Modification to 2008 National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges Associated With Construction Activities, 40355-40359 [2011-17244]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 76, Number 131 (Friday, July 8, 2011)]
[Notices]
[Pages 40355-40359]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17244]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-9431-1; EPA-HQ-OW-2008-0238]


Modification to 2008 National Pollutant Discharge Elimination 
System (NPDES) General Permit for Stormwater Discharges Associated With 
Construction Activities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 are modifying the 
2008 National Pollutant Discharge Elimination System (NPDES) general 
permits for stormwater discharges associated with construction activity 
in order to extend until February 15, 2012 the expiration date of the 
permit. Hereinafter, these NPDES general permits will be referred to as 
``permit'' or ``2008 construction general permit'' or ``2008 CGP.'' 
This modification will extend the three-year permit so that it expires 
on February 15, 2012 instead of June 30, 2011. Prior to this extension, 
EPA modified the 2008 CGP in January 2010 to extend the permit by one 
year, thus making it a three-year permit. By Federal law, no NPDES 
permit may be issued for a period that exceeds five years.

DATES: EPA is finalizing a modification to its 2008 CGP that extends 
the permit until February 15, 2012. The 2008 CGP will now expire on 
midnight, February 15, 2012, instead of June 30, 2011.

FOR FURTHER INFORMATION CONTACT: Greg Schaner, Water Permits Division, 
Office of Wastewater Management (Mail Code: 4203M), Environmental 
Protection Agency, 1200 Pennsylvania Avenue, NW., EPA East, Washington, 
DC 20460; telephone number: (202) 564-0721; fax number: (202) 564-6431; 
e-mail address: schaner.greg@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    If a discharger chooses to apply for coverage under the 2008 CGP, 
the permit provides specific requirements for preventing contamination 
of waterbodies from stormwater discharges from the following 
construction activities:

------------------------------------------------------------------------
                                                         North American
                                                            Industry
           Category              Examples of affected    Classification
                                       entities          System (NAICS)
                                                              Code
------------------------------------------------------------------------
Industry......................  Construction site operators disturbing 1
                                 or more acres of land, or less than 1
                                 acre but part of a larger common plan
                                 of development or sale if the larger
                                 common plan will ultimately disturb 1
                                 acre or more, and performing the
                                 following activities:
                               -----------------------------------------
                                Building, Developing                 236
                                 and General
                                 Contracting.
                                Heavy Construction...                237
------------------------------------------------------------------------

    EPA does not intend the preceding table to be exhaustive, but 
provides it as a guide for readers regarding entities likely to be 
regulated by this action. This table lists the types of activities that 
EPA is now aware of that could

[[Page 40356]]

potentially be affected by this action. Other types of entities not 
listed in the table could also be affected. To determine whether your 
facility is affected by this action, you should carefully examine the 
definition of ``construction activity'' and ``small construction 
activity'' in existing EPA regulations at 40 CFR 122.26(b)(14)(x) and 
122.26(b)(15), respectively. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed for technical information in the preceding FOR FURTHER 
INFORMATION CONTACT section.
    Eligibility for coverage under the 2008 CGP is limited to operators 
of ``new projects'' or ``unpermitted ongoing projects.'' A ``new 
project'' is one that commences after the effective date of the 2008 
CGP. An ``unpermitted ongoing project'' is one that commenced prior to 
the effective date of the 2008 CGP, yet never received authorization to 
discharge under the 2003 CGP or any other NPDES permit covering its 
construction-related stormwater discharges. Construction sites that 
originally obtained permit coverage under the 2003 CGP will continue to 
be covered under that permit. The 2008 CGP is effective only in those 
areas where EPA is the permitting authority. A list of eligible areas 
is included in Appendix B of the 2008 CGP.

B. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2008-0238. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. 
Although all documents in the docket are listed in an index, some 
information is not publicly available, i.e., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Publicly available docket materials are available 
electronically through https://www.regulations.gov and in hard copy at 
the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744 and the telephone 
number for the Water Docket is (202) 566-2426.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at https://www.epa.gov/fedrgstr/. Electronic versions of the 
final permit and fact sheet are available at EPA's stormwater Web site 
https://www.epa.gov/npdes/stormwater.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at https://www.regulations.gov/fdmspublic/component/main 
to view public comments, access the index listing of the contents of 
the official public docket, and to access those documents in the public 
docket that are available electronically. Once in the system, select 
``search'', then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. Although not all 
docket materials may be available electronically, you may still access 
any of the publicly available docket materials through the docket 
facility identified in Section I.B.1.

