to be designed to handle? 

Response: EPA does not define the size storm that the container or pit needs to be designed around, nor does it believe it is necessary

to do so. The operator will need to use their best professional judgment to determine how best to design these containers or pits so that 

overflows will not occur. 

Comment ID 0073-A1.001.001

Author Name: Mullings Gary 

Organization: National Ready Mixed Concrete Association (NRMCA) 

Issue Category: 2.3.2.4 

NRMC supports and is committed to smart practices for keeping our nation's waterways and their tributaries clean and healthy. In 
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reference to the provisions "Prohibited Dischargers: The following dischargers from regulated construction istes are prohibited: 1. 

Wastewater from washout of concrete, unless managed by an appropriate control..." contained in the Environmental Protection Agency's 

(EPA) proposed Draft National Pollution Elimination System (NPDES) General Permit for Stormwater Dischargers from Construction 

Activities, NRMCA has current recommended best practices in place for helping to meet the rule's criteria. 

Prior to the draft rule's publication, NRMCA worked in cooperation with the National Association of Home Builders (NAHB) to draft a 

set of recommended best practices and guidelines for managing wasterwater from washout of concrete chutes on residential construction 

sites. This fact sheet which details the appropriate handling of concrete washout is title "Environmental Best Practice Guide for Ready 

Mix Concrete Chute-Rinse-Off at Residential Building Sites" and can be found as part of these comments under Appendix A. [Please see 

Appendix A in the orgional comment letter. Docket ID EPA-HQ-2010-0782-A1-0073-A1.]. 

As for recommended best practices for managing wastewater from concrete washout on commercial construction sites, NRMCA as well, 

although unilaterally, has guidelines in place. The guidelines, which actually cover more than just commercial construction, are 

contained in chapter 6 of the NRMCA publication titled "Environmental Management in the Ready Mixed Concrete Industry." The 

guidelines can also be found as part of these comments under Appendix B [Please see Appendix B in the orgional comment letter. 

Docket ID EPA-HQ-2010-0782-A1-0073-A1.]. 

Response: EPA notes the reference to these materials. 

Comment ID 0091-A2.001.021

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 2.3.2.4 

21. Part 2.3.2.4.d: Weekly inspections should only be required when washout structures are in use. 

Response: See response to comment 0064-A1.001.022. 

Comment ID 0130-A2.001.019

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 2.3.2.4 

18. DESIGN REQUIREMENTS FOR WASHWATER CONTROLS. Part 2.3.2.4b.ii. No specific criterion was included. We 

recommend this, like other design criteria, is a 2-year, 24 hour design. 

Response: EPA does not define the size storm that the container or pit needs to be designed around, nor does it believe it is necessary 

to do so. The operator will need to use their best professional judgment to determine how best to design these containers or pits so that 

overflows will not occur. 

2.3.2.5 STORAGE, HANDLING, AND DISPOSAL OF CONSTRUCTION 

WASTE
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Comment ID 0021-A1.001.019

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 2.3.2.5 

8. CGP Section 2.3.2.5.b.2 states that all waste containers need to have lids or covers. On most projects and all LEED Certified projects 

there are recyclable content dumpsters used to dispose of woods, plastics, metals, etc. that have no threat of contamination. Additional 

verbiage needs to be included here to exclude these types of dumpsters from this requirement. This will make this requirement easier to 

enforce. 

Response: The requirement to provide lids for these containers has been removed. The permit provides flexibility to the operator to 

determine how best to contain the waste. 

Comment ID 0053-A2.001.019

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.3.2.5 

Consider revising the language to read: "You must stabilize portable toilets to prevent being tipped or knocked over." 

The term "will not be" indicates zero potential and is unachievable. 

Response: EPA has retained the proposed language. EPA believes that it is unlikely that an operator would have a problem meeting 

this requirement. If the portable toilet is tipped over on purpose or by accident, this would not constitute a violation, as long as it was 

immediately put back in place upon finding it this way. 

Comment ID 0053-A2.001.020 

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.3.2.5 

c. Pollution prevention standards.i.1 The Permit states: "On a daily basis, ..." Consider revising the language to read: "On a daily basis, 

when working or during operational days ..." 

Many calendar days (i.e. weekends, holidays) will not have any personnel on site and will not be able to clean up and dispose of waste, 

existent or not. Therefore, non-compliance with the Permit has occurred. 

Response: The final permit language has been modified in a way that addresses the commenter’s concerns. See Part 2.3.3.3.e.i. 

Comment ID 0053-A2.001.021 

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.3.2.5 

19. Page 29; Part 2.3.2.5 Storage, handling, and disposal of construction waste. c. Pollution prevention standards.ii.1 The Permit again 
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states: "On a daily basis, ..." See language from comment 17 above. 

Response: The final permit language has been modified in a way that addresses the commenter’s concerns. See Part 2.3.3.3.e.i. 

Comment ID 0053-A2.001.022 

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 2.3.2.5 

d. Maintenance requirements. The Permit states: "At least once per week, you must inspect all containers or other devices used for the 

collection, storage, detention, and/or disposal of wastes for leaks or overflows." 

This language indicates a site inspection every 7 days and is in conflict with the 14 day inspection indicated in Section 5, Part 5.1.2 of the 

Permit (page 45). 

Consider revising this language to correlate to Inspection frequency required by the Permittee in Part 5.1.2 and Part 5.1.4.3 of the Permit.

Response: See response to comment 0064-A1.001.022.

Comment ID 0062-A1.001.038 

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office 

Issue Category: 2.3.2.5 

(3) Store wastes that cannot be disposed of in a container under cover or indoors. 

Brevard County Comment: Not practical for large scale demolition and land clearing. "Put those bushes and roots in the dumpster"? 

Response: EPA removed the proposed requirement for lids on waste containers. 

Comment ID 0064-A1.001.024 

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 2.3.2.5 

Section 2.3.2.5.d, page 29 - Full "Maintenance requirements" section 

•This weekly requirement seems to undermine the 14-day inspection option as presented later in the proposed permit. 

Response: EPA has removed this requirement. See response to comment 0064-A1.001.022. 

Comment ID 0093-A2.001.064 

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 
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Issue Category: 2.3.2.5 

EPA should remove all of the "On a daily basis ..." references in this Part. AGC recommends that EPA revise the language to say 

"During work days ... ." 

Response: The final permit language has been modified in a way that addresses the commenter’s concerns. See Part 2.3.3.3.e.i. 

Comment ID 0093-A2.001.065 

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 2.3.2.5 

The Draft states: "At least once per week, you must inspect all containers or other devices used for the collection, storage, detention, 

and/or disposal of wastes for leaks or overflows." This language indicates a site inspection every seven (7) days and is in conflict with the 

14-day inspection indicated in Part 5.1.2 of the Draft (at page 45). Consider revising this language to correlate to the inspection 

frequency required by the permittee in Part 5.1.2 and Part 5.1.4.3 of the Draft. 

Response: EPA has removed this requirement. See response to comment 0064-A1.001.022. 

Comment ID 0098-A1.001.013 

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.3.2.5 

We are unsure that "roofing tar" is appropriately included in the list of materials requiring special handling and disposal under this Part. 

It is our understanding that roofing tar is a solid at room temperature and should not require special handling. 

On the other hand, there may be other liquid coatings used in modern roofing systems that are immediately mobilizable by stormwater 

and that should be included in this list. 

Also, we are unclear whether debris from roofing demolition is included under this section. Those materials typically are stable by the 

time they are removed, so it would be our position that they should not be regulated under this Part. 

Response: EPA has removed “roofing tar” from the list of examples included in Part 2.3.3.3.d. Roofing demolition debris should be 

treated as construction waste under Part 2.3.3.3.e.

Comment ID 0161-A2.001.001 

Author Name: Hitchcock Reed 

Organization: Asphalt Roofing Manufacturers Association (ARMA) 

Issue Category: 2.3.2.5 

ARMA would like to address a concern we have with the Proposed Construction General Permit. Roofing tar, which ARMA is assuming 

EPA is referring to asphalt, should not be included in the list of materials requiring special handling and disposal as indicated in Part 

2.3.2.5.b.ii - Storage Handling and Disposal of Construction Waste. Tar is normally a term used for materials that contain coal tar which 

is very different than asphalt. 
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Asphalt is a solid at room temperature and is often used as a sealant for water storage lagoons, etc. It is also not a DOT hazardous 

material unless stored or heated and is not water soluble. Asphalt is a petroleum materials product but has nothing in common with 

paints, solvents, acids, pesticides, or other materials referenced in the permit. Therefore, no special handling should be required and it 

certainly should not be regulated as a hazardous material and/or referred to as a hazardous or toxic waste. 

Response: See response to comment 0098-A1.001.013.

2.3.3 EMERGENCY SPILL NOTIFICATION 

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

2.3.4 FERTILIZER DISCHARGE RESTRICTIONS 

Comment ID 0015-A2.001.032 

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 2.3.4 

2.3.4.3 "Heavy rain" is too vague. Should list a number that refers to the weather conditions listed on the product. Some horticultural 

chemicals need multiple days of dry weather to function properly. 

Response: EPA does not believe it is necessary to define “heavy rain” further. This type of detail is difficult to define with any 

precision, and is best left to what is considered best industry practice in applying fertilizer. EPA’s interest is in not having fertilizers 

applied during situations that are guaranteed to result in a discharge. 

Comment ID 0062-A1.001.039 

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office 

Issue Category: 2.3.4 

2.3.4.2 Apply at the appropriate time of year based on your location, and preferably timed to coincide as closely as possible to the period 

of maximum vegetation uptake and growth; 

Brevard County Comment: Contradiction in some areas

Response: EPA appreciates the comment. The proposed language has been retained. EPA notes that some discretion on the 

applicator’s part is given to be able to decide what is the best practice if there are conflicts. 

Comment ID 0062-A1.001.040 

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office 

Issue Category: 2.3.4 

2.3.4.3 Avoid applying before heavy rains; 
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Brevard County Comment: define "heavy rains", contradiction in some area. 

Response: Response: EPA does not believe it is necessary to define “heavy rain” further. This type of detail is difficult to define with 

any precision, and is best left to what is considered best industry practice in applying fertilizer. EPA’s interest is in not having fertilizers 

applied during situations that are guaranteed to result in a discharge. 

Comment ID 0062-A1.001.041 

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office 

Issue Category: 2.3.4 

2.3.4.6 Never apply to stormwater conveyance channels; and 

Brevard County Comment: How will you vegetate conveyance channels? Not practical for areas where base flow is minimal and banks 

need to be vegetated. 

Response: This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, 

which the Agency believes addresses the commenter’s concern. 

Comment ID 0075-A2.001.021 

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 2.3.4 

Why limit application of Nitrogen and Phosphorus fertilizer on steep slopes (e.g., as defined by EPA as 6:1's (H:V) and steeper) which 

would eliminate nutrient amendment on most highway fore-slopes and back-slopes? These are very disturbed areas most likely to be 

nutrient deficient and limiting to vegetative cover regrowth. Similarly, why prohibit fertilizing storm water channels where rapid plant 

rooting is necessary to develop critical shear stress resistance? Fertilizer amendment is sitespecific per soil types and should not be 

treated as a "one-size-fits-all" fertilizer recommendation. 

Response: EPA is providing best practice requirements as part of this permit so that the risk of discharge during storm events of these

fertilizers is minimized. This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance 

channel, which the Agency believes addresses the commenter’s concern. 

Comment ID 0098-A1.001.014 

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 2.3.4 

The statement that permittees should "never" apply fertilizer to a stormwater conveyance channel seems to be problematic. While care 

should be taken in such applications it is difficult to understand how such channels can be vegetated as the Agency and industry intend if 

fertilizer cannot be used to facilitate early growth. We suggest that this section be revised to allow fertilizer use as necessary for the 

establishment and maintenance of vegetation to sustain adequate cover of underlying soils. If added controls are deemed necessary the 

permit could include a qualification that care should be taken to avoid mobilization of fertilizer in stormwater flows. 
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Response: This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, 

which the Agency believes addresses the commenter’s concern. 

Comment ID 0133-A2.001.025 

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 2.3.4 

The proposed permit condition prohibits the application of fertilizer to stormwater conveyance channels. The stormwater conveyance 

channels for most MDT projects are roadside swales that are re-vegetated in order to function as long-term stormwater BMPs. It is 

routine practice to apply fertilizer to roadside swales and ditches when seeding to help establish vegetation. This restriction should be 

eliminated as it would not allow MDT to effectively stabilize projects sites, thereby adversely affecting water quality. 

Response: This language has been clarified so that the restriction applies when there is “flowing water” in the conveyance channel, 

which the Agency believes addresses the commenter’s concern. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 3, 3.1, 3.1.1, 3.1.2, 3.1.2.1, 3.1.2.2, 3.1.2.3, 3.2, 3.3, 3.3.1, 3.3.1.1, 

3.3.1.1Q, 3.3.1.2, 3.3.1.3, 3.3.1.4, 3.3.2, 3.3.2Q, 3.3.3, 3.3.3Q, 3.3.4, 3.3.5, 3.3.6, 

3.3.7, 3.3.8, 3.3.8Q, 3.3.9, 3.3.9Q

 
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3 NUMERIC TURBIDITY LIMIT AND SAMPLING REQUIREMENTS

Comment ID 0072-A2.001.009

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 3 

MoDOT is concerned that the proposed numeric turbidity limit and the associated sampling requirements will lead to a significant, 

additional resource expenditure for transportation projects, which in many cases may be beyond what would be considered reasonable. 

Increased project cost inevitably means less projects being constructed to address the transportation needs of our customers, and in turn, 

less employment opportunity for workers within the construction industry. 

Response 

Refer to Response 3.1. 

Comment ID 0130-A2.001.037

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 3 

The second paragraph under Part 3 references an exception in Part 3.1.3.2. There is no such part in the proposed permit. It appears the 

intent may have been to reference Part 3.1.2.3? 

Response 

Refer to Response 3.1. 

3.1 APPLICABILITY OF NUMERIC TURBIDITY LIMIT

Comment ID 0045-A1.001.006

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 3.1 

3.1 - Pertaining to nationwide turbidity limits yet to be designated, this section provides a timetable and acreage limits within which 

designated construction activities are to be brought under numeric limits. The sequential rule proposes that construction activities on less 

than 10 acres would not trigger turbidity limits. While this is generally acceptable, in highly urban settings where this regulation will 

apply (e.g. the District of Columbia) that acreage limitation is too large. In these places most construction activity occurs on considerably 

smaller sites; nevertheless, there can be a relatively significant addition of sediment and other pollutants to stressed urban streams. We 

therefore recommend that in highly urban settings, the acreage cutoffs/applicability by timeframe be set at ten acres and five acres, 

respectively (versus 20 acres and 10 acres). 

Response 
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Refer to Response 3.1. 

3.1.1 TYPES OF CONSTRUCTION ACTIVITIES WHOSE DISCHARGES 

ARE COVERED BY THE NUMERIC TURBIDITY LIMIT

Comment ID 0052-A1.001.004

Author Name: Hamilton Kristopher 

Organization: E.S. Wagner Company 

Issue Category: 3.1.1 

EPA should not set any requirements for BMPs that are upstream or tributary to a discharge that would be susceptible to a numerical 

turbidity limit. If a particular discharge on a site would meet the criteria for having to meet a numerical turbidity limit then there should 

be no additional requirements or standards for any area that is tributary to that discharge. Otherwise, for example, a permittee may be 

found in violation for not enough check dams installed even though the final discharge to the receiving stream has met all numerical 

turbidity limits. A permittee should only be held to one set of requirements SUbjective or objective, but not both. 

-- Recommendation - Remove any requirements or standards for areas that are tributary to a discharge that is controlled by a numerical 

turbidity limit. 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.025

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.1.1 

Section 3.1.1, page 31 - Full "20-acre land disturbances" paragraph 

•Does this include a gravel source being used for just this project? 

Response 

Refer to Response 3.1. 

Comment ID 0066-A1.001.003

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.1.1 

TxDOT disagrees with the overall methodology used to calculate typical disturbed acreages for transportation projects. If this permit 
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takes effect with the recommended changes, a project site in acres must ultimately be limited to 10 acres or less disturbed at any given 

time, in order to be exempt from implementing and complying with the proposed numeric Effluent Limitation Guidelines (ELG) that 

will become part of this permit (20 acres in the interim). At this time, the updated nephelometric turbidity unit (NTU) limit has not been 

released for further comment. We are very concerned that it will not be physically possible to comply with the numeric limit in a large 

number of cases, which would necessitate limiting disturbance to 10 acres or less. It is our determination that requiring such a low 

acreage limit will cause unknown and difficult to anticipate changes in how transportation projects are built. 

We believe that a transportation project's acreage limit should be based on an individual state's numbers and not averaged across all 

states. For example, Texas is a physically larger state, where our cities and roadways interconnecting them are inherently longer 

distances which require more acres to be disturbed on a regular basis for maintenance or construction projects Comparing our averages 

to another state, which may have many fewer miles of roadway to maintain and less right-of-way (ROW) to obtain for new roads, is not 

an equitable assumption If plotted out on a graph, it would be helpful to see how each individual state would appear on this graph taken 

from the EPA publication, Economic Analysis of the Final Construction & Development ELGs(2009) 

http://water.epa.gov/scitech/wastetech/guide/construction/upload/2009_12_8_guide_construction_files_economic.pdf 

Figure 7-2: Projection of Aggregate Construction Value, 2009 - 2014. [Please see page 3 of the original letter (Docket ID 0066-A1.001)].

Another assumption stated in how this acreage limit was determined, "EPA assumed that the combined width of the road surface, 

median, and buffers is 4 lanes and 88 feet, and therefore, one mile of new highway would represent 10.67 acres in disturbed area." 

TxDOT ROWs are more typically about 100 feet, which alone would indicate that this acreage assumption is potentially flawed and not 

a good fit for projects in Texas. As an example, a simple highway widening of 10 feet total, versus an all new location where everything 

will be disturbed from ROW line to ROW line. In this case, one has relatively minor environmental impacts, while the other has greater 

impacts, yet both would be required to follow the same ELGs and meet the soon to be proposed NTU. 

Therefore, we believe that the trigger limit for requiring ELG sampling requirements should be based not on the methods prescribed in 

the original document used (referenced above) to set the proposed acreage limit. The acreage limit should be based on a more common 

sense approach, which should potentially include looking at the variance between states for potentially setting this limit based on 

individual states, as well as the type of work being performed. 

Response 

Refer to Response 3.1. 

Comment ID 0066-A1.001.030

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.1.1 

Discussion: On pg. 31, the explanation of how the NTU limit applies to projects does not seem equitable to large linear transportation 

projects. "... and will disturb 20 (or 10 later on) acres of land at one time, including non-contiguous land disturbances that take place at 

the same time and are part of a larger common plan of development." This will essentially force many state DOTs to completely change 

how projects are planned and constructed, which will add an extraordinary burden and cost to many, if not all, linear type transportation 

projects This requirement does not appear to take into consideration linear transportation projects and the unique challenges they face.
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Suggestion: Consider providing an exemption for state linear transportation projects. Another way would be to modify the requirement 

by increasing the acreage trigger, or basing it on acreage disturbed within a common drainage location. (See also introductory comments 

on page one of this document.) 

Response 

Refer to Response 3.1. 

Comment ID 0072-A2.001.010

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 3.1.1 

The first concern is the proposed, phased acreage thresholds for complying with the turbidity limit, from 20 acres on August 1, 20 11 , 

down to 10 acres on February 2, 2014. MoDOT believes the proposed I O-acre limit is too low and should either be left at 20 acres or, if 

transitioning to the lO-acre limit is justifiable, then it should be stated that the 10 acres must be contiguous and/or must all drain to one 

common outfall location or receiving stream. This would capture larger grading projects, but allow exception for some of the smaller 

jobs which may disturb a total of 10 or more acres, but in several smaller areas of disturbance scattered throughout a corridor. The way 

this Part currently reads, many, ifnot most linear transportation projects would be subject to the numeric turbidity limit requirements, 

which equates to more time and money being spent each of these projects. 

Response 

Refer to Response 3.1. 

Comment ID 0091-A2.001.023

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 3.1.1 

23. Part 3.1.1: In the situations below would the land disturbance area be computed for each single project based "common plan" then 

compared to the 20 acre or 10 acre threshold to determine sampling requirements? 

EPA FAQ GUIDANCE (2008 Construction general Permit): "What if the "Common Plan of Development or Sale" Actually Consists of 

Non-Contiguous Separate Projects? 

There are several situations where discrete projects that could conceivably be considered part of a larger "common plan" can actually be

treated as separate projects for the purposes of permitting: 

A. A public body (e.g., a municipality, State, Tribe, or Federal Agency) need not consider all their construction projects within their 

entire jurisdiction to be part of an overall "common plan." For example, construction of roads or buildings in different parts of a state, 

city, military base, university campus, etc. can be considered as separate "common plans." Only the interconnected parts of single project 

would be considered to be a "common plan" (e.g., a building and its associated parking lot and driveways, airport runway and associated 

taxiways, a building complex, etc.)" 

Application of the area threshold to each separate project "common plan" is recommended. This approach is recommended for the new 
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permit. If the surface area threshold is calculated for the entire installation, significant costs would be added to all construction projects. 

Construction costs would be based on including the sampling requirement in every project. At the start of a construction project, there is 

no way for a contractor to know if activities on a nearby project will exceed the surface area threshold. On a large installation, 

geographically separate projects may discharge to significantly different receiving waters through different drainage basins. 

Response 

Refer to Response 3.1. 

Comment ID 0130-A2.001.038

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 3.1.1 

The very last sentence of Part 3.1.1 references a Part 3.1 .3 of the permit. There is no such part in the proposed permit. It appears the 

intent may have been to reference Part 3.1.1 and 3.1.27 

Response 

Refer to Response 3.1. 

3.1.2 EXCEPTIONS TO THE APPLICATION OF THE NUMERIC 

TURBIDITY LIMIT

Comment ID 0015-A2.001.033

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.1.2 

3.1.2.2 How will sites prove they are under the disturbed area threshold? Is reporting required? 

Response 

Refer to Response 3.1. 

Comment ID 0025-A1.001.027

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.1.2 

For DOTs projects can occur quite literally, in the middle of nowhere. If the on-site rain gauge is damaged or stolen, there may not be 

another data point within 5 miles. Suggest requiring the use of the closest reasonably attainable data. 

Response 

Refer to Response 3.1. 
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Comment ID 0066-A1.001.031

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.1.2 

Suggestion: Add an exemption for linear state DOT projects, similar to the one provided for the construction of interstate natural gas 

pipelines. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.068

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.1.2 

AGC maintains that EPA should also exempt from the turbidity limit any project that does not have the potential to discharge to waters 

of the United States. This could include flat (less than 2% grade) or isolated sites with no storm drain inlets in the immediate vicinity. It 

should also include sites that are engineered to retain and infiltrate all of their stormwater onsite. On such sites, the stormwater either 

evaporates or is absorbed into the ground, and no discharge of stormwater into waters of the U.S. occurs. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.074

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.1.2 

In addition, if a construction site operator is using all low impact development (LID) stormwater controls to infiltrate stormwater flow 

into the ground, the contractor should not have to sample, except where overflow pipes are part of the LID device. For example, 

Maryland's current state stormwater rule mandates only LID devices for stormwater management, unless it can be shown that such 

devices cannot be utilized at a particular building site. 

Response 

Refer to Response 3.1. 

Comment ID 0130-A2.001.021

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 3.1.2 

Part 3.1.2.3 exempts interstate gas pipelines from compliance. We respectfully request the same exemption for transportation projects 

Response 
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Refer to Response 3.1. 

3.1.2.1 STORMS LARGER THAN THE LOCAL 2-YEAR, 24-HOUR STORM

Comment ID 0017-A1.001.018

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 3.1.2.1 

16) 3.1.2.1 - The exemption from numerical turbidity limits in this section hinges on the definition of a 2 year, 24‐hour storm event 

occurring "in that day", or within a period of midnight to midnight. This is in direct conflict with the definition of a "24‐hour" event. This 

section should be rewritten to exempt the discharge from a 2 year, 24‐hour event, regardless of when the event started or stopped. 

Response 

Refer to Response 3.1. 

Comment ID 0034-A1.001.007

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 3.1.2.1 

7. Exceptions to Turbidity Limit for Storms Larger than the Local 2-year 24-hour Storm 

Proposed Requirement/Section Addressed: CGP Section 3.1.2.1, Exceptions to turbidity limit for storms larger than the local 2-year 

24-hour storm. 

Comment: The exception for the turbidity limit for storms larger than the 2-year 24-hr storm only applies on the day that design storm is 

exceeded. The fact sheet (page 78) clarifies that the turbidity limit applies on subsequent days if the rainfall depth is less than the design 

storm. 

Discussion: When the local 2-year 24-hour storm is exceeded, the turbidity limit does not apply because the BMPs are not designed to 

handle that storm. Since these larger storms can damage control measures, it is unreasonable to require that the turbidity limit be met on 

subsequent days that the design storm is exceeded. The turbidity limit should only apply after the operator has had a reasonable amount 

of time to inspect and implement corrective actions that may be necessitated by storms larger than what the control measures are 

designed for. 

Recommendation: Recommend that EPA clarify in the fact sheet and in the permit that the exception to the turbidity limit would 

continue to apply until two days after the conclusion of a storm event that exceeds the design storm. 

Response 

Refer to Response 3.1. 
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Comment ID 0038-A1.001.014

Author Name: Minervini W. 

Organization: 

Issue Category: 3.1.2.1 

Allowing permittees to use rainfall data from offsite rain gauges (or similar devices) up to five miles distant from the permittee's site 

seems questionable. USEPA's Proposed Construction General Permit (CGP) - Fact Sheet did not provide any justification for the five 

mile limit. Five miles seems too long a distance, especially for local thunderstorms. 

USEPA should evaluate technical literature on rain gauge density and consider reducing the five mile value, but also allow permittees to 

use radar estimates of rainfall at the permittee's site, and make it simple for permittees nationwide to obtain such estimates at no cost 

where available. (For a brief introduction to this subject, see Debo, T.N. and Reese, A.J. (2002), Municipal Storm Water Management, 

Second Edition, Boca Raton, Florida: Lewis Publishers.) 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.031

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.1.2.1 

Storm events that occur more than 5 miles away do not represent the amount of rainfall falling at a construction site. EPA should require 

installation of one or more strategically located rainfall gages within a construction site area occur to ensure the collection and recording 

of local climatic data. 

Response 

Refer to Response 3.1. 

Comment ID 0066-A1.001.032

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.1.2.1 

Discussion: Regarding this requirement, Appendix I restricts the source of the 2-year 24-hour rainfall to TP-40 or NOAA Atlas 2 or 14. 

TP-40 was published in 1961. NOAA Atlas 2 refers you to Hydro-35 which was published in 1977. NOAA Atlas 14 is not applicable for 

Texas. 

Suggestion: USGS has a new rainfall atlas (Scientific Investigations Report 2004-5041) specifically for Texas which includes more 

recent rainfall data. This atlas provides more accurate rainfall for Texas than TP-40 or NOAA Atlas 2. We request the use of SIR 

2004-504, and apply it anywhere EPA requires the use of a 2-year 24-hour rainfall standard. 

Response 

Refer to Response 2.9. 
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Comment ID 0069-A1.001.009

Author Name: Cramer M. 

Organization: 

Issue Category: 3.1.2.1 

8. Part 3.1.2.1. of the draft EPA CGP includes a minimum 24-hour rainfall amount below which no sampling is required. 24-hour rainfall 

levels do not typically determine when discharge to an outfall will occur. Rather rainfall intensity, antecedent soil conditions and 

vegetation determine if and when stormwater discharge will occur at a given outfall. We recommend that instead of setting a minimum 

24-hr rainfall amount consider the use of rainfall intensity levels combined with added clarity to the language to ensure an understanding 

that only actual outfall discharges require sampling and that not all storms will provide a discharge.

Response 

Refer to Response 3.1. 

Comment ID 0072-A2.001.011

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 3.1.2.1 

MoDOT does commend the EPA for including exceptions for stonns larger than the 2-year, 24-hour stonn and also that temporary or 

pemlanent stabilization can bring acreage back under the threshold; however, we still feel the acreage threshold should be revised as 

proposed above. 

Response 

Refer to Response 3.1. 

Comment ID 0075-A2.001.022

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 3.1.2.1 

Since it is unknown how large a storm will be until after it is over, the inspector will need to measure turbidity until the storm concludes 

or the rainfall amount exceeds the local 2 year, 24 hour storm. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.016

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.1.2.1 

Target requests that the EPA remove the 2 year 24 hour requirement and base all monitoring requirements on measurable surface 

discharges at the site. The requirement will result in the Permittee having to monitor all events regardless if they meet the event. Only 

after the event will it be determined whether the Permittee will report the monitoring event. We are concerned that this requirement adds 
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a level of complexity to the permit without necessarily improving outcomes. 

3.1.2.1. This requirement appears to be in direct contradiction to 3.3.9. in which all samples are required to be reported. Therefore, every 

event that we sample which exceeded the 2-year 24-hour, would be required to be submitted even if not required. We seek clarification 

as the requirements appear to be in conflict. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.067

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.1.2.1 

Under the Draft, on projects where the numeric turbidity limit applies, permitees would be exempt from the turbidity limit if a storm 

event produced a discharge that exceeded the local 2-year, 24-hour storm. To demonstrate that it qualified for this exception following a 

particular storm event, the construction site operator would have to "record the amount of rainfall (in inches) that occurred at his site 

using a rain gauge, or similar device, or using data from other sources that are no more than five miles distance from your site." AGC 

points out that many construction projects occur in rural areas. If the on-site rain gauge is damaged or stolen, there may not be another 

data point within five miles. AGC requests that EPA edit this provision to require the use of the closest reasonably attainable data. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.070

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.1.2.1 

While the Draft does provide an exception for complying with the turbidity limit for storms exceeding the 2-year, 24-hour rain event, this 

provision, as currently written, is unworkable. The Draft provides "If you determine that your stormwater discharges in any day are 

generated by a storm event in that same day that is larger than the local 2-year, 24-hour storm, you are not required to comply with the

numeric turbidity limit for that day." There are technical problems with the emphasis of the "same day" language in the CGP, as follows: 

1. The meteorological definition of a 2-year, 24-hour rain event is just that: 24 hours. It is not confined to a calendar day as written in the 

Draft, and this is contrary to provisions stated in the C&D ELG. If at any time during any 24-hour period, rain occurs that exceeds the 

2-year, 24-hour rain event total, then the 2-year, 24-hour rain has been exceeded by meteorological definition, whether it all occurred on 

the same calendar day or not. The site must qualify for the turbidity exemption based on the meteorological rain event. 

2. The CGP as written does not exempt the runoff from any 2-year, 24-hour rain event; it only provides an exemption for the same 

calendar day. AGC maintains it would make more sense for the turbidity exemption to apply for some period of time after the 2-year, 

24-hour event. AGC has two suggestions: 1) that the turbidity limit exemptions extend until discharge from the 2-year, 24-hour event is 

complete; or 2) that the turbidity exemption would extend until flooding or disruptive conditions have abated at the site, and the passive 

treatment and site BMPs can be safely accessed and repaired. 
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AGC also recommends that EPA craft provisions for contingencies other than a single rain event that might exceed the 2-year, 24-hour 

threshold. Extended rain for many days or a heavy rain while the ground is still saturated from previous rains can produce flooding or 

disruptive conditions often much worse than a single large and isolated rain event, even if no individual 24-hour period exceeded the 

2-year, 24-hour threshold. If there is significant flooding or active flash flooding in the local area (maybe as reported on the local news), 

then a turbidity limit exemption should be granted until the flooding or disruptive conditions subside. All of the streams in the area would 

be turbid anyway, and the impact of construction runoff would be negligible under these circumstances. 

In addition, an exemption is also needed for high intensity rainfall events, such as one (1) inch per hour or more. These events could be 

less than the volume of a 2-year, 24-hour storm event, however cause significant damage to even stabilized construction areas. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.073

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.1.2.1 

In addition, AGC recommends that EPA clarify its definition of "storm event" (see Appendix A and Part 3.1.2.1). The Draft appears to 

require sampling during every storm and also every snow melt event which results in any amount of runoff. It unclear to AGC how long 

permitees would be required to sample when the storm starts out heavy in the first 24 hours and then continues to drizzle for the next few 

days. The Draft also would require sampling even if no land changes have occurred since the last compliant sample was 

collected/analyzed. AGC members also question if they would need to sample in the middle of winter when there is a slight snow melt 

and then the ground freezes back up again. 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.052

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.1.2.1 

The exception for complying with the turbidity limit due to storms exceeding the 2 year, 

24 hour rain event is unworkable as written in the draft CGP. The rule provides that permittees 

are not expected to comply with the numeric limits on any day that stormwater discharges are 

generated by a storm event in that same day that is larger than the local 2-year, 24-hour storm. 

There are technical problems with the emphasis of the “same day” language in the CGP, as 

follows: 

First, the meteorological definition of a 2 year, 24 hour rain event is just that: 24 hours. It 

is not confined to a calendar day as written in the proposed CGP, and this interpretation is 

contrary to provisions stated in the C&D ELG. If at any time during any 24 hour period, rain 
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occurs that exceeds the 2 year, 24 hour rain event total, then the 2 year, 24 hour rain has been 

exceeded by meteorological definition, whether it all occurred on the same calendar day or not. 

The site must qualify for the turbidity exemption based on the meteorological rain event. 

Second, the CGP as proposed, does not exempt the runoff from any 2 year, 24 hour rain 

event, it only provides an exemption for the same calendar day of the 2 year, 24 hour storm 

exceedence. It is likely that this much rain could create flood or near flood conditions at the 

construction site. Passive controls and BMPs for turbidity will likely be overwhelmed and 

disrupted. They may be inaccessible, or dangerous to access. The only sensible solution is that 

the turbidity exemption must apply for some period of time after the 2 year, 24 hour event. 

NAHB submits two suggestions: 1) that the turbidity limit exemptions extend until discharge

from the 2 year, 24 hour event is complete; or 2) that the turbidity exemption extend until 

flooding or disruptive conditions have abated at the site, and the passive treatment and site BMPs 

can be accessed and repaired. Both of these options meet the intent of the rule while recognizing 

and providing practical solutions to on-site conditions. 

Third, there also needs to be provisions for contingencies other than a single rain event 

that might exceed the 2 year, 24 hour threshold. Extended rain for many days or a heavy rain 

while the ground is still saturated from previous rains can produce flooding or disruptive 

conditions often much worse than a single large and isolated rain event, even if no individual 24 

hour period exceeded the 2 year, 24 hour threshold. If there is significant flooding or active flash 

flooding in the local area (maybe as reported on the local news), EPA should grant a turbidity 

limit exemption until the flooding or disruptive conditions subside. All of the streams in the area 

would be naturally muddy, turbid, and swollen anyway, thus the impact of construction runoff 

would be negligible under these circumstances. 

Finally, an exemption is also needed for high intensity rainfall events, such as 1 inch per 

hour or more. These events could be less than the volume of a 2 year – 24 hour storm event, but 

due to its intensity can cause significant damage to even stabilized construction areas. EPA must 

be especially cognizant of how these terms might be applied in the territories and Puerto Rico, 

where EPA’s permit is valid. These areas regularly experience periods of significant rainfall that 

can occur on subsequent days, and operators need to know how these situations will be 

addressed. 

Response 

Refer to Response 3.1. 

Comment ID 0110-A1.001.010

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 3.1.2.1 

As a practicing professional Hydraulic Engineer, I strongly believe that the 2-yr, 24 hour storm event is inadequate and not conservative 
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for design purposes and if the permittees are not responsible for conditions greater than this, that the receiving waters will be severely 

polluted with sediment when the larger events do occur. Many cities and counties across the country use design storms that are much 

greater, such as the 10, 25 or even the 100 yr events. 

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.020

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.1.2.1 

Rainfall intensity (or maximum rainfall depth over a specified duration) would provide a better indication of conditions where 

exceptions are needed and should be allowed. Since most BMPs are designed for a 24-hour duration storm, it is reasonable that highly 

intense storms (often with less than 1-inch of rainfall) over a much shorter duration will exceed the capabilities of on-site BMPs. An 

exception that includes the 2-yr, 24-hr rainfall depth or a maximum intensity would be preferred and could be used by those with access 

to incremental rainfall data. 

Response 

Refer to Response 3.1. 

3.1.2.2 DISTURBED AREAS ARE LESS THAN THE THRESHOLD FOR 

APPLICATION OF NUMERIC TURBIDITY LIMIT

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

3.1.2.3 CONSTRUCTION OF INTERSTATE NATURAL GAS PIPELINES

Comment ID 0017-A1.001.019

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 3.1.2.3 

17) 3.1.2.3 - This section indicates interstate pipelines subject to FERC regulation are exempt from the numerical turbidity limit. The 

activities that occur as part of an interstate pipeline are similar to other liner utility project and all linear utility projects should be 

exempted from this requirement. 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.032

Author Name: Fifield Jerald 
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Organization: HydroDynamics Incorporated 

Issue Category: 3.1.2.3 

Natural gas pipelines should not be exempt from complying with numeric turbidity limits.

Response 

Refer to Response 3.1. 

3.2 NUMERIC EFFLUENT LIMIT

Comment ID 0032.001.001

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.2 

In table 3-2, Nephelometric Turbidity Units are referenced as the units of measure, but the measurement method is not specified (e.g. 

EPA 180.1 or ISO 7027). Because results can vary depending on the method used, we suggest that the measurement method be specified 

in the CGP. 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.033

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.2 

It is evident that EPA is seeking an upper numeric effluent limit on discharge waters from a construction site. Unfortunately, such a value 

will be restrictive and may not represent local conditions. It is our understanding that this is a reason why EPA is requiring each state to 

decide appropriate NTU values. 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.034

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.2 

EPA should consider developing an upper numeric effluent limit value based upon achieving Performance Goals for reducing sediment 

discharges from a construction site to, or be a percentage of, historic values. Since sediment yields and turbidity values are related, 

achieving Performance Goals for sediment yields is applicable to determining upper numeric effluent limits. 

Response 
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Refer to Response 3.1. 

Comment ID 0049-A1.001.035

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.2 

Accompany this response is a part of Chapter 7 from my manual for designers and reviewers. A review of the attached material 

demonstrates how using the results of RUSLE2 to calculate a percent reduction (i.e., Performance Goal) of potential sediment yields 

from bare ground conditions when compared to historic sediment yield conditions can occur. This concept can be applied to calculating 

upper effluent limits. Please contact me if you wish to discuss this further. 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.026

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.2 

Section 3.2, Table 3-2 "Numeric Effluent Limit," page 32 

•How will the NEL be balanced with State Water Quality Standards that are typically more stringent than 280 NTU? For example, the 

Idaho state water quality standard for turbidity is lower than 280 NTU but also considers background conditions. Will the more stringent 

requirement apply? 

Response 

Refer to Response 3.1. 

Comment ID 0067-A1.001.011

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 3.2 

C. This CGP provides a placeholder for establishing a yet to be determined numeric discharge limit for turbidity in stormwater 

discharges from sites of ten acres or more of disturbance at one time after August 2014 (twenty acres prior to that deadline). This limit 

will apparently not be flow-weighted to be dependent upon the volume of water discharged per unit time. In other words, periods of high 

and low flows will have the same discharge limit 

Response 

Refer to Response 3.1. 

Comment ID 0072-A2.001.012

Author Name: Muenks Nate 
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Organization: Missouri Department of Transportation 

Issue Category: 3.2 

MoDOT also has concern with the set numeric effluent limit for all project sites regardless of soil type in a region and the pre-existing 

turbidity of receiving streams. In regions with finer grain soils, such as clays or fine silts, where total settable solids (TSS) may be low, 

and turbidity may be high, it is highly likely that chemical treatment would be required to achieve the turbidity limit. Chemical treatment 

systems (e.g. chitosan, polyacrylamide (PAM)) add considerable project cost, not only with the cost of the product itself, but also with 

maintenance and inspection of the system. Also, with regard to receiving streams, Missouri is an agrIcultural state with many tilled acres, 

and many of the streams in these agricultural regions were channelized in the past and are still in the infancy of phasing through the 

channel evolution process. During any rain event, with agricultural runoff and stream degradation, many of these streams become highly 

turbid, and there is concern with spending a considerable amount of resources on a chemical flocculant to keep potential turbidity from 

our projects below the permitted limit when the receiving stream may be exceeding that threshold already. As an example, according to 

turbidity data collected by USGS, the Missouri River, during normal flow, has turbidity around 100 NTU, and during river rise, these 

readings range between 100 and 700 NTU, with the capability of reaching 1000 NTU during extreme events. This is not to say that 

MoDOT desires to exacerbate the situation, and add excessive siltation within these stream systems, or that we don't make every 

practical attempt to limit sediment loss from our construction sites,just that it seems impractical in instances such as these to add 

additional cost beyond traditional erosion and sediment control devices. 

Response 

Refer to Response 3.1. 

Comment ID 0077-A1.001.004

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 3.2 

The EPA has proposed a NTU discharge limitation of 280 on disturbances of 20 acres or more beginning August 1st, 2011 and 10 acres 

or more beginning February 2nd, 2014. This limit may not be exceeded on any given day or time regardless of pre‐existing conditions of 

the land to be developed. Therefore they are imposing a higher level of standard than may currently exist prior to the development or land 

disturbance. This may not be achievable until stabilization of an existing area occurs. In other words you may be in violation prior to 

your development occurring or at the onset of proposed development and approval of a CGP. Development will require stabilization of 

an existing area that has turbid runoff before disturbing the area for development and then maintaining a turbidity level under 280 NTU's.

Response 

Refer to Response 3.1. 

Comment ID 0085-A2.001.001

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 3.2 

Absent a numeric limit, EPA and the States will struggle to successfully implement the intent of the CGP. The agencies tasked with 

enforcing the CGP will be unable to inspect all sites after rainfall events. Therefore, the self-reported numeric limit assumes a special 

role in making the CGP enforceable and providing adequate incentives for operators to comply with all aspects of their permit. 
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The Clean Water Act requires numeric limits be included in NPDES permits where feasible. 40 C.F.R § 122.44(k). When properly 

maintained, sediment control BMPs can control the amount of sediment leaving construction sites. Combined with simple turbidity 

monitoring technology, it is feasible to monitor whether sediment controls are adequately designed, constructed and maintained. 

Therefore, we recommend that EPA either adopt a new numeric limit prior to the finalization of the CGP or that EPA include specific 

language in the permit allowing EPA to reopen the CGP and insert the recalculated limit. 

Response 

Refer to Response 3.1. 

Comment ID 0088-A1.001.009

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 3.2 

Among the unrealistic requirements are: 

-- the numeric turbidity limit 

Response 

Refer to Response 3.1. 

Comment ID 0102-A2.001.009

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 3.2 

a. How are commenters expected to provide comments on a rule with numeric limits when we don't know what those limits are? We 

would suggest the comment period to be extended until the numeric effluent limit is defined in order to commenters to be able to address 

this critical aspect of the rule. 

Response 

Refer to Response 3.1. 

Comment ID 0102-A2.001.010

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 3.2 

7. Using one figure for a numeric effluent limitation for turbidity does not allow recognize the varying soil conditions found throughout 

the country and situations where sediment-laden runoff entering the site is highly turbid. An alternative provision that allows for a 

maximum increase in turbidity compared to influent levels would allow more flexibility for both natural background turbidity as well as 

off-site impacts that increase turbidity levels. 

Response 

Refer to Response 3.1. 
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Comment ID 0105-A2.001.008

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 3.2 

 Numeric turbidity limit (Part 3). CLF strongly supports incorporation of technology- based numeric limits on stormwater pollution 

into the CGP. Such limits are the cornerstone of effective Clean Water Act implementation. EPA's long-delayed adoption of a turbidity 

limit in the C&D Rule and now the CGP Permit, albeit further delayed by the calculation error in the rulemaking, is a modest but crucial 

step toward a modern, scientifically sound permitting regime for stormwater discharges. The numeric limit on turbidity should be 

inserted into the final CGP, as the Draft CGP proposes, following speedy completion of EPA's parallel rulemaking to recalculate the 

limit. Although EPA deserves considerable credit for proposing to impose a numeric limit on turbidity in construction stormwater 

discharges, the requirement should apply at more sites and more quickly than EPA's proposal provides. 

Response 

Refer to Response 3.1. 

Comment ID 0109-A2.001.005

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 3.2 

The final Permit should include a technology-based, numeric limit for turbidity. The limit should apply at more sites and more quickly 

than EPA's proposal provides. 

Response 

Refer to Response 3.1. 

Comment ID 0168-A1.001.009

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 3.2 

-- Naturally occurring sediment transport rates vary significantly depending upon the local geology and topography. The numeric limits 

should be established in a manner that is addresses basic geomorphological differences across the country. There may not be one value 

that fits all circumstances; selecting a value that is lower than the carrying capacity of the stream will result in adverse impacts to that 

stream (eg, if the volume of sediment instream is less than the carrying capacity, the water will scour out the channel until it reaches 

equilibrium and the carrying capacity is met). 

Response 

Refer to Response 3.1. 

3.3 SAMPLING REQUIREMENTS
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Comment ID 0017-A1.001.020

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 3.3 

18) 3.3. - All references to stormwater sampling should be removed. This proposal would require such an enormous work effort that 

proposing it is irresponsible. It is impossible to determine how much precipitation will initiate a discharge and when that discharge may 

start. The only way to comply with this requirement is to employee someone to "stand guard" waiting for a discharge. For a multiple mile 

linear project, that would require a small army of inspectors. With such an enormous effort to comply, this rule would have to be life 

saving, which it clearly isn't since inspections aren't required after work hours. 

Response 

Refer to Response 3.1. 

Comment ID 0047-A2.001.018

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 3.3 

Section 3.3, page 32 

When a construction project is dealing with multiple operators (both primary and secondary), who is responsible for sampling if the site 

exceeds the disturbance threshold. For example, Xcel Energy has a feeder project that is disturbing 0.8 acres of land on a 23 acre 

development? And if there is an exceedance in the turbidity result, who is responsible? 

Response 

Refer to Response 3.1. 

Comment ID 0051-A2.001.004

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 3.3 

Sampling requirements to demonstrate compliance with a numeric effluent limit for turbidity (Part 3.3). Monitoring at all discharge sites, 

during any storm event that results in a discharge, is an important procedure to reduce sediment pollution into nearby waters. MRWC 

supports the provided sampling protocols and encourages EPA to require a sampling frequency of every two hours following the first 

sample. This option will serve as a more structured sampling procedure, as compared to the alternative method of sampling at the 

beginning, middle, and end of the storm duration during each day. It will provide representative samples, less influenced by human 

factors. 

Response 

Refer to Response 3.1. 
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Comment ID 0061-A1.001.002

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 3.3 

As described above, the sampling of discharges from LCPs presents challenges not faced in traditional construction projects. By itself, 

the inability of LCPs to segregate off-site run-on from the runoff from their own limited construction activities makes representative 

sampling impossible, particularly with respect to any technology-based effluent limitation.[FN 6] Moreover, the presence of tens and 

perhaps hundreds of discharge (and, thus, sampling) locations along a miles-long linear project renders the sampling protocols 

established by the Draft Permit [FN 7] logistically impracticable, cost-prohibitive, and inconsistent with the much smaller sampling 

burden that would be imposed on the vast majority of traditional construction projects. 

[FN 6] A broad application of sampling requirements to LCPs not only would be impracticable, but also would not leave the Agency on 

legally solid ground. In particular, sampling discharge points at LCPs to determine compliance with a technology-based numeric 

limitation would be legally problematic, for a number of reasons. Assuming, as the Draft Permit does, that a numeric turbidity limitation 

will shortly be incorporated into the Construction and Development Effluent Limitations Guidelines, it is likely that such a limitation 

will have been developed based solely on the ability of one or more model technologies to reduce pollutant loads in stormwater runoff 

from construction activities. Unless the record underlying any such numeric limitation specifically characterizes and then accounts for 

the model technology's treatment efficacy for combined construction and non-construction stormwater runoff (that is, accounts for the 

unknown but foreseeable run-on that is unavoidably experienced at LCPs and assesses the cost of treating such additional flows), the 

resulting effluent limitation would not be applicable to mixed discharges. Moreover, from the permitting perspective, compliance with 

that standard could not reasonably be assessed by sampling where sampling methods capable of segregating construction from 

non-construction runoff are not available. 

[FN 7] See, e.g., Draft Permit at 3.3.1.1 (numeric limitation sampling required for any storm event or snowmelt resulting in a discharge); 

3.3.2 (numeric limitation sampling must include 3 samples per day of discharge or samples every 2 hours); 4.2.2.1.b.i (benchmark 

sampling to comport with Part 3.3.1); and 4.2.2.1.b.ii (benchmark sampling to occur at least weekly and to include 3 samples per day of 

discharge or samples every 2 hours). 

Response 

Refer to Response 3.1. 

Comment ID 0066-A1.001.033

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.3 

Discussion: These requirements will greatly influence how contractors phase work on linear projects. If these draft rules are approved as 

written, the trend will be to limit earth disturbing activities to less than 10 acres, since it will not likely be possible to comply with the 

numeric turbidity limit in all cases. This could exponentially increase construction costs and the time necessary to complete projects. 

Suggestion: Exempt linear transportation construction projects from this requirement. 

Response 
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Refer to Response 3.1. 

Comment ID 0072-A2.001.013

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 3.3 

The final concern is with the sampling requirements. MoDOT believes the proposed sampling frequency, location and reporting are not 

reasonable for linear transportation products. Highway construction projects can have up to 50 or more outfall/discharge locations for a 

single job. Even if a DOT were able to pare down some of the required sampling locations by calling them "substantially identical 

discharge points", there would still be enough sampling locations remaining that the resource commitment would be considerable. Then, 

when you multiply the number of sampling locations by the required 3 samples per day per sampling location (during discharge events) 

the requirement becomes impractical. The additional resource commitment associated with conducting the required sampling and 

sampling data management for every discharge event for the multitude of job sites across the entire state would be substantial. In 

addition, MoDOT believes there would also have to be a significant resource commitment from the regulatory permitting agency in 

order to manage and review the mass amount of sampling data that would flood their agency every month. MoDOT commends the EPA

for making an attempt to pare down the workload for linear projects by allowing representative sampling for "substantially identical 

discharge points"; however, even with this flexibility to alleviate some of the workload, the sampling requirements are still believed to 

be unreasonable and impractical for linear transportation projects for the reasons outlined above. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.015

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3 

Target requests that the Environmental Protection Agency (EPA) clarify whether qualified personnel will be required to collect samples.

Response 

Refer to Response 3.1. 

Comment ID 0080-A2.001.023

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 3.3 

Additionally, the City objects to the cost of having to purchase, calibrate and maintain several nephelometers, train City staff on the 

proper use of the nephelometers, and comply with these sampling and reporting requirements on City projects. Also, if the baseline 

sampling is not an effective compliance tool in the arid west, the City objects to any possible future third-party sampling compliance 

mandates which may be included under its existing MS4 Municipal Stormwater Permit Construction Sites Program. 

The Partner's contend that visual observation and inspection, as now required by the 2008 CGP, is the best indicator of sediment leaving 

a permitted construction site. Visual inspection remains the most appropriate form of CGP compliance evaluation for sites in the arid 
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west. 

Response 

Refer to Response 3.1. 

Comment ID 0080-A2.001.033

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 3.3 

Also, precipitation events less than 2-year, 24 hour frequency would make it necessary for large NMDOT projects to perform the 

monitoring for turbidity. Currently NMDOT does not have monitoring requirements and this will add to the cost of the project. The 

sampling requirements and monthly reports to the EPA require more manpower and funding. The supplemental requirements for 

"impaired waters" would further add cost. Moreover, it is difficult to monitor rainfalls that occur infrequently, haphazardly, and only last 

a few minutes, which is characteristic of most rainfalls in New Mexico. 

Response 

Refer to Response 3.1. 

Comment ID 0087-A1.001.028

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 3.3 

The CGP says "[y]ou are required to take samples of your stormwater discharges during any storm event or snowmelt condition that 

results in a discharge of stormwater from your construction site...." Section 3.3.1.1. This requirement applies to each discharge location 

(Section 3.3.3) on every day of discharge (Section 3.3.1.3). In some parts of the country and during some parts of the year, this may 

necessitate daily sampling. Requiring sampling of each and every discharge is per se unreasonable, especially as there should be little or 

no variability in the nature of the runoff from any particular disturbed site from one storm event to another. The frequency of sampling 

proposed by EPA is dramatically different and more extreme than any other stormwater permit and, for that matter, typical municipal or 

industrial NPDES wastewater permits. Moreover, the burden on permittees will far outweigh any value derived from the sampling 

results. It would be far better, more efficient, and more environmentally protective to require permittees to monitor representative 

stormwater discharges quarterly or at some other reasonable frequency, and then require them to focus their efforts during non-sampling 

storm events on the proper operation and implementation of their various site BMPs. Also, sampling should be limited to rain events that 

are predicted at least 48 hours in advance by the National Weather Service to have a >50% chance of occurring and to generate > 0.5 inch 

of rainfall. 

Response 

Refer to Response 3.1. 

Comment ID 0090-A1.001.031

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 3.3 
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EPA requested comments on the various sampling requirements in the Draft Permit. As to Part 3.3.1.1. on proposed discharge sample, 

AGA observes that the current (2008) NPDES general permit already requires construction sites to provide, maintain, and monitor 

erosion control. This is documented on the inspections logs completed every 7 days and within 24-hrs of a precipitation event greater 

than 0.5-inches. If sediment is seen exiting the site, action is required to be taken and documented. Adding discharge sampling to these 

detailed requirements is both duplicative and very costly. The requirement could also potentially result in a construction site being held 

responsible for up-gradient pollutant sources or pollution levels that are flowing through the construction site. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.066

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3 

The Draft fails to identify the recording and reporting that its monitoring provisions contemplate. And to that significant degree, the 

Draft is inconsistent with EPA's NPDES regulations, which state that "all permits shall specify requirements concerning the proper use, 

maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when 

appropriate." See 40 CFR § 122.48. 

Response 

Refer to Response 3.1. 

Comment ID 0099.001.002

Author Name: Anonymous Anonymous 

Organization: 

Issue Category: 3.3 

The sampling requirements are also unreasonable. 

Response 

Refer to Response 3.1. 

Comment ID 0100-A2.001.017

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 3.3 

Throughout the document, USEPA consistently refers to sampling for TSS; however, TMDLs, 303d lists, and chitosan are mentioned as 

concerns. For purposes of the proposed permit, does USEPA propose to only sample for TSS, or will sampling be required for other 

parameters? 

Response 

Refer to Response 3.1. 
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Comment ID 0121-A2.001.004

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 3.3 

The Draft permit's monitoring requirements will not provide meaningful information and are therefore unwarranted. Stormwater quality 

and quantity vary widely over short time periods; therefore, grab samples provide little information on the overall quality of storm water 

discharges. Instead of monitoring, more emphasis on inspection of erosion and sediment control measures after sizeable storms is 

sufficient to ensure their proper operation. This would serve as a more direct means to an end for ensuring that BMPs are installed and 

operated correctly. 

Response 

Refer to Response 3.1. 

Comment ID 0125-A2.001.003

Author Name: Johnson Michelle 

Organization: Northeast Ohio Areawide Coordinating Agency (NOACA)

Issue Category: 3.3 

Sampling of storm events and discharge is difficult. As outlined in the CGP defensible results are not obtainable and therefore sampling 

becomes a waste of time and effort yielding very little good data that most likely would not stand up in a court of law. 

1 The simplified sampling method proposed in the CGP is not defensible and possibly easily manipulated. Most sediment controls are 

designed to fill up and drain down slowly over a 2 to 5 day window to re-set for the next storm event. Under ideal conditions sampling 

would occur during the entire drawdown time. The first samples would be the most turbid, after 3-5 days the later part of the discharge 

would be the cleanest, those samples should be averaged to determine effectiveness of the practice. The protocol as outlined in the CGP 

does not reflect how practices are designed to work. To complicate matters storms do not always occur 3 to 5 days apart, during back to 

back storms your beginning and ending points for each event become unclear. 

2 Only requiring sampling during business hours again leads to indefensible results. By the time someone shows up in the morning the 

turbid water from a thunderstorm the night before may be well past an in-effective sediment control. 

3 Sample collection by grab samples leaves a lot of room for human error and influence. 

Response 

Refer to Response 3.1. 

Comment ID 0143-A2.001.001

Author Name: Bashel Renee 

Organization: Small Bus. Ombudsman/Small Bus Env Asst Prog 

Issue Category: 3.3 

Comment: The proposed draft permit does differentiate between large and small construction activities with regards to the turbidity 

sampling requirements, but imposes the same requirements for a large operator as that for a small operator. We believe this places an 

undue burden on the small operators, and doesn't consider the difference in available resources. 
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Response 

Refer to Response 3.1. 

Comment ID 0150-A1.001.001

Author Name: Borysenko Jim 

Organization: REI Engineering Inc. 

Issue Category: 3.3 

I. It is our understanding that EPA is still trying to define it`s Turbidity Limit for larger construction sites. In general, we do not agree 

with the idea of the sampling requirements as outlined. If this was expected to work at all, there would likely have to be a means of a 3rd 

party (certified) agency responsible for setting up a remote collecting station so that the samples can be collected and analyzed for 

compliance based upon the rainfall. Although a unit like this would likely be expensive to own and maintain, we would see this as the 

only way to make this idea remotely possible and worthwhile. The expectation of having the collecting done in person (realtime) is 

unrealistic and will be too difficult to monitor. The EPA should develop a proprietary (automated) system that accomplishes this. The 

approved system can then be rented out (either direct by the permit applicant or through the state water quality organization (eg WDNR). 

A person with a recognized cert ification (Professional Engineer or similar background with training in using the apparatus) could then 

be contracted to collect the samples. This way, the turbidity testing and monitoring can be done with confidence and more fully meet the 

intent. 

Response 

Refer to Response 3.1. 

Comment ID 0168-A1.001.007

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 3.3 

-- Requiring an onsite rain gauge or documented gauge within 1 mile of the site with subsequent documentation of precipitation within 

the SWPPP is recommended. Consistent with the terms of the MSGP, this reflects experience with variable rainfall intensities and 

durations, and operators indicating that no rain occurred at their site during working hours. 

Response 

Refer to Response 3.1. 

3.3.1 WHEN TO SAMPLE. [REQUEST FOR COMMENT]

Comment ID 0037-A1.001.029

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 3.3.1 

The Southern Ute Growth Fund agrees with EPA that including a minimum rainfall amount associated with the turbidity limit below 
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which no sampling is required would be difficult to implement in the field prior to the operator knowing how much precipitation will end 

up falling. However, the operator is already in a similar position of not knowing during a rain event whether the event will be larger than 

a 2‐ year 24‐hour event and will have to proceed with collecting samples regardless until it is determined that the storm event was greater 

than a 2‐year 24‐hour event. 

There could be the situation where a rainfall or snow melt event did not result in a discharge that is of sufficient volume to allow 

collection of a representative sample. The proposed CGP does not address this situation. EPA should provide guidance on how this 

situation should be documented. 

Response 

Refer to Response 3.1. 

Comment ID 0060-A1.001.011

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 3.3.1 

11. Section 3.3.1 - We recommend that EPA require the owner to collect samples at 2-hour intervals or some similar set duration of time. 

There are plenty of sampling devices that are designed to be triggered when a flow is detected. With the use of automatic samplers there 

is no need to confine sampling to "work hours". By not limiting the sampling to just work hours, an owner would have the ability to 

monitor the efficiency of the erosion and sediment controls at all times. Turbidity has a 48 hr holding time, therefore, samples collected 

on a Saturday could still be sent to the laboratory on Monday for analysis. 

In addition, the "discharge condition" needs to be more precisely defined. However, we do not think defining it by a rainfall amount is 

appropriate. Given a set amount of rainfall, say 0.25" for example, a construction site that is predominantly sand will handle that amount 

differently than a site that is predominantly clay soils. The 0.25" of rain may not cause a "discharge" at the site with sands, but will likely 

cause one at the site with clay soils. 

Response 

Refer to Response 3.1. 

Comment ID 0067-A1.001.013

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 3.3.1 

This section of the CGP has conflicting language as to when sampling must commence-only during normal business days but within one 

hour of discharge from the project site. As noted above, a typical transmission line spans numerous drainage basins. Sampling all or even 

a representative number of outfalls on a major line construction project would be very difficult to perform within one hour of the 

discharge occurring, particularly when factoring in terrain of many transmission line ROWs. Results of sampling must be reported on at 

30-day intervals. If the turbidity field reading exceeds the discharge limit, corrective actions to reduce the readings to within acceptable 

limits. Entergy requests that EPA remove these monitoring requirements and, instead, state that compliance with the best management 

practices required by the CGP will constitute compliance with the Clean Water Act for purposes of stormwater pollution control. 
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Response 

Refer to Response 3.1. 

Comment ID 0071-A3.001.010

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 3.3.1 

•Part 3.3 Sampling Requirements. CDOT supports taking samples during working hours and not requiring sampling during unsafe 

conditions. 

Response 

Refer to Response 3.1. 

Comment ID 0075-A2.001.023

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 3.3.1 

A relative turbidity increase requirement may be more reasonable than a flat rate since the turbidity of stormwater entering a project may 

already exceed the NTU threshold. 

Response 

Refer to Response 3.1. 

Comment ID 0121-A2.001.008

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 3.3.1 

Section 3.3.1 requires sampling " ... during any storm event or snowmelt condition that results in a discharge of storm water from your 

construction site ... " Ensuring that samples are collected during any runoff event will be very difficult in many circumstances and likely 

impracticable. Small unexpected precipitation events may lead to very minor intermittent runoff. Ensuring that this runoff is sampled 

would be very challenging and would require substantial resources. Even more challenging would be collecting runoff from all 

snowmelt events. Snowmelt can occur slowly over days or weeks. During this time there may be very low and intermittent flows from a 

construction site. Ensuring that samples are collected from all runoff events is impracticable. Instead the permit should require sampling 

following a set amount of precipitation, for example following a 0.5 inch of rain. This would provide a clear standard for when sampling 

should be required. 

Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.033

Author Name: Gear Ken 
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Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.1 

Part 3.3.1 defines when to sample and includes sampling of authorized non-stormwater discharges. Allowable non-stormwater 

discharges are defined under part 1.4.1.4 and are "allowable" as long as they do not impact water quality standards. If any of the 11 

allowable non-stormwater sources are expected to be discharged off-site, BMPs are required to be listed in the SWPPP to prevent impact 

to water quality standards. What benefit will be added by sampling allowable non-stormwater discharges? Sampling for allowable 

non-stormwater discharges will add significant burden and cost to the project including additional manpower needed to take the sample 

and cost of submitting to laboratories for analysis. 

LBA suggests removing allowable non-stormwater sampling requirement from the permit. If EPA does not remove non-stormwater 

sampling requirements from the Proposed CGP, then the EPA should add non-stormwater sampling as a separate requirement apart from 

general sampling requirements and more clearly define more limited sampling and analytical requirements for this allowable discharge.

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.022

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.1 

2. Determining the appropriate stormwater sampling times (start and interval) is always a problem as runoff hydrographs do not follow 

nice patterns. In the absence of continuous monitoring, it is difficult to develop a method that will document all exceedences of water 

quality standards. Finding a time schedule that will achieve that is difficult. The interval used should sample the entire storm, however, 

it is hard to predict the expected duration at beginning of a storm. It is important to have a rainfall event that is too small to sample. It 

should at least exclude rainfall events that are a trace. A suggestion is that it set for rainfall events that exceed the initial abstractions. I 

have no clue as to what should be done for sampling intervals. 

3. "When to Sample" - The requirement to sample when discharge occurs is sufficient. If a 2-year, 24-hour event or greater occurs, 

sampling should be conducted up to the point rainfall depth exceeds the amount for the 2-year, 24-hour storm event at the given intensity 

for the area in question. 

Response 

Refer to Response 3.1. 

Comment ID 0168-A1.001.006

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 3.3.1 

-- We suggest requiring sampling after precipitation occurs in excess of 0.1 inch, or sufficient to cause runoff from the site; this is 

consistent with the monitoring threshold for industrial sites covered under the Multi-Sector General Permit (MSGP). 
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3.3.1.1 TYPES OF DISCHARGE CONDITIONS REQUIRING SAMPLING

Comment ID 0021-A1.001.004

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 3.3.1.1 

4. How would you conduct the sampling for the NTU requirements if a site is discharging via sheet flows with no concentrated flows 

occuring? 

Response 

Refer to Response 3.1. 

Comment ID 0037-A1.001.030

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 3.3.1.1 

Part 3.3.1.1 requires that samples must be collected of "stormwater discharges during any storm event or snowmelt event condition that 

results in a discharge from your construction site." According to Appendix A, a storm event is defined as "a precipitation event that 

results in a discharge." During the monsoon season in the southwest, there can be one or more thunderstorm during a work day and one 

or more of them may result in separate distinct discharges from a site. If the discharge from the site is non‐continuous, is each 

thunderstorm that results in a discharge considered a storm event as per the permit definition? If so, will the operator have to collect three 

samples during each discharge if the thunderstorm is less than or equal to the local 2‐year 24‐hour storm? EPA should revise this Part to 

address areas that have a monsoon season so that it will not be overly burdensome for the operator to comply with the sampling 

requirements. 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.042

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.1.1 

Brevard County Comment: Many contractors stop work and go home when it starts raining. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.018

Author Name: Steadman Marc 

Organization: Target Corporation 
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Issue Category: 3.3.1.1 

Target recommends that snowmelts not be considered monitorable events as it is neither practical nor representative of site conditions. 

Snowmelts are difficult to monitor. When snowmelt events are normally occurring, the soil is frozen and therefore sediment mobility is 

limited. 

Target also believes that to capture an event within an hour of when discharge has begun is very difficult to do. Alternatively, if the EPA 

intends to keep monitoring requirements for snowmelt events, they should consider removing the one hour timeframe. The one hour 

requirements is also not necessary because of the accumulation of sediments over the winter, the snowmelt would be homogenous and 

therefore not capture a flash flush, which is presumed what the one hour requirement was intended to capture. 

Lastly, often during winter conditions the site may be temporarily inactive. Target is uncertain if the EPA intends to require monitoring 

at these times and questions whether snowmelt matters when the site is still covered with snow. Target suggests that instead the emphasis 

be placed on stabilization Best Management Practices (BMPs) prior to inactivity or winter weather and snow cover. 

Response 

Refer to Response 3.1. 

Comment ID 0100-A2.001.009

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 3.3.1.1 

Section 3.3.1 describes USEPA's suggested types of discharge conditions requiring sampling. USEPA is suggesting the requirement to 

take samples of stormwater discharges during any storm event or snowmelt condition that results in a discharge of stormwater from the 

construction site, or when there is an authorized non-stormwater discharge from the site. This is not practical nor is it feasible. USEPA 

should define is required to sample. Who is the responsible party? Is this a self-monitoring effort? Please explain how you expect 

responsible parties to sample sheet flow. USEPA should also explain how it is expected to sample snow melt and when is the sample to 

be collected. 

Response 

Refer to Response 3.1. 

Comment ID 0127-A2.001.006

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 3.3.1.1 

Section 3.3.1.1 

Proposed Language 

You are required to take samples of your stormwater discharges during any storm event or snowmelt condition that results in a discharge 

of stormwater from your construction site, or when there is an authorized non‐stormwater discharge from your site. 
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Concern 

Compliance will be difficult to achieve during inactive construction periods when construction staff is no longer onsite while final 

stabilization (grass growing) is occurring. 

Suggested Correction 

Add language that states the samples are only required during active construction phases. 

Response 

Refer to Response 3.1. 

Comment ID 0146-A1.001.004

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 3.3.1.1 

3.3.1.1: "You are required to take samples of your stormwwater discharges during any storm event or snowmelt condition that results in 

a discharge of stormwater from your construction site." 3.3.2: "You must collect your first sample within the first hour that the discharge 

begins. After you take your first sample you must take a minimum of 2 additional samples during the remaining hours of the work day 

that the discharge continues. The 3 samples must be distributed in such a way that the beginning middle, and end of the discharge for that 

day are represented. If the discharge continues on the subsequent day(s),. You must take a minimum of 3 samples per day that there is a 

discharge." 3.3.3: "You must take samples of all discharge points where stormwater is discharged." 

The projects that we work on vary from a Burger King on a half-acre lot to subdivisions or plants with several hundred acres. In the State 

of Tennessee, no more than 50 acres can be disturbed at any one time under a general permit, and our clients adhere to this regulation. 

However, that does not mean that all 49 exposed acres are contiguous and drain to a single outfall. It is typical in subdivision 

development to have vertical construction (home building) underway on vacant, exposed lots at the same time that a new phase of the 

subdivision is under land development construction. Multiple outfalls are typical to accommodate our rolling terrain and eliminate one 

single, large wet or dry pond which can be unsightly or a hazard to children. Just making it around to all of the outfalls on some of our 

sites would take an hour, never mind sampling or intelligent observations of any conditions. 

Tennessee enjoys an average rainfall of 48" per year, and it is dispersed throughout the year. Pop-up storms and showers are frequent in 

the summer, and their development and trajectory are unpredictable. The draft permit sampling requirements would necessitate having a 

designated person present at all times the site is active to conduct inspections and take stormwater samples under the permit criteria. This 

person could not leave the site unless a replacement was designated: not for meetings, not for training, not for lunch. The use of 

automatic sampling equipment in a heavy construction environment is not practical because of dirty site conditions, the dynamic and 

unstable working environment, and the high potential for damage to these expensive instruments that would have to be placed at every 

outfall. At the end of my comments, I will discuss what I believe would be a workable combination of inspections, required observations, 

and water sampling. 

Response 
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Refer to Response 3.1. 

Comment ID 0153-A1.001.023

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.1.1 

Mild, non-intense events may not generate enough runoff sufficient to collect any type of sample.· Dependent upon construction 

sequencing, some post construction BMPs may facilitate infiltration, further reducing available runoff from disturbed areas that have not 

reached final vegetative stabilization. Regardless of these challenges, the resources/logistics associated with sampling makes it 

impractical to capture samples for all events. Weather forecasts and radar will have to be used to anticipate the collection of an 

appropriately sized event, > 0.25 inches. EPA should expect the permittee to miss storm events due to the unpredictability of localized 

weather. 

Response 

Refer to Response 3.1. 

3.3.1.1Q MINIMUM RAINFALL AMOUNT FOR NO SAMPLING

Comment ID 0015-A2.001.011

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.1.1Q 

Q 12. Rainfall limit for sampling - Agree, seems reasonable. The 2-year, 24 hour storm event could be used to create a volume based 

standard - i.e. "1⁄2" of rainfall. Then operators could judge sampling need based on predicted rainfall amounts. 

Response 

Refer to Response 3.1. 

Comment ID 0046-A1.001.017

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 3.3.1.1Q 

The Department believes a minimum rainfall amount is a must. It is very difficult to predict when runoff will occur and it is almost 

impossible to monitor. Having a clear and measurable trigger to require the Contractor to act is invaluable. The Department believes 

sampling should begin after 0.5" of liquid precipitation has fallen during working hours is prudent in New Hampshire. Measuring 

precipitation works very well and can be automated so the Contractor, third party monitors, Department Personnel and Regulators all get 

an e-mail or text message at the same time. 

Comment ID 0055-A1.001.009
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Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 3.3.1.1Q 

A minimum rainfall benchmark should be included in the permit. However, there should also be definitions of continuous rainfall events. 

Continuous outflow from the site may result when relatively quick back to back events occur. Smaller rainfalls with frequent 

occurrences should be addressed in the permit to avoid interpretation. 

Response 

Refer to Response 3.1. 

Comment ID 0065-A1.001.021

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 3.3.1.1Q 

Section 3.3.1.1 states the types of discharge conditions that require sampling. EPA requested comment on whether a permit should 

include a minimum rainfall amount below which no sampling is required. CCWC believes that it would be possible to implement such a 

minimum rainfall requirement in the field. For example, if a rain gauge is installed at the site, the site contractor could be required to take 

a sample only if the rain gauge indicates more than 0.25" or other established amount of rain has fallen 

Response 

Refer to Response 3.1. 

Comment ID 0066-A1.001.034

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.3.1.1Q 

Discussion: Taking samples during a rainfall event is often problematic, and involves life and safety issues that cannot be ignored. The 

problem is not only asking if there should be a minimum rainfall event that would trigger sampling, but whether or not there is a 

maximum that is unsafe. Texas historically has large and highly productive storm events that can produce 2 to 5 inches at a time. You do 

not know how much is produced before the rainfall occurs, only afterwards. 

Suggestion: Setting a minimum rainfall standard is questionable at best. 

Response 

Refer to Response 3.1. 

Comment ID 0070-A1.001.006

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 3.3.1.1Q 

d. Discharge Condition Types Requiring Sampling - Alcoa has concerns as to how the sampling condition as written will be interpreted. 

In some parts of the country distinct rainfall events can occur several times per day or on consecutive days for a week or longer. Would 
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sampling each of these individual events provide meaningful information on compliance? Also, if a design storm event is chosen, how 

will the time period be determined for compliance purposes if rainfall occurs sporadically over several days? 

Response 

Refer to Response 3.1. 

Comment ID 0074-A2.001.015

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 3.3.1.1Q 

The DEQ believes a minimum rainfall amount can be difficult to determine because there are so many factors that can affect stormwater 

discharges during any storm event or snowmelt. It is often not possible to take a sample during storm events that result in a discharge of 

stormwater. EPA should consider requiring sampling only when the rain event meets the inspection criteria of within 24 hours of a 0.5 

inch rainfall or greater. This will allow owners/operators to obtain samples at the same time that inspections of the site are occurring. 

Response 

Refer to Response 3.1. 

 

Comment ID 0076-A1.001.017

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.1.1Q 

Target thinks that the EPA should not include language about minimum rain events. As stated in previous comments, Target believes 

that all monitoring should hinge on whether there are measurable surface discharges which can be sampled. Because of variability of soil 

and site conditions, a minimum storm event would not help in determining whether a Permittee would need to sample. By including 

language which makes monitoring based on measurable events the EPA would be simplifying the permit and making language which is 

easily understood by regulated parties. Target understands the intent of the proposal, but supports establishment of a standard that can be 

applied in practice. 

Response 

Refer to Response 3.1. 

Comment ID 0077-A1.001.005

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 3.3.1.1Q 

Samples could be taken as prescribed by the requirements of the regulations and if the rainfall amount is under the threshold then the 

samples are simply disregarded. There may be times when the rainfall amount does not produce sufficient runoff for the required 

sampling as prescribed under the proposed ruling 

Response 

Refer to Response 3.1. 
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Comment ID 0085-A2.001.014

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 3.3.1.1Q 

Rockville supports requiring turbidity sampling after all sizes of rain events because this data will help design and construction 

professionals assess the efficacy and function of sediment control BMPs. 

Response 

Refer to Response 3.1. 

Comment ID 0087-A1.001.045

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 3.3.1.1Q 

UWAG supports the implementation of a minimum rainfall amount below which no sampling is required. Requiring sampling for every 

rain event, even very small ones, is too burdensome and would result in significant expenditures for companies located in an area of 

significant rainfall, with multiple projects being carried out at one time. 

Response 

Refer to Response 3.1. 

Comment ID 0088-A1.001.020

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 3.3.1.1Q 

Among the unrealistic requirements are: 

-- Minnkota believes that trying to apply a minimum precipitation amount to a sUbstation construction site as if it was an industrial 

facility with impervious surfaces is not a good fit situation. Impervious surfaces act in a similar manner with respect to water flow 

regardless of their location. Varying geographical, climatic, soil, and geomorphological setting dictate water borne sediment transport. 

In much of our operating region, taking into account our typical substation project, we typically wouldn't have appreciable sediment 

transport with a 0/. inch rainfall event (in a 24 hour period). In addition, the majority of streams and rivers would have a background TSS 

level exceeding what it would receive with up to a 0/. inch event due to their setting within fine silt\clay areas. We would suggest that 

minimum rainfall amounts would best be established on a project-specific basis, and that should be with respect to larger projects of a 

non-linear type. 

Response 

Refer to Response 3.1. 

Comment ID 0091-A2.001.010
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Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 3.3.1.1Q 

10. Fact Sheet Item 12. Part 3.3.1.1: A minimun rainfall and snowmelt event (or rate) should be established below which no sampling is 

required. A recommendation is 20% of the 24-hour 2 year design storm. In western Washington, many storm events last many hours, but 

only produce minor amounts of precipitation. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.072

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.1.1Q 

AGC urges EPA to include a minimum rainfall amount in the permit. Smaller rain events are unlikely to cause significant erosion, and 

the total volume of water discharged, if any, would be small and short-lived. Any low amount of runoff from these events can be very 

difficult to sample cleanly, and the measured turbidity might artificially appear to be much higher than the actual runoff. The recently 

adopted California CGP (effective July, 2010) only requires sampling from rain events that exceed 0.5 inches. Similarly, AGC 

recommends that EPA not require turbidity sampling for rain events less than 0.5 inches. If a site starts having discharge, and the 

operator takes a sample within the first hour of discharge, the results need not be reported if the rain event does not exceed 0.5 inches. 

EPA might specify that to qualify for this exemption, the site must have a suitable rain gauge on the premises. 

In the Draft, EPA expresses some concern about this approach. It questions, for instance, how a permittee could know how much 

precipitation would end up falling. AGC, however, recommends that EPA define a minimal rainfall for which reporting would not be 

required, instead of exempting sampling for a pre-determined minimal rainfall event. This approach would achieve EPAs goals while 

eliminating operator speculation as to how much precipitation will fall. 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.046

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.1.1Q 

EPA has requested comment on whether the permit should include a minimum rainfall 

amount below which no sampling is required. As drafted, the permit only requires sampling 

when there is discharge. For many construction sites that can have stormwater detention ponds, 

discharge is unlikely to occur for small rain events less than 0.5 inches unless there is significant 

impervious area at the site. However, at other construction sites, including but not limited to 

linear projects such as road construction, ponds are not feasible, and runoff might occur for 

smaller rain events. These smaller rain events are unlikely to cause significant erosion, however, 

and the total volume of water discharged, if any, would be small and short-lived. Any low 
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amount of runoff from these events can be very difficult to sample cleanly if no outfall is present 

(such as a roadside ditch), and the measured turbidity might artificially appear to be much higher 

than the actual runoff. For example, the recently adopted California CGP65 (effective July, 

2010) only requires sampling from rain events that exceed 0.5 inches. For all of the above 

reasons, NAHB recommends that turbidity sampling not be required for rain events of less than 

0.5 inches. If a site starts having discharge and the operator takes a sample within the first hour 

of discharge, the results need not be reported if the rain event does not exceed 0.5 inches. 

Response 

Refer to Response 3.1. 

Comment ID 0097-A1.001.009

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 3.3.1.1Q 

12. A minimum rainfall amount should be included. For sites with on-site storage, which results in the point discharge conditions, the 

testing would not start until well into the event and the minimum would probably be reached. 

Response 

Refer to Response 3.1. 

Comment ID 0102-A2.001.007

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 3.3.1.1Q 

a. Local/state information should be available that can provide an estimate of a minimal runoff-producing rainfall event - this should be 

the minimum rainfall depth required to trigger monitoring efforts. 

Response 

Refer to Response 3.1. 

Comment ID 0110-A1.001.011

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 3.3.1.1Q 

I think it should be required as written and if not enough water was generated for sampling then the appropriate documentation stating 

that this is what occurred should be filed. 

Response 

Refer to Response 3.1. 
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Comment ID 0117-A1.001.005

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 3.3.1.1Q 

EPA requests comment on whether the permit should include a minimum rainfall amount associated with this requirement below which 

no sampling is required. The Agency has some concerns about this approach, for instance, how it would be implemented in the field prior 

to the permittee knowing how much precipitation will end up falling, but is interested in feedback on this issue. Samples could be taken 

as prescribed by the requirements of the regulations and if the rainfall amount is under the threshold then the samples are simply 

disregarded. There may be times when the rainfall amount does not produce sufficient runoff for the required sampling as prescribed 

under the proposed ruling. 

Response 

Refer to Response 3.1. 

Comment ID 0123-A2.001.011

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 3.3.1.1Q 

Comment: The proposed language to require monitoring whenever a discharge occurs is appropriate. A minimum rainfall threshold may 

not account for high intensity, short duration storms where discharges could exceed limits 

Response 

Refer to Response 3.1. 

Comment ID 0126-A2.001.013

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 3.3.1.1Q 

The CSC has concerns about the implementation of the minimum rainfall sampling requirement. It is difficult to predict the amount of 

rainfall that will occur and the resulting runoff. 

Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.015

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.1.1Q 

Sampling for "any storm event or snowmelt condition that results in a discharge of stormwater from your construction site" is impractical 

and overly burdensome. The practical aspects of potentially monitoring flow, which may or may not occur or that is intermittent, will 

dramatically and unreasonably increase field effort and sampling costs. This is particularly the case at construction sites (as opposed to 
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general urban storm water sampling) as during construction many sites have little imperviousness for extended periods during mass 

grading. It would be a dramatic improvement to allow the design engineer to define storm conditions as part of the SWPPP development 

that should be sampled based on runoff instead of rainfall. LBA recommends this approach. 

If a single threshold were to be selected nationwide for construction sites it would be reasonable to focus on events greater than 0.25 

inches in magnitude. At many construction sites a minimum event size of 0.25 inches can be expected to produce some runoff. 

In many jurisdictions the legal definition of what a storm event is tied to a minimum magnitude. For example Virginia defines "Storm 

event" in code for the VPDES program (9VAC25-151-70-A.2.b) as an "event that is greater than 0.1 inch in magnitude (defined as a 

"measurable" event), providing the interval from the preceding measurable storm is at least 72 hours." Various similar definitions apply 

across the country. As almost every storm water monitoring Quality Assurance Project Plan reviewed and approved by EPA indicates, 

establishing a minimum storm size or minimum mobilization criteria for runoff sampling is technically sound and practical. 

In addition, it is widely accepted in storm water monitoring guidance that readily available tools such as NOAA Quantitative 

Precipitation Forecasts (QPFs) and Probability of Precipitation (POP) forecasts can be used to establish quantitative sampling 

mobilization criteria. At all sites, the utilization of forecast information is a practical approach; however, at remote sites or those 

requiring significant mobilization time, using forecast information is the only practical means for conducting a thoughtful and not 

wasteful sampling program. QPFs and POPs are easily accessible to the public via the NOAA web site: 

(http://www.hpc.ncep.noaa.gov/pqpf_6hr/conus_hpc_pqpf_6hr.php ) and are auditable as sampling mobilization criteria. 

Response 

Refer to Response 3.1. 

Comment ID 0137-A2.001.014

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 3.3.1.1Q 

The permit should not include a minimum rainfall amount‐ it should be measured anytime there is a discharge of stormwater. Not only 

would it be hard to implement in the field, it would be hard to enforce. 

Response 

Refer to Response 3.1. 

Comment ID 0145-A2.001.013

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 3.3.1.1Q 

There should not be a minimum rainfall amount below which no sampling is necessary. Sampling should be undertaken during all 

conditions that result in a discharge of stormwater. Earth-disturbing activities associated with construction and development frequently 

concentrates stormwater flow in ways that do not allow stormwater infiltration and exacerbates stormwater runoff. 
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Comment ID 0153-A1.001.021

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.1.1Q 

1. A minimum storm event should be listed, because a very small event (say 0.1 inches) may have a discharge only during a very short 

period of time during the first hour, and then there may be no more discharge for the remainder of the sampling period. 

Response 

Refer to Response 3.1. 

Comment ID 0159-A1.001.011

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 3.3.1.1Q 

The permit should not include a minimum rainfall amount- it should be measured anytime there is a discharge of stormwater. Not only 

would it be hard to implement in the field, it would be hard to enforce. 

Response 

Refer to Response 3.1. 

Comment ID 0170-A2.001.009

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 3.3.1.1Q 

The permit should include a minimum rainfall amount associated with the requirement to sample. Traveling to remote or unstaffed sites 

to determine if a discharge is occurring is an inefficient use of resources and will result in unneeded trips when no discharge is occurring. 

A logical, common sense approach would be to utilize the 0.25 inch rainfall inspection minimum in Part 5.1.2 as the rainfall minimum 

above which sampling requirements would be triggered. 

Response 

Refer to Response 3.1. 

3.3.1.2 SITE CONDITIONS NOT REQUIRING SAMPLING

Comment ID 0030-A2.001.023

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 3.3.1.2 

Section 3.3.1.2, page 33 

This needs to be more clear if it applies to sites that do not have a concentrated flow and where, in larger events, a discharge may leave 
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as sheet flow. For example, along a pipeline where there may be a silt fence or sediment control log along the downgradient perimeter, 

what if a relatively small portion of stormwater seeps through the BMP? is this considered to be a non-discernible flow? This type of 

grab sample will be almost impossible to sample without building a trench along the perimeter and purposely concentrating the flow, 

which would be counter productive in terms of protecting stormwater quality. 

Response 

Refer to Response 3.1. 

3.3.1.3 TIME OF DAY

Comment ID 0015-A2.001.034

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.1.3 

3.3.1.3 Why is the 6am to 6pm time standard not used here, it is used elsewhere? Also workers should not be able to leave in the middle 

of required sampling. The current text encourages operators to wait till end of work shift to sample and therefore call an end to the day 

before completion. 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.027

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.3.1.3 

Section 3.3.1.3, page 33 - "... normal working hours are considered to be Monday through Friday, between the hours of 8:00 a.m. and 

6:00 p.m...." 

•Typical working hours are 8:00 a.m. to 5:00 p.m. Suggest changing this language accordingly. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.075

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.1.3 

According to the Draft Part 3.3.1.3, "normal working hours are considered to be Monday through Friday, between the hours of 8:00 am 

and 6:00 pm, unless your working hours are different at your site." This appears to arbitrarily dictate the working day, and also 

potentially would require overtime, since this is longer than 8 hours. EPA is not in a position to judge what normal hours work best for a 
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construction site. For example, 6:00 pm during the winter is dark in most locations, and many construction activities might not be 

practical. Most construction sites likely have a set period of time each day where the permanent work crews and their direct supervisors 

are expected to be at the site working, however, these hours may vary seasonally or for other reasons. EPA should delete any reference to 

a specific time of day and indicate that the company's general hours of business (when sampling could occur) should be specified in the 

SWPPP, with flexibility to cover seasonal or job related adjustments. 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.048

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.1.3 

EPA states that normal working hours are considered to be 8:00 AM to 6:00 PM, Monday 

through Friday. This appears to arbitrarily dictate the working day, and also potentially would 

require overtime, since this is longer than 8 hours. EPA is not in a position to judge what normal 

hours work best for a construction site. For example, 6:00 PM during the winter is dark in most 

locations, and many construction activities might not be practical. Most construction sites likely have a set period of time each day where 

the permanent work crews and their direct supervisors 

are expected to be at the site working, however, these hours may vary seasonally or for other 

reasons. The general hours of business (when sampling could occur) could be specified in the 

SWPPP (if different from 8 AM to 6 PM), with flexibility to cover seasonal or job related 

adjustments. 

Response 

Refer to Response 3.1. 

Comment ID 0098-A1.001.015

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 3.3.1.3 

This Part is unclear and may inadvertently suggest that the hours from 8:00 AM to 6:00 PM are somehow the preferred, or that they are 

default working hours for projects. We appreciate the Agency's recognition that sampling crews should not be required to respond 

outside of a site's normal working hours but suggest that this Part be revised to eliminate the reference to "8:00 AM to 6:00 PM." Instead, 

we recommend that this Part be revised to state that the permittee is responsible for establishing and memorializing the actual working 

hours on its site 

Response 

Refer to Response 3.1. 

Comment ID 0100-A2.001.010

Author Name: Wirtz Matthew 
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Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 3.3.1.3 

It is not practical to deploy staff to sample within the first hour that discharge begins. This would require additional staff and funding to 

support sampling of this frequency. USEPA should state what the purpose of the sampling effort of snowmelt and rainfall within the first 

hour. Why is this data being collected? This not practical in the least. 

Response 

Refer to Response 3.1. 

3.3.1.4 UNSAFE STORM CONDITIONS UNDER WHICH SAMPLING IS 

NOT REQUIRED

Comment ID 0021-A1.001.006

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 3.3.1.4 

6. If a site is shut down due to a storm event and considered a "weather day" as defined by the U.S. Army Corps of Engineers does NTU 

sampling and monitoring still need to occur? 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.043

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.1.4 

Lightning, wind, snow... Nobody has to sample. 

Response 

Refer to Response 3.1. 

Comment ID 0075-A2.001.024

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 3.3.1.4 

High elevation, mountain thunderstorms have high potential of death or injury from lighting strikes. Absolutely, no sampling should be

inferred during their passage over a site since the inspector would be well-grounded standing in water or saturated soil plus placed in an 

exposed, open location. 

Response 
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Refer to Response 3.1. 

Comment ID 0087-A1.001.030

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 3.3.1.4 

Section 3.3.1.4 identifies situations under which it is not safe to conduct sampling and during which sampling is not required. Because 

many linear projects are located in areas where there is limited access on paved roads, EPA should also consider that situations will arise 

when access to discharge locations is unsafe and sampling (and inspections) cannot be conducted. EPA should add "unsafe access" to 

their list of examples of when it is not safe to sample. 

Response 

Refer to Response 3.1. 

3.3.2 SAMPLING FREQUENCY. [REQUEST FOR COMMENT]

Comment ID 0007-A1.001.005

Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 3.3.2 

Comment: The requirement to sample within the first hour that the discharge begins will be practically impossible to implement. For 

example, the normal workday is 8:00 a.m. to 5:00 p.m. The probability that a storm event will occur and cause discharge to occur during 

the normal work hours seems to be low. Also, for a typical construction site, the travel time to the site for someone who is charged with 

the responsibility to sample could very well be in excess of the minimum requirement cited. Unless the site if very large, most sites will 

not be able to support a person qualified to sample to be on site all the time. That qualified person will likely be overseeing several sites. 

More flexibility is needed in this paragraph. 

Response 

Refer to Response 3.1. 

Comment ID 0032.001.002

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.2 

In section 3.3.2, it is suggested that three separate samples be measured, and the results averaged. To reduce variability in the 

measurement, we suggest that the three samples be combined into a single composite sample. The composite sample should be measured 

in triplicate, with the results averaged. 

Response 

Refer to Response 3.1. 
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Comment ID 0034-A1.001.008

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 3.3.2 

Proposed Requirement/Section Addressed: CGP Section 3.3.2, Daily sampling requirements of discharges (three times per day at all 

discharge points) for projects which meet the size thresholds. The three samples must be taken and distributed in such a way that the 

beginning, middle, and end of the discharge for that day is represented. EPA also asks for comment regarding taking samples at twohour frequencies following the first sample. 

Comment: For high rainfall areas such as Bremerton, WA which receives rainfall 150 days per year, this will require significant effort 

(manpower and cost) that would require a full time person to perform sampling. Even in areas with moderate rainfall amounts, this 

requirement would be burdensome. Since it is not possible to know how long a storm event will last, it is not possible to plan sampling 

times to represent the middle and end of the discharge. Discharges could already be occurring at the beginning of the workday, extend 

past the workday, or start/stop within the workday 

Discussion: It is unclear whether EPA is saying that it is their expectation that sampling only during working hours. Recognizing that it 

is difficult to predict how long discharges will occur, what size storm is causing the discharge, and the manpower needed for this effort, 

some flexibility in sampling frequency should be provided. 

Recommendation: Samples should be taken at the beginning of the day or the beginning of the discharge (whichever occurs later) and 

then two more samples should be collected at set time intervals of one to three hours. 

Response 

Refer to Response 3.1. 

Comment ID 0040-A1.001.015

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 3.3.2 

The permit requires the permittee to collect the first sample during the first hour after a discharge begins and take a minimum of two 

additional samples during the remaining hours of the work day (for normal working hours) that the discharge continues. Section 3.3.4. 

The three samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represented. 

Rain events are too unpredictable to be able to comply with these requirements. 

Response 

Refer to Response 3.1. 

Comment ID 0046-A1.001.018

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 3.3.2 
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Measuring every 2 hours for 8 hours (4 rounds maximum) after 0.5" of precipitation has fallen is appropriate. Sampling should continue 

until the ELG is met. 

Response 

Refer to Response 3.1. 

Comment ID 0046-A1.001.019

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 3.3.2 

Sampling every single drop of stormwater leaving a site is not feasible. It may be feasible to require a certain percentage of the 

stormwater to be sampled. Small discharges could be visually checked. 

Response 

Refer to Response 3.1. 

Comment ID 0055-A1.001.010

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 3.3.2 

Requiring 3 samples per day as described in the permit seems excessive and unnecessary. Performance of a particular BMP should not 

vary from day to day if maintained correctly. A representative sample taken less frequently should suffice in determining BMP's 

effectiveness. 

Response 

Refer to Response 3.1. 

Comment ID 0060-A1.001.012

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 3.3.2 

12. Section 3.3.2 - We do not think that the "beginning, middle, and end" of the discharge period is a good way to define when to take the 

samples. How will the owner know when the storm/discharge will end? If they don't know when it is going to end, how do they 

determine the middle? Additionally, once the discharge condition "ends," there will be no flowing water to collect for the sample. We 

recommend that EPA require the owner to collect samples at 2-hour intervals or some similar set duration of time. Also, caution should 

be taken with the caveat that allows the owner to take more than the required 3 samples. How do we prevent them from collecting more 

samples after the peak of flow that will "dilute" down their turbidity average? 

Response 

Refer to Response 3.1. 
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Comment ID 0064-A1.001.028

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.3.2 

Section 3.3.2, page 33 - "You must collect your first sample within the first hour that the discharge begins." 

•This could be very difficult to meet especially if only certain personnel are trained to take samples. Consider only requiring three 

samples every 24 hours during a rain event or, at a minimum, increasing timeframe for initial sample to within 3 hours after the discharge 

begins. 

Response 

Refer to Response 3.1. 

Comment ID 0067-A1.001.012

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 3.3.2 

This section of the CGP establishes a minimum sample collection and analysis for turbidity of three times daily from each outfall when 

discharge is occurring. Discharges during a two-year, 24-hour storm event (4"-6" of rain for Entergy's service area) are exempted from 

the limit during the storm event; however, as written, the numeric limit would apply afterwards even if the site is inundated by 

floodwaters 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.019

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.2 

Target believes that the EPA suggested monitoring frequency is impractical. Target recommends that flexibility be allowed on 

monitoring frequency and when actual samples are collected. 

Target prefers that one sample be collected at the highest intensity of the event, or beginning of the event. This monitoring scheme would 

allow for samples to be collected during first flush and while runoff events are the most intense. Target believes this is the basis for the 

limit and demonstrates BMPs maximum effectiveness. 

Target also is concerned about the ambiguity of permit language in this requirement. What will be the determination for beginning, 

middle, and end of event? How will this requirement be enforced? Will Permittees be penalized if not exact in the timing of collection? 

There are currently no definitions explaining phasing of a storm event and this could become up to the interpretation of the Permittee or 

enforcement official. 

Response 
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Refer to Response 3.1. 

Comment ID 0086-A1.001.015

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 3.3.2 

The proposed CGP requi res the permittee to collect the first sample during the fi rst hour after a discharge begins, and take a minimum 

of two additional samples during the remain ing hours ofthe work day (for normal working hours) that the discharge continues. Secti on 

3.3.4. The three samples must be di stributed in such a way that the beginni ng, middle, and end of the discharge for that day are 

represented. Tri-State beli eves that rainfall events are too sporadic and unpredictable over the course ofa day, and make compliance with 

these requirements impractical in the arid west. Tri-State believes that EPA should provide an alternative sampling methodo logy for 

these situations. 

Response 

Refer to Response 3.1. 

Comment ID 0088-A1.001.010

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 3.3.2 

Among the unrealistic requirements are: 

-- the obligation to collect a minimum of three samples in connection with each storm event from each stormwater outfall (with limited 

opportunity to designate representative outfalls) 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.047

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.2 

In this section, EPA states- 

“You must collect your first sample within the first hour that the discharge begins. 

After you take your first sample (as required in Part 3.3.1), you must take a 

minimum of 2 additional samples (a total of 3 samples) during the remaining 

hours of the work day (for normal working hours) that the discharge continues. 

The 3 samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represented. If the 

discharge continues on the 

subsequent day(s), you must take a minimum of 3 samples per day that there is a 

discharge.” 
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We cannot meaningfully comment because our comment will depend on the turbidity 

limit. And only the EPA knows what that limit is going to be. Requiring multiple samples over a 

specified period of time would create manpower issues and significantly raise the cost of 

stormwater compliance. EPA should allow flexibility for monitoring depending on site 

conditions and preceding data from the site which shows consistently low discharge. 

EPA is proposing to have a sample collected within the first hour that the discharge 

begins. In many cases, a site operator may not be onsite to witness the beginning of a discharge, 

especially if it occurs outside working hours. Therefore, there will be cases where it will be 

impossible to capture discharge within the first hour. NAHB suggests that EPA modify the 

permit to say, “to the extent practical that the first sample be taken during the first hour of 

discharge if it occurs during normal daily operating hours.” 

Likewise, discharge may not commence until the last hour of business. In such 

situations, a single sample taken before the end of the business day should be sufficient. 

Similarly, discharge may not occur until within say, 3 hours until the end of the day. In these 

cases, it is suggested that if the discharge does not commence until within one hour of closing for 

the day, EPA deem a single sample sufficient for that day. If discharge does not commence until 

within three hours of closing, then two samples would be sufficient for that day. In either case, 

a sample would be required the next working morning if discharge were still occurring. 

Response 

Refer to Response 3.1. 

Comment ID 0130-A2.001.022

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 3.3.2 

20. MONITORING. Part 3.3.2 and 4.2.2 require three discharge samples per day that represent the beginning, middle, and end of a 

discharge for that day. Absent a controlled release of stormwater from an engineered structure, an inspector/sampler cannot predict the 

beginning, middle, and end of a discharge for any given day if a discharge is based on a storm event. A site may have multiple discharge 

points. Not every discharge point will have flow cease at the same time. This provision may be workable for developments, such as a 1-2 

acre square which drains to one basin and can discharge under controlled conditions. It does not work well for remote, linear, multiple 

discharge point projects that often characterize transportation projects. 

Response 

Refer to Response 3.1. 

Comment ID 0133-A2.001.026

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 
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Issue Category: 3.3.2 

The requirement that 3 grab samples be collected when a discharge occurs, with the first sample collected within the first hour that the 

discharge begins is impracticable. First, it is difficult to predict when a discharge will occur. Every rain event will not necessarily result 

in a discharge. Additionally, the discharge does not usually occur at the same time the precipitation event begins since some of the 

rainfall is infiltrated and/or diverted. It is also impossible to predict how long a discharge will occur, making infeasible the requirement 

to distribute the 3 samples in such a way that the beginning, middle, and end of the di scharge are represented. While MDT understands 

the need to demonstrate compliance with the proposed turbidity limit by collecting representative samples, the nature of the discharge 

needs to be considered. Unlike traditional wastewater treatment systems that experience a controlled discharge, storm water discharges 

are highly variable and are not easily predictable. Given the magnitude of changes proposed in this CGP, MDT strongly encourages EPA

to provide greater flexibility to demonstrate permit compliance. The proposed sampling frequency cannot be reasonably implemented. 

Instead, MDT suggests that only one representative grab sample be required, with no specification as to the time that the sample be 

collected (i.e. first hour the discharge begins; beginning, middle, and end of discharge; etc.) 

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.024

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.2 

Requiring a set time period of when samples are required can remove variability of sampling and actually make implementation easier, 

but may not fall within normal work hours. 

Response 

Refer to Response 3.1. 

Comment ID 0158-A1.001.014

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 3.3.2 

The permit requires the permittee to collect the first sample during the first hour after a discharge begins and take a minimum of two 

additional samples during the remaining hours of the work day (for normal working hours) that the discharge continues. Section 3.3.4. 

The three samples must be distributed in such a way that the beginning, middle, and end of the discharge for that day are represented. 

Rain events are too unpredictable to be able to comply with these requirements. 

Response 

Refer to Response 3.1. 

Comment ID 0168-A1.001.013

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 3.3.2 
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-- The proposed sampling frequency exceeds the requirements and stated intent of the C&D Rule, and may not be practicable to fully 

implement in many situations. 

> We recommend simply monitoring water quality in the pond and allowing discharge of the pond to receiving waters when the 

measured turbidity meets the numeric effluent limits, with documentation of compliance sampling. 

> Obtaining the first sample within 1 hour and then 2 additional times during the discharge period may be challenging due to site access 

and storm duration. Sampling every two (2) hours would have similar anticipated issues. In areas with high intensity, short duration rain 

events, the storm event may not last long enough to capture the follow-on measurements. In longer duration events, it may not be 

possible to physically access the sample location to obtain a sample. These requirements may require full-time site personnel dedicated 

to sampling during inclement weather; since many sites shut down during these conditions, this WQuid entail additional project 

expenses. 

> The NOAA National Weather Service provides e-list notifications of predicted severe weather and anticipated heavy rain (typically for 

amounts greater than the 2-year, 24 hour event); however, there is very little pre-notification for smaller rainfall events that would trigger 

sampling. This means that Operators may need to sample every time it starts to rain. 

Response 

Refer to Response 3.1. 

3.3.2Q ALTERNATIVE SAMPLING – ONCE EVERY TWO HOURS

Comment ID 0015-A2.001.012

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.2Q 

Q13. 2-hour sampling frequency - Disagree, 2-hour sampling is too stringent. Sampling three times a day seems more reasonable to 

implement. 

Response 

Refer to Response 3.1. 

Comment ID 0021-A1.001.020

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 3.3.2Q 

9. CGP Section 3.3.2 states that you must take your first sample within the first hour that the discharge begins. This new sampling will 

require a specially training person and nephelometer. Arriving to a site within one hour is often times not feasible or practical especially 

in inclement weather conditions. The only means in which this is feasible is if each site has a testing device and person who knows how 

to use it. And this would increase construction cost substantially. 
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Response 

Refer to Response 3.1. 

Comment ID 0025-A1.001.028

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.3.2Q 

Response to EPA's request for comment: 2 hours is defmite1y clearer in terms of implementation. As an example: a contractor that 

usually works until 5pm and a rainfall producing discharge starts at 4pm. Under the 2-hour rule, it is clear that only one sample will be

taken that day. Under the rule as written, should the contractor attempt to take 3 samples in the remaining hour of his work day? 

Response 

Refer to Response 3.1. 

Comment ID 0037-A1.001.031

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 3.3.2Q 

The proposed permit requires three samples per day distributed to capture the beginning, middle, and end of the discharge. Sampling the 

middle and end of the discharge will be easier to schedule for storm events that are the result of a slow moving front moving into the area, 

particularly if the event lasted all day. But for other types of storms, it will be difficult for the operator to determine when the middle of 

the discharge is occurring. The alternative option of requiring samples to be taken once every 2 hours following the first sample would be 

easier to schedule but could be more labor intensive and costly for the operator if the storm event lasted all day. 

During the monsoon season in the southwest, some thunderstorms can be high intensity but of short duration. It will be difficult to know 

how long the discharge will last and thus how to schedule sample collection to capture the beginning, middle and end of the discharge. 

In addition, there may be only one thunderstorm or several separate thunderstorms over the course of a work day. It will be hard to know 

how to schedule the sampling because there is no way to know in advance if there will be another thunderstorm. Furthermore, when the 

thunderstorm is very short in duration, it will be difficult to notify and activate the sampling crew. Utilizing automatic samplers is not 

always feasible due to remoteness of the construction site and vulnerability to vandalism. The alternative option of requiring samples to 

be taken once every 2 hours could result in only one sample being collected during some monsoonal storm events because of the short 

duration (less than 2 hours) of many thunderstorms.

Response 

Refer to Response 3.1. 

Comment ID 0047-A2.001.019

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 3.3.2Q 

Section 3.3,2, page 33 
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Since it is unknown how long a rainfall event will occur, it will be very difficult to determine how to collect the three samples from the 

beginning, middle and end of a rainfall event, and if there will be a discharge or not in the first place. If it rains for two or three days in a 

row and there is discharge each day then three samples must be collected each of those days also. This seems excessive 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.044

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.2Q 

Perhaps 4 hr intervals, starting at beginning of event if personnel are on site. 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.045

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.2Q 

Different storms have different beginning, middle, and end points. This is not practical without extensive flow and storm info. 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.046

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.2Q 

Yes 

Response 

Refer to Response 3.1. 

Comment ID 0065-A1.001.022

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 3.3.2Q 

Section 3.3.2 proposes taking three samples during the course of a day when a discharge begins. The samples must be representative of 

the beginning, middle, and the end of the day. EPA requested comments on the alternative of taking samples every two hours after the 
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initial sample. While EPA's alternative option would generate more samples, it would not be practical to implement. As an initial matter, 

it would be difficult for field personnel to take samples every two hours. Also, it is unclear what personnel should do if the storm stops 

and then resumes later. It is impractical for personnel at a construction site to assess whether the two hour clock should be restarted every 

time it stops raining. Instead, allowing the contractor to determine when the heaviest rainfall is occurring in the middle of the day would 

be more practical and yield more accurate data. Finally, there would be no discernable additional environmental benefit from the 

impractical sampling methodology. 

Additionally, the sampling frequency required under Section 3.3.2 is the same as the frequency required for the initial startup and 

shutdown of a water treatment plant. A construction site is not analogous to a water treatment plant; therefore, there is no rational basis 

for collecting samples at a construction site at this same frequency. 

Response 

Refer to Response 3.1. 

Comment ID 0066-A1.001.035

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 3.3.2Q 

Discussion: Based on information gained from the Texas Transportation Institute (TTI) through their sampling of research projects on 

TxDOT construction locations, utilizing the three sample timing method is adequate to achieve accurate sampling. One at least one hour 

after runoff has occurred and at least two additional samples throughout the duration of the storm. 

Suggestion: Sampling every two hours after a rainfall event is expensive and not scientifically necessary to receive credible findings. 

Modify this requirement to meet an achievable and recognized standard for sampling. 

Response 

Refer to Response 3.1. 

Comment ID 0070-A1.001.007

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 3.3.2Q 

e. Sampling frequency - Again, how effective will this type of sampling frequency be? The sampling frequency may depend on the type 

of control measure utilized, as there could be a difference between sediment basins and other types of control measures as to the 

appropriate time(s) to monitor. 

Response 

Refer to Response 3.1. 

Comment ID 0071-A3.001.032

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 
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Issue Category: 3.3.2Q 

•Part 3.3.2 Sampling Frequency: The sampling requirements will be difficult in Colorado and Western states regardless of which method 

is chosen, because our storms are usually very short in duration. The three sample method will be difficult because it will be challenging 

to predict the duration of the event. The two hour method will not be practical because many storms will be less than two hours, which 

means only a first flush sample will be obtained. For this reason, an alternate version that allows the site to obtain the data for the average 

duration storm for any specific area would be practical. The number of samples and time frame could be derived for that specific area. 

Response 

Refer to Response 3.1. 

Comment ID 0074-A2.001.016

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 3.3.2Q 

There is no evidence which option would be better as representative samples. The sampling frequency specified in the proposed permit 

is practicable. 

Response 

Refer to Response 3.1. 

Comment ID 0077-A1.001.006

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 3.3.2Q 

The required continued sampling of the discharge every 2 hours after a stormwater discharge event would not make sense since the 

heaviest suspended solid loading is during the first few hours of discharge (ie. first flush). It might make sense to continue samples up to 

the first 3 samples then use the average of the 3 for the discharge limit. This would allow time for most systems to activate and yield 

representative discharge values. For discharges that continue after the 3 samples time frame, the storm event would have most likely 

have exceeded the 2 yr 24 hr threshold anyway 

Response 

Refer to Response 3.1. 

Comment ID 0080-A2.001.022

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 3.3.2Q 

Partner Response: As already stated, baseline sampling is both burdensome and costly and in arid areas results in arguably statistically 

unreliable data. The proposed CGP language will require that one or more fully trained samplers either reside at the construction site 

during "business hours" or be readily available to arrive at the site within an hour of the precipitation event with one or more 

nephelometers in hand. In the arid west, despite this significant effort, it is unlikely the sampler will be able to obtain a sample. 
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Response 

Refer to Response 3.1. 

Comment ID 0085-A2.001.015

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 3.3.2Q 

Rockville questions the practicality of requiring three samples from the "beginning, middle, and end" of a stormwater discharge event 

because the duration of events will be highly variable and unpredictable. Therefore, the requirement for sampling at regular intervals 

throughout a discharge event seems more practical. If EPA is concerned that a regular sampling schedule will not provide enough data to 

assess discharges, then EPA should consider more frequent testing or tailoring the CGP to geographic regions (ie. more frequent 

sampling only required in areas prone to frequent short thunderstorms). 

Response 

Refer to Response 3.1. 

Comment ID 0087-A1.001.029

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 3.3.2Q 

In addition to frequency, we are concerned about the specific sampling requirements proposed by EPA. The CGP would require 

permittees to collect a minimum of three samples over the course of each and every storm event, "distributed in such a way that the 

beginning, middle and end of the discharge for that day are represented." Section 3.3.2. This section also requires the first sample to be 

collected within 1 hour of the beginning of the discharge. This assumes a level of predictive ability over the nature and duration of a 

storm that simply does not exist in practice. A permittee will have no way of knowing the mid-point or end of a storm until after the event 

is over. And then, of course, it will be too late to collect the samples prescribed by EPA. The practical result will be to force permittees 

to sample continuously (or nearly continuously) through the storm event, so that they can ensure at least three of their samples meet 

EPA's expectations. Multiplied by each and every outfall, and each and every storm event, this will make sampling the dominant 

exercise for site operators. As another commenter put it, "[f]or a multiple mile linear project, [EPA's sampling requirements] would 

require a small army of inspectors." Comments of Integrys Business Support, LLC, dated June 14, 2011. As proposed, EPA's sampling 

requirements are just plain infeasible. We urge EPA to substantially revise its sampling requirements so that they are both reasonable and 

valuable without undue cost or operational burden. Ideally, EPA should require only a single sample per day during a storm event, if the 

storm is of sufficient duration to enable such sampling. [FN 8] 

[FN 8] We note that a passing thunderstorm of very short duration may not allow such sampling, both because of the short duration of the 

event and safety concerns. 

Response 

Refer to Response 3.1. 

Comment ID 0087-A1.001.046

Author Name: Smith Brooks 
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Organization: Utility Water Act Group (UWAG) 

Issue Category: 3.3.2Q 

Section 3.3.2 (sampling frequency) – Please see above [See Comment ID 0087-A1.001.046]. Also, EPA’s suggested alternative, 

samples taken every 2 hours following 1st sample, would be burdensome and is unrealistic on linear projects where multiple outfalls for 

different disturbed areas may be spread out over a long distance. 

Response 

Refer to Response 3.1. 

Comment ID 0091-A2.001.011

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 3.3.2Q 

11. Fact Sheet Item 13. Part 3.3.2: As a practical matter, the sampling requirement will encourage a few larger discharge points at the site 

as opposed to many smaller discharges. A minimum sampling frequency of 2 hours is recommended. The sampling frequency should be 

adjusted if there is a procedure to meter stormwater out of a storage structure. There should be no penalty (EPA notification) if sampling 

is not possible due to lack of flow offsite. Contractors should be encouraged to employ onsite stormwater management practices. It will 

be very difficult to accurately capture the "middle" and "end" of a discharge event for most storms. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.076

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.2Q 

EPA requested comments on the sampling frequency specified, and on the alternative option of requiring samples to be taken once every 

two (2) hours following the first sample. 

The Draft statesYou must collect your first sample within the first hour that the discharge begins. After you take your first sample (as required in Part 

3.3.1), you must take a minimum of 2 additional samples (a total of 3 samples) during the remaining hours of the work day (for normal 

working hours) that the discharge continues. The 3 samples must be distributed in such a way that the beginning, middle, and end of the 

discharge for that day are represented. If the discharge continues on the subsequent day(s), you must take a minimum of 3 samples per 

day that there is a discharge. 

AGC disagrees with EPA's proposal to require a sample to be collected within the first hour that discharge begins. In some cases, a 

person qualified to perform sampling may not be onsite to witness the beginning of a discharge. Therefore there will be cases where it 

will be impossible to capture discharge within the first hour. AGC suggests that EPA modify this part to read: "To the extent practical, 

and if the rain event occurs during normal operating hours, the first sample should be taken during the first hour of discharge." AGC is 

also concerned about a situation where a discharge does not begin until the last hour of business. It would be impractical to require the 
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site operator to collect three samples in one hour. Similarly, a discharge may not occur until the last two or three hours of the workday. 

To facilitate permit compliance, AGC recommends that EPA require site operators to collect only a single stormwater sample on each 

day when a discharge of more than 0.5 inches leaves the site during normal working hours. Requiring multiple samples over a specified 

period of time would create manpower issues and significantly raise the cost of stormwater compliance. A construction site operator 

could choose to take additional samples on any given day as circumstances may warrant. 

