[Federal Register Volume 87, Number 15 (Monday, January 24, 2022)]
[Notices]
[Pages 3522-3532]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-01258]



[[Page 3522]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2021-0169; FRL-7877-01-OW]


National Pollutant Discharge Elimination System (NPDES) 2022 
Issuance of General Permit for Stormwater Discharges From Construction 
Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final permit issuance.

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SUMMARY: All ten (10) Environmental Protection Agency (EPA) Regions are 
finalizing the 2022 National Pollutant Discharge Elimination System 
(NPDES) general permit for stormwater discharges from construction 
activities, also referred to as the ``2022 Construction General 
Permit,'' the ``2022 CGP,'' or the ``final permit.'' The final permit 
will replace the 2017 CGP that will expire at midnight on February 16, 
2022. EPA is issuing this permit for five (5) years to provide permit 
coverage to eligible operators in all areas of the country where EPA is 
the NPDES permitting authority, including Massachusetts, New Hampshire, 
New Mexico, oil and gas activities within Oklahoma, most Indian country 
lands, the District of Columbia, U.S. territories and protectorates 
except for the U.S. Virgin Islands, and certain federal facilities. 
This Federal Register document summarizes the final permit. The final 
permit and fact sheet can be found at https://www.epa.gov/npdes/2022-construction-general-permit-cgp. EPA's responses to public comments 
that were submitted in response to the proposed 2022 CGP may be found 
in the docket for this action (Docket ID No. EPA-HQ-OW-2021-0169).

DATES: The final permit will become effective on February 17, 2022. 
This effective date is necessary to provide dischargers with the 
immediate opportunity to comply with Clean Water Act (CWA) requirements 
in light of the expiration of the 2017 CGP on February 16, 2022. In 
accordance with 40 CFR part 23, the 2022 CGP shall be considered issued 
for the purpose of judicial review on February 7, 2022. Under CWA 
Section 509(b), judicial review of this general permit can be requested 
by filing a petition for review in the United States Court of Appeals 
within 120 days after the permit is issued. Under CWA Section 
509(b)(2), the requirements in this permit may not be challenged later 
in civil or criminal proceedings to enforce these requirements. In 
addition, this permit may not be challenged in other agency 
proceedings. Deadlines for submittal of a Notice of Intent (NOI) are 
provided in Part 1.4.3 of the 2022 CGP. The 2022 CGP also provides 
additional dates for compliance with the requirements of the permit.
    EPA will host a webinar on February 24 at 1:00 p.m. (Eastern Time 
Zone) to provide an overview of the 2022 CGP and an opportunity for 
participants to ask questions. Those interested may register for the 
webinar at https://www.zoomgov.com/webinar/register/WN_DsNwf8dQTzC1pCk0HCyVnQ. Further details on the webinar, including a 
post-webinar recording, will be made available at https://www.epa.gov/npdes/2022-construction-general-permit-cgp.

FOR FURTHER INFORMATION CONTACT:  For further information on the final 
permit, contact the appropriate EPA Regional office listed in Section 
I.F of this document, or Greg Schaner, EPA Headquarters, Office of 
Water, Office of Wastewater Management at 202-564-0721 or email: 
<a href="/cdn-cgi/l/email-protection#b5d6d2c5f5d0c5d49bd2dac3"><span class="__cf_email__" data-cfemail="60030710200510014e070f16">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This section is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How can I get copies of these documents and other related 
information?
    C. Who are the EPA regional contacts for this permit?
II. Background of Permit
    A. Technology-Based Effluent Limits (TBELs)
    B. Water Quality-Based Effluent Limits (WQBELs)
III. Summary of Final Permit
    A. Final Changes That Improve Clarity of the Permit
    B. Final Changes That Add Specificity To Permit Requirements
IV. Provisions Not Finalized in the 2022 CGP
V. Implementation Assistance
VI. Paperwork Reduction Act (PRA)
VII. 2022 CGP Incremental Cost Analysis and Future Cost-Benefit 
Considerations
VIII. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
IX. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
X. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
XI. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

I. General Information

A. Does this action apply to me?

1. Entities Covered by This Permit
    This final permit covers stormwater discharges to waters of the 
United States from construction activities located in areas identified 
in Appendix B of the permit from the following entities, as categorized 
in the North American Industry Classification System (NAICS):

                Table 1--Entities Covered by This Permit
------------------------------------------------------------------------
                                                 North American Industry
         Category          Examples of affected   Classification System
                                 entities              (NAICS) code
------------------------------------------------------------------------
Industry.................  Construction site operators disturbing one or
                            more acres of land, or less than one acre
                            but part of a larger common plan of
                            development or sale if the larger common
                            plan will ultimately disturb 1 acre or more,
                            and performing the following activities:
                          ----------------------------------------------
                              Construction of                        236
                               Buildings.
                              Heavy and Civil                        237
                               Engineering
                               Construction.
------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive but 
provides it as a guide for readers regarding the types of activities 
EPA is now aware of that could potentially be affected by this action. 
Other types of entities not listed in the table could also be affected. 
To determine whether your site is covered by this action, you should 
carefully examine the definition of ``construction activity'' and 
``small construction activity'' in existing EPA regulations at 40 CFR 
122.26(b)(14)(x) and 122.26(b)(15), respectively. If you have questions 
regarding the applicability of this action to a particular entity, 
consult one of the persons listed for technical information

[[Page 3523]]

in the preceding FOR FURTHER INFORMATION CONTACT section.
2. Types of Construction Sites for Which Operators Are Eligible for 
Permit Coverage
    Coverage under this permit will be available to operators of 
eligible sites located in those areas where EPA is the permitting 
authority. A list of eligible areas is included in Appendix B of the 
final permit. Eligibility for permit coverage is limited to operators 
of ``new sites,'' operators of ``existing sites,'' ``new operators of 
permitted sites,'' and operators of ``emergency-related projects.'' A 
``new site'' is a site where construction activities commenced on or 
after the effective date of the final 2022 CGP. An ``existing site'' is 
a site with 2017 CGP coverage where construction activities commenced 
prior to the effective date of the final 2022 CGP. A ``new operator of 
a permitted site'' is an operator that through transfer of ownership 
and/or operation replaces the operator of an already permitted 
construction site that is either a ``new site'' or an ``existing 
site.'' An ``emergency-related project'' is a project initiated in 
response to a public emergency (e.g., mud slides, earthquake, extreme 
flooding conditions, disruption in essential public services), for 
which the related work requires immediate authorization to avoid 
imminent endangerment to human health or the environment, or to 
reestablish public services.
3. Geographic Coverage
    This 2022 CGP provides coverage to eligible operators for 
stormwater discharges from construction activities that occur in areas 
not covered by an approved state NPDES program. The areas of geographic 
coverage for the 2022 CGP are listed in Appendix B, and include the 
states of New Hampshire, Massachusetts, and New Mexico, oil and gas 
activities within Oklahoma, as well as most Indian country lands, and 
certain federal facilities. Permit coverage can also be obtained by 
operators in Puerto Rico, the District of Columbia, and the Pacific 
Island territories (i.e., Island of American Samoa, Island of Guam, and 
Johnston Atoll, Commonwealth of the Northern Mariana Islands, Midway 
Island, and Wake Island). EPA notes that the CGP will no longer provide 
coverage to construction sites in the state of Idaho, except for sites 
located on Indian country lands, or to sites located in the state of 
Texas that involve the exploration, development, or production of oil 
or gas or geothermal resources, including transportation of crude oil 
or natural gas by pipeline, as both states are now fully authorized to 
issue permits for construction stormwater. Eligible operators in these 
two states will need to seek permit coverage for their stormwater 
discharges from their respective state NPDES authority.

