Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1a 53 Clarifying that industrial earth disturbance activities ( e. g., maintenance, site remediation, demolition) that are not connected with the construction of a structure do not need a CGP, reduces unintended burden to projects that cause minimal erosion/ sediment concern. EPA disagrees with the commenters assertion. In fact, many earth disturbing activities that disturb more than 1 acre but are not associated with construction of a structure are in fact, required to obtain coverage under an NPDES permit ( e. g., the CGP). 1006 and 1002 1a 58 The fact sheet is confusing and unnecessarily lengthy.

We request that EPA reduce the length and streamline it by using flowcharts, bullets and/ or tables to clarify the requirements and make it user friendly. EPA acknowledges the commenters concerns. EPA has attempted to make complex permitting requirement as understandable as possible and has documented its rationale appropriately in the fact sheet. 1024 and 1028 1a 59 We urge EPA to make revisions to the draft permit so that the construction general permit, when finalized, is easily understood by the public, has reasonable eligibility requirements, and recognizes that storm water dischargers are different from industrial discharges and cannot be controlled in the same manner. EPA acknowledges this comment and believes that the final CGP meets the recommendations of the commenter. 1062 and 1063 1a 66 Will the restoration of wetlands and adjacent upland areas require a NPDES general permit for storm water discharges? EPA's NPDES permitting program for storm water discharges from construction activities requires permit coverage for activities that disturb equal to or greater than 1 acre of land. CWA 404 regulates construction ( i. e., dredge and fill)

activities in wetlands. As such, construction activities associated with wetlands is subject to the Corps of Engineers' 404 Permitting Program while adjacent upland restoration activities are subject to NPDES permitting requirements if equal to or greater than one acre is disturbed. 1059 1a 67 Will maintenance of agricultural maintenance activities like ( grassed waterways, sediment basins) require a NPDES permit? If grading, clearing or excavation activities disturb equal to or greater than 1 acre of land either for an individual project or as part of a long term maintenance plan, then the activity is subject to storm water permit requirements. If the area disturbed is to be used for agricultural purposes, those activities do not require coverage under an NPDES storm water permit. 1059 1a 68 Will CAFO projects over 1 acre and less than 5 acres require a NPDES permit for small construction activities? CAFOs, as defined in the NPDES regulations, are considered to be point sources subject to the NPDES permitting requirements. As such, CAFO construction activities greater than 1 acre must obtain permit coverage for storm water discharges. 1059 1a 69 What documentation would you expect to see in the files concerning our field offices decision that an agricultural activity is exempt from the permit process? EPA expects decisions to be based on applicable sections of the NPDES regulations, as appropriate. A wide variety of documentation may be appropriate depending on the situation. 1059 1 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1a 70 If a landowner is breaking out land (> 1 acre) that is not currently in agricultural production ( crop, grazing) and plans on farming the land is a NPDES permit needed? Land to be used for agricultural purposes is not eligible for coverage under the CGP. That type of activity is generally exempt from NPDES storm water permitting. 1059 1a 71 If a landowner has received a NPDES permit, say for a CAFO, is a NPDES Storm Water Program Phase II permit needed? A discharge requires permit coverage, be it an individual or general permit. If storm water discharges are regulated in an existing NPDES permit, a second permit for storm water is unnecessary. If the existing NPDES permit does not address stormwater, then a permit may be necessary. 1059 1a 110 The proposed permit is not written in a simple, explicit manner that makes it apparent to the public when a permit is required and how to comply. Even the most basic question of when a permit is needed, especially for builders who buy lots within a subdivision, is not described in a manner that is easily understandable. EPA acknowledges the commenters concerns. The Agency has redefined " operator" and has reorganized this permit significantly from the 1998 CGP in an attempt to make the permit easier to understand. 1062, 1063, 2001,

and 1068 1a 118 The Clean Water Act governs water quality not discharges of water per se. However, the Permit seeks to regulate hydrology ( flow velocity) regardless of the quality of water being discharged ( permit 3.14( G); fact sheet 3.14( G)) . The Clean Water Act requires controls on the discharge of pollutants ( CWA 402( p)( 3)( B)( iii)), and the rate of water flow is not a discharge of pollutants. The permit does not require any specific BMPs, only the implementation of a suite of BMPs that will be effective at preventing the discharge of sedimentladen water. The permittee is free to design a combination of BMPs that suit his or her purposes. EPA is not regulating hydrology.

Erosion is caused by water, moving at erosive velocities, across bare soil. It is much more effective and inexpensive, to prevent erosion by minimizing the amount of water and/ or the velocity of water traversing bare soils. Since the rate of water directly influences the pollutant content of the water, most erosion control specialists recommend the implementation of flow control BMPs. EPA is, however, regulating water quality. 1033 2 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1a 122 In the Fact Sheet, Page 40 ( under ' What Types of Construction Activities May Need a Storm Water Permit?'), and in the Proposed Permit's definition of ' Discharge of Storm Water Associated with Construction Activity,'   By including non earth disturbing activities in this definition, EPA has gone beyond the requirements of the current regulations.