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

    For EPA Region 1, contact Jessica Hing at tel.: (617) 918-1560 or 
e-mail at hing.jessica@epa.gov.
    For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 
or e-mail at venezia.stephen@epa.gov, or for Puerto Rico, contact 
Sergio Bosques at tel.: (787) 977-5838 or e-mail at 
bosques.sergio@epa.gov.
    For EPA Region 3, contact Chuck Schadel at tel.: (215) 814-5761 or 
e-mail at schadel.chuck@epa.gov.
    For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-
mail at bell.brianc@epa.gov.
    For EPA Region 6, contact Suzanna Perea at tel.: (214) 665-7217 or 
e-mail at: perea.suzanna@epa.gov.
    For EPA Region 7, contact Tanya Nix at tel.: (913) 551-7170 or e-
mail at: nix.tanya@epa.gov.
    For EPA Region 8, contact Amy Clark at tel.: (303) 312-7014 or e-
mail at: clark.amy@epa.gov.
    For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or 
e-mail at bromley.eugene@epa.gov.
    For EPA Region 10, contact Misha Vakoc at tel.: (206) 553-6650 or 
e-mail at vakoc.misha@epa.gov.

II. Background of Permit

A. Statutory and Regulatory History

    Section 402(p) of the Clean Water Act (CWA) directs EPA to develop 
a phased approach to regulate stormwater discharges under the National 
Pollutant Discharge Elimination System (NPDES) program. 33 U.S.C. 
1342(p). EPA published two regulations, on November 16, 1990 (the 
``Phase I rule'', see 55 FR 47990) and on December 8, 1999 (the ``Phase 
II rule'', see 64 FR 68722), which resulted in requiring NPDES permits 
for discharges from construction sites disturbing at least one acre, 
including sites that are less than one acre but are part of a larger 
common plan of development or sale that will ultimately disturb at 
least one acre. See 40 CFR 122.26(b)(14)(x) and 122.26(b)(15)(i).

B. The Relevance of EPA's ``C&D Rule'' to the 2008 CGP

    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 limits established under Section 301 
and, where applicable, Section 306 of the CWA. Once an effluent 
limitations guideline or new source performance standard is promulgated 
in accordance with these sections, NPDES permits issued by the NPDES 
permitting authorities must incorporate requirements based on such 
limitations and standards. See 40 CFR 122.44(a)(1). Prior to the 
promulgation of national effluent limitations guidelines or new source 
performance standards, permitting authorities incorporate technology-
based effluent limitations on a best professional judgment basis. CWA 
section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).
    On December 1, 2009, EPA published final regulations establishing 
technology-based Effluent Limitations Guidelines (ELGs) and New Source 
Performance Standards (NSPS) for the Construction & Development (C&D) 
point source category. See 40 CFR Part 450, and 74 FR 62996 (December 
1, 2009). The Construction & Development Rule, or ``C&D rule'', became 
effective on February 1, 2010; therefore, all NPDES construction 
permits issued by EPA or states after this date must incorporate the 
C&D rule requirements.
    Because EPA issued the 2008 CGP prior to the effective date of the 
C&D rule, the Agency is not required by the

[[Page 40357]]

CWA and 40 CFR 122.44(a)(1) to incorporate the C&D rule requirements 
into the current permit. However, EPA is required to incorporate the 
C&D rule requirements into the next, reissued CGP, which the Agency 
expects to issue by February 15, 2012. EPA published for public comment 
on April 25, 2011 a draft of the new CGP, which includes new 
requirements implementing the C&D rule. For more information, see 76 FR 
22882.