B. How can I get copies of these documents and other related 
information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2021-0169. Although all documents 
in the docket are listed in an index, some information is not publicly 
available, i.e., Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Out of an 
abundance of caution for members of the public and our staff, the EPA 
Docket Center and Reading Room are closed to the public, with limited 
exceptions, to reduce the risk of transmitting COVID-19. When the EPA 
Docket Center and Reading Room re-open, publicly available docket 
materials will be available in hard copy at the Water Docket in the EPA 
Docket Center, (EPA/DC) WJC West Building, Room 3334, 1301 Constitution 
Ave. NW, Washington, DC 20460. Our Docket Center staff will continue to 
provide remote customer service via email, phone, and webform. For 
further information on EPA Docket Center services and the current 
status, please visit us online at https://www.epa.gov/dockets.
    2. Electronic Access. You may access this Federal Register document 
electronically through the United States government on-line source for 
federal regulations at http://www.regulations .gov.
    Electronic versions of the final permit and fact sheet are 
available on EPA's NPDES website at https://www.epa.gov/npdes/2022-construction-general-permit-cgp.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.regulations.gov to view public comments, 
access the index listing of the contents of the official public docket, 
and to access those documents in the public docket that are available 
electronically. For additional information about EPA's public docket, 
visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

C. Who are the EPA regional contacts for this permit?

    For EPA Region 1, contact Sania Kamran: Email at 
<a href="/cdn-cgi/l/email-protection#7b101a16091a1555081a15121a3b1e0b1a551c140d"><span class="__cf_email__" data-cfemail="157e747867747b3b66747b7c74557065743b727a63">[email protected]</span></a>.
    For EPA Region 2, contact Stephen Venezia: Email at 
<a href="/cdn-cgi/l/email-protection#1f697a717a65767e316c6b7a6f777a715f7a6f7e31787069"><span class="__cf_email__" data-cfemail="1563707b706f7c743b666170657d707b557065743b727a63">[email protected]</span></a>, or for Puerto Rico, contact Sergio Bosques: 
Email at <a href="/cdn-cgi/l/email-protection#5d3f322e2c28382e732e382f3a34321d382d3c733a322b"><span class="__cf_email__" data-cfemail="24464b57555141570a574156434d4b644154450a434b52">[email protected]</span></a>.
    For EPA Region 3, contact Carissa Moncavage: Email at 
<a href="/cdn-cgi/l/email-protection#3a575554595b4c5b5d5f14595b485349495b7a5f4a5b145d554c"><span class="__cf_email__" data-cfemail="bad7d5d4d9dbccdbdddf94d9dbc8d3c9c9dbfadfcadb94ddd5cc">[email protected]</span></a>.
    For EPA Region 4, contact Michael Mitchell: Email at 
<a href="/cdn-cgi/l/email-protection#016c68756269646d6d2f6c68626960646d416471602f666e77"><span class="__cf_email__" data-cfemail="5934302d3a313c35357734303a31383c35193c2938773e362f">[email protected]</span></a>.
    For EPA Region 5, contact Krista McKim: Email at 
<a href="/cdn-cgi/l/email-protection#7419171f1d195a1f061d070015341104155a131b02"><span class="__cf_email__" data-cfemail="cca1afa7a5a1e2a7bea5bfb8ad8ca9bcade2aba3ba">[email protected]</span></a>.
    For EPA Region 6, contact Suzanna Perea: Email at: 
<a href="/cdn-cgi/l/email-protection#5222372037337c212728333c3c33123722337c353d24"><span class="__cf_email__" data-cfemail="7c0c190e191d520f09061d12121d3c190c1d521b130a">[email protected]</span></a>.
    For EPA Region 7, contact Mark Matthews: Email at: 
<a href="/cdn-cgi/l/email-protection#5d303c292935382a2e73303c2f361d382d3c733a322b"><span class="__cf_email__" data-cfemail="472a2633332f223034692a26352c0722372669202831">[email protected]</span></a>.
    For EPA Region 8, contact Amy Clark: Email at: <a href="/cdn-cgi/l/email-protection#fc9f909d8e97d29d9185bc998c9dd29b938a"><span class="__cf_email__" data-cfemail="ec8f808d9e87c28d8195ac899c8dc28b839a">[email protected]</span></a>.
    For EPA Region 9, contact Eugene Bromley: Email at 
<a href="/cdn-cgi/l/email-protection#472535282a2b223e692232202229220722372669202831"><span class="__cf_email__" data-cfemail="680a1a0705040d11460d1d0f0d060d280d1809460f071e">[email protected]</span></a>.
    For EPA Region 10, contact Margaret McCauley: Email at 
<a href="/cdn-cgi/l/email-protection#137e707072667f766a3d7e72617472617667537663723d747c65"><span class="__cf_email__" data-cfemail="a3cec0c0c2d6cfc6da8dcec2d1c4c2d1c6d7e3c6d3c28dc4ccd5">[email protected]</span></a>.

II. Background of Permit

    The CWA establishes a comprehensive program ``to restore and 
maintain the chemical, physical, and biological integrity of the 
Nation's waters.'' 33 U.S.C. 1251(a). The CWA also includes the 
objective of attaining ``water quality which provides for the 
protection and propagation of fish, shellfish and wildlife and * * * 
recreation in and on the water.'' 33 U.S.C. 1251(a)(2)). To achieve 
these goals, the CWA requires EPA to control discharges of pollutants 
from point sources through the issuance of National Pollutant Discharge 
Elimination System (NPDES) permits.
    The Water Quality Act of 1987 (WQA) added Section 402(p) to the 
CWA, which directed EPA to develop a phased approach to regulate 
stormwater discharges under the NPDES program. 33 U.S.C. 1342(p). EPA 
published a final regulation in the Federal Register, often called the 
``Phase I Rule,'' on November 16, 1990, establishing permit application 
requirements for, among other things, ``storm water discharges 
associated with industrial activity.'' See 55 FR 47990. EPA defines the 
term ``storm water discharge associated with industrial activity'' in a 
comprehensive manner to cover a wide variety of facilities. See id. 
Construction activities, including activities that are part of a larger 
common plan of development or

[[Page 3524]]

sale, that ultimately disturb at least five acres of land and have 
point source discharges to waters of the U.S. were included in the 
definition of ``industrial activity'' pursuant to 40 CFR 
122.26(b)(14)(x). The second rule implementing Section 402(p), often 
called the ``Phase II Rule,'' was published in the Federal Register on 
December 8, 1999. It requires NPDES permits for discharges from 
construction sites disturbing at least one acre but less than five 
acres, including sites that are part of a larger common plan of 
development or sale that will ultimately disturb at least one acre but 
less than five acres, pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR 
68722. EPA issues the 2022 CGP under the statutory and regulatory 
authorities cited in this section.
    NPDES permits for construction stormwater discharges are required 
under Section 402(a)(1) of the CWA to include conditions to meet 
technology-based effluent limits established under Section 301 and, 
where applicable, Section 306. Effluent Limitations Guidelines (ELGs) 
and New Source Performance Standards (NSPS) are technology-based 
effluent limitations that are based on the degree of control that can 
be achieved using various levels of pollutant control technology as 
defined in Subchapter III of the CWA.
    Once a new national standard is established in accordance with 
these sections, NPDES permits must incorporate limits based on such 
technology-based standards. See CWA Sections 301 and 306, 33 U.S.C. 
1311 and 1316, and 40 CFR 122.44(a)(1). On December 1, 2009, EPA 
published final regulations establishing technology-based ELGs and NSPS 
for the Construction & Development (C&D) point source category, which 
became effective on February 1, 2010. See 40 CFR part 450 and 74 FR 
62996. EPA amended the Construction & Development Rule, or ``C&D 
rule,'' on March 6, 2014 to satisfy EPA's agreements pursuant to a 
settlement of litigation that challenged the 2009 rule. See 79 FR 
12661. All NPDES construction permits issued by EPA or states after 
this date must incorporate the requirements in the C&D rule.

