36490 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

ENVIRONMENTAL PROTECTION

AGENCY

[FRL–6119–7]

Reissuance of NPDES General Permits

for Storm Water DIscharges from

Construction Activities in Region 6

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Notice of final NPDES general

permits.

SUMMARY: Region 6 is issuing the final

National Pollutant Discharge

Elimination System (NPDES) general

permits for storm water discharges

associated with construction activity in

Region 6. EPA first issued permits for

these activities in September 1992.

These permits subsequently expired in

September 1997. Today’s permits,

which replace those expired permits,

are similar to the permits issued in

1992. The main changes from those

1992 permits are summarized in the

SUPPLEMENTARY INFORMATION section,

below.

ADDRESSES: The index to the

administrative record and the complete

administrative record are available at

the Water Docket, MC–4101, U.S. EPA,

401 M Street SW, Washington, DC

20460. Copies of information in the

record are available upon request. A

reasonable fee may be charged for

copying. The index to the

administrative record is also available

from EPA Region 6, Water Quality

Protection Division, Customer Service

Branch (6WQ–CA) 1445 Ross Avenue,

Suite 1200, Dallas, TX 75202.

DATES: These general permits shall be

effective on July 6, 1998.

NOTICE OF INTENT: A NOTICE OF INTENT

(NOI) FORM MUST BE SUBMITTED TO OBTAIN

COVERAGE FOR STORM WATER DISCHARGES

UNDER THESE PERMITS. THE NOI FORM IS

GIVEN IN ADDENDUM C OF THESE PERMITS.

DEADLINES FOR SUBMITTAL OF NOI’S ARE

PROVIDED IN PART II.A OF THE PERMITS.

FOR FURTHER INFORMATION CONTACT: For

further information on the NPDES

Construction General Permits, call the

EPA Region 6 Storm Water Hotline at 1–

800–245–6510. Information is also

available through the EPA Region 6’s

storm water web site at ‘‘http://

www.epa.gov/region6/sw/ and on the

PIPES bulletin board web site at ‘‘http:/

/pipes.ehsg.saic.com/pipes.htm’’.

SUPPLEMENTARY INFORMATION:

Contents

I. Introduction

II. Answers to Common Questions

III. Section 401 Certification and Coastal

Zone Management Act

IV. Endangered Species Protection

V. Historic Properties Protection

VI. Regulatory Review (Executive Order

12866)

VII. Unfunded Mandates Reform Act

VIII. Paperwork Reduction Act

IX. Regulatory Flexibility Act

I. Introduction

The United States Environmental

Protection Agency Region 6 office is

reissuing the general permits which

authorizes the discharge storm water

associated with construction activity. As

used in this permit, ‘‘storm water

associated with construction activity’’

means construction activity disturbing

at least five acres, or construction

activity disturbing less than five acres

which is part of a larger common plan

of development or sale with the

potential to disturb cumulatively five or

more acres (See 40 CFR

122.26(b)(14)(x)).

These permits replace the previous

Baseline Construction General Permits

which were issued for a five-year term

in September 1992. The most significant

changes from the 1992 permits are:

fl New conditions to protect listed

endangered and threatened species and

critical habitats;

fl Expanded coverage to

construction sites under five acres of

disturbed land which are not part of a

larger common plan of development or

sale when an operator has been

designated by the Director to obtain

coverage.

fl A requirement to post at the

construction site the confirmation of

permit coverage (the permit number or

copy of the Notice of Intent (NOI) if a

permit number has not yet been

assigned) including a brief description

of the project;

fl Storm water pollution prevention

plan performance objectives have been

added.

These general permits for storm water

discharges associated with construction

activity was proposed on June 2, 1997

(62 FR 29786), and are hereby issued for

the following areas in Region 6: The

States of New Mexico and Texas; Indian

Country lands in Louisiana, Oklahoma,

Texas and New Mexico (except Navajo

Reservation Lands and Ute Mountain

Reservation Lands); and oil and gas

construction in the State of Oklahoma.

II. Answers to Common Questions

In this section, EPA provides answers

to some of the more common questions

on the construction storm water

permitting program. These answers are

fairly broad and may not take into

account all scenarios possible at

construction sites. More details on these

issues are provided at 63 FR 7858

(February 17, 1998) in the ‘‘Summary of

Responses to Comments on the

Proposed Permit’’ section of the

reissuance of NPDES General Permits

From Construction Activities for

Regions 1, 2, 3, 7, 8, 9 and 10.

How do I Know if I Need a Permit?

You need a storm water permit if you

can be considered an ‘‘operator’’ of the

construction activity that would result

in the ‘‘discharge of storm water

associated with construction activity.’’

You must become a permittee if you

meet either of the following two criteria:

fl You have operational control of

construction project plans and

specifications, including the ability to

make modifications to those plans and

specifications; or

fl You have day-to-day operational

control of those activities at a project

which are necessary to ensure

compliance with a storm water

pollution prevention plan (SWPPP) for

the site or other permit conditions (e.g.,

you are authorized to direct workers at

a site to carry out activities required by

the SWPPP or comply with other permit

conditions).

There may be more than one party at

a site performing the tasks relating to

‘‘operational control’’ as defined above.

Depending on the site and the

relationship between the parties (e.g.,

owner, developer), there can either be a

single party acting as site operator and

consequently be responsible for

obtaining permit coverage, or there can

be two or more operators with all

needing permit coverage. The following

are three general operator scenarios

(variations on any of the three are

possible as the number of ‘‘owners’’ and

contractors increases):

fl Owner as Sole Permittee. The

property owner designs the structures

for the site, develops and implements

the SWPPP, and serves as general

contractor (or has an on-site

representative with full authority to

direct day-to-day operations). He may be

the only party that needs a permit, in

which case everyone else on the site

may be considered subcontractors and

not need permit coverage.

fl Contractor as Sole Permittee. The

property owner hires a construction

company to design the project, prepare

the SWPPP, and supervise

implementation of the plan and

compliance with the permit (e.g., a

‘‘turnkey’’ project). Here, the contractor

would be the only party needing a

permit. It is under this scenario that an

individual having a personal residence

built for his own use (e.g., not those to

be sold for profit or used as rental

property) would not be considered an
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36491

operator. EPA believes that the general

contractor, being a professional in the

building industry, should be the entity

rather than the individual who is better

equipped to meet the requirements of

both applying for permit coverage and

developing and properly implementing

a SWPPP. However, individuals would

meet the definition of ‘‘operator’’ and

require permit coverage in instances

where they perform general contracting

duties for construction of their personal

residences.

fl Owner and Contractor as CoPermittees. The owner retains control

over any changes to site plans, SWPPPs,

or storm water conveyance or control

designs; but the contractor is

responsible for overseeing actual earth

disturbing activities and daily

implementation of SWPPP and other

permit conditions. In this case, both

parties may need coverage.

However, you are probably not an

operator and subsequently do not need

permit coverage if:

fl You are a subcontractor hired by,

and under the supervision of, the owner

or a general contractor (i.e., if the

contractor directs your activities on-site,

you probably are not an operator); or

fl your activities on site result in

earth disturbance and you are not

legally a subcontractor, but a SWPPP

specifically identifies someone other

than you (or your subcontractor) as the

party having operational control to

address the impacts your activities may

have on storm water quality (i.e.,

another operator has assumed

responsibility for the impacts of your

construction activities). This particular

provision will apply to most utility

service line installations. For further

information concerning whether utility

service line installations meet the

definition of operator and require

permit coverage, see the discussion

under ‘‘Installation of Utility Service

Lines’’ in Section VIII, Summary

Response to Public Comments of the

Fact Sheet.

In addition, for purposes of this

permit and determining who is an

operator, ‘‘owner’’ refers to the party

that owns the structure being built.

Ownership of the land where

construction is occurring does not

necessarily imply the property owner is

an operator (e.g., a landowner whose

property is being disturbed by

construction of a gas pipeline).

Likewise, if the erection of a structure

has been contracted for, but possession

of the title or lease to the land or

structure is not to occur until after

construction, the would-be owner may

not be considered an operator (e.g.,

having a house built by a residential

homebuilder).

My Project Will Disturb Less Than Five

Acres, but it May Be Part of a ‘‘Larger

Common Plan of Development or Sale.’’

How Can I Tell and What Must I do?

If your smaller project is part of a

larger common plan of development or

sale that collectively will disturb five or

more acres (e.g., you are building on six

half-acre residential lots in a 10-acre

development or are putting in a parking

lot in a large retail center) you need

permit coverage. The ‘‘plan’’ in a

common plan of development or sale is

broadly defined as any announcement

or piece of documentation (including a

sign, public notice or hearing, sales

pitch, advertisement, drawing, permit

application, zoning request, computer

design, etc.) or physical demarcation

(including boundary signs, lot stakes,

surveyor markings, etc.) indicating

construction activities may occur on a

specific plot. You must still meet the

definition of operator in order to be

required to get permit coverage,

regardless of the acreage you personally

disturb. As a subcontractor, it is

unlikely you would need a permit.

For some situations where less than

five acres of the original common plan

of development remain undeveloped, a

permit may not be needed for the

construction projects ‘‘filling in’’ the last

parts of the common plan of

development. A case in which a permit

would not be needed is where several

empty lots totaling less than five acres

remain after the rest of the project had

been completed, providing stabilization

had also been completed for the entire

project. However, if the total area of all

the undeveloped lots in the original

common plan of development was more

than five acres, a permit would be

needed.

When Can You Consider Future

Construction on a Property To Be Part

of a Separate Plan of Development or

Sale?

In many cases, a common plan of

development or sale consists of many

small construction projects that

collectively add up to five (5) or more

acres of total disturbed land. For

example, an original common plan of

development for a residential

subdivision might lay out the streets,

house lots, and areas for parks, schools

and commercial development that the

developer plans to build or sell to others

for development. All these areas would

remain part of the common plan of

development or sale until the intended

construction occurs. After this initial

plan is completed for a particular

parcel, any subsequent development or

redevelopment of that parcel would be

regarded as a new plan of development,

and would then be subject to the fiveacre cutoff for storm water permitting.

What Must I do to Satisfy The Permit

Eligibility Requirements Related to

Endangered Species?

In order to be eligible for this permit,

you must follow the procedures and

examples found in Addendum A for the

protection of endangered species. You

cannot submit your NOI until you are

able to certify your eligibility for the

permit. Enough lead time should be

built into your project schedule to

accomplish these procedures. If another

operator has certified eligibility for the

project (or at least the portion of the

project you will be working on) in his

NOI, you will usually be able to rely on

his certification of project eligibility and

not have to repeat the process. EPA

created this ‘‘coat tail’’ eligibility option

for protection of endangered species to

allow the site developer/owner to obtain

up-front ‘‘clearance’’ for a project,

thereby avoiding duplication of effort by

his contractors and unnecessary delays

in construction.

What Does the Permit Require

Regarding Historic Preservation?

Today’s permit does not currently

impose requirements related to historic

preservation, though EPA may modify

the permit at a later date after further

discussions with the Advisory Council

on Historic Preservation. Therefore,

under today’s permit, EPA will conduct

consultations as it did under the preexisting Baseline Construction General

Permit on a case-by-case basis as

needed. Removal of the proposed permit

provisions related to historic

preservation in no way relieves

applicants and permittees of their

obligations to comply with applicable

State, Tribal or local laws for the

preservation of historic properties. EPA

reminds permittees that according to

section 110(k) of the National Historic

Preservation Act (NHPA), an intentional

action to significantly adversely affect

historic resources with intent to avoid

Federal historic preservation

requirements may jeopardize future

permit coverage for such a permittee.

How Many Notices of Intent (NOIs) Must

I Submit? Where and When Are They

Sent?

You only need to submit one NOI to

cover all activities on any one common

plan of development or sale. The site

map you develop for the storm water

pollution prevention plan identifies

which parts of the overall project are
36492 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

under your control. For example, if you

are a homebuilder in a residential

development, you need submit only one

NOI to cover all your lots, even if they

are on opposite sides of the

development.

The NOI must be postmarked two

days before you begin work on site. The

address for submitting NOIs is found in

the instruction portion of the NOI form

and in Part II.C. of the CGP. You must

also look in Part X of the permit to

determine if copies of the NOI form are

to be sent to a State or Indian Tribe.

If I Am on an ongoing Construction

Project, do I Have to Fill in a New NOI

To Be Covered by the Permit?

Yes, if you are on an ongoing

construction project, a construction

project which started prior to the

effective date of this permit, you must

complete a revised NOI Form (EPA

Form 3510–9) to obtain coverage under

this permit. However, applicants who

have previously submitted an NOI for

permit coverage prior to the effective

date of this permit have the option to

leave the section regarding Addendum

A on endangered species blank unless

there is a potential impact on

endangered species or their habitat.

How do I Know Which Permit

Conditions Apply to Me?

You are responsible for complying

with all parts of the permit that are

applicable to the construction activities

you perform. Part III.E. of the permit

defines the roles of various operators at

a site. In addition, several States and

Indian Tribes require alternative or

additional permit conditions, and these

can be found in Part X of the permit.

Do I Have Flexibility in Preparing the

Storm Water Pollution Prevention Plan

(SWPPP) and Selecting Best

Management Practices (BMPs) for My

Site?

Storm water pollution prevention

plan requirements were designed to

allow maximum flexibility to develop

the needed storm water controls based

on the specifics of the site. Some of the

factors you might consider include:

more stringent local development

requirements and/or building codes;

precipitation patterns for the area at the

time the project will be underway; soil

types; slopes; layout of structures for the

site; sensitivity of nearby water bodies;

safety concerns of the storm water

controls (e.g., potential hazards of water

in storm water retention ponds to the

safety of children; the potential of

drawing birds to retention ponds and

the hazards they pose to aircraft); and

coordination with other site operators.

Must Every Permittee Have His Own

Separate SWPPP or Is a Joint Plan

Allowed?

The only requirement is that there be

at least one SWPPP for a site which

incorporates the required elements for

all operators, but there can be separate

plans if individual permittees so desire.

EPA encourages permittees to explore

possible cost savings by having a joint

SWPPP for several operators. For

example, the prime developer could

assume the inspection responsibilities

for the entire site, while each

homebuilder shares in the installation

and maintenance of sediment traps

serving common areas.

If a Project Will Not Be Completed

Before This Permit Expires, How Can I

Keep Permit Coverage?

If the permit is reissued or replaced

with a new one before the current one

expires, you will need to comply with

whatever conditions the new permit

requires in order to transition coverage

from the old permit. This usually

includes submitting a new NOI. If the

permit expires before a replacement

permit can be issued, the permit will be

administratively ‘‘continued.’’ You are

automatically covered under the

continued permit, without needing to

submit anything to EPA, until the

earliest of:

fl The permit being reissued or

replaced;

fl Submittal of a Notice of

Termination (NOT);

fl Issuance of an individual permit

for your activity; or

fl The Director issues a formal

decision not to reissue the permit, at

which time you must seek coverage

under an alternative permit.

When Can I Terminate Permit Coverage?

Can I Terminate Coverage (i.e., Liability

for Permit Compliance) Before the Entire

Project Is Finished?

You can submit an NOT for your

portion of a site providing: (1) You have

achieved final stabilization of the

portion of the site for which you are a

permittee (including, if applicable,

returning agricultural land to its preconstruction agricultural use); (2)

another operator/permittee has assumed

control according to Part VI.G.2.c. of the

permit over all areas of the site that have

not been finally stabilized which you

were responsible for (for example, a

developer can pass permit responsibility

for lots in a subdivision to the

homebuilder who purchases those lots,

providing the homebuilder has filed his

own NOI); or (3) for residential

construction only, you have completed

temporary stabilization and the

residence has been transferred to the

homeowner.

III. Section 401 Certification and

Coastal Zone Management Act

Section 401 of the Clean Water Act

states that EPA may not issue an NPDES

permit until the State in which the

discharge will originate grants or waives

certification to ensure compliance with

appropriate requirements of the Act and

State law. The Region has received

section 401 certification from the

appropriate States and Indian Tribes for

all facilities covered by today’s permits.

Additional permit requirements were

required as a condition of certification

by the State of Texas and by the Pueblos

of Isleta, Nambe, Picuris, Pojoaque,

Sandia, Tesuque and Santa Clara in

New Mexico. These additional permit

requirements are contained in Part X of

the permits.

The Coastal Zone Management Act

(CZMA) requires all Federal permitting

actions to be reviewed for consistency

with each approved State Coastal Zone

Management Plan. Texas is the only

State covered by these permits that has

an approved Coastal Zone Management

Plan. EPA Region 6 has determined that

the permit is consistent with the Texas

Coastal Zone Management Plan. The

Texas Coastal Zone Management Plan

procedures for Federal consistency with

Coastal Management Program goals and

policies (31 TAC 506.12) state that if an

activity requiring a state agency or

subdivision action above thresholds

requires an equivalent Federal permit,

the Texas Coastal Coordination Council

may determine the consistency of the

state agency/subdivision action or the

Federal permit, but not both. Permittees

whose construction projects are located

within the boundary of the Texas

Coastal Management Program above

thresholds will be required, as a part of

pre-construction project approval, to

have a consistency review by the Texas

Council. An additional consistency

review by the Texas Coastal

Coordination Council of the storm water

discharges from these construction

projects covered by today’s permit is,

therefore, not required.

IV. Endangered Species Protection

A. Background

The Construction General Permit

(CGP) also contains conditions to ensure

the activities regulated by it are

protective of species that are listed

under the Endangered Species Act

(ESA) as endangered or threatened

(known as ‘‘listed species’’), and listed

species habitat that is designated under
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36493

the ESA as critical (‘‘critical habitat’’). In

addition, the permit’s coverage does not

extend to discharges and dischargerelated activities likely to jeopardize the

continued existence of species proposed

but not yet listed as endangered or

threatened or result in the adverse

modification of habitat proposed to be

designated critical habitat.

The ESA places several different

requirements on activities covered by

the CGP. First, section 9 of the ESA and

the ESA implementing regulations

generally prohibit any person from

‘‘taking’’ a listed animal species (e.g.,

harassing or harming it) unless the take

is authorized under the ESA. This

prohibition applies to all entities and

includes EPA, permit applicants,

permittees and the public at large.

Second, section 7(a)(2) of the ESA

requires that Federal agencies consult

with the Fish and Wildlife Service

(FWS) or the National Marine Fisheries

Service (NMFS) (‘‘the Services’’) to

insure that any action authorized,

funded or carried out by them (also

known as ‘‘agency actions’’) are not

likely to jeopardize the continued

existence of any listed species or result

in the destruction or adverse

modification of critical habitat.

Jeopardizing the continued existence of

a listed species means to engage in an

action that reasonably would be

expected, directly or indirectly, to

reduce appreciably the likelihood of

both the survival and recovery of a

listed species in the wild by reducing

the reproduction, numbers or

distribution of that species (See 40 CFR

402.02).

The ESA section 7 implementing

regulations at 50 CFR 402 apply this

consultation requirement to any action

authorized by a Federal agency that may

affect listed species or critical habitat,

including permits. This effect, among

other things, can be beneficial,

detrimental, direct and indirect. The

issuance of the CGP by EPA is thus

subject to the ESA section 7(a)(2)

consultation requirements. Finally, ESA

section 7(a)(1) directs Federal agencies

to use their authority to further the

purposes of the ESA by carrying out

programs for the conservation of listed

species, and section 7(a)(4) directs

Federal agencies to confer with the

Services on Agency actions likely to

jeopardize the existence of species

proposed but not yet finally listed or

result in the adverse modification of

critical habitat proposed to be

designated.

