Construction General Permit (CGP)

Page 1 of 11

Economic Analysis – Cost Implications of the 2012 CGP

INTRODUCTION

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

the 2012 Construction General Permit (or “2012 CGP”). This analysis evaluates the cost 

implications of the significant changes to the permit. Each significant change is examined in 

light of the previous permit’s (the “2008 CGP”) requirements and the requirements of the 

Construction and Development Effluent Limitations Guideline and New Source Performance 

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

objective of this examination is to show where or to what extent the 2012 CGP includes 

requirements that impose an incremental increase in costs on permittees above and beyond 

costs that are already accounted for in the 2008 CGP or in the C&D rule requirements, which 

together define the baseline of costs to which these permittees are currently subject. 

BACKGROUND

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

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

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

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

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

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

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

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

February 15, 2012. The 2012 CGP replaces the 2008 CGP.

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

and the 2012 CGP, it is first necessary to provide summaries of the requirements in the 2008

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

The 2008 CGP

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

include conducting regular inspections and reporting releases of reportable quantities of 

hazardous substances. 
Construction General Permit (CGP)

Page 2 of 11

Effluent Limitations Guidelines and Standards, and the C&D Rule

NPDES permits issued for construction stormwater discharges are required under Section 

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

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

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

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

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

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

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

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

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

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

Therefore, the effluent limits in the 2008 CGP (and its predecessors) are (and have been) BPJtype requirements. With the promulgation on December 1, 2009 of the C&D rule (See 74 Fed. 

Reg. 62996, and 40 CFR 450.21), there was a set of national ELGs and new source performance 

standards that would apply to discharges from construction sites, and therefore would have 

been required to be incorporated into the CGP. A summary of the C&D rule non-numeric and 

numeric requirements is included below. As discussed under the section on numeric effluent 

limits, the numeric turbidity limit has been stayed, and, therefore, the 2012 CGP does not include 

the numeric limit. 

Non-Numeric Effluent Limits

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

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

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

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

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

dry weather discharges.

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

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

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

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

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

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

or may have been contributed by previous activities on the site, such as agricultural or industrial

activities. These pollutants, once mobilized by stormwater, can detach from the soil particles 

and become dissolved pollutants. Once dissolved, these pollutants would not be removed by 

down-slope sediment controls. Source control through minimization of soil erosion is therefore 

the most effective way of controlling the discharge of these pollutants. 

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

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

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

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

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

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

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

streambank erosion;
Construction General Permit (CGP)

Page 3 of 11

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

iv. Minimize the disturbance of steep slopes;

v. Minimize sediment discharges from the site. The design, installation and maintenance of 

erosion and sediment controls must address factors such as the amount, frequency, 

intensity and duration of precipitation, the nature of resulting stormwater runoff, and soil 

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

site;

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

vegetated areas to increase sediment removal and maximize stormwater infiltration, 

unless infeasible; and

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

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

stabilization measures immediately whenever any clearing, grading, excavating or other earth 

disturbing activities have permanently ceased on any portion of the site, or temporarily ceased 

on any portion of the site and will not resume for a period exceeding 14 calendar days. 

Stabilization must be completed within a period of time determined by the permitting authority. 

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

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

practicable.

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

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

appropriate controls. 

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

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

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

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

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

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

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

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

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

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

and leak prevention and response procedures.

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

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

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

compounds and other construction materials;

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

maintenance; and

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

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

to utilize outlet structures that withdraw water from the surface, unless infeasible.
Construction General Permit (CGP)

Page 4 of 11

Numeric Effluent Limit

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

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

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

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

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

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

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

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

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

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

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

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

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

acres of land at one time, including non-contiguous land disturbances that take place at the 

same time and are part of a larger common plan of development or sale; and no later than 

February 2, 2014 during construction activity that disturbs ten or more acres of land area at one 

time, including non-contiguous land disturbances that take place at the same time and are part 

of a larger common plan of development or sale, the following requirements apply:

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

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

Pollutant Daily Maximum Value (NTU)1

Turbidity 280

1Nephelometric turbidity units.

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

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

the permitting authority.