The purpose of sampling should be targeted toward corrective action. There is no purpose in sampling again and again if the site has not 

changed. Once sampling has been done on an area, it is pretty easy to predict what the next sample may look like. If the first sample 

collected from the site shows compliance with the turbidity limit, AGC believes that the site operator should be finished sampling for the 

day. If, however, the first sample collected from the site shows any exceedance of the turbidity limit, the Draft would require corrective 

action. After taken action, the construction site operator would continue to take additional samples (at his discretion) and initiate 

additional corrective action as necessary until the average of all of the samples taken that day meets the compliance limit. (Note that 

AGC continues to prefer a daily average compliance limit.) If the overall daily average of all the samples collected is below the turbidity 

limit, then the site would be in compliance with the CGP. According to the required reporting schedule (preferable quarterly), the site 

operator would submit on his discharge monitoring report the daily average calculation. 

AGC also finds that the logistics of sampling every two hours would be difficult if not impossible on large projects with multiple 

discharge points. Depending on the number and distance between discharge points and condition of access to those points it will be 

unlikely if not impossible to complete all sampling within two hours. 

Response 

Refer to Response 3.1. 

Comment ID 0097-A1.001.010

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 3.3.2Q 

13. 3 samples per day is more than adequate. If the event occurs more than half way throught the work day, then only 2 samples should 

be required. If the event spans multiple days, 2 samples per day (beginning and end of the day) should be sufficient. 

Response 

Refer to Response 3.1. 

Comment ID 0103-A3.001.013

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 3.3.2Q 

In Part 3.3.2 Sampling frequency, EPA describes how often samples are required to be collected to monitor for turbidity. EPA proposes 

that the first sample should be collected with the first hour of discharge and then two additional samples should be collected in such a 

way that the beginning, middle, and the end of the discharge for that day are represented. EPA considers altering the language to require 

that the first sample should be collected during the first hour of discharge and the additional samples should be collected every two hours 

following the first sample. 
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TCEQ requests that the EPA adjust the sampling frequency to allow for additional more practical options in terms of timing of the 

sampling events. TCEQ is of the opinion that attempting to collect samples during the middle and the end of a discharge would likely 

generate situations where the end of the discharge is missed, because it will be difficult to predict when the discharge will cease. TCEQ 

further suggests that EPA provide additional clarification that samples are only required to be collected during normal working hours. 

Response 

Refer to Response 3.1. 

Comment ID 0111-A2.001.011

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 3.3.2Q 

Dow believes that the proposed requirement to obtain three samples per day is burdensome. Flow patterns, unique site geographical 

considerations, variable safety conditions and unpredictable weather all contribute to sampling uncertainty. Another burden is the 

intensive resources required to obtain and then complete analytical field tests within holding times, if applicable. Alternatively, Dow 

believes that a more reasonable requirement would be to obtain one (or more) daily representative samples after at least one hour of 

stormwater flow condition. 

Response 

Refer to Response 3.1. 

Comment ID 0117-A1.001.006

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 3.3.2Q 

The required continued sampling of the discharge every 2 hours after a stormwater discharge event would not make sense since the 

heaviest suspended solid loading is during the first few hours of discharge (ie. first flush). It might make sense to continue samples up to 

the first 3 samples then use the average of the 3 for the discharge limit. This would allow time for most systems to activate and yield 

representative discharge values. For discharges that continue after the 3 samples time frame, the storm event would have most likely 

have exceeded the 2 yr 24 hr threshold anyway. 

Response 

Refer to Response 3.1. 

Comment ID 0123-A2.001.012

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 3.3.2Q 

Comment: Requiring sampling every two hours may result in more instances where at least three samples are not collected during a 

rainfall event. A combination of the two approaches (including language that samples be taken at least every two hours) should be 

considered. 
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Response 

Refer to Response 3.1. 

Comment ID 0126-A2.001.014

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 3.3.2Q 

The CSC believes that the sampling frequency is too prescriptive and not implementable leaving the Operator in a position to provide 

inaccurate data and therefore not very useful. Storms in our semi-arid climate can be very sporadic with short durations and variable 

precipitation. Snowmelt events on the other hand are somewhat continual and fluctuate with the temperature. Neither situation lends 

itself to the categorization of "beginning, middle and end of the discharge". 

A more reasonable approach would be to require one sample per work day when there is a discharge. 

Response 

Refer to Response 3.1. 

Comment ID 0127-A2.001.007

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 3.3.2Q 

Section 3.3.2 

Proposed Language 

You must collect your first sample within the first hour that the discharge begins. After you take your first sample (as required in Part 

3.3.1), you must take a minimum of 2 additional samples (a total of 3 samples) during the remaining hours of the work day (for normal 

working hours) that the discharge continues. The 3 samples must be distributed in such a way that the beginning, middle, and end of the 

discharge for that day are represented. If the discharge continues on the subsequent day(s), you must take a minimum of 3 samples per 

day that there is a discharge. If you are unable to conduct the required minimum number of samples in any one day, you must notify EPA 

of this fact when you submit your monthly report and indicate the reason why the 3 samples were not taken. You may take more than 3 

samples in a given day provided the samples, taken as a whole, are representative of your discharge for that day. You must use all valid 

sample results in calculating compliance with the numeric limit. 

Concern 

Compliance with the requirement will be difficult because of people and equipment. Collecting a minimum of 3 samples a day from 

multiple locations requires a significant amount of time, trained construction staff, and proper equipment. During storm events, 

construction may be halted, and no staff may be available for sampling. It would be difficult to find and hire qualified outside consultants 

(not working solely at the construction site) with the necessary skills and equipment during a storm to perform the sampling at the 
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required frequency. 

Suggested Correction 

Revise the requirement to a single sample at any time during any one storm resulting in runoff. The sampling would only occur during 

normal working hours. If the storm lasts more than 24 hours with no more than a 12 hour break in precipitation, it is still considered one 

storm and would only require one sample from each discharge location onsite. 

Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.016

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.2Q 

LBA does not agree with the sampling frequency contained in the Proposed CGP. The requirement is problematic because it presents a 

significant logistical and financial burden and is unlikely to be an effective tool for initiating corrective action. Sampling and analysis 

requirements are intended to determine if BMPs implemented on a construction site are effective for preventing sediment/silt or other 

pollutants from impacting water quality objectives. Most projects, by design, are not expected to cause or contribute to impacting water 

quality standards or objectives if the non-numeric effluent standards are implemented at the construction site. 

LBA is concerned about the financial burden for turbidity monitoring placed on the construction site owner or operator for the prescribed 

sampling frequency regulation contained in the Proposed CGP. The regimen of sampling throughout the day is excessive and an 

operational and cost burden that should be revisited. 

Members from areas where sampling is required state that it costs $600.00 to $1,000 per day for a consultant to sample stormwater 

discharges and prepare a report and these are not typically cases where samples must be collected every 2 hours. 

An operator will also experience significant cost if the sampling is conducted by the operator's employees. The operator will be paying 

for a full day of labor plus overhead as well as training costs and cost for sampling equipment and supplies. If the first samples of 

discharges indicate that the site is in compliance it may not be necessary during many storms to continue to sample throughout the day. 

The goal of sampling is to determine if the erosion and sediment controls are working effectively. Depending on storm dynamics, the 

first sample taken during the day will provide a good indication whether the erosion and sediment controls are working effectively. It is 

recommended that the sampling frequency be reduced to one sample per discharge point per day as long as the sample results are within 

limits. If the first sample taken at each discharge point is analyzed and in compliance with effluent limits, no further sampling or action 

should be required until the next day, assuming there is a continuing discharge. If the first sample is not in compliance with effluent 

limits or benchmarks based on natural background levels, the up gradient BMPs and area should be inspected and corrective actions 

taken as needed. Monitoring and additional stormwater samples should be taken following the corrective actions to determine if the 

BMPs are working effectively. If the average of the samples taken after the corrective action is within appropriate limits, the site should 

be considered in compliance and no more sampling should be required for the rest of the day. Prescribed sampling throughout the day is 

not necessary where the storm does not increase in intensity, and the requirement should be revised to be more cost effective. 
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Response 

Refer to Response 3.1. 

Comment ID 0145-A2.001.014

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 3.3.2Q 

Requiring sampling each 2 hours would yield a more representative result than the method described here. Allowing the permittee to 

subjectively decide when to sample will result in sampling that minimizes the apparent loss of sediment from the site. 

Response 

Refer to Response 3.1. 

3.3.3 SAMPLING LOCATION. [REQUEST FOR COMMENT]

Comment ID 0015-A2.001.035

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.3 

3.3.3. Discharge points should only include channelized flow. Include guidance on sampling from sedimentation manholes or the back 

end of pond or trap facilities - assume at the point where waters leaves the facility. EPA should also consider requiring a site map 

showing anticipated and planned drainage catchments and associated sample points. 

Response 

Refer to Response 3.1. 

Comment ID 0025-A1.001.029

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.3.3 

As discussed previously, flagging should be reserved for avoidance areas. If we cover our construction sites with flags, they lose their 

impact. I suggest that the monitored discharge points be clearly labeled on a site plan within the SWPPP. 

Response 

Refer to Response 3.1. 

Comment ID 0030-A2.001.024

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 
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Issue Category: 3.3.3 

Section 3.3.3.2, page 34 

What about common detention ponds for a large development with several developers? If this shared BMP contains all of the permittee' 

s (i.e., developer's) discharges, how do you determine non-compliance? 

Response 

Refer to Response 3.1. 

Comment ID 0030-A2.001.025

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 3.3.3 

Section 3.3.3, page 34 

We recommend some flexibility for sites to apply for a variance to use single representative samples for projects that might have a 

significant number of discharge points. For example, under the federal requirements, oil and gas sites are not required to obtain coverage 

under the CGP. However, many states do require oil and gas to obtain state stormwater discharge coverage for construction. This would 

include natural gas fields with hundreds of well pads, access roads, and pipelines. Many well pads are designed to have sheet flow; 

however, there will be some that will have concentrated flows, and collecting samples at every one of these pads would be impractical. 

Another example, is based on large land developments (e.g., subdivisions) where during land development there are limited discharge 

points but after roads and utilities are installed there are a significant number of discharge points. These types of developments should 

have some local detention ponds, but in some portions of the country regional detention is utilized. Sampling each storm sewer inlet 

would be impractical. We recommend variances be able to be apply for from EPA when single representative sampling would likely be 

utilized due to site conditions. 

Response 

Refer to Response 3.1. 

Comment ID 0034-A1.001.010

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 3.3.3 

10. Sampling Location, Storm Water Inlets 

Proposed Requirement/Section Addressed: CGP Section 3.3.3.3, Requirements that discharges to storm drain inlets should be sampled 

where storm water enters the inlet. 

Comment: Samples should not be collected where storm water enters storm drain inlets. 

Discussion: The requirement to collect samples where flow enters storm drain inlets is not consistent with the requirement to sample 

downstream of control measures since most if not all inlet protection measures (filter covers, guards, etc) will preclude sampling where 

flow enters the inlet. Samples should be collected at the outfall or the property line rather than the storm drain inlets. 
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Recommendation: Recommend that the requirement to sample where storm water enters storm drain inlets be deleted. 

Response 

Refer to Response 3.1. 

Comment ID 0037-A1.001.032

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 3.3.3 

EPA should also consider allowing representative sampling for subdivisions/developments. In a large subdivision/development, there 

are innumerable discharge points (i.e., storm sewer inlets) into the storm sewer. For example, at one of our large developments, there are 

more than 19 storm sewer inlets within a 10 acre tract that would need to be sampled if representative sampling was not allowed in the 

permit. It is more than likely that two or more of the storm sewer inlets will have comparable stormwater discharges due to 1) multiple 

inlets receiving stormwater discharges from the same drainage area and 2) the similarities between drainage areas for the inlet (i.e., 

similarities in the type of exposed soils, the slope and the type of stormwater controls used). In addition, it might not be possible to 

sample all of the storm sewer inlets within the first hour of discharge and at the middle and end of the discharge during the short duration 

high intensity storms that occur during the monsoons in the southwest. The Southern Ute Growth Fund recommends that the permit is 

revised to allow representative sampling for subdivisions/development. 

Response 

Refer to Response 3.1. 

Comment ID 0040-A1.001.018

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 3.3.3 

The proposed CGP sampling requirements are particularly unworkable for linear utility project. Overhead utility construction projects, 

for example, have small discrete land disturbance areas (70' x 70' areas are typical for foundation work) with long areas of no disturbance 

between them for the length of the right of way (30 to 100 miles is typical). It takes several days to complete an inspection of all the 

disturbed areas. It is therefore not reasonable to require sampling of all outfalls within the first hour of a rain event and three times a day

for this type of linear construction. Use of representative monitoring as described in Section 3.3.3.4 would still be essential to be able to 

collect samples as required by the proposed CGP. 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.036

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.3.3 

Sampling runoff waters at each inlet is not practical and will be cost prohibitive! • If a storm sewer system discharges into the properly 
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designed SCS, then at the SCS is the only place where sampling should occur. 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.037

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.3.3 

Only if the storm sewer system discharges directly into the nation's water ways should sampling at each inlet occur. 

Response 

Refer to Response 3.1. 

Comment ID 0053-A2.001.023

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 3.3.3 

The Permit language uses the term: "you believe" Consider revising this language to be more rigid, or simply remove these two words 

from the clause. 

Response 

Refer to Response 3.1. 

Comment ID 0060-A1.001.013

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 3.3.3 

13. Section 3.3.3.4 - This section should be updated to require the use of the protocol in 40 CFR 122 if there is more than one "outfall".

Response 

Refer to Response 3.1. 

Comment ID 0061-A1.001.018

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 3.3.3 

We appreciate the Agency's retention in Part 3.3.3.4 of representative sampling for linear construction. This is an appropriate recognition 

of one of the unique characteristics of LCPs. 

We also believe, however, that the final permit should clarify that, to the extent sampling is required for LCPs, sampling should be 
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required only in the area where trenching activities are occurring. This interpretation of the ELG is expressly and cogently supported by 

the following excerpt from Section XIX.A of the preamble to the final rule. 

Monitoring from Linear Construction Activities: EPA believes that the permitting authority should exercise discretion when determining 

the monitoring locations and monitoring frequency for linear construction projects. For instance, the permitting authority might choose, 

for example, to utilize representative sampling at certain discharge locations that are representative of the discharge characteristics of 

other locations. EPA views the use of representative sampling points as being acceptable for linear projects due to the potential unique 

nature of these projects. Because of the size of linear projects, there may be dozens or more discharge points spaced over a large 

geographic area. In addition, accessing certain areas of the project during a storm event (such as areas that have recently been stabilized) 

may not be possible without significant disruption of the stabilization measures in place (such as might occur if it would be necessary to 

drive a vehicle over an area that has been recently stabilized in order to access the discharge point). EPA would generally recommend 

that permitting authorities concentrate on those areas of linear projects that are actively being constructed and not concentrate on areas 

that have been completed and stabilized. An example, for a project such as a pipeline or underground utilities, would be those areas 

where trenching activities are occurring. 

74 Fed. Reg. at 63049, col. 1 and 2 (emphasis added). 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.029

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.3.3 

Section 3.3.3.1, page 34 - "Prior to taking the first sample, you must clearly mark all discharge points on your site with flags, stakes, tape, 

or other visible markers that will last for the duration of your construction activity..." 

•What is the purpose of marking discharge points if they are clearly identified on the detailed site maps and easily located using the 

maps? Suggest deleting this requirement. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.021

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.3 

Target also requests that the EPA further define discharge point. Is it the intent of the EPA to have the Permittee monitor before it leaves 

the operational control and enters waters of the United States or before entering treatment devices such as retention or detention basins?

Response 

Refer to Response 3.1. 
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Comment ID 0086-A1.001.018

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 3.3.3 

The proposed COP sampling requirements are particularly unworkable for linear utility projects. Overhead utility construction projects 

have small discrete land disturbance areas (70' x 70' areas are typical for foundation work) with long areas of no disturbance between 

them for the length of the rightof- way (30 to 100 miles is typical). It takes several days to complete an inspection of all the disturbed 

areas. It is unreasonable to require sampling of the outfalls of such small areas within the first hour ofa rain event, and three times a day 

for this type of linear construction project. Use of representative monitoring, as described in Section 3.3.3.4, should still be provided for 

to be able to collect samples as required by the proposed COP. 

Response 

Refer to Response 3.1. 

Comment ID 0090-A1.001.004

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 3.3.3 

For example, effluent testing for turbidity would be required for all points where storm water could leave the site. This is obviously based 

on the assumption that in a "box" project, there are a limited number of known, identifiable points where effluent would leaves a 

development site, all located within a short distance of one another - typically a few city blocks. In contrast, a linear natural gas project 

affecting ten acres or more would involve a long narrow area only a few feet wide but extending for over 10 miles, crossing varied 

terrain. There could be an absurd number of discharge points to monitor in such a project. Testing all those points would be a waste of 

time and resources that would not lead to a better environmental outcome. It would make far more sense to devote time and resources 

instead to the implementation of best management practices (BMPs) that have been proven to reduce the impact of stormwater from such 

temporary, linear excavation projects. At a minimum, EPA should limit the number of test points to no more than one representative 

point per mile for linear projects. AGA urges EPA to exempt linear projects from such "box" project requirements or allow the use 

alternative BMPs for linear projects. Without such changes, the Draft Permit creates disproportionate and costly impacts on gas utilities 

without providing a commensurate water quality benefit. 

Response 

Refer to Response 3.1. 

Comment ID 0090-A1.001.032

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 3.3.3 

Further, in reference to Part 3.3.3, the nature of linear projects creates the possibility of discharge sampling being required at multiple 

points where stormwater may discharge. For example, the current requirement proposal could be interpreted to impose an onerous 

requirement that sampling be done at any bore pit with an associated soil pile along the project route. Collecting three samples from the 

start to the end of each day, at each such point along the route, would clearly present an unfair, disproportionate burden on pipeline 
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projects, particularly cost-prohibitive for small-scale linear operations. AGA thus urges EPA to recognize that discharge sampling is 

both unnecessary and impractical for non-point source discharges as is the case in linear pipeline projects, exempting linear projects 

from such requirements and reconsidering discharge sampling as a feasible means for non-point source quantitative controls. 

Response 

Refer to Response 3.1. 

Comment ID 0091-A2.001.024

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 3.3.3 

24. Part 3.3.3: Sampling locations. Where would the sampling point be for discharges into a MS4 system where a drain insert is used as 

the last stormwater control? In some cases access may available at a downstream (next man hole) but in many cases the construction site 

discharge will mix with other storm water from outside the construction site when it dumps into the catch basin. Sampling just upstream 

of the stormwater control BMP should be allowed in these cases per 3.3.3.3. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.078

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.3 

In addition, AGC is concerned about a provision in the part of the Draft that states "you must clearly mark all discharge points on your 

site with flags, stakes, tape, or other visible markers that will last for the duration of your construction activity." AGC recommends that 

such markers be used only to mark area of the site that should be avoided; overuse of flags will cause them to lose their impact. (This is 

a problem in other parts of the Draft as well; there are numerous instances where EPA would require the use of flags.) AGC suggests that 

the site operator clearly label on the site plan within the SWPPP all of the discharge points that will be monitored. 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.049

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.3 

The Sampling Location of the CGP states “you must clearly mark all discharge points on 

your site with flags, stakes, tape, or other visible markers that will last for the duration of your

construction activity.” NAHB recommends that such markers be used only to mark area of the 

site that should be avoided; overuse of flags will cause them to lose their impact. NAHB 

suggests that the site operator clearly label on the site plan within the SWPPP all of the discharge 

points that will be monitored. 
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Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.051

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.3 

In section 3.3.3.3 EPA states that if your discharge enters a storm drain inlet, you should 

take samples at the point where stormwater flow enters the inlet. This simply is not practical and 

is not consistent with the requirement to sample downstream of control measures since most, if 

not all, inlet protection measures will not allow for sampling where flow enters the inlet. 

Samples should only be collected at discrete discharge points such as sediment basin outlet 

structures. 

Response 

Refer to Response 3.1. 

Comment ID 0121-A2.001.009

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 3.3.3 

MassDOT supports the permit condition in section 3.3.3.4 that allows for the collection of samples from a single location that is 

representative of other outfalls. This condition is critical for many highway projects that have numerous discharge points, all of which 

are likely to have storm water discharges of similar quality. Without this allowance, significant resources would be expended by 

highway departments to collect redundant data. 

Response 

Refer to Response 3.1. 

Comment ID 0127-A2.001.008

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 3.3.3 

Section 3.3.3 

Proposed Language 

You must take samples of all discharge points where stormwater or allowable non‐stormwater is discharged, except for linear projects as 

defined in Appendix B, which are authorized to take representative samples in accordance with Part 3.3.3.4. 

Concern 
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Samples from all discharge points is unnecessary when there is either a small portion of the site (less than 0.5 acres) or a 

non‐concentrated overland flow. 

Suggested Correction 

Revise to require sampling for all concentrated flow discharge points that represent at least 0.5 acres tributary area. 

Response 

Refer to Response 3.1. 

Comment ID 0146-A1.001.005

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 3.3.3 

The only way to do this would be to equip my inspectors with manhole cover lifters to lift the grates that weigh 80 - 120 lbs. If 

stormwater inlet protection is required as proposed in the draft permit, the inspector would have to remove or move the inlet protection in 

order to access each grate, and replace it after the sampling is complete. With the number of storm drain inlets on some sites, this would 

take a full day to sample just once. Most stormwater that enters an inlet is sheetflow and shouldn't be subject to sampling. If the 

stormwater then drains to a stormwater pond that should have a protected outlet, then this requirement is particularly redundant. This 

requirement should be eliminated. 

Response 

Refer to Response 3.1. 

Comment ID 0146-A1.001.011

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 3.3.3 

Water sampling should be conducted upstream and downstream of outfalls at least once per month within 24 hours of rainfall. The 

sampling locations and protocol should be identified on the SWPPP. There should be at least two sampling locations per receiving water.

Response 

Refer to Response 3.1. 

Comment ID 0158-A1.001.016

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 3.3.3 

The proposed CGP sampling requirements are particularly unworkable for linear utility projects. Overhead utility construction projects, 

for example, have small discrete land disturbance areas (70' x 70' areas are typical for foundation work) with long areas of no disturbance 

between them for the length of the right of way (30 to 100 miles is typical). It takes several days to complete an inspection of all the 
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disturbed areas. It is therefore not reasonable to require sampling of all outfalls within the first hour of a rain event and three times a day 

for this type of linear construction. Use of representative monitoring as described in Section 3.3.3.4 would still be essential to be able to 

collect samples as required by the proposed CGP. 

Response 

Refer to Response 3.1. 

3.3.3Q REPRESENTATIVE SAMPLING OTHER THAN LINEAR

Comment ID 0015-A2.001.013

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.3Q 

Q14. Representative sampling - Agree. EPA should consider allowing use of representative sample areas for sites over 10 acres or 

having over 20 discharge points, whether they are linear or not. 

Response 

Refer to Response 3.1. 

Comment ID 0034-A1.001.009

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 3.3.3Q 

9. Sampling Location, Representative Outfalls 

Proposed Requirement/Section Addressed: CGP Section 3.3.3, Requirements for all discharge points to be sampled except for linear 

projects where representative outfalls may be sampled. 

Comment: Operators should be allowed to sample representative outfalls for all sites, not just linear projects. 

Discussion: The requirement to collect samples from all discharge points is overly burdensome since sites above the threshold (10 or 20 

acres) would have many discharge points. These sites should be allowed to sample representative outfalls as linear projects are afforded 

this option as well as storm water discharges associated with industrial activity in the EPA MSGP. Outfalls with the same sediment 

controls could be grouped together to reduce the sampling burden. 

Recommendation: Recommend EPA extend the option to sample representative outfalls to all projects. 

Response 

Refer to Response 3.1. 
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Comment ID 0047-A2.001.020

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 3.3.3Q 

Section 3.3,3, page 34 

Xcel Energy appreciates allowing a single representative sample location for linear type projects and recommends EPA allow for 

variance requests for other types of projects. 

Response 

Refer to Response 3.1. 

Comment ID 0055-A1.001.011

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 3.3.3Q 

Representative samples for linear projects should be allowed. Too much testing could begin to dictate BMP selection and result in a 

reduction of water quality. We recommend maintaining flexibility in testing procedures for linear projects and projects that have 

multiple outlets. 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.047

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.3Q 

Portions of project may be linear. If a contractor selects a representative sample location, it will be the cleanest. Perhaps select the 

discharge point with the highest amount or rate of discharge. 

Response 

Refer to Response 3.1. 

Comment ID 0065-A1.001.023

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 3.3.3Q 

Section 3.3.3.4 proposes to allow representative monitoring (using a single representative sample location for more than one discharge 

point) for linear-type projects. The use of representative monitoring should not be limited to linear sites. In many cases, requiring more 

than just one representative sample point on a non-linear project is redundant. For example, if the contractor is installing 130 miles of 

transmission line along a river and has to disturb soil every 300 feet for the tower foundations, the discharge points and existing 
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vegetation could be identical. 

Response 

Refer to Response 3.1. 

Comment ID 0070-A1.001.008

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 3.3.3Q 

f. Sampling locations - Alcoa agrees that the permit should allow for sampling one outfall to cover multiple discharge points, if the 

results would be representative of those multiple discharge points. 

Response 

Refer to Response 3.1. 

Comment ID 0074-A2.001.017

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 3.3.3Q 

The proposed permit should allow the use of representative sample locations for non-linear and linear-type projects. If the use of 

representative sample locations for projects is not allowed, the sampling, testing, and reporting burden for these owners/operators would 

be greatly increased. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.020

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.3Q 

Target believes that the representative monitoring allowance should be more expansive. Current permit language only allows for linear 

certification. Target believes that if there is uniformity to site conditions (i.e. slope, BMPs, activities) that this certification should be 

afforded because discharges are similar and not monitoring all discharges does not provide additional environmental harm. 

Large sites in acreage will be conducting the monitoring per the C & D rule, and by allowing for representative monitoring it makes the 

monitoring requirements more feasible. 

Response 

Refer to Response 3.1. 

Comment ID 0080-A2.001.024
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Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 3.3.3Q 

Partner Response: In arid areas, the question remains as to how to conduct sampling if a construction site is discharging by sheet flow. 

The difficulty of obtaining any sample from an arid region construction site would suggest that representative monitory is applicable 

here. Any baseline sample obtained should be considered a representative sample for the entire construction site for all arid sites not just 

limited to linear-type project sites. 

The Partners also recommend that the EPA develop specific guidance and document parameters for allowances to ensure that the 

concept of representative monitoring is thoroughly understood and implemented by the regulated community under the proposed CGP. 

Response 

Refer to Response 3.1. 

Comment ID 0085-A2.001.016

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 3.3.3Q 

Rockville finds the CGP's guidance on when operators may use representative sampling vague and subject to potential abuse. EPA 

should provide concrete guidance about what constitutes adequate "similarities of the exposed soils, slope, and type of stormwater 

controls used" sufficient to justify representative sampling. 

As noted in previous comments, the sampling requirement will help ensure that operators have adequate incentive to maintain all 

sediment control devices. Where sampling is limited to a representative point; operators may only feel compelled to maintain the 

sediment controls associated with the sampling point. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.077

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.3Q 

EPA has indicated that it would prefer to limit the use of representative monitoring (allowing a single representative sample location for 

more than one discharge point) to linear type projects. AGC feels very strongly that EPA also should allow representative sampling for 

large non-linear projects if the operator can document sufficiently within its SWPPP that representative sampling is warranted. 

For example, the Washington state Department of Ecology handbook "How to do Stormwater Monitoring: A guide for construction 

sites" states that permitees are "require[d] to collect samples that are representative of the discharge from the construction site. A 

representative sample means the sample is similar in flow and characteristics (such as color, suspended soil, etc.) to the stormwater 

running off the site." The state CGP allows permitees to choose how to take the representative sample: 1) a single grab, 2) a 

time-proportional or 3) a flow-proportional sample.
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Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.050

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.3Q 

NAHB also recommends that EPA allow representative sampling for all projects. For

example, it may be feasible to require a certain percentage of the stormwater discharge to be 

sampled. There are multiple types of projects that have multiple discharge points. In such cases 

it is very costly to sample every discharge point. Depending on the size of the site and the 

number of discharge points compliance with the monitoring provisions will incur significant 

manpower. Therefore, EPA should allow representative sampling for large projects if the 

developer can document sufficiently within its SWPPP that representative sampling is warranted. 

Response 

Refer to Response 3.1. 

Comment ID 0097-A1.001.011

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 3.3.3Q 

14. There should be a limit as to the separation distance of sampling points on linear projects before they can be combined into 

representative sampling. 

Response 

Refer to Response 3.1. 

Comment ID 0103-A3.001.014

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 3.3.3Q 

In Part 3.3.2 Sampling location, EPA proposes to require that samples be collected at all discharge points except for linear projects, 

where representative monitoring may be used. EPA's preference is to limit the use of representative monitoring, but believes the use of 

representative sampling points are acceptable for linear projects due to the potential unique nature of these projects. EPA also believes 

that it might not be feasible to monitor all outfalls on linear projects. 

TCEQ prefers that the EPA provide the flexibility of sampling one or more outfalls that are considered substantially identical to other 

outfalls at the site, provided that the operator can demonstrate that the discharges are substantially similar. 

Response 
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Refer to Response 3.1. 

Comment ID 0105-A2.001.013

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 3.3.3Q 

 There is no apparent justification for the Draft CGP's exemption from full turbidity sampling of discharges linear construction 

projects, especially in light of the proposed change in the Draft CGP that eliminates a related exemption that exists in the current permit. 

Contrast Draft CGP at Part 3.3.3.4 (permitting representative sampling rather than sampling of all discharge points) with Draft CGP at 

Part 5.1.4. Industry concern that such sampling is impractical is not a legitimate basis to avoid collection of the basic data by which 

compliance with the permit is measured. 

Response 

Refer to Response 3.1. 

Comment ID 0123-A2.001.013

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 3.3.3Q 

Comment: Representative monitoring should be limited to linear projects only. 

Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.017

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.3Q 

The Proposed CGP should allow representative sampling for other types of construction projects as it allows for linear projects. Larger 

traditional construction projects can have similar size and distance characteristics as linear projects. For example, if a project drains to an 

MS4 system in an adjacent street, it may have many of the same features of a linear project, that is multiple discharge points from a 

multitude of small catchments. 

There are situations where the operator is not able to sample at a discernable discharge point downstream of the inlets. In one case, a 

member stated that its site discharged into a closed MS4 system (no access manhole was available) and he was not able to sample at the 

point where the discharge actually leaves the site. The member was required to sample up to 14 drainage inlets within the site that fed the 

closed system since they were all determined to be discharge points. The conditions and discharges on the site were similar. The ability 

to conduct representative sampling (e.g., a subset of the locations) would be a prudent option in cases such as this. LBA supports the 

ability of representative sampling to represent multiple discharge points and suggests that the permit include such a provision. This 

provision could be implemented by permitting the SWPPP to allow for careful consideration of the various discharge points and allow 

representative sampling where appropriate. 
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Response 

Refer to Response 3.1. 

Comment ID 0145-A2.001.015

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 3.3.3Q 

We agree that representative monitoring should be limited and direct monitoring should be assumed to be the appropriate way to monitor 

discharges. The variability of soils, their distribution, topographical differences, differences in construction/development activities at 

specific locations, and differences in choice and maintenance of stormwater control efforts are probably too large to appropriately 

assume representative monitoring will provide a reasonable estimate of the impacts of stormwater discharges. 

Response 

Refer to Response 3.1. 

3.3.4 SAMPLING DISCHARGES CONSISTING OF STORMWATER 

ORIGINATING OUTSIDE YOUR CONSTRUCTION SITE.

Comment ID 0076-A1.001.022

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.4 

Target believes that the language provided for run-on requirements is not clear. 

Target requests that there be waivers from monitoring obligation or adjusted monitoring values when run-on is already exceeding the 

numeric limits. Target understands the obligation to divert or treat run-on to maximum extent feasible, but does not want to exceed an 

effluent limit for discharges originating from off-site. Target would like clarification on what the Permittee obligations are for run-on 

discharges which are largely contributing to numeric limit exceedances. 

Response 

Refer to Response 3.1. 

Comment ID 0090-A1.001.006

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 3.3.4 

Under these conditions, the "source" monitoring and inspection methods in the Draft Permit unfairly burden utilities with the 

responsibility to measure and report pollutant events caused by others. 

Response 
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Refer to Response 3.1. 

Comment ID 0115-A2.001.019

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 3.3.4 

3.3.3.4. Sampling discharges consisting of stormwater originating outside of your construction site. National Grid is in support of this 

part. Because of the linear nature of utility line ROWs, there are frequent circumstances where stormwater and streamflow cross the 

ROW. Clarification of the sampling requirements in instances like this is helpful. 

Response 

Refer to Response 3.1. 

Comment ID 0168-A1.001.008

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 3.3.4 

-- Benchmark sampling refers to sampling up and downstream of the project site, and monitoring for an exceedence of the determined 

benchmark value, the numeric limit value, or preferably, a difference of about 50 units between the up and downstream boundaries of the 

site. Section 3.3.4 of the permit specifically excludes sampling of onsite run-on from other sources. In areas with multiple projects or 

other watershed disturbances, run-on may be the primary source of off-site pollutant transport onto the site. Experience with water 

quality sampling in areas of the southwestern United States with sediment TMDLs indicates that sampling run-on and comparing results 

with samples from the site runoff often provides a better measure of specific site impacts, than discharge monitoring alone. This is 

particularly true where the geomorphology of the receiving stream is based upon ephemeral streams with arroyo-type sediment transport 

processes. 

Response 

Refer to Response 3.1. 

3.3.5 SAMPLING PROTOCOLS

Comment ID 0032.001.003

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.5 

In section 3.3.5.1, what situations would require auto sampling? Could in-situ measurement replace manual sampling and measurement?

Response 

Refer to Response 3.1. 
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Comment ID 0049-A1.001.038

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.3.5 

This section should be eliminated. EPA does not need to be mandating procedures. 

Response 

Refer to Response 3.1. 

Comment ID 0075-A2.001.025

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 3.3.5 

The sampling protocol of sampling the horizontal center of a storm water channel, again would place an inspector in hazardous location 

during Spring runoff in mountain streams due to rapids and poor footing on rock. "Shoreline reach" alternative suggested for personal 

safety. 

Response 

Refer to Response 3.1. 

Comment ID 0110-A1.001.012

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 3.3.5 

Much more detailed descriptions of how the sample is to be collected with examples of the typical conditions that will occur needs to be 

written in here, otherwise the results will vary to much. Has a study been performed with this described protocol with various sample 

personnel and locations to see how much variability there is? If so, this should be presented. If not, this will be a big problem. Is 

anybody allowed to collect the samples or does it need to be a trained person? I would suggest requiring a trained person that has field 

knowledge of the protocol. 

Response 

Refer to Response 3.1. 

Comment ID 0133-A2.001.027

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 3.3.5 

MDT suggests including a provision specifying when sample collection is not feasible. It has been MDT's experience that water depths 

less than I" do not allow for representative sample collection. It should also be noted that the provisions specified in Section 3.3.5.2(c) do 
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not apply to automatic samplers. 

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.025

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.5 

Various references in this section and others refer to grab samples, sampling container, etc. EPA should encourage the collection of in 

situ measurements within the flow stream with turbidimeters where possible, rather than the collection of measurements in the field from 

separate containers or subsamples. Sub-samples can bias turbidity readings due to the difficulty in resuspending large sediment particles.

Response 

Refer to Response 3.1. 

Comment ID 0168-A1.001.012

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 3.3.5 

-- Section 3.3.5 contains very prescriptive language for sampling site discharges to an adjacent unlined channel. Physical logistics may 

form challenges to meeting this requirement for large ponds and large outfall channels. Sampling from the horizontal and vertical 

midpoint of the outlet may not be consistent with Section 2.1.4.4a that requires the outlet structure to draw from the surface of the pond. 

Please coordinate and clarify these sections for consistency. Please streamline these measures to be more generally applicable to multiple 

drainage system configurations and to address discharges to other manmade drainage features. 

Response 

Refer to Response 3.1. 

3.3.6 SAMPLE ANALYSIS

Comment ID 0032.001.004

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.6 

In section 3.3.6, no consideration is given to inherent interferences from color and particle absorbance. Measurement technologies that 

account for these interferences should be used. These are ratio technologies, which would provide more accurate results for these types 

of samples versus single detector systems, e.g. nephelometers. 

Response 
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Refer to Response 3.1. 

Comment ID 0032.001.005

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.6 

The settling of particulates can significantly skew measurement results. The combination of settling algorithms and prescriptive 

measurement protocols can reduce this effect and produce more accurate results. Modern portable turbidimeters include settling 

algorithms in the software. 

Response 

Refer to Response 3.1. 

Comment ID 0032.001.006

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.6 

Most portable turbidimeters on the market have an upper measuring limit of 1000 NTU, which construction effluent samples may 

exceed. How does the agency recommend addressing these samples that are above the measuring limit of the instrument? 

Response 

Refer to Response 3.1. 

Comment ID 0032.001.007

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.6 

Most turbidity methods (EPA 180.1) were designed for low level turbidity measurement. There is one consensus-approved turbidity 

method that focuses on high level measurement. ASTM D7315 provides protocol that will lead to more accurate sampling and 

measurement performance. We suggest that the agency reviews this sampling and measurement protocols in this document to provide 

additional guidance. 

Response 

Refer to Response 3.1. 

Comment ID 0035.001.001

Author Name: Sadar Mike 

Organization: Hach Company 

Issue Category: 3.3.6 

In section 3.3.6.2a, daily calibration of the turbidity meter is required. Current technologies that incorporate ratiotechniques compensate 
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for potential optical system instability, therefore daily calibration is not required. Regulations, suchas EPA 180.1, state that calibration is 

only necessary on a quarterly basis. Requiring daily calibration could imposeunnecessary additional burden on permittees. We suggest 

that instead of requiring daily calibration, the manufacturer's recommendation for calibration frequency befollowed, and daily 

verification be performed. If the verification fails within a specified acceptance range, recalibrationshould be required. 

Response 

Refer to Response 3.1. 

Comment ID 0049-A1.001.039

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: 3.3.6 

This section should be eliminated. EPA does not need to be mandating procedures. 

Response 

Refer to Response 3.1. 

Comment ID 0060-A1.001.014

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 3.3.6 

14. Section 3.3.6.1 - Add language that the analysis time must not exceed 48 hours from the time of collection. This section should be 

updated to include a general requirement that all sample analysis be done by 40 CFR 136 approved methods and all associated Quality 

Control must be met. 

Response 

Refer to Response 3.1. 

Comment ID 0060-A1.001.015

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 3.3.6 

15. Section 3.3.6.2.a - Add language about using calibration solutions that meet the meter manufacturer's specifications and are not 

beyond their expiration date. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.023

Author Name: Steadman Marc 

Organization: Target Corporation 
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Issue Category: 3.3.6 

Sample Analysis; Calibration Target believes the requirement to recalibrate turbidimeter before each event is inappropriate for permit 

language. Instead, Target requests that this language be included in permit guidance. Manufacturer specifications are detailed to assure 

that the monitoring meter is operating properly and therefore following USGS requirements may be duplicative. 

Response 

Refer to Response 3.1. 

Comment ID 0110-A1.001.013

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: 3.3.6 

Need to better define how to measure the actual NTU value. Settling time? Organics, etc. It would seem to me that a standard needs to 

be developed for everyone to follow prior to this being implemented, otherwise the results will be meaningless and not comparable. 

Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.034

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.6 

EPA is requiring calibration of the turbidity meter prior to each day it is used. However, there are technologies that do not require daily 

calibration. For example, the Hach 2100P Turbidimeter does not require standardization before every measurement as some 

turbidimeters do. Periodically, the instrument calibration is checked using the appropriate Gelex Secondary Standard. If the reading is 

not within 5% of the previously established value, then recalibration is recommended. Requiring calibration before daily use is time 

consuming and costly. 

LBA suggests that the turbidimeter used for field analysis be required to be calibrated per manufacturer's recommendations. 

Response 

Refer to Response 3.1. 

Comment ID 0143-A2.001.002

Author Name: Bashel Renee 

Organization: Small Bus. Ombudsman/Small Bus Env Asst Prog 

Issue Category: 3.3.6 

The proposed requirement may be expensive and complex for the small business operator. The sampling process, manufacturers' 

recommendations, equipment calibration, formulation of calibration standards, employee training, and laboratory certifications make the 

requirements for sampling analysis overly burdensome to the typical contractor, and will likely result in a competitive advantage for the 

larger businesses with more resources available. 
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A turbidimeter will cost a minimum of approximately $1000, and there are additional costs associated with operating and maintaining 

the equipment. Affected entities must become certified on the use of the equipment, and keeping the equipment in good working order 

may be difficult, particularly for those not accustomed to working with sensitive scientific monitoring equipment. 

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.026

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.6 

The calibration of a nephelometer or turbidimeter daily discourages the use of extended deployment of such instrumentation. Extended 

deployment would allow the permittee to obtain a much clearer picture of the quality of discharges from a construction site for the entire 

dewatering period after a storm event. Large storm events often take days to drain and extended" deployment would decrease the number 

of needed field visits. Various quality control procedures could be put into place to ensure that the field data is highly reliable at the onset 

and conclusion of the collection period. 

I don't think you can comply with 40 CFR 136 and use a nephelometer or turbidimeter as stated under 3.3.6 as "musts". 40 CFR 136 is for 

the traditional grab sampling and laboratory analysis. 

Response 

Refer to Response 3.1. 

3.3.7 RECORDING OF SAMPLING RESULTS

Comment ID 0015-A2.001.036

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.7 

3.3.7 Sampling results should also include the types of discharge (stormwater runoff or non-stormwater discharge) and a notation of the 

size or amount of area draining through the discharge point. Revision to the area drainage map should also be required. 

Response 

Refer to Response 3.1. 

Comment ID 0046-A1.001.021

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 3.3.7 

The Department would like more guidance. What happens when discharge ceases right after a short duration event? If the monitor looks 
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and fmds there is no discharge, does that equate to a zero NTU reading. 

Response 

Refer to Response 3.1. 

Comment ID 0060-A1.001.016

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 3.3.7 

16. Section 3.3.7 - Update section to require measurements to be taken and recorded per 40 CFR 136 approved methods including all 

associated QA/QC. The details of the daily instrument calibration should also be recorded in the field log. 

Response 

Refer to Response 3.1. 

3.3.8 ACTIONS REQUIRED IF YOU VIOLATE NUMERIC TURBIDITY 

LIMIT. [REQUEST FOR COMMENT]

Comment ID 0031-A2.001.006

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: 3.3.8 

EPA should set up a structured and simplified reporting system for permitees who are required to meet the numeric effluent limit. The 

Draft permit requires that permittee report exceedances to EPA of the Numeric Effluent Limit within 24 hours. There is concern that 

such a reporting scheme does not result in any additional protection to the environment or the public and should be omitted. It is more 

appropriate to require corrective action within a certain period of time and quarterly reporting of the numeric turbidity values. 

Response 

Refer to Response 3.1. 

Comment ID 0040-A1.001.016

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 3.3.8 

If EPA retains the turbidity limit, reporting exceedances (Section 3.3.8) should be conducted per existing Notice of Non-compliance 

mechanisms. A release of turbidity from a construction site likely would not be categorized as endangering health or the environment, 

but would more probably be categorized as an upset condition. Reporting these upset conditions and the corrective actions would fall 

under the normal requirements of reporting on the regular monthly report and not a 24-hour notification requirement as would be 

required for those incidents endangering health. 
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Response 

Refer to Response 3.1. 

Comment ID 0045-A1.001.007

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 3.3.8 

3.3.8 - Concerning what level of turbidity limit upset should trigger the direct notification of EPA within 24 hours, we recommend that if 

either (a) the limit is exceeded by twice the turbidity, or (b) the limit is exceeded more than two times within a 24-hour period, EPA be 

directly notified. 

Response 

Refer to Response 3.1. 

Comment ID 0046-A1.001.020

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 3.3.8 

It is reasonable to require notification of a violation of the ELG within 24 hours. In order to limit the amount of information coming into 

EPA, EPA may want to have any sampling that was within compliance stay on site. 

Response 

Refer to Response 3.1. 

Comment ID 0055-A1.001.012

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 3.3.8 

The NOI applicant is responsible to manage and maintain BMP's for compliance with the permit limits. Reporting individual 

occurrences to the EPA could involve additional regulatory input in corrective actions and result in slower response times. 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.030

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.3.8 

Section 3.3.8, page 36 - Full "Actions Required if You Violate Numeric Turbidity Limit" section 

•This section seems to discount the importance of background conditions in the receiving water body. Suggest that background 
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conditions be accounted for as they can have significant impacts on seasonal water quality. 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.031

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.3.8 

Section 3.3.8, page 36 - Full "Actions Required if You Violate Numeric Turbidity Limit" section 

•This section seems to not consider higher initial readings associated with a first flush of the system nor does it account for impacts of 

storm duration and potential impacts of time on water quality. Suggest this section be reworded to consider both impacts. 

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.027

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.8 

1. Would have to Scientifically establish what "extremely high" is in relation to the final turbidity limit. Arbitrarily selecting two times 

greater is not an effective way to determine this. Research has shown that common NTU discharges from construction activities are well 

above 1,000 NTU. 

2. There should not be a threshold for immediate notification to EPA. Highly intense events will create frequent exceedances depending 

on on-site soils. The permittee should record exeedances for quarterly_ reporting. 

Response 

Refer to Response 3.1. 

Comment ID 0159-A1.001.012

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 3.3.8 

As presented, the monitoring, inspection and reporting requirements are not practical. Allowing seven days to discover, design, review, 

approve and install additional practices is unreasonable. The permit is not clear about what information EPA will be immediately 

notified or what purpose it will serve to notify EPA. Moreover, the permit requires 30 day reports and time is better spent on corrective 

actions rather than reporting. The permit requires monitoring from discharge points instead of from the regulated waters. Turbidity 

violations are only violations if the receiving waters are in excess of standards and measurements should be done only at these entry 

points to the waters. Readings at BMP discharge points are not necessary valid in this regard. Further, this provision must account for 

receiving waters that are already in excess of standards prior to the permitee activity which is not unusually if prior or offsite uses are 
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already developed without controls. How are these situations to be addressed? Projects employing Environmental Site Design will not 

have discharge points and we believe the relevant turbidity measurement is in the regulated waters. This monitoring protocol seems 

inconsistent with the discharge into a storm sewer which assumes discharge is at the point where regulated waters are reached prior to 

discharge into impaired waters. 

Response 

Refer to Response 3.1. 

3.3.8Q IMMEDIATE NOTIFICATION FOR EXTREMELY HIGH 

TURBIDITY LEVELS

Comment ID 0015-A2.001.014

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.8Q 

Q15. Immediate notice of high turbidity - Agree, seems reasonable. 

Response 

Refer to Response 3.1. 

Comment ID 0024-A2.001.017

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 3.3.8Q 

EPA should revise Part 3.3.8. to require permittees to take immediate corrective actions, and to notify EPA immediately when the 

turbidity limit is violated. Immediate notification should be required regardless of the level of exceedance. Repeated violations due to 

only slightly elevated turbidity levels can be just as detrimental to water quality as single violations that are extremely high. Accordingly, 

we disagree with an approach that would establish a numeric limit below which the immediate notification of a violation would not be 

required. 

Response 

Refer to Response 3.1. 

Comment ID 0025-A1.001.030

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.3.8Q 

Response to EPA's request for comment: Would the exception outlined in 3.1.2.1 (storm in excess of a 2 year, 24-hour) apply as an 
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exception for notification? In order to be consistent and thereby prevent confusion, the time line for this notification should be the same 

as required in 6.6. 

Response 

Refer to Response 3.1. 

Comment ID 0037-A1.001.033

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 3.3.8Q 

Part 6.6 of the permit already requires that the operator notify the EPA Regional Office by the end of the next full work day after 

discovering an occurrence of any of the conditions in Part 6.2.2. One of the conditions of Part 6.2.2 is when turbidity samples indicate 

that a discharge exceeds the numeric turbidity limit. Therefore, EPA's request to solicit comments on whether the permit should require 

an immediate notification of EPA (e.g. within 24 hours) for extremely high turbidity levels (and for what threshold value) is moot 

because the permit already specifies when and at what threshold the notification is required. Part 6.6 would need to be modified if Part 

3.3.8 was modified to specify a reporting deadline and turbidity level different from what is currently proposed in Part 6.6. The Southern 

Ute Growth Fund supports retaining the existing requirement in Part 6.6 to report by the end of the next day if the turbidity sample 

exceeds the numeric turbidity limit. 

Response 

Refer to Response 3.1. 

Comment ID 0047-A2.001.021

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 3.3.8Q 

Section 3.3,8, 

If you violate a numeric turbidity limit you should allow for more than 24 hours reporting time for an exceedance. Xcel Energy 

recommends reporting within 72 hours. If there are no exceedances quarterly reporting rather than monthly reporting should be allowed.

Response 

Refer to Response 3.1. 

Comment ID 0061-A1.001.015

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 3.3.8Q 

The EHSCP believes that a 24-hour notification requirement is not appropriate in this context. First, events are highly transitory and it is 

unlikely that such immediate notification would enable EPA to respond to the site in a meaningfully timely manner. In addition, over 

reporting and potentially waste of Agency resources may result when monitoring results are initially reported as violations but are later 
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found not to be subject to the turbidity limit because the even sampled was larger than the 2 year/24hour cutoff. Finally, it is a far better

investment of the energies of site personnel to respond to any apparent exceedance than to repair to their construction base to issue a 

notification. On balance, while more information often is better, the EHSCP believes that immediate notification in this case is not 

appropriate. 

Response 

Refer to Response 3.1. 

Comment ID 0062-A1.001.048

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 3.3.8Q 

How about applicable to discharges to waters of the US if to an intermediate canal or pond some distance from surface waters may not 

have significant impact. 

Response 

Refer to Response 3.1. 

Comment ID 0065-A1.001.024

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 3.3.8Q 

Section 3.3.8 requires 24-hour notification regarding turbidity exceedances. EPA requested comment on whether a permit should require 

an immediate notification to EPA for extremely high turbidity levels (e.g., within 24 hours). CCWC does not support this proposal 

because situations where there is high turbidity are not emergencies or spills that require immediate notification to EPA. Rather, CCWC

would support benchmark monitoring. The sampling frequency for benchmark monitoring under 4.2.2.1(b)(ii) is sufficient enough and 

will capture any high turbidity levels. 

Response 

Refer to Response 3.1. 

Comment ID 0070-A1.001.009

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 3.3.8Q 

g. Exceeding the numeric turbidity limit - Aside from Alcoa's concerns with the numeric turbidity limit itself, Alcoa does not believe 

there is a need to include additional notification requirements for exceeding any limit other than those that are currently a part of the 

NPDES permitting program found at 40 CFR 122.

Response 

Refer to Response 3.1. 
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Comment ID 0071-A3.001.033

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 3.3.8Q 

•Part 3.3.8. Actions Required if You Violate Numeric Turbidity Limit. Immediate notification of extremely high turbidity levels will not 

give an overall representation of the site conditions. Requiring notification to EPA would add another administrative step that could be 

missed due to other responsibility constraints. The information collected can be required to be documented on site with the other permit 

information and be accessible during regulatory inspections. If reporting to EPA is a requirement it could be accomplished during a 

semi-annual submittal. 

Response 

Refer to Response 3.1. 

Comment ID 0074-A2.001.018

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 3.3.8Q 

We disagree with the requirement of 24 hour notification for extremely high turbidity levels. Additional notifications would present an 

unnecessary burden on the permitting agencies and regulated communities. The DEQ would support some alternatives that allow 

permittees to submit written notifications along with the site's normal reporting documents (i.e. as a cover letter to accompany the site's 

monthly DMR submission). 

Response 

Refer to Response 3.1. 

Comment ID 0077-A1.001.007

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 3.3.8Q 

EPA should only be notified after a response of the contractor has taken place and additional corrective measures have been 

implemented and the discharge continues to exceed an acceptable value by more than 3 times the given NTU 

Response 

Refer to Response 3.1. 

Comment ID 0080-A2.001.025

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 3.3.8Q 

Partner Response: 48 or 72 hours is a more reasonable notification period if the turbidity limit is exceeded. The Partners suggest that a 

measured numeric value of two or 2.5 times the C&D ELG numeric turbidity limit would be indicative of an "extremely high turbidity 
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level." The statistical unreliability in taking theses required samples suggests a higher threshold for reporting. The question remains as to 

what the final C&D numeric turbidity value will be. That value will certainly influence the City's recommendation to EPA on reporting 

time frames and criteria. The City is also interested in knowing what the EPA's intended use of this information is. Will the agency use it 

for compliance purposes? 

Response 

Refer to Response 3.1. 

Comment ID 0085-A2.001.017

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 3.3.8Q 

Yes, EPA should require operators to report these types of permit violations within 24 hours. 

Response 

Refer to Response 3.1. 

Comment ID 0086-A1.001.016

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 3.3.8Q 

!fEPA retains the turbidity limit, reporting exceedances (Section 3.3.8) should be conducted per existing Notice of Non-compliance 

mechanisms. A release of turbid ity from a construction s ite likely would not be categori zed as endangering health or the environment, 

but would more probably be categorized as an upset condition. Reporting these upset conditions and the corrective actions would fall 

under the nonnal requirements of reporting on the regular monthly report, and not a 24-hour notification requirement as would be 

required for those incidents endangering health. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.079

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.8Q 

AGC strongly opposes the permit requiring an immediate notification (e.g., 24 hours) of EPA for extremely high turbidity levels for the 

reasons explained below and in Section V of AGC's comments above. 

An exceedance of a turbidity limit is not an emergency condition that poses an immediate threat to life or safety and does not warrant an 

immediate response to, or by, EPA. Collecting and responding to this type of data would divert EPA resources and dilute its ability to 

effectively manage the program, which should be focused on reviewing regularly reported data to identify compliance trends and 

centering attention on projects exhibiting a history of compliance difficulties. 
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Under the Administrative Procedure Act (APA), agencies must provide interested persons with a meaningful opportunity to comment on 

proposed rules. E.g. American Radio Relay League, Inc. v. Federal Communications Commission, 524 F.3d 227, 237 (D.C. Cir. 2008). 

"It is not consistent with the purpose of a rulemaking proceeding to promulgate rules on the basis of inadequate data, or on data that [to 

a] critical degree, is known only to the agency." Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 379 (D.C. Cir. 1973). Currently, 

the EPA has not published a numeric turbidity limit for stormwater discharges from construction sites and therefore the limit that the 

agency is contemplating "is known only to the [EPA]." Id. Therefore, AGC has no basis to determine what constitutes an "extremely 

high" limit. For example, EPA's previous turbidity limit was 280 NTU. 

Furthermore, AGC questions whether Congress provided the agency with the authority to "immediately" collect information on 

"extremely high" turbidity discharges. In certain circumstances, CWA section 308 allows EPA to require dischargers to collect data and 

provide that data to the agency. See 33 U.S.C. § 1318(a). However, Congress only required "immediate" notification to the government 

when the discharge consists of oil or hazardous substances. See 33 U.S.C. § 1321 (b)(5). Therefore, unless the agency is creating the 

immediate notification requirement pursuant to CWA section 311(b)(5), it is acting outside its authority. 

Finally, many of AGC's members operate their businesses as sole proprietorships. Thus, the Fifth Amendment protects them from 

self-incrimination. United States v. Doe, 465 U.S. 605 (1984). The proposed obligation to immediately notify the EPA is in actuality a 

notification that the permittee is in violation of the CWA. Therefore, sole proprietors should be "free to refuse to create" and provide 

such incriminating "records on fifth amendment grounds." Alito, Documents and the Privilege Against Self Incrimination, 48 Univ. Pitt. 

Law Review 27, 65-78 (Fall 1986). 

Thus, EPA's proposed requirement to immediately notify the agency of extremely high turbidity measurements implicates the Fifth 

Amendment rights of certain small businesses, is outside of EPA's authority under the CWA, and currently does not contain enough 

detail to allow the regulated community to provide meaningful comments. Consequently, AGC strongly urges that the agency not 

include the requirement in the final CGP. 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.053

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.8Q 

EPA has requested comment on whether the CGP should require a permittee to 

immediately notify EPA of “extremely high turbidity levels.” For the reasons provided below, 

NAHB recommends that the CGP not contain such a requirement. Under the Administrative 

Procedure Act (APA), agencies must provide interested persons with a meaningful opportunity 

to comment on proposed rules.[FN 66] “It is not consonant with the purpose of a rulemaking 

proceeding to promulgate rules on the basis of inadequate data, or on data that [to a] critical 

degree, is known only to the agency.” [FN 67] Currently, the EPA has not published a numeric 

turbidity limit for stormwater discharges from construction sites and therefore the limit that the Agency is contemplating “is known only 

to the [EPA].” [FN 68] Therefore, NAHB has no basis to 
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determine what constitutes an “extremely high” limit. For example, EPA’s previous turbidity 

limit was 280 NTU. NAHB submits that it would be unnecessary for a builder to immediately 

report, for example, a single reading that doubles the 280 NTU limit (560 NTU) to the Agency. 

Furthermore, NAHB questions whether Congress provided the Agency with the authority 

to “immediately” collect information on “extremely high” turbidity discharges. In certain 

circumstances, CWA section 308 allows EPA to require dischargers to collect data and provide 

that data to the Agency.[FN 69] However, Congress only required “immediate” notification to the 

government when the discharge consists of oil or hazardous substances.70 Therefore, unless the 

Agency is creating the immediate notification requirement pursuant to CWA section 311(b)(5), it 

is acting outside its authority. 

Finally, many of NAHB’s members operate their businesses as sole proprietorships. 

Thus, the Fifth Amendment protects them from self-incrimination.71 The CGP, as proposed, 

requires the permittee to collect and record stormwater samples in accordance with Part 3—a 

protocol most developers currently do not follow. Additionally, the proposed obligation to 

immediately notify the EPA is in actuality a notification that the permittee is in violation of the 

CWA. Therefore, sole proprietors should be “free to refuse to create” and provide such 

incriminating “records on fifth amendment grounds.”[FN 72] 

Thus, EPA’s proposed requirement to immediately notify the Agency of extremely high 

turbidly measurements implicates the Fifth Amendment rights of certain small businesses, is 

outside of EPA’s authority under the CWA, and currently does not contain enough detail to 

allow the regulated community to provide meaningful comments . Consequently, NAHB 

suggests that the Agency not include the requirement in the final CGP. 

[FN 66] E.g. American Radio Relay League, Inc. v. Federal Communications Commission, 524 F.3d 227, 237 (D.C. Cir. 

2008). 

[FN 67] Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 379 (D.C. Cir. 1973). 

68 Id. 

[FN 69] 33 U.S.C. §1318(a). 

[FN 70] 33 U.S.C. 1321 (b)(5). 

[FN 71] United States v. Doe, 465 U.S. 605 (1984). 

[FN 72] S. Alito, Documents and the Privilege Against Self Incrimination, 48 Univ. Pitt. Law Review 27, 65-78 (Fall 

1986). 

Response 

Refer to Response 3.1. 

Comment ID 0097-A1.001.012

Author Name: Knutsson John 

Organization: Daniel Corporation 
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Issue Category: 3.3.8Q 

15. I cannot comment on the notification threshold until the turbidity limits are set. 

Response 

Refer to Response 3.1. 

Comment ID 0098-A1.001.016

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 3.3.8Q 

We suggest not requiring immediate notification so that site personnel can focus on remediating any problem and to allow them time to 

gather facts (including rainfall intensity) to confirm or deny that a violation has occurred. For example, if the numeric standard is 

exceeded but the storm event exceeds the 2 yr./24 hour threshold there would be no violation to report. Such information is typically not 

available within the 24-hour window for immediate notification suggested in the Draft Permit. In addition to burdening permit holders, 

an immediate reporting obligation would be expected to result over reporting that could result in the wasteful dispatch of EPA personnel 

to investigate events which, upon later review, are determined not to be violations at all. 

Response 

Refer to Response 3.1. 

Comment ID 0100-A2.001.011

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 3.3.8Q 

USEPA solicits comments on whether the permit should require an immediate notification (e.g., 24-hours) of EPA for extremely high 

turbidity levels. The City strongly disagrees with this approach of immediate notification of EPA. This is not a point source issue nor 

should it be treated as such. This type of exceedance should not be compared to a sanitary sewer overflow nor is it a public health issue. 

An alternative approach would be given on weekly or monthly reports. How does USEPA intend to use this information they suggest be 

reported in 24-hours. Who is responsible for reporting such information? 

Response 

Refer to Response 3.1. 

Comment ID 0111-A2.001.012

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 3.3.8Q 

Dow believes that the requirement for immediate (24-hours) notification of extremely high turbidity levels is not appropriate. Dow 

believes that the permittee should be given ample time to perform a confirmation of laboratory quality assurance/quality control of the 

data; assess the current situation and verify that the BMP, stormwater controls are functioning as intended prior to alerting EPA of 

extremely high turbidity values. These steps are necessary to verify the extremely high turbidity result(s), and may take more than 24 

hours to complete. 
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In the case of extremely high turbidity results, Dow does believe that immediate steps should be taken to verify the turbidity test results, 

assess the effectiveness of stormwater controls and BMPs. However, 24 hour reporting to EPA may result in a premature and inaccurate 

disclosure. Dow does support a more reasonable time period of 72 hours after the permittee receives turbidity sampling for agency 

reporting of an extremely high turbidity result. This 72 hour proposed timeframe should also ensure an accurate agency notification and 

provide the permittee the necessary time to completely investigate (and potentially correct) causes of the extremely high turbidity result

Response 

Refer to Response 3.1. 

Comment ID 0117-A1.001.007

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 3.3.8Q 

The EPA should only be notified after a response of the contractor has taken place and additional corrective measures have been 

implemented and the discharge continues to exceed an acceptable value by more than 3 times the given NTU. 

Response 

Refer to Response 3.1. 

Comment ID 0123-A2.001.014

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 3.3.8Q 

Comment: The required actions for instances of exceedance of the turbidity limit are vague and are unlikely to result in improved water 

quality protection. EPA should provide clear guidance on steps required upon discovery of excessively turbid discharges, and the 

enforcement steps that will be taken if action is not made to bring the site discharge into compliance. 

Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.018

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.8Q 

A reasonable time to notify EPA of the discovery is within 48 hours of learning about the exceedance and not 24 hours. This would allow 

time for the sampler to gather the facts, convey the information to the operator, and allow time for the operator to remedy the situation 

prior to reporting. The reporting could then be much more complete for EPA review. 

Response 

Refer to Response 3.1. 
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Comment ID 0133-A2.001.028

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 3.3.8Q 

MDT does not believe that additional notification requirements are reasonable for high turbidity levels. The standard pennit conditions 

listed in Appendix L already contain 24-hour reporting requirements for any noncompliance that may endanger health or the 

environment. Also, the proposed pennit requires the implementation of corrective actions if the numeric turbidity limit is violated, as 

well as monthly reporting. As such, MDT questions the usefulness of additional reporting. Immediate notification of every high turbidity 

level would be overly burdensome to the regulated community, with no actual water quality benefit. 

Response 

Refer to Response 3.1. 

Comment ID 0137-A2.001.015

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 3.3.8Q 

As presented, the monitoring, inspection and reporting requirements are not practical. Allowing seven days to discover, design, review, 

approve and install additional practices is unreasonable. The permit is not clear about what information EPA will be immediately 

notified or what purpose it will serve to notify EPA. Until we know what the NTU limit will be or the threshold discharge for immediate 

notification we cannot comment. Moreover, the permit requires 30 day reports and time is better spent on corrective actions rather than 

reporting. The permit requires monitoring from discharge points instead of from the regulated waters. Projects employing 

Environmental Site Design will not have discharge points and we believe the relevant turbidity measurement is in the regulated waters. 

This monitoring protocol seems inconsistent with the discharge into a storm sewer which assumes discharge is at the point where 

regulated waters are reached. 

Response 

Refer to Response 3.1. 

Comment ID 0145-A2.001.016

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 3.3.8Q 

We agree that immediate (within 24 hours) reporting of certain numerical standard exceedances to EPA would facilitate compliance. 

Such a requirement will heighten the permittees sense that adequate control of stormwater discharge water quality is important and that 

they are accountable for the level of success or failure to meet that obligation. 

As for what exceedance level should trigger immediate reporting, we agree that monitoring results that are twice the numeric standard or 

greater should be reported to EPA immediately. 

Response 

Refer to Response 3.1. 
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Comment ID 0158-A1.001.015

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 3.3.8Q 

If EPA retains the turbidity limit, reporting exceedances (Section 3.3.8) should be conducted per existing Notice of Non-compliance 

mechanisms. A release of turbidity from a construction site likely would not be categorized as endangering health or the environment, 

but would more probably be categorized as an upset condition. Reporting these upset conditions and the corrective actions would fall 

under the normal requirements of reporting on the regular monthly report and not a 24-hour notification requirement as would be 

required for those incidents endangering health. In an effort to reduce paperwork for all parties, an allowance should be made for 

quarterly reporting for no discharge conditions and no exceedance conditions as noted in Section 3.3.9. 

Response 

Refer to Response 3.1. 

3.3.9 OTHER IPM MEASURES - FOREST CANOPY PEST CONTROL

Comment ID 0025-A1.001.032

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.3.9 

Will the eNOl system be able to accommodate the numerous discharge points that may exist on a linear construction project? 

Response 

Refer to Response 1.6.1. 

Comment ID 0025-A1.001.033

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.3.9 

As discussed above, there may not always be rain data within 5miles if the on-site gauge is damaged or stolen. Suggest requiring the use 

of the closest available data. 

Response 

Refer to Response 3.1. 

Comment ID 0030-A2.001.026

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 3.3.9 
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Section 3.3.9.3.d, page 37 

There is still a need to report turbidity from sites with greater than the 2-year, 24-hour storm. Therefore, if an event is clearly larger than 

a 2-year, 24-hour storm, there is still a need to have someone to perform sampling. Sampling every two hours at a large site with multiple 

discharge points also seems impractical. We recommend the EPA approach of collecting three or more samples over the day, as opposed 

to every 2 hours. In arid to semi-arid portions of the country, there will likely be several events that are very short in duration and only 

have one sample regardless of the sampling approach. 

Response 

Refer to Response 3.1. 

Comment ID 0047-A2.001.022

Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 3.3.9 

Section 3.3,9,3.d page 37 

Sampling every two hours at a large site with multiple discharge points seems impractical especially in arid to semi-arid states where 

storm events could be frequent but not long in duration. 

Response 

Refer to Response 3.1. 

Comment ID 0053-A2.001.024

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 3.3.9 

An allowance should be incorporated for permitted sites to report quarterly for reports of "No Exceedance" and for "No Discharge" 

reports. 

Response 

Refer to Response 3.1. 

Comment ID 0064-A1.001.032

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 3.3.9 

Section 3.3.9.3.b-d, page 37 - Sections b through d of "Contents of sampling reports" 

•As previously, there is no accounting for background turbidity, TMDL's seasons of concern, storm duration, and first flush that may 

deliver high NTU levels not representative of steady-state conditions. Suggest this section be reworded to consider these impacts. 

Response 
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Refer to Response 3.1. 

Comment ID 0075-A2.001.027

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 3.3.9 

Why the "no discharge" report requirement every 30 days since this would be frequent occurrence, (baseline) given high desert arid 

climates? 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.026

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.9 

Additionally, Target requests clarification on persons qualified to submit sampling results. Target suggests allowing qualified personnel 

to submit on behalf of the Owner or Operator. Target may not be able to meet signatory timeline requirements if owner signature is 

required. The requirement could delay the submission of sampling results. 

Response 

Refer to Response 3.1. 

Comment ID 0090-A1.001.026

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 3.3.9 

The presence of multiple operators also makes it significantly more difficult for a natural gas utility to comply with the Draft Permit's 

"Reporting Turbidity" requirement in Part 3.3.9. EPA should consider how this provision (e.g. during routine inspections or as the result 

of a permit violation) would ensure that a permit holder is not being burdened with the requirement of reporting turbidity violations that 

are caused by others. AGA requests clarification on accountability in reporting, and urges EPA to consider linear construction sharing 

right-of-way with non-permit projects in establishing its notification requirements or alternative thresholds for immediate notification to 

EPA. 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.016

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.9 
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If and when EPA completes and succeeds in defending its C&D ELG, the agency should set up a well-structured and streamlined system 

for permittees to submit the required reports. The Draft would require permittees to submit turbidity data reports to EPA once a month 

and report to EPA within 24 hours any exceedance of the numeric turbidity limit. This reporting scheme is too onerous and aggressive. It 

is more appropriate to require quarterly reporting of the numeric turbidity values and corrective action within a reasonable time of any 

exceedances. 

According to EPA regulations, requirements to report monitoring results for stormwater discharges associated with industrial activity 

(which includes construction) that are subject to an effluent limitation guideline shall be established on a "case-by-case basis with a 

frequency dependent on the nature and effect of the discharge, but in no case less than once a year." See 40 CFR § 122.44(i)(3). In light 

of this provision, we stress that a requirement to report turbidity data on a monthly basis is too onerous. 

Moreover, the 24-hour reporting of any exceedance is misplaced. According to EPA regulations, 24-hour reporting is needed only for 

"toxic pollutant or hazardous substance, or any pollutant specifically identified as the method to control a toxic pollutant or hazardous 

substance." See 40 CFR § 122.44(g). The sediment found in stormwater runoff from construction sites falls into neither category. 

In addition, EPA's proposed requirement to immediately notify the agency of any exceedance of the numeric turbidity limit implicates 

the Fifth Amendment rights of certain small businesses. See AGC comments 

Response 

Refer to Response 3.1. 

Comment ID 0093-A2.001.080

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 3.3.9 

AGC believes that EPA should set up a structured and simplified reporting system for permittees who are required to meet the numeric 

effluent limit. The Draft requires permittees to submit turbidity sampling data to EPA once a month and report to EPA within 24 hours 

any exceedance of the numeric turbidity limit. This reporting scheme is too onerous and aggressive. As allowed by EPA's regulations, it 

is more appropriate to require quarterly reporting of the numeric turbidity values and corrective action within a certain period of time if 

any exceedances occur. See 40 C.F.R. § 122.44(i)(3) and 40 C.F.R. § 122.44(g). 

AGC also suggests that EPA relax the reporting requirements for those sites demonstrating compliance. It will aid in improving EPA's 

effectiveness by reducing the amount of data EPA staff must review and allow them to focus on new and/or projects with compliance 

problems. Also, EPA should provide this relief and other incentives to operators who demonstrate good compliance histories. 

Response 

Refer to Response 3.1. 

Comment ID 0096-A1.001.054

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 3.3.9 
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The draft permit requires permittees to submit turbidity sampling data to EPA once a 

month and report to EPA within 24 hours any exceedance of the numeric turbidity limit. This 

reporting scheme is too onerous and aggressive, and it is uncertain what purpose it would serve 

particularly given that the limit is currently unknown. As allowed by EPA’s regulations, it is 

more appropriate to require quarterly reporting of the numeric turbidity values and corrective 

action within a certain period of time if any exceedances occur.[FN 73] EPA should set up a structured

and simplified reporting system for permitees who are required to meet the numeric effluent 

limit. 

[FN 73] 40 CFR § 122.44(i)(3) and 40 CFR § 122.44(g). 

Response 

Refer to Response 3.1. 

Comment ID 0105-A2.001.014

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 3.3.9 

 As is currently proposed (and should be maintained in the final permit) for reporting turbidity sampling data, benchmark monitoring 

results should be reported to EPA on a monthly basis through the eNOI system. See Parts 3.3.9 (monthly reporting of turbidity sampling 

data through eNOI system) and 4.2.2.1.e (benchmark monitoring data to be reported on quarterly basis to "EPA Regional Office"). This 

frequency of reporting will alert EPA and the public to patterns of benchmark exceedances on a reasonably frequent basis and will 

permit prompt oversight of required corrective action measures. 

Response 

Refer to Response 3.1. 

Comment ID 0125-A2.001.004

Author Name: Johnson Michelle 

Organization: Northeast Ohio Areawide Coordinating Agency (NOACA)

Issue Category: 3.3.9 

Reporting is based on a daily limit, as pointed out above sediment control practices are designed to work over several days, reporting 

should be tied to an event not a day. 

For those communities that have taken on the role of regulator under the NPDES Phase II permits, verifying the results that are submitted 

by private developers within their communities would be next to impossible. The sampling needs to be conducted by someone who has 

a professional license using the best available methodology and technology. 

Response 

Refer to Response 3.1. 

Comment ID 0146-A1.001.006
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Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 3.3.9 

Inspection reports do not need to be submitted. Similarly, sampling records should be kept with the SWPPP and produced upon request 

by a regulator. This would avoid the burden to states of having to create a system for reporting, recording, and keeping stormwater 

effluent results from dozens of outfalls on thousands of construction sites. 

Response 

Refer to Response 3.1. 

3.3.9Q ALLOWANCES FOR QUARTERLY REPORTING (RATHER THAN 

MONTHLY)

Comment ID 0015-A2.001.015

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 3.3.9Q 

Q16. Quarterly reporting - Agree with quarterly proposal. 

Response 

Refer to Response 3.1. 

Comment ID 0024-A2.001.018

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 3.3.9Q 

EPA should also revise Part 3.3.9 to require permittees to report their turbidity sample results to EPA on a monthly basis, as opposed to 

a quarterly basis. Increasing the frequency of reporting will improve the accountability of permittees and enhance EPA's ability to 

respond to problems in a timely manner. These monitoring reports, like the benchmark monitoring reports for impaired waters, should be 

made publicly available pursuant to § 308(a)-(b) of the CWA, 33 U.S.C. §l3l8(a)-(b). 

Response 

Refer to Response 3.1. 

Comment ID 0025-A1.001.031

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 3.3.9Q 

Response to EPA's request for comment: Quarterly reporting would defmitely be preferable. 
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Response 

Refer to Response 3.1. 

Comment ID 0037-A1.001.034

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 3.3.9Q 

The Southern Ute Growth Fund supports providing allowances for quarterly reporting for those sites where no exceedances of the 

turbidity limit occur. 

Response 

Refer to Response 3.1. 

Comment ID 0040-A1.001.017

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 3.3.9Q 

In an effort to reduce paperwork for all parties, an allowance should be made for quarterly reporting for no discharge conditions and no 

exceedance conditions as noted in Section 3.3.9. 

Response 

Refer to Response 3.1. 

Comment ID 0065-A1.001.025

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 3.3.9Q 

Section 3.3.9 requires submitting turbidity sample results to EPA every 30 days. EPA requested comment on whether the permit should 

allow quarterly reporting at sites where no exceedances occur. CCWC supports quarterly reporting at sites where no exceedances occur 

unless the duration of the project is less than three months (one quarter). For projects that are less than three months, monthly reporting 

should be required. 

Response 

Refer to Response 3.1. 

Comment ID 0070-A1.001.010

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 3.3.9Q 

h. Reporting Turbidity Sample Results - Alcoa does not believe there is a benefit to more frequent sample result submittal for those sites 

that are in compliance with the turbidity limit. 
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Response 

Refer to Response 3.1. 

Comment ID 0074-A2.001.019

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 3.3.9Q 

Quarterly reporting for those sites where no exceedances occur would be practicable. 

Response 

Refer to Response 3.1. 

Comment ID 0075-A2.001.026

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 3.3.9Q 

Allowances should be made for quarterly reports for areas with little to no annual rain fall. 

Response 

Refer to Response 3.1. 

Comment ID 0076-A1.001.025

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 3.3.9Q 

Target requests that no monitoring results be submitted if effluent limits are being met. Permittees would report all sampling results at 

the end of the project on annual report form (or equivalent). Target supports the approach taken by the State of California on their permit 

requirements. This would also aid in submitting quality monitoring reports. 

Response 

Refer to Response 3.1. 

Comment ID 0080-A2.001.026

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 3.3.9Q 

Partner Response: The Partners suggest quarterly reporting for individual construction site operators under their CGP. For 

municipalities, annual reporting is deemed appropriate. Municipal construction projects could more easily report the baseline sampling 

information as part of their MS4 Municipal Stormwater Annual Report submittal. 
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Response 

Refer to Response 3.1. 

Comment ID 0085-A2.001.018

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 3.3.9Q 

If EPA adopts this requirement, EPA should specify that operators who report on a quarterly basis must report their first exceedance 

within an appropriate time frame and also revert to monthly reporting. 

Response 

Refer to Response 3.1. 

Comment ID 0086-A1.001.017

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 3.3.9Q 

In an effort to reduce paperwork for all parties, an allowance should be made for quarterly reporting for no discharge conditions and no 

exceedance conditions, as noted in Section 3.3.9. 

Response 

Refer to Response 3.1. 

Comment ID 0087-A1.001.047

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 3.3.9Q 

EPA should adopt quarterly reporting as the norm, especially absent substantial exceedances. 

Response 

Refer to Response 3.1. 

Comment ID 0091-A2.001.012

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 3.3.9Q 

12. Fact Sheet Item 16. Part 3.3.9: Turbidity reporting should only be required if turbidity sampling is required. In the example in the text 

it is not clear when the turbidity requirement began. If the turbidity sampling threshold is reached within the first month after 4 July, the

example is correct. Quarterly reporting should be allowed for sites where no exceedances occur. 

Response 
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Refer to Response 3.1. 

Comment ID 0097-A1.001.013

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 3.3.9Q 

16. Quarterly reporting should be allowed for sites with no exceedances. 

Response 

Refer to Response 3.1. 

Comment ID 0103-A3.001.015

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 3.3.9Q 

In Part 3.3.9 Reporting Turbidity Samples Results to EPA, the EPA requires permittees to submit a report of sample results once per 

month and requests comments on whether allowances should be made in the permit for quarterly reporting for sites where no 

exceedances occur. 

TCEQ supports providing as much flexibility as possible for sites that demonstrate compliance with the numeric effluent limits. 

However, we reiterate our request that any numeric limits go through a public process. 

Response 

Refer to Response 3.1. 

Comment ID 0123-A2.001.015

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: 3.3.9Q 

Comment: Monthly reporting should be required for all sites regardless of the exceedance frequency. Site and weather conditions change 

rapidly and could cause identification of turbid discharges to go unreported or unmonitored. 

Response 

Refer to Response 3.1. 

Comment ID 0126-A2.001.015

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 3.3.9Q 

The CSC would suggest required sampling be phased out with time (i.e. if the site is moving to stabilization) and lack of exceedances.
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Response 

Refer to Response 3.1. 

Comment ID 0131-A1.001.019

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 3.3.9Q 

A reduction in reporting of sampling of turbidity to quarterly would significantly reduce the burden on permit holders. It is unclear why 

there is disparity between turbidity sampling reporting frequency and benchmark sampling reporting frequency (quarterly). Monthly 

reporting for most projects is far too frequent and it is unclear how such increased frequency benefits the environment. 

Response 

Refer to Response 3.1. 

Comment ID 0133-A2.001.029

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 3.3.9Q 

MDT strongly supports the allowance for quarterly reporting. MDT feels that quarterly reporting is appropriate for all sites, and thaI 

annual reporting is justified for sites where no exceedances have occurred. 

Response 

Refer to Response 3.1. 

Comment ID 0153-A1.001.028

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 3.3.9Q 

Yes, an allowance should be made for quarterly reporting for sites where no exceedances have occurred. If the only thing the report is 

going to show is that no exceedances occurred, then quarterly reporting should be allowed. 

Response 

Refer to Response 3.1. 

Comment ID 0154-A1.001.004

Author Name: Loehr Aaron 

Organization: Pace Construction 

Issue Category: 3.3.9Q 

Allow simply quarterly reporting of turbidity data to track compliance with EPA's numeric stormwater discharge limit 

Response 
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Refer to Response 3.1. 

Comment ID 0166-A1.001.006

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: 3.3.9Q 

IV. EPA should set up a structured and simplified reporting system for permitees who are required to meet the numeric effluent limit. 

The draft permit requires permittees to submit turbidity sampling data to EPA once a month and report to EPA within 24 hours any 

exceedance of the numeric turbidity limit. This reporting scheme is too onerous and aggressive. As allowed by EPA's regulations, it is 

more appropriate to require quarterly reporting of the numeric turbidity values and corrective action within a certain period of time if any 

exceedances occur. See 40 CFR § 122.44(i)(3) and 40 CFR § 122.44(g). 

Response 

Refer to Response 3.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 4, 4.1, 4.2, 4.2Q, 4.2.1, 4.2.2, 4.2.2Q, 4.2.2.1, 4.2.2.1Q, 4.2.2.1a, 

4.2.2.1b, 4.2.2.1c, 4.2.2.1d, 4.2.2.1e, 4.2.2.2, 4.2.2.3, 4.2.2.3Q, 4.2.3, 4.3, 4.3.1, 

4.3.2

 
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4 WATER QUALITY-BASED EFFLUENT LIMITATIONS

Comment ID 0017-A1.001.021

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 4 

19) Section 4 - This section also requires sampling stormwater and should be removed along with Section 3. 

Response 

Refer to Response 4.1. 

Comment ID 0092-A2.001.002

Author Name: Killam Gayle 

Organization: Merrimack River Watershed Council, Inc. 

Issue Category: 4 

As noted in the Merrimack River Watershed Council's separately submitted comment on this permit, the Merrimack River is classified as 

impaired for nutrients, priority organics, metals and pathogens along various stretches of the river in both Massachusetts and New 

Hampshire. As the Merrimack River does not yet have TMDLs for any of its impairments at this time, it is critical that all sensitive or 

impaired waters, with or without a TMDL, are protected under this permit. 

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.057

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4 

EPA's proposed terms are overly burdensome and unnecessary. In fact, the existing terms in the 2008 CGP are sufficient to ensure that 

impaired waters are adequately protected. Therefore, EPA should remove the additional requirements, and instead follow the workable 

path set forth in the 2008 CGP. The TMDL program and the 2008 CGP establish a well-developed process for states to follow to address 

the waters within their borders that fail to meet their water quality standards. This approach represents a logical and effective approach to 

addressing water quality requirements through a general permitting scheme, and EPA has not provided any evidence that the existing 

program is not working. It is an approach that has been deemed sufficient to protect the water quality of receiving waterbodies in 

previous CGPs and will continue to do so under the new CGP. Thus, NAHB urges EPA to abandon this overly burdensome and costly fix 

to a problem that doesn't exist. 

Response 

Refer to Response 4.1. 
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Comment ID 0096-A1.001.061

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4 

EPA's intended efforts to improve the permit are more likely to create confusion and significant cost with no demonstration that any 

additional benefits will be derived in comparison to the more simplified and streamlined approach of the 2008 CGP. Therefore, NAHB 

urges EPA to remove the costly measures, such as WQBEL requirements, prior to finalizing the CGP. At a minimum, before finalizing 

the CGP, EPA must develop a cost benefit analysis that fully assesses the cost impacts of the draft CGP on the industry and small 

businesses, in particular, and then use that information to develop more reasonable alternatives. 

Response 

Refer to Response 4.1. 

Comment ID 0109-A2.001.006

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 4 

The Permit must ensure that state water quality standards are met. We call on EPA to include additional water-quality based 

requirements to protect all sensitive or impaired waters, including the proposed requirements for benchmark monitoring and corrective 

actions. 

Response 

Refer to Response 4.1. 

4.1 GENERAL EFFLUENT LIMITATION TO MEET APPLICABLE 

WATER QUALITY STANDARDS

Comment ID 0055-A1.001.013

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 4.1 

Testing for individual nutrients should not be required under this permit. Levels of most nutrients are directly related to turbidity effluent 

amounts. We believe that this requirement would increase testing costs unnecessarily. The permit does not include any language that 

limits the required testing if a particular nutrient (listed as impairment) doesn't originate from construction activities. 

Response 

Refer to Response 4.1. 
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Comment ID 0064-A1.001.033

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 4.1 

Section 4.1, page 38 - "Your discharge must be controlled as necessary to meet applicable water quality standards. You must also 

comply with any additional requirements that your state or tribe requires you to meet in Part 10." 

•How is this requirement balanced with pending NEL for turbidity? Will the more stringent requirement always apply? 

Response 

Refer to Response 4.1. 

Comment ID 0067-A1.001.009

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 4.1 

A. The CGP requires that any discharge from the project not degrade water quality in the receiving stream. On a linear project , 

monitoring each point of storm water discharge in order to prove this no degradation standard would be very difficult and costly, and 

selection of representative discharge points could be subjective given the length of some transmission line projects. Entergy requests that 

EPA clarify the method by which the permitting authority and the applicant should develop a reasonable monitoring plan or a plan that 

allows compliance with the best management practices of the CGP to create at least a presumption that the project's runoff is not causing 

or contributing to a violation of water quality standards. 

Response 

Refer to Response 4.1. 

Comment ID 0098-A1.001.017

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 4.1 

To the extent that the second sentence of the first paragraph of this Part is intended to refer exclusively to Section 401 water quality 

certifications we request that the language be modified to make that clear. Such certifications do indeed become a part of an NPDES 

permit and are enforceable as such. It would be inappropriate and unlawful, however, to seek to incorporate any other state or tribal 

requirements not otherwise supported by the CWA into an NPDES permit. Thus, this clarification would resolve an important and 

potentially divisive issue. 

Response 

Refer to Response 4.1. 
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Comment ID 0119-A2.001.004

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.1 

EPA requires that discharges must be controlled "as necessary to meet applicable water quality standards," but provides, in a similar 

approach as the anti degradation provision discussed above, that in the absence of contrary information, EPA expects that compliance 

with the Draft Permit "will result in stormwater discharges being controlled as necessary to meet applicable water quality 

standards.,,[FN 2] As with Section 1.3.4 above, we support that determination, which is appropriate based on the control requirements 

that apply elsewhere in the Draft Permit. [FN 3] 

[FN 2] It is critical to this approach that if the discharger becomes aware, or EPA determines, that the discharge is not being controlled 

"as necessary to meet applicable water quality standards," the next step is for the discharger to take corrective action under Section 6.3.2. 

There is no indication in Section 4.1 that a permit violation occurs at that point. This is the same approach that was contained in the 

previous CGP, and in the settlement agreement between the FWQC, Utility Water Act Group and EPA over the 2005 MSGP, and we 

continue to endorse that approach. There is language in Section 6.5 of the Draft Permit that appears to be inconsistent with that approach. 

Section 6.5 cites examples of permit violations; one of the examples is "exceedance of an applicable water quality standard." That 

example should be deleted, since it does not accurately reflect the structure of the water quality conditions in the Permit. 

[FN 3] As with Section 1.3.4, we believe that not all of the Draft Permit's conditions are necessary to make this determination, and we 

encourage EPA to streamline the CGP and make its conditions more reasonable and workable, as recommended in FSW A and FWQC 

member comments. 

Response 

Refer to Response 4.1. 

Comment ID 0121-A2.001.010

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.1 

It is not clear what actions are necessary to comply with the permit condition in section 4.1 stating "Your discharge must be controlled as 

necessary to meet applicable water quality standards." It is not clear what controls are necessary, what water quality standards are 

applicable, or what it means to meet them. Without clarification on what steps and measures are necessary, permittees will be vulnerable 

to third party lawsuits, enforcement actions, and potentially required to conduct costly studies of discharges and impacts on water 

quality. Therefore this sentence ofthe permit should be removed. 

Response 

Refer to Response 4.1. 
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Comment ID 0121-A2.001.012

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.1 

EP A's statement from the following paragraph of the permit should be sufficient to ensure that discharges subject to this permit meet 

water quality standards while not exposing permitees to third party lawsuits. 

"In the absence of information demonstrating otherwise, EPA expects that compliance with the conditions in this permit will result in 

stormwater discharges being controlled as necessary to meet applicable water quality standards. If at any time you become aware, or 

EPA determines, that your discharge is not being controlled as necessary to meet applicable water quality standards, you must take 

corrective action as required in Part 6.3.2, document the corrective actions as required in Part 6.4, and report the corrective actions to 

EPA as required in Part 6.6." 

This language allows EPA to determine that additional measures are necessary in specific instances while providing permitees with 

assurance that the measures outlined in the permit will be sufficient unless informed otherwise by EPA. This is a more appropriate way 

of ensuring water quality is maintained, because as stated in the permit fact sheet, EPA is frequently in a better position to judge whether 

a particular discharge has the potential to contribute to water quality concerns. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.015

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.1 

EPA requires that discharges must be controlled "as necessary to meet applicable water quality standards," but provides, in a similar 

approach as the antidegradation provision discussed above, that in the absence of contrary information, EPA expects that compliance 

with the Draft Permit "will result in stormwater discharges being controlled as necessary to meet applicable water quality standards." As 

with Section 1.3.4 [See Comment ID 0128-A2.001.005} above, the Chamber supports that determination, which is appropriate based on 

the control requirements that apply elsewhere in the Draft Permit. 

Response 

Refer to Response 4.1. 

Comment ID 0135-A2.001.005

Author Name: Orel Linda 

Organization: Massachusetts Association of Conservation Commissions (MACC) 

Issue Category: 4.1 

The Permit must ensure that state water quality standards are met and that construction site runoff complies with any TMDL limits that 

may apply. 
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Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.029

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.1 

This section should be removed completely or only be applicable to TMDL water bodies for turbidity, sediment, and TSS. What is the 

basis of this requirement? This was not part of the EGLs! BIO should not be added because it is an indicator of a wide variety of possible 

stressors in a watershed that are well beyond sediment. 

Response 

Refer to Response 4.1. 

Comment ID 0158-A1.001.005

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 4.1 

In 2000, UWAG appealed provisions in EPA's MSGP that would have subjected permittees to the threat of lost permit coverage and 

enforcement (without any opportunity for cure) based on a determination that the permittee was causing or contributing to an excursion 

of applicable water quality standards, even if the permittee was otherwise compliant with the permit. This appeal was subsequently 

resolved through a settlement, which provided: 

"At any time after authorization, the Director may determine that your storm water discharges may cause, have the reasonable potential 

to cause, or contribute to an excursion above any applicable water quality standard. If such a determination is made, the Director may 

require you within a specified time period to: 

A. Develop and implement a supplemental BMP action plan describing SWPPP modification ... to address adequately the identified 

water quality concerns; 

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the receiving water is 

attaining water quality standards; or 

C. Submit an individual permit application...." 

(Section 3.3 of the March 2005 Settlement Agreement between the Federal Water Quality Coalition, UWAG, and EPA resolving the 

2000 MSGP appeal). 

This settlement is largely reflected in EPA's most recent MSGP-2008, which limits the risk of lost coverage and enforcement and 
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provides permittees with a more step-wise and iterative approach to revising/enhancing its BMPs to meet water quality expectations. 

Unfortunately, the new draft CGP revives the issues that UWAG appealed and were resolved in the MSGP. Section 6.2.2.3 of the CGP 

requires a permittee to undertake corrective actions upon discovery that the "stormwater controls you have installed and are maintaining 

are not effective enough for the discharge to meet applicable water quality standards...." Section 6.5 then follows that "If the condition 

identified in this Part constitutes a permit violation (e.g., a[n] ... exceedance of an applicable water quality standard), correcting it does 

not remove the original violation" (emphasis added). These proposed CGP provisions would have the effect of exposing permittees to 

immediate enforcement for excursions of WQS, without opportunity for cure, even if they are otherwise compliant with the CGP. 

Response 

Refer to Response 4.1. Refer also to Responses 6.1-6.13. 

Comment ID 0171-A1.001.004

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 4.1 

The proposed CGP provisions would appear to have the effect of exposing permittees to immediate enforcement for exceeding water 

quality standards, even if they are otherwise compliant with the CGP. 

Response 

Refer to Response 4.1. 

4.2 DISCHARGE LIMITATIONS FOR IMPAIRED WATERS [REQUEST 

FOR COMMENT]

Comment ID 0015-A2.001.037

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 4.2 

4.2 Guidance is needed in the event a waterway becomes listed during the permit term - will there be a permit modification? Drainage 

basin information should be required in monitoring reports. 

Response 

Refer to Response 4.1. 

Comment ID 0024-A2.001.002

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 
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Issue Category: 4.2 

We applaud EPA for recognizing that past iterations of the CGP have not provided sufficient protections for impaired and high-quality 

waterways, and for proposing to enhance protections for those waters in the draft 2011 CGP. However, we urge EPA to instead require 

that discharges from priority construction sites be subject to individual NPDES permits. Reliance on coverage under a "general" permit 

for storm water discharges to waters that are already either impaired for sediment or siltation, or are subject to a Total Maximum Daily 

Load ("TMDL") for these pollutants, will almost certainly result in greater degradation of these waters. Whether a TMDL is in place, 

impaired streams are those which, by definition, have not been adequately protected by the NPDES permitting process in the past. In 

addition to discharges to streams already experiencing excessive sediment pollution, individual NPDES permits should be required for 

discharges to high-quality waters and to streams listed as critical habitat for threatened and endangered species. These streams should 

receive a higher level of protection entailing site-specific permit limits and conditions, heightened public scrutiny, and a robust anti 

degradation analysis. 

Response 

Refer to Response 4.1. 

Comment ID 0024-A2.001.010

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 4.2 

As stated above, we believe that individual permits should be required for discharges to impaired waters. If, however, EPA nevertheless 

allows coverage under the CGP, we fully support EPA's decision to include new stabilization, inspection, and monitoring requirements 

in the CGP for sites discharging to nutrient- and sediment-impaired waters, and for providing specific tools to help operators, as well as 

the public, determine whether a proposed construction site will discharge to such waters. See Part 4.2, Appendix J. 

Response 

Refer to Response 4.1. 

Comment ID 0026-A1.001.015

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: 4.2 

D. The Agency has failed to cite controlling legal authority supporting its determination to include waters for which there is an 

EPA-approved or established total maximum daily load within the draft CGP's definition of "impaired waters." The EPA ought to cite 

some authority for this definition or remove it from the CGP. 

Response 

Refer to Response 4.1. 

Comment ID 0026-A1.001.016
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Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: 4.2 

E. Section § 4.2 of the draft CGP states: "If you indicate that you do not discharge to an impaired water, EPA may determine, based on 

additional information, that you are considered to be discharging to an impaired water." However, the Agency fails to specify either the

nature of this "additional information" or the standards that the Agency will use to exercise its supposed authority. The Congress has not 

delegated the EPA such discretion. Therefore, the Agency ought to specify the "additional information" it will deem relevant, as well as 

the relevant criteria that it will use to evaluate 

Response 

Refer to Response 4.1. 

Comment ID 0037-A1.001.035

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2 

The permit should specify that the identification of the first water as the waterbody for the construction operator to examine for 

determining whether an impaired water discharge exists is an initial, threshold determination but EPA can later determine consistent 

with its regulatory authority that, despite the discharger's initial assessment there is no discharge to an impaired water using the permit's 

standard, such a discharge exists if there is hydraulic connection between the site and a downstream water segment that is impaired. 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.025

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2 

The Permit discusses developing an EPA based online mapping tool in an effort to determine "Impaired Waters" site location(s). 

Previous use of EPA ENOI mapping system resulted in an EPA error of incorrect project location by more than 850 miles. Emapping is 

neither accurate, nor legally defendable. EPA should rectify e-NOI mapping prior to any further use by the public. EPA map based 

project location determination opens EPA to legal challenges. The Permittee should be solely responsible for accurate coordinates and 

"Impaired Water" discharge potential determination.

Response 

Refer to Response 4.1. 

Comment ID 0065-A1.001.026

Author Name: Jaeger Lisa 
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Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 4.2 

Section 4.2 of the CGP proposes that a site is considered to discharge to an impaired water if the first water of the U.S. to which a 

discharge is made is identified by a state, tribe, or EPA as being an impaired water. This permit element irrationally imposes 

responsibilities on construction operators that go well beyond the scope of regulated construction activities. EPA exceeds its authority to 

establish permit terms for stormwater discharges by including an obligation that an operator determine whether a waterbody is 

"impaired" for purposes of local, state and federal law. It is rational to require the operator to take measures to limit stormwater 

discharges to an impaired water; it is not rational to impose the burden of the "impaired" determination on the operator, particularly 

where it is well known that regulatory entities with authority over any given waterbody may not agree on such a determination. 

Because there is a potential for conflict among regulatory bodies, the CGP should defer to the state determinations of whether a water 

body is impaired. CCWC does not support making this assessment the responsibility of the contractor, regardless of whether on-line 

tools are available to help make this assessment. Ultimately the determination of whether or not a body of water is impaired should be 

left up to the state, eliminating any potential violations. 

Response 

Refer to Response 4.1. 

Comment ID 0068-A1.001.028

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 4.2 

To the extent that Parts 4.2, 4.2.1 and 4.2.3 attempt to enhance and further explain the water quality-based limitations contained in the 

2008 CGP, FSWA could support such an approach. EPA's past, straight-forward, and uncomplicated approach to requiring NPDES 

stormwater permittees to comply with appropriate TMDLs if they discharge pollutants to impaired waters that are impaired for those 

pollutants represents a logical and effective approach to addressing water quality requirements through a general permitting scheme. 

Response 

Refer to Response 4.1. 

Comment ID 0093-A2.001.010

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2 

After closely reviewing of the Draft, AGC is particularly concerned that EPA seeks to establish a water quality-based effluent limitation 

(WQBEL) even for stormwater discharged into sewer systems if those systems eventually drain into impaired waterbodies subject to 

TMDLs. Part 4.2 of the Draft provides: "For discharges that enter a stormwater sewer system prior to discharge, the first water of the 

U.S. to which you discharge is the waterbody that receives the stormwater discharge from the storm sewer system." By redefining the 

point of discharge to mean the end of a sewer rather than the end of a property line, EPA is expanding controls across the board without 

any evidence that the regulated discharges cause or contribute to harm or impairment. Indeed, it remains impossible for EPA even to 
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determine the separate or distinct impact of any one discharge into such a system. 

AGC also finds Part 4.2 of the Draft to be very troubling. That part states: "If you indicate that you do not discharge to an impaired water, 

EPA may determine, based on additional information, that you are considered to be discharging to an impaired water." The Draft 

neglects to specify the source of such authority, or the nature of the "additional information" that could lead EPA to make such a 

determination, or the standards that EPA would apply, or the process that EPA would follow. AGC questions whether Congress has 

granted such authority to EPA, and if it has, AGC still calls on the agency to specify the "additional information" it would consider 

relevant, how it would evaluate that information and how it would ensure that its decision-making process is fair to permittees. 

Response 

Refer to Response 4.1. 

Comment ID 0093-A2.001.081

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2 

To the extent that Parts 4.2, 4.2.1 (Identify If You Discharge To An Impaired Water) and 4.2.3 (Requirements for Discharges to Waters 

Impaired for Other Pollutants) attempt to enhance and further explain the water quality-based limitations contained in the 2008 CGP, 

AGC could support such an approach. EPA's past, straight-forward, and uncomplicated approach to requiring NPDES stormwater 

permittees to comply with appropriate TMDLs if they discharge pollutants to impaired waters that are impaired for those pollutants 

represents a logical and effective approach to addressing water quality requirements through a general permitting scheme. 

However, adding benchmark monitoring (Part 4.2.2) for waters impaired by sediments or nutrients is an unproven and unnecessary 

obligation that will do more to fuel citizen suit liability than protect the environment. That has been the experience with EPA's industrial 

general permit and recent attempts (including by the recently proposed California Industrial General Permit) to inappropriately convert 

benchmark monitoring into numeric effluent limitations. EPA has not provided any justification or scientific rationale for its benchmark 

levels nor has it identified any reason why the current approach mandating compliance with locally-derived (and EPA approved) 

TMDLs is insufficient to demonstrate compliance with water quality standards. 

See also AGC comments at Section IV above. 

Response 

Refer to Response 4.1. 

Comment ID 0094-A1.001.004

Author Name: Oppenheimer Jonathan 

Organization: Idaho Conservation League 

Issue Category: 4.2 

First, the Idaho Conservation League is concerned that the CGP may inappropriately approve activities in water bodies that are currently 

listed under section 303(d) of the CWA. These water bodies are 303(d) listed because they do not meet Idaho Water Quality Standards 
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(IDAPA 58.01.02 et seq.) and because they fail to provide for their beneficial uses as a result of pollutants, habitat degradation or other 

issues. The addition of pollutants to 303(d)-listed streams is contrary to the CWA and language emphasizing this prohibition should be 

included as standard language in the CGP and associated direction. In some cases, Total Maximum Daily Loads (TMDLs) have been 

developed to address water quality concerns and to establish specific allocations, criteria and targets to restore beneficial uses. Where 

TMDLs have established specific wasteload allocations, any activity authorized by the CGP should undergo site-specific review to 

determine whether increased discharges are consistent with TMDL allocations. If no pollutant load allocations are specified in a TMDL 

and the CGP applicant has the potential to increase pollutants, then no degradation or addition of pollutants can occur. This includes both 

point sources and non-point sources and includes, but is not limited to, the following: flow and habitat alteration, sediment, nutrients, 

temperature, bacteria, nutrients and any other pollutants, as defined by the CWA. These pollutants could increase as a result of activities 

permitted by the application of CGPs issued by the EPA. As a result, we feel that Individual Standard Permits should be considered for 

any water bodies that do not comply with Idaho Water Quality Standards, regardless of whether a TMDL has been approved. 

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.055

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2 

The draft CGP imposes additional requirements on construction activities that discharge into impaired waters for which an 

EPA-approved or developed Total Maximum Daily Load (TMDL) has not yet been established. These additional requirements include 

tighter stabilization deadlines, more frequent site inspections and benchmark monitoring of discharges. It is unnecessary and 

inappropriate for EPA to unilaterally set benchmark limits for construction site runoff to sediment- and nutrient-impaired waters and to 

require costly monitoring of such discharges to ensure compliance with some arbitrary limit. As a result, NAHB is concerned that these 

additional terms are overly burdensome, unnecessary, and likely to produce unintended consequences. 

Both CWA Section 302 and the legislative history are clear that water quality based limits are to be added to NPDES permits only when 

national technology-based standards fail to produce the desired level of water quality in a given watershed. Therefore, EPA should 

continue to rely on the TMDL program that provides a well-established process for states to address waters within their borders that fail 

to meet water quality standards. Water quality based effluent limits (and TMDLs) should be written at the state level and rely on the use

of proper monitoring programs to develop appropriate benchmarks or other conditions. 

Furthermore, EPA may impose additional NPDES permit conditions only if EPA has determined - based on specific factors set forth in 

EPA regulations - that the terms are necessary to avoid an "excursion" above a specific water quality standard.[FN 74] As far as NAHB 

is aware, EPA has not made the required determinations nor provided any justification or scientific rationale for these additional 

conditions, particularly for the benchmark levels, which are not tied to any specific water quality standard. 

[FN 74] 33 U.S.C. § 1303; 40 C.F.R. § 122.44(d)(1)(i)-(iii), (vii). 

Response 

Refer to Response 4.1. 
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Comment ID 0105-A2.001.015

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 4.2 

 EPA's proposed means of determining whether there is a discharge to impaired waters for the purposes of applying Part 4 of the Draft 

CGP is overly narrow and will allow construction sites to avoid water quality-based requirements, even if the sites' discharges are 

contributing to impairment of downstream waters. Part 4 should apply to all sites that will discharge to any water of the U.S. that is 

identified as impaired on the Section 303(d) list or has an EPA-approved or established TMDL, but also to all sites that will discharge to 

any water of the U.S. that is immediately upstream from a listed water or water to which a TMDL applies. 

Response 

Refer to Response 4.1. 

Comment ID 0109-A2.001.003

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 4.2 

Green Infrastructure and Low-Impact Development ("UD") techniques are widely available and effective at controlling stormwater 

runoff from construction sites. The Permit should require the use of these methods - particularly at sites discharging to impaired 

(degraded) or sensitive waters. 

Response 

Refer to Response 4.1. 

Comment ID 0109-A2.001.007

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 4.2 

In heavily polluted waters, where a Total Maximum Daily Load for a pollutant has been issued, we support the requirement that 

construction site runoff meet these limits. 

Response 

Refer to Response 4.1. 

Comment ID 0111-A2.001.013

Author Name: Yee Philip 
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Organization: The Dow Chemical Company 

Issue Category: 4.2 

Dow supports the requirement for benchmark monitoring for stormwater discharges into an impaired stream from construction sites 10 

acres or greater. 

However, Dow believes that EPA should consider a dynamic model to establish each pollutant benchmark. Specifically, Dow 

encourages EPA to consider additional factors when determining pollutant benchmark levels, including: rainfall variability, the unique 

geographical characteristics which would impact stormwater flow and applicable pollutant background levels, including flow-in and 

flow-on considerations for naturally occurring turbidity. 

Response 

Refer to Response 4.1. 

Comment ID 0112-A2.001.006

Author Name: Karimi Hamid 

Organization: DC Dept of Environment 

Issue Category: 4.2 

Part 4.2 Discharge Limitations for Impaired Waters 

Impaired waters in the District of Columbia receive waters from either the CSO or MS4 system. Discharges in the CSO will go to the 

wastewater treatment plant unless there is an excessive rain event or a storm of increased intensity. The DC mapping tool that EPA is 

preparing for the District should include the CSO boundary and associated features to provide construction site operators with all 

pertinent information. The discharges from the CSO may have to comply with additional testing or monitoring as per DC Water's 

regulations. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.005

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2 

4. Discharge Limits for Impaired Waters (Section 4.2): EPA imposes significant additional restrictions on discharges to "impaired" 

waters. As to how dischargers are supposed to determine that they discharge to an impaired water, EPA states that it is developing an 

on-line tool that will assist dischargers in determining what their receiving water is, whether that water is impaired, and if so, for what 

pollutant. That tool is not available yet, but according to the Agency, it will be available before the final CGP is issued. Given the 

importance of knowing whether one's discharge is to an impaired water, and the fact that it is not always easy for someone doing 

construction activities to figure out whether it is covered by these new requirements, we believe that an on-line tool could be useful. 

However, since EPA's tool is not available yet, we do not know if it will adequately serve that function. EPA should, before the issuance 

of the final Permit, make the on-line tool available for public review and comment. 
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Response 

Refer to Response 4.1. 

Comment ID 0121-A2.001.014

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.2 

The requirements relative to TMDLs should also be clarified. It is not clear what is meant by the phrase " .. .included in an 

EPA-approved or established total maximum daily load (TMDL)." TMDL documents frequently include discussion of waters not 

subject to the TMDL. For example, in some cases TMDLs apply waste load allocations to waters that are not the subject ofthe TMDL 

and may not be impaired. As drafted, these water bodies could be considered "included" in a TMDL. The phrase should be clarified as 

follows" ... or has an EPA-approved or established total maximum daily load (TMDL)." 

Response 

Refer to Response 4.1. 

Comment ID 0137-A2.001.016

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 4.2 

The application of additional requirements in urban storm sewer locations has the potential to contradict growth management goals with 

little or no water quality benefit. EPA's impervious surface data should be made more accurate before additional urban TMDL 

requirements are imposed through this permit. 

Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.030

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.2 

1. This section should be removed, but at a maximum, this section should only be required for waters that are included in an 

EPA-approved or established TMDL. The permit should not dictate how the permittee determines if there is an impaired or TMDL 

water. There are many resources available for the permittee to determine this. 2. The Federal Register does not support including 

impaired waterbodies. 

Response 

Refer to Response 4.1. 
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Comment ID 0159-A1.001.013

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 4.2 

Discharges into a storm sewer prior to discharge into impaired waters should be regulated in a manner that accounts for the presence of 

other pollutant sources that discharge to the system and whether the system is subject to an MS4 permit. The application of additional 

requirements in urban storm sewer locations has the potential to contradict growth management goals with little or no water quality 

benefit. EPA's impervious surface data should be made more accurate before additional urban TMDL requirements are imposed through 

this permit. 

Response 

Refer to Response 4.1. 

Comment ID 0171-A1.001.011

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 4.2 

Requirements that permittees identify the impairment status of their receiving waters along linear projects that may cross or discharge 

into multiple different watersheds is burdensome and has the potential for error due to various interpretations of impairments and 

stressors. 

Response 

Refer to Response 4.1. 

4.2Q METHOD FOR DETERMINING WHETHER THERE IS A 

DISCHARGE TO IMPAIRED WATERS

Comment ID 0015-A2.001.016

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 4.2Q 

Q17. Impaired waters - Agree with proposal. 

Response 

Refer to Response 4.1. 
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Comment ID 0026-A1.001.009

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: 4.2Q 

2. Notice § III(E)(17) requests "comment on the way in which this permit [in § 4.2] determines whether there is a discharge to impaired 

waters." The Chamber believes draft CGP § 4.2 is contrary to law and that it should be withdrawn and reworked. To begin with, § 4.2 

states: "If you indicate that you do not discharge to an impaired water, EPA may determine, based on additional information, that you are 

considered to be discharging to an impaired water." However, the Agency fails to disclose either the nature of this "additional 

information" or the standards that the Agency will use to exercise its supposed authority. The Congress has not delegated the EPA such 

arbitrary discretion and the Agency's attempt to reserve such broad and unchecked power should not stand. 

Also, the Chamber notes that the Agency has failed to cite controlling legal authority supporting its determination to include waters for 

which there is an EPA-approved or established total maximum daily load within the draft CGP's definition of "impaired waters." The 

EPA ought to cite appropriate authority for this determination or remove it from the draft CGP.[FN 6] 

[FN 6] Draft CGP § 4.2 states: "For discharges that enter a storm water sewer system prior to discharge, the first water of the U.S. to 

which you discharge is the waterbody that receives the stormwater discharge from the storm sewer system." The EPA, however, offers 

no statutory support, scientific rationale or logical basis for treating stormwater from a small plot of land that is directed into a sewer 

system in this fashion. Appendix J, which purports to expand and explain draft CGP § 4.2, provides: [I]f the point of discharge from the 

site is located within a catchment area that drains to an impaired stream segment, pond, lake or to a water segment that is addressed by an 

approved or established TMDL, then EPA considers that site to be discharging to an impaired water. Likewise, if the point of discharge 

is located within a catchment that does not include such a water segment, then your site is not considered to discharge to an impaired 

water. See Appendix J at p. 1, http://www.epa.gov/npdes/pubs/cgp_appendixj.pdf (accessed June 15, 2011). The EPA's regulatory 

sleight of hand is impressive. By simply redefining the point of discharge to mean the end of a sewer rather than the end of a property 

line, the Agency substantially expands its power and control over even the smallest of building plots without any evidence that the 

discharges in question cause or contribute to harm or impairment. 

Response 

Refer to Response 4.1. 

Comment ID 0030-A2.001.027

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 4.2Q 

Section 4.2, page 38 

We recommend that EPA does develop a tool with up-to-date 303 (d) listed water bodies. If benchmark sampling is required for TMDL 

and 303(d) listed water bodies, we recommend it only be required when there is a direct discharge to these receiving waters. In arid to 

semi-arid regions, we list receiving waters on SWPPPs and stormwater discharge applications that are sometimes miles from the 

proposed construction site. Potential pollution is highly unlikely to reach this receiving water. However, since it is in that watershed 

basin, these streams are listed as the receiving waters or at a minimum as the ultimate receiving waters. 
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Response 

Refer to Response 4.1. 

Comment ID 0074-A2.001.020

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 4.2Q 

An on-line mapping tool has been very helpful to the permitting agencies and the regulated communities. EPA should include the link in 

the proposed permit. 

Response 

Refer to Response 4.1. 

Comment ID 0076-A1.001.028

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 4.2Q 

There are no requirements detailed in the permit on who will be affected by the additional WBELs other than first water of U.S. receiving 

discharges. Target suggests instead having it affect those within a mile and that are direct dischargers to the impaired water. Otherwise, 

a facility's first receiving water may be miles away and not a direct discharge and therefore no possible impacts on that receiving water, 

yet be obligated by additional permit requirements.

Target finds this problematic since the C & D rule is a Technology Based Effluent Limits (TBELs) and based on site's discharges, while 

the WQBEL requirements are receiving water based. 

Response 

Refer to Response 4.1. 

Comment ID 0080-A2.001.027

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 4.2Q 

Partner Response: The Partners question the availability and accuracy of the new tool. Will the tool be readily available, easily 

understood and used by members of the construction industry, permitted municipalities and states with NPDES delegated authority? 

Waters of the U.S. located in urban areas, such as the Rio Grande in Albuquerque have multiple water quality parameters listed on the 

303(d) list and are considered "Impaired Waters." The entire metropolitan area is located in the Rio Grande watershed and, therefore, all 

CGPs issued would be burdened with the additional requirements under this section. 
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Response 

Refer to Response 4.1. 

Comment ID 0085-A2.001.019

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 4.2Q 

EPA should consider expanding the requirements of this section to sites located within the watershed of major impaired waterways 

subject to TMDLS for sediment and nutrients, such as the Chesapeake Bay. 

Response 

Refer to Response 4.1. 

Comment ID 0086-A1.001.005

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 4.2Q 

The proposed CGP is only made worse when considered in conjunction with the proposed EPNCorps Guidance on Identifying "Waters 

of the United States". Not only does the proposed CGP add onerous requirements, the requirements would need to be met at many new 

locations due to the extremely broad scope of the new Waters of the United Sates guidance. 

Response 

Refer to Response 4.1. 

Comment ID 0088-A1.001.005

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 4.2Q 

This concern is exacerbated by the new EPA/Corps Guidance on Identifying "Waters of the United States". Not only does the new CGP 

add onerous requirements, the requirements would have to be met at many new locations because of the extremely broad scope of the 

new Waters of the United Sates guidance. 