The ESA regulations provide for two

types of consultation: formal and

informal. Informal consultation is an

optional process that includes

discussions, correspondence, etc.

between the Services and a Federal

agency or a designated non-Federal

representative (NFR) to determine

whether a Federal action is likely to

have an adverse effect on listed species

or critical habitat. During informal

consultation the Services may suggest

modifications to the action that a

Federal agency, permit applicant or

non-Federal representative could

implement to avoid likely adverse

effects to listed species or critical

habitat. If adverse effects are likely and

those effects cannot be addressed

through informal consultation, then

formal consultation generally occurs.

Also of relevance for the CGP are ESA

section 10 incidental taking permits.

Section 10 of the ESA allows persons,

including non-Federal entities to

incidentally take listed animal species,

where otherwise prohibited, through the

issuance of a permit after development

of a habitat conservation plan (HCP).

These procedures were developed to

allow non-Federal entities such as

developers to, among other things, alter

habitat without incurring takings

liability where take is minimized to the

extent practicable.

B. Conditions in the June 2, 1997

Proposed Permit To Protect Species and

Critical Habitat

The CGP was proposed with a number

of conditions to ensure that storm water

discharges and best management

practices (BMPs) to control storm water

runoff were protective of listed species

or critical habitat. Specifically, coverage

under the proposed CGP would be

granted only under the following

circumstances:

1. An applicant’s storm water

discharges or BMPs to control storm

water runoff were not likely to adversely

affect listed species (identified in

Addendum A of the permit) or critical

habitat; or

2. The applicant’s activity was

previously authorized under § 7 or § 10

of the Endangered Species Act (ESA)

and that authorization addressed storm

water discharges and BMPs to control

storm water runoff; or

3. The applicant’s activity was

considered as part of a larger, more

comprehensive assessment of impacts

on endangered and threatened species

under § 7 or § 10 of the ESA which

accounted for storm water discharges

and BMPs to control storm water runoff;

or

4. Consultation under § 7 of the ESA

was conducted for the applicant’s

activity which resulted in either a no

jeopardy opinion or a written

concurrence on a finding of no

likelihood of adverse effects; or

5. The applicant’s activity was

considered as part of a larger, more

comprehensive site-specific assessment

of impacts on endangered and

threatened species by the owner or other

operator of the site and that permittee

certified eligibility under items 1., 2., 3.

or 4. above.

The proposal required that applicants

assess the impacts of their ‘‘storm water

discharges’’ and ‘‘BMPs to control storm

water runoff’’ on listed species and

critical habitat that are located ‘‘in

proximity’’ to the those discharges and

BMPs when developing Storm Water

Pollution Prevention Plans (SWPPPs) as

part of the application process. The

proposed CGP also required applicants

to include measures in SWPPPs to

protect listed species and critical

habitat. ‘‘In proximity’’ was defined in

Addendum A to include species:

fl Located in the path or immediate

area through which or over which

contaminated point source storm water

flows from construction activities to the

point of discharge into the receiving

water;

fl Located in the immediate vicinity

of, or nearby, the point of discharge into

receiving waters; or

fl Located in the area of a site where

storm water BMPs are planned or are to

be constructed.

EPA also solicited comment on

whether the area or scope of impacts to

be considered by applicants should be

broadened to encompass listed species

found on the entire construction site

and not just those species found ‘‘in

proximity’’ as currently defined in

Addendum A.

Failure by permittees to abide by

measures in their SWPPPs to protect

species and critical habitat would

invalidate permit coverage. Attached to

the proposed permits were instructions

(Addendum A) to assist permit

applicants in making this inquiry. The

proposal indicated that a county-bycounty species list would be included in

Addendum A of the final permit to

assist applicants in determining if listed

species might be ‘‘in proximity’’ to

storm water discharges and BMPs. EPA

did not provide a draft species list in

proposed Addendum A. Instead, EPA

referred commenters to a similar species

list that was used for an earlier EPAissued storm water permit, the

Multisector Storm Water General

Permit, that was issued on September

29, 1995 (See 62 FR 29792, note 12, June

2, 1997).
36494 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

C. Final CGP Conditions To Protect

Listed Species

On April 28, 1997, EPA entered into

formal consultation with the Fish and

Wildlife Service (FWS) and the National

Marine Fisheries Service (NMFS) (the

‘‘Services’’) for issuance of the CGP.

After discussions with the Services,

EPA terminated formal consultation and

entered into ESA section 7 informal

consultation and conferencing with the

Fish and Wildlife Service (FWS) and the

National Fisheries Service Services

(NMFS) on June 11, 1997. On November

4, and 26, 1997, EPA completed ESA

informal consultation when NMFS and

FWS provided their respective

concurrences with EPA’s finding that

issuance of the CGP was not likely to

adversely affect listed species or critical

habitat. However, the negotiations on

CGP did not consider ongoing

construction projects; i.e., construction

projects which started prior to the

effective date of these permits.

In January, 1998, Region 6 decided to

address ESA certification issues for

ongoing construction projects before

finalizing the permit. In February, 1998,

EPA Region 6 began a supplemental

informal consultation with FWS and

NMFS on language to clarify

requirements for ongoing construction

activity. EPA Region 6 completed ESA

informal section 7 consultation and

conferencing when FWS and NMFS

provided their concurrences that

issuance of these permits is unlikely to

adversely affect listed species or critical

habitat on June 9, and 15, respectively.

With the completion of these

consultations, EPA Region 6 has

reduced the administrative burden

associated with obtaining permit

coverage for ongoing construction

projects for the federal agencies and the

regulated community.

Based on that consultation and in

consideration of comments received on

the June 2, 1997, proposal, EPA has

placed the following conditions in the

permit to protect listed species and

critical habitat (See Part I.B.3.e).

Coverage under the CGP is available for

construction projects only if:

a. The storm water discharges and

storm water discharge-related activities

are not likely to adversely affect listed

species or critical habitat (Part

I.B.3.e.(2)(a)); or

b. Formal or informal consultation

with the Services under section 7 of the

Endangered Species Act (ESA) has been

concluded which addresses the effects

of the applicant’s storm water

discharges and storm water dischargerelated activities on listed species and

critical habitat and the consultation

results in either a no jeopardy opinion

or a written concurrence by the

Service(s) on a finding that the

applicant’s storm water discharges and

storm water discharge-related activities

are not likely to adversely affect listed

species or critical habitat. A section 7

consultation may occur in the context of

another Federal on (e.g., an ESA section

7 consultation was performed for

issuance of a wetlands dredge and fill

permit for the project, or as part of a

National Environmental Policy Act

[NEPA] review); or

c. The applicant’s construction

activities are covered by a permit under

section 10 of the ESA and that permit

addresses the effects of the applicant’s

storm water discharges and storm water

discharge-related activities on listed

species and critical habitat (Part

I.B.3.e.(2)(c)); or

d. The applicant’s storm water

discharges and storm water dischargerelated activities were already addressed

in another operator’s certification of

eligibility under Part I.B.3.e.(2)(a), (b), or

(c) which included the applicant’s

project area. By certifying eligibility

under Part I.B.3.e.(2)(d), the applicant

agrees to comply with any measures or

controls upon which the other

operator’s certification under Part

I.B.3.e.(2)(a), (b) or (c) was based.

The CGP requires that applicants

consider effects to listed species and

critical habitat when developing

SWPPPs and require that those plans

include measures, as appropriate, to

protect those resources. Failure by

permittees to abide by measures in the

SWPPPs to protect species and critical

habitat may invalidate permit coverage.

This permit requires all projects

commencing construction after the

effective date of this permit, to follow

the procedures provided in Addendum

A of the permit when applying for

permit coverage. The Director may also

require any existing permittee or

applicant to provide documentation of

eligibility for this permit using the

procedures in Addendum A, where EPA

or the Fish and Wildlife Services

determine that there is a potential

impaction on endangered or threatened

species or a critical habitat. Nothing in

the permit relieves applicants which are

under construction as of the effective

date of this permit of their obligations

they may have to comply with any

requirements of the Endangered Species

Act.

Addendum A contains instructions to

assist permit applicants in making this

inquiry. Those instructions require that

applicants ascertain: (1) If their

construction activities would occur in

critical habitat; (2) whether listed

species are in the project area; and (3)

whether the applicant’s storm water

discharges and discharge-related

activities are likely to adversely affect

listed species or critical habitat. If

adverse effects are likely, then

applicants would have to meet one of

the eligibility requirements of Part

I.B.3.e.(2)(b)–(d) (paragraphs b., c., and

d. above) to receive permit coverage.

‘‘Discharge-related activities’’ include

activities which cause point source

storm water pollutant discharges

including but not limited to excavation,

site development, and other surface

disturbing activities, and measures to

control, reduce or prevent storm water

pollution including the siting,

construction and operation of BMPs.

The ‘‘project area’’ includes:

1. Area(s) on the construction site

where storm water discharges originate

and flow towards the point of discharge

into the receiving waters (this includes

the entire area or areas where

excavation, site development, or other

ground disturbance activities occur),

and the immediate vicinity;

2. Area(s) where storm water

discharges flow from the construction

site to the point of discharge into

receiving waters;

3. Area(s) where storm water from

construction activities discharges into

the receiving waters and the area(s) in

the immediate vicinity of the point of

discharge; and

4. Area(s) where storm water BMPs

will be constructed and operated,

including any area(s) where storm water

flows to and from BMPs.

The project area will vary with the

size and structure of the construction

activity, the nature and quantity of the

storm water discharges, the measures

(including BMPs) to control storm water

runoff, and the type of receiving waters.

Addendum A also contains

information on where to find

information on listed and proposed

species organized by State and county to

assist applicants in determining if

further inquiry is necessary as to

whether listed species are present in the

project area. Applicants can check the

Office of Wastewater Management’s

website (http://www.epa.gov/owm).

CGP applicants can also get updated

species information for their county by

calling the appropriate FWS or NMFS

office. EPA Region 6 applicants can also

contact the EPA Region 6 Storm Water

Hotline (1–800–245–6510) for updated

species information.

The CGP also requires that applicants

comply with any conditions imposed

under the eligibility requirements of

Part I.B.3.e.(2)a., b., c., or d. above to

remain eligible for coverage under this
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36495

permit. Such conditions must be

incorporated in the applicant’s SWPPP.

The CGP does not authorize any

prohibited take (as defined under

section 3 of the ESA and 50 CFR 17.3)

of endangered or threatened species

unless such takes are authorized under

sections 7 or 10 of the ESA. The CGP

does not authorize any storm water

discharges or storm water dischargerelated activities that are likely to

jeopardize the continued existence of

any species that are listed or proposed

to be listed as endangered or threatened

under the ESA or result in the adverse

modification or destruction of habitat

that is designated or proposed to be

designated as critical under the ESA.

It is EPA’s intention to provide permit

applicants with the greatest possible

flexibility in meeting permit

requirements for protecting listed

species and critical habitat. Thus, EPA

is allowing applicants to use either

section 7 or section 10 ESA mechanisms

to address situations where adverse

effects are likely (See Part I.B.3.e.(2)(b)

and (c)). Also, to give applicants

additional flexibility in meeting the Part

I.B.3.e. eligibility requirements and with

the timing of informal consultations, the

permit automatically designates CGP

applicants as non-Federal

representatives for the purpose of

carrying out informal consultation.

However, EPA notes that meeting ESA

requirements raises difficult

implementation issues on how to best

ensure that the permits are protective of

listed species and critical habitats

without unduly burdening permit

applicants, permittees, and State, local,

and Federal governmental entities.

Thus, EPA intends in the future to

review those permit conditions and

procedures that relate to the ESA and

the protection of historic resources to

see how well that goal has been

achieved and may revise the permits if

necessary to better achieve that goal.

V. Historic Property Protection

A. Background

The National Historic Preservation

Act of 1966, as amended, (NHPA)

establishes a national historic

preservation program for the

identification and protection of historic

properties and resources. Under the

NHPA, identification of historic

properties is coordinated by the State

Historic Preservation Officers (SHPOs),

Tribal Historic Preservation Officers

(THPOs) or other Tribal Representatives

(in the absence of a THPO). Section 106

of the NHPA requires Federal agencies

to take into account the effects of their

actions on historic properties that are

listed or eligible for listing on the

National Register of Historic Places and

to seek comments from the Advisory

Council on Historic Preservation

(ACHP). The permit was proposed with

a number of conditions pertaining to the

consideration of historic properties.

EPA has decided to not include those

conditions because the ACHP and the

National Conference of State Historic

Preservation Officers (NCSHPO) have

requested that EPA not include such

conditions in the final permit at this

time. The ACHP and the NCSHPO have

recommended that EPA issue the permit

but recommend that EPA continue

working with them and Tribes regarding

the possible development of a more

comprehensive and efficient approach

to ensure that effects to historic

properties are given appropriate

consideration while ensuring undue

burdens are not imposed on applicants

and regulatory authorities. EPA plans to

continue working with the ACHP,

NCSHPO and Tribes on this effort and

may modify the permit to incorporate

procedures regarding the protection of

historic resources at a later date.

B. Future CGP Conditions To Protect or

Consider Effects to Historic Properties

In response to comments received on

the permit proposal and because the

Agency is still discussing historic

preservation with the Advisory Council

on Historic Preservation (ACHP), the

final permit reserves permit

requirements related to historic

preservation. Today’s final permit does

not include the eligibility restrictions

and evaluation requirements from the

proposed permit. After future

discussions with the ACHP, EPA may

modify the permit to reflect those

discussions.

VI. Regulatory Review (Executive Order

12866)

Under Executive Order 12866, (58 FR

51735 [October 4, 1993]) the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines ‘‘significant

regulatory action’’ as one that is likely

to result in a rule that may have an

annual effect on the economy of $100

million or more or adversely affect in a

material way the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local or Tribal

governments or communities; create a

serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; materially

alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or raise novel legal or

policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in the Executive

Order. It has been determined that this

re-issued general permit is not a

‘‘significant regulatory action’’ under

the terms of Executive Order 12866.

VII. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Pub. L.

104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and Tribal governments and the private

sector. Under UMRA section 202, EPA

generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and Tribal governments, in the

aggregate, or to the private sector, of

$100 million or more in any one year.

Before promulgating an EPA rule for

which a written statement is needed,

UMRA § 205 generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of UMRA § 205 do not

apply when they are inconsistent with

applicable law. Moreover, UMRA § 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes an explanation

with the final rule why the alternative

was not adopted.

Before EPA establishes any regulatory

requirements that may significantly or

uniquely affect small governments,

including Tribal governments, it must

have developed under UMRA § 203 a

small government agency plan. The plan

must provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating and advising small

governments on compliance with the

regulatory requirements.

A. UMRA Section 202 and the

Construction General Permit

UMRA § 202 requires a written

statement containing certain

assessments, estimates and analyses

prior to the promulgation of certain

general notices of proposed rulemaking

(2 U.S.C. 1532). UMRA § 421(10) defines
36496 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

‘‘rule’’ based on the definition of rule in

the Regulatory Flexibility Act. Section

601 of the Regulatory Flexibility Act

defines ‘‘rule’’ to mean any rule for

which an agency publishes a general

notice of proposed rulemaking pursuant

to § 553 of the Administrative Procedure

Act. EPA does not propose to issue

NPDES general permits based on APA

§ 553. Instead, EPA relies on publication

of general permits in the Federal

Register in order to provide ‘‘an

opportunity for a hearing’’ under CWA

§ 402(a), 33 U.S.C. 1342(a). Nonetheless,

EPA has evaluated permitting

alternatives for regulation of storm

water discharges associated with

construction activity. The general

permit that EPA proposes to re-issue

would be virtually the same NPDES

general permit for construction that

many construction operators have used

over the past five years. Furthermore,

general permits provide a more cost and

time efficient alternative for the

regulated community to obtain NPDES

permit coverage than that provided

through individually drafted permits.

B. UMRA Section 203 and the

Construction General Permit

Agencies are required to prepare

small government agency plans under

UMRA § 203 prior to establishing any

regulatory requirement that might

significantly or uniquely affect small

governments. ‘‘Regulatory

requirements’’ might, for example,

include the requirements of these

NPDES general permits for discharges

associated with construction activity,

especially if a municipality sought

coverage under one of the general

permits. EPA envisions that some

municipalities—those with municipal

separate storm sewer systems serving a

population over 100,000—may elect to

seek coverage under these proposed

general permits. For many

municipalities, however, a permit

application is not required until August

7, 2001, for a storm water discharge

associated with construction activity

where the construction site is owned or

operated by a municipality with a

population of less than 100,000. (See 40

CFR 122.26(e)(1)(ii) and (g)).

In any event, any such permit

requirements would not significantly

affect small governments because most

State laws already provide for the

control of sedimentation and erosion in

a similar manner as today’s general

permit. Permit requirements also would

not uniquely affect small governments

because compliance with the permit’s

conditions affects small governments in

the same manner as any other entity

seeking coverage under the permit.

Thus, UMRA § 203 would not apply.

VIII. Paperwork Reduction Act

On June 2, 1997, EPA solicited

comments on the proposed revision to

the current Information Collection

Request (ICR) document for this permit

(ICR approved OMB; OMB No. 2040–

0086, expiration, August 31, 1998) to

accommodate the increased information

requirements in the new NOI for the

construction general permit (62 FR

29826). A revised NOI form has been

approved (EPA Form 3510–9 OMB No.

2040–0188.) This revised form is

included in the permit in Addendum C.

EPA estimates an increase in the burden

associated with filling out the NOI form

for the permit due to added

requirements under the Endangered

Species Act. EPA also anticipates a

small increase in the time because of the

requirement to submit an NOT upon

completion of construction activities.

IX. Regulatory Flexibility Act

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601 et seq., a Federal

agency must prepare an initial

regulatory flexibility analysis ‘‘for any

proposed rule’’ for which the agency ‘‘is

required by section 553 of [the

Administrative Procedure Act (APA)],

or any other law, to publish general

notice of proposed rulemaking.’’ The

RFA exempts from this requirement any

rule that the issuing agency certifies

‘‘will not, if promulgated, have a

significant economic impact on a

substantial number of small entities.’’

EPA did not prepare an initial

regulatory flexibility analysis (IRFA) for

the proposed CGP. (Note that in today’s

action, EPA is issuing a separate general

permit for each jurisdiction where EPA

issues permits; i.e., in certain States,

Indian Country lands and Federal

facilities within certain States. However,

for purposes of readability, reference is

made to the permits in the singular form

such as ‘‘permit’’ or ‘‘CGP’’ rather than

in plural form.) In the notice of the

proposed permit, EPA explained its

view that issuance of an NPDES general

permit is not subject to rulemaking

requirements, including the requirement

for a general notice of proposed

rulemaking, under APA section 553 or

any other law, and is thus not subject to

the RFA requirement to prepare an

IRFA. Nevertheless, in keeping with

EPA’s policy to consider the impact of

its actions on small entities even when

it is not legally required to do so, the

Agency considered the potential impact

of the permit on small entities that

would be eligible for coverage under the

permit. EPA concluded that the permit,

if issued as drafted, would not have a

significant impact on a substantial

number of small entities. EPA based its

conclusion on the fact that the draft

permit was largely the same as the

previous permit issued in 1992 and, to

the extent it differed, provided

dischargers with more flexibility than

that permit allowed.

Some commenters on the proposed

CGP disagreed with EPA’s conclusions

that NPDES general permits are not

subject to rulemaking requirements and

that the proposed permit would not

have a significant impact on small

entities. They asserted that the CGP is

subject to rulemaking requirements and

thus the RFA, and that the Agency

should have prepared an IRFA for the

permit.