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

day that is larger than the local 2-year, 24-hour storm, the effluent limitation in paragraph (a)(1) 

of this section does not apply for that day. EPA notes that since the promulgation of the C&D 

Rule, EPA has discovered that the data used to calculate the numeric limit for turbidity were 

misinterpreted, and that proper interpretation of this data will likely result in a different numeric 

limit for turbidity than was promulgated in December of 2009. On August 12, 2010, EPA filed a 

motion with the U.S. Court of Appeals for the Seventh Circuit, requesting the Court issue an order 

vacating and remanding to the Agency limited portions of the final C&D rule. To address the 

specific issues raised by petitioners, the motion also provided that EPA:

“may address (and if necessary take further regulatory action on) certain impacts of the 

final rule specific to linear gas and electricity utility projects.”

will “solicit site specific information regarding the applicability of a numeric limit” to cold 

weather sites and to small sites that are part of a larger plan of development that is 

subject to the numeric limit.

On August 24, 2010 the U.S. Court of Appeals for the Seventh Circuit remanded the 

matter to EPA, but did not vacate the 280 NTU limit. On September 9, 2010, the National 

Association of Home Builders (NAHB) filed a motion for clarification (which EPA did not oppose) 

asking the court to (1) vacate the limit and (2) hold the case in abeyance instead of remanding 
Construction General Permit (CGP)

Page 5 of 11

the matter to EPA. On September 20, 2010, the Court granted the motion in part by ruling to 

hold the matter in abeyance pending EPA consideration of the numeric limit and the other 

remand issues, but the Court did not vacate the 280 NTU limit. Instead, the Court stated that 

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

EPA finalized a stay, effective January 4, 2011, of the numeric limitation of 280 NTU that 

was published in the December 1, 2009, Construction and Development Effluent Limitation 

Guideline, resulting in an indefinite postponement of the implementation of the 280 NTU limit. 

Since the numeric portion of the rule was stayed, states are no longer required to incorporate 

the numeric turbidity limitation and monitoring requirements found at §450.22(a) and §450.22(b). 

However, the remainder of the regulation, including the non-numeric effluent limitations 

described above, is still in effect and must be incorporated into newly issued permits.

The final CGP is directly affected by the stay in that the permit may not be issued with a 

numeric turbidity limit. When EPA issued the draft permit for public comment, the Agency was 

uncertain whether its work to complete the recalculation of the numeric turbidity limit would be 

completed in time to incorporate into the final permit. To be able to implement the yet to be 

promulgated turbidity limit in the final permit, EPA included in the draft permit a placeholder for 

the effluent limit, as well as proposed implementation requirements such as turbidity monitoring 

and reporting protocols. Because EPA is still in the process of collecting data to support the 

recalculation of the numeric turbidity limit, and therefore a final numeric turbidity limit is not yet 

available to implement, the Agency has finalized without the numeric limit and related 

monitoring and reporting requirements. EPA has, however, implemented the remaining portion 

of the C&D rule that was not affected by the stay of the numeric limit.

SIGNIFICANT CHANGES FROM PAST PERMITS

A precursor to examining the cost implications of moving from the 2008 CGP to the 2012 

CGP is to understand the changes that were made. The following is a summary of the significant 

changes that were made in the 2012 permit. 

Eligibility for Emergency-Related Construction.

The 2012 CGP authorizes discharges from earth-disturbing activities conducted in 

response to a public emergency (e.g., natural disaster, disruption in essential public services), 

and the related work requires immediate authorization to avoid imminent endangerment to 

human health or the environment, or to reestablish essential public services, on the condition 

that a complete and accurate NOI is submitted within 30 days after commencing earthdisturbing activities establishing that the permittee is eligible under the permit. The permitee is 

also required to provide documentation in the NOI and SWPPP to substantiate the occurrence 

of the public emergency. 

Use of Cationic Treatment Chemicals

Sites that plan to use cationic treatment chemicals are ineligible for coverage under the 

CGP, unless the applicable EPA Regional Office has been notified in advance and the EPA 

office authorizes coverage under this permit after appropriate controls and implementation 

procedures designed to ensure that the use of cationic treatment chemicals will not lead to a 

violation of water quality standards have been included.