Sempra Energy does not disagree that, where appropriate, BMPs should to be implemented for nonearth disturbing construction activities, but does not believe that the regulations require the inclusion of nonsoil disturbing activities in the calculation of the area of soil disturbance for the purpose of determining the need to obtain a storm water permit. This expansion in scope of the storm water permit requirements would subject numerous construction projects that were not contemplated by the original Phase II Rule to storm water permit requirements. Accordingly, EPA should clarify that only those construction activities that actually disturb the soil should be used for calculating soil disturbance to determine the need for a permit. EPA agrees with the commenters statement that only those construction activities that disturb soil should be used for calculating soil disturbance to determine the need for a storm water permit. As defined, disturbance includes clearing, grading, and excavating.

EPA disagrees, however, with any implication that the Agency has exceeded its authority in considering and addressing pollutant discharges other than those directly tied to soil disturbing activities in this permit. 1027 1a 143 Parts 2.2. B. 2 & 2.2. C. 2: Geotechnical borings and/ or archeological investigations may be performed in the pre design phase of a project to determine the feasibility of a site for a construction project. Does such activity constitute the commencement of the construction activities for which preparation of a Storm Water Pollution Prevention Plan and submission of a NOI would be required? EPA does not consider geotechnical borings and/ or archeological investigations performed in the pre design phase of a project to determine the feasibility of a site for a construction project to be considered commmencement of construction activity, unless those activities themselves will disturb more than one acre.

1077 1a 149 It is strongly recommended that SIC codes of these activities   ' agriculture production and services'   be clearly stated in the permit. EPA generally agrees with the commenter's suggestion and has modified the permit area eligibility for Oklahoma to include: point source discharges associated with agricultural production, services, and silviculture under SIC Codes 01, 02, 07, 08, and 09, except for 092 ( fish hatcheries and preserves).

1025 1a 153 We believe that small construction activities conducted within the State of Alaska should be excluded from 2003 CGP requirements until questions regarding the availability of small construction waivers are resolved. At present, rainfall erosivity waivers are not available in Alaska as data on erosivity factors are not readily available. Should information become available documenting eligibility of rainfall erosivity waivers in Alaska, construction site operators may use that information in submitting a waiver certification form. 1041 3 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1a 470.1 The Clean Water Act governs water quality not discharges of water per se. However, the Permit seeks to regulate hydrology regardless of the quality of water being discharged. To this end, the Permit requires implementation of velocity dissipation devices to ' provide a non erosive flow velocity' so that ' no significant changes in the hydrological regime of the receiving water' occur. The Fact Sheet echoes and expands upon these requirements  the Clean Water Act requires ' controls to reduce the discharge of pollutants . . . and such other provisions . . .

appropriate for the control of such pollutants.' The rate of water flow is not a ' discharge of pollutants,' as that phrase is defined in the Clean Water Act. Additionally,

case law interpreting the Clean Water Act uniformly has found the definition of ' pollutant' does not include downstream erosion ( See e. g., National Wildlife Fed'n v. Gorsuch, 693 F. 2d 156, 171 72 ( D. C. Cir. 1982);

Missouri ex rel. Ashcroft v. Department of the Army,

672 F. 2d 1297, 1304 ( 8th Cir. 1982).) The permit does not require any specific BMPs, only the implementation of a suite of BMPs that will be effective at preventing the discharge of sedimentladen water. The permittee is free to design a combination of BMPs that suit his or her purposes. EPA is not regulating hydrology.

Erosion is caused by water, moving at erosive velocities, ac118ross bare soil. It is much more effective and inexpensive, to prevent erosion by minimizing the amount of water and/ or the velocity of water traversing bare soils. Since the rate of water directly influences the pollutant content of the water, most erosion control specialists recommend the implementation of flow control BMPs. EPA is, however, regulating water quality. 1039 1a 470.2 The Permit provisions seeking to regulate hydrology,

are therefore, invalid and should be removed. 1039 1b 34.1 With the advent of the lowered permitting threshold ( i. e., from 5 acres to 1 acre of soil disturbance), a significant increase in permitting will be required by utilities that conduct relatively small ( i. e., < 1 acre)

construction activities necessary to install ' bring up'

facilities to serve land developments. This increase in permitting will be compounded in situations where the land developer does not cover these construction activities in his project's storm water permit and SWPPP. EPA encourages a comprehensive SWPPP be developed for an entire site with areas of responsibility identified for each operator. This prevents duplication of effort and allows operators to be aware of the others' activities and storm water controls so as not to impact them. If operators cannot work collaboratively in this vein then they must be separate permittees with separate SWPPPs. This applies even to sub 1 acre parts of a project when the common plan of development or sale acreage totals at least an acre.