C. Stay of the C&D Rule Numeric Limit

    The C&D rule included non-numeric requirements for erosion and 
sediment control, stabilization, and pollution prevention (see 40 CFR 
450.21(a) thru (f)), and, for the first time, a numeric limitation on 
the discharge of turbidity from active construction sites (see 40 CFR 
450.22). Since its promulgation, EPA discovered that the data used to 
calculate the numeric limit for turbidity were misinterpreted, and that 
it was necessary to recalculate the numeric limit.
    On August 12, 2010, EPA filed a motion with the U.S. Court of 
Appeals for the Seventh Circuit, requesting that the court issue an 
order vacating and remanding to the Agency limited portions of the 
final C&D rule. On August 24, 2010, the U.S. Court of Appeals for the 
Seventh Circuit remanded the matter to EPA but did not vacate the 
numeric 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 until February 15, 2012 instead of remanding 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 numeric limit. Instead, the court stated that ``EPA may make any 
changes to the limit it deems appropriate, as authorized by law.''
    EPA issued a direct final rule staying the numeric limit and a 
companion proposed rule proposing a stay, and the stay took effect on 
January 4, 2011, resulting in an indefinite postponement of the 
implementation of the 280 NTU limit. The Agency is currently developing 
a proposed rule proposing the recalculated limit. If the numeric limit 
becomes effective prior to the issuance of the final CGP, EPA must by 
law incorporate the applicable numeric limit into the final CGP.

D. Summary of 2008 CGP

    EPA announced the issuance of the 2008 CGP on July 14, 2008. See 73 
FR 40338. Construction operators choosing to be covered by the 2008 CGP 
must certify in their notice of intent (NOI) that they meet the 
requisite eligibility requirements described in Part 1.3 of the permit. 
If eligible, operators are authorized to discharge under this permit in 
accordance with Part 2. Permittees must install and implement control 
measures to meet the effluent limits applicable to all dischargers in 
Part 3, and must inspect such stormwater controls and repair or modify 
them in accordance with Part 4. The permit in Part 5 requires all 
construction operators to prepare a stormwater pollution prevention 
plan (SWPPP) that identifies all sources of pollution, and describes 
control measures used to minimize pollutants discharged from the 
construction site. Part 6 details the requirements for terminating 
coverage under the permit.
    The 2008 CGP permit provides coverage for discharges from 
construction sites in areas where EPA is the permitting authority. The 
geographic coverage and scope of the 2008 CGP is listed in Appendix B 
of the permit.

III. Extension of 2008 CGP Expiration Date

A. What Is EPA's rationale for the modification of the 2008 CGP for an 
extension of the expiration date?

    As stated above, EPA is modifying the 2008 CGP by extending to 
February 15, 2012, the expiration date of the permit. This extension is 
necessary in order to provide sufficient time to finalize the new CGP, 
which will incorporate for the first time new effluent limitations 
guidelines and new source performance standards, which EPA promulgated 
in December 2009. Additional time beyond the previous June 30, 2011 
expiration date of the 2008 CGP is necessary in order to make up for a 
delay of several months in the permit issuance process caused by the 
initial uncertainty surrounding the error in calculating the 280 NTU 
limit and the appropriate way for EPA to address it. This delay made it 
a near certainty that, given even the most optimistic timeframe for 
finalizing the new CGP, EPA would not have been able to finalize the 
new CGP by the June 30, 2011 expiration date of the 2008 CGP.
    EPA was unaware of the need to extend the expiration date of the 
2008 CGP when it first modified the 2008 CGP's expiration date in 
January 2010 by one year to June 30, 2011. At that time, EPA was under 
the impression that the June 30, 2011 date provided sufficient time to 
finalize a new permit incorporating all of the new C&D rule 
requirements. However, with the setback of time related to the stay of 
the 280 NTU limit, EPA now needs additional time to complete the permit 
issuance process as explained above. EPA believes that the proposed 
extension of the current permit to February 15, 2012 will provide the 
Agency with sufficient time to finalize the new CGP.
    EPA believes it is imperative that EPA has sufficient time to 
incorporate the C&D rule requirements into the new CGP and issue the 
new CGP prior to the existing permit's expiration date. If EPA does not 
issue the new CGP before expiration of the existing permit, no new 
construction projects may be permitted under the CGP, leaving 
individual NPDES permits as the only available option for permitting 
new projects. The sole reliance on individual permits would mean that 
discharge authorizations would almost certainly be delayed due to the 
greater amount of time and Agency resources that are required for 
developing and issuing individual permits. In turn, construction 
projects that need to begin construction activity on or after midnight 
June 30, 2011 would be delayed for an uncertain amount of time until 
EPA could review their individual permit applications and issue the 
necessary permits. Rather than risk detrimental delays to new 
construction projects, EPA has decided that it is advisable to instead 
propose a modification to the 2008 CGP to extend the expiration date 
until February 15, 2012.
    In addition, EPA notes that the February 15, 2012 expiration date 
is a modification from the proposal to extend the date to January 31, 
2012. See 79 FR 22891 (April 25, 2011). As discussed below in Section 
III.C, commenters pointed out that EPA had earlier requested that the 
Seventh Circuit Court of Appeals hold in abeyance until February 15, 
2012 any further court proceedings in the challenge to the C&D rule's 
numeric turbidity limit. Changing the expiration date of the 2008 CGP 
to February 15, 2012 date is consistent with its motion to the court.