Authorization Process / NOIs.

In the 2012 CGP, EPA has increased the “waiting period” for the official start date of 

permit coverage after submitting the NOI from 7 days to 14 days for “new projects”. The 14-day 

timeframe better accommodates the endangered species-related reviews that must take place 

prior to authorization. However, if the project qualifies as an “emergency-related project”, as 
Construction General Permit (CGP)

Page 6 of 11

discussed above, the permittee must submit the NOI by no later than 30 days after commencing 

earth-disturbing activities. In such cases, the project is considered provisionally covered under 

the terms and conditions of the permit immediately, and unprovisionaly covered 14 days after 

EPA has acknowledged receipt of the NOI, unless EPA notifies that permittee that the 

authorization has been delayed or denied. 

The 2012 CGP maximizes the use of EPA’s electronic NOI, or eNOI, process for authorizing 

construction discharges by requiring that construction operators seek coverage using the eNOI 

system. If applicants have a problem with the use of the eNOI system, they may contact the 

EPA Regional Office that corresponds to the location of the project site. If the applicant is given 

approval by the EPA Regional Office to use a paper NOI, the applicant must complete the form 

in the appendix of the permit. 

Sediment and Erosion Controls.

The 2012 CGP includes specific requirements that implement the C&D rule’s sediment 

and erosion control limits. While many of these requirements are included in the 2008 CGP, the 

2012 CGP includes more specifics in order to properly implement the C&D rule. The following is a 

list of requirements that can be considered the most significant modifications to the 2008 CGP:

1. Installation of Stormwater Controls – Operators must install and make operational any 

downgradient sediment controls by the time earth-disturbing activities in any given 

portion of the site have begun, unless infeasible. Following the installation of initial 

controls, all other stormwater controls described in the SWPPP must be installed and 

made operational as soon as conditions on the site allow. 

2. Buffers – In order to minimize discharges of pollutants, for any surface waters located on 

or within 50 feet of a site, operators must ensure that any discharges to surface waters

through the area between the disturbed portions of the property and any surface waters 

are treated by an area of undisturbed natural bufer and/or additional erosion and 

sediment controls to achieve a reduction in sediment load equivalent to that achieved 

by a 50-foot buffer natural buffer. 

3. Sediment Track-Out Requirements – To minimize sediment track-out, operators must 

restrict vehicle use to properly designated exit points and must use appropriate 

stabilization techniques at all points that exit onto paved roads so that sediment removal 

occurs prior to vehicle exit. Operators are required to remove deposited sediment 

tracked-out from the site by the end of the same work day in which the track-out occurs

or by the end of the next work day if track-out occurs on a non-work day.

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

inlets to which the site discharges.

5. Use of Treatment Chemicals – Where operators will use treatment chemicals at their site, 

they are subject to minimum requirements relating to the use and storage of the 

chemical and operator training. 

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

discharge groundwater or accumulated stormwater removed from excavations, 

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

construction activity.

Stabilization Requirements.

The permit includes modified stabilization initiation and completion deadlines. The permit 

also retains the 70 percent vegetative cover method that was in the 2008 permit as an option for 

stabilizing the site, and also allows non-vegetative stabilization measures. 
Construction General Permit (CGP)

Page 7 of 11

Pollution Prevention.

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

prohibition of certain discharges, the 2012 permit requires permitees to provide an effective 

means of minimizing and/or eliminating the discharge of pollutants. The permit provides specific 

examples of practices for minimzing and/or eliminating discharges including locating activities 

away from waters of the U.S. and stormwater inlets or conveyances, providing secondary 

containment and cover, and/or having spill kits readily available as well as design standards 

(e.g., install secondary containment or cover activities).

Water Quality-Based Effluent Limits.