Response 

Refer to Response 4.1. 

Comment ID 0090-A1.001.034

Author Name: Lacey Pamela 
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Organization: American Gas Association (AGA) 

Issue Category: 4.2Q 

AGA submits that under Part 4.2, an online mapping tool to aid construction operators in the identification of impaired waterways would 

be helpful, but an adequate testing period should be set aside for any such tool that is made available prior to the issuance of the final rule.

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.062

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2Q 

The proposed criteria for determining whether a permit is discharging to impaired waters in the CGP is whether the first US water that 

receives the discharge is listed as an impaired or TMDL water. If so, that site is considered to discharge into an impaired stream. This 

seems reasonable. The draft CGP then goes on to say that if a site discharges to a stormwater drainage system that then directly 

discharges to an impaired stream, then that site also discharges to an impaired stream. This second part is confusing and unwarranted. 

Once the site discharge goes into a municipal stormwater system, it also would be comingled with other stormwater runoff, and would 

not be indicative of the actual contribution of the construction site to the TMDL limits. EPA should only consider the first water that 

receives the discharge and should not complicate permits by also requiring permittees to trace the discharge to municipal stormwater 

systems. EPA stated it is developing an online mapping tool that permitees will use to determine whether the construction site discharges 

to an impaired water. This tool should be evaluated by the regulated entity prior to inclusion in the permit. 

Response 

Refer to Response 4.1. 

Comment ID 0097-A1.001.014

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 4.2Q 

17. Criteria is acceptable. 

Response 

Refer to Response 4.1. 

Comment ID 0100-A2.001.012

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 4.2Q 

Section 4.2, USEPA requests comments on the way in which this permit determines whether there is a discharge to impaired waters. See 
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attached letter to USEPA as submitted by the City of Fort Wayne dated May 13, 2011. 

Response 

Refer to Response 4.1. 

Comment ID 0121-A2.001.013

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.2Q 

Defining what constitutes a discharge to an impaired water is important so that permitees can clearly identify which requirements apply 

at a given location. The description of what constitutes a discharge to an impaired water below from section 4.2 ofthe permit is helpful in 

this regard. 

Your construction site will be considered to discharge to an impaired water if the first water of the U.S. to which you discharge is 

identified by a state, tribe, or EPA pursuant to Section 303( d) of the CWA as not meeting an applicable water quality standard, or is 

included in an EPAapproved or established total maximum daily load (TMDL). For discharges that enter a storm sewer system prior to 

discharge, the first water of the U.S. to which you discharge is the waterbody that receives the stormwater discharge from the storm 

sewer system. For further instructions regarding whether your site discharges to an impaired water, refer to Appendix J. 

However, the definition of "discharge to an impaired water" in Appendix D indicates that such a discharge occurs " ... if the first named 

water of the U. S to which you discharge is identified ... as not meeting an applicable water quality standard ... " (emphasis added). 

The additional specification that the standard applies to the first named water is unnecessary, arbitrary, and will lead to runoff being 

considered discharge to an impaired water in cases where there is very little connection between the project runoff and the impaired 

water. It is not clear why EPA differentiates between named and unnamed waters in this definition. The naming of waters is not 

dependent on objective criteria related to water quality, but rather local history and practice. Therefore, this distinction is unsupported. 

The distinction between named and unnamed waters may also lead to inappropriate conclusions about whether a discharge has the 

potential to impact an impaired water. Unnamed water bodies are frequently listed as impaired waters. As a result, there could be 

locations where a construction site drains to an impaired unnamed water that is upstream of a named water that is not impaired. Based on 

a strict reading of this definition, discharge to the unnamed impaired water would not be considered a discharge to an impaired water for 

the purposes of the permit. This is clearly problematic and likely not what EPA has intended. Furthermore, in many cases unnamed 

waters can be extensive in size. As a result, there will be situations where discharges enter unnamed waters and travel long distances 

before entering named waters. In these situations, the discharge should not be considered discharges to that named water, but instead 

should be considered discharges to the first water that receives the discharge. 

Response 

Refer to Response 4.1. 

Comment ID 0126-A2.001.016
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Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 4.2Q 

The CSC would request exemptions for stream rehabilitation projects. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.016

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2Q 

EPA imposes significant additional restrictions on discharges to "impaired" waters. EPA states it is developing an on-line tool that will 

assist dischargers in determining what their receiving water is, whether that water is impaired, and if so, for what pollutant. The Chamber 

recommends that prior to issuance of the final Permit, EPA should make the on-line tool available for public review and comment. 

Response 

Refer to Response 4.1. 

Comment ID 0141-A2.001.002

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: 4.2Q 

1. Discharge Limits for Impaired Waters (Section 4.2): EPA proposes significant additional restrictions on construction site discharges 

to "impaired" waters. Knowing that determining if a construction site discharges to an impaired receiving water can be a difficult task, 

EPA has stated that it is developing an on-line tool that will assist dischargers in determining their receiving waters, whether that water 

is impaired, and if so, for what pollutant. While the City of Nampa applauds the efforts of EPA on the development of this on-line tool, 

the City has some concerns that this tool will not be available prior to the issuance of the final CGP Permit and if this tool will adequately 

provide the required information. The City respectfully requests that EPA make the on-line tool available for public review and comment 

prior to the issuance of the final CGP Permit. 

Response 

Refer to Response 4.1. 

4.2.1 IDENTIFY IF YOU DISCHARGE TO AN IMPAIRED WATER

Comment ID 0062-A1.001.049
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Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 4.2.1 

How far away? Is this applicable if you discharge 10 miles upstream of impaired waters. Shouldn't samples be collected at the point 

entering impaired waters? 

Response 

Refer to Response 4.1. 

Comment ID 0075-A2.001.028

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 4.2.1 

See Part 1.5.1 comments - How would a contractor determine Sec. 303(d) listed waters as the initial discharge point, given the multiple 

databases in Wyoming? 

[See comment ID 0075-A2.001.001] 

Response 

Refer to Response 4.1. 

4.2.2 REQUIREMENTS FOR DISCHARGES TO SEDIMENT OR 

NUTRIENT-IMPAIRED WATERS. [REQUEST FOR COMMENT]

Comment ID 0031-A2.001.004

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: 4.2.2 

The Water Quality Based Effluent Limit (WQBEL) provision currently proposed in the draft CGP will require dischargers exceeding the 

10 acre disturbance threshold to conduct benclnnark monitoring. However, adding benclnnark monitoring for waters impaired by 

sediments or nutrients is an unproven and unnecessary obligation that will do more to fuel citizen suit liability than protect the 

environment. EPA has not provided any justification or scientific rationale for its benclnnark levels nor has it identified any reason why 

the current approach mandating compliance with locally-derived (and EPA approved) TMDLs is insufficient to demonstrate compliance 

with water quality standards. Additionally, water quality standards and all TMDLs should be handled at the state level through proper 

monitoring programs to develop appropriate benchmarks. For the reason stated above, OHBA urges EPA to remove this provision from 

the COP until further research and analysis. 

Response 
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Refer to Response 4.1. 

Comment ID 0051-A2.001.009

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 4.2.2 

The obligatory benchmark monitoring for disturbed areas of greater than 10 acres that discharge into impaired waters should be required 

regardless of whether the impaired water has an established TMDL (Part 4.2.2). In such cases, discharge from large areas can have a 

significant impact on the quality of the water and thus needs to be monitored to determine the impacts of construction activities. 

Although benchmark monitoring results will not correspond to a specific TMDL-based target, the required monitoring will ensure 

environmental accountability on the part of the operator. Monitoring results will also provide information to environmental 

organizations and state agencies about the state of impaired waters, potentially informing a future effort to develop a TMDL. This issue 

is of particular importance to MRWC because the Merrimack River is classified as impaired water without a TMDL for nutrients, 

priority organics, a few metals, and pathogens along various stretches within New Hampshire and Massachusetts. 

Response 

Refer to Response 4.1. 

Comment ID 0055-A1.001.014

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 4.2.2 

Testing for individual nutrients should not be required under this permit. Levels of most nutrients are directly related to turbidity effluent 

amounts. We believe that this requirement would increase testing costs unnecessarily. The permit does not include any language that 

limits the required testing if a particular nutrient (listed as impairment) doesn't originate from construction activities. Language 

addressing this concern should be included in the permit. 

Response 

Refer to Response 4.1. 

Comment ID 0055-A1.001.015

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 4.2.2 

Also, if testing for nutrients or sediment is required based on TMDL reports, then the source of pollutants should list construction sites as 

the source. For example, no testing should be required for phosphorus from a construction site if agriculture is listed as the major source 

of pollutant. 

Response 
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Refer to Response 4.1. 

Comment ID 0067-A1.001.010

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 4.2.2 

B. The CGP contains a sampling and reporting provision for nutrients similar to that for turbidity if the site discharges into a water 

quality impaired stream. Impaired streams are those that do not meet EPA's numerical water quality criterion or designated use criteria 

due to pollutant loading. Other than a weekly sampling frequency requirement, the sample protocol is essentially the same as for 

turbidity sample collection with a sample collected from each stormwater outfall when stormwater flows occur. Analytical results must 

be reported on a quarterly frequency. EPA reserves the right to expand the list of analytical parameters to other pollutants of concern in 

the impaired water body. This requirement, along with the field sampling for turbidity and increased inspection requirements, will likely 

require that each transmission line project be assigned an environmental technician for the duration of the project. Entergy requests that 

EPA remove these monitoring requirements and, instead, state that compliance with the best management practices required by the CGP 

will constitute compliance with the Clean Water Act for purposes of stormwater pollution control. 

Response 

Refer to Response 4.1. 

Comment ID 0088-A1.001.011

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 4.2.2 

Among the unrealistic requirements are: 

-- the more stringent expectations associated with discharges to impaired waters, coupled with an often ill-defined obligation to 

determine the impairment status of the receiving water body 

Response 

Refer to Response 4.1. 

Comment ID 0105-A2.001.009

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 4.2.2 

 Water quality-based requirements for discharges to impaired waters, including benchmark monitoring and reporting, immediate 

corrective action for benchmark exceedances, and daily visual inspections (Part 4.2.2). CLF strongly supports the Draft CGP's proposal 

for more stringent discharge sampling, stabilization, and inspection requirements at sites discharging to impaired waters. Benchmark 

monitoring, in particular, is a powerful tool to gather needed data on pollutants in construction stormwater and the role they play in 
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specific instances of impairment. Benchmark monitoring provides data necessary to the determinations whether discharges are 

consistent with instream water quality standards and TMDL allocations. Without numeric monitoring data, EPA cannot provide the 

required assurances under Part 1.3 of the CGP and under 40 C.F.R. § 122.4(i). These requirements should apply more broadly than EPA 

proposes in the Draft CGP, to all covered sites discharging to impaired or sensitive waters; as water quality-based limitations, these 

requirements should be triggered solely by receiving water body impairment or special characteristics, not by the size of the covered site. 

In addition to the requirements in the Draft CGP, CLF also urges EPA to consider requiring Low Impact Development and green 

infrastructure stormwater management practices at all sites discharging to impaired waters. These practices are discussed in more detail 

below. 

Response 

Refer to Response 4.1. 

Comment ID 0107-A2.001.012

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 4.2.2 

The method of determination outlined in this section of whether the permittee is discharging to an impaired water that is outlined in this 

section seems appropriate. Benchmark monitoring, at a minimum, is essential for protecting water quality and ensuring 303d waters are 

not further degraded. To fully protect water quality and ensure that 303d waters are protected and cleaned up, permit limits, not just 

benchmark monitoring, should be established for discharges into 303d waters. In addition, benchmark monitoring for impaired 

parameters should be required for discharges to all 303d waters, not just sediment related impaired 303d waters. At the very least, 

benchmark monitoring in E. coli or fecal coliform impaired streams should be required. Benchmark monitoring should be required for 

impaired waters regardless of whether or not a TMDL has been issued. Impaired waters are just as impaired and just as in need of 

protection regardless of whether or not a TMDL has been prepared. Since benchmark monitoring is merely benchmark monitoring and 

not permit limits (which would be more influenced by a TMDL) there is no reason to only require monitoring in TMDL waters. 

Response 

Refer to Response 4.1. 

Comment ID 0109-A2.001.009

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 4.2.2 

The Permit should ensure that construction site runoff will not degrade waterways that are currently healthy. We support t he inclusion of 

additional, "anti-degradation" requirements for new or current ly unpermitted discharges to high quality or Outstanding Resource waters.

Response 

Refer to Response 4.1. 
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Comment ID 0111-A2.001.003

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 4.2.2 

Dow does not support the proposed end-of-pipe numeric effluent limitations since these limits do not consider highly variable 

confounding factors including wet weather conditions, flows, and the individual site geographical characteristics. Alternatively, site 

specific Best Management Practices (BMPs) will enable the permittee to include and consider these highly variable in addition to site 

specific factors. This approach should result in more efficient control of any potential pollutant loadings to the water body. 

Response 

Refer to Response 4.1. 

Comment ID 0111-A2.001.014

Author Name: Yee Philip 

Organization: The Dow Chemical Company 

Issue Category: 4.2.2 

Dow believes that the additional inspection requirement of daily visual examinations for dischargers into impaired waters is overly 

burdensome and does not provide valuable information, especially during no stormwater flow conditions. 

Dow believes that a more appropriate requirement would be to examine critical stormwater controls specifically associated with an 

impaired pollutant within 24 hours after significant rainfall events during safe conditions. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.012

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2 

6. Stabilization Requirements for Sediment and Nutrient-Impaired Waters (Section 4.2.2.2): EPA requires that where the discharge is to 

a water that is impaired for sediment or nutrients, the discharger must immediately initiate stabilization in exposed areas if 

earth-disturbing activities are temporarily or permanently suspended, and then complete certain stabilization activities (including 

activities related to vegetative cover) within three work days of initiating stabilization. This requirement raises several concerns. First, it 

addresses possible impacts after construction has been discontinued, and therefore falls into the realm of "post-construction" discharges. 

We do not believe that post-construction discharges are properly regulated under the CGP, which is intended to address discharges that 

occur during construction activities. In addition, it does not make sense to apply these requirements to temporary suspensions. In the 

Draft Permit, a temporary suspension can be for as few as eight days. So a construction operator could have an eight-day "break" in 

activities that would trigger this requirement, meaning that it would have to immediately start stabilization activities, and within three 

days, would have had to have completed soil conditioning, seeding, watering and mulching. But five days later, the operator would 

resume construction in that area, and all of those activities would have been a waste of time, resources, and seeds. Any stabilization 
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requirements that are imposed should not apply in that situation. 

Response 

Refer to Response 4.1. Refer also to response on stabilization related-comments in section 2 of this document. 

Comment ID 0128-A2.001.018

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2 

In addition to that general concern about the new benchmark monitoring requirement, the Chamber has specific concerns about several 

aspects of these provisions. One of those issues is scope: the benchmark requirements apply to all impaired waters, including those that 

are covered by a Total Maximum Daily Load (TMDL). In a TMDL, EPA or the State would have already considered the contributions 

provided by construction stormwater sources and determined the reductions, if any, that are needed from those sources. Any monitoring 

requirements for those sources should be keyed specifically to how the sources were addressed in the TMDL. As an example, if a TMDL 

specifies no reductions in loadings are needed from those sources, extensive benchmark monitoring would not be appropriate. Therefore, 

any benchmark requirements that are specified in the final Permit should not apply to waters covered by TMDLs. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.021

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2 

For all of these reasons, the benchmark monitoring provisions should be removed when EPA issues the final CGP. If, despite these 

comments, benchmark monitoring is required in the final Permit, then EPA does need to address the specific issues set forth in the 

proposal as to how this requirement will be implemented. One of those issues raised by EPA is that fertilizers that are applied in 

establishing vegetative cover could result in nutrient levels in discharges that exceed benchmarks and therefore require corrective action. 

EPA should adopt an exception from the benchmark requirement for situations where vegetative cover is applied. 

Response 

Refer to Response 4.1. 

Comment ID 0145-A2.001.019

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 4.2.2 

It is reasonable to expect dischargers to impaired waters to meet higher construction stormwater standards than dischargers to waters that 

are not impaired. Streams are resilient if given the opportunity to recover. Lowering pollutant loading rates can help facilitate stream 
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recovery. Moreover, it is unreasonable to continue pollutant loading to streams that are already impaired by that pollutant. Responsible 

individuals and corporations see the value of protecting the values supported by healthy streams and should not object to more stringent 

discharge standards for impaired streams or critical habitat. 

The goal of the Clean Water Act clearly states that protection of the physical, chemical, and biological qualities of our waters is intended. 

Using NPDES permits to achieve that protection is well established. Therefore, it is appropriate to expand the focus of this construction

general permit to address biological impairments that are clearly attributable to either sediment or nutrients. 

Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.031

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.2.2 

1. Benchmark requirements are not applicable to 303( d) listed streams that do not have a TMDL. The Tables in Appendix] show that 

there is minimal benchmark data available for Nitrogen, Phosphorus, and TSS for 303( d) water bodies. Therefore, the majority of the 

sampling under this section will not be applicable, and will be a waste of time and money. Benchmark sampling only makes sense for 

approved TMDLs for sediment, TSS, or Turbidity for construction projects. Nitrogen and Phosphorus should not be required because 

there are not benchmark levels set for most water bodies and the number of phosphorus and nitrogen TMDLs is low. 

2. The Federal Register does not support including impaired waterbodies. 

Response 

Refer to Response 4.1. 

4.2.2Q DISCHARGES TO IMPAIRED WATERS; FOCUS ON BIOLOGICAL 

IMPAIRMENTS

Comment ID 0015-A2.001.017

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 4.2.2Q 

Q18. Benchmark monitoring - Agree, for TMDL waters only. No exception for fertilization since compost alternatives likely have lower 

nutrient runoff loads. Consider monthly averaging of flows to determine benchmark compliance. Fisheries could be protected with 

different monitoring parameters as surrogates such as TSS. 

Response 
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Refer to Response 4.1. 

Comment ID 0015-A2.001.019

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 4.2.2Q 

Q20. Impaired waters - Agree, additional requirements are reasonable. The EPA webinar implied only sediment and nutrient impairment 

were to be considered, but this language is much broader. EPA needs to reassess how biologic impairment would be evaluated since 

many times the impairment comes from instream sediment creation, sediment transportation and carrying capacity volumes of concern.

Response 

Refer to Response 4.1. 

Comment ID 0024-A2.001.013

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 4.2.2Q 

EPA should expand the definition of impaired waters subject to the protections in Part 4.2.2. of the Draft 2011 COP to include waters 

suffering from biological impairments that are attributable to sediment and nutrients. Although sediment and nutrients (and their related 

parameters) are the most commonly-recognized impairments associated with construction stormwater, biological impairments 

attributable to these pollutants are also common. Accordingly, EPA should make clear that these biologically-impaired waters are within 

the scope of waters subject to the protections of Part 4.2.2. 

Response 

Refer to Response 4.1. 

Comment ID 0051-A2.001.012

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 4.2.2Q 

Additionally, in regards to benchmark monitoring, we support the proposal to expand the focus on impairments for sediment and nutrient 

data to cover biological impairments that are attributable to either sediments or nutrients. Biological impairments can be significant 

impediments to the designated uses and the ecological integrity of the waters. Thus they should be similarly accounted for if the 

discharge of nutrients or sediment from construction activities in large areas has the potential to further the negative impact of the 

impairment. However, we request clarification on how EPA would define these biological impairments. We also request information on 

how EPA would determine the correlation between the biological impairment and the sediment and nutrient loads, and subsequently 

establish an appropriate numeric limit for the benchmark monitoring procedures. This addition to the permit is important to MRWC 

because the Merrimack River and its estuary are habitat for the endangered Shortnose Sturgeon and the Atlantic Sturgeon, and we 

request additional information on how the benchmark monitoring as a result of biologically impaired waters would occur. 
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Response 

Refer to Response 4.1. 

Comment ID 0074-A2.001.023

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 4.2.2Q 

EPA has proposed stringent requirements for site stabilization and site inspection in this draft permit. EPA should give more focus on 

additional BMP requirements and ensure appropriate corrective actions are taken after site inspections. Additional monitoring 

requirements do not provide useful information but, instead, puts an unnecessary financial burden on permittees (also see Request 18).

Response 

Refer to Response 4.1. 

Comment ID 0080-A2.001.030

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 4.2.2Q 

Partner Response: The Partners suggest that there is insufficient data available to directly correlate construction site TSS loading and any 

resultant biological impairment to a receiving water. A time intensive and resource consuming "fate and transport study" for each 

permitted site would have to be prepared. Preparing a "fate and transport study" for individual construction sites is simply not practical.

Response 

Refer to Response 4.1. 

Comment ID 0085-A2.001.022

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 4.2.2Q 

Rockville supports these requirements 

Response 

Refer to Response 4.1. 

Comment ID 0115-A2.001.020

Author Name: Smith Timothy 
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Organization: National Grid 

Issue Category: 4.2.2Q 

Samples for Total Nitrogen and Total Phosphorus must be submitted to a laboratory, which takes 5 to 7 days for normal reporting 

turnaround of analytical results. 

The requirement to address exceedances within 7 days is not feasible (this part directs one to part 6.3.1.2). The regulations may need to 

clarify that "the time of discovery of this condition" coincides with the time analytical results are available. 

While it is possible to put a rush on laboratory testing, the costs to do so are significantly higher than normal results reporting. On a linear 

utility project, the costs, multiplied by several potential discharge points, can be significant if a rush is required on each sample to meet 

the 7 day timeframe. 

National Grid recommends that there be an Appendix that provides references to Best Management Practices designed to attenuate 

nitrogen and phosphorus that may be in solution, as opposed to adsorbed or absorbed to particulates that are managed through best 

management practices that are designed to control sedimentation. Manufacturers are beginning to test their best management practices 

(e.g., compost filter socks, etc.) for nutrient removal capabilities; however, temporal effectiveness for such BMPs is not readily 

available. It is understood that compost and mulch BMPs can be effective at nutrient removal, but their effectiveness drops over time. 

We suggest that EPA provide guidance for selecting and maintaining BMPs, regardless of manufacturer testing results, in a manner that 

supports the requirements of this part. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.011

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2Q 

Another issue raised by EPA is whether the benchmark provisions should be expanded to apply to waters that are habitat for listed 

endangered or threatened species. We believe that application of benchmarks in those situations would be completely inappropriate. If 

benchmarks pose major problems, as described above, in situations where there are identified pollutant-related impairments, then use of 

benchmarks would be even less suitable in species-related situations, where the connection between pollutant levels and the problem is 

even more tenuous. Benchmarks should not be applied to address species issues. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.018

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2Q 
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EPA asks for comment on whether the requirement for sediment or nutrient impairments should be expanded to cover biological 

impairments that are "attributable to either sediment or nutrients." We do not think that this expansion of the nutrient/sediment 

provisions would be appropriate. If EPA or the State believe that an impairment is "attributable" to sediment or nutrients, and wat to 

impose controals on those pollutants, then they should girst ament the State's list of impaired waters to make it clear that the waterbody 

is listed for sediment or nutrient impairments. A subjective judgement that a listed biological impairment is "attributable" to sediment or 

nutrients is not an acceptable substitute for a clear listing decision as to a particular pollutant. 

Response 

Refer to Response 4.1. 

Comment ID 0126-A2.001.017

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 4.2.2Q 

CSC would not be supportive of requiring benchmarking on impaired waters if a TMDL has not been approved. 

If benchmark is required CSC supports limiting it to over 10 acre disturbances. 

CSC supports exempting the use of nitrogen and phosphorous to establish vegetative cover. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.017

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2Q 

The primary new water quality-based requirement in the Draft Permit is the benchmark monitoring provisions for discharges to waters 

that are impaired for sediment or nutrients. EPA is seeking comment on several aspects of these provisions, apparently recognizing that 

these new requirements pose substantial concerns. The Chamber believes in general, benchmark monitoring is not an appropriate tool to 

use in assessing the effectiveness of construction stormwater controls. The Chamber believes sporadic sampling of effluents during 

storm events will not provide an accurate picture of water quality impacts, and are not a true indicator of how well existing controls are 

performing. It is far more useful to focus on specific best management practices (BMPs) that are being implemented, utilize available 

information as to the effectiveness of these practices in reducing pollutant loadings, and ensure that the practices are applied effectively 

on an ongoing basis. 

Response 

Refer to Response 4.1. 
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Comment ID 0128-A2.001.022

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2Q 

Another issue raised by EPA is whether the benchmark provisions should be expanded to apply to waters that are habitat for listed 

endangered or threatened species. The Chamber believes that application of benchmarks in those situations would be completely 

inappropriate. If benchmarks pose major problems, as described above, in situations where there are identified pollutant-related 

impairments, then use of benchmarks would be even less suitable in species-related situations, where the connection between pollutant 

levels and the problem is even more tenuous. Benchmarks should not be applied to address species issues. 

Response 

Refer to Response 4.1. 

Comment ID 0130-A2.001.024

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 4.2.2Q 

22. DISCHARGE LIMITATIONS FOR IMPAIRED WATERS. Part 4.2.2. EPA asked for comment on whether benchmark monitoring 

is an appropriate tool to assess the effectiveness of stormwater controls. If EPA is unsure it is effective, why would it be required? Set the 

threshold higher. 

Response 

Refer to Response 4.1. 

Comment ID 0137-A2.001.022

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 4.2.2Q 

Regulating Biological Impairments 

We believe the TMDL is designed to address sediment, nitrogen and phosphorous only and does not directly regulate fish and micro 

invertebrates or other biological impairments. Water quality improvements resulting from the TMDL limitation on sediment and 

nutrients will provide biological improvements. 

Response 

Refer to Response 4.1. 

Comment ID 0145-A2.001.018
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Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 4.2.2Q 

The U.S. Fish and Wildlife Service designates critical habitat for most federally listed species. We encourage the EPA to consult with the 

Service and reach an understanding of how much, if any, additional sediment or nutrient loading is compatible with maintaining habitats 

critical for the survival of imperiled species. We hope that EPA will recognize that in some cases, any additional pollutant loading may 

not be compatible with protecting critical habitats and these imperiled species. In those cases, developers should meet a higher standard 

of water quality protection for those projects that might impact designated critical habitat. Developers need to include estimates for 

meeting higher construction stormwater costs in their budgets if they plan projects that may potentially impact streams with critical 

habitat. We cannot continue to have development as it is typically done in these areas that are among the very last habitats available for 

these species. While economic development is very important, it should not happen at the expense of imperiled species. 

Response 

Refer to Response 4.1. 

4.2.2.1 WATER QUALITY BENCHMARK MONITORING

Comment ID 0025-A1.001.034

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 4.2.2.1 

As discussed in comment #24 [See Comment ID 0025-A1.001.028] with reference to 3.3.2, sampling on a 2-hour basis is clearer in terms 

of implementation. 

Response 

Refer to Response 4.1. 

Comment ID 0037-A1.001.036

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.1 

It would be helpful to stakeholders in determining the utility of benchmark monitoring if EPA would provide the stakeholders with any 

analysis they have conducted on the effectiveness of benchmark monitoring required by EPA's Multi‐Sector General Permit for 

stormwater discharges associated with industrial activities or the location where this data is available. 

Response 

Refer to Response 4.1. 
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Comment ID 0037-A1.001.037

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.1 

Compliance with Part 4.2.2 should only be required for sites that discharge to those impaired waters without an approved or established 

TMDL. Benchmark monitoring should be required only for those impaired waters without an approved or established TMDL. 

Response 

Refer to Response 4.1. 

Comment ID 0037-A1.001.038

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.1 

Benchmark monitoring should only be required for those construction sites that discharge to an impaired water without an approved or 

established TMDL and that have ten or more acres disturbed. The comments on Part 3.3.2 Sampling frequency are also applicable to this 

Part. 

Response 

Refer to Response 4.1. 

Comment ID 0046-A1.001.022

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 4.2.2.1 

The Clean Water Act is very clear that controlling the in-stream water quality (State Water Quality Standards) is to be strictly regulated 

by the States through Sections 303 & 401. The Benchmark Sampling requirement in this section may not be aligned with identifiable 

sources in the TMDL and actions of the TMDL Implementation Plan, resulting in additivle regulatory requirements above and beyond 

what the State has required. This may be further exasperated if 

Benchmark Sampling is required for every impairment. If a TMDL has not identified 

"construction activities" as a pollutant source to a water quality impairment, the Construction and Development sectors should not be 

burdened with the sampling? 

4.2.2.1. Water Quality benchmark sampling 

New Hampshire DOT has experience measuring construction stormwater discharges and in-stream water quality through its 401 State 

Water Quality Certification process for a number of projects. It is very complicated and is much more in depth than is laid out in this 

permit. To adequately assess the relationship between "discharge" and "in-stream" water quality, one needs to add background sampling. 

In order to avoid instantaneous State Water Quality Violations at the point of discharge, the Department needed to introduce the concept 
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of a "Mixing Zone". However, in almost every case the discharge overwhelms the background dilution and exceeds the State Water 

Quality Standard. Highway projects are not always situated next to big rivers or the ocean like sewage treatment plants for which most 

State Water Quality Standards were originally drafted to regulate. Appling State Water Quality Standards, which are set up to regulate 

"point discharges" in highly controlled situations for sewage treatment and industrial facilities has been difficult in linear constI¥ction 

situations. We are still working with our State regulators to craft a regulatory solution that marries "discharge" limits with "in-stream" 

water quality standards to regulated construction stormwater discharges. 

Nitrogen and Phosphorus 

New Hampshire DOT has experience measuring Total Nitrate and Total Phosphorous in our construction stormwater discharges. Our 

State regulators required the DOT and its Contractors to test our discharges from our flocculated water for Nitrogen and Phosphorous to 

a nutrient impaired lake. The Department found that the concentration of nitrate was unchanged, and the phosphorous concentration was 

approximately one-half after passing through our BMPs. We also noted both were in much lower concentration than found in 

undisturbed landscape runoff. These findings make sense considering the following: 

1) Construction sites are usually devoid of topsoil, which contain the bulk of the nutrients. Most of the organic nitrogen and phosphorous 

was removed at the onset of earthmoving activities and is returned, seeded and stabilized the end of the project. 

2) Construction Best Management Practices are designed to remove particulates and let the water, with it dissolved phased nutrient pass 

through. Phosphorous in the soil is generally 50% precipitatible (solids) and 50% dissolved phase (aqueous). Therefore, approximately 

one-half, the solid form of phosphorous, is captured by the BMPs and the other half flows though the BMP. Almost all the nitrogen 

originates from nitric acid in the rain (aqueous) and is unaffected by the construction BMPs, which are designed to collect particles. 

3) We also found that the turbidity and nitrogen concentrations limits imposed by our regulators counteracted each other violating 

pre-determine benchmarks for discharge. Early in a storm event, we were not able to discharge stormwater because the turbidity was too 

high even though nitrate level was sufficient. Later in the event, the turbidity level was acceptable but the nitrate level was too high to 

release the water. EPA should be careful not to tighten up the regulations to the point where all discharges are prohibited. 

If there are exceedances for Nitrate or Phosphorous, there is little the construction industry can do to renovate the runoff on site. There 

are no known Construction BMPs that remove aqueous nitrogen or phosphate from stormwater. Aqueous nitrogen is removed from 

sewage with anoxic activated sludge treatment. However, the concentrations are usually hundreds of times greater than are found in 

stormwater, and require a carbon source in an anaerobic environment to work. Permanent Stormwater treatment ponds are somewhat 

effective, but usually need time to establish flora and fauna that make them work. They are also highly sensitive to sediment. 

Fertilizer is necessary to establish vegetative grown in New Hampshire. The ultimate goal of erosion control is to establish a long lasting 

vegetative cover. In areas where our State Regulators have restricted the use of fertilizer, growth has been sporadic and patchy requiring 

multiple applications of seed and mulch leading to increased sedimentation of surrounding waterbodies.

Response 

Refer to Response 4.1. 
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Comment ID 0053-A2.001.026

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.1 

4.2.2.1 Water quality benchmark monitoring. This Permit condition adds confusion to monitoring of turbidity in Part 3 of the Permit. 

There is little benefit of having permittees determine if their discharge(s) fall below benchmark parameters of very few listed waterbody 

reaches in Appendix J. Furthermore, many of the "Benchmark" parameters in Appendix J have not been established and state: "No 

benchmark/monitor for information purposes only". Is EPA requesting that permittees unqualified in laboratory sampling techniques 

build unreliable information for future benchmark development? Part 3 of the Permit already requires permittees to take corrective 

action(s) in Part 6.3.1/Part 6.3.2 based on exceedances. 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.027

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.1 

e. Reporting benchmark monitoring results to EPA: The Permit contains no established means of reporting monitoring of benchmark 

results to the applicable EPA Regional Office. 

Has EPA developed an official Benchmark Monitoring Report form similar to a Discharge Monitoring Report (DMR)? 

Response 

Refer to Response 4.1. 

Comment ID 0060-A1.001.017

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 4.2.2.1 

17. Section 4.2.2.1.b.ii. - The benchmark monitoring requirements have the same issues for sampling frequency as the turbidity sampling 

requirements. See comments 11 and 12 above [See comment ID 0060-A1.001.011 and 0060-A1.001.012.] 

Response 

Refer to Response 4.1. 

Comment ID 0060-A1.001.018

Author Name: Gasper David 
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Organization: NYS Department of Environmental Conservation 

Issue Category: 4.2.2.1 

18. Section 4.2.2.1.d./ Table 4-1 - The "Monitoring Frequency" requirement listed in Table 4-1 does not agree with the text in Section 

4.2.2.1.d.. Table 4-1 requires a monitoring frequency of once per week while Section 4.2.2.1.d. indicates "samples in any day". These 

sections must be updated accordingly 

Response 

Refer to Response 4.1. 

Comment ID 0061-A1.001.003

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 4.2.2.1 

1. EPA Should Confirm When Disturbed Land Reverts to "Undisturbed" Status 

We believe, however, that owing to the fact that LCPs are in constant motion and leave relatively little disturbed land exposed to 

stormwater behind their moving front, it may be unnecessary to resolve these difficult questions. That is, we believe that it will be rare 

that an LCP will ever trigger requirements for disturbed acreage associated with either the application of the yet-to-be established 

turbidity standard or the benchmark sampling requirement for discharges to sediment- or nutrient-impaired waters. The key issue here is 

the point at which land reverts from "disturbed" to "undisturbed" status. Through our comments below, we ask that EPA consider and 

confirm our understanding that compliance with the requirements of 40 C.F.R. 450.21(b) terminates land's status as "disturbed" for 

purposes of 40 C.F.R. 450.22(a) and draft Permit Section 4.2.2.1. 

With respect to a technology-based numeric standard (such as the expected turbidity standard), the ELG states that its standard would 

apply "during construction activity that disturbs [20 or 10, depending upon the date] acres of land at one time, . . .." 40 C.F.R. 450.22(a) 

(emphasis added). Similarly, the requirement to perform benchmark monitoring of discharges to sediment- or nutrient-impaired waters 

applies "[i]f your construction activities disturb 10 or more acres of land at anyone time, . . .." Draft Permit at 4.2.2.1 (emphasis added).

It is our understanding that, for the purposes of the ELG, land is considered to be "disturbed" from the time it is subjected to construction 

activity until the time it has met the stabilization requirements stated in the ELG at 40 C.F.R. 450.21(b). That section provides as follows:

(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. Stabilization must be completed within a period of time determined 

by the permitting authority. 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. 

40 C.F.R. 450.21(b) (emphasis added). 

The ELG provision quoted above thus imposes two requirements: (1) when stabilization must be commenced (which is, when 

construction has ceased and will not resume for a period exceeding 14 days); and (2) when such stabilization must be completed (which 

the ELG leaves to the permit writer to decide). To fill in the second element, the Draft Permit provides for completion as follows: 
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2.2.1.2 Deadline to complete stabilization activities. Within 7 calendar days of initiating stabilization on exposed portions of your site 

consistent with Part 2.2.1.1, you are required to have completed: 

a. For vegetative cover, all soil conditioning, seeding, watering, mulching, and any other required activities related to the planting and 

establishment of vegetation; and/or 

b. For non-vegetative cover, the installation or application of all such nonvegetative measures. 

Draft Permit at 2.2.1.2. 

Thus, in order to be in compliance with the ELG's stabilization requirement, (1) stabilization must commence within the specified time 

(as modified for steep slopes or other special circumstances) and (2) the permittee must have completed the stabilization activities 

enumerated in Draft Permit Part 2.2.1.2 within 7 days of their initiation as required by that section. Once these conditions are satisfied it 

is our understanding that land, previously disturbed, is considered to have met the stabilization requirements of 40 C.F.R. 450.21(b) and, 

thus, to no longer be "disturbed" for purposes of computing the total acreage requirements under 40 C.F.R. 450.22(a) and Draft Permit 

Part 4.2.2.1. We ask that EPA review this interpretation of the requirements of the ELG and its application under the Draft Permit and 

confirm them as correct. 

2. Sampling Discharges from LCPs Generally Is Impracticable 

If EPA is unable to provide the confirmation requested above, for construction projects generally or for LCPs in particular, it should 

nevertheless exempt LCPs from discharge sampling requirements, for the following very practical reasons. 

First, there typically is no good way for the LCP operator to prevent run-on onto his long, narrow project. As noted above, a barrier to 

stormwater on the uphill side or sides of the LCP, even if it could be fit into the narrow width of the easement, would create a new storm 

water channel and block designed flow into the drainage swale. 

Even if there was no such easement limit or flood risk, the very act of installing a silt fence or other perimeter control to prevent run-on 

would require at least digging a trench six to twelve inches deep in which to tie in the base of a silt fence. One would be faced with the 

prospect of digging that trench and later removing it, each time disturbing the soil surface, in order to preclude stormwater run-on onto a 

parallel compacted trench installed as part of the LCP. Since a typical LCP has such limited potential to increase sediment loading 

anyway, the net environmental effect (of installing and removing a perimeter control to limit run-on onto an LCP) would seem to be 

negative. 

If an LCP operator thus cannot practically speaking prevent run-on, the operator cannot separate out and sample the stormwater 

discharge originating only from the LCP. As noted above (at footnote 7[FN 7]), we believe the Agency cannot legally require such 

mixed discharges to meet a technology-based numeric limitation, unless the Agency's underlying record and calculations account for the 

contribution from the non-construction stormwater runoff. 

The relatively small flows and discharges specifically from the typical LCP segments between streams would be so small, that the 

environmental impact of the sampling activity would be a significant counterweight. The sample collector wading across a small stream 

to collect swale discharge samples from both sides may have more adverse impact through disturbing natural sediments than the impact 
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avoided through enforcing the discharge limitation in the LCP context. 

[FN 7] See comment 002, FN 7. 

Response 

Refer to Response 4.1. 

Comment ID 0062-A1.001.050

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 4.2.2.1 

So construction can be phased to avoid monitoring, but you may discharge turbid water? 

Response 

Refer to Response 4.1. 

Comment ID 0068-A1.001.029

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 4.2.2.1 

However, adding Benchmark Monitoring (Part 4.2.2) for waters impaired by sediments or nutrients is an unproven and unnecessary 

obligation that will do more to fuel citizen suit liability than protect the environment. That has been the experience with EPA's industrial 

general permit and recent attempts (including by the recently proposed California Industrial General Permit) to inappropriately convert 

benchmark monitoring into numeric effluent limitations. EPA has not provided any justification or scientific rationale for its benchmark 

levels nor has it identified any reason why the current approach mandating compliance with locally-derived (and EPA approved) 

TMDLs is insufficient to demonstrate compliance with water quality standards. 

Response 

Refer to Response 4.1. 

Comment ID 0080-A2.001.021

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 4.2.2.1 

Partner Response: The Partners do not support any benchmark sampling as now required under the proposed CGP. In arid areas it will be 

very difficult to obtain any sample in the first hour when precipitation is immediately absorbed and infiltrates into the unsaturated soils at 

the permitted construction site. Depending upon the rainfall event obtaining two additional samples will be equally as challenging. In 

other non-arid areas of the country a statistically-based, area-specific lower precipitation threshold limit may be appropriate but in the 

arid west a one-size-fits-all sampling approach that works well in wetter climates is not useful. 
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Response 

Refer to Response 4.1. 

Comment ID 0087-A1.001.031

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 4.2.2.1 

The CGP provides that, if a discharge occurs to a water impaired for sediment and/or nutrients, and 10 or more acres of land are disturbed 

at any one time, "then you must conduct water quality benchmark monitoring for the sediment and/or nutrient parameter(s) for which the 

receiving water is impaired." Section 4.2.2.1. While UWAG does not oppose the general concept of additional, targeted monitoring in 

impaired waters (particularly when tailored to an approved TMDL), UWAG is concerned that EPA's proposal is unworkable in practice. 

First, many states lack numeric sediment and/or nutrient criteria, so their listing decisions often rely on the underlying uses as opposed to 

any specific criteria. Second, absent numeric criteria, proper benchmarks cannot be derived without a waterbody-specific analysis that 

compares causes and effects in the context of the specific use(s) to be protected. The benchmarks proposed by EPA are arbitrary, 

unreasonable and likely unattainable in practice, especially given ambient background conditions. Third, linear utility projects may 

involve multiple small and disconnected disturbances within different watersheds. As a result, EPA needs to clarify that its special 

monitoring provision is triggered by the disturbance of "10 or more acres of land at any one time that drain to the same impaired 

waterbody." Otherwise, a linear utility project operator may be forced to conduct additional monitoring based on small, isolated 

disturbances that do not even drain to an impaired waterbody. Fourth, EPA's proposed benchmarks are absurdly low (e.g., as low as 1.0 

NTU turbidity), which cannot conceivably serve as a measure of performance or compliance (if it did, everyone would fail). 

Response 

Refer to Response 4.1. 

Comment ID 0090-A1.001.033

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 4.2.2.1 

EPA's water quality provisions must consider the minimal impacts that natural gas linear projects have on water quality: the trenches are 

relatively narrow, are constructed over a short duration at any one location, utilize construction best management practices (BMPs) to 

minimize sedimentation and erosion, and typically do not involve the installation of new impervious surface materials. AGA's comments 

above on the "acreage" threshold, for example, demonstrate that the earth disturbed in constructing or renovating a housing development 

or suburban shopping mall is rectangular in nature whereas gas pipe installation work is linear. A linear construction project ranging 

from a mile to several miles, a few feet in depth, and about 10 to 12 feet in width does not fit the wing-span approach taken in Part 4.2.2.1 

to measuring earth disturbance activities for water quality control. 

Response 

Refer to Response 4.1. 
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Comment ID 0093-A2.001.009

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2.2.1 

Both the language and the legislative history of Section 302 of the Clean Water Act make it clear that NPDES stormwater permits should 

include water quality limits only when national technology-based standards fail to produce the desired level of water quality in a given 

watershed. Now, for the first time, EPA proposes to include such a technology-based standard in its CGP. At this point in the process, it 

is quite clearly impossible for EPA to know whether that standard will or will not be sufficient to meet the water quality standards for any 

one waterbody. EPA cannot possibly justify the additional water-quality based effluent limits (WQBEL) found in the Draft (i.e., the new 

stabilization, inspection and monitoring requirements for construction discharges to sediment- or nutrient-impaired waters). According 

to 33 U.S.C. § 1303 (40 CFR § 122.44(d)(1)(i)-(iii), (vii)), EPA may impose additional NPDES permit conditions only if EPA has 

determined - based on specific factors set forth in EPA regulations - that the terms are necessary to avoid an "excursion" above a specific 

water quality standard. As far as AGC is aware, EPA has not made the required determinations nor provided any justification or 

scientific rationale for these additional conditions, particularly for the benchmark levels, which are not tied to any specific water quality 

standard. 

AGC believes that EPA should continue to rely on its Total Maximum Daily Load (TMDL) program to protect impaired waterbodies. 

That program provides a well-established process for states to meet their water quality standards and/or to address threats to those 

standards. It enables the states readily to require NPDES stormwater permittees to comply with appropriate TMDLs - which may include 

numeric benchmarks, in addition to stringent controls - if these permittees discharge pollutants to waters impaired for those pollutants. 

This is a logical and effective way use the general permitting scheme to address water quality requirements. It is an approach that that 

EPA has long considered effective, and EPA has yet to produce any information that would justify the proposed change in course. 

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.065

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2.2.1 

Additionally, TMDL type regulations are supposed to apply to all stormwater runoff within the affected watershed, not just runoff from 

construction sites. The sediment and nutrient limit criteria for TMDLs are considered guidelines for the types of BMP practices. Urban 

and suburban runoff, stormwater discharge from industrial sites, and also especially agricultural runoff all contribute to the impairment 

of the watershed, and these, along with construction sites, are required to provide additional BMPs as prescribed by the TMDL. None of 

these other types of runoff have been singled out for sampling. Construction sites, which by definition are temporary, are being singled 

out for sampling even though they represent only a tiny fraction of the total stormwater runoff within the watershed. EPA should 

abandon the need for benchmark monitoring and, thus the proffered benchmark values. 

Response 

Refer to Response 4.1. 
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Comment ID 0096-A1.001.066

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2.2.1 

EPA has proposed a set of requirements for discharges to sediment or nutrient-impaired waters that do not yet have an EPA-approved or 

established TMDL/water quality benchmark monitoring requirement. The CGP is not an appropriate vehicle to establish such standards, 

and doing so may be beyond EPA's authority under the CWA. The purpose of the TMDL is to analyze the full suite of issues, 

contributors, and reduction strategies available to meet the necessary reductions, then to set allocations. Without this comprehensive 

study, EPA should not inappropriately use the CGP to mandate additional requirements that may or may not be needed and may or may 

not help the waterbodies meet their pollutant reduction goals. 

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.067

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2.2.1 

The CGP also requires sampling for nutrients, namely total nitrogen and total phosphorus, with samples taken up to three times during a 

day, presumably upstream and downstream at least once per week when there is discharge. NAHB is opposed to this monitoring. The 

proposed CGP already provides extensive additional protection to waters of the US, including a 50 foot vegetative buffer (or equivalent), 

monitoring requirements, and additional BMPs. Further, the proposed sampling schedule and protocol is far too frequent, costly, and 

potentially hazardous to the site personnel. 

Unlike turbidity monitoring, EPA is proposing complex lab tests which are much more expensive and sensitive than turbidity 

monitoring. Total nitrogen is the sum of the total Kjehldahl nitrogen (TKN) and the nitrate-nitrite nitrogen, which are at least two 

separate tests, or maybe more, depending how they are analyzed by the lab. The phosphate test is supposed to be Total phosphate, which 

is not the appropriate test for this type of nutrient monitoring. Presumably these tests for nutrients are supposed to find out if a 

construction site is overusing fertilizers to enhance the growth of grass or other covering vegetation, which upon entering a water body in 

excess can cause eutrophication through over-rapid biological growth. Total phosphate is not the correct analytical test for this purpose, 

in that many soils naturally contain high concentrations phosphorus minerals that also show up in this test. For example, in some areas of 

the country, topsoil contains more than 20% phosphate as P and has been mined for years for its phosphate content. These mineral 

phosphates (such as apatite) are not water soluble, and therefore are not available for the growth of algae and other aquatic organisms. If 

they were, every stream in these areas would be overgrown with algae. Given that the total phosphorus content in these soils is so high, 

even relatively low turbidity water containing these soils will contain very high concentrations of "total" phosphate. A more appropriate 

test to assess the presence of excess fertilizer would be either dissolved phosphate or some form of acid leachable "available" phosphate. 

The issue of nutrient testing is far more complex and far more expensive than a few simple additional tests. Because of the nutrient 

content of many existing soils and the limited additional nutrient sources associated with construction activities, NAHB opposes having 
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to monitor for nutrients. Furthermore, because the use of fertilizer on construction sites is limited, it makes little sense to focus on 

construction sites and not on other sites (developed residences, parks, agricultural, etc.) that likely use far more fertilizer for longer 

periods of time than construction sites. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.006

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2.1 

5. Benchmark Monitoring for Sediment and Nutrient-Impaired Waters (Section 4.2.2.1): The primary new water quality-based 

requirement in the Draft Permit is the extensive set of benchmark monitoring provisions for discharges to waters that are impaired for 

sediment or nutrients. EPA asks for comment on several aspects of these provisions, apparently recognizing that these new requirements 

pose substantial concerns. The FWQC believes that benchmark monitoring is not an appropriate tool to use in assessing the effectiveness 

of construction stormwater controls. As we have expressed before in commenting on previous EPA permits, sporadic sampling of 

stormwater discharges during wet-weather events will not provide an accurate picture of water quality impacts, and will not tell very 

much about how well existing controls are performing.[FN 4] It is far more useful to focus on specific best management practices 

(BMPs) that are being implemented, utilize available information as to the effectiveness of these practices in reducing pollutant loadings, 

and ensure that the practices are applied effectively on an ongoing basis. 

[FN 4] In addition, stormwater runoff quality, particularly in arid or semi-arid areas, is often 

influenced strongly by the type and intensity of the storm event; as a result, a simple 

comparison of discharge levels to benchmark concentrations will not give a reliable 

indication of BMP effectiveness 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.010

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2.1 

For all of these reasons, the benchmark monitoring proVIsIons should be removed when EPA issues the final CGP. If, despite these 

comments, benchmark monitoring is required in the final Permit, then EPA does need to address the specific issues raised in these 

comments, as well as the issues set forth in the Draft CGP, as to how this requirement will be implemented. One of those issues raised by 

EPA is that fertilizers that are applied in establishing vegetative cover could result in nutrient levels in discharges that exceed 

benchmarks and therefore require corrective action. EPA should adopt an exception from the benchmark requirement for situations 

where fertilizers are applied to vegetative cover. 
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Response 

Refer to Response 4.1. 

Comment ID 0129-A2.001.003

Author Name: Lauenstein P. 

Organization: 

Issue Category: 4.2.2.1 

Benchmark monitoring and corrective actions are important - had this site been required to conduct benchmark monitoring under 

representative conditions, as is proposed in the CGP, the site operator would have faced a greater degree of awareness of, and 

accountability for, the pollution leaving the site. Timely corrective action could have been taken to prevent the degradation of the 

surrounding ecosystem that is shown in these photos. 

Response 

Refer to Response 4.1. 

Comment ID 0159-A1.001.014

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 4.2.2.1 

Numerous aspects of the benchmark monitoring are impractical. Monitoring from discharge points but not from the regulated waters 

provides a data set that is not useful in measuring impact on the resource. Projects employing Environmental Site Design will not have 

the discharge points referenced in the permit. We believe any measurement should account for pre-construction background levels and 

offsite influences but does not favor a default background level that is based on modeling or averages. Monitoring at 10 acres is not 

practical. The minimum threshold should be a project size that triggers an individual permit. We do not see what EPA will do with the 

volume of monitoring data generated by this requirement. 

Response 

Refer to Response 4.1. 

Comment ID 0168-A1.001.004

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 4.2.2.1 

Sampling Protocols, ELG Monitoring versus Benchmark Monitoring: Section 2.1.2, Page 11-12, (Section 3.3, page 31-33): Several 

comments are offered concerning how the C&D Rule has been incorporated into this draft permit: 

-- The proposed approach for water quality benchmark sampling for impaired waters actually makes more sense than the approach for 

water quality monitoring for effluent limit guidelines. Providing two different required monitoring approaches within the same permit is 

redundant and confusing. Given that many of the listed streams do not have identified benchmark values, we suggest using benchmark 
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type sampling for water bodies that require monitoring, and for which there is no established numeric limit. 

Response 

Refer to Response 4.1. 

Comment ID 0168-A1.001.010

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 4.2.2.1 

-- Phosphorous or nitrogen would only be used on a construction site to establish vegetation. Requiring monitoring for these parameters 

only if the site discharges to waters impaired by nutrients, or if these materials are used onsite may be as effective, and would be less 

costly than simply requiring benchmark monitoring for phosphorous and nitrogen. 

Response 

Refer to Response 4.1. 

Comment ID 0168-A1.001.011

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 4.2.2.1 

-- There are no known biological impairments that would be attributed to sediment or nutrients associated with construction sites, so 

expanding the sampling requirements to consider biological impairments within the CGP should not be necessary. 

Response 

Refer to Response 4.1. 

4.2.2.1Q BENCHMARK MONITORING; 10-ACRE THRESHOLD; LISTED 

FISH SPECIES HABITAT

Comment ID 0012-A1.001.007

Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: 4.2.2.1Q 

Monitoring should occur with or without TMDLs approved or established. The State of California, Los Angeles Regional Board, has set 

aside re-issuance of the Los Angeles County MS4 Permit, placing pollutant mitigation in limbo. 

Benchmark monitoring would need to be based on seasonal conditions clearly stated with reporting based on the applicable benchmark. 
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In areas like Los Angeles, oil fields, the rise of oil to the surface and methane seepage is an ongoing problem that contributes to water 

pollution. There should not be benchmarks to avoid this mitigation as the public health and safety are an issue. 

Response 

Refer to Response 4.1. 

Comment ID 0024-A2.001.014

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 4.2.2.1Q 

We agree with EPA's proposal to use benchmark monitoring as a tool for assessing the effectiveness of construction stormwater controls 

and whether a discharge is contributing to existing impairments, see Part 4.2.2., and we urge EPA to require such monitoring regardless 

of whether a TMDL has been established for the impaired water at issue. Monitoring should be coextensive with the activities covered by 

the COP. However, we believe EPA should withdraw the proposed 10-acre disturbance threshold in Part 4.2.2.1. below which no 

monitoring would be required. The I O-acre disturbance threshold is much too high and could result in significant cumulative pollution 

of waterways with no associated monitoring of the extent and source of that pollution. 

Response 

Refer to Response 4.1. 

Comment ID 0045-A1.001.008

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 4.2.2.1Q 

4.2.2.1- "Water Quality Benchmark Monitoring." We believe this is a useful tool to assess the effectiveness of management practices so 

that construction activities do not contribute to existing impairments, regardless of whether the impaired water has a TMDL written for 

it or not. Since we are most concerned with our own, Chesapeake Bay watershed, this General Permit's effect is limited for the most part 

to the District of Columbia. As noted previously, given its highly urban setting, a 10 acre disturbance threshold for the application of any 

part of this Permit is not particularly helpful to the water quality issues at hand; we re:commend that for the District, a five acre threshold 

be set. 

Response 

Refer to Response 4.1. 

Comment ID 0051-A2.001.010

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: 4.2.2.1Q 

Furthermore, no exceptions should be made for any inability of the permittee to achieve benchmark levels due to the use of nitrogen and 
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phosphorus fertilizer on vegetative covers created for stabilization. Operators should be expected to consider their impact on impaired 

waters when proceeding with stabilization measures, specifically taking care not to over apply nitrogen and phosphorus which can have 

significant and long-lasting impacts on water quality and ecological integrity. 

Response 

Refer to Response 4.1. 

Comment ID 0052-A1.001.003

Author Name: Hamilton Kristopher 

Organization: E.S. Wagner Company 

Issue Category: 4.2.2.1Q 

EPA should rely on its Total Maximum Daily Load (TMDL) program to control construction site runoff to impaired waters and avoid 

setting unsubstantiated and costly benchmark limits. The EPA currently has the TMDL program which provides a well-established and 

straight forward approach for the states to address waters that fail to meet water quality standards. Further, EPA has not provided any 

justification or scientific rationale for its benchmark levels. This is an unproven and unnecessary requirement that will do more to fuel 

citizen suit liability than protect the environment. 

-- Recommendation - Remove Part 4 of the CGP proposal in its entirety and rely on the current TMDL program to address impaired 

waters. 

Response 

Refer to Response 4.1. 

Comment ID 0062-A1.001.051

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 4.2.2.1Q 

Justify modifying 29 NTU turbidity above background limit as it seems more protective then new requirements. Spelling "sockeye 

salmon". 

Response 

Refer to Response 4.1. 

Comment ID 0071-A3.001.034

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 4.2.2.1Q 

•Part 4.2.2.1 Benchmark Monitoring. Benchmark monitoring seems like something the State Environmental Department should be 

doing. 
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Response 

Refer to Response 4.1. 

Comment ID 0072-A2.001.015

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 4.2.2.1Q 

MoDOT has one specific comment under this Part regard ing "whether the use of nitrogen or phosphorus fertilizer on vegetative cover 

for stabilization would impact the permittee's ability to achieve benchmark levels". When establishing permanent vegetation to control 

erosion and alleviate sediment pollution, it is typically necessary to apply nitrogen or phosphorouscontaining fertilizer to the soil. 

Inevitably, a portion of these nutrients will be picked up by site runoff. Therefore, if a project were subject to benchmark monitoring for 

these nutrients, MoDOT believes the addition of the needed fertilizers would indeed have a direct impact on a project's ability to achieve 

benchmark levels during runoff events. Exception should be granted for these instances when fertilizers need to be applied in order to 

stimulate plant growth and provide nutrients for permanent vegetative stabilization, especially when the overall goal ofadding the 

nutrients is to ultimately control sediment pollution. 

Response 

Refer to Response 4.1. 

Comment ID 0074-A2.001.021

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 4.2.2.1Q 

The DEQ does not believe that benchmark monitoring would provide any useful information and it is not an appropriate tool for 

assessing the effectiveness of construction stormwater controls. Benchmark monitoring would duplicate the efforts of the 

well-established TMDL program. Therefore, it should not be required for impaired waters with or without an approved TMDL. 

Response 

Refer to Response 4.1. 

Comment ID 0076-A1.001.027

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 4.2.2.1Q 

Target believes that the benchmark monitoring can be a good tool for prevention of causing or contributing to an impairment, but thinks 

more context is needed with additional guidance. Target favors having additional requirements for only waters without formal Total 

Maximum Daily Loads (TMOLs). The TMOL will establish contributing sources and requirements and therefore additional permit 

requirements would be duplicative. 
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Response 

Refer to Response 4.1. 

Comment ID 0080-A2.001.028

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 4.2.2.1Q 

Partner Response: Whether the EPA calls it benchmark monitoring or compliance monitoring it remains a very cumbersome and 

expensive activity for nearly all construction site operators who frequently operate on a very slim financial margin. In his economy it is 

oftentimes difficult to obtain financing to justify construction of any given development or redevelopment project. Expensive 

benchmark monitoring only contributes negatively to the financial bottom-line of a project. Furthermore, the scientific data gained from 

any required benchmark monitoring is considered, by many, as of questionable environmental value. As stated in our earlier comments 

the Partners question the utility of benchmark monitoring for CPG compliance and suggests visual observation is the best form of 

compliance monitoring for sites in the arid west. 

Response 

Refer to Response 4.1. 

Comment ID 0085-A2.001.020

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 4.2.2.1Q 

Rockville supports reducing the 10 acre threshold to a one acre threshold. This smaller threshold will be important for urban watersheds 

trying to meet TMDL reduction requirements. In urban areas, development predominantly occurs in small infill projects that would 

evade the 10 acre threshold. Urban MS4's, which frequently bear the lion's share of reductions required to implement TMDLs will need 

to concentrate on cleaning up small but dense development sites to prevent sediment from entering impaired waterways. 

Response 

Refer to Response 4.1. 

Comment ID 0087-A1.001.048

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 4.2.2.1Q 

Section 4.2.2.1 (water quality benchmark monitoring) – Requiring benchmark monitoring for certain discharges to impaired waters is 

unwarranted and unlikely to produce probative information. Such monitoring is not required by EPA’s C&D Rule and would be 

duplicative of proposed numeric turbidity sampling. Lastly, such monitoring would result in significant, unwarranted expenditures for 

permittees. 
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Section 4.2.2.3 (impaired waters) – Please see above. Also, all inspection requirements should be explicitly limited to include only those 

areas upon which earth disturbing activities are taking place within the site. Thus, if only 1 acre of a 10-acre site is disturbed, a permittee 

should only be required to regularly inspect that 1 acre. Requiring more would be burdensome and a waste of resources. Finally, EPA’s

focus on impaired waters should not be expanded to cover certain biological impairments, since in most states these impairments cannot 

be attributed to specific pollutants until the TMDL development process. 

Response 

Refer to Response 4.1. 

Comment ID 0090-A1.001.035

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 4.2.2.1Q 

However, EPA's proposal under Part 4.2.2.1 for water quality benchmark monitoring imposes an onerous and incongruous requirement 

for the temporary impacts from linear construction projects. Consider, for example, the benchmarking "threshold" for earth disturbance, 

set currently at 10 acres. 

Response 

Refer to Response 4.1. 

Comment ID 0094-A1.001.003

Author Name: Oppenheimer Jonathan 

Organization: Idaho Conservation League 

Issue Category: 4.2.2.1Q 

We also strongly support the proposed benchmark monitoring and encourage EPA to require monitoring for all impaired streams, 

regardless of the status of the TMDL. Instead of a standard 10-acre threshold, we encourage you to consider incorporating slope, soil 

type, presence of listed species, and/or other factors in determining the disturbance area threshold, i.e. where slopes exceed 20% or 

where listed species are present the threshold should be reduced to 5-acres. 

Response 

Refer to Response 4.1. 

Comment ID 0097-A1.001.015

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 4.2.2.1Q 

18. I do not see the purpose of the benchmark testing. There is too much variation in water quality levels due to natural affects for this to 

be meaningful 
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Response 

Refer to Response 4.1. 

Comment ID 0121-A2.001.005

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.2.2.1Q 

The permit requirements to conduct benchmark monitoring of stormwater discharges from construction sites that disturb ten acres or 

more to sediment or nutrient impaired waters are unwarranted and do not provide meaningful information for discharges to waters 

without benchmark levels against which to assess them. In the case of numeric turbidity limits, consideration should be given to the 

background turbidity levels of the receiving water. Rather than applying a universal limit, it should be based upon an increase over 

existing conditions. Further, many of the water bodies listed in Appendix J do not have a benchmark for nutrients or turbidity. For 

example, none of the waters in Massachusetts have a benchmark. The Appendix indicates that the monitoring is conducted for 

information purposes only. The goals of any monitoring requirements need to be clearly defined in order to ensure that the requirements 

are designed appropriately to achieve those goals. Monitoring for "informational purposes" only is not a sufficient justification for the 

significant costs that this requirement will impose on permitees. 

Response 

Refer to Response 4.1. 

Comment ID 0130-A2.001.034

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 4.2.2.1Q 

32. BENCHMARK MONITORING. In Appendix J, the draft permit requires benchmark monitoring for informational purposes for 

waterbodys impaired for nutrients. We strongly recommend this requirement be deleted. TMDL‟s should already recognize construction 

stormwater as a potential source of pollutants. What benefit does EPA see in the sample collection and analysis for information 

purposes? The operator can be held liable for failure to perform, analyze, and report samples, but the samples are for informational 

purposes only. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.020

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.1Q 

Benchmark monitoring is poorly suited to assess the "effectiveness of controls in not contributing to impairments." Specifically, given 
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the inherent variability in concentrations of both solids and nutrients from construction sites over short time periods, grab samples 

collected in any cost effective and practical manner provide at best a statistically invalid assessment of discharge quality and could be 

quite misleading as to the effectiveness of controls. 

Grab sample monitoring may be able to document significant and ongoing major failures of BMPs, however these types of failures are 

easily identified readily from a visual inspection during an event. The peculiarities of the sampling frequency and event dynamics will 

result in both false positive (Type 1 Error) and false negative (Type 2 error) classification of the effectiveness of control measures due to 

uncertainty. The number of samples required to reduce uncertainty to acceptable levels is discussed by various researchers and 

correctly required by EPA in many Quality Assurance Project Plans. (See, e.g., Pitt and Parmer, Quality Assurance Project Plan: Effects, 

Sources, and Treatability of Stormwater Toxicants. Contract No. CR819573. US EPA, Storm and Combined Sewer Program, Risk 

Reduction Laboratory. Cincinnati, OH. February, 1995.) In storm water runoff studies the high variability in runoff concentrations 

(coefficient of variation of pollutant concentrations is often much greater than 1) means that using the arithmetic average of three grab 

samples (or any other easily executed sampling approach) is inappropriate for assessing the quality of discharges and one cannot have 

statistical confidence in the results. The use or, more likely, misuse of the data collected is more likely to be a artifact of the process 

instead of a valid assessment of a meaningful performance metric. 

A more appropriate approach would be to conduct flow-weighted composite monitoring of runoff over multiple storm events. However, 

this approach is well beyond what should be required or is practically appropriate. One potential alternative is to require sites to collect 

grab samples, but more as a screening program to determine if there is a "huge" problem vs. whether a site is contributing to an 

impairment or not. 

Discharge of pollutants resulting from erosion processes is well correlated to intensity of rainfall. As EPA acknowledges in the proposed 

sampling methods, it is impractical to collect samples that accurately address rainfall intensity by allowing a minimum of weekly 

benchmark sampling. As a result it is unlikely that samples collected in any remotely practical manner including that proposed by EPA 

would be representative. 

Due to the dynamic nature of construction projects and the nature of sampling collection and analysis (e.g. delay in getting sampling 

results from the laboratory vs. the dynamic, constantly changing nature of a construction site), it is often impractical to use a benchmark 

sampling strategy as an effective means for initiating corrective action. The practical experience and expertise of field personnel in 

identifying deficiencies is a much more effective means of initiating corrective action. Again, any sampling could be used to assess 

whether there is a huge problem. However visual observations are likely to reveal such a problem much more quickly by visually 

assessing turbidity, etc. 

The selection of 10 acres as the threshold for requirement of sites to conduct benchmark monitoring is highly subjective. Some size 

classification of the areas of the construction sites should have been conducted to assess whether 10-acres is an appropriate size for 

actually protecting the nations waters. 

It is the case that many projects greater than 10 acres are more likely than not to be better managed by professional staff much more so 

than many smaller projects. The cumulative impacts of smaller projects in many places in the country are likely greater than that from 

more well run larger projects. However, another factor is the value of the project. For example, sites in downtown, highly urban 

situations may be smaller than 10 acres, but also well managed. Another potential metric for setting project sizing for any requirements 

would be the value of the constructed project. Regardless of the above, the targeting of the larger sites may in fact not address many or 
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most of the potentially problematic sites. If 10 acres was based upon an economic consideration, what was the basis for that selection? 

It is also the case that the proposed benchmark sampling is a poor tool for assessing impacts on waters that are habitat for listed fish 

specifies. The critical impacts on listed species are much better assessed through direct in-stream receiving water sampling (recognizing 

that in many cases there would be other potential sources of pollution, including existing development, forestry activities, etc.). Without 

the use of broad and oversimplifying assumptions about the relationships between the benchmark sampling and receiving water quality, 

the data would not be useful in assessing potential impacts (other than gross failure cases that could be assessed via visual inspections) as 

a result of the sampling methodologies. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.022

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.1Q 

• Water Quality Benchmark Monitoring - Benchmark monitoring as proposed is unlikely to meet the intended purpose of informing the 

initiation of corrective action. Direct inspection of controls during or following events is a far more useful tool in assessing the 

effectiveness of BMPs. 

• 10-acre Disturbance Threshold - The proposed threshold is arbitrary and does not appear to be well linked to impairments, the 

effectiveness of technology controls utilized, or natural background conditions. Project size varies widely across geographic regions. 

LBA is not aware of information that indicates that the area-specific discharge of pollutants is greater at these sites than at smaller sites. 

Large sites are typically managed by professional construction personnel with experience in effectively minimizing discharge. 

Response 

Refer to Response 4.1. 

Comment ID 0133-A2.001.030

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 4.2.2.1Q 

MDT questions the utility of benchmark monitoring. Although the permit requires corrective actions to be taken if benchmark values are 

exceeded, it is unlikely that these actions would be realized when rainfall is sporadic. Especially in arid or semi-arid states such as 

Montana, corrective actions would not be triggered until several days after the discharge occurs. This is due to the lag time between 

sample collection and lab analysis. MDT believes benchmark monitoring should be eliminatedfrom the permit. Ifbenchmark monitoring 

must be included, MDT believes the disturbance threshold should be set higher and consideration should be given for the likelihood of 

another storm event occurring. 

Response 
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Refer to Response 4.1. 

Comment ID 0137-A2.001.017

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 4.2.2.1Q 

Numerous aspects of the benchmark monitoring are impractical. Monitoring from discharge points but not from the regulated waters 

provides a data set that is not useful in measuring impact on the resource. Projects employing Environmental Site Design will not have 

the discharge points referenced in the permit. We believe any measurement should account for pre‐construction background levels and 

offsite influences but does not favor a default background level that is based on modeling or averages. Monitoring at 10 acres is not 

practical. The minimum threshold should be a project size that triggers an individual permit. We do not see what EPA will do with the 

volume of monitoring data generated by this requirement. 

Response 

Refer to Response 4.1. 

Comment ID 0141-A2.001.003

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: 4.2.2.1Q 

2. Benchmark Monitoring for Sediment and Nutrient-Impaired Waters (Section 4.2.2.1): With all due respect the City believes that 

benchmark monitoring is not an appropriate tool to use in assessing the effectiveness of construction stormwater controls. Sporadic 

sampling of effluents during storm events may not provide an accurate picture of water quality impacts and can provide a limited picture 

about how well existing controls are functioning. Focusing on specific best management practices (BMP's) that are being implemented, 

utilizing available information on the effectiveness of these BMPs to reduce pollutant loadings, and ensuring that appropriate BMPs are 

effectively being applied on an ongoing basis appears to work effectively in the 2008 CGP. 

Response 

Refer to Response 4.1. 

Comment ID 0145-A2.001.017

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 4.2.2.1Q 

Benchmark monitoring of discharges that drain to a stream segment impaired by excessive sediment or nutrients would provide valuable 

information to any environmental enforcement agency with responsibilities for protecting the waters of the U.S., even for those waters 

that have had a TMDL completed. Funding for water quality monitoring and study is rarely adequate. It is likely that funding for this type 

of monitoring or for TMDL study will not increase, but rather will decrease, in the future. The burden of funding benchmark monitoring 

may appropriately be shifted to those interests that are creating the potential impacts being monitored. 
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We support inclusion of benchmark monitoring requirements as outlined in this draft construction general permit. As for whether such 

monitoring will be helpful in assessing the effectiveness of construction stormwater controls in not contributing to existing impairments, 

it may only be said that such monitoring will be helpful, but not that it will certainly be sufficient. 

We support benchmark monitoring for all construction sites including those that are less than 10 acres. Our experience has been that even 

small construction sites, if poorly managed, can cause large discharges of sediment or other pollutants. 

Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.032

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.2.2.1Q 

This problematic if your site is not directly connected to the receiving stream. If you are implying that sampling should be conducted at 

the discharging of the site during storm events. This is hard to do where overland flow occurs from undeveloped areas. 

Response 

Refer to Response 4.1. 

Comment ID 0154-A1.001.003

Author Name: Loehr Aaron 

Organization: Pace Construction 

Issue Category: 4.2.2.1Q 

Avoid setting unsubstantiated and costly benchmark monitoring requirements that would merely duplicate the efforts of the 

well-established Total Maximum Daily Load (TMDL) program 

Response 

Refer to Response 4.1. 

Comment ID 0159-A1.001.016

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 4.2.2.1Q 

We believe the TMDL is designed to address sediment, nitrogen and phosphorous only and does not directly regulate fish and micro 

invertebrates or other biological impairments. Water quality improvements resulting from the TMDL limitation on sediment and 

nutrients will provide biological improvements. 
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Response 

Refer to Response 4.1. 

Comment ID 0166-A1.001.003

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: 4.2.2.1Q 

III. EPA should rely on its Total Maximum Daily Load (TMDL) program to control construction site runoff to impaired waters and avoid 

setting unsubstantiated and costly benchmark limits. Both the language of Clean Water Act Section 302 and its legislative history make 

clear that water quality limits are to be added to NPDES permits only when national technology-based standards fail to produce the 

desired level of water quality in a given watershed. In that case, EPA should continue to rely on its TMDL program that provides a 

well-established process for states to address waters within their borders that fail to meet their water quality standard. Water quality 

based effluent limits (and TMDLs) should be written at the state level through the use of proper monitoring programs to develop 

appropriate benchmarks. 

Response 

Refer to Response 4.1. 

Comment ID 0166-A1.001.005

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: 4.2.2.1Q 

The benchmark monitoring requirements in the draft CGP amount to an unproven and unnecessary requirement that will do more to fuel 

citizen suit liability than protect the environment. They would introduce a potentially insurmountable array of complicated and costly 

analytical methods and test procedures for analyzing stormwater runoff. 

Response 

Refer to Response 4.1. 

Comment ID 0168-A1.001.005

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 4.2.2.1Q 

-- The 10-acre size threshold is consistent with existing permit site thresholds relative to effluent limit guidelines monitoring, and on-site 

sedimentation ponds. 

Response 

Refer to Response 4.1. 
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Comment ID 0171-A1.001.014

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 4.2.2.1Q 

It is unreasonable to require sampling of all outfalls within the first hour of a rain event and three times a day for linear construction, the 

type most encountered by electrical utilities. Use of representative monitoring would still be essential to be able to collect samples as 

required by the proposed CGP. 

Response 

Refer to Response 4.1. 

4.2.2.1A BENCHMARK LEVELS

Comment ID 0045-A1.001.010

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 4.2.2.1a 

Third, we recommend that pre-construction discharge sampling be undertaken, as was the approach used in the previous General Permit; 

this is, in fact, the best way to establish a realistic benchmark based in part on the natural background level, rather than starting with what 

may well be an unrealistic value of zero. 

Response 

Refer to Response 4.1. 

Comment ID 0069-A1.001.011

Author Name: Cramer M. 

Organization: 

Issue Category: 4.2.2.1a 

Benchmark values need to be based on site specific conditions and background values rather than the apparently arbitrary values 

included in Appendix J. The turbidity value of 50 NTU observed frequently in appendix J is overly stringent and impractical. Permitees 

should be given the opportunity to establish alternate benchmark values for their location. 

Response 

Refer to Response 4.1. 

Comment ID 0075-A2.001.029
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Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 4.2.2.1a 

Benchmarks need to be taken, but additional tests should be taken upstream of the event to get a new benchmark. The turbidity above the 

event culminating with the event could be what takes it over the top. To truly tell how much above the natural turbidity that you are 

putting into the water, you need a baseline above the event. 

Response 

Refer to Response 4.1. 

Comment ID 0076-A1.001.029

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 4.2.2.1a 

Target would like a clarification on why the EPA does not intend to use turbidity as a surrogate for benchmark monitoring; all of these 

parameters directly correlate with sediment mobilization off-site. 

Response 

Refer to Response 4.1. 

Comment ID 0091-A2.001.014

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 4.2.2.1a 

14. Fact Sheet Item 20. Part 4.2: The language in this section is not clear. Will sampling be required for all parameters listed in 4-1 or just 

for the parameters causing the receiving waters to be impaired? The proposed benchmark limits do not address background levels. Some 

benchmark limits are at or near the detection limit for approved analytical methods. Adjustment of benchmark limits should be allowed 

based on limitation of the approved analytical methods and/or natural background levels for constituents of concern. 

Response 

Refer to Response 4.1. 

Comment ID 0093-A2.001.014

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2.2.1a 

It is also worth noting that in certain instances, EPA has set benchmark values for turbidity that are not appropriate water quality 

objectives for some naturally turbid waterways. An influx of unnaturally clear water could have an adverse impact on ecosystems in such 

waters; fauna and flora have developed that are dependent on high sediment loads and dark waters and indigenous species have become 
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dependent on turbid waters to avoid predators. 

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.056

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2.2.1a 

Additionally, EPA's failure to account for natural background pollutant levels has resulted in overly stringent and likely unachievable 

benchmarks in most instances. This is problematic because any exceedance of a benchmark value would trigger prompt corrective 

action, requiring home builders to continually enhance and upgrade stormwater controls, ultimately leading to over-engineered sites. 

Failure to take prompt corrective action is a permit violation and subject to enforcement action. Multiple exceedances of this randomly 

selected benchmark could result in requiring a home builder to unnecessarily install additional controls, purchase water quality credits 

from an approved seller, or, in a worst case, stop work or abandon an otherwise lawful and appropriate project. 

Response 

Refer to Response 4.1. 

Comment ID 0118-A1.001.003

Author Name: Evans Michael 

Organization: Colaska, Inc. 

Issue Category: 4.2.2.1a 

VII. Alaska, in particular, has many glacier-fed and other naturally "sediment-laden" water bodies. We oppose any numeric limitations 

that would require contractors to control sediment levels in stormwater runoff from their sites to these water bodies to levels below 

naturally occurring levels. 

In conclusion, my company appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons outlined 

above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devastating 

requirements on construction site operators. We strongly urge EPA to focus on a BMP-based and flexible approach to ensure the CGP is 

economically achievable, effective in reducing pollution from stormwater discharges, and workable on a national basis. EPA should 

focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit 

requirements, and proven effective in protecting water quality. We encourage EPA to work closely with the commercial construction 

industry and the Associated General Contractors of America during the comment review process and as it continues its work on a final 

ELG and new CGP. 

Response 

Refer to Response 4.1. 
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Comment ID 0119-A2.001.007

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2.1a 

In addition to that general concern about the new benchmark monitoring requirement, the FWQC has specific concerns about several 

aspects of these provisions. One of those issues is scope: the benchmark requirements apply to all impaired waters, including those that 

are covered by a Total Maximum Daily Load (TMDL). In a TMDL, EPA or the State would have already considered the contributions 

provided by construction stormwater sources and determined the reductions, if any, that are needed from those sources. Any monitoring 

requirements for those sources should be keyed specifically to how the sources were addressed in the TMDL. It could be, for example, 

that the TMDL specifies that no reductions in loadings are needed from those sources. In that situation, extensive benchmark monitoring 

would not be appropriate. Therefore, any benchmark requirements that are specified in the final Permit should not apply to waters 

covered by TMDLs. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.008

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2.1a 

Another specific concern about the benchmark provisions relates to how the specific benchmark levels are determined. EPA is using as 

benchmarks the specific numeric water quality criteria that have been adopted by the States. These criteria were adopted to address water 

quality impacts in low-flow situations, so are not appropriate for use during wet-weather events. Impacts of wet-weather discharges on 

aquatic life over short-term periods are entirely different from the impacts of routine discharges over long periods of time, and "regular" 

numeric criteria do not and cannot provide an accurate picture of the real impacts of stormwater sources. [FN 5] 

In addition, as EPA recognizes in the Draft Permit, some State criteria are based on incremental values above natural background levels. 

Application of this concept in a general permit context is not really possible. EPA proposes to simply assign a background value of zero. 

This practice would make dischargers responsible for any levels of the pollutants found in the water naturally. That would not only be 

unfair; it would be contrary to the Clean Water Act, which regulates only pollutants that one "adds" to the waters. EPA could, instead, 

assign a default natural background level, or require a preconstruction discharge sample to determine background, but those solutions 

have their own problems; a single sample, for instance, is not appropriate to use in establishing a natural background level for all future 

monitoring and compliance.[FN 6] The larger problem is that these "dry weather" criteria should simply not be used to assess 

wet-weather discharges. 

[FN 5] In addition, EPA needs to consider the fact that these criteria are meant to be used in assessing in-stream concentrations. In 

contrast, stormwater runoff levels are not going to represent fully-mixed concentrations in a receiving water, so requiring corrective 

action based on a storm water discharge exceeding this benchmark level is simply inappropriate. 

[FN 6] This is especially so in the stormwater context; a "natural background" sample for purposes of stormwater permitting would need 

to be taken during a wet-weather event, in order to reflect the higher background levels that are naturally present when storm water 
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discharges are occurring. 

Response 

Refer to Response 4.1. 

Comment ID 0121-A2.001.006

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.2.2.1a 

For those waters with defined benchmarks, local conditions are not adequately accounted for. The benchmark levels are set based on the 

numeric water quality standards ofthe receiving water. As a result, if the discharge from a construction site does not meet the water 

quality standard at the point of discharge (AKA end of pipe), the permittee would be required to take corrective action. The application 

of the water quality standard at the end of the pipe is inappropriate and fails to take into account the site specific factors including 

dilution that are critical w~en considering what discharge is acceptable. Furthermore, meeting water quality at the end of the pipe would 

likely not be feasible in many circumstances. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.019

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2.1a 

Another specific concern about the benchmark provisions relates to how the specific benchmark levels are determined. EPA is using as 

benchmarks the specific numeric water quality criteria that have been adopted by the States. These criteria were adopted to address water 

quality impacts in low-flow situations, so are not appropriate for use during wet-weather events. Impacts of wet-weather discharges on 

aquatic life over short-term periods are entirely different from the impacts of routine discharges over long periods of time, and "regular" 

numeric criteria do not and cannot provide an accurate picture of the real impacts of stormwater sources. 

In addition, as EPA recognizes in the Draft Permit, some State criteria are based on incremental values above natural background levels. 

Application of this concept in a general permit context is not really possible. EPA proposes to simply assign a background value of zero. 

This practice would make dischargers responsible for any levels of the pollutants found in the water naturally. That would not only be 

unfair; it would be contrary to the Clean Water Act, which regulates only pollutants that a discharger "adds" to the waters. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.027

Author Name: Gear Ken 
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Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.1a 

One would assume that EPA intended to set benchmarks to allow the incorporation of natural background and that a site that was 

discharging at natural background levels would not be exceeding the benchmark. 

However it appears the language that EPA included is unclear in this regard: 

"If the water quality criterion is expressed as a value above "natural background" levels of the pollutant in the receiving water (e.g., 10 

NTUs above background levels of turbidity), the applicable benchmark corresponds to the value that is specified in the criterion (e.g., in 

the example, the benchmark would be 10 NTU)." 

If EPA is proposing that the background be ignored in setting the benchmark, this approach is not scientifically appropriate. 

The intent of using background concentrations is presumably intended to acknowledge the "natural" turbidity present in a receiving 

water. A discharge benchmark that only allows for a turbidity value equal to the allowable quantity above background assumes 

essentially that the background turbidity from the construction runoff is zero. It is unreasonable to assume that this is the case, 

particularly where background turbidity is inherently high even under undisturbed conditions. Furthermore, if clear waters are 

introduced from a construction site, well below natural turbidity (and assuming solids have the same pattern), the effect of clear water 

may actually increase channel degradation. Much of the arid west could have this issue. 

The intent of setting turbidity benchmarks is undermined by this approach as corrective actions may not be necessary to protect receiving 

water quality. 

Response 

Refer to Response 4.1. 

Comment ID 0141-A2.001.005

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: 4.2.2.1a 

Another specific concern about the benchmark provisions relates to how the specific benchmark levels are determined. EPA proposes to 

assign a background value of zero. This practice would make discharges responsible for any levels of the pollutant found in the water 

naturally. 

Response 

Refer to Response 4.1. 

Comment ID 0166-A1.001.004

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 
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Issue Category: 4.2.2.1a 

We also have serious concerns with the method EPA has used to set the pollutant concentration levels (i.e., benchmark values) that, if 

exceeded, represent a water quality concern. EPA has not provided any justification or scientific rationale for its benchmark levels. To 

this end, EPA`s failure to account for natural background pollutant levels has resulted in overly stringent and likely unachievable 

benchmarks in most instances. This is particularly troubling because any exceedance of a benchmark value would trigger prompt 

corrective action - wherein contractors will be forced into a perpetual cycle of action to enhance and upgrade their stormwater controls, 

ultimately leading to over-engineered sites. What is more, failure to take prompt corrective action is a permit violation and subject to 

enforcement action. In addition, multiple exceedances of a benchmark could result in a State requiring that the facility apply for an 

individual stormwater discharge permit. 

Response 

Refer to Response 4.1. 

4.2.2.1B BENCHMARK MONITORING REQUIREMENTS

Comment ID 0064-A1.001.034

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 4.2.2.1b 

Section 4.2.2.1.b.ii, page 40 - "You must collect your first sample within the first hour that the discharge begins." 

•This could be very difficult to meet especially if only certain personnel are trained to take samples. Consider just requiring three 

samples every 24 hours during a rain event or, at a minimum, increasing timeframe for initial sample to within 3 hours after the discharge 

begins. 

Response 

Refer to Response 4.1. 

Comment ID 0069-A1.001.010

Author Name: Cramer M. 

Organization: 

Issue Category: 4.2.2.1b 

9. Part 4.2.2.1 of the draft EPA CGP requires projects with greater than 10 acres of disturbed area that discharge into an impaired water 

body to sample and analyze the stormwater discharge for turbidity, total nitrogen and total phosphorous at least once each week if a 

discharge occurs during that week. The results of the analysis are to be compared to permit specified benchmark levels. We have several 

concerns regarding the burdensome nature of this requirement: 

Results from samples sent for laboratory analysis would not be available for several days or weeks. At that time, the site conditions that 
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led to an exceedance probably would no longer exist; 

Additional monitoring for turbidity seems redundant to the Section 3 requirements; 

Sampling is required within the first hour that the discharge begins. For remote construction sites this would be difficult without the use 

of costly automated samplers, or a requirement for the sampling staff to be on call 24 hrs/day; 

Sampling on remote construction sites outside of daylight hours is a serious safety concern; 

The requirement of 2 additional samples each day would further increase the expense and hazard; 

Response 

Refer to Response 4.1. 

Comment ID 0072-A2.001.014

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 4.2.2.1b 

In general, MoDOT has the same concerns with the benchmark monitoring requirements as those expressed in Comment 7 [See 

Comment IDs 0072-A2.001.009 - 012] for the proposed turbidity limit. Specifically, the IO-acre limit, the quality of the receiving 

streams, and constraints associated with adhering to the sampling requirements. Please refer to Comment 7 f[See Comment IDs 

0072-A2.001.009 - 012] or more detail. 

Response 

Refer to Response 4.1. 

Comment ID 0075-A2.001.030

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 4.2.2.1b 

Why would the mere clearing operation initiate nutrient bench marking since fertilization of replaced topsoil occurs much later in 

construction phasing. Would contractors now be held responsible for naturally occurring nitrogen and phosphorus in native soil being 

stripped? 

Response 

Refer to Response 4.1. 

Comment ID 0076-A1.001.030

Author Name: Steadman Marc 
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Organization: Target Corporation 

Issue Category: 4.2.2.1b 

Target would also request that the EPA consider revising benchmark monitoring requirements to fit more uniformly with other 

monitoring requirements of the permit. While benchmark monitoring and effluent limit monitoring meet different goals, the 

inconsistency makes permit requirements very convoluted. Permittees must monitor every event that has a discharge for effluent limit 

monitoring, while benchmark monitoring requires weekly. Benchmark monitoring requires the first sample be collected within a half 

hour of discharge while effluent monitoring sample must be completed within an hour of discharge. The inconsistencies will make it 

difficult for inspectors and monitoring personnel to fulfill permit requirements. Target suggests making benchmark monitoring protocol 

similar to effluent limit monitoring protocol to increase permit simplicity of the permit while still being environmentally protective. 

Response 

Refer to Response 4.1. 

Comment ID 0093-A2.001.013

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2.2.1b 

The benchmark monitoring provisions would introduce a potentially insurmountable array of complicated and costly analytical methods 

and test procedures for analyzing stormwater runoff. Under the Draft, it is likely that many contractors would be subject to separate 

monitoring programs and protocols for turbidity (i.e., both a benchmark requirement and numeric compliance limit), which would cause 

confusion and impose excessive recordkeeping and paperwork obligations. EPA predicts that turbidity would be measured in the field. 

Some contractors would, however, find that they also need to send samples to a laboratory to monitor for phosphorus or nitrogen and 

perhaps even for turbidity. This is clearly excessive in light of EPA's decision to regulate turbidity using numeric standards based on the 

fact that turbidity merely is an "indicator pollutant" the control of which helps to reduce the discharge of other pollutants, such as metals 

and nutrients, from construction sites. See C&D ELG Final Rule at 74 Fed. Reg. at 62,996 and 63,006-07 (Dec. 1, 2009). 

Response 

Refer to Response 4.1. 

Comment ID 0096-A1.001.064

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2.2.1b 

The use of the benchmark values will only make sense if in stream sampling was required. The CGP directs WQBEL sampling to be 

conducted in the same manner as described in Part 3 of the CGP. Section 3.3 only describes sampling of the discharge from the 

construction site (selecting sampling points, etc.). Sampling above and below the construction discharge(s), if that is what was intended, 

is a much more complex issue. Samples taken upstream must be representative of the stream during the rain event (which could be 

dangerous to the sampling personnel), or else it is not meaningful. In order to trace downstream turbidity back to discharge from an 

individual site, the downstream sample must be taken at a point prior to any other discharge entering the water of the US. This is often 

not practical to accomplish when the discharge from a construction site enters an MS4 stormwater collection system. 
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Response 

Refer to Response 4.1. 

Comment ID 0098-A1.001.018

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 4.2.2.1b 

EPA should clarify that streams that are waters of the U.S. and that flow through a construction site are not subject to sampling under this 

Part. Moreover, the Agency should evaluate the status of stream flows that empty into the same detention basin that also manages 

construction runoff from the site. Such combined flows would cause any discharge sampling from a basin to be unrepresentative of the 

construction stormwater flows from the site. 

Response 

Refer to Response 4.1. 

Comment ID 0100-A2.001.013

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 4.2.2.1b 

Section 4.2.2 discusses the use of fertilizers and benchmarking. USEPA should either provide an exemption for those who use fertilizer 

in accordance with this permit and have impaired waters with nitrogen or phosphorous concerns, or the use of fertilizers should be 

completely eliminated. 

Response 

Refer to Response 4.1. 

Comment ID 0105-A2.001.010

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 4.2.2.1b 

 Chemicals, alternatives to chemical treatment, and residuals testing. Construction site runoff carries significant levels of chemicals 

and toxic pollutants.[FN 3] The CGP should require benchmark monitoring for chemicals commonly present at construction and 

development sites, in addition to chemicals used for erosion control. EPA should add benchmark monitoring requirements for additional 

pollutants, such as toxic metals, polycyclic aromatic hydrocarbons, petroleum products and pavement sealants. Sealants, in particular, 

have been demonstrated to pose risks for receiving waters from construction projects and should be more thoroughly addressed in the 

final CGP.[FN 4] The final CGP should emphasize natural erosion control and pollutant removal practices, and discourage use of 

chemicals for stabilization. 
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[FN 3] See National Research Council, URBAN STORMWATER MANAGEMENT IN THE UNITED STATES, at 26, 180 (2008), 

available at http://www.epa.gov/npdes/pubs/nrc_stormwaterreport.pdf. 

[FN 4] See, e.g. University of New Hampshire Stormwater Center, Allison Watts, Robert Roseen et. al., POLYCYCLIC AROMATIC 

HYDROCARBONS IN STORMWATER RUNOFF FROM SEALCOATED PAVEMENTS (2008) (presentation to StormCon), 

available at http://www.unh.edu/unhsc/sites/unh.edu.unhsc/ files/presentations/watts/watts_stormcon_08_sealant.pdf 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.009

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2.1b 

The sampling requirements for the benchmark levels are also of concern. EPA requires that dischargers sample at least one day per week, 

and three times during that day. Then, if the average of the three samples exceeds the benchmark level, the discharger must take 

corrective action. Since corrective action must be taken for an exceedance, the benchmark levels constitute effluent limits - the fact that 

there is no penalty for exceeding the benchmark does not change that fact. And these effluent limits have no legal basis. There is simply 

no reason to believe that a once-per-week test, with three samples, will accurately capture what is really happening during a wet-weather 

event.[FN 7] Moreover, to require corrective action (often expensive and time-consuming) to be taken based on the average of those 

three samples is arbitrary and has no scientific basis.. 

[FN 7] In addition, this sampling requirement will impose a significant burden on site operators, since it will require them to have 

sampling staff and equipment available 24 hours per day, 7 days per week, so once a storm event occurs, they can take samples three 

times during the storm - and repeat this on a weekly basis. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.020

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2.1b 

The sampling requirements for the benchmark levels are also of concern. EPA requires that dischargers sample at least one day per week, 

and three times during that day. Then, if the average of the three samples exceeds the benchmark level, the discharger must take 

corrective action. Since corrective action must be taken for an exceedence, the benchmark levels constitute effluent limits - the fact that 

there is no penalty for exceeding the benchmark does not change that fact. These effluent limits have no legal basis. There is simply no 

reason to believe that a once-per-week test, with three samples, will accurately capture what is really happening during a wet-weather 

event. Moreover, to require corrective action (often expensive and time-consuming) to be taken based on the average of those three 

samples is arbitrary and has no scientific basis. 
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Response 

Refer to Response 4.1. 

Comment ID 0141-A2.001.004

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: 4.2.2.1b 

In addition to the above listed concern about the new benchmark monitoring requirements, the sampling requirements for the benchmark 

levels are also of concern. EPA requires that dischargers sample at least one day per week, and three times during that day. This sampling 

technique may not accurately capture what is really happening during a wet-weather event. 

Response 

Refer to Response 4.1. 

4.2.2.1C RECORDING OF MONITORING RESULTS

Comment ID 0064-A1.001.035

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 4.2.2.1c 

Section 4.2.2.1.c, page 41 - Full "Recording of monitoring results" section 

•Again, there is no accounting for background conditions in receiving water body. If discharging during spring melt conditions, 

background turbidity will likely exceed limit by significant amount. Recommend this requirement consider background water quality of 

the receiving water body. 

Response 

Refer to Response 4.1. 

4.2.2.1D CORRECTIVE ACTION IF BENCHMARK EXCEEDED

Comment ID 0093-A2.001.012

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2.2.1d 
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EPA has not provided any justification or scientific rationale for its benchmark, though it could have costly consequences. Any 

exceedance would require prompt corrective action, forcing the permittee into a perpetual cycle of action to enhance and upgrade its 

stormwater controls, ultimately leading to over-engineered sites. See Draft CGP Part 6. What is more, failure to take prompt corrective 

action would be a permit violation and subject to enforcement action. In addition, multiple exceedances of a benchmark could result in 

EPA requiring the permittee to apply for a rarely used, costly and time-consuming individual stormwater discharge permit. 

Response 

Refer to Response 4.1. 

Comment ID 0121-A2.001.011

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 4.2.2.1d 

Further, with respect to the requirement to address exceedances within 7 days, it should be noted that samples for Total Nitrogen and 

Total Phosphorus must be submitted to a laboratory, which takes 5 to 7 days for normal reporting turnaround of analytical results. The 

requirement to address exceedances within 7 days is not feasible (this part directs one to part 6.3 .1.2). The regulations need to clarify 

that "the time of discovery of this condition" coincides with the time analytical results are available. 

While it is possible to put a rush on laboratory testing, the costs to do so are significantly higher than normal results reporting. On a linear 

project, the costs, multiplied by several potential discharge points, can be significant if a rush is required on each sample to meet the 7 

day timeframe. 

Manufacturers are beginning to test their best management practices (e.g., compost filter socks, etc.) for nutrient removal capabilities; 

however, temporal effectiveness for such BMPs is not readily available. While compost and mulch BMPs can be effective at nutrient 

removal, their effectiveness drops over time. EPA should provide guidance for selecting and maintaining BMPs, regardless of 

manufacturer testing results, in a manner that supports the requirements of this part. It is recommended that there be an Appendix that 

provides references to Best Management Practices designed to attenuate nitrogen and phosphorus that may be in solution, as opposed to 

adsorbed or absorbed to particulates that are managed through best management practices that are designed to control sedimentation. 

Response 

Refer to Response 4.1. 

4.2.2.1E REPORTING BENCHMARK MONITORING RESULTS

Comment ID 0024-A2.001.015

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 4.2.2.1e 
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Finally, we urge EPA to increase the frequency of the benchmark reporting from the proposed quarterly basis, see Part 4.2.2.1.e., to at 

least a monthly basis. More frequent reporting will enhance EPA's ability to ensure that discharges are not contributing to the impaired 

condition of receiving waters. Given the move towards electronic recordkeeping and submission, complying with a more frequent 

reporting requirement should not be a burden for permittees. These benchmark monitoring reports should also be publicly accessible 

pursuant to §308(a)-(b) of the CWA, which authorizes EPA to require owners of point sources to keep records and make such reports as 

necessary to ensure compliance with the permit and fulfill other requirements of the Act, and provides that "any records, reports, or 

information obtained under this section ... shall be available to the public." 33 U.S.C. §1318(b). 

Response 

Refer to Response 4.1. 

4.2.2.2 STABILIZATION REQUIREMENTS

Comment ID 0024-A2.001.011

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 4.2.2.2 

We agree that imposing stricter stabilization requirements, which will limit the amount oftime that exposed soil is left unstabilized, is a 

prudent and effective way to limit sediment and nutrient loading. See Part 4.2.2.2. 

Response 

Refer to Response 4.1. 

Comment ID 0025-A1.001.035

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 4.2.2.2 

For a large project, three days may not be sufficient time to complete these activities 

Response 

Refer to Response 4.1. 

Comment ID 0037-A1.001.039

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.2 

An exception should be provided to the requirement to immediately initiate stabilization on disturbed areas of sites that discharge to a 
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sediment or nutrient impaired water where earth‐disturbing activities have permanently ceased or temporarily ceased (and will not 

resume for a period exceeding 7 calendar days) if 1) soil conditions due to an earlier storm event are too wet for stabilization activities 

(e.g. preparing the soil for planting, seeding and mulching, etc.) or 2) the soil was frozen during this period precluding any further 

activities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as soon as practicable.

Response 

Refer to Response 4.1. 

Comment ID 0037-A1.001.040

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.2 

There should be an exception to the requirement to complete stabilization on disturbed areas of sites that discharge to a sediment or 

nutrient impaired water within 3 workdays of initiating stabilization in the event that 1) a storm event occurred during the 3‐day deadline 

period which prevented stabilization activities from taking place, 2) soil conditions due to an earlier storm event are too wet for 

stabilization activities, (e.g. preparing the soil for planting, seeding and mulching, etc.), or 3) the soil was frozen during this period 

precluding any further activities. If any of these events were to occur, EPA could require that stabilization activities should be initiated as 

soon as practicable in these sensitive areas. 

Response 

Refer to Response 4.1. 

Comment ID 0045-A1.001.011

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 4.2.2.2 

4.2.2.2 - As noted in previous comments, we agree with the requirement for stabilization to begin within seven (or, indeed, less) days of 

major work ceasing on the site, either temporarily or permanently. We agree that there should be daily visual inspections on the:se 

particular sites, and weekly, more extensive site inspections. 

Response 

Refer to Response 4.1. 

Comment ID 0045-A1.001.012

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 4.2.2.2 

We also strongly recommend that two additional requirements should be set, for sites adjacent to or draining to impaired waters or waters 

with TMDLs. First, there should be an upper limit imposed for the amount of land that may be "opened" and worked at any given time. 
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In highly urban settings, that upper limit might be five acres, while in more rural settings, the limit might be set at 10-20 acres. Second, 

Federal Clean Water Act regulations prohibit new discharges into impaired waters for which a TMDL has been established unless there 

is a Waste Load Allocation ("WLA") available to accommodate those discharges.[FN 6] This General Permit should similarly make this 

clear, disallowing its application at all into TMDL-designated streams unless it is shown that a WLA is, indeed, available, or some other 

accommodation, such as an off-site offset (as part of a fully accountable state or local program), is made. 

[FN 6] 40 CFR §122.26(d)(4)(A)(ii); 40 CFR §122.4. 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.028

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.2 

Clause 4.2.2.2.a. indicates: " ... and final grade has been reached." Final grade is not necessarily an indicator, condition, or definition that 

construction activities have been completed, temporarily, or permanently ceased. 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.029

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.2 

Clause 4.2.2.2.b. dictates a "3 working day" time frame for non-vegetative stabilization effort completion and Part 2.2.1.4 Deadline for 

arid/semi-arid areas of the Permit states: " ... you must initiate stabilization as soon as practicable following the temporary or permanent 

cessation of construction activities, in lieu of meeting the deadlines in Parts 2.2.2.1 and 2.2.2.2.", yet has no completion timetable 

associated in the text. 

If a project is in an arid or semi-arid location and discharges to an impaired water; is the permittee intended to only initiate stabilization 

as soon as practicable following the temporary or permanent cessation of construction activities, in lieu of meeting the deadlines in Parts 

2.2.2.1 and 2.2.2.2. with no associated time table save seeking termination as stipulated in Part 2.2.1.4, or complete vegetative and 

non-vegetative coverage within 3 working days as stipulated in Part 4.2.2.2.b? 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.030
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Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.2 

Clause b. dictates a 3 working day time frame for vegetative stabilization effort completion including establishment of vegetation. 

Established vegetation/plants are typically defined as independently viable specimen, not requiring irrigation. This is not an achievable 

condition within 3 days. 

Consider altering the term "established" in the clause. 

Response 

Refer to Response 4.1. 

Comment ID 0060-A1.001.019

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: 4.2.2.2 

19. Section 4.2.2.2.b - This section requires the owner to complete stabilization activities within 3 work days of initiating stabilization on 

exposed portions of the site, with no exceptions. While the 3 days may be sufficient on some sites, it may not be practical for every 

construction site. The time frame to complete stabilization can vary based on site conditions (i.e. size of the disturbance to be stabilized, 

final topography/steep slope areas, etc.) and by the weather conditions (i.e. several days of rain that prevents the construction equipment 

from accessing the site, high intensity rain event that results in erosion and requires additional land grading, etc.). EPA should modify 

this section to provide an owner with additional time to complete stabilization activities if certain criteria/conditions are met. 

Response 

Refer to Response 4.1. 

Comment ID 0067-A1.001.020

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 4.2.2.2 

The timeline for completion of stabilization for vegetative cover in the CGP requires that "all soil conditioning, seeding, watering..." be 

completed within three days of initiation. A single watering of seeds is not adequate to ensure germination and, depending upon rainfall,

could require numerous applications of water. Entergy requests clarification that a program of "soil conditioning, seeding, watering. . . " 

and similar activities not necessarily be designed to be completed within three days, when best management practices indicated 

otherwise. 

Response 

Refer to Response 4.1. 
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Comment ID 0069-A1.001.012

Author Name: Cramer M. 

Organization: 

Issue Category: 4.2.2.2 

10. Part 4.2.2.2 of the draft EPA CGP imposes more stringent stabilization requirements on projects with greater than 10 acres of 

disturbed area that discharge into an impaired water body. Requiring all stabilization to be implemented if work is to be stopped for only 

7 days is not practical. For linear projects where the construction sequence is always in flux due to weather, soil condition, unexpected 

rock, and a host of other factors, a 7-day stabilization requirement would be overly burdensome and often completely impractical. 

Consideration of specifying more stringent requirements for certain potentially sensitive areas is more appropriate for the SWPPP design 

level where site conditions can be directly assessed and not arbitrarily required by a "one size fits all" permit requirement. The language 

of this section should be modified to recommend the reduced stabilization times for areas that discharged to impaired waters, but allow 

flexibility of this period to be based on consideration of site and project conditions that would be addressed in the SWPPP. 

Response 

Refer to Response 4.1. 

Comment ID 0107-A2.001.009

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 4.2.2.2 

Special stabilization deadlines that apply to conditions outlined in section 2.2.1.3(ii) should also apply if the permittee discharges to a 

water that is impaired (for any parameter) and the discharge is likely to include the impaired parameter. To determine if the discharge is 

likely to include an impaired parameter a reasonable potential analysis should be conducted. Or alternatively and perhaps more simply 

these more protective timelines should apply to all dischargers to an impaired stream unless a reasonable potential analysis shows that 

there is not likely to be a discharge of the impaired parameter. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.023

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2.2 

EPA requires that where the discharge is to a water impaired for sediment or nutrients, the discharger must immediately initiate 

stabilization in exposed areas if earth-disturbing activities are temporarily or permanently suspended, and then complete certain 

stabilization activities (including activities related to vegetative cover) within three work days of initiating stabilization. This 

requirement raises a couple of concerns. 

First, it addresses possible impacts after construction has been discontinued, and therefore falls into the realm of "post-construction" 

discharges. The Chamber does not believe that post-construction discharges are properly regulated under the CGP. The intent of the 
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CGP is to address discharges that occur during construction activities. 

Second, the Chamber does not believe it makes sense to apply these requirements to temporary suspensions. In the Draft Permit, a 

temporary suspension can be for as few as eight days. So a construction operator could have an eight-day "break" in activities that would 

trigger this requirement, meaning that it would have to immediately start stabilization activities, and within three days, would have to 

have completed soil conditioning, seeding, watering and mulching. But five days later, the operator would resume construction in that 

area, and all of those activities would have been a waste of time, resources, and materials. Any stabilization requirements that are 

imposed should not apply in that situation. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.010

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.2 

As a related item, Part 4.2.2.2 allows only 3 days to complete stabilization for projects that discharge to an impaired water body. This 

requirement is too restrictive and will also limit the size of a project that can effectively be developed at one time. This requirement will 

have a significant and adverse effect on an owner or operator's ability to economically develop property. Potential extensions of 

construction periods in some cases with limited construction windows to address endangered species issues will be especially 

problematic. 

Rather than setting a time limit for the completion of stabilization without knowing the design of a project or how much area an operator 

will be stabilizing at one time, LBA recommends that EPA allow each project to set a project specific time frame that considers the 

sensitivity of the receiving waters, the seasonal periods where there would be unstabilized conditions, the area(s) of unstabilized 

ground, slopes, and local weather patterns as part of the development of the SWPPP to implement stabilization activity and require the 

work be completed expeditiously, during normal business hours, and in a timely manner. One avenue for the setting of deadlines for 

stabilization would be through the TMDL process where local conditions could be considered vs. a broad national requirement. For 

example, in some geographic areas allowing a longer set of deadlines during the dry season to encourage good construction timing 

would be appropriate. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.023

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.2 

• Stabilization Requirements. - The need for stabilization is best addressed by the engineer during the design process and should allow 

for factors such as season, climate, soils, site erosion risk, discharge flow paths and proximity and connectivity to resource areas to 
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dictate the timing of stabilization. There are many cases where longer periods are appropriate and others where stabilization should be 

initiated and completed over shorter time frames. 

Response 

Refer to Response 4.1. 

Comment ID 0145-A2.001.020

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 4.2.2.2 

The time frame suggested in the draft permit for stabilization of earth-disturbing activities is reasonable. Similarly, the time frame for 

completion of specific stabilization tasks is reasonable. The prescribed work is very important in avoiding stormwater runoff problems 

and should be required. 

Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.040

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.2.2.2 

The stabilization requirements throughout the permit should be consistent at 14 days. Shortening the time period only makes the 

stabilization process more confusion and less standard. Shortening the time period to 7 days will provide no significant benefit. 

Response 

Refer to Response 4.1. 

4.2.2.3 SITE INSPECTION REQUIREMENTS

Comment ID 0037-A1.001.041

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.3 

Daily visual examination as proposed in the permit is not practicable. Depending on the project, the phase of the project, and/or the 

weather (is it the dry season , is the ground frozen, or does snow cover all of the stormwater controls), stormwater controls often do not 

require any maintenance or do not need to be replaced or repaired even on a weekly basis. Weekly inspections would be sufficient. 
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Response 

Refer to Response 4.1. 

Comment ID 0037-A1.001.042

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 4.2.2.3 

Furthermore, unless the daily visual examination is documented in a report, EPA will have no way to determine if they are being 

conducted. If the daily visual examinations must be recorded, this will add to the time it takes to comply with this requirement as well as 

to the cost of permit compliance. With all of the other permit requirements, i.e., inspections (site inspections every 7 calendar days and 

within 24 hours of a storm event of 0.25 inches or greater), benchmark monitoring, potentially turbidity sampling, etc., the 

administrative costs of the permit will be very high. 

Response 

Refer to Response 4.1. 

Comment ID 0038-A1.001.016

Author Name: Minervini W. 

Organization: 

Issue Category: 4.2.2.3 

The phrase "working as intended to remove sediment prior to discharge" may be too narrow, and it may be unclear whether this phrase 

limits the scope of all of Part 4.2.2.3.b.1. At a minimum, consider changing this phrase to "working as intended to minimize sediment 

discharge," so that the phrase includes control measures, such as site stabilization and avoiding sensitive areas, that minimize sediment 

discharge at least in part by minimizing erosion rather than by "removing" sediment. (If, however, the purpose of every element of Part 

4.2.2.3.b.1 is to minimize pollutant discharge, then the phrase "to remove sediment prior to discharge" should be deleted.) 

Response 

Refer to Response 4.1. 

Comment ID 0038-A1.001.017

Author Name: Minervini W. 

Organization: 

Issue Category: 4.2.2.3 

In addition, if minimizing sediment discharge (including nutrients in sediment) is the sole purpose of every element of Part 4.2.2.3.b.1, 

then this provision should be reworded as follows [emphasis added]: 

"Check whether all stormwater controls intended to minimize sediment discharge are installed, appear to be operational, and are working 

as intended. Determine if any such stormwater controls need to be replaced, repaired, or maintained. As necessary, initiate corrective 

action under Part 6.2.1; and 
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Response 

Refer to Response 4.1. 

Comment ID 0040-A1.001.011

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 4.2.2.3 

Further, although EPA has acknowledged regional variation, its approach to conditions in the arid west may not be adequate to protect 

permittees operating under arid conditions. For example, Section 5.1.3.2, which allows for reduction in frequency of inspections in arid 

and semi-arid areas, appears to contradict the Section 4.2.2.3 requirement of daily inspections of BMPs. 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.032

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.3 

Clause 4.2.2.3 b. states: "of certain portions of your site". Please define the term "certain portions". 

Response 

Refer to Response 4.1. 

Comment ID 0061-A1.001.016

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 4.2.2.3 

As described in Section III(B)(1) above, and for the same reasons that the EHSCP believes that inspections at LCPs should be focused on 

the area in which trenching operations are actively occurring, we believe that the daily visual monitoring requirement should be similarly 

focused. We request that this Part be amended to reflect that intent. 

(See comment 0061.004) 

Response 

Refer to Response 4.1. 
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Comment ID 0066-A1.001.036

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 4.2.2.3 

Discussion: It takes at least 0.5 inches of rainfall to cause enough damage to stabilization devices to necessitate a corrective action. 

Inspections following minor rain events (0.25 inches) would be time consuming and unnecessary. 

Suggestion: The minimum amount of rainfall from a storm event should be 0.5 inches rather than the proposed 0.25 inches. 

Response 

Refer to Response 4.1. 

Comment ID 0067-A1.001.014

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: 4.2.2.3 

The draft CGP contains a provision for site inspections that requires daily visual inspections of siltation/erosion controls and weekly 

inspection of laydown areas. These are in addition to the formal biweekly inspection requirements. There is language in this section of 

the CGP that removes flexibility for linear projects to be inspected on representative sections rather than the entire project. If 

promulgated as written, the entire length of a linear project must be inspected on the proposed schedule. As noted, due to the extreme 

terrain some transmission lines span, inspection of the entire line route can be very onerous. Entergy requests that all required 

documented inspections be included in the scope of the formal biweekly inspections and that allowance for inspection of representative 

areas of linear projects be retained in the revised CGP. 

Response 

Refer to Response 4.1. 

Comment ID 0071-A3.001.035

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 4.2.2.3 

•Part 4.2.2.3 Site Inspection Requirements. CDOT agrees that daily exams are achievable and are important near TMDLs. 

Response 

Refer to Response 4.1. 

Comment ID 0072-A2.001.016

Author Name: Muenks Nate 
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Organization: Missouri Department of Transportation 

Issue Category: 4.2.2.3 

MoDOT believes the requirement for post-discharge inspections (storm event or snowmelt) should be lengthened from 24 hours to 48 

hours to afford the inspection team a broader window to complete the required inspection. MoDOT erosion and sediment control 

inspections are done by trained construction inspectors who are charged with inspecting all aspects of a job, which include not only 

erosion and sediment control, but also, soil grading and compaction, construction materials, concrete and/or asphalt paving, and many 

others. With so much to inspect per job, it would be difficult to assure inspection of the erosion and sediment control devices within 24 

hours of the discharge event, but more reasonable to expect inspection within 48 hours. 

Response 

Refer to Response 4.1. 

Comment ID 0087-A1.001.041

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 4.2.2.3 

The CGP says that "you must conduct a site inspection once every 14 calendar days and within 24 hours of the end of a storm event of 

0.25 inches or greater and within 24 hours of a discharge generated by snowmelt." Section 5.1.2. More frequent inspections are required 

for sites discharging to sediment- and/or nutrient-impaired waters. Section 4.2.2.3. First, the 0.25 inch rainfall threshold for site 

inspections is too low and should either be increased to 0.75 inches or left to the various EPA regions for identification based on the 

rainfall patterns within their respective jurisdictions. Furthermore, EPA offers no relief from these inspection requirements for linear 

utility projects; however, relief is clearly needed. Safe access to project areas may not be available during and/or immediately following 

a storm event. It would be infeasible to inspect the entire length of a linear utility project at any frequency, let alone once every 14 days. 

Moreover, it could take days to complete such an inspection over tens or hundreds of miles of steep, natural terrain. For this reason, it is 

imperative that EPA provide reasonable alternative inspection requirements for linear utility projects. In response to EPA's request for 

comment, we support the idea of representative inspections at or near access points for areas of soil-disturbance. We do not agree with 

EPA that this would "stand as an impediment to the proper upkeep of stormwater controls" because those controls are independently 

mandated and enforceable under the CGP. 

Response 

Refer to Response 4.1. 

Comment ID 0093-A2.001.082

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 4.2.2.3 

Daily visual inspections are not appropriate. This Part would obligate an site operator to a full-time inspection/reporting/maintenance 

job, which adds undue complexity to the permit and is unreasonable.

Response 
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Refer to Response 4.1. 