B. EPA's Authority to Modify NPDES Permits

    EPA regulations establish when the permitting authority may make 
modifications to existing NPDES permits. In relevant part, EPA 
regulations state that ``[w]hen the Director receives any information * 
* * he or she may determine whether or not

[[Page 40358]]

one or more of the causes listed in paragraph (a) * * * of this section 
for modification * * * exist. If cause exists, the Director may modify 
* * * the permit accordingly, subject to the limitations of 40 CFR 
124.5(c).'' 40 CFR 122.62. For the purposes of this Federal Register 
notice, the relevant cause for modification is at 40 CFR 122.62(a)(2), 
which states that a permit may be modified when ``[t]he Director has 
received new information'' and that information ``was not available at 
the time of permit issuance * * * and would have justified the 
application of different permit conditions at the time of issuance.'' 
Pursuant to EPA regulations, ``[w]hen a permit is modified, only the 
conditions subject to the modification are reopened.'' 40 CFR 122.62.
    In the case of the 2008 CGP, a permit modification is justified 
based on the new information EPA received since it issued the 2008 CGP, 
and more specifically, since it modified the 2008 CGP in January 2010, 
in terms of the delay to the permit process associated with the 
discovery of the error in the numeric turbidity limit and the Agency's 
decision to stay to the numeric turbidity limit. If this information 
was available at the time of issuance of the 2008 CGP, and more 
specifically in January 2010 when EPA extended the expiration date to 
June 30, 2011, it would have supported establishing an expiration date 
for the 2008 CGP that was later than June 30, 2011. As a result, cause 
exists under EPA regulations to justify modification of the 2008 CGP to 
extend the expiration date of the permit from midnight June 30, 2011 to 
midnight February 15, 2012.
    EPA notes that, by law, NPDES permits cannot be extended beyond 5 
years. 40 CFR 122.46. The proposed extension of the 2008 CGP complies 
with this restriction. The 2008 CGP was first issued on June 30, 2008. 
With the new expiration date set as February 15, 2012, the permit will 
still have been in effect for less than the 5-year limit.