A. Technology-Based Effluent Limits (TBELs)

    The non-numeric effluent limitations in the C&D rule are designed 
to prevent or minimize the mobilization and 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. Soil on construction sites can contain a variety 
of pollutants such as nutrients, pesticides, herbicides, and metals. 
These pollutants may be present naturally in the soil, such as arsenic 
or selenium, or they may have been contributed by previous activities 
on the site, such as agriculture or industrial activities. 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 non-numeric effluent limits in the C&D rule, upon which certain 
technology-based requirements in the final permit are based, include 
the following:
    <bullet> 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:
    1. Control stormwater volume and velocity to minimize soil erosion 
in order to minimize pollutant discharges;
    2. Control stormwater discharges, including both peak flow rates 
and total stormwater volume, to minimize channel and streambank 
erosion, and scour in the immediate vicinity of discharge points;
    3. Minimize the amount of soil exposed during construction 
activity;
    4. Minimize the disturbance of steep slopes;
    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 discharge, and 
soil characteristics, including the range of soil particle sizes 
expected to be present on the site;
    6. Provide and maintain natural buffers around waters of the United 
States. Direct stormwater to vegetated areas and maximize stormwater 
infiltration to reduce pollutant discharges, unless infeasible;
    7. Minimize soil compaction. Minimizing soil compaction is not 
required where the intended function of a specific area of the site 
dictates that it be compacted; and
    8. Unless infeasible, preserve topsoil. Preserving topsoil is not 
required where the intended function of a specific area of the site 
dictates that the topsoil be disturbed or removed.
    <bullet> 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. In arid, semiarid, and drought-
stricken areas where initiating vegetative stabilization measures 
immediately is infeasible, alternative stabilization measures must be 
employed as specified by the permitting authority. Stabilization must 
be completed within a period of time determined by the permitting 
authority. In limited circumstances, stabilization may not be required 
if the intended function of a specific area of the site necessitates 
that it remains disturbed.
    <bullet> Dewatering Requirements--Permittees are required to 
minimize the discharge of pollutants from dewatering trenches and 
excavations. Discharges are prohibited unless managed by appropriate 
controls.
    <bullet> 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:
    1. 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;
    2. Minimize the exposure of building materials, building products, 
construction wastes, trash, landscape materials, fertilizers, 
pesticides, herbicides, detergents, sanitary waste, and other materials 
present on the site to precipitation and to stormwater. Minimization of 
exposure is not required in cases where the exposure to precipitation 
and to stormwater will not result in a discharge of pollutants or where 
exposure of a specific material or product poses little risk of 
stormwater contamination (such as final products and materials intended 
for outdoor use); and
    3. Minimize the discharge of pollutants from spills and leaks and

[[Page 3525]]

implement chemical spill and leak prevention and response procedures.
    <bullet> Prohibited Discharges--The following discharges from C&D 
sites are prohibited:
    1. Wastewater from washout of concrete, unless managed by an 
appropriate control;
    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; and
    4. Soaps or solvents used in vehicle and equipment washing.
    <bullet> Surface Outlets--When discharging from basins and 
impoundments, permittees are required to utilize outlet structures that 
withdraw water from the surface, unless infeasible.
    The accompanying fact sheet details how EPA has incorporated these 
requirements into the final permit. The discussion in the fact sheet 
includes a summary of each provision and the agency's rationale for 
articulating the provision in this way.

B. Water Quality-Based Effluent Limits (WQBELs)

    EPA's regulations at 40 CFR 122.44(d)(1) require permitting 
authorities to include additional or more stringent permit requirements 
when necessary to achieve water quality standards. The 2022 CGP 
contains several provisions to protect water quality that were retained 
from the 2017 CGP. The final permit includes a narrative WQBEL 
requiring that discharges be controlled as necessary to meet applicable 
water quality standards. Failure to control discharges in a manner that 
meets applicable water quality standards is a violation of the permit.
    In addition to the narrative WQBEL, the 2022 CGP includes related 
provisions that act together to protect water quality. For example, the 
permit requires operators to implement stormwater controls and to take 
corrective action in response to any exceedance of applicable water 
quality standards. In addition, the permit requires more stringent site 
inspection frequencies and stabilization deadlines for construction 
sites that discharge to those waters that are sediment or nutrient-
impaired, which are parameters typically associated with stormwater 
discharges from construction sites, or waters identified by a state, 
tribe, or EPA as requiring enhanced protection under antidegradation 
requirements. In the 2022 CGP, EPA also included an additional water 
quality-based requirement for dewatering discharges to sediment-
impaired and high-quality waters that requires operators to monitor the 
discharge for turbidity in comparison to a benchmark threshold. This 
new requirement is discussed in Section III.B.
    Additionally, EPA received CWA Section 401 certifications for the 
final 2022 CGP. Some of those certifications included additional 
conditions that are required by states, Indian tribes, and territories, 
pursuant to relevant provisions of the CWA and/or their respective 
legal authorities. These conditions were incorporated into the permit 
as legally binding permit limits and requirements in the specific 
geographic areas that are located within the jurisdiction of the 
certifying authority.

III. Summary of Final Permit

    This section summarizes the most significant modifications that are 
included in the 2022 CGP relative to the 2017 CGP. The fact sheet for 
the permit explains in more detail each permit condition and the 
rationale for any changes to those conditions. The final permit and 
fact sheet can be found in the docket for this action and at https://www.epa.gov/npdes/2022-construction-general-permit-cgp. A comprehensive 
list of the final changes, as well as the corresponding parts of the 
permit that are modified, is included in a table in Section III.B of 
the fact sheet.
    The types of final changes in the 2022 CGP generally fall into one 
of two categories: (1) Changes to improve the clarity of the permit, 
and (2) changes that added specificity to the permit requirements. The 
table of modifications in Section III.B of the fact sheet specifies 
which changes fall under the type (1) category and which fall into the 
type (2) category. The following sections briefly describe the most 
significant final changes within these two broad categories.

A. Final Changes That Improve Clarity of the Permit

    EPA finalized a number of relatively minor changes that focus on 
improving the clarity of provisions where operators, EPA compliance 
staff, or other stakeholders have raised questions. These changes 
generally do not change the underlying requirement from the 2017 CGP, 
but rather attempt to make EPA's original intent clearer. These 
clarifications in the 2022 CGP should improve the overall understanding 
of the permit's requirements from all perspectives, including the 
permitting authority, permittees, and the general public.
    The final changes to improve clarity include the following:
    <bullet> Approved stormwater control and stormwater pollution 
prevention plan products--EPA includes new language in the permit to 
clearly state that the agency does not endorse specific stormwater 
control or stormwater pollution prevention plan (SWPPP) products or 
vendors. Industry stakeholders suggested that the permit include such 
language to help discourage some vendors from misleadingly suggesting 
that EPA or the permit approves of specific products. See footnotes 13 
and 84 in Parts 2.1 and 7.1, respectively, of the permit.
    <bullet> Differentiate between routine maintenance and corrective 
action--EPA defines routine maintenance as minor repairs or other 
upkeep performed to ensure the site's stormwater controls remain in 
effective operating condition, not including significant repairs or the 
need to install a new or replacement control. If a stormwater control 
needs a significant repair or a new or replacement control is needed, 
the permit requires that it be treated as a corrective action. This 
change addresses feedback provided by industry stakeholders who have 
observed that there is considerable confusion about which maintenance 
repairs are considered routine versus those that should be treated as 
corrective actions. Based on comments received on the proposed permit, 
EPA provided further flexibility for routine maintenance, which cannot 
be completed by the close of the next business day after the condition 
requiring maintenance is discovered, by enabling operators to have up 
to seven days to complete this work. The additional time is conditioned 
on the operator documenting in the site inspection report why it would 
be infeasible to finish the work by the close of the next business, and 
why the repairs or other upkeep should still be treated as routine 
maintenance. Where the operator finds that the same routine maintenance 
fix must be repeatedly (i.e., three or more times) made to the same 
stormwater control at the same location, the operator must complete the 
work for any subsequent occurrences of the same problem under the 
corrective action procedures in Part 5 of the permit, or document in 
the site inspection report why the specific reoccurrence of the problem 
should still be addressed as a routine maintenance fix. See Parts 
2.1.4.b, c, and d, and 5.1.1 of the permit.
    <bullet> Include additional stormwater control design 
considerations--The CGP requires operators to take into account several 
factors in designing stormwater

