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[Federal Register Volume 89, Number 240 (Friday, December 13, 2024)]
[Proposed Rules]
[Pages 100929-100934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-28867]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 122

[EPA-HQ-OW-2021-0169; FRL-12219-01-OW]

Modification to 2022 National Pollutant Discharge Elimination 
System (NPDES) Construction General Permit (CGP) for Stormwater 
Discharges From Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification; request for public comment.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing a 
narrow modification to its 2022 CGP to expand the list of areas 
eligible for coverage to include construction projects in Lands of 
Exclusive Federal Jurisdiction. This modification is necessary because 
the EPA is the permitting authority in Lands of Exclusive Federal 
Jurisdiction, and when the CGP was issued on February 17, 2022, the 
permit did not specifically provide eligibility for all of these areas. 
The proposed modification would also clarify the CGP requirements that 
apply to projects that discharge to receiving waters within Lands of 
Exclusive Federal Jurisdiction. The EPA seeks comment only on the 
proposed permit revisions and the accompanying fact sheet. The fact 
sheet and proposed permit modification can be found at https://www.epa.gov/npdes/stormwater-discharges-construction-activities.

DATES: Comments on the proposed permit modification must be received on 
or before January 13, 2025.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2021-0169, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/. 
Follow the online instructions for submitting comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Water, Docket, Mail Code 28221T, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m. to 4:30 p.m., 
Monday--Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov, including personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, EPA Headquarters, Office 
of Water, Office of Wastewater Management at (202) 564-0721 or by email 
at [email protected].

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. Public Participation
    C. Finalizing the Proposed Permit Modification
    D. Who are the EPA Regional Contacts for This Permit?
II. Permit Modification Background
    A. Permitting of Stormwater Discharges From Construction 
Activities
    B. Background on Lands of Exclusive Federal Jurisdiction
    C. Why is a Modification to the 2022 CGP Necessary
III. Summary of Proposed Permit Changes
IV. Public Notice of Clean Water Act Section 401 Certification for 
Lands of Exclusive Federal Jurisdiction
V. Paperwork Reduction Act (PRA)
VI. 2022 CGP Incremental Cost Analysis
VII. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 14094: Modernizing Regulatory Review
VIII. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations and Executive Order 14096: Revitalizing Our Nation's 
Commitment to Environmental Justice for All
IX. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
X. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use
XI. Compliance With the National Environmental Policy Act (NEPA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges from Construction Activities

I. General Information

A. Does this action apply to me?

    This proposed permit modification covers the following entities, as 
categorized in the North American Industry Classification System 
(NAICS), where they are conducting construction activities in Lands of 
Exclusive Federal Jurisdiction:

[[Page 100930]]

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

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

B. Public Participation

1. Written Comments
    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-
0169, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to the 
EPA's docket at https://www.regulations.gov any information you 
consider to be Confidential Business Information (CBI), Proprietary 
Business Information (PBI), or other information whose disclosure is 
restricted by statute. Multimedia submissions (audio, video, etc.) must 
be accompanied by a written comment. The written comment is considered 
the official comment and should include discussion of all points you 
wish to make. The EPA will generally not consider comments or comment 
contents located outside of the primary submission (i.e., on the web, 
cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the 
full EPA public comment policy; information about CBI, PBI, or 
multimedia submissions; and general guidance on making effective 
comments.
2. Will public hearings be held on this action?
    The EPA has not scheduled any public hearings to receive public 
comment concerning the proposed 2022 CGP modification. However, 
interested persons may request a public hearing concerning the proposed 
2022 CGP modification pursuant to 40 CFR 124.12. Requests for a public 
hearing must be sent or delivered in writing to the same address as 
provided above for public comments prior to the close of the comment 
period. Requests for a public hearing must state the nature of the 
issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, 
the EPA shall hold a public hearing if it finds, on the basis of 
requests, a significant degree of public interest in a public hearing 
on the proposed 2022 CGP modification. If the EPA decides to hold a 
public hearing, a public notice of the date, time, and place of the 
hearing will be made at least 30 days prior to the hearing. Any person 
may provide written or oral statements and data pertaining to the 
proposed 2022 CGP modification at any such public hearing.