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

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

nutrients, or to waters that are identified by the state, tribe, or EPA as Tier 2, Tier 2.5, or Tier 3 for 

antidegredation purposes. For such sites, construction activities are subject to tighter stabilization 

deadlines (permitees are required to complete the stabilization activities within 7 calendar days 

of the temporary or permanent cessation of eath-disturbing activities, as opposed to 14 days) 

and more frequent site inspections (once every 7 calendar days and within 24 hours of the 

occurrence of a storm event of 0.25 inches or greater). 

Site Inspections.

The permit requires that site inspections be conducted once every 7 calendar days or 

once every 14 days and within 24 hours of the occurrence of a storm event of 0.25 inches or 

greater. The permit makes explicit the requirement to require operators to visually assess the 

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

inspection occurs during a discharge-generating rain event. 

Corrective Actions.

Although the 2008 permit requires corrective action, it does not include specific 

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

what deadlines apply. The 2012 permit includes specific triggering conditions for corrective 

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

Stormwater Pollution Prevention Plan.

The SWPPP requirements are modified in accordance with the changes discussed 

above. In general, the requirements are more specific, but consistent with the 2008 permit. 

Notice of Termination.

The permit includes additional requirements that affect when a site may terminate 

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

earth-disturbing activities have stopped and the site is stabilized, the permit requires the removal 

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

devices.

COST IMPLICATIONS OF THE SIGNIFICANT PERMIT CHANGES

In assessing the cost implications of requiring compliance with the new permit provisions, 

EPA looked for requirements that will impose a greater burden on the permittee as compared to 

the the 2008 CGP and any existing ELGs and NSPS (in this case, the C&D rule), with which they 

will be required to comply regardless. To help portray where such “incremental” cost increases 

occur in the 2012 CGP, EPA conducted a side-by-side analysis of the 2012 CGP requirements 

and any corresponding requirements in the 2008 CGP and the C&D rule. See Appendix 1. 
Construction General Permit (CGP)

Page 8 of 11

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

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

requirements into any new permits, and because these requirements redefine what is 

considered to be the technology-based requirements that apply to all permitted sites, where 

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

the 2012 CGP requirement to the 2008 permit requirements. 

Based on the analysis in Appendix 1, with respect to requirements included in the 2012 

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

costs between the 2012 CGP’s requirements and the costs already accounted for in either the 

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

found there to be a quantifiable cost increase, which is not already accounted for by the 2008 

permit’s requirements or by the C&D rule, is in the incremental change between 2008 CGP and 

the 2012 CGP’s frequency and scope of site inspections. The following is a more detailed 

discussion of EPA’s rationale supporting these conclusions.

Changes to the NOI Form and Authorization Process

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

questions relating to the receiving water and its impairment status. The receiving water and 

impairment questions are intended to inform the Agency about the eligibility status of sites 

discharging to impaired waters or waters designated as Tier 2, 2.5, or 3 for antidegradation 

purposes, and of sites subject to additional requirements. These questions enable EPA to better 

ensure compliance with the NPDES regulations at 40 CFR 122.4(i), 122.44(d), and 131.12. 

Construction sites have always been subject to these requirements, and the answers to the NOI 

questions will have been determined in advance by the site operator in order to determine if 

he/she is eligible for permit coverage. 

The NOI form also includes new questions relating to the use of chemical treatment and 

historic properties and requires additional information regarding endangered species 

protection. The answers to these NOI questions will also have been determined in advance by 

the site operator in order to determine if he/she is eligible for permit coverage. EPA believes that 

any additional time needed to answer the new NOI questions will be offset by the administrative 

efficiency of submitting the form electronically through the eNOI system. For further information 

regarding EPA’s estimated costs associated with completing and submitting the NOI, refer to the 

Agency’s Information Collection Request (ICR) for the NPDES Program (OMB Control No. 2040-

0004, EPA ICR No. 0229.19 – December 2008).

Provide and Natural Buffers or Equivalent Controls

In order to minimize discharges of pollutants, for any surface waters located on or within 

50 feet of a site, operators must ensure that any discharges to surface waters through the area 

between the disturbed portions of the property and any surface waters are treated by an area 

of undisturbed natural bufer and/or additional erosion and sediment controls to achieve a 

reduction in sediment load equivalent to that achieved by a 50-foot buffer natural buffer. 