In light of the comments received,

EPA further considered whether NPDES

general permits are subject to

rulemaking requirements. The Agency

reviewed its previous NPDES general

permitting actions and related

statements in the Federal Register or

elsewhere. This review suggests that the

Agency has generally treated NPDES

general permits effectively as rules,

though at times it has given contrary

indications as to whether these actions

are rules or permits. EPA also reviewed

again the applicable law, including the

CWA, relevant CWA case law and the

APA, as well as the Attorney General’s

Manual on the APA (1947). On the basis

of its review, EPA has concluded, as set

forth in the proposal, that NPDES

general permits are permits under the

APA and thus not subject to APA

rulemaking requirements or the RFA.

The APA defines two broad, mutually

exclusive categories of agency action—

‘‘rules’’ and ‘‘orders.’’ Its definition of

‘‘rule’’ encompasses ‘‘an agency

statement of general or particular

applicability and future effect designed

to implement, interpret, or prescribe law

or policy or describing the organization,

procedure, or practice requirements of

an agency * * *’’ APA section 551(4).

Its definition of ‘‘order’’ is residual: ‘‘a

final disposition * * * of an agency in

a matter other than rule making but

including licensing.’’ APA section

551(6) (emphasis added). The APA

defines ‘‘license’’ to ‘‘include * * * an

agency permit * * *’’ APA section

551(8). The APA thus categorizes a

permit as an order, which by the APA’s

definition is not a rule.

Section 553 of the APA establishes

‘‘rule making’’ requirements. The APA

defines rule making as ‘‘the agency

process for formulating, amending, or

repealing a rule.’’ APA § 551(5). By its

terms, then, § 553 applies only to

‘‘rules’’ and not also to ‘‘orders,’’ which
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36497

include permits. As the Attorney

General’s Manual on the APA explains,

‘‘the entire Act is based upon a

dichotomy between rule making and

adjudication [the agency process for

formulation of an order]’’ (p. 14).

The CWA specifies the use of permits

for authorizing the discharge of

pollutants to waters of the United

States. Section 301(a) of the CWA

prohibits discharges of pollutants

‘‘[except as in compliance with’’

specified sections of the CWA,

including section 402. 33 U.S.C.

1311(a). Section 402 of the CWA

authorizes EPA ‘‘to issue a permit for

the discharge of any pollutant * * *,

notwithstanding section [301(a) of the

CWA].’’ 33 U.S.C. 1342(a). Thus, the

only circumstances in which a

discharge of pollution may be

authorized is where the Agency has

issued a permit for the discharge.

Courts, recognizing that a permit is the

necessary condition-precedent to any

lawful discharge, specifically suggested

the use of area-wide and general permits

as a mechanism for addressing the

Agency’s need to issue a substantial

number of permits. See NRDC v. Train,

396 F.Supp. 1393, 1402 (D.D.C. 1975);

NRDC v. Costle, 568 F.2d 1369, 1381.

(D.C. Cir. 1977). Adopting the courts’

suggestion, EPA has made increasing

use of general permits in its CWA

regulatory program, particularly for

storm water discharges.

In the Agency’s view, the fact that an

NPDES general permit may apply to a

large number of different dischargers

does not convert it from a permit into

a rule. As noted above, the courts which

have faced the issue of how EPA can

permit large numbers of discharges

under the CWA have suggested use of a

general permit, not a rule. Under the

APA, the two terms are mutually

exclusive. Moreover, an NPDES general

permit retains unique characteristics

that distinguish a permit from a rule.

First, today’s NPDES general permit for

storm water discharges associated with

construction activity is effective only

with respect to those dischargers that

choose to be bound by the permit. Thus,

unlike the typical rule, this NPDES

general permit does not impose

immediately effective obligations of

general applicability. A discharger must

choose to be covered by this general

permit and so notify EPA. A discharger

always retains the option of obtaining

its own individual permit. Relatedly,

the terms of the NPDES general permit

are enforceable only against dischargers

that choose to make use of the permit.

If a source discharges without

authorization of a general or an

individual permit, the discharger

violates § 301 of the Act for discharging

without a permit, not for violating the

terms of an NPDES general permit.

Because the CWA and its case law

make clear that NPDES permits are the

congressionally chosen vehicle for

authorizing discharges of pollutants to

waters of the United States, the APA’s

rulemaking requirements are

inapplicable to issuance of such

permits, including today’s general

permit. Further, while the CWA requires

that NPDES permits be issued only after

an opportunity for a hearing, it does not

require publication of a general notice of

proposed rulemaking. Thus, NPDES

permitting is not subject to the

requirement to publish a general notice

of proposed rulemaking under the APA

or any other law. Accordingly, it is not

subject to the RFA.

At the same time, the Agency

recognizes that the question of the

applicability of the APA, and thus the

RFA, to the issuance of a general permit

is a difficult one, given the fact that a

large number of dischargers may choose

to use the general permit. Indeed, the

point of issuing a general permit is to

provide a speedier means of permitting

large number of sources and save

dischargers and EPA time and effort.

Since the Agency hopes that many

dischargers will make use of a general

permit and since the CWA requires EPA

to provide an opportunity for ‘‘a

hearing’’ prior to issuance of a permit,

EPA provides the public with notice of

a draft general permit and an

opportunity to comment on it. From

public comments, EPA learns how to

better craft a general permit to make it

appropriate for, and acceptable to, the

largest number of potential permittees.

This same process also provides an

opportunity for EPA to consider the

potential impact of general permit terms

on small entities and how to craft the

permit to avoid any undue burden on

small entities. This process, however, is

voluntary, and does not trigger

rulemaking or RFA requirements.

In the case of the CGP being issued

today, the Agency has considered and

addressed the potential impact of the

general permit on small entities in a

manner that would meet the

requirements of the RFA if it applied.

Specifically, EPA has analyzed the

potential impact of the general permit

on small entities and found that it will

not have a significant economic impact

on a substantial number of small

entities. Like the previous general

permit that it replaces (the Baseline

Construction General Permit), the

permit will make available to many

small entities, particularly operators of

construction sites, a streamlined process

for obtaining authorization to discharge.

Of the possible permitting mechanisms

available to dischargers subject to the

CWA, NPDES general permits are

designed to reduce the reporting and

monitoring burden associated with

NPDES permit authorization, especially

for small entities with discharges having

comparatively less potential for

environmental degradation than

discharges typically regulated under

individual NPDES permits. Thus,

general permits like the permit at issue

here provide small entities with a

permitting application option that is

much less burdensome than NPDES

individual permit applications.

Furthermore, the general permit is

virtually identical to its predecessor, the

Baseline Construction General Permit,

under which many construction

operators have operated during the past

five years. Moreover, the other new

provisions of the permit have been

designed to minimize burdens on small

entities, including eliminating the

requirement that construction site

operators require that their contractors

and subcontractors sign a standard

certification statement agreeing to abide

by storm water pollution prevention

plan provisions developed for a project.

In today’s general permit, only the

operator(s) of a construction site are

required to satisfy certification

requirements under the permit. EPA

believes this modification from the prior

permit should reduce any such adverse

economic impacts on both operators and

contractors/subcontractors who, in

many instances, are small entities. In

view of the foregoing, the Regional

Administrators find that the final

general permit, even if it were a rule,

will not have a significant economic

impact on a substantial number of small

entities.

Storm Water General Permit for

Construction Activities in Region 6

NPDES Permit No. [See Part I.A.]

Authorization to Discharge Under the

National Pollutant Discharge

Elimination System

In compliance with the provisions of

the Clean Water Act, as amended, (33

U.S.C. 1251 et. seq.), except as provided

in Part I.B.3 of this permit, operators of

construction activities located in an area

specified in Part I.A. and who submit a

Notice of Intent in accordance with Part

II, are authorized to discharge pollutants

to waters of the United States in

accordance with the conditions and

requirements set forth herein.

This permit shall become effective on

[insert the date of publication of the

final permit in the Federal Register].
36498 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

This permit and the authorization to

discharge shall expire at midnight, July

7, 2003.

Signed: June 24, 1998.

William B. Hathaway,

Director, Water Quality Protection Division.

NPDES General Permits for Storm

Water Discharges from Construction

Activities

Table of Contents

Part I. Coverage Under this Permit

A. Permit Area

B. Eligibility

C. Obtaining Authorization

D. Terminating Coverage

Part II. Notice of Intent Requirements

A. Deadlines for Notification

B. Contents of Notice of Intent

C. Where to Submit

Part III. Special Conditions, Management

Practices, and Other Non-Numeric

Limitations

A. Prohibition on Non-Storm Water

Discharges

B. Releases in Excess of Reportable

Quantities

C. Spills

D. Discharge Compliance with Water

Quality Standards

E. Responsibilities of Operators

F. Consistency with the Texas Coastal

Management Program

Part IV. Storm Water Pollution Prevention

Plans

A. Deadlines for Plan Preparation and

Compliance

B. Signature, Plan Review and Making

Plans Available

C. Keeping Plans Current

D. Contents of Plan

Part V. Retention of Records

A. Documents

B. Accessibility

C. Addresses

Part VI. Standard Permit Conditions

A. Duty to Comply

B. Continuation of the Expired General

Permit

C. Need to Halt or Reduce Activity not a

Defense

D. Duty to Mitigate

E. Duty to Provide Information.

F. Other Information

G. Signatory Requirements

H. Penalties for Falsification of Reports

I. Oil and Hazardous Substance Liability

J. Property Rights

K. Severability

L. Requiring an Individual Permit or an

Alternative General Permit

M. State/Tribal Environmental Laws

N. Proper Operation and Maintenance

O. Inspection and Entry

P. Permit Actions

Part VII. Reopener Clause

Part VIII. Termination of Coverage

A. Notice of Termination

B. Addresses

Part IX. Definitions

Part X. Permit Conditions Applicable to

Specific States, Indian Country Lands, or

Territories

Addenda

A. Endangered Species

B. Historic Properties (Reserved)

C. Notice of Intent (NOI) Form

D. Notice of Termination (NOT) Form

Part I. Coverage Under This Permit

A. Permit Area

The permit language is structured as

if it were a single permit, with State,

Indian Country land, or other areaspecific conditions specified in Part X.

Permit coverage is actually provided by

legally separate and distinctly

numbered permits covering each of the

following areas:

Region 6

LAR10*##I: Indian Country lands in the

State of Louisiana

NMR10*###: The State of New Mexico,

except Indian Country lands

NMR10*##I: Indian Country lands in the

State of New Mexico, except Navajo

Reservation Lands and Ute Mountain

Reservation Lands

OKR10*##I: Indian Country lands in the

State of Oklahoma

OKR10*##F: Oil and Gas Sites in State

of Oklahoma

TXR10*###: The State of Texas, except

Indian Country lands

TXR10*##I: Indian Country lands in the

State of Texas

B. Eligibility

1. Permittees are authorized to

discharge pollutants in storm water

runoff associated with construction

activities as defined in 40 CFR

122.26(b)(14)(x) and those construction

site discharges designated by the

Director as needing a storm water

permit under 122.26(a)(1)(v) or under

122.26(a)(9) and 122.26(g)(1)(i).

Discharges identified under Part I.B.3

are excluded from coverage. Any

discharge authorized by a different

NPDES permit may be commingled with

discharges authorized by this permit.

2. This permit also authorizes storm

water discharges from support activities

(e.g., concrete or asphalt batch plants,

equipment staging yards, material

storage areas, excavated material

disposal areas, borrow areas) provided:

a. The support activity is directly

related to a construction site that is

required to have NPDES permit

coverage for discharges of storm water

associated with construction activity;

b. The support activity is not a

commercial operation serving multiple

unrelated construction projects by

different operators, and does not operate

beyond the completion of the

construction activity at the last

construction project it supports; and

c. Appropriate controls and measures

are identified in a storm water pollution

prevention plan covering the discharges

from the support activity areas.

3. Limitations on Coverage

a. Post Construction Discharges. This

permit does not authorize storm water

discharges that originate from the site

after construction activities have been

completed and the site, including any

temporary support activity site, has

undergone final stabilization. Industrial

post-construction storm water

discharges may need to be covered by a

separate NPDES permit.

b. Discharges Mixed with Non-Storm

Water. This permit does not authorize

discharges that are mixed with sources

of non-storm water, other than those

discharges which are identified in Part

III.A.2. or 3. (exceptions to prohibition

on non-storm water discharges) and are

in compliance with Part IV.D.5 (nonstorm water discharges).

c. Discharges Covered by Another

Permit. This permit does not authorize

storm water discharges associated with

construction activity that have been

covered under an individual permit or

required to obtain coverage under an

alternative general permit in accordance

with Part VI.L.

d. Discharges Threatening Water

Quality. This permit does not authorize

storm water discharges from

construction sites that the Director

(EPA) determines will cause, or have

reasonable potential to cause or

contribute to, violations of water quality

standards. Where such determinations

have been made, the Director may notify

the operator(s) that an individual permit

application is necessary in accordance

with Part VI.L. However, the Director

may authorize coverage under this

permit after appropriate controls and

implementation procedures designed to

bring the discharges into compliance

with water quality standards have been

included in the storm water pollution

prevention plan;

e. Storm water discharges and storm

water discharge-related activities that

are not protective of Federally listed

endangered and threatened (‘‘listed’’)

species or designated critical habitat

(‘‘critical habitat’’).

(1) For the purposes of complying

with the Part I.B.3.e. eligibility

requirements, ‘‘storm water dischargerelated activities’’ include:

(a) Activities which cause, contribute

to, or result in point source storm water

pollutant discharges, including but not

limited to: excavation, site

development, grading and other surface

disturbance activities; and

(b) Measures to control storm water

including the siting, construction and

operation of best management practices
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36499

(BMPs) to control, reduce or prevent

storm water pollution.

(2) Coverage under this permit is

available only if the applicant certifies

that it meets at least one of the criteria

in paragraphs (a)–(d) below. Failure to

continue to meet one of these criteria

during the term of the permit will

render a permittee ineligible for

coverage under this permit.

(a) The storm water discharges and

storm water discharge-related activities

are not likely to adversely affect listed

species or critical habitat; or

(b) Formal or informal consultation

with the Fish and Wildlife Service and/

or the National Marine Fisheries Service

(the ‘‘Services’’) under section 7 of the

Endangered Species Act (ESA) has been

concluded which addresses the effects

of the applicant’s storm water

discharges and storm water dischargerelated activities on listed species and

critical habitat and the consultation

results in either a no jeopardy opinion

or a written concurrence by the

Service(s) on a finding that the

applicant’s storm water discharges and

storm water discharge-related activities

are not likely to adversely affect listed

species or critical habitat. A section 7

consultation may occur in the context of

another Federal action (e.g., a ESA

section 7 consultation was performed

for issuance of a wetlands dredge and

fill permit for the project, or as part of

a National Environmental Policy Act

(NEPA) review); or

(c) The applicant’s construction

activities are authorized under section

10 of the ESA and that authorization

addresses the effects of the applicant’s

storm water discharges and storm water

discharge-related activities on listed

species and critical habitat; or

(d) The applicant’s storm water

discharges and storm water dischargerelated activities were already addressed

in another operator’s certification of

eligibility under Part I.B.3.e.(2)(a), (b), or

(c) which included the applicant’s

project area. By certifying eligibility

under Part I.B.3.e.(2)(d), the applicant

agrees to comply with any measures or

controls upon which the other

operator’s certification under Part

I.B.3.e.(2)(a), (b) or (c) was based.

(3) For all projects commencing

construction after the effective date of

this permit, applicants must follow the

procedures provided at Addendum A of

this permit when applying for permit

coverage. The Director may also require

any existing permittee or applicant to

provide documentation of eligibility for

this permit using the procedures in

Addendum A, where EPA or the Fish

and Wildlife Services determine that

there is a potential impaction on

endangered or threatened species or a

critical habitat. Nothing in this permit

relieves applicants which are under

construction as of the effective date of

this permit of their obligations they may

have to comply with any requirements

of the Endangered Species Act.

(4) The applicant must comply with

any applicable terms, conditions or

other requirements developed in the

process of meeting eligibility

requirements of Part I.B.3.e.(2)(a), (b),

(c), or (d) above to remain eligible for

coverage under this permit. Such terms

and conditions must be incorporated in

the applicant’s storm water pollution

prevention plan.

(5) Applicants who choose to conduct

informal consultation to meet the

eligibility requirements of Part

I.B.3.e.(2)(b) are automatically

designated as non-Federal

representatives under this permit. See

50 CFR 402.08. Applicants who choose

to conduct informal consultation as a

non-Federal representatives must notify

EPA and the appropriate Service office

in writing of that decision.

(6) This permit does not authorize any

storm water discharges where the

discharges or storm water dischargerelated activities cause prohibited

‘‘take’’ (as defined under section 3 of the

Endangered Species Act and 50 CFR

17.3) of endangered or threatened

species unless such takes are authorized

under sections 7 or 10 of the

Endangered Species Act.

(7) This permit does not authorize any

storm water discharges where the

discharges or storm water dischargerelated activities are likely to jeopardize

the continued existence of any species

that are listed or proposed to be listed

as endangered or threatened under the

ESA or result in the adverse

modification or destruction of habitat

that is designated or proposed to be

designated as critical under the ESA.

f. Storm water Discharges and Storm

Water Discharge-Related Activities with

Unconsidered Adverse Effects on

Historic Properties. (Reserved)

C. Obtaining Authorization

1. In order for storm water discharges

from construction activities to be

authorized under this general permit, an

operator must:

a. Meet the Part I.B eligibility

requirements;

b. Except as provided in Parts II.A.5

and II.A.6, develop a storm water

pollution prevention plan (SWPPP)

covering either the entire site or all

portions of the site for which they are

operators (see definition in Part IX.N)

according to the requirements in Part IV.

A ‘‘joint’’ SWPPP may be developed and

implemented as a cooperative effort

where there is more than one operator

at a site; and

c. Submit a Notice of Intent (NOI) in

accordance with the requirements of

Part II, using an NOI form provided in

Addendum C of this permit. Only one

NOI need be submitted to cover all of

the permittee’s activities on the

common plan of development or sale

(e.g., you do not need to submit a

separate NOI for each separate lot in a

residential subdivision or for two

separate buildings being constructed at

a manufacturing facility, provided your

SWPPP covers each area for which you

are an operator). The SWPPP must be

implemented upon commencement of

construction activities.

2. Any new operator on site,

including those who replace an operator

who has previously obtained permit

coverage, must submit an NOI to obtain

permit coverage.

3. Unless notified by the Director to

the contrary, operators who submit a

correctly completed NOI in accordance

with the requirements of this permit are

authorized to discharge storm water

from construction activities under the

terms and conditions of this permit two

(2) days after the date that the NOI is

postmarked. The Director may deny

coverage under this permit and require

submittal of an application for an

individual NPDES permit based on a

review of the NOI or other information

(see Part VI.L).

D. Terminating Coverage

1. Permittees wishing to terminate

coverage under this permit must submit

a Notice of Termination (NOT) in

accordance with Part VIII of this permit.

Compliance with this permit is required

until an NOT is submitted. The

permittee’s authorization to discharge

under this permit terminates at

midnight of the day the NOT is signed.

