Economic Analysis – Cost Implications of the Draft CGP

INTRODUCTION

EPA provides this “Economic Analysis” as part of the administrative record in support of

the draft Construction General Permit (or “draft CGP”). This analysis evaluates the cost 

implications of the significant proposed changes to the permit. Each significant change is 

examined in light of the current permit’s (the “2008 CGP”) requirements and the requirements of 

the Construction and Development Effluent Limitations Guideline and New Source Performance 

Standards (the “C&D rule”), which for the first time is being incorporated into the CGP. 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. 

BACKGROUND

Since 1992, EPA has issued a series of CGPs that cover areas where EPA is the NPDES 

permitting authority. At present, EPA is the permitting authority in four states (Idaho, 

Massachusetts, New Hampshire, and New Mexico), the District of Columbia, Puerto Rico, all 

other U.S. territories with the exception of the Virgin Islands, federal facilities in four states 

(Colorado, Delaware, Vermont, and Washington), most Indian lands and other specifically 

designated activities in specific states (e.g., oil and gas activities in Texas and Oklahoma). See 

Appendix B of the proposed permit for a complete list of areas covered by EPA’s CGP. EPA’s 

current CGP, the 2008 CGP, became effective on June 30, 2008 (see 74 FR 40338), and will 

expire on June 30, 2011. The draft CGP, once finalized, will replace the 2008 CGP.

In order to gain an understanding of the incremental differences between the 2008 CGP 

and the draft CGP it is first necessary to provide summaries of the requirements in the current 

permit and of the new requirements in the C&D rule.

The 2008 CGP

The key components of the 2008 CGP are non-numeric effluent limitations that require 

the permittee to minimize discharges of pollutants in stormwater discharges using stormwater 

controls that reflect best engineering practices based on EPA’s best professional judgment. 

Construction sites must minimize their discharge of pollutants in stormwater using appropriate 

erosion and sediment controls and control measures for other pollutants such as litter, 

construction debris, and construction chemicals that could be exposed to stormwater and other 

wastewater. The 2008 CGP requires dischargers to develop a stormwater pollution prevention 

plan (SWPPP) to document the steps they will take to comply with the terms, conditions, and 

effluent limitations of the permit. EPA's guidance manual, "Developing Your Stormwater Pollution 

Prevention Plan: A Guide for Construction Sites,” (EPA 833/R-060-04, May 2007; available on EPA's 

website at http://www.epa.gov/npdes/stormwater) describes the SWPPP process in detail. As 

detailed in the 2008 CGP, the SWPPP must include a description of the construction site with 

maps showing drainage patterns, discharge points, and locations of discharge controls; a 

description of the control measures used; and inspection procedures. The CGP does not require 

permittees to submit a SWPPP to the permitting authority; however a copy must be readily 

available to authorized inspectors during normal business hours. Other requirements in the CGP 

include conducting regular inspections and reporting releases of reportable quantities of 

hazardous substances. 
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Effluent Limitations Guidelines and Standards, and The C&D Rule

NPDES permits issued for construction stormwater discharges are required under Section 

402(a)(1) of the CWA to include conditions for meeting technology-based effluent limitations 

guidelines established under Section 301 and, where applicable, new source performance 

standard established under Section 306. Once an effluent limitations guideline (ELG) and/or 

new source performance standard is promulgated that applies to a particular point source 

category, NPDES permits for those point sources are required to incorporate limits based on such 

limitations and standards. See 40 CFR 122.44(a)(1). Prior to the promulgation of national ELGs 

and standards, permitting authorities incorporate technology-based effluent limitations on a 

best professional judgment or “BPJ” basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B). 

For all of the previous EPA-issued CGPs, there were no ELGs or new source performance 

standards that applied to stormwater discharges from construction and development activity. 

Therefore, the effluent limits in the 2008 CGP (and its predecessors) are (and have been) BPJtype requirements. It is only now with the promulgation on December 1, 2009 of the C&D rule 

(See 74 Fed. Reg. 62996, and 40 CFR 450.21) that there is a set of national ELGs and new source 

performance standards that apply to discharges from construction sites, and therefore must be 

incorporated into the CGP. Because this next issuance of the CGP will for the first time 

incorporate the C&D rule requirements, the draft CGP includes a number of significant 

modifications to the 2008 CGP. A summary of the C&D rule non-numeric and numeric 

requirements is included below. 

Non-Numeric Effluent Limits

The C&D rule’s non-numeric effluent limitations are structured to require permittees to first 

prevent the discharges of sediment and other pollutants through the use of effective planning 

and erosion control measures; and second, to control discharges that do occur through the use 

of effective sediment control measures. Permittees are also required to implement a range of 

pollution prevention measures to limit or prevent discharges of pollutants including those from 

dry weather discharges.

The non-numeric effluent limitations are designed to prevent the mobilization and

stormwater discharge of sediment and sediment-bound pollutants, such as metals and nutrients, 

and to prevent or minimize exposure of stormwater to construction materials, debris and other 

sources of pollutants on construction sites. In addition, these non-numeric effluent limitations limit 

the generation of dissolved pollutants, such as nutrients, organics, pesticides, herbicides and 

metals that may be present naturally in the soil on construction sites, such as arsenic or selenium, 

or may have been contributed by previous activities on the site such as agriculture or industrial. 