[[Page 3526]]

controls that comply with permit conditions. The factors include the 
expected amount, frequency, intensity, and duration of precipitation. 
See Part 2.1.1 of the permit. EPA clarifies that the relevant data used 
must be the most recent data available to account for recent 
precipitation patterns and trends. EPA also suggests that operators 
include consideration and contingencies for the implementation of 
structural improvements, enhanced or resilient stormwater controls, and 
other mitigation measures to help minimize the stormwater discharge 
impacts from major storms (e.g., hurricanes, storm surges, extreme 
precipitation, or flood events) where the site has been exposed to or 
previously experienced such storms.
    <bullet> Clarify factors where infiltration would be infeasible or 
inadvisable--The CGP requires that operators direct stormwater to 
vegetated areas and maximize stormwater infiltration and filtering to 
reduce pollutant discharges, unless infiltration would be inadvisable 
due to the underlying geology and groundwater concerns, or infeasible 
due to site constraints. EPA suggests some of the considerations 
operators should take into account in determining whether infiltration 
at a particular site is infeasible or inadvisable, such as factors 
relating to the underlying soils or geology, hydrology, depth to the 
groundwater table, proximity to source water protection area(s), or 
specific contaminant concerns. See Part 2.2.2 and footnote 19 in the 
permit.
    <bullet> Clarify application of perimeter control and natural 
buffer requirements--EPA understands from conversations with 
stakeholders that there is confusion about whether perimeter controls 
are necessary on the site when the operator is already providing a 
natural buffer pursuant to the requirements of the permit. To address 
this confusion, EPA clarifies that perimeter controls must be installed 
upgradient of any natural buffers except in situations where the 
perimeter control is being used by the operator to fulfill one of the 
buffer alternative requirements, in which case the operator would not 
be required to install a second perimeter control. See Part 2.2.3.a of 
the permit.
    <bullet> Clarify the permit flexibilities for arid and semi-arid 
areas--The 2017 CGP maintained from previous CGPs alternative 
stabilization and inspection schedules for arid and semi-arid areas 
that are reflective of the different climatic and precipitation 
conditions that exist in those areas. These stabilization and 
inspection schedule flexibilities apply during the ``seasonally dry 
period'' of the year when there is less risk of a discharge-producing 
storm event. The permit did not previously define the term ``seasonally 
dry period,'' and EPA has received a number of questions from 
construction operators over the past several years about what this term 
means. For this reason, the final 2022 CGP establishes a new definition 
for seasonally dry period to provide clarity and includes resources in 
the form of maps and zip code tables to assist construction operators 
located in an arid or semi-arid area in determining when they may be 
operating during a seasonally dry period of the year. See Parts 
2.2.14.b, 2.2.14.c, and 4.4.2 of the permit, as well as the definition 
of ``seasonally dry period'' in Appendix A. See also EPA's Seasonally 
Dry Period Locator Tool at https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates.
    <bullet> Clarify pollution prevention requirements for construction 
waste--The 2022 CGP extends existing pollution control flexibilities 
that apply to building materials and products in Part 2.3.3.a to 
certain types of construction wastes in Part 2.3.3.e. Waste containers 
are not required for the waste remnant or unused portions of any 
construction materials or final products where the exposure to 
precipitation and to stormwater will not result in a discharge of 
pollutants, or where exposure of a specific material or product poses 
little risk of stormwater contamination, provided that these wastes are 
stored separately from other construction or domestic wastes that do 
not meet these criteria, are stored in designated areas of the site, 
and are described in the SWPPP. See Parts 2.3.3.e, 7.2.4.i, and 
7.2.6.b.ix of the permit.
    <bullet> Clarify proper handling of washing applicators and 
containers used for stucco, paint, concrete, form release oils, curing 
compounds, or other materials--The permit includes some additional 
details based on feedback provided in the public comments regarding how 
operators should handle washout or cleanout wastes. This includes not 
allowing liquid wastes to enter site drainage features, not allowing 
such wastes to be disposed of through infiltration or to otherwise be 
disposed of on the ground, and complying with applicable state, tribal, 
or local requirements for disposal. See Part 2.3.4.b of the permit.
    <bullet> Clarify requirements for inspections during storm events--
In meetings with stakeholders prior to the proposed permit, and in 
comments submitted during the public comment period, it has become 
clear that clarification is needed to better explain the required 
frequency of inspections during and after storm events. For inspections 
required in response to storm events producing 0.25 inches of rain 
within a 24-hour period, EPA provided additional text explaining when 
inspections are required under different storm length scenarios. See 
Part 4.2.2.a. For inspections required in response to discharges from 
snowmelt, the permit adds a numeric inspection threshold for snowfall 
precipitation that is equivalent to the 0.25-inch rain event to help 
operators determine when an inspection may be required. This change 
clarifies that where there is a discharge from snowmelt caused by an 
accumulation of 3.25 inches or greater of snow within a 24-hour period, 
an inspection is required. Some operators requested this change and 
explained to EPA that without a numeric threshold, it is difficult for 
operators to know which snow events may trigger the need to inspect the 
site during the winter season. EPA relied on information from the 
National Oceanic and Atmospheric Administration (NOAA) to derive the 
3.25-inch snowfall equivalent to the 0.25-inch rain event. See Part 
4.2.2.b of the permit.
    <bullet> Availability of stormwater pollution prevention plan 
(SWPPP), inspection reports, and corrective action log in electronic 
form--The 2017 CGP enabled operators to keep their SWPPP, inspection 
reports, and corrective action records in electronic form, as long as 
they could be accessed and read by the operator and by any EPA, state, 
or local inspection authorities in the same manner as a paper copy. EPA 
heard from permittees, however, who were uncertain about whether the 
flexibility to keep these documents in electronic form was available to 
them. EPA acknowledges that part of the problem was that its 
explanation about retaining documents in electronic form was only 
included in a frequently asked question section of its construction 
stormwater website, and was not clearly stated in the 2017 CGP. For 
this reason, the final 2022 CGP includes text to make it clear that 
electronic versions of the SWPPP, inspection reports, and corrective 
action logs may be used as long as they meet certain minimum 
requirements. See footnotes 76, 78, and 92 to Parts 4.7.3, 5.4.3, and 
7.3, respectively, of the permit.
    <bullet> Updated process for Endangered Species Act eligibility 
determinations--EPA updated Appendix D of the CGP, which establishes 
procedures for operators to follow in determining their eligibility for 
coverage with respect to

[[Page 3527]]

the protection of endangered and threatened species. The changes to 
Appendix D are primarily in the form of clarifications to existing 
procedures or updates to resources that operators can use to determine 
whether species are located in the ``action area'' of the construction 
site. EPA finalized similar changes as part of the Endangered Species 
Act (ESA) consultation it completed as part of its issuance of the 2021 
Multi-Sector General Permit (MSGP) for discharges from industrial 
activities (See Appendix E of the 2021 MSGP at https://www.epa.gov/npdes/stormwater-discharges-industrial-activities-epas-2021-msgp). 
During the ESA consultation on the 2022 CGP and based on EPA's 
experience with consultation for the 2021 MSGP, EPA agreed to reformat 
Appendix D and the corresponding Endangered Species Protection section 
of the electronic NOI in the NPDES eReporting Tool (NeT) into a 
worksheet-style format. The worksheet breaks apart the procedures, 
criterion selection, and required supporting documentation into a 
series of individual questions and fillable answers, rather than long 
narrative instructions. It is EPA's intention that presenting the ESA 
procedures in a more dynamic, structured way will help the operator 
arrive at the correct ESA criterion selection by eliminating ones that 
do not apply to their site and will ensure that all required supporting 
documentation is included when submitting the NOI. See Appendix D of 
the permit, and related information at https://www.epa.gov/npdes/2022-construction-general-permit-cgp.