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

(1) Provide and maintain a 50-foot natural buffer; or 

(2) Provide and maintain an undisturbed natural buffer that is less than 50 feet that is 

supplemented by additional erosion and sediment controls, which in combination 

achieves the equivalent sediment load reduction as a 50-foot natural buffer; or

(3) If it is infeasible to provide and maintain an undisturbed naturally vegetated buffer of any 

size, the permittee must implement sediment and erosion controls that achieve the 

equivalent load reduction as a 50-foot natural buffer.
Construction General Permit (CGP)

Page 9 of 11

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

operators to use. 

EPA believes that the buffer requirements will not impose large incremental costs on 

affected site operators and in many cases may not impose any additional costs, as compared 

to the costs already accounted for in the promulgation of the C&D rule (see 40 CFR 450.21(a)(6)) 

or which are not offset by the flexibility provided in the proposed requirements, as discussed 

below. First, many of the sites that will be permitted under the 2012 CGP are already subject to 

state and/or local buffer or waterfront setback requirements that provide some minimum area 

that is to be left undisturbed and naturally vegetated. EPA notes that because these waterfront 

setback requirements are predominantly established at the local or county level, and 

determining the exact buffer width of all of these jurisdictions would have been exceedingly 

difficult, the Agency examined a subset of these county and local government requirements. 

What EPA found in its research is that these buffer requirements range in width from 25 to 300 

feet depending on the area as well as the water being protected. See further discussion of 

state and local buffer requirements in Section VII.1.2 and Tables 4 and 5 of the Fact Sheet. 

Therefore, EPA believes that many construction operators are already required to leave some 

minimum area of land between a waterbody and their construction activities undisturbed. In 

areas where state and/or local setback requirements are 50 feet or more, the EPA requirement 

imposes no additional costs. In areas with state and/or local setback requirements of less than 50 

feet, the EPA's buffer requirement only imposes a cost for the additional increment between the 

local requirement and the EPA's 50 foot requirement.

Second, in the cases where this buffer requirement does impose costs, it is the lesser of 

either the net opportunity costs, if any, of the incremental land requirements to extend any 

existing buffer to 50 feet or the cost of additional BMPs to reach reduction levels equivalent to 

the buffer requirements. The requirement to provide a buffer does not impose any additional 

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

vegetated area near the water. The permit requires simply that whatever vegetation exists in 

the buffer area at the time of construction be left alone. Furthermore, if a buffer is selected, 

since the existence of an undeveloped vegetative buffer could provide some economic value 

to the developed land (e.g., the benefit of a wooded buffer next to a stream), the lost 

opportunity cost of the land is the difference between the value of the project with the buffer 

and the value of the project without the buffer. 

Third, where locally established waterfront setback requirements allows for disturbances 

closer than the proposed minimum 50 feet, the permit provides operators a limited exception to 

authorize disturbances within the 50-foot buffer, and provides flexibility for certain already 

disturbed buffers where providing a buffer is infeasible. EPA also allows certain types of waterdependent structures to be built within the buffer. These provisions help prevent extreme costs 

from being imposed on the construction operator as a result of the buffer requirements. 

Stabilization Requirements

The 2012 CGP establishes specific deadlines for initiating and completing stabilization on 

the inactive portions of construction sites. The costs for the deadlines to initiate stabilization were 

accounted for in the promulgation of the C&D rule’s ELGs and NSPS. The additional deadlines 

established for completing stabilization is EPA’s articulation of the following C&D rule 

requirement: “stabilization must be completed within a period of time determined by the 

permitting authority.” See 40 CFR 450.21(b). With respect to the stabilization criteria, EPA notes 

that existing permittees under the 2008 CGP are already subject to the 70 percent vegetative 

cover criterion, which is retained in the 2012 CGP. 

Water Quality-Based Effluent Limits
Construction General Permit (CGP)

Page 10 of 11

The 2012 CGP includes requirements, similar to past CGPs, for permittees to control 

discharges as necessary to meet applicable water quality standards. The 2012 permit differs 

from its predecessors in that it imposes two additional requirements on sites discharging to waters 

that are impaired for sediment or nutrient-related pollutants and for sites discharging to waters 

identied as Tier 2, Tier 2.5, or Tier 3. These additional requirements include the following:

A requirement to conduct more frequent inspections; and

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

sooner than other sites.