Comment ID 0096-A1.001.068

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 4.2.2.3 

EPA is requesting comment on the appropriateness of daily visual examinations. In dry climates and during dry seasons, it is not 

necessary to conduct a daily visual examination. It would be impractical and too costly and time consuming to conduct such inspections. 

EPA should consider requiring a visual examination prior to a predicted storm event only. Otherwise, a daily visual examination is a 

duplication of effort because weekly inspections are already conducted. There is no real difference between the specified scope of the 

daily and weekly inspections. They both require inspection to ensure all BMPs are installed, maintained and in operational condition and 

require documentation of maintenance and other problems requiring corrective action. The requirements placed on visual inspections 

obligate an operator to what is essentially full time inspection/reporting/maintenance which adds undue complexity to the permit and is 

unreasonable. The only time such an inspection is warranted is if there is an impending storm or after a storm event. 

Response 

Refer to Response 4.1. 

Comment ID 0100-A2.001.014

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 4.2.2.3 

Section 4.2.2.2 discusses the timeframes for stabilization and the practicability of conducting daily visual examinations. USEPA should 

clarify who is responsible for doing these daily visual examinations and how this is to be reported. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.013

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.2.3 

7. Site Inspection Requirements for Sediment and Nutrient-Impaired Waters (Section 4.2.2.3): EPA requires that for discharges to waters 

that are impaired for sediment or nutrients, site inspections must be conducted at least weekly, and within 24 hours of a storm event (if 

0.25 inches or greater) or a discharge caused by snowmelt. Also, daily visual examinations must be conducted to ensure that stormwater 

controls are working and to check for the presence of deposited sediment. While we generally believe that site/visual inspections are a 

very effective means to assess effectiveness of controls, we do have some concerns about this proposed set of requirements. First, a 

"snowmelt" trigger has not been included in previous permits, and it is not clear how it would work. How would one determine that there 

is a discharge caused by snowmelt? Also, there does not appear to be any magnitude threshold on that particular requirement, so it would 
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seem to apply if there is even a tiny amount of discharge that one believes was due to snow melting. Second, we do not think that visual 

inspections are needed on a daily basis. Wet-weather events do not occur every day, and on dry days that are not right after a storm, it is 

not clear how one would assess whether stormwater controls are "working as intended." It makes more sense for each discharger to 

determine, and specify in their Storm Water Pollution Prevention Plan (SWPPP), the specific frequency and location of visual 

inspections that is appropriate for their particular operations. 

Response 

Refer to Response 4.1. 

Comment ID 0127-A2.001.009

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 4.2.2.3 

Section 4.2.2.3.a 

Proposed Language 

You must conduct site inspections once every 7 calendar days at a minimum, and within 24 hours of a storm event of 0.25 inches or 

greater or within 24 hours of a discharge caused by snowmelt, instead of the frequency specified in Part 5.1.2. 

Concern 

Compliance with the requirement is over‐burdensome. A snowmelt could occur daily, requiring daily inspections. 

Suggested Correction 

Revise the inspection schedule to once every 7 calendar days at a minimum with no additional requirements for storm events. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.024

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.2.3 

EPA requires that for discharges to waters that are impaired for sediment or nutrients, site inspections must be conducted at least weekly, 

and within 24 hours of a storm event (if 0.25 inches or greater) or a discharge caused by snowmelt. Also, daily visual examinations must 

be conducted to ensure that stormwater controls are working and to check for the presence of deposited sediment. While the Chamber 

generally believes site/visual inspections are a very effective means to assess effectiveness of controls, we do have some concerns about 

this proposed set of requirements. First, a "snowmelt" trigger has not been included in previous permits. The Chamber believes a 
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magnitude threshold should be identified. A trickle of runoff due to snowmelt should not trigger a need for a daily inspection. Second, 

the Chamber does not believe visual inspections are needed on a daily basis. Wet-weather events do not occur every day, and on dry days 

following a storm event. It is not clear how one would assess whether stormwater controls are "working as intended." It makes more 

sense for each discharger to determine, and specify in their Storm Water Pollution Prevention Plan (SWPPP), the specific frequency and 

location of visual inspections that is appropriate for their particular operations. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.024

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.3 

• Site Inspection Requirements. - Daily visual examinations are an undue burden at many remote sites, particularly during periods where 

little construction activity is ongoing at the site. 

Response 

Refer to Response 4.1. 

Comment ID 0133-A2.001.031

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 4.2.2.3 

The proposed inspection frequencies are overly burdensome and not practicable, especially in instances where active construction is 

complete. MDT recommends reducing these proposed inspection frequencies, with provisions for greater reductions during winter 

months when the ground is frozen and discharges are unlikely to occur, as well as periods when active construction has ended and 

temporary or final stabilization measures have been implemented. 

Response 

Refer to Response 4.1. 

Comment ID 0141-A2.001.006

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: 4.2.2.3 

3. Site Inspection Requirements for Sediment and Nutrient-Impaired Water (Section 4.2.2.3): EPA requires that for dischargers to waters 

that are impaired for sediment or nutrients, site inspections must be conducted at least weekly, and within 24 hours of a storm event of 

0.25 inches or greater or a discharge caused by snowmelt. Daily visual site inspections are also required. While the City generally agrees 

that site/visual inspections are a very appropriate means to assess effectiveness of BMPs, we do have some concerns about this proposed 
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set of requirements. A "snowmelt" trigger had not been included in previous permits, and it is not clear how it would work. How is it 

determined that there is a discharge caused by snowmelt? Second we do not think that visual inspections should be required on a daily 

basis since wet-weather events usually do not occur every day. It would seem appropriate to provide specific information pertaining to 

inspection frequency and location of visual inspections in site specific Storm Water Pollution Prevention Plans (SWPPP). 

Response 

Refer to Response 4.1. 

4.2.2.3Q DAILY VISUAL EXAMINATIONS

Comment ID 0007-A1.001.006

Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 4.2.2.3Q 

Comment: It would be far better to provide for inspections something like twice per week, at least 72 hours apart. Inspecting a site within 

24 hours of a storm even of 0.25 inches or greater does not work well. What usually happens is that the event happens on say a Thursday 

or Friday, the inspection is done on a Friday or Saturday, then no repairs are undertaken until sometime the next week. It is much more 

practical to have regularly scheduled times when inspections are performed so that arrangements can be made to have appropriate 

personnel and equipment on site and available to make any repairs noted. Also, the inspector can consult with the personnel on site to be 

sure the site personnel understand exactly what needs to be done and where. 

Response 

Refer to Response 4.1. 

Comment ID 0015-A2.001.018

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 4.2.2.3Q 

Q 19. Daily inspections - Agree. 24 hour time frames are reasonable. 

Response 

Refer to Response 4.1. 

Comment ID 0025-A1.001.036

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 4.2.2.3Q 
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Response to EPA's request for comment: During the Arizona dry season, it truly is not necessary to conduct a daily visual examination. 

Furthermore, it would be impractical on a very large construction project. As an alternative, the EPA could require a visual examination 

prior to predicted storm events. 

Response 

Refer to Response 4.1. 

Comment ID 0040-A1.001.022

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 4.2.2.3Q 

The 24-hour inspection requirement may not be feasible along a long linear project. Section 4.2.2.3.a. For example, for linear projects 

with 10 or more acres within an impaired watershed, it will take more than one day to complete a visual inspection of the area. Rather 

than the seven day and 24-hour triggering events, a better trigger might be precipitation events where the National Weather Service has 

a probability of precipitation of greater than 50%. Also, we recommend keeping an allowance for spot checking representative locations 

within 24 hours of a storm event for all linear projects 

Response 

Refer to Response 4.1. 

Comment ID 0053-A2.001.031

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 4.2.2.3Q 

The language in clauses 4.2.2.3 a. and b. indicate a site inspection every 7 calendar days and daily visual inspections. The only difference 

between Weekly site inspections and Daily visual examinations are record keeping. Please elaborate on the term "daily". Is the term 

"daily" defined as a "working day" as in Part 4.2.2.2.b., or construction days i.e. Monday through Friday, or every day of the week 

regardless of activity on the project. Daily visual examination would involve a person attending the site, or being stationed at the site 7 

days a week. If so, what is the purpose of the Weekly site inspection? 

Some sites are not active weekends, holidays, or in a stabilization/shutdown phase for extended periods of time, and may be in remote 

locations adding onerous conditions and exorbitant cost for no conditional site change/inspection findings. 

Consider revising this language, or at least defining the intent of the term "daily". 

Response 

Refer to Response 4.1. 

Comment ID 0062-A1.001.052
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Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 4.2.2.3Q 

Such as what macrobenthics? Very impractical. Nutrient sampling is time consuming and requires specialized personnel. 

Response 

Refer to Response 4.1. 

Comment ID 0064-A1.001.036

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 4.2.2.3Q 

Section 4.2.2.3.b, page 43 - Full "Daily visual examination" section 

•Likely overly burdensome to Contractor. Consider tying this specific requirement to projects that meet criteria in Section 2.2.1.3. 

Response 

Refer to Response 4.1. 

Comment ID 0066-A1.001.037

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 4.2.2.3Q 

Discussion: Daily inspections would overburden our workforce, who must focus more of their attention on items during construction 

that will ultimately affect the life and safety of the travelling public. 

Suggestion: Site inspectors innately look for items that need to be repaired. Maintaining BMPs in good working condition is part of what 

helps ensure a project site maintains adequate drainage during storm events. This gets done on what might end up being a daily basis, but 

this should not be a requirement of the permit. 

Response 

Refer to Response 4.1. 

Comment ID 0069-A1.001.013

Author Name: Cramer M. 

Organization: 

Issue Category: 4.2.2.3Q 

11. Part 4.2.2.3.b. of the draft EPA CGP discusses the appropriateness of daily visual examinations. The EPA CGP requires weekly site 

inspections and daily visual inspections. The daily requirement should be for working days only, not weekends or when the construction 
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crew is not working due to weather. During the EPA CGP's May 23, 2011 webcast, EPA officials stated that this would be the case; 

however, the rule must be made more specific to address this issue. 

Response 

Refer to Response 4.1. 

Comment ID 0072-A2.001.017

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 4.2.2.3Q 

Also, under Part 4.2.2.3, MoDOT does not agree that "daily visual examinations" is an efficient and justifiable use of resources and 

believes the weekly and/or post-discharge inspections are sufficient to adequately address potential site inadequacies. 

Response 

Refer to Response 4.1. 

Comment ID 0074-A2.001.022

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 4.2.2.3Q 

We feel requirements for daily visual examination are too stringent. Weekly site inspections are appropriate as proposed in the permit -

at a minimum, once every 7 calendar days and within 24 hours of a storm event of 0.5 inches or greater or within 24 hours of a discharge 

caused by snowmelt. 

Response 

Refer to Response 4.1. 

Comment ID 0075-A2.001.031

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 4.2.2.3Q 

What happens when the event occurs during a period of non-work (i.e. during a weekend)? Daily inspections and 7 day inspections will 

also require additional personnel. 

Response 

Refer to Response 4.1. 
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Comment ID 0077-A1.001.011

Author Name: DeStefano Anthony 

Organization: Village of Solvay 

Issue Category: 4.2.2.3Q 

It should be the contractor's responsibility to conduct daily inspections of installed erosion control measures. 

Response 

Refer to Response 4.1. 

Comment ID 0080-A2.001.029

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 4.2.2.3Q 

Partner Response: The Partners feel these inspection frequencies are reasonable for active construction sites. 

For sites where active construction has ceased and the owner or site operator is awaiting final stabilization and termination of the CGP, 

a monthly or quarterly inspection frequency is more appropriate. 

The Partners have previously presented their comments and concerns in response to stabilization timeframes and the inherent difficulties 

of stabilization in arid areas such as the Albuquerque metropolitan area. 

Response 

Refer to Response 4.1. 

Comment ID 0085-A2.001.021

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 4.2.2.3Q 

Daily visual inspections are entirely appropriate and should be required on all sites, regardless of site size or the condition of the 

receiving water body. Daily visual inspection by operators is the only way to ensure all practices are properly maintained and 

functioning 

Response 

Refer to Response 4.1. 

Comment ID 0086-A1.001.023

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 
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Issue Category: 4.2.2.3Q 

Linear projects of 10 or more acres within an impaired watershed, will take more than one day to complete for just a visual inspection of 

the area. EPA should replace the seven day and 24-hour triggering events with a trigger based on precipitation events where the National 

Weather Service has forecast a probability of precipitation of greater than 50%. TriState also supports retaining an allowance for spot 

checking representative locati ons within 24 hours of a stonn event for all linear projects. 

Response 

Refer to Response 4.1. 

Comment ID 0090-A1.001.036

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 4.2.2.3Q 

Likewise, the daily visual examinations provision of Part 4.2.2.3. are impractical and unnecessary in periods of inactivity on the site, 

given the unique scope and extent of the excavation operation. AGA believes that weekly inspections continue to provide adequate 

monitoring, and that linear projects should be exempted from any benchmarking requirements. 

Response 

Refer to Response 4.1. 

Comment ID 0091-A2.001.013

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 4.2.2.3Q 

13. Faet Sheet Item 19. Part 4.2.2.3: Requiring that all stormwater controls be installed at the beginning of the project and requiring daily 

inspections of all the controls will create a significant burden on larger projects. Inspection should not be required for storm water 

controls either downstream of undisturbed areas or downstream of stabilized areas. 

Response 

Refer to Response 4.1. 

Comment ID 0097-A1.001.016

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 4.2.2.3Q 

19. I agree with daily inspections. See # 7 [See Comment ID 0097-A1.001.006] for comment on time frame. 

Response 

Refer to Response 4.1. 
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Comment ID 0103-A3.001.016

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 4.2.2.3Q 

In Part 4.2.2.3 Site Inspection Requirements, EPA suggests daily visual inspection for portions of the sites discharging to water bodies 

that are impaired for sediment or nutrients. 

TCEQ recommends a less frequent inspection frequency such as is required in the existing permit (once per week or once every two 

weeks plus after every rainfall event). Daily visual inspections may not be practical or feasible in many cases. 

Response 

Refer to Response 4.1. 

Comment ID 0117-A1.001.011

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: 4.2.2.3Q 

It should be the contractor's responsibility to conduct daily inspections of installed erosion control measures. 

Response 

Refer to Response 4.1. 

Comment ID 0131-A1.001.021

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 4.2.2.3Q 

Visual inspection serves as one of the critical tools available to construction management personnel for evaluating the effectiveness of 

field controls and in general. LBA is highly supportive of the requirement to conduct visual inspections. However, there are a number of 

practical construction-related issues that make required daily inspections impractical and costly without clear benefits to the 

environment including: 

• At many sites there are extended periods of time where activities at the site do not require field personnel on a daily basis and weather 

conditions (e.g. arid west summer period) present little or no risk of discharge. 

• Daily inspections are particularly challenging at remote sites where travel times are significant. 

• Utilization of controls which are well suited for extended deployment and that require decreased maintenance are more likely to be 

used at remote sites or those that are not typically visited daily. Required daily inspections and on-site personnel visits could be a 
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potential disincentive to utilizing these more robust methods. 

LBA recommends that the frequency of inspections should be variable to account for the above as well as differences in geographic 

weather patterns. For example, in much of the arid west there is little to no precipitation for months. Requiring daily inspections in these 

areas would not make sense. The SWPPP should be to tool for setting the appropriate frequency of visual inspections that must be 

documented based upon the local conditions and factors. 

Response 

Refer to Response 4.1. 

Comment ID 0137-A2.001.018

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 4.2.2.3Q 

Daily visual examination is impractical. Some large, irregularly shaped sites may have extremely long perimeters. Inspection should 

take place after rain events, not on a daily basis.

Response 

Refer to Response 4.1. 

Comment ID 0145-A2.001.021

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 4.2.2.3Q 

Our experience with development projects that were largely successful in their construction stormwater management efforts indicates 

that those successful projects consistently had staff dedicated specifically to that effort. Daily inspections were routine and the 

stormwater management efforts benefitted from that level of attention. Since all development projects do not necessarily undertake such 

a daily visual inspection, and since the benefits of doing so are significant, we encourage EPA to require daily visual inspections. 

Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.033

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.2.2.3Q 

Daily visual inspections are excessive and provide no more benefit than the regular prescribed inspections based on time and rainfall 

events. 
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Response 

Refer to Response 4.1. 

Comment ID 0159-A1.001.015

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 4.2.2.3Q 

Daily visual examination is impractical. Some large, irregularly shaped sites may have extremely long perimeters. Inspection should 

take place after rain events not on a daily basis. 

Response 

Refer to Response 4.1. 

Comment ID 0170-A2.001.010

Author Name: Davis Scott 

Organization: Arizona Public Service Company (APS) 

Issue Category: 4.2.2.3Q 

The requirement to conduct daily inspections at sites near impaired waters should be removed from the permit. APS frequently 

constructs facilities in remote areas where a full day is required to reach the sites and perform stormwater inspections. As a practical 

matter, these types of projects would need to have a stormwater "qualified person" on site full time in order to conduct daily inspections. 

This is an excessive requirement which will result in very little, if any, environmental benefit, yet will result in significant costs to the 

operator. Furthermore, EPA has recognized elsewhere in the permit that arid and semi-arid climates are unique and warrant special 

consideration. This "special consideration" should be extended to Part 4.2.2.3. Daily stormwater inspections in a region that receives 

eight inches of rain per year is an excessive requirement that will yield no additional environmental benefit beyond the requirements in 

Part 5.1. 

Response 

Refer to Response 4.1. 

4.2.3 REQUIREMENTS FOR DISCHARGES TO WATERS IMPAIRED FOR 

OTHER POLLUTANTS.

Comment ID 0024-A2.001.012

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 4.2.3 

Additionally, we support the more frequent inspection requirements, Part 4.2.3, as a means of improving the permittee's ability to find 
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and correct problems before a discharge occurs. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.014

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.2.3 

8. Requirements for Waters Impaired for Other Pollutants (Section 4.2.3): For discharges to waters that are impaired for pollutants other 

than sediment or nutrients, EPA provides that the Agency will inform the discharger of any additional required limits or controls that are 

needed to meet water quality standards or to comply with a TMDL. The FWQC generally supports that approach, which ensures that the 

discharger has adequate notice of new requirements, which will be developed on a discharge-specific basis.[FN 8] EPA should clarify, 

though, that it will not simply "inform" the discharge of new requirements; the regulated party needs to have an opportunity to review 

and comment on the new requirements before they are imposed. 

[FN 8] EPA asks for comment on whether the requirement for sediment or nutrient impairments should be expanded to cover biological 

impairments that are "attributable to either sediment or nutrients." We do not think that this expansion of the nutrient/sediment 

provisions would be appropriate. If EPA or the State believe that an impairment is "attributable" to sediment or nutrients, and want to 

impose controls on those pollutants, then they should first amend the State's list of impaired waters to make it clear that the waterbody is

listed for sediment or nutrient impairments. A subjective judgment that a listed biological impairment is "attributable" to sediment or 

nutrients is not an acceptable substitute for a clear listing decision as to a particular pollutant. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.025

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.2.3 

For discharges to waters that are impaired for pollutants other than sediment or nutrients, EPA provides that the Agency will inform the 

discharger of any additional required limits or controls that are needed to meet water quality standards or to comply with a TMDL. The 

Chamber supports that approach, which ensures that the discharger has adequate notice of new requirements, which will be developed on 

a discharge-specific basis. 

Response 

Refer to Response 4.1. 

Comment ID 0130-A2.001.023
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Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 4.2.3 

21. INSPECTION REQUIREMENTS. Part 4.2.2.3 requires daily visual examinations for sites discharging to a sediment or nutrient 

impaired water body. There are several concerns: 

a. This requirement conflicts with Part 5 that requires inspections only required during normal business hours. 

b. Daily visual examinations are unnecessary and ineffective when there has been no precipitation. An inspector is unable to accurately 

or effectively determine if the project controls are functioning during dry weather. 

c. Due to the often remote locations of our project sites, daily visual examinations would add a considerable resource burden to projects 

with what appears to be minimal risk reduction to water quality impacts. 

d. The required weekly inspections and post rain event inspections are sufficient to ensure proper functioning of stormwater controls. 

Response 

Refer to Response 4.1. 

4.3 DISCHARGES TO WATERS IDENTIFIED AS TIER 2, TIER 2.5, OR 

TIER 3

Comment ID 0094-A1.001.005

Author Name: Oppenheimer Jonathan 

Organization: Idaho Conservation League 

Issue Category: 4.3 

Second, the Idaho Conservation League is concerned that approval of CGPs in high quality waters of the state may impair beneficial uses 

and conflict with Idahos Antidegradation Policy. The Clean Water Act requires the State of Idaho to protect existing uses of all state 

waters and to protect high quality waters from degradation and to develop an Antidegradation Implementation Plan. Similar to the 

concerns listed above with regards to water quality impaired stream segments, we are concerned that CGPs may be approved that could 

degrade high quality waters without necessary levels of public disclosure and comment, review and consideration. We do not feel that it 

is appropriate or feasible to conduct Antidegradation review at the scale of a Nationwide CGP. Antidegradation reviews must be 

completed for each specific action in each unique Tier II water. Further, the State of Idaho and EPA are in the process of considering an 

Antidegradation Implementation Plan, and until the time that the US Environmental Protection Agency (EPA) certifies and approves 

that plan, no degradation of Idaho water bodies can occur without direct approval from the EPA. 

In general, we are concerned that the lack of site-specific analysis that results from the consideration and approval of CGPs has the real 

potential to cause or contribute to water quality standard exceedances in Idaho without appropriate levels of review, disclosure, public 

comment and administrative appeal opportunities. Indeed, in June 2008 the Idaho Department of Environmental Quality (DEQ), which 
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has authority to review NPDES permits and issue water quality certification decisions, issued a blanket certification for CGPs. This 

certification was subject to state administrative appeal proceedings for 35 days after its issuance, whereas its application continued for 3

years since. As a result, in cases where site-specific information indicated violation of state Water Quailty Standards, the 

Antidegradation Policy, or TMDLs, no recourse was available to provide for administrative relief. While we appreciate that site-specific 

NPDES certification can still be conducted by the DEQ in certain circumstances, DEQ has not expressly reserved the right to develop 

site-specific NPDES certification in circumstances where conditions warrant such review. Indeed, permitees must only notify the 

Regional DEQ office where activities are proposed on impaired waters, and the DEQ 2008 certification states that if "permittees comply 

with the terms and conditions...then there is reasonable assurance the discharges will comply with...the Clean Water Act." The blanket 

certification does not even advise permittees to contact the appropriate regional DEQ office to determine if the project is in compliance 

with an existing TMDL, as it does with some other Nationwide Permits. As a result, there is no mechanism to ensure that CGP-approved 

projects are being conducted consistent with TMDLs and/or Idaho Water Quality Standards. 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.015

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.3 

9. Discharges to Tier 2, Tier 2.5 and Tier 3 Waters (Section 4.3): EPA provides that dischargers to Tier 2, 2.5 or 3 waters must meet the 

stabilization and inspection requirements that apply to sources on sediment or nutrient-impaired waters, and may be notified by EPA that 

additional requirements will be needed. We generally agree with the last part of that provision - that additional controls will be imposed 

if EPA determines that they are necessary (subject, again, to the condition that before making a determination, EPA will provide an 

opportunity to comment on the proposed new requirement). But we have several concerns and questions about application of 

stabilization and inspection requirements to these situations 

Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.016

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.3 

First, EPA states that "Tiers 2, 2.5 and 3 refer to waters either identified by the state as high quality waters or Outstanding National 

Resource Waters .... " Technically, Tier 2.5 waters are those identified by the state as needing more protection than Tier 2 waters, but less 

than ONRWs. As noted above, we do not believe that EPA should address Tier 2.5 issues in this Permit, since Tier 2.5 is entirely a State 

issue.[FN 9] 

[FN 9] To the extent that Tier 2.5 is referenced, EPA should clarify that Tier 2.5 waters are subject to the same requirements as Tier 2 

waters under EPA regulations. 
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Response 

Refer to Response 4.1. 

Comment ID 0119-A2.001.017

Author Name: Andes Fredric 

Organization: Federal Water Quality Coalition (FWQC) 

Issue Category: 4.3 

Second, we do not see what basis EPA has for imposing these extra requirements in situations where the waters are not impaired. As 

noted above, the anti degradation requirements for Tier 2 waters do not prohibit all increases, and do not impose blanket control 

requirements on those increases. The specific anti degradation provisions are determined on a State-by-State basis. Therefore, it makes 

the most sense to continue the practice that EPA adopted in the prior CGP and the MSGP: a general provision requiring that the 

discharger must comply with applicable antidegradation requirements. 

The Tier 212.5/3 requirements proposed here by EPA are of particular concern because they could apply to virtually every discharge. In 

most States, antidegradation tiers are determined on a pollutant-by-pollutant basis. Since no waterbody violates standards for every 

single pollutant, every waterbody is "high quality" (Tier 2) for some pollutants. And the proposed Section 4.3 is not limited to waters that 

are high quality for sediment or nutrients; it seems to apply if the water is high quality for any parameter. That would, then, apply the 

inspection and stabilization requirements everywhere. There is simply no basis for that broad imposition of these new control provisions.

Response 

Refer to Response 4.1. 

Comment ID 0153-A1.001.034

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 4.3 

What is the basis of this requirement? This was not part of the EGLs? 

Response 

Refer to Response 4.1. 

4.3.1 IDENTIFICATION OF DISCHARGES TO A TIER 2, TIER 2.5, OR 

TIER 3 WATER.

Comment ID 0128-A2.001.027

Author Name: Robertson Mike 
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Organization: Minnesota Chamber of Commerce 

Issue Category: 4.3.1 

First, EPA states that "Tiers 2, 2.5 and 3 refer to waters either identified by the state as high quality waters or Outstanding National 

Resource Waters..." Technically, Tier 2.5 waters are those identified by the state as needing more protection than Tier 2 waters, but less 

than ONRWs. As noted above, we do not believe that EPA should address Tier 2.5 issues in this Permit, since Tier 2.5 is entirely a State 

issue. 

Response 

Refer to Response 4.1. 

4.3.2 REQUIREMENTS FOR NEW SOURCES DISCHARGING TO TIER 2, 

TIER 2.5, OR TIER 3 WATERS.

Comment ID 0107-A2.001.013

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: 4.3.2 

Additional requirements should be added for discharges to Tier 2.5 and Tier 3 (Outstanding National Resource Waters). While ideally it 

would be most helpful to water quality to have comprehensive benchmark monitoring for a broad range of parameters for discharges into 

these special waters, a less proscriptive step of requiring individual 401 certification for each proposed NOI for discharges to Tier 2.5 

and 3 streams would at least provide some additional protections. If individual 401 certifications were required in specially protected 

waters, state water quality officials who have a good sense of on the ground water quality issues could determine if additional benchmark 

monitoring is required. Here in New Mexico, where most of our streams are small and do not provide much dilution, even the smallest 

discharge has the potential to degrade water quality in the receiving waterbody. Therefore added protections for ONRW streams are 

essential to ensure that these streams are not being degraded and the Clean Water Act is not being violated. 

Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.026

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.3.2 

EPA provides that dischargers to Tier 2, 2.5 or 3 waters must meet the stabilization and inspection requirements that apply to sources on 

sediment or nutrient-impaired waters, and may be notified by EPA that additional requirements will be needed. We generally agree with 

the last part of that requirement - that additional controls will be imposed if EPA determines that they are necessary. But we have several 

concerns and questions about application of stabilization and inspection requirements to these situations. 
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Response 

Refer to Response 4.1. 

Comment ID 0128-A2.001.028

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: 4.3.2 

Second, the Chamber does not understand what basis EPA has for imposing these extra requirements in situations where the waters are 

not impaired. As noted above, the antidegradation requirements for Tier 2 waters do not prohibit all increases, and do not impose blanket 

control requirements on those increases. The specific antidegradation provisions are determined on a State-by-State basis. Therefore, it 

makes the most sense to continue the practice that EPA adopted in the prior CGP and the MSGP: a general provision requiring that the 

discharger must comply with applicable antidegradation requirements. 

The Tier 2/2.5/3 requirements proposed by EPA are of particular concern because they could apply to virtually every discharge. In most 

States, antidegradation tiers are determined on a pollutant-by-pollutant basis. Since no waterbody violates standards for every single 

pollutant, every waterbody is "high quality" (Tier 2) for some pollutants. And the proposed Section 4.3 is not limited to waters that are 

high quality for sediment or nutrients; it seems to apply if the water is high quality for any parameter. Essentially that would apply the 

inspection and stabilization requirements everywhere. There is simply no basis for that broad imposition of these new control provisions. 

Response 

Refer to Response 4.1. 

Comment ID 0130-A2.001.025

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 4.3.2 

23. ANTIDEGRADATION. Part 4.3.2. The proposed permit states that EPA reserves the right to notify the applicant that additional 

analyses, stormwater controls, or other permit conditions are necessary to comply with the applicable antidegradation requirements, or 

notify that an individual permit application is necessary. This would be a significant adverse impact to state government business. 

The state DOT must remove schedule and cost risks prior to award of the contract. With few exceptions, we require projects to have 

permits in place prior to construction. It is crucial to have any antidegradation review and conditions occur during planning and design. 

Additional requirements by EPA made during construction would leave the state vulnerable to contractor claims for time and money. 

Antidegradation policy development and implementation is generally a state level function. The state agency (IDEQ) is charged with the 

administration of the antidegradation program. ITD questions the appropriateness of this provision in a federally issued permit. 

Furthermore, degradation of water quality is allowed under antidegradation if there is social and economical benefit justifying the 

degradation. Transportation projects have an inherent social and economical benefit. ITD believes that Part 1.3.4 adequately deals with 

antidegradation and Part 4.3.2 could be removed from the permit completely. 
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Response 

Refer to Response 4.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 5, 5.1, 5.1.1, 5.1.2, 5.1.3, 5.1.4, 5.1.4.1, 5.1.4.2, 5.1.4.3, 5.1.4.3Q, 

5.1.5, 5.2, 5.3

 
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5 INSPECTIONS

Comment ID 0055-A1.001.016

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: 5 

Representative inspections should continue to be allowed similar to the 2008 CGP. Continued flexibility should be considered for linear 

projects; so that valuable resources are focused in critical areas of construction. Daily inspections on all portions of a long linear project 

may not be practicable. 

Response 

Refer to Response 5.1. 

Comment ID 0090-A1.001.025

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 5 

The Draft Permit's proposed inspection requirements create various compliance burdens for linear projects in ROWs. Linear 

construction pipeline projects operate alongside other permitted and non-permitted entities in the same ROW. But the proposed 

inspection requirements do not delineate clear lines of responsibility among the various entities conducting improvements on the 

roadway. Instead, natural gas pipelines and utilities subject to the Draft Permit would have to incur unreasonable costs to coordinate 

more management and labor resources to continually document events caused by a larger group of operators. AGA thus requests that 

EPA reconsider its visual and post-precipitation inspection requirements to account for these disparate post-event reporting burdens on 

linear pipeline construction. 

Response 

Refer to Response 5.1. 

Comment ID 0130-A2.001.018

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 5 

17. INSPECTION REQUIREMENTS. Part 2.3.2 requires weekly inspections for all Pollution Prevention Standards. Part 4.2.2.3 

indicates weekly inspections, plus daily visual examinations of some components of a project. Part 5 indicates inspections requirements 

every 14 days. Part 5 also requires post rain event inspections, and inspections within 24 hours of a snow melt discharge event. These 

differing inspection frequency requirements, based on different circumstances, will complicate inspection tracking and records 

management. The inspection requirements need to be streamlined and simplified so that there is more consistency across the spectrum of 

scenarios which trigger inspections. 

Response 
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Refer to Response 5.1. 

5.1 SITE INSPECTIONS

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

5.1.1 PERSON(S) RESPONSIBLE FOR INSPECTING SITE

Comment ID 0076-A1.001.031

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 5.1.1 

Target requests further clarification on the significance of 0.25 inches as the trigger for storm event inspections. Target also believes that 

the requirements specified in 5.1.1. are overly complicated. Target suggests simplifying permit requirements by using measurable 

discharge as the trigger for site inspections during a storm event. This requirement suggestion would fit more soundly with monitoring 

requirements. 

Target would also like to inquire why the EPA does not have language limiting inspection frequency during frozen soil conditions. 

Target suggests that the EPA limit inspections to once per month during frozen conditions. 

Response 

Refer to Response 5.1. 

Comment ID 0090-A1.001.027

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 5.1.1 

AGA is also concerned about reporting accountability concerns for event-based inspection requirements proposed in Part 5. For roadway 

projects, utilities obtain their own stormwater permits to relocate onto areas where there is ongoing work by non-permit and permit 

holders. AGA suggests that EPA should include some language demonstrating the extent of reporting required for pipeline projects on 

public rights of way and other shared spaces to distinguish those events caused by non-permit holders.

Response 

Refer to Response 5.1. 

Comment ID 0091-A2.001.025

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 5.1.1 
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25. Part 5.1.1: Some states and municipalities have certifications for construction storm water inspectors. Could the permitee identify 

one of these programs as the mechanism to ensure qualified persons are on staff? Note: adopting any particular state certification 

requirement would be up to the permitee. There is no requirement to adopt the certification for the state where the project is located. 

Response 

Refer to Response 5.1. 

Comment ID 0133-A2.001.032

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 5.1.1 

MDT supports the proposed definition for "qualified" personnel. Existing certification programs have not been standardized and are not 

readily available in all states. As such, flexibility is necessary for permit compliance. 

Response 

Refer to Response 5.1. 

5.1.2 FREQUENCY OF INSPECTIONS

Comment ID 0015-A2.001.038

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 5.1.2 

5.1.2 After storm event inspections should occur within 12 hours, even if it means reporting on weekends. Permittees should be held 

responsible for discharges from their sites regardless of site work hours. The proposed language would not require action at a water 

logged, discharging site over a weekend. 

Response 

Refer to Response 5.1. 

Comment ID 0017-A1.001.022

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: 5.1.2 

20) 5.1.2 - EPA is proposing a longer duration between stormwater inspections during dry periods (14 calendar days), after a 

precipitation event of 0.25" or more, and within 24‐hours of a snowmelt. The inspection frequency of within 0.25" or within 24‐hours of 

a snow melt is excessive. With regards to snow melt, the proposed rule will require daily inspections whenever temperatures exceed 32° 

and you will still not be able to see the melting snow under the large snow banks and drifts that build up during winter. Reducing the 

trigger point to 0.25" of precipitation will more than double the frequency of inspections from rain events. The proposed rule does not 

provide information to support the logic for the changes in inspection frequency (what benefit will increased inspections provide to 
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waters of the US?). It is preferred that the inspection frequency be kept at existing levels of once per week and within 24‐hours of a 0.5" 

precipitation event. 

Response 

Refer to Response 5.1. 

Comment ID 0021-A1.001.002

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 5.1.2 

2. What is your reasoning for changing the Frequency of Inspections requirements outlined in Section 5.1.2? Why was the once per 7 day 

option in lieu of the 14 day in conjunction with a given storm event option removed? 

Response 

Refer to Response 5.1. 

Comment ID 0021-A1.001.012

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 5.1.2 

2. In Section X.1.2 of the Proposed CGP factsheet, new guidance is provided for the inspection frequencies and the new requirements are 

proposing inspections are to be performed every 14 days and within 24 hours any storm event greater than 0.25 inches. The change from 

0.5" to 0.25" is not a major issue in my mind. But where the EPA states that having a choice between the 2 inspection frequencies from 

the 2008 CGP is both confusing and challenging to enforce is incorrect in my mind. Having a choice provides us more flexibility that 

provides us an option for what would best serve a site during different stages of construction. Being able to choose the 7 day option with 

no requirements for post‐storm event inspection is preferred in most cases since it is easier for inspectors to schedule their time and plan 

accordingly. Here in Colorado, the weather forecasts are often unreliable and storms can come out of nowhere. So under the new 

requirements inspectors would not be able to plan their schedule and be forced to break prior commitments after a storm event. They 

would virtually have to be on "stand by" during rainy periods of the year. 

Response 

Refer to Response 5.1. 

Comment ID 0030-A2.001.028

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: 5.1.2 

Section 5.1.2., page 45 

Where a numeric trigger is necessary, we recommend maintaining use of 0.5 inch for a rain event. 0.25 inches of precipitation will 

frequently result in no runoff (and, hence, no erosion) in many locations, depending on the characteristics of the site and the antecedent 

moisture conditions. Also, there are many days with snowmelt with relatively no potential for erosion (such as when snow melts off the 
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snow pack, but there are still several feet of snow remaining). As an alternative example, the State of Colorado triggers inspection when 

there is a potential for erosion due to a precipitation event (including snowmelt). We recommend using this type of language for 

snowmelt events. 

Response 

Refer to Response 5.1. 

Comment ID 0037-A1.001.043

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 5.1.2 

The Permit states "If there is a discharge from your site on multiple days, you are required to conduct an inspection within 24 hours of the 

end of the storm." Is this requirement in addition to the requirement to conduct an inspection when a discharge is occurring? 

Response 

Refer to Response 5.1. 

Comment ID 0038-A1.001.015

Author Name: Minervini W. 

Organization: 

Issue Category: 5.1.2 

Because the draft CGP does not expressly require the permittee to record (for each storm event) the amount of rainfall at the permittee's 

site, it is unclear how the requirements to conduct site inspections within 24 hours of "a storm event of 0.25 inches or greater" will be 

administered. Will permittees be allowed to use rainfall data from nearby offsite rain gauges (or similar devices), as Part 3.1.2.1 allows 

for different purposes? (My comments above on Part 3.1.2.1 also apply to Parts 4.2.2.3.a, 5.12, and 8.2.12.1.b.) USEPA should allow 

permittees to use radar estimates of rainfall at the permittee's site, and make it simple for permittees nationwide to obtain such estimates 

at no cost where available. 

Response 

Refer to Response 5.1. 

Comment ID 0046-A1.001.024

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 5.1.2 

The Department believes a O.5-inch storm event would be more appropriate to trigger inspections. 

Response 

Refer to Response 5.1. 

Comment ID 0047-A2.001.023
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Author Name: Kilty Quinn 

Organization: Xcel Energy Inc. 

Issue Category: 5.1.2 

Section 5.1.2, page 45 

Many states and municipalities already require routine inspections every 7 days and after storm events that generate 0.5 inches of rain or 

where there is a potential for erosion due to a precipitation event (including snowmelt). 0.25 inches of precipitation will not likely result 

in runoff depending on the site conditions. 

Response 

Refer to Response 5.1. 

Comment ID 0064-A1.001.037

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 5.1.2 

Section 5.1.2, page 45 - Full "Frequency of inspections" section 

•This section is very confusing. Please state more succinctly. The requirement seems to suggest an inspection is required within 24 hours 

of a rain event of 0.25 inch or greater. Suggest removing different inspection requirements for when a site is discharging as this will be 

observed during a normal inspection by permit requirement. 

Response 

Refer to Response 5.1. 

Comment ID 0066-A1.001.038

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 5.1.2 

Discussion: As stated in another one of our comments, the rainfall amount requiring an inspection should be 0.5 inches, and not 0.25 

inches. 

Suggestion: Leave number at 0.5 inches, as from the 2008 NPDES permit indicates. 

Response 

Refer to Response 5.1. 

Comment ID 0072-A2.001.018

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 5.1.2 

MoDOT believes the requirement for post-discharge inspections (storm event or snowmelt) should be lengthened from 24 hours to 48 
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hours to afford the inspection team a broader window to complete the required inspection as was described in Comment 9. 

Comment ID 0072-A2.001.019

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 5.1.2 

MoDOT does commend the EPA for noting that inspections are only required during the project's normal working hours and the 

inspection frequency can be reduced to once per month if adequate stabilization has been achieved. 

Response 

Refer to Response 5.1. 

Comment ID 0080-A2.001.032

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 5.1.2 

A site inspection within 24 hours of 0.25 inches of rain is much more stringent than the 0.5 inches of rainfall or greater criteria. It will add

to the frequency of inspections, thereby increasing costs. The Partners question what the rationale is for this change as it does not apply 

very well to the arid west? 

Response 

Refer to Response 5.1. 

Comment ID 0085-A2.001.002

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 5.1.2 

Daily visual inspection by operators is the only way to ensure all practices are properly maintained and functioning. Even when no 

significant rain events occur, sediment control practices can fail due to destruction by construction activities, poor installation, accidents, 

vandalism and acts of God. Visual inspections are not time consuming, require limited personnel and will prevent operators from 

incurring violations for turbidity limit exceedances. Inclusion of this requirement will promote cleaner sites and cleaner water. 

Response 

Refer to Response 5.1. 

Comment ID 0085-A2.001.023

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 5.1.2 

Again, Rockville believes that visual inspections by operators should be performed more frequently then every 14 calendar days. Even 
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when no significant rain events occur, sediment control practices can fail due to destruction by construction activities, poor installation, 

accidents, vandalism, acts of god, and settling of soils. Visual inspections are not time consuming, require limited personnel and will 

prevent operators from incurring violations for turbidity limit exceedances. 

Response 

Refer to Response 5.1. 

Comment ID 0086-A1.001.021

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 5.1.2 

Tri-State believes the inspection requirements for the proposed COP are unduly burdensome and provide no added environmental 

benefit to protect water quality standards. The proposed COP contains provisions for daily, weekly, and biweekly site inspections. 

Section 4.2.2.3 and 5.1.3. 

Response 

Refer to Response 5.1. 

Comment ID 0090-A1.001.037

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 5.1.2 

Under Part 5.1.2., EPA proposes post-rainfall monitoring requirements that are both draconian for pipeline utility project cost 

management and redundant with pre-existing best practices for stormwater erosion management. EPA calls for visual assessments 

during any discharge-generating rain event, followed by a full inspection within 24 hours of a 0.25 inch precipitation event. On one hand, 

the 24-hour requirement is impractical because on days of expected rainfall events, site operations would not be scheduled, and if the 

rain event occurred on a weekend, the 24-hour rule would require workers to be called to the site for over-time inspection activities that 

fall outside the project contract budget. 

Response 

Refer to Response 5.1. 

Comment ID 0091-A2.001.026

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 5.1.2 

26. Part 5.1.2: Recommend changing the frequency to once every two weeks or at least once every 15 calendar days. This would 

encourage a best management practice to complete the inspections on the first working day every two weeks. If there is a holiday on 

Monday the inspection could be completed on Tuesday and still comply with the recommended frequency. 

Response 

Refer to Response 5.1. 
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Comment ID 0115-A2.001.024

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 5.1.2 

5.1.2. Frequency of Inspections. The requirement to conduct a site inspection every 14 calendar days and within 24 hours of the end of a 

storm event of 0.25 inches or greater is a significant increase over the 14 calendar day/0.5 inch storm event optional inspection approach 

in the current general permit. The existing CGP also provides the option to conduct site inspections at least once every 7 calendar days 

and this frequency has been adequate for all of our recent construction projects. Due to the typical seasonal frequency of 0.25 inch storm 

events during spring and fall seasons in New England, a significant increase in inspections would now be required. 

National Grid currently requires contractors and consultants to conduct inspections as required by the General Permit and as specified in 

the SWPPP for each project. We believe that the current inspection schedule is adequate, as it has proven to provide necessary guidance 

to our contractors and allowed for timely response to maintenance needs and corrective actions. The increase in inspections will result in 

increased costs with minimal benefit. National Grid's internal environmental guidance documents ensure that projects are monitored and 

maintained as necessitated by unique site conditions (e.g., slope gradient and exposure, soil type and erodibility, presence of 

down-gradient wetland and water resources, proximity to TMDL water bodies, etc.). 

The requirement to conduct inspections within 24 hours of the beginning of snow melt is difficult in remote utility corridors on those 

portions of the ROW where active construction activities are not on-going. 

Utility line construction activities rarely result in a discrete discharge because they are managed in accordance with the most appropriate 

BMPs and, due to the phased nature of activities, work does not occur in one location for a significant period of time. However, EPA 

typically recommends that even if there are no discrete discharges, a Notice of Intent (NOI) should be filed and a SWPPP should be 

prepared in the event that a discharge develops during construction. Therefore, National Grid routinely files an NOI and prepares a 

SWPPP for all projects altering over 1 acre and requires consultants to conduct the inspections and reporting (within 24 hours of 

inspection) even if there are no discharges to wetlands or waterways. 

The increase in construction monitoring and reporting is significant and will result in significant cost increases to National Grid projects. 

Therefore, in submitting comments to this new requirement, we request additional information regarding the science or reasoning behind 

the increased inspection frequency. 

Response 

Refer to Response 5.1. 

Comment ID 0121-A2.001.019

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 5.1.2 

Section 5.1.2 of the pennit requires site inspections after stonn events of greater than 0.25 inches. This will lead to very frequent and 

redundant inspections. A 0.5 inch stonn event would be a more reasonable trigger. EPA could also consider applying the 0.25 inch stonn 

event only to those construction sites that are particularly prone to erosion (i.e. those with steep slopes and highly erodible soils). 
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Response 

Refer to Response 5.1. 

Comment ID 0126-A2.001.018

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 5.1.2 

Instead of quantifying the storm event in inches, which does not account for regional variation, an inspection should occur within 24 

hours following a storm event that causes runoff. 

Response 

Refer to Response 5.1. 

Comment ID 0127-A2.001.010

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 5.1.2 

Section 5.1.2 

Proposed Language 

At a minimum, you must conduct a site inspection once every 14 calendar days and within 24 hours of the end of a storm event of 0.25 

inches or greater and within 24 hours of a discharge generated by snowmelt. If the storm event of 0.25 inches or greater, or snowmelt, 

causes your site to discharge, within 24 hours of the end of the storm event or the beginning of the snowmelt discharge, you must conduct 

a site inspection when the discharge is occurring and comply with the requirements of Part 5.1.4.3. If the storm event does not cause your 

site to discharge or if the site did not discharge within 24 hours of the end of the storm event you must conduct a site inspection that 

complies with the requirements of Part 5.1.4.2. If there is a discharge from your site on multiple days, you are required to conduct an 

inspection within 24 hours of the end of the storm. EPA notes that inspections are only required during the project's normal working 

hours. 

Concern 

Compliance with the post storm event requirement is difficult when a construction project outsources the stormwater compliance 

inspections to an outside consultant that are required to visit every site within 24 hours of a discharge. The small size of the storm event, 

variable storm activity across a metropolitan area, and variable snowmelt conditions, create difficulties in compliance. Inspections on a 

consistence basis that are more often would alleviate the issues stated. 

Suggested Correction 

Revise the inspection schedule to also allow the option of inspections once every 7 calendar days at a minimum with no additional 

requirements for storm events. 
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Response 

Refer to Response 5.1. 

Comment ID 0130-A2.001.026

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 5.1.2 

24. SAMPLING AND INSPECTION FOR SNOWMELT. Part 5.1.2. This requirement is particularly problematic as it requires 

inspection within 24 hours of a discharge generated by snowmelt (during the normal project working hours). Part 3.3.1 requires sample 

collection within 1 hour of the beginning of a discharge resulting from snowmelt (M-F 8-6). This is a new concept in this permit, and one 

that will clearly be difficult to comply with or enforce, especially in a state the size of Idaho. We strongly recommend the removal of this 

requirement. 

If both these snowmelt provisions are not removed, at a minimum, the EPA should remove the requirement if a project is stabilized (post 

construction but prior to filing an NOT) and unstaffed and/or inactive. 

Consider a scenario of a remote project that is stabilized for the winter and snow covered. It has been reduced to monthly inspections. In 

February, a slight warming period results in temperatures rising to 35-38 degrees. There may or may not be snowmelt discharge from the 

project depending on elevation, aspect, slope, water content of snowpack, etc. Consider also a scenario where there is constant snowmelt 

discharge for an extended time. 

25. DEFINITION OF STORM EVENT. Part 5. The 0.25 inch rain event as an inspection trigger will significantly increase inspection 

requirements for rain events. Since these smaller events are significantly more frequent but also less likely to produce discharges, we 

question the benefit of this increased compliance burden. We would like to see the threshold remain the same as the current permit. 

Given the remote project locations in Idaho, the requirement will significantly increase inspections on sites without a discharge. If the 

requirement remains, EPA needs to better define or clarify the concept of a "storm event" inspection in this permit. A storm event is 

defined in Appendix A as a precipitation event that results in a discharge. Part 5.1.2 states that you must conduct a site inspection within 

24 hours of the end of a storm event of 0.25 inches or greater. Does EPA want sites inspected after a 0.25 inch storm event, or after a 

discharge event, or both? Part 5.1.2 is ambiguous and requires simplification and clarification. 

Additionally, EPA needs to more clearly define what they define as "a storm event of 0.25 inches". Is it continuous rain until 0.25 inches 

or more has fallen to the ground? Is it scattered showers over a calendar day period that results in an accumulation up to 0.25 inches or 

more? Is it the total precipitation that falls from the minute the first drop of moisture hits the ground for the next 23 hours 59 minutes? Is 

it one storm system over a 3 day period that is predominantly light and scattered showers, but ultimately results in enough scattered 

showers on and off for 3 days that 0.25 inches of precipitation ultimately accumulates? What about precipitation that comes down as 

snow, or a rain/snow mix? In the rocky mountain west, in both spring and fall storms often start as rain but end as snow. How does a 

snow storm translate into a 0.25 inch storm event? Does EPA want operators to calculate the precipitation amount in a snow event based 

on the snow‟s moisture content? Considering the implications of a "storm event" on an operator, i.e. inspecting, sampling, reporting, 

etc., this needs to be extensively clarified and better defined in the final permit. When operators are subject to penalties for 

non-compliance, the ambiguous language is concerning. 
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These are all questions we currently receive from district staff and would be unable to answer based on the permit language provided. 

26. MULTIPLE DAY DISCHARGE. Part 5.1.2 states "if there is a discharge from your site on multiple days, you are required to 

conduct an inspection within 24 hours of the end of the storm." This issue is ambiguous and requires clarification in the final permit. In 

particular, it is critical this requirement is waived for stabilized projects. Ambiguities include the following: 

a) There is no definition for the end of the storm, making this difficult for compliance and enforcement. How does an inspector know 

when the storm event begins or ends, and/or when the discharge from the project begins or ends? 

b) Without daily inspection, how does an inspector know if the project had a multiple day storm event and therefore a multiple day 

discharge event? 

c) What if the storm event ends but a discharge from your project continues for more than 24 hours after it ends? 

d) How does this statement relate to the requirement to inspect within the 24 hours of the end of a storm event of 0.25 inches or greater, 

or within 24 hours of a discharge generated by snowmelt? 

e) In mountain areas projects have significant snow accumulation that takes weeks or months to melt off. The permit states that this 

requirement applies within 24 hours of the end of the storm, but does not mention snowmelt generating a multiple day discharge. 

Wouldn‟t it be just as likely, if not more likely, that a multiple day discharge would result from a snow melt event as a storm event? 

Response 

Refer to Response 5.1. 

Comment ID 0133-A2.001.033

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 5.1.2 

As discussed above, MDT does not believe the proposed inspection frequencies are practicable, especially in instances where active 

construction is complete. inspections within 24 hours of a discharge generated by snowmelt would be overly burdensome in Montana. 

Daily inspections would be required for months at a time in order to ensure compliance with this condition. The proposed inspection 

frequencies should be reduced. 

Response 

Refer to Response 5.1. 

Comment ID 0146-A1.001.007

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 5.1.2 

I recommend a revised inspection schedule of once per week for sites that do not drain to impaired waterways, and twice per week, for 
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sites that do drain to impaired waterways. We have the twice per week inspection schedule in Tennessee, and the second inspection 

provides a great deal of feedback to the owner/operator about what repairs have been done, and what are still required. 

We have a local municipal requirement to conduct inspections after 0.25" of rain. Our experience is that a quarter inch of rain has little or 

no impact on site conditions. This should revert to the 0.5" requirement if rain inspections are required. 

Response 

Refer to Response 5.1. 

Comment ID 0146-A1.001.010

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 5.1.2 

In my opinion, the most effective erosion control inspection program is to conduct weekly, scheduled preventative inspections of every 

site, with discharge quality observations of every outfall. Sites that drain to impaired waterways should be inspected twice per week, 

with 48 to 72 minimum hours between inspections. The inspector should be required to sign a certification on each report stating that the 

results of the inspection report is being submitted within 24 hours to a permittee with authority to direct operations including ordering 

repairs and making corrections, at the site. Repairs should be substantially complete before the next inspection. 

Response 

Refer to Response 5.1. 

5.1.3 REDUCTIONS IN INSPECTION FREQUENCY

Comment ID 0021-A1.001.013

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 5.1.3 

Additionally, the Reduction in Inspection Frequency for Arid and Semi‐Arid Areas states that inspections can occur once per months in 

these areas. This is not recommended. Reducing an inspection frequency to once per month due to the climate does not take into effect 

many other pollution sources that commonly occur on a construction (concrete washouts, POL's, etc.). A lot can happen in a month on a 

typically construction site and I as an inspector would never inspect one of my projects only once per month. 

Response 

Refer to Response 5.1. 

Comment ID 0025-A1.001.037

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 5.1.3 
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The agency applauds the reduced inspection frequency, with the exception of our two rainy months. Consider reducing inspections to 

one month and within 24 hours of a storm event 0.25 inches or greater. 

Comment ID 0037-A1.001.044

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 5.1.3 

If the construction site is located in a semi‐arid area, is the reduction in inspection frequency to once per month in reference to the 

requirement in Part 5.1.2. for conducting an inspection every 14 calendar days? Are inspections still required within 24 hours of the end 

of a storm event of 0.25 inches or greater for construction sites located in arid or semi‐arid areas? 

Response 

Refer to Response 5.1. 

Comment ID 0053-A2.001.033

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 5.1.3 

Clause 5.1.3.2 For arid and semi-arid areas. The Permit states: "You may reduce the frequency of inspections to once per month if your 

site is located in an arid area (i.e., areas with an average annual rainfall of less than 10 inches) or semi-arid area (i.e., areas with an 

average annual rainfall of 10 to 20 inches)." 

This clause allows a permittee to also reduced frequency of the inspection language established in Page 43; Part 4.2.2.3 Site Inspection 

Requirements? See comment number 26 above. 

Consider adding a clause clarifying conditions of each separate "Inspection" criteria in the Permit. 

Response 

Refer to Response 5.1. 

Comment ID 0061-A1.001.006

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 5.1.3 

We request that Draft Part 5.1.3.1 be clarified to read "You may reduce the frequency of inspections to once per month in areas of your 

site where you have initiated vegetative stabilization to meet the criteria in Part 2.2.2.1, once you have completed the initial seeding or 

planting, and provided protection with nonvegetative cover pursuant to 2.2.2.1.c.iii, or . . .." This change in language would make clear 

that it is the placement of stabilization measures in accordance with Part 2.2.2.1.c.iii -- and not the achievement of full 70% cover -- that 

is the triggering event for a reduction in inspection frequency. We believe that this change merely clarifies the Agency's original intent 

for Part 5.1.3.1. 
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Response 

Refer to Response 5.1. 

Comment ID 0071-A3.001.023

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 5.1.3 

•Part 5.1.3. Reductions in Inspection Frequency. In this Part it is unclear if the reduction in inspection frequency would still require post 

storm inspections. CDOT thinks they should still be required in arid/semi-arid areas, as storm events are typically more intense when 

they do occur. 

Response 

Refer to Response 5.1. 

Comment ID 0086-A1.001.013

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 5.1.3 

Section 5.1.3 .2, which allows for reduction in frequency of in spections in arid and semi-arid areas, appears to contradict the Section 

4.2.2.3 requirement ofdaily inspections ofBMPs. EPA should clarify this requirement 

Response 

Refer to Response 5.1. 

Comment ID 0090-A1.001.038

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 5.1.3 

AGA recommends that EPA add the following provision to allow "monthly inspections during the rainy season after construction is 

completed in arid areas with average annual precipitation of less than 10 inches". The average annual precipitation in many major 

metropolitan areas of Arizona, interior Southern California, Nevada and New Mexico is less than 5.0 inches. Most of this precipitation 

occurs within a 3-month rainy season. The average monthly precipitation during the other 9 months of the year typically is less than 0.5 

inches. This precipitation pattern does not support the need for inspections during the non-rainy season. 

Response 

Refer to Response 5.1. 

Comment ID 0090-A1.001.040

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 5.1.3 
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Monthly inspection of six years of projects would be a burdensome task during times when there is little or no potential for erosion. AGA 

urges EPA to consider a less burdensome standard for linear projects, given that event-based local permit inspections are already 

imposed. For example, Alabama already requires a monthly inspection, and for linear projects, an inspection commencing within 24 

hours after resuming construction and completed within 72 hours, after a .75 inch rainfall occurring in a 24 hours period. The state's 

higher precipitation threshold at .75 inches accounts for the fact that a .25 inch rainfall is a frequent occurrence in Alabama. By contrast, 

EPA's bright line trigger after a .25 inch event would present a substantially higher burden on some projects and not others. 

Response 

Refer to Response 5.1. 

Comment ID 0127-A2.001.011

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 5.1.3 

Section 5.1.3.2 

Proposed Language 

You may reduce the frequency of inspections to once per month if your site is located in an arid area (i.e., areas with an average annual 

rainfall of less than 10 inches) or semi‐arid area (i.e., areas with an average annual rainfall of 10 to 20 inches). 

Concern 

It is unclear when the frequency of inspections may be reduced to monthly in arid areas. What is the frequency of inspections for a 

project with a steep slope and discharging to an impaired water in an arid location? 

Suggested Correction 

Revise to clarify when inspection frequency is reduced for arid and semiarid areas. 

Response 

Refer to Response 5.1. 

Comment ID 0133-A2.001.034

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 5.1.3 

MDT believes an additional provision should be included to allow for a reduction in inspection frequency during winter months when 

the ground is frozen and a discharge is unlikely to occur. Consider using temperature thresholds for winter months. 

Response 

Refer to Response 5.1. 
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5.1.4 REQUIREMENTS FOR INSPECTIONS [REQUEST FOR COMMENT]

Comment ID 0015-A2.001.020

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 5.1.4 

Q21. Representative inspections - Agree, linear projects can generally keep the same inspection standards. 

Response 

Refer to Response 5.1. 

5.1.4.1 AREAS THAT NEED TO BE INSPECTED

Comment ID 0040-A1.001.023

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 5.1.4.1 

Areas that are cleared for overhead utility construction often do not meet the definition of land disturbance. Clearing a right-of-way 

easement for overhead utility construction involves cutting the trees and woody shrubs at their base, leaving and treating the stumps in 

place, and windrowing the material at the edge of the right-of-way easement or mulching the material. This type of clearing does not 

disturb the root zone of the right-of-way easement. This type of cleared area should be excluded from the inspected areas by refining the 

wording in Section 5.1.4.1.a. 

Response 

Refer to Response 5.1. 

Comment ID 0086-A1.001.024

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 5.1.4.1 

Areas that are cleared for overhead utility construction often do not meet the defi nition of land disturbance. Clearing a right-of-way 

easement for overhead utility construction involves cutting the trees and woody sh rubs at their base, leaving and treating the stumps in 

place, and windrowing the material at the edge of the right-of-way easement or mulching the material. This type of clearing does not 

disturb the root zone of the right-of-way easement. Tri-state believes that the proposed CGP should exempt these types of cleared areas 

from inspection by refining the language in Section 5.IA.I.a to state that all areas that have been cleared and grubbed, graded, or 

excavated need to be inspected. 

Response 
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Refer to Response 5.1. 

Comment ID 0088-A1.001.016

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 5.1.4.1 

Among the unrealistic requirements are: -- 

areas that are cleared for overhead utility construction often do not meet the definition of land disturbance. Clearing a right-of-way 

easement for overhead utility construction involves cutting the trees and woody shrubs at their base, leaving and treating the stumps in 

place, and windrowing the material at the edge of the right-of-way easement or mulching the material. This type of clearing does not 

disturb the root zone of the right-of-way easement 

Response 

Refer to Response 5.1. 

5.1.4.2 INSPECTION REQUIREMENTS WHEN NO DISCHARGE IS 

OCCURING

Comment ID 0025-A1.001.038

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 5.1.4.2 

" ... that is deposited in sufficient quantities ... " Please consider removing this phrase as the use of the word "sufficient" is quite 

subjective and will likely become a point of contention. 

Response 

Refer to Response 5.1. 

Comment ID 0038-A1.001.018

Author Name: Minervini W. 

Organization: 

Issue Category: 5.1.4.2 

The phrase "working as intended to remove pollutants prior to discharge" is too narrow. Change this phrase to "working as intended to 

minimize pollutant discharge," so that the phrase includes control measures, such as site stabilization and avoiding sensitive areas, that 

minimize pollutant discharge at least in part by minimizing pollutant exposure to stormwater rather than by "removing" pollutants. See 

the broad Appendix A definitions of "Stormwater Controls" and "Control Measure," which are not limited to methods that "remove" 

pollutants. 

Response 
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Refer to Response 5.1. 

Comment ID 0064-A1.001.038

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 5.1.4.2 

Section 5.1.4.2.d, page 46 - "Describe areas of visible erosion that have occurred in any portion of the site, at points of discharge, and on 

the banks of any waters of the U.S. flowing within your property boundaries or immediately adjacent to your property..." 

•This appears to be a subjective requirement. This will also be addressed in action items sections of the inspection report. Suggest 

removing as this would be addressed in following paragraph e requirements. 

Response 

Refer to Response 5.1. 

Comment ID 0093-A2.001.084

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 5.1.4.2 

According to the Draft, during site inspection, the site operator would be required at a minimum to "[c]heck for the presence of sediment 

that is deposited in sufficient quantities and in locations on the site ... if left there, would likely be discharged ... [and] ... initiate 

corrective action." AGC is concerned that the phrase "sufficient quantities" is too subjective and will lead to inconsistent enforcement 

determinations. 

Response 

Refer to Response 5.1. 

5.1.4.3 INSPECTION REQUIREMENTS DURING DISCHARGE 

CONDITIONS

Comment ID 0037-A1.001.046

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 5.1.4.3 

With respect to the requirement to inspect during discharge conditions (Part 5.1.4.3), it may be very challenging to observe and 

document the visual quality of the discharge at every discharge point depending on the length of the linear project, the number of 

discharge points, and the number of access points. This will be very challenging in the southwest during the monsoon season where 

thunderstorms can be high intensity but of short duration. It may be difficult to reach all the discharge points prior to the end of the 

discharge for some projects. EPA should consider a waiver for linear projects where it is infeasible or at least allow a single 

representative sample location for more than one discharge point similar to the turbidity sampling location requirement for linear 
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projects in Part 3.3.3.4. 

Response 

Refer to Response 5.1. 

Comment ID 0037-A1.001.047

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 5.1.4.3 

It is not clear in Part 5.1.4.3 if the discharge from each outfall must be observed and the visual quality documented. It is requested that 

EPA clarify if the discharge of each outfall must be observed or if representative outfall(s) can be observed. 

Response 

Refer to Response 5.1. 

Comment ID 0037-A1.001.048

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 5.1.4.3 

If an operator has to comply with the numeric turbidity limit, the operator may need more than one person to conduct the inspection 

required during discharging conditions, perform visual assessments of the quality of the discharges, and collect turbidity samples 

depending on the number of outfalls and the duration of the rain/runoff event. Did the EPA take into consideration the costs associated 

with the increase in inspection and sampling requirements from the 2008 CGP? 

Response 

Refer to Response 5.1. 

Comment ID 0064-A1.001.039

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 5.1.4.3 

Section 5.1.4.3.a-c, page 46 - Full "Inspection requirements during discharge conditions" section 

•Suggest combining this into Section 5.1.4.2 rather than having separate inspection requirements for discharging events. 

Response 

Refer to Response 5.1. 

Comment ID 0071-A3.001.011

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 
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Issue Category: 5.1.4.3 

•Part 5.1.4.3 Inspection Requirements during discharge conditions. CDOT agrees that all discharge points within disturbed areas should 

be inspected, provided the frequency of inspections is reduced for stabilized areas. 

Response 

Refer to Response 5.1. 

Comment ID 0130-A2.001.039

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 5.1.4.3 

Part 5.1.4.3 describes the inspectiolll requirements during a discharge event, and states that ~yo u are required, in addition to Part 5.1.4.1 

above to :". However, Part 5.1.4.1 describes areas that need to be inspected and has no content that links it to discharge conditions. This 

requires correction and clarification 

Response 

EPA clarifies that the reference should have referred to proposed Part 5.1.4.1. 

Comment ID 0146-A1.001.008

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 5.1.4.3 

I agree that identifying all points where there is a discharge (outfalls) should be required on the SWPPP and on the inspection report. 

However, there is no need to describe discharge quality if outfall sampling is required after every rain event. 

Response 

Refer to Response 5.1. 

Comment ID 0158-A1.001.019

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 5.1.4.3 

The CGP contains provisions for daily, weekly, and biweekly site inspection requirements. Section 4.2.2.3 and 5.1.3. There is language 

in the CGP that removes flexibility for linear projects to be inspected on representative sections rather than the entire project. Section 

5.1.4.3. If promulgated as written, the entire length of a linear project must be inspected. The 24-hour inspection requirement may not be 

feasible along a long linear project. Section 4.2.2.3.a. For example, for linear projects with 10 or more acres within an impaired 

watershed, it will take more than one day to complete a visual inspection of the area. Rather than the seven day and 24-hour triggering 

events, a better trigger might be precipitation events where the National Weather Service has a probability of precipitation of greater than 

50%. Also, we recommend keeping an allowance for spot checking representative locations within 24 hours of a storm event for all 

linear projects. 

Areas that are cleared for overhead utility construction often do not meet the definition of land disturbance. Clearing a right-of-way 
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easement for overhead utility construction involves cutting the trees and woody shrubs at their base, leaving and treating the stumps in 

place, and windrowing the material at the edge of the right-of-way easement or mulching the material. This type of clearing does not 

disturb the root zone of the right-of-way easement. This type of cleared area should be excluded from the inspected areas by refining the 

wording in Section 5.1.4.1.a to state that all areas that have been cleared and grubbed, graded, or excavated need to be inspected 

Response 

Refer to Response 5.1. 

5.1.4.3Q LINEAR INSPECTION REQUIREMENTS

Comment ID 0037-A1.001.045

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 5.1.4.3Q 

For linear projects located in arid or semi‐arid regions, stabilization may need to be postponed following the permanent cessation of 

construction activities until climactic conditions are favorable. Therefore, EPA's assumption that linear construction projects are 

completed in phases, and therefore regular inspections of the area of disturbance is both feasible and reasonable, is not appropriate for 

linear projects in the southwest that have limited access. However, the rationale supporting the allowance for representative inspections 

for linear projects by the 2008 CGP was faulty. Depending on the linear project and the change in topography along its length, the results 

of the inspection of controls along the linear project for 0.25 mile above and below each access point were not necessarily representative 

of the condition of controls at other locations. An operator should be aware of locations along their linear project which are or will be 

more susceptible to erosion and/or sedimentation issues. It would be more reasonable for EPA to require inspection of those locations 

that have or are likely to have erosion and/or sedimentation issues. 

Response 

Refer to Response 5.1. 

Comment ID 0040-A1.001.021

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 5.1.4.3Q 

The CGP contains provisions for daily, weekly, and biweekly site inspection requirements. Section 4.2.2.3 and 5.1.3. There is language 

in the CGP that removes flexibility for linear projects to be inspected on representative sections rather than the entire project. Section 

5.1.4.3. If promulgated as written, the entire length of a linear project must be inspected. 

Response 

Refer to Response 5.1. 

Comment ID 0061-A1.001.004

Author Name: Bond Grif 
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Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 5.1.4.3Q 

Draft Permit Part 5.1.4 specifies the areas generally required to be inspected on sites. Because there is no disturbance in advance of the 

location of the trenching operation in LCPs and because stormwater controls are not installed significantly ahead of that operation, we 

wish to confirm as correct our understanding that the Draft Permit would not require inspections of areas not yet affected by the 

trenching operation. 

We also wish to confirm as correct our understanding that areas to the rear of active trenching also need not be subjected to inspection 

provided that they have met the stabilization completion requirements of Draft Permit Part 2.2.1.2. We believe that this is appropriate 

because, as noted in the preamble to the ELG quoted above, accessing recently stabilized areas for the purpose either of monitoring or 

inspection will inevitably disrupt the very stabilization efforts that the ELG and the permit seek to foster. 

We ask that the Agency confirm, then, that inspections of LCPs are to be conducted only in the area where trenching activities are 

underway and in any area to the rear of that where the stabilization activities enumerated in Draft Permit Part 2.2.1.2 have not yet been 

completed. 

Response 

Refer to Response 5.1. 

Comment ID 0064-A1.001.040

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 5.1.4.3Q 

Section 5.1.4.3, page 47 - Full "Request for Comment" section 

•Adding language that inspections will be conducted on the entire site "where feasible" could help alleviate the sometimes challenging 

nature of inspecting the entire site of a long, linear construction project. 

Response 

Refer to Response 5.1. 

Comment ID 0071-A3.001.036

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 5.1.4.3Q 

•Part 5.1.4 Requirements for Inspections. CDOT disagrees with the change for linear projects because EPAs assumption that 

construction projects are phased is not entirely correct. Transportation projects are phased when practicable, but linear projects face 

several unique challenges that interfere with the ability to phase a project. These include complex traffic and safety issues, restrictive 

boundaries and ROW issues, geographical constraints, etc. 

Response 

Refer to Response 5.1. 
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Comment ID 0074-A2.001.024

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 5.1.4.3Q 

We agree that the same inspection requirements that apply to other types of construction projects should also apply to linear projects as 

well. 

Response 

Refer to Response 5.1. 

Comment ID 0080-A2.001.031

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 5.1.4.3Q 

Partner Response: The inspection frequency for linear transportation projects and all other construction projects requiring coverage on 

the CGP should occur at the same frequency. 

Response 

Refer to Response 5.1. 

Comment ID 0086-A1.001.022

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 5.1.4.3Q 

There is also language in the CGP that removes flexibili ty for inspecting linear projects at representative sections and requires in 

spection of the entire project. Section 5.104.3. Tri-State believes that it is inappropriate for the entire length of a linear project to be 

regularly inspected. The 24-hour inspection requirement may not be feasible along a long linear project. Section 4.2.2.3 .a. 

Response 

Refer to Response 5.1. 

Comment ID 0087-A1.001.049

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 5.1.4.3Q 

Section 5.1.4 (inspections) – Requiring inspection of every discharge point for large linear projects is infeasible and may be further 

limited by access issues within a given corridor. While it is true that trenched utility construction is often phased in such a way that the 

disturbed portion of the site is a contiguous piece, this is not the case for overhead utility construction. In overhead construction, work is 

phased so that all the tree cutting is done first, borings for footings are completed second, footings are put in, poles are put in, and lines 

are pulled through the length of the right of way. Easement negotiations also affect when and how access to the properties occur. This 
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means that overhead utility construction necessarily has small discreet disturbance areas separated by long undisturbed areas strung out 

over the length of the project (30 to 100 miles are typical lengths). It could take days to complete an inspection of all disturbed areas 

along the length of the project. While it may be possible (though not practical) to complete an inspection at 14 day intervals, it is 

unreasonable to think that an inspection of all disturbed areas could take place within 24 hours of a rain or snowmelt event. For these 

reasons, we recommend keeping an allowance for spot checking representative areas within 24 hours of a storm event for linear projects.

Response 

Refer to Response 5.1. 

Comment ID 0087-A1.001.050

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 5.1.4.3Q 

Section 6.3.2 (deadlines for corrective action) – Some corrective actions will take longer to implement (e.g., design, purchase, install) 

than the prescriptive deadlines assigned by EPA. UWAG urges EPA to allow relief from these deadlines where necessary to properly 

implement the corrective actions. Otherwise, the burden of the deadlines may inspire “band aid” fixes as opposed to more holistic ones.

Response 

Refer to Response 6. 

Comment ID 0088-A1.001.015

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 5.1.4.3Q 

Among the unrealistic requirements are: 

-- if promulgated as written, the entire length of a linear (line) project must be inspected. The 24- hour inspection requirement would not 

be feasible along a long linear project. For example, for a line project with 10 or more acres within an impaired watershed, it would take 

more than one day to complete a visual inspection 

Response 

Refer to Response 5.1. 

Comment ID 0093-A2.001.083

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 5.1.4.3Q 

In past versions of the CGP, representative inspections were allowed for linear construction projects at or near access points where a 

roadway, undisturbed right-of-way, or other similar feature intersected the construction site. See Part 4.G of the 2008 CGP. After 

revisiting this requirement, EPA is of the opinion that site inspections at linear sites should be performed at the same frequency and 

should include the same requirements as any other construction site. 
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AGC recommends that EPA continue to allow representative inspections for linear projects. EPA is incorrect in its assumption that linear 

project phasing reduces the amount of disturbed area. Clearing and grubbing of corridors is typically conducted in a manner to minimize 

the number of mobilizations of a clearing contractor. Most commonly, clearing is conducted for the entire project corridor with one 

mobilization with mass grading to balance cut and fill project-wide shortly thereafter. Phasing typically occurs later in the project in the 

areas of constructing drainage, structures, etc. While it is true, large linear projects are segmented and managed as blocks of work during 

construction; it is most common for work within segments to be performed concurrently. Representative inspection/sampling is justified 

for linear projects due to the length of these projects and the higher number of discharge points along their alignment. 

Response 

Refer to Response 5.1. 

Comment ID 0100-A2.001.015

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 5.1.4.3Q 

Section 5.1.4.3 describes USEPA's understanding that most linear construction projects are completed in phases and therefore regular 

inspections of the area of the disturbance is both feasible and reasonable. It should be made clear that many linear construction projects 

are NOT completed in phases. 

Response 

Refer to Response 5.1. 

Comment ID 0115-A2.001.025

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 5.1.4.3Q 

Response to Request for Comment: With respect to EPA's Request for Comment relative to representative inspections for linear 

construction projects, we have the following response: National Grid agrees that inspections should be conducted along active or 

disturbed portions of the ROW, not only at representative areas easily accessible from intersecting roads. At present National Grid 

mandates that compliance inspections be conducted for all active and unstable portions of their projects. 

Response 

Refer to Response 5.1. 

Comment ID 0133-A2.001.035

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 5.1.4.3Q 

MDT believes representative inspections should be allowedfor linear transportation projects, which can involve storms that only affect a 

portion of the site. Requiring inspections of the entire site is not always feasible or reasonable. 

Response 
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Refer to Response 5.1. 

Comment ID 0145-A2.001.022

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: 5.1.4.3Q 

We support ending representative inspections. The variability of soils, their distribution, topographical differences, differences in 

construction/development activities at specific locations, and differences in choice and maintenance of stormwater control efforts are 

probably too large to appropriately assume representative monitoring will provide a reasonable estimate of the impacts of stormwater 

discharges. Moreover, in our state, the regular lack of successful stormwater controls on most linear projects suggests that representative 

monitoring should not be continued. 

Project phasing is very important in managing stormwater runoff. With increased adoption of project phasing, representative monitoring 

and inspections may become less important in facilitating linear projects. 

Response 

Refer to Response 5.1. 

Comment ID 0153-A1.001.035

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 5.1.4.3Q 

1. Recommend that linear jobs being inspected once every 7 calendar days and not require a rainfall event or flow requirement. 

2. Recommend inspections once every 7 calendar days and remove the rainfall requirement or the flow requirement. This way you can 

ensure that the site is being inspected every 7 days, no matter what and it allows the inspector to set a schedule to perform consistent 

inspections. 

Response 

Refer to Response 5.1. 

5.1.5 RECORDKEEPING REQUIREMENTS

Comment ID 0091-A2.001.027

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 5.1.5 

27. Part 5.1.5.1: Many contractors prefer to maintain records electronically on a central off-site network. There may be periods when the 

records may not be immediately available due to various connectivity issues. Is this storage method acceptable or is onsite storage of the 

records required. Recommend that records over 6 months old could be stored electronically off-site if the records could be accessed 
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within 24 hours of an EPA request. 

Response 

Refer to Response 5.1. 

5.2 INSPECTION REQUIREMENTS FOR SITES DISCHARGING TO 

IMPAIRED WATERS

Comment ID 0061-A1.001.005

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 5.2 

We believe that there should not be an increase in inspection frequency from once every 14 days to once every 7 days where an LCP 

discharges to impaired waters. Draft Permit at Parts 5.2 and 4.2.2.3. As described above, discharges from LCPs serve extremely small 

"basins" and thus are unlikely to be the source of significant sediment or other pollutant loadings to individual streams, when compared 

with discharge points from traditional construction projects. Moreover, the Agency has already recognized that the act of inspecting 

linear project would disturb the area and add to sediment transport to sensitive streams. [FN 8] Therefore, more frequent inspection in 

sensitive basins would be especially counter-productive in the context of LCPs. Added to this is the fact that the ongoing uncertainty 

about what constitutes a jurisdictional water under the Clean Water Act multiplies the complexity and potential liability associated with 

cataloguing the first point of contact with waters of the United States at dozens of stream crossings [FN 9] and the confusion that will be 

engendered by toggling between 14-day and 7-day inspection frequencies as the project moves from stream to stream. All of these 

factors militate in favor of a uniform 14-day inspection frequency for LCP. 

[FN 8] See 74 Fed. Reg. at 63049, col. 1 and 2. 

[FN 9] This risk could be alleviated by a definitive declaration in the permit that stream characterization using the tools provided by EPA 

under this permit is dispositive of stream's jurisdictional status. We suspect, however, that the Agency would rightfully not be 

comfortable making such categorical statements about what are and what are not jurisdictional waters in the context of a general permit.

Response 

Refer to Response 5.1. 

Comment ID 0153-A1.001.036

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 5.2 

Remove Section, all inspection requirements should be the same. 

Response 

Refer to Response 5.1. 
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5.3 INSPECTIONS BY EPA OR APPLICABLE LOCAL GOVERNMENT 

AUTHORITY

Comment ID 0053-A2.001.034

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 5.3 

Clause 5.3.1. of the Permit states: "You must allow an authorized representative of the EPA, or other federal, state, or local agency, to 

enter onto your premises, at reasonable times, where a regulated construction activity is being conducted (or has been temporarily 

ceased), or where records are kept under the conditions of this permit; ... " 

This effectively grants permission to any number of persons/entities to enter where records are kept. Should records be kept at a 

private/public office, record review may not be welcomed and/or legally granted. 

What constitutes a representative of a "local agency"? Does identification need to be provided? 

Is any coordination by a "representative" required to review private records? 

This sentence can be read as the EPA representative will be authorized, but other federal, state, or local agency representatives do not 

have to be authorized. Consider changing the titles to "with stormwater management responsibilities in the jurisdiction of your project". 

The EPA can grant this authority to representatives of EPA as they are the agency responsible for the Permit and the grantor of permit 

coverage. A blanket granting of this authority to other unnamed members of any other agency may not be within the power of EPA. 

Response 

Refer to Response 5.1. 

Comment ID 0115-A2.001.026

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 5.3 

5.1.5 Recordkeeping Requirements. National Grid is in support of the use of a downloadable file. 

Response 

Refer to Response 5.1. 

Comment ID 0115-A2.001.027

Author Name: Smith Timothy 

Organization: National Grid 
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Issue Category: 5.3 

National Grid has no comment on any of the language included in this part, however, there must be an understanding that an inspector 

must contact the appropriate person named in the NOI and must have appropriate safety training and PPE for access on utility line ROWs

Response 

Refer to Response 5.1. 

Comment ID 0130-A2.001.027

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 5.3 

27. EPA INSPECTIONS AND ACCESS. Parts 5.3.1-5.3.4 all use the phrase "at reasonable times". We recommend the ambiguous 

language be revised to conform to other related language used in the permit such as "during normal business hours", "during projects 

normal working hours" or "during the hours of operation specified in your SWPPP". 

Response 

Refer to Response 5.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 6, 6.1, 6.2, 6.2.1, 6.2.2, 6.3, 6.3.1, 6.3.1Q, 6.3.2, 6.3.2Q, 6.4, 6.5, 

6.6, 6.6Q

 
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6 CORRECTIVE ACTIONS

Comment ID 0068-A1.001.031

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6 

Proposed CGP Part 6 would establish new and unnecessary implementation, recordkeeping, and reporting requirements. However, the 

2008 CGP already addresses the conditions described in Proposed CGP Part 6 within the more appropriate parts dedicated to the issue at 

hand. In other words, the 2008 CGP includes corrective action requirements within the sections on responding to spills, performing 

maintenance, and other similar activities. The corrective action portion of the Proposed CGP creates unnecessary additional regulatory 

burdens on permittees to describe and report certain conditions as triggering corrective actions, when the response to such conditions is 

prescribed and addressed already in other parts of the permit. 

Response 

Refer to Response 6.2. 

Comment ID 0086-A1.001.003

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 6 

In 2000, the Utility Water Act Group (UWAG) appealed provisions in EPA's MSGP that subjected permittees to the threat of permit 

revocation and enforcement action (without any opportunity for cure) based on a determination that the permittee was causing or 

contributing to an excursion of a water quality standard, even i(the permittee was in compliance with the permit terms and conditions. 

This appeal was resolved th rough a March 2005 Settlement Agreement between the Federal Water Quality Coalition, UWAG, and EPA. 

The settlement agreement was largely implemented by EPA in the 2008 MSGP which limits the risk of lost permit coverage and 

enforcement, and provides permittees with a step-wise and iterative approach to revising/enhanci ng their Best Management Practices 

(BMPs) to meet water quality expectations. 

The new draft CGP resurrects the issues that were resolved by the 2008 MSGP, violating the spirit of the settlement agreement. Section 

6.2.2.3 of the CGP requires a permittee to undertake corrective actions upon discovery that the "storm water controls you have installed 

and are maintaining are not effective enough for the discharge to meet applicable water quality standards .... " Section 6.5, then follows 

that "[fthe condition identified in this Part constitutes a permit violation (e.g., a[nJ ... exceedance of an applicable water quality 

standard), correcting it does not remove the original violation" (emphasis added). These proposed CGP provisions create an immediate 

enforcement situation for permittees when water quality standards are exceeded, even if the permittee is in compliance with the CGP. 

EPA should follow the process established in the 2008 MSGP that was agreed to in the 2005 settlement agreement for implementing 

water quality stand ards to avoid recreating issues that were previously resolved. 
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Response 

Refer to Response 6.3. 

Comment ID 0088-A1.001.003

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: 6 

With respect to water quality standards (WQS) issues, the current language with respect to an excursion of a WQS is poorly written and 

may result in an enforcement action even if corrected. If a condition is identified that is considered to constitute a permit violation (an 

exceedance of an applicable WQS), correcting it may not remove the original violation. These proposed CGP provisions (as currently 

written) would expose the permittee to immediate enforcement for excursions of WQS, without opportunity for cure, even if they are 

otherwise compliant with the CGP. 

Response 

Refer to Response 6.3. 

Comment ID 0109-A2.001.010

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: 6 

The Permit must be enforced in order to be effective. We support the inclusion of bright-line requirements describing what site operators 

must do, as well as inspections, monitoring and verification by site operators to ensure they carry out their stormwater plans, and that the 

plans work. 

Response 

Refer to Response 6.1. See also section X of the 2012 CGP Fact Sheet for a discussion on permit requirements related to corrective 

actions. 

Comment ID 0130-A2.001.028

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 6 

28. CORRECTIVE ACTION RECORDS. In general, this part was ambiguous, conflicting, redundant and confusing. It will be difficult 

to comply with or enforce. ITD believes Part 6.4 is redundant of Part 6.3.1 and 6.3.2 and should be deleted to prevent confusion. Per Part 

6.3.1 and 6.3.2, when Condition A or B require that the correction or modification to a control is required, you have 7 days to complete 

the required correction. If the correction requires modification of the SWPPP, you are required to modify or update your SWPPP within 
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7 days of completing the action. Inspection reports and the SWPPP provide adequate record of the corrective action. Further record is 

unnecessary. 

Response 

Refer to Response 6.1, Response 6.2, and Response 6.10. 

6.1 CORRECTIVE ACTION DEFINED

Comment ID 0015-A2.001.039

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 6.1 

6.1. Cleanup of materials should not only occur onsite, but also off site if the materials were discharged from a permitted site. Add 

language to the second bullet. 

Response 

Refer to Response 6.4. 

Comment ID 0068-A1.001.032

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.1 

The proposed definition of "corrective actions" in Part 6.1 should be deleted for several reasons. First, the proposed definition does not 

match the site conditions delineated in Part 6.2 as triggering corrective action and, therefore,it creates confusion regarding what the 

language in Part 6.1 actually means in the context of the Proposed CGP, including in the context of the applicable deadlines and 

recordkeeping requirements in proposed Parts 6.3 and 6.4. Second, any actions take to repair, modify, or replace any stormwater control 

at a construction site should not be characterized as "corrective actions" but should be recognized as ongoing maintenance that is 

inherent in developing and implementing stormwater controls required at a construction site. Finally, the clean up of spills, releases, or 

other deposits found on the site may not have any real relation to potential stormwater discharges depending on the location of the spill, 

release or other deposit at the site. Some portions of construction sites are found in areas that simply have no potential to discharge to 

U.S. waters. 

Response 

Refer to Response 6.1. 
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6.2 SITE CONDITIONS REQUIRING CORRECTIVE ACTION

Comment ID 0037-A1.001.049

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 6.2 

The difference between Condition A and the third triggering condition for Condition B, i.e., Part 6.2.2.3. is not clear as described in the 

Fact Sheet. Some of the specific conditions listed for Condition A are very similar to what are listed as easily fixed problems for 

Condition B ("accumulated sediment on roads not swept up, perimeter controls knocked down, piles of graded or discarded soil left 

unstabilized or uncontained") in Part 6.3.2 Deadline for Correcting Condition. For example, what is the difference between the specific 

condition of sediment or other pollutants that have been tracked out onto roadways or parking lots(see Part 6.2.1.4) which is listed under 

Condition A and the easily fixed problem of accumulated sediment on roads not swept up listed as a Condition B (see Part 6.3.2.2)? Or, 

what is the difference between the specific condition regarding a stormwater control that has not been maintained in effective operating 

condition listed under Condition A (see Part 6.2.1.3) and the easily fixed problem of perimeter controls knocked down listed under 

Condition B (see Part 6.3.2.2)? Since the operator is required to specify in the Corrective Action Record what condition, A or B, was 

triggered, it would be helpful if EPA provided additional clarification as to how to differentiate between the two conditions. 

Response 

Refer to Response 6.1, Response 6.7, and Response 6.10. 

6.2.1 CONDITION A

Comment ID 0068-A1.001.033

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.1 

EPA should limit the requirement to conduct corrective action to instances in which "unauthorized discharge" to U.S. waters has 

occurred and such event can reasonably be expected to impact water quality. For the reasons discussed below, all of the proposed 

conditions identified in Part 6.2.1 as triggering corrective action should be removed from Part 6. 

Response 

Refer to Response 6.1. 

Comment ID 0068-A1.001.034
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Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.1 

The corrective action approach in Part 6 appears to have been copied from EPA's 2008 MSGP. Facilities implementing EPA's 2008 

MSGP have noted that it is often unclear what specific condition actually triggers corrective action requirements under the 2008 MSGP 

and this has created substantial confusion. For instance, Part 3.1 of the 2008 MSGP (similar to Part 6.2.1.3 of the Proposed CGP), which 

requires a permittee to conduct corrective action in the event that control measures are found to not be properly operated and/or 

maintained, has been entirely unworkable. Precisely when such a requirement would be "triggered" is unclear and virtually impossible to 

implement. For instance, if one control measure is determined during a routine inspection to need maintenance (yet still be working in a 

diminished, but perhaps still fully protective manner), would such a finding trigger corrective action (including all the associated 

reporting obligations) or would the permittee simply need to perform the necessary maintenance? EPA must more clearly distinguish the 

difference between routine maintenance and a more significant diminishing of a control measure - only the latter should trigger 

corrective action. 

Response 

Refer to Response 6.1. 

Comment ID 0068-A1.001.035

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.1 

Proposed Parts 6.2.1.2 and 6.2.1.3 state that if a stormwater control is malfunctioning orrequires maintenance or repair, such a condition 

would trigger corrective action. However, Part 2.1.3.3(a) already provides that the permittee must ensure that all stormwater controls 

remain in effective operating condition. Consequently, these parts are redundant of existing requirements to maintain stormwater 

controls and should be removed. Otherwise, the permit creates redundant and burdensome requirements, including increased reporting, 

recordkeeping, and other burdens, exposing permittees to unnecessary liabilities. 

Response 

Refer to Response 6.1 and Response 6.2. 

Comment ID 0068-A1.001.036

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.1 

Proposed Part 6.2.1.4 would trigger corrective action for certain "track-out" conditions or sediment accumulations. Such conditions are 

already addressed in great detail in Proposed Part 2 of the permit. 
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Response 

Refer to Response 6.1. 

Comment ID 0068-A1.001.037

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.1 

Proposed Part 6.2.1.5 would trigger corrective action if stormwater discharges appear excessively muddy or cloudy. It is unclear how 

this subjective standard can be used to trigger corrective action. In addition, the appearance of a stormwater discharge varies according 

to soil types and, even what appears to be cloudy stormwater may not have any negative impact on receiving streams that are more 

muddy or cloudy. 

Response 

Refer to Response 6.5. 

Comment ID 0082-A2.001.002

Author Name: Wray Susan 

Organization: HaloSource, Inc. 

Issue Category: 6.2.1 

DELETE: IIlf you are using a treatment chemical that contains chitosan, residual testing detects chitosan in your discharge; or" 

AND REPLACE WITH: 116.2.1.6 If you are using a chemical treatment that acts as a flocculant, residual testing for the presence of that 

flocculant at level lOx below the NOEC for that flocculant, or" 

Response 

Refer to Response 6.9 on chitosan. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on the permit requirements 

related to the use of treatment chemicals. 

Comment ID 0131-A1.001.007

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 6.2.1 

Additionally, LBA suggests that the inclusion of track out as a permit violation should be removed from part 6.5 of the Proposed CGP. 

Currently part 6.5 includes "evidence of tracked out sediment" as an example of a permit violation. As stated above, LBA does not agree 

that evidence of track out should be a permit violation as long as it is minimized in accordance with the requirements in the Proposed 

CGP. The following parts of the Proposed CGP already include adequate measures for managing sediment track out from a construction 

site: 
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1. Part 2.1.3.7 (a) as amended above already requires that sediment from construction entrances/exits be minimized. 

2. Part 2.1.3.4 of the Proposed CGP titled "Good housekeeping requirements," includes a requirement to sweep shovel or vacuum track 

out by the end of the same work day it is discovered and includes several other methods to remove and dispose of deposited sediment in 

the event it is tracked out. 

3. Part 8.2.11.2 requires the SWPPP to include procedures for the clean up of sediment including sweeping or removal of sediment 

tracked or deposited onto streets and other paved surfaces. 

Response 

Refer to Response 6.1. See Part 2.1.2.3 for the permit requirements on minimizing sediment track-out and section VII.1.2 of the 2012 

CGP Fact Sheet for a discussion on the purpose of the requirements. 

6.2.2 CONDITION B

Comment ID 0066-A1.001.039

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 6.2.2 

Discussion: The documentation and staff work load required to complete the corrective active actions and measures in some cases will 

require more time to complete than the actual corrective action. Also, excessive documentation requirements introduce the opportunity 

for accidental errors that have no bearing on the quality of storm water discharges. 

Suggestion: Streamline the documentation requirements for taking corrective actions. 

Response 

Refer to Response 6.12. 

Comment ID 0068-A1.001.038

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.2 

Part 6.2.2.1 of the Proposed CGP would trigger corrective action if one of the prohibited discharges in Part 2.3.1 is occurring. However, 

as noted above in the comments on Part 2.3, the list of prohibited discharges is not consistent with the C&D ELG proposal and should be 

further limited by removing any reference to the overly broad limitation in Part 2.3.1.6. 
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Response 

See section VII.3.1 in the 2012 CGP Fact Sheet for a discussion on the prohibited discharges provisions of the permit. 

Comment ID 0068-A1.001.039

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.2.2 

Proposed Part 6.2.2.2 would require corrective action if the numeric turbidity limit in Part 3.2 has been exceeded. Again, this 

requirement should be removed because there is no "final" C&D ELG and the Proposed CGP should not attempt to create requirements 

based on a requirement that has not even been proposed and publicly vetted. 

Response 

Refer to Response 6.6. 

Comment ID 0076-A1.001.024

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: 6.2.2 

Exceedance of Numeric Limit Target believes that corrective actions of numeric limit exceedances should not be referenced in 6.2.2. but 

detailed in 3.3.8. It is difficult and burdensome for Permittees to jump from section to section of the permit. 

Target also requests that language of immediate, 24 hour and 7 day response to corrective actions be removed. If sampling of snowmelt 

it may not be feasible to make structural changes until soil becomes unfrozen. If storm events cause unsafe site conditions which would 

prohibit entry into area, corrective actions would not be feasible in the timeframes detailed. 

Target believes a better approach would be to incorporate language which claims that responding to corrective actions as soon as site 

conditions allow would be more appropriate. Additionally, that if major structural changes are required, that time be allotted but a clear 

schedule of these activities be detailed in site SWPPP. 

Response 

Refer to Response 6.6 for the comment on numeric limits, Response 6.8 on residual testing, and Response 6.10 on deadlines for 

completing corrective action. 

6.3 REQUIRED CORRECTIVE ACTIONS AND APPLICABLE DEADLINES
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Comment ID 0021-A1.001.005

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 6.3 

5. What your objective definition of "easy fix" as stated in the Corrective Action requirements? 

Response 

Refer to Response 6.7. 

Comment ID 0040-A1.001.019

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 6.3 

Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines from compliance. See Section 

6.3. For example, corrective actions in the summer in an arid environment could take longer than during the winter. 

Response 

Refer to Response 6.10. 

Comment ID 0086-A1.001.019

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: 6.3 

Corrective action requirements in the proposed COP should recognize seasonal variations in the deadlines for compliance. See Section 

6.3. For example, corrective actions in the summer in an arid environment could take longer than during the winter. EPA should provide 

alternatives for compliance deadlines in the proposed COP for seasonal variations. 

Response 

Refer to Response 6.10. 

Comment ID 0087-A1.001.032

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 
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Issue Category: 6.3 

Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines for compliance. See Section 

6.3. For example, corrective actions in the summer in an arid environment could take longer than in the winter. Additionally, Section 

6.3.2.1 requires the discharger to "Make every effort to minimize the prohibited discharge" (emphasis added) which sets an impossible 

standard. This requirement should be revised to "...every feasible effort...". In addition, as discussed further below, 7 days to complete 

a new stormwater control system is simply unrealistic. 

Response 

Refer to Response 6.10. See section VII.3.1 of the 2012 CGP Fact Sheet for a discussion on the permit requirements related to prohibited 

discharges. EPA notes that the permit does not include the phrase "make every effort." 

Comment ID 0130-A2.001.029

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 6.3 

This section does not make allowances for completing the correction after 7 days. Exceptions should be allowed for adverse conditions 

(saturated soils, inclement weather, etc) when correcting the deficiencies is infeasible and will create more damage to the project or harm 

to the environment. 

Response 

Refer to Response 6.10. 

Comment ID 0158-A1.001.017

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: 6.3 

Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines for compliance. See Section 

6.3. For example, corrective actions in the summer in an arid environment could take longer than during the winter 

Response 

Refer to Response 6.10. 

6.3.1 DEADLINES FOR CORRECTING CONDITION A [REQUEST FOR 

COMMENT]
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Comment ID 0015-A2.001.021

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 6.3.1 

Q22. Chitosan residual. We have no proposal for a residual monitoring trigger. 

Response 

Refer to Response 6.8 on residual testing and Response 6,9 and chitosan. 

Comment ID 0025-A1.001.039

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 6.3.1 

Depending on the size of the stormwater control and/or its availability on-site, it may not be feasible to complete the work in a single, full 

workday. 

Response 

Refer to Response 6.10. 

Comment ID 0053-A2.001.035

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 6.3.1 

Clause 6.3.1.1. of the Permit states: "If condition A occurs at your site, you must: Initiate work to fix the problem immediately after 

discovering the problem, and complete such work by the close of the next full work day, if the problem can be easily fixed through a 

quick repair or the performance of regular maintenance of the stormwater control or pollution prevention measure;" 

Consider removing the word "full" from the sentence. A permittee may not have a "full" work day for 6 months. 

Response 

The 2012 CGP reflects the suggested change. 

Comment ID 0064-A1.001.041

Author Name: Dees Richard 
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Organization: City of Meridian 

Issue Category: 6.3.1 

Section 6.3.1.1, page 49 - "Initiate work to fix the problem immediately after discovering the problem, and complete such work by the 

close of the next full work day, if the problem can be easily fixed through a quick repair or the performance of regular maintenance of the 

storm water control or pollution prevention measure..." 

•Suggest deleting this requirement as it begins to impede on Contractor's "ways and means" of work. If problem can be "easily fixed," 

then issue is likely not significant and can wait to be completed at the Contractor's convenience during the following week. Also, "easily 

fixed" is a subjective statement and does not provide clear enough guidance on a potentially burdensome requirement. 

Response 

Refer to Response 6.7. See also Response 6.10. 

Comment ID 0072-A2.001.020

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 6.3.1 

It is MoDOT's opinion that an allowance for the 7Mday corrective action deadline should be granted if inclement weather should occur 

either before or during the 7Mday window, which would preclude the contractor from completing the work. The contractor would then 

have to assure the corrective action is initiated once the weather clears and the site dries sufficiently. The reason for this allowance is 

because of the potential to create more erosive conditions from rutting or other equipment damage if the corrective actions were carried 

out during wet site conditions. 

Response 

Refer to Response 6.10. 

Comment ID 0093-A2.001.085

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 6.3.1 

This part of the Draft states that if your stormwater controls are not designed, installed, and/or maintained as required by the permit, you 

must "[i]nitiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full 

work day," if "repair" or "regular maintenance of the stormwater control or pollution prevention measure" would fix the problem. AGC 

maintains that it often would not be feasible to complete the work in a single, full work day. Relevant factors include the size of the 

stormwater control and its accessibility on the jobsite. 

Response 
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Refer to Response 6.1 and Response 6.10. 

Comment ID 0127-A2.001.012

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 6.3.1 

Section 6.3.1.1 

Proposed Language 

Initiate work to fix the problem immediately after discovering the problem, and complete such work by the close of the next full work 

day, if the problem can be easily fixed through a quick repair or the performance of regular maintenance of the stormwater control or 

pollution prevention measure; 

Concern 

Compliance will be difficult to achieve if the proper equipment or staff are unavailable to complete the work by the close of the next full 

work day, regardless if it is a quick repair. 

Suggested Correction 

Revise to initiate work to fix the problem immediately after discovering the problem, and complete the work as soon as feasible and 

before the next storm event. 

Response 

Refer to Response 6.10. 

Comment ID 0146-A1.001.009

Author Name: Matthews Jean 

Organization: Water Quality & Erosion Control of Tennessee 

Issue Category: 6.3.1 

These requirements fail to take into account the variation in circumstances, and the availability of personnel, equipment, and materials 

during construction. When weather is consistently wet, an immediate repair can do more harm than good. Please see my comments 

below. 

Response 

Refer to Response 6.10. 
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6.3.1Q IMMEDIATE NOTIFICATION FOR EXTREMELY HIGH 

TURBIDITY LEVELS

Comment ID 0007-A1.001.007

Author Name: Morris Stacey 

Organization: ETI Corporation 

Issue Category: 6.3.1Q 

Comment: Allowing toxic chemicals to be used on a construction site near sensitive waters will be a mistake. Better uncontaminated 

sediment than toxic chemicals. This type of requirement can work well in a setting such as a water treatment plant where trained and 

experienced personnel are performing the activities and monitoring. It will not work well on a typical construction site. 

Response 

Refer to Response 6.6 on numeric turbidity limits and Response 6.9 on the use of chitosan. 

Comment ID 0065-A1.001.027

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 6.3.1Q 

EPA included a placeholder in Section 6.3.1.3 proposing that notice be given to EPA within 24 hours if chitosan is detected in a 

discharge and requiring testing until the discharge ends. EPA requested comment on whether there is a level of chitosan residual below 

which the proposed corrective action would not be necessary. The table for maximum allowable chitosan levels has not yet been 

established. When establishing this level below which correction action would not be required, EPA should carefully consider that 

chitosan is a good tool for filtering sediment and is ecologically friendly. According to the International Erosion Control Association, 

one case study carried out by Natural Site Solutions, LLC., in Redmond, Washington, monitored the performance of one 500 gpm CESF 

system operating between March 2003 and March 2004 on an 80-acre mixed residential construction project located in Redmond, 

Washington, called Lakeside Estates. A total of 17,300,000 gallons of turbid stormwater was treated. 

Over the monitoring period the treatment system reduced turbidity, on average, by 98.4 percent with a standard deviation of 1.29 percent 

and a coefficient of variation of 0.013. The average starting turbidity was 248 NTU with a high of 917 NTU and a low of 42.3 NTU. The 

average effluent turbidity was 2.98 NTU with a high of 5.18 NTU and a low of 0.58 NTU (standard deviation of 1.04 NTU and 

coefficient of variation of 0.348). All of the 1050 effluent samples tested met the state discharge standard of #10 NTU and all 

whole-effluent aquatic toxicity tests (rainbow trout and Daphnia magna) passed, demonstrating that the treated effluent was non-toxic 

and safe to discharge. 

Response 
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Refer to Response 6.9. 

Comment ID 0070-A1.001.011

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 6.3.1Q 

i. Residual Chitosan Testing - Alcoa is concerned with the frequency of testing required should residual chitosan be detected. Is it 

feasible to obtain accurate analytical results in the proposed timeframes? Is there an accurate test method or procedure for the field 

testing of chitosan currently available? 

Response 

Refer to Response 6.9. 

Comment ID 0072-A2.001.021

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: 6.3.1Q 

Also under this Part, it is MoDOT's opinion that if a universal numeric turbidity limit is set, regard less of region or soil type, there may 

be many instances when the use of polymers or flocculants would be necessary to achieve that limit. MoDOT believes that if residual 

testing is required, and if a positive test for residuum is rendered, it is not necessary to contact the EPA (or state regulatory authority) to 

report this positive test. As previously mentioned in Comment 7, these water clarifying agents can be costly, and ifit is discovered that 

dosage is too high, then any permittees would take it upon themselves to cut back the dosage and balance the system in order to save 

product and ultimately save on project cost. Also, a positive residual test does not implicate that toxic or harmful residual levels have 

been measured since most residual test kits can detect these flocculants at very low levels. 

Response 

Refer to Response 6.6 and Response 6.8. 

Comment ID 0074-A2.001.025

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 6.3.1Q 

The DEQ believes a corrective action would be necessary regardless of the condition of Chitosan residual level. 

Response 

Refer to Response 6.9. 
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Comment ID 0080-A2.001.034

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 6.3.1Q 

Partner Response: Many states and territories throughout the United States do not allow the addition of chemicals or bio-polymers to 

water quality ponds or detention ponds for the purposes of treating stormwater runoff. It is unclear as to whether the State of New 

Mexico will prohibit the use of chitosan for this purpose. The Partners question the appropriateness of including this prescriptive 

language in the proposed CGP. 

Response 

Refer to Response 6.6. 

Comment ID 0082-A2.001.001

Author Name: Wray Susan 

Organization: HaloSource, Inc. 

Issue Category: 6.3.1Q 

EPA in its draft construction general permit (I/CGPII) specifically calls out for extra caution in using chitosan without addressing other 

real concerns. On page 22890 ofthe April 29, 2011 Federal Register notice, EPA states: 

"22. Residual chitosan testing - Request for comment on whether there is a level of chitosan residual below which corrective action 

would not be necessary. Part 6.3.1.3." 

As our comments below demonstrate, this extra caution with chitosan only is unwarranted and misses the mark in protecting the 

environment from stormwater discharges from construction activities. Residual testing of chemicals should be required equally across 

all chemical treatments. 

COMMENTS 

1. Traditional BMPs without the use of chemistry fail to solve the problem that fine particulate causes in our waterways. The EPA in the 

Effluent limitation Guidelines, published in 2009, addressed the economic cost of sedimentation. Additionally, numerous studies as 

summarized in Newcombe, 1994 (Reference included as an endnote}i, show the toxicity of sediment on various aquatic species. Thus 

by keeping the status quo of using traditional BMPs which use mechanical separation and settling alone, the EPAs regulations will fail to 

meet the Clean Water Act. 

2. Many compounds and formulations can be toxic if too much is added. In the case of flocculants that have been subjected to toxicity 

testing, concentrations of concern are known and well-defined. Yet, the tests are always conducted with clean, lab-generated water and 

represent the absolute worst case scenario. In the presence of sediment most flocculant chemistries are going to be less toxic. The key is 

to determine proper dosing to obtain the needed results without overdosing. Systems need to be designed with layers of safety in place to 
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provide needed feedback to those operating the treatments, and with enough scope, to deal with field conditions that are variable. 

Preoperation dose determination should be standard procedure, followed by measurable outcomes that include turbidity, pH and residual 

flocculant determination by testing. By having a field test for residual flocculant, all parties--- engineer, contractor, regulator or the 

general public--- have the tools and information necessary to ensure compliance and make informed decisions. It is a checks and balance 

system that our nation knows well. 

3. Not all cationic coagulants/flocculants have the same ecotoxicity thresholds. Nichols, 2011, (copy attached with this submittal), 

makes it clear that primary amines have lower toxicities than quaternary amines, and are thus, in general, safer to use based on a 

toxicity:dose ratio. Similarly, anionic polymers have an eco-toxicity profile of equal concern if the dose rate is greater than the No 

Observed Effect Concentration (NOEC). Self-regulation within the construction stormwater market only works if the personnel 

deploying or building BMPs have simple easy-to-use guidelines and models. The regulations need to be consistent. The recommendation 

in Comment 5, below, creates a level playing field for all flocculant manufacturers, but also makes it easy for the contractors to 

understand and comply with. In Nichols, 2011 states: " ... other studies examining a polyacrylamidecontaining thickening agent under 

artificial environmental conditions reported that polyacrylamide may degrade to the acrylamide monomer." Additionally Nichols points 

out "due to the highly toxic nature of this monomer combined with its high water solubility and lack of adsorptive properties to sediment, 

the concern regarding release of acrylamide into surface water is prudent." The conclusion based on this and other evidence is 

inescapable: field residual testing of all chemical types is needed to ensure safety levels for all parties. 

4. Illustrated in the attached is an account of a standard matting and wattle check dam in semi-passive deployment mode aided by 

biopolymer treatment. The testing was organized and supervised by Harris County Flood Control District. Turbidity reduction was 

achieved easily and with minimal added cost for biopolymer deployment. A key factor in the implementation was that a field residual 

test was completed (taking no more than ten minutes) with results showing no residual biopolymer at a detection level more than lOx 

below the NOEC. This provides a powerful case in point that residual testing is neither too expensive nor too complicated to be 

achievable by construction site personnel as a routine component of compliance. 

5. Here is a proposal that is fair to all companies that seek to offer products for solving the sediment problem: 

a. Dosing at rates lower than the No Observed Effects Concentration (NOEC) should not require residual testing because, by definition, 

the dose is below effect levels. 

b. If dosing at rates higher than the NOEC is required to obtain the needed results, then residual testing for flocculant is required on the 

effluent at the same time turbidity and pH are being measured. The residual flocculant test needs to have a level of safety built in, so a 

detection limit lOx lower than the NOEC is required. 

c. c. If a company does not have residual testing capability for its products then batch treatment instead of flow through is required, and 

the water must be held on property until a Whole Effluent Toxicity (WET) test can be completed showing safe discharge levels. 

This tiered approach takes the need for refereeing out ofthe regulatory bodies' hands and properly puts the responsibility for safety and 

compliance on the participating parties 

Response 
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Refer to Response 6.6 on numeric turbidity limits, Response 6.8 on residual testing, and Response 6.9 on chitosan. See also Part VII.1.3 

of the 2012 CGP Fact Sheet for a discussion on the requirements related to the use of treatment chemicals. 

Comment ID 0082-A2.001.003

Author Name: Wray Susan 

Organization: HaloSource, Inc. 

Issue Category: 6.3.1Q 

DELETE: "[PLACEHOLDER: If residual chitosan testing detects the presence of chitosan in your discharge, report the positive test to 

EPA within 24 hours of learning of the results, and immediately take action to reduce residual levels in the discharge. You must continue 

to conduct residual testing once per hour until residual levels are below the detection level ofthe residual test, at which point testing must 

be conducted once every 2 hours during normal working hours until the discharge ends.]" 

AND REPLACE WITH: "6.3.1.3 If residual flocculant testing detects the presence of flocculant in your discharge at a level higher than 

the NOEC, report the positive test to EPA within 24 hours of learning of the results, and immediately take action to reduce residual levels 

in the discharge. You must continue to conduct residual testing once per hour until residual levels are below the NOEC detection level, 

at which point testing must be conducted once every 2 hours during normal working hours until the discharge ends. 

Where your corrective actions result in changes to any of the stormwater controls or procedures documented in your SWPPP, you must 

modify your SWPPP accordingly within 7 days of completing corrective action work." 

Response 

Refer to Response 6.8. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on permit requirements related to the use of 

treatment chemicals. 

Comment ID 0093-A2.001.086

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 6.3.1Q 

The proposal for residual chitosan testing does not have any foundation and runs counter to EPA's justification in the C&D ELG that 

chitosan is a safe natural product. During the public comment process on the C&D ELG proposal, industry raised several concerns with 

the use of chemicals, including the toxicity of such chemicals. EPA responded to concerns about the potential toxicity of chitosan by 

stating that the only documented case of possible toxicity or adverse effect was due to mismanagement and/or misuse of the polymer. 

Specifically, in the preamble to the final EPA rule, EPA states: "EPA has determined that when properly used, environmental impacts 

from polymers or flocculants should not occur through the use of passive treatment systems. Based on the information in the record EPA 

has determined that when polymers are properly applied the risks of toxicity to aquatic life or adverse effects to the receiving water are 

minimal." See 74 Fed. Reg. at 63,008. 

AGC is very concerned that EPA is now considering a requirement to monitor for chitosan as well as to employ additional measures even 

from the mere detection of any chitosan: including 24-hour notification, immediate corrective action, and the measurement of chitosan 
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every two hours until the discharge ends. What is more, EPA has not provided any justification for selecting chitosan for residual testing.

Response 

Refer to Response 6.9 and Response 6.8. 

Comment ID 0102-A2.001.008

Author Name: Williams Tim 

Organization: Water Environment Federation (WEF) 

Issue Category: 6.3.1Q 

a. Why focus on chitosan? What about other chemicals? 

b. Data is available on morbidity rates for various aquatic species - the acceptable level of chitosan (or any other chemical treatment) 

should be tied to the aquatic species that is most likely to be impacted by the release, as opposed to ANY level of chitosan (or other 

chemical). 

Response 

Refer to Response 6.9. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on permit requirements related to the use of

treatment chemicals. 

Comment ID 0105-A2.001.011

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: 6.3.1Q 

In addition, CLF strongly recommends EPA add a requirement in the Final CGP that operators demonstrate that non-chemical treatment 

methods are infeasible prior to using chemical treatment for stabilization. CLF supports a requirement for testing of chitosan residual 

(Part 2.1.4.5) and strongly recommends this be included in the Final CGP. CLF urges EPA to retain in the final CGP the requirement at 

Part 8.2.10.1(d) that operators disclose all chemicals used in erosion control. In addition, the portion of the NOI form requiring 

disclosure whether chemicals will be used for erosion control, and the requirement to include similar information in the SWPPP, should 

be retained 

Response 

Refer to Response 6.9. See also section VII.1.3 of the 2012 CGP Fact Sheet for a discussion on permit requirements related to the use of 

treatment chemicals. 

Comment ID 0126-A2.001.019

Author Name: Burke John 
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Organization: Colorado Stormwater Council 

Issue Category: 6.3.1Q 

Colorado state law prohibits chemical additions due to water rights issues. 

Response 

EPA acknowledges the comment. 

Comment ID 0153-A1.001.037

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 6.3.1Q 

This should be based on what level residual chitosan (in ppm) is considered to be toxic based on acute and chronic toxicity testing results 

and then compare this to what is detected. If it is not toxic, then no corrective action is necessary.

Response 

Refer to Response 6.9. 

6.3.2 DEADLINES FOR CORRECTING CONDITION B [REQUEST FOR 

COMMENT]

Comment ID 0037-A1.001.052

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 6.3.2 

There should be an exception to the requirement to install the new or modified control, and make it operational, by no later than 7 days 

from the time of the discovery that a new stormwater control is needed, or an existing pollution prevention measure requires significant 

redesign and reconstruction or replacement at your site in the event that 1) a storm event occurred during the 7‐day deadline period which 

prevented the installation activities from taking place, 2) soil conditions due to an earlier storm event are too wet for completing the 

installation, or 3) the soil was frozen during this period precluding any further installation activities at that time. If any of these events 

were to occur, EPA could require that installation activities should be initiated as soon as practicable and that immediate action is taken 

to temporarily control stormwater discharges in the area until a permanent control or measure can be installed. 