2. All permittees must submit a NOT

within thirty (30) days after one or more

of the following conditions have been

met:

a. Final stabilization (see definition

Part IX.I) has been achieved on all

portions of the site for which the

permittee is responsible (including if

applicable, returning agricultural land

to its pre-construction agricultural use);

b. Another operator/permittee has

assumed control according to Part

VI.G.2.c. over all areas of the site that

have not been finally stabilized; or

c. For residential construction only,

temporary stabilization has been

completed and the residence has been

transferred to the homeowner.

Enforcement actions may be taken if

a permittee submits a NOT without
36500 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

meeting one or more of these

conditions.

Part II. Notice of Intent Requirements

A. Deadlines for Notification

1. Except as provided in Parts II.A.3,

II.A.4, II.A.5 or II.A.6 below, parties

defined as operators (see definition in

Part IX.N) due to their operational

control over construction plans and

specifications, including the ability to

make modifications to those plans and

specifications, must submit a Notice of

Intent (NOI) in accordance with the

requirements of this Part at least two (2)

days prior to the commencement of

construction activities (i.e., the initial

disturbance of soils associated with

clearing, grading, excavation activities,

or other construction activities).

2. Except as provided in Parts II.A.3,

II.A.4, II.A.5 or II.A.6 below, parties

defined as operators (see definition in

Part IX.N) due to their day-to-day

operational control over activities at a

project which are necessary to ensure

compliance with a storm water

pollution prevention plan or other

permit conditions (e.g., general

contractor, erosion control contractor)

must submit a NOI at least two (2) days

prior to commencing work on-site.

3. For storm water discharges from

construction projects where the operator

changes, including instances where an

operator is added after a NOI has been

submitted under Parts II.A.1 or II.A.2,

the new operator must submit a NOI at

least two (2) days before assuming

operational control over site

specifications or commencing work onsite.

4. Operators are not prohibited from

submitting late NOIs. When a late NOI

is submitted, authorization is only for

discharges that occur after permit

coverage is granted. The Agency

reserves the right to take appropriate

enforcement actions for any

unpermitted activities that may have

occurred between the time construction

commenced and authorization of future

discharges is granted (typically 2 days

after a complete NOI is submitted).

5. Operators of on-going construction

projects as of the effective date of this

permit which received authorization to

discharge for these projects under the

1992 baseline construction general

permit must:

a. Submit a NOI according to Part II.B.

within 90 days of the effective date of

this permit. If the permittee is eligible

to submit a Notice of Termination (e.g.,

construction is finished and final

stabilization has been achieved) before

the 90th day, a new NOI is not required

to be submitted;

b. For the first 90 days from the

effective date of this permit, comply

with the terms and conditions of the

1992 baseline construction general

permit they were previously authorized

under; and

c. Update their storm water pollution

prevention plan to comply with the

requirements of Part IV within 90 days

after the effective date of this permit.

6. Operators of on-going construction

projects as of the effective date of this

permit which did not receive

authorization to discharge for these

projects under the 1992 baseline

construction general permit must:

a. Prepare and comply with an

interim storm water pollution

prevention plan in accordance with the

1992 baseline construction general

permit prior to submitting an NOI;

b. Submit a NOI according to Part II.B;

and

c. Update their storm water pollution

prevention plan to comply with the

requirements of Part IV within 90 days

after the effective date of this permit.

B. Contents of Notice of Intent (NOI)

1. Use of Revised NOI Form

The revised NOI form [EPA Form

3510–9] shall be signed in accordance

with Part VI.G of this permit and shall

include the following information:

a. The name, address, and telephone

number of the operator filing the NOI

for permit coverage;

b. An indication of whether the

operator is a Federal, State, Tribal,

private, or other public entity;

c. The name (or other identifier),

address, county, and latitude/longitude

of the construction project or site;

d. An indication of whether the

project or site is located on Indian

Country lands;

e. Confirmation that a storm water

pollution prevention plan (SWPPP) has

been developed or will be developed

prior to commencing construction

activities, and that the SWPPP will be

compliant with any applicable local

sediment and erosion control plans.

Copies of SWPPPs or permits should not

be included with the NOI submission;

f. Optional information: the location

where the SWPPP may be viewed and

the name and telephone number of a

contact person for scheduling viewing

times;

g. The name of the receiving water(s);

h. Estimates of project start and

completion dates, and estimates of the

number of acres of the site on which soil

will be disturbed (if less than 1 acre,

enter ‘‘1’’);

i. Based on the instructions in

Addendum A, whether any listed or

proposed threatened or endangered

species, or designated critical habitat,

are in proximity to the storm water

discharges or storm water dischargerelated activities to be covered by this

permit;

j. Under which section(s) of Part

I.B.3.e. (Endangered Species) the

applicant is certifying eligibility; and

Note that as of the effective date of

this permit, reporting of information

relating to the preservation of historic

properties has been reserved and is not

required at this time. Such reservation

in no way relieves applicants or

permittees from any otherwise

applicable obligations or liabilities

related to historic preservation under

State, Tribal or local law. After further

discussions between EPA and the

Advisory Council on Historic

Preservation, the Agency may modify

the permit. Any such modification may

affect future Notice of Intent reporting

requirements.

C. Where To Submit

1. NOIs must be signed in accordance

with Part VI.G. and sent to the following

address: Storm Water Notice of Intent

(4203), US EPA, 401 M Street, SW,

Washington, DC 20460.

Part III. Special Conditions,

Management Practices, and Other NonNumeric Limitations

A. Prohibition on Non-Storm Water

Discharges

1. Except as provided in Parts I.B.2 or

3 and III.A.2 or 3, all discharges covered

by this permit shall be composed

entirely of storm water associated with

construction activity.

2. Discharges of material other than

storm water that are in compliance with

an NPDES permit (other than this

permit) issued for that discharge may be

discharged or mixed with discharges

authorized by this permit.

3. The following non-storm water

discharges from active construction sites

are authorized by this permit provided

the non-storm water component of the

discharge is in compliance with Part

IV.D.5 (non-storm water discharges):

discharges from fire fighting activities;

fire hydrant flushings; waters used to

wash vehicles where detergents are not

used; water used to control dust in

accordance with Part IV.D.2.c.(2);

potable water sources including

waterline flushings; routine external

building wash down which does not use

detergents; pavement washwaters where

spills or leaks of toxic or hazardous

materials have not occurred (unless all

spilled material has been removed) and

where detergents are not used; air
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36501

conditioning condensate;

uncontaminated ground water or spring

water; and foundation or footing drains

where flows are not contaminated with

process materials such as solvents.

B. Releases in Excess of Reportable

Quantities

The discharge of hazardous

substances or oil in the storm water

discharge(s) from a facility shall be

prevented or minimized in accordance

with the applicable storm water

pollution prevention plan for the

facility. This permit does not relieve the

permittee of the reporting requirements

of 40 CFR 110, 40 CFR 117 and 40 CFR

302. Where a release containing a

hazardous substance or oil in an amount

equal to or in excess of a reportable

quantity established under either 40

CFR 110, 40 CFR 117 or 40 CFR 302,

occurs during a 24 hour period:

1. The permittee is required to notify

the National Response Center (NRC)

(800–424–8802; in the Washington, DC,

metropolitan area call 202–426–2675) in

accordance with the requirements of 40

CFR 110, 40 CFR 117 and 40 CFR 302

as soon as he or she has knowledge of

the discharge;

2. The storm water pollution

prevention plan required under Part IV

of this permit must be modified within

14 calendar days of knowledge of the

release to: provide a description of the

release, the circumstances leading to the

release, and the date of the release. In

addition, the plan must be reviewed to

identify measures to prevent the

reoccurrence of such releases and to

respond to such releases, and the plan

must be modified where appropriate.

C. Spills

This permit does not authorize the

discharge of hazardous substances or oil

resulting from an on-site spill.

D. Discharge Compliance With Water

Quality Standards

Operators seeking coverage under this

permit shall not be causing or have the

reasonable potential to cause or

contribute to a violation of a water

quality standard. Where a discharge is

already authorized under this permit

and is later determined to cause or have

the reasonable potential to cause or

contribute to the violation of an

applicable water quality standard, the

Director will notify the operator of such

violation(s). The permittee shall take all

necessary actions to ensure future

discharges do not cause or contribute to

the violation of a water quality standard

and document these actions in the storm

water pollution prevention plan. If

violations remain or re-occur, then

coverage under this permit may be

terminated by the Director, and an

alternative general permit or individual

permit may be issued. Compliance with

this requirement does not preclude any

enforcement activity as provided by the

Clean Water Act for the underlying

violation.

E. Responsibilities of Operators

Permittees may meet one or both of

the operational control components in

the definition of ‘‘operator’’ found in

Part IX.N. Either Parts III.E.1 or III.E.2 or

both will apply depending on the type

of operational control exerted by an

individual permittee. Part III.E.3 applies

to all permittees.

1. Permittees with operational control

over construction plans and

specifications, including the ability to

make modifications to those plans and

specifications (e.g., developer or owner),

must:

a. Ensure the project specifications

that they develop meet the minimum

requirements of Part IV (Storm Water

Pollution Prevention Plans (SWPPP))

and all other applicable conditions;

b. Ensure that the SWPPP indicates

the areas of the project where they have

operational control over project

specifications (including the ability to

make modifications in specifications),

and ensure all other permittees

implementing portions of the SWPPP

impacted by any changes they make to

the plan are notified of such

modifications in a timely manner; and

c. Ensure that the SWPPP for portions

of the project where they are operators

indicates the name and NPDES permit

number for parties with day-to-day

operational control of those activities

necessary to ensure compliance with the

SWPPP or other permit conditions. If

these parties have not been identified at

the time the SWPPP is initially

developed, the permittee with

operational control over project

specifications shall be considered to be

the responsible party until such time as

the authority is transferred to another

party (e.g., general contractor) and the

plan updated.

2. Permittee(s) with day-to-day

operational control of those activities at

a project which are necessary to ensure

compliance with a SWPPP for the site

or other permit conditions (e.g., general

contractor) must:

a. Ensure that the SWPPP for portions

of the project where they are operators

meets the minimum requirements of

Part IV (Storm Water Pollution

Prevention Plan) and identifies the

parties responsible for implementation

of control measures identified in the

plan;

b. Ensure that the SWPPP indicates

areas of the project where they have

operational control over day-to-day

activities;

c. Ensure that the SWPPP for portions

of the project where they are operators

indicates the name and NPDES permit

number of the party(ies) with

operational control over project

specifications (including the ability to

make modifications in specifications);

3. Permittees with operational control

over only a portion of a larger

construction project (e.g., one of four

homebuilders in a subdivision) are

responsible for compliance with all

applicable terms and conditions of this

permit as it relates to their activities on

their portion of the construction site,

including protection of endangered

species and implementation of BMPs

and other controls required by the

SWPPP. Permittees shall ensure either

directly or through coordination with

other permittees, that their activities do

not render another party’s pollution

controls ineffective. Permittees must

either implement their portions of a

common SWPPP or develop and

implement their own SWPPP.

F. Consistency With the Texas Coastal

Management Program

This permit does not relieve

permittees whose construction project is

located within the boundary of the

Texas Coastal Management Program of

their responsibility to insure

consistency with all applicable

requirements of this State program.

While pre-construction approval of

development projects is not within the

jurisdiction of the Federal NPDES

permit program, State or local preconstruction project approvals and/or

permits may be required. The

permittee’s Storm Water Pollution

Prevention Plan must be consistent with

any storm water discharge-related

requirements established pursuant to, or

necessary to be consistent with, the

Texas Coastal Management Program.

This permit may be reopened, upon

petition by the State, to include more

stringent discharge requirements

applying to areas within the State’s

designated coastal zone.

The Texas Coastal Management

Program boundary covers part or all of

the following Texas Counties: Aransas,

Brazoria, Calhoun, Cameron, Chambers,

Galveston, Harris, Jackson, Jefferson,

Kenedy, Kleberg, Matagorda, Nueces,

Orange, Refugio, San Patricio, Victoria,

and Willacy. To determine if a

construction project is located within

the Texas Coastal Zone, and if so, the

applicable requirements of the Texas

Coastal Management Program, please
36502 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

contact the Texas General Land Office’s

Coastal Hotline at 1–800–85–BEACH or

access their Internet site at ‘‘http://

red.glo.state.tx.us/res-mgmt/coastal/’’.

Information is also available from the

Texas Coastal Coordination Council’s

Coastal Permitting Assistance Office at

1–888–3–PERMIT or via the Internet at

‘‘http://red.glo.state.tx.us/

coastalpermits/’’.

Part IV. Storm Water Pollution

Prevention Plans

At least one storm water pollution

prevention plan (SWPPP) shall be

developed for each construction project

or site covered by this permit. For more

effective coordination of BMPs and

opportunities for cost sharing, a

cooperative effort by the different

operators at a site to prepare and

participate in a comprehensive SWPPP

is encouraged. Individual operators at a

site may, but are not required, to

develop separate SWPPPs that cover

only their portion of the project

provided reference is made to other

operators at the site. In instances where

there is more than one SWPPP for a site,

coordination must be conducted

between the permittees to ensure the

storm water discharge controls and

other measures are consistent with one

another (e.g., provisions to protect listed

species and critical habitat).

Storm water pollution prevention

plans shall be prepared in accordance

with good engineering practices. The

SWPPP shall identify potential sources

of pollution which may reasonably be

expected to affect the quality of storm

water discharges from the construction

site. The SWPPP shall describe and

ensure the implementation of practices

which will be used to reduce the

pollutants in storm water discharges

associated with construction activity at

the construction site and assure

compliance with the terms and

conditions of this permit.

When developing SWPPPs, applicants

must follow the procedures in

Addendum A of this permit to

determine whether listed endangered or

threatened species or critical habitat

would be affected by the applicant’s

storm water discharges or storm water

discharge-related activities. Any

information on whether listed species or

critical habitat are found in proximity to

the construction site must be included

in the SWPPP. Any terms or conditions

that are imposed under the eligibility

requirements of Part I.B.3.e and

Addendum A of this permit to protect

listed species or critical habitat from

storm water discharges or storm water

discharge-related activity must be

incorporated into the SWPPP.

Permittees must implement the

applicable provisions of the SWPPP

required under this part as a condition

of this permit.

A. Deadlines for Plan Preparation and

Compliance

The storm water pollution prevention

plan shall:

1. Be completed prior to the submittal

of an NOI to be covered under this

permit (except as provided in Parts

II.A.5 and II.A.6) updated as

appropriate; and

2. Provide for compliance with the

terms and schedule of the SWPPP

beginning with the initiation of

construction activities.

B. Signature, Plan Review and Making

Plans Available

1. The SWPPP shall be signed in

accordance with Part VI.G, and be

retained on-site at the facility which

generates the storm water discharge in

accordance with Part V (Retention of

Records) of this permit.

2. The permittee shall post a notice

near the main entrance of the

construction site with the following

information:

a. The NPDES permit number for the

project or a copy of the NOI if a permit

number has not yet been assigned;

b. The name and telephone number of

a local contact person;

c. A brief description of the project;

and

d. The location of the SWPPP if the

site is inactive or does not have an onsite location to store the plan.

If posting this information near a

main entrance is infeasible due to safety

concerns, the notice shall be posted in

a local public building. If the

construction project is a linear

construction project (e.g., pipeline,

highway, etc.), the notice must be

placed in a publicly accessible location

near where construction is actively

underway and moved as necessary. This

permit does not provide the public with

any right to trespass on a construction

site for any reason, including inspection

of a site; nor does this permit require

that permittees allow members of the

public access to a construction site.

3. The permittee shall make SWPPPs

available upon request to the Director, a

State, Tribal or local agency approving

sediment and erosion plans, grading

plans, or storm water management

plans; local government officials; or the

operator of a municipal separate storm

sewer receiving discharges from the site.

The copy of the SWPPP that is required

to be kept on-site or locally available

must be made available to the Director

for review at the time of an on-site

inspection. Also, in the interest of

public involvement, EPA encourages

permittees to make their SWPPPs

available to the public for viewing

during normal business hours.

4. The Director may notify the

permittee at any time that the SWPPP

does not meet one or more of the

minimum requirements of this Part.

Such notification shall identify those

provision of this permit which are not

being met by the SWPPP as well as

those requiring modification in order to

meet the minimum requirements of this

Part. Within seven (7) calendar days of

receipt of such notification from the

Director (or as otherwise provided by

the Director), the permittee shall make

the required changes to the SWPPP and

shall submit to the Director a written

certification that the requested changes

have been made. The Director may take

appropriate enforcement action for the

period of time the permittee was

operating under a plan that did not meet

the minimum requirements of this

permit.

C. Keeping Plans Current

The permittee must amend the storm

water pollution prevention plan

whenever:

1. There is a change in design,

construction, operation, or maintenance

which has a significant effect on the

discharge of pollutants to the waters of

the United States which has not been

addressed in the SWPPP; or

2. Inspections or investigations by site

operators, local, State, Tribal or Federal

officials indicate the SWPPP is proving

ineffective in eliminating or

significantly minimizing pollutants

from sources identified under Part

IV.D.1 of this permit, or is otherwise not

achieving the general objectives of

controlling pollutants in storm water

discharges associated with construction

activity.

D. Contents of Plan

The storm water pollution prevention

plan (SWPPP) shall include the

following items:

1. Site Description

Each SWPPP shall provide a

description of potential pollutant

sources and other information as

indicated below:

a. A description of the nature of the

construction activity;

b. A description of the intended

sequence of major activities which

disturb soils for major portions of the

site (e.g., grubbing, excavation, grading,

utilities and infrastructure installation);

c. Estimates of the total area of the site

and the total area of the site that is
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36503

expected to be disturbed by excavation,

grading, or other activities including offsite borrow and fill areas;

d. An estimate of the runoff

coefficient of the site for both the preconstruction and post-construction

conditions and data describing the soil

or the quality of any discharge from the

site;

e. A general location map (e.g., a

portion of a city or county map) and a

site map indicating the following:

drainage patterns and approximate

slopes anticipated after major grading

activities; areas of soil disturbance;

areas which will not be disturbed;

locations of major structural and

nonstructural controls identified in the

SWPPP; locations where stabilization

practices are expected to occur;

locations of off-site material, waste,

borrow or equipment storage areas;

surface waters (including wetlands); and

locations where storm water discharges

to a surface water;

f. Location and description of any

discharge associated with industrial

activity other than construction,

including storm water discharges from

dedicated asphalt plants and dedicated

concrete plants, which is covered by

this permit;

g. The name of the receiving water(s)

and the areal extent and description of

wetland or other special aquatic sites (as

described under 40 CFR 230.3(q–1)) at

or near the site which will be disturbed

or which will receive discharges from

disturbed areas of the project;

h. A copy of the permit requirements

(attaching a copy of this permit is

acceptable);

i. Information on whether listed

endangered or threatened species, or

critical habitat, are found in proximity

to the construction activity and whether

such species may be affected by the

applicant’s storm water discharges or

storm water discharge-related activities;

and

j. Information on whether storm water

discharges or storm water dischargerelated activities would have an affect

on a property that is listed or eligible for

listing on the National Register of

Historic Places; where effects may

occur, any written agreements with the

State Historic Preservation Officer,

Tribal Historic Preservation Officer, or

other Tribal leader to mitigate those

effects.

2. Controls

Each SWPPP shall include a

description of appropriate control

measures (i.e., BMPs) that will be

implemented as part of the construction

activity to control pollutants in storm

water discharges. The SWPPP must

clearly describe for each major activity

identified in Part IV.D.1.b: (a)

appropriate control measures and the

general timing (or sequence) during the

construction process that the measures

will be implemented; and (b) which

permittee is responsible for

implementation (e.g., perimeter controls

for one portion of the site will be

installed by Contractor A after the

clearing and grubbing necessary for

installation of the measure, but before

the clearing and grubbing for the

remaining portions of the site; and

perimeter controls will be actively

maintained by Contractor B until final

stabilization of those portions of the site

up-gradient of the perimeter control;

and temporary perimeter controls will

be removed by the owner after final

stabilization). The description and

implementation of control measures

shall address the following minimum

components:

a. Erosion and Sediment Controls.