These pollutants, once mobilized by stormwater, can detach from the soil particles and become 

dissolved pollutants. Once dissolved, these pollutants would not be removed by down-slope 

sediment controls. Source control through minimization of soil erosion is therefore the most 

effective way of controlling the discharge of these pollutants. 

The C&D rule’s non-numeric effluent limits are as follows:

a. Erosion and Sediment Controls: Permittees are required to design, install and maintain 

effective erosion controls and sediment controls to minimize the discharge of pollutants. At a 

minimum, such controls must be designed, installed and maintained to:

i. Control stormwater volume and velocity within the site to minimize soil erosion;

ii. Control stormwater discharges, including both peak flowrates and total stormwater 

volume, to minimize erosion at outlets and to minimize downstream channel and 

streambank erosion;
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iii. Minimize the amount of soil exposed during construction activity;

iv. Minimize the disturbance of steep slopes;

v. 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 

characteristics, including the range of soil particle sizes expected to be present on the 

site;

vi. Provide and maintain natural buffers around surface waters, direct stormwater to 

vegetated areas to increase sediment removal and maximize stormwater infiltration, 

unless infeasible; and

vii. Minimize soil compaction and, unless infeasible, preserve topsoil.

b. Soil Stabilization Requirements: Permittees are required to, at a minimum, initiate soil 

stabilization measures 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, semi-arid, and drought-stricken areas where initiating vegetative stabilization measures 

immediately is infeasible, vegetative stabilization measures must be initiated as soon as 

practicable.

c. Dewatering Requirements: Permittees are required to minimize the discharge of pollutants 

from dewatering trenches and excavations. Discharges are prohibited unless managed by 

appropriate controls. 

d. Pollution Prevention Measures: Permittees are required to design, install, implement, and 

maintain effective pollution prevention measures to minimize the discharge of pollutants. At a 

minimum, such measures must be designed, installed, implemented and maintained to:

i. Minimize the discharge of pollutants from equipment and vehicle washing, wheel wash 

water, and other wash waters. Wash waters must be treated in a sediment basin or 

alternative control that provides equivalent or better treatment prior to discharge;

ii. Minimize the exposure of building materials, building products, construction wastes, trash, 

landscape materials, fertilizers, pesticides, herbicides, detergents, sanitary waste and 

other materials present on the site to precipitation and to stormwater; and

iii. Minimize the discharge of pollutants from spills and leaks and implement chemical spill 

and leak prevention and response procedures.

e. Prohibited Discharges: The following discharges from C&D sites are prohibited: 

i. Wastewater from washout of concrete, unless managed by an appropriate control;

ii. Wastewater from washout and cleanout of stucco, paint, form release oils, curing 

compounds and other construction materials;

iii. Fuels, oils, or other pollutants used in vehicle and equipment operation and 

maintenance; and

iv. Soaps or solvents used in vehicle and equipment washing.

f. Surface Outlets: When discharging from basins and impoundments, permittees are required 

to utilize outlet structures that withdraw water from the surface, unless infeasible.

This Fact Sheet will detail how EPA proposes to incorporate these requirements into its 

draft CGP. The discussion will include a summary of each provision, the Agency’s rationale for 
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proposing the provision in this way, and a comparison between the proposed provision and the 

requirements of the 2008 CGP.

Numeric Effluent Limit

EPA also finalized as part of the C&D rule a numeric limit for turbidity that applies to sites 

disturbing 10 or more acres at a time. Sites that are required to comply with the numeric limit 

must also meet the non-numeric effluent limits described above. EPA is phasing in the numeric 

effluent limit over four years to allow permitting authorities adequate time to develop monitoring 

requirements and to allow the regulated community time to prepare for compliance with the 

numeric effluent limitation. Construction sites that disturb 20 or more acres at one time will be 

required to conduct monitoring of discharges from the site and comply with the numeric effluent 

limitation beginning August 1, 2011 (18 months after Februeary 1, 2009, the effecte date of the 

rule). Construction sites that disturb 10 or more acres at one time will be required to conduct 

monitoring of discharges from the site and comply with the numeric effluent limit beginning four 

years after the effective date of the final rule, or February 2, 2014. 

The C&D rule’s numeric effluent limit at 40 CFR 450.22 is as follows:

a. Beginning no later than August 1, 2011 during construction activity that disturbs 20 or more 

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 or sale; and no later than 

February 2, 2014 during construction activity that disturbs ten or more acres of land area 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 or sale, the following requirements apply:

(1) Except as provided by paragraph (b) of this section, the average turbidity of any 

discharge for any day must not exceed the value listed in the following table:

Pollutant Daily Maximum Value (NTU)1

Turbidity 280

1Nephelometric turbidity units.

(2) Conduct monitoring consistent with requirements established by the permitting authority.

Each sample must be analyzed for turbidity in accordance with methods specified by 

the permitting authority.

b. If stormwater discharges in any day occur as a result of a storm event in that same day that is 

larger than the local 2-year, 24-hour storm, the effluent limitation in paragraph (a)(1) of this 

section does not apply for that day.

c. Erosion and Sediment Controls. The limitations are described at § 450.21(a).

d. Soil Stabilization. The limitations are described at § 450.21(b).

e. Dewatering. The limitations are described at § 450.21(c).

f. Pollution Prevention Measures. The limitations are described at § 450.21(d).

g. Prohibited Discharges. The limitations are described at § 450.21(e).

h. Surface Outlets. The limitations are described at § 450.21(f).