Response 

Refer to Response 6.10. 
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Comment ID 0159-A1.001.018

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 6.3.2 

6.3.2.4 Neither the inspectors nor the contractors in some counties are allowed to revise sediment controls without the approval of the 

SWPPP approving authority (PGSCD). Although PGSCD is great on turn-around time, 7 days could be too fast even for a red line 

revision depending on the repair. It does take time to evaluate the situation, survey if necessary, design a solution, submit to the local 

authority, receive approval and finally construct the revision. However it does depend on the reason that a sediment control needs to be 

repaired reconstructed or replaced. For example if there is a breach in an earth dike, fixing the earth dike immediately can be done but the 

remedial confirmation of why the earth dike failed (i.e. was it a construction issue for the earth dike, improper design, improper 

construction of directed area to the earth dike, etc.) goes into evaluating how long it takes to determine a remedial action. We would 

suggest providing some guidance to the local authority to require actions within in a certain time frame, based on the nature of the 

problem. 

Response 

Refer to Response 6.10. 

6.3.2Q ALLOWANCES FOR QUARTERLY REPORTING (RATHER THAN 

MONTHLY)

Comment ID 0015-A2.001.022

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 6.3.2Q 

Q23. 7-day BMP installation - Disagree. There are many BMPs that are quickly replaced or installed and should not be allowed 7 days 

for installation. The 7-day time period should be limited to more structural or excavation oriented control measures such as dikes, soil 

berms, traps, basins, wheel washes, etc. BMPs such as silt fence, inlet protection, mulch application, etc should have installation within 

24 hours. 

Response 

Refer to Response 6.10 on deadlines for completing corrective action. 

Comment ID 0021-A1.001.021

Author Name: Unrein Terrance 

Organization: Tepa 
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Issue Category: 6.3.2Q 

10. CGP section 6.3.2 requests comment on the 7 day deadline for corrections of Condition B. This is not feasible in many situations 

where new BMP material needs to be ordered that has a lead time longer than 7 days. Also, financial approvals are often required to 

procure additional materials and this combined with the procurement and installation in 7 days is not practicable with most businesses. It 

is of my opinion that additional verbiage needs to be incorporated stating 7 days or before the next anticipated storm event. Material 

procurement is often times out of the operators control and we should not be held liable for these situations if we can provide proper 

documentation proving such. 

Response 

Refer to Response 6.10 on deadlines for completing corrective action. 

Comment ID 0046-A1.001.025

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 6.3.2Q 

The Department agrees that 7 days is sufficient to correct deficiencies. However, there may not be technology available to effectively 

control turbidity in all cases. Reinstalling ineffective BMPs is extremely wasteful and may cause further environmental damage. There 

may need to be a provision (BMP), which allows the Contractor to quickly finish his work and stabilize the problem area, even though 

there may be a short-term discharge violation. 

Response 

Refer to Response 6.6. 

Comment ID 0053-A2.001.036

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 6.3.2Q 

If during construction, a 400 foot long, 20 foot tall concrete-block retaining wall catastrophically fails it will not be fully re-installed and 

operational by 7 days from the time of discovery. Legal ramifications and/or lawsuits may prevent even cleaning up a location until 

insurance adjusters, lawyers, and government entities have surveyed the site. Add to it injury of personnel or accidental death. 

Consider adding a large-scale failure clause with a required notice to EPA. 

Response 

Refer to Response 6.10. 
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Comment ID 0066-A1.001.040

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 6.3.2Q 

Discussion: There are times when seven days to re-install a BMP device is not practicable due to personnel or materials not being 

immediately available. 

Suggestion: Add in the wording, as in other sections, "unless not practicable" or "as soon as practicable". Provide some other revised 

wording that would allow for these issues to be resolved in a timely manner, but not penalize the applicant for not complying within the 

seven day timeframe, especially (but not only) if an outside sourcing agent (sub-contractor) is being utilized for compliance measure 

upkeep. 

Response 

Refer to Response 6.10. 

Comment ID 0071-A3.001.012

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 6.3.2Q 

•Part 6.3.1. Deadline for Correcting Condition A. 1. and Part 6.3.2. Deadlines for Correcting Condition B. 2. The deadline outlined is too 

restrictive. In many cases it is not possible to mobilize a contractor immediately. 

Response 

Refer to Response 6.10. 

Comment ID 0071-A3.001.013

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 6.3.2Q 

•Part 6.3.1. Deadlines for Condition A. 2. and 6.3.2. Deadlines for Condition B. 4. These requirements are too restrictive in certain 

instances. There should be extensions allowed for the installation of temporary sediment basins and other major repairs requiring 

hydraulic calculations and engineering input. This is especially true for linear projects with limited ROW. For example, if it is found that 

a pond were undersized, but there was not enough room to enlarge it, then in addition to required calculations relocation would be 

necessary. On a site with utility, geographic or ROW restrictions it might be necessary to move a staging area, or adjust phasing. In these 

situations the suggested alternative would be to update the SWPPP to reflect why the correction could not occur in 7 days and provide 

and support an alternate deadline. In addition, document interim benchmarks, such as design completion, could be added to demonstrate 

progress. 
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Response 

Refer to Response 6.10. 

Comment ID 0074-A2.001.026

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 6.3.2Q 

The 7 day timeframe is too stringent and no alternative timeframes are suggested. Provisions should be made for circumstances when 

corrective actions cannot be completed within the deadline due to site-specific conditions, such as flooding, drought, or other extreme 

conditions. 

Response 

Refer to Response 6.10. 

Comment ID 0080-A2.001.035

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 6.3.2Q 

Partner Response: The Partners suggest that seven days is not feasible since often times BMP materials need to be procured and are not 

readily available on site. To ensure compliance with the 7-day deadline the owner or site operator would need to purchase and over stock 

these materials and store them on or near the site. This is a significant additional cost born by the project. These additional BMP 

materials may never be used. However, their purchase would remain a real and unnecessary cost to the project. 

Response 

Refer to Response 6.10. 

Comment ID 0085-A2.001.024

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 6.3.2Q 

EPA should consider tailoring this requirement to match the amount of time it actually takes to implement the necessary corrective 

actions. For example, repairing silt fences and other minor corrective actions take very little time and can prevent significant discharges 

of sediment from construction sites. Site operators should not be given such a lengthy time to implement corrective actions if there is an 

ongoing sediment discharge from the site or significant rainfalls are forecast in the coming days. On the other hand, Rockville can 

imagine significant issues requiring a redesign of sediment BMPs which may require more than seven days. 
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Response 

Refer to Response 6.10. 

Comment ID 0091-A2.001.015

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 6.3.2Q 

15. Fact Sheet Item 23. Part 6.3.2.4: Temporary repairs of diversion structures should be allowed if stormwater control equipment can't 

be made operational within 7 days (working day or calendar days?) Specialized treatment equipment, pumps, or custom machined gates 

or valves might not be available within 7 days. Severe weather conditions could also delay the delivery of specialty parts. 

Response 

Refer to Response 6.10. 

Comment ID 0093-A2.001.087

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 6.3.2Q 

AGC maintains that a seven-day period to install and make operational corrective action sotrmwater controls is not reasonable. First, 

corrective action may require engineering design to meet EPA's proposed two-year storm criteria and turbidity standards. Seven days is 

inadequate to design, procure materials and install corrective actions beyond rudimentary controls such as silt fencing. Second, operators 

often contract out stormwater compliance to a stormwater management sub-contractor. These sub-contractors typically inspect, install, 

and maintain BMPs for multiple customers and perform this service effectively by scheduling inspections and maintenance on specific 

days for each project. Requiring corrective action seven days after discovery as opposed to following the established weekly inspection 

schedule will result in sub-contractors having to limit their customer base to provide for the added burden, or more likely for operators to 

self-perform this work. EPA must consider the fiscal impact to small business when contemplating these requirements. 

The seven-day deadline may also be problematic because it would not give the construction site operator sufficient time to seek 

assurance of compensation from the owner of the project for changed conditions. 

Response 

Refer to Response 6.10. 

Comment ID 0096-A1.001.070

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 
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Issue Category: 6.3.2Q 

EPA should provide additional time for corrective action. There are cases where it is not reasonable to make corrective action within 7 

days. After a singular storm event, there may be many active construction sites in the area that require corrective action. Appropriate 

personnel and equipment may not be available onsite and available to make repairs right away. Often after a major event, the erosion and 

sediment control personnel will all be busy making repairs at the same time and may not be able to make repairs to all systems within 7 

days (this includes both personnel who are employed by the owner/operator and third party consultants, as they will likely have several 

clients). There may also be a need to order new erosion and sediment control devices, which may not be available within 7 days. EPA 

should state that corrective action should take place as soon as practicable and allow more time in cases that have limited opportunity 

take corrective action within 7 days. 

Response 

Refer to Response 6.10. 

Comment ID 0097-A1.001.017

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 6.3.2Q 

24. The time frames seem reasonable provided an electronic receipt is provided for electronic reporting. 

Response 

Refer to Response 6.13. 

Comment ID 0103-A3.001.017

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 6.3.2Q 

In Part 6.3.2.4, EPA proposes that, if an inspection has shown that a new storm water control is needed or an existing one needs to be 

modified, the new control must be installed and made operational no later than 7 days from the time of discovery. 

TCEQ believes that this requirement might not be feasible to implement within a 7 day period, and recommends providing 14 days 

instead. 

Response 

Refer to Response 6.10. 

Comment ID 0121-A2.001.020
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Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: 6.3.2Q 

Section 6.3.2.4 requires pennittees to take corrective action within 7 days when discharges are not in compliance with the turbidity limits 

or discharge do not meet water quality standards. In some cases, meeting the turbidity limits or water quality standards may be infeasible. 

Furthennore, re-constructing and installing new BMPs may be less protective than ensuring existing BMPs are as effective as possible 

and rapidly completing the construction and restabilizing the soils. The pennit should provide allowances for these situations. 

Response 

Refer to Response 6.10. 

Comment ID 0126-A2.001.020

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: 6.3.2Q 

CSC appreciates the realistic approach of allowing up to 7 days to make a new BMP operational. 

Response 

Refer to Response 6.10. 

Comment ID 0137-A2.001.019

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 6.3.2Q 

Neither the inspectors nor the contractors in many of our jurisdictions are allowed to revise sediment controls without the approval of the 

SWPPP approving authority. 7 days is inadequate for a red line revision depending on the repair. It does take time to evaluate the 

situation, survey if necessary, design a solution, submit to the local authority, receive approval and finally construct the revision. The 

time required depends on the reason that a sediment control needs to be repaired reconstructed or replaced. For example if there is a 

breach in an earth dike, fixing the earth dike immediately can be done, but the remedial confirmation of why the earth dike failed (i.e. 

was it a construction issue for the earth dike, improper design, improper construction of directed area to the earth dike, etc.) contributes 

to the time needed to determine a remedial action. We suggest providing some guidance to the local authority to require actions within in 

a certain time frame, based on the nature of the problem. 

Response 

Refer to Response 6.10. 
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Comment ID 0153-A1.001.038

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 6.3.2Q 

The 7-day timeframe may not be feasible for the construction of new sediment basins, or may not be feasible for the complete clean out 

of an existing sediment basin if site conditions (too wet) do not allow. 

Response 

Refer to Response 6.10. 

Comment ID 0171-A1.001.015

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: 6.3.2Q 

Corrective action requirements in the proposed CGP should recognize seasonal variations in the deadlines for compliance. 

Response 

Refer to Response 6.10. 

6.4 CORRECTIVE ACTION RECORDS

Comment ID 0012-A1.001.008

Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: 6.4 

Part 6.4.2 - Added the following language: "If you conclude that, based on further analysis of the site conditions, the source of the 

problem or violation is unrelated to your construction activity, you must document this fact and the reasons supporting your conclusion." 

This is to open for misreporting. Qualified opinions should only be considered and the permitting agency should review and approve the 

exception. Permittee liability issues need to be addressed as it crosses into Municipalities responsibility and liability for CEQA 

monitoring and mitigation issues. 

Response 

Refer to Response 6.12. 
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Comment ID 0034-A1.001.011

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 6.4 

11. Corrective Action Records 

Proposed Requirement/Section Addressed: CGP Section 6.4.2, Requirements for each new record of a triggering condition and any 

updates to these records for corrective actions taken be signed by and certified in accordance with Appendix L. 

Comment: The requirement to recertify the SWPPP for each triggering condition and corrective action will be overly burdensome. 

Discussion: Since the list of triggering conditions is extensive and they all must be addressed by corrective actions, it will be burdensome 

for the SWPPP to be signed and certified in accordance with Appendix L each time a triggering condition occurs and a corrective action 

is implemented. 

Recommendation: Recommend that the requirement to recertify the SWPPP after triggering conditions and corrective actions be 

narrowed to include only condition 6.2.1.7 or to allow recertification on a periodic basis such as quarterly 

Response 

Refer to Response 6.11. 

Comment ID 0064-A1.001.042

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 6.4 

Section 6.4, pages 50-51 - Full "Corrective Action Records" section 

•This requirement is redundant to the inspection form requirement (5.1.4.2) to document corrective actions. This creates additional 

paperwork that seems unnecessary and redundant. It would be more efficient to keep all stormwater inspection results and required 

action items on one form. From an operator perspective, "action items" on an inspection form are synonymous with "corrective action." 

Suggest deleting this section or simply equating action items and corrective actions as one in the same. 

Response 

Refer to Response 6.2. 
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Comment ID 0130-A2.001.030

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 6.4 

Part 6.4.1.2 and Part 6.4.2.1 both state that you are required to record "the nature of the condition identified". Delete one part. One is 

saying you have to record the nature of the condition of your site within 24 hours of discovery, one is saying you have to record the 

nature of the condition of your site within 14 days of discovery. This is a redundant requirement. 

Response 

EPA has clarified the recordkeeping requirements. See section X.4.4 of the 2012 CGP Fact Sheet for a discussion on the permit 

recordkeeping requirements. 

6.5 COMPLIANCE IMPLICATIONS OF CORRECTIVE ACTIONS

Comment ID 0040-A1.001.002

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: 6.5 

In 2000, UWAG appealed provisions in EPA's MSGP that would have subjected permittees to the threat of lost permit coverage and 

enforcement (without any opportunity for cure) based on a determination that the permittee was causing or contributing to an excursion 

of applicable water quality standards, even if the permittee was otherwise compliant with the permit. This appeal was subsequently 

resolved through a settlement, which provided: 

"At any time after authorization, the Director may determine that your storm water discharges may cause, have the reasonable potential 

to cause, or contribute to an excursion above any applicable water quality standard. If such a determination is made, the Director may 

require you within a specified time period to: 

A. Develop and implement a supplemental BMP action plan describing SWPPP modification ... to address adequately the identified 

water quality concerns; 

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the receiving water is 

attaining water quality standards; or 

C. Submit an individual permit application...." (Section 3.3 of the March 2005 Settlement Agreement between the Federal Water 

Quality Coalition, UWAG, and EPA resolving the 2000 MSGP appeal). 

This settlement is largely reflected in EPA's most recent MSGP-2008, which limits the risk of lost coverage and enforcement and 

provides permittees with a more step-wise and iterative approach to revising/enhancing its BMPs to meet water quality expectations. 
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Unfortunately, the new draft CGP revives the issues that UWAG appealed and were resolved in the MSGP. Section 6.2.2.3 of the CGP 

requires a permittee to undertake corrective actions upon discovery that the "stormwater controls you have installed and are maintaining 

are not effective enough for the discharge to meet applicable water quality standards...." Section 6.5 then follows that "If the condition 

identified in this Part constitutes a permit violation (e.g., a[n] ... exceedance of an applicable water quality standard), correcting it does 

not remove the original violation" (emphasis added). These proposed CGP provisions would have the effect of exposing permittees to 

immediate enforcement for excursions of WQS, without opportunity for cure, even if they are otherwise compliant with the CGP. 

Response 

Refer to Response 6.1 on general corrective action issues and Response 6.3 on water quality standards. 

Comment ID 0068-A1.001.040

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.5 

The proposed language in Part 6.5 that suggests that a violation of the non-existent numeric turbidity limit, evidence of tracked out 

sediment, or an excessively muddy discharge would constitute a permit violation should be removed. As noted above, there is no "final" 

C&D ELG or any applicable numeric turbidity limit. Further, basing a permit violation on the presence of an excessively muddy 

discharge, even when the permittee has implemented appropriate stormwater controls, is unreasonable. With respect to "track-out" of 

sediment, the standard should simply be that the permittee should minimize off-site vehicle tracking of sediments similar to the language 

in the 2008 CGP. The simple evidence of tracked out sediment should not be deemed a permit violation. Such an approach is inconsistent 

with the 2009 C&D ELG, which does not impose an absolute no-discharge standard. 

Response 

Refer to Response 6.6 for the comment on numeric turbidity limit, Response 6.1 for the comment on trackout out sediment, and 

Response 6.5 for the comment on muddy discharge. 

Comment ID 0068-A1.001.041

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: 6.5 

Finally, there is language in Proposed Part 6.5 that appears to be inconsistent with the water-quality approach set forth in Part 4.1 

regarding compliance with the permit providing a presumption of compliance with water quality standards and Proposed Part 6.2 

regarding corrective actions if a permittee determines possible contributions to water quality concerns. Proposed Part 6.5 cites examples 

of permit violations, including an "exceedance of an applicable water quality standard." That example should be deleted, because it does 

not accurately reflect the structure of the water quality conditions in the rest of the Proposed CGP. 
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Response 

Refer to Response 6.3. 

Comment ID 0087-A1.001.006

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 6.5 

The CGP incorporates requirements to meet both the technology- and water quality-based mandates of the Clean Water Act. In turn, 

compliance with the CGP should equate to compliance with the Act, consistent with the permit shield set forth in Section 402(k). 

However, the CGP is written in a manner that violates this shield. Specifically, Section 6.5 provides that the exceedance of an applicable 

water quality standard constitutes a permit violation, and correcting it does not remove the original violation. In other words, an 

exceedance is independently and directly enforceable as a violation, even if the permittee is otherwise compliant with the CGP and has 

implemented all appropriate corrective action to address the exceedance. This approach is fundamentally inconsistent with EPA's 

approach to this precise issue in other stormwater general permits - an approach that has been proven through litigation and settlement. 

In 2000, UWAG appealed provisions in EPA's industrial general permit that would have subjected permittees to the threat of lost permit 

coverage and enforcement (without any opportunity for redress) based on a determination that the permittee was causing or contributing 

to an excursion of applicable water quality standards, even if the permittee was otherwise compliant with the permit. This appeal was 

subsequently resolved through a settlement, which provided in relevant part: 

At any time after authorization, the Director may determine that your storm water discharges may cause, have the reasonable potential to 

cause, or contribute to an excursion above any applicable water quality standard. If such a determination is made, the Director may 

require you within a specified time period to: 

A. Develop and implement a supplemental BMP action plan describing SWPPP modification ... to address adequately the identified 

water quality concerns; 

B. Submit valid and verifiable data and information that are representative of ambient conditions and indicate that the receiving water is 

attaining water quality standards; or 

C. Submit an individual permit application.... 

Section 3.3 of the March 2005 Settlement Agreement between the Federal Water Quality Coalition, UWAG, and EPA resolving the 

2000 MSGP appeal. 

This settlement was incorporated into EPA's most recent MSGP-2008, which protects permittees from the threat of precipitous 

enforcement or lost coverage, and provides a step-wise and iterative approach to meeting water quality expectations. The draft CGP, by 

contrast, would expose permittees to the threat of precipitous enforcement, even if they do everything required of them under the CGP. 

UWAG urges EPA to modify its two permits to be consistent with each other, and with the earlier settlement. To do so, EPA should 

strike the reference to "exceedance of an applicable water quality standard" in Section 6.5 of the CGP (or that section in its entirety), and 

rely on the mechanisms already set forth in Section 4.1, which generally track EPA's approach in MSGP-2008. 
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Response 

Refer to Response 6.3. 

6.6 REPORTING TO EPA

Comment ID 0091-A2.001.028

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 6.6 

Comment - Reporting all prohibited discharge to EPA is very stringent. Reporting thresholds should be established. An alternative 

would be if corrective action deadlines are not met reporting to EPA is required. Spill Notification are listed in section 2.3.3. If a spill 

was reported per 2.3.3 is an additional notification to EPA per 6.6 required. Is reporting required if the discharge leaves the site, but does 

not reach a receiving water. Some sites drain to MS4 systems and may receive treatment prior to discharge to the receiving waters. In the 

case where flow is routed to an offsile treatment facility would the compliance location be at the discharge of the facility? Should the 

off-site conveyance and facility be defined as part of the site for the purpose of permit coverage? Is there a design storm requirement for 

the sizing of facilities to capture prohibited discharges? 

Response 

Refer to Response 6.13. 

6.6Q WHETHER REPORTING DEADLINE IS RESONABLE

Comment ID 0015-A2.001.023

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 6.6Q 

Q24. EPA reporting - Agree, seems reasonable. 

Response 

Refer to Response 6.13. 

Comment ID 0037-A1.001.053
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Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 6.6Q 

The Southern Ute Growth Fund agrees that the deadline of notifying the applicable EPA Regional Office of an occurrence of a Condition 

B by the end of the next full work day after discovering the condition is reasonable. This requirement is similar to the reporting 

requirements for occurrences of noncompliance for other types of National Pollution Discharge Elimination System (NPDES) discharge 

permits administered by EPA. 

Response 

Refer to Response 6.13. 

Comment ID 0065-A1.001.028

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 6.6Q 

Section 6.6 requires that the EPA Regional Office be notified by the end of the next full work day after discovering detection of chitosan 

in the discharge or a condition described in Part 6.2.2. EPA requested comment on whether this proposed deadline is reasonable. This 

deadline is not workable. The deadline should be more flexible to accommodate scenarios in which a construction project may be 

short-staffed, making it difficult to report such conditions by the end of the next full work day (e.g., when key personnel are away for 

scheduled time-off). The 24- hour deadline should be a recommendation and not a strict requirement. 

Response 

Refer to Response 6.9. 

Comment ID 0070-A1.001.012

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: 6.6Q 

j. Reporting to EPA - As stated above, Alcoa does not believe there is a need to include additional notification requirements other than 

those that are currently a part of the NPDES permitting program found at 40 CFR 122. 

Response 

Refer to Response 6.13. 

Comment ID 0074-A2.001.027

Author Name: Thompson Steven 
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Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 6.6Q 

See Items 15 and 16 (see comment ID 0074.018 and 0074.019). 

Response 

Refer to Response 6.6 and Response 6.13. 

Comment ID 0075-A2.001.032

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 6.6Q 

1 day notification may be a challenge. Suggest at least 2 days. 

Response 

Refer to Response 6.13. 

Comment ID 0080-A2.001.036

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 6.6Q 

Partner Response: The time required and cost of submitting these notifications to the EPA does not seem justified or useful. What will 

the EPA do with this information if reported within the timeframe beyond populating a database for an ill-defined purpose. The EPA 

should clarify why collecting this information within these tight time frames is beneficial in justifying the additional burden. 

Response 

Refer to Response 6.12. 

Comment ID 0085-A2.001.025

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 6.6Q 

This deadline is reasonable. EPA should also consider requiring Condition A events be reported in this timeframe as well. These events 

should be reported so that site inspectors can assess whether an operator has taken appropriate corrective actions within the required 

timeframe. Otherwise, these timeframes and required corrective actions will be difficult to enforce. 
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Response 

Refer to Response 6.10 and Response 6.13. 

Comment ID 0153-A1.001.039

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: 6.6Q 

Reporting by the next work day should only be required if the condition is considered hazardous to human health and well being. If it is 

not, the reporting deadline should be 7 calendar days. 

Response 

Refer to Response 6.13. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 7, 7.1, 7.2, 7.3, 7.4

 
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7 STAFF TRAINING REQUIREMENTS

Comment ID 0053-A2.001.037

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 7 

General Comment: No requirements of persons performing training have been established in the permit. Consider including 

requirements of such a person i.e. Certified Professional in Erosion and Sediment Control (CPESC), Certified Erosion, Sediment and 

Storm Water Inspector (CESSWI), Certified Municipal Separate Storm Sewer System Specialist (CMS4S), or a Certified Professional in 

Storm Water Quality (CPSWQ). 

Response 

Refer to Response 7.1. 

Comment ID 0064-A1.001.002

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 7 

•Concern that there will not be enough develop, deliver, and implement training that will be required to achieve compliance with the 

permit. EPA has given a date when the new permit would become effective; however, there is no date indicating when the finalized new 

permit will be released to allow training programs to develop. Will EPA consider an implementation phase which will allow sufficient 

time for operators to prepare for the finalized permit? 

Response 

Refer to Response 7.1. 

Comment ID 0066-A1.001.041

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 7 

Suggestion: EPA should have and maintain free online or training that can be obtained to train project site staff to your level of 

expectation. Until a standard is set, it is very difficult to require training for all construction site staff to an undefined level. 

Response 

Refer to Response 7.1. 

Comment ID 0096-A1.001.071

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 7 
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EPA is proposing that permit holders make sure that all members of the stormwater team (SWPPP writers, BMP designers/installers, 

inspectors, those taking corrective actions, and samplers) receive the necessary training to ensure they understand the requirements of 

the permit and their specific responsibilities with respect to their requirements. While NAHB believes that all personnel involved in 

stormwater control should have knowledge of the program and its requirements, NAHB strongly believes that any formal training 

requirements should only apply to those individuals who are working on larger projects, such as those that are covered by the numeric 

turbidity limit (e.g., those that disturb 20 or more or 10 or more acres of land area at one time). EPA should also exempt those holding 

stormwater-related professional designations or certifications from the training requirements and further clarify what the training must 

entail. Finally, in lieu of mandatory training requirements, NAHB submits that EPA can realize greater benefit by establishing 

qualifications for SWPPP preparers who are working on large sites. 

eLearning activities that can provide training on the varied subtopics that comprise the NPDES program including (but not limited to) 

construction inspection techniques, Effluent Guidelines and Field Sampling and Analysis for Turbidity.

Response 

Refer to Response 7.1. 

Comment ID 0130-A2.001.031

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 7 

29. TRAINING. The CGP indicates that training is required, but leaves a great deal of room for interpretation on what is adequate to 

meet permit training requirements in Part 7. Many stormwater tools are „reinvented‟ by each city, county and state. We invest 

significant funds in training. Per Part 7.3, has the EPA considered developing a short but interactive web based training that individuals 

could take to satisfy the minimum intended training requirements for the stormwater team? An individual could then print out a 

certificate to document that they have met at least the basic training requirements under the CGP. An organization such as ours could 

then invest funds in developing more advanced training, which is another (often unfunded) need. 

Response 

Refer to Response 7.1. 

7.1 PERSON(S) REQUIRING TRAINING

Comment ID 0091-A2.001.029

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 7.1 

The individual preparing the SWPPP is often times not part of the Stormwater Team during construction. If the SWPPP preparer is not 

part of the active construction project, requiring them to be trained seems inappropriate (Section 7.1.1.). This would apply to individuals 

designing the stormwater controls as well. Stormwater control design is often times completed months before active construction by an 

individual that will not be part of the Stormwater Team during active construction (Section 7.1.2.). Documenting that the offsite 
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personnel were "qualified" at the time the SWPPP was prepared may be a better approach. 

Response 

Refer to Response 7.1. 

Comment ID 0096-A1.001.072

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 7.1 

There are many qualified stormwater professionals who already have targeted experience and expertise in designing construction 

projects to minimize and control stormwater discharges, utilize green infrastructure, install and maintain BMPs, and conduct site 

inspections and stormwater sampling. Most of these individuals also are knowledgeable about the NPDES and other permit 

requirements, site reassessment and redesign, and the penalties associated with noncompliance. As such, NAHB strongly recommends 

that EPA exempt these professionals from the staff training requirements. 

At a minimum, the following individuals must be exempt from EPA's training requirements: 

a. A registered professional civil engineer. 

b. A registered professional geologist or engineering geologist. 

c. A registered landscape architect. 

d. A professional hydrologist registered through the American Institute of Hydrology. 

e. A Certified Professional in Erosion and Sediment Control or Storm Water Quality registered through EnviroCert International Inc., or 

g. A Certified Professional in Erosion and Sediment Control registered through the National Institute for Certification in Engineering 

Technologies. 

Likewise, experienced builders and developers who have been using appropriate stormwater controls over time should not be required to 

be retrained. For example, any individual who can document that he/she has: 1) Obtained appropriate instruction (2-4 hour course) 

regarding construction site stormwater management pollution prevention practices and inspection responsibilities; 2) Obtained a 

"Certification" from a state agency as a Stormwater Inspector, or a certification such as Certified Erosion, Sediment and Stormwater 

Inspector (CESSWI), Certified Inspector of Sediment and Erosion Control (CISEC) from a recognized third party; or 3) Obtained 

equivalent training and/or experience in the principles of sediment and erosion controls and stormwater management through on-the-job 

exposure, should be considered adequately trained. 

Response 

Refer to Response 7.1. 

Comment ID 0168-A1.001.015

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 7.1 

-- Quantification of minimum requirements for becoming a "qualified person" is recommended. The permit training requirements go 

beyond the typical "tailgate-training" or Outreach classes, and may merit consideration of other qualifications for "qualified persons" 

such as being a registered Professional Engineer, Professional Soil Scientist, or Certified Professional in Erosion and Sediment Control. 
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If personnel with the above qualifications are delegated with the activities listed under Section 7.1, then additional training may not be 

required. We suggest providing an option for documenting prior training, experience and education that would pre-qualify members of 

the stormwater team to perform required activities under this permit. 

Response 

Refer to Response 7.1. 

Comment ID 0168-A1.001.016

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 7.1 

-- Stormwater team personnel without prior documented education and experience in soil erosion, sediment transport, water treatment 

processes and site stabilization may require fairly specialized training (eg beyond the typical Construction Outreach class). Clarification 

on how to document thorough understanding of required topics is requested. The qualifications of the person(s) providing the training 

should also be documented. 

Response 

Refer to Response 7.1. 

7.2 WHEN TRAINING IS REQUIRED

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

7.3 WHAT TRAINING MUST INCLUDE

Comment ID 0045-A1.001.013

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 7.3 

7.3 - The staff training requirements outlined here are inadequate. There is nothing in this proposal concerning the training of staff as to 

how to actually construct and maintain various controls and practices, nor to understand the range of controls and practices and their 

purposes and uses on a construction site. Without this level of training, staff taking charge of construction sediment and erosion control 

at a construction site are ill-equipped to fully understand how these practices should function. 

Response 

Refer to Response 7.1. 

Comment ID 0091-A2.001.030

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 
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Issue Category: 7.3 

The permitee requirement to provide training on reporting violations and submitting reports to EPA may not be appropriate. For this new 

permit the operator/permit holder staff would not have individuals familiar in this process. Recommend EPA provide training program 

for this requirement. Recommend that EPA post training resources on the internet. 

Response 

Refer to Response 7.1. 

Comment ID 0096-A1.001.073

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 7.3 

While NAHB appreciates the flexibility EPA has built into the training by providing few details of what exactly the training must entail, 

we are concerned that the vagueness and openendedness of the requirements could be problematic when it comes to demonstrating 

compliance. Further, because each person's training will differ depending on the role that individual is playing (e.g., the person 

conducting the grading activities will have different needs than the one preparing the SWPP or conducting inspections), EPA needs to be 

clear about what must be covered or included in each person's training for it to be acceptable. For example, EPA could reference 

materials that are available on its website as being acceptable baseline information for inspectors and permittees, such as its webcasts on 

developing SWPPPs and stormwater management programs, its national menu of best management practices [FN 83,84]. EPA must also 

clarify that the required training can be provided using any medium the operator sees fit (paper materials, electronic media, live training) 

and can be obtained from various places, including the permittee, third-party trainers, state or local governments, or through self-study. 

Indeed, NAHB can envision multiple scenarios where the training would take place on site while walking the property. As an alternative, 

EPA can specify that it will rely on the permittee's best professional judgment to develop and conduct the necessary training and clearly 

state that the as long as the content of the training is consistent with the NPDES program, it will be deemed acceptable. 

[FN 83] EPA, 2008. National Pollution Discharge Elimination System (NPDES). Accessed July 6, 2011. Available at: 

http://cfpub.epa.gov/npdes/stormwater/swppp.cfm. 

[FN 84] EPA 2011. Construction and Development: Related Links. Accessed July 6, 2011. Available at: 

http://water.epa.gov/scitech/wastetech/guide/construction/links.cfm. 

Response 

Refer to Response 7.1. 

7.4 TRAINING DOCUMENTATION

Comment ID 0053-A2.001.038

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 7.4 

Consider including names and titles of persons providing training. 
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Response 

Refer to Response 7.1. 

Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: 8, 8.1, 8.1.1, 8.1.2, 8.1.2Q, 8.1.3, 8.2, 8.2.1, 8.2.2, 8.2.3, 8.2.4, 

8.2.5, 8.2.6, 8.2.7, 8.2.8, 8.2.9, 8.2.10, 8.2.11, 8.2.11.1, 8.2.11.2, 8.2.11.3, 8.2.12, 

8.2.13, 8.2.14, 8.2.15, 8.2.16, 8.3, 8.3.1, 8.4, 8.4.1, 8.4.2, 8.4.3, 8.4.4

 
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8 STORMWATER POLLUTION PREVENTION PLAN (SWPPP)

Comment ID 0096-A1.001.074

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: 8 

NAHB submits, that as an alternative to mandatory training, EPA require those preparing SWPPPs for sites that disturb 10 acres or more 

to meet some minimal qualification. Several states already require that a licensed professional engineer or a trained erosion and sediment 

control (ESC) professional sign the SWPPP, certifying that it incorporates accepted best management practice, and meets local and 

regional recommended BMPs. NAHB asserts that such a requirement "raises the bar," while allowing sufficient flexibility to continue to 

use BMPs that are most appropriate to particular climate, soil, and topography conditions at the site. Qualified personnel have targeted 

experience and expertise in the design, installation, and maintenance protocols for BMPs. They also are knowledgeable about the 

NPDES and other permit requirements, reassessment and redesign, if necessary, and the penalties associated with noncompliance. 

NAHB believes that such mandatory involvement will improve environmental protection and increase compliance without further 

complicating the permitting process for small businesses. 

a. All SWPPPs for sites with disturbed areas over 10 acres must be reviewed and signed by a licensed PE or qualified Erosion and 

Sediment Control professional prior to submission to the regulatory authority. The SWPPP must contain all of the current provisions in 

the EPA CGP (or any applicable State CGP), including an inspection schedule that assesses whether the SWPPP has been and is 

continuing to be correctly implemented. 

b. The SWPPP should designate all known discharge points, either from required sediment ponds (drainage of 10 acres or more to a 

common point) or other constructed or natural water conveyances. 

c. The SWPPP should designate responsible personnel and ensure they understand the requirements of this permit and their specific 

responsibilities with respect to those requirements. 

d. The certification verifies that the stormwater plan will adequately address those conditions expected to be encountered at the site, and 

that the plan meets all of the requirements of the applicable CGP and local requirements. Once certified, the SWPPP becomes part of the 

stormwater permit for the site. 

Response 

Refer to Response 8.1. 

Comment ID 0130-A2.001.006

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 8 

5. SWPPP TEMPLATE. The SWPPP requirements section (Section 8) in the proposed permit is 9 pages compared to 5.5 pages in the 

2008 CGP. This reflects a substantial increase in SWPPP requirements and expectations under the proposed permit. Will EPA publish a

revised SWPPP template similar to the template provided for the 2003 and 2008 CGP? A template could provide reporting consistency 
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and be useful to operators, given increased expectations by EPA. 

Response 

Refer to Response 8.1. 

8.1 GENERAL REQUIREMENTS

Comment ID 0056-A2.001.012

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: 8.1 

It is the DER's experience that proactive restoration and revitalization projects often move forward with limited budgets comprised 

mostly of public funds. Aspects of the planning, permitting and implementation process remain complex and require significant 

information and effort. Applications under sections 401 and 404 of the CWA results in thorough review by federal and state agencies and 

approval under these regulations include detailed requirements and restrictions imposed by the reviewing agencies. In Massachusetts 

there is further review under state law, (MA Wetland & River Protection Act). Preparation of a SWPPP often proves redundant to the 

requirements imposed through sections 401, 404 and MA regulations. The DER requests the EPA consider making an exception for 

pro-active restoration projects from the preparation of a full SWPPP if other permits, certificates and/or permissions required to 

undertake the project cover the intent of a SWPPP. 

Response 

Refer to Response 8.1. 

8.1.1 REQUIREMENT TO DEVELOP SWPPP

Comment ID 0025-A1.001.040

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 8.1.1 

The statement "The SWPPP does not contain narrative or numeric effluent limits" is unclear. Please clarify. 

Response 

Refer to Response 8.1. 

Comment ID 0064-A1.001.043

Author Name: Dees Richard 
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Organization: City of Meridian 

Issue Category: 8.1.1 

Section 8.1.1, page 53 - "The SWPPP does not contain narrative or numeric effluent limits." 

•Sentence seems out of place and meaning is unclear. Suggest deleting or clarifying this statement. 

Response 

Refer to Response 8.1. 

Comment ID 0168-A1.001.020

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 8.1.1 

-- The last paragraph of Section 8.1.1 indicates "the SWPPP does not include narrative or numeric limits'. This should be changed and 

SWPPP should include narrative or numeric limits. Please revise. 

Response 

Refer to Response 8.1. 

8.1.2 PERSON(S) RESPONSIBLE FOR DEVELOPING SWPPP [REQUEST 

FOR COMMENT]

Comment ID 0045-A1.001.014

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: 8.1.2 

8 - Who is responsible for developing the SWPPP? The landowner where the construction takes place is certainly one possibility, but 

there are others: the master developerlbuilder/general contractor, or any similar party with direct control over day-to-day construction 

operations and results. Without fixing this responsibility, or at least identifying appropriate entities and requiring that one of them be so 

designated, it is not cllear who will create the Plan or undertake to implement it. 

Response 

Refer to Response 8.1. 

Comment ID 0053-A2.001.039

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 
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Issue Category: 8.1.2 

8.1.2. Person(s) Responsible for Developing SWPPP. The Request for Comment in this section of the Permit states: "During the 

development of this proposed permit, EPA was asked to consider modifying the SWPPP requirements to require that, where there are 

multiple operators associated with the same construction activity, the party who possesses the title of the land where the construction 

activity will take place and has operational control over construction plans and specifications, typically the property owner, be 

responsible for developing the SWPPP." 

Property ownership can be in contention even with temporary construction easements (TCEs) in place for construction. The ability of a 

contracted entity to determine who possesses the title of the land may not be an obtainable task, nor should EPA insert a contracted 

company in between sparing land owners.Alternatively, a property owner may be covered under their own NPDES Permit and 

require a contracted construction company to obtain their own coverage and draft their 

own SWPPP in an effort to impart environmental responsibility to the contractor. 

Response 

Refer to Response 8.1. 

Comment ID 0098-A1.001.019

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 8.1.2 

We support the approach of the Draft Permit that enables parties to different kinds of development to determine among themselves who 

is in the best position to develop a SWPPP while still requiring all permit holders either to develop or to adopt a SWPPP. 

We would oppose any new or different requirement that would make the property owner responsible for SWPPP preparation. Property 

owners often are not involved in or knowledgeable about the construction process. 

Response 

Refer to Response 8.1. 

Comment ID 0148-A1.001.001

Author Name: Esparza J. 

Organization: USACE-Sacremento 

Issue Category: 8.1.2 

Body: 1. Part 8.1.2. The 'owner' (titled land owner) requirement for the federal government can be problematic as the agency that holds 

title may not be the same as the agency operating the construction project. Also, as a federal agency our construction projects we operate 

can often cross many title land owners land (work along levees). 

Response 

Refer to Response 8.1. 
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Comment ID 0168-A1.001.018

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 8.1.2 

-- We support the approach taken in the CGP that does not specify which party is responsible for developing the SWPPP in 

multi-operator situations. The City may or may not have day-today operational control over construction. The City has experienced 

challenges related to multiple operators using the same SWPPP, multiple operators working on the same site with independent SWPPPs, 

and challenges related to being the Owner, working with a contracted Construction Manager that controls day-io-day activities including 

the SWPPP and site expenses, but who is not the property owner. 

Response 

Refer to Response 8.1. 

Comment ID 0168-A1.001.019

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 8.1.2 

-- In general, we concur with the comments by the General Contractors that indicate that selecting the low-bid may result in a project that 

has been bid without sufficient regard or resources allotted towards stormwater management. Because the phasing and site control 

methods outlined in the SWPPP can dictate project implementation and site operation, the SWPPP can have a significant bearing on how 

the project is implemented and the associated construction costs. This is true for both municipal public works, and residential 

construction. For this reason, we prefer that the General Contractor serve as the primary operator, and develop the SWPPP, with others 

as co-signers. However, we believe that the Owners should have the flexibility to decide who will develop the SWPPP. 

Response 

Refer to Response 8.1. 

8.1.2Q WHETHER OWNER OF SITE SHOULD DEVELOP SWPPP

Comment ID 0015-A2.001.024

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: 8.1.2Q 

Q25. SWMP Development - Partially Agree. EPA should consider the owner responsible for development of at least one SWMP, but 

that site operators are responsible for modifying the SWMP if they are not following owner SWMP directions and specifications. For 

City capital projects we develop the Erosion Control Plan and Permit submittal, then allow hired contractors to modify such plans and 

permits once the project is awarded. 
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Response 

Refer to Response 8.1. 

Comment ID 0019-A1.001.002

Author Name: Owens Kelly 

Organization: Bureau of Land Management (BLM) 

Issue Category: 8.1.2Q 

 2.Paragraph 8.1.2 "Request for Comment" a.I think that the responsibility of developing the SWPPP should not fall upon the land 

owner. In the case of construction on public lands; I'm assuming that the appropriate land managing agency (Bureau of Land 

Management or Forrest Service) would then be responsible for developing the SWPPP when they approve any SWPPP requiring activity 

on public land. With all the energy development that currently occurs on public land; it would not be feasible for land management 

agencies to dedicate sufficient man hours to developing appropriate, site specific SWPPPs for all surface disturbing activities that occur 

within their jurisdiction. Also, if land management agencies dictated what specific mitigation measures industry must use on public land 

and those mitigation measures fail, then the federal government could be held responsible for reclamation of resource impacts caused by 

industry. It is for these reasons that I do not think that land owners should be responsible for developing SWPPPs. 

Response 

Refer to Response 8.1. 

Comment ID 0021-A1.001.022

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 8.1.2Q 

11. CGP Section 8.1.2 requests comment on the recommendation that the owner be responsible for SWPPP development. This may be 

beneficial in circumstances of multiple operators on a single site as stated in the Request for Comment but this would not be effective in 

many circumstances. The operator of the site, which is commonly the prime contractor, has the best working knowledge of its 

conditions, future construction activities, construction sequencing, and how to be proactive with SWPPP maintenance and 

administration. SWPPP development and administration requires direct coordination and communication with the subcontractors 

performing the work, Designer of Records (depending on design build vs. design bid build and other contract formats), 3rd party 

designers, consultants, etc. and the owner is not legally able to perform this coordination. Also, operators use numerous different types of 

tools and software programs for environmental compliance and site inspections and we should be able to choose which system we wish 

to implement if it fulfills the requirements of the CGP. It is of my opinion that SWPPPs developed by the owners, in most cases, would 

fail to be executed effectively in the field and would not be an efficient way to stay in compliance with the permit. The operator of the site 

needs to develop the SWPPP that they are going to utilize for CGP compliance. And this operator is commonly the prime contractor. 

Response 

Refer to Response 8.1. 
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Comment ID 0025-A1.001.041

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 8.1.2Q 

Response to EPA's request for comment: ADOT currently requires the contractor to prepare the SWPPP. The agency has not 

experienced the issues described in the request. For ADOT (and likely other agencies), the budgets for design and construction may 

come from different sources (for example, the design may be paid with state funds while construction may be paid with federal funds). 

Therefore, it would be preferable to continue to allow the flexibility for the owner to determine whether the SWPPP will be prepared by 

them or by the contractor. 

Response 

Refer to Response 8.1. 

Comment ID 0034-A1.001.012

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: 8.1.2Q 

12. Persons Responsible for Developing Stormwater Pollution Prevent Plan (SWPPP) 

Proposed Requirement/Section Addressed: CGP Section 8.1.2, Developing a SWPPP 

Comment: EPA requested comment regarding modifying the SWPPP requirements to require that, where there are multiple operators 

associated with the same construction activity, the party who possesses the title of the land where the construction activity will take place 

and has operational control over construction plans and specifications, be responsible for developing the SWPPP. 

Discussion: DoD construction projects typically require that the contractor develop and implement the project SWPPP. DoD signs the 

SWPPP and obtains permit coverage as a co-permittee. Requiring the construction contractor to develop and implement the SWPPP as a 

performance based requirement is the most flexible and effective means of maintaining stormwater compliance. The contractor is also in 

position to determine the most cost effective methods of meeting the pollution prevention requirements. Furthermore, details required in 

the SWPPP such as start date and estimated duration for each phase of construction are only known by the construction contractor. If 

erosion and sediment control measures contained in the contractor developed SWPPP prove to be inadequate the contractor is currently 

obligated to make needed changes. If the SWPPP were the owner's (DoD) responsibility as proposed by EPA, it would be developed as 

part of the design and then bid upon by the construction contractor. Any changes to the SWPPP would then amount to contract changes, 

which would require negotiation with the contractor and additional funding. This would be a costly, unwieldy process that would 

increase response times to address sediment and erosion control problems. 

Recommendation: Recommend that EPA retain the flexibility in the current permit which allows any operator on the site to be 

responsible for SWPPP development 

Response 

Refer to Response 8.1. 
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Comment ID 0037-A1.001.054

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 8.1.2Q 

The Southern Ute Growth Fund supports retaining the current requirements in Part 8.1.2 of the proposed permit. 

Response 

Refer to Response 8.1. 

Comment ID 0046-A1.001.026

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: 8.1.2Q 

The Department does not support the "land owner" developing the SWPPP. The Contracting community in New Hampshire has clearly

articulated that they should be the entities developing and implementing the SWPPP. The Department has successfully relied on our 

General Contractors to construct our public infrastructure in an environmentally friendly / cost effective manner for decades. 

The Department will include additional information in the bidding package to assist the Contractors in developing SWPPPs on 

especially large and more challenging projects as follows: 

Traffic Control Plans - These plans are essential when developing the phasing for any project. They also dictate what areas and when 

they will be open during construction and exposed to precipitation. 

Construction Stormwater Analyses - This consists of an analysis of the open construction area, expected runoff volumes and sediment 

capture areas. This analysis also identifies prob1em areas where stormwater cannot be captured, treated to reduce turbidity and released. 

Erosion Control Plans - These plans present a graphical representation of traditional BMPs strategies to be employed during the 

construction phase. The strategies are tiered, employing the least intensive BMPs to lowest risk areas and providing more intensive 

BMPs to the larger more risky areas. 

Water Diversion Lump Sum Items - There are certain areas that are known to be problematic prior to bidding a project. The Department 

identifies these areas and lets the Contracting community match the equipment, materials and expertise in construction to provide a 

viable solution. The Department and the state regulators have been very pleased with the results of this bid item. It provides cost effective 

/ environmentally sensitive solutions to tricky construction situations. 

The Department believes that moving the responsibility of developing and implementing the SWPPP to the State would be an error. The 

Department would loose all buy-in and responsibility of the contractors to control their own work. The Department is not a regulator and 

ultimately we cannot enforce NPDES regulation through our contracts. 
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Response 

Refer to Response 8.1. 

Comment ID 0061-A1.001.017

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: 8.1.2Q 

EPA solicits comments on who should be responsible for preparation of the SWPPP, the landowner or the project operator. In the context 

of the existing permit, EPA holds the "operator" responsible for permit compliance but includes ownership of the project as a 

characteristic of being an operator. The fundamental criterion currently used to define an operator is operational control of the project. 

The operator can either be the entity owning the project (and/or land being disturbed) or the entity with day-to-day control over the land 

disturbing activity. While both entities retain overall responsibility for permit compliance, typically the general contractor retains the 

majority of the responsibility for implementation of the permit conditions. It is because of the joint responsibility and the nature of the 

work that the telecommunications company, as the project owner, typically assumes responsibility for preparation of the SWPPP in 

order to ensure consistency and adequacy in implementation by the operator (typically a contractor). 

The EHSCP member companies typically design and contract for the LCP work and therefore are in the best position to ensure 

development of the SWPPP that governs that activity. In no case should land owners, whose involvement often is limited to providing an 

easement and whose knowledge of and control over the project is negligible, be required to develop the SWPPPs for LCPs. 

Response 

Refer to Response 8.1. 

Comment ID 0064-A1.001.044

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 8.1.2Q 

Section 8.1, page 53 - Full "Request for Comment" section 

•If Owner or Contractor are truly co-permittees, both should have input in the development of final SWPPP. Perhaps require the Owner 

to develop an initial Draft SWPPP for review and comment by Contractor in between Notice of Award and Notice to Proceed. Many 

BMPs will be left to the Contractor based on their ways and means of conducting the work. This method allows Owner to establish 

expectations and Contractor to execute and modify as required. 

Response 

Refer to Response 8.1. 

Comment ID 0065-A1.001.029

Author Name: Jaeger Lisa 
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Organization: Council for Clean Water Construction (CCWC) 

Issue Category: 8.1.2Q 

Section 8.1.2 proposes that the operator of a site be responsible for developing a SWPPP. EPA requested comment on who should be 

responsible for submitting a SWPPP where there are multiple operators associated with the same construction activity and whether in 

such a situation the owner who has title to the land should be responsible for developing the SWPPP. CCWC conditionally supports 

making the owner of the property responsible for developing the SWPPP, as long the CGP makes clear that the owner is the responsible 

party and includes guidelines regarding the scope of the situations where the owner bears this responsibility. The contract should clearly 

reflect that the owner bears this responsibility. In addition to situations where there are multiple operators, there are other scenarios 

where the owner should be responsible for preparing the SWPPP. For example, if the contractor is bidding a project in a very sensitive 

environmental wetland area where endangered birds are part of the habitat and the contractor knows very little about the area, the owner 

of the land should be responsible for preparing the SWPPP, which would ensure that all potential sensitive areas will be adequately 

covered in the bid request. 

Response 

Refer to Response 8.1. 

Comment ID 0066-A1.001.042

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 8.1.2Q 

EPA solicits comments on whether EPA should add a requirement that, where there are multiple operators at a single site, the party "who 

possesses the title of the land where the construction activity will take place and has operational control over construction plans and 

specifications" would be the party responsible for "developing" the SWPPP. TxDOT is opposed to adding this requirement. 

First, the party possessing title to the land is not always the party with operational control over construction plans and specifications. 

Consider, for example, a situation in which a property owner leases land to a developer. 

Second, where multiple operators are jointly and severally responsible for complying with all aspects of the CGP, including the 

requirement to develop a compliant SWPPP, it would be overreaching for EPA to specify which of them must develop the SWPPP, 

which is a business decision that should be made by and between the multiple operators. A better approach is to allow the multiple 

operators to work out amongst themselves which is responsible for developing the SWPPP on a given project, and then specify in the 

SWPPP the respective roles and responsibilities of each operator under that SWPPP. 

Response 

Refer to Response 8.1. 

Comment ID 0071-A3.001.037

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 8.1.2Q 
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• Part 8.1.2 Person(s) Responsible for Developing SWPPP. CDOT or a design consultant usually prepares the SWMP (SWPPP 

equivalent) and we put in the contract that it is the construction contractor's responsibility to update and maintain the SWMP so it 

matches site plans, schedules and conditions. 

Response 

Refer to Response 8.1. 

Comment ID 0074-A2.001.028

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: 8.1.2Q 

It is not necessary to require a primary owner/operator to be responsible for SWPPP development in multiple owners/operators cases. 

We believe the proposed permit, as well as the 2008 CGP does allow a primary owner/operator to develop a SWPPP to cover the whole 

project based on the agreement between this primary owner/operator and others. 

Response 

Refer to Response 8.1. 

Comment ID 0080-A2.001.037

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: 8.1.2Q 

Partner Response: The owner of the property or their designated agent is ultimately responsible for developing the SWPPP. For EPA to 

further clarify roles and responsibilities under the CGP is beneficial. On COA projects, the site operator who controls the construction 

activities occurring at the site is the entity that develops the SWPPP. This is appropriate since the site operator or prime contractor is 

accountable for CGP compliance as a result of his daily activities in the field. 

Response 

Refer to Response 8.1. 

Comment ID 0085-A2.001.026

Author Name: Charles Mark 

Organization: City of Rockville, Maryland 

Issue Category: 8.1.2Q 

Rockville supports the use of the Minnesota CGP as a model for managing multi-operator situations if EPA believes this will encourage 

the consideration of the SWPPP during the site design process. 

Response 

Refer to Response 8.1. 
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Comment ID 0087-A1.001.051

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: 8.1.2Q 

Section 8.1.2 (persons responsible for developing SWPPPs) – Requiring property owners to prepare the SWPPP for projects with 

multiple operators would not work for utility companies (e.g., gas, electric, communication) that conduct construction activities pursuant 

to leases, licenses, agreements, franchises, and other approvals. In such cases, the company conducting the construction typically will 

not own the land, and multiple owners may be involved over the entire length of the project. 

Response 

Refer to Response 8.1. 

Comment ID 0090-A1.001.028

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: 8.1.2Q 

AGA encourages EPA to consider in reference to Part 8.1.2. of the Draft Permit, that where multiple operators work within the same 

construction side, working under one SWPPP may create greater cohesion and uniformity in on-site erosion control. To this end, AGA 

asks EPA to modify its proposed requirement for secondary operators to be able to work under a primary operator's SWPPP, to include 

government contracts and projects like those of the Department of Transportation. 

Response 

Refer to Response 8.1. 

Comment ID 0091-A2.001.016

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 8.1.2Q 

16. Fact Sheet Item 25. Part 8.1.2: Recommend the permit remain flexible. In many cases it is appropriate for the site contractor/s to 

develop the SWPPP. The site contractor will establish the construction activities and phases for earth work. If the contractor develops 

and implements the SWPPP, the document should match the actual construction process to be utilized. The SWPPP is a dynamic 

document and must be changed for changing site conditions. As the site changes the SWPPP should change. Failing stormwater controls 

must be replaced as required. A flexible approach allows contractors, designers, or owners to develop the SWPPP. 

Response 

Refer to Response 8.1. 
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Comment ID 0091-A2.001.031

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 8.1.2Q 

Under the current permit many times the engineering firm on the project will develop the SWPPP for the operator. Could you verify 

whether this would still be allowed? Perhaps it would be better to require a SWPPP review by the Stormwater Team prior to any land 

disturbance, document this review in the training records and provide any updates or changes to the SWPPP that the team deems 

appropriate. 

Response 

Refer to Response 8.1. 

Comment ID 0093-A2.001.088

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 8.1.2Q 

The owner should develop the SWPPP. Likewise, the owner should have the responsibility to modify the plan though out project 

construction to completion so as to ensure compliance to turbidity limits and other regulatory requirements. 

EPA is correct in its conclusion that on large transportation and commercial construction projects, where the contract is awarded to the 

lowest bid, and the site design may have been developed without sufficient regard for storm water management and CGP compliance, it 

is very difficult to then later develop a SWPPP that complies with the permit, due to potential conflicts with the site plans. The result of 

these conflicts can be that the owner and the general contractor are forced to negotiate changes to the site plan, which arguably should 

have been part of the original design. 

In addition, by making the owner responsible for providing the initial SWPPP, it would force the owner and architect / engineer to 

address stormwater compliance during the planning stage in a holistic manner. It also insures that all contractors are informed up front as 

to what will be required of them to properly implement the SWPPP. This stipulation would remove all ambiguities as to what is required 

and would insure that project owners take an active role in insuring that contractors are complying with the SWPPP. 

Response 

Refer to Response 8.1. 

Comment ID 0097-A1.001.018

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: 8.1.2Q 

25. On large commercial projects, the Owner, or designated Developer, should be responsible fro the SWPPP. This will assure 

participation by the design team in the development of an appropriate plan. On residential projects, there is typically a single general 

contractor responsible for the project and so can be responsible for the SWPPP. 
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Response 

Refer to Response 8.1. 

Comment ID 0100-A2.001.016

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: 8.1.2Q 

Section 8.1.2 describes the person(s) responsible for developing the SWPPP. The City does agree with the recommendation to require 

that the owner be responsible for the SWPPP development. While this approach may sufficient in some instances, it not always the most 

favored. 

Response 

Refer to Response 8.1. 

Comment ID 0103-A3.001.018

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 8.1.2Q 

In Part 8.1.2 Persons Responsible for Developing SWPPP, EPA requests comments for who should be responsible for developing a 

SWPPP in situations with multiple operators. EPA was asked to propose that the party who possesses the title of the land, and has 

operational control over the construction plans and specifications, typically the owner, be the one responsible. 

TCEQ believes that in many situations, a general contractor may be better equipped to be the operator responsible for the site's SWPPP, 

and suggests providing flexibility for this to be determined on a site by site basis. 

Response 

Refer to Response 8.1. 

Comment ID 0112-A2.001.003

Author Name: Karimi Hamid 

Organization: DC Dept of Environment 

Issue Category: 8.1.2Q 

Section 8.1.2: Person(s) Responsible for Developing SWPPP 

The preparation of the SWPPP should be the sole responsibility of the developer or property owner since it is the developer/property 

owner who directly or indirectly finances the project. The responsibility of the site operator should be the implementation of the tasks 

outlined in the SWPPP in accordance with the developer/owners instructions. 
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Response 

Refer to Response 8.1. 

Comment ID 0115-A2.001.028

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 8.1.2Q 

8.1.2 Person(s) responsible for Developing SWPPP. The EPA has requested comments regarding who should be responsible for 

development of the SWPPP. National Grid always develops its own SWPPPs, even if not the "party who possesses the title of the land 

where the construction activity will take place". In some instances the ROWs are held as a form of easement, as opposed to being owned 

in fee. National Grid then takes the responsibility to train all operators that may be working on a project. National Grid has the 

operational control over construction plans and specifications. 

Response 

Refer to Response 8.1. 

Comment ID 0127-A2.001.013

Author Name: Brogan Elizabeth 

Organization: Brogan Land Development Group, LLC 

Issue Category: 8.1.2Q 

Section 8.1.2 

Proposed Language 

Any operator who seeks coverage under this permit must develop a SWPPP. Note that you have the option of developing a group 

SWPPP where you are one of several operators who will be engaged in construction activities at your site. For instance, if the 

construction site has a "primary operator" and at least one "secondary operator" (see Part 1.5.3), the primary operator may be the party 

responsible for SWPPP development, and the secondary operator(s) can choose to use this same SWPPP, as long as the SWPPP 

addresses all of the secondary operator(s) scope of construction work. 

Concern 

When two operators are co‐permittees on a project and one operator is a government or a quasi‐government agency, only one SWPPP 

should be developed by the operator that has day‐to‐day operational control of those activities at a project that are necessary to ensure 

compliance with the permit conditions (e.g. they are authorized to direct workers at the site to carry out activities required by the permit). 

Suggested Correction 

The operator that has day‐to‐day operational control of those activities at a project that are necessary to ensure compliance with the 

permit conditions (e.g. they are authorized to direct workers at the site to carry out activities required by the permit) should be the 
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operator responsible for developing and maintaining the SWPPP. The operator that has operational control over construction plans and 

specifications, including the ability to make modifications should oversee the work, but should not create a SWPPP. 

Response 

Refer to Response 8.1. 

Comment ID 0131-A1.001.026

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 8.1.2Q 

LBA supports leaving the language proposed in Part 8.1.2 as is, and, opposes mandating that the owner of the property develop the 

SWPPP. 

Because there are different operational models throughout the industry, there should be regulatory flexibility regarding who will develop 

the SWPPP. Determining who develops the SWPPP should be a decision that is made based on decisions between the owners/operators 

on who the most appropriate party to develop the SWPPP (i.e. who is going to conduct the activities on the project) and not on regulation. 

There are significant legal implications, fines and penalties that could be assessed if a SWPPP is non-compliant with the terms and 

conditions of the permit. If the SWPPP is written by an owner of a common plan development and the permit mandates that the SWPPP 

be used by secondary permittees, what guarantee does the secondary permittee have that the SWPPP is compliant with the requirements 

of the permit or appropriate for the specific acreage that the secondary permittee will be developing? What recourse will the secondary

owner/operator have against the primary operator if the SWPPP is non compliant? 

As an example, one member purchased a property in a common plan development where the owner of the development developed a 

SWPPP for the entire common plan development. The member had hoped that the SWPPP would be adequate and that it could be used

for the member's construction site. After review by the member, the SWPPP did not contain all the elements required by the permit. The 

member who purchased property in the common plan development had to amend the SWPPP so significantly that it might as well have 

developed its own SWPPP. If the member was required to use the SWPPP developed by the owner of the common plan development and 

if it was inspected and enforced upon by a regulatory agency, the member would be subject to severe fines and penalties even though it 

did not develop the SWPPP and had no control over the content. Additionally, consistent with LBA's comments in section I, above, 

regarding the potential implications of the Proposed CGP's joint and several compliance responsibility provisions, this illustrates the 

significant concerns associated with requiring an operator's compliance with a SWPPP developed without consideration of the specific 

portion of a larger development. 

EPA's request for comment recognizes that there are differences in the way homebuilders and other types of construction entities operate 

their businesses in multiple operator situations. This supports the fact that construction is not "one size fits all." 

The Proposed CGP should establish the criteria that are to be included in the SWPPP and leave the decision of who develops the SWPPP 

up to the operator that is actually going to develop the land. 

Response 
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Refer to Response 8.1. 

Comment ID 0133-A2.001.036

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 8.1.2Q 

MDT does not believe it is appropriate to designate property owners as responsible for developing the SWPPP. As discussed above, 

MDT's ability to dictate construction methodologies, sequencing, equipment, etc., which are necessary elements of the SWPPP, is 

limited. As such, the CGP should not specifY which party is responsible for SWPPP development in multiple operator situations. 

Response 

Refer to Response 8.1. 

8.1.3 REQUIREMENT TO DEVELOP SWPPP PRIOR TO SUBMITTING 

YOUR NOI

Comment ID 0019-A1.001.003

Author Name: Owens Kelly 

Organization: Bureau of Land Management (BLM) 

Issue Category: 8.1.3 

3.Paragraph 8.1.3 Requirement to Develop SWPPP Prior to submitting Your NOI a.It needs to be specified when the SWPPP needs to be 

submitted. 30 days before NOI? 90 days before NOI? In the case of construction on public land; it would be helpful if the SWPPP were 

developed in time to include it in the Proposed Action section of a NEPA analysis. Currently industry is often resistant to disclosing 

stormwater BMPs that they plan to use on public lands with land management agencies. This makes it difficult for land management 

agencies to do a thorough NEPA analysis. 

Response 

Refer to Response 8.1. 

8.2 SWPPP CONTENTS

Comment ID 0024-A2.001.005

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 8.2 
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Accordingly, EPA should revise the 2011 CGP to require that permittees include a comprehensive and enforceable plan for 

post-construction management in their stormwater pollution prevention plans ("SWPPPs"). To achieve adequate control of 

post-construction stormwater runoff, the permit should specifically require that the post-construction hydro graph of a site should match 

the preconstruction hydro graph to the maximum extent practicable. 

Response 

Refer to Response 8.1. 

8.2.1 STORMWATER TEAM

Comment ID 0021-A1.001.023

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: 8.2.1 

12. CGP Section 8.2.1 describes requirements for a Stormwater Team. Is it completely up to the permit holder's discretion as to how 

many members are part of this team and what their roles are? 

Response 

Refer to Response 8.1. 

Comment ID 0053-A2.001.040

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 8.2.1 

The term "team" connotes multiple individuals. Many instances of small construction activities will not have the financial means, or 

require a "team" of trained individuals. Consider revising the language to include an individual SWPPP person for smaller projects. 

Response 

Refer to Response 8.1. 

Comment ID 0066-A1.001.043

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: 8.2.1 

Discussion: The proposed rules state that the SWPPP must be developed prior to submitting the NOI, and as part of the SWPPP permit 

holders must name all members of the stormwater team. It is possible that at the time of NOI submittal state DOTs may not know all 

members of the team. 
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Suggestion: We suggest that permit holders be allowed to submit NOI without naming all members of the team. As team members are 

added then their names and positions should be added to the SWPPP. 

Response 

Refer to Response 8.1. 

Comment ID 0093-A2.001.089

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 8.2.1 

The term "team" connotes multiple individuals. Many instances of small construction activities will not have the financial means, or 

require a "team" of trained individuals. Consider revising the language to include an individual SWPPP person for smallerrojects. 

Response 

Refer to Response 8.1. 

Comment ID 0168-A1.001.023

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 8.2.1 

-- Please coordinate the requirements of Section 7, Training, with Section 8, SWPPP, so that documentation of Stormwater Team 

qualifications and training are included in the SWPPP. 

Response 

Refer to Response 8.1. 

8.2.2 NATURE OF CONSTRUCTION ACTIVITIES

Comment ID 0098-A1.001.020

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 8.2.2 

If it is EPA's position that off-site borrow/fill areas are a part of the common plan of development of a project and, thus, are a part of the 

project required to be authorized by a permit it should state that position clearly in the permit. In some cases, the operator of the principal 

construction site has no operational control over an off-site borrow/fill area that supports the site. EPA should carefully consider the 

alternative contracting arrangements under which borrow/fill capacity is provided in the industry and revise the Draft Permit to ensure 
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that the permitting of off-site facilities is required of, and only of, the "operators" of those sites as that term is defined in the permit. 

To the extent that such an area does not qualify as a part of the permitted construction project that it serves, the final permit should make 

clear that coverage under a separate permit may be required of the operator of that site. 

As to off-site staging and equipment storage areas, we believe that such areas do not satisfy the definition of "storm water associated with 

industrial activity" (40 C.F.R. 122.26(b)(14)(x)) and, thus, cannot lawfully be subject to permitting simply because they "support" an 

otherwise permittable construction project. 

Response 

Refer to Response 8.1. 

8.2.3 IDENTIFICATION OF OTHER SITE OPERATORS

Comment ID 0137-A2.001.020

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: 8.2.3 

It appears that all operators both primary and secondary need to be noted on the SWPPP (Erosion and Sediment Control Plan). We 

believe that this requirement will cause much legal confusion as to who is responsible and the primary operator will be unreasonably 

liable even if they did not create the problem. In some circumstances the primary operator may not have the legal of physical ability to 

prevent the problem. 

Response 

Refer to Response 8.1. 

Comment ID 0159-A1.001.008

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: 8.2.3 

It appears that all operators both primary and secondary need to be noted on the SWPPP (Erosion and Sediment Control Plan). This will 

require multiple plans in our jurisdiction as they want all parties responsible for the plan to take responsibility for what is on the plan. We 

believe that this requirement will cause much legal confusion as to who is responsible if the information is on one plan as they will point 

fingers at each other and the primary operator will be left resolving the problem even if they did not create the problem. This should be 

carefully thought through to make sure the correct party is held responsible for their lack of activity without involving others. 

Response 

Refer to Response 8.1. 
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8.2.4 SEQUENCE AND ESTIMATED DATES OF CONSTRUCTION 

ACTIVITIES

Comment ID 0025-A1.001.042

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 8.2.4 

For clarity's sake, "dates" should be "estimated dates" 

Response 

Refer to Response 8.1. 

Comment ID 0053-A2.001.041

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 8.2.4 

The Permit states: "Flagging or marking off of no disturbance areas, including all steep slope areas (see Part 2.1.1.1) and buffers (see Part 

2.1.2), and of setbacks for pollutantgenerating activities (see Part 2.3.2);" 

Consider revising the language to remove "steep slope areas". Typical linear transportation projects span great lengths and will have a 

majority of 3:1 slopes (33%) over the length of the project. This condition is onerous with no real benefit. (See comment number 2 

above). 

Response 

Refer to Response 8.1. 

Comment ID 0131-A1.001.032

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: 8.2.4 

8.2.4.) This Part requires the SWPPP to include the intended sequence, start dates and durations of several activities that will take place 

during construction. Providing the sequence of construction activity is achievable; however, it will be difficult if not impossible for the 

SWPPP writer or operator to estimate dates and durations for the following activities: 

• 8.2.4.4 If applicable, dates when total disturbances occurring at one time will require compliance with the numeric turbidity limit in 

Part 3.2; 
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• 8.2.4.5 Cessation, temporarily or permanently, of construction activities on the site, or in designated portions of the site; 

• 8.2.4.6 Final or temporary stabilization of areas of exposed soil. The dates for stabilization must reflect the applicable deadlines to 

which you are subject in Part 2.2.1.3 or Part 2.2.1.4; and 

• 8.2.4.7 Removal of temporary stormwater conveyances/channels and other stormwater control measures, removal of construction 

equipment and vehicles, and cessation of any pollutant-generating activities. 

LBA does not really see a purpose or value in including such detailed site specific information as start dates and durations for these 

items. Many of the requested dates will be complete unknowns at the time the SWPPP is developed and will only be able to be supplied 

as a "guestimate" that will need to be amended during the course of construction. 

The SWPPP should be a guidance document to guide the construction team on when to install BMPs that correspond to each 

construction activity. Asking for the anticipated start dates, stabilization dates and durations for the items in 8.2.4, other than 8.2.4.3, is 

asking for insignificant information that is difficult to determine in advance, and that has little relevance to minimizing the discharge of 

pollutants from a construction site. These requirements should be removed from the Proposed CGP. 

Response 

Refer to Response 8.1. 

8.2.5 SITE MAP

Comment ID 0019-A1.001.004

Author Name: Owens Kelly 

Organization: Bureau of Land Management (BLM) 

Issue Category: 8.2.5 

4.Paragraph 8.2.5.7 Locations of stormwater control measures a.I think this is a very good requirement to have. It ensures that the 

operator has really planned out what they are going to do to control stormwater and not allowing them to just say "we will control it." 

Response 

Refer to Response 8.1. 

Comment ID 0053-A2.001.042

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 8.2.5 

The Permit currently states: "Topography of the site, existing vegetative cover (e.g., forest, pasture, pavement, structures), and drainage 
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pattern(s) of stormwater and authorized non-stormwater flow onto, over, and from the site property before and after major grading 

activities;" 

Consider removing the criteria to indicate stormwater flow onto, over, and from the site property after major grading activities. A 

SWPPP is a living document and is required to be updated to reflect site conditions as the project progresses. This layer of stormwater 

flow to reflect post construction flows will not be accurate, has potential to add a layer of confusion for operators, and would be best 

represented in a separate series of maps. There is no benefit to this additional layer until ground-truthing of the project is nearing 

completion and the SWPPP detail sheets are updated to reflect actual conditions and flows. See Section 8.4. REQUIRED SWPPP 

MODIFICATIONS of the Permit. 

Response 

Refer to Response 8.1. 

Comment ID 0064-A1.001.045

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 8.2.5 

Section 8.2.5.2, page 55 - "Locations of all waters of the U.S., including wetlands that exist within or in the immediate vicinity of your 

site." 

•Please define "immediate vicinity." 

Response 

Refer to Response 8.1. 

Comment ID 0091-A2.001.032

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: 8.2.5 

32. Part 8.2.5.5.a Inlets to the sanitary sewer and on-site stormwater management features which might be impacted by the project 

should be included on the site map. 

Response 

Refer to Response 8.1. 

Comment ID 0115-A2.001.029

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 8.2.5 
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8.2.5 Site Map. Some of the requirements in the list provided in this part do not apply to linear utility projects. For example, National 

Grid very rarely collects topographic information as linear projects typically do not alter the topography along a ROW. We recommend 

that language be included that provides flexibility for linear utility projects. 

Response 

Refer to Response 8.1. 

Comment ID 0130-A2.001.032

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 8.2.5 

30. MAPPING. In 8.2.5.2, site mapping requirements, how does EPA define "within the immediate vicinity of your site"? 100 yards 

from the project limits, 0.25 miles, 1 mile? A more definitive expectation should be included in the permit. 

Response 

Refer to Response 8.1. 

8.2.6 SITE PLANNING DOCUMENTATION

Comment ID 0053-A2.001.043

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 8.2.6 

38. Page 56; Part 8.2.6.1 Steep slope disturbances. The Permit states: "If avoiding disturbance to such steep slopes is considered 

infeasible, or inconsistent with the requirements of the project, you must document how you intend to comply with the Part 2.1.4.2 

requirements applicable to steep slope disturbances." 

Compliance with Part 2.1.4.2 is not attainable. In Part 2.1.4.2.c the Permit states that installation or application of all non-vegetative 

measures be complete within 3 working days of stabilization initiation for the greater than 15% slope areas and/or vegetation 

establishment. No plant can be established, meaning independently viable, within 3 days. It can be planted, or installed. Consider 

changing the word "established". 

Typical linear transportation projects span great lengths and will have a majority of 3:1 slopes (33%) over the length of the project. In the 

arid southwest, initiation of vegetative cover or even non-vegetative cover within 3 working days will prove to be unachievable. 

Consider including provisions for linear transportation projects and more consideration for the arid southwest should be taken into 

consideration. 

Response 
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Refer to Response 8.1. 

Comment ID 0053-A2.001.045

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 8.2.6 

The Permit states: "If disturbance to native topsoil is necessary, you must document how you intend to comply with the Part 2.1.3.5 

requirements applicable to stockpiling and reapplication of the removed native topsoil." 

In referenced Part 2.1.3.5, the Permit States: "Where disturbance to native topsoil will occur at your site, unless infeasible, you should 

stockpile and reuse it in areas that will be stabilized with vegetation if applicable." 

No permittee will claim stockpiling of topsoil to be feasible and therefore never adhere to this clause. Furthermore, the direction to 

stockpile uses the words "should" and "if applicable". These words are neither regulatory, nor legally binding. 

Consider revising the language in this clause to replace the phrase: ", unless infeasible, you should stockpile and reuse it in areas that will 

be stabilized with vegetation if applicable." with: When topsoil is present at the site, stockpile and reuse it in areas that will be stabilized 

with vegetation. 

Response 

Refer to Response 8.1. 

Comment ID 0115-A2.001.030

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 8.2.6 

8.2.6 Site Planning Documentation. National Grid currently requires compliance with this part as part of its internal environmental 

guidance. National Grid is in support of this part.

Response 

Refer to Response 8.1. 

8.2.7 COMPLIANCE WITH IMPAIRED WATERS AND 

ANTIDEGRADATION REQUIREMENTS

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

8.2.8 CONSTRUCTION SITE POLLUTANTS
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Comment ID 0062-A1.001.053

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: 8.2.8 

Brevard County Comment: Listing all activities that could potentially produce pollutants may be impractical, or at least inaccurate in 

noting potential pollutants. Perhaps EPA could supply a check box list of activities of concern such as exterior painting, on site 

fueling.... To provide a better indication. 

Response 

Refer to Response 8.1. 

8.2.9 NON-STORMWATER DISCHARGES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

8.2.10 DESCRIPTION OF STORMWATER CONTROL MEASURES

Comment ID 0025-A1.001.043

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 8.2.10 

Some agencies may have specifications that are more prescriptive, consider adding "Any manufacturer's or owner's specifications ... "?

Response 

Refer to Response 8.1. 

Comment ID 0037-A1.001.055

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 8.2.10 

Part 8.2.10.g requires that the operator must include any manufacturer's specifications for installation or maintenance of any stormwater 

control measure that is used. There are situations where the operator may prefer to install and maintain a stormwater control measure 

according to the industry standard and good engineering practice rather than the manufacturer's installation specifications. Some 

stormwater control measures, e.g., earthen berm, sediment trap, or stormwater detention ponds, are constructed on site and not 

pre‐manufactured. It is recommended that this requirement is revised as follows: "Specifications for installation and maintenance based 

on the industry standard and good engineering practice including manufacturer's specifications where appropriate." 
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Response 

Refer to Response 8.1. 

Comment ID 0168-A1.001.022

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: 8.2.10 

-- Include requirements for documenting any chemical additives used, including the dosages used, applicable Material Data Safety 

Sheets (MSDS), manufacturer's application instructions and subsequent monitoring results. 

Response 

Refer to Response 8.1. 

8.2.11 POLLUTION PREVENTION PROCEDURES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

8.2.11.1 SPILL PREVENTION AND RESPONSE PROCEDURES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

8.2.11.2 PROCEDURES FOR THE CLEAN-UP OF SEDIMENT

Comment ID 0053-A2.001.046

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: 8.2.11.2 

Part a. of the Permit states: "Sweeping or removal of sediment and other debris that has been tracked or deposited onto streets and other 

paved surfaces;" 

Many sites have streets or paved surfaces within project boundaries with proper BMPs adequately preventing pollution from the site. Is 

it the intent of EPA to require all slabs and old parking lots within construction/demolition project boundaries be cleaned? 

Consider revising the language to read: Sweeping or removal of sediment and other debris that has been tracked or deposited onto 

publicly accessible streets and other paved surfaces unrelated and external to your project site. 

Response 
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Refer to Response 8.1. 

8.2.11.3 WASTE MANAGEMENT PROCEDURES

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

8.2.12 PROCEDURES FOR INSPECTION, MAINTENANCE, CORRECTIVE 

ACTION, AND MONITORING.

Comment ID 0037-A1.001.056

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 8.2.12 

This Part requires the operator to provide schedules for conducting inspections "including any higher frequency inspections consistent 

with Parts 2.1.4.2c and 4.2.2.2." However, the Parts listed do not address inspections or inspection frequency. EPA should verify that the 

correct Parts of the permit are being referenced. 

Response 

Refer to Response 8.1. 

8.2.13 TRAINING

Comment ID 0093-A2.001.090

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: 8.2.13 

This section should be removed. It is redundant and just causes more paper work. The staff training requirements are already covered in 

Part 7. 

AGC recommends that all EPA inspectors be required to successfully complete training programs with instruction in construction 

applications. AGC members report that many field inspectors are greatly lacking in practical field applications. 

Response 

Refer to Response 8.1. 
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8.2.14 DOCUMENTATION TO SUPPORT ELIGIBILITY 

CONSIDERATIONS UNDER OTHER FEDERAL LAWS.

Comment ID 0075-A2.001.033

Author Name: McOmie Delbert 

Organization: Wyoming Department of Transportation 

Issue Category: 8.2.14 

See comments under Part 1.5.1- NEPA documents already exist in public record on federal highway projects as to threatened and 

endangered species and historic properties, why repeat this determination? 

[See comment ID 0075-A2.001.002.] 

Response 

Refer to Response 8.1. 

8.2.15 SWPPP CERTIFICATION.

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

8.2.16 POST-AUTHORIZATION ADDITIONS TO SWPPP

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

8.3 ON-SITE AVAILABILITY OF YOUR SWPPP

Comment ID 0019-A1.001.005

Author Name: Owens Kelly 

Organization: Bureau of Land Management (BLM) 

Issue Category: 8.3 

5.Paragraph 8.3 On-Site Availability of Your SWPPP a.I recommend also requiring (if applicable) a representative of the appropriate 

land management agency to have access to the SWPPP and relative monitoring records. This could possibly aid land management 

agencies to plan resource monitoring and not overlap with work that is already being done. 

Response 

Refer to Response 8.1. 
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Comment ID 0025-A1.001.044

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: 8.3 

"If an onsite location is unavailable ... notice of the plan's location must be posted .... " Is not the sign required in Section 1.6 sufficient for 

this purpose? 

Response 

Refer to Response 8.1. 

Comment ID 0064-A1.001.046

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 8.3 

Section 8.3, page 60 - Full "On-Site Availability of Your SWPPP" section 

•Please confirm this suggests an electronic SWPPP is acceptable. We would support EPA's push to make SWPPPs paperless. 

Response 

Refer to Response 8.1. 

Comment ID 0115-A2.001.031

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: 8.3 

8.3 On-Site Availability of Your SWPPP. National Grid is in support of access to downloadable files 

Response 

Refer to Response 8.1. 

8.3.1 PUBLIC AVAILABILITY OF SWPPP 

- INCLUDE IN NOI SUBMISSION 

- UPDATED SWPPPS SHOULD BE MADE PUBLICLY AVAILABLE 

Comment ID 0012-A1.001.003
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Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: 8.3.1 

Stormwater Pollution Prevention Plans SWPPPs should be submitted to the permitting authority and available for the public to view. 

Regular inspection reports and reporting releases of reportable quantities of hazardous substances. are a public health and safety issues 

and should be made public. 

Comment ID 0024-A2.001.009

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 8.3.1 

Finally, we support EPA's move towards electronic NOls and other changes that will increase the public's notice and opportunity to 

participate in the authorization and enforcement aspects of the COP. However, we are concerned that EPA's position on public access to

SWPPPs falls short of what the Clean Water Act ("CWA") requires. As set forth in more detail below, we urge EPA to expressly provide 

for public access to the initial and any revised versions of the SWPPPs. 

Response 

Refer to Response 8.1. 

Comment ID 0024-A2.001.021

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: 8.3.1 

An all-electronic process that makes NOIs publicly accessible through EPA's website will serve the Clean Water Act goal of furthering 

public participation. As EPA has stated in the proposed 20 I I fact sheet, during the extended 30-day waiting period, the public will have 

an opportunity to review the NOIs, to request to review the SWPPPs, and to provide feedback to EPA. [FN 2] These are positive changes 

that will greatly improve the opportunity for public participation in implementing and enforcing the CGP. However, we believe 

additional changes are necessary to sufficiently comply with the CW A requirements governing public participation. Specifically, EPA 

should expressly require permittees to submit their initial SWPPPs to EPA along with their NOIs so that the public can review the 

SWPPPs without having to file a request. Additionally, EPA should require permittees to make any updated SWPPPs publicly available. 

Public participation in the issuance and enforcement ofNPDES permits is a critical component of the CWA. See Castle v. Pac. Legal 

Found., 445 U. S. 198,216 (1980) (noting the "general policy of encouraging public participation is applicable to the administration of 

the NPDES permit program."); Waterkeeper Alliance, Inc. v. United States EPA, 399 F.3d 486, 503 (2d Cir. 2005) ("Congress clearly 

intended to guarantee the public a meaningful role in the implementation of the Clean Water Act."). As provided by the very first section 

of the Act: 

Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program 

established by the Administrator, or any State under this chapter shall be provided for, encouraged, and assisted by the Administrator and 

the States. 
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CWA, § 101(e), 33 U.S.C. § l251(e). Consistent with this broad policy of providing for and encouraging public participation, the Act 

authorizes "any citizen" to bring a civil suit for violations of the Act. 33 U.S.C. § 1365(a). 

EPA's draft 201 I CGP allows the public to request to review the initial SWPPPs, see EPA 20 II Fact Sheet at 26, but does not expressly 

state that it will allow public access to the initial or any subsequent versions of the SWPPP, see id. at 29. [FN 3] By failing to expressly 

provide for public access to SWPPPs, the draft 2011 CGP deprives the public of its right to assist in the "'development, revision, and 

enforcement of any regulation, standard, effluent limitation, plan, or program established by [EPA]" under the Act. 33 U.S.C. § 1251(e) 

(emphasis added); see Waterkeeper Alliance, 399 F.3d at 503-04 (holding EPA's NPDES general permit program governing combined 

animal feeding operations violated 33 U.S.C. § l251(e) by failing to provide public access to the nutrient management plans required for 

coverage under that program)). The SWPPPs are the site-specific plans describing what permittees will do to comply with the terms of 

the CGP. Without access to SWPPPs, the public has no ability to meaningfully participate in the enforcement of the CGP because they 

have no way of determining whether the permittee is implementing its SWPPP or otherwise complying with the terms of the CGP. 

Accordingly, EPA must expressly make the initial and any subsequent versions of the SWPPPs publicly accessible through its website 

and/or by requiring permittees to allow public access onsite, during reasonable working hours. 

[FN 2] EPA draft 2011 fact sheet at 26, available at http://www.epa.gov/npdes/pubs/cgn proposedfs.pdf. 

[FN 3] Specifically, EPA's proposed 2011 fact sheet states: permittees are only required to provide copies of the SWPPP, upon request, 

to EPA; a state, tribal or local agency approving stormwater management plans; the operator of a storm sewer system receiving 

discharges from the site; or representatives of the U.S. Fish and Wildlife Service (USFWS) or the National Marine Fisheries Service 

(NMFS). EPA may provide access to portions of the SWPPP to a member of the public upon request. 

2011 Fact Sheet at 29 (emphasis added). We urge EPA, at the very least, to return to position it took with respect to public access in its 

2008 fact sheet, wherein it stated: The permit does not require that the general public have access to the construction site nor does it 

require that copies of the plan be available or mailed to members of the public. However, EPA strongly encourages permittees to provide 

public access to SWPPPs at reasonable hours. Upon request, EPA intends to assist members of the public in obtaining access to 

permitting information, including SWPPPs. 

EPA 2008 fact sheet at 44 (emphasis added), available at http://www.epa.gov/npdes/pubs/cgn2008 fmalfactsheet.pdf. 

Response 

Refer to Response 8.1. 

Comment ID 0112-A2.001.004

Author Name: Karimi Hamid 

Organization: DC Dept of Environment 

Issue Category: 8.3.1 

Section 8.3: On-Site Availability of Your SWPPP 

The District stormwater regulations will require construction site operators to keep the SWPPP on the site. However, EPA should make 
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available from its website an electronic copy of the SWPPP submitted by the permittees that can be easily retrieved by the public and 

stakeholders. 

Response 

Refer to Response 8.1. 

8.4 REQUIRED SWPPP MODIFICATIONS

Comment ID 0071-A3.001.024

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 8.4 

•Part 8.4. Required SWPPP modifications. 1.3. Clarify... "inspections or investigations by site staff," to read, "inspections or 

investigations by the site's Stormwater Team, as identified in the SWPPP..." This clarification will insure that the SWPPP is not 

modified by unqualified staff. 

Response 

Refer to Response 8.1. 

8.4.1 YOU MUST MODIFY YOUR SWPPP, INCLUDING THE SITE MAP(S), 

IN RESPONSE TO ANY OF THE FOLLOWING CONDITIONS:

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

8.4.2 LOG OF SWPPP MODIFICATIONS

Comment ID 0071-A3.001.025

Author Name: Willard Rick 

Organization: Colorado Department of Transportation (CDOT) 

Issue Category: 8.4.2 

•Part 8.4.2 Log of SWPPP Modifications. Do modifications include any changes to the site map? Modifications to the site map will 

usually occur daily and are already dated and initialed. This will be a lot of tracking changes and seems redundant. 

Response 

Refer to Response 8.1. 
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Comment ID 0098-A1.001.021

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 8.4.2 

We suggest that EPA use the term "record" instead of "log" in this Part so that the requirement is not construed to require entry of data 

into some specific "log book," but simply the recordation of the data in a written document of some kind. 

Response 

Refer to Response 8.1. 

8.4.3 DEADLINES FOR SWPPP MODIFICATIONS

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

8.4.4 REQUIRED NOTICE OF OTHER OPERATORS

Comment ID 0064-A1.001.047

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: 8.4.4 

Section 8.4.4, page 61 - "Upon determining that a modification to your SWPPP is required, if there are multiple operators covered under 

this permit, you must immediately notify any operators who may be impacted by the change to the SWPPP." 

•This requirement seems subjective. If multiple operators are on a project, they will all sign the weekly or biweekly inspection form 

indicating Action Items/Corrective Actions and corresponding changes to SWPPP. This signature requirement seems sufficient as an 

effective means of notifying operators of SWPPP modifications. 

Response 

Refer to Response 8.1. 

 
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Construction General Permit 

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Issue Category: 9, 9.1, 9.2, 9.3, 9.4, 9.5

 
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9 HOW TO TERMINATE COVERAGE

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

9.1 MINIMUM INFORMATION REQUIRED IN NOT

Comment ID 0038-A1.001.019

Author Name: Minervini W. 

Organization: 

Issue Category: 9.1 

Change "MINIMINUM INFORMATION REQUIRED IN NOT" to "MINIMUM INFORMATION REQUIRED IN NOT." (emphasis 

added) 

Response 

EPA appreciates the suggestion and has edited the permit accordingly. See Part 8.1 of the final permit. 

9.2 CONDITIONS FOR TERMINATING PERMIT COVERAGE

Comment ID 0037-A1.001.057

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: 9.2 

Part 9.2.1 references Part 1.1 with respect to permitted construction support activities. Part 1.1 does not address construction support 

activities; however, Part 1.4.1.3 does. EPA should verify that the correct part of the permit is being referenced 

Response 

EPA appreciates the suggestion and has edited the permit accordingly. See Part 8.2.1 of the final permit. 

Comment ID 0098-A1.001.022

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: 9.2 

Please clarify if the word "who" as used in this Part refers to a person's name, a position title, a company entity or a maintenance 

contractor. If any of these is acceptable, please clarify that. In addition, we believe that requiring an individual's name or that of a 

contractor raises the possibility that the information will become stale when personnel or contractors change and, as a result, impose an 

unnecessary burden on permittees to update their records every time a change of that nature occurs. 

Response 
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Refer to Response 1.6.7. 

Comment ID 0130-A2.001.033

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: 9.2 

31. NOT FILING. Part 9.2.1.5 indicates "you must identify who is responsible for ongoing maintenance of any SW controls left on the 

site for long-term use following your termination of permit coverage". There is nowhere on the NOT form to make this identification. Is 

it the EPA‟s intent that this information be placed in the project SWPPP and not on the NOT itself? 

Response 

Refer to Response 1.6.7. 

Comment ID 0133-A2.001.037

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 9.2 

Section 9.2.1.3 of the CGP requires removal of all stormwater controls that were installed and maintained during construction, except 

those that are intended for long-term use. MDT would like clarification as to what constitutes "long-term" use. Additionally, provisions 

should be included to allow biodegradable controls to be left in place. 

Response 

Refer to Response 1.6.7. 

9.3 SUBMIT NOTS THROUGH ENOI SYSTEM

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary.

9.4 DEADLINES FOR SUBMITTING NOTS

Comment ID 0133-A2.001.038

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: 9.4 

The proposed permit condition requires submittal of an Notice of Termination (NOT) within 30 days of any trigger event listed in the 

permit being realized. This timeframe is not always practicable for MDT forces, nor does it seem necessary to force permit termination 

within a specified timeframe. As such, MDT does not believe a deadline should be specified for submitting NOTs. 

Response 
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Refer to Response 1.6.8. 

9.5 EFFECTIVE DATE OF TERMINATION OF COVERAGE

No Comments are Applicable to this Issue Category, and Thus No Response is Necessary. 

 
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Construction General Permit 

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10 PERMIT CONDITIONS APPLICABLE TO SPECIFIC STATES, INDIAN 

COUNTRY LANDS, OR TERRITORIES

Comment ID 0011-A2.001.003

Author Name: Colón-Zavala Emilio 

Organization: ECZ Group, Inc. 

Issue Category: 10 

This will allow EPA, with the participation of affected shareholders, such as PRHA members to develop CGP permit conditions that, 

while protecting the quality of Commonwealth waters in a cost effective manner, will permit the introduction of streamlining measures, 

advocated by the NAHB and the PRHA, such as the Single Lot Permit and the Qualifying Local Program (QLP). The PRHA is 

particularly interested, and has commenced efforts in that direction, of securing local agency backing to the implementation a QLP in 

Puerto Rico. 

Response 

Refer to Response 13.1. 

Comment ID 0103-A2.001.002

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 10 

In Texas, the NPDES program, including the authority for the construction storm water program (except oil and gas), is delegated to the 

TCEQ. As the permitting authority, TCEQ has the authority to issues NPDES permits consistent with federal rules. EPA's proposed CGP 

contains many prescriptive requirements that go well beyond the requirements of federal rule and which may not be appropriate for 

Texas. In reissuing Texas' Construction General Permit, the TCEQ may elect to maintain the flexibility for choosing best management 

practices or propose different best management practices that will meet the requirements of federal rules. 

Response 

Refer to Response 2.1.1. 

Comment ID 0103-A3.001.002

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: 10 

In Texas, the NPDES program, including the authority for the construction storm water program (except oil and gas), is delegated to the 

TCEQ. As the permitting authority, TCEQ has the authority to issues NPDES permits consistent with federal rules. EPA's proposed CGP 

contains many prescriptive requirements that go well beyond the requirements of federal rule and which may not be appropriate for 

Texas. In reissuing Texas' Construction General Permit, the TCEQ may elect to maintain the flexibility for choosing best management 

practices or propose different best management practices that will meet the requirements of federal rules. 

Response 
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Refer to Response 2.1.1. 

 
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Construction General Permit 

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Issue Category: APP.A

 
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APP.A DEFINITIONS AND ACRONYMS

Comment ID 0018-A2.001.003

Author Name: Pollock Dr. 

Organization: Ocean County Soil Conservation District (OCSCD) 

Issue Category: APP.A 

Definition of the Term "Minimize" - important to provide this clarification. The 2003 CGP did not include a definition of the term 

"minimize." However, that permit used the term frequently, in addition to the terms "eliminate or reduce" and "prevent." The permit also 

used phrases such as "where practicable" and "to the extent feasible," without providing a consistent definition of those terms. In 

response to comments, EPA determined that it was beneficial to use these terms consistently, especially where the Agency intended that 

these words be used inter-changeably. Consistent with the control level requirements of the CWA, in this final permit EPA is clarifying 

that the term "minimize" means to reduce and/or eliminate to the extent achievable using control measures (including best management 

practices) that are technologically available and economically achievable and practicable in light of best industry practice. Therefore, 

wherever this term is used in Part 3, the permittee now has a consistent definition for what EPA intends by this requirement. 

Response 

Refer to Response 9.1. 

Comment ID 0038-A1.001.020

Author Name: Minervini W. 

Organization: 

Issue Category: APP.A 

"Action Area" At the beginning of the fifth bulleted item, insert "areas" immediately after "The". 

Response 

Refer to Response 9.1. 

Comment ID 0038-A1.001.021

Author Name: Minervini W. 

Organization: 

Issue Category: APP.A 

"Impervious Surface" Does this term include (for purposes of the CGP) porous pavement (e.g., on roads, sidewalks, or parking lots) or 

vegetated rooftops, if such pavement or rooftops are designed to have high capacity for soil infiltration? 

Comment ID 0038-A1.001.022
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Author Name: Minervini W. 

Organization: 

Issue Category: APP.A 

"Linear Project" Expand this definition to include construction of railroads and pedestrian or bicycle trails. 

Response 

Refer to Response 9.1. 

Comment ID 0038-A1.001.023

Author Name: Minervini W. 

Organization: 

Issue Category: APP.A 

"Perennial Stream" The second sentence should begin "In most perennial streams". In some perennial streams, dry weather flow is 

maintained by other sources such as reservoir releases, wastewater effluent, or melting snowpacks or glaciers. 

Response 

Refer to Response 9.1. 

Comment ID 0062-A1.001.054

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: APP.A 

"Prohibited Discharges" -discharges that are not allowed under this permit, including: 

1 Wastewater from washout of concrete; 

2 Wastewater from washout and cleanout of stucco, paint, form release oils, curing compounds and other construction materials; 

3 Fuels, oils, or other pollutants used in vehicle and equipment operation and maintenance; 

4 Soaps or solvents used in vehicle and equipment washing; 

5 Toxic or hazardous substances from a spill or other release; and waste, garbage, floatable debris, construction debris, and sanitary 

waste from pollutant-generating activities. 

Brevard County Comment: If vehicle and equipment wash water is prohibited from being discharged then the use of soaps and solvents 

is irrelevant. 

Response 

Refer to Response 9.1. 
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Comment ID 0066-A1.001.005

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: APP.A 

The definition of "Operator" in Appendix A does not match the definition of "Operator" in Part 1.2. Whereas Part 1.2 defines an 

"operator" to include the party that "has operational control over construction plans and specifications, including the ability to make 

modifications to those plans and specifications," Appendix A defines an "operator" to include the party that "possesses the title of the 

land where the construction activity will take place and has operational control over construction plans and specifications, including the 

ability to make modifications to those plans and specifications." The addition of the underlined phrase in the Appendix A definition is 

unjustified and not explained. Possession of title to land is, traditionally, neither required nor sufficient for an entity to qualify as an 

"operator" for purposes of NPDES permit coverage. For these reasons, the underlined phrase should be deleted from the definition in 

Appendix A. 

Response 

Refer to Response 9.1. 

Comment ID 0067-A1.001.006

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: APP.A 

B. Verbiage in the draft regarding the person responsible for filing the NOI/Storm Water Pollution Prevention Plan suggests that the 

person holding title to the property could be held accountable for compliance, even though a right-of-way operator (for example) is the 

applicant for and holder of the CGP. To the contrary, most electric utility linear projects are constructed and maintained on servitudes or 

easements. The landowners are typically not involved in the design or details of the construction project or in regulatory compliance 

issues. 

Response 

Refer to Response 9.1. 

Comment ID 0091-A2.001.022

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: APP.A 

22. Part 2.3.2.5 b.ii: Appendix A indicates that Toxic Waste is Hazardous Waste. Hazardous Waste in defined in the Resource 

Conservation and Recovery Act (RCRA). I am not aware of a regulatory definition of Toxic Waste. A regulatory definition should be 

provided. Labeling a container Hazardous/Toxic Waste is not consistent with the container marking requirements in 40 CFR 262.32, or 

49 CFR part 172. Permitees should not be directed to violate the law. 
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Response 

Refer to Response 9.1. 

Comment ID 0098-A1.001.023

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.A 

We suggest that the definition of "Earth disturbing activities" be expanded to include activities such as filling. 

Response 

EPA agrees. See Appendix A. 

Comment ID 0098-A1.001.024

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.A 

Definition of this term should be expanded to include well point dewatering and draining of any impoundments such as ponds or lakes

Response 

Refer to Response 9.1. 

Comment ID 0098-A1.001.025

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.A 

In the construction industry the term "footprint" typically refers to the boundaries of a building pad. Because the intent here is to identify 

the "limits of disturbance," we suggest that this latter phrase be substituted for the term "footprint." 

Response 

Refer to Response 9.1. 

Comment ID 0098-A1.001.026
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Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.A 

We suggest rewording this definition to read: "A structure placed at or below grade used to collect stormwater runoff for conveyance 

purposes." 

Response 

Refer to Response 9.1. 

Comment ID 0098-A1.001.027

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.A 

We suggest adding the term "BMP" to the list of acronyms. 

Response 

Refer to Response 9.1. 

Comment ID 0100-A2.001.005

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: APP.A 

The USEPA should define "immediately." 

Response 

Refer to Response 9.1. 

Comment ID 0130-A2.001.041

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: APP.A 

In the definition of Benchmark Monitoring in Appendix A, it states "As used in this permit, the benchmark monitoring requirement only 

applies to sites with disturbances of 10 or more acres that discharge to sediment and/or nutrient-impaired waters without an 

EPA-approved or established TMDL." In Permit Part 4.2.2, it states "if you discharge to an impaired water that is impaired for sediment 

or a sediment-related parameter ... .... .... , including impaired waters for which a TMDL has been approved or established for the 

impairment, you are required to comply with the following stormwater control requiremenls .... _ .... Those controls being benchmark 
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monitoring. These seem to be contradictory statements and require clarification or correction. 

Response 

EPA notes that the 2012 CGP does not define benchmark monitoring. 

 
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Construction General Permit 

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APP.B PERMIT AREAS ELIGIBLE FOR COVERAGE

Comment ID 0025-A1.001.045

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: APP.B 

In the 2008 permit, the White Mountain Apache Tribe required a copy of the NO!. Has that changed with this proposed permit? 

Response 

Refer to Response 9.2. 

 
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Construction General Permit 

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APP.C SMALL CONSTRUCTION WAIVERS AND INSTRUCTIONS

Comment ID 0025-A1.001.046

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: APP.C 

" ... and retain a copy of the revised waiver as a part of your SWPPP." Ifthe contractor has a waiver, they will not have a SWPPP. Perhaps 

they should just keep a copy of the revised waiver on-site? 

Response 

Refer to Response 9.3. 

 
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APP.D ENDANGERED SPECIES ACT REQUIREMENTS

Comment ID 0009.001.001

Author Name: Anonymous Anonymous 

Organization: 

Issue Category: APP.D 

Appendix D is unworkable and EPA is shirking its Endangered Species Act responsibilities by not providing clear guidance on the type 

of stormwater discharges and their effects to a variety of different endangered species. The EPA should do a programmatic consultation 

under Section 7 of the ESA with the USFWS to identity which species may be adversely affected and to what extent. In this way, the 

agencies could identify measures to reduce the impacts to endangered species and their habitats. The current situation of having each 

construction agent responsible for a development contact each USFWS office is inefficient, and does not result in any measurable 

conservation benefit as would having more definitive guidance on the type of activities during construction, how they may affect 

federally listed species and how those activities can be curtailed to minimize effects. The current process neglects EPA's section 7(a)(1) 

responsibilities and does not meet the needs and requirements under section 7(a)(2). The EPA has not updated its analysis during this 

time frame with changes in species and their habitats. Impacts from construction such as erosion and sedimentation have not been 

identified with best management practices such that improvements can be tracked or analyzed, and the requirements for contact by the 

applicants instead of EPA skirts the requirements under the ESA. The frustration experienced by the applicants under this permit is 

monumental and likely expensive to legitimate business and government operations. With a system of endangered species act 

consultation in this permit that is so disfunctional and broken, it is unreasonable to continue it for even 2 more years. The EPA should 

evaluate the effectiveness of the conservation benefit provided to listed species by implementation of Appendix D methods versus the 

benefit provided by formal consultation with the USFWS and generation of a biological opinion and guidance document that works. Joel

Response 

Refer to Response 9.4. 

Comment ID 0034-A1.001.013

Author Name: Schregardus Donald 

Organization: Dept of the Navy 

Issue Category: APP.D 

13. Endangered Species Act Requirements 

Proposed Requirement/Section Addressed: CGP Appendix D, Endangered Species Act Requirements 

Comment: Ensure that eligibility criteria receive public review. 

Discussion: It is not clear if the eligibility criteria mentioned in the Appendix will be promulgated for public review after EPA completes 

its consultation with USFWS and NMFS. The text notes that the eligibility criteria are draft and subject to change. Since the criteria are 

subject to change EPA is not, in a substantive way providing an opportunity to review and comment. This is an important issue to DoD 

as eligibility has been declined in the past causing uncertainty in efficient construction project progress which can impact schedule and 
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cost. 

Recommendation: Recommend that EPA promulgate the final eligibility criteria after consultation with USFWS and NMFS is complete 

to allow for public review and comment. 

Response 

Refer to Response 9.4. 

Comment ID 0168-A1.001.021

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: APP.D 

-- Please remove the requirements for listing endangered species and historical properties. There are irrelevant to Stormwater 

Management. 

Response 

Refer to Response 9.4. 

 
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APP.E HISTORIC PROPERTIES REQUIREMENTS

Comment ID 0048-A1.001.001

Author Name: State Brona 

Organization: Massachusetts Historical Commission (MHC) 

Issue Category: APP.E 

The draft Appendix E, "Historic Properties Requirements" is not consistent with the Advisory Council on Historic Preservation's 

regulations 36 CFR 800 that implement Section 106 of the National Historic Preservation Act of 1966 as amended. 

Appendix E has applicants or their consultants make critical decisions and determinations about the presence of or effects on historic 

properties, and requires them to enter into consultations and agreements to mitigate or avoid adverse effects with the SHPO without the 

participation of the EPA. 

Under 36 CFR 800, however, these are EPA's responsibilities to meet the requirements of Section 106 of the National Historic 

Preservation Act. While the EPA may formally delegate some initial steps in the process (36 CFR 800.2(a)(3) and 800.2(c)(4)), EPA 

remains legally responsible for all findings and determinations. The responsibilities to make determinations of adverse effect, to 

participate in consultation, and to enter into agreement documents cannot be wholly delegated to applicants or their consultants (36 CFR 

800.2(a), and 800.3 to 800.6). 

Appendix E can be shortened, written in plain language, and made consistent with the steps in 36 CFR 800. MHC suggests that the 

following text be substituted for Appendix E: 

Section 106 of the National Historic Preservation Act of 1966 as amended (16 USC 470f) requires the EPA to take into account the, 

direct or indirect effects to historic properties from undertakings (projects) for which EPA provides funding or issues permits. The 

federal regulations that implement Section 106 are "Protection of Historic Properties 36 CFR 800" (available at www.achp.gov). The 

EPA has determined that activities carried out under this EPA program are projects that require review and consideration to be in 

compliance with the federal historic preservation law and regulations. 

Applicants or their consultant need to answer the question and follow the procedures below to assist EPA in compliance with 36 CFR 

800. 

Does the project involve new construction, or the demolition or rehabilitation of existing buildings or other structures or facilities? 

If no, then the applicant should certify that fact in writing and file the statement with the EPA. Based on that statement, EPA will 

document that the project has "no potential to cause effects" (36 CFR 800.3(a)(1)). EPA has no further obligations under the Section 106 

regulations. 

If yes, then the applicant or their consultant should submit project information to the State Historic Preservation Officer (SHPO) that 

consists of: 
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• The project name; project location / address; complete contact information for the project proponent and for the person submitting the 

information; 

• A list of all federal and state permits and funding required for the project; 

• A narrative description of the project including a description of any proposed demolition or rehabilitation of any structure(s) with a 

description of the structure(s); 

• USGS map section with the actual project location and boundaries clearly indicated; 

• Scaled project plans showing existing and proposed conditions; and 

• Current photographs of the project area keyed to the plans. 

(1) Mail or deliver your submittal to the State Historic Preservation Officer. See http://www.ncshpo.org for address. 

(2) Provide a copy of your submittal to the EPA. 

(3) Provide a copy of your submittal to the town or city government historical commission, and for projects within "local historic 

districts" also provide a copy of your submittal to the town or city government local historic district commission. The contact addresses 

for local historical and historic district commissions are at the town or city hall. 

The SHPO will comment within thirty days of receipt of complete submittals, and may ask for additional information. The EPA will 

consult with the SHPO and other consulting parties (which includes the applicant) and EPA will proceed with the steps in the federal 

regulations (36 CFR 800.2 to 800.6, etc.), as may be necessary for the undertaking. 

Response 

Refer to Response 9.5. 

Comment ID 0115-A2.001.002

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: APP.E 

1.3.1.6 Determination of no adverse affect to historic properties. National Grid supports Appendix E, which sets forth procedures to 

certify that a Notice of Intent meets one of the necessary criteria. National Grid is pleased to see that Criterion D is in place. In our 

experience, response time from some of the Tribal Historic Preservation Officer's is much longer than 30 days, and sometimes not at all.

Response 

Refer to Response 9.5. 

 
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APP.G NOTICE OF INTENT (NOI) FORM AND INSTRUCTIONS

Comment ID 0098-A1.001.028

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.G 

The NOI form requires estimation of the total area of the property to the nearest .25 acre. We proposed that EPA substitute "site" or 

"project" for the term "property" on NOI form (Section 3 -- Project/Site). This is consistent with instructions for completing EPA 

3510-X. 

Also, we request that Section III of the NOI form link to the primary permittee's project tracking number in order to avoid the obligation 

to develop multiple, duplicative SWPPPs. 

Response 

Refer to Response 1.6. 

Comment ID 0130-A2.001.040

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: APP.G 

On the NOI Form 3S10-X in Appendix G, the ESA Reference to Appendix C is incorrect in Section VIII. The reference should be to 

Appendix 0 in the statement "If you selected criterion E from Appendix Co 

Response 

EPA appreciates the comment and has revised the form consistent with the suggestion. 

 
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APP.H COMPLIANCE WITH THE C-FACTOR STABILIZATION 

CRITERIA

Comment ID 0046-A1.001.027

Author Name: Hemmerlein Mark 

Organization: New Hampshire Department of Transportation (NHDOT) 

Issue Category: APP.H 

This whole section appears to be too complicated and could be simplified by providing specific BMPs for a variety of situations. EP A is 

relying on a large-scale agricultural model to determine BMP effectiveness in a micro-scale engineering environment. 

Response 

Refer to Response 2.46. 

Comment ID 0110-A1.001.014

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: APP.H 

This section says "protocols" in plural, what other protocols are allowed or were examined besides ASTM D6459? There is only one 

commercial laboratory in the US that can run ASTM D6459 and the ASTM D18.25.02 committee is currently making serious revisions 

to this standard. Other laboratories commonly used are Texas Transportation Institute, Utah Water Research Lab, San Diego State 

University. The studies that are references come from various sources other than ASTM D6459 and are therefore not comparable. 

Further, many of the referenced studies are based on information that is over 30 years old. The industry and the technologies used for 

erosion control have evolved considerably in the last 30 years and more recent data should be utilized. I would be happy to provide 

additional references and materials that is more current for review. 

Response 

Refer to Response 2.46. 

Comment ID 0110-A1.001.015

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: APP.H 

Table H-1 should be removed all together or made to list only products techniques that are scientifically comparable, otherwise the 

reported C-Factor values shown give the impression that they are all comparable when they were performed under different 

testing/protocol conditions. 

For channel stabilization, there is no table of products and associated shear stress values, so the slope technologies ought to be the same 

or you should have consistent channel shear stress tables with products/technologies. 
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Response 

Refer to Response 2.46. 

Comment ID 0110-A1.001.016

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: APP.H 

The C-Factor values of 0.1 for slopes less than 15% and 0.3 for slopes greater than 15% appear to be backwards. With a steeper slope, 

you would want a lower C-Factor requirement as more sediment would likely be eroding. To follow up with my previous suggestion 

for slopes: 

Mild: < 15% - C-Factor of 0.3 or less 

Moderate: 15 - 30 % - C-Factor of 0.1 or less 

Steep: 30 - 60 % - C-Factor of 0.05 or less 

Severe: > 60 % - C-Factor of 0.05 or less 

The C-Factor values as stated before, should all be normalized to account for differences in testing facilities/field locations. I have 

developed an equation that allows for this to happen and would be happy to discuss this further. Using the reported C-Factors from 

various laboratory/field conditions in their current form does not provide for a proper comparison and will lead to non-conservative 

results. 

Response 

Refer to Response 2.46. 

Comment ID 0110-A1.001.017

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: APP.H 

Table H-1 clearly indicates that blown Straw with Tack can be used on all sites to achieve the desired EPA requirements and that blown 

straw alone will meet the EPA requirements for nearly all conditions. Since these two techniques are considered to be the cheapest out

in the marketplace, why would the end user pick anything other than this? In the field, blown straw and blown straw with tack do not 

get used on all slopes, especially slopes greater than 30% and this is because they have been found/observed to not work well under these 

conditions, yet the table above clearly indicates that these would be fine on slopes greater than 15%, which implies that they could be 

used for slopes up to 60% or higher. This is why I suggested the following earlier in the text comments: 

Mild: < 15% - C-Factor of 0.3 or less 

Moderate: 15 - 30 % - C-Factor of 0.1 or less 

Steep: 30 - 60 % - C-Factor of 0.05 or less 

Severe: > 60 % - C-Factor of 0.05 or less 

Using references for blow straw from 1978 and 1979 is not very thorough as I am aware of quite a few recent studies, one in particular 

performed via ASTM D6459 that showed that blown straw has a C-Factor much higher than what is reported above. 
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As I mentioned earlier, either this table should be much more thoroughly developed with consistent and comparable data or removed 

entirely as it will lead to serious confusion and problems. 

Response 

Refer to Response 2.46. 

Comment ID 0110-A1.001.019

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: APP.H 

In environmentally sensitive areas, the use of plastic nettings should not be used. Instead, a leno weave natural fiber netting should be 

required. 

If Table H-1 is to be included, a much more comprehensive listing of the advanced hydraulic matrices should be included, such as 

Bonded Fiber Matrices, Flexible Growth Mediums and Stabilized Mulch Matrices. A good reference for these types of products can be 

found in the attached published paper. 

Response 

Refer to Response 2.46. 

Comment ID 0110-A1.001.020

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: APP.H 

Page H-7, top - A much more comprehensive listing of the advanced hydraulic matrices should be included, such as Bonded Fiber 

Matrices, Flexible Growth Mediums and Stabilized Mulch Matrices. A good reference for these types of products can be found in the 

attached published paper. 

Response 

Refer to Response 2.46. 

Comment ID 0139-A2.001.005

Author Name: Aho Andrew 

Organization: Geosynthetic Materials Association (GMA) 

Issue Category: APP.H 

C Factor calculations for synthetic (Turf Reinforcement Mats) TRMs vegetated and un-vegetated should be included as acceptable 

stabilization methods- 

 • In addition, there needs to be a differentiation among the various TRMs in the industry today. While all may provide the same C 

Factor on the first day of installation, the variation in the C Factor through the duration of the project or until a final accepted vegetative 

cover of 70% is achieved will change drastically if the wrong product is used for the application. 
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• To expand upon the above, hard requirements need to be made for UV stabilization of the TRM (the industry standard ASTM 4355 

percent of tensile strength retained at 500 hours is a geotextile specification and needs to be modified to 5000 hours for TRMs that could 

be exposed to the sun for long periods). UV compromised TRMs' C Factor will be diminished. 

• Tensile Strength Requirements need to be made to differentiate TRMs. A TRM that is damaged during construction or maintenance 

due to low tensile strength will have its C Factor diminished as well. A simple calculation shows that on a 3:1 slope, a typical tractor 

type highway mower can exert 1800 #/ft of force in the direction perpendicular to face of the slope. So a TRM with less than 3000 #/ft 

of tensile strength should not be used under wheel loading. 