(1) Short and Long Term Goals and

Criteria:

(a) The construction-phase erosion

and sediment controls should be

designed to retain sediment on site to

the extent practicable.

(b) All control measures must be

properly selected, installed, and

maintained in accordance with the

manufacturers specifications and good

engineering practices. If periodic

inspections or other information

indicates a control has been used

inappropriately, or incorrectly, the

permittee must replace or modify the

control for site situations.

(c) If sediment escapes the

construction site, off-site accumulations

of sediment must be removed at a

frequency sufficient to minimize offsite

impacts (e.g., fugitive sediment in street

could be washed into storm sewers by

the next rain and/or pose a safety hazard

to users of public streets).

(d) Sediment must be removed from

sediment traps or sedimentation ponds

when design capacity has been reduced

by 50%.

(e) Litter, construction debris, and

construction chemicals exposed to

storm water shall be prevented from

becoming a pollutant source for storm

water discharges (e.g., screening

outfalls, picked up daily).

(f) Offsite material storage areas (also

including overburden and stockpiles of

dirt, borrow areas, etc.) used solely by

the permitted project are considered a

part of the project and shall be

addressed in the SWPPP.

(2) Stabilization Practices: The

SWPPP must include a description of

interim and permanent stabilization

practices for the site, including a

schedule of when the practices will be

implemented. Site plans should ensure

that existing vegetation is preserved

where attainable and that disturbed

portions of the site are stabilized.

Stabilization practices may include but

are not limited to: establishment of

temporary vegetation, establishment of

permanent vegetation, mulching,

geotextiles, sod stabilization, vegetative

buffer strips, protection of trees,

preservation of mature vegetation, and

other appropriate measures. Use of

impervious surfaces for stabilization

should be avoided.

The following records shall be

maintained and attached to the SWPPP:

the dates when major grading activities

occur; the dates when construction

activities temporarily or permanently

cease on a portion of the site; and the

dates when stabilization measures are

initiated.

Except as provided in Parts

IV.D.2.a.(2)(a), (b), and (c) below,

stabilization measures shall be initiated

as soon as practicable in portions of the

site where construction activities have

temporarily or permanently ceased, but

in no case more than 14 days after the

construction activity in that portion of

the site has temporarily or permanently

ceased.

(a) Where the initiation of

stabilization measures by the 14th day

after construction activity temporary or

permanently cease is precluded by snow

cover or frozen ground conditions,

stabilization measures shall be initiated

as soon as practicable.

(b) Where construction activity on a

portion of the site is temporarily ceased,

and earth disturbing activities will be

resumed within 21 days, temporary

stabilization measures do not have to be

initiated on that portion of site.

(c) In arid areas (areas with an average

annual rainfall of 0 to 10 inches), semiarid areas (areas with an average annual

rainfall of 10 to 20 inches), and areas

experiencing droughts where the

initiation of stabilization measures by

the 14th day after construction activity

has temporarily or permanently ceased

is precluded by seasonal arid

conditions, stabilization measures shall

be initiated as soon as practicable.

(3) Structural Practices: The SWPPP

must include a description of structural

practices to divert flows from exposed

soils, store flows or otherwise limit

runoff and the discharge of pollutants

from exposed areas of the site to the

degree attainable. Structural practices

may include but are not limited to: silt

fences, earth dikes, drainage swales,

sediment traps, check dams, subsurface

drains, pipe slope drains, level

spreaders, storm drain inlet protection,
36504 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

rock outlet protection, reinforced soil

retaining systems, gabions, and

temporary or permanent sediment

basins. Placement of structural practices

in floodplains should be avoided to the

degree attainable. The installation of

these devices may be subject to section

404 of the CWA.

(a) For common drainage locations

that serve an area with ten (10) or more

acres disturbed at one time, a temporary

(or permanent) sediment basin that

provides storage for a calculated volume

of runoff from a 2 year, 24 hour storm

from each disturbed acre drained, or

equivalent control measures, shall be

provided where attainable until final

stabilization of the site. Where no such

calculation has been performed, a

temporary (or permanent) sediment

basin providing 3,600 cubic feet of

storage per acre drained, or equivalent

control measures, shall be provided

where attainable until final stabilization

of the site. When computing the number

of acres draining into a common

location it is not necessary to include

flows from offsite areas and flows from

onsite areas that are either undisturbed

or have undergone final stabilization

where such flows are diverted around

both the disturbed area and the

sediment basin.

In determining whether installing a

sediment basin is attainable, the

permittee may consider factors such as

site soils, slope, available area on site,

etc. In any event, the permittee must

consider public safety, especially as it

relates to children, as a design factor for

the sediment basin and alternative

sediment controls shall be used where

site limitations would preclude a safe

design. For drainage locations which

serve ten (10) or more disturbed acres at

one time and where a temporary

sediment basin or equivalent controls is

not attainable, smaller sediment basins

and/or sediment traps should be used.

Where neither the sediment basin nor

equivalent controls are attainable due to

site limitations, silt fences, vegetative

buffer strips, or equivalent sediment

controls are required for all down slope

boundaries of the construction area and

for those side slope boundaries deemed

appropriate as dictated by individual

site conditions. EPA encourages the use

of a combination of sediment and

erosion control measures in order to

achieve maximum pollutant removal.

(b) For drainage locations serving less

than 10 acres, smaller sediment basins

and/or sediment traps should be used.

At a minimum, silt fences, vegetative

buffer strips, or equivalent sediment

controls are required for all down slope

boundaries (and for those side slope

boundaries deemed appropriate as

dictated by individual site conditions)

of the construction area unless a

sediment basin providing storage for a

calculated volume of runoff from a 2

year, 24 hour storm or 3,600 cubic feet

of storage per acre drained is provided.

EPA encourages the use of a

combination of sediment and erosion

control measures in order to achieve

maximum pollutant removal.

b. Storm Water Management. A

description of measures that will be

installed during the construction

process to control pollutants in storm

water discharges that will occur after

construction operations have been

completed must be included in the

SWPPP. Structural measures should be

placed on upland soils to the degree

attainable. The installation of these

devices may also require a separate

permit under section 404 of the CWA.

Permittees are only responsible for the

installation and maintenance of storm

water management measures prior to

final stabilization of the site, and are not

responsible for maintenance after storm

water discharges associated with

construction activity have been

eliminated from the site. However, postconstruction storm water BMPs that

discharge pollutants from point sources

once construction is completed may, in

themselves, need authorization under a

separate NPDES permit.

(1) Such practices may include but are

not limited to: storm water detention

structures (including wet ponds); storm

water retention structures; flow

attenuation by use of open vegetated

swales and natural depressions;

infiltration of runoff onsite; and

sequential systems (which combine

several practices). The SWPPP shall

include an explanation of the technical

basis used to select the practices to

control pollution where flows exceed

predevelopment levels.

(2) Velocity dissipation devices shall

be placed at discharge locations and

along the length of any outfall channel

to provide a non-erosive flow velocity

from the structure to a water course so

that the natural physical and biological

characteristics and functions are

maintained and protected (e.g., no

significant changes in the hydrological

regime of the receiving water).

c. Other Controls.

(1) No solid materials, including

building materials, shall be discharged

to waters of the United States, except as

authorized by a permit issued under

section 404 of the CWA.

(2) Off-site vehicle tracking of

sediments and the generation of dust

shall be minimized.

(3) The SWPPP shall be consistent

with applicable State, Tribal and/or

local waste disposal, sanitary sewer or

septic system regulations to the extent

these are located within the permitted

area.

(4) The SWPPP shall include a

description of construction and waste

materials expected to be stored on-site

with updates as appropriate. The

SWPPP shall also include a description

of controls to reduce pollutants from

these materials including storage

practices to minimize exposure of the

materials to storm water, and spill

prevention and response.

(5) The SWPPP shall include a

description of pollutant sources from

areas other than construction (including

storm water discharges from dedicated

asphalt plants and dedicated concrete

plants), and a description of controls

and measures that will be implemented

at those sites to minimize pollutant

discharges.

(6) The SWPPP shall include a

description of measures necessary to

protect listed endangered or threatened

species, or critical habitat, including

any terms or conditions that are

imposed under the eligibility

requirements of Part I.B.3.e(4) of this

permit. Failure to describe and

implement such measures will result in

storm water discharges from

construction activities that are ineligible

for coverage under this permit.

d. Approved State, Tribal or Local

Plans.

(1) Permittees which discharge storm

water associated with construction

activities must ensure their storm water

pollution prevention plan is consistent

with requirements specified in

applicable sediment and erosion site

plans or site permits, or storm water

management site plans or site permits

approved by State, Tribal or local

officials.

(2) Storm water pollution prevention

plans must be updated as necessary to

remain consistent with any changes

applicable to protecting surface water

resources in sediment and erosion site

plans or site permits, or storm water

management site plans or site permits

approved by State, Tribal or local

officials for which the permittee

receives written notice.

3. Maintenance

All erosion and sediment control

measures and other protective measures

identified in the SWPPP must be

maintained in effective operating

condition. If site inspections required by

Part IV.D.4. identify BMPs that are not

operating effectively, maintenance shall

be performed before the next anticipated

storm event, or as necessary to maintain

the continued effectiveness of storm
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36505

water controls. If maintenance prior to

the next anticipated storm event is

impracticable, maintenance must be

scheduled and accomplished as soon as

practicable.

4. Inspections

Qualified personnel (provided by the

permittee or cooperatively by multiple

permittees) shall inspect disturbed areas

of the construction site that have not

been finally stabilized, areas used for

storage of materials that are exposed to

precipitation, structural control

measures, and locations where vehicles

enter or exit the site, at least once every

fourteen (14) calendar days and within

24 hours of the end of a storm event of

0.5 inches or greater. Where sites have been finally or

temporarily stabilized, runoff is unlikely

due to winter conditions (e.g., site is

covered with snow, ice, or frozen

ground exists), or during seasonal arid

periods in arid areas (areas with an

average annual rainfall of 0 to 10 inches)

and semi-arid areas (areas with an

average annual rainfall of 10 to 20

inches) such inspections shall be

conducted at least once every month. Permittees are eligible for a waiver of

monthly inspection requirements until

one month before thawing conditions

are expected to result in a discharge if

all of the following requirements are

met: (1) the project is located in an area

where frozen conditions are anticipated

to continue for extended periods of time

(i.e., more than one month); (2) land

disturbance activities have been

suspended; and (3) the beginning and

ending dates of the waiver period are

documented in the SWPPP.

a. Disturbed areas and areas used for

storage of materials that are exposed to

precipitation shall be inspected for

evidence of, or the potential for,

pollutants entering the drainage system.

Sediment and erosion control measures

identified in the SWPPP shall be

observed to ensure that they are

operating correctly. Where discharge

locations or points are accessible, they

shall be inspected to ascertain whether

erosion control measures are effective in

preventing significant impacts to

receiving waters. Where discharge

locations are inaccessible, nearby

downstream locations shall be inspected

to the extent that such inspections are

practicable. Locations where vehicles

enter or exit the site shall be inspected

for evidence of offsite sediment

tracking. b. Based on the results of the

inspection, the SWPPP shall be

modified as necessary (e.g., show

additional controls on map required by

Part IV.D.1; revise description of

controls required by Part IV.D.2) to

include additional or modified BMPs

designed to correct problems identified.

Revisions to the SWPPP shall be

completed within 7 calendar days

following the inspection. If existing

BMPs need to be modified or if

additional BMPs are necessary,

implementation shall be completed

before the next anticipated storm event.

If implementation before the next

anticipated storm event is

impracticable, they shall be

implemented as soon as practicable. c. A report summarizing the scope of

the inspection, name(s) and

qualifications of personnel making the

inspection, the date(s) of the inspection,

and major observations relating to the

implementation of the SWPPP shall be

made and retained as part of the SWPPP

for at least three years from the date that

the site is finally stabilized. Major

observations should include: the

location(s) of discharges of sediment or

other pollutants from the site;

location(s) of BMPs that need to be

maintained; location(s) of BMPs that

failed to operate as designed or proved

inadequate for a particular location; and

location(s) where additional BMPs are

needed that did not exist at the time of

inspection. Actions taken in accordance

with Part IV.D.4.b of this permit shall be

made and retained as part of the storm

water pollution prevention plan for at

least three years from the date that the

site is finally stabilized. Such reports

shall identify any incidents of noncompliance. Where a report does not

identify any incidents of noncompliance, the report shall contain a

certification that the facility is in

compliance with the storm water

pollution prevention plan and this

permit. The report shall be signed in

accordance with Part VI.G of this

permit.

5. Non-Storm Water Discharges

Except for flows from fire fighting

activities, sources of non-storm water

listed in Part III.A.2 or 3 of this permit

that are combined with storm water

discharges associated with construction

activity must be identified in the

SWPPP. The SWPPP shall identify and

ensure the implementation of

appropriate pollution prevention

measures for the non-storm water

component(s) of the discharge.

Part V. Retention of Records

A. Documents

The permittee shall retain copies of

storm water pollution prevention plans

and all reports required by this permit,

and records of all data used to complete

the Notice of Intent to be covered by this

permit, for a period of at least three

years from the date that the site is

finally stabilized. This period may be

extended by request of the Director at

any time.

B. Accessibility

The permittee shall retain a copy of

the storm water pollution prevention

plan required by this permit (including

a copy of the permit language) at the

construction site (or other local location

accessible to the Director, a State, Tribal

or local agency approving sediment and

erosion plans, grading plans, or storm

water management plans; local

government officials; or the operator of

a municipal separate storm sewer

receiving discharges from the site) from

the date of project initiation to the date

of final stabilization. Permittees with

day-to-day operational control over

SWPPP implementation shall have a

copy of the SWPPP available at a central

location on-site for the use of all

operators and those identified as having

responsibilities under the SWPPP

whenever they are on the construction

site.

C. Addresses

Except for the submittal of NOIs and

NOTs (see Parts II.C and VIII.B,

respectively), all written

correspondence concerning discharges

in any State, Indian Country land or

from any Federal facility covered under

this permit and directed to the EPA,

including the submittal of individual

permit applications, shall be sent to the

address listed below: United States EPA,

Region 6, Storm Water Staff,

Enforcement and Compliance Assurance

Division (GEN-WC), EPA SW

Construction GP, P.O. Box 50625,

Dallas, TX 75205.

Part VI. Standard Permit Conditions

A. Duty To Comply

1. The Permittee Must Comply With All

Conditions of This Permit

Any permit noncompliance

constitutes a violation of CWA and is

grounds for enforcement action; for

permit termination, revocation and

reissuance, or modification; or for

denial of a permit renewal application.

2. Penalties for Violations of Permit

Conditions

The Director will adjust the civil and

administrative penalties listed below in

accordance with the Civil Monetary

Penalty Inflation Adjustment Rule

(Federal Register: December 31, 1996,

Volume 61, Number 252, pages 69359–

69366, as corrected, March 20, 1997,

Volume 62, Number 54, pages 13514–
36506 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

13517) as mandated by the Debt

Collection Improvement Act of 1996 for

inflation on a periodic basis. This rule

allows EPA’s penalties to keep pace

with inflation. The Agency is required

to review its penalties at least once

every four years thereafter and to adjust

them as necessary for inflation

according to a specified formula. The

civil and administrative penalties listed

below were adjusted for inflation

starting in 1996.

a. Criminal.

(1) Negligent Violations. The CWA

provides that any person who

negligently violates permit conditions

implementing sections 301, 302, 306,

307, 308, 318, or 405 of the Act is

subject to a fine of not less than $2,500

nor more than $25,000 per day of

violation, or by imprisonment for not

more than 1 year, or both.

(2) Knowing Violations. The CWA

provides that any person who

knowingly violates permit conditions

implementing sections 301, 302, 306,

307, 308, 318, or 405 of the Act is

subject to a fine of not less than $5,000

nor more than $50,000 per day of

violation, or by imprisonment for not

more than 3 years, or both.

(3) Knowing Endangerment. The CWA

provides that any person who

knowingly violates permit conditions

implementing sections 301, 302, 306,

307, 308, 318, or 405 of the Act and who

knows at that time that he is placing

another person in imminent danger of

death or serious bodily injury is subject

to a fine of not more than $250,000, or

by imprisonment for not more than 15

years, or both.

(4) False Statement. The CWA

provides that any person who

knowingly makes any false material

statement, representation, or

certification in any application, record,

report, plan, or other document filed or

required to be maintained under the Act

or who knowingly falsifies, tampers

with, or renders inaccurate, any

monitoring device or method required

to be maintained under the Act, shall

upon conviction, be punished by a fine

of not more than $10,000 or by

imprisonment for not more than two

years, or by both. If a conviction is for

a violation committed after a first

conviction of such person under this

paragraph, punishment shall be by a

fine of not more than $20,000 per day

of violation, or by imprisonment of not

more than four years, or by both. (See

section 309.c.4 of the Clean Water Act).

b. Civil Penalties. The CWA provides

that any person who violates a permit

condition implementing sections 301,

302, 306, 307, 308, 318, or 405 of the

Act is subject to a civil penalty not to

exceed $27,500 per day for each

violation.

c. Administrative Penalties. The CWA

provides that any person who violates a

permit condition implementing sections

301, 302, 306, 307, 308, 318, or 405 of

the Act is subject to an administrative

penalty, as follows:

(1) Class I Penalty. Not to exceed

$11,000 per violation nor shall the

maximum amount exceed $27,500.

(2) Class II Penalty. Not to exceed

$11,000 per day for each day during

which the violation continues, nor shall

the maximum amount exceed $137,500.

B. Continuation of the Expired General

Permit

If this permit is not reissued or

replaced prior to the expiration date, it

will be administratively continued in

accordance with the Administrative

Procedures Act and remain in force and

effect. Any permittee who was granted

permit coverage prior to the expiration

date will automatically remain covered

by the continued permit until the earlier

of:

1. Reissuance or replacement of this

permit, at which time the permittee

must comply with the Notice of Intent

conditions of the new permit to

maintain authorization to discharge; or

2. The permittee’s submittal of a

Notice of Termination; or

3. Issuance of an individual permit for

the permittee’s discharges; or

4. A formal permit decision by the

Director not to reissue this general

permit, at which time the permittee

must seek coverage under an alternative

general permit or an individual permit.

C. Need To Halt or Reduce Activity Not

a Defense

It shall not be a defense for a

permittee in an enforcement action that

it would have been necessary to halt or

reduce the permitted activity in order to

maintain compliance with the

conditions of this permit.

D. Duty To Mitigate

The permittee shall take all

reasonable steps to minimize or prevent

any discharge in violation of this permit

which has a reasonable likelihood of

adversely affecting human health or the

environment.

E. Duty To Provide Information

The permittee shall furnish to the

Director or an authorized representative

of the Director any information which is

requested to determine compliance with

this permit or other information.

F. Other Information

When the permittee becomes aware

that he or she failed to submit any

relevant facts or submitted incorrect

information in the Notice of Intent or in

any other report to the Director, he or

she shall promptly submit such facts or

information.