C. Finalizing the Proposed Permit Modification

    After the comment period closes, the EPA intends to issue a final 
modification to the 2022 CGP sometime in early 2025. The EPA's 
responses to public comments received will be included in the docket as 
part of the final permit issuance. Once the final modification becomes 
effective, eligible operators of construction projects within Lands of 
Exclusive Federal Jurisdiction may obtain coverage under the 2022 CGP.

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

    For EPA Region 1, contact Meridith Finegan: Email at 
[email protected].
    For EPA Region 2, contact Sieglinde Pylypchuk: Email at 
[email protected], or for Puerto Rico, contact Sergio 
Bosques: Email at [email protected].
    For EPA Region 3, contact Shana Stephens: Email at 
[email protected].
    For EPA Region 4, contact Michael Mitchell: Email at 
[email protected].
    For EPA Region 5, contact Krista McKim: Email at 
[email protected].
    For EPA Region 6, contact Suzanna Perea: Email at: 
[email protected].
    For EPA Region 7, contact Mark Matthews: Email at: 
[email protected].
    For EPA Region 8, contact Amy Maybach: Email at: 
[email protected].
    For EPA Region 9, contact Eugene Bromley: Email at 
[email protected].
    For EPA Region 10, contact Jill Seale: Email at [email protected].

II. Permit Modification Background

A. Permitting of Stormwater Discharges From Construction Activities

    Stormwater discharges from certain construction activities are 
required under authority of section 402(p)(2) and (p)(6) of the Clean 
Water Act and 40 CFR 122.26(a)(1)(ii) and (a)(9)(i)(B) of EPA's 
regulations to be covered by a state or EPA-issued NPDES permit. More 
specifically, NPDES permits are required for discharges from projects 
that cause one or more acres of land disturbance, and smaller land 
disturbances that are part of a common plan of development or sale if 
they will ultimately disturb one or more acres of land. Under these 
authorities, the EPA issues an NPDES Construction General Permit for 
stormwater discharges from construction activities (referred to as the 
``CGP''). The CGP provides permit coverage in areas where the EPA is 
the permitting authority, which include three states (Massachusetts, 
New Hampshire, New Mexico); the District of Columbia; Federal 
facilities in four states (Washington, Colorado, Delaware, and 
Vermont); all U.S. territories except the U.S. Virgin Islands; all 
Indian Country, except in Maine; and Denali

[[Page 100931]]

National Park. The EPA is also the permitting authority for stormwater 
discharges from regulated construction activities that take place on 
``Lands of Exclusive Federal Jurisdiction.'' Refer to section II.B of 
this document for further explanation of Lands of Exclusive Federal 
Jurisdiction.
    Most recently, the EPA issued its 2022 CGP on February 17, 2022. 
The 2022 CGP provides coverage for stormwater discharges from regulated 
construction activities that are located in the specific areas 
identified in Appendix B of the permit.