The issue is, then, are utilities disturbing less than an acre necessarily " operators" on a larger development site? EPA believes that in many areas utility companies will not meet the definition of operator while installing utility service lines. The definition of operator depends on meeting either of the following two criteria: 1) a party with operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or 2) a party with day to day operational control of those activities at a project which are necessary to ensure compliance with a storm water pollutio 1027 4 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 34.2 The issue is, then, are utilities disturbing less than an acre necessarily " operators" on a larger development site? EPA believes that in many areas utility companies will not meet the definition of operator while installing utility service lines. The definition of operator depends on meeting either of the following two criteria: 1) a party with operational control over construction plans and specifications, including the ability to make modifications to those plans and specifications; or 2) a party with day to day operational control of those activities at a project which are necessary to ensure compliance with a storm water pollution prevention plan ( SWPPP) for the site or other permit conditions ( e. g.,

they are authorized to direct workers at the site to carry out activities required by the storm water pollution prevention plan or comply with other permit conditions).

To determine if a utility company meets either criterion, a review of the word " control" with regard to construction plans and specifications and day to day operations is needed. 1027 1b 34.3 In the definition of " operator," it is not EPA's intention to include those parties whose function is to assure that a project complies with previously established standards. For example, design or installation standards set by municipalities or utilities which are based on national standards does not give the municipality or utility " control" over a construction project's plans and specifications, but instead directs or limits a project operator's latitude when drafting or modifying a particular aspect of the project's plans and specifications. Furthermore,

reviewing or applying such standards ( e. g., residential electric lines must be capable of carrying a specific voltage, made of certain materials, buried a certain depth) does not make a utility or municipality meet the first criterion of the definition of " operator." Also, utility companies will often not meet the second criterion of the definition because they are not responsible for overall SWPPP compliance at a project. Typically, a project's general contractor has overall responsibility for SWPPP implementation and compliance. 1027 1b 34.4 To the extent that a utility company needs to develop its own site specific plans and specifications for a service installation at a project requiring storm water permit coverage, the utility will be considered to meet the definition of " operator"

and must allow for appropriate storm water control measures either by designing and implementing controls themselves, or by assuring that another project operator has designed and will implement storm water controls for the area disturbed by the utility service installation. In all cases, to ensure effective implementation of storm water pollution control measures, EPA stresses the importance of cooperative efforts by all parties involved at a construction site,

including those not meeting the definition of " operator," to understand and abide by SWPPP provisions which their activities will impact. 1027 5 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 34.5 Other examples of where a service line installation would require construction storm water permit coverage would be if the activity disturbed five or more acres ( 40 CFR 122.26( b)( 14)( x)), or was designated by the Director to obtain coverage for another reason ( 40 CFR 122.26( a)( 1)( v), 122.26( a)( 9) or 122.26( g)( 1)( i)). See Part I. B. 1. of the permit for further details on eligibility.

Other utility company activities, such as the installation of main transmission lines, should likewise be reviewed to see if permit coverage is required. 1027 1b 42   a recurring issue that has arisen in the context of E& P facilities relates to the construction of pipelines associated with the operating facilities. In many cases these pipelines are constructed, owned and operated by separate companies from the E& P facility. Yet, in discussions with EPA staff over the past several years, EPA's position on how it would treat these pipeline operations in the context of a common plan of development is unclear. For a producer, however,

knowing that answer is critical because it could determine whether a permit was necessary. Pipelines are potential contributors to sediment runoff. If their construction is occurring at the same time as the well pad construction, and five acres is disturbed, this would generally be considered as a common plan. If there is a time lag sufficient for stabilization to occur between construction of the different activities, they could be treated as separate projects. 1005 1b 43 EPA's guidance on " contingent future activities"

therefore raises the following questions:   How does EPA intend the " contingent future activities" concept to apply to development drilling, in fill drilling, and other projects ( e. g., pipelines, production, and transmission facilities) ordinarily associated with oil and gas fields after the exploratory phase? These activities are entitled to coverage under the oil and gas exemption,

but are " funded" in larger increments than exploratory drilling and under a " funding" test are likely to exceed the five acre " common plan" threshold. EPA does not intend that funding be used as the only way to define what activities are part of a common plan. Distance and time should be considered when making this determination. 1061 6 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 44   Guidance given in the Fact Sheet about common plan of development  discusses projects that are contiguous, but developed at different times  that can be considered as separate " common plans" assuming they are in the " conceptual phase" and have not been funded. This could be construed to mean that well pads built adjacent to an existing pad are part of a common plan of development, because " conceptual phase" and " have been funded" have no single and clear meaning in the oil & gas