EPA notes that since the promulgation, EPA has discovered that the data used to 

calculate the numeric limit for turbidity were misinterpreted, and that proper interpretation of this 

data will likely result in a different numeric limit for turbidity than was promulgated in December 

of 2009. On August 12, 2010, EPA filed a motion with the U.S. Court of Appeals for the Seventh 
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Circuit, requesting 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 280 NTU 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 280 NTU limit. Instead, the Court stated that 

"EPA may make any changes to the limit it deems appropriate, as authorized by law." 

EPA has issued a direct final rule and companion proposal proposing to stay the current 

numeric limit, which if finalized would indefinitely postpone implementation of the 280 NTU limit. 

Simultaneously, the Agency is preparing the issuance of a proposed rule to correct the numeric 

limit. EPA plans to promulgate the corrected numeric limit prior to the final issuance of the new 

CGP. Therefore, if the numeric limit is promulgated and becomes effective prior to June 30, 

2011, EPA will incorporate the final limit into the new CGP. Because EPA plans to incorporate the 

corrected numeric limit into the final permit, and because the current 280 NTU limit is being 

stayed, rather than including the 280 NTU limit in the proposed permit, a placeholder reference 

to the final numeric limit is included instead. 

SIGNIFICANT PROPOSED CHANGES FROM PAST PERMITS

A precursor to examining the cost implications of the proposed permit changes is to 

understand the changes that are being proposed. The following is a summary of the significant 

changes being proposed in this permit. 

Eligibility for Emergency-Related Construction.

EPA proposes to provide immediate authorization on a case-by-case basis for 

construction activities required for response to public emergencies (e.g., tornado, hurricane, 

flooding). Immediate authorization would enable work that is necessary to avoid imminent 

endangerment to human health or the environment. The construction operator must still comply 

with the terms of the permit, and must submit an NOI within 7 days after commencing earthdisturbing activities.

Authorization Process / NOIs.

EPA proposes to increase the “waiting period” from 7 days to 30 days for “new sources.” 

The new 30-day timeframe better accommodates the endangered species and historic 

properties-related reviews that must take place prior to authorization. The 30-day timeframe 

does not apply to “secondary operators” (operators who seek permit coverage under the

permit for discharges from all or a portion of a site that has already received permit coverage 

under the CGP for a “primary operator”), operators of emergency-related projects, and new 

operators of existing permitted dischargers or new sources. Except for emergency-related 

projects, who must submit their NOI within 7 days after commencing earth-disturbing activities, 
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these operators must submit their NOIs at least 7 days prior to commencing earth-disturbing 

activities. 

EPA also proposes to maximize the use of its electronic NOI, or eNOI, process for 

authorizing construction discharges by requiring that construction operators seek coverage 

using the eNOI system. Certain case-by-case exceptions, where a “paper NOI” will be allowed, 

will still exist, but approval by the applicable EPA Region will be necessary first.

Sediment and Erosion Controls.

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. 

The following is a list of requirements that can be considered the most significant modifications 

to the 2008 CGP:

1. Buffers – Operators must ensure that any discharges flowing through the area between 

the disturbed portion of the site and any waters of the United States are treated by an 

area of undisturbed natural vegetation that alone or with alternative sediment controls 

achieves a reduction in sediment loads equivalent to a 50 foot buffer. 

2. Installation of Sediment Controls Prior to Construction – Operators must install and make 

operational all sediment controls prior to conducting earth-disturbing activities in any 

portion of the site. 

3. Sediment Removal Requirements – Operators are specifically required to remove 

deposited sediment on the site, tracked out of the site, or accumulated behind sediment 

controls before it compromises the effectiveness of on-site controls and/or is discharges 

to surface waters. 

4. Entrance and Exit Points – Any entrance and exit points created on the site must be 

stabilized for a minimum of 50 feet into the site.

5. Storm Drain Inlets – Controls must be installed and maintained to protect any storm drain 

inlets to which the site discharges.

6. Chemical Treatment – Where operators plan to employ treatment chemicals to reduce 

sediment discharges, they are subject to specific use restrictions and stormwater control 

design requirements.

7. Dewatering Practices – Specific controls and discharge restrictions apply to sites that will 

discharge groundwater or accumulated stormwater removed from excavations, 

trenches, foundations, vaults, or other points of accumulation associated with 

construction activity.

Stabilization Requirements.

The permit includes modified stabilization requirements that define more specifically 

what EPA expects for temporary and final stabilization. Criteria are proposed for both 

vegetative and non-vegetative stabilization that are based on the Revised Universal Soil Loss 

Equation’s (RUSLE) cover management factor, or “C-factor”. This permit also retains the 70 

percent vegetative cover method that was in the 2008 permit as an option for stabilizing the site. 

Pollution Prevention.

Beyond adopting the specific C&D rule requirements for pollution prevention and the 

prohibition of certain discharges, the proposed permit includes specific location restrictions (e.g., 

locate pollutant-generating activities 50 feet away from waters of the U.S. and stormwater 

conveyance channels) and design standards (e.g., install secondary containment or cover 

activities).
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Numeric Turbidity Limit.