See Part 3.2.2.

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

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

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

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

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

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

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

quality-based effluent limits in the 2012 permit are included as a clarification from earlier permits 

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

therefore are no more burdensome than the 2008 CGP requirements.

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

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

permittees:

Additional Inspection Requirements: Part 4.1.3 of the permit requires, for sites discharging 

to a sediment or nutrient-impaired water or to a water that is identified as Tier 2, Tier 2.5, 

or Tier 3, site inspections once every 7 calendar days and within 24 hours of the 

occurrence of a storm event of 0.25 inches or greater. EPA views these additional 

inspection requirements as necessary to ensure compliance with the regulatory 

protections for water quality standards per 40 CFR 122.44(d). EPA’s basic belief is that by 

conducting inspections at this frequency the Agency is assured that site operators will be 

able to prevent problems with sediment or nutrient discharges before they occur. These 

additional requirements are not an incremental burden increase because they merely 

elaborate on what is necessary to comply with the 40 CFR 122.44(d) requirements.

Faster Stabilization Timeframes: Part 2.2.1.3.c of the 2012 CGP permit requires that sites 

discharging to a sediment or nutrient-impaired water or to a water that is identified by 

the state, tribe, or EPA as Tier 2, Tier 2.5, or Tier 3, within 7 calendar days of the temporary 

or permanent cessation of earth-disturbing activitie stabilize disturbed areas where 

construction activities have temporarily or permanently ceased. EPA believes that this 

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

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

contributing sediment to these impaired waters. 

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

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

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

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

initiate soil stabilization measures when construction activity has permanently or 

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

opposed to 14 calendar days.” See 74 Fed. Reg. 63016. For this reason, the 2012 permit’s 

adoption of the 7-day stabilization timeframe is consistent with what EPA anticipated 

would be one of the ways permitting authorities could choose to implement the 
Construction General Permit (CGP)

Page 11 of 11

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

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

costs on construction operators. The deadline to initiate stabilization is a function of the 

operator’s already ongoing construction planning process, and therefore altering a 

deadline to initiate stabilization should not affect the construction operator’s bottom line 

costs. In other words, the requirement for certain sites to initiate stabilization of exposed 

areas within 7 days of ceasing earth-disturbing activities rather than 14 days does not 

require the operator to purchase additional equipment or resources. Instead, the 

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

schedule. 

Site Inspections

The 2012 CGP requires permittees to conduct inspections once every 7 calendar days or 

once every 14 calendar days and within 24 hours of the occurrence of a storm event of 0.25 

inches or greater. These requirements differ from the 2008 permit, which provides permittees with 

a choice of conducting weekly inspections or bi-weekly inspections in addition to inspections 

conducted within 24 hours of storm events measuring 0.50 inches or more. The 2012 CGP also 

requires permittees to conduct a visual observation of the discharge, to the extent that it occurs 

during normal working hours. The 2008 CGP requires permittees to include as part of the 

inspection report “a description of any discharges occurring at the time of the inspection”, but 

did not include specific requirements as to what was supposed to be documented.” See Part 

4.H.4 of the 2008 CGP. Therefore, despite the fact that the 2008 CGP included a related 

requirement to the requirements in the 2012 permit for visual observation, EPA will consider the 

new level of detail in the 2012 CGP to amount to an increase in cost burden to affected 

permittees. 

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

requirements will result in an incremental cost increase to some permittees. Appendix 2 includes 

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

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

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

inch threshold in the 2012 permit will result in an increase of 5,424 additional inspections annually, 

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

to visually observe the quality of the discharge, EPA estimates that the burden hours will increase 

by an estimated 4,896 hours annually, which amounts to an incremental increase in $146,874 of 

burden hours annually or $62 for each permittee. Refer to Appendix 2 for a the underlying 

assumptions and data used to estimate these incremental cost increases.