G. Signatory Requirements

All Notices of Intent, Notices of

Termination, storm water pollution

prevention plans, reports, certifications

or information either submitted to the

Director or the operator of a large or

medium municipal separate storm

sewer system, or that this permit

requires be maintained by the permittee,

shall be signed as follows:

1. All Notices of Intent and Notices of

Termination shall be signed as follows:

a. For a corporation: by a responsible

corporate officer. For the purpose of this

section, a responsible corporate officer

means: a president, secretary, treasurer,

or vice-president of the corporation in

charge of a principal business function,

or any other person who performs

similar policy or decision-making

functions for the corporation; or the

manager of one or more manufacturing,

production or operating facilities

employing more than 250 persons or

having gross annual sales or

expenditures exceeding $25,000,000 (in

second-quarter 1980 dollars) if authority

to sign documents has been assigned or

delegated to the manager in accordance

with corporate procedures;

b. For a partnership or sole

proprietorship: by a general partner or

the proprietor, respectively; or

c. For a municipality, State, Federal,

or other public agency: by either a

principal executive officer or ranking

elected official. For purposes of this

section, a principal executive officer of

a Federal agency includes (1) the chief

executive officer of the agency, or (2) a

senior executive officer having

responsibility for the overall operations

of a principal geographic unit of the

agency (e.g., Regional Administrators of

EPA).

2. All reports required by this permit

and other information requested by the

Director or authorized representative of

the Director shall be signed by a person

described above or by a duly authorized

representative of that person. A person

is a duly authorized representative only

if:

a. The authorization is made in

writing by a person described above and

submitted to the Director.

b. The authorization specifies either

an individual or a position having

responsibility for the overall operation

of the regulated facility or activity, such

as the position of manager, operator,

superintendent, or position of

equivalent responsibility or an
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36507

individual or position having overall

responsibility for environmental matters

for the company. (A duly authorized

representative may thus be either a

named individual or any individual

occupying a named position).

c. Changes to Authorization. If an

authorization under Part II.B is no

longer accurate because a different

operator has responsibility for the

overall operation of the construction

site, a new Notice of Intent satisfying

the requirements of Part II.B must be

submitted to the Director prior to or

together with any reports, information,

or applications to be signed by an

authorized representative. The change

in authorization must be submitted

within the time frame specified in Part

II.A.3, and sent to the address specified

in Part II.C.

d. Certification. Any person signing

documents under Part VI.G shall make

the following certification:

‘‘I certify under penalty of law that

this document and all attachments were

prepared under my direction or

supervision in accordance with a system

designed to assure that qualified

personnel properly gathered and

evaluated the information submitted.

Based on my inquiry of the person or

persons who manage the system, or

those persons directly responsible for

gathering the information, the

information submitted is, to the best of

my knowledge and belief, true, accurate,

and complete. I am aware that there are

significant penalties for submitting false

information, including the possibility of

fine and imprisonment for knowing

violations.’’

H. Penalties for Falsification of Reports

Section 309(c)(4) of the Clean Water

Act provides that any person who

knowingly makes any false material

statement, representation, or

certification in any record or other

document submitted or required to be

maintained under this permit, including

reports of compliance or noncompliance

shall, upon conviction, be punished by

a fine of not more than $10,000, or by

imprisonment for not more than two

years, or by both.

I. Oil and Hazardous Substance Liability

Nothing in this permit shall be

construed to preclude the institution of

any legal action or relieve the permittee

from any responsibilities, liabilities, or

penalties to which the permittee is or

may be subject under section 311 of the

CWA or section 106 of the

Comprehensive Environmental

Response, Compensation and Liability

Act of 1980 (CERCLA).

J. Property Rights

The issuance of this permit does not

convey any property rights of any sort,

nor any exclusive privileges, nor does it

authorize any injury to private property

nor any invasion of personal rights, nor

any infringement of Federal, State or

local laws or regulations.

K. Severability

The provisions of this permit are

severable, and if any provision of this

permit, or the application of any

provision of this permit to any

circumstance, is held invalid, the

application of such provision to other

circumstances, and the remainder of

this permit shall not be affected thereby.

L. Requiring an Individual Permit or an

Alternative General Permit

1. The Director may require any

person authorized by this permit to

apply for and/or obtain either an

individual NPDES permit or an

alternative NPDES general permit. Any

interested person may petition the

Director to take action under this

paragraph. Where the Director requires

a permittee authorized to discharge

under this permit to apply for an

individual NPDES permit, the Director

shall notify the permittee in writing that

a permit application is required. This

notification shall include a brief

statement of the reasons for this

decision, an application form, a

statement setting a deadline for the

permittee to file the application, and a

statement that on the effective date of

issuance or denial of the individual

NPDES permit or the alternative general

permit as it applies to the individual

permittee, coverage under this general

permit shall automatically terminate.

Applications shall be submitted to the

appropriate Regional Office indicated in

Part V.C of this permit. The Director

may grant additional time to submit the

application upon request of the

applicant. If a permittee fails to submit

in a timely manner an individual

NPDES permit application as required

by the Director under this paragraph,

then the applicability of this permit to

the individual NPDES permittee is

automatically terminated at the end of

the day specified by the Director for

application submittal.

2. Any permittee authorized by this

permit may request to be excluded from

the coverage of this permit by applying

for an individual permit. In such cases,

the permittee shall submit an individual

application in accordance with the

requirements of 40 CFR 122.26(c)(1)(ii),

with reasons supporting the request, to

the Director at the address for the

appropriate Regional Office indicated in

Part V.C of this permit. The request may

be granted by issuance of any individual

permit or an alternative general permit

if the reasons cited by the permittee are

adequate to support the request.

3. When an individual NPDES permit

is issued to a permittee otherwise

subject to this permit, or the permittee

is authorized to discharge under an

alternative NPDES general permit, the

applicability of this permit to the

individual NPDES permittee is

automatically terminated on the

effective date of the individual permit or

the date of authorization of coverage

under the alternative general permit,

whichever the case may be. When an

individual NPDES permit is denied to

an owner or operator otherwise subject

to this permit, or the owner or operator

is denied for coverage under an

alternative NPDES general permit, the

applicability of this permit to the

individual NPDES permittee is

automatically terminated on the date of

such denial, unless otherwise specified

by the Director.

M. State/Tribal Environmental Laws

1. Nothing in this permit shall be

construed to preclude the institution of

any legal action or relieve the permittee

from any responsibilities, liabilities, or

penalties established pursuant to any

applicable State/Tribal law or regulation

under authority preserved by section

510 of the Act.

2. No condition of this permit shall

release the permittee from any

responsibility or requirements under

other environmental statutes or

regulations.

N. Proper Operation and Maintenance

The permittee shall at all times

properly operate and maintain all

facilities and systems of treatment and

control (and related appurtenances)

which are installed or used by the

permittee to achieve compliance with

the conditions of this permit and with

the requirements of storm water

pollution prevention plans. Proper

operation and maintenance also

includes adequate laboratory controls

and appropriate quality assurance

procedures. Proper operation and

maintenance requires the operation of

backup or auxiliary facilities or similar

systems, installed by a permittee only

when necessary to achieve compliance

with the conditions of this permit.

O. Inspection and Entry

The permittee shall allow the Director

or an authorized representative of EPA,

the State/Tribe, or, in the case of a

construction site which discharges
36508 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

through a municipal separate storm

sewer, an authorized representative of

the municipal owner/operator or the

separate storm sewer receiving the

discharge, upon the presentation of

credentials and other documents as may

be required by law, to:

1. Enter upon the permittee’s

premises where a regulated facility or

activity is located or conducted or

where records must be kept under the

conditions of this permit;

2. Have access to and copy at

reasonable times, any records that must

be kept under the conditions of this

permit; and

3. Inspect at reasonable times any

facilities or equipment (including

monitoring and control equipment).

P. Permit Actions

This permit may be modified, revoked

and reissued, or terminated for cause.

The filing of a request by the permittee

for a permit modification, revocation

and reissuance, or termination, or a

notification of planned changes or

anticipated noncompliance does not

stay any permit condition.

Part VII. Reopener Clause

A. If there is evidence indicating that

the storm water discharges authorized

by this permit cause, have the

reasonable potential to cause or

contribute to, a violation of a water

quality standard, the permittee may be

required to obtain an individual permit

or an alternative general permit in

accordance with Part I.C of this permit,

or the permit may be modified to

include different limitations and/or

requirements.

B. Permit modification or revocation

will be conducted according to 40 CFR

122.62, 122.63, 122.64 and 124.5.

C. EPA may propose a modification to

this permit after further discussions

between the Agency and the Advisory

Council on Historic Preservation for the

protection of historic properties.

Part VIII. Termination of Coverage

A. Notice of Termination

Permittees must submit a completed

Notice of Termination (NOT) that is

signed in accordance with Part VI.G of

this permit when one or more of the

conditions contained in Part I.D.2.

(Terminating Coverage) have been met

at a construction project. The NOT form

found in Addendum D will be used

unless it has been replaced by a revised

version by the Director. The Notice of

Termination shall include the following

information:

1. The NPDES permit number for the

storm water discharge identified by the

Notice of Termination;

2. An indication of whether the storm

water discharges associated with

construction activity have been

eliminated (i.e., regulated discharges of

storm water are being terminated) or the

permittee is no longer an operator at the

site;

3. The name, address and telephone

number of the permittee submitting the

Notice of Termination;

4. The name of the project and street

address (or a description of location if

no street address is available) of the

construction site for which the

notification is submitted;

5. The latitude and longitude of the

construction site; and

6. The following certification, signed

in accordance with Part VI.G (signatory

requirements) of this permit. For

construction projects with more than

one permittee and/or operator, the

permittee need only make this

certification for those portions of the

construction site where the permittee

was authorized under this permit and

not for areas where the permittee was

not an operator:

‘‘I certify under penalty of law that all

storm water discharges associated with

industrial activity from the identified

facility that authorized by a general

permit have been eliminated or that I

am no longer the operator of the facility

or construction site. I understand that

by submitting this notice of termination,

I am no longer authorized to discharge

storm water associated with industrial

activity under this general permit, and

that discharging pollutants in storm

water associated with industrial activity

to waters of the United States is

unlawful under the Clean Water Act

where the discharge is not authorized by

a NPDES permit. I also understand that

the submittal of this Notice of

Termination does not release an

operator from liability for any violations

of this permit or the Clean Water Act.’’

For the purposes of this certification,

elimination of storm water discharges

associated with construction activity

means that all disturbed soils at the

portion of the construction site where

the operator had control have been

finally stabilized (as defined in Part IX.I)

and temporary erosion and sediment

control measures have been removed or

will be removed at an appropriate time

to ensure final stabilization is

maintained, or that all storm water

discharges associated with construction

activities from the identified site that

are authorized by a NPDES general

permit have otherwise been eliminated

from the portion of the construction site

where the operator had control.

B. Addresses

1. All Notices of Termination, signed

in accordance with Part VI.G of this

permit, are to be submitted using the

form provided by the Director (or a

photocopy thereof), to the address

specified on the NOT form.

Part IX. Definitions

A. Best Management Practices

(‘‘BMPs’’) means schedules of activities,

prohibitions of practices, maintenance

procedures, and other management

practices to prevent or reduce the

discharge of pollutants to waters of the

United States. BMPs also include

treatment requirements, operating

procedures, and practices to control

plant site runoff, spillage or leaks,

sludge or waste disposal, or drainage

from raw material storage.

B. Control Measure as used in this

permit, refers to any Best Management

Practice or other method used to

prevent or reduce the discharge of

pollutants to waters of the United

States.

C. Commencement of Construction

the initial disturbance of soils

associated with clearing, grading, or

excavating activities or other

construction activities.

D. CWA means the Clean Water Act or

the Federal Water Pollution Control Act,

33 U.S.C. § 1251 et seq.

E. Director means the Regional

Administrator of the Environmental

Protection Agency or an authorized

representative.

F. Discharge when used without

qualification means the ‘‘discharge of a

pollutant.’’

G. Discharge of Storm Water

Associated With Construction Activity

as used in this permit, refers to a

discharge of pollutants in storm water

runoff from areas where soil disturbing

activities (e.g., clearing, grading, or

excavation), construction materials or

equipment storage or maintenance (e.g.,

fill piles, borrow areas, concrete truck

washout, fueling), or other industrial

storm water directly related to the

construction process (e.g., concrete or

asphalt batch plants) are located.

H. Facility or Activity means any

NPDES ‘‘point source’’ or any other

facility or activity (including land or

appurtenances thereto) that is subject to

regulation under the NPDES program.

I. Final Stabilization means that

either:

1. All soil disturbing activities at the

site have been completed and a uniform

(e.g., evenly distributed, without large

bare areas) perennial vegetative cover

with a density of 70% of the native

background vegetative cover for the area
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36509

has been established on all unpaved

areas and areas not covered by

permanent structures, or equivalent

permanent stabilization measures (such

as the use of riprap, gabions, or

geotextiles) have been employed. In

some parts of the country, background

native vegetation will cover less than

100% of the ground (e.g., arid areas,

beaches). Establishing at least 70% of

the natural cover of native vegetation

meets the vegetative cover criteria for

final stabilization (e.g., if the native

vegetation covers 50% of the ground,

70% of 50% would require 35% total

cover for final stabilization; on a beach

with no natural vegetation, no

stabilization is required); or

2. For individual lots in residential

construction by either: (a) the

homebuilder completing final

stabilization as specified above, or (b)

the homebuilder establishing temporary

stabilization including perimeter

controls for an individual lot prior to

occupation of the home by the

homeowner and informing the

homeowner of the need for, and benefits

of, final stabilization. (Homeowners

typically have an incentive to put in

landscaping functionally equivalent to

final stabilization as quick as possible to

keep mud out of their homes and off

their sidewalks and driveways.); or

3. For construction projects on land

used for agricultural purposes (e.g.,

pipelines across crop or range land),

final stabilization may be accomplished

by returning the disturbed land to its

preconstruction agricultural use. Areas

disturbed that were not previously used

for agricultural activities, such as buffer

strips immediately adjacent to ‘‘waters

of the United States,’’ and areas which

are not being returned to their

preconstruction agricultural use must

meet the final stabilization criteria in (1)

or (2) above.

J. Flow-Weighted Composite Sample

means a composite sample consisting of

a mixture of aliquots collected at a

constant time interval, where the

volume of each aliquot is proportional

to the flow rate of the discharge.

K. Large and Medium Municipal

Separate Storm Sewer System means all

municipal separate storm sewers that

are either:

1. Located in an incorporated place

(city) with a population of 100,000 or

more as determined by the latest

Decennial Census by the Bureau of

Census (these cities are listed in

Appendices F and G of 40 CFR 122); or

2. Located in the counties with

unincorporated urbanized populations

of 100,000 or more, except municipal

separate storm sewers that are located in

the incorporated places, townships or

towns within such counties (these

counties are listed in Appendices H and

I of 40 CFR 122); or

3. Owned or operated by a

municipality other than those described

in paragraph (i) or (ii) and that are

designated by the Director as part of the

large or medium municipal separate

storm sewer system.

L. NOI means Notice of Intent to be

covered by this permit (see Part II of this

permit).

M. NOT means Notice of Termination

(see Part VIII of this permit).

N. Operator for the purpose of this

permit and in the context of storm water

associated with construction activity,

means any party associated with a

construction project that meets either of

the following two criteria:

1. The party has operational control

over construction plans and

specifications, including the ability to

make modifications to those plans and

specifications; or

2. The party has day-to-day

operational control of those activities at

a project which are necessary to ensure

compliance with a storm water

pollution prevention plan for the site or

other permit conditions (e.g., they are

authorized to direct workers at a site to

carry out activities required by the

SWPPP or comply with other permit

conditions).

This definition is provided to inform

permittees of EPA’s interpretation of

how the regulatory definitions of

‘‘owner or operator’’ and ‘‘facility or

activity’’ are applied to discharges of

storm water associated with

construction activity.

O. Owner or operator means the

owner or operator of any ‘‘facility or

activity’’ subject to regulation under the

NPDES program.

P. Point Source means any

discernible, confined, and discrete

conveyance, including but not limited

to, any pipe, ditch, channel, tunnel,

conduit, well, discrete fissure,

container, rolling stock, concentrated

animal feeding operation, landfill

leachate collection system, vessel or

other floating craft from which

pollutants are or may be discharged.

This term does not include return flows

from irrigated agriculture or agricultural

storm water runoff.

Q. Pollutant is defined at 40 CFR

122.2. A partial listing from this

definition includes: dredged spoil, solid

waste, sewage, garbage, sewage sludge,

chemical wastes, biological materials,

heat, wrecked or discarded equipment,

rock, sand, cellar dirt, and industrial or

municipal waste.

R. Runoff coefficient means the

fraction of total rainfall that will appear

at the conveyance as runoff.

S. Storm Water means storm water

runoff, snow melt runoff, and surface

runoff and drainage.

T. Storm Water Associated With

Industrial Activity is defined at 40 CFR

122.26(b)(14) and incorporated here by

reference. Most relevant to this permit is

40 CFR 122.26(b)(14)(x), which relates

to construction activity including

clearing, grading and excavation

activities that result in the disturbance

of five (5) or more acres of total land

area, or are part of a larger common plan

of development or sale.

U. Waters of the United States means:

1. All waters which are currently

used, were used in the past, or may be

susceptible to use in interstate or foreign

commerce, including all waters which

are subject to the ebb and flow of the

tide;

2. All interstate waters, including

interstate ‘‘wetlands’’;

3. All other waters such as interstate

lakes, rivers, streams (including

intermittent streams), mudflats,

sandflats, wetlands, sloughs, prairie

potholes, wet meadows, playa lakes, or

natural ponds, the use, degradation, or

destruction of which would affect or

could affect interstate or foreign

commerce including any such waters:

a. Which are or could be used by

interstate or foreign travelers for

recreational or other purposes;

b. From which fish or shellfish are or

could be taken and sold in interstate or

foreign commerce; or

c. Which are used or could be used for

industrial purposes by industries in

interstate commerce;

4. All impoundments of waters

otherwise defined as waters of the

United States under this definition;

5. Tributaries of waters identified in

paragraphs (a) through (d) of this

definition;

6. The territorial sea; and

7. Wetlands adjacent to waters (other

than waters that are themselves

wetlands) identified in paragraphs 1.

through 6. of this definition.

Waste treatment systems, including

treatment ponds or lagoons designed to

meet the requirements of the CWA

(other than cooling ponds for steam

electric generation stations per 40 CFR

423 which also meet the criteria of this

definition) are not waters of the United

States. Waters of the United States do

not include prior converted cropland.

Notwithstanding the determination of

an area’s status as prior converted

cropland by any other federal agency,

for the purposes of the Clean Water Act,

the final authority regarding Clean
36510 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

Water Act jurisdiction remains with

EPA.

Part X. Permit Conditions Applicable to

Specific States and Indian Country

Lands

The provisions of this Part provide

additions to the applicable conditions of

Parts I through IX of this permit to

reflect specific additional conditions

required as part of the State or Tribal

CWA Section 401 certification process.

The additional revisions and

requirements listed below are set forth

in connection with, and only apply to,

the following States and Indian Country

lands.

1. LAR10*##I: Indian Country Lands in

the State of Louisiana

No additional requirements.

2. NMR10*###: The State of New

Mexico, Except Indian Country Lands

No additional requirements.

3. NMR10*##I: Indian Country Lands in

the State of New Mexico, Except Navajo

Reservation Lands (see Region 9) and

Ute Mountain Reservation Lands (see

Region 8)

a. Pueblo of Isleta. Copies of Notices

of Intent (NOI), Notices of Termination

(NOT), and Storm Water Pollution

Prevention Plans (SWPPPs) must be

submitted to the Pueblo of Isleta’s

Environment Department, Water Quality

Program.