• There are other things pertinent to the selection of a TRM besides the C Factor and the new guidelines need to address this. The 

guidelines need to take the next step and consider the application in which the TRM is to be used and then use material performance 

properties and hydraulic performance properties to help the designer make the appropriate TRM selection. 

Response 

Refer to Response 2.46. 

 
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APP.I 2-YEAR, 24-HOUR STORM FREQUENCIES

Comment ID 0115-A2.001.007

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: APP.I 

Further, with respect to Appendix I, the reference to the Cornell Method needs to be clarified. The Cornell method requires a conversion 

from a "one calendar day" to a 24-hour storm event. The numbers shown on Map 1 from the Atlas of Precipitation Extremes for the 

Northeastern United States and Southeastern Canada would need to be multiplied by 1.13 to be equivalent to a 24-hour storm. EPA 

should specify which design storm should be used, as they are not one and the same. 

Response 

See Response 2.9. 

Comment ID 0121-A2.001.003

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: APP.I 

The draft language refers to the Cornell Method (see Appendix I). The Cornell method requires a conversion from a "one calendar day" 

to a 24-hour storm event. The numbers shown on Map 1 from the Atlas of Precipitation Extremes for the Northeastern United States and 

Southeastern Canada would need to be multiplied by 1.13 to be equivalent to a 24-hour storm. EPA should specify which design storm 

should be used, as they are not one and the same. 

Response 

See Response 2.9. 

Comment ID 0133-A2.001.039

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: APP.I 

Appendix I specifies national standards for rainfall intensity at specified frequencies and durations. MDT's hydraulics analyses often 

includes more refined, site-specific data. MDT requests clarification on the acceptability of using our own data. 

Response 

See Response 2.9. 
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Comment ID 0137-A2.001.021

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: APP.I 

Appendix I ‐ The permit references technical paper number 40 published in 1961. This document is no longer applicable for many parts 

of the country per the referenced link. 

http://www.ncdc.noaa.gov/oa/documentlibrary/rainfall.html#atlas14 

This has been superseded by a statistical evaluation and establishment of rainfall events by NOAA. Since it is interactive and online this 

should be the reference document not Technical Paper 40. See the link below for the State of Maryland. This information updates the 

1961 data by adding over 40 years of new rainfall data to better define the various storm events. 

http://hdsc.nws.noaa.gov/hdsc/pfds/orb/md_pfds.html

Response 

See Response 2.9. 

Comment ID 0159-A1.001.019

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: APP.I 

In the Appendix I, the permit references the technical paper number 40 published in 1961. This document is no longer applicable for 

many parts of the country per the referenced link. 

http://www.ncdc.noaa.gov/oa/documentlibrary/rainfall.html#atlas14 

This has been superseded by a statistical evaluation and establishment of rainfall events by NOAA. Since it is interactive and online this 

should be the reference document not Technical Paper 40. See the link below for the State of Maryland. This information updates the 

1961 data by adding over 40 years of new rainfall data to better define the various storm events. 

http://hdsc.nws.noaa.gov/hdsc/pfds/orb/md_pfds.html

Response 

See Response 2.9. 
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APP.J IMPAIRED WATER REQUIREMENTS

Comment ID 0015-A2.001.025

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: APP.J 

Q26. Turbidity NTU Level. We have no proposal on the turbidity NTU limit. 

Response 

Refer to Response 9.6. 

Comment ID 0021-A1.001.007

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: APP.J 

7. Will Tables for Water Quality Impaired Waters be provided for Colorado (Federal Facilities in Colorado, Permit Number 

COR10000F). 

Response 

Refer to Response 9.6. 

Comment ID 0026-A1.001.008

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: APP.J 

However, it is not clear that the metrics employed by the Agency to develop the draft CGP's technical provisions, particularly those in 

Appendix J, Section 4, were created using procedures that are consistent with these requirements. Quite simply, more administrative 

transparency is needed and appropriate. 

Response 

Refer to Response 9.6. 

Comment ID 0037-A1.001.058

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: APP.J 

In Appendix J, EPA proposes the benchmark monitoring levels that must be met if applicable to a site. Each level is based on the 
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underlying water quality criteria that apply to the receiving water. If the water quality criteria for a receiving water is expressed as an 

incremental value above "natural background" levels of the pollutant in the receiving water (e.g., 10 NTUs above background levels of 

turbidity), EPA has proposed that the benchmark is set at the value that is specified in the criterion (e.g., in the example, the benchmark 

would be 10 NTU). The Southern Ute Growth Fund does not support assigning the incremental value used in water quality criteria as the 

benchmark since assigning a value of 0 to the natural background levels for turbidity in many rivers and streams in the southwest is 

unrealistic and very stringent. The Southern Ute Growth Fund believes it is more appropriate to collect a receiving water sample at a 

location upstream of the farthest upstream stormwater outfall for the project during the rain event and use this natural background level 

to determine the benchmark level. 

Response 

Refer to Response 9.6. 

Comment ID 0045-A1.001.009

Author Name: Epstein Lee 

Organization: Chesapeake Bay Foundation 

Issue Category: APP.J 

Second, with respect to benchmark levels set out in Appendix J, we note that the District of Columbia's impaired waters are not 

anywhere displayed in Appendix J - although the Anacostia River is impaired (inter alia) for sediment and nutrients, Kingman Lake is 

impaired for TSS, and Watts Branch is also impaired for TSS; and dozens of other water bodies and watersegments are currently listed or 

have TMDLs. We urge EPA to include the District in the Appendix and to factor in the District's unique and compact geographical status 

(as compared to the few states which will be subject to this rule) when determining and designating thresholds and benchmarks. 

Response 

Refer to Response 9.6. 

Comment ID 0051-A2.001.011

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: APP.J 

Concerning the methods of benchmark monitoring, MRWC supports the suggestion to require permittees to conduct a pre-construction 

discharge sample in order to determine possible natural background values, so that a specific benchmark level could be assigned 

(Appendix J, Part 2). While this would admittedly require an extra step of work and consideration for the permittee, the additional efforts 

are merited by the potential to significantly improve the established benchmark monitoring system by tailoring the critical values to the 

specific water of concern. This would hopefully serve the dual purpose of setting reasonable and attainable standards for operators and of 

protecting impaired waters from significant increases of pollutants above a natural level. 

Response 

Refer to Response 9.6. 
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Comment ID 0068-A1.001.030

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: APP.J 

In light of the comments above, EPA's proposed Appendix J should be removed from the Proposed CGP. The 2008 CGP provides 

sufficient guidance and has proven successful at implementing water quality standards obligations of the CWA. Proposed Appendix J, 

recognizing EPA intended efforts to help permittees, is more likely to create confusion and significant cost, with no demonstration that 

any additional benefits will be derived in comparison to the more simplified and streamlined approach of the 2008 CGP. 

Response 

Refer to Response 9.6. 

Comment ID 0074-A2.001.029

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: APP.J 

The DEQ does not believe it is workable to require permittees to conduct a preconstruction discharge sample in order to determine 

possible natural background values. 

Response 

Refer to Response 9.6. 

Comment ID 0093-A2.001.011

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: APP.J 

Other provisions of the Draft - Part 4.2 through Appendix J - lead AGC to fear that EPA is seeking to establish unrealistic performance 

standards for permittees. These provisions wrongly assume that the natural background level of dirt and other pollutants in stormwater is 

zero. See Appendix J at J-5. Thus, the starting point for the agency's primary performance metric in this comprehensive and critical 

scheme also rests on the assumption that, in a pure natural setting, rain never causes dirt to move. This assumption infects all of the 

pollutant concentrations levels (i.e., the "benchmark" values) that will, if exceeded, become a water quality concern. 

Appendix J of the Draft states that EPA interpreted state-specific water quality criteria to establish the benchmarks included in the Draft. 

One problem with this approach is that theinconsistency in the way the states express such criteria has yielded both inconsistent and 

unverifiable results (e.g., "some criteria for turbidity are expressed as a single limit, such as 25 NTU, whereas other criteria are expressed 

as a certain amount above background levels of turbidity"). The second problem is the one to which AGC has already pointed out: EPA 

did not have access to established natural background levels for each of the impaired waters. Thus, the agency failed to correlate 

benchmark levels to natural background pollutant levels (i.e., failed to account for natural variability in stormwater discharges). By 

assigning a value of "0" to the natural background level of each pollutant, EPA set very stringent and probably unachievable 

benchmarks. A third problem is that the specific benchmarks in Appendix J are based on low-flow conditions rather than conditions 
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likely to be present during a rain event. Finally, AGC is concerned that the use of nitrogen or phosphorous fertilizer to establish the 

required vegetative cover for stabilization would impact the ability to achieve benchmark levels. 

Response 

Refer to Response 9.6. 

Comment ID 0096-A1.001.063

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: APP.J 

Nearly all of the values in TMDL limits are based on an in-stream turbidity increase from upstream values. This requires upstream and 

downstream sampling, not sampling of the discharge from the construction site. If EPA means to apply these benchmarks to the 

construction discharge, they are not achievable. Most of the TMDL turbidity increases listed in Appendix J are 5 or 50 NTU (above 

upstream values). For most locations and soil types, it would be virtually impossible to meet either of these limits directly on a consistent 

basis. There would be frequent exceedences of the benchmark, which would require constant corrective actions that would not improve 

the discharge. 

The actual discharge from a construction site should not have to be as low as the benchmark value, in part because the discharge would 

be diluted by the receiving stream, and in part because the upstream turbidity would be elevated during rain events. In fact, most TMDL 

requirements are a differential turbidity value. Therefore, applying these limits directly to the discharge is unreasonable. The operator 

will be required to take repeated corrective action as a result of the low benchmark values. These costs could be very significant without 

improving stormwater discharge. We believe the best way to achieve TMDL goals is to provide localized BMP solutions based on the 

specific requirements of the TMDL. 

EPA's Appendix J benchmark values are intended to be compared to permitted entities construction site discharge. However, the data in 

this appendix does not indicate what might be a reasonable turbidity benchmark for the discharge from a construction site. The footnotes 

to the turbidity limits (with a few exceptions) all appear to be limits to the increase over upstream background concentrations in the 

streams, not of actual construction site discharge. Here are two example footnotes in the Idaho TMDL turbidity limits: 

Idaho TMDLs' 50 NTU increase standard: 

"IDAPA 58.01.02.250 - Surface Water Quality Criteria for Aquatic Life Use Designations. 

a. Section 250.02.e - Cold Water - Turbidity, below any applicable mixing zone set by the Department, shall not exceed background 

turbidity by more than fifty (50) NTU instantaneously or more than twenty-five (25) NTU for more than ten (10) consecutive days. 

And for lower turbidity limits of no more than a 5.0 NTU increase at locations measured at a public water supply intake: 

 "IDAPA 58.01.02.252 - Surface Water Quality Criteria for Water Supply Use Designations. 

a. Section 252.01.b.ii - Domestic - Turbidity as measured at the public water intake shall not be: 1) Increased by more than 5 NTU above 
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natural background, measured at a location upstream from or not influenced by any human induced nonpoint source activity, when 

background turbidity is 50 NTU or less; 2) Increased by more than 10% above natural background, measured at a location upstream form 

or not influenced by any human induced nonpoint source activity, not to exceed 25 NTU when background turbidity is greater than 50 

NTU."

Response 

Refer to Response 9.6. 

Comment ID 0115-A2.001.023

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: APP.J 

With respect to Appendix J regarding impaired waters and benchmark limits, National Grid recommends that if, in the future, benchmark 

limits are proposed for Massachusetts that there be an opportunity to provide input and comment. 

Comment ID 0121-A2.001.015

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: APP.J 

While the tool described in Appendix J that is being developed by EPA to help identify discharges to impaired waters is likely to be 

useful for permittees, it will lead to many false positives. Within a given catchment area there are likely to be numerous areas that are 

waters of the U.S. Therefore, it is likely that many discharges from locations within the catchment will drain to other waters of the U.S. 

before the impaired segment in the catchment. In addition, it is possible that the discharge would be downstream of the impaired 

segment. Neither of these cases should be considered a discharge to an impaired water. This should be emphasized in the language in 

Appendix J. 

Response 

Refer to Response 9.6. 

APP.JQ ADDRESSING NATURAL BACKGROUND IN BENCHMARK

Comment ID 0026-A1.001.010

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: APP.JQ 

3. Draft CGP § 4.2, through Appendix J, imposes unrealistic and scientifically unsupportable performance requirements on owners and 

developers. For purposes of setting applicable permit requirements, the EPA assumes that the natural background level of dirt and other 
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pollutants in stormwater is zero. See Appendix J at J-5, http://www.epa.gov/npdes/pubs/cgp_appendixj.pdf (accessed June 17, 2011). In 

other words, the Agency's primary performance metric in this comprehensive and critical regulatory regime rests on the assumption that 

dirt never moves in a rainfall. 

Notwithstanding the self-evident absurdity of this assumption, the Agency notes only that this "will result in a very stringent benchmark 

level." The Agency requests comments on the zero background level and asks whether "commenters believe it is [instead] workable to 

require permittees to conduct a pre-construction discharge sample in order to determine possible natural background values, so that the 

benchmark level could be assigned based on this sample." See id. However, the Agency states that the final regulatory requirement will 

be "a benchmark that is reasonably correlated to criteria that are established in reference to natural background pollutant levels" in all 

cases. Id. 

The Chamber believes that the Agency lacks the legal authority to impose a zero benchmark level, or any other level, without first 

complying with 33 U.S.C. § 1314(b)(1)(B) and the RFA. The direct and indirect costs of this irrational and scientifically unsound 

approach could be substantial and should be calculated and accounted for. Furthermore, there is absolutely no evidence that the Agency 

has considered, much less demonstrated, whether there are demonstrable environmental benefits to offset the potentially huge 

employment and economic costs this provision may impose on property owners, developers, builders and consumers. In the absence of 

such a demonstration, the EPA's action is not justified. 

Response 

Refer to Response 9.6. 

Comment ID 0026-A1.001.018

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: APP.JQ 

G. The EPA ought to demonstrate that zero dirt or "natural background" benchmark is scientifically justified and has been developed in 

compliance with all IQA and statutory requirements. Also, it should cite the controlling legal authority that authorizes such a benchmark.

Response 

Refer to Response 9.6. 

Comment ID 0064-A1.001.048

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: APP.JQ 

Appendix J, Part 2, page J-5 - Second paragraph of "Request for Comment" under "Determining Your Benchmark Monitoring Level" 

•Conducting a pre-construction discharge sample would be helpful in establishing background conditions. However, for projects with a 

long duration, background water quality can change significantly throughout a calendar year. Suggest this be accounted for by 

suggesting quarterly background monitoring. 
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Response 

Refer to Response 9.6. 

Comment ID 0097-A1.001.019

Author Name: Knutsson John 

Organization: Daniel Corporation 

Issue Category: APP.JQ 

26. Due to natural variation (seasonal, hydrologic, etc) in the background values, I do not understand how the benchmark value will be of 

benefit. 

Response 

Refer to Response 9.6. 

 
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APP.L STANDARD PERMIT CONDITIONS

Comment ID 0024-A2.001.006

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: APP.L 

Additionally, because EPA is in the process of revising the national post-construction requirements for areas of new development and 

redevelopment, with an expected final rule in 2012, [FN 1] EPA should include a reopener clause in the 2011 CGP so that those 

requirements can be incorporated into the CGP at that time. 

[FN I] EPA, Office of Water, Stormwater Rulemaking Listening Sessions Presentation (3 Feb. 2010), available at 

http://www.epa.gov/npdes/pubs/sw rule listening sessions presentation.pdf. 

Response 

Refer to Response 9.7. 

Comment ID 0098-A1.001.029

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.L 

The language of the certification is inappropriate where used to certify a SWPPP. Where a contractor had no involvement in developing 

a SWPPP, as may be the case with many secondary permittees, it is a misstatement to execute a certification stating that the SWPPP was 

prepared under the contractor's direction or supervision. There may be alternate approaches to resolving this inconsistency, but one 

proposed suggestion appears below: 

DRAFT ALTERNATIVE LANGUAGE FOR SWPPP CERTIFICATIONS (CHANGES IN ALL-CAPS): 

I certify under penalty of law that this document and all attachments were prepared under my direction and supervision in accordance 

with a system designed to assure that qualified personnel properly gathered and evaluated the information contained therein OR HAVE 

BEEN REVIEWED BY ME IN ACCORDANCE WITH A SYSTEM DESIGNED TO ASSURE THAT QUALIFIED PERSONNEL 

PROPERLY EVALUATED THE INFORMATION CONTAINED THEREIN. Based on my inquiry of the person or persons who

manage the system, or those persons directly responsible for gathering the information, the information contained is, to the best of my 

knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, 

including the possibility of fine and imprisonment for knowing violations. 

Response 

Refer to Response 9.7. 
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APP.M BUFFER GUIDANCE

Comment ID 0021-A1.001.001

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: APP.M 

1. Will there be an Appendix M Table provided for Colorado (Federal Facilities in Colorado, Permit Number COR10000F). 

Response 

EPA notes that it has made available sediment removal efficiencys for the major geographic areas of permit coverage, but due to limited 

resources, did not do this analysis for all covered areas, such as covered federal facilities and tribal areas. EPA would allow permittees in 

areas not included in the tables to either choose the a geographic area that most closely matches their site, or do a site-specific calculation 

to get the 50-foot sediment removal equivalency. 

Comment ID 0030-A2.001.007

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: APP.M 

Appendix M, Tables 1-8 

These tables do not adequately convey the amount of variation in sediment removal rates among buffers. These tables also include not 

only the anticipated sediment removal of the buffer but also a silt fence. Although we are in complete agreement that a perimeter control 

should be used between a construction area and a vegetated buffer, including this sediment removal rate as part of the buffer does not 

seem appropriate. If these tables are going to be used, they should only include an estimate of the sediment removal of the buffer, since 

this is what you are trying to replace. 

Response 

See Response 2.3.9. 

Comment ID 0030-A2.001.009

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: APP.M 

Appendix M, M-8 

Charts and models are often reliable and appropriate tools, however, they are only as reliable as the input data. Most sediment removal 

data has been generated by laboratories and manufacturer of BMP products; limited field data has been collected on sediment removal 

rates by construction BMPs. Furthermore, the data that has been collected is highly variable and depends a great deal on site conditions. 
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Due to the uncertainty surrounding these charts and models, a toolbox approach for the design and selection of appropriate BMPs to 

manage and control construction stormwater discharges would meet EPA's intent to protect waters of the U.S. 

Response 

See Response 2.3.9. 

Comment ID 0038-A1.001.006

Author Name: Minervini W. 

Organization: 

Issue Category: APP.M 

In discussing what "waters of the United States" are, Appendix M of the draft CGP does nothing more than quote the 40 CFR § 122.2 

definition of "waters of the United States." Notwithstanding that definition, identifying whether particular streams, tributaries, wetlands, 

ditches, or other water-related areas (or portions thereof), are legally "waters of the U.S." is not necessarily simple. See the proposed 

USEPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act discussed in the 

May 2, 2011 Federal Register (76 Fed. Reg. 24479), and available at 

http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf. 

Response 

See Response 2.3.4. 

Comment ID 0049-A1.001.040

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: APP.M 

While detailed information provided by EPA on buffer strips is excellent, mandating the use of such systems is not advisable. 

• Buffer strips are only effective when they are able to accept sheet flows. 

• Construction sites nearly always result in concentrated flow conditions. 

Response 

See Response 2.3.3. 

Comment ID 0049-A1.001.041

Author Name: Fifield Jerald 
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Organization: HydroDynamics Incorporated 

Issue Category: APP.M 

EPA emphasis on using results found in Table 1 through Table 8 is not advisable. 

• No information has been provided that justifies "estimated % sediment removal" values are based upon actual field research. 

• No information has been provided that illustrates how performance values change as numerous runoff events discharge over the buffer 

strips throughout one year. 

• No information has been provided about the height and mass of vegetation necessary to achieve the reported values. 

• No information has been provided about the limitations of buffer strips. 

• All values listed assume construction site sheet flow conditions, which rarely occur. 

Response 

See Response 2.3.9. 

Comment ID 0049-A1.001.042

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: APP.M 

Using the results of RUSLE2 to create absolute predictive results should not occur. 

• The model has limitations on the amount of contributing area allowing runoff to flow onto buffer strips. 

• Erosion protection by the establishment of vegetation represents a combined effect of interrelated cover and management variables. 

Thus, erosion rates are calculated using the time necessary to achieve permanent stabilization. It is for this reason that RUSLE2 no 

longer incorporates static C-Factor values. 

• Sediment control is represented by a combined effect of support practices and management variables. The model assumes effectiveness 

of sediment control measures (e.g., straw bales, silt fences, sediment basins, etc.) function in "idealized" conditions. For example, fiber 

roll barriers never fail; sediment basins always remove most of the suspended particles entering the structure), and so forth. 

• Fiber rolls and silt fence barriers will always fail while construction activities occur. Thus, modeling results must be viewed as 

assessing possible alternatives under idealized conditions. 

• RUSLE2 results should never be relied upon as being "absolute"---only as providing a comparison. Even the author of RUSLE2 

(George Foster) specifically warns users of the model that soil loss values are to be viewed as a ". . . guide rather than being considered 

absolute." 
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Response 

See Response 2.3.9. 

Comment ID 0049-A1.001.043

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: APP.M 

• Using RUSLE2 to provide absolute annual erosion rates from a 100-foot long denuded slope does not even begin to represent 

construction site conditions. Items associated with slope steepness, total contributing areas, individual storm events, and so forth must be 

part of any assessment. Results of RUSLE2 modeling only provide an idealized comparison of annual loading. 

• In the first example on Page 207, it appears EPA assumes that for all runoff events, a 50 foot wide buffer strip in MA will reduce 

sediment from runoff by 96%. This is a ludicrous assumption! 

Response 

See Respones 2.3.9. 

Comment ID 0049-A1.001.044

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: APP.M 

EPA must provide data from field research studies (throughout an entire construction season) that substantiate 96% reduction of 

sediment by buffer strips. EPA is advocating that a 50-foot wide strip of vegetation is more effective than capturing polymer treated 

runoff waters entering a professionally designed SCS. Such a conclusion is incorrect and very misleading! 

Response 

See Response 2.3.9. 

Comment ID 0049-A1.001.045

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: APP.M 

• For the second example on Page 208, EPA assumes a perimeter silt fence exists immediately upstream of the vegetative buffer strip. 

The RUSLE2 model assumes silt fence barriers have been installed correctly and never fail. Also, it appears the model assumes runoff 

will discharge through the geosynthetic material after depositing sediment. Finally, it appears flows discharging onto the fiber roll 
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barrier (which also never fails) that always provides filtration before discharging onto the vegetative buffer strip. This second example is 

idealistic and will never occur on a construction site. First, silt fence barriers will likely fail for concentrated flow conditions. Second, a 

typical silt fence barrier constructed out of woven polypropylene material will discharges very little water. Third, the fiber roll material 

will eventually become clogged with soil material and provide little reduction of sediment from runoff waters. In summary, the second 

EPA scenario is also not realistic. 

• EPA must proceed with utmost caution about the effectiveness of buffer strips. I cannot find any scientific data or publications that 

substantiate EPA's conclusions about the effectiveness of buffer strips. 

• If the EPA values have been obtained from published data for the scientific community to review and assess, then this data must be 

made available for review and confirmation by the scientific community. 

EPA assumes construction sites have relatively uniform slopes without topographic features. 

• Construction sites do not have uniform slopes and topographic features are the norm. 

EPA assumes a smooth soil surface exists on the construction site. 

• Construction sites usually consist of highly disturbed soils. 

Response 

See Response 2.3.9. 

Comment ID 0051-A2.001.005

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: APP.M 

MRWC supports the material in Appendix M-Buffer Guidance which recognizes that buffer quality and maintenance is an important 

aspect of potential sediment and runoff control. We encourage making the language in this section stronger to imply that restoring 

vegetation, leaving woody debris or biomass, and replacing invasive species with native plants is a responsibility, not an option, for the 

operator. To facilitate the use of native vegetation, we suggest providing resources about species native to each particular area. This will 

also serve as a valuable resource for the creation of buffers and natural alternatives (Part 2.1.2). 

Response 

See Response 2.3.3.EPA also notes that it doesn't feel that it is the role of the Agency to mandate what vegetation is in the natural buffer 

and what vegetation. However, EPA agrees native vegetation is better environmentally than invasive vegetation, and therefore EPA has 

retained the language encouraging that native vegetation be preserved and/or restored. 

Comment ID 0053-A2.001.047

Author Name: Boesch Kevin 
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Organization: Logan Simpson Design, Inc. 

Issue Category: APP.M 

The Permit states: "If it is infeasible to provide an undisturbed naturally vegetated buffer of any size between the disturbed portion of 

your site and any waters of the U.S., implement sediment and erosion controls that achieve the equivalent sediment load reduction as an 

undisturbed naturally vegetated, 50-foot buffer." 

No permittee will claim they are able to provide an undisturbed naturally vegetated buffer to be feasible and therefore never adhere to 

this clause. Consider replacing the word "infeasible" with "not possible" 

Response 

See Response 2.3.1. 

Comment ID 0053-A2.001.048

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: APP.M 

The Permit states: "Development of a site where no buffer area exists due to prior disturbances. For example, sites where all vegetation 

in the buffer area has been removed and replaced with impervious surfaces as a result of prior development are not subject to the buffer 

requirement at all." 

In many areas of the arid southwest, no buffer area exists naturally. The first sentence alludes to a buffer area not being existent only in 

the case of prior disturbance and therefore excluding such cases of vegetation being absent for natural reasons. 

Consider revising the language in the first sentence to include naturally denuded areas, or remove the portion stating "due to prior 

disturbances". 

Response 

See Response 2.3.5. 

Comment ID 0053-A2.001.049

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: APP.M 

The Permit requires permittees to design treatment equivalent sediment removal of a 50 foot vegetative buffer and refers users to the 

performance charts starting on page M-10. The performance charts are very general and do not reflect situations, vegetation, soils, and 

therefore accurate sediment removals for all areas. 

Consider revising language/charts to refer permittees to determine soil characteristics and vegetation types at the project location. 
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Again the Permit uses the term "infeasible" and "feasible". Consider replacing this soft language throughout the Permit. 

Response 

See Response 2.3.9 and 2.3.1. 

Comment ID 0089-A1.001.002

Author Name: Keenum Michael 

Organization: City of Lubbock 

Issue Category: APP.M 

Appendix M - Buffer Guidance, Section 2.A. Compliance Alternative 2.1.2.1.a: 50-foot Naturally Vegetated Buffer discusses the 

Ordinary High Water Mark as a reference point to begin the buffer zone, but does this refer to any particular level? For instance, does it 

equate to a 100-year 24-hour storm event elevation that would coincide with FEMA flood zones, or is it more of an arbitrary level pool 

determination? There is no definition provided for Ordinary High Water Mark, so it seems to be left up to interpretation which makes it 

difficult to define and enforce. Some clarification on this definition would be helpful. 

Response 

See Response 2.3.4. 

Comment ID 0093-A2.001.035

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: APP.M 

In addition, the alternative measures provided in lieu of constructing a 50-foot natural buffer are not practical. Tables 1 through 8 in 

Appendix M list very specific localized vegetation and sediment removal performance for specific states and territories covered by the 

EPA CGP only. These tables would not apply in other states that may choose to adopt the EPA CGP. This will place an undue burden on 

the states that have their own CGP to institute similar estimated removal tables for the various regions and cover vegetation typical 

within their state. AGC asks that EPA clarify that natural buffer sediment removal values in other states or regions within other states 

will not necessarily be equivalent to these tables, and that they are derived only for the specific localities where the EPA CGP is currently 

in force. 

In addition, AGC believes that a majority of the sediment removal values presented in the tables in Appendix M are unrealistically high 

for many rain events. For most of these tables, the fine clay sediment is being predicted to be removed at over 80%. This is a completely 

impractical estimate. EPA appears not to have given any consideration as to the type of rain event intensity or duration in making these 

% removal predictions, even though these factors will have a significant impact on removal efficiencies. EPA also has acknowledged 

that not every vegetation, soil type, and slope condition is covered. 
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Response 

See Response 2.3.9. 

Comment ID 0098-A1.001.030

Author Name: Davis Richard 

Organization: Beveridge & Diamond, P.C. 

Issue Category: APP.M 

We note that the 50-foot buffer area is measured "horizontally" from the stream channel. We suggest replacing that term with the term 

"perpendicular" to ensure that the buffer requirement is properly understood and applied. 

Response 

See Response 2.3.4. 

Comment ID 0124-A2.001.002

Author Name: Eubanks Kevin 

Organization: Clark County Regional Flood Control District 

Issue Category: APP.M 

Appendix M to the draft permit asserts that "Buffer restoration goals in arid/semi-arid areas should be . . . the establishment of dense 

native vegetation . . ." (Buffer Guidance, page M-6). But native vegetation along dry washes is rarely dense. When a perennial flow was 

artificially established in local dry washes, some adjoining areas might develop dense riparian vegetation dominated by non-native 

plants, but others retained their sparse desert vegetation. EPA's demand for dense native vegetation is therefore unrealistic. 

Response 

See Response 2.3.7. 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: SUP

 
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SUP GENERAL STATEMENT OF SUPPORT

Comment ID 0015-A2.001.001

Author Name: Cox Kim 

Organization: City of Portland, Burea of Environmental Services 

Issue Category: SUP 

1. Format. The format is much improved over the previous general permit and it is much easier to understand and track issues through the 

various sections. 

2. Appendices. The information in the appendices is very helpful and should be retained. 

3. Applicability. The additional requirements in the applicability section are very useful and should assure some integration with other 

measures. We encourage EPA to consider local land use review as another eligibility requirement. 

Response 

Refer to Response 10.1.

Comment ID 0024-A2.001.008

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: SUP 

We commend EPA for improving the structure and readability of the CGP, and for clarifying a number of specific requirements such as 

what circumstances and deadlines apply to corrective actions. These elements are important to improving the overall ease of compliance 

with, and enforcement of, the CGP's terms. 

Response 

Refer to Response 10.1.

Comment ID 0051-A2.001.001

Author Name: Saales Tracie 

Organization: Merrimack River Watershed Council, Inc. (MRWC) 

Issue Category: SUP 

MRWC strongly supports the efforts of U.S. EPA to develop and reissue a general NPDES permit that requires greater efforts on the part 

of permittees to ensure that stormwater discharges from construction and development activities are managed and monitored to an 

appropriate extent with non-numeric effluent limitations 

Response 
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Refer to Response 10.1.

Comment ID 0074-A2.001.001

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: SUP 

The Oklahoma Department of Environmental Quality (DEQ) recognizes the importance of revising the current EPA's Construction 

General Permit (CGP). The CGP not only applies where EPA is the permitting authority, but also serves as a model for the permits issued 

in the delegated states. The DEQ agrees with the overall objective of the proposed revisions which will implement the new Effluent 

Limitations Guidelines and Standards for the Construction and Development Point Source Category (ELGs) under Part 450 of 40 CFR, 

which became effective on February 1, 2010. Additionally, DEQ supports the concept of requiring construction site owners/operators to 

meet a suite of mandatory requirements, such as erosion and sediment controls, soil stabilization practices, pollution prevention 

measures, surface outlet protection and dewatering practices, along with reasonable flexibility. 

Response 

Refer to Response 10.1.

Comment ID 0076-A1.001.001

Author Name: Steadman Marc 

Organization: Target Corporation 

Issue Category: SUP 

Target applauds the EPA's attempts to create a practical and implementable permit. We seek to provide constructive comments that 

consider a wide variety of circumstances which will be presented nationwide at construction sites underneath this permit. 

Target's comments focus on feasibility and implementation of non-numeric effluent limits (Best Management Practices) and both the 

effluent limit and benchmark monitoring process and reporting. We believe that by clarifying and simplifying permit language, the EPA 

will maintain environmental integrity. In addition, we are hopeful that our comments will contribute to improved compliance from 

industry by seeking to clearly define standards and procedures while maintaining adequate flexibility for businesses to adapt to weather 

events! Target makes no suggestion to decrease existing standards and supports efforts to manage stormwater discharges during 

construction. 

Response 

Refer to Response 10.1.

Comment ID 0094-A1.001.001

Author Name: Oppenheimer Jonathan 

Organization: Idaho Conservation League 

Issue Category: SUP 

Based on a review of the proposal to reissue and amend the Construction General Permit (CGP), the Idaho Conservation League strongly 
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supports the proposal to revise the 2008 CGP. We agree that there is a need to update the CGP to incorporate current rules, 

best-available-science and to improve the ability of the EPA to protect and sustain one of our nations precious resources: clean water.

Comment ID 0100-A2.001.001

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: SUP 

In addition to the specific comments contained in the attachment, the City also offers this general comment: the City supports improving 

water quality and protecting waterways from erosion and sediment from construction site runoff. 

Response 

Refer to Response 10.1.

Comment ID 0107-A2.001.001

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: SUP 

Twenty percent of New Mexico's impaired waters are impaired for sediment related reasons (2010-2012 State of New Mexico Clean 

Water Act 303(d)/305(b) Integrated Report). While it doesn't rain often in New Mexico, when it does there is often very high intensity 

runoff (Gautam et al, 2010). These two facts underscore the need for strong construction stormwater regulations to ensure the protection 

of New Mexico's water resources. The proposed permit takes some much-needed steps to protect water quality yet still falls short in a 

number of areas. Section specific comments are outlined below. 

Response 

Refer to Response 10.2.

Comment ID 0109-A2.001.001

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: SUP 

The Nashua River Watershed Association (NRWA) is writing to support the improved conditions in the proposed EPA Construction 

Stormwater General Permit ("Permit"); we also urge EPA to further strengthen the permit to require state-of-the-art control measures. 

We encourage the EPA to issue a permit that is strongly protective of water quality 

Response 

Refer to Response 10.3.

Comment ID 0122-A2.001.001

Author Name: Mackin Kerry 
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Organization: Ipswich River Watershed Association 

Issue Category: SUP 

Existing controls on construction sites are not doing the job of cleaning up our waterways. Meanwhile, stormwater management and 

treatment practices are currently available that are cost-effective and capable of containing pollutants on site. The Ipswich River 

Watershed Association (IRWA) supports the improved conditions in the proposed EPA Construction Stormwater General Permit 

("Permit") and calls on EPA to further strengthen the permit to require state-of-the-art control measures. As a citizen who values clean 

streams, lakes, and coastal areas, I/we urge EPA to issue a Permit that is strongly protective of water quality 

Response 

Refer to Response 10.1. Refer also to Response 10.2.

Comment ID 0123-A2.001.001

Author Name: Kelley Forrest 

Organization: Capitol Region Watershed District (CRWD) 

Issue Category: SUP 

CRWD generally finds the proposed permit to be an improvement to the 2008 CGP as it provides increased clarity and guidance. The 

most significant change to the permit is the addition of Numerical Effluent Limits and required monitoring. While CRWD supports the 

inclusion of this monitoring, EPA should outline how the reporting of monitoring data will be used to improve compliance with the 

permit and protect water quality. The data collected will be of little use if there is not a plan to review and respond to data indicating 

non-compliance. Also, it is difficult to provide a complete response without inclusion ofthe numerical Nephelometric Turbidity Unit 

(NTU) limit. 

Response 

Refer to Response 10.1.Refer also to Response 13.1.

Comment ID 0135-A2.001.002

Author Name: Orel Linda 

Organization: Massachusetts Association of Conservation Commissions (MACC) 

Issue Category: SUP 

Contrary to a range of other environmental issues, means to resolve this problem are reasonably available, cost-effective and 

implementable on the local level. Such means, which are strongly supported by the Massachusetts Association of Conservation 

Commissions (MACC) are addressed in the in the proposed EPA Construction Stormwater General Permit (Permit). 

Response 

Refer to Response 10.1.

Comment ID 0138-A2.001.001

Author Name: Khalsa EkOngKar 
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Organization: Mystic River Watershed Association (MyWRA) 

Issue Category: SUP 

Existing controls on construction sites are not doing the job of cleaning up our waterways. Meanwhile, stormwater management and 

treatment practices are currently available that are cost-effective and capable of containing pollutants on site. We support the improved 

conditions in the proposed EPA Construction Stormwater General Permit ("Permit") and call on EPA to further strengthen the permit to 

require state-of-the-art control measures. As an organization that values clean streams, lakes, and coastal areas, we urge EPA to issue a 

Permit that is strongly protective of water quality

Response 

Refer to Response 10.3.

Comment ID 0145-A2.001.001

Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: SUP 

We generally support adoption of the proposed CGP. The proposed permit has many elements that will better address both construction 

phase and post-construction phase stormwater problems than the prior construction general permit included. 

Why Better Construction and Post-Construction Stormwater Controls are Needed 

Significantly more stringent stormwater controls are needed to address one of the most important and most challenging threats to the 

waters of the United States. For example, here in Alabama construction phase stormwater and post-construction stormwater are among 

the Cahaba River's most serious problems. The Alabama Department of Environmental Management's 2010 303(d) list indicates that 

about 109 miles of streams in the Cahaba River watershed are impaired by sources that ADEM attributes to stormwater runoff problems 

[FN1]. This is a clear indication of the significance of stormwater pollution in stream impairment in the Cahaba River watershed. 

Based on GIS land use change analysis, Howard, et al. 2002 [FN 2] found the "disturbed" land use category increased 8.8% from 1990 to 

1998. That assessment indicated that a total of 38% of the Cahaba River watershed fell into the "disturbed land use" category by 1998. 

Other similar approaches have estimated the percent imperviousness of the upper Cahaba River watershed to be around 10% [FN 3]. 

The economic health of major portions of Jefferson, Shelby, Bibb, Perry, and Dallas counties relies on maintaining the health of the 

Cahaba River. For example, the drinking water supply for about one third to one half of the Birmingham Water Works Board customers 

is provided by the Cahaba River. Also, the Cahaba River is the last refuge for many federally listed threatened and endangered species in 

addition to those species that were thought to be extinct, but which have recently be rediscovered as extant. These vital beneficial uses 

are currently threatened by inadequately managed stormwater. Poorly managed stormwater is degrading the Cahaba River's water 

quality as well as its physical and biological integrity. 

For these reasons, reversing the current degradation of water quality in the Cahaba River will require improved stormwater management 

and post-construction stormwater management. EPA's draft Construction General Permit may serve a model for improved stormwater 

management for Alabama. 
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[FN 1] The "Sources" column of that 303(d) list cites one of the following sources of stormwater runoff problems for the 109 

impaired miles of the Cahaba River: "Urban Runoff/Storm sewers", "Land Devlopment", or "Municipal". 

[FN 2] Howard, Hoke S., Bob Quinn, Morris C. Flexner, and Ronald L. Raschke. 2002. Cahaba River: Biological and Water Quality 

Studies, Birmingham, Alabama. March/April, September and July, 2002. U.S. Environmental Protection Agency, 

Region 4, Science and Ecosystem Support Division, Ecological Support Branch. 

[FN 3] Jefferson County's Stormwater Management Authority, pers. comm. 

Response 

Refer to Response 10.1 and Response 10.2.

Comment ID 0151-A1.001.001

Author Name: Cox Jeff 

Organization: Sierra Club, Central Ohio Group 

Issue Category: SUP 

Construction site runoff poses a critical threat to our nation's waterways. Pollutants in construction stormwater contaminate drinking 

water, impair recreation in affected water bodies, harm commercial and recreational fisheries, and make floods more frequent and 

severe. [FN 1] Erosion from a construction site can strip hundreds of tons of sediment per acre per year off of the exposed land into 

adjacent and downstream water bodies, fueling harmful algae blooms and smothering underwater ecosystems.[FN 2] Additionally, 

construction site runoff carries significant levels of chemicals and toxic pollutants.[FN 3] Existing controls on construction sites are not 

doing the job of cleaning up our waterways. Meanwhile, stormwater management and treatment practices are currently available that are 

cost‐effective and capable of containing pollutants on site. I/we support the improved conditions in the proposed EPA Construction 

Stormwater General Permit ("Permit") and call on EPA to further strengthen the permit to require state‐of‐the‐art control measures. As a 

citizen who values clean streams, lakes, and coastal areas, I/we urge EPA to issue a Permit that is strongly protective of water quality 

[FN 1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source 

Category (the “C&D Rule”), Preamble, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009); EPA, Report to Congress on the 

Phase II Storm Water Regulations, EPA Pub. No. 833‐R‐99‐01 (Oct. 1999); National Research Council, Urban 

Stormwater Management in the United States, at 22‐26, 180‐182 (2008), available at http://www.epa.gov/npdes/ 

pubs/nrc_stormwaterreport.pdf. 

[FN 2] See EPA, Report to Congress on the Phase II Storm Water Regulations, EPA Pub. No. 833‐R‐99‐01, at I‐4, III‐2 (Oct. 1999). 

[FN 3] See National Research Council, Urban Stormwater Management in the United States, at 26, 180 (2008), 

available at http://www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf. 
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Response 

Refer to Response 10.1 and Response 10.2.

Comment ID 0156-A2.001.001

Author Name: Deen David 

Organization: Connecticut River Watershed Council 

Issue Category: SUP 

Erosion from a construction site can strip sediment off of exposed land into adjacent and from there to downstream water bodies. The 

nutrients associated with sediment can fuel harmful algae blooms and smother underwater ecosystems. The Connecticut River is under 

enough pressure from nutrient loading all the way to Long Island Sound that has itself been declared an impaired water for nitrogen. 

Response 

Refer to Response 10.1 and Response 10.2.

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: OPP

 
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OPP GENERAL STATEMENT OF OPPOSITION

Comment ID 0030-A2.001.001

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: OPP 

We do have concerns with the draft CGP regarding the apparent lack of flexibility for variations in the nature of construction sites. For 

example, our experience indicates that many of the proposed requirements will be difficult, if not impossible, to meet for specific kinds 

of linear utilities or facilities located in large oil and gas fields. 

Response 

Refer to Response 11.1. 

Comment ID 0031-A2.001.001

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: OPP 

OHBA is concerned with the inclusion of monitoring provisions for the Construction and Development Industry numeric effluent limit, 

the inclusion of a water quality based effluent limit, the prescriptive nature of the non numeric effluent limits, and the reporting 

requirement after exceedances of the Numeric Effluent Limit. The cumulative impact of all the new requirements will have deleterious 

impacts on our members' businesses. 

Response 

Refer to Response 11.1. 

Comment ID 0036-A1.001.003

Author Name: President Mike 

Organization: National Asphalt Pavement Association (NAPA) 

Issue Category: OPP 

NAPA appreciates the opportunity to provide comments on the EPA's proposed draft CGP. For the reasons outlined above, we are 

concerned that many provisions would impose unrealistic, significantly burdensome, and economically devastating requirements on 

construction site operators. We strongly urge EPA to focus on a BMP based and flexible approach to ensure the CGP is economically 

achievable, effective in reducing pollution from stormwater discharges, and workable on a national basis. EPA should focus on 

implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit requirements, 

and proven effective in protecting water quality. 
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Response 

Refer to Response 11.1. 

Comment ID 0039-A2.001.001

Author Name: Western Lennie 

Organization: Ames Construction, Inc. 

Issue Category: OPP 

We share EPA's goal of protecting water quality, but we are concerned that compliance with the proposed CGP would not be feasible. 

The cumulative impact of all the new requirements will have deleterious impacts on the business of construction. 

Response 

Refer to Response 11.1. 

Comment ID 0039-A2.001.003

Author Name: Western Lennie 

Organization: Ames Construction, Inc. 

Issue Category: OPP 

In conclusion, my company appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons outlined 

above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devastating 

requirements on construction site operators. We strongly urge EPA to focus on a BMP-based and flexible approach to ensure the CGP is 

economically achievable, effective in reducing pollution from stonn water discharges, and workable on a national basis. EPA should 

focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local penn it 

requirements, and proven effective in protecting water quality. 

Response 

Refer to Response 11.1. 

Comment ID 0096-A1.001.075

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: OPP 

NAHB urges EPA to fully consider the economic impact and limited environmental benefit of the proposed CGP. The proposed changes 

to the CGP would greatly confuse the construction industry due to its sheer size and complexity. The permit will require much more 

paperwork and the costs associated with the additional steps would have to be borne by the construction industry. Placing additional 
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requirements, rather than adequately assisting with compliance with existing policies and requirements already in place, will adversely 

impact the industry and the economy as a whole. 

Response 

Refer to Response 11.1. 

Comment ID 0114-A2.001.002

Author Name: Clowser Michael 

Organization: Contractors Association of West Virginia (CAWV) 

Issue Category: OPP 

In conclusion, The Contractors Association of West Virginia appreciates the opportunity to provide comments on EPA's proposed draft 

CGP. For the reasons outlined above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, 

and economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP-based and flexible 

approach to ensure the CGP is economically achievable, effective in reducing pollution from stormwater discharges, and workable on a 

national basis. EPA should focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing 

state and local permit requirements, and proven effective in protecting water quality. 

We encourage EPA to work closely with the commercial construction industry and the Associated General Contractors of America 

during the comment review process and as it continues its work on a final ELG and new CGP. 

Response 

Refer to Response 11.1. 

Comment ID 0141-A2.001.001

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: OPP 

Overall, the water quality provisions of the draft CGP are consistent with the provisions outlined in the previously issued 2008 CGP. 

However, there are provisions outlined in the draft CGP that reflect changes to impose more stringent monitoring and control 

requirements related to water quality. Detailed below are the concerns that the City of Nampa has on these new provisions listed in the 

draft CGP. 

Response 

Refer to Response 11.1. 
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Comment ID 0150-A1.001.003

Author Name: Borysenko Jim 

Organization: REI Engineering Inc. 

Issue Category: OPP 

In conclusion, my company appreciates the opportunity to provide comments on EPA`s proposed draft CGP. For the reasons outlined 

above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and economically devastating 

requirements on construction site operators. We strongly urge EPA to focus on a BMP-based and flexible approach to ensure the CGP is 

economically achievable, effective in reducing pollution from stormwater discharges, and workable on a national basis. EPA should 

focus on implementation of erosion and sediment control BMPs that are practical and consistent with existing state and local permit 

requirements, and proven effective in protecting water quality. 

Response 

Refer to Response 11.1. 

Comment ID 0158-A1.001.001

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: OPP 

As explained in the attached comments, NRECA is concerned that many of the benefits of a general permit will be lost if EPA adopts the 

CGP as proposed. The proposed CGP would require extensive site-specific effort to obtain coverage and thereafter to demonstrate 

compliance. The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These 

requirements include the 30-day waiting period for coverage, the obligation to install all BMPs before initiating construction, the 50-foot 

buffer requirement and the numeric turbidity limit.

Response 

Refer to Response 11.1. 

Comment ID 0171-A1.001.001

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: OPP 

The AIEC is concerned that many of the benefits of a general permit will be lost if USEPA adopts the CGP as proposed. The proposed 

CGP would require extensive site-specific effort to obtain data in order to demonstrate compliance. The draft CGP would appear to 

contain new and additive requirements that collectively would make it extremely difficult to apply a permit to specific project. These 

requirements include, but are not limited to the 30-day waiting period for coverage, the obligation to install all best management 

practices before initiating construction, and the 50-foot buffer requirement and the numeric turbidity limit. All of these requirements will 

have significant impacts on construction and operating costs, costs that would negatively impact our members and the members of each 
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Illinois cooperative. 

Response 

Refer to Response 11.1. 

Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: EXT

 
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EXT REQUEST TO EXTEND PERMIT/COMMENT PERIOD

Comment ID 0010-A1.001.001

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: EXT 

The Utility Water Act Group offers these comments in response to EPA's proposal to extend the expiration date of the above-referenced 

CGP from June 30, 2011, to January 31, 2012 (79 Fed. Reg. 22891, April 25, 2011). UWAG supports the proposed extension, and 

further supports a longer one if necessary, so that EPA can proceed with separate but related administrative proceedings in a step-wise 

fashion. In the pending CGP reissuance proceeding, EPA must incorporate the effluent limitations guidelines and new source 

performance standards for the construction and development point source category (the "C&D Rule"). The C&D Rule was finalized on 

December 1, 2009, but was subsequently remanded based on appeals filed by UWAG and other parties. As part this remand, EPA must 

address and resolve concerns raised by UWAG in the original C&D rulemaking, as well as correct the numeric turbidity limit. Unless 

and until EPA takes these actions on remand, EPA cannot meaningfully proceed with reissuance of the CGP. To date, EPA has not even 

released a proposal on remand. Recognizing that this proposal will be followed by a public notice-and- comment period, and thereafter 

by a final Agency action informed by the comments received, UWAG questions whether EPA has given itself sufficient time to finalize 

the remanded C&D rule, then revise and ultimately finalize the CGP on or before January 31, 2012. So, while UWAG strongly supports 

an extension of the currently effective CGP, UWAG urges EPA to make the extension long enough to accommodate the actions that 

need to occur, as well as to foster a meaningful public process on those actions. 

Response 

Refer to Response 12.1. 

Comment ID 0011-A2.001.002

Author Name: Colón-Zavala Emilio 

Organization: ECZ Group, Inc. 

Issue Category: EXT 

In view of unforeseen time requirements and delay for new CGP permit issuance resulting from "the uncertainty surrounding the error in 

calculating the 280 NTU limit and the appropriate way for EPA to address it..." [FN 4] it is obvious to all that more time is necessary. 

The PRHA understands, however, that the time allotted by EPA for concluding this complex regulatory process, with potentially 

significant impacts for the regulated community in Puerto Rico, should result in the extension of the 2008 CGP for what would be its 

full-five year term, which ends on June 30, 2013. 

[FN 4] 76 Fed. Reg. 22894. 

Response 
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Refer to Response 12.1. 

Comment ID 0013-A1.001.002

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: EXT 

NAHB is concerned about the timing of this review and believes the Agency should delay the EA until both the ELG numeric 

rulemaking is complete and all litigation associated with the ELG has been vetted through the courts. EPA should extend the CGP permit 

for the full 5 year term which will give EPA enough time to develop a defensible numeric limit and comply with applicable federal 

statutory requirements. 

Response 

Refer to Response 12.1. Refer also to Response 13.1. 

Comment ID 0013-A1.001.006

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: EXT 

The EA should be initiated after the C&D numeric limit is finalized and incorporated in the CGP. EPA should extend the existing CGP 

through its full term of July 13, 2013 in order for the Seventh Circuit litigation, EPA's new C&D ELG correction rule, and other issues 

raised in the proposed CGP to be addressed. 

Response 

Refer to Response 12.1. See Also Response 13.1. 

Comment ID 0031-A2.001.002

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: EXT 

OHBA recommends that EPA extend the 2008 CGP for its full five-year term, which ends on June 30, 2013, to provide EPA with much 

needed time and flexibility to further streamline the permits, incorporate the final Construction & Development ELG requirements, and 

allow the court to fully adjudicate all issues associated with the pending C&D ELG lawsuit. 

The current stormwater permitting program is burdensome and duplicative - especially for builders who are simply building one single 

family home on a lot within a larger subdivision. EPA is strongly urged to take the time needed to develop provisions to streamline the 

permitting process. OHBA recommends that EPA adopt a Single Lot Permit and enhance and facilitate the Qualifying Local Program 
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(QLP) provisions within the stormwater program. Reissuing the CGP provides an obvious and timely opportunity to clarify the permit 

process and provide ways to improve overall compliance with EPA's stormwater program. A single lot permit will allow builders who 

construct homes on single lots to better understand their permit obligations, thereby improving their ability to implement the necessary 

practices to reduce their impacts. Likewise, the QLP also simplifies the permitting process by allowing builders and developers to obtain 

and comply with one stormwater permit through their communities instead of multiple and duplicative permits issued at the federal, state 

and local levels. Not only does implementation of the QLP reduce burdens on builders, it can significantly reduce the administrative 

burdens of the state and local governments. The Single Lot Permit and the QLP implement necessary improvements to the CGP that are 

timely and appropriate. EPA is strongly urged to incorporate these new provisions into the draft CGP and to extend the expiration date of 

the 2008 permit to June 30, 2013, so that it has sufficient time to do so. 

Response 

Refer to Response 12.1. 

Comment ID 0040-A1.001.001

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: EXT 

The CGP is the vehicle by which the requirements of the Construction and Development (C&D) Effluent Guidelines are implemented, 

74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric utility industry argued, and the court agreed, that these final C&D effluent guidelines 

failed to address important concerns including the inappropriateness of the regulations when applied to linear development. See U.S. 

Court of Appeals of the Seventh Circuit Order in WBA, et. al. v. EPA, dated September 20, 2010. EPA issued a stay for parts of the rule 

and the rule has been remanded to address the flawed numeric limit and other issues raised by utility industry through UWAG. While 

EPA has yet to repropose the C&D rule 10 months after remand, EPA is nonetheless proceeding to implement its original requirements 

by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility industry and recognized by the courts. 

Sunflower encourages EPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued in response to the 

remand and affected parties have had a chance to review the new effluent guidelines and a revised CGP.

Response 

Refer to Response 12.1. 

Comment ID 0054-A2.001.001

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: EXT 

Issue: The proposed rule includes a placeholder reference for the final numeric limit on turbidity to allow EPA additional time to refine 

the calculation It is expected the revised numeric value will be public noticed prior to the expiration of the current Construction General 
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Permit (CGP) (currently January 31, 2012). U. S. Steel takes exception to the piece-meal issuance of the proposed rule as it is difficult to 

comment without fully understanding the ramifications of the numeric limit in relation to the other requirements of this proposed CGP. 

Given the refined calculation will most likely be complete by the end of 2011, it would have been more practical to simply extend the 

expiration date of the CGP (as was done in [FRL-9297-8; EPA-HQ-OW- 2008-0238]) and then issue the proposed CGP once the 

numeric limit was revised. 

Recommended Change: It is recommended for the EPA to extend the issuance of the proposed rule until the numeric limit is complete 

and issue the complete proposed rule for public comment to more completely evaluate the proposal. 

Response 

Refer to Response 12.1. 

Comment ID 0054-A2.001.002

Author Name: Harnack Fred 

Organization: United States Steel Corporation (USS) 

Issue Category: EXT 

Issue: The proposed rule indicates that " ... if any state permits expire after the effective date of a final rule containing the recalculated 

numeric limit, those states would be required under the CWA to incorporate the new numeric effluent limit into their construction storm 

water permits." It should be noted that the final rule would also include an extension of the first phase-in date from August 1, 2011 to a 

future date. 

Recommended Change: USS recommends that EPA provide the additional time afforded by the extension to incorporate the new 

numeric effluent limits into their statespecific construction storm water permits. 

Response 

Refer to Response 12.1. 

Comment ID 0055-A1.001.001

Author Name: Gucker Hans 

Organization: Ohio Department of Transportation (ODOT) 

Issue Category: EXT 

Sections of the (CGP) refer to effluent limitation guidelines. However, no current effluent limitations are determined. ODOT has 

concern about the permit being implemented without these limitations finalized. This makes it very difficult to assess potential impacts 

on erosion control budgets and ODOT's current development and planning process. We recommend postponing the proposed permit 

until the technical public has an opportunity to comment on these limitation 

guidelines. 
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Response 

Refer to Response 12.1. 

Comment ID 0074-A2.001.002

Author Name: Thompson Steven 

Organization: Oklahoma Department of Environmental Quality (DEQ) 

Issue Category: EXT 

However, EPA has stayed an enforceable numeric turbidity limit of 280 Nephelometric Turbidity Units (NTU) for certain larger 

construction sites since January 4, 2011. As a result, EPA's proposed CGP includes a placeholder for a recalculated numeric turbidity 

limit. It also includes corresponding permit requirements for monitoring, reporting, and the acreage threshold. DEQ's main concems 

with the proposed CGP include the unknown numeric limit on the stormwater discharges and some overly prescriptive erosion and 

sediment control requirements. DEQ encourages EPA to avoid including the numeric turbidity limit or associated requirements in the 

CGP until the EPA has promulgated revisions to the new regulation. 

Response 

Refer to Response 12.1. 

Comment ID 0080-A2.001.002

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: EXT 

The Partners strongly support the recommendation that the EPA delay the issuance of the proposed CGP until after the C&D numeric 

limit has been finalized allowing for incorporation into the CGP. To that end, the EPA should extend the existing CGP through its full 

term of July 13, 2013 before issuing the proposed CGP in order to allow the C&D numeric limit to be finalized. 

Response 

Refer to Response 12.1. 

Comment ID 0087-A1.001.005

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: EXT 

We are grateful that EPA extended the currently effective CGP-2008 from June 30, 2011, to February 15, 2012 (pre-publication notice 

available at http://cfpub.epa.gov/npdes/stormwater/cgp.cfm). However, we question whether the extension is long enough. Can the 

Agency propose and complete the C&D rulemaking on remand, and then propose and complete a CGP that incorporates the C&D Rule, 
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by next February? To date, EPA has not even released a C&D proposal on remand. So, while UWAG strongly supports the extension of 

the currently effective CGP, UWAG urges EPA to use the extension, and to provide additional time as necessary, to accommodate the 

actions that need to occur, as well as to foster a meaningful public process on those actions. 

Response 

Refer to Response 12.1. 

Comment ID 0093-A2.001.017

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: EXT 

EPA should extend the 2008 CGP for its full five-year term, which ends on June 30, 2013. EPA has the authority to extend the CGP 

through the entire five-year time period set forth in its NPDES regulations for such permits. See 40 CFR § 122.46. EPA needs the 

additional time to complete and defend its C&D ELG and to incorporate that rule's requirements into the CGP in a clear and reasonable 

way that will ensure the long-term success of its effort to regulate stormwater runoff. 

As of today, EPA has yet to propose any revisions to C&D ELG. If it published a proposal this month, EPA would still find it next to 

impossible to complete a new C&D ELG in the limited period (six to seven months) that it has already decided to extend the 2008 CGP. 

And EPA would find it well beyond impossible to wrap up the related litigation. EPA has been working on a proposal to revise the C&D 

ELG for nearly one year. That proposal is certain to require and/or include new analyses and assessments, and to raise new issues (such 

as linear construction). Give the complexity of the anticipated proposal, any comment period of less than 90-days would be unreasonable 

and unfair to the affected stakeholders (including AGC and its members). 

EPA requires a substantial period of time to review the public comments on most of its proposals, and to develop its options for a final 

rule. AGC knows of no reason to expect the rulemaking on the C&D ELG to be any exception. The long history of this rule suggests that, 

if anything, EPA will require more and not less than the usual amount of time. Ninety days would seem to be the minimum that the 

agency will require to complete those tasks. Then, the Office of Management and Budget will have another 90 days to review and then 

either approve or reject EPA's final package. EPA would be fortunate to complete its unfinished work on the C&D ELG package in 

another nine months. 

And then, it will need to give the Seventh Circuit whatever time the court requires to fully adjudicate all issues associated with the 

pending litigation. The court is holding several of the issues that industry has raised in "abeyance" until at least February 15, 2012. Many 

of them will bear on whether the new requirements included in the C&D ELG are consistent the Clean Water Act. These issues must be 

fully litigated before EPA inserts them into a new CGP. 

Response 

Refer to Response 12.1. 
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Comment ID 0154-A1.001.005

Author Name: Loehr Aaron 

Organization: Pace Construction 

Issue Category: EXT 

In addition, EPA should extend the 2008 CGP through the entire five-year permit term allowed by law, or through July 13, 2013. This 

time is needed to allow public participation and input into various critical CGP terms and conditions, prior to incorporating those 

provisions into a new permit. 

Response 

Refer to Response 12.1. 

Comment ID 0166-A1.001.007

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: EXT 

V. EPA is not allowing itself enough time to incorporate the final C&D ELG requirements into the CGP and to develop guidance on 

implementing the non-numeric BMPs required by that rule. My company suggests that EPA extend the 2008 CGP for its full five-year 

term, which ends on June 30, 2013. More time also is needed to allow the 7th Circuit Court of Appeals to fully adjudicate all issues 

associated with the pending C&D ELG lawsuit. Many of the issues raised could impact whether any of the new C&D ELG requirements 

that EPA has proposed to incorporate into the CGP are legally authorized under the Clean Water Act. These issues must be allowed to be 

litigated in full prior to inserting them into a new CGP and mandating compliance. 

Response 

Refer to Response 12.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: MISC

 
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MISC MISCELLANEOUS COMMENT

Comment ID 0017-A1.001.002

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: MISC 

In general, the proposed rule lacks flexibility for permittee's with the use of several "must", "all", and "any" statements. The rule should 

be revised to contain flexible options for permittee's in order to address site specific conditions. For instance, section 2.1.3.2 requires the 

installation of stormwater controls along all down slope areas of disturbance prior to construction starts in any portion of the site. It is 

unwarranted to install erosion controls in areas where earth disturbing activities are not occurring and then require the inspection of 

erosion control devices at the increased frequency identified in section 5.1.2. For a linear project which may include staged construction 

(depending on the length of the project), the regulations should allow for the installation of controls prior to site disturbing activities in 

the area construction activities will be performed.

Response 

Refer to Response 13.1. Refer also to Response 2.10 for the comment on down slope areas. 

Comment ID 0021-A1.001.008

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: MISC 

8. When will the online mapping tool for Water Quality Based Effluent Limitations be available? It is important for tools like this to be 

available long before permit issuance to give operators and permit holders adequate time to plan. 

Response 

Refer to Response 13.1.

Comment ID 0021-A1.001.025

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: MISC 

When will a new SWPPP Template be provided? a. It is important that this be provided in a sufficient amount of time before permit 

issuance to allow operators to develop new SWPPPs. 

Response 

Refer to Response 13.1.
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Comment ID 0021-A1.001.026

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: MISC 

Will the EPA be making any recommendations for Makes/Models of nephelometers along with associated training? 

Response 

Refer to Response 13.1.

Comment ID 0021-A1.001.027

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: MISC 

Will the EPA be providing training opportunities for this new permit before its issuance? 

Response 

Refer to Response 13.1.

Comment ID 0021-A1.001.028

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: MISC 

Will the EPA be making any recommendations for SWPPP Administration Software or Site Inspection Software at any time in the 

future? 

Response 

Refer to Response 13.1.

Comment ID 0026-A1.001.007

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: MISC 

1. As a threshold matter, the Chamber notes that the Congress, through the Information Quality Act, 44 U.S.C. § 3516 note ("IQA"), 

directed EPA to comply with the Office of Management and Budget's (OMB) information quality guidelines. See 44 U.S.C. § 3516 note 

(b); Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal 

Agencies, 67 Fed. Reg. 8452 (Feb. 22, 2002); see also Prime Time v. Vilsack, 599 F.3d 678 (D.C. Cir. 2010)(discussing IQA 

requirements). To comply, EPA must ensure all information disseminated with respect to a listing determination meet OMB's high 

standards for objectivity, utility, and integrity before it is disseminated and to substantiate information quality "through documentation 
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or other means appropriate to the information." 67 Fed. Reg. at 8459. 

The EPA's draft CGP permit provisions, including buffers (Notice § III(E)(2)), design requirements (Notice § III(E)(3)), stabilization 

criteria and pollution prevention standards (Notice §§ III(E)(9), (10) and (11)), discharge sampling and quality standards (Notice §§ 

III(E)(12), (13), (14) and (17)), and especially requirements for discharges to "sediment or nutrient-impaired waters" (Notice § III(E)(18) 

and (20)) ought to be informed by and in conformance with the IQA guidelines and the quality principles applied by Congress to risk 

information used and disseminated pursuant to the Safe Drinking Water Act Amendments of 1996, 42 U.S.C. 300g-1(b)(3)(A) & (B). 

The law is that the EPA must use the best available, peer-reviewed science and supporting studies conducted in accordance with sound 

and objective scientific practices and data collected by accepted methods or best available methods and must specify, to the extent 

standards or practices are based on risk estimates, the expected risk or central estimate of risk, each appropriate upper-bound or 

lower-bound estimate of risk, each significant uncertainty identified in the process and peer-reviewed studies that support, are directly 

relevant to, or fail to support the Agency's determinations. See 42 U.S.C. 300g-1(b)(3)(A) & (B). 

Response 

Refer to Response 13.1.

Comment ID 0026-A1.001.017

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: MISC 

F. The EPA ought to demonstrate that it has complied with all applicable IQA requirements in the formulation of all of the draft CGP's 

operational provisions. 

Response 

Refer to Response 13.1. 

Comment ID 0028-A1.001.003

Author Name: Jones P. 

Organization: 

Issue Category: MISC 

This permit exploded from 87 pages for the 2008 CGP, to 210 pages for the 2011 Proposed permit; I am not sure that it is necessary to 

"design a SWPPP", why not just include a copy of the CGP, with the appropriate forms for the EPA requirements, after all, it seems the 

goal has shifted from preventing actual polluting activities to rendering fines for documentation deficiencies, 

Response 

Refer to Response 13.1.
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Comment ID 0030-A2.001.029

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers, Inc. (WWE) 

Issue Category: MISC 

Throughout the CGP 

There are several cases of language in the proposed CGP that are "absolute" in nature and are therefore difficult to comply with. For 

example, truly "eliminating" track out from vehicles is very difficult to comply with; the same is true for prohibiting the discharge of any 

potential pollution. In practical terms, "minimizing" track out and the discharge of potential pollution is a more realistic requirement to 

comply with. This is reflected by the fact that the proposed turbidity limit is not zero because that is not practical. This suggestion applies 

to much of the absolute language in the proposed CGP. 

Response 

Refer to Response 13.1. 

Comment ID 0037-A1.001.023

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: MISC 

There appears to be an error on page 66 in Section VII.2.2 of the Fact Sheet regarding Part 2.2.2.1.c Additional Requirements for 

Vegetative Stabilization. The Fact Sheet states "If the permittee chooses the C‐factor stabilization approach, he/she must also meet the 

following requirements:" and then proceeds to list the requirements provided in Part 2.2.2.1.c. This statement in the Fact Sheet implies 

that the requirements listed in Part 2.2.2.1.c only apply if the permittee chooses to comply with the Cfactor criterion. However, based on 

our interpretation of Part 2.2.2.1.c, some of these requirements (i.e., Parts 2.2.2.1.c.ii - iv.) apply to both the 70% cover method and the 

C‐factor stabilization approach. Please clarify the correct interpretation of this permit requirement. 

Response 

Refer to Response 13.1.

Comment ID 0037-A1.001.050

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: MISC 

The last sentence on page 108 states "With respect of the second triggering condition (Part 6.2.2.3),....." Since Part 6.2.2.3 is the third 

triggering condition, this phrase should be changed accordingly. 

Response 

Refer to Response 13.1.
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Comment ID 0037-A1.001.051

Author Name: Valdez Bruce 

Organization: Southern Ute Indian Tribe Growth Fund 

Issue Category: MISC 

The first sentence on page 109 references a Part 6.2.2.4 in the proposed permit. There is no Part 6.2.2.4. Please clarify how the last 

sentence in the Purpose section relates to the third trigger condition in Part 6.2.2. 

Response 

Refer to Response 13.1.

Comment ID 0038-A1.001.004

Author Name: Minervini W. 

Organization: 

Issue Category: MISC 

According to Part VII.1.2 of USEPA's Proposed Construction General Permit (CGP) - Fact Sheet, "the requirements in Part 2.1.2 

implement the C&D rule's requirement to minimize the discharge of pollutants from the site by providing and maintaining ‘natural 

buffers around surface waters, unless infeasible.' See 40 CFR 450.21(a)(6)" [emphasis added]. This Fact Sheet did not, however, 

mention that (or explain why) the draft CGP definition of "buffer" (Appendix A) uses the phrase "streams, rivers, lakes, wetlands, or 

other waters of the U.S" [emphasis added] rather than "surface waters." (Appendix A of the draft CGP incorporates the 40 CFR § 122.2 

definition of "waters of the United States.") 

Response 

EPA notes that the 2012 CGP uses the term “surface waters” in the buffer provisions. Refer to Part 2.1.2.1 of the 2012 CGP.

Comment ID 0038-A1.001.007

Author Name: Minervini W. 

Organization: 

Issue Category: MISC 

Will USEPA provide practical guidance to prospective applicants for USEPA's new CGP about how "waters of the U.S." can be 

identified? Will administration of that CGP include "jurisdictional determination (JD) requests" and "preliminary JDs (PJDs)" (see the 

discussion of JDs and PJDs in the USEPA's April 27, 2011 report, Potential Indirect Economic Impacts and Benefits Associated with 

Guidance Clarifying the Scope of Clean Water Act Jurisdiction)? Will the USEPA and/or the Army Corps of Engineers respond to JD 

requests made for purposes of that CGP? If States issue NPDES CGPs that provide for "buffers" around "waters of the United States," 

will the USEPA and/or the Army Corps of Engineers respond to JD requests made for purposes of those State CGPs? If PJDs are allowed 

for purposes of USEPA's new CGP, will CGP applicants include those PJDs in their NOIs or other CGP documents? 

Response 

Refer to Response 13.1.
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Comment ID 0050-A2.001.002

Author Name: Winn Jane 

Organization: Berkshire Environmental Action Team (BEAT) 

Issue Category: MISC 

The Permit should require prevention measures to prevent the spread of invasive species including truck tire washing between sites, 

requirement that soil, fill, or other materials that are brought in be free of invasive species and seeds. 

Response 

Refer to Response 13.1.

Comment ID 0053-A2.001.050

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 

Issue Category: MISC 

Consider including a sample Inspection Sheet or a link to the EPA CGP approved inspection report: 

http://www.epa.gov/npdes/pubs/sw_swppp_inspection_form.doc 

Response 

Refer to Response 13.1.

Comment ID 0056-A2.001.001

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: MISC 

Within this draft NPDES permit there is an indication that projects permitted under §404 of the Clean Water Act need not obtain 

coverage under the general construction stormwater permit. If this interpretation is correct than the DER will revise our planning and 

permit protocol. However if being regulated under a §404 permit does not negate the need for a general construction stormwater permit, 

or there are specific instances where a permit is or is not needed,the DER would like to take this opportunity during permit review to 

make a case for considering restoration projects a unique category of construction projects. 

The DER's position is that restoration and revitalization warrant consideration of exceptions to specific sections of the 

general construction stormwater permit as this work strives for long term improvements to the function and values of aquatic, estuarine 

or coastal systems. To achieve long term ecological benefits work must be undertaken in resources 

areas and the DER would like to offer the following explanations to justify select exemptions to permit requirements. 

Response 

Refer to Response 13.1.
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Comment ID 0060-A1.001.001

Author Name: Gasper David 

Organization: NYS Department of Environmental Conservation 

Issue Category: MISC 

1. General - The terminology "unless infeasible" is used throughout the draft general permit. This language is subjective and should be 

deleted because it makes it very difficult for a regulator to ensure that an owner is complying with a permit requirement. If it is not 

deleted, the criteria, conditions and/or scenarios that allow for a specific requirement to be considered "infeasible" must be defined in the 

general permit. 

Response 

Refer to Response 13.1.

Comment ID 0062-A1.001.001

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: MISC 

1) EPA assumes everyone has access to the internet and the technical proficiency to understand and meet all the proposed requirements, 

many of which will pose major challenges to many small scale operations with limited personnel. Many small operators and 

municipalities will be unable to meet the technical requirements in the proposed General Permit. The impacts to small and rural 

operations will also encourage avoidance of the proposed requirements beyond the current levels. 

Response 

Refer to Response 13.1.

Comment ID 0062-A1.001.003

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: MISC 

3) Most of these requirements will be ignored unless EPA ramps up enforcement. In the current climate of tight budgets where will EPA 

obtain the funds for the numerous inspectors necessary to make these proposed criteria work? 

Response 

Refer to Response 13.1.

Comment ID 0062-A1.001.004

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office
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Issue Category: MISC 

4) Avoid including graphs and data from outside agencies, such as NOAA, which are subject to change by those agencies. In particular, 

the rainfall statistics are being revised and the old data should NOT be allowed for use once the new data is published. To allow use of the 

old data will induce "cherry picking" of the data by permittees. 

Response 

Refer to Response 13.1.

Comment ID 0062-A1.001.005

Author Name: McClure Bach 

Organization: Brevard County, Natural Resources Management Office

Issue Category: MISC 

5) Erosion downstream of erosion control measures may increase if the sediment load to the local channels is below the carrying capacity 

of the flow. Removal of 100% of the sediment is not always positive. 

Response 

Refer to Response 13.1.

Comment ID 0064-A1.001.001

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: MISC 

Will EPA re-issue Inspection Report Templates and SWPPP Templates to match new requirements? 

Response 

Refer to Response 13.1.

Comment ID 0064-A1.001.003

Author Name: Dees Richard 

Organization: City of Meridian 

Issue Category: MISC 

•Permit title is ambiguous about the type of discharges it addresses. Suggest adding stormwater to the permit title: "National Pollutant 

Discharge Elimination System General Permit for Stormwater Discharges from Construction Activities." 

Response 

Refer to Response 13.1.
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Comment ID 0065-A1.001.001

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: MISC 

CCWC supports a uniform NPDES CGP for construction activities that will protect our nation's water bodies. However, the CGP must 

be within EPA's regulatory authority and rational in scope and in its requirements, including accounting for the full range of construction 

activities that will be required to comply with its terms. 

Response 

Refer to Response 13.1.

Comment ID 0065-A1.001.003

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: MISC 

Providing alternative compliance measures, as the CGP does in several areas, does not resolve the underlying lack of authority, because 

the permit term measures compliance against a baseline requirement which EPA has no authority to impose. In addition, where 

compliance alternatives are provided, they do not provide adequate means to ensure that construction companies will be able to adjust 

their activities sufficiently to meet the alternative compliance terms. 

Response 

Refer to Response 13.1.

Comment ID 0065-A1.001.004

Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction (CCWC) 

Issue Category: MISC 

The CGP also fails to accommodate the full range of permitted activities, including the type of heavy construction and linear 

construction engaged in by CCWC members. In several areas as noted below, the CGP requirements are based on dissimilar typical 

project footprints or layouts. Even where the CGP allows alternative means to comply with the requirements, the alternative compliance 

measures are based on compliance measures required for typical or average construction projects. For large infrastructure projects of the 

type constructed by CCWC members, including hundreds of projects underway or in planning across the country, the terms of the CGP 

must be precise in their applicability to those types of projects. Permit terms that are vague or poorly fit to the permitted activity are 

arbitrary and arbitrarily create compliance uncertainty. Particularly because the penalties for noncompliance are so significant, permit 

terms must be clear and rationally related to the permitted activity and must establish clear lines for compliance. 

Where the CGP imposes irrational or unclear compliance requirements on sources seeking permits, EPA should amend the CGP terms or 

provide clarity in the final CGP. CCWC would be pleased to work with EPA to develop alternative approaches that are appropriate for 

the heavy construction sector, and provide these specific comments on the CGP. 
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Response 

Refer to Response 13.1.

Comment ID 0066-A1.001.001

Author Name: Saenz Amadeo 

Organization: Texas Department of Transportation (TxDOT) 

Issue Category: MISC 

We recognize that water quality concerns are a national and state priority, and the NPDES program is one of many components to ensure 

that water quality is maintained Controlling sediment and other potential pollutants in storm water runoff from construction sites, and 

maintaining the quality of waters of the U.S. and those of the State of Texas, is also a TxDOT priority. 

Our comments reflect our goal to minimize the administrative burden and encourage the development of practical, feasible, flexible and 

clear requirements. This would allow for the CGP to be implemented more effectively, and would therefore improve the overall quality 

of storm water runoff from construction sites, and maximize the environmental benefits through the implementation of this permit. 

Response 

Refer to Response 13.1.

Comment ID 0070-A1.001.001

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: MISC 

1. Alcoa is a member of both the Federal Stormwater Association and the Federal Water Quality Coalition, and endorses and 

incorporates by reference into these comments the comments on the CGP submitted by both organizations.

Response 

Refer to Response 13.1.

Comment ID 0070-A1.001.002

Author Name: Morton John 

Organization: Alcoa Inc. 

Issue Category: MISC 

2. EPA requested comments on 26 specific items in the CGP. Alcoa is providing comment to a number of those specific items. In 

general Alcoa believes the CGP should provide flexibility wherever possible and prudent, so for those items containing alternatives 

Alcoa would like to have the final permit include the various alternatives. 

Response 
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Refer to Response 13.1.

Comment ID 0087-A1.001.007

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: MISC 

The new draft CGP is very complicated and reflects a number of new, onerous, and poorly-defined obligations for permittees. The 

proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to simplify and standardize 

compliance expectations along a range of activities deemed to have similar environmental impacts, the proposed CGP would require 

extensive site-specific effort to obtain coverage and thereafter to demonstrate compliance. We believe this is inconsistent with the value 

and purpose of NPDES general permits, marks a departure from past EPA practice, and stymies the use and availability of the CGP for 

owners and operators of regulated construction sites. 

Response 

Refer to Response 13.1.

Comment ID 0087-A1.001.008

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: MISC 

Burden of proposed CGP conditions as applied to any particular project are excessive. 

The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These 

requirements include the obligation to obtain all CWA Part 404 dredge and fill permit(s) before being eligible for coverage, the 30-day 

waiting period for coverage, the obligation to install all BMPs before initiating construction, the 50-foot buffer requirement, the as-yet 

undefined numeric turbidity limit, the obligation to collect a minimum of three samples in connection with each and every storm event 

from each and every stormwater outfall (with limited opportunity to designate representative outfalls) on each and every day of 

discharge, and the more stringent expectations associated with discharges to impaired waters, coupled with an often ill-defined 

obligation to determine the impairment status of the receiving water body. [FN 5] 

[FN 5] Section 4.2 provides that "[i]f you discharge to an impaired water that is impaired for sediment or a sediment-related parameter, 

such as total suspended solids (TSS) or turbidity, and/or nutrients, including impairments for nitrogen and/or phosphorus, you are 

required to comply with the requirements in Part 4.2.2." This presumes a level of detail in state listing decisions that may not exist. In 

many states, impairment listing are tied to uses as opposed to criteria (e.g., aquatic life use impairment) and do not provide further detail 

on the specific parameters or stressors contributing to the use impairment. In these situations, it will be difficult if not impossible for 

affected permittees to determine if they have, in fact, triggered the requirements of Part 4.2.2. 

Response 

Refer to Response 13.1.
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Comment ID 0087-A1.001.042

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: MISC 

The CGP includes a number of different "daily" requirements. See e.g., Sections 2.3.2.5.c.i.(1) (pollution prevention standards for 

construction and domestic waste), 2.3.2.5.c.11.(1) (pollution prevention standards for hazardous or toxic waste), and 4.2.2.3.b (daily 

visual examination for discharges to impaired waters). EPA should clarify that daily means those days on which construction activities 

occur (e.g., would not ordinarily include weekends and holidays). 

Response 

Refer to Response 13.1.

Comment ID 0090-A1.001.008

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: MISC 

(3) Finally, AGA recognizes that EPA has limited direct jurisdiction to implement the Draft Permit. However, the federal Construction 

General Permit will effectively establish a baseline for state permits, which will be expected to be at least as stringent as the federal CGP 

- or more stringent. So by imposing unreasonable and unworkable requirements in the CGP, EPA will effectively move these same 

requirements into state permits. We understand that EPA regional offices have recently taken a heavy intervention and enforcement 

approach to states' permitting activities, using both its "objection authority" under the Clean Water Act and interim guidance letters to 

impose NPDES standards beyond the scope of what states' permitting authorities consider feasible and practical. We describe specific 

instances of this intervention below. 

Response 

Refer to Response 13.1.

Comment ID 0090-A1.001.042

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: MISC 

While EPA has limited direct NPDES permitting authority, [FN 11] AGA members are concerned that the more stringent parameters 

EPA proposes could make their way into states' permitting guidelines for linear construction projects. This is primarily because EPA has 

not hesitated to exercise expansive oversight authority over state permitting by way of Sections 402(b)(5) and (d)(1) of the Clean Water 

Act. [FN 12] EPA noted in a 2010 NPDES memo, for example, that "[w]here a state is not able or willing to make progress in addressing 

these important issues, a region may need to act. Actions may include prioritizing the issuance of permits, objecting to permits, 

conducting inspections for a particular sector or watershed, taking direct enforcement action in a state, or acting on specific 
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recommendations identified in permit or enforcement program reviews." [FN 13] 

[FN 11] Notice of Proposed Rulemaking, 76 Fed. Reg. 22890. 

[FN 12] These provides that states shall forward a copy of every permit application and action to the EPA, where a Regional 

Administrator may object to the proposed permit in writing within 90 days based upon specified grounds. 

[FN 13] U.S. EPA Memorandum, "Using the Results of the NPDES Permit and Enforcement Reviews to Address Significant Issues," 

October 22, 2010. 

Response 

Refer to Response 13.1.

Comment ID 0090-A1.001.043

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: MISC 

AGA members have noticed there is an alarming trend of EPA using CWA objection authority to impose interim guidance letters on 

states' NPDES permitting activities. For example, in West Virginia, EPA Region III issued two guidance letters in 2009 to the 

Department of Environmental Protection (DEP), ordering compliance with federal effluent limits and imposing an independent 

conductivity benchmark that DEP considered unattainable. [FN 14] This prevented DEP from obtaining required NPDES permits for its 

mine reclamation activities; to make matters worse, when DEP appealed the wholly impracticable set of guidance provisions, the Fourth 

Circuit held that DEP had no choice in the matter until Congress stepped in. [FN 15] The Court merely concluded: "Permit requirements 

are often, and sometimes understandably, a source of discomfort for those required to obtain them. If so, West Virginia can attempt to 

ease the burdens it foresees. It can petition Congress or the EPA to create exceptions to the CWA for states that move to ameliorate the 

problems private companies leave behind." [FN 16] Given this court's ruling, the current ability of EPA to impose federal standards 

through allegedly non-binding guidance documents may be construed broadly. AGA requests that EPA refrain from using such an 

end-run approach to implementing more stringent stormwater permitting requirements on existing state programs, and reconsider the 

disproportionate impacts such requirements would have on linear construction projects. 

[FN 14] Inside EPA, "EPA Mining Guidance Obstructing State Issuance of Reclamation Permits," 2010; U.S. EPA, "The Detailed 

Guidance: Improving EPA Review of Appalachian Surface Coal Mining Operations under the Clean Water Act, National Environmental 

Policy Act, and the Environmental Justice Executive Order," 2010. 

[FN 15] West Virginia Highlands Conservancy v. Huffman, No. 09-1474 (4th Cir. 2010), available at 

http://pacer.ca4.uscourts.gov/opinion.pdf/091474.P.pdf. 

[FN 16] Id. at 17. 

Response 
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Refer to Response 13.1.

Comment ID 0090-A1.001.044

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: MISC 

On a similar note, AGA urges EPA to reconsider its recent position on the Phase II stormwater regulations, as strong statewide 

permitting is more efficient and well-tailored to the environment cost-benefit calculus than a myriad of local government programs. 

Even as under current regulations, localities do not have to duplicate MS4 requirements that the state is already performing, See 40 CFR 

§122.35(b), EPA has pushed to impute federal permitting guidelines that mandate local permitting in this very manner. A telling 

example comes from Alabama, where businesses are currently disputing EPA Region IV's mandate that a local permitting process 

regulate construction sites over and above the state's permitting program.[FN 17] The contested Alabama Phase II MS4 General permit 

basically incorporates federal permitting guidelines independent of those set out in the state permit- an additional burden on questionable 

legal footing. Essentially, the Phase I and II unfunded federal mandate as imposed in Alabama, forces local government to act on 

standards without affording the state an opportunity to adequate notice and comment. Further, this scenario imputes the burden of 

haphazard local permitting to AGA's members, who must then manage a linear project involving multiple municipal jurisdictions. For all 

these reasons, AGA urges EPA to reconsider its approach going forward with this Draft Permit and its other NPDES rulemaking, that it 

support a strong, consistent, statewide approach to permitting programs and reject a one-size-fits all approach to the Draft Permit. 

[FN 17] Business Alliance for Responsible Development's Request for Hearing to Contest Administrative Action, In re Alabama Dept. 

of Environmental Management National Pollutant Discharge Elimination System Permit No. ALR040000, Alabama Environmental 

Management Commission, Docket ID. 11-05, 11-06 (March 2, 2011). 

Response 

Refer to Response 13.1.

Comment ID 0090-A1.001.045

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: MISC 

In addition to a policy of uniform state programs, AGA requests that EPA revisit its industry-focused best practices for stormwater 

management rather than imposing top-heavy regulatory regimes that require hiring, training, deploying, and supervising an army of 

construction stormwater inspectors. EPA should encourage the use of Qualified, Credentialed Professionals (QCPs) to develop and 

enforce Construction Best Management Practices Plans (CBMPPs). There is no question that the bleak fiscal picture in the states merits 

efficient allocation of their limited resources to important tasks like discretionary inspections and enforcement. Given that the 

professionally skilled private sector has a clear resource advantage in this area, EPA would be remiss to adopt regulations that reallocate 

responsibilities away from permittees. 

Response 
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Refer to Response 13.1.

Comment ID 0091-A2.001.033

Author Name: Burris Martin 

Organization: DEPARTMENT OF PUBLIC WORKS 

Issue Category: MISC 

33. General: Permit requirements are project specific based on site conditions, project features, and receiving waters. Recommend a 

table or other device to evaluate the project and direct the permitee to the correct requirements for the project. Guidance for the Toxic 

Release Inventory includes a flow charge to determine reporting requirements. This is an example of one method to explain regulatory 

requirements. 

Response 

Refer to Response 13.1.

Comment ID 0093-A2.001.018

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: MISC 

Reissuing the CGP also provides an opportunity for EPA to clarify and streamline the permit process and provide ways to improve 

overall compliance with EPA's stormwater program. For example, introducing the Qualifying Local Program (QLP) would simplify the 

permitting process by allowing construction site operators to obtain and comply with one stormwater permit throughout their 

communities, instead of the multiple and often duplicative permits issued at the federal, state and local levels. Not only does 

implementation of the QLP reduce burdens on builders, it can also significantly reduce the administrative burdens of the state and local 

governments. 

Response 

Refer to Response 13.1.

Comment ID 0093-A2.001.020

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: MISC 

The Information Quality Act, 44 U.S.C. § 3516 note ("IQA"), directs EPA to comply with the Office of Management and Budget's 

(OMB) information quality guidelines. See 44 U.S.C. § 3516 note (b); Guidelines for Ensuring and Maximizing the Quality, Objectivity, 

Utility, and Integrity of Information Disseminated by Federal Agencies, 67 Fed. Reg. at 8,452 (Feb. 22, 2002); see also PrimeTime v. 

Vilsack, 599 F.3d 678 (D.C. Cir. 2010)(discussing IQA requirements). To comply, EPA must ensure that all information meets OMB's 

high standards for objectivity, utility, and integrity before it is disseminated and that it meets substantiate information quality "through 

documentation or other means appropriate to the information." See 67 Fed. Reg. at 8,459. 
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The Draft, including buffers, design requirements, stabilization criteria, pollution prevention standards, discharge sampling and quality 

standards, and especially requirements for discharges to "sediment or nutrient-impaired waters" ought to be informed by and in 

conformance with the IQA guidelines. 

The law states that EPA must use the best available, peer-reviewed science and supporting studies conducted in accordance with sound 

and objective scientific practices and data collected by accepted methods or best available methods and must specify, to the extent 

standards or practices are based on risk estimates, the expected risk or central estimate of risk, each appropriate upper-bound or 

lower-bound estimate of risk, each significant uncertainty identified in the process and peer-reviewed studies that support, are directly 

relevant to, or fail to support the agency's determinations. See 42 U.S.C. 300g-1(b)(3)(A) & (B). AGC maintains that the metrics 

employed by the agency to develop the draft CGP's technical provisions, particularly those in Appendix J, Section 4, were created using 

procedures that are inconsistent with these requirements. Quite simply, more administrative transparency is needed and appropriate. 

Response 

Refer to Response 13.1.

Comment ID 0093-A2.001.069

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: MISC 

In fact, as the following paragraph explains, AGC believes that EPA should expand the "no discharge" concept to the entire permit 

program. Specifically, the CWA and its NPDES permit program regulate the discharge of pollutants from point sources to waters of the 

U.S. In order to be subject to the Act's provisions, one must meet the two-part test of having both a point source and a discharge. 

Conversely, if there is not a discharge, or if a discharge comes from something other than a point source, the CWA does not apply. 

Section 502(12) of the Act defines "discharge of a pollutant" to mean "any addition of any pollutant to navigable waters from any point 

source." Nowhere does the Act mention or indicate the need to obtain permit coverage for potential discharges. In 2008, EPA recognized 

that certain animal feeding operations do not discharge pollutants and therefore are not subject to sections 301 and 402 of the CWA. 

Thus, the agency finalized a process whereby Concentrated Animal Feeding Operations (CAFO) operators may certify that they do not 

discharge or propose to discharge pollutants. See 73 Fed. Reg. at 70,418 (Nov. 20, 2008). Because the CWA regulates actual discharges 

only, and, like CAFOs, all construction activities do not result in the discharge of pollutants from point sources, AGC urges EPA to 

adopt a similar program for construction activities. 

Response 

Refer to Response 13.1.

Comment ID 0093-A2.001.091

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: MISC 
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The proposed changes to the CGP would greatly increase its complexity and the cost of complying with its terms and conditions, putting 

site operators at a new and unprecedented level of risk of non-compliance, including fines of up to $37,500 per day. The proposed permit 

would rigidly prescribe the stormwater controls that operators have to put in place, require them to sample and test runoff for compliance 

with a new and still uncertain limit on turbidity, leave them liable for non-compliance with that limit even if they have implemented all 

of the prescribed measures, and require them to self-report any non-compliance to a publicly accessible database within 24 hours. It 

would also add a heavy layer of water quality benchmarks that EPA has not the information to justify. And it would do all of this before 

EPA has even established its new limit on turbidity or finalized the non-numeric provisions of the C&D ELG - all of which remain 

embroiled in federal litigation. What is more, EPA has neither calculated the economic and employment costs of these provisions nor 

disclosed or quantified their potential environmental benefits. With all due respect, AGC urges EPA to slow down, change course, and 

proceed in an orderly way that better reflects the enormous economic risks as well as the environmental rewards of its undertaking. 

Response 

Refer to Response 13.1. Refer also to the economic analysis developed in support of the 2012 CGP available in the docket for the final 

permit.

Comment ID 0096-A1.001.008

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: MISC 

 Under the current regulations, residential construction activities that disturb less than an acre, but are part of a larger common plan of 

development or sale that will ultimately disturb more than one acre must get CGP coverage. In reality, this means that nearly every single 

lot on which a home is built within a new subdivision must have permit coverage. While NAHB recognizes that uncontrolled discharges 

during active construction operations have the potential to negatively impact the environment, NAHB believes that the burden of the 

current CGP requirements on single lot operations far outweighs the environmental risk, especially given the fact that most of the 

single-family housing construction firms are small businesses. For these small site operations, the stormwater permit process can be 

confusing, overwhelming, and otherwise unreasonable, particularly given that many of the requirements are not applicable. NAHB 

believes there is a better approach that will achieve the same environmental protection, but eliminates many of the unnecessary and 

inapplicable aspects and burdens of the CGP and will promote widespread compliance. 

The reissuance of the CGP is an excellent opportunity to clarify the permit process and provide ways to improve overall compliance with 

EPA’s stormwater program. NAHB recommends that EPA adopt a Single Lot Permit. A single lot permit will allow builders building on 

single lots to comply with a streamlined permit, and improve overall compliance with the stormwater program because it will tailor the 

requirements to builders and eliminate any unnecessary mandates that apply to larger sites. This idea is not new. NAHB developed and 

submitted a proposed Single Lot Permit to EPA on November 19, 2007 (See Attachment I) [Please see Attachment I in the origional 

comment letter. Docket ID EPA-HQ-OW-2010-0782-0096-A1]. Similarly, several states have adopted some version of a Single Lot 

Permit and feedback from builders and regulators on those permits has been positive. 

The goal of the single lot permit is to authorize stormwater discharges from residential construction activities that occur on single lots 

(i.e., a single lot or lots within a larger subdivision). The reason NAHB drafted this permit was to clarify and simplify the permit 

requirements and better distinguish a builder’s responsibilities from those of a developer. In short, the CGP is largely written for 
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developers and other operators of large construction activities. Many of the components and directives are simply not applicable to 

someone who is constructing a single home on a single lot within a subdivision (for example, requirements to install sediment ponds). 

Because these requirements are not applicable, it makes little sense to 

include them in the permit, as it only creates confusion and uncertainty for the permittee. Further, it is obvious from construction starts 

statistics18 that there are thousands of home builders who would benefit from such a permit. 

Over the past several years, NAHB has heard complaints from homebuilders regarding the difficulty in both understanding the permit 

requirements and complying with them. Overall, our members agree that the detail and work related to the Stormwater Pollution 

Prevention Plan is overwhelming, complicated, and confusing, particularly as it relates to a single home site. We believe a single lot 

permit will clearly outline the BMP and other permit requirements for single home sites and therefore, foster higher rates of compliance 

among small residential construction sites within subdivisions resulting in enhanced protection of the environment. In light of the added 

burdens associated with the incorporation of the ELG and the differing requirements for larger sites, it makes even more sense to adopt 

a simplified permitting framework for builders building on single lots as soon as possible. 

NAHB urges EPA to review the attached Single Lot Permit and find a way to issue it (or a modified version) along with or as part of the 

CGP. We also would welcome the opportunity to work with the Agency to further refine the Single Lot Permit, as necessary. The Single 

Lot permit can be updated when EPA finalizes the numeric limit in the ELG. EPA could include the single lot permit either as a 

standalone permit or a chapter within the CGP, similar to the Multi-Sector General Permit (MSGP) which has different subparts to the 

main permit for different categories. The single lot permit will streamline the CGP requirements for small builders, and reduce burdens 

while improving compliance. Further, if EPA declines to implement such a streamlining package, NAHB points to the recent 

Memorandum on Regulatory Flexibility, Small 

Business, and Job Creation, which states, “whenever an executive agency chooses, for reasons other than legal limitations, not to provide 

such flexibility to a proposed or final rule that is likely to have a significant economic impact on a substantial number of small entities, it 

should explicitly justify this decision not to do so in the explanation that accompanies that proposed or final rule.” [FN 19] 

[FN 18] U.S. Census Bureau and U.S. Department of Housing and Urban Development, New Residential Construction in 

May 2011, June 16, 2011, accessed at http://www.census.gov/const/newresconst.pdf on July 11, 2011. 

[FN 19] 76 Federal Register 3828 (January 21, 2011). 

Response 

Refer to Response 13.1.

Comment ID 0096-A1.001.009

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: MISC 

On November 20, 2008, EPA finalized its Revised National Pollutant Discharge Elimination System Permit Regulation and Effluent 

Limitations Guidelines for Concentrated Animal Feeding Operations (CAFO), which included a voluntary option for an unpermitted 

CAFO to certify to the permitting authority that the CAFO does not discharge or propose to discharge. NAHB believes the enactment of 

a ‘no discharge’ certification program was a wise move to encourage the CAFO industry to eliminate discharges into waterways. 
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Because all land disturbing activities do not result in point source discharges, we soundly support the adoption of a similar program for 

construction activities within the CGP. 

The CWA and its NPDES permit program regulate the discharge of pollutants from point sources to waters of the U.S. In order to be 

subjected to the Act’s provisions, one must meet the two-part test of having both a point source and a discharge. Conversely, if there is 

not a discharge, or if a discharge comes from something other than a point source, the CWA does not apply. Section 502(12) of the Act 

defines “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source.” In 2008, EPA 

recognized that certain animal feeding operations do not discharge pollutants and therefore are not subject to sections 301 and 402 of the 

CWA. Thus, the agency finalized a process whereby CAFO operators may certify that they do not discharge or propose to discharge 

pollutants.[FN 20] Because the CWA regulates actual discharges only, and, like CAFOs, all construction activities do not result in the 

discharge of pollutants from point sources, the adoption of a similar program for construction activities makes sense. 

In certain areas around the country, developers engineer their property to retain all sites, the stormwater either evaporates or is absorbed 

into the ground, and no discharge of stormwater into waters of the U.S. occurs. To date, however, EPA has treated the CGP as a land 

disturbance permit rather than a discharge permit. The Agency’s position is that any person who disturbs land and has a potential to 

discharge stormwater needs a permit. Furthermore, EPA believes that any site with disturbed land has a potential to discharge 

stormwater. Therefore, according to EPA, if an operator disturbs land, he or she needs a permit. That is not what the Clean Water Act 

says however, and case law affirms that only “actual” discharges require permits. [FN 21] And further, EPA has no inherent authority to 

regulate sources themselves, unless 

there is a discharge of a pollutant. [FN 22] 

In Waterkeeper Alliance, the Court of Appeals for the Second Circuit made the requirement for an actual discharge perfectly clear: 

“unless there is a “discharge of any pollutant,” there is no violation of the Act, and point sources are, accordingly, neither statutorily 

obligated to comply with EPA regulations for point source discharges, nor are they statutorily obligated to 

seek or obtain an NPDES permit . . .. [I]n the absence of an actual addition of pollutant to navigable waters from any point, there is no 

point source discharge, no statutory violation, no obligation of point sources to comply with EPA regulation for point source discharges 

and no statutory obligation of point sources to seek or obtain an NPDES permit . . ..23” 

The Waterkeeper Alliance decision explicitly defined the differences between an actual discharge and a potential to discharge. The 

decision made it clear that there must be an actual discharge, not simply the potential to discharge in order to be regulated under the 

CWA. The court based its statement on the statute, and it therefore must apply equally to all point source discharges. It is not exclusive 

to CAFO’s. Contrary to the Waterkeeper Alliance decision, however, the Agency’s approach in regulatory construction activities has 

been to require permits if there is a potential for a discharge. [FN 24] Therefore because the Waterkeeper Alliance decision applies to all 

discharges, the agency should make a similar certification process available to construction site operators. 

The process of developing a parcel of land does not guarantee the establishment of a point source or the discharge of pollutants into 

waters of the U.S. Contrary to EPA’s assumption that all construction activities that disturb one or more acres result in a point source 

discharge, land disturbance activities can be conducted and sites can be designed to retain all water on site. For example, berms or 

buffers can be installed around the perimeter of a project to retain or 

infiltrate any water flow, while evaporation and/or infiltration devices can direct water into the air and ground. Similarly, many low 

impact development practices rely on using existing contours to minimize disturbance, mimic the natural hydrology, and increase 
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opportunities to recharge ground water supplies without resulting in a discharge. In many areas of the country, builders and developers 

purposely plan and conduct their ground disturbing activities during the dry season when there is less likelihood of precipitation events. 

In arid regions, it is not all that uncommon for a project to be completed that has never been exposed to a rainfall. Likewise, in some 

cases, particularly when dealing with smaller parcels in areas with little topography, there may be sheet flow or other non-point 

discharges from the site, but such discharges fail to meet 

the required two-part permit test (i.e., must have both a point source and a discharge). 

Despite these limitations, however, there is no mechanism in place by which a discharger may certify or otherwise notify the agency that 

no stormwater will exit the site. Absent a way to demonstrate this, EPA, as above, assumes everyone has or needs a permit. To eliminate 

liability, permittees who have designed their projects to retain all stormwater on site are forced to obtain a permit and comply with the 

permit terms to avoid future enforcement activity. Even though this is contrary to law, it seems to be the only recourse. NAHB continues 

to urge the agency to adopt a process to recognize those activities for which no discharge will occur, as it has done for the CAFO 

industry. Like the CAFO option, the construction operator “no discharge” option could certify that the construction activity does not 

discharge nor does it have a potential to discharge based on an objective assessment of the project’s design, construction, operation and 

maintenance. Not only will this ensure compliance with the Act, it provides a strong incentive for potential permittees to design their 

projects to retain stormwater on site. Building sites that control stormwater so that there are no discharges would provide maximum 

environmental benefits to both the local surface watershed and underground reservoirs. The availability of a no discharge certification 

would provide encouragement for builders and developers to explore the potential of meeting their stormwater requirements while 

contributing reduced pollutant loadings and improved water supplies. 

The adoption of a no discharge certification will also reduce the number of permits and administrative burdens faced by the permittees 

and the permitting authorities. EPA estimated that approximately 25 percent of the total universe of CAFOs would not discharge and 

thus would not need NPDES coverage under the 2008 final rule.[FN 25] Similarly, EPA posited that CAFOs that do not seek permit 

coverage because they do not discharge or propose to discharge will save approximately $14 million annually in reduced permitting 

costs.[FN 26] Assuming the construction industry could garner similar savings and efficiencies, such a program could garner significant 

benefits while still meeting its CWA obligations. Likewise, such an option would also further the Obama Administration’s goals to 

reduce unnecessary regulatory burdens and limit impacts on small businesses. 

[FN 20] 73 Federal Register 70,418 (November 20, 2008). 

[FN 21] Waterkeeper Alliance v. EPA, 399 F.3d 486 (2nd Cir. 2005). 

[FN 22] Natural Res. Def. Counsel v. EPA, 822 F.2d 104, 128-29 & n.24 (D.C. Cir. 1987) (“[T]he Clean Water Act 

regulates the discharge of pollutants, not the construction of new sources. The Act does not prohibit construction of 

a new source without a permit. . . . The Act only prohibits new sources from discharging pollutants without a 

permit.”). 

[FN 23] Water keeper Alliance, Inc. v. U.S.E.P.A., 399 F.3d 486, 504-5 (2nd Cir. 2005) (emphasis added). 

[FN 24] Applying for Coverage Under the Construction General Permit (CGP), 

http://cfpub.epa.gov/npdes/stormwater/application_coverage.cfm#coverage (explaining that “[i]n general, you need 

to apply for coverage under the CGP if your construction site will disturb one or more acres . . .,” yet failing to 

recognize that a discharge is also required); NPDES General Permit for Storm Water Discharges from Construction 

Activities-Fact Sheet, p.4, http://www.epa.gov/npdes/pubs/cgp2003_fs.pdf (providing “If there is a potential for a 

discharge, you need to apply for coverage under this permit.”). 
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[FN 25] 73 Federal Register 70,469 (November 20, 2008). 

[FN 26] Id. 

Response 

Refer to Response 13.1.

 

Comment ID 0096-A1.001.010

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: MISC 

Stormwater compliance has been further complicated by the multiple layers of regulation. In addition to state- or federally-issued 

NPDES permits, most construction site operators must also obtain a permit from the county and/or municipality. Filling out two or more 

sets of applications to control stormwater runoff from your project is overly burdensome, bureaucratic

and hinders efforts that could be made to improve environmental protection. It also creates confusion that may result in noncompliance 

issues because builders might assume that compliance with a local jurisdiction’s permitting requirements also meets state or federal 

obligations. 

Recognizing the challenges of satisfying multiple permits and their requirements, and in an attempt to minimize redundancy in the 

construction permit requirements, in 1999 EPA established a “Qualifying, State, Tribal or Local Programs” (QLP) option.[FN 27] This 

program is designed to streamline the regulatory requirements for construction site operators by 

incorporating the qualifying State, Tribal or local erosion and sediment control program requirements by reference into the NPDES 

permit. Once completed, permittees only have one set of requirements to follow, thereby significantly reducing overlap, duplication, and 

confusion. 

According to the regulations, a qualifying State, Tribal, or local erosion and sediment control program is one that includes: 

(i) Requirements for construction site operators to implement appropriate sediment and erosion control best management practices; 

(ii) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, 

chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality; 

(iii) Requirements for construction site operators to develop and implement a stormwater pollution prevention plan (A stormwater 

pollution prevention plan includes a site description, descriptions of appropriate control measures, copies of approved State, Tribal or 

local requirements, maintenance procedures, inspection procedures, and identification of non-stormwater discharges); and 

(iv) Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.[FN 28] 

Because these same elements are required for both the QLP and the “Construction Site Runoff Control” measure in all Phase II 

municipalities, meeting these baselines should not be difficult. As a result, it would be reasonable to believe that the use of QLPs would 

be widespread, but that has not been the case. Unfortunately, the program is so complicated that most states have not adopted the QLP 

language into their permits. For example, states must include the names of the 

QLPs in their permits, but because the permits are only authorized once every five years, there is an unrealistically small window of time 

in which programs can be recognized. Likewise, the municipalities have to submit extensive documentation to the state and receive 
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approval to be a QLP. The extra work for both states and municipalities has not created an incentive for the municipalities to participate.

EPA should revamp the QLP program to remove impediments and make it more attractive for state and local adoption. EPA also should 

work with the regions to educate them about the QLP and provide incentives or other enticements to increase state adoption of this 

language and streamline the permitting process. As Mr. Benjamin Grumbles, former Assistant 

Administrator, Office of Water, U.S. EPA, recognized, “[m]ore fully utilizing the qualifying local program will increase administrative 

efficiencies in the program and simplify the requirements for construction site operators.” [FN 29] 

In the CGP, EPA has not included any language on the QLP and NAHB is concerned that EPA is missing an opportunity to incorporate 

a provision that will simplify the permit and improve compliance. EPA should develop a process for facilitating and encouraging 

implementation of the QLP. The CGP should include a list of communities and associated permit 

language which will at least encourage more communities to be involved. NAHB is willing to work with EPA and regional Home 

Building Association staff to assist EPA in identifying communities that could be QLPs and to develop appropriate language to be 

included in the CGP. 

[FN 27] See 40 C.F.R. 122.44(s) and 64 Federal Register 68,777-68,778 (December 8, 1999). 

[FN 28] 40 C.F.R.122.44(s)(1). 

[FN 29] Memo from B. Grumbles, Assistant Administrator, Office of Water, EPA, to R. Varney, Administrator, Region I, 

EPA (May 8, 2006) (Qualifying Local Programs for Construction Site Stormwater Runoff), available at 

http://www.epa.gov/npdes/pubs/qlp_memo.pdf. 

Response 

Refer to Response 13.1.

Comment ID 0096-A1.001.014

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: MISC 

NAHB is particularly concerned about the cost implications of the new water qualitybased effluent limitations. According to EPA’s 

TMDL website, roughly 40,000 impaired waters have been identified within the 50 states. More than 13,000 of those 40,000 impaired 

waters suffer from nutrient and/or sediment impairments, requiring any NPDES permits for construction 

projects that may discharge to those waterbodies to contain a requirement for reductions of nutrients and/or sediment from the project’s 

stormwater discharges. In addition, to these known impaired waters, there are likely thousands of other water bodies that have not been 

assessed for water quality due to a lack of resources at the state level, so the number of impaired waterbodies can be expected to grow. 

Under the proposed CGP, all developments that disturb greater than ten-acres and discharge into an impaired waterbody must perform 

monitoring for the “action levels” given in the CGP. This means that thousands of projects will be subject to the additional, costly water 

quality-based monitoring requirement, yet the Agency has failed to consider these cost implications in its deliberations. 

Response 

Refer to Response 13.1.
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Comment ID 0096-A1.001.015

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: MISC 

Likewise, even more “waters” will likely be deemed impaired and additional monitoring will be required if the Agency finalizes the 

proposed “Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act,” recently released for public comments 

by the EPA and the U.S. Army Corps of Engineers. The guidance, according to EPA and the Corps, will 

bring more water bodies under federal jurisdiction, and thus require additional assessments by the states as to whether an impairment 

exists in those water bodies and if so, what is the cause of the impairment. The result is more areas where new homes are being 

constructed will have to be monitored under the CGP. 

Response 

Refer to Response 13.1.

Comment ID 0096-A1.001.060

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: MISC 

Likewise, even more "waters" will likely be deemed impaired and additional monitoring will be required if the Agency finalizes the 

proposed "Draft Guidance Regarding Identification of Waters Protected by the Clean Water Act," recently released for public comments 

by the EPA and the U.S. Army Corps of Engineers. The guidance, according to EPA and the Corps, will bring more water bodies under 

federal jurisdiction, and thus require additional assessments by the states as to whether an impairment exists in those water bodies and if 

so, what is the cause of the impairment. The result is more areas where new homes are being constructed will have to be monitored under 

the CGP. 

Response 

Refer to Response 13.1.

Comment ID 0100-A2.001.004

Author Name: Wirtz Matthew 

Organization: City Utillities, City of Fort Wayne, Indiana 

Issue Category: MISC 

The USEPA should define how compliance with this provision be enforced. 

Response 

It is not clear from the comment letter which provision the commenter is referring to. 
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Comment ID 0103-A2.001.003

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: MISC 

Federal storm water regulations provide flexibility in establishing best management practices to meet rule requirements. EPA's draft 

NPDES general permit for storm water discharges from construction activities includes many prescriptive requirements that go well 

beyond the requirements of federal rules. TCEQ requests that the flexibility in the storm water rules should be preserved in EPA's 

general permit, allowing operators to select best management practices that are appropriate for their site. Application of prescriptive best 

management practices on a nation-wide scale does not account for geographical and environmental differences. 

Comment ID 0103-A3.001.003

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: MISC 

Federal storm water regulations provide flexibility in establishing best management practices to meet rule requirements. EPA's draft 

NPDES general permit for storm water discharges from construction activities includes many prescriptive requirements that go well 

beyond the requirements of federal rules. TCEQ requests that the flexibility in the storm water rules should be preserved in EPA's 

general permit, allowing operators to select best management practices that are appropriate for their site. Application of prescriptive best 

management practices on a nation-wide scale does not account for geographical and environmental differences. 

Response 

Refer to Response 13.1.

Comment ID 0105-A2.001.001

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: MISC 

I. Stormwater Pollution from Construction Activities is a Critical Environmental Problem. 

"Stormwater runoff is one of the most significant sources of pollution in the nation, ‘at times comparable to, if not greater than, 

contamination from industrial and sewage sources.'" See Environmental Defense Center v. Browner, 344 F.3d 832, 840 (9th Cir. 2003), 

cert. denied, 124 S.Ct. 2811 (2004) (citing Richard G. Cohn-Lee and Diane M. Cameron, Urban Stormwater Runoff Contamination of 

the Chesapeake Bay: Sources and Mitigation, THE ENVIRONMENTAL PROFESSIONAL, Vol. 14, at 10 (1992) and Natural Res. Def. 

Council v. EPA, 966 F.2d 1292, 1295 (9th Cir. 1992)). 

Stormwater pollution is one of New England's most critical environmental problems, including in the two states where the provisions of 

the Draft CGP will apply: 
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 In Massachusetts, approximately 75% of assessed lakes and 70% of assessed rivers are impaired, and stormwater is the single largest 

source of water pollution in the Commonwealth. The vast majority of impairments in Massachusetts are attributed to nutrients, bacteria, 

and metals - pollutants commonly found in stormwater runoff. See Massachusetts Integrated List of Waters, Massachusetts Department 

of Environmental Protection ("MassDEP") (2010), available at http://www.mass.gov/dep/water/ resources/tmdls.htm. The Lower 

Charles River basin, landmark and anchor of the Boston metropolitan area, routinely suffers from seasonal blooms of toxic blue-green 

algae that can only be remedied by dramatic reduction in nutrient inputs from stormwater runoff in the watershed. See EPA and 

MassDEP, Final Total Maximum Daily Load Report for Phosphorus in the Lower Charles River Basin, MA (2007), available at 

http://www.mass.gov/dep/water/resources/tmdls.htm. 

 In New Hampshire, stormwater pollution is a significant and ongoing threat to the state's many surface waters. Of all the waters listed 

as violating water quality standards in 2008, eighty-three percent - consisting of 23,778 acres of lakes, and 1,524 miles of river - were 

deemed impaired wholly or in part as a result of stormwater. N.H. Dept. of Envt'l Servs., New Hampshire Water Resources Primer, at 

10-5 (Dec. 2008), at http://des.nh.gov/ organization/divisions/water/dwgb/wrpp/documents/water_resources_primer.pdf. There is a 

growing body of evidence regarding the effects of stormwater pollution in the state, such as significant chlorides-related impairments in 

southern New Hampshire, and major nitrogen-related impairments in numerous water bodies that are part of the Great Bay estuary, 

including in ecologically critical eelgrass meadows. 

As EPA and other national authorities have recognized, stormwater pollution from construction sites has especially severe impacts and is 

an important target for regulatory action by EPA. Lands cleared of vegetation for construction and not otherwise stabilized deliver much 

more sediment to downstream waters than either the original, vegetated area or the same area restabilized with vegetative cover 

following construction. Pollutants in construction stormwater contaminate drinking water, impair recreation in affected water bodies, 

harm commercial and recreational fisheries, and make floods more frequent and severe. See EPA, Effluent Limitations Guidelines and 

Standards for the Construction and Development Point Source Category (the "C&D Rule"), Preamble, 74 Fed. Reg. 62,996, 62,998 

(Dec. 1, 2009) ("Improper control of stormwater discharges associated with construction activity is a contributor of sediment, turbidity, 

nutrients and other pollutants to surface waters in the United States. Sediment (both suspended and deposited) and turbidity are common 

construction site pollutants and are significant causes of surface water quality impairment. . . . The sediment, turbidity, and other 

pollutants entrained in stormwater discharges associated with construction activity contribute to aquatic ecosystem degradation, 

increased drinking water treatment costs, and impairment of the recreational use and aesthetic value of impacted waters."). See also 

National Research Council, URBAN STORMWATER MANAGEMENT IN THE UNITED STATES, at 22, 26 (2008), available at 

http://www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf. Accordingly, EPA's general NPDES permit establishing limits on and 

requirements for such discharges has been and should continue to be a critical regulatory tool for improving water quality. 

Response 

Refer to Response 13.1.

