Modification to 2022 National Pollutant Discharge Elimination System (NPDES) Construction General Permit (CGP) for Stormwater Discharges From Construction Activities, 100929-100934 [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
Environmental Protection
Agency (EPA).
ACTION: Notification; request for public
comment.
AGENCY:
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/stormwaterdischarges-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
SUMMARY:
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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.
Greg
Schaner, EPA Headquarters, Office of
Water, Office of Wastewater
Management at (202) 564–0721 or by
email at schaner.greg@epa.gov.
FOR FURTHER INFORMATION CONTACT:
This
section is organized as follows:
SUPPLEMENTARY INFORMATION:
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:
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TABLE 1—ENTITIES COVERED BY THIS PROPOSED PERMIT
Category
North American Industry
Classification System
(NAICS) code
Examples of affected entities
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 Buildings ..........................................................................................................
Heavy and Civil 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
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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
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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 finegan.meridith@
epa.gov.
For EPA Region 2, contact Sieglinde
Pylypchuk: Email at
pylypchuk.sieglinde@epa.gov, or for
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236
237
Puerto Rico, contact Sergio Bosques:
Email at bosques.sergio@epa.gov.
For EPA Region 3, contact Shana
Stephens: Email at stephens.shana@
epa.gov.
For EPA Region 4, contact Michael
Mitchell: Email at mitchell.michael@
epa.gov.
For EPA Region 5, contact Krista
McKim: Email at mckim.krista@epa.gov.
For EPA Region 6, contact Suzanna
Perea: Email at: perea.suzanna@epa.gov.
For EPA Region 7, contact Mark
Matthews: Email at: matthews.mark@
epa.gov.
For EPA Region 8, contact Amy
Maybach: Email at: maybach.amy@
epa.gov.
For EPA Region 9, contact Eugene
Bromley: Email at bromley.eugene@
epa.gov.
For EPA Region 10, contact Jill Seale:
Email at seale.jill@epa.gov.
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
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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).
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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
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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
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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
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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 fiveyear 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
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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
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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
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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.
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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,
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‘‘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
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100933
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
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100934
Federal Register / Vol. 89, No. 240 / Friday, December 13, 2024 / Proposed Rules
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.
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[FR Doc. 2024–28867 Filed 12–12–24; 8:45 am]
BILLING CODE 6560–50–P
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R3–ES–2024–0152;
FXES1111090FEDR–256–FF09E21000]
RIN 1018–BH79
Endangered and Threatened Wildlife
and Plants; Endangered Species
Status for Eastern Hellbender
Fish and Wildlife Service,
Interior.
ACTION: Proposed rule.
AGENCY:
We, the U.S. Fish and
Wildlife Service (Service), propose to
list the eastern hellbender
(Cryptobranchus alleganiensis
alleganiensis), a salamander subspecies
from Alabama, Georgia, Illinois,
Indiana, Kentucky, Maryland,
Mississippi, Missouri, New York, North
Carolina, Ohio, Pennsylvania,
Tennessee, Virginia, and West Virginia,
as an endangered species under the
Endangered Species Act of 1973, as
amended (Act). This determination also
serves as our 12-month finding on a
petition to list the eastern hellbender.
After a review of the best available
scientific and commercial information,
we find that listing the subspecies is
warranted. If we finalize this rule as
proposed, it would add this subspecies
to the List of Endangered and
Threatened Wildlife and extend the
Act’s protections to the subspecies. We
have determined that designation of
critical habitat for the eastern
hellbender is not prudent.
DATES: We will accept comments
received or postmarked on or before
February 11, 2025. Comments submitted
electronically using the Federal
eRulemaking Portal (see ADDRESSES,
below) must be received by 11:59 p.m.
eastern time on the closing date. We
must receive requests for a public
hearing, in writing, at the address
shown in FOR FURTHER INFORMATION
CONTACT by January 27, 2025.
ADDRESSES: You may submit comments
by one of the following methods:
(1) Electronically: Go to the Federal
eRulemaking Portal: https://
www.regulations.gov. In the Search box,
enter FWS–R3–ES–2024–0152, which is
the docket number for this rulemaking.
Then, click on the Search button. On the
resulting page, in the panel on the left
side of the screen, under the Document
Type heading, check the Proposed Rule
box to locate this document. You may
submit a comment by clicking on
‘‘Comment.’’
SUMMARY:
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(2) By hard copy: Submit by U.S. mail
to: Public Comments Processing, Attn:
FWS–R3–ES–2024–0152, U.S. Fish and
Wildlife Service, MS: PRB/3W, 5275
Leesburg Pike, Falls Church, VA 22041–
3803.
We request that you send comments
only by the methods described above.
We will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see
Information Requested, below, for more
information).
Availability of supporting materials:
Supporting materials, such as the
species status assessment report, are
available on the Service’s website at
https://fws.gov/species/easternhellbender-cryptobranchusalleganiensis-alleganiensis, at https://
www.regulations.gov at Docket No.
FWS–R3–ES–2024–0152, or both.
FOR FURTHER INFORMATION CONTACT: Erin
Knoll, Field Supervisor, U.S. Fish and
Wildlife Service, Ohio Ecological
Services Field Office, 4625 Morse Road,
Suite 104, Columbus, OH 43230;
telephone 614–528–9704. Individuals in
the United States who are deaf,
deafblind, hard of hearing, or have a
speech disability may dial 711 (TTY,
TDD, or TeleBraille) to access
telecommunications relay services.
Individuals outside the United States
should use the relay services offered
within their country to make
international calls to the point-ofcontact in the United States. Please see
Docket No. FWS–R3–ES–2024–0152 on
https://www.regulations.gov for a
document that summarizes this
proposed rule.
SUPPLEMENTARY INFORMATION:
Executive Summary
Why we need to publish a rule. The
Act (16 U.S.C. 1531 et seq.) defines a
‘‘species’’ as including any subspecies
of fish or wildlife or plants, and any
distinct population segment of any
species of vertebrate fish or wildlife
which interbreeds when mature. Under
the Act, a species warrants listing if it
meets the definition of an endangered
species (in danger of extinction
throughout all or a significant portion of
its range) or a threatened species (likely
to become an endangered species within
the foreseeable future throughout all or
a significant portion of its range). If we
determine that a species warrants
listing, we must list the species
promptly and designate the species’
critical habitat to the maximum extent
prudent and determinable. We have
determined that the eastern hellbender
meets the Act’s definition of an
E:\FR\FM\13DEP1.SGM
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]]>Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