(1) Part II.C.2 of the permit is added

as follows:

Special NOI Requirements for the

Pueblo of Isleta. NOIs shall also be

submitted to the Pueblo of Isleta’s

Environment Department, Water Quality

Program, concurrently with their

submission to EPA at the following

address: Isleta Environment

Department, Water Quality Program,

Pueblo of Isleta, PO Box 1270, Isleta,

New Mexico 87022.

(2) Part VIII.B.2 is added to the permit

as follows:

Special NOI Requirements for the

Pueblo of Isleta. NOTs shall also be

submitted to the Pueblo of Isleta’s

Environment Department, Water Quality

Program, concurrently with their

submission to EPA. NOTs are to be sent

to the address given in Part II.C.2.

(3) Part IV.A.3 is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Requirements for the

Pueblo of Isleta. Storm water pollution

prevention plans must be submitted to

the Pueblo of Isleta Environment

Department, Water Quality Program, ten

working days prior to commencing the

project on Pueblo of Isleta tribal lands.

SWPPPs are to be sent to the address

given in Part II.C.2.

b. Pueblo of Nambe. Copies of Notices

of Intent (NOI), Notices of Termination

(NOT), and Storm Water Pollution

Prevention Plans (SWPPPs) must be

submitted to the Pueblo of Nambe

Department of Environment and Natural

Resources.

(1) Part II.C.2 is added to the permit

as follows:

Special NOI Requirements for the

Pueblo of Nambe. NOIs shall also be

submitted to the Pueblo of Nambe

Department of Environment and Natural

Resources at the same time they are

submitted to EPA at the following

address: Pueblo of Nambe, Department

of Environment and Natural Resources,

Route 1 Box 11788, Santa Fe, New

Mexico 87501, Phone (505) 455–2036,

Fax (505) 455–2038.

(2) Part VIII.B.2 is added to the permit

as follows:

Special NOT Requirements for the

Pueblo of Nambe. NOTs shall also be

submitted to the Pueblo of Nambe

Department of Environment and Natural

Resources at the same time they are

submitted to EPA. NOTs are to be sent

to the address given in Part II.C.2.

(3) Part IV.A.3 is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Requirements for the

Pueblo of Nambe. Storm water pollution

prevention plans must be submitted to

the Pueblo of Nambe Department of

Environment and Natural Resources

before the project on Pueblo of Nambe

tribal lands begins. SWPPPs are to be

sent to the address given in Part II.C.2.

c. Pueblo of Picuris. Copies of Notices

of Intent (NOI), Notices of Termination

(NOT), and Storm Water Pollution

Prevention Plans (SWPPPs) must be

submitted to the Pueblo of Picuris

Environment Department.

(1) Part II.C.2 is added to the permit

as follows:

Special NOI Requirements for the

Pueblo of Picuris. NOIs shall also be

submitted to the Pueblo of Picuris

Environment Department at the same

time they are submitted to EPA at the

following address: Pueblo of Picuris,

Environment Department, P.O. Box 127,

Penasco, New Mexico 87553, Phone

(505) 587–2519, Fax (505) 587–1071.

(2) Part VIII.B.2 is added to the permit

as follows:

Special NOT Requirements for the

Pueblo of Picuris. NOTs shall also be

submitted to the Pueblo of Picuris

Environment Department at the same

time they are submitted to EPA. NOTs

are to be sent to the address given in

Part II.C.2.

(3) Part IV.A.3 is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Requirements for the

Pueblo of Picuris. Storm water pollution

prevention plans must be submitted to

the Picuris Environment Department

before the project on Pueblo of Picuris

tribal lands begins. SWPPPs are to be

sent to the address given in Part II.C.2.

d. Pueblo of Pojoaque. Copies of

Notices of Intent (NOI), Notices of

Termination (NOT), and Storm Water

Pollution Prevention Plans (SWPPPs)

must be submitted to the Pueblo of

Pojoaque Environment Department

Director.

(1) Part II.C.2 is added to the permit

as follows:

Special NOI Requirements for the

Pueblo of Pojoaque. NOIs shall also be

submitted to the Pueblo of Pojoaque

Environment Department Director at the

same time they are submitted to EPA at

the following address: Pueblo of

Pojoaque, Environment Department,

Route 11, P.O. Box 208, Santa Fe, New

Mexico 87501, Phone (505) 455–3383,

Fax (505) 455–3633.

(2) Part VIII.B.2 of the permit is added

as follows:

Special NOT Requirements for the

Pueblo of Pojoaque. NOTs shall also be

submitted to the Pueblo of Pojoaque

Environment Department Director at the

same time they are submitted to EPA.

NOTs are to be sent to the address given

in Part II.C.2.

(3) Part IV.A.3 is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Requirements for the

Pueblo of Pojoaque. Storm water

pollution prevention plans must be

submitted to the Pueblo of Pojoaque

Environment Department Director

before the project on Pueblo of Pojoaque

tribal lands begins. SWPPPs are to be

sent to the address given in Part II.C.2.

e. Pueblo of San Juan. No additional

requirements.

f. Pueblo of Sandia. Copies of Notices

of Intent (NOI), Notices of Termination

(NOT), and Storm Water Pollution

Prevention Plans (SWPPPs) must be

submitted to the Pueblo of Sandia

Environment Department.

(1) Part II.C.2 of the permit is added

as follows:

Special NOI Requirements for the

Pueblo of Sandia. NOIs shall also be

submitted to the Pueblo of Sandia

Environment Department at the same

time they are submitted to EPA at the

following address: Pueblo of Sandia,

Environment Department, Box 6008,

Bernalillo, New Mexico 87004, Phone

(505) 867–4533; Fax (505) 867–9235.
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36511

1Section 9 of the ESA prohibits any person from

‘‘taking’’ a listed species (e.g., harassing or harming

it) unless: (1) the taking is authorized through a

‘‘incidental take statement’’ as part of undergoing

ESA § 7 formal consultation; (2) where an

incidental take permit is obtained under ESA § 10

(which requires the development of a habitat

conservation plan); or (3) where otherwise

authorized or exempted under the ESA. This

prohibition applies to all entities including private

individuals, businesses, and governments.

(2) Part VIII.B.2 is added to the permit

as follows:

Special NOT Requirements for the

Pueblo of Sandia. NOTs shall also be

submitted to the Pueblo of Sandia

Environment Department at the same

time they are submitted to EPA. NOTs

are to be sent to the address given in

Part II.C.2.

(3) Part IV.A.3 is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Requirements for the

Pueblo of Sandia. Storm water pollution

prevention plans must be submitted to

the Pueblo of Sandia Environment

Department before commencement of

the project on Pueblo of Sandia tribal

lands. SWPPPs are to be sent to the

address given in Part II.C.2.

g. Pueblo of Tesuque. Copies of

Notices of Intent (NOI), Notices of

Termination (NOT), Storm Water

Pollution Prevention Plans (SWPPPs),

inspection reports, all certifications and

‘‘other information’’ must be submitted,

by hand delivery or certified mail, to the

Pueblo of Tesuque.

(1) Part II.C.2 of the permit is added

as follows:

Special NOI Requirements for the

Pueblo of Tesuque. NOIs shall also be

submitted to the Pueblo of Tesuque at

least five (5) days prior to any ground

disturbing activity at the following

address: Pueblo of Tesuque,

Environment Department, Route 5, Box

3260–T, Santa Fe, New Mexico 87501,

Phone (505) 983–2667; Fax (505) 982–

2331.

(2) Part VIII.B.2 is added to the permit

as follows:

Special NOT Requirements for the

Pueblo of Tesuque. NOTs shall also be

submitted to the Pueblo of Tesuque at

the same time they are submitted to

EPA. NOTs are to be sent to the address

given in Part II.C.2.

(3) Part IV.A.3 is added to the permit

as follows:

Special Storm Water Pollution

Prevention Plan Requirements for the

Pueblo of Tesuque. Storm water

pollution prevention plans must be

submitted to the Pueblo of Tesuque at

least five (5) days prior to any ground

disturbing activity on Pueblo of Tesuque

tribal lands. SWPPPs are to be sent to

the address given in Part II.C.2.

(4) Part V.D is added to the permit as

follows:

Special Reporting Requirements for

the Pueblo of Tesuque. Copies of all

certifications required by Section IV.D,

and copies of ‘‘other information’’

required by Section VI.F shall be

provided to the Pueblo of Tesuque, by

hand delivery or certified mail. Also,

copies of all inspection reports required

under Section IV.D.4.c. shall be

submitted within five (5) days of

completion of the inspection. All

information sent to the Pueblo of

Tesuque is to be sent to the address

given in Part II.C.2.

h. Santa Clara Pueblo. Copies of

Notices of Intent (NOI) and Notices of

Termination (NOT) must be submitted

to the Santa Clara Pueblo Governors

Office with a copy to the Office of

Environmental Affairs.

(1) Part I.C.4. is added to the permit

as follows:

Special Authorization Requirements

for the Santa Clara Pueblo. Prior to

submitting a Notice of Intent, the

operator must obtain permission from

the Santa Clara Governors Office to do

the construction. If the project is

approved by the tribal administration,

the operator may proceed with

submitting a Notice of Intent (NOI).

(2) Part II.C.2 is added to the permit

as follows:

Special NOI Requirements for the

Santa Clara Pueblo. NOIs shall also be

submitted to the Santa Clara Pueblo

Governors Office with a copy to the

Office of Environmental Affairs at least

two (2) weeks prior to the start of

construction at the following address:

Santa Clara Governors Office, PO Box

580, Espanola, New Mexico 87532,

Phone (505) 753–7326; Fax (505) 753–

8988.

(3) Part VIII.B.2 is added to the permit

as follows:

Special NOT Requirements for the

Santa Clara Pueblo. NOTs shall also be

submitted to the Santa Clara Pueblo

Governors Office with a copy to the

Office of Environmental Affairs at least

two (2) weeks prior to the start of

construction. NOTs are to be sent to the

address given in Part II.C.2.

i. All Other Indian Country lands in

New Mexico. No additional

requirements.

4. OKR10*##I: Indian Country Lands in

the State of Oklahoma

No additional requirements.

5. OKR10*##F: Oil and Gas Sites in the

State of Oklahoma

No additional requirements.

6. TXR10*###: The State of Texas,

Except Indian Country Lands

a. Part III of the permit is modified as

follows: Change the title of Part III.

(Special Conditions, Management

Practices, and other Non-Numeric

Limitations) to: Part III. Special

Conditions, Management Practices, and

other Limitations.

b. Part III.G is added to the permit as

follows:

Special Numeric Limitations for

Discharges from Ready-Mixed Concrete

Plants in the State of Texas, except

Indian Country lands. All discharges of

storm water from ready-mixed concrete

plants covered by this permit must

comply with the following limitations:

pH—Between 6.0 and 9.0 standard units

Oil and Grease—15 mg/l as a daily

maximum

Total Suspended Solids—65 mg/l as a

daily maximum

These limitations must be taken into

account when designing the storm water

control measures to be used for areas

draining any ready-mixed concrete

plants operated by the permittee.

7. TXR10*##I: Indian Country Lands in

the State of Texas

No additional requirements.

Addendum A—Endangered Species

I. Instructions for Applicants

A. Background

To meet its obligations under the Clean

Water Act and the Endangered Species Act

(ESA) and to promote those Acts’ goals, the

Environmental Protection Agency (EPA) is

seeking to ensure the activities regulated by

the Construction General Permit (CGP) are

protective of endangered and threatened

species and critical habitat. To ensure that

those goals are met, applicants for CGP

coverage are required under Part I.B.3.e. to

assess the impacts of their storm water

discharges and storm water discharge-related

activities on Federally listed endangered and

threatened species (‘‘listed species’’) and

designated critical habitat (‘‘critical habitat’’)

by following Steps One through Six listed

below. EPA strongly recommends that

applicants follow these steps at the earliest

possible stage to ensure that measures to

protect listed species and critical habitat are

incorporated early in the planning process.

At minimum, the procedures should be

followed when developing the storm water

pollution prevention plan.

Permittees and applicants also have an

independent ESA obligation to ensure that

their activities do not result in any prohibited

‘‘takes’’ of listed species.1 Many of the

measures required in the CGP and in these

instructions to protect species may also assist

permittees in ensuring that their construction

activities do not result in a prohibited take

of species in violation of § 9 of the ESA.

Applicants who plan construction activities

in areas that harbor endangered and

threatened species are advised to ensure that
36512 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

they are protected from potential takings

liability under ESA § 9 by obtaining either an

ESA § 10 permit or by requesting formal

consultation under ESA § 7 (as described in

more detail in Step Seven below). Applicants

who seek protection from takings liability

should be aware that it is possible that some

specific construction activities may be too

unrelated to storm water discharges to be

afforded incidental take coverage through an

ESA § 7 consultation that is performed to

meet the eligibility requirements for CGP

coverage. In such instances, applicants

should apply for an ESA § 10 permit. Where

applicants are not sure whether to pursue a

§ 10 permit or a § 7 consultation for takings

protection, they should confer with the

appropriate Fish and Wildlife Service (FWS)

or National Marine Fisheries Service (NMFS)

office.

This permit provides for the possibility of

multiple permittees at a construction site.

Applicants should be aware that in many

cases they can meet the permit eligibility

requirements by relying on another operator’s

certification of eligibility under Part

I.B.3.e.(2)(a), (b), or (c). This is allowed under

Part I.B.3.e.(2)(d) of the permit. However, the

other operator’s certification must apply to

the applicant’s project area and must address

the effects from the applicant’s storm water

discharges and storm water discharge-related

activities on listed species and critical

habitat. By certifying eligibility under Part

I.B.3.e.(2)(d), the applicant agrees to comply

with any measures or controls upon which

the other operator’s certification under Part

I.B.3.e.(2)(a), (b) or (c) was based. This

situation will typically occur where a

developer or primary contractor, such as one

for construction of a subdivision or industrial

park, conducts a comprehensive assessment

of effects on listed species and critical habitat

for the entire construction project, certifies

eligibility under Part I.B.3.e.(2)(a), (b) or (c),

and that certification is relied upon by other

operators (i.e., contractors) at the site.

However, applicants that consider relying on

another operator’s certification should

carefully review that certification along with

any supporting information. If an applicant

does not believe that the operator’s

certification provides adequate coverage for

the applicant’s storm water discharges and

storm water discharge-related activities or for

the applicant’s particular project area, the

applicant should provide its own

independent certification under Part

I.B.3.e.(2)(a), (b), or (c).

B. Procedures

To receive coverage under the Construction

General Permit, applicants must assess the

potential effects of their storm water

discharges and storm water discharge-related

activities on listed species and their critical

habitat. To make this assessment, applicants

must follow the steps outlined below prior to

completing and submitting Notice of Intent

(NOI) form. Applicants who are able to

certify eligibility under Parts I.B.3.e.(2)(b), (c)

or (d) because of a previously issued ESA

§ 10 permit, a previously completed ESA § 7

consultation, or because the applicant’s

activities were already addressed in another

operator’s certification of eligibility may

proceed directly to Step Six.

Note.—The revised NOI form which was

included in the CGP (see 62 FR 29822–29823,

June 2, 1997) requires that applicants provide

detailed certification information on listed

species. That form is still under development

and is not expected to be finalized before this

permit is issued. Until the revised NOI form

is finalized, applicants must use the existing

NOI form which does not contain the specific

certification provisions relating to listed

species and critical habitats at construction

projects. However, use of the existing NOI

form does not relieve applicants of their

obligation to follow the procedures listed

below to determine if their construction

storm water discharges or storm water

discharge-related activities meet permit

eligibility requirements for the protection of

listed species and critical habitat. By

following these instructions, applicants will

have sufficient information on listed species

and critical habitat in order to complete

either the existing or revised NOI form and

sign the certification statement.

Step One: Determine if the Construction Site

Is Found Within Designated Critical Habitat

for Listed Species

Some, but not all, listed species have

designated critical habitat. Exact locations of

such habitat is provided in the Service

regulations at 50 CFR Parts 17 and 226. To

determine if their construction site occurs

within designated critical habitat, applicants

should either:

• Contact the nearest Fish and Wildlife

Service (FWS) and National Marine Fisheries

Service (NMFS) Office. A list of FWS and

NMFS offices is found in Section II of this

Addendum; or

• Contact the State or Tribal Natural

Heritage Centers. These centers compile and

disseminate information on Federally listed

and other protected species. They frequently

have the most current information on listed

species and critical habitat. A list of these

centers is provided in Section III of this

Addendum; or

• Review those regulations (which can be

found in many larger libraries).

If the construction site is not located in

designated critical habitat, then the applicant

does not need to consider impacts to critical

habitat when following Steps Two through

Six below. If the site is located within critical

habitat, then the applicant must look at

impacts to critical habitat when following

Steps Two through Six. Note that many but

not all measures imposed to protect listed

species under these steps will also protect

critical habitat. Thus, meeting the eligibility

requirements of this permit may require

measures to protect critical habitat that are

separate from those to protect listed species.

Step Two: Determine if Listed Species Are

Located in the County(ies) Where the

Construction Activity Will Occur

Section IV of the Addendum contains a

county-by-county list of listed endangered

and threatened species (‘‘listed species’’), and

proposed endangered and threatened species

(‘‘proposed species’’). Since the list was

current as of September 1, 1997, applicants

must also check with other sources for

updated species and county information.

These sources include: Sections II and III of

this Addendum; EPA’s Office of Wastewater

Management’s web page at ‘‘http://

www.epa.gov/owm’’ where updates of the

county-by-county list will be posted on a

periodic basis; Federal Register Notices;

State wildlife protection offices; a biologist or

similar professional in the environmental

field; or any other method which can be

reasonably expected to provide this

information. Applicants with construction

projects located in EPA Region 2 and Region

6 can call the Storm Water General Permits

Hotline at (800) 245–6510 for further

assistance, while applicants with projects

located in EPA Regions 1, 3, 7, 8, 9 and 10

may contact the appropriate EPA Regional

Office.

Where a facility is located in more than

one county, the lists for all counties should

be reviewed. Where a facility discharges into

a water body which serves as a border

between counties or which crosses a county

line which is in the immediate vicinity of the

point of discharge, applicants should also

review the species list for the county which

lies immediately downstream or is across the

water body from the point of discharge.

After a review of the available information

from the sources mentioned above, if no

listed species are located in a facility’s

county or if a facility’s county is not listed,

and the construction site is not located in

critical habitat as described under Step One,

an applicant is eligible for CGP coverage

without further inquiry into the presence of,

or effect to, listed species. The applicant

must check the appropriate certification item

on the revised NOI form (Part I.B.3.e.(2)(a)).

Once the applicant has determined which

listed species are located in his or her

facility’s county, the applicant must follow

Step Three.

Step Three: Determine if any Federally Listed

Endangered and Threatened Species May Be

Present in the Project Area

The project area consists of:

• The areas on the construction site where

storm water discharges originate and flow

toward the point of discharge into the

receiving waters (including areas where

excavation, site development, or other

ground disturbance activities occur) and the

immediate vicinity.

Example(s)

1. Where bald eagles nest in a tree that is

on or bordering a construction site and could

be disturbed by the construction activity.

2. Where grading causes storm water to

flow into a small wetland or other habitat

that is on the site which contains listed

species.

• The areas where storm water discharges

flow from the construction site to the point

of discharge into receiving waters.