Comment ID 0105-A2.001.018

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: MISC 
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CLF strongly urges EPA to include performance standards in the final permit reflecting Low-Impact Development ("LID") or "green 

infrastructure" stormwater management practices, and/or numeric effluent limitations that are commensurate with such standards. As 

CLF has demonstrated in recent comments to EPA Region 1 regarding proposed general permits for small municipal storm sewer 

systems, these practices are widely available, well proven, are generally more effective than conventional infrastructure at pollutant 

removal and volume reduction, and confer additional benefits to the community and environment.[FN 8] Performance standards based 

on LID/green infrastructure should be included as an appropriate means of compliance with the non-numeric effluent limitations of Part 

2 of the permit. At construction and development sites, such practices should be integrated into site planning, see Draft CGP, Parts 2.1.1 

and 2.1.2, and utilized in lieu of or in addition to conventional stormwater controls wherever possible, see Draft CGP, Parts 2.1.3 and 

2.1.4, and deployed during stabilization activities, especially final stabilization, see Draft CGP 2.2. CLF recommends that LID/green 

infrastructure be required - or at least be required to be evaluated - at sites discharging to impaired or other sensitive waters. Greater 

adoption of LID, including in the final permit here, will benefit communities by keeping pollutants and concentrated pulses of 

stormwater out of our rivers, ponds and streams, generating increased green space, cooling urban areas, and relieving cost and 

maintenance burdens on aging municipal stormwater infrastructure. 

[FN 8] See, e.g., Comments of Conservation Law Foundation on Draft General Permit for Small Municipal Storm Sewer Systems (MS4) 

for Massachusetts South Coastal, Merrimack, and Interstate South- Flowing Watersheds (Mar. 11, 2011), on file with EPA Region 1. 

Response 

Refer to Response 13.1.

Comment ID 0107-A2.001.004

Author Name: Conn Rachel 

Organization: Amigos Bravos 

Issue Category: MISC 

In addition, since it is common knowledge that EPA often negotiates away fines certain components in the regulated community view 

violating the Clean Water Act as an acceptable business risk. 

Response 

Refer to Response 13.1.

Comment ID 0113-A1.001.001

Author Name: Schroeder Marlene 

Organization: Parker River Clean Water Association 

Issue Category: MISC 

In the journal WETLANDS (v. 23, n. 1; March 2003), Gleason, Euliss, Hubbard, and Duffy have an article published called "Effects of 

sediment load on emergence of aquatic invertebrates and plants from wetland soil egg and seed banks." 

They demonstrated experimentally that as little as 0.5 cm (0.2 or 1/5 inch) reduces invertebrate emergence from the eggs that were left by 

previous generations by 99.7%! The soil egg banks tested were from the prairie pothole region of Montana, N. and S. Dakota, Minnesota 
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and Iowa. From the controls (the soil that was not buried by sediment), ostracods (seed shrimp), copepods (copepods), and 3 families of 

cladocerans (Daphnia) Macrothricidae, and Chydoridae) hatched out, and in numbers - nearly 10,000 individuals. From the samples that 

were buried with 0.5 cm of sediment (free of pesticides), only 29 individuals emerged. Wow! The numbers from 1 cm and 2 cm sediment 

treatments were lower yet. Of all of their 0.5 cm treatments, 84% hatched no animals at all, whereas only 14% of the 0 cm 

treatments(controls) hatched no animals. 

Construction site without adequate sediment protection have the potential to deliver immense amounts of sediment per acre per year off 

of the exposed land into adjacent and downstream water bodies, damaging aquatic ecosystems as exemplified in the above mentioned 

research. In addition to the threat of sediment, other contaminants are also carried into the wetlands and water bodies creating added 

pollution. 

One can easily observe failed sediment and pollution controls by just randomly driving past construction sites - commercial such as in 

industrial parks or malls, government projects along highways, and individual home construction or large condo developments. Better 

stormwater management and best practices are available to use in these cases. Parker River Clean Water Association strongly supports 

the proposed EPA Construction Stormwater General Permit and believes the EPA should further strengthen the permit to include the 

most effective and up to date control measures. 

Response 

Refer to Response 13.1.

Comment ID 0116-A2.001.001

Author Name: Bennett Karen 

Organization: National Mining Association (NMA) 

Issue Category: MISC 

As explained below, NMA believes that the Environmental Protection Agency ("EPA" or "Agency") should clarify that this draft 

General Permit is indeed focused on the construction industry and not the mining industry. NMA previously had commented on the 

EPA's November 28, 2008 Proposed Rule on Effluent Limitations Guidelines for the Construction and Development Point Source 

Category on February 26, 2008, and those comments are attached and hereby incorporated by reference. See Letter from Karen Bennett, 

NMA, to James Hanlon, U.S. EPA (Feb. 26, 2009). NMA also commented on and supported EPA's proposed rule to stay the numeric 

effluent limitations and associated monitoring requirements for the Construction and Development Point Source Category, as published 

on November 5, 2010, 75 Fed. Reg. 68,305. NMA's December 6, 2010 comments are also attached and incorporated herein by reference. 

EPA's draft General Permit for Stormwater Discharges from Construction Activities confirms that it is focused upon the construction 

industry sectors classified as "Building, Developing and General Contracting" (NAICS Code 233) and "Heavy Construction" (NAICS 

Code 234). These construction sectors are part of the broader NAICS Code 23 for the Construction Sector. Mining is listed under an 

entirely different NAICS Code, number 21. The NAICS Code appropriately describes the mining sector, in part, as follows: "The Mining 

Sector comprises establishments that extract naturally occurring mineral solids such as coal and ores. The term mining is used in the 

broad sense to include quarrying, well operations, beneficiating (e.g., crushing, screening and flotation), and other preparation 

customarily performed at the mine site, or as part of mining activity. . . . Mining support activities include establishments that perform 

exploration. . . ." See www.naics.com/censusfiles/NDEF21.htm. In contrast, to the mining sector, the "construction sector comprises 
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establishments primarily engaged in construction of buildings or engineering projects (e.g., highway or utility systems)." See 

www.naics.com/censusfiles/NDEF23.htm (emphasis added). These considerations indicate quite correctly that EPA does not intend to 

cover mining activities in this General Permit for Stormwater Discharges from Construction Activities. 

Furthermore, EPA's draft General Permit for Stormwater Discharges from Construction Activities notes the close relationship between 

the draft General Permit and the pending rulemaking to establish numeric Effluent Limitations Guidelines ("ELG") for the new 

Construction and Development Point Source Category. See 76 Fed. Reg. at 22,885 (Apr. 25, 2011). Mining is not subject to the proposed 

Construction and Development Point Source Category, in part, because mining activity is subject to its own longstanding effluent 

limitations (e.g., 40 C.F.R. Parts 434 (Coal Mining), 436 (Mineral Mining), and 440 (Ore Mining)) and the specific mining sectors of the 

2008 Multi-Sector General Permit ("MSGP") for Storm Water Discharges from Industrial Activity. Nonetheless, NMA members may be 

indirectly and unintentionally affected by this pending rulemaking and the draft General Permit, and so we urge EPA to reconsider and 

clarify the scope of this action. 

With the foregoing points in mind, we direct you to pertinent parts of the President's recent Executive Order No. 13563 on "Improving 

Regulation and Regulatory Review," dated January 18, 2011, which states: 

"Our regulatory system must protect public health, welfare, safety, and our environment while promoting economic growth, innovation, 

competitiveness, and job creation. . . . It must ensure that regulations are accessible, consistent, written in plain language, and easy to 

understand. Some sectors and industries face a significant number of regulatory requirements, some of which may be redundant, 

inconsistent, or overlapping. Greater coordination across agencies could reduce these requirements, thus reducing costs and simplifying 

and harmonizing rules. In developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote 

such coordination, simplification, and harmonization". [Emphasis added.] 

Following these principles, we urge EPA to make it clear that mining activities will continue to be subject to the mining-specific ELGs 

and the mining-specific sections of the 2008 MSGP. The mining industry must not be subjected to requirements that have been 

developed for the construction industry and which have been designed without consideration of the unique and dynamic nature of the 

large mine sites located in rural areas where stormwater discharges are heavily influenced by natural background conditions. 

Accordingly, EPA should clarify that the mining sectors will not be subject to the General Permit for Stormwater Discharges from 

Construction Activities and the associated Construction and Development ELGs. 

Response 

Refer to Response 13.1.

Comment ID 0118-A1.001.002

Author Name: Evans Michael 

Organization: Colaska, Inc. 

Issue Category: MISC 

VI. EPA and state enforcement of existing regulations tends to be irregular and inconsistent already. This lack of regular and consistent 

enforcement lends itself towards a wide disparity between stormwater controls implemented by various companies. Companies that 

work hard to achieve full compliance with regulatory requirements, at great cost I might add, are often under bid on construction jobs 
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that require expensive erosion and sediment controls and inspection and sampling requirements to comply with permit requirements. 

Contractors that do not adhere to these requirements are infrequently caught and punished for violations. Adding additional and 

expensive regulatory requirements without first addressing this issue will only widen the gap between the "good" contractors that work 

to abide by regulatory requirements and those that do not. 

Response 

Refer to Response 13.1.

Comment ID 0124-A2.001.001

Author Name: Eubanks Kevin 

Organization: Clark County Regional Flood Control District 

Issue Category: MISC 

The Stormwater Quality Management Committee (SQMC) was formed by the stormwater dischargers in the Las Vegas Valley 

subsequent to issuance of their first municipal stormwater permit by NDEP in 1990. The Las Vegas Valley permittees include the Cities 

of Henderson, Las Vegas, and North Las Vegas, and Clark County, Nevada with the Clark County Regional Flood Control District as 

Lead Agency. The SQMC has developed and implemented effective and innovative stormwater-control programs. These programs have 

been remarkably successful at controlling stormwater and abating erosion through the implementation of detention basins that reduce 

peak flows, and erosion control structures that stabilize areas prone to erosion. Some of these programs call for on-site requirements, 

consistent with the on-site focus of EPA's stormwater program, but other programs provide for regional solutions, which often provide a 

more direct and effective response to identified stormwater issues. EPA should keep its permitting program flexible enough to avoid 

discouraging effective regional programs or promoting programs that have little effect in unique environments. 

Response 

Refer to Response 13.1.

Comment ID 0124-A2.001.004

Author Name: Eubanks Kevin 

Organization: Clark County Regional Flood Control District 

Issue Category: MISC 

These are just two examples. In short, EPA should provide for flexibility in permit conditions, and allow state agencies such as NDEP to 

work with local municipalities in the arid Southwest to develop permit requirements that are appropriate for local conditions, and that 

will not cause environmental harm or interfere with local programs that are environmentally beneficial. 

Response 

Refer to Response 13.1.

Comment ID 0129-A2.001.001

Author Name: Lauenstein P. 
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Organization: 

Issue Category: MISC 

In 2005, the Sharon Planning Board approved construction of 51 housing units on approximately 10 acres of land. The development, 

known at the time as Hunter's Ridge, was granted a significant density bonus in exchange for agreeing to adhere to the conditions set 

forth in Sharon's Conservation Subdivision Design (CSD) bylaw. Sharon's CSD bylaw states, "The landscape shall be preserved in its 

natural state, insofar as practicable, by minimizing tree and soil removal." 

Neverthess, the construction site was stripped of all the trees right up to the property line (the Planning Board waived the 50-foot buffer 

requirement), and approximately 2,800 truckoads of fill were removed to level the site for construction. 

[See original comment letter Docket ID EPA-HQ-OW-2010-0782-0129-A2 for pictures.] 

This example demonstrates the relative difficulty of enforcing a vague standard, such as "minimize" or "to the extent practicable." 

Federal authority is needed, as existing local ordinances and bylaws don!t provide adequate protection and are not rigorously enforced 

by local authorities, who often face pressure from development interests. 

Clearer, objective standards are needed in the CGP as to the control measures construction site operators must implement to contain 

runoff and pollutants. Specified control measures must be adequate to contain the 2!!, 24-hour storm on site, and prevent erosion. 

Silt fences and hay bales are often ineffective at controlling runoff from storms of any significant size. More effective control measures 

are needed, especially at sites that are not flat. At a minimum, the increased requirements in the proposed CGP relating to maintenance of 

silt fences are an improvement and should be kept in the final permit. I support the proposed requirements that operators implement 

protective measures on steep slopes, avoid sensitive areas and stream crossings, establish a 50-foot buffer zone set back, and install truck 

wheel wash stations. 

Response 

Refer to Response 13.1.

Comment ID 0130-A2.001.005

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: MISC 

4. TRAINING. The level of complexity and detail of the new compliance requirements (such as benchmark monitoring or the corrective 

action iterative process) will require a large-scale training effort to ensure all parties are educated on the expanded permit requirements. 

ITD is greatly concerned about having enough time to develop, deliver, and implement the training required to achieve permit 

compliance. EPA has indicated the date the new permit would become effective, however, there is no date indicating when the final 

permit will be released. ITD will require lead time to identify budget and scope necessary to implement training. For a large agency like 

a DOT, a significant level of effort is required to develop a new training program by January 31, 2012. 

Response 
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Refer to Response 13.1.

Comment ID 0133-A2.001.003

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: MISC 

Additionally, some of the conditions in the proposed CGP appear to duplicate and/or expand upon other federal regulations (e.g. 

Endangered Species Act, Spill Prevention Control and Countermeasure (SPCC) requirements, etc.). MDT questions the reasonableness 

of including these provisions as Clean Water Act permit conditions, especially in instances where authority is being expanded outside of 

the current regulatory framework. For example, if the spec requirements are not adequate to address spill prevention, those requirements 

should be modified separately from the cap within existing regulatory framework. 

Response 

Refer to Response 13.1.

Comment ID 0134-A2.001.001

Author Name: Gaines John 

Organization: City and County of Denver, Department of Public Works 

Issue Category: MISC 

In those cases where we have observed erosion and/or sediment transport at construction sites, it can almost invariably be traced to one 

of a few common root causes: it is the result of improper implementation of properly designed and approved Best Management Practices 

(BMPs), operation without permits or BMPs, the implementation of an inadequate stormwater pollution prevention plan (SWPPP) 

prepared by unqualified professionals, or inadequately trained personnel implementing the SWPPP. None of the common problems 

observed at sites are the result of having inadequate regulations and permitting to control erosion, sediment, or pollutant transport, rather, 

they are consistently a failure on the part of the contractor/developer to follow current rules, regulations, and industry standards. 

Jurisdictionally, Denver has found that greater compliance with existing permitting and regulatory controls is gained through a 

combination of strict implementation of in-field compliance assistance and escalating enforcement strategies. 

Response 

Refer to Response 13.1.

Comment ID 0134-A2.001.002

Author Name: Gaines John 

Organization: City and County of Denver, Department of Public Works 

Issue Category: MISC 

Denver does have concerns with the draft CGP's apparent lack of flexibility for site specific conditions, regional climate and geologic 

conditions, and limited consideration for the variable nature of construction. For example, our experience indicates that many of the 

proposed requirements will be difficult, ifnot impossible, to meet for many kinds oflinear utilities, multi-model transportation, and in-fill 
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development projects. 

Response 

Refer to Response 13.1.

Comment ID 0134-A2.001.003

Author Name: Gaines John 

Organization: City and County of Denver, Department of Public Works 

Issue Category: MISC 

A third concern involves the proposed use of flocculants for treatment of stormwater runoff, which contradicts the current CGP for 

Stormwater Discharges Associated with Construction Activities and violates Colorado water quality regulation. 

Response 

Refer to Response 13.1.

Comment ID 0135-A2.001.001

Author Name: Orel Linda 

Organization: Massachusetts Association of Conservation Commissions (MACC) 

Issue Category: MISC 

Improperly controlled stormwater runoff continues to represent a serious threat to the overall quality and function of waterways 

throughout the nation and certainly within the New England region. One major contributor to such damaging runoff is from construction 

sites. Such runoff is notorious for the introduction of particulate matter into streams and rivers, leading to the contamination of these 

natural resources and associated harm to biological and ecological integrity and loss of vital functions such as fishery management and 

flood control. Construction site stormwater pollutants are not limited only to particulate matter however, poorly controlled construction 

site stormwater runoff can introduce a variety of other harms to natural watersheds, including but not limited to the introduction of toxic 

chemicals and or nutrients which can lead to water body eutrophication and possible plant and animal life loss through resultant 

anaerobiosis. Indeed, construction stormwater can contaminate drinking water, impair recreation in affected water bodies, harm 

commercial and recreational fisheries and make floods more frequent and severe.[FN 1] It is clear that the means currently employed to 

address this nationwide problem remain ineffective, and damage from construction site stormwater remains poorly-controlled and 

unnecessarily detrimental. 

[FN 1] See EPA, Effluent Limitations Guidelines and Standards for the Construction and Development Point Source Category (the 

"C&D Rule"), Preamble, 74 Fed. Reg. 62,996, 62,998 (Dec. 1, 2009); EPA, Report to Congress on the Phase II Storm Water 

Regulations, EPA Pub. No. 833-R-99-01 (Oct. 1999); National Research Council, URBAN STORMWATER MANAGEMENT IN 

THE UNITED STATES, at 22-26, 180-182 (2008), available at www.epa.gov/npdes/ pubs/nrc_stormwaterreport.pdf. 

Response 

Refer to Response 13.1.
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Comment ID 0135-A2.001.004

Author Name: Orel Linda 

Organization: Massachusetts Association of Conservation Commissions (MACC) 

Issue Category: MISC 

Effective enforcement based on clear and measurable standards of performance (such as, a specific numeric limit for discharge stream 

turbidity) and an effective monitoring program. The possibilities for infractions for the proposed runoff management program are 

myriad, effective inspection and ease of enforcement are essential to its proper function and the assurance of the environmental benefits 

that are achievable. 

Response 

Refer to Response 13.1.

Comment ID 0141-A2.001.008

Author Name: Jenkins Cheryl 

Organization: Stormwater Division, City of Nampa, Idaho 

Issue Category: MISC 

5. Additional Comment: As a member of the Association of Idaho Cities, the City of Nampa would like to express support for the 

comments on the draft CGP submitted by the Federal Water Quality Coalition. 

Response 

Refer to Response 13.1.

Comment ID 0142-A2.001.002

Author Name: Craycroft John 

Organization: Cedar Swamp Conservation Trust (CSCT) 

Issue Category: MISC 

CSCT's focus is on the Upper Sudbury River Watershed, like many areas, suffers from increased development that causes increased 

pollutant loadings to the areas ground and surface waters. One would think that because many of the surface waters in this area centered 

around the Cedar Swamp ACEC are to be protected from water quality degradation as Outstanding Resource Waters, the construction 

activities would receive a higher degree of oversight. Unfortunately this is not the case as MassDEP has repeatedly ailed to adhere to 

existing Surface Water Quality Standards required by the Clean Water Act. 

Response 

Refer to Response 13.1.

Comment ID 0147-A1.001.001

Author Name: Scott Rebecca 
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Organization: SECA 

Issue Category: MISC 

This new CGP contains significant challenges to those in the enforcement community, already burdened with reduced staffing and 

diminished financial resources. In the interests of transparency in government, as well as supplementing dwindling resources, we 

recommend that the EPA establish an online information and reporting resource, available to the general public. Such a resource could

provide mapping of active construction sites, as well as other pertinent information, made available to varying levels of access on a 

need-to-know basis from the general public to local enforcement staff to government officials to the specific Primary Operators. Anyone 

with internet access could determine levels of compliance and problem areas. In addition, such a resource could provide the formal 

enforcement community with additional "boot-on-the-ground" by enlisting the general public's assistance in reporting and compliance. 

Such a resource is currently in process being established in the state of New Jersey, and is already in ongoing use in Minneapolis, 

Minnesota and Southlake, Texas. Those in the construction community are well aware of the challenges to the EPA, to state Departments 

of Environmental Quality, and to local MS4s, in being able to adequately inspect and enforce, due to the limited resources available. The 

CURRENT CGP is not being adequately enforced. Given the new additional stringent requirements contained in this draft Permit, SECA 

believes such an online public resource to be an ideal way to meet the goals of transparency, public participation, and collaboration, as 

well as promoting efficiency and effectiveness in government. 

Response 

Refer to Response 13.1.

Comment ID 0150-A1.001.002

Author Name: Borysenko Jim 

Organization: REI Engineering Inc. 

Issue Category: MISC 

II. Since an apparatus as discussed above will likely come with expense and may be subject to maintenance issues or vandalism, I would 

further suggest a modeling approach to analyze the performance of BMPs. In this way, a combination of BMPs can be analyzed and 

verified to meet a discharge limit goal. It would additionally make sense to have a licensed professional engineer or a person with an 

approved certification in the field have to sign/seal the analysis. 

III. In junction with the modeling approach, we would also strongly suggest that a licensed professional engineer or person with an 

approved certification in the field have to review the implementation of the erosion control measures in the field to verify that the 

measures, as designed, were implemented. 

Response 

Refer to Response 13.1.

Comment ID 0153-A1.001.001

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: MISC 
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This proposed CGP includes many specific requirements that exceed the authority granted to EPA for implementation of a General 

Permit for Construction. Federal Register Document VOL. 55, No. 222, Friday, November 16, 1990, Section 122.26 (b)(x) and (c) as 

well as Federal Register Document Vol. 64, No. 235, Wednesday, December 8, 1999, Section 122.26 (b) (15) and following, does not 

give authority for specific requirements to regulate land use conditions. While we know that the authority is given to the Director in (v) 

in 122.26 to require what he/she determines as reasonable information from an applicant it does not allow the Director the authority to set 

specific requirements such as buffer strip width, slope steepness, or other hard and fast specific criteria that may be best ideas but not 

substantiated by performance criteria. In no way shape or form does the authority extend to control of the quantity of discharge. The only 

time a quantity control requirement could maybe be construed here is for the purposes of controlling erosion. Therefore, please remove 

all reference to specific numerical criteria referenced in the permit related to best practices. 

Response 

Refer to Response 13.1.

Comment ID 0158-A1.001.006

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: MISC 

The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to simplify and standardize 

compliance expectations for a range of activities deemed to have similar environmental impacts, the proposed CGP would require 

extensive site-specific effort to obtain coverage and thereafter to demonstrate compliance. This concern is only made worse by the new 

EPA/Corps Guidance on Identifying "Waters of the United States". Not only does the new permit add onerous requirements, the 

requirements would have to be met at many new locations on a project site because of the extremely broad scope of the new Waters of 

the United Sates guidance. In sum, we believe this is inconsistent with the value and purpose of general permits, marks a departure from 

EPA's typical stormwater general permits program, and stymies the use and availability of the CGP for owners and operators of 

regulated construction sites. 

The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These 

requirements include the 30- day waiting period for coverage, the obligation to install all BMPs before initiating construction, the 

50-foot buffer requirement, the numeric turbidity limit, the obligation to collect a minimum of three samples in connection with each and 

every storm event from each and every stormwater outfall (with limited opportunity to designate representative outfalls), and the more 

stringent expectations associated with discharges to impaired waters, coupled with an often ill-defined obligation to determine the 

impairment status of the receiving water body. 

Response 

Refer to Response 13.1.

Comment ID 0163-A1.001.002

Author Name: Fronczak Robert 

Organization: Assoc. of American Railroads 
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Issue Category: MISC 

AAR supports the comments of the Federal Stormwater Association. 

Response 

Refer to Response 13.1.

Comment ID 0171-A1.001.007

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: MISC 

General permits are normally used to simplify a permitting process and associated compliance actions. The proposed permit would 

appear to be burdensome, unclear and will result in significant increases in costs to our members. This general permitting effort would 

also appear to dovetail with other proposed guidance and rule by USEPA specifically the new Waters of the United States and obligation 

to determine the impairment status of a receiving water body. 

Response 

Refer to Response 13.1.

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: STR

 
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STR STRUCTURE OF THE PERMIT

Comment ID 0025-A1.001.001

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: STR 

Definitions contained in the body of the permit need to be consistent with those contained in Appendix A. We noted some discrepancies 

between the terms defined within the body of the permit and those same terms defmed in Appendix A. Inconsistency will cause 

confusion for both compliance and enforcement. 

Response: See Essay Response 14.1. 

Comment ID 0086-A1.001.004

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: STR 

The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to streamline and standardize 

compliance expectations for a range of activities deemed to have similar environmental impacts, the proposed CGP would require 

extensive site-specific effort to obtain coverage and thereafter to demonstrate compliance. 

Response: See Essay Response 14.2. 

Comment ID 0086-A1.001.006

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: STR 

Tri-State believes the approach that EPA has taken with the proposed COP is inconsistent with the value and purpose of general perm its, 

marks a departure from EPA's typical stormwater general permits program, and raises unn ecessa!), challenges to the use and avai labi 

lity of the COP for owners and operators of regulated construction s ites. 

Response: See Essay Response 19.1. 

Comment ID 0088-A1.001.004

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: STR 

The proposed CGP is voluminous, burdensome, and often unclear. While intended to simplify and standardize compliance expectations 

for a range of activities deemed to have similar environmental impacts, the proposed CGP would require extensive site-specific effort to 
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obtain coverage and demonstrate compliance. 

Response: See Essay Response 19.1. 

Comment ID 0088-A1.001.006

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: STR 

We believe this is inconsistent with the purpose and intent of the CGP, by adding more requirements, collectively rendering the CGP 

nearly unusable in practice. 

Response: See Essay Response 19.1. 

Comment ID 0126-A2.001.001

Author Name: Burke John 

Organization: Colorado Stormwater Council 

Issue Category: STR 

A general comment is the new permit's length has more than doubled in length since the 2008 version when all the appendices are 

included. Our hope is this increased information doesn't overcomplicate and become so prescriptive that an Operator cannot feasibly 

implement the permit conditions. Increased specificity in permit language simply adds cost to the project and potential litigation when 

contractors are required to implement BMP's that may not be best way to deal with water quality concerns. 

Response: See Essay Responses 19.1 and 14.2. 

Comment ID 0130-A2.001.004

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: STR 

3. FORMAT. The draft permit has sections and subsections to the sixth order heading (ex. 4.2.2.2.b.i.). The significant use of 

cross-referencing coupled with the micro-sublevel headings make the proposed CGP less readable, more cumbersome, and more 

difficult to navigate than the 2008 permit. 

Response: See Essay Response 14.2. 

Comment ID 0131-A1.001.028

Author Name: Gear Ken 

Organization: Leading Builders of America, Inc. (LBA) 

Issue Category: STR 

1. Permit Interpretation. Initially, and in regard to the Proposed CGP in its entirety, LBA is concerned that the Proposed CGP will be 

very difficult for the average permittee to understand and, as a result, comply with. The Proposed CGP is also very difficult to navigate 

as it makes many cross-references to other CGP sections throughout the text. This is contrasted with the 2008 CGP still in effect, which 
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presents its requirements in a much clearer manner. LBA recommends that EPA consider the Proposed CGP's readability and 

"understandability" in considering how it may be redrafted to be more easily interpreted. 

Response: See Essay Response 14.2. 

Comment ID 0168-A1.001.024

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: STR 

Permit Coordination and Consistency (Various): Compliance is usually better, if the regulatory requirements are relatively consistent, 

and easily understood. There are several sections of the draft permit that provide opportunities for coordination, clarification and 

consistency, in order to reduce redundancy, and to "keep it simple": 

-- Requirements for sampling and reporting are included into two places in the permit (Part 3.3.1 and both copied and referenced, in Part 

4.2.2.1 for sampling, and 3.3.9 and 4.2.2.1.e for reporting); this is somewhat redundant, and may lead to confusion. Suggest determining 

one protocol for sampling and reporting, and using it consistently. 

-- Very similar site stabilization requirements are presented in Section 2.2.1, 2.4.1.2c and 4.2.2.12, with slight differences with respect to 

days allowed for stabilization. Typically most contractors have one subcontractor performing site stabilization, at one time. Using one 

set of permit requirements for stabilization that could be applied to all sites regardless of site slope, adjacent impaired waters, and 

proximity to streams is highly recommended. 

-- There is an apparent cyclical reference between the third paragraph of Section 4.2, and Section 4.2.3 regarding EPA requirements for

discharging to an impaired water by a parameter other than sediment or nutrients. In each case, EPA will inform the permittee if any 

additional limits or controls are necessary. Deleting either the referenced paragraph in 4.2, or the entire Section 4.2.3 is recommended for 

greater clarity. 

-- The requirements for site inspection in Section 5.1.2 are not consistent with the requirements for water quality monitoring in Section 

2.2.1. Both activities are dependent upon precipitation events that cause site discharge and should probably be consistent. 

Response: See Essay Response 14.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: ENV ASSESSMENT

 
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ENV ASSESSMENT COMMENT ON NOTICE TO PREPARE AN 

ENVIRONMENTAL ASSESSMENT (EA)

Comment ID 0012-A1.001.001

Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: ENV ASSESSMENT 

The EA will analyze the potential environmental impacts of both alternatives on threatened and endangered species, water quality, and 

historic properties. 

Oceans and sea-level rise should be included in the areas of analysis. 

Response 

Refer to Response 15.1. 

Comment ID 0012-A1.001.002

Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: ENV ASSESSMENT 

The objective of this examination is to show where or to what extent the draft CGP proposes requirements that impose an incremental 

increase in costs on permittees above and beyond costs that are already accounted for in the 2008 CGP or in the C&D rule requirements, 

which together define the baseline of costs to which these permittees are currently subject. 

Costs on the taxpayer for any costs of polluted water or water supply restrictions should be included. In California, costs have been borne 

on the backs of the taxpayer and specifically the property owner for improper planning and execution of laws and regulations on all 

levels-local, state and federal. 

Response 

Refer to Response 15.1. 

Comment ID 0012-A1.001.004

Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: ENV ASSESSMENT 

In states like California with the California Environmental Quality Act CEQA, ongoing monitoring and mitigation is a living process 

past the construction activity. The Municipalities also have responsibility under the California State General Plan and its Elements 

environment documents for monitoring and mitigation. Though this is not a Federal issue by legislation, CEQA documents are used in 

lieu of NEPA on transportation issues making the California State CEQA requirements part of the NEPA process. Any mitigation and 

monitoring have a direct effect on pollution of stormwater. 
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(Please note that Oceans are not considered under CEQA.) 

The incorporation of other agencies requirements must be reviews by this agency to its appropriateness in the contribution of water 

pollution. 

Response 

Refer to Response 15.1. 

Comment ID 0012-A1.001.006

Author Name: Dillard J. 

Organization: Joyce Dillard 

Issue Category: ENV ASSESSMENT 

Source point contamination should be addressed in the requirements of testing points. In California, some have State jurisdiction, but 

there are no federal testing points and no federal enforcement, other than lawsuits. The State of California does not recognize Federal 

lawsuits and resulting decisions as their jurisdiction under the MS4 Permits (Natural Resources Defense Council, Inc.; Santa Monica 

Baykeeper, v. County Of Angeles County District ETAL Opinion No. 10-56017, US Court of Appeals, Ninth Circuit.) 

Not all basins have basin plans or are adjudicated. This presents a problem of responsibility and definition of "beneficial use." The 

permittee must have that designation in place to make polluting navigable waters a violation. 

Response 

Refer to Response 15.1. 

Comment ID 0013-A1.001.001

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: ENV ASSESSMENT 

The proposed EPA Construction General Permit is more protective that earlier versions of the CGP because it implements the 

requirements of the C&D ELG. It is therefore not clear why a NEPA review must be conducted. EPA has suggested in the past that the 

existing NPDES program already controls an estimated 80-90 percent of the sediment runoff from construction sites.[FN 1] New 

programs and program refinements that have taken place since 2004 have further improved this performance. 

[FN 1] 69 Federal Register 22,477 (April 26, 2004).

Response 

Refer to Response 15.1. 

Comment ID 0013-A1.001.003

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 
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Issue Category: ENV ASSESSMENT 

We also strongly believe EPA should limit its review of environmental issues associated with construction site stormwater runoff to 

sediment only and that the only realistic action is to adopt a version of a workable CGP. Our specific comments follow. 

Response 

Refer to Response 15.1. 

Comment ID 0013-A1.001.004

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: ENV ASSESSMENT 

EPA should not initiate the NEPA scoping process until the C&D ELG is finalized and incorporated into the CGP. 

Response 

Refer to Response 15.1. 

Comment ID 0013-A1.001.007

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: ENV ASSESSMENT 

Several studies have found that sediment is the only pollutant persistently contained in stormwater runoff from construction sites. In 

completing this analysis, EPA must acknowledge that sediment is the key pollutant, strike references to other pollutants that are 

unsupported, and continue to refrain from taking action to address any pollutant other than sediment. EPA must further recognize the 

balance necessary to reflect natural conditions and this industry's minor contribution of sediment relative to other sources. 

While EPA has broadly stated that there are a number of pollutants associated with stormwater runoff from C&D activities, [FN 2] the 

Agency has failed to provide sufficient data to support such generalized conclusions. In 1984, EPA initiated NPDES permit regulations 

for stormwater runoff from virtually all development projects in the nation. In 1985, NAHB implemented a Stormwater Sampling 

Program to show that stormwater discharges from construction sites were not a significant source of pollutants. This program collected 

stormwater samples from construction sites to evaluate the levels of certain EPA-specified pollutants. The study found that other 

pollutants are generally not present in significant amounts in stormwater discharges from construction sites, and that the sediment can be 

controlled effectively through the use of Best Management Practices. NAHB has been intimately involved in all aspects of the federal, 

state, and many local stormwater programs across the country for at least the past 25 years, and has a wealth of data and information that 

it has shared with EPA over this time period to help EPA better understand construction stormwater issues. 

For its part, EPA has provided little new information since 1985 to demonstrate that any pollutants other than sediment are consistently 

present in stormwater discharges from construction activities. While the Environmental Impact and Benefits Assessment for the C&D 

ELG identifies 11 reports that describe pollutants other than sediment found in construction site discharges or at elevated levels 

immediately downstream of construction sites, EPA concludes: "construction sites are not thought to be important sources of metals 

contamination;" construction activities during site development are not believed to be major contributors of [oil and grease and PAHs] 

contaminants to stormwater runoff;" and "construction site activities are not believed to be major contributors to pathogen contamination 
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of surface waters." Therefore, EPA is left with sediment and sediment alone, as the only pollutant of concern from construction site 

stormwater discharges. 

These findings meld well with the Agency's earlier conclusions. When proposing the ELGs in 2002, for example, EPA stated, "the most 

significant pollutant associated with construction activity at most sites is sediment." [FN 3] Similarly, EPA found that "discharges from 

this [construction] activity consist predominately of conventional pollutants under CWA Section 304(a) (4), in this case total suspended 

solids."[FN 4] In 2006, EPA reiterated its conclusions, stating that, "EPA did not identify in this [304(m)] Plan the construction industry 

because its discharges consist almost entirely of conventional pollutants." [FN 5] Finally, in discussing the considerations made when 

contemplating BAT during the 2004 rulemaking, EPA stated, "we do not have data indicating that these pollutants [toxic and 

non-conventional] are found in construction runoff nationwide."[FN 6] EPA is urged to rely on these statements and complete the EA to 

address sediment from construction sites and sediment only. 

[FN 2] See, for example, Development Document For Proposed Effluent Guidelines and Standards for the Construction & Development 

Category, November 21, 2008, p. 5-1, 73 Federal Register 72,571, 72,583. 

[FN 3] 67 Federal Register 42,654 (June 24, 2002). 

[FN 4] 69 Federal Register 53,718 (Sept. 2, 2004). 

[FN 5] 71 Federal Register 76,664 (Dec. 21, 2006). 

[FN 6] 69 Federal Register 22480 (April 26, 2004). 

Response 

Refer to Response 15.1. 

Comment ID 0013-A1.001.008

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: ENV ASSESSMENT 

EPA has suggested that the EA will consider two alternatives - No Action, which is not issuing the permit, and the proposed action, 

which is issuing the proposed CGP. NAHB submits that an additional option, in the form of a modified CGP, should also be analyzed. 

No Action. The No Action alternative is not a viable option. The Clean Water Act requires construction site operators who discharge 

storm water during construction to obtain NPDES permits if their activities disturb 1 or more acres of land area. In just those areas where 

EPA is the permitting authority, this mandate results in thousands of permits - permits that could not be efficiently or effectively 

reviewed or issued if not for the general permit program. Furthermore, the existing CGP framework has proven to be effective and 

should not be compromised. Permitees are now experienced in the process and the requirements, and have adapted their planning and 

construction practices to adhere to the program. To date, EPA has provided no data to suggest otherwise. 

Issuing a CGP. Issuing some version of a CGP, which has been specifically designed to provide flexibility and reduce burdens while 
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ensuring appropriate environmental protection, is the only reasonable option. EPA's permitting scheme and its current Construction 

General Permit (CGP) was purposely designed to allow flexibility in the design and implementation of BMPs, reflecting the 

fundamental recognition that the stochastic nature of precipitation and the variability of other site attributes (such as soils type and 

topography) affect the transport of sediment when it rains. 

The CGP allows all operators who are performing similar operations (e.g., construction) to quickly obtain permit coverage, yet includes 

stringent requirements to ensure water quality is not compromised. In order to be covered by EPA's baseline general permit, construction 

site operators must prepare a Stormwater Pollution Prevention Plan (SWPPP) and file a Notice of Intent (NOI) with EPA or the state 

permitting agency, then comply with the terms and conditions of the permit (i.e., install and maintain Best Management Practices 

conduct biweekly inspections, record any plan changes, etc.). While these requirements may appear simplistic, they are quite complex 

and burdensome. For example, EPA's "fact sheet" for the NPDES general permit for stormwater discharges from construction activities 

is 52 pages long [FN 7] and its guidance for writing the SWPPP (Developing Your Stormwater Pollution Prevention Plan: A Guide for 

Construction Sites) is 50 pages long.[FN 8] In addition, each permittee must comply with a set of twelve standard conditions that outline 

their duty to comply, as well as additional inspection and reporting requirements. These mandates help to ensure that the CGP does not 

result in unacceptable adverse environmental impacts. 

The alternative to the "streamlined" general permit is an individual permit, which requires considerably more information and 

paperwork, yet rarely results in any measurable environmental improvement. In addition to being more cumbersome to the permitees, 

individual permits must be submitted well in advance of conducting the activity (typically 90 - 180 days), may require additional 

inspections and monitoring, and require more oversight by program administrators. Because thousands of construction permits must be 

issued each year, and appropriate protections are written into the CGP, it makes little sense, either environmentally or administratively, 

to require the use of individual permits. 

[FN 7] See http://www.epa.gov/npdes/pubs/cgp2008_finalfactsheet.pdf. 

[FN 8] See http://www.epa.gov/npdes/pubs/sw_swppp_guide.pdf. 

Response 

Refer to Response 15.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: PROCESS

 
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PROCESS EPA INTERACTION WITH STAKEHOLDERS

Comment ID 0029-A1.001.005

Author Name: Pebley Trey 

Organization: McAllen Construction, Inc. 

Issue Category: PROCESS 

We encourage EPA to work closely with the commercial construction industry and the Associated General Contractors of America 

during the comment review process and as it continues its work on a final ELG and new CGP. 

Response 

See Response 16. 

Comment ID 0031-A2.001.009

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: PROCESS 

We encourage EPA to work closely with the home building industry and NAHB during the comment review process and as it works on 

the Draft COP. 

Response 

See Response 16. 

Comment ID 0093-A2.001.001

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: PROCESS 

AGC shares EPA's interest in protecting the waters of the United States, and in crafting a Construction General Permit (CGP) that will 

serve that purpose. At the same time, AGC has to insist on transparency, sound science and reasoned decision-making that accounts for 

economic and other relevant factors. To its regret, AGC finds that many provisions included in the Draft are neither required by law nor 

justified by any information that EPA has provided to the public. Nor is there any explanation for much of what EPA has proposed. If 

EPA has assessed the costs and benefits of the many unique features of the Draft, as required by both the Clean Water Act (see 33 U.S.C. 

§ 1314(b)(1)(B)) and Executive Order 13563, it has yet to subject that assessment to any kind of public review. In summary, AGC urges 

EPA to take the time it requires to put itself on a sound and defensible course. The agency should do this in accordance with the 

following comments and all relevant requirements for public participation in its decision-making process, for the protection of small 

businesses and to meet the desired objective of limitin any excessive costs of federal regulatory requirements. 
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Response 

See Response 16. 

Comment ID 0105-A2.001.016

Author Name: Courchesne Christopher 

Organization: Conservation Law Foundation (CLF) 

Issue Category: PROCESS 

CLF objects to the lack of any provision in the Draft CGP allowing opportunities for public review and participation in the permit 

coverage process. The Draft CGP provides no direct advance notice of, or opportunity for the public to comment on, NOIs. This is a 

serious and troubling omission because the public both has a right to know about proposed stormwater discharges and may have 

important information of which EPA should be aware that could be a basis for denying permit coverage. At a minimum, prospective 

permittees should be required to notify the applicable local government that a NOI has been filed, and the final permit should specify that 

EPA will provide real-time public access to all eNOI information submitted by permittees, including NOIs, sampling results, and other 

reports. As discussed above, the final permit should also require electronic posting of SWPPPs. 

Response 

See Response 16 and 8.17. 

Comment ID 0109-A2.001.008

Author Name: Campbell Elizabeth 

Organization: Nashua River Watershed Association (NRWA) 

Issue Category: PROCESS 

Public participation is a critical component of this permitting program. We call upon EPA to provide opportunity for the public to 

comment when each site operator applies for coverage by filing a Notice of Intent ("NOI"). NOls should be required to be submitted 

electronically, and all stormwater plans and monitoring data should be required to be posted on line and made available to the public. 

Response 

See Response 16. 

Comment ID 0135-A2.001.006

Author Name: Orel Linda 

Organization: Massachusetts Association of Conservation Commissions (MACC) 

Issue Category: PROCESS 

Public participation is an item of particular concern to MACC as our organization, comprising thousands of volunteer municipal 
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officials, serves as the "first line of defense" for the protection of surface water and wetland resources throughout the state. EPA should 

insist on the opportunity for public comment and discussion for any situation which meets the current criteria for the issuance of a 

construction stormwater permit at the stage of filing of the Notice of Intent. All stormwater permit related documentation, including 

plans and monitoring data should be required to be posted on line and made available to the public. 

Response 

See Response 16 and 8.17. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: LINEAR

 
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LINEAR GENERAL COMMENTS ABOUT LINEAR CONSTRUCTION 

WITH DO NOT FIT UNDER ANY PERMIT SECTIONS

Comment ID 0017-A1.001.001

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: LINEAR 

On April 25, 2011, a Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from 

Construction Activities was published in the Federal Register. The proposed rule was evidently written to address the construction at a 

limited site (housing development, strip mall, etc). Unfortunately, what may make sense for a 5 acre rectangle site does not necessarily 

make sense for a 60 mile utility line that crosses different topography, various soil types, and numerous landowners. As a consequence, 

linear utility projects would not be able to comply with multiple requirements of the proposed rules such as developing sediment basins, 

designating fueling areas, installing sediment barriers on all downslopes, monitoring storm water discharges, etc. The most logical 

solution is to have the rule exempt linear utility projects since their construction sites are completely different than the average house or 

store. 

Response 

Refer to Response 17.1. 

Comment ID 0040-A1.001.020

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: LINEAR 

Many of the proposed requirements raise unique challenges in association with linear utility projects in particular due to two primary 

factors that limit available options and decisions regarding erosion and sediment control - linear utility projects often are (i) narrow 

(approximately 30 to 150 feet wide, depending on the project); and (ii) constructed on easements provided by multiple landowners, 

rather than on purchased property. Additional unique characteristics of linear utility projects that are of significance to proposed CGP 

development include: (a) typical occurrence on very narrow rights-of-way and are designed to minimize impacts to the environment and 

adjacent properties; (b) possible extension over tens or hundreds of miles over different natural terrains and watersheds; (c) frequent 

construction in rolling segments, as in an assembly line; (d) a tendency to be short-lived; (e) rare involvement of fill, as might be 

expected in highway or other conventional development activities; and (f) obvious physical constraints against active treatment systems 

or structural BMPs like sediment ponds. 

Response 

Refer to Response 17.1. 

Comment ID 0053-A2.001.051

Author Name: Boesch Kevin 

Organization: Logan Simpson Design, Inc. 
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Issue Category: LINEAR 

Consider issuing a separate NPDES General Permit for linear projects such as transportation, or power transmission. 

Response 

Refer to Response 17.1. 

Comment ID 0061-A1.001.001

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: LINEAR 

I. SCOPE OF THESE COMMENTS 

The Draft Permit was crafted, as its predecessors have been, with the construction activities of conventional commercial and industrial 

builders and homebuilders primarily in mind. Such projects are characterized by controlled perimeters and a relatively small number of 

controlled discharge locations that serve the site as a whole or a substantial portion of the site. Although a small percentage of 

telecommunications-related construction is of this kind, the majority of our construction activities -- and the activities that we wish to 

address specifically in these comments -- involve the installation and maintenance of linear underground conduit infrastructure 

independent of any conventional construction project. For the purposes of these comments we refer to such projects as "Linear 

Communications Projects" or ("LCPs"). 

LCPs differ from traditional sites in a number of important respects. Although many provisions in the Draft Permit work well for both 

conventional construction and for LCPs, these differences make other terms impractical or simply infeasible in the context of LCPs. Not 

surprisingly, application of these other terms to LCPs produces costs out of keeping with those that would be incurred by more 

traditional construction projects, while generating little if any meaningful environmental benefit. 

The comments that follow first describe the activities that constitute LCPs and the factors that differentiate such projects from more 

traditional construction projects. They then identify the specific terms of the Draft Permit that are poorly suited to LCPs and the reasons 

for the misfit. Wherever possible, we also suggest alternative approaches that achieve the Agency's legitimate objectives in a manner that 

is consistent with the unique characteristics of LCPs. 

II. CHARACTERISTICS OF LINEAR COMMUNICATIONS PROJECTS 

As used in these comments the term Linear Communications Projects refers to projects within the telecommunications industry that are 

characterized by a narrow width [FN 2] of construction over a long distance that are not a part of a larger plan of development. These 

LCP construction sites are significantly different from conventional perimeter-bounded projects. 

A. Project Sites are Narrow, and Disturbed Area is Even Narrower 

Stand-alone LCPs typically are legally and geographically confined to easements and other rights-of-way. These easements often are 

fifteen feet in width or less. The actual width of earth disturbance is significantly less than that of the entire easement - no more than six 

to twelve feet, and sometimes as little as a foot or two, depending on the construction technique used. See Attachment A ("Photographs 

Illustrating Typical Easements, Construction Equipment, and Widths of Disturbed Area") [Please see Attachement A of the original 

letter (Docket ID 0061-A1.001.001)]. 
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This limited width of disturbance is determined primarily by the action of the specialized cable-installing equipment illustrated in 

Attachment A [Please see Attachement A of the original letter (Docket ID 0061-A1.001.001)]. The most common cable installation 

equipment is either a plow that directly inserts the cable or cable conduit underground and immediately backfills the trench to the 

original grade, or a trenching machine that cuts a narrow trench for subsequent placement of the conduit or cable. In rare instances a 

backhoe might be used to dig a short section of a trench for an LCP, such as if the soil is too rocky to allow use of a plow or trencher. 

Instead of plowing or digging a trench, sometimes a boring technique known as directional drilling is used. Boring is used when it is 

necessary or desirable to avoid disturbances to things such as a highway, paved driveway, stream, wetland, heavily vegetated area, or 

steep slope. A specialized drill rig is brought to the site, which drives a hollow tube down through the surface, along the desired path 

underground, and then back up to the surface at the desired location, In some cases, a specialized mud is used to assist the drilling, in 

which case a small pit ("bore pit") is dug by a backhoe at the entry point to contain excess drilling mud. Flexible cable conduit typically 

is then pulled through the hollow borepipe, which is then withdrawn. The footprint of such a drilling operation for an LCP, including a 

bore pit, typically remains within the fifteen-foot width mentioned above. 

The last type of disturbance worth mentioning as a frequent component of LCPs is the placement of a "handhole" to facilitate future 

access to the buried cable at a certain point, such as at a splice point. Typically a small backhoe is used to excavate a small hole to allow 

placement of prefabricated box-like structure, as also illustrated in Attachment A. Again, the width of disturbance for this type of 

operation typically remains with the fifteen-foot width mentioned above. 

B. Projects Often Run for Miles 

Also unlike traditional perimeter-bound construction, a cable-laying project can run for miles. This means that a single LCP can cross 

multiple political and regulatory boundaries, pass through multiple watersheds, and encounter a wide variety of soil, slope and 

vegetation types. 

Equally important, because LCPs intersect multiple drainage features as they cross the landscape, they are characterized by a multitude 

of discharge points. [FN 3] Five recent typical projects in four states had 75 crossings over 50 linear project miles, for an average of one 

crossing every 2/3 of a mile, or one and a half crossings per mile. Each crossing produces two discharge points, one from each side of the 

crossing. Thus, unlike discharge points from traditional perimeter-bound construction, which typically aggregate runoff from as much of 

the site as possible, discharge points from an LCP serve only a tiny fraction of the disturbed area that qualifies the project for permitting.

C. Active Construction Area is Small, and Constantly Moving Forward 

Construction activity on an LCP occurs in a very small and moving area over the life of the project. Unlike traditional projects, where the 

construction activity typically creates large areas of disturbance over the entire project footprint for the life of the project, LCPs typically 

open a small trench, lay or remove cable, and close the trench as the project proceeds. [FN 4] As a result, the area of active construction 

moves daily, with virgin territory ahead and temporarily or permanently stabilized project lands behind. This means that only a very 

small fraction of the total area of the LCP is actually disturbed at any given time, and that the duration of disturbance at any point is 

extremely limited in comparison with traditional construction projects and in comparison with non-communications linear projects. This 

limited duration of disturbance also minimizes spoil piles and returns the site to its original grade on a daily basis, limiting the potential 

for erosion and sediment transport. 

This same characteristic of a "moving site" also means that traditional notions of "entrance and exit" points do not apply neatly to LCPs. 
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The equipment that contacts disturbed soils (trenchers, backhoes, plows, directional boring machines, etc.) is transported to and removed 

from the site by flatbed truck or trailer and typically does not contact roadway. Instead, the off-road equipment typically stays on the 

truck or trailer while the latter pulls off the road and parks in a position parallel to the road but in the right-of-way. Then the off-road 

equipment rolls off and does its work. After that work is completed, the off-road equipment is picked up by the on-road transport vehicle 

(usually at a different spot farther down the right-of-way). When the on-road vehicle (truck or trailer) pulls off the road and onto the 

right-of-way, typically it does not thereby contact the disturbed portion of the construction site (i.e., the trench and sidecast materials). 

Therefore, soil tracking offsite by any of these vehicles typically does not occur. 

Photographs illustrating typical deployments are included in Attachment A, Section 5 [Please see Attachement A of the original letter 

(Docket ID 0061-A1.001.001)]. Because of the moving nature of the construction activity in a LCP, the scene in those photos may be 

re-enacted many times in the course of a job, but only once or twice at each location, as the off-road equipment is dropped off and later 

picked up. So the transport truck or trailer entering and leaving the right-of-way once or twice per location typically does not 

substantially disturb the surface. 

The moving site also typically has no fixed bulk fuel and other storage facilities to which conventional pollution prevention measures, 

such as berming or covering, could be applied. 

D. Little or No Capacity to Control Stormwater Run-On 

There is at least one other critical difference between traditional perimeter-bound construction and LCPs. On traditional sites, 

stormwater run-on typically is controlled, either by conducting it through the site in a way that isolates it from construction runoff or by

redirecting run-on and passing it around the construction site. In contrast, operators of linear construction sites have very little ability to 

control storm water running onto and across their sites. As opposed to conventional projects with grading to establish, manipulate, and 

control storm water flows, LCPs consist of an excavated trench, typically placed in a right-of-way easement or other right-of-way, with 

no change to existing grades within the LCP easement. 

As a result, the operator of an LCP typically has little or no ability to control the constituents or volume of stormwater run-on entering the 

site from existing off-site sources. Traditional barrier-type run-on and runoff controls are not feasible, practicable, or safe when 

attempting to control flows across the entire right-of-way. Indeed, isolation, by grading, berming or silt fencing along the length of an 

LCP trench or plow track would actually hugely increase the footprint of earth disturbance of each project, and thus have a net effect 

opposite to the Agency's policy goals. Moreover, in the common scenario of installing cable in or near a drainage: swale paralleling a 

road, [FN 5] installing a line of BMPs in order to prevent run-on would preclude drainage into the swale, thus frustrating the design 

purpose of the swale and possibly causing flooding of the road or adjacent land. Such disruption of previously engineered drainage may 

also violate the terms of the easement. 

One important consequence of the inability of the LCP operator to control stormwater run-on is the inability to reliably collect site 

discharge samples that characterize only the runoff from the area of the LCP land disturbance. Again taking the familiar example of 

construction along a roadside, all area storm water flows into a common roadside drainage ditch. The discharge from that ditch, 

therefore, includes stormwater originating throughout the watershed, including from the road and from other areas upslope of the 

telecommunications excavation, in addition to runoff from the LCP's narrow and temporary trench area itself. A single LCP several 

miles in length could have run-on from a great number of separate properties immediately adjacent to the LCP. 
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E. Little or No Capacity to Control Stormwater Run-off 

The operator of an LCP typically also has limited ability to control stormwater run-off. For instance, an LCP operator theoretically could 

install a line of BMPs paralleling the line of buried cable, which could contain the flow. However, doing so would create a sluiceway that 

would increase the erosive action of the stormwater thereby forced to run along the length of the plow line or filled trench. The LCP 

operator typically would be precluded by the limited width of the easement from installing a retention pond adequate to handle the 

problem largely created by such line of BMPs. 

Whenever the cable line lies near or in a roadside swale that eventually discharges to a stream crossing, the LCP operator has limited 

ability to capture or control the stormwater discharged there (most of which of course was drained from areas outside the LCP). Again, 

that is because the LCP operator's rights under the easement typically do not include the right to change the contours of the drainage way 

or to install a retention pond at the point of discharge. 

F. Limited Potential to Contribute to Sediment Loading 

Fortunately, the typical LCP has very limited potential to contribute to sediment loading, again due to its distinctive geometry and other 

factors specific to LCPs. Consider the classic case of an LCP in or near a roadside drainage swale. The disturbed area is typically 

returned to its original contours promptly, by the plow itself or by re-filling and compacting a trench and thus eliminating loose side-cast 

soil. Until that strip is revegetated, theoretically there is some increased potential for erosion. However, the potential for erosion is 

limited by the following factors: (1) the disturbed soil consists of a narrow strip; (2) the time of exposure of disturbed areas prior to 

initiation of stabilization measures is very short; (3) pre-existing contours are not changed; (4) runoff from the narrow strip of 

disturbance typically proceeds via sheet flow down the side of the swale, which typically is vegetated and has a modest slope, toward the 

center of the swale, and (5) as the runoff then passes down the length of the swale, it typically is again passing over a vegetated surface 

of modest slope. 

 * * * * * * * * * * * * 

We stand ready to provide further documentation of the differences between (A) traditional perimeter-bound construction and (B) LCPs 

of the kind routinely conducted by the telecommunications industry. We hope, meanwhile, that this brief synopsis of the key differences 

is useful to the Agency and provides a background against which to understand the following specific comments. 

[FN 2] Telecommunications trenches are typically less than I-foot in width, with ancillary disturbance from sidecast excavated soil and 

equipment footprint disturbance. 

[FN 3] One need only consider the number of culverts that convey creeks and streams under roadways to have a sense of the short 

distance between discharge points in LCPs. 

[FN 4] A typical LCP in an undeveloped area will progress at a rate of at least 500 feet per day, and up to 4,000 feet per_day in some 

situations._Installed cable is covered as the project proceeds, to ensure the integrity of the installed infrastructure, to avoid unnecessary 

flooding of an excavation, and to protect against vandalism. 

[FN 5] An LCP typically must be conducted within an easement no more than 15 feet wide. Standard practice is to place buried cable 

next to a roadside ditch or swale rather than inside the swale, if the easement space will allow. In a situation where the easement is not 

wide enough to allow this type of placement, standard practice is to place buried cable on the upper slope of the swale, rather than in the 
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lowest point of the swale. In the relatively rare instance when the cable must be placed in the lowest point of the swale, and/or if the 

swale is steeply sloped, a "check dam" or "ditch check" may be installed across the swale, to reduce the velocity of the flow and prevent 

erosion of the ditch. Ditch lines that have been disturbed are also restored and quickly stabilized (usually the same day) after placement.

Response 

Refer to Response 17.1 and Response 1.3. 

Comment ID 0061-A1.001.019

Author Name: Bond Grif 

Organization: Environmental, Health & Safety Communications Panel (EHSCP) 

Issue Category: LINEAR 

Finally, we ask that the Agency consider adding a limited exception from the permit's terms for emergency circumstances. 

Telecommunications not only are the foundation of our daily transactions and the infrastructure that supports our nation's economy, but 

also serve as critical links with life-and-death consequences. Health emergencies, law enforcement emergencies, resource management 

emergencies, and natural disasters of all kinds convert the telecommunication lines that carry our daily traffic into literal lifelines for 

those in need. In order to keep their systems operational in anticipation of and during crisis events our members need the ability to 

respond to service interruptions without delay and without concern that they must choose between providing the critical service and the 

satisfaction of permit requirements more appropriate to routine installation, maintenance and removal projects. 

The complexity of this question is such that it would be irresponsible to attempt in these comments to catalogue all of the potential 

conditions in which an emergency exception would be warranted. Similarly, it would be irresponsible to seek to enumerate all of the 

individual obligations under the Draft Permit that could potentially delay timely service restoration. We are prepared, however, to work 

with the Agency to responsibly identify categories of telecommunications maintenance that reflect legitimate emergency activity, and 

the limited number of permit terms that would need to be modified or suspended in order to enable those activities to occur in a timely 

and responsive manner. 

Response 

Refer to Response 17.1. 

Comment ID 0067-A1.001.002

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: LINEAR 

ESI's comments primarily concern the uncertain and potentially disturbing impact of the CGP on linear projects, such as those to 

construct, maintain, or repair electric transmission or distribution lines. Consequently, ESI requests that EPA make several changes to 

the applicability of the CGP to linear, right-of-way-type projects. Alternatively, EPA should develop a separate general permit that 

replaces this CGP and applies in a more tailored fashion to linear, right-of-way-type projects 

Response 

Refer to Response 17.1 and 2.5. 
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Comment ID 0067-A1.001.007

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: LINEAR 

EPA also should note that most servitude or easement documents only restrict landowner activities within the boundaries of the ROW. 

Land-use activities hydraulically-upgrade from the line ROW can drastically impact stormwater run-on water quality and could 

negatively impact water quality at the points of discharge from the project boundaries. EPA should clarify in the CGP that credit or an 

allowance for the quality of site run-on water can be reflected by the permitting authority in any conditions or parameters applies to site 

runoff under the CGP or in actions taken to enforce the CGP conditions. 

Response 

Refer to Response 17.1. 

Comment ID 0072-A2.001.001

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: LINEAR 

When reviewing the attached comments, and finalizing the draft CGP, MoDOT encourages the EPA to consider balance, and take into 

account the vastness of the transportation network, coupled with resource constraints and public expectations for the state departments of 

transportation. 

Response 

Refer to Response 17.1. 

Comment ID 0072-A2.001.022

Author Name: Muenks Nate 

Organization: Missouri Department of Transportation 

Issue Category: LINEAR 

As pointed out in the comments above, linear transportation projects differ significantly from other types ofland disturbance activities. 

As such, MoDOT encourages the EPA to consider developing a separate permit, specific to linear transportation projects, which is more 

suited to addressing the differences in construction approach from nonMlinear jobs. This permit separation proposal has already been 

broached, and is currently being petitioned within the MS4 program. 

Response 

Refer to Response 17.1. 

Comment ID 0086-A1.001.001

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: LINEAR 

Tri-State is subject to the ever increasing permitting requirements for construction and maintenance of transmission line infrastructure, 
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and is concerned that EPA continues to promulgate stormwater requirements that are frequently in appropriate for these types of linear 

construction and maintenance activities that utilities are required to perform by other state and fed eral agencies to ensure an on-go ing 

supply of reliable electricity. 

Response 

Refer to Response 17.1. 

Comment ID 0086-A1.001.020

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: LINEAR 

The proposed COP fails to recognize or provide any consideration for the unique challenges associated with linear utility projects for 

electric transmission service lines. Many of the proposed requirements raise unique challenges based on two primary factors that limit 

available options and decisions regarding erosion and sediment control - linear utility projects often are 

(i) on very narrow rights-of-way by design to minimize impacts to the environment and adjacent properties (approximately 30 to 150 feet 

wide) 

(ii) constructed on easements provided by multiple landowners, rather than on purchased property 

(iii) extend over tens or hundreds of miles over different natural terra ins and watersheds 

(iv) frequently constructed in rolling topography 

(v) a tendency to be short-lived 

(vi) rarely involve the use offill material, as might be expected in highway or other conventional development activities 

(vii) have physical constraints against active treatment systems or structural BMPs like sediment ponds 

Tri-State believes that EPA should provide more consideration for these particularly unique characteristics specific to the electric utility 

industry. 

Response 

Refer to Response 17.1. 

Comment ID 0087-A1.001.003

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: LINEAR 

We note, as well, that a number of the requirements in the CGP stem from requirements in the C&D Rule that were specifically 

remanded so that EPA could address UWAG's comments and concerns related to linear utility projects. Inasmuch as it is premature to 

apply the original turbidity limit, it is also premature to apply the non-numeric requirements that remain unresolved pending EPA's final 

action on remand. UWAG's comments and concerns in the C&D rulemaking centered on the applicability and feasibility of the following 

requirements in the linear context: (i) control stormwater discharges (Section 2.1.3.1.b); (ii) minimize soil compaction, which should 

(but does not) exclude access roads, equipment pads, and other similar areas on linear projects that, by design and due to their function, 

will be compacted and for which a variety of measures beyond those mentioned in the C&D Rule and CGP are available to deal with 
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compaction; (iii) provide and maintain natural buffers (Section 2.1.2), which as discussed below is unworkable for linear projects, 

particularly as this requirement is proposed in the CGP; (iv) install perimeter controls (Section 2.1.3.2.b), which are not reasonable for 

large (i.e., long) linear utility projects to implement along miles of linear construction and will result in hydrological barriers across 

miles of landscape in natural areas, would be impracticable if not unsafe on active urban streets, and would impair livestock and 

agricultural activities in rural areas; and (v) implement measures to minimize the exposure of stormwater to building materials and 

certain other construction site materials (Section 2.3.2.3.c), which, as discussed below, do not make sense as applied to certain linear 

utility project materials that are specifically designed to be exposed to the elements. 

Response 

Refer to Response 17.1 and 2. 

Comment ID 0087-A1.001.033

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: LINEAR 

In addition to the requirements of general concern for all utility projects (as described above), the following CGP requirements are of 

specific concern for linear utility projects, given their unique constraints. Linear utility projects (1) occur on narrow rights-of-way over 

which ownership may be both limited and varied; (2) extend tens or hundreds of miles over different natural terrains and watersheds; (3) 

often are constructed in rolling segments, as in an assembly line; (4) rarely involve extensive grading, clearing or filling, as is common 

with highway and other more conventional construction activities; and (5) may render active treatment systems and retention/detention 

basins infeasible due to site limitations, public safety, and energy reliability. By way of example, the type of sediment basins that are 

common at residential and commercial construction sites are entirely uncommon within utility rights-of-way because the areas of 

disturbance and, in turn, the stormwater flows, tend to be isolated and disconnected; the rights-of-way tend to be too narrow to 

accommodate the installation of basins; and the proximity of basins to high voltage electric lines and towers, or to gas pipelines, raises 

serious safety concerns. 

Linear utility construction, particularly overhead electric transmission lines, typically do not increase impervious surfaces or concentrate 

or re-direct stormwater. In fact, many such projects apply above-grade vegetation removal practices (rather than more traditional 

clearing and grubbing) such that the only actual disturbance occurs in the immediate vicinity of the line support structure. In short, the 

impacts from linear utility projects, if any, are minimal, temporary, and best controlled, where appropriate, with BMPs that are peculiar 

to the narrow linear setting (as compared to highways, shopping centers, or other planned commercial or residential development). [FN 

9] 

[FN 9] Many states further distinguish overhead transmission projects from other linear utility projects, because overhead projects do not 

create new flow patterns, concentrate flow, add impervious surface, or otherwise materially affect water quality. In these situations, 

attempting to install sediment and erosion control measures may actually be more disruptive than the project itself. We urge EPA to 

adhere to this distinction, as well. 

Response 

Refer to Response 17.1. 
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Comment ID 0087-A1.001.037

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: LINEAR 

General design requirements should, but as proposed in the CGP, do not consider design factors for utility line construction in existing 

paved areas (e.g., streets) where the amount of area disturbed, and thus the exposed soil, at one time is limited. Section 2.1.3. Also, peak 

flow rates and total stormwater volume controls (Section 2.1.3.1.b) are not feasible for linear projects because the control over flow rate 

presumes an ability to retain stormwater on-site. As noted above, linear utility projects typically are constructed within narrow 

easements or rights-of-way (or paved streets) that make it infeasible to construct and maintain retention structures on-site. 

Response 

Refer to Response 17.1. 

Comment ID 0088-A1.001.001

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: LINEAR 

Minnkota questions these significantly increased permitting burdens for transmission line construction activities with respect to how 

much real environmental improvement would occur by making additional changes to the already existing (mature and effective) 

stormwater management programs. This is particularly true as EPA continues to promulgate stormwater requirements that are not 

appropriate for the linear construction and maintenance activities utilities perform on transmission corridors. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.001

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

AGA offers these comments as a real-world, critical assessment of the Draft Permit's application to natural gas utilities' linear 

construction projects. While the Draft Permit's approach may fit traditional housing or shopping mall development activities, it is wholly 

incompatible with the narrow earth-disturbing activity and stabilization best practices used in linear construction projects. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.002

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

AGA members are directly affected by EPA's stormwater program because they construct and maintain natural gas facilities that 
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frequently require construction-related stormwater permitting. However, these gas utilities are not engaged in the type of construction 

that involves installing new buildings and acres of new impervious pavement. Instead, natural gas utilities typically obtain new NPDES 

permits for limited, temporary storm water discharges from digging short, narrow ditches to install gas lines, or for short-term (1-2 days) 

hydrostatic test water discharges. Thus, AGA members have substantial concerns that the Draft Permit overlooks the distinct nature of 

linear construction, imposing severe compliance burdens that impede natural gas service without any appreciable environmental 

benefits. As currently drafted, the Draft Permit would illogically extend criteria for traditional building and housing development and 

redevelopment to low impact, linear natural gas pipe projects. 

AGA believes that the distinct nature of pipeline installation warrants a different regulatory approach than that afforded to traditional 

development. Natural gas pipeline projects do not install acres of new impervious surfaces (e.g., asphalt parking lots, roads, buildings, 

concrete sidewalks or patios) that will make permanent changes to the hydrology of a large track of land. Instead, linear excavations take 

a short time and once the pipe is installed or repaired, soil is replaced and original contours restored, and the surface area is re-seeded 

with grass or native plants. (See Exhibits) And where existing impervious surfaces (e.g., pavement) are disturbed as part of the gas line 

installation, they are typically replaced afterwards and do not cause a net increase in impervious surface area. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.003

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

(1) The Draft Permit's blanket approach to stormwater controls is unreasonably burdensome for linear construction, particularly for 

smaller, non-transmission pipeline projects. As a threshold matter, the proposed controls focus on traditional "box" projects and does not 

provide practicable guidelines for linear projects.

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.005

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

(2) A substantial number of the Draft Permit controls are unachievable for pipeline projects, simply because implementation is beyond 

the utilities' control. First, these projects are conducted in right-of-way ("ROW") areas where utilities exercise no ownership of the 

multiple parcels of land over which the projects take place. Second, the projects operate alongside other permitted and non-permitted 

entities doing road improvements in the same ROW. 

Response 

Refer to Response 17.1. 
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Comment ID 0090-A1.001.007

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

A typical pipeline installation operation spans several parcels with distinct topography, demonstrating little need for artificial stormwater 

controls. AGA requests that EPA remove linear construction from the purview of these monitoring and inspection standards, and at 

minimum, distinguish and identify reduced reporting requirements for linear construction projects operating with other permitted and 

unpermitted entities working within the same ROW. 

Response 

Refer to Response 17.1, 3, and 5. 

Comment ID 0090-A1.001.009

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

AGA urges EPA to consider the ramifications of imposing the one-size-fits-all approach of the Draft Permit to state permitting 

programs. As AGA notes below, statewide permitting programs are appropriate for linear construction projects because they reduce the 

compliance burden of coordinating a linear project across municipal lines and impose standards that accurately reflect localized 

geographic and climatic conditions. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.010

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

AGA believes that the Draft Permit focuses on technology-based and water quality controls that have little bearing on linear construction 

operations. Utility projects are narrow, linear, and they are typically less than 25 feet wide. Gas service line projects are as narrow as 18 

inches. Under these conditions the slope length is extremely short and hardly warrants the erosion control measures proposed in the Draft 

Permit. AGA recommends that EPA include language specifying that for "utility projects disturbing a narrow corridor of earth, erosion 

controls need only be installed in areas of concentrated flow of stormwater runoff." 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.023

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 
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The Draft Permit is impracticable for pipeline linear projects, which mostly operate along ROWs where the utilities have no ownership 

over the surrounding area. Further, these projects could be conducted on roads possibly undergoing multiple improvement projects 

within the same ROW. Thus, land use regulations limit utilities' practical ability to impose the type of controls that traditional "box" 

projects could be expected to implement. Further, the presence of other operators conducting road improvements in the same ROW 

makes for a unique and disproportionate burden on linear construction projects if they must undertake reporting and inspection 

requirements that are clearly designed for traditional, expansive development and redevelopment projects. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.030

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

The physical circumstances of pipeline installation are incongruous with the Draft Permit's focus on controls for stormwater sheet flow 

and heavy soil erosion: these events are not a major concern in linear pipeline projects. As natural gas pipes meander over a wide mix of 

landscape, they encounter numerous stormwater flow barriers, including roads, driveways, trees, flora, and elevation contours affecting 

the stormwater flow over the length of a linear project. These existing barriers make it difficult for stormwater runoff to pick up 

contamination at one localized area and discharge it to another localized point. Further, a gas pipeline installation disturbs only a narrow 

width of soil, taking three to four thousand feet of linear length of pipe installation to disturb a one-acre area. On a given day, only a 

fraction of the project length is disturbed and back-filled or "buttoned up" at the end of each work day, leaving only laydown/storage 

areas for minimal potential erosion exposure. Further, any stormwater accumulation discharged from exposed trench area would either 

flow naturally over a diverse landscape of mixed permeability, or if contaminated, be subject to a best practices filtering method that 

prevents discharge to surface waters. In contrast, stormwater discharged from a housing "box" construction project is localized and 

concentrates impacts (e.g. stormwater volume, velocity) in one area. EPA should incorporate these fundamental distinctions and modify 

the Draft Permit accordingly. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.041

Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

It is clear that linear projects simply warrant a different regulatory approach and merit an exemption from the Draft Permit's proposed 

controls. 

Response 

Refer to Response 17.1. 

Comment ID 0090-A1.001.046
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Author Name: Lacey Pamela 

Organization: American Gas Association (AGA) 

Issue Category: LINEAR 

The Draft Permit's stringent, all-encompassing approach imposes unique and disproportionate burdens on natural gas utility 

construction. EPA should recognize that the Draft Permit addresses stormwater pollution concerns regarding increased impermeability 

from large-scale construction impacts. Linear natural gas projects should be regulated under a different regime than traditional land 

development activities, and should certainly not be subject to post-development stormwater controls. AGA strongly believes that both 

the regulated utilities and state/local regulators would benefit from EPA's adoption of a best practices or alternative permitting approach 

that properly captures small pipeline projects' construction footprint and operational constraints on ROW territory. AGA respectfully 

requests that EPA modify its approach to linear construction for the purpose of this permit and provide further guidance and rulemaking 

activity as it pertains to EPA's direct permitting authority and its authority to supervise states' permitting programs. 

Response 

Refer to Response 17.1. 

Comment ID 0130-A2.001.003

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: LINEAR 

2. LINEAR CONSTRUCTION NEEDS. A number of the new requirements, such as the 50 foot buffer and construction entrance, and 

providing the latitude and longitude of every discharge point, are more difficult to implement on linear projects. This permit fails to 

acknowledge the different characteristics and methods of the transportation industry, specifically DOT projects. 

Response 

Refer to Response 17.1, 2, and 2.3.6 

Comment ID 0133-A2.001.001

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: LINEAR 

As discussed in greater detail below, linear transportation projects present unique challenges to permit compliance. These projects often 

include multiple crossings of waters of the United States, are subject to right of-way constraints, and require that public access be 

maintained through the project site during active construction. Many of the comments below address proposed requirements that are 

often impracticable or infeasible in light of the circumstances unique to linear facilities. in an effort to develop a more understandable 

and uniform COP, MDT suggests developing a separate general permit for linear transportation facilities. Doing so would help 

streamline environmental requirements and result in a more understandable and easily enforceable pennit. It would also help alleviate the 

undue regulatory burden placed on transportation agencies to demonstrate infeasibility in many common instances. 

Response 

Refer to Response 17.1. 
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Comment ID 0158-A1.001.018

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: LINEAR 

Many of the proposed requirements raise unique challenges in association with linear utility projects in particular due to two primary 

factors that limit available options and decisions regarding erosion and sediment control - linear utility projects often are (i) narrow 

(approximately 30 to 150 feet wide, depending on the project); and (ii) constructed on easements provided by multiple landowners, 

rather than on purchased property. Additional unique characteristics of linear utility projects that are of significance to proposed CGP 

development include: (a) typical occurrence on very narrow rights-of-way and are designed to minimize impacts to the environment and 

adjacent properties; (b) possible extension over tens or hundreds of miles over different natural terrains and watersheds; (c) frequent 

construction in rolling segments, as in an assembly line; (d) a tendency to be short-lived; (e) rare involvement of fill, as might be 

expected in highway or other conventional development activities; and (f) obvious physical constraints against active treatment systems

or structural BMPs like sediment ponds. 

Response 

Refer to Response 17.1. 

Comment ID 0171-A1.001.002

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: LINEAR 

Utility transmission and distribution corridors would be considered "linear projects" for our members here in Illinois. AIEC is concerned 

that USEPA's failure to modify the permit to cover the unique situations presented by linear projects such as construction and 

maintenance activities on utility transmission and distribution corridors would severely impact our members abilities to provide 

reasonable electric rates and services. 

Response 

Refer to Response 17.1. 

Comment ID 0171-A1.001.016

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: LINEAR 

Many of the proposed requirements raise unique challenges in association with linear utility projects in particular due to factors such as 

numerous landowners involved and the overall narrow width of a project. 

Response 

Refer to Response 17.1. 

Comment ID 0171-A1.001.017

Author Name: Davis Stephen 
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Organization: Association of Illinois Electric Cooperatives 

Issue Category: LINEAR 

Areas that are cleared for overhead utility construction often do not meet the definition of land disturbance as much of electric utility 

rights of way are cut with materials being windrowed. This type of clearing does not disturb the root zone of the right-of-way easement.

Response 

Refer to Response 17.1 and 1.1. 

 
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Construction General Permit 

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NC NO CODE, SUPPLEMENTAL INFORMATION - USE FOR DATA SETS, 

POWERPOINT PRESENTATIONS OR ATTACHMENTS TO COMMENT 

LETTERS THAT PROVIDE SUPPLEMENTAL INFORMATION

Comment ID 0049-A2.001.001

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: NC 

Docket ID EPA-HQ-OW-2010-0782-0049-A2 not coded. Supplemental information for Docket ID EPA-HQ-OW-2010-0782-0049-A1.

Response 

Refer to Response 18.1. 

Comment ID 0083-A1.001.001

Author Name: HaloSource Frank 

Organization: HaloSource, Inc. 

Issue Category: NC 

Docket ID EPA-HQ-OW-2010-0782-0083-A1 not coded. Supplemental information for Docket ID EPA-HQ-OW-2010-0782-0082. 

Response 

Refer to Response 18.1. 

Comment ID 0084-A1.001.001

Author Name: HaloSource Carolyn 

Organization: HaloSource, Inc. 

Issue Category: NC 

Docket ID EPA-HQ-OW-2010-0782-0084-A1 not coded. Supplemental information for Docket ID EPA-HQ-OW-2010-0782-0082. 

Response 

Refer to Response 18.1. 

 
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CUMULATIVE IMPACT OF CGP AND OTHER REGULATIONS ON 

INDUSTRY

Comment ID 0036-A1.001.001

Author Name: President Mike 

Organization: National Asphalt Pavement Association (NAPA) 

Issue Category: CUMULATIVE 

We share EPA's goal of protecting water quality, but are concerned that compliance with the proposed CGP would not be feasible. 

Moreover, the cumulative impact of all the new requirements will have a detrimental impact on the construction business. As you may 

know, the construction industry is suffering from the worst economic downturn since the Great Depression. Millions of construction jobs 

have been lost since December 2007 as state and local governments grapple with budget deficits and the housing and commercial 

markets for construction declined sharply and are not expected to return to pre-2007 levels for years to come. Production of asphalt has 

declined over 35% since 2007 and as Congress continues to extend the Federal highway and aviation programs, there is very little 

certainty in the construction market from which construction companies can plan and invest in labor and equipment. Consideration of 

this rule should not be conducted in a vacuum. The overall fiscal health of the industry must and should be considered by EPA in 

evaluating the capacity of the industry to undertake such a burdensome regulation at this point in time. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0058-A1.001.001

Author Name: Ruane T. 

Organization: American Road & Transportation Builders Association (ARTBA) 

Issue Category: CUMULATIVE 

As part of every project with which they are engaged, ARTBA members must participate in a clearly-established transportation planning 

process. According to a report by the U.S. Government Accountability Office (GAO), as many as 200 major steps are involved in 

developing a transportation project from the identification of the project need to the start of construction. According to the same report, 

it typically takes between nine and 19 years to plan, gain approval of, and construct a new major federally funded highway project. This 

process involves dozens of overlapping state and federal laws-including dealing with stormwater issues. 

A study by the U.S. Federal Highway Administration (FHWA) found the time required to process environmental documents for 

transportation projects has doubled over the past two decades. In the 1970s, the average time for completion of an environmental impact

statement (EIS) was 2.2 years. Former U.S. Department of Transportation (U.S. DOT) Assistant Secretary for Policy Emil Frankel 

reported that from 1999-2001 the median time for completing an EIS was 4.4 years. However, delays in the transportation project 

environmental review and approval process are not only limited to large projects requiring an EIS. While FHWA reports three percent of 

federally funded transportation improvement projects require an EIS, the remaining 97 (90.6 percent). A report conducted by the 

National Cooperative Highway Research Program ("NCHRP") stated: 

"[D]elays in completing [EA and CE] reviews are encountered frequently despite the minimal environmental impacts associated with 

such projects. Even if such project-level delays are individually small, their cumulative impact may be significant because most 
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transportation projects are processed as CEs or EAs.[FN 1]" 

Water quality issues, including stormwater, are dealt with during the NEPA process. According to the report, 63 percent of all state 

DOTs responding to the survey reported environmental process delays with preparation of CEs and 81 percent reported similar delays 

involving EAs. These delays triple average environmental review times for CEs-from about eight months to just under two years-and 

have more than doubled review times for EAs, from under 1.5 years to about 3.5 years. 

[FN 1] Environmental Streamlining: A Report on Delays Associated with the Categorical Exclusion & 

Environmental Assessment Process, Prepared for the AASHTO Standing Committee on Highways by TransTech 

Management under NCHRP contract number HR 20-7(129) (Washington, D.C. Oct. 2000). 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0058-A1.001.005

Author Name: Ruane T. 

Organization: American Road & Transportation Builders Association (ARTBA) 

Issue Category: CUMULATIVE 

In conclusion, future stormwater permitting measures affecting transportation projects should allow for the level of flexibility needed to 

make sure stormwater issues can be addressed in a manner suited to the individual nature of the project in question. Further, the issues of 

cost and liability need to be taken into account to ensure permitting measures do not result in additional years of delay and unnecessary 

costs to affected projects. ARTBA looks forward to continuing to work with EPA on stormwater issues in a manner providing the 

necessary flexibility in order to allow the nation to balance environmental protections with necessary transportation infrastructure 

improvements. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0095-A1.001.001

Author Name: Martaus Cecilia 

Organization: AT&T Inc. and its affiliates 

Issue Category: CUMULATIVE 

AT&T provides communications, information and entertainment services to households, businesses, and federal, state and local 

government agencies nationwide. To provide these services, AT&T operates, maintains, and continuously adds to AT&T-owned 

infrastructure that includes thousands of miles of underground cable. Each year, AT&T has hundreds of cable installation and relocation 

projects that would be subject to the terms of the Draft Permit. AT&T's concerns and recommendations regarding the Draft Permit are 

included in the attached comments of the Environmental, Health & Safety Communications Panel, which AT&T endorses and hereby 

incorporates by reference 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0096-A1.001.012

Author Name: Asmus Susan 
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Organization: National Association of Homebuilders 

Issue Category: CUMULATIVE 

The CGP will increase the costs of stormwater management for nearly all construction projects. EPA states that the costs for 

implementing the CGP have been accounted for through the ELG rulemaking [FN 30]. Given EPA’s more prescriptive requirements in 

the CGP for several of the non numeric ELG requirements, however, and the addition of the water quality based requirements, it is not 

accurate to state that all the costs have been accounted for in the C&D ELG rulemaking. For example, the buffer requirement and steep 

slope provision will be more costly because the requirement in the CGP is much more stringent than the ELG. The costs will also vary 

depending on the size of the project, yet EPA has not accounted for this. The water quality based requirements are new and will be costly 

to implement, even though they will not likely lead to measurable benefits. Implementation of the CGP will be costly to all permittees, 

but will have significant impacts on small businesses. 

[FN 30] Appendix 1: Economic Analysis for the Proposed Construction General Permit (CGP). www.regulations.gov. 

EPAHQ-OW-2010-0782, Accessed July 11, 2011 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0096-A1.001.058

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: CUMULATIVE 

The economic impact of the proposed CGP will be significant. The CGP will increase the costs of stormwater management for nearly all 

construction projects. EPA states that the costs for implementing the CGP have been accounted for through the ELG rulemaking [FN 

75]. Given EPA's more prescriptive requirements in the CGP for several of the non numeric ELG requirements, however, and the 

addition of the water quality based requirements, it is not accurate to state that all the costs have been accounted for in the C&D ELG 

rulemaking. For example, the buffer requirement and steep slope provision will be more costly because the requirement in the CGP is 

much more stringent than the ELG. The costs will also vary depending on the size of the project, yet EPA has not accounted for this. The 

water quality based requirements are new and will be costly to implement, even though they will not likely lead to measurable benefits. 

Before finalizing the CGP, EPA must develop a cost benefit analysis that fully assesses the cost impacts of the draft CGP on the industry 

and small businesses, in particular, and then use that information to develop more reasonable alternatives. 

[FN 75] Appendix 1: Economic Analysis for the Proposed Construction General Permit (CGP).www.regulations.gov. 

EPAHQ-OW-2010-0782, Accessed July 11, 2011 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0115-A2.001.001

Author Name: Smith Timothy 

Organization: National Grid 

Issue Category: CUMULATIVE 

National Grid operates electric and natural gas utility infrastructure across thousands of linear miles of rights-of-way to safely and 

reliably serve millions of customers. The maintenance, repair, and normal improvement of this critically-important public infrastructure 
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frequently requires that we seek compliance with NPDES and other regulatory requirements. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0137-A2.001.002

Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: CUMULATIVE 

We also request the basis for EPA's determination that the existing process in place is not adequately protecting waters of the U. S or the 

public interest as defined in Section 402 of the Clean Water Act. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0143-A2.001.003

Author Name: Bashel Renee 

Organization: Small Bus. Ombudsman/Small Bus Env Asst Prog 

Issue Category: CUMULATIVE 

We recommend that EPA conduct a more detailed review to take into account the potential financial and regulatory burden that this 

permit places on small business operators to comply with the same conditions as larger businesses. While we do not have specific 

alternatives to offer at this time, the Water Subcommittee would be available to assist EPA in developing alternatives for small 

businesses if such an opportunity arises. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0152-A2.001.002

Author Name: McGowen Scott 

Organization: Caltrans 

Issue Category: CUMULATIVE 

We are concerned that the ELGs, as implemented through this proposed permit, will result in increased costs for BMP implementation, 

as well as increased exposure to enforcement for sites that have limited or no potential to impact water quality. This direction of effort 

and resources could result in high-priority sites, including some smaller sites, not receiving appropriate management and oversight. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0158-A1.001.003

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: CUMULATIVE 

Electric cooperatives own and maintain 2.5 million miles or 42 percent of the nation's electric distribution lines, covering 75 percent of 

the U.S. landmass. NRECA's members routinely manage stormwater discharges from construction activities on power line corridors and 

have done so for years in compliance with federal and state requirements. NRECA recognizes the significantly increased permitting 
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burdens for transmission line construction activities but we question how much real environmental improvement will result by making 

changes to already mature and effective stormwater management programs. This is particularly true as EPA continues to promulgate 

stormwater requirements that are frequently inappropriate for the types of linear construction and maintenance activities utilities perform 

on transmission corridors. 

Response: See Essay Responses 19.1 thru 19.6. 

Comment ID 0160-A1.001.001

Author Name: Kurtz John 

Organization: Kurtz Bros., Inc. 

Issue Category: CUMULATIVE 

We share EPA's goal of protecting water quality, but we are concerned that compliance with the proposed CGP would not be feasible. 

The cumulative impact of all the new requirements will have deleterious impacts on the business of construction. Below we identify our 

five main concerns with the draft permit. 

Response: See Essay Responses 19.1 thru 19.6. 

 
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Construction General Permit 

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BAC BACKGROUND

Comment ID 0096-A1.001.002

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC 

The CWA and its implementing regulations require NPDES permits for stormwater discharges associated with most construction 

activities, including residential development and home building. This means that thousands of permits must be authorized and obtained 

each year. To address the challenges associated with this burdensome permitting scheme EPA 

established a series of general permits to authorize these activities. The general permits set out a series of expectations and a purported 

streamlined authorization process so that the Agency could meet its permitting obligations efficiently and effectively. To date, this 

process has worked as evidenced by the thousands of permits that have been issued and the thousands of construction projects that have 

been completed without adversely impacting water quality. Importantly, the general permit scheme is also designed to reduce the 

burdens and simplify the process for permit applicants. While NAHB believes the Agency continues to stray from this goal with today’s 

proposal, we remain convinced that the CGP is the only viable option. 

Issuing a workable version of a CGP, which has been specifically designed to provide flexibility and reduce burdens while ensuring 

appropriate environmental protection, is very critical to the homebuilding industry. EPA’s permitting scheme and its current CGP were 

purposely designed to allow flexibility in the design and implementation of Best Management Practices (BMPs), reflecting the 

fundamental principle that the variable nature of precipitation and the variability of other site attributes (such as soils type and 

topography) affect the transport of sediment when it rains. The CGP allows all operators who are performing similar operations (e.g., 

construction) to quickly obtain permit coverage, yet includes stringent requirements to 

ensure water quality is not compromised. 

The alternative to the “streamlined” general permit is an individual permit, which requires considerably more information and 

paperwork, yet rarely results in any measurable environmental improvement. In addition to being more cumbersome for the permittees, 

individual permits must be submitted well in advance of conducting the activity (typically 90 –180 days), may require additional 

inspections and monitoring, and require more oversight by program administrators. Because thousands of construction permits must be 

issued each year, and appropriate protections are written into the CGP, it makes little sense, either environmentally or administratively, 

to require the use of individual permits. NAHB appreciates the Agency’s 

planned continuation of this important permit, but suggests important streamlining and other revisions are necessary to ensure the CGP 

is of optimal use and effectiveness. 

Response: See Essay Response 19.1 thru 19.6. 

Comment ID 0128-A2.001.007

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 
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Issue Category: BAC 

In its final C&D ELG, EPA relaxed many of the proposed overly-prescriptive erosion and sediment control practices, often stating that, 

for example, the "need for these controls is dictated by site-specific considerations," because they were "not always feasible," or that 

"implementing the requirement would be cost-prohibitive." See 74 Fed. Reg. at 63,018. Now, EPA, through its permitting authority in 

four states and in various parts of many other states (recognizing also that EPA's CGP "acts" as a model CGP for the other 46 states), is 

reverting to that type of overly-prescriptive BMP mandates that it addressed in promulgating the final C&D ELG. 

Response: See Essay Response 19.1 thru 19.6. 

Comment ID 0132-A1.001.001

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water (KDOW) 

Issue Category: BAC 

The Kentucky Division of Water (KDOW) appreciates the opportunity to comment on the referenced draft guidance. KDOW is the 

delegated National Pollutant Discharge Elimination System program agency for Kentucky. In that role, KDOW issues general and 

individual permits for stormwater discharges from construction activities. KDOW has reviewed the proposed EPA General Permit for 

Stormwater Discharges from Construction Activities on Tribal Lands within the Southeastern United States. Our review was conducted 

with the understanding that general permits issued by EPA reflect EPA's current thinking regarding expectations of all permits issued for 

that sector of the NPDES program. As such KDOW's comments reflect, in part, the anticipated affects the requirements of the proposed 

general permit will have on the Kentucky NPDES program and permits. 

Response: No response necessary 

BAC.1 STATUTORY AND REGULATORY HISTORY - CLEAN WATER 

ACT (CWA)

Comment ID 0080-A2.001.003

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: BAC.1 

In addition to the concern for the new CGP ELGs, several significant changes to the 2008 CGP are now included in the prescriptive 

language contained in the 2011 Draft CGP. The significant changes from the 2008 version, as we understand them, are summarized 

below: 

•Person(s) Responsible for Obtaining Permit Coverage. Where there are multiple operators associated with the same project, all 

operators are required to obtain permit coverage. Once covered by a permit, all such operators are to be considered as co-permittees if 

their involvement in the construction activities affects the same project site. Co-permittees are held jointly and severally responsible for 

complying with the permit. Any operator who seeks coverage under this permit must develop a Stormwater Pollution Prevention Plan 

(SWPPP). A group SWPPP may be developed where several operators will be engaged in construction activities at the site. 
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•Section 2.1.2-Buffers. If any "Waters of the U.S." are located on or immediately adjacent to the site, the permittee must ensure that any 

discharges through the area between the disturbed portions of the site and such waters are treated through buffer-related approaches. The 

permittee has the following compliance alternatives to meet these requirements: 

a) Provide and maintain a 50-foot buffer of undisturbed natural vegetation between the disturbed portions of the site and any waters of 

the U.S.; or 

b) Provide an undisturbed, naturally vegetated buffer that is less than 50 feet but is supplemented by additional sediment and erosion 

controls, which in combination achieve the equivalent sediment load reduction as a 50-foot buffer of undisturbed natural vegetation; or 

c) If it is infeasible to provide an undisturbed, naturally vegetated buffer of any size between the disturbed portion of the site and any 

waters of the U.S., implement sediment and erosion controls that achieve the equivalent sediment load reduction as an undisturbed, 

naturally vegetated 50-foot buffer. EPA provides charts as tools to determine the efficiency of the buffer. Controls must then be designed 

to provide sediment removal efficiency equivalent to the buffer. EPA suggests choosing one of several models to determine which best 

management practices (BMPs) will provide the equivalent efficiency. There are some exemptions for preexisting conditions, utility 

lines, roadways, and water-dependent structures and access-ways such as piers, boat ramps, etc. 

•Deadlines to Initiate Stabilization and Complete Stabilization. Typically, a permittee must initiate stabilization on exposed portions of 

the site where earth-disturbing activities have permanently or temporarily ceased and will not resume for a period exceeding 14 calendar 

days. For the purposes of this permit, earth-disturbing activities are considered to have temporarily ceased when clearing, grading, and 

excavation within any area of the construction site will not resume for a period of 14 or more days, or for a period of 7 or more days if 

there are any special circumstances such as steep slopes or if disturbed areas are within buffer areas. All stabilization activities must be 

completed within 7 days of when they are initiated. There is some additional flexibility in arid or semiarid climates. 

•Numeric Turbidity Limit and Sampling Requirements. For sites with total disturbed area of 10 or more acres, the site discharge must be 

sampled during any storm event or snowmelt condition that results in a discharge of stormwater from the site or when there is an 

authorized non-stormwater discharge from the site. The timetable for these requirements depends on when EPA releases the recalculated 

turbidity limit. Exemptions include: 

a) Storms larger than the local 2-year, 24-hour storm are not subject to the turbidity limit. 

b) Sites where the disturbed area is less than the threshold for the application of numeric turbidity limits as a result of temporary or final 

stabilization. 

c) Turbidity limits do not apply to Federal Energy Regulatory Commission (FERC)-regulated pipeline projects. 

d) Sites with stormwater flows that exit the site in a "non-discernible, non-confined and non-discrete form." 

•Section 4.2-Discharge Limitations for Impaired Waters. A site is considered to discharge to an impaired water if the first water of the 

U.S. to which a site discharges is listed as impaired on the state "303 (d) List" or has an EPA-approved Total Maximum Daily Load 

(TMDL). If a site discharges to a storm sewer system, then the receiving water for the storm sewer discharge is considered the first water 
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of the U.S. 

Specific requirements apply for sites disturbing 10 or more acres of land at any one time that discharge to receiving waters impaired for 

sediment or a sediment-related parameter, such as total suspended solids (TSS), turbidity, and/or nutrients (e.g., nitrogen, phosphorus). 

Specifically, the permittee must comply with the requirements in Part 4.2.2, which include water quality benchmark monitoring for the 

sediment and/or nutrient parameter(s) for which the receiving water is impaired. Benchmark sampling can be discontinued when 

temporary or final stabilization criteria have been met and less than 10 acres are disturbed. Additionally, if discharges are to a receiving 

water impaired for sediment or sediment-related parameters, there are additional stabilization timelines, daily visual inspections, and 

weekly formal inspection requirements. EPA states that it will inform permittees if there will be any additional requirements when 

discharging to a receiving water impaired for a pollutant other than sediment, sediment-related pollutants, or nutrients. There is concern 

for what these additional requirements might be and the additional costs for implementation. 

Additional significant requirements as outlined in the proposed CGP include: 

•Requirement to install all stormwater controls prior to starting earthwork (not just initial BMPs). This requirement does not apply to 

earth disturbances related to initial site clearing and establishing entry, exit, and access to the site, which may require that stormwater 

controls be installed immediately after the earth disturbance. 

•Potentially requiring all sites to have 50-foot-long vehicle tracking controls. 

•Requiring staging and storage areas to be covered or install secondary containment. 

•Requiring cover or other appropriate temporary or permanent stabilization to avoid direct contact with precipitation or to prevent 

sediment discharges for all stockpiles containing in whole or in part sediment or soil. 

•Requiring roughening for areas with furrows along the contours of the slope. 

•Requiring irrigation, as needed, until seed germinates and grows. 

•Removing concrete from a washout when it fills one-half of the container. 

• Providing project-specific training and documentation of the trainings. 

In summary, the 2011 draft is a much more prescriptive permit than the current 2008 CGP which the 2005 version offers a more flexible 

"toolbox" approach to BMP selection and permit implementation. 

Furthermore, in response to the EPA's request for a response to specific programmatic language, the Partners offer the following 

comment. To help facilitate our responses in a clear and concise manner, the actual permit language has been lifted from the permit as 

was the specific request for comment. 

The Partners then provided a concise response following each specific EPA request for comment. The Partners felt this format proved 
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most useful in educating the various agency departments as well as helpful to those reviewing our comments at the EPA and other 

interested parties. 

Response: See Essay Response 19.1 thru 19.6. 

Comment ID 0087-A1.001.027

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: BAC.1 

UWAG questions EPA's authority to include requirements that extend upstream of the discharge itself to activities occurring within a 

construction site (e.g., Section 2.1.3.7.c., and Sections 2.3.2.1 through Section 2.3.2.5). We respectfully submit that EPA's authority is 

limited to the discharge of "pollutants" from a "point source" into waters of the U.S." See, e.g., 33 U.S.C. 1342(a); 40 C.F.R. § 122.1(b).

Response: Refer to administrative record for the C&D rule. 

Comment ID 0096-A1.001.001

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.1 

In 1987, Congress amended the CWA to specifically mention stormwater and directed EPA to establish requirements for controlling 

stormwater discharges (both point and nonpoint) from virtually every source in the nation. Within its regulations, EPA clarified that 

stormwater discharges associated with construction activities, such as clearing, grading and excavating that result in the disturbance of at 

least five acres of total land area were equally significant contributors of pollutants and, thus, were to be regulated as “industrial” 

sources.[FN 1] In 1999, EPA decided that all small construction activities (i.e., those that disturb 1-5 acres), merit regulation through 

NPDES permits “to protect water quality.” Thus, EPA has required NPDES permits for most stormwater discharges from industrial, 

municipal, and construction sources since 1992. 

Because EPA’s comprehensive program covers nearly every construction project across the nation, it specifically adopted a general 

permit approach so that these sources could be regulated efficiently and effectively. EPA issued the first general permit for stormwater 

discharges associated with construction activities on September 9, 1992. [FN 2] Because the existing 

CGP framework has proven to be effective, the Agency has reauthorized it regularly since, typically in five year increments, as federal 

law prohibits any NPDES to be issued for a period that exceeds five years. EPA last reauthorized the CGP in January 2008, but limited 

its applicability to only two years.[FN 3] The Agency subsequently extended the expiration date of the 2008 permit by one year so that it 

would expire on June 30, 2011, [FN 4] and most recently extended it once again. [FN 5] The 2008 CGP is now due to expire on February 

15, 2012. 

Today’s draft CGP includes new requirements that implement the technology-based Effluent Limitation Guidelines (ELGs) and New 

Source Performance Standards (NSPSs), which were issued by EPA for the construction and development industry on December 1, 

2009. The draft permit also includes new water quality-based requirements for certain construction sites. EPA is proposing to issue this 

CGP for five (5) years. EPA is the NPDES permitting authority, and thus, the CGP is only directly applicable in Idaho, Massachusetts, 

New Hampshire, New Mexico, Indian Country Lands, Puerto Rico, Washington, DC, and U.S. territories and protectorates. However, 
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because the delegated states’ programs must be consistent with EPA's federal requirements, and may be more stringent if the state so 

desires, many state permitting 

authorities use EPA’s CGP as a model in developing their own state permits. 

[FN 1] See 40 CFR 122.26 – Industrial Facilities. Category Ten: Construction Activity is included in the definition of “stormwater 

discharges associated with industrial activity.” 

[FN 2] See 57 Federal Register 11,394 (Apr. 2, 1992); 57 Federal Register 41,176 (Sept. 9, 1992). 

[FN 3] 73 Federal Register 40,338 (July 14, 2008). 

[FN 4] 75 Federal Register 4554 (January 28, 2010).

[FN 5] 76 Federal Register 40,355 (July 8, 2011). 

Response: No response necessary. 

Comment ID 0168-A1.001.002

Author Name: Jordan Jill 

Organization: City of Dallas 

Issue Category: BAC.1 

Synergy between this Permit, and concurrently proposed EPA/USACE Guidance concerning Clean Water Act. Several measures within 

this Permit may have a synergistic effect when combined with other concurrent rulemaking and guidance. In particular, the proposed 

expansion to the base definition of Waters of the United States that may occur through the EPA/Army Corps of Engineers' Guidance for 

Clean Water Act, would affect the Permit language concerning buffers, and expand the applicability concerning determination of 

impacts to impaired waters. Between this draft permit and the other guidance currently under development, the definition of Waters of 

the United States is significantly expanded to unreasonable levels. The EPA should consider the ramification to compliance with this 

draft permit when clarifying the definition of the Waters of the United States. 

Response: See Essay Response 19.1 thru 19.6. Regarding the commenters concerns about the definition of Waters of the U.S., these 

are outside the scope of this permit issuance. 

BAC.2 VACATURE OF THE CD RULE NUMERIC LIMIT AND 

IMPLICATIONS ON THE PERMIT - COMMENT RELATES TO THE

STAY OF THE LIMIT OR SOME OTHER ASPECT OF THE CORRECTION

Comment ID 0013-A1.001.005

Author Name: Asmus Susan 

Organization: National Association of Home Builders (NAHB) 

Issue Category: BAC.2 

The C&D ELG, finalized in December 2009, includes requirements for a range of erosion and sediment control measures and pollution 
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prevention practices and a numeric effluent limit of 280 NTU for larger construction sites. EPA is in the process of developing a new 

C&D numeric effluent limit due to petitions filed by the Small Business Administration's (SBA) Office of Advocacy and NAHB asking 

the agency to revise its numeric limit because of problems with the data and modeling. NAHB also filed a lawsuit challenging the rule in 

the U.S. Court of Appeals for the 7th Circuit. As a result, DOJ/EPA filed a motion asking the 7th Circuit to vacate the numeric effluent 

limit portion of the ELGs to address flaws in the final rule. These flaws include EPA's admission that it "improperly interpreted the data" 

such that it can no longer support the 280 NTU limit. EPA stated in the motion that the technical nature of the issue and number of steps 

required to resolve the flaws would require an 18-month abeyance in the case, or until February 15, 2012. 

There are other issues associated with the C&D ELG rulemaking that have been raised by NAHB in the Seventh Circuit litigation that are 

being held in "abeyance" until at least February 15, 2012. Many of the issues raised could impact whether any of the new C&D ELG 

requirements EPA has proposed to incorporate into the CGP are legally authorized under the Clean Water Act. These issues must be 

allowed to be litigated in full prior to inserting them into a new CGP and mandating compliance, particularly because EPA asked for the 

"abeyance" of those issues through February 15, 2012 before they would then be addressed and resolved by the court. 

Response 

Refer to 3.1. 

Comment ID 0021-A1.001.024

Author Name: Unrein Terrance 

Organization: Tepa 

Issue Category: BAC.2 

When will the new Turbidity Limit be established? 

Response 

Refer to 3.1. 

Comment ID 0024-A2.001.001

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: BAC.2 

We urge EPA to expedite its efforts to revise the 280 nephelometric turbidity unit ("NTU") limit that EPA stayed in 2010 so that it can be 

incorporated into the 2011 CGP. Requiring numeric limits for stormwater discharges is long overdue. Indeed, the CW A requires that 

numeric limits be included in NPDES permits, except when they are infeasible, see 40 C.F.R. § 122.44(k), a requirement that until now 

has largely been ignored. In addition, requiring a numeric limit is an important tool to make both compliance and enforcement of the 

CGP more effective. The general permit scheme for construction stormwater relies heavily on enforcement to ensure waters receive 

adequate protection, yet the federal government, and many states, lack the resources necessary to properly police and enforce the CGP. 

Including a numeric permit limit would go a long way to address this issue. 

Accordingly, we are disappointed that EPA has thus far suggested that a numeric limit may not be required in the 2011 cap. There is no 

question that regulating construction stormwater using a numeric limit is feasible, as EPA's rulemaking for the 280 NTU limit 

demonstrates. Although EPA has stayed the 280 NTU on the grounds of alleged errors in the interpretation of the data to develop that 
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limit, a numeric limit nevertheless remains feasible. The technology for controlling sediment through active or passive treatment 

systems, and for monitoring compliance with a numeric limit, clearly exists. The only question is what the limit should be. EPA has had 

ample time since staying the 280 NTU limit to review the data and to propose a revised limit. We therefore urge EPA to adopt a proposed 

limit as soon as possible. In the event EPA fails to complete a revised NTU limit before adopting the cap, EPA should include a specific 

reopener provision in the cap to allow it to insert the numeric limit into the permit as soon as it is finalized. 

Response 

Refer to 3.1. 

Comment ID 0024-A2.001.016

Author Name: Rogers Gilbert 

Organization: Southern Environmental Law Center (SELC) 

Issue Category: BAC.2 

As stated above, we support EPA's plan to revise the stayed 280 NTU turbidity limit for construction stormwater and to incorporate such 

limit into the final 2011 CGP. Incorporating a numeric turbidity limit into the CGP will dramatically improve permit compliance and 

enforceability due to the clarity that numeric limits provide. Additionally, it will result in muchneeded reductions in sediment loading by 

ensuring protections against discharges of fine-grained and slowly-settling particles contained in stormwater, which conventional BMPs 

typically cannot remove effectively. 

Response 

Refer to 3.1. 

Comment ID 0025-A1.001.004

Author Name: Terlizzi Wendy 

Organization: Arizona Department of Transportation (ADOT) 

Issue Category: BAC.2 

It is unclear how the ELG numeric limits will be incorporated into the permit, if the limits have not been finalized, yet the permit has. 

Response 

Refer to 3.1. 

Comment ID 0031-A2.001.003

Author Name: Squillace Vincent 

Organization: Ohio Home Builders Association (OHBA) 

Issue Category: BAC.2 

ORBA urges EPA to remove all sections of the draft permit dealing with the Numeric Effluent Limit from the permit until it has been 

addressed through EPA's upcoming rulemaking on the C&D ELG. There are also several issues associated with the C&D ELG 

rulemaking that have been raised by NARB in the Seventh Circuit litigation that are being held in "abeyance" until at least February 15, 

2012. Many of the issues raised could impact whether any of the new C&D ELG requirements EPA has proposed to incorporate into the 

CGP are legally authorized under the Clean Water Act. These issues must be allowed to be litigated in full prior to inserting them into a 

new CGP and mandating compliance, particularly because EPA asked for the "abeyance" of those issues through February 15, 2012. 
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Therefore, EPA should postpone any proposal to update the 2008 CGP until after the C&D ELG rulemaking is completed. 

Response 

Refer to 3.1. 

Comment ID 0052-A1.001.001

Author Name: Hamilton Kristopher 

Organization: E.S. Wagner Company 

Issue Category: BAC.2 

EPA's attempt to implement a numeric turbidity limit and associated monitoring and reporting requirements for construction site 

stormwater runoff is premature. EPA should not include the numeric stormwater limit or associate provisions in its new permit until the 

Agency has promulgated revisions to that regulation and concluded related litigation before the 7th Circuit Court of Appeals. Any 

provisions included in the CGP that may be removed from the C&D ELG by the courts will only cause confusion and potential litigation 

down the road. 

-- Recommendation - Extend the current 2008 CGP for its full five year term, which ends on June 30, 2013. This will allow the 7th 

Circuit Court of Appeals to fully adjudicate all issues associated with the pending C&D ELG lawsuit. 

Response 

Refer to 3.1. 

Comment ID 0068-A1.001.001

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 

One of the primary objectives of EPA's Proposed CGP is to implement the Construction & Development ELG regulations originally 

promulgated on December 1, 2009. See 76 Fed. Reg. at 22,885. EPA asserts that once a new national standard is established pursuant to 

the Clean Water Act's effluent limitations guidelines provisions, they must be incorporated into subsequent NPDES permits, as 

appropriate. Id. However, EPA has not truly set FINAL ELG standards for the construction and development industries. Because EPA 

has not finalized the C&D ELG regulations, not only is EPA not obligated to implement such regulations in the Proposed CGP, FSWA 

asserts that doing so is confusing, inappropriate, and may result in an unnecessary and continued string of corrective rulemakings that, to 

date, have plagued construction stormwater regulatory efforts. 

After promulgating the final C&D ELG in December 2009, subsequent litigation revealed to EPA that the C&D ELG regulations 

contained significant errors. See 75 Fed. Reg. 68,215 (November 5, 2010)(EPA admitting to its errors and seeking a stay of the 280 NTU 

turbidity limit and other issues surrounding ongoing litigation in the Seventh Circuit Court of Appeals in the case Wisconsin Builders 

Association v. EPA, Case No. 09-4113). In that case, EPA filed a "Motion for Partial Vacature of the Final Rule, Remand of the Record, 

to Vacate Briefing Schedule, and to hold Case in Abeyance" (and which that court approved), which identified many issues that required 

additional rulemaking. Those include: 

• the calculation errors associated with the 280 NTU numeric limit; 
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• issues associated with how the ELGs would be applied to linear construction (including applicable BMPs to active construction 

operations); 

• issues associated with cold weather sites; 

• issues associated with small sites that are part of larger projects; and 

• "any other issues that reveal themselves to the Agency" during EPA's upcoming C&D ELG correction rulemaking. 

(Quoting EPA's August 12, 2010 Motion at page 9). 

While not bound by any judicially-mandated deadline, EPA asserted to the 7th Circuit that it would finalize its corrections to the C&D 

ELG rulemaking by February 15, 2012; however, after almost a year in the making, EPA has failed to propose any such regulation. Not 

only has EPA not revealed what it hopes to propose, but obviously EPA cannot now predict what "other issues" will reveal themselves 

during that rulemaking. 

What is evident is that EPA has identified errors in its C&D ELG rulemaking that are more significant than minor recalculations. EPA is 

more than capable of proposing a revised turbidity standard within a few months, let alone almost an entire year, if the only issues were 

related to the mechanics of how it calculated a final limit. Obviously, EPA is reexamining more than merely the data and calculations but 

also perhaps the data sources and other complicating factors. Clearly, EPA is reassessing multiple aspects of its C&D ELG rulemaking 

prior to proposing a revamped C&D ELG. 

Hence, EPA's assertion that it must now, through the Proposed CGP, implement final ELG standards for the construction industry is 

hollow and unjustified. There are no current "final" C&D ELG standards, even if EPA asserts that it has not stayed the entirety of the 

December 2009 rulemaking and that parts of that rulemaking are ripe for immediate implementation. The bottom line is that the C&D 

ELG can only be assessed as an entire package of non-numeric AND numeric effluent limits. In December 2009, EPA did not 

promulgate separate non-numeric and numeric effluent limits as stand-alone rulemakings, each with their own independent economic, 

benefits, or cost-effectiveness analyses. Instead, EPA promulgated a single, unified package of non-numeric and numeric effluent limits, 

including technical development document, economic analysis and other support documents that analyzed a the comprehensive package 

of technology controls as a "complete rulemaking." EPA cannot now assert that the non-numeric and numeric effluent limitations are 

separate efforts and that its admitted errors affecting one-half of that complete package have no impact on implementing the 

comprehensive package. 

As a result, EPA cannot and should not be attempting to implement ANY subpart of the C&D ELG rulemaking until that entire 

rulemaking has been completed. Quite simply, there is no C&D ELG package to implement until the upcoming corrective rulemaking is 

finished. 

Response 

Refer to 3.1. 

Comment ID 0068-A1.001.002

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 
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Nevertheless, even if EPA were to disagree and proceed with its Proposed CGP and implement subsections of the C&D ELG, it faces 

timing issues that make its effort to implement the C&D ELG inappropriate. On June 30, 2011, EPA announced that it would extend the 

current 2008 CGP only until February 15, 2012 - the same date it has set forth as the deadline for revisions to the C&D ELG 

(http://cfpub.epa.gov/npdes/stormwater/cgp.cfm). EPA could have extended the 2008 CGP until June 30, 2013. In not doing so, EPA is 

sending a message that its primary focus is to complete work on a new CGP, especially because EPA is not likely to complete work on its 

C&D ELG prior to its self-imposed deadline of February 15, 2012. 

EPA has yet to propose any C&D ELG revisions. Assuming it issues a proposal this month, a final C&D ELG rule is virtually impossible 

to accomplish in a six- to seven-month period. EPA has been working on a proposal for 11 months and that proposal certainly contains 

new provisions, analyses, cost and benefits assessments, and other issues (i.e. linear construction concerns) that will require significant 

review and analyses by the public during the notice and comment period. Any comment period less than 90-days, under these 

circumstances would be unreasonable and unfair to the affected stakeholders (including FSWA). EPA typically requires a substantive 

time period then to review the comments and develop options for a final rulemaking. Ninety days would seem like an expedited time 

period for the Agency to accomplish those tasks. Then, the Office of Management and Budget is entitled to its own 90-day review before 

approving or rejecting the final regulatory package. All told and optimistically, EPA will be fortunate to promulgate the new, final C&D 

ELG package in nine months, let alone the seven months between mid-July (assuming a proposal is immediately forthcoming - 

something that FSWA has no reason to believe is likely) and mid-February. 

Response 

Refer to 3.1. 

Comment ID 0068-A1.001.003

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 

Because EPA cannot reasonably be expected to promulgate revisions to the C&D ELG by the new February 15, 2012 expiration date for 

the 2008 CGP, it cannot reasonably anticipate implementing those provisions through the Proposed CGP before the 2008 CGP expires. 

Hence, EPA should delink these two rulemaking efforts. Instead, EPA should be committing itself to promulgating a new CGP absent 

the controversies, errors, and litigation that has surrounded the C&D ELG effort. Such an approach would greatly simplify the CGP 

promulgation process. 

By delinking the two rulemakings, EPA should focus the new CGP on modifications and issues not embroiled in the C&D ELG. Hence, 

EPA should focus on water quality issues, establishing a reasonable eNOI system (if appropriate), and best management practices - but 

NOT those specific BMPs set forth in the C&D ELG until that rulemaking is finalized and fully litigated. In doing so, however, EPA 

should remove all of the C&D ELG-related implementation issues from the Proposed CGP. Then, EPA either could address 

"implementation" issues within the context of the C&D ELG rulemaking itself (as a complete package of technology requirements and 

possible implementation issues) OR as separate but companion "guidance," for which it should seek separate public notice and comment 

in a parallel path to the specific C&D ELG revisions rulemaking. 

