[Federal Register Volume 63, Number 128 (Monday, July 6, 1998)]
[Notices]
[Pages 36490-36519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-17521]


      

[[Page 36489]]

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Part II





Environmental Protection Agency





_______________________________________________________________________



Reissuance of NPDES General Permits for Storm Water Discharges From 
Construction Activities in Region 6; Notice

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

[[Page 36490]]



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.

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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 ``<a href="http://pipes.ehsg.saic.com/
pipes.htm">http://pipes.ehsg.saic.com/
pipes.htm</a>''.

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:
    <rt-triang> New conditions to protect listed endangered and 
threatened species and critical habitats;
    <rt-triang> 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.
    <rt-triang> 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;
    <rt-triang> 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:
    <rt-triang> You have operational control of construction project 
plans and specifications, including the ability to make modifications 
to those plans and specifications; or
    <rt-triang> 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):
    <rt-triang> 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.
    <rt-triang> 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

[[Page 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.
    <rt-triang> Owner and Contractor as Co-Permittees. 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:
    <rt-triang> 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
    <rt-triang> 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 five-acre 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 pre-existing 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

[[Page 36492]]

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:
    <rt-triang> The permit being reissued or replaced;
    <rt-triang> Submittal of a Notice of Termination (NOT);
    <rt-triang> Issuance of an individual permit for your activity; or
    <rt-triang> 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 pre-construction 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

[[Page 36493]]

the ESA as critical (``critical habitat''). In addition, the permit's 
coverage does not extend to discharges and discharge-related 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 Sec. 7 
or Sec. 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 Sec. 7 or Sec. 10 of the ESA which accounted for storm 
water discharges and BMPs to control storm water runoff; or
    4. Consultation under Sec. 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:
    <rt-triang> 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;
    <rt-triang> Located in the immediate vicinity of, or nearby, the 
point of discharge into receiving waters; or
    <rt-triang> 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-by-county 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 EPA-issued 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).

[[Page 36494]]

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 discharge-related 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 
discharge-related 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

[[Page 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 discharge-related 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 Sec. 205 generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of UMRA Sec. 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
UMRA Sec. 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 Sec. 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 Sec. 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 
Sec. 421(10) defines

[[Page 36496]]

``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 Sec. 553 of the Administrative 
Procedure Act. EPA does not propose to issue NPDES general permits 
based on APA Sec. 553. Instead, EPA relies on publication of general 
permits in the Federal Register in order to provide ``an opportunity 
for a hearing'' under CWA Sec. 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 Sec. 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 Sec. 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 Sec. 551(5). By its terms, then, 
Sec. 553 applies only to ``rules'' and not also to ``orders,'' which

[[Page 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 Sec. 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].

[[Page 36498]]

    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 area-specific 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 (non-storm 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 discharge-related 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

[[Page 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 discharge-related 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 
discharge-related 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 discharge-related 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 discharge-related 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

[[Page 36500]]

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 on-site.
    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 
discharge-related 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 Non-
Numeric 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

[[Page 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 pre-construction 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

[[Page 36502]]

contact the Texas General Land Office's Coastal Hotline at 1-800-85-
BEACH or access their Internet site at ``<a href="http://red.glo.state.tx.us/
res-mgmt/coastal/">http://red.glo.state.tx.us/
res-mgmt/coastal/</a>''. 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 ``<a href="http://red.glo.state.tx.us/
coastalpermits/">http://red.glo.state.tx.us/
coastalpermits/</a>''.

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 on-site 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

[[Page 36503]]

expected to be disturbed by excavation, grading, or other activities 
including off-site borrow and fill areas;
    d. An estimate of the runoff coefficient of the site for both the 
pre-construction 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 
discharge-related 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), semi-arid 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,

[[Page 36504]]

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, post-construction 
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

[[Page 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 non-
compliance. Where a report does not identify any incidents of non-
compliance, 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-

[[Page 36506]]

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

[[Page 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

[[Page 36508]]

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. Sec. 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

[[Page 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

[[Page 36510]]

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.

[[Page 36511]]

    (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 Sec. 9 of the ESA. Applicants who plan construction 
activities in areas that harbor endangered and threatened species 
are advised to ensure that

[[Page 36512]]

they are protected from potential takings liability under ESA Sec. 9 
by obtaining either an ESA Sec. 10 permit or by requesting formal 
consultation under ESA Sec. 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 Sec. 7 consultation 
that is performed to meet the eligibility requirements for CGP 
coverage. In such instances, applicants should apply for an ESA 
Sec. 10 permit. Where applicants are not sure whether to pursue a 
Sec. 10 permit or a Sec. 7 consultation for takings protection, they 
should confer with the appropriate Fish and Wildlife Service (FWS) 
or National Marine Fisheries Service (NMFS) office.
---------------------------------------------------------------------------

    \1\ Section 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 Sec. 7 formal consultation; (2) where an 
incidental take permit is obtained under ESA Sec. 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.
---------------------------------------------------------------------------

    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 Sec. 10 permit, a previously 
completed ESA Sec. 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:
    <bullet> 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
    <bullet> 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
    <bullet> 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:
    <bullet> 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.
    <bullet> 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.
    <bullet> The areas where storm water from construction 
activities discharge into receiving waters and the areas in the 
immediate vicinity of the point of discharge.

[[Page 36513]]

Example(s)

    1. Where storm water from construction activities discharges 
into a stream segment that is known to harbor listed aquatic 
species.
    <bullet> 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:
    <bullet> 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.
    <bullet> 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 well-defined 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 Sec. 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 Discharge-Related 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 discharge-related activities'' include:
    <bullet> 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
    <bullet> 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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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 re-routing 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 Sec. 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).

[[Page 36514]]

    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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 17.22(b)(1) (FWS) and Sec. 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,

[[Page 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 (<a href="http://
www.heritage.tnc.org">http://
www.heritage.tnc.org</a>) 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/
<difference>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.

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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.
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[FR Doc. 98-17521 Filed 7-2-98; 8:45 am]
BILLING CODE 6560-50-C