Example(s)

1. Where storm water flows into a ditch,

swale, or gully which leads to receiving

waters and where listed species (such as

amphibians) are found in the ditch, swale, or

gully.

• The areas where storm water from

construction activities discharge into

receiving waters and the areas in the

immediate vicinity of the point of discharge.
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36513

Example(s)

1. Where storm water from construction

activities discharges into a stream segment

that is known to harbor listed aquatic

species.

• The areas where storm water BMPs will

be constructed and operated, including any

areas where storm water flows to and from

BMPs.

Example(s)

1. Where a storm water retention pond

would be built.

The project area will vary with the size and

structure of the construction activity, the

nature and quantity of the storm water

discharges, the storm water discharge-related

activities and the type of receiving water.

Given the number of construction activities

potentially covered by the CGP, no specific

method to determine whether listed species

may be located in the project area is required

for coverage under the CGP. Instead,

applicants should use the method which

allows them to determine, to the best of their

knowledge, whether listed species are

located in their project area. These methods

may include:

• Conducting visual inspections: This

method may be particularly suitable for

construction sites that are smaller in size or

located in non-natural settings such as highly

urbanized areas or industrial parks where

there is little or no natural habitat, or for

construction activities that discharge directly

into municipal storm water collection

systems.

• Contacting the nearest State or Tribal

wildlife agency, the Fish and Wildlife

Service (FWS), or the National Marine

Fisheries Service (NMFS). Many endangered

and threatened species are found in welldefined areas or habitats. Such information is

frequently known to State, Tribal, or Federal

wildlife agencies. A list of FWS and NMFS

offices is provided in Section II of this

Addendum below.

• Contacting local/regional conservation

groups or the State or Tribal Natural Heritage

Centers (see Section III of this Addendum).

State and local conservation groups may have

location specific listed species information.

The Natural Heritage Centers inventory

species and their locations and maintain lists

of sightings and habitats.

• Submitting a data request to a Natural

Heritage Center. Many of these centers will

provide site specific information on the

presence of listed species in a project area.

Some of these centers will charge a fee for

researching data requests.

• Conducting a formal biological survey.

Larger construction sites with extensive

storm water discharges may choose to

conduct biological surveys as the most

effective way to assess whether species are

located in the project area and whether there

are likely adverse effects. Biological surveys

are frequently performed by environmental

consulting firms. A biological survey can be

used to follow Steps Four through Six of

these instructions.

• Conducting an environmental

assessment under the National

Environmental Policy Act (NEPA). Some

construction activities may require

environmental assessments under NEPA.

Such assessments may indicate if listed

species are in the project area. Coverage

under the CGP does not trigger such an

assessment because the permit does not

regulate any dischargers subject to New

Source Performance Standards under Section

306 of the Clean Water Act, and is thus

statutorily exempted from NEPA. See CWA

§ 511(c). However, some construction

activities might require review under NEPA

because of Federal funding or other Federal

involvement in the project.

If no species are found in the project area,

an applicant is eligible for CGP coverage.

Applicants must provide the necessary

certification on the revised NOI form. If listed

species are found in the project area,

applicants must indicate the location and

nature of this presence in the storm water

pollution prevention plan and follow Step

Four.

Step Four: Determine if Listed Species or

Critical Habitat Are Likely To Be Adversely

Affected by the Construction Activity’s Storm

Water Discharges or Storm Water DischargeRelated Activities

To receive CGP coverage, applicants must

assess whether their storm water discharges

or storm water discharge-related activities are

likely to adversely affect listed species or

critical habitat. ‘‘Storm water dischargerelated activities’’ include:

• Activities which cause, contribute to, or

result in point source storm water pollutant

discharges, including but not limited to

excavation, site development, grading, and

other surface disturbance activities; and

• Measures to control storm water

discharges including the siting, construction,

operation of best management practices

(BMPs) to control, reduce or prevent storm

water pollution.

Potential adverse effects from storm water

discharges and storm water discharge-related

activities include:

• Hydrological. Storm water discharges

may cause siltation, sedimentation or induce

other changes in receiving waters such as

temperature, salinity or pH. These effects

will vary with the amount of storm water

discharged and the volume and condition of

the receiving water. Where a storm water

discharge constitutes a minute portion of the

total volume of the receiving water, adverse

hydrological effects are less likely.

Construction activity itself may also alter

drainage patterns on a site where

construction occurs which can impact listed

species or critical habitat.

• Habitat. Excavation, site development,

grading, and other surface disturbance

activities from construction activities,

including the installation or placement of

storm water BMPs, may adversely affect

listed species or their habitat. Storm water

may drain or inundate listed species habitat.

• Toxicity. In some cases, pollutants in

storm water may have toxic effects on listed

species.

The scope of effects to consider will vary

with each site. If the applicant is having

difficulty in determining whether his or her

project is likely to adversely Affect a listed

species or critical habitat, then the

appropriate office of the FWS, NMFS or

Natural Heritage Center listed in Sections II

and III of this Addendum should be

contacted for assistance. If adverse effects are

not likely, then the applicant should make

the appropriate certification on the revised

NOI form and apply for coverage under the

permit. If adverse effects are likely,

applicants must follow Step Five.

Step Five: Determine if Measures Can Be

Implemented To Avoid Any Adverse Effects

If an applicant makes a preliminary

determination that adverse effects are likely,

it can still receive coverage under Part

I.B.3.e.(2)(a) of the CGP if appropriate

measures are undertaken to avoid or

eliminate the likelihood of adverse effects

prior to applying for permit coverage. These

measures may involve relatively simple

changes to construction activities such as rerouting a storm water discharge to bypass an

area where species are located, relocating

BMPs, or by changing the ‘‘footprint’’ of the

construction activity. Applicants may wish to

contact the FWS and/or NMFS to see what

appropriate measures might be suitable to

avoid or eliminate the likelihood of adverse

impacts to listed species and/or critical

habitat. (See 50 CFR 402.13(b).) This can

entail the initiation of informal consultation

with the FWS and/or NMFS which is

described in more detail in Step Six.

If applicants adopt measures to avoid or

eliminate adverse effects, they must continue

to abide by those measures during the course

of permit coverage. These measures must be

described in the storm water pollution

prevention plan and may be enforceable as

permit conditions. If appropriate measures to

avoid the likelihood of adverse effects are not

available to the applicant, the applicant must

follow Step Six.

Step Six: Determine if the Eligibility

Requirements of Part I.B.3.e.(2)(b)–(d) Can Be

Met

Where adverse effects are likely, the

applicant must contact the EPA and FWS/

NMFS. Applicants may still be eligible for

CGP coverage if any likely adverse effects can

be addressed through meeting the criteria of

Part I.B.3.e.(2)(b)–(d) of the permit. These

criteria are as follows:

1. An ESA Section 7 Consultation Is

Performed for the Applicant’s Activity (See

Part I.B.3.e.(2)(b)

Formal or informal ESA § 7 consultation is

performed with the FWS and/or NMFS

which addresses the effects of the applicant’s

storm water discharges and storm water

discharge-related activities on listed species

and critical habitat. The formal consultation

must result in either a ‘‘no jeopardy opinion’’

or a ‘‘jeopardy opinion’’ that identifies

reasonable and prudent alternatives to avoid

jeopardy which are to be implemented by the

applicant. The informal consultation must

result in a written concurrence by the

Service(s) on a finding that the applicant’s

storm water discharge(s) and storm water

discharge-related activities are not likely to

adversely affect listed species or critical

habitat (for informal consultation, see 50 CFR

402.13).
36514 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

Most consultations are accomplished

through informal consultation. By the terms

of this permit, EPA has automatically

designated applicants as non-Federal

representatives for the purpose of conducting

informal consultations. See Part I.B.3.e.(5)

and 50 CFR 402.08 and 402.13. When

conducting informal ESA § 7 consultation as

a non-Federal representative, applicants must

follow the procedures found in 50 CFR 402

of the ESA regulations.

Applicants must also notify EPA and the

Services of their intention and agreement to

conduct consultation as a non-Federal

representative. Consultation may occur in the

context of another Federal action at the

construction site (e.g., where ESA § 7

consultation was performed for issuance of a

wetlands dredge and fill permit for the

project or where a NEPA review is performed

for the project which incorporates a section

7 consultation). Any terms and conditions

developed through consultations to protect

listed species and critical habitat must be

incorporated into the SWPPP. As noted

above, applicants may, if they wish, initiate

consultation with the Services at Step Five.

Whether ESA § 7 consultation must be

performed with either the FWS, NMFS or

both Services depends on the listed species

which may be affected by the applicant’s

activity. In general, NMFS has jurisdiction

over marine, estuarine, and anadromous

species. Applicants should also be aware that

while formal § 7 consultation provides

protection from incidental takings liability,

informal consultation does not.

2. An Incidental Taking Permit Under

Section 10 of the ESA Is Issued for the

Applicants Activity (See Part I.B.3.e.(2)(c))

The applicant’s construction activities are

authorized through the issuance of a permit

under § 10 of the ESA and that authorization

addresses the effects of the applicant’s storm

water discharge(s) and storm water

discharge-related activities on listed species

and critical habitat. Applicants must follow

FWS and/or NMFS procedures when

applying for an ESA Section 10 permit (see

50 CFR § 17.22(b)(1) (FWS) and § 222.22

(NMFS)). Application instructions for

Section 10 permits for NMFS species can be

obtained by (1) accessing the ‘‘Office of

Protected Resources’’ sector of the NMFS

Home Page at ‘‘http://www.nmfs.gov’’ or by

contacting the National Marine Fisheries

Service, Office of Protected Resources,

Endangered Species Division, F/PR3, 1315

East-West Highway, Silver Spring, Maryland

20910; telephone (301) 713–1401, fax (301)

713–0376.

3. The Applicant Is Covered Under the

Eligibility Certification of Another Operator

for the Project Area (See Part I.B.3.e.(2)(d))

The applicant’s storm water discharges and

storm water discharge-related activities were

already addressed in another operator’s

certification of eligibility under Part

I.B.3.e.(2)(b), or (c) which also included the

applicant’s project area. By certifying

eligibility under Part I.B.3.e.(2)(d), the

applicant agrees to comply with any

measures or controls upon which the other

operator’s certification under Part

I.B.3.e.(2)(a), (b) or (c) was based.

Certification under Part I.B.3.e.(2)(d) is

discussed in more detail in Section I.A. of

this addendum.

The applicant must comply with any terms

and conditions imposed under the eligibility

requirements of paragraphs I.B.3.e(2)(a), (b),

(c), (d) to ensure that its storm water

discharges and storm water discharge-related

activities are protective of listed species and/

or critical habitat. Such terms and conditions

must be incorporated in the project’s SWPPP.

If the eligibility requirements of Part

I.B.3.e.(2)(a)-(d) cannot be met, then the

applicant may not receive coverage under the

CGP. Applicants should then consider

applying to EPA for an individual permit.

II. List of Fish and Wildlife Service and

National Marine Fisheries Service Offices

A. U.S. Fish and Wildlife Service Offices

National Website for Endangered Species

Information

Endangered Species Home page: http://

www.fws.gov/r9endspp/endspp.html

Regional, State, Field and Project Offices

USFWS Region Two

Regional Office

Division Chief, Endangered Species, U.S.

Fish and Wildlife Service, ARD Ecological

Services, P.O. Box 1306, Albuquerque, NM

87103

State, Field, and Project Offices (Region Two)

Field Supervisor, U.S. Fish and Wildlife

Service, Corpus Christi Field Office, 6300

Ocean Dr., Campus Box 338, Corpus

Christi, TX 78412

Field Supervisor, U.S. Fish and Wildlife

Service, Arlington Field Office, 711

Stadium Dr., East, Suite 252, Arlington, TX

76011

Field Supervisor, U.S. Fish and Wildlife

Service, Clear Lake Field Office, 17629 El

Camino Real, Suite 211, Houston, TX

77058

Field Supervisor, U.S. Fish and Wildlife

Service, Oklahoma Field Office, 222 S.

Houston, Suite a, Tulsa, OK 74127

Field Supervisor, U.S. Fish and Wildlife

Service, New Mexico Field Office, 2105

Osuna, NE, Albuquerque, NM 87113

Field Supervisor, U.S. Fish and Wildlife

Service, Austin Ecological Serv. Field

Office, 10711 Burnet Road, Suite 200,

Austin, TX 78758

Field Supervisor, U.S. Fish and Wildlife

Service, Arizona State Office, 2321 W.

Royal Palm Road, Suite 103, Phoenix, AZ

85021–4951

USFWS Region Four

Regional Office

Division Chief, Endangered Species, U.S.

Fish and Wildlife Service, ARD—

Ecological Services, 1875 Century Blvd.,

Suite 200, Atlanta, GA 30345

State, Field, and Project Offices (Region Four)

Field Supervisor, U.S. Fish and Wildlife

Service, Panama City Field Office, 1612

June Avenue, Panama City, FL 32405–3721

Field Supervisor, U.S. Fish and Wildlife

Service, South Florida Ecosystem Field

Office, 1360 U.S. Hwy 1, #5; P.O. Box 2676,

Vero Beach, FL 32961–2676

Field Supervisor, U.S. Fish and Wildlife

Service, Caribbean Field Office, P.O. Box

491, Boqueron, PR 00622

Field Supervisor, U.S. Fish and Wildlife

Service, Puerto Rican Parrot Field Office,

P.O. Box 1600, Rio Grande, PR 00745

Field Supervisor, U.S. Fish and Wildlife

Service, Brunswick Field Office, 4270

Norwich Street, Brunswick, GA 31520–

2523

Field Supervisor, U.S. Fish and Wildlife

Service, Jacksonville Field Office, 6620

Southpoint Drive S., Suite 310,

Jacksonville, FL 32216–0912

Field Supervisor, U.S. Fish and Wildlife

Service, Charleston Field Office, 217 Ft.

Johnson Road, P.O. Box 12559, Charleston,

SC 29422–2559

Field Supervisor, U.S. Fish and Wildlife

Service, Clemson F.O., Dept. of Forest

Resources, 261 Lehotsky Hall, Box 341003,

Clemson, SC 29634–1003

Field Supervisor, U.S. Fish and Wildlife

Service, Raleigh Field Office, P.O. Box

33726, Raleigh, NC 27636–3726

Field Supervisor, U.S. Fish and Wildlife

Service, Cookeville Field Office, 446 Neal

Street, Cookeville, TN 38501

Field Supervisor, U.S. Fish and Wildlife

Service, Asheville Field Office, 160

Zillicoa Street, Asheville, NC 28801

Field Supervisor, U.S. Fish and Wildlife

Service, Daphne Field Office, P.O. Drawer

1190, Daphne, AL 36526

Field Supervisor, U.S. Fish and Wildlife

Service, Vicksburg Field Office, 2524 S.

Frontage Road, Suite B, Vicksburg, MS

39180–5269

Field Supervisor, U.S. Fish and Wildlife Svc.,

Lafayette Field Office, Brandywine II, Suite

102, 825 Kaliste Saloom Road, Lafayette,

LA 70508

Field Supervisor, U.S. Fish and Wildlife

Service, Jackson Field Office, 6578

Dogwood View Pkwy Suite A, Jackson, MS

39213

B. National Marine Fisheries Service Offices

The National Marine Fisheries Service is

developing a database to provide county and

territorial water (up to three miles offshore)

information on the presence of endangered

and threatened species and critical habitat.

The database is projected to be available to

the public sometime in December 1997. The

database should be found at the ‘‘Office of

Protected Resources’’ site on the NMFS

Homepage at ‘‘http://www.nmfs.gov’’.

Regional and Field Office

Southeast Region

Protective Species Management Branch,

National Marine Fisheries Service,

Southeast Region, 9721 Executive Center

Drive, St. Petersburg, Florida 33702–2432

III. Natural Heritage Centers

The Natural Heritage Network comprises

85 biodiversity data centers throughout the

Western Hemisphere. These centers collect,

organize, and share data relating to

endangered and threatened species and

habitat. The network was developed to

inform land-use decisions for developers,
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36515

corporations, conservationists, and

government agencies and is also consulted

for research and educational purposes. The

centers maintain a Natural Heritage Network

Control Server Website (http://

www.heritage.tnc.org) which provides

website and other access to a large number

of specific biodiversity centers. Some of these

centers are listed below:

Oklahoma Natural Heritage Inventory

Oklahoma Biological Survey, 111 East

Chesapeake Street, University of

Oklahoma, Norman, OK 73019–0575, 405/

325–1985 Fax: 405/325–7702, Web site:

http://obssun02.uoknor.edu/biosurvey/

onhi/home.html

Louisiana Natural Heritage Program

Department of Wildlife & Fisheries, P.O. Box

98000, Baton Rouge, LA 70898–9000, 504/

765–2821 Fax: 504/765–2607

Navajo Natural Heritage Program

P.O. Box 1480, Window Rock, Navajo Nation,

AZ 86515, (520) 871–7603, (520) 871–7069

(FAX)

Texas Biological and Conservation Data

System

3000 South IH–35, Suite 100, Austin, TX

78704, 512/912–7011 Fax: 512/912–7058

IV. County List of Endangered and

Threatened Species

Please see February 17, 1998, Federal

Register Vol. 63 no. 31 for county by county

listing or contact EPA Region 6 Storm Water

Hotline (1–800–245–6510). EPA’s Office of

Wastewater Management’s web page at

‘‘http://www.epa.gov/owm’’ will post

periodic updates of the county-by-county list.

You may also check the list of endangered

and threatened species published by the Fish

and Wildlife Service on the Endangered

Species Home Page (http://www.fws.gov/

∼r9endspp/enddspp.htm) which is also

attached to the FWS Home Page in the

‘‘Nationwide Activities Category’’. List of

species under NMFS jurisdiction can be

found on the NMFS Homepage

(http:www.nmfs.gov) under the ‘‘Protected

Resources Program.’’ Lists and maps of

critical habitat can be found in the Code of

Federal Regulations (CFRs) at 50 CFR parts

17 and 226.

Addendum B—Historic Properties

(Reserved)

Instructions related to historic preservation

have not been included in the permit at this

time. EPA may modify the permit to include

such provisions at a later date. This does not

relieve applicants or permittees of their

responsibility to comply with applicable

State, Tribal or local laws for the protection

of historic properties.

Addendum C—Revised Notice of Intent

Form

The Notice of Intent form (EPA3510–9)

replaces the Notice of Intent form (EPA

3510–6 (8–98)). The revised form is

contained in this Addendum. According to

the provisions in Part II.B.1 of this permit,

applicants are reminded they must certify

that they meet all eligibility requirements of

Part I.B. of this permit and are informing the

Director of their intent to be covered by, and

comply with, those terms and conditions.

These conditions include certifications that

the applicant’s storm water discharges and

storm water-related discharge activities will

not adversely affect listed endangered or

threatened species, or their critical habitat.

EPA may modify this permit to include

provisions relating to historic preservation.

BILLING CODE 6560–50–P
36516 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36517
36518 Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices

Addendum D—Notice of Termination Form

From the effective date of this permit, permittees are to use the existing Notice of Termination form (EPA Form 3510–7) contained

in this Addendum until they are instructed by the Director (EPA) to use a revised version. Permittees are to complete, sign and

submit the form in accordance with Part VIII of the permit when terminating permit coverage at a construction project when one

or more or the conditions contained in Part I.D.2 have been met.
Federal Register / Vol. 63, No. 128 / Monday, July 6, 1998 / Notices 36519

[FR Doc. 98–17521 Filed 7–2–98; 8:45 am]

BILLING CODE 6560–50–C