B. Background on Lands of Exclusive Federal Jurisdiction

1. Definition of Lands of Exclusive Federal Jurisdiction
    Lands of Exclusive Federal Jurisdiction are lands in the U.S. where 
the Federal Government retains exclusive jurisdiction in relevant 
respects. Not all Federal lands are Lands of Exclusive Federal 
Jurisdiction. Rather, exclusive Federal jurisdiction is established 
only under limited circumstances pursuant to the Enclave Clause of the 
U.S. Constitution, article 1, section 8, clause 17. These circumstances 
include (1) where the Federal Government purchases land with state 
consent to jurisdiction, consistent with article 1, section 8, clause 
17 of the U.S. Constitution; (2) where a state chooses to cede 
jurisdiction to the Federal Government; and (3) where the Federal 
Government reserved jurisdiction upon granting statehood. See Paul v. 
United States, 371 U.S. 245, 263-65 (1963); Collins v. Yosemite Park 
Co., 304 U.S. 518, 529-30 (1938); James v. Dravo Contracting Co., 302 
U.S. 134, 141-42 (1937); Surplus Trading Company v. Cook, 281 U.S. 647, 
650-52 (1930); Fort Leavenworth Railroad Company v. Lowe, 114 U.S. 525, 
527 (1895).
2. Where are Lands of Exclusive Federal Jurisdiction located?
    Lands of Exclusive Federal Jurisdiction, as defined in section 
II.B.1 of this document, are all land where the Federal Government has 
exclusive Federal jurisdiction in relative respects. The EPA does not 
maintain a map or list of all Lands of Exclusive Federal Jurisdiction. 
The reason for this is that the jurisdictional status of Federal lands 
is tracked by multiple Federal land management agencies and the 
jurisdictional status of Lands of Exclusive Federal Jurisdiction may 
change over time. Individual Federal land management agencies may have 
such maps or lists, but the EPA is unaware of a comprehensive listing 
of all current Lands of Exclusive Federal Jurisdiction across all 
agencies. Notably, however, 16 U.S.C. chapter 1 identifies the 
following U.S. National Park Service properties as containing Lands of 
Exclusive Federal Jurisdiction: Denali National Park, Mount Rainier 
National Park, Olympic National Park, Hot Springs National Park, 
Hawai'i Volcanoes National Park, Yellowstone National Park, Yosemite 
National Park, Sequoia National Park, Crater Lake National Park, 
Glacier National Park, Rocky Mountain National Park, Mesa Verde 
National Park, Lassen Volcanic National Park, Great Smoky Mountains 
National Park, Mammoth Cave National Park, and Isle Royale National 
Park.
3. The EPA's NPDES Authority in Lands of Exclusive Federal Jurisdiction
    The Clean Water Act provides the EPA at 33 U.S.C. 1342(a) with the 
authority to establish and implement the NPDES permitting program, 
while also establishing for states and Tribes at 33 U.S.C. 1342(b) 
procedures to request authorization from the EPA to administer the 
program within their jurisdiction. Lands of Exclusive Federal 
jurisdiction in relevant respects present a case where states lack 
authority for administering the NPDES program, as states lack 
legislative jurisdiction in these areas absent specific congressional 
action. See Paul, 371 U.S. at 263 (finding precedent establishes ``that 
the grant of `exclusive' legislative power to Congress over enclaves 
that meet the requirements of Art. I, s 8, cl. 17, by its own weight, 
bars state regulation without specific congressional action.''). 
Congress did not take specific action in the Clean Water Act to grant 
authority to states to administer the NPDES program in Lands of 
Exclusive Federal Jurisdiction in relevant respects. Due to the Federal 
Government's unique jurisdictional authority within Lands of Exclusive 
Federal Jurisdiction, and the absence of specific congressional action 
within the Clean Water Act providing otherwise, the EPA has authority 
to administer the NPDES permitting program on these lands. Therefore, 
where NPDES-regulated discharges, including stormwater discharges from 
regulated construction activities, will occur within a Land of 
Exclusive Federal Jurisdiction, the discharger must obtain permit 
coverage under an EPA-issued permit.