Due to the promulgation of the C&D rule’s numeric turbidity limit, EPA includes a 

reference to that section of the C&D rule (the specific limit to be included once it is recalculated 

and published), as well as applicability, sampling, and reporting requirements.

Water Quality-Based Effluent Limits.

The proposed permit includes specific requirements that apply to sites discharging to 

waters impaired for common pollutants associated with construction activities, such as sediment 

and nutrients. For such sites, construction activities are subject to additional requirements, 

including tighter stabilization deadlines (immediately initiate stabilization if construction in an 

area is inactive for 7 days, as opposed to 14 days) and more frequent site inspections. For sites 

disturbing 10 or more acres at a time, the permittees would be subject to the additional 

requirement to conduct benchmark monitoring of their discharge based on benchmarks that 

are tied to the receiving water’s water quality criterion. The permit also proposes to include 

additional requirements for waters designated as Tier 2, Tier 2.5, or Tier 3 waters.

Site Inspections.

EPA proposes to make explicit the requirement to require operators to visually assess the 

quality of the discharge (e.g., color, odor, floating, settled, or suspended solids) if the site 

inspection occurs during a discharge-generating rain event.

Corrective Actions.

Although the current permit requires corrective action, it does not include specific 

requirements instructing the permittee as to what conditions trigger such corrective action and 

what deadlines apply. The proposed permit includes specific triggering conditions for corrective 

action as well as deadlines to fix such problems and document what was done.

Stormwater Pollution Prevention Plan.

The SWPPP requirements are modified in accordance with the proposed changes 

discussed above. In general, the requirements are more specific, but consistent with the current 

permit. 

Notice of Termination.

EPA proposes to include additional requirements that affect when a site may terminate 

coverage under the CGP. For instance, beyond enabling sites to terminate coverage when 

earth-disturbing activities have stopped and the site is stabilized, the permit would require the 

removal of all temporary stormwater controls and construction materials, waste, and waste 

handling devices.

COST IMPLICATIONS OF THE SIGNIFICANT PROPOSED PERMIT CHANGES

In assessing the cost implications of requiring compliance with the proposed new permit

provisions, EPA looked for requirements that would impose a greater burden on the permittee as 

compared to the current permit (the 2008 CGP) and any existing ELGs and NSPS (in this case, 

the C&D rule), with which they would be required to comply with regardless. To help portray 

where such “incremental” cost increases occur in the draft CGP, EPA conducted a side-by-side 

analysis of the proposed permit requirements and any corresponding requirements in the 2008 

CGP and the C&D rule. See Appendix 1. 

EPA notes that the regulatory requirement to incorporate applicable ELGs and NSPS is 

non-discretionary. Because the promulgation of the C&D rule compels EPA to incorporate its 

requirements into any new permits, and because these requirements redefine what is 
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considered to be the technology-based requirements that apply to all permitted sites, where 

permit provisions are an expression of the C&D rule requirements, it is unnecessary to compare 

the proposed requirement to the current permit requirements. 

Based on the analysis in Appendix 1, with respect to requirements proposed in the draft 

CGP that reflect the C&D rule requirements, EPA found no significant incremental increases in 

costs between the proposed permit’s requirements and the costs already accounted for in 

either the C&D rule promulgation or the requirements of the 2008 CGP, as discussed below. With 

respect to new requirements that are proposed for meeting applicable water quality standards,

the only quantifiable increases in cost arise from the new requirement to conduct benchmark 

monitoring for the pollutant(s) of concern in impaired waters, EPA provides an estimate of the 

expected cost implications below in the section entitled “Water Quality-Based Effluent Limits”. 

Where EPA found there to be a quantifiable cost increase, which is not already accounted for 

by the current permit’s requirements or by the C&D rule, is in the incremental change between 

2008 CGP and the proposed permit’s frequency and scope of site inspections. The following is a 

more detailed discussion of EPA’s rationale supporting these conclusions.

Changes to the NOI Form and Authorization Process

The NOI form (Appendix G) has been modified from the 2008 NOI to include additional 

questions relating to the receiving water and its impairment status, the buffer, and the 

applicability of the numeric turbidity limit. The receiving water and impairment questions are 

intended to inform the Agency about the eligibility status of sites discharging to impaired waters 

or waters designated as Tier 1 or 2 for antidegradation purposes, and of sites subject to 

additional requirements. These questions enable EPA to better ensure compliance with the 

NPDES regulations at 40 CFR 122.4(i), 122.44(d), and 131.12. Construction sites have always been 

subject to these requirements, and the answers to the NOI questions will have been determined 

in advance by the site operator in order to determine if he/she is eligible for permit coverage. 

The NOI questions related to the buffer and the numeric turbidity limit inform EPA about 

the C&D rule requirements to which each site will be subject. The answers to these additional

NOI questions will need to be determined in advance of completing the NOI, as the operator 

prepares his/her SWPPP and complies with the pre-disturbance requirements of the permit. For 

this reason, answering the additional questions will not require additional work on the part of the 

operator. Furthermore, EPA believes that any additional time needed to answer the new NOI 

questions will be offset by the administrative efficiency of submitting the form electronically 

through the eNOI system. For further information regarding EPA’s estimated costs associated 

with completing and submitting the NOI, refer to the Agency’s Information Collection Request 

(ICR) for the NPDES Program (OMB Control No. 2040-0004, EPA ICR No. 0229.19 – December 

2008).