C. Response to Comments

    EPA received 4 comments in response to the proposed extension of 
the 2008 CGP expiration date. All of the commenters were supportive of 
an extension to the expiration date of the 2008 CGP, however, each 
comment stated that the proposed extension period was inadequate. 
Several of the commenters recommended extending the permit to June 30, 
2013, making it a full 5-year permit. The following is a summary of the 
concerns raised by the commenters and EPA's responses:
     EPA requires additional time to streamline the permitting 
process. According to one commenter, EPA should take the period of time 
remaining in the 5-year permit term to focus on ways to streamline the 
existing permitting process under the CGP. This commenter specifically 
recommended that the Agency consider the development of a ``Single Lot 
Permit'' for small residential construction projects, with streamlined 
authorization procedures and best management practice (BMP) 
requirements, either within the new CGP or as a stand-alone permit. The 
commenter also urged EPA to modify the draft CGP to incorporate 
``Qualified Local Program'' (QLP) provisions.
    EPA appreciates the suggestion by the commenter that the Agency 
take the time to adequately consider ways to streamline the permitting 
process so that it better accommodates small-scale, single lot 
construction projects. EPA invites the commenter and other members of 
the public to provide more specific suggestions in their comments on 
the draft new CGP as to how the permit can be streamlined to better 
address the types of requirements that are appropriate for single-lot 
residential construction sites. At the same time, however, EPA does not 
agree that additional time beyond February 15, 2012 is needed to 
address this issue, and is confident that it can consider such 
streamlining recommendations within this timeframe.
    Similarly, EPA does not agree that additional time is needed to 
incorporate QLP provisions into the permit. For background, the NPDES 
regulations at 40 CFR 122.44(s) enable EPA to incorporate by reference 
qualifying State, Tribal, or local program requirements applicable to 
small construction sites so that these requirements replace 
corresponding provisions in the CGP. To effectuate QLP requirements in 
the CGP, EPA would need to propose the addition of the QLP provisions 
for public comment. To date, EPA has not been approached by a State, 
Tribe, or local program to include any such requirements in the CGP, 
despite previous encouragement by the Agency to do so. For that reason, 
EPA does not find it necessary to further delay the issuance of the new 
CGP to address the inclusion of QLP requirements. Having said this, EPA 
notes that it will consider any request by affected states, Tribes, or 
local governments to include QLP requirements in the CGP.
     The proposed extension does not account for the amount of 
time needed to complete the rulemaking process to correct the numeric 
turbidity limit. Some commenters questioned how EPA could issue a new 
permit by the proposed January 31, 2012 expiration date incorporating 
both the (future) numeric and non-numeric requirements of the C&D rule 
given the realistic amount of time that is needed to complete the 
rulemaking for correcting the C&D rule's numeric turbidity limit. These 
commenters noted that since EPA has not yet proposed a correction to 
the numeric limit, and because the Agency will need to allow for an 
adequate public comment period and sufficient time to review and 
respond to comments it receives, it appears unlikely that the 
correction rule will be completed prior to the proposed expiration date 
of the 2008 CGP. The commenters also noted that the public should be 
given an opportunity to review the draft CGP's sampling protocols with 
the final turbidity limit in mind. In addition, a few of the commenters 
remarked that the proposed January 31, 2012 date is out of step with 
the Agency's own request to the Seventh Circuit Court of Appeals to 
hold the lawsuit challenging the validity of the numeric turbidity 
limit in abeyance until February 15, 2012. For these reasons, these 
commenters requested that EPA modify the proposed extension so that the 
2008 CGP would instead expire on June 30, 2013, making it a full 5-year 
permit.
    The commenters are correct that EPA asked the Seventh Circuit Court 
of Appeals to hold the litigation challenging the numeric turbidity 
limit (Wisconsin Builders Association et. al. v. U.S. EPA, No. 09-4113) 
in abeyance until February 15, 2012. See EPA's Unopposed Motion for 
Partial Vacature of the Final Rule, Remand of the Record, To Vacate 
Briefing Schedule, and to Hold Case in Abeyance, No. 09-4113 
(consolidated with Nos. 10-1247 and 10-1876) (August 12, 2010). EPA 
agrees that, in retrospect, the use of February 15, 2012 would have 
been an appropriate date for the expiration of the current permit since 
it is consistent with the timeframe that was presented to the court. 
For this reason, EPA has decided to further extend the 2008 CGP so that 
it expires on February 15, 2012 instead of January 31, 2012.
    EPA does not agree with the commenter that a longer extension of 
the 2008 CGP is needed or appropriate. If the final numeric effluent 
limit is completed prior to the February 15, 2012 expiration date of 
the 2008 CGP, EPA intends to include the final, corrected turbidity 
limit in the new permit. As the commenters noted, the Agency proposed 
in the draft permit a