B. Final Changes That Add Specificity to Permit Requirements

    EPA finalized select modifications to the permit to address 
specific problems that have come to the agency's attention during the 
permit term or to incorporate enhancements that reflect current best 
practices. These changes are narrowly focused on specific topics. The 
following is a summary of these changes:
    <bullet> Include additional perimeter control installation and 
maintenance requirements--Due to the vital role that sediment controls 
installed along the downslope side of the construction site perimeter 
play in minimizing sediment discharges, it is important for the CGP 
requirements related to these controls to reflect best practices that 
are available, effective, and practicable. Reviewing a number of state 
permits and best management practice manuals during the development of 
the proposed and final permit, EPA concluded that some targeted changes 
to the perimeter control requirements in the CGP are appropriate and 
warranted at this time. For this reason, EPA finalized additional 
perimeter control installation and maintenance requirements that are 
focused on ensuring that these controls continue to work effectively. 
For example, under the new provision, if there is evidence of 
stormwater circumventing or undercutting the perimeter control after a 
storm event, the operator is required to extend the length of the 
perimeter control or repair any undercut areas, whichever applies. This 
change is intended to ensure that maintenance of these controls is 
focused on fixing problems as soon as they are found and making sure 
they work effectively before the next storm event occurs. See Part 
2.2.3 of the permit.
    <bullet> Update pollution prevention requirements for chemicals 
used and stored on site--EPA finalized changes to the pollution 
prevention requirements for diesel fuel, oil, hydraulic fuels, or other 
petroleum products, and other chemicals. These changes respond to 
feedback EPA received from some permittees who recommended reframing 
the 2017 CGP permit requirements so they are proportionate to the 
volume of chemicals being used and stored on the site, and relative to 
the risk of a spill or leak. EPA agreed that the requirements in this 
section could be improved by strengthening the linkage between the type 
of pollution prevention control needed and the volume of chemical 
containers kept on site. Consistent with this principle, the final 
permit establishes control requirements that are appropriate for 
chemical containers with a storage capacity of less than 55 gallons by 
requiring that the operator use water-tight containers, place them on a 
spill containment pallet (or similar device) if kept outside, and have 
a spill kit available at all times and in good working condition, and 
personnel available to respond quickly to a spill or leak. These 
controls will be effective at preventing a discharge from a spill or 
leak, while also having the added advantage of being moved more easily 
around the site. The final permit also includes controls that are more 
suitable to larger chemical containers with a storage capacity of 55 
gallons or more, such as requiring a temporary roof or secondary 
containment to prevent a discharge from a leak or spill. Based on 
public comments, EPA modified the requirements so that they are applied 
based on the volume of container at the site (i.e., containers with a 
storage capacity of less than 55 gallons, or 55 gallons or more) versus 
the proposed approach of applying requirements based on the total 
volume of chemicals at the site. EPA also added some additional 
specificity to the final provisions to require that all containers be 
closed, sealed, and secured when not being actively used. EPA also 
added an additional flexibility to allow operators with certain site 
constraints to store larger volume containers as far away from 
receiving waters, site drainage features, and stormwater inlets as 
possible if it is infeasible to store them at least 50 feet away. See 
Part 2.3.3.c of the permit.
    <bullet> Specify new dewatering discharge requirements--EPA 
finalized several changes to the permit's dewatering requirements to 
improve compliance and further reduce pollutant loads to receiving 
waters. EPA has noted violations with the permit's dewatering 
requirements at sites with controls that are improperly installed and 
maintained, resulting in significant discharges of sediment and other 
pollutants to receiving waters. Given the high rate at which dewatered 
water may be discharged, EPA inspection personnel have observed that it 
is possible that a site may discharge more sediment in several hours of 
poorly managed dewatering activities than might otherwise be discharged 
from a site via stormwater discharges over the entire course of the 
construction project. Additionally, EPA has found there to be good 
example provisions from state construction stormwater permits and 
standalone NPDES dewatering permits that can be used to strengthen the 
CGP's dewatering conditions.
    The final dewatering revisions to the permit add clarity to the 
existing pollutant control provisions, increase the number of 
inspections required while the dewatering discharge is occurring, 
establish a tailored checklist of problems to review during the 
inspection, and identify specific triggers for when corrective action 
is required. For example, one new dewatering-related inspection 
provision requires the operator to check whether a sediment plume, 
foam, and/or other evidence of pollutants such as a visible sheen or 
oily deposit on the bottom or shoreline of the receiving water was 
observed during the inspection at the point of discharge to any 
receiving water flowing through or immediately adjacent to the site 
and/or to drainage features. If such pollutant indicators are observed, 
the permit requires the operator to, among other things, take immediate 
steps to minimize the discharge of pollutants, including the 
possibility of shutting off the dewatering discharge depending on the 
severity of the condition and to ensure that the dewatering controls

[[Page 3528]]

being used are operating effectively. During an inspection of the 
dewatering operation, the operator would also be required to take 
photographs of (1) the dewatering water prior to treatment by a 
control(s) and the final discharge after treatment; (2) the dewatering 
control(s); and (3) the point of discharge to any receiving waters 
flowing through or immediately adjacent to the site and/or to site 
drainage features, storm drain inlets, and other conveyances to 
receiving waters. This documentation will help demonstrate how well the 
dewatering controls are working and will show where adaptations made 
after any problems have been found have resulted in improved pollutant 
control. See Parts 2.4, 4.3.2, 4.6.3, 5.1.5, and 5.2.2 of the permit.
    <bullet> Require turbidity benchmark monitoring for sites 
discharging dewatering water to sensitive waters--The 2022 CGP requires 
targeted sampling of dewatering discharges to sediment-impaired waters 
or waters designated as Tier 2, Tier 2.5 or Tier 3 waters (referred to 
in the permit as ``sensitive waters''). Under this new requirement, 
operators must collect at least one turbidity sample of the dewatering 
discharge each day a discharge occurs and compare the weekly average of 
the results with a benchmark turbidity value of 50 Nephelometric 
Turbidity Units (NTU). EPA derived this benchmark threshold based on a 
review of water quality standards for states and certain territories 
where EPA is the permitting authority, other NPDES dewatering permit 
conditions, literature related to the effects of turbidity on aquatic 
life, and public comments received during the comment period on the 
proposed 2022 CGP. EPA is also providing operators with the flexibility 
to request an alternate benchmark for their site that is higher than 50 
NTUs if the operator has information demonstrating that the higher 
number is supported by the receiving water's water quality standard for 
turbidity.
    For clarity, EPA emphasizes that the benchmark threshold for 
turbidity is not an effluent limit. As such, an exceedance of the 
benchmark threshold does not itself constitute a permit violation. 
Rather, the benchmark threshold acts as a warning sign to the operator 
that changes may be needed in the dewatering controls to improve 
pollutant removal and protect water quality. Accordingly, if the weekly 
average of the turbidity samples exceeds the benchmark (or an alternate 
benchmark based on state WQS), the operator is required to conduct 
follow-up corrective action designed to lower the turbidity levels in 
the discharge. The new corrective action provisions for a benchmark 
exceedance require the operator to immediately take all reasonable 
steps to minimize or prevent the discharge of pollutants until a 
solution can be implemented, including safely shutting off the 
dewatering discharge depending on the severity of the condition; 
determining whether the dewatering controls are operating effectively 
and whether they are causing the conditions; and making any necessary 
adjustments, repairs, or replacements to the dewatering controls to 
lower the turbidity levels or remove the visible plume or sheen. 
Operators are also required to report their weekly average turbidity 
results to EPA on a quarterly basis either electronically using the 
agency's NeT or the paper form in Appendix K, if EPA grants a waiver 
from electronic reporting.
    For the 2022 CGP, EPA is focused on turbidity monitoring for 
sensitive waters because sediment is a major cause of impairment of the 
nation's waters. Excessive sediment can impair waterbody uses such as 
aquatic life, navigation, recreation, and sources of drinking water. 
The monitoring requirements for dewatering discharges to sediment-
impaired waters will help ensure that such discharges do not further 
contribute excess pollutants to waters that are impaired for sediment 
and that existing uses are maintained and protected. Turbidity 
monitoring will provide operators with a baseline and comparable 
understanding of dewatering discharge quality, potential water quality 
problems, and dewatering control measure effectiveness. These data will 
supplement information provided through the daily inspections during 
dewatering activities and allow EPA to review the pollutant 
concentrations in dewatering discharges. See Part 3.3, 5.1.5, and 5.2.2 
of the permit.
    EPA includes an extensive discussion of the rationale behind the 
decision to include benchmark monitoring for dewatering discharges to 
sensitive waters in this permit and a more thorough discussion of the 
key parts of these requirements. See Section VI, Part 3.3 of the fact 
sheet. EPA has also provided additional technical assistance resources 
for operators to use in implementing these provisions. For example, EPA 
has developed a Monitoring and Inspection Guide for Construction 
Dewatering, available on EPA's website at https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit, which provides guidelines on how to correctly monitor for 
turbidity, determine if the weekly average exceeds the benchmark, and, 
if so, how to proceed with corrective action, as well as how to comply 
with the permit's dewatering inspection requirements. EPA has also 
compiled a list of all the current state and tribal turbidity water 
quality standards in effect in areas covered by the CGP, in the event 
that operators choose to pursue a request for an alternate benchmark. 
See List of State-Specific Water Quality Standards for Turbidity, 
available at https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit.
    <bullet> Update training requirements for personnel conducting site 
inspections--EPA finalized modifications to the training requirements 
for personnel conducting site inspections. These changes address 
problems found during many of the agency's own construction site 
inspections, in which EPA observed that while some permittees are 
properly conducting inspections and documenting their findings in 
accordance with the permit, a large number are not. To address this 
problem, EPA strengthened the training requirements for inspection 
personnel to ensure their competency to conduct such inspections. For 
this reason, the permit specifies that a qualified person carrying out 
inspections must either (1) have completed the new EPA construction 
inspection course developed for this permit and passed the exam, or (2) 
hold a current valid construction inspection certification or license 
from a program that covers essentially the same core material as EPA's 
inspection course. These new requirements are an extension of what the 
2017 CGP (and 2012 CGP) already required for the ``qualified person'' 
to conduct inspections. EPA is in the process of developing a free 
construction inspection training program that will be made available as 
an option to fulfill this new requirement to CGP permittees along with 
an accompanying exam that, if passed, will provide the person with 
documentation showing that they have successfully completed the EPA 
course. EPA is delaying the implementation of the requirement for one 
year from the permit effective date until the EPA training is 
available, which the agency anticipates will be in the summer or fall 
of 2022. For this reason, for construction projects that receive permit 
coverage prior to February 17, 2023, any personnel conducting site 
inspections must, at a minimum, be a person knowledgeable in the 
principles and practice of erosion and sediment