Provide and Maintain Vegetated Buffer

The draft permit requires that in order to minimize sediment discharges, the operator must 

ensure that any discharges through the area between the disturbed portions of the site and any 

waters of the U.S. are treated by an area of undisturbed natural vegetation that alone or 

through the use of additional sediment and erosion controls achieves a reduction in sediment 

load equivalent to that achieved by a 50-foot buffer of undisturbed natural vegetation. EPA 

provides three different alternatives for meeting this requirement, which include: 

(1) provide and maintain a 50-foot vegetated buffer between the areas of disturbance and 

any waters of the U.S. located on or immediately adjacent to the site;

(2) provide an undisturbed vegetated buffer area that is less than 50 feet around waters of 

the U.S. locatedon or immediately adjacent to the site that is supplemented by 
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additional sediment and erosion controls, which in combination achieves the equivalent 

sediment load reduction as a 50-foot buffer; or

(3) if it is infeasible to provide an undisturbed vegetated buffer area of any size around 

waters of the U.S. located on or immediately adjacent to the site, implement sediment 

and erosion controls that achieve the equivalent sediment load reduction as a 50-foot 

buffer.

As a companion to these requirements, EPA has developed guidelines in Appendix M for 

operators to use. 

EPA believes that the buffer requirements do not impose an incremental cost increase to 

affected site operators, as compared to the costs already accounted for in the promulgation of 

the C&D rule (see 40 CFR 450.21(a)(6)) or which are not offset by the flexibility provided in the 

proposed requirements, as discussed below. First, many of the sites that will be permitted under 

the new CGP are already subject to state and/or local buffer or waterfront setback 

requirements that provide some minimum area that is to be left undisturbed and naturally 

vegetated. EPA notes that because these waterfront setback requirements are predominantly 

established at the local or county level, and determining the exact buffer width of all of these 

jurisdictions would have been exceedingly difficult, the Agency examined a subset of these 

county and local government requirements. What EPA found in its research is that these buffer 

requirements range in width from 25 to 300 feet depending on the area as well as the water 

being protected. See further discussion of state and local buffer requirements in Section VII.1.2 

and Tables 4 and 5 of the Fact Sheet. Therefore, EPA believes that many construction operators 

area already required to leave some minimum area of land between a waterbody and their 

construction activities undisturbed such that the proposed permit’s requirement to provide a 

buffer is not a new burden. 

Second, the requirement to provide a buffer or buffer alternative does not impose upon 

construction operators a cost burden in the sense of mandating the outlay of additional money 

for purchasing equipment, supplies, or staff, or to make improvements to the existing vegetated 

area near the water. If the operator chooses the 50-foot buffer option, the permit requires simply 

that whatever vegetation exists in the buffer area at the time of construction be left alone. 

Alternatively, where the operator chooses to demonstrate that retained buffer area and/or 

additional sediment and erosion controls achieve the sediment load reduction of a 50-foot 

buffer, he/she merely has to demonstrate that such controls will achieve this reduction. EPA has 

already provided information the operator can use to estimate the sediment load reduction 

from a 50-foot vegetated buffer in the areas where the CGP is effective (see Appendix M). With 

this information, the operator can choose to use USDA’s RUSLE-series models or the WEPP erosion 

model, which are downloadable from the internet at no cost to estimate the sediment load 

capture rate of different types of sediment and erosion controls. Alternatively, the operator can 

elect to use commercially available models; however, these models may cost $1500 to 

purchase. Therefore, it is only if the operator needs to purchase a more sophisticated model for 

reasons other than the buffer requirements in the draft permit, would he/she bear additional 

cost burden. For this reason, EPA has assumed that this requirement is cost neutral on the 

operator.

Stabilization Requirements

The proposed permit establishes specific deadlines for initiating and completing 

stabilization on the inactive portions of construction sites. The proposed permit differs from its 

predecessor in that it specifies additional criteria that will be used to determine whether a site 

has been adequately stabilized. These new criteria are based on the effectiveness of certain 

common stabilization practices in preventing erosion, which is established through the 
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performance of standardized testing procedures. See Appendix I for additional information on 

the stabilization criteria.

These requirements do not impose incremental cost increases on site operators. 

Permittees under the 2008 CGP were already subject to the same deadlines to initiate 

stabilization, even though these requirements have now been made part of the C&D rule’s ELGs 

and NSPS, and thus nationally required. The additional deadlines established for completing 

stabilization is EPA’s articulation of the following C&D rule requirement: “stabilization must be 

completed within a period of time determined by the permitting authority.” See 40 CFR 

450.21(b). With respect to the stabilization criteria, EPA notes that existing permittees under the 

2008 CGP are already subject to the 70 percent vegetative cover criterion, which is retained in 

the proposed permit. The additional specificity in the proposal regarding the minimum 

stabilization effectiveness to be achieved is necessary to properly implement the C&D rule 

requirement to “complete” stabilization within a designated period of time. Rather than leaving 

it up to the permittee to determine when stabilization is completed, EPA has chosen to define 

this in the permit as an expression of the C&D rule requirement. Taking this into account, it is 

EPA’s view that the additional specificity in the stabilization requirements do not impose 

incremental cost increases that were not already accounted for in promulgating the C&D rule.