Response 

Refer to 3.1. 
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Comment ID 0068-A1.001.004

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 

In sum, EPA has admitted last August that it made mistakes when it promulgated its C&D ELG rule in December 2009. The Agency 

stayed part of that regulation and promised to revise the ELG to address certain specific issues and "any other issues that reveal 

themselves to the Agency" during that rulemaking. EPA cannot now predict what those issues will include. Because it cannot 

foreshadow how to implement all of the as yet undetermined provisions in its upcoming C&D ELG rulemaking, EPA should not attempt 

to implement such provisions in its Proposed CGP. Because the entire package of C&D ELG standards is not yet final, EPA need not 

attempt to piecemeal its implementation, especially considering the fact that the "initial" implementation is and will be precedent setting 

across the country. The Agency's current attempt to do so is unnecessarily complex and confusing for the public, permitted sites, and 

permitting authorities. 

In promulgating the C&D ELG, EPA asserted that a lengthy (18-month) implementation process, as originally envisioned in the 

December 2009 rulemaking would: 

allow permitting authorities to develop any necessary training or certification programs. An important factor in the effective 

implementation and compliance with this rule will be the permitting authority being able to digest the numeric limitation and monitoring 

requirements and developing guidance and outreach to the regulated community to provide assistance so the requirements are 

understood and can be effectively met by owners and operators of C&D sites. This will provide the regulated industry with the guidance, 

knowledge and tools necessary in order to effectively monitor their discharges in order to ensure they are meeting the numeric limitation. 

74 Fed. Reg. at 63,050. 

EPA's current CGP promulgation strategy completely ignores and conflicts with this important priority associated with the C&D ELG 

rulemaking. By completely separating the Proposed CGP from the ongoing revised C&D ELG rulemaking, EPA can provide a more 

comprehensive C&D ELG rulemaking package, including guidance regarding implementation strategies, at an appropriate future date, 

after it has worked its way through the APA rulemaking process and, hopefully, the 7th Circuit litigation can be fully resolved. 

Response 

Refer to 3.1. 

Comment ID 0068-A1.001.005

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 

To reiterate FSWA's comments above, FSWA believes that EPA should delink the C&D ELG rulemaking and new CGP promulgation 

efforts. The following comments continue to reflect that understanding. In other words, comments on C&D ELG implementation issues 

- to the extent provided below - are premised on FSWA's position that the two rulemakings should be delinked and these comments in no 

way support a position that presumptive C&D ELG implementation is appropriate or supported by FSWA through any interpretation of 

the following comments. 
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Response 

Refer to 3.1. 

Comment ID 0068-A1.001.027

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 

Until EPA finalizes a revised C&D ELG with a numeric limit, it is entirely premature to comment on Part 3 of the Proposed CGP. There 

simply is no basis from which to judge what monitoring requirements will be appropriate, what outfalls might require monitoring, or 

what the final standard (if any) will necessitate in terms of compliance. EPA should delink the Proposed CGP from the C&D ELG 

rulemaking process. It should first promulgate and defend its ELG standards before proceeding with a notice-and-comment procedure to 

develop implementation guidance and a revised CGP, a process that will help to ensure the most efficient and effective monitoring 

protocols/requirements. 

While EPA may have stated a prior intent to finalize a numeric effluent limit for turbidity in a revised C&D ELG, it is entirely possible 

that EPA will not promulgate or be able to defend such a limit. EPA may settle for a "benchmark" or "action level" type approach for a 

final turbidity or total suspended solids threshold. Because we cannot predict what EPA can or will do, these issues should be removed 

from the Proposed or Final CGP and used in a proposed C&D ELG-related guidance document at a future time. 

Response 

Refer to 3.1. 

Comment ID 0068-A1.001.043

Author Name: Longsworth Jeffrey 

Organization: Federal StormWater Association (FSWA) 

Issue Category: BAC.2 

Alternatively, the Proposed CGP is ripe with inefficiencies and prospective implementation problems. EPA's attempt to implement the 

C&D ELG before that regulation is fully completed has resulted in a Proposed CGP that is based more on guesswork than a "reasoned 

determination" that "imposes the least burden on society," which can only be crafted when all of the variables are known in advance. The 

Proposed CGP goes too far beyond merely setting forth specific "performance objectives" and, in fact, dictates specific "manners of 

compliance" that all construction operators must adopt, even when site-specific circumstances may dictate otherwise. In short, until EPA 

has completed work on the C&D ELG rulemaking, EPA's most efficient and effective path forward for the Proposed CGP is to tweak and 

make necessary minor adjustments to the 2008 CGP and refocus its efforts on implementing the C&D ELG at an appropriate future date 

when the contents of that regulation are fully understood. EPA recognized the benefits of such an approach in December 2009 when it 

espoused the benefits of an 18-month implementation period to allow the regulated community and state regulators with sufficient time

to consider efficient implementation strategies. A comparable time should be applied to the C&D ELG when it is completed, perhaps 

sometime in 2012. 

Response 

Refer to 3.1. 
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Comment ID 0080-A2.001.001

Author Name: Verhage Kathy 

Organization: New Mexico Department of Transportation, District 3, et al. 

Issue Category: BAC.2 

The Partners have reviewed the draft CGP and have serious concerns, in particular, where EPA is proposing stringent MS4 permittee 

implementation requirements as a result of the new technology-based effluent limitations guidelines (ELGs) for turbidity. The draft CGP 

includes a placeholder for the new ELGs. The draft CGP states EPA is preparing to issue a proposed rule in the near future that will have 

a recalculated turbidity limit and a 1-year extension to the first phase-in date for complying with the numeric limits. Assuming the 

recalculated numeric limit is promulgated prior to the CGP issuance, the uncertainty of what the effluent limitations will ultimately be, 

the difficulty in meeting any proposed limit, and the considerable cost of obtaining statistically reliable samples resulting from the new 

ELGs are problematic for the regulated community. Permitted agencies, particularly in the arid southwest, where small, infrequent 

runoff producing storms occur will find the Construction & Development (C&D) ELG particularly burdensome. 

Response 

Refer to 3.1. 

Comment ID 0086-A1.001.002

Author Name: Walz Barbara 

Organization: Tri-State Generation & Transmission Association, Inc. 

Issue Category: BAC.2 

The CGP is the vehicle by which the requirements of the C&D Efnu ent Guidelines are implemented, 74 Fed. Reg. 62,996 (Dec. 1,2009). 

The electric utility indu stry argued, and the court agreed, that these final C&D efnuent gu ide lines fa iled to address important concerns, 

including the inappropriateness of the regulations when applied to linear development. (WBA, el. oJ. v. EPA, September 20, 2010) EPA 

issued a stay for parts of the rule and the rule has been remanded to address the flawed numeric limit and other issues raised by the utility 

industry. It appears that EPA is proceeding to implement its original requirements by issuing the draft CGP, ignoring many of the 

concems raised by the utility industry and recognized by the courts. The C&D rule was remanded to EPA over 10 months ago, and EPA 

should take action to issue the rev ised C&D effluent guidelines before it finalizes the CGP. 

Tri-State encourages EPA to finalize the C&D effluent guidelines in response to the remand, and allow the affected parties an adequate 

opportunity to review the new effluent guidelines before finalizing any CGP. 

Response 

Refer to 3.1. 

Comment ID 0087-A1.001.001

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: BAC.2 

EPA cannot proceed with the CGP until it completes the C&D rulemaking on remand. 

The CGP serves as the permitting vehicle to implement the C&D Rule. However, the C&D Rule has been remanded to correct the 
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numeric turbidity limit (which EPA conceded was flawed), as well as to address comments and concerns that UWAG raised regarding 

applicability of the C&D Rule to linear utility projects (which EPA admitted it had failed to address as part of the original rulemaking). 

EPA cannot legitimately proceed with the CGP, at least as applied to linear projects and turbidity limit, until the remanded C&D 

rulemaking is complete. 

Nor can EPA simply leave a placeholder in the draft CGP for the results of its remanded C&D rulemaking. EPA already has signaled its 

intent to interpret other aspects of the C&D Rule through the CGP. For example, the C&D Rule includes a general requirement to 

"[p]rovide and maintain natural buffers around surface waters, direct stormwater to vegetated areas to increase sediment removal and 

maximize stormwater infiltration, unless infeasible." 40 C.F.R. § 450.21(a)(6). The proposed CGP goes well beyond this, specifically 

requiring a 50-foot buffer of undisturbed natural vegetation or its equivalent sediment load reduction. Section 2.1.2.1. Similarly, the 

general guideline for "minimizing the disturbance of steep slopes" in the C&D Rule (40 C.F.R. § 450.21(a)(4)) has been expanded in the 

proposed CGP to include a specific steepness threshold of 15% grade, as well as multiple specific stabilization requirements that do not 

appear in the C&D Rule. Section 2.1.4.2. [FN 2] 

[FN 2] Other examples where EPA has interpreted the C&D Rule through the proposed CGP include the addition of requirements for 

removing track-out of sediment by the end of the same work day (Section 2.1.3.4) and for stabilizing construction entrance and exit 

points for a minimum of 50 feet from the point of entry/exit (Section 2.1.3.7). 

Response 

Refer to 3.1. 

Comment ID 0087-A1.001.002

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: BAC.2 

In a particularly significant example, in the CGP, EPA appears to be misapplying, and as are sult greatly expanding, the 2-year, 24-hour 

storm standard from the C&D Rule. In that rule, EPA used the 2-year, 24-hour storm standard as a threshold for applicability of the 

numeric turbidity limit. 40 C.F.R. § 450.22(a)-(b). In the CGP, EPA proposes to apply the 2-year, 24-hour standard as a design storm 

standard for stormwater controls, which would be applicable all the time to all sites equal to or greater than one acre in size. Section 2.1.3 

Request for Comment. As a matter of design, such a standard would not be feasible for linear utility projects, where flows are not 

collected at central points and narrow rights-of-way prevent the installation of retention/detention basins.[FN 3] Moreover, as a matter of 

process, we note that EPA's proposal would greatly expand the 2-year, 24-hour storm standard beyond anything contemplated - or 

subject to comment - in the C&D Rule. We respectfully submit that, if EPA wishes to apply the standard in this fashion, it must amend 

the C&D Rule and, thereafter, apply the amendment to a future CGP [FN 4]. 

 [FN 3] For example, detention capacity for stormwater runoff in order to add flocculants, for areas where the 2-year 24-hour events 

corresponds to a 6-inch rain, would be approximately 163,350 gallons per acre of watershed assuming saturated soil conditions. For a 

linear utility project spanning numerous watersheds, this capacity would be impossible to accomplish within normal ROW boundaries. 

[FN 4] EPA must propose any amendments to the C&D Rule using a notice-and-comment process, to ensure that EPA reaches a 

well-informed and reasoned result. Issues such as the application of the rule to linear facilities, the turbidity limit, and use of the 2-year, 
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24-hour storm standard are complex and fundamental elements of the rule that require such due process.

Response 

Refer to 3.1. 

Comment ID 0087-A1.001.004

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: BAC.2 

Because EPA already has demonstrated that the specific requirements of the C&D Rule and CGP are not, and will not be, identical, EPA 

must first propose its remanded C&D Rule for public notice and comment, and then take final action in the remanded proceeding in a 

manner that is informed by the comments that it receives. After EPA finalizes the remanded C&D Rule, EPA must then propose what, 

when, and how the rule will be implemented through the CGP. A placeholder is simply inadequate to provide interested members of the 

public, like UWAG, with a meaningful basis to comment on what EPA has in mind. 5 U.S.C. § 553(c); Conn. Light Power Co. v. Nuclear 

Regulatory Comm'n, 673 F.2d 525, 530 (D.C. Cir. 1982); Paralyzed Veterans of Am. v. DC Arena LP, 117 F.3d 579, 586 (D.C. Cir. 

1997). 

Response 

Refer to 3.1. 

Comment ID 0087-A1.001.017

Author Name: Smith Brooks 

Organization: Utility Water Act Group (UWAG) 

Issue Category: BAC.2 

UWAG notes, at the outset, that some of the requirements in Section 2.1.3 of the draft CGP originate with portions of the C&D Rule that 

were remanded to EPA so that the Agency could address the specific comments and concerns from UWAG that the Agency previously

failed to address. These include, for example, Section 2.1.3.2.b perimeter controls. Unless and until EPA takes final action on remand of 

the C&D Rule, it would be both premature and futile for UWAG to comment on the CGP. Instead, UWAG simply cautions EPA that 

these requirements are not suitable or appropriate for linear utility projects. 

Response 

Refer to 3.1. 

Comment ID 0088-A1.001.002

Author Name: Graves John 

Organization: Minnkota Power Cooperative, Inc. 

Issue Category: BAC.2 

The Construction General Permit (CGP) is the vehicle by which the requirements of the Construction and Development (C&D) Effluent 

Guidelines are implemented, 74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric utility industry argued, and the court agreed, that these 

final C&D effluent guidelines failed to address important concerns including the inappropriateness of the regulations when applied to 

linear development (See U.S. Court of Appeals of the Seventh Circuit Order in WBA, et. 01. v. EPA, dated September 20,2010). EPA 
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issued astay for parts of the rule and the rule has been remanded to address the flawed numeric limit and other issues raised by utility 

industry through UWAG. While EPA has yet to repropose the C&D rule 10 months after remand, EPA is nonetheless proceeding to 

implement its original requirements by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility industry and 

recognized by the courts. Minnkota encourages EPA to delay finalizing the proposed CGP until the final C&D effluent gUidelines are 

reissued in response to the remand and affected parties have had a chance to review the new effluent guidelines and a revised CGP. 

Response 

Refer to 3.1. 

Comment ID 0093-A2.001.002

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: BAC.2 

EPA's first effort to set such a numeric limit was unsuccessful, and as AGC writes these comments, EPA remains far behind its original 

schedule for proposing - much less finalizing - a new limit. It follows that EPA is not under any immediate obligation to implement the 

Construction & Development Effluent Limitations Guidelines (C&D ELG) that it promulgated on December 1, 2009. See 74 Fed. Reg. 

at 62,995-63,058 (C&D ELG final rule); See 75 Fed. Reg. at 68,215-68,217, Nov. 5, 2010 (direct final rule staying EPA's numeric 

limitation in C&D ELG); See 76 Fed. Reg. at 22,885, April 25, 2011 (notice of draft CGP). 

When EPA finalizes a new limit, and if that limit survives the litigation already pending in the U.S. Court of Appeals for the Seventh 

Circuit, EPA will certainly have to take the steps necessary to implement the C&D ELG. To that end, EPA also will revise its CGP. But 

EPA has not yet reached that point, and indeed, it remains far from it. 

EPA's first effort to set a strict numeric limit on the turbidity of construction stormwater runoff failed very shortly after industry mounted 

a legal challenge to that limit and its associated monitoring and reporting requirements. The litigation forced EPA to reexamine its work 

on the C&D ELG. To its credit, however, the agency did volunteer that this process had revealed miscalculations; and the agency did 

agree to put the limit on hold, pending a new rulemaking. See 75 Fed. Reg. at 68,215 (Nov. 5, 2010) (EPA discussing reasons for seeking 

a stay of the 280 nephelometric turbidity unit (NTU) limit and other issues surrounding ongoing litigation in the Seventh Circuit Court of 

Appeals in the case Wisconsin Builders Association v. EPA, Case No. 09-4113). EPA originally planned to complete that rulemaking on

February 15, 2012, but nearly one year later, the agency has yet to even complete its proposal. 

In addition to the limit itself, this new rulemaking will provide an opportunity for EPA to reconsider the feasibility of meeting a numeric 

effluent limit on cold weather sites, small sites that are part of a common plan of development, and on linear gas and electric utility 

projects. EPA has already committed itself to reviewing these issues, as well as other issues that may that may come to the surface, as the 

new rulemaking proceeds. At this point, it is quite obviously impossible to know what those other issues might be. 

Proceeding immediately to revise the CGP to the extent that EPA has proposed unnecessarily threatens great confusion. To bring 

everything into alignment, AGC fears that EPA would require yet another string of extended deadlines and corrective rulemakings, 

much like the several that have already plagued its effort to regulate construction stormwater runoff. Indeed, even in December of 2009 

- when it reached what it thought was the end of its rulemaking on a C&D ELG, and believed that all of the relevant issues had already 

surfaced -EPA recognized that implementing that ELG would be difficult, and take time and closer examination. In the preamble to the 
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final C&D ELG rule, the agency contemplated a lengthy (18-month) implementation process that would "allow permitting authorities to 

develop any necessary training or certification programs." See 74 Fed. Reg. at 63,050. As the agency further explained: 

An important factor in the effective implementation and compliance with this rule will be the permitting authority being able to digest 

the numeric limitation and monitoring requirements and developing guidance and outreach to the regulated community to provide 

assistance so the requirements are understood and can be effectively met by owners and operators of C&D sites. This will provide the 

regulated industry with the guidance, knowledge and tools necessary in order to effectively monitor their discharges in order to ensure 

they are meeting the numeric limitation. Id. 

In December of 2009, EPA was right, and today, it is equally - and inexplicably - wrong. If EPA hopes to succeed, it must wait for all of 

the issues to surface, for the new rulemaking to come to a close, and for both the permitting authorities and the regulated community to 

digest its unprecedented provisions. Only then should the agency undertake the difficult task of revising the CGP. 

At this point, there is simply is no way to determine which monitoring requirements will be appropriate for a revised permit to include, or 

which outfalls might require monitoring, or what the final limit (if any) will necessitate, in terms of compliance. EPA must promulgate 

and defend a complete C&D ELG, and give both permitting authorities and the regulated community time to assess its requirements, 

before it can determine the most efficient and effective monitoring protocols and related requirements. 

Response 

Refer to 3.1. 

Comment ID 0093-A2.001.071

Author Name: Pilconis Leah 

Organization: Associated General Contractors of America (AGC) 

Issue Category: BAC.2 

The Draft includes a placeholder for a recalculated numeric turbidity limit, stating "if you are subject to the numeric turbidity limit, the 

average turbidity of any discharge for any day must not exceed the value listed." 

While EPA may intend to finalize a numeric effluent limit for turbidity in a revised C&D ELG, it is entirely possible that EPA will not 

promulgate or be able to defend such a limit. EPA may settle for a "benchmark" or "action level" type approach for a final turbidity or 

total suspended solids threshold. Because EPA cannot predict how its ELG rulemaking or related litigation will end, the agency should 

remove these provisions. 

Response 

Refer to 3.1. 

Comment ID 0096-A1.001.003

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.2 

EPA’s draft CGP attempts to implement its Construction & Development Effluent Limitation Guidelines (C&D ELG), published on 
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December 1, 2009.[FN 7] EPA asserts that after it establishes a new effluent limitation guideline the standard must be incorporated into 

subsequent NPDES permits, as appropriate.[FN 8] However, the C&D ELG is not yet final. EPA is therefore not obligated to incorporate 

(or to include placeholders for) these provisions in the draft CGP. Doing so is not only premature, it is unwise. 

[FN 7] 76 Federal Register 62,996 (December 1, 2009). 

[FN 8] Id. 

Response 

Refer to 3.1. 

Comment ID 0096-A1.001.004

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.2 

Based on administrative petitions and litigation in the Seventh Circuit challenging significant errors in the C&D ELG, EPA has 

remanded the related administrative record, stayed the numeric limit of 280 nephelometric turbidity units (NTU), and agreed to 

reconsider certain aspects of the rule.[FN 9] EPA filed a motion with the court promising to address the many flaws in the C&D ELG by 

February 15, 2012.[FN 10] To date, EPA has not yet published any proposed or final revisions to the C&D ELG, and the delay may 

signal that addressing the rule’s flaws is no simple matter. Considering that the C&D ELG is not “final” and there appears to be no easy 

fixes to the many flaws, it is inappropriate and premature to include the C&D ELG terms in the draft CGP. 

Even if EPA asserts that it has not stayed the entire December 2009 rulemaking and that parts of that rule are ripe for immediate 

implementation, it is still inappropriate to include those terms in the draft CGP. In short, EPA cannot pick and choose the elements it 

wishes to implement now and save others for later. In December 2009, EPA did not promulgate separate non-numeric and numeric 

effluent limits as stand-alone rulemakings, each with its own independent economic, benefits, or cost-effectiveness analyses. Instead, 

EPA promulgated a single, unified package of non-numeric and numeric effluent limits, including a technical development document, 

economic analysis, and other supporting documents that analyzed a comprehensive package of technology controls as a “complete 

rulemaking.” EPA cannot now assert that the non-numeric and numeric effluent limitations are separate efforts and that its admitted 

errors affecting part of that complete rule package has no impact on implementing the comprehensive rule package. 

[FN 9] EPA voluntarily stayed the numeric limit and remanded the administrative record to reconsider certain aspects of 

the rule, such as the implementation of the numeric limit on cold weather sites, issues related to small sites, 

implementation in linear gas and electric utility projects, and other issues that may reveal themselves during EPA’s 

review. 75 Fed. Reg. 68,215 (Nov. 5, 2010); EPA’s Unopposed Motion for Partial Vacature of the Final Rule, 

Remand of the Record, to Vacate Briefing Schedule, and to Hold the Case in Abeyance (“EPA’s Motion to 

Remand”), Wisconsin Builders Association v. EPA, No. 09-4113 (7th Cir. Aug. 13, 2010). 

[FN 10] EPA’s Motion to Remand at 6. 

Response 

Refer to 3.1. 
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Comment ID 0096-A1.001.005

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.2 

In addition to the numeric limit and other terms that EPA agreed to reconsider, there are several other C&D ELG provisions that exceed 

EPA’s authority under the CWA. For example, as set forth in the ongoing litigation over this rulemaking, the C&D ELG illegally 

imposes certain BMPs that improperly regulate internal site processes. The CWA authorizes EPA to 

control discharges of pollutants from point sources into navigable waters.[FN 11] Yet, the C&D ELG imposes BMPs that improperly 

restrict the internal processes within the C&D site that are unrelated to point source discharges. For instance, the C&D ELG requires 

construction site operators to “[c]ontrol stormwater volume and velocity within the site to minimize soil erosion,”and to “[m]inimize the 

amount of soil exposed during construction activity." [FN 12] Exposed soil and other construction site features are not necessarily point 

sources at a construction site; they are merely conditions within a construction site that may or may not contribute to a point source 

pollutant discharge to U.S. waters. The Act “does not empower the agency to regulate point sources themselves; rather EPA’s [CWA] 

jurisdiction . . . is limited to regulating the discharge of pollutants” from a point source. [FN 13] 

[FN 11] EPA cannot impose effluent limitations – numeric or otherwise – except to control “discharge[s] from point 

sources into navigable waters . . . .” 33 U.S.C. § 1362(11). 

[FN 12] 40 CFR §§ 450.21(a)(1), (3) (emphasis added); see also id. at (a)(4), (a)(7), (b). 

[FN 13] Natural Res. Def. Council v. EPA, 859 F.2d 156, 170 (D.C. Cir. 1988) (emphasis added); Service Oil, Inc. v. EPA, 

590 F.3d 545, 551 (8th Cir. 2009) (“the Clean Water Act gives the EPA jurisdiction to regulate and control only 

actual discharges – not potential discharges, and certainly not the point sources themselves.”) (emphasis in original); 

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486, 504 (2d Cir. 2005) (“The Clean Water Act authorizes the EPA to 

regulate through the NPDES permitting system, only the discharge of pollutants.”); Am. Iron and Steel Inst. v. EPA, 

115 F.3d 979, 996 (D.C. Cir. 1997) (EPA’s authority is limited to controlling pollutant discharges from a point 

source, not internal processes; Congress intended to give permittees the flexibility to select their own internal control 

strategies). 

Response 

Refer to 3.1. 

Comment ID 0096-A1.001.006

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.2 

Due to admitted irregularities and other challenged aspects of the C&D ELG, EPA cannot and should not attempt to implement any 

subpart of the C&D ELG rulemaking until that entire rulemaking is complete.[FN 14] In other words, there is no C&D ELG package to 

implement until the upcoming corrective rulemaking is finished. Even if EPA were to disagree and proceed with its draft CGP that 

implements subsections of the C&D ELG, it faces timing issues that make its effort to implement the C&D ELG inappropriate. On June 

30, 2011, EPA announced that it would extend the current 2008 CGP only until February 15, 2012 – the deadline for revisions to the 

C&D ELG.15 EPA could have extended the 2008 CGP until June 30, 2013 (its full five year term) to allow time to finalize the C&D 

ELG and then incorporate those terms into the CGP. 
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The fact that EPA did not proceed in this logical manner implies that the new CGP – not the new industry standard – is the Agency’s top 

priority, especially because EPA is unlikely to finalize the C&D ELG before the February 15, 2012 deadline. 

EPA has been reassessing the C&D ELG for nearly a year and has yet to propose any C&D ELG revisions. Even if EPA issues a proposal 

this month, given the gamut of issues to be addressed, a final C&D ELG rule is virtually impossible to accomplish in a six- to 

seven-month period. EPA’s C&D ELG proposal would likely contain new provisions, analyses, cost and benefits assessments, and other 

issues (e.g., linear construction concerns) that will require significant review and analyses by the public during a notice and comment 

period. Any comment period less than 90-days, under these circumstances, would be unreasonable and unfair to the affected 

stakeholders. EPA must also set aside time to review comments and develop options for a final rulemaking. An additional 90-day period 

seems insufficient to accomplish those tasks.Beyond this six-month period, the Office of Management and Budget is entitled to its own 

90-day review under E.O. 12866 before approving or rejecting the final regulatory package. Considering this process, it is optimistic to 

assume that EPA could promulgate the new, final C&D ELG package in nine months, let alone in the seven months between mid-July 

(assuming a proposal is immediately forthcoming) and mid-February. 

EPA cannot reasonably be expected to promulgate well-reasoned revisions to the C&D ELG by the new February 15, 2012 expiration 

date for the 2008 CGP. Therefore, EPA should not attempt to implement the non-final C&D ELG provisions in this draft CGP. Instead, 

EPA should promulgate a new CGP apart from the controversies, errors, and litigation that has surrounded the C&D ELG effort. In other 

words, the draft CGP should focus on water quality issues, establishing a reasonable eNOI system (if appropriate), and enhanced best 

management practices (not including the BMPs set forth in the C&D ELG until that rulemaking is finalized and fully litigated). A 

reasoned approach would greatly simplify the CGP promulgation process. After finalizing a CGP based on appropriate considerations, 

EPA could turn its attention to 

finalizing the C&D ELG and then address implementation: (i) within the context of the C&D ELG rulemaking itself; or (ii) as separate 

but companion “guidance” document developed in parallel with the final C&D ELG with a meaningful notice and comment period. In 

fact, when EPA originally promulgated the C&D ELG, EPA anticipated that a full 18-month implementation period would be necessary 

to adequately implement the program. EPA claimed that this implementation period would allow permitting authorities to: (i) “digest the 

numeric limitation and monitoring requirements;” (ii) “develop any necessary training or certification programs;” and (iii) “develop 

guidance and outreach to the regulated community” to 

ensure compliance.[FN 16] EPA’s current CGP promulgation strategy completely ignores and conflicts with these important goals. By 

separating the draft CGP from the ongoing revisions to the C&D ELG, EPA can provide a more comprehensive C&D ELG rulemaking 

package, reduce duplicative rulemaking efforts, and allow permitting authorities time to implement programs in a manner that reduces 

confusion and ensures compliance. 

In sum, EPA conceded last August that it made mistakes when it promulgated its C&D ELG rule in December 2009. The Agency stayed 

part of that regulation and promised to revise the ELG to address certain specific issues and “any other issues that reveal themselves to 

the Agency” during that rulemaking. Because it cannot anticipate how to implement undetermined provisions in its upcoming C&D 

ELG rulemaking, EPA should not attempt to implement such provisions in its draft CGP. A piecemeal approach is unnecessarily 

complex and confusing for the public, construction site operators, and permitting authorities. 

[FN 14] NAHB’s opening brief in the C&D ELG litigation challenged several other aspects of the rule. See generally 

Brief of Petitioners Wisconsin Builders Association and NAHB, Wisconsin Builders Association v. EPA, No. 09- 

4113 (7th Cir. July 9, 2010). 
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[FN 15] 76 Federal Register, 40355 (July 8, 2011) 

[FN 16] 74 Federal Register 63,050 (December 1, 2009). 

Response 

Refer to 3.1. 

Comment ID 0096-A1.001.045

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.2 

To date EPA has not yet finalized a scientifically sound numeric effluent limit for the 

construction industry, but the Agency is keen to not let the lack of a value stop its development 

of the CGP. Thus, in lieu of a numeric limit, Today’s proposed permit includes a placeholder. 

In every place within the permit where the numeric limit is expected to appear, EPA has 

indicated [placeholder for final, recalculated numeric turbidity limit - 40 CFR 450.22]. NAHB 

believes trying to complete a rulemaking (and garner meaningful public comment) without all of 

the relevant data is misguided. While it is EPA’s intention to propose and finalize a numeric 

effluent limit for incorporation into the CGP before the CGP is finalized, it is impossible to 

effectively complete a final C&D ELG rule in a six- to seven-month period. Setting timing 

aside, quite simply, the gravity of the requirements found in the proposed CGP cannot be 

effectively evaluated until a final numeric limit is issued. At this point, there is simply is no way 

to determine which monitoring requirements may be appropriate to include in the revised CGP, 

which outfalls might require monitoring and how often, or what BMPs or other practices the 

final limit (if any) will necessitate, in terms of compliance. EPA must promulgate and defend a 

complete ELG for the construction industry, and give both permitting authorities and the 

regulated community time to assess its requirements, before it can determine not only the most efficient and effective sampling and 

monitoring protocols, but other related requirements needed 

for compliance with the CGP. 

Response 

Refer to 3.1. 

Comment ID 0103-A2.001.001

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: BAC.2 

The EPA published a turbidity limit for construction storm water discharges that became effective on February 1, 2010. However, after 

several lawsuits challenging these regulations, EPA reevaluated the limit and concluded that it was constructed in error and would need 

to be reissued. EPA received numerous state and public comments on this particular limit, but continued to move forward without fully 

examining the regulation to ensure that limits were soundly established and subsequently had to resent it. Now, part 3.2 of EPA's 

Construction General Permit contains a placeholder for a numeric turbidity limit. 
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EPA has proposed to adopt a limit that does not yet exist, denying the public, states, and regulated community of the opportunity to 

provide comments. That action alone is not appropriate; however, it is particularly troubling considering EPA's previous attempts to 

implement turbidity limits. EPA should abandon any attempts to impose a turbidity limit in the CGP and allow the limit to be fully 

noticed and considered as a federal rule first. 

Response 

Refer to 3.1. 

Comment ID 0103-A3.001.001

Author Name: Vickery Mark 

Organization: Texas Commission on Environmental Quality (TCEQ) 

Issue Category: BAC.2 

The EPA published a turbidity limit for construction storm water discharges that became effective on February 1, 2010. However, after 

several lawsuits challenging these regulations, EPA reevaluated the limit and concluded that it was constructed in error and would need 

to be reissued. EPA received numerous state and public comments on this particular limit, but continued to move forward without fully 

examining the regulation to ensure that limits were soundly established and subsequently had to resent it. Now, part 3.2 of EPA's 

Construction General Permit contains a placeholder for a numeric turbidity limit. 

EPA has proposed to adopt a limit that does not yet exist, denying the public, states, and regulated community of the opportunity to 

provide comments. That action alone is not appropriate; however, it is particularly troubling considering EPA's previous attempts to 

implement turbidity limits. EPA should abandon any attempts to impose a turbidity limit in the CGP and allow the limit to be fully 

noticed and considered as a federal rule first. 

Response 

Refer to 3.1. 

Comment ID 0110-A1.001.008

Author Name: Robeson Michael 

Organization: Profile Products LLC 

Issue Category: BAC.2 

EPA admitted that it miscalculated the stormwater runoff limit published in the December 2009 Construction and Development Effluent 

Limitations Guidelines (C&D ELG) rule and subsequently put the limit on hold pending the completion of a new rulemaking. EPA has 

yet to issue a revised turbidity limit so it does not know for certain what other issues will surface during that rulemaking. The pending 

C&D ELG "correction rule" is critical to amending the 2008 CGP and must be completed before the CGP is reissued in order to avoid 

confusion in EPA's construction stormwater permitting program. Likewise, EPA must first promulgate and defend a numeric stormwater 

limit before the regulated community can assess and comment on the most efficient and effective monitoring protocols/requirements. 

Response 

Refer to 3.1. 
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Comment ID 0128-A2.001.001

Author Name: Robertson Mike 

Organization: Minnesota Chamber of Commerce 

Issue Category: BAC.2 

EPA Should Delink its Efforts to Issue a New CGP While Simultaneously Promulgating Corrected C&D ELG Regulations. 

One of the primary objectives of EPA's Proposed CGP is to implement the Construction & Development ELG regulations originally 

promulgated on December 1, 2009. See 76 Fed. Reg. at 22, 885. EPA asserts that once a new national standard is established pursuant to 

the Clean Water Act's effluent limitations guidelines provisions, they must be incorporated into subsequent NPDES permits, as 

appropriate. Id. However, EPA has not truly set FINAL ELG standards for the construction and development industries. Because EPA 

has not finalized the C&D ELG regulations, not only is EPA not obligated to implement such regulations in the Proposed CGP, the 

Chamber asserts that doing so is confusing, inappropriate, and may result in an unnecessary and continued string of corrective 

rulemakings that, to date, have plagued construction stormwater regulatory efforts. The Chamber supports the Federal StormWater 

Association comments in this regards. 

Response 

Refer to 3.1. 

Comment ID 0136-A1.001.001

Author Name: Conlon Royce 

Organization: PDC Inc. Engineers 

Issue Category: BAC.2 

EPA's attempt to implement a numeric turbidity limit and associated monitoring and reporting requirements for construction site 

stormwater runoff is premature. Turbidity limits need to consider natural surroundings and background levels of the receiving waters. 

It is not reasonable to expect construction project stormwater runoff to be far clearer than the receiving waters ... where is the value 

gained (cost vs benefit) to putting a few thousand gallons of super clean water into millions of gallons of very dirty water; let's put our $ 

where it counts. For instance the Yukon River in Alaska .... the volume runoff from a construction project adjacent to the Yukon river is 

negligible to the overall volume of high turbidly water that this very large river carries. However the cost and effort to clean up the 

comparative small volume of water from the construction project could be quite large. The one size fits all conditions has very large cost 

ramifications. Further - EPA admitted that it miscalculated the stormwater runoff limit published in the December 2009 Construction 

and Development Effluent Limitations Guidelines (C&D ELG) rule and subsequently put the limit on hold pending the completion of a 

new rulemaking. EPA has yet to issue a revised turbidity limit so it does not know for certain what other issues will surface during that 

rulemaking. The pending C&D ELG "correction rule" is critical to amending the 2008 CGP and must be completed before the CGP is 

reissued in order to avoid confusion in EPA's construction stormwater permitting program. Likewise, EPA must first promulgate and 

defend a numeric stormwater limit before the regulated community can assess and comment on the most efficient and effective 

monitoring protocols/requirements. 

Response 

Refer to 3.1. 

Comment ID 0137-A2.001.001
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Author Name: Ballentine Tom 

Organization: Maryland Association of Industrial and Office Properties (MAIOP) 

Issue Category: BAC.2 

We are especially concerned that EPA will be promulgating changes to the CGP before finalizing revisions to the ELG turbidity limits. 

It is difficult to provide comprehensive comments and determine the full impact of these changes without the benefit of understanding 

EPA's intent to establish turbidity limits. 

Response 

Refer to 3.1. 

Comment ID 0154-A1.001.001

Author Name: Loehr Aaron 

Organization: Pace Construction 

Issue Category: BAC.2 

Refrain from including the numeric stormwater limit or associated provisions in the CGP until the Agency has promulgated revisions to 

that regulation and concluded related litigation before the 7th Circuit Court of Appeals. 

Response 

Refer to 3.1. 

Comment ID 0158-A1.001.002

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: BAC.2 

NRECA is also very concerned about EPA's failure to modify the permit to cover the unique situations presented by linear projects such 

as construction and maintenance activities on utility transmission and distribution corridors (collectively identified as "transmission" 

lines). Such modifications were the subject of extensive negotiations between EPA and the utility industry and are scheduled to be 

implemented in the forthcoming Effluent Limitation Guidelines for the Construction and Development industry. Unfortunately EPA has 

turned the process on its head by issuing the general permit that implements the guidelines 

before the guidelines themselves have been finalized. With all due respect, NRECA encourages EPA to delay finalizing the proposed 

CGP until the final C&D effluent guidelines are reissued and affected parties have had a chance to review the new effluent guidelines 

and a revised CGP. 

Response 

Refer to 3.1 and 17. 

Comment ID 0158-A1.001.004

Author Name: Stine James 

Organization: Rural Electric Cooperative Association (NRECA) 

Issue Category: BAC.2 
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The CGP is the vehicle by which the requirements of the Construction and Development (C&D) Effluent Guidelines are implemented, 

74 Fed. Reg. 62,996 (Dec. 1, 2009). The electric utility industry argued, and the court agreed, that these final C&D effluent guidelines 

failed to address important concerns including the inappropriateness of the regulations when applied to linear development. See U.S. 

Court of Appeals of the Seventh Circuit Order in WBA, et. al. v. EPA, dated September 20, 2010. EPA issued a stay for parts of the rule 

and the rule has been remanded to address the flawed numeric limit and other issues raised by the utility industry through UWAG. While 

EPA has yet to repropose the C&D rule 10 months after remand, EPA is nonetheless proceeding to implement its original requirements 

by issuing the draft CGP; seemingly ignoring many of the concerns raised by the utility industry and recognized by the courts. 

NRECA encourages EPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued in response to the 

remand and affected parties have had a chance to review the new effluent guidelines and a revised CGP.

Response 

Refer to 3.1. 

Comment ID 0159-A1.001.001

Author Name: Seawright Stephen 

Organization: Maryland State Builders Association 

Issue Category: BAC.2 

Thank you for the opportunity to comment on the draft Construction General Permit. Although this particular permit is not likely to 

directly impact Maryland construction activities, we have concerns about some of the elements that may be proposed for the CGP from 

which Maryland permit authority is delegated. We are especially concerned that EPA will be promulgating changes to the CGP before 

finalizing revisions to the ELG turbidity limits. It is difficult to provide comprehensive comments and determine the full impact of these 

changes without the benefit of understanding EPA's intent to establish turbidity limits. We also would request the basis for EPA's 

determination that the existing process in place is not adequately protecting waters of the U. S or the public interest as defined in Section 

402 of the Clean Water Act. 

Response 

Refer to 3.1. In response to the request for the basis for EPA's determination that the existing process in place is not adequately protecting 

waters of the U. S or the public interest as defined in Section 402 of the Clean Water Act, EPA notes that the new requirements in the 

permit primarily relate to the implementation of the C&D rule non-numeric requirements. Other new provisions in the new permit the 

Agency felt were necessary to improve permit clarity and to ensure that discharges are consistent with water quality standards. 

Comment ID 0166-A1.001.001

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: BAC.2 

I. EPA's attempt to implement a numeric turbidity limit and associated monitoring and reporting requirements for construction site 

stormwater runoff is premature. EPA admitted that it miscalculated the stormwater runoff limit published in the December 2009 

Construction and Development Effluent Limitations Guidelines (C&D ELG) rule and subsequently put the limit on hold pending the 

completion of a new rulemaking. EPA has yet to issue a revised turbidity limit so it does not know for certain what other issues will 

surface during that rulemaking. The pending C&D ELG `correction rule` is critical to amending the 2008 CGP and must be completed 
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before the CGP is reissued in order to avoid confusion in EPA`s construction stormwater permitting program. Likewise, EPA must first 

promulgate and defend a numeric stormwater limit before the regulated community can assess and comment on the most efficient and 

effective monitoring protocols/requirements. 

Response 

Refer to 3.1. 

Comment ID 0171-A1.001.003

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: BAC.2 

It is our understanding that USEPA has chosen to put forth a general permit format before the Effluent Limitation Guidelines themselves 

have been finalized. AIEC believes that good public policy dictates that the Construction and Development effluent guidelines should be 

revisited and placed in a joint review and comment process with the CGP. 

Response 

Refer to 3.1. 

Comment ID 0171-A1.001.005

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: BAC.2 

USEPA continues to implement its original requirements by issuing the draft CGP even though concerns have been raised by the utility 

industry and recognized by the courts. 

Response 

Refer to 3.1. 

Comment ID 0171-A1.001.006

Author Name: Davis Stephen 

Organization: Association of Illinois Electric Cooperatives 

Issue Category: BAC.2 

AIEC encourages USEPA to delay finalizing the proposed CGP until the final C&D effluent guidelines are reissued and affected parties 

have had a chance to review the new effluent guidelines and a revised CGP. 

Response 

Refer to 3.1. 

BAC.3 CD RULE - OBSERVATIONS ON 

ADVANTAGES/DISADVANTAGES OF ADOPTING A NUMERIC LIMIT
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Comment ID 0011-A2.001.001

Author Name: Colón-Zavala Emilio 

Organization: ECZ Group, Inc. 

Issue Category: BAC.3 

As indicated in the Notice, EPA announced the issuance of the 2008 CGP on July 14, 2008 [FN 1] and is now proposing to extend the 

expiration date to January 31, 2012 [FN 2] from the prior expiration date of June 30, 2011.[FN 3] The primary reason, as stated in the 

Notice, for proposing the January 31, 2012 expiration date is to allow EPA to "incorporate for the first time new effluent limitations 

guidelines and new source performance standards, which EPA promulgated in December 2009 [C&D ELG]... [and] to make up for 

delay in the issuance process of the new CGP due to an error discovered in the December 2009 final rule regarding the calculation of the 

numeric limitation on turbidity, then established as 280 NTU. Both the NAHB, before the Seventh Circuit Court of Appeals, and the 

Small Business Administration, through the Administrative Procedure Act, had requested that EPA withdraw the 280 NTU limitation as 

one of impossible compliance by the affected construction industry sectors. EPA is currently in the process of proposing a new numeric 

effluent limitation for turbidity under separate rule. The PRHA has been particularly concerned with the application of turbidity 

limitations to streams and creeks that, in the case of Commonwealth surface waters, may commonly exceed, the proposed limitation, 

because of naturally occurring background conditions. 

[FN 1] 76 Fed. Reg. 22894. 

[FN 2] 76 Fed. Reg. 22891. 

[FN 3] 75 Fed. Reg. 28454. 

Response 

Refer to 3.1. 

Comment ID 0056-A2.001.011

Author Name: Purinton Tim 

Organization: Massachusetts Department of Fish & Game, Division of Ecological Restoration (DER) 

Issue Category: BAC.3 

While it is currently rare to have a restoration project encompassing 10 or more acres, restoration is trending toward larger, 

sub-watershed scale designs to achieve larger gains in functionality and sustainability of altered ecosystems. Projects on this scale can 

involve ‘passive' disturbances such as the draining of an impoundment when a dam is removed. In these instances, restoration efforts in 

one part of the system leads to changes throughout the interconnected ecosystem. This may include increased turbidity in one area and 

deposition in another. 

As mentioned previously, restoration work frequently involves allowing a dynamic natural system to find its level. This approach 

increases the likelihood a restoration effort will be self-sustaining in the long term. Manipulating the shifts in materials could slow this 

process. The DER fully supports the intent behind adopting a turbidity limit for larger construction projects but sees the value in 

assessing restoration cases differently. One option would be to defer to the approval and conditioning found in the permits and 

certificates for sections 401 and 404 of the CWA. Aquatic, estuarine and coastal restoration projects with 10 acres or more of disturbance 

would need to obtain one or both of these approvals. This approach replicates the exemption provided for interstate gas pipelines where 
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another agency permits the project. 

Response 

Refer to 3.1. 

Comment ID 0058-A1.001.002

Author Name: Ruane T. 

Organization: American Road & Transportation Builders Association (ARTBA) 

Issue Category: BAC.3 

ARTBA members have participated in a variety of work group meetings with EPA staff specifically concerning stormwater runoff 

regulations, particularly from construction projects. One area of particular concern, which has been discussed in these meetings and is 

also present in the proposed general permit, is the establishment of specific numeric standards for stormwater runoff. Currently, many 

transportation projects effectively use state-specific Best Management Practices (BMPs), as opposed to set numeric standards, to address 

stormwater concerns and effectively balance environmental protection without exacerbating already arduous delays. In discussing how 

to approach future regulation of stormwater runoff, ARTBA strongly supports allowing states to continue the use of BMPs as opposed to 

more stringent "one size fits all" approached relying on such predetermined numeric standards. 

BMPs allow the flexibility necessary for project sponsors to be able to select stormwater control techniques best suited to a projects 

particular circumstances. Every transportation project faces unique challenges based on a number of factors, including where actual 

construction is taking place, the size of the project and climate issues such as rainfall amounts during the time construction is being 

performed. A numeric standard applied to all projects, however, would not be able to take such differences into account. Transportation 

projects in areas with heavy rainfall would be held to the same effluent limitation standards as projects in dry, arid regions. Such a 

"one-size-fits-all" approach to stormwater permitting could constrain and/or delay transportation projects by treating them like 

concentrated development projects and forcing them to adhere to numeric standards designed for an entirely different type of 

construction activity. 

In one specific instance, an ARTBA member company had a project on a fairly large site (70 to 100 acres). It started out as a $4,000,000 

project. During the project, there was an "El Niño" weather cycle bringing a great deal of rain every day. The project's customer could 

not afford to wait until all of the BMPs treated the water and needed the contractor to dry out the site as fast as possible so construction 

could continue. The contract granted weather days, but the water needed to be processed faster requiring the contractor to implement an 

Alternative Treatment System (ATS, which would be required on many projects to meet numeric standards) using settlement ponds, 

flocking, filtering, pumping, handling, etc. The contractor agreed to do this work on an audited Time and Material basis. The final cost

and change order resulted in over $1,000,000 in additional charges to the project. 

The ARTBA contractor involved in this job noted most projects in that area had the same problem that summer but none of them had the 

ATS expense this contractor incurred. ARTBA is concerned the implementation of numeric stormwater discharge standards will add 

substantial additional costs by requiring expensive ATSs, which could limit competition for transportation projects due to the high cost 

of purchasing equipment necessary for compliance being potentially prohibitive for smaller and medium-sized contractors. Further, 

these additional costs are especially troublesome for transportation projects where needs vastly outweigh available resources. 

Response 
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Refer to 3.1. 

Comment ID 0058-A1.001.003

Author Name: Ruane T. 

Organization: American Road & Transportation Builders Association (ARTBA) 

Issue Category: BAC.3 

Another problem with numeric stormwater standards is the lack of availability of treatment equipment necessary to meet the standards. 

According to ARTBA contractor members, it could take years until there is enough equipment to fully implement numeric discharge 

standards. Meanwhile, many projects will be in limbo while waiting for this equipment to become available. Currently, there are only a 

relatively small number of vendors who sell the necessary equipment. Implementing a numeric discharge standard would essentially 

place transportation planners as well as the states and localities overseeing transportation projects at the economic mercy of this small 

group of treatment equipment vendors, at least in the short term. 

Response 

Refer to 3.1. 

Comment ID 0058-A1.001.004

Author Name: Ruane T. 

Organization: American Road & Transportation Builders Association (ARTBA) 

Issue Category: BAC.3 

Also, there are liability issues arising from the imposition of numeric standards. If a project temporarily violates a proposed numeric 

standard, it could open the door for litigation. Further, it is unclear who would bear the responsibility of any such litigation. Would the 

project planner be responsible, the contractor in charge of the job, or the sub-contractor (if there is one) assigned to deal with stormwater 

run-off? Ultimately, any "one size fits all" style rule may provide another avenue for project opponents to use litigation as a means to 

delay and disrupt transportation improvements. As soon as there is a violation of a numeric standard, a "rush to the courthouse door" 

could be triggered, potentially resulting in additional years of delay to affected projects. 

Response 

Refer to 3.1. 

Comment ID 0096-A1.001.011

Author Name: Asmus Susan 

Organization: National Association of Homebuilders 

Issue Category: BAC.3 

In 2009, NAHB formulated and proposed to EPA an alternative approach to the ELG that adequately protects the environment and 

improves the current permitting framework. This approach provides a BMP-based option combined with a numeric action level that 

provides additional protection for sites that pose higher risks to the environment. Because the CWA only requires compliance with 

minimum technology standards that are economically achievable on a national basis, not standards that would ensure that each and every 

site across the country is regulated to the extent necessary for its discharges to meet the toughest water quality standards for the most 

sensitive waterbodies, an alternative action level approach makes sense. 
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The proposed “action level approach,” which has been presented to EPA and OMB, would streamline implementation, ensure 

environmental protection, and serve as a national baseline while recognizing the vast variability in soil type, rainfall, etc. across the 

nation (See Attachment II) [Please see Attachment II in the origional comment letter. Docket ID EPA-HQ-OW-2010-0782-0096-A1]. 

This action level approach is intended to supplant the numeric effluent limits, 

continues to rely on the use of BMPs and sediment ponds, but also establishes an action level for turbidity for discharges from projects 

disturbing 30 or more acres. This means any operator of a site discharge that exceeds the action level must revise his/her BMPs and/or 

take other appropriate responsive action to reduce the amount of pollutants in the stormwater discharge to below the action level. 

The environmental benefit of an action level approach as compared to a numeric standard (if such a standard is even achievable) is likely 

to be very similar due to the limited universe of expected benefits accruing from a numeric standard. Taking into account both costs and 

benefits, the adoption of an action level approach is vastly superior to simply changing the numeric standard, which is EPA’s current 

plan. A more careful review of the available data leads to the conclusion that an action level approach is more appropriate because it will 

incentivize facilities to reduce pollutant discharges at a much lower cost than the standard-based approach that requires facilities to 

install costly treatment systems to ensure regulatory compliance. An action level approach also significantly reduces administrative 

burdens. State regulators are overwhelmingly opposed to a single numeric limit, because of the increased workload and doubts that the 

numeric limit would be feasible or yield significant benefits. On the other hand, an action level approach as currently adopted by a few 

states will keep discharges low by requiring re-evaluations of best management practices for any benchmark turbidity exceedances 

and appropriate corrective actions and reporting to state agencies. 

Response 

Refer to Response 3.1. Additionally, EPA appreciates the suggestions; however, the Agency, as noted in Part 3.1 will not be 

implementing the numeric turbidity limit into this permit, and therefore, EPA does not believe that it would be appropriate to consider 

alternative approaches to the numeric limit. 

Comment ID 0106-A2.001.003

Author Name: Hamanishi Henry 

Organization: J. R. Simplot Company 

Issue Category: BAC.3 

2. Numeric Turbidity limit and Sampling Requirements (3) 

Simplot recommends if a numeric requirement for turbidity is implemented, that the numeric requirement is as a "benchmark" and not a 

"limit". A benchmark still requires that corrective actions are implemented, but does not cause a violation of the permit. This has been a 

common approach in the MSGP program and gives the opportunity of the discharger to take corrective action without the burden of the 

regulatory problems and paperwork associated with a violation. 

Further, Simplot disagrees having a "one size fits all" specific numeric turbidity limit, especially as a surrogate for suspended solids or 

sediment. This is because turbidity is a measurement of water clarity; suspended solids are a measurement of the concentration of solids 

in the water. There is no common correlation between these measurements; thus if a relationship is desired it must be determined on-site 

specific basis. Even then though, such measurements show that developing a relationship can be technically difficult to achieve. 

Attached are data from a series of streams located near a mining operation that shows the variability between turbidity and total 
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suspended solids measurements. Though a correlation can sometimes be determined for a particular waterbody or flow discharge, 

considerable data is needed to develop a statistically valid relationship between turbidity and suspended solids or sediment. 

Response 

Refer to 3.1. 

Comment ID 0117-A1.001.004

Author Name: Robison Mary 

Organization: City of Syracuse, New York 

Issue Category: BAC.3 

The EPA has proposed a NTU discharge limitation of 280 on disturbances of 20 acres or more beginning August 1st, 2011 and 10 acres 

or more beginning February 2nd, 2014. This limit may not be exceeded on any given day or time regardless of pre‐existing conditions of 

the land to be developed. Therefore they are imposing a higher level of standard than may currently exist prior to the development or land 

disturbance. This may not be achievable until stabilization of an existing area occurs. In other words you may be in violation prior to 

your development occurring or at the onset of proposed development and approval of a CGP. Development will require stabilization of 

an existing area that has turbid runoff before disturbing the area for development and then maintaining a turbidity level under 280 NTU's.

Response 

Refer to 3.1. 

Comment ID 0121-A2.001.007

Author Name: Walsh Kevin 

Organization: Massachusetts Department of Transportation (MassDOT), Highway Division 

Issue Category: BAC.3 

The nature of linear projects result in distributed impacts. Therefore, the 10 acre threshold for conducting monitoring is not appropriate 

for these types of projects. Instead the threshold for linear projects should be based on the acreage of area that discharges to a single 

water body segment. 

Response 

Refer to 3.1. 

Comment ID 0130-A2.001.020

Author Name: Sullivan Sue 

Organization: Idaho Transportation Department (ITD) 

Issue Category: BAC.3 

19. NUMERIC LIMITS. Like many others, we have significant concerns about the impact of the numeric turbidity limitations. Using a

placeholder does not allow us to adequately review this permit. 

Response 

Refer to 3.1. 
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Comment ID 0132-A1.001.002

Author Name: Goodmann Peter 

Organization: Kentucky Division of Water (KDOW) 

Issue Category: BAC.3 

I would like to bring your attention two specific concerns that KDOW has with the proposed general permit as these concerns relate to 

the Kentucky NPDES program. Firstly, the proposed general permit seeks to maintain a narrative approach with regards to the effluent 

limit for construction site discharges, identifying a menu of practices necessary to protect water quality from discharges associated with 

construction sites. In addition, the general permit seeks to include a numeric effluent limit as part of the permit. KDOW has the following 

concerns where EPA deviating from the narrative approach and incorporating: 

1. The initial proposed effluent limit was subsequently recalled and it seems there is some uncertainty as to what the numeric effluent 

will eventually look like. 

2. Given this uncertainty, is it understood whether the industry actually comply with the eventual numeric effluent limit. 

a. If a site is in compliance with the narrative aspects of the effluent limit, but fails to meet the numeric effluent limit, how are the 

compliance issues to be remedied? 

3. There may result secondary public health, safety and environmental issues with the implementation of a numeric effluent limit, 

including the widespread use of sediment structures/ponds that the industry will employ. In addition, the EPA must resolve the Class V 

UIC permitting issues associated with Green Infrastructure technologies being employed to meet reduced and cleaner effluent from sites 

discharging stormwater from construction activities. 

Response 

Refer to Response 3.1. With regard to the comment about Class V UIC permitting issues, EPA notes that the comment is outside the 

scope of the CGP. 

Comment ID 0133-A2.001.002

Author Name: Martin Tom 

Organization: Montana Department of Transportation (MDT) 

Issue Category: BAC.3 

In regard to the proposed turbidity limitation, MDT acknowledges that once Effluent Limitation Guidelines and New Source 

Performance Standards are established, they must be incorporated into NPDES permits. However, without knowing the actual turbidity 

limitation proposed, it is problematic to review and adequately consider the implications of the proposed permit conditions. MDT 

requests that all possible legal avenues be explored to allow further public involvement o/the permit conditions related to the turbidity 

effluent limitation. 

Response 

Refer to 3.1. 

Comment ID 0145-A2.001.012
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Author Name: Haddock Randall 

Organization: CAHABA RIVER SOCIETY 

Issue Category: BAC.3 

We cannot over-emphasize how important it is to have a numeric limit for turbidity. Our experience has shown that turbidity 

measurements of streams receiving discharges from even small construction sites frequently range above >1000 Nephelometric 

Turbidity Units. Unfortunately, we hear from developers and sometimes from environmental enforcement staff that "the BMPs are 

properly installed" and that is all, they assume, that is required or all that is enforceable. A numeric limitation is an objective standard 

that would be far more easily enforced and would help avoid problems associated with inadequately installed and maintained BMPs. 

We suspect there is enormous pressure from economic interests to avoid designating a numeric turbidity limit. But such a limit is an 

essential and an objective standard that holds permittees accountable for the potential impacts of their activities. The lack of a numeric 

standard up to this point in time is an important reason for the failure to avoid the impacts associated with development projects that 

currently degrade our streams. Without that accountability, our streams will continue to be degraded. Having a numeric standard is 

essential. 

The size of sites for which a numeric limit should apply should not be limited to those greater than 10 or 20 acres. We have seen far 

smaller sites with severe erosion and sedimentation problems. We do not see an adequate justification for failing to apply a numeric to all 

construction and development activity. 

Response 

Refer to 3.1. 

Comment ID 0152-A2.001.001

Author Name: McGowen Scott 

Organization: Caltrans 

Issue Category: BAC.3 

In the California Construction General Pennit only high risk projects, Risk Level 3, are subject to numeric effluent limits (NELs). The 

California permit additionally includes action levels which apply to both high risk and moderate risk sites (levels 2 & 3). We believe this 

approach better focuses on control efforts at sites with the most potential to adversely impact water qUality. These high-risk sites may 

include sites smaller than 10 acres. 

Response 

Refer to 3.1. 

Comment ID 0152-A2.001.003

Author Name: McGowen Scott 

Organization: Caltrans 

Issue Category: BAC.3 

Caltrans requests that the EPA consider the risk-based approach that California has adopted for the application of numeric effluent limits 

and numeric action levels for turbidity. A risk-based approach is appropriate in that acknowledges that some construction projects pose 

a higher environmental risk. The proposed Permit language differentiates between construction sites only through project size, which 
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will result in all sites, regardless of their potential for runoff pollution, to require extensive monitoring and assessment. The lack of 

discrimination in this draft Permit in relation to site potential for runoff pollution, and the sensitivity of the receiving water to pollution 

from a construction site will not result in an efficient life cycle cost over water quality benefit. We request that a risk-based approach be 

incorporated into the EPA Permit for application of the proposed numeric effluent limitation. We understand that this may require a 

modification of the effluent limitation guidelines.

Response 

Refer to 3.1. 

Comment ID 0153-A1.001.003

Author Name: Wortkoetter Judith 

Organization: Greenville County, South Carolina 

Issue Category: BAC.3 

Several types of effluent standards have been used for water quality standards. The primary standards that have been used for stormwater 

sediment are total suspended solids (TSS), settleable solids (SS), and turbidity (NTU). Each has its advantages and disadvantages, as 

shown below. 

Total Suspended Solids: A TSS standard of 35 mg/I average has been used in the mining industry for years in some states. The pros of 

that standard are that there are models to predict expected TSS during a design storm and to determine the impact of BMPs. The cons are 

that it is time consuming to measure and results are not available for a number of days. The state of South Carolina currently requires 

80% trapping efficiency of TSS for active construction sites for the lO-year 24 hour design storm event. 

Settleable Solids: SS is defined as the amount of sediment that accumulates in the bottom of an Imhoff cone after one hour of settling. 

The volume of the sample is one liter and the results are reported in mill. The typical standard is 0.5 mill. The pros for the use of SS are 

that it is easy to measure and results can be available in an hour if the samples are processed at the withdrawal point. The cons are that the 

size particle that settles to the bottom of the cone in one hour is approximately 0.011 mm which is a medium size silt particle. A small 

percentage of the fine silts and clays will also settle to the bottom of the cone, but a sizeable fraction of the fine silts and clays are 

typically excluded from the sample. Thus, one could meet the 0.5 mill SS standard and still discharge a large mass of sediment. 

Unfortunately, 0.5 is the smallest value on the Imhoff cone. 

Turbidity: Turbidity (TB) is a measure of the clarity of the sample. It is measured instantly and can be continuously monitored and 

recorded by using commercially available probes, thus eliminating the timing issues for sampling. Recently, procedures have been 

developed at Oklahoma State University to predict turbidity from TSS and soil specific information. The standard originally proposed by 

EPA of 13 NTUs in a 2-year storm and the revised standard of 280 NTUs are very difficult to meet with traditional sediment control 

BMPs and the reduction of NTUs require the use of flocculants for most soils. With a realistic turbidity standard, it is possible to meet it 

in some locations with sandy or highly aggregated soils without using flocculants. Final turbidity standards have not been established. 

Studies at Oklahoma State University are being made to determine the effectiveness of flocculants and to develop procedures for 

modeling the impact of flocculants on turbidity. The results of these studies will be disclosed July 1, 2011. Flocculants require an 

appropriate injection system that can keep the concentration of the flocculent constant in the runoff. For construction sites, the system 

needs to be passive, or dependent on battery power. Also, a system to provide the proper turbulence to allow flocs to form and then to 

grow would be needed. Cons of using a turbidity standard are that there is not a great deal of experience in designing systems to meet a 
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turbidity standard; and, there is not a great deal of experience in operating flocculation systems at construction sites where intense 

rainfall occurs on highly erodible soils. However, there is experience at mine sites and experience in New Zealand and other places. Pros 

include the fact that the measurement of TB is simple, instantly available, and can be continuously monitored. Recent studies at North 

Carolina State University and Oklahoma State University have shown that flocculation can be very effective. In addition, Galbrecht et al. 

(2011) and others are reporting July 1, 2011 on systems that passively inject flocculent to maintain a constant of flocculant in the flow 

and that provide the conditions necessary to allow flocs to form and grow to a size that will settle out of a baSin, and a model that will 

predict the growth of flocs as well as the final turbidity in effluent from construction site sediment BMPs (Sonal et aI., 2011). The most 

important issue is developing a realistic standard. The values proposed by the EPA to date are not realistic. At the present time, based on 

existing information, a value in the range of 700 to 800 NTUs could be met in locations with sandy or highly aggregated soils without the 

use of flocculants. For areas with high levels of fine clays and silts, it appears that the use of flocculants will allow that standard to be 

met. 

Response 

Refer to 3.1. 

Comment ID 0155-A1.001.001

Author Name: Legnatto Paul 

Organization: Onondaga County, NY 

Issue Category: BAC.3 

The EPA has proposed a NTU discharge limitation of 280 on disturbances of 20 acres or more beginning August 1st, 2011 and 10 acres 

or more beginning February 2nd, 2014. This limit may not be exceeded on any given day or time regardless of pre-existing conditions of 

the land to be developed. Therefore they are imposing a higher level of standard than may currently exist prior to the development or land 

disturbance. This may not be achievable until stabilization of an existing area occurs. In other words you may be in violation prior to 

your development occurring or at the onset of proposed development and approval of a CGP. Development will require stabilization of 

an existing area that has turbid runoff before disturbing the area for development and then maintaining a turbidity level under 280 NTD's. 

If an effluent limitation must be applied to the development discharge it should be compared to the existing runoff conditions. An 

existing base line NTU sample should be taken during a stormwater runoff event at a minimum of 120 days prior to the land disturbance. 

This existing NTU value or turbidity limit of 280 NTD's which ever is greater could then be used as the comparison to the development 

discharge under the CGP. 

Response 

Refer to 3.1. 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: ADMIN, ADMIN.1, ADMIN.2, ADMIN.3, ADMIN.4, 

ADMIN.5

 
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Comment ID 0012-A1.001.005 Issue Category: ADMIN.1

Author Name: J. Dillard Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Joyce Dillard 

Author Type: Private Citizen Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The burden of mitigation of pollutants should not be borne by the taxpayer when proper mitigation and monitoring activities 

are occurring. 

 

Response

See Essay Response 19.1. 

 

 

 
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Comment ID 0016-A1.001.001 Issue Category: ADMIN.3

Author Name: Virgil , Moose Tribal E.O. 13175 Consultation and Coordination with 

Organization: Big Pine Paiute Tribe of the Owens Valley Indian Tribal Governments 

Author Type: Tribal Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

On January 24,2006, the EPA approved the Big Pine Tribal Water Quality Standards (WQS) for waters located within the 

boundaries of the Big Pine Indian Reservation. These water quality standards were approved by EPA under the Federal 

Clean Water Act which recognizes tribal authority over the "Management and protection of water resources ...within the 

borders of an Indian Reservation". The Tribe's WQS are periodically reviewed, and following a recent review, were 

reaffinned by the Big Pine Tribal Council in September 2009. 

EPA may not issue a pennit authorizing discharges into waters of the Big Pine Paiute Tribe of the Owens Valley (Tribe) until 

the Tribe has granted certification as allowed under CWA Section 401. Section X of the Tribe's WQS reads as follows: 

Clean Water Act Section 401 (Water Quality Certification) gives the Big Pine Tribal Council extremely broad authority to 

review proposed activities in and/or affecting the Reservation's waters requiring certification ofstate or federal permits or 

licenses. The Big Pine Tribal Council can recommend to the permitting agency that it grant, deny, or condition certification 

offederal and state permits or licenses that may result in a discharge to "waters ofthe United States" to achieve 

compliance with the Tribe's water quality standards. For waters within the Reservation boundaries, the Tribal Council shall 

have full authority to grant, deny, or condition certification. 

Section 401 Cert(fication Process Applications for ~'ater quality certification within the Reservation boundaries shall be 

submitted to the Tribal Council. They will be reviewed by the Tribal Environmental Office for compliance with Tribal 

water quality standards. After a thorough analysis, the Environmental Office shall make a recommendation to the Tribal 

Council who will grant, deny, or condition the application. The Tribal Council is the only entity which holds the authority to 

permit or deny water quality certification applications. Ifcertification is denied, the applicant may request a meeting with the 

Tribal Council to appeal the decision. 

The Tribe's Water Quality Standards were established to protect public health and aquatic life, and to maintain or enhance 

water quality in relation to the beneficial uses of the water. The numerical and narrative criteria for water quality objectives 

of the surface waters can be found within the Big Pine Tribal WQS at Sections V and VI and Tables 1-11. 

EPA's correspondence requested a statement of the extent to which conditions of a proposed permit can be made less 

stringent. This is addressed in the Tribe's WQS Section VII(e): 

If a proposed action has the possibility to adversely affect the water quality ofBig Pine Creek, an application must be filed 

with the Tribal Environmental Office. The application must describe the action proposed and its effects on the Creek, how 

this information was derived, and a justification for the action. Upon satisfYing these requirements, the Tribal 

Environmental Office will recommend or not recommend this proposal to be considered by the Tribal Council. Tribal 
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Council will make a determination whether to consider the proposalfurther. If the Tribal Council wishes to consider the 

application further, the public participation process will take place (see paragraph VII(d)). The Tribal Council has the sole 

authority in permitting degradation to Big Pine Creek. Ifthe Tribal Council makes the decision to allow degradation, they 

will submit their decision to the USEPA for review and approval. 

It is within the discretion of the Big Pine Tribal Council to establish direction on compliance with Tribal water quality 

standards. The Tribe holds the legal right and management capability to regulate water quality within the boundaries of the 

Big Pine Indian Reservation. The Tribal WQS Antidegradation Policy (Section VII) includes provisions for protection of 

existing uses, maintenance of water quality of high-quality waters, and a prohibition against lowering water quality in 

outstanding resource waters which shall serve as the primary basis for Section 401 certification decisions. 

 

Response

See Essay Response 19.2. 

 

 

 
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Comment ID 0023.001.001 Issue Category: ADMIN.1

Author Name: T. Atkinson Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Public Input 

Author Type: Private Citizen Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The requirements of the proposed Construction General Permit (CGP) raises two issues of concern related to the regulatory 

burden and cost due to the introduction of ELGs on activity associated with one acre or greater. One acre of construction 

activity is approximately the size of a large residential housing lot in North Dakota. North Dakota zoning laws already 

require that sediment and erosion controls, soil stabilization, pollution prevention and stormwater pollution prevention plans 

be approved by a city or county engineer for all new construction prior to the issuance of a building permit. EPA proposal for 

these items are different then the current requirements of the zoning laws. The proposed requirements of the EPA will add an 

additional burden on the average homeowner, who could face the requirement of submitting two different applications for 

basically the same requirement, but uses different application processes, different requirements and different approval 

authorities. I realize that the goal of the EPA is to have the State of ND (through the ND Department of Health) manage the 

program, but that will not assist a homeowner who is building within city limits. 

 

Response

See Essay Response 19.1. 

 

 

 
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Comment ID 0023.001.002 Issue Category: ADMIN.1

Author Name: T. Atkinson Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Public Input 

Author Type: Private Citizen Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

A second issue is that the cost associated with this regulation is not identified. Executive Order (EO) 12866 establishes the 

guiding principles that agencies must follow when developing regulations, including the use of cost-benefit analysis, risk 

assessment and performance-based standards. The EPA web page identifies an Economic Analysis for the Proposed 

Construction General Permit, but the document is dated Jan 1, 2008, and is based upon the previous general permit 

requirements. There is no reference to accomplishing a review of EO 12866 for the new general permit. The addition of 

EGLs is a major change to the previous permit and the cost associated with this change needs to be identified. 

 

Response

See Essay Response 19.3. 

 

 

 
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Comment ID 0026-A1.001.001 Issue Category: ADMIN

Author Name: William , L. Kovacs Administrative 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The Chamber supports the Agency's efforts to write an effective, scientifically sound and economically rational CGP to 

protect properly regulated navigable waters of the United States. However, the Agency fails to demonstrate compliance with 

the cost-benefit requirement of 33 U.S.C. § 1314(b)(1)(B), Executive Order 13563 or the Regulatory Flexibility Act, 5 

U.S.C. § 601 et seq. Also, it appears certain provisions in the draft CGP are not justified by controlling law and/or fail 

applicable information quality requirements. Therefore, the Chamber urges the Agency to withdraw the draft CGP and 

comply with all appropriate laws, guidance and Orders designed to promote public participation, protect small businesses, 

and reduce excessive regulatory costs. 

 

Response

See Essay Response 19.4. 

 

 
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Comment ID 0026-A1.001.002 Issue Category: ADMIN.1

Author Name: William , L. Kovacs Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

However, the EPA has neither calculated the economic and employment costs of these provisions nor disclosed or 

quantified their potential environmental benefits. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 
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Comment ID 0026-A1.001.003 Issue Category: ADMIN

Author Name: William , L. Kovacs Administrative 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The Notice neither demonstrates nor discusses the Agency's compliance with 33 U.S.C. § 1314(b)(1)(B), Executive Order 

13563 or the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. The EPA's apparent failure to comply with these laws and the 

Order, which are designed to promote public participation, protect small business, reduce excessive costs, and allow a 

congressional check, is arbitrary, capricious, an abuse of discretion and contrary to law. Furthermore, given both the breadth 

of the draft CGP's coverage (all construction activities disturbing more than one acre, see 76 Fed. Reg. at 22882 - 84) and the 

depth of the new requirements it imposes on permittees, the EPA's failure to comply is contrary to sound administrative 

policy and practice. Therefore, the Chamber urges the EPA to withdraw the draft CGP until after it complies with all of its 

statutory and Executive Order obligations. 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 
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Comment ID 0026-A1.001.004 Issue Category: ADMIN.1

Author Name: William , L. Kovacs Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

A. The Agency Has Failed To Comply With The CWA. The draft CGP purportedly contains the "best practicable control 

technology" that the Agency has determined is needed to meet technology-based effluent limits established under Clean 

Water Act § 301 (33 U.S.C. § 1311) and § 306 (33 U.S.C. § 1316). See 76 Fed. Reg. at 22885 (citations omitted). However, 

there is no evidence the Agency has accounted for and "considered the total cost of the application of this technology in 

relation to the effluent reduction benefits to be achieved from such application" as required by 33 U.S.C. § 1314(b)(1)(B). 

[FN 1] If the Agency promulgates a final CGP without demonstrating that it has reasonably quantified and balanced both the 

total costs and the effluent reduction benefits of the various control measures set forth therein, then it will contravene a direct 

Congressional command and violate the Clean Water Act. [FN 2] 

[FN 1] 33 U.S.C. § 1314(b)(1)(B) provides in relevant part that: Factors relating to the assessment of best practicable control 

technology currently available to comply with...section 1311 of this title shall include consideration of the total cost of 

application of technology in relation to the effluent reduction benefits to be achieved from such application , and shall also 

take into account...the engineering aspects of the application of various types of control technology, process changes, 

non-water quality environmental impact (including energy requirements), and such other factors as the Administrator deems 

appropriate... 

[FN 2] On December 1, 2009, EPA published final regulations establishing technology-based Effluent Limitations 

Guidelines (ELGs) and New Source Performance Standards (NSPS) for the Construction & Development (C&D) point 

source category. See 40 CFR Part 450, and 74 Fed. Reg. 62996 (Dec. 1, 2009). The C&D rule included non-numeric 

requirements for erosion and sediment control, stabilization, and pollution prevention (see 40 CFR 450.21(a) thru (f)), and, 

for the first time, a numeric limitation on the discharge of turbidity from active construction sites (see 40 CFR 450.22). The 

C&D rule became effective on February 1, 2010, and according to the EPA, the draft CGP "must incorporate the C&D rule 

requirements." See 76 Fed. Reg. at 22885. The Agency, however, has never claimed that this obligation diminishes or 

excuses its duty to comply with § 1314(b)(1)(B). 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 
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Comment ID 0026-A1.001.005 Issue Category: ADMIN.4

Author Name: William , L. Kovacs E.O 13563 Improving Regulation and Regulatory 

Organization: U.S. Chamber of Commerce Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

B. The Agency Has Failed To Comply With Executive Order 13563. 

Executive Order 13563 provides: "Our regulatory system must protect public health, welfare, safety, and our environment 

while promoting economic growth, innovation, competitiveness, and job creation." Regulatory action must be based on the 

best available science, promote predictability and reduce uncertainty, and propose or adopt a regulation only upon a 

reasoned determination that its benefits justify its costs. See Executive Order 13563 at §§ 2, 5. Also, the President has 

commanded the EPA to tailor its regulations to impose the least burden on society, consistent with obtaining regulatory 

objectives, taking into account the costs of cumulative regulations, and identify and assess available alternatives to direct 

regulation. See id. at § (1)(b). 

The Agency published Executive Order 12898 (Federal Actions to Address Environmental Justice) and 13751 (Consultation 

and Coordination with Indian Tribal Governments) reviews for the draft CGP. See 75 Fed. Reg. at 22890 - 91. However, it 

appears the Agency has chosen to ignore or avoid its obligations under Executive Order 13563. Specifically: 

 There is no evidence that the EPA has made a reasoned determination that the draft CGP's environmental benefits (if any) 

will justify its jobs, development and consumer cost burdens. 

 There is no evidence that the EPA has tailored the draft CGP to impose the least burden on society, consistent with 

obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of 

cumulative regulations affecting developers, builders and consumers. 

 There is no evidence that the EPA has considered alternative approaches, much less selected the measures that maximize 

net economic and environmental benefits. 

 There is no evidence that the EPA has to the extent feasible used the draft CGP to specify performance objectives and not 

the specific behaviors or manners of compliance that regulated entities must adopt. 

 There is no evidence that the EPA has identified and assessed available alternatives to the measures specified in the draft 

CGP for the purpose of drafting the least burdensome permit possible. 

 There is no evidence that the EPA has considered or specified metrics for determining the efficacy of the draft CGP in 

order to facilitate retrospective review and evaluation. 

 
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Response

See Essay Response 19.3 thru 19.6. 

 

 
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Comment ID 0026-A1.001.006 Issue Category: ADMIN.5

Author Name: William , L. Kovacs Regulatory Flexibility Act 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

In the Regulatory Flexibility Act ("RFA"), 5 U.S.C. § 601 et seq., the Congress declared that federal agencies should 

achieve statutory goals without imposing unnecessary regulatory burdens. It determined that federal rules (such as the 

CGP) 3 often impose disproportionately heavy demands on small businesses and that the federal agencies' systemic failure 

to recognize differences in the scale and resources of regulated entities has adversely affected competition, discouraged 

innovation and restricted productivity improvements. Therefore, it directed agencies to employ alternative regulatory 

approaches to minimize the significant economic impact of rules on small businesses and to tailor rules to address small 

businesses' unique needs and concerns. See Pub. Law 96-354, §(a) (1980)(RFA Congressional findings and purpose). 

The draft CGP is for construction sites disturbing more than one acre and will include many permittees who qualify as RFA 

"small businesses." See generally 76 Fed. Reg. at 22885. Consequently, the Agency should have prepared or be preparing an 

initial regulatory flexibility analysis for the draft CGP, published it in the Federal Register and transmitted a copy to the 

Chief Counsel for Advocacy of the Small Business Administration. 5 U.S.C. § 603(a).4 Additionally, the Agency should 

have discussed significant alternatives such as the establishment of differing compliance or reporting requirements or 

timetables that take into account the resources available to small entities; the clarification, consolidation, or simplification of 

compliance and reporting requirements; the use of performance rather than design standards; and an exemption from 

coverage of the rule, or any part thereof, for such small entities. 5 U.S.C. § 603(c). However, it apparently has not done any 

of these things. [FN 5] 

[FN 3] The CGP is an "agency statement of general or particular applicability and future effect designed to implement, 

interpret, or prescribe law or policy." See 76 Fed. Reg. at 22885 - 86 (describing the draft CGP as an agency statement of 

particular applicability and future effect designed to implement law and policy). Consequently, it is a "rule" under the 

Administrative Procedure Act, 5 U.S.C. § 551(4) and arguably subject to the RFA. See 5 U.S.C. § 601(2). 

[FN 4] The Agency should have described and estimated the number of small entities subject to the CGP; described 

projected reporting, recordkeeping and other compliance requirements, estimated the classes of small entities subject to 

CGP requirements and summarized the professional skills needed for compliance; and identified duplicative, overlapping or 

conflicting Federal rules. See 5 U.S.C. § 603(b). 

[FN 5] Coincident with the final CGP's promulgation, the Agency should publish: A final regulatory flexibility analysis 

containing a succinct statement of the need for, and objectives of, the CGP; a summary of the significant issues raised by the 

public in response to the initial analysis and a statement of any changes made as a result; a description and an estimate of the 

number of small entities subject to the CGP or an explanation of why no such estimate is available; a description of the type 

of professional skills needed for compliance; and a description of the steps taken by the EPA to minimize the final CGP's 
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impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, 

policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant 

alternatives to the rule that might mitigate the impact on small entities was rejected. See 5 U.S.C. § 604. 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 

 
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Comment ID 0026-A1.001.011 Issue Category: ADMIN

Author Name: William , L. Kovacs Administrative 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The Chamber supports the promulgation of a scientifically sound and economically rational CGP by the EPA. The draft 

CGP may ultimately prove to provide a generally acceptable framework for doing so. However, the Chamber believes that 

the draft CGP ought to be withdrawn until the Agency demonstrates that it has been formulated in full compliance with all 

applicable laws, guidelines and Executive Orders that promote public participation, protect small business, reduce excessive 

costs, and allow a congressional check. Specifically, the Chamber requests that the Agency take the following actions. 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 
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Comment ID 0026-A1.001.012 Issue Category: ADMIN.1

Author Name: William , L. Kovacs Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

A. The EPA ought to demonstrate that it has properly calculated and considered the total cost of application of technology 

required by the draft CGP in relation to the effluent reduction benefits to be achieved from such application and has taken 

into account the engineering aspects of the application of various types of control technology, process changes, non-water 

quality environmental impact (including energy requirements), and other appropriate factors as required under 33 U.S.C. § 

1314(b)(1)(B). The relevant draft CGP provisions include, but are not limited to, those identified in Notice §§ III(E)(2) 

(buffers); (3) (design requirements); (9), (10) and (11) stabilization criteria and pollution prevention standards); (12), (13), 

(14), (17) (discharge sampling and quality standards); and (18), (20) (requirements for discharges to "sediment or 

nutrient-impaired waters" including Appendix J). Alternatively, the EPA ought to cite the controlling legal authority that it 

believes exempts the measures in the draft CGP from cost-benefit analysis and demonstrate how that exemption improves 

the CGP's quality and efficacy. 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 

 
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Comment ID 0026-A1.001.013 Issue Category: ADMIN.4

Author Name: William , L. Kovacs E.O 13563 Improving Regulation and Regulatory 

Organization: U.S. Chamber of Commerce Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

B. The EPA ought to demonstrate that it has complied with President Obama's Executive Order 13563, precisely as it has 

demonstrated compliance with Executive Orders 12898 (Federal Actions to Address Environmental Justice) and 13751 

(Consultation and Coordination with Indian Tribal Governments). See 75 Fed. Reg. at 22890 - 91. Specifically: 

1. The Agency should demonstrate that the draft CGP's requirements are based upon a reasoned determination that the 

environmental benefits (if any) will justify the jobs, development and consumer cost burdens. 

2. The Agency should demonstrate that the provisions of the draft CGP have been tailored to impose the least burden on 

society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent 

practicable, the costs of cumulative regulations affecting owners, developers, builders and consumers. 

3. The Agency should demonstrate that it has selected permit provisions that maximize net economic and environmental 

benefits and that the EPA has to the extent feasible used the draft CGP to specify performance objectives and not the 

specific behaviors or manners of compliance that regulated entities must adopt. 

4. The Agency should demonstrate that it has identified and assessed available alternatives to the measures specified in the 

draft CGP for the purpose of drafting the least burdensome permit possible. 

5. Finally, the Agency should demonstrate that it has considered or specified metrics for determining the efficacy of the 

measures in the draft CGP aimed at improving the quality of receiving waters, thereby facilitating retrospective review and 

evaluation. 

6. Alternatively, the Agency ought to cite the controlling legal authority that it believes justifies its failure to fully comply 

with Executive Order 13563 and also demonstrate how its non-compliance will improve water quality while promoting the 

Executive Order's priorities, including promoting economic growth, innovation, competitiveness, and job creation; 

identifying and using the best, most innovative, and least burdensome tools for achieving regulatory ends; accounting for 

benefits and costs, both quantitative and qualitative; and improving the results of results of regulatory requirements. See 

Executive Order 13563 at §1(b). 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 

 
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Comment ID 0026-A1.001.014 Issue Category: ADMIN.5

Author Name: William , L. Kovacs Regulatory Flexibility Act 

Organization: U.S. Chamber of Commerce 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

C. The EPA ought to demonstrate compliance with the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq. Specifically: 

1. The EPA should withdraw the draft CGP and prepare an initial regulatory flexibility analysis, publish it in the Federal 

Register and transmit a copy to the Chief Counsel for Advocacy of the Small Business Administration. 5 U.S.C. § 603(a). 

2. The EPA should describe and estimate the number of small entities potentially subject to the draft CGP; describe 

projected reporting, recordkeeping and other compliance requirements, estimate the classes of small entities subject to CGP 

requirements and summarize the professional skills needed for compliance; and identify duplicative, overlapping or 

conflicting Federal rules. See 5 U.S.C. § 603(b). 

3. The EPA should incorporate significant alternatives into the draft CGP such as the establishment of differing compliance 

or reporting requirements or timetables that account for the resources available to small entities; the clarification, 

consolidation, or simplification of compliance and reporting requirements; the use of performance rather than design 

standards; and an exemption from coverage of the rule, or any part thereof, for such small entities. 5 U.S.C. § 603(c). 

4. Coincident with the publication of the final CGP, the Agency should publish a final regulatory flexibility analysis 

containing a succinct statement of the need for, and objectives of, the CGP; a summary of the significant issues raised by the 

public in response to the initial analysis and a statement of any changes made as a result; a description and an estimate of the 

number of small entities subject to the CGP or an explanation of why no such estimate is available; a description of the type 

of professional skills needed for compliance; and a description of the steps taken by the EPA to minimize the final CGP's 

impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, 

policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant 

alternatives to the rule that might mitigate the impact on small entities was rejected. 5 U.S.C. § 604. 

5. Alternatively, the EPA ought to cite the controlling legal authority that it believes exempts the CGP from the RFA and 

how the Agency's reliance on that exemption in this case will improve the CGP's efficacy. 

 

Response

See Essay Response 19.3 thru 19.6. 

 

 
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Comment ID 0029-A1.001.001 Issue Category: ADMIN.1

Author Name: Trey Pebley Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: McAllen Construction, Inc. 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

We share EPA's goal of protecting water quality, but we are concerned that compliance with the proposed CGP would not be 

feasible. The cumulative impact of all the new requirements will have deleterious impacts on the business of construction. 

Below we identify our five main concerns with the draft permit. 

 

Response

See Essay Response 19.1. 

 

 
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Comment ID 0029-A1.001.003 Issue Category: ADMIN.1

Author Name: Trey Pebley Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: McAllen Construction, Inc. 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

In conclusion, my company appreciates the opportunity to provide comments on EPA's proposed draft CGP. For the reasons 

outlined above, we are concerned that many draft provisions would impose unrealistic, significantly burdensome, and 

economically devastating requirements on construction site operators. We strongly urge EPA to focus on a BMP-based and 

flexible approach to ensure the CGP is economically achievable, effective in reducing pollution from storm water 

discharges, and workable on a national basis. 

 

Response

See Essay Response 19.1. 

 

 

 
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Comment ID 0031-A2.001.007 Issue Category: ADMIN.1

Author Name: Vincent Squillace Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Ohio Home Builders Association (OHBA) 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

OHBA appreciates the opportunity to provide comments on EPA's proposed draft COP. The proposal raises serious 

concerns regarding the requirements for numeric effluent limits, Water Quality Based Effluent Limit and prescriptive 

BMPs. Because it imposes unrealistic, significantly burdensome, and economically devastating impacts on construction site 

operators, OHBA strongly urges EPA to focus on a BMP-based and flexible approach to ensure the COP is economically 

achievable, effective in reducing pollution from storm water discharges, and workable on a national basis. 

 

Response

See Essay Response 19.1. 

 

 

 
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Comment ID 0040-A1.001.003 Issue Category: ADMIN.1

Author Name: Paul , E. Reynolds Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Sunflower Electric Power Corporation 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The proposed permit is voluminous, burdensome, and often unclear. While general permits are intended to simplify and 

standardize compliance expectations for a range of activities deemed to have similar environmental impacts, the proposed 

CGP would require extensive site-specific effort to obtain coverage and thereafter to demonstrate compliance. This concern 

is only made worse by the new EPA/Corps Guidance on Identifying "Waters of the United States". Not only does the new 

permit add onerous requirements, the requirements would have to be met at many new locations on a project site because of 

the extremely broad scope of the new Waters of the United Sates guidance. In sum, we believe this is inconsistent with the 

value and purpose of general permits, marks a departure from EPA's typical stormwater general permits program, and 

stymies the use and availability of the CGP for owners and operators of regulated construction sites. 

The draft CGP contains new and additive requirements that collectively render the permit nearly unusable in practice. These 

requirements include the 30-day waiting period for coverage, the obligation to install all BMPs before initiating 

construction, the 50-foot buffer requirement, the numeric turbidity limit, the obligation to collect a minimum of three 

samples in connection with each and every storm event from each and every stormwater outfall (with limited opportunity to 

designate representative outfalls), and the more stringent expectations associated with discharges to impaired waters, 

coupled with an often ill-defined obligation to determine the impairment status of the receiving water body. 

 

Response

See Essay Response 19.1. 

 

 
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Comment ID 0042-A2.001.001 Issue Category: ADMIN.1

Author Name: John Mackinnon Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: General Contractors of Alaska (AGC) 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

We are concerned that compliance with the proposed CGP is unreasonable and would not be feasible. The cumulative 

impact of all the new requirements will have deleterious impacts on the business of construction and the public in general. 

The estimated annual cost of complying with the current EPA storm water regulations on Alaska construction sites is over 

8% of the entire annual highway construction program - over $50 million a year. This represents two major road projects a 

year we don't do. Projects that could result in safer highways and save lives or less congestion and reduce air pollution. If 

you did a realistic cost-benefit analysis, you might find your stormwater efforts are counterproductive. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0062-A1.001.002 Issue Category: ADMIN.1

Author Name: Bach McClure Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Brevard County, Natural Resources Management Office

Author Type: Local government Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

2) Many small sites will become uneconomical if these requirements are implemented. The effect of this permit will be 

increased costs for small site development (economies of scale will be exaggerated) and the incentive ignore permit 

conditions will be increased. EPA should meet with construction personnel and discuss how EPA envisions many of these 

requirements will be implemented. 

 

Response

See Essay Response 19.1 thru 19.6. 

 
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Comment ID 0066-A1.001.002 Issue Category: ADMIN.1

Author Name: Amadeo Saenz Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Texas Department of Transportation (TxDOT) 

Author Type: State Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

Many of our comments on the proposed NPDES construction general permit will reflect a central theme, this being that the 

economy is something that is often unpredictable, and that many of the proposed guidelines and permit requirements will 

negatively impact the economy of the transportation construction industry. This is in direct opposition to what the EPA has 

cited in a recent document, where it is stated, "Non-building construction, of which the transportation and pipelines sectors 

may be affected by this rule, has generally experience flatter, less cyclical growth as compared to the building construction 

sectors. Nevertheless, this sector has been affected by the recession due to decreased state and local government spending 

However, due to the federal stimulus funding, this sector is expected to see good growth in 2011, an approximately 5 percent 

increase in spending The increase in spending and activity effect In 2010 is limited, since the majority of the federal stimulus 

spending on infrastructure projects is expected to occur in 2010 and 2011." (Reed, August 2009; Global Insight, August 

2009) Financial impacts should not be anticipated based on something that is "expected", but rather on realistic numbers. At 

this time, many state DOTs are struggling with financial crises, implementing these new rules and permit requirements 

during this recession is ill timed and may cause a greater undue burden on the transportation industry, contrary to EPA's 

assessment based on anticipated and future positive economic benefits via federal stimulus programs. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0068-A1.001.042 Issue Category: ADMIN.4

Author Name: Jeffrey , S. Longsworth E.O 13563 Improving Regulation and Regulatory 

Organization: Review Federal StormWater Association (FSWA) 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

On January 21, 2011, President Obama issued Executive Order 13,563, Improving Regulation and Regulatory Review. See 

74 Fed. Reg. 3,821. FSWA's comments above are more consistent with the President's Executive Order (EO) than EPA's 

Proposed CGP. The EO's overall approach is to minimize the regulatory burdens associated with developing new 

regulations and facilitate a retrospective analysis of existing regulations that are inefficient and ineffective. 

As stated above, FSWA believes that the 2008 CGP is a well-crafted NPDES general permit. EPA can improve it through 

minor tweaks and modifications that build upon the experience and collective knowledge that has been gained since 2008, 

but the overall structure and general mandates of that permit achieve an appropriate balance in terms of environmental 

protection benefits and costs of implementation. This is the type of regulation that is consistent with the goals of the EO, 

which include: 

(1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some 

benefits and costs are difficult to quantify); 

(2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into 

account, among other things, and to the extent practicable, the costs of cumulative regulations; 

(3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including 

potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); 

(4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that 

regulated entities must adopt; and 

(5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the 

desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the 

public. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 
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Comment ID 0072-A2.001.023 Issue Category: ADMIN.1

Author Name: Nate Muenks Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Missouri Department of Transportation 

Author Type: State Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

MoDOT is a performance-based agency, and as such, we are concerned with projections that certain aspects of the proposed 

COP could significantly increase resource investment for construction projects with, at this point, an undetermined amount 

of benefit to the natural environment. MoDOT requests that the EPA provide supportive documentation (i.e., a cost- benefit 

analysis) to the public that these increased protective measures, such as the numeric turb id ity limit, will have a significant 

and tangible positive benefit to waters of the U.S. beyond existing practices. 

 

Response

See Essay Response 19.1 thru 19.6, and 3.1. 

 

 
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Comment ID 0088-A1.001.021 Issue Category: ADMIN.1

Author Name: John , T. Graves Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Minnkota Power Cooperative, Inc. 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

In summary, this draft rule will result in adverse economic impacts on the regulated community in the form of additional 

costs and increased delays. Minimal net environmental gain would be realized in comparison to the significant additional 

resources necessary for implementation of this draft rule. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0093-A2.001.015 Issue Category: ADMIN.5

Author Name: Leah , F. Pilconis Regulatory Flexibility Act 

Organization: Associated General Contractors of America (AGC) 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The benchmark limits and the associated monitoring and reporting requirements in the Draft are unnecessary and unproven 

requirements that would do more to fuel private litigation than to protect the environment. Water quality based effluent 

limits and TMDLs should be written at the state level and in close coordination with proper monitoring programs that will 

yield appropriate benchmarks. AGC also maintains that EPA lacks the legal authority to impose a zero benchmark level, or 

any other level, without first complying with 33 U.S.C. § 1314(b)(1)(B) and the Regulatory Flexibility Act (see AGC 

comments at Section III). The direct and indirect costs of this irrational and scientifically unsound approach could be 

substantial and must be calculated and accounted for. Furthermore, there is absolutely no evidence that the agency has 

considered, much less demonstrated, whether there are demonstrable environmental benefits to offset the potentially huge 

employment and economic costs this provision may impose on property owners, developers, builders and consumers. In the 

absence of such a demonstration, EPA's action is not justified. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 
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Comment ID 0093-A2.001.019 Issue Category: ADMIN.4

Author Name: Leah , F. Pilconis E.O 13563 Improving Regulation and Regulatory 

Organization: Associated General Contractors of America (AGC) Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

On January 21, 2011, President Obama issued Executive Order 13563, Improving Regulation and Regulatory Review. See 

74 Fed. Reg. at 3,821. That order provides: "Our regulatory system must protect public health, welfare, safety, and our 

environment while promoting economic growth, innovation, competitiveness, and job creation." It adds that regulatory 

agencies must (1) base their requirements on the best available science, (2) promote predictability and reduce uncertainty, 

and (3) propose or adopt regulatory requirements only upon a reasoned determination that their benefits justify their costs. 

See Executive Order 13563 at §§ 2, 5. Also, the President has commanded the EPA to tailor its regulations to impose the 

least burden on society, consistent with obtaining its regulatory objectives, taking into account the costs of cumulative 

regulations, and to identify and assess available alternatives to direct regulation. See id. at § (1)(b). 

In putting the Draft together, it appears that the agency chose to ignore or avoid its obligations under Executive Order 

13563. Specifically: 

* There is no evidence that the EPA has made a reasoned determination that the Draft's environmental benefits (if any) will 

justify its jobs, development and consumer cost burdens. 

* There is no evidence that the EPA has tailored the Draft to impose the least burden on society, consistent with obtaining 

regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative 

regulations affecting developers, builders and consumers. 

* There is no evidence that the EPA has considered alternative approaches, much less selected the measures that maximize 

net economic and environmental benefits. 

* There is no evidence that the EPA has, to the extent feasible, used the Draft to specify performance objectives and not the 

specific behaviors or manners of compliance that regulated entities must adopt. 

* There is no evidence that the EPA has identified and assessed available alternatives to the measures specified in the Draft 

for the purpose of developing the least burdensome permit possible. 

* There is no evidence that the EPA has considered or specified metrics for determining the efficacy of the Draft in order to 

facilitate retrospective review and evaluation. 

Indeed, the proposed CGP is riddled with inefficiencies and prospective implementation problems. As EPA has yet to 

complete and defend its C&D ELG, the Draft necessarily rests more on guesswork than any "reasoned determinations." To 
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craft a permit that "imposes the least burden on society," EPA obviously needs to know, in advance, what all of the variables 

are going to be. The proposed CGP does not merely set forth specific "performance objectives"; it repeatedly dictates 

specific "manners of compliance" in excruciating detail. Until EPA has completed its work on the C&D ELG, EPA's most 

efficient and effective path forward is to extend the 2008 CGP for its full five-year term and refocus its efforts on 

implementing the C&D ELG at an appropriate future date when the contents of that regulation are fully understood. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 
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Comment ID 0096-A1.001.007 Issue Category: ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory 

Organization: National Association of Homebuilders Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

 Residential construction is one of the most heavily regulated industries in the country. The time and costs of compliance 

not only impact a business’s ability to thrive and grow, they can also negatively affect housing affordability and stifle 

economic development. For example, residential construction is one of the few industries in which a government-issued 

permit is typically required for each unit of production. The rules do not stop there, as a constricting web of regulatory 

requirements affects every aspect of the land development and home building process, including how a site operator allows 

stormwater to be discharged from his or her site. 

While NAHB soundly supports the continued availability of the CGP, we are concerned about the increasing complexity 

and number of requirements that must be met, particularly with respect to those building a single home on a single lot and 

those who specifically design their sites to minimize or eliminate discharges. While we do not disagree with the idea of 

preparing a 

Stormwater Pollution Prevention Plan (SWPPP) or filing a Notice of Intent (NOI) with EPA or the state permitting agency, 

the sheer scope of what must be included and the terms and conditions that must be followed make compliance quite 

complex and burdensome. For example, EPA’s “fact sheet” for the current CGP is 52 pages long – hardly a simple or 

streamlined process! As NAHB has proposed streamlining options in the past, we remain disappointed that EPA has not 

taken the opportunity to even propose any of the options during the reissuance of the CGP. 

As such, NAHB believes that the CGP is just the type of regulation President Obama had in mind when contemplating his 

regulatory reform strategy. On January 18, 2011, he simultaneously issued Executive Order (EO) 13563 Improving 

Regulation and Regulatory Review and the Memorandum on Regulatory Flexibility, Small Business, and Job Creation.[FN 

17] 

The EO specifically calls for regulations to be cost effective and cost justified, transparent, coordinated, flexible and science 

driven, and largely instructs the agencies to comply with EO 12866, which was issued in 1993 and has historically provided 

the blueprint for agencies to follow when considering and adopting rules. The Memorandum directs all federal agencies, 

when proposing new regulations, to include regulatory flexibilities for small businesses such as extended compliance dates, 

simplified reporting requirements, or even regulatory exemptions. Because the residential construction industry is 

dominated by small businesses and the CGP requirements are costly and onerous, NAHB submits that EPA is obligated to 

heed the Presidents directive and streamline the process and reduce the burdens. NAHB believes there are at least four ways 

to do this that will result in significant savings and improve compliance while maintaining environmental protection – 1) 

adopting a single lot permit, 2) adopting a voluntary no discharge certification, 3) revising and facilitating the designation of 

Qualifying Local Programs, and 4) adopting an action level approach. 
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[FN 17] 76 Federal Register 3821 (January 21, 2011). 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0096-A1.001.013 Issue Category: ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory 

Organization: National Association of Homebuilders Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

In recognition of the role that small businesses play in the economy, on January 18, 2011, President Obama issued the 

Memorandum on Regulatory Flexibility, Small Business, and Job Creation. This new memorandum emphasizes the need to 

reduce burdens on small businesses whenever possible. Relying on the authority provided by the Regulatory Flexibility Act, 

the directive suggests that agencies, when initiating rulemaking that will significantly impact small businesses, to increase 

compliance flexibility through measures such as extended compliance dates, simplification of reporting requirements, and 

partial or total exemptions. The need for regulatory relief is further supported by a recent study funded by the U.S. Small 

Business Administration that examined the proportional costs of federal regulations upon smaller firms (i.e., firms with 20 

or fewer employees) as compared to larger firms.[FN 31] The study found that these firms pay 40 percent more in 

compliance costs per employee than firms with more than 500 workers. [FN 32] The researchers further found that this 

disproportionate compliance cost results from the fact that most federal environmental regulations impose identical 

recordkeeping, reporting, 

and compliance costs on all firms. Smaller companies cannot easily spread the compliance costs across a larger number of 

regulated activities and typically must rely on expensive outside professional consultants to help them demonstrate 

compliance with technical permitting and reporting requirements. The federal regulation of storm water clearly fits this 

model. 

[FN 31] Crain, N.V. and Crain, M.W., The Impact of Regulatory Costs on Small Firms, September 2010, retrieved on 

March 24, 2011, from http://www.sba.gov/advocacy/853/2016. 

[FN 32] Ibid, page 9. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0096-A1.001.016 Issue Category: ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory 

Organization: National Association of Homebuilders Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

EPA’s intended efforts to improve the permit are more likely to create confusion and significant cost with no demonstration 

that any additional benefits will be derived in comparison to the more simplified and streamlined approach of the 2008 CGP. 

Therefore, NAHB urges EPA to remove the costly measures, such as WQBEL requirements, prior to finalizing the CGP 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0096-A1.001.059 Issue Category: ADMIN.4

Author Name: Susan Asmus E.O 13563 Improving Regulation and Regulatory 

Organization: National Association of Homebuilders Review 

Author Type: Industry Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

In recognition of the role that small businesses play in the economy, on January 18, 2011, President Obama issued the 

Memorandum on Regulatory Flexibility, Small Business, and Job Creation [FN 76]. This new memorandum emphasizes the 

need to reduce burdens on small businesses whenever possible. Relying on the authority provided by the Regulatory 

Flexibility Act, the directive suggests that agencies, when initiating rulemaking that will significantly impact small 

businesses, to increase compliance flexibility through measures such as extended compliance dates, simplification of 

reporting requirements, and partial or total exemptions. The need for regulatory relief is further supported by a recent study 

funded by the U.S. Small Business Administration that examined the proportional costs of federal regulations upon smaller 

firms (i.e., firms with 20 or fewer employees) as compared to larger firms. [FN 77] The study found that these firms pay 40 

percent more in compliance costs per employee than firms with more than 500 workers. [FN 78] The researchers further 

found that this disproportionate compliance cost results from the fact that most federal environmental regulations impose 

identical recordkeeping, reporting, and compliance costs on all firms. Smaller companies cannot easily spread the 

compliance costs across a larger number of regulated activities and typically must rely on expensive outside professional 

consultants to help them demonstrate compliance with technical permitting and reporting requirements. The federal 

regulation of storm water clearly fits this model. 

NAHB is particularly concerned about the cost implications of the new water qualitybased effluent limitations. According to 

EPA's TMDL website, roughly 40,000 impaired waters have been identified within the 50 states. More than 13,000 of those 

40,000 impaired waters suffer from nutrient and/or sediment impairments, requiring any NPDES permits for construction 

projects that may discharge to those waterbodies to contain a requirement for reductions of nutrients and/or sediment from 

the project's stormwater discharges. In addition, to these known impaired waters, there are likely thousands of other water 

bodies that have not been assessed for water quality due to a lack of resources at the state level, so the number of impaired 

waterbodies can be expected to grow. Under the proposed CGP, all developments that disturb greater than ten-acres and 

discharge into an impaired waterbody must perform monitoring for the "action levels" given in the CGP. This means that 

thousands of projects will be subject to the additional, costly water quality-based monitoring requirement, yet the Agency 

has failed to consider these cost implications in its deliberations. 

[FN 76] 76 Federal Register 3828 (January 21, 2011) 

[FN 77] Crain, N.V. and Crain, M.W., The Impact of Regulatory Costs on Small Firms, September 2010, retrieved on 

March 24, 2011, from http://www.sba.gov/advocacy/853/2016. 

[FN 78] Ibid, page 9. 

 

Response

See Essay Response 19.1 thru 19.6. 

 
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Comment ID 0121-A2.001.001 Issue Category: ADMIN.4

Author Name: Kevin , M. Walsh E.O 13563 Improving Regulation and Regulatory 

Organization: Massachusetts Department of Transportation (MassDOT Review ), 

Highway Division 

Author Type: State Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

MassDOT is committed to improving water quality and addressing the potential impacts of stormwater runoff, yet we are 

concerned that the Draft Construction General Permit contains requirements that would not achieve this cost-effectively. In 

addition, the permit contains a number of conditions that could lead to enforcement actions and potentially third party 

lawsuits. To be consistent with the recent Executive Order 13563: Improving Regulation and Regulatory Review, 

modifications should be made to portions of this permit to make the requirements more efficient and easily understood and 

implemented 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0130-A2.001.001 Issue Category: ADMIN.1

Author Name: Sue Sullivan Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Idaho Transportation Department (ITD) 

Author Type: State Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

Financial resources for the state DOT are very constrained. It is critical funds are used efficiently and with clear benefit to 

the resource. EPAs proposed draft CGP has substantial schedule and fiscal impacts to our business operations 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0130-A2.001.002 Issue Category: ADMIN.2

Author Name: Sue Sullivan E.O. 12898 Federal Actions to Address Env. Justice 

in Minority Populations and Low-Income 

Populations 

Organization: Idaho Transportation Department (ITD) 

Author Type: State Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

1. MISCELLANEOUS. We believe the draft permit needs considerable revision prior to implementation. We appreciate the 

EPAs effort to produce a more enforceable permit, however the draft permit appears significantly more difficult to 

implement than the current permit. It contains many special circumstances, exceptions, and scenarios. It is difficult to 

navigate. It will be burdensome for both the applicant and the EPA compliance staff. The sampling, benchmark monitoring 

and reporting, corrective action process, multiple inspection deadlines, and snowmelt discharge represent a few additional 

requirements that we believe add unnecessary complexity to the permitting process without demonstrated benefit to water 

quality. The increased volume of paperwork and recordkeeping will make it challenging to be successful and compliant. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0132-A1.001.003 Issue Category: ADMIN.1

Author Name: Peter , T. Goodmann Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: Kentucky Division of Water (KDOW) 

Author Type: State Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

In addition to the concerns regarding the effluent limit approach, the proposed general permit is substantially more complex 

with regards to many requirements. Anticipating that EPA will expect state permits to incorporate a similar approach, EPA 

must recognize that inspections of individual permitted construction sites will require more effort and additional resources. 

In that light, KDOW believes that EPA must recognize that without additional resources EPA should employ greater 

flexibility to states in the percentage of permitted sites discharging stormwater from construction activities. 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Comment ID 0168-A1.001.001 Issue Category: ADMIN.1

Author Name: Jill , A Jordan Economic Impacts - Costs, Number, type, and size of 

entities covered under permi, General Economic 

Impacts, Small Business Impacts, Burden to 

implement 

Organization: City of Dallas 

Author Type: Local government Responder: Garrett Budd 

Status: Draft Response Assigned To: Garrett Budd 

 

 

The EPAs' economic analyses performed in support of the C&D Rule indicates that nearly 80 percent of the estimated $255 

million in implementation costs would be borne by local governments. Using the EPAs estimated implementation costs per 

site for the CGP translates to anticipated increased expenses of at least $284,000 per year for the City (about 10 percent of 

the existing stormwater regulatory compliance program budget). 

 

Response

See Essay Response 19.1 thru 19.6. 

 

 

 
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Construction General Permit 

Comment/Response - Customized Search

Search criteria selected:

Issue Category: DUP

 
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DUP COMMENT LETTER IS DUPLICATE OF ANOTHER COMMENT 

LETTER

Comment ID 0027-A1.001.001

Author Name: Kovacs William 

Organization: U.S. Chamber of Commerce 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0026-A1. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0029-A1.001.002

Author Name: Pebley Trey 

Organization: McAllen Construction, Inc. 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0036-A1.001.002

Author Name: President Mike 

Organization: National Asphalt Pavement Association (NAPA) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0039-A2.001.002

Author Name: Western Lennie 

Organization: Ames Construction, Inc. 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 
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Response 

Refer to Response 20.1. 

Comment ID 0041.001.001

Author Name: Reynolds Paul 

Organization: Sunflower Electric Power Corporation 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0040-A1. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0042-A2.001.002

Author Name: Mackinnon John 

Organization: General Contractors of Alaska (AGC) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0043-A2.001.001

Author Name: Games Mark 

Organization: Magruder Construction Company, Inc. 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0044-A2.001.001

Author Name: Vaughan Ray 

Organization: South Carolina Department of Transportation (SCDOT)

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0153-A1.001.001 through 

0117-A2.001.040 for the coded comment. 

Response 

Refer to Response 20.1. 
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Comment ID 0044-A2.001.002

Author Name: Vaughan Ray 

Organization: South Carolina Department of Transportation (SCDOT)

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0120-A1.001.001 through 

0120-A2.001.040 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0049-A1.001.017

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: DUP 

Commenter submitted revised comment for 0049-A1.001.017. See comment ID 0078-A1.001.001. 

Response 

Refer to Response 20.1. 

Comment ID 0050-A2.001.001

Author Name: Winn Jane 

Organization: Berkshire Environmental Action Team (BEAT) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.001 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0057-A1.001.001

Author Name: Newlon Thornton 

Organization: Virginia Coal Association, Inc. (VCA) 

Issue Category: DUP 

The VCA concurs with the comments filed by the National Mining Association (NMA) regarding this draft general permit. In the 

interest of brevity, the VCA incorporates those comments by reference. The VCA does desire to emphasize several points. 

Response 

Refer to Response 20.1. 
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Comment ID 0059-A1.001.001

Author Name: Schwartze Post Emily 

Organization: Home Builders Association of St. Louis and Eastern Missouri 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0031-A1.001.002 through 

0031-A1.001.009 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0063-A1.001.001

Author Name: Tobin Kathleen 

Organization: Verizon 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0061-A1.001.001 through 

0061-A1.001.019 for the coded comments. 

Response 

Refer to Response 20.1. 

Comment ID 0067-A1.001.001

Author Name: Spillyards Jeff 

Organization: Entergy Services, Inc. 

Issue Category: DUP 

Entergy supports and endorses comments pertaining to the draft construction general permit ("CGP") provided by the Utility Water Act 

Group, of which Entergy is a member. 

Response 

Refer to Response 20.1. 

Comment ID 0079-A1.001.001

Author Name: Fifield Jerald 

Organization: HydroDynamics Incorporated 

Issue Category: DUP 

See Comment EPA-HQ-OW-2010-0782-0049.001 

Response 

Refer to Response 20.1. 

Comment ID 0081-A1.001.001
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Author Name: Jaeger Lisa 

Organization: Council for Clean Water Construction 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0056-A1. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0092-A2.001.001

Author Name: Killam Gayle 

Organization: Merrimack River Watershed Council, Inc. 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0095-A2.001.001

Author Name: Martaus Cecilia 

Organization: AT&T Inc. and its affiliates 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0061-A1. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0101-A2.001.001

Author Name: State New 

Organization: New York State Department of Environmental Conservation 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0060-A2. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0104-A2.001.001

Author Name: Metcalf Mark 

Organization: Integrys Business Support, LLC 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0017-A2. Letter not coded. 
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Response 

Refer to Response 20.1. 

Comment ID 0113-A1.001.002

Author Name: Schroeder Marlene 

Organization: Parker River Clean Water Association 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0114-A2.001.001

Author Name: Clowser Michael 

Organization: Contractors Association of West Virginia (CAWV) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0118-A1.001.001

Author Name: Evans Michael 

Organization: Colaska, Inc. 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0120-A2.001.001

Author Name: Batson Jon 

Organization: Anderson County, South Carolina 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0153-A1.001.001 through 

0153-A2.001.040 for the coded comment. 
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Response 

Refer to Response 20.1. 

Comment ID 0122-A2.001.002

Author Name: Mackin Kerry 

Organization: Ipswich River Watershed Association 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.0010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0134-A2.001.005

Author Name: Gaines John 

Organization: City and County of Denver, Department of Public Works 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0030-A2.001.001 through 

0030-A2.001.029 for the coded comments. 

Response 

Refer to Response 20.1. 

Comment ID 0135-A2.001.003

Author Name: Orel Linda 

Organization: Massachusetts Association of Conservation Commissions (MACC) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.009 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0136-A1.001.003

Author Name: Conlon Royce 

Organization: PDC Inc. Engineers 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.002 through 

0166-A2.001.007 for the coded comment. 

Response 
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Refer to Response 20.1. 

Comment ID 0138-A2.001.002

Author Name: Khalsa EkOngKar 

Organization: Mystic River Watershed Association (MyWRA) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0140-A2.001.001

Author Name: Killam Gayle 

Organization: River Network, et al. 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0092-A2. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0142-A2.001.001

Author Name: Craycroft John 

Organization: Cedar Swamp Conservation Trust (CSCT) 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.009 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0144-A2.001.001

Author Name: Wray Susan 

Organization: HaloSource, Inc. 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0082-A2. Letter not coded. 

Response 

Refer to Response 20.1. 
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Comment ID 0149-A1.001.001

Author Name: Hoy Jason 

Organization: Town of Van Buren, NY 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0117-A1.001.001 through 

0117-A2.001.011 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0151-A1.001.002

Author Name: Cox Jeff 

Organization: Sierra Club, Central Ohio Group 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0155-A1.001.002

Author Name: Legnatto Paul 

Organization: Onondaga County, NY 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0117-A1.001.005 through 

0117-A2.001.011 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0156-A2.001.002

Author Name: Deen David 

Organization: Connecticut River Watershed Council 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 
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Comment ID 0160-A1.001.002

Author Name: Kurtz John 

Organization: Kurtz Bros., Inc. 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0166-A2.001.001 through 

0166-A2.001.007 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0162-A2.001.001

Author Name: Keyes Jennifer 

Organization: Wright Water Engineers 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0030-A2. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0164-A1.001.001

Author Name: Unknown Unknown 

Organization: New York State Department of Environmental Conservation 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0060-A1. Letter not coded. 

Response 

Refer to Response 20.1. 

Comment ID 0165-A2.001.001

Author Name: Rampe Thomas 

Organization: Grand Lake St. Marys Lake Improvement Assn 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0109-A2.001.002 through 

0109-A2.001.010 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0167-A1.001.001

Author Name: Alberto Feliciano Jose 
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Organization: Puerto Rico Homebuilder Assn 

Issue Category: DUP 

A portion of this comment letter duplicates another comment letter submitted to the docket. See Comment ID 0031-A1.001.001 through 

0031-A1.001.009 for the coded comment. 

Response 

Refer to Response 20.1. 

Comment ID 0169-A1.001.001

Author Name: Unknown Unknown 

Organization: Mass Comment Campaign 

Issue Category: DUP 

Duplicate of document ID number EPA-HQ-OW-2010-0782-0166-A1. Letter not coded. 

Response 

Refer to Response 20.1.