[[Page 3529]]

controls and pollution prevention, who possesses the appropriate skills 
and training to assess conditions at the construction site that could 
impact stormwater quality, and the appropriate skills and training to 
assess the effectiveness of any stormwater controls selected and 
installed to meet the requirements of the permit. Operators will be 
notified via email when the new 2022 CGP training is available. EPA 
will also announce the training on its 2022 CGP website (https://www.epa.gov/npdes/2022-construction-general-permit-cgp). Documentation 
that the relevant personnel has completed the EPA course and passed the 
exam will serve as proof that the operator has met the new inspection 
training requirements. Alternatively, if the relevant personnel elect 
to obtain the required training through a different program that covers 
the same basic principles, the operator will need to provide 
documentation that these personnel have successfully completed the 
program and are in possession of a current, valid certification or 
license. See Parts 4.1, 6.3, and 7.2.2 of the permit.
    <bullet> Specify requirements for documenting signs of 
sedimentation attributable to construction site discharges--EPA 
specifies in the permit that during an inspection, operators must check 
for signs of sediment deposition that are visible from the site and 
attributable to the operator's discharge, for example sand bars with no 
vegetation growing on top in adjacent receiving waters or in other 
constructed or natural site drainage features, or the buildup of 
sediment deposits on nearby streets, curbs, or open conveyance 
channels. This change is intended to address a frequent problem 
observed during EPA's compliance inspections that the permittee does 
not document obvious signs of sedimentation in the receiving water or 
in drainage features that convey to receiving waters. The intent of 
this addition is to emphasize that the site inspection is an ideal time 
to examine whether there are any obvious signs of sedimentation 
attributable to the site's discharges, and to require documentation of 
such sedimentation. EPA notes that the CGP already requires operators 
to check for signs of visible erosion and sedimentation (i.e., sediment 
deposits) that have occurred and are attributable to the operator's 
discharge at points of discharge and, if applicable, on the banks of 
any receiving waters. flowing within or immediately adjacent to the 
site. See Part 4.6.1.e of the permit.
    <bullet> Require photo documentation of adequate site 
stabilization--EPA's compliance inspectors have observed cases when 
operators prematurely terminate coverage under the CGP before the site 
is properly stabilized. The final permit adds a new provision requiring 
operators as part of their Notice of Termination (NOT) to take and 
submit photographs showing the stabilized areas of the site following 
completion of construction. EPA includes this requirement primarily as 
an additional level of documented evidence that operators are complying 
with the stabilization requirements prior to terminating coverage. 
Given the importance of stabilization to preventing continuing erosion 
and sedimentation, EPA views the additional photo documentation 
requirement to be a relatively inexpensive, effective, and 
straightforward way for the operator to show the agency that it has 
complied with the permit's final stabilization requirements. See Part 
8.2.1.a of the permit. Related to this new requirement, EPA added a 
check box to the NOT form to confirm that the operator has attached 
photographs as required by Part 8.2.1.a, including the date each 
photograph was taken, and a brief description of the area of the site 
captured by the photograph.
    <bullet> Add new Notice of Intent (NOI) questions--EPA added new 
questions to the NOI form that construction operators will use to 
obtain coverage under the 2022 CGP. One question asks operators if 
dewatering water will be discharged during the course of their permit 
coverage. While EPA suspects that most CGP-covered projects discharge 
dewatering water during construction, it is useful to the agency to 
know what the prevalence of this practice is at its permitted sites. 
This question will provide a straightforward way of compiling 
information broadly about permittees and enable EPA to know which 
operators may be affected by the permit's new dewatering requirements. 
A follow-up question asks operators who indicate that there will be a 
dewatering discharge to identify if their site is located on a current 
or former remediation site. This question is intended to provide EPA 
with additional information regarding sites and their potential for 
contaminated discharge. Another question asks the operator completing 
the NOI whether there are other operators who are also covered by the 
CGP at the same site and, if so, what their NPDES ID numbers are. 
Because the 2017 CGP NOI did not ask the operator to indicate whether 
there are multiple operators permitted for the same site, EPA is often 
unable to easily determine who all the permitted entities are at larger 
projects and whether there may be some parties that should have 
obtained permit coverage as operators but have yet to do so. The NOI 
form also includes a new question that requires the operator to confirm 
that any personnel conducting inspections at the site will meet the 
modified training requirements in Part 6 of the permit. EPA also 
finalized clarifying edits to better explain the types of documentation 
that are needed for several of the eligibility criteria. As mentioned 
in Section III.A in the summary of the ``Updated process for Endangered 
Species Act eligibility determinations,'' EPA has also reformatted the 
Endangered Species Protection section of the electronic NOI, which now 
consists of questions that were previously contained in narrative 
instructions in Appendix D along with updated links to available 
mapping tools to assist operators in determining whether any listed or 
threatened species are known to occur in the action area of their site.