Numeric Turbidity Limit

In this proposed permit, EPA includes requirements that implement the C&D rule’s 

numeric turbidity limit at 40 CFR 450.22, including provisions for applicability of the limit 

(consistent with 40 CFR 450.22(a)), monitoring (consistent with 40 CFR 450.22(a)(1)), and 

reporting. These requirements are new to construction sites, however, they are included in the 

permit in order to implement the C&D rule. The costs associated with compliance with these 

requirements were accounted for in the cost and benefit analyses conducted as part of the 

C&D rule’s promulgation. Because it is the C&D rule, and not the CGP, that imposes upon 

applicable sites the requirement to comply with the numeric effluent limit, the proposed permit’s 

adoption of the numeric limit and related requirements to monitor discharges and to report the 

results to EPA does not impose incremental costs not already accounted for in the C&D rule. For 

further information regarding the costs of complying with the numeric effluent limit, refer to EPA’s 

ICR Supporting Statement for Turbidity Monitoring Requirements for Construction Sites Regulated 

by the Effluent Limitations Guidelines and Standards for the Construction and Development Point 

Source Category (40 CFR Part 450) (EPA ICR No. 2336.02) (see Appendix 4) and EPA’s Economic 

Analysis of Final Effluent Limitations Guidelines and Standards for the Construction and 

Development Industry at 

http://water.epa.gov/scitech/wastetech/guide/construction/upload/2009_12_8_guide_constru

ction_files_economic.pdf. 

The numeric turbidity limit applies to sites in the draft CGP in the same manner as 

prescribed in 40 CFR 450.21(a). Where there are differences between the C&D rule and the 

draft CGP is in the level of detail relating to the monitoring and analysis requirements. The C&D 

rule provided ultimate discretion to permitting authorities to impose appropriate sampling and 

analysis requirements to ensure compliance with the numeric turbidity limit. 40 CFR 450.21(a)(2) 

requires that applicable construction sites “conduct monitoring consistent with requirements 

established by the permitting authority” and that “each sample must be analyzed for turbidity in 

accordance with methods specified by the permitting authority.” In the preamble to the rule, 

EPA established as the baseline for any monitoring requirements the need to “pursuant to the 

NPDES regulations ... specify the type, interval, and frequency of sampling sufficient to yield 

data which are representative of the monitored activity” and must require monitoring for 

specific pollutants that are limited in the permit. 40 CFR 122.48(b); see also 122.44(j)(1)(i). While 

the final rule does not enumerate the specific requirements (i.e., frequency, location, etc.) 

regarding the monitoring of turbidity in discharges from construction sites, EPA emphasizes that 
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compliance monitoring is required of permittees and that pursuant to EPA’s NPDES regulations 

permitting authorities must specify requirements /and procedures in their NPDES permits for 

representative sampling to ensure effective monitoring.” See 74 Fed. Reg. 63047. 

Although the C&D rule left the specifics of what monitoring requirements to incorporate 

into NPDES permits to the permitting authority, including such issues as the sampling frequency 

during any one discharge event and the number of discharge events that must be sampled, 

EPA provided recommendations in the rule preamble on how the sampling and analysis 

requirements could be articulated. EPA’s proposed sampling requirements closely mirror those 

which were recommended in the C&D rule preamble. The following is a summary of those 

recommendations and corresponding draft CGP requirements:

Sampling frequency: 

- “EPA would, however, discourage the practice of allowing the number of monitoring 

samples to vary arbitrarily merely to allow a site to achieve a desired average 

concentration, i.e., a value below the limitation that day.” 74 Fed. Reg. 63048. The 

proposed permit requires a minimum of 3 samples of each discharge point per day 

during the time the discharge is occurring. Part 3.3.2.

- “EPA expects that enforcement authorities would prefer, or even require, monitoring 

samples at some regular, pre-determined frequency.” Ibid. See above, and Part 

3.3.2.

- “In general, EPA expects that, at a minimum, three samples per day will need to be 

collected at each discharge point while a discharge is occurring. In reviewing its 

data used as a basis for the limitation, EPA notes that 95 percent of daily values are 

based upon three or more samples per day which demonstrates the need for 

multiple samples.” Ibid. EPA has adopted this same minimum 3 sample-per-day 

approach for the proposed permit. Part 3.3.2.

- “... the permit could specify that sampling must begin within one hour of the start of 

the discharge, and must continue until the discharge ends or until the end of the 

working day.” Ibid. EPA has adopted this requirement. Part 3.3.2.

- “The permit could also include exceptions to the minimum sampling frequency for 

circumstances such as adverse weather conditions (such as high winds or lightning) 

or intense rainfall, which would cause a reasonable person to believe that the safety 

of the sample collection personnel would be in jeopardy. In such instances, the 

permit might specify that sampling be conducted as soon as it is deemed safe by the 

sampling personnel. If, at the start of the next working day, there continues to be a 

discharge, then sampling should resume until the discharge ends or until the end of 

the working day.” 74 Fed. Reg. 63048-63049. EPA has adopted this exception. Part 

3.3.1.4.