C. Why is a modification to the 2022 CGP necessary?

    The 2022 CGP and prior CGPs did not include eligibility for all 
Lands of Exclusive Federal Jurisdiction in the U.S. The effect of this 
omission would leave construction projects scheduled to commence during 
the remaining effective period of the 2022 CGP (i.e., the general 
permit expires on February 17, 2027) without the ability to obtain 
coverage under this permit. For example, the U.S. National Park Service 
and Federal Highway Administration are scheduled to commence 
construction projects in 2025 in Olympic and Rocky Mountain National 
Parks, both containing Lands of Exclusive Federal Jurisdiction, among 
other locations, all of which require NPDES permit coverage. The EPA 
anticipates the most effective way to provide such permit coverage 
would be through the availability of a general permit, such as the 2022 
CGP.
    The EPA is proposing this permit modification to ensure that 
construction projects within any Lands of Exclusive Federal 
Jurisdiction in the U.S. are eligible for coverage under the 2022 CGP. 
The EPA notes that this change will not disrupt permit coverage that is 
already provided for in the 2022 CGP for construction activities within 
Denali National Park because of its designation as a Land of Exclusive 
Federal Jurisdiction, as well as any Lands of Exclusive Federal 
Jurisdiction that may exist within the states of Washington, Colorado, 
Delaware, and Vermont since the permit provides coverage for Federal 
Facilities and operators in those states.
    This permit modification is proposed under and consistent with the 
authority of the NPDES regulations for modifications, specifically 40 
CFR 122.62(a)(2). The Federal Government's (including the EPA's) 
authority within Lands of Exclusive Federal Jurisdiction pre-dates the 
2022 CGP. However, the EPA only became aware of the gap regarding the 
coverage of the CGP for all Lands of Exclusive Federal Jurisdiction in 
the U.S. following the issuance of the 2022 CGP. The agency learned of 
the need for broader coverage for Lands of Exclusive Federal 
Jurisdiction following requests made in 2024 to the EPA for permit 
coverage in U.S. National Park Service properties identified as 
containing exclusive Federal jurisdiction in 16 U.S.C. chapter 1. 
Modifying the 2022 CGP to expand the area of coverage to accommodate 
projects within all Lands of Exclusive Federal Jurisdiction in the U.S. 
appeared to the EPA to be the most reasonable approach to address this 
oversight.
    Prior to moving forward with this proposed modification, the EPA 
considered the alternative option of issuing individual permits for 
projects within Lands of Exclusive Federal

[[Page 100932]]

Jurisdiction at least in the interim period prior to the reissuance of 
the CGP in 2027. While this remains an alternative available for any 
specific project even if the proposed modification is finalized, 
relying solely on individual permits would not be the most efficient 
way of authorizing discharges from these projects, given the longer 
timelines typically associated with the application and permit 
development process for individual permits compared to the more 
streamlined authorization approach of the CGP. Moreover, the EPA is not 
currently certain how many projects may be planned within Lands of 
Exclusive Federal Jurisdiction before February 2027, making it hard to 
estimate how long the individual permitting process could take for all 
of these projects. This could potentially result in unnecessary 
construction delays in Lands of Exclusive Jurisdiction, such as for 
critical infrastructure projects in certain U.S. National Park Service 
properties that may have limited construction seasons. After 
considering all of these factors, the EPA concluded that proposing to 
modify the current CGP would be the most effective way to provide 
permit coverage for these projects.
    The EPA also considered whether to issue a standalone general 
permit for Lands of Exclusive Federal Jurisdiction or to reissue the 
full CGP prior to its expiration in February 2027. A standalone general 
permit may provide a means to narrowly target the permitting of 
projects in these areas. The EPA is concerned, however, that issuing a 
new general permit would take significantly longer than the proposed 
modification, so that a final permit might not be available to provide 
coverage for the projects that may be scheduled to begin in early 2025, 
and therefore unnecessarily impede construction projects. The EPA also 
has concerns about full permit reissuance because it could disrupt the 
typical five-year cycle for reissuing the CGP; this could raise 
additional implementation questions about the need to provide coverage 
for already permitted projects. Similar to the standalone general 
permit option, the EPA also is concerned that it would take longer to 
reissue the full CGP than finalize the proposed modification. Given 
these concerns, the EPA is proposing the more narrow modification to 
the 2022 CGP.