IV. Provisions Not Finalized in the 2022 CGP

    After further consideration and evaluation of public comments 
received, the following changes that were considered in requests for 
comment in the proposed permit were not modified or finalized in the 
2022 CGP:
    1. Modifying the definition of operator--In the 2022 CGP, EPA 
retains the 2017 CGP definition of ``operator.'' EPA had requested 
comment on modifying the definition of operator to specifically include 
parties that determine acceptance of work and pay for work performed. 
Many public comments indicated that such a change was not necessary, 
and other comments requested additional details be added if the change 
was made. EPA has some concerns about the effects of changing the 
definition of operator and that it may become too specific or too 
prescriptive. The agency has determined, at this time, that the 
existing definition is broad enough to capture those parties intended 
to be addressed by the possible change. Due to the highly case-specific 
nature of construction projects, EPA prefers to rely on the language of 
the definition alone, rather than including more specific examples in 
the definition, and to leave the determination of which parties in any 
particular scenario are functioning as operators to a project-by-
project evaluation. However, the 2022 CGP Fact Sheet has been updated 
to describe examples of the types of

[[Page 3530]]

decision-making activities that EPA frequently finds equate to 
operational control within the permit's definition of operator. See 
Section VI, Part 1.1 of the permit fact sheet.
    2. Prohibition of dewatering discharges from contaminated sites--In 
the 2022 CGP, EPA includes a clarification that discharges of 
construction dewatering water must be uncontaminated. In the context of 
authorized non-stormwater discharges, this means that the discharge 
meets applicable water quality standards. EPA had proposed that 
dewatering water discharged from a contaminated site be considered a 
prohibited discharge under the CGP and had requested comment on whether 
additional sites should be prohibited from coverage under the permit 
due to the possibility of discharging dewatering water that is 
contaminated. Ultimately, EPA decided not to finalize this change based 
on the compelling public comments received that recommended against 
this approach and focused on the need for the permit to only authorize 
those dewatering discharges that are uncontaminated because they meet 
applicable water quality standards. Additionally, requiring dewatering 
discharges to be uncontaminated to be authorized under the CGP, as 
opposed to focusing exclusively on whether the dewatering discharge is 
extracted from a contaminated site, is consistent with how EPA 
authorizes other types of non-stormwater discharges that must be 
uncontaminated.
    3. Waiting Period for Discharge Authorization--In the 2022 CGP, EPA 
retains the 14-day authorization waiting period from the 2017 CGP. EPA 
had requested comment on whether to extend the waiting period between 
the operator's submittal of the NOI and the authorization to discharge 
from 14 days to 30 days to facilitate review of the site's eligibility 
related to the protection of endangered or threatened species. Almost 
all public comments opposed this change, citing that it would cause 
further delays to already tight construction deadlines. Comments also 
pointed out that the permit already allows EPA to delay discharge 
authorization (i.e., putting an NOI ``on hold'') if there are issues or 
concerns related to the project's discharges or the impact on 
threatened or endangered species, thereby providing the agency and 
other federal agencies additional time where needed to review a 
particular site.
    4. Stabilization deadlines--In the 2022 CGP, EPA retains the 
stabilization thresholds and deadlines from the 2017 CGP. EPA had 
requested feedback on whether the 5-acre disturbance threshold for 
stricter stabilization deadlines has had the intended effect of 
encouraging the phasing of construction disturbances. Some public 
comments recommended keeping the requirement as is, while others noted 
that the incentive of an additional seven days to stabilize is not 
enough of an incentive to phase disturbances. Other comments suggested 
alternatives to longer stabilization deadlines, such as increasing the 
disturbance threshold from 5 acres to 25 acres, requiring a phasing 
plan instead of a disturbance threshold, or establishing a disturbance 
threshold based on percentage of total land being developed. EPA had 
also requested comment on whether there was merit to capping total 
construction disturbances for all operators at 10 acres at any one 
time, similar to some state CGPs. EPA received mixed comments that both 
opposed and supported this approach. EPA did not receive sufficiently 
consistent feedback to justify making a change to the existing 
requirement or to remove the requirement entirely at this time. In 
future permits, EPA will continue to look for opportunities and 
alternatives to incentivize construction site sequencing.

V. Implementation Assistance

    Following issuance of the 2022 CGP, EPA plans to provide further 
assistance to construction site operators and other interested parties 
on various aspects of this new permit. The following activities or 
documents are planned:
    1. Final permit webinar--EPA will host a webinar on February 24 at 
1:00 p.m. (Eastern Time Zone) that will provide an overview of the 2022 
CGP and an opportunity for participants to ask questions. Those 
interested may register for the webinar at https://www.zoomgov.com/webinar/register/WN_DsNwf8dQTzC1pCk0HCyVnQ. Further details on the 
webinar, including a post-webinar recording, will be made available at 
https://www.epa.gov/npdes/2022-construction-general-permit-cgp.
    2. Updated SWPPP, Inspection Report, and Corrective Action Log 
templates--EPA provides the following updated templates that can be 
used to comply with 2022 CGP requirements: Construction Stormwater 
Pollution Prevention Plan (SWPPP) Template, Inspection Report Template, 
and Corrective Action Log Template. EPA has also developed a new 
Dewatering Inspection Report Template to assist operators in 
documenting information required for dewatering inspections in Part 
4.6.3 of the permit. See https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates for more details.
    3. eReporting resources--EPA plans to update or provide new 
tutorials and training materials for how to submit forms and data to 
EPA via NeT-CGP. These materials will be available at the NeT Help 
Center web page under ``EPA CGP'' located at https://epanet.zendesk.com/hc/en-us.
    4. Small residential lot resources--EPA plans to update the Small 
Residential Lot SWPPP template and guidance brochure to be consistent 
with the 2022 CGP requirements.
    5. Turbidity monitoring guide--EPA has developed a companion guide 
for the permit's new dewatering inspection and turbidity monitoring 
requirements. The document, Monitoring and Inspection Guide for 
Construction Dewatering, is available at https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit.
    6. List of Tier 2, 2.5, and 3 waters--EPA has updated the 2017 
CGP's list of Tier 2, 2.5, and 3 waters to assist operators in 
identifying whether their discharge may be subject to additional 
inspection, stabilization, and dewatering requirements. In past CGPs, 
this list was maintained as an appendix to the permit, but has been 
moved to https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates so that it is easier to find and update.
    7. List of state and tribal water quality standards for turbidity--
EPA has established a list of applicable turbidity standards that are 
currently in effect in the states and tribes, as well as the citations 
that can be used for the requests. See https://www.epa.gov/npdes/turbidity-benchmark-monitoring-dewatering-under-construction-general-permit.
    8. Seasonally Dry Period Locator Tool--EPA developed a tool that 
operators can use to if their construction project site is in an arid 
or semi-arid area, and if any months out of the year are considered 
seasonally dry. This is important for operators who may be subject to 
different inspection and stabilization schedules due to their location. 
The Seasonally Dry Period Locator Tool can be found at https://www.epa.gov/npdes/construction-general-permit-resources-tools-and-templates.

VI. Paperwork Reduction Act (PRA)

    The information collection activities in this permit have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the PRA. The

[[Page 3531]]

Information Collection Request (ICR) document that EPA prepared has 
been assigned EPA ICR No. 2686.01, OMB Control No. 2040-NEW. You can 
find a copy of the ICR in the docket for this permit (Docket ID No. 
EPA-HQ-OW-2021-0169), and it is briefly summarized here.
    CWA section 402 and the NPDES regulations require collection of 
information primarily used by permitting authorities, permittees 
(operators), and EPA to make NPDES permitting decisions. The burden and 
costs associated with the entire NPDES program are accounted in an 
approved ICR (EPA ICR number 0229.23, OMB control no. 2040-0004). 
Certain changes in this permit require revisions to the ICR to reflect 
changes to the forms and other information collection requirements. EPA 
is reflecting the paperwork burden and costs associated with this 
permit in a separate ICR instead of revising the existing ICR for the 
entire program for administrative reasons.
    EPA is collecting new information as part of the 2022 CGP. The NOI 
form was updated from the 2017 CGP to collect new information related 
to the following: Added one new question related to whether operators 
will be discharging construction dewatering water during the course of 
their permit coverage, and, if so, whether the site they are 
discharging from is a current or former federal or state remediation 
site; added questions about whether there are other operators who are 
also covered by the CGP at the same site and, if so, what their NPDES 
ID numbers are; added a check box for the operator to confirm that any 
personnel conducting inspections at the site will meet the modified 
training requirements in Part 6 of the permit; and added clarifying 
edits to better explain the types of documentation that are needed for 
several of the eligibility criteria related to endangered and 
threatened species and edits to provide links to updated available 
mapping tools to assist operators in determining whether any such 
species are known to occur in the vicinity of their project.
    EPA developed new electronic and paper turbidity monitoring forms 
for operators subject to the Part 3.3 requirements for dewatering 
discharges to sensitive waters to use in reporting their weekly average 
turbidity results. This reporting will occur on a quarterly basis until 
the dewatering discharge has been discontinued.
    EPA added one check box for operators who are submitting an ``NOT'' 
to confirm that the operator has attached photographs taken to document 
compliance with the final stabilization requirements pursuant to Part 
8.2.1.a.
    Respondents/affected entities: Construction operators in the areas 
where EPA is the NPDES permitting authority.
    Respondent's obligation to respond: Compliance with the CGP's 
information collection and reporting requirements is mandatory for CGP 
operators.
    Estimated number of respondents: EPA estimates that for the 
duration of the three-year ICR period approximately 7,800 operators 
will obtain coverage under the 2022 CGP, or 2,600 operators per year.
    Frequency of response: Response frequencies in the 2022 CGP vary 
from once per permit term to quarterly.
    Total estimated burden: EPA estimates that the information 
collection burden of the 2022 CGP is 142,511 hours per year. Burden is 
defined at 5 CFR 1320.3(b).
    Total estimated cost: EPA estimates that the final information 
collection cost of the 2022 CGP is $9,637,018 per year.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. EPA responded to 
ICR-related comments in the Response to Comments document for this 
final permit.