- “NPDES permitting authorities will also need to determine the minimum number of 

discharge events during which monitoring is required. It is EPA’s general view that any 

storm event or snowmelt that generates a discharge from the construction site should 

be monitored since this is the surest way to determine the effectiveness of the site’s 

passive controls during all phases of active construction.” 74 Fed. Reg. 63049. EPA 

has adopted this requirement. Part 3.3.1.1.

Testing methodology:

- “The permitting authority must specify in NPDES permits the requirements concerning 

the proper use, maintenance, and installation, when appropriate, of monitoring 

equipment or methods used. 40 CFR 122.48(a). Thus, permittees may elect to use 

automated samplers and/or turbidity meters with data loggers, if approved by the 
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permitting authority.” 74 Fed. Reg. 63049. EPA has included testing specifications in 

the proposed permit. Part 3.3.6 and 3.3.7.

- “Each sample must be analyzed for turbidity using methods approved by the 

permitting authority, but EPA expects that the use of a properly calibrated field 

turbidimeter is sufficient.” 74 Fed. Reg. 63049. EPA requires the use of a properly 

calibrated turbidimeter. Part 3.3.7.1.

Reporting:

- “EPA is also leaving up to the permitting authority the applicable reporting 

requirements on the permittees sampling of their discharges from C&D sites.” 74 Fed. 

Reg. 63049. EPA requires monthly reporting of all turbidity sample results. Part 3.3.10. 

Reporting of sampling results is required of all NPDES permittees in 40 CFR 122.41(l)(4).

Monitoring locations:

- “The numeric limitation applies to all discharges from C&D sites.” 74 Fed. Reg. 63049. 

The proposed permit incorporates this requirement. Part 3.3.3.

Sampling times:

- “... it is EPA’s general view that sampling should be conducted, at a minimum, during 

normal business hours at a project. This can generally be considered to be between 

the hours of 6 a.m. and 6 p.m., or when workers are normally present on the 

construction site. The exception would be if unsafe conditions, such as heavy rain or 

lightning, would cause a reasonable person to determine that sampling would be 

dangerous.” 74 Fed. Reg. 63050. The proposed permit adopts this requirement. Part 

3.3.1.3.

Notification to permitting authorities:

- “Although not a requirement in today’s rule, permitting authorities may want to 

consider requirements in their permits and consider mechanisms by which permittees 

would notify the permitting authority when they have exceeded the 10 acre 

disturbed land threshold and monitoring would be required at a particular project.”

74 Fed. Reg. 63050. EPA requires notification in the NOI form.

EPA estimated the costs associated with complying with the numeric turbidity limit, including 

sampling, analysis, and reporting, as part of the promulgation of the C&D rule. These estimates 

relied on assumptions that the monitoring requirements would follow the recommendations 

enumerated above. Because the cost of sampling and reporting was accounted for in the 

promulgation of the C&D rule, and because the proposed permit closely follows the 

recommended sampling and reporting requirements that were assumed as part of the 

estimated cost burdens associated with compliance with the numeric turbidity limit, the 

proposed permit provisions do not impose incremental cost increases on permittees above that 

which was already estimated for compliance with the rule.

Water Quality-Based Effluent Limits

The proposed permit includes requirements, similar to past CGPs, for permittees to control 

discharges as necessary to meet applicable water quality standards. The proposed permit 

differs from its predecessors in that it imposes several additional requirements on sites discharging 

to waters that are impaired for sediment or nutrient-related pollutants, which are commonly 

associated with construction discharges. These additional requirements include the following:
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A requirement to provide and maintain a minimum 100-foot buffer for any waters of 

the U.S. flowing through or immediately adjacent to the construction site;

A requirement to conduct more frequent inspections;

A requirement to initiate and complete stabilization on inactive, exposed areas 

sooner than other sites; and

A requirement to conduct benchmark monitoring for construction activities that 

disturb 10 or more acres at a time. 

See Part 4.2.3.3 and Appendix K.

It is EPA’s view that the inclusion of these additional requirements for certain sites does 

not constitute an incremental increase in cost burden to affected permittees because they 

were already subject to the requirement to control their discharges as necessary to meet 

applicable water quality standards. See 40 CFR 122.44(d). The requirement in the 2008 permit to 

comply with these water quality standards-related requirements imposes on its permittees the 

regulatory burden of taking the measures that are necessary to ensure that their discharges are 

controlled as necessary to meet applicable water quality standards. The additional water 

quality-based effluent limits in the proposed permit are included as a clarification from earlier 

permits of what this permit requires of its permittees in order to meet these regulatory mandates,

and therefore are no more burdensome than the current 2008 CGP requirements.

The following discussion elaborates on EPA’s rationale for arriving at the conclusion that 

these requirements do not impose an incremental increase in regulatory burden on CGP 

permittees:

Additional Inspection Requirements: Part 4.2.3.4 of the proposed permit requires site 

inspections once per week and within 24 hours of a storm event of 0.25 inches or greater 

(instead of once every 2 weeks and within 24 hours of a storm event of 0.25 inches or 

greater) and daily visual examinations of the site’s stormwater controls and cleanliness. 