III. Summary of Proposed Permit Changes

    The following section describes the modifications that are proposed 
to the 2022 CGP. These changes are also discussed in the accompanying 
fact sheet.
     Expanded CGP eligibility for all Lands of Exclusive 
Federal Jurisdiction (CGP Appendix B)--The EPA proposes to expand the 
permit eligibility in Appendix B to include coverage for construction 
projects taking place within any Lands of Exclusive Federal 
Jurisdiction in the U.S. This proposed expansion would cover projects 
within Lands of Exclusive Federal Jurisdiction in any of EPA's 10 
Regions. The EPA notes that any projects that are already covered under 
the 2022 CGP for construction activities within Lands of Exclusive 
Federal Jurisdiction (i.e., Denali National Park, Federal facilities in 
the states of Colorado, Delaware, and Vermont, and construction carried 
out by Federal operators in the state of Washington) are not affected 
by the proposed modification, including not being subject to the 
proposed new Part 10 requirements (discussed under Clarification of 
requirements for projects discharging to receiving waters within Lands 
of Exclusive Federal Jurisdiction in this section).
     New definition of Lands of Exclusive Federal Jurisdiction 
(CGP Appendix A)--The EPA is including a proposed new definition of 
Lands of Exclusive Federal Jurisdiction in Appendix A of the 2022 CGP.
     Clarification of requirements for projects discharging to 
receiving waters within Lands of Exclusive Federal Jurisdiction (CGP 
Part 10)--The EPA proposes to clarify that operators of projects 
discharging to receiving waters within Lands of Exclusive Federal 
Jurisdiction should be held to the same type of discharge requirements 
that are used in the CGP for discharges to sensitive waters, including 
Tier 3 outstanding national resource waters. The reasons for this 
proposed change are severalfold. As the EPA has mentioned in this 
notice, the EPA does not maintain a comprehensive map or list of Lands 
of Exclusive Federal Jurisdiction, and for this reason relies on and 
bases its permitting decisions on the information it does have about 
the location of such lands. The EPA's best available information 
indicates that Lands of Exclusive Federal Jurisdiction are within 
certain national parks established under 16 U.S.C. chapter 1. In 
addition, the waters that flow through these areas have the potential 
to be afforded strong protections consistent with Tier 3-designated 
waters under the EPA's regulations at 40 CFR 131.12(a)(3), which cite 
``waters of National . . . parks'' as examples of potential Tier 3 
waters. Under the current 2022 CGP requirements, projects that 
discharge to waters that are designated as ``Tier 3'' waters, and 
therefore ``sensitive waters,'' are required to conduct more frequent 
inspections, comply with more rapid stabilization timeframes, and, in 
some cases, conduct turbidity monitoring of dewatering discharges. 
Relying on the linkage in the regulations at 40 CFR 131.12(a)(3) 
between waters flowing through national parks and their potential 
designation as Tier 3 waters, for the purposes of this permit, the EPA 
proposes to apply the same protections for waters within Lands of 
Exclusive Federal Jurisdiction that are established for Tier 3 waters 
under the CGP. For this reason, the EPA believes it is reasonable to 
apply these same requirements to projects discharging to receiving 
waters located within Lands of Exclusive Federal Jurisdiction. Adopting 
this approach means that the EPA would assume that all waters within 
Lands of Exclusive Federal Jurisdiction are worthy of treatment as a 
sensitive water, regardless of whether the waters flow through a 
national park or other Tier 3 water. Additionally, the EPA acknowledges 
that applying the same sensitive water requirements to all discharges 
to waters within Lands of Exclusive Federal Jurisdiction may be, in 
some instances, overly protective given that some of these waters in 
some locations may not be of the same high water quality as others. 
Given that the EPA does not have a complete list of all Lands of 
Exclusive Federal Jurisdiction, however, the agency believes that 
requiring treatment of all waters within these areas as sensitive is 
reasonable based on the best information currently available to the 
agency.
    The EPA notes that additional conforming changes are also proposed 
to the corresponding sections of the permit to help clarify which 
requirements apply to discharges to receiving waters within Lands of 
Exclusive Federal Jurisdiction. See proposed revisions to Parts 
2.2.14.b.iv and 4.3.1.
    Under the proposed modification, the EPA is also clarifying in Part 
10.4 which discharge conditions would be considered triggers for Part 
5.2 corrective action.
     Clarification of eligibility requirements related to 
endangered species (CGP Appendix D)--During the development of this 
proposed modification, the EPA met with the U.S. National Park Service, 
among other Federal agencies, to better understand, among other things, 
their agencies' typical practices related to compliance with the 
Endangered Species Act for construction projects. Based on these