VII. 2022 CGP Incremental Cost Analysis and Future Cost-Benefit 
Considerations

    The cost analysis accompanying this final permit monetizes and 
quantifies certain incremental cost impacts of the final permit changes 
as compared to the 2017 CGP. EPA analyzed each change in the 2022 CGP 
considering the previous permit's (i.e., the 2017 CGP) requirements. 
The objective of this incremental cost analysis is to show where or to 
what extent the final 2022 CGP requirements impose an incremental 
increase in administrative and compliance costs (such as the cost to 
conduct site inspections or to prepare compliance reports) on operators 
in relation to costs that are already accounted for in the 2017 CGP.
    More broadly, EPA notes that additional unquantified costs and 
benefits result from this action. In developing the next CGP (or 
another NPDES general permit, as appropriate), EPA plans to estimate 
the broader impacts arising from these actions, including costs and 
benefits. Estimates under consideration may include: (1) Assessing how 
costs and benefits are attributed between the CGP and applicable water 
quality standards (including TMDLs) that may be in effect; (2) 
developing a new modeling framework to assess how regulated entities 
understand and implement pollutant controls related to existing and new 
permit obligations; (3) examining whether any underlying cost and 
benefit assumptions need to be updated; (4) examining more broadly how 
EPA can analyze benefits when developing permits; (5) developing more 
robust approaches to assessing uncertainties associated with the 
analytic approaches, including how to quantitatively assess 
uncertainties of key assumptions; and (6) developing a framework to 
analyze the effect of cooperative federalism.
    EPA expects the incremental cost impact on entities that will be 
covered under the 2022 CGP, including small businesses, to be minimal. 
EPA anticipates the approximate average annual incremental cost 
increase (compared to the 2017 CGP) will be $1,292 per year for each 
permitted project, and the total annual incremental cost to be 
$3,979,000 based on an estimated 3,080 projects per year. A copy of 
EPA's incremental cost analysis for the final permit, titled 
``Incremental Cost Impact Analysis for the 2022 Construction General 
Permit (CGP),'' is available in the docket (Docket ID No. EPA-HQ-OW-
2021-0169).

VIII. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations will be documented in the 
docket for this action (Docket ID No. EPA-HQ-OW-2021-0169).

IX. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    At proposal, EPA made the preliminary determination that this 
permit will not have disproportionately high and adverse human health 
or environmental effects on minority or low-income populations because 
the requirements in the permit apply equally to all construction 
projects that disturb one or more acres (or are part of a larger common 
plan of development that disturbs one or more acres) in areas where EPA 
is the permitting authority, and the erosion and sediment control 
provisions increase the level of

[[Page 3532]]

environmental protection for all affected populations over the 2017 
CGP. EPA requested comments on this preliminary determination and/or 
any modifications that EPA should make to the proposed permit to 
address environmental concerns. EPA received no comments directly 
applicable to the request for feedback. Therefore, in the absence of 
comments that contradict the preliminary determination, EPA finds that 
this action does not have disproportionately high and adverse human 
health or environmental effects on minority populations, low-income 
populations and/or indigenous peoples, as specified in Executive Order 
12898 (59 FR 7629, February 16, 1994).

X. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. With limited exceptions, 
EPA directly implements the NPDES program in Indian country as no tribe 
has yet obtained EPA authorization to administer the NPDES program. As 
a result, almost all eligible facilities with stormwater discharges 
from construction activities in Indian country fall under EPA's CGP or 
may be covered under an individual NPDES permit issued by EPA.
    EPA consulted with tribal officials under EPA's Policy on 
Consultation and Coordination with Indian Tribes early in the process 
of developing this permit to have meaningful and timely input into its 
development to gain an understanding of and, where necessary, to 
address the tribal implications of the permit. During this 
consultation, EPA conducted the following activities:
    <bullet> August 13, 2020--EPA initiated a tribal consultation and 
coordination process for this action by sending a ``Notice of 
Consultation and Coordination'' letter to all 573 federally recognized 
tribes. The letter invited tribal leaders and designated consultation 
representative(s) to participate in the tribal consultation and 
coordination process. The consultation period was from August 13, 2020 
to October 27, 2020.
    <bullet> September 9, 2020--EPA participated in the National Tribal 
Water Council monthly conference call and received written comments in 
response.
    <bullet> September 16, 2020--EPA led an informational webinar to 
provide an overview of the 2017 CGP and information regarding the 
ongoing consultation to the National Tribal Caucus. A total of 34 
tribal representatives attended.
    <bullet> June 24, 2021--EPA hosted an information webinar for 
tribal representatives on the proposed 2022 CGP. A total of 41 
participants attended.
    EPA received comments providing input from tribes. These comments 
are described in EPA's tribal consultation summary, which is can be 
accessed at https://www.epa.gov/dockets in the docket for this permit 
(refer to Docket ID No. EPA-HQ-OW-2021-0169). In addition, EPA received 
comments during the September 16, 2020 informational webinar and a 
September 9, 2020 National Tribal Water Council monthly conference call 
with EPA staff. EPA also received comments on the proposed permit, 
which the agency considered as part of the finalization of this permit. 
EPA's responses to comments can be found https://www.epa.gov/dockets in 
the docket for this permit (refer to Docket ID No. EPA-HQ-OW-2021-
0169).
    EPA also notes that as part of the finalization of this permit, the 
agency completed the Section 401 certification procedures with all 
applicable tribes where this permit applies (see Appendix B). EPA 
hosted two CWA Section 401 pre-filing meetings for tribes on the 
proposed 2022 CGP prior to requesting CWA Section 401 certification, as 
required. These meetings provided certifying tribes an opportunity to 
meet with EPA about the proposed permit before completing their 
certification. For the first meeting on June 3, 2021, there were 20 
tribal representatives who signed up to participate, and for the second 
meeting on June 17, 2021 there were 24 representatives who signed up. 
EPA plans to provide email notification to all tribes of the final 2022 
CGP.
    As required by section 7(a) of the Executive Order, the EPA's 
Tribal Consultation Official has certified that the requirements of the 
executive order have been met in a meaningful and timely manner. A copy 
of the certification is included in the docket for this action.

XI. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy. This is a renewal of a stormwater 
discharge permit for construction sites and was submitted to OMB for 
review.
    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

Deborah Szaro,
Acting Regional Administrator, EPA Region 1.
Javier Laureano,
Director, Water Division, EPA Region 2.
Carmen Guerrero-Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Catherine A. Libertz,
Director, Water Division, EPA Region 3.
Jeaneanne Gettle,
Director, Water Division, EPA Region 4.
Tera Fong,
Director, Water Division, EPA Region 5.
Charles W. Maguire,
Director, Water Division, EPA Region 6.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
Darcy O'Connor,
Director, Water Division, EPA Region 8.
Tom[aacute]s Torres,
Director, Water Division, EPA Region 9.
Daniel D. Opalski,
Director, Water Division, EPA Region 10.
[FR Doc. 2022-01258 Filed 1-21-22; 8:45 am]
BILLING CODE 6560-50-P


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