EPA views these additional inspection requirements as necessary to ensure compliance 

with the regulatory protections for water quality standards per 40 CFR 122.44(d). EPA’s 

basic belief is that by conducting inspections at this frequency the Agency is assured 

that site operators will be able to prevent problems with sediment or nutrient discharges 

before they occur. These additional requirements are not an incremental burden 

increase because they merely elaborate on what is necessary to comply with the 40 CFR 

122.44(d) requirements.

Faster Stabilization Timeframes: Part 4.2.3.3 of the proposed permit imposes on sites 

discharging to sediment or nutrient-impaired waters the requirement to stabilize disturbed 

areas where construction activities have temporarily or permanently ceased sooner than 

other sites. For these sites, stabilization must be initiated within 7 days of the cessation of 

construction activities on exposed areas, and the initial seeding and mulching must be 

completed within 3 days after initiating stabilization. EPA believes that this tighter

stabilization timeframe will help ensure that exposed areas, which are highly erodible 

and unless properly covered result in significant sediment discharge, are not contributing 

sediment to these impaired waters. 

These tighter stabilization timeframes do not impose an incremental increase in burden. 

First, EPA specifically anticipated in the C&D rule preamble that, when considering how 

to use its discretion in translating the non-numeric effluent limitations into construction 

permits, “the permitting authority may determine that it is necessary for permitees to 

initiate soil stabilization measures when construction activity has permanently or 

temporarily ceased and will not resume for a period exceeding 7 calendar days, as 

opposed to 14 calendar days.” See 74 Fed. Reg. 63016. For this reason, the proposed 

permit’s adoption of the 7-day stabilization timeframe is consistent with what EPA 
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anticipated would be one of the ways permitting authorities could choose to implement 

the requirement at 40 CFR 450.21(b). Second, it is EPA’s opinion that the 7-day 

stabilization timeframe, much like the 14-day stabilization timeframe, does not impose 

incremental costs on construction operators. The deadline to initiate stabilization is a 

function of the operator’s already ongoing construction planning process, and therefore 

altering a deadline to initiate stabilization should not affect the construction operator’s 

bottom line costs. In other words, the requirement for certain sites to initiate stabilization 

of exposed areas within 7 days of ceasing earth-disturbing activities rather than 14 days 

does not require the operator to purchase additional equipment or resources. Instead, 

the timeframe is absorbed as part of the other activities for which the operator must 

schedule. 

Water Quality Benchmark Monitoring: As an additional layer of assurance that 

discharges from larger sites are not causing or contributing to water quality standard 

exceedances and that they are controlled as necessary to meet these standards, the 

proposed permit requires that sites disturbing 10 or more acres at any one time conduct 

benchmark monitoring to demonstrate that the quality of their discharge is at or below 

the water quality criteria assigned to their receiving water. See Part 4.2.3.2. EPA 

anticipates that many sites will choose to phase their construction activities so that, 

similar to the exception that applies to the numeric turbidity limit, disturbances are kept 

to less than 10 acres at a time and therefore are not subject to the benchmark 

monitoring requirement. For sites that are unable to phase their activities to avoid 

triggering the benchmark requirement, EPA acknowledges that the proposed permit is 

for the first time explicitly requiring sampling to demonstrate compliance, and that for this 

reason there are not insubstantial costs associated with sampling, analysis, and reporting 

for those sites affected by the requirement. EPA estimates that this requirement will 

require 1,085 hours annually to comply with for 41 permitted sites, or an estimated 26.5 

hours per site. This estimated workload translates to a total yearly cost of $67,874 for all 

sites combined, or $1,655.5 per site. For an explanation of EPA’s cost estimates see 

Appendix 2. 

Site Inspections

The proposed permit requires permittees to conduct inspections once every 14 days and 

within 24 hours following storm events of 0.25 inches or more. These requirements differ from the 

current permit, which provides permittees with a choice of conducting weekly inspections or biweekly inspections in addition to inspections conducted within 24 hours of storm events 

measuring 0.50 inches or more. The proposed permit also requires permittees to conduct a 

visual observation of the discharge, to the extent that it occurs during normal working hours. The 

2008 CGP requires permittees to include as part of the inspection report “a description of any 

discharges occurring at the time of the inspection”, but did not include specific requirements as 

to what was supposed to be documented.” See Part 4.H.4 of the 2008 CGP. Therefore, despite 

the fact that the 2008 CGP included a related requirement to the proposed visual observation 

requirement, EPA will consider the new level of detail in the draft CGP to amount to an increase 

in cost burden to affected permittees. 

EPA has determined that the cost of complying with these modified inspection 

requirements will result in an incremental cost increase to some permittees. Appendix 3 includes 

an estimate of the incremental cost increases resulting from both the change in storm size from 

0.50 inches to 0.25 inches, and in the requirement to conduct visual discharge observations. EPA 

estimates that compared to the 0.50 inch storm threshold for conducting inspections, the 0.25 

inch proposed threshold would result in an increase of 5,424 additional inspections annually, or 

2.3 additional inspections annually per permittee. Taking into account the proposed new 

requirement to visually observe the quality of the discharge, EPA estimates that the burden hours 
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will increase by an estimated 4,896 hours annually, which amounts to an incremental increase in 

$146,874 of burden hours annually or $62 for each permittee. Refer to Appendix 3 for a the 

underlying assumptions and data used to estimate these incremental cost increases.