[[Page 100933]]

conversations, it is the EPA's understanding that these agencies 
complete their Section 7 Endangered Species Act consultations for these 
projects prior to commencing construction. Consistent with this 
understanding, the EPA is proposing to restrict the permit eligibility 
under Appendix D for construction within Lands of Exclusive Federal 
Jurisdiction by any Federal entities and associated contractors to the 
current eligibility criterion that requires completion of Section 7 
consultation prior to NOI submittal (Criterion E).

IV. Public Notice of Clean Water Act Section 401 Certification for 
Lands of Exclusive Federal Jurisdiction

    The EPA acts as the certifying authority for the purposes of Clean 
Water Act section 401 certification on Lands of Exclusive Federal 
Jurisdiction. The EPA is providing notice under 40 CFR 121.17(a) that 
EPA's Regions are requesting certification as of the date of signature 
of this publication for the proposed 2022 CGP modification. The EPA 
will act on this certification request by either: (1) granting 
certification; (2) granting certification with conditions; (3) denying 
certification; or (4) expressly waiving certification consistent with 
CWA section 401 and the EPA's implementing regulations at 40 CFR part 
121.

V. Paperwork Reduction Act (PRA)

    Pursuant to the PRA, the current information collection request 
(ICR) for the 2022 CGP (EPA ICR Number 2686.03, OMB Control Number 
2040-0305) expires on February 28, 2025. In a separate Federal Register 
notice, the EPA is soliciting comment on the proposed renewal of the 
current 2022 CGP ICR. Information collected from construction projects 
permitted under the proposed modification would be covered by the 
renewed 2022 CGP ICR.

VI. 2022 CGP Incremental Cost Analysis

    The EPA conducted a cost analysis for the final 2022 CGP, which 
monetized and quantified certain incremental cost impacts of the final 
permit changes as compared to the 2017 CGP. The objective of this 
incremental cost analysis was to show where or to what extent the final 
2022 CGP requirements imposed an incremental increase in administrative 
and compliance costs (such as the cost to conduct site inspections or 
to prepare compliance reports) on operators in relation to costs that 
were already accounted for in the 2017 CGP. A copy of the EPA's 
incremental cost analysis, titled, ``Incremental Cost Impact Analysis 
for the 2022 Construction General Permit (CGP),'' is available in the 
docket for the final permit (Docket ID No. EPA-HQ-OW-2021-0169). 
Projects that would be eligible under the proposed inclusion of Lands 
of Exclusive Federal Jurisdiction would be subject to the same set of 
permit requirements that already apply to projects located in other 
areas. The proposed modification provides clarification on which 
inspection, stabilization, and corrective action requirements would 
apply to projects covered by the modification that discharge to 
receiving waters within Lands of Exclusive Federal Jurisdiction, but 
these do not alter the incremental costs for operators who will be 
covered under the 2022 CGP. As a result, the EPA does not expect there 
to be calculable changes to the CGP Incremental Cost Analysis resulting 
from the expansion of eligibility in the 2022 CGP to include for 
construction activities within Lands of Exclusive Federal Jurisdiction. 
For this reason, the EPA expects the costs associated with the 
modification to be already captured by the analysis that was completed 
for the full permit.

VII. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 14094: Modernizing Regulatory Review

    The proposed permit modification is not a significant regulatory 
action as defined in Executive Order 12866, as amended by Executive 
Order 14094, and was therefore not subject to a requirement for 
Executive Order 12866 review.