[[Page 40359]]

placeholder for the final turbidity limit along with a draft set of 
sampling requirements (see Part 3.3 of the draft CGP), so that if the 
numeric limit is finalized by February 15, 2012, the numeric limit and 
the final sampling requirements would be included in the final permit. 
EPA believes that providing a draft permit with all of the provisions 
necessary to implement the final limit, even though the final numeric 
limit is not yet known, provides the public with an adequate 
opportunity to review and provide comment on sampling requirements that 
the Agency believes are appropriate for implementing a numeric 
turbidity limit.
    EPA also does not agree with the commenter's suggestion that 
additional time is needed so that the public may review the draft CGP's 
sampling requirements with the specific turbidity limit in mind. The 
specific turbidity limit value will undergo a separate Agency 
rulemaking effort, including a public notice and comment process 
dedicated to that rulemaking, which is the proper venue for conducting 
public review of that limit. As stated previously, EPA would be 
required to incorporate the final numeric limit in its new permit if it 
is finalized before EPA's new CGP is issued. See 40 CFR 122.44(a)(1). 
EPA anticipates that the final value of the turbidity limit can be 
directly inserted into the CGP without the need to translate the limit 
further, thus making it unnecessary to have a specific public review of 
the use of the limit in the permit.
    Furthermore, in developing the new CGP's draft sampling 
requirements, EPA put forward for comment provisions for conducting 
turbidity monitoring that the Agency views as workable regardless of 
the value of the final numeric turbidity limit. The sampling 
requirements in the draft permit reflect EPA's research into the types 
of requirements that will likely result in measurements that are 
``representative of the monitored activity'' (see 40 CFR 122.41(j)), 
are reflective of the types of requirements imposed in other similar 
permits, and were envisioned by EPA in the C&D rule. See III.XIX.A of 
the preamble to the C&D rule, 74 FR 63047 (December 1, 2009). Although 
the draft requirements are still undergoing public review, it is 
important to note that it was EPA's judgment when it issued the draft 
permit that the draft sampling provisions are appropriate regardless of 
the final effluent limit. Through the public comment process, EPA will 
revisit these sampling requirements, as well as the Agency's initial 
assumptions discussed above, based on comments received. However, at 
this time, EPA does not believe that additional time is necessary for 
the public to review the draft sampling requirements based on the as 
yet unknown final value of the numeric turbidity limit.
     The 2008 CGP should be extended further to allow for the 
Seventh Circuit litigation to play out in full prior to implementing 
the C&D rule in the new permit. A few of the commenters suggested that 
EPA provide for an extension of the 2008 CGP to June 30, 2013 in order 
to allow for the litigation to come to a final outcome so that the new 
CGP would presumably reflect any final decision regarding the C&D rule.
    EPA does not agree that it is necessary or appropriate to extend 
the 2008 CGP further to account for the timeline of litigation on the 
C&D rule. It is difficult to anticipate with any degree of certainty 
how long this litigation will take, and what the outcome will be, and 
EPA does not agree that it is appropriate to base its permitting 
timeline on such a process. EPA believes it is important to issue the 
new CGP as quickly as possible independent of any litigation schedule. 
Among other reasons, EPA is interested in issuing the permit in a 
timely manner so that regulated construction sites, state permitting 
authorities, and the general public are given the opportunity to see in 
the near term how the Agency intends to implement its own rule. In 
EPA's judgment, the February 15, 2012 date for the expiration of the 
2008 CGP provides EPA with a sufficient window of time within which to 
issue the new permit and accomplish this objective.

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

    Dated: June 28, 2011.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.

    Dated: June 29, 2011.
Kevin Bricke,
Acting Director, Division of Environmental Planning & Protection, EPA 
Region 2.

    Dated: June 28, 2011.
Carl-Axel P. Soderberg,
Division Director, Caribbean Environmental Protection Division, EPA 
Region 2.

    Dated: June 28, 2011.
Jon M. Capacasa,
Director, Water Protection Division, EPA Region 3.

    Dated: June 28, 2011.
Tinka G. Hyde,
Director, Water Division, EPA Region 5.

    Dated: June 28, 2011.
Miguel I. Flores,
Director, Water Quality Protection Division, EPA Region 6.

    Dated: June 27, 2011.
Karen Flournoy,
Acting Director, Water, Wetlands and Pesticides Division, EPA Region 7.

    Dated: June 28, 2011.
Stephen S. Tuber,
Assistant Regional Administrator, EPA Region 8.

    Dated: June 27, 2011.
Alexis Strauss,
Director, Water Division, EPA Region 9.

    Dated: June 28, 2011.
Christine Psyk,
Associate Director, Office of Water and Watersheds, EPA Region 10.
[FR Doc. 2011-17244 Filed 7-7-11; 8:45 am]
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