VIII. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations and 
Executive Order 14096: Revitalizing Our Nation's Commitment to 
Environmental Justice for All

    When issuance of the 2022 CGP was published in the Federal 
Register, the EPA made the determination that the final action ``does 
not have disproportionately high and adverse human health or 
environmental effects on minority populations, low-income populations 
and/or indigenous peoples, as specified in Executive Order 12898.'' 87 
FR 3532 (January 24, 2022). For the same reasons, the EPA is making the 
preliminary determination that this proposed permit modification would 
similarly not have disproportionately high and adverse human health or 
environmental effects on communities with environmental justice 
concerns. This determination is based on the view that the requirements 
in the permit modification would apply equally to all construction 
projects occurring within Lands of Exclusive Federal Jurisdiction, and 
the discharge control requirements that permittees would be held to 
increase the level of environmental protection for all affected 
populations. The EPA requests comment on this preliminary determination 
and/or any modifications that the EPA could make to the proposed permit 
to address environmental justice concerns.

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

    In compliance with Executive Order 13175, the EPA completed 
consultation with tribal officials on the 2022 CGP and included a 
summary report on the EPA's outreach activities and comments received 
during the consultation in the docket for the final permit. The Tribal 
consultation summary can be accessed at https://www.epa.gov/dockets in 
the docket for this permit (refer to Docket No. EPA-HQ-OW-2021-0169). A 
formal consultation with Tribal officials is not required for this 
proposed action since it is limited to proposing the described narrow 
modifications to the 2022 CGP. The EPA has, however, notified Tribes of 
this proposed modification and invited those interested to provide the 
agency with comments or to request further coordination or 
consultation. The EPA will address comments submitted by Tribal 
officials as part of the final modification.

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

    This action is not subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

XI. Compliance With the National Environmental Policy Act (NEPA) for 
the National Pollutant Discharge Elimination System (NPDES) General 
Permit for Discharges From Construction Activities

    Pursuant to NEPA, the Council on Environmental Quality's NEPA 
regulations, and the EPA's regulations for implementing NEPA (40 CFR 
part 6), the EPA made the determination on January 9, 2022, that the 
reissuance of the EPA's 2022 CGP was eligible for a categorical 
exclusion requiring documentation under 40 CFR 6.204(a)(1)(iv). See 
``Revised Categorical Exclusion: Modification of the EPA 2022 National 
Pollutant Discharge Elimination System (NPDES) General

[[Page 100934]]

Permit for Discharges from Construction Activities,'' Document Number 
N2022001 at https://cdxapps.epa.gov/cdx-enepa-II/public/action/nepa/details?nepaId=355222. The EPA has reviewed the proposed modification 
and has found that it does not affect the EPA's prior categorical 
exclusion determination for the permit, including that it does not 
involve any extraordinary circumstances listed in 40 CFR 6.204(b)(1) 
through (10). The EPA has documented these findings as part of a 
revised categorical exclusion memorandum that is available to the 
public at https://cdxnodengn.epa.gov/cdx-enepa-public/action/nepa/search. If new information or changes to the proposed permit involve or 
relate to at least one of the extraordinary circumstances or otherwise 
indicate that the permit may not meet the criteria for categorical 
exclusion, the EPA will prepare an Environmental Assessment (EA) or 
Environmental Impact Statement (EIS).

    Authority: Clean Water Act, 33 U.S.C. 1251 et seq.

David Cash,
Regional Administrator, EPA Region 1.
Javier Laureano Perez,
Director, Water Division, EPA Region 2.
Carmen Guerrero Perez,
Director, Caribbean Environmental Protection Division, EPA Region 2.
Michelle Price-Fay,
Director, Water Division, EPA Region 3.
Kathlene Butler,
Director, Water Division, EPA Region 4.
Tera Fong,
Director, Water Division, EPA Region 5.
Troy Hill,
Director, Water Division, EPA Region 6.
Jeffery Robichaud,
Director, Water Division, EPA Region 7.
Stephanie DeJong,
Manager, Clean Water Branch, EPA Region 8.
Tomas Torres,
Director, Water Division, EPA Region 9.
Mathew Martinson
Director, Water Division, EPA Region 10.
[FR Doc. 2024-28867 Filed 12-12-24; 8:45 am]
BILLING CODE 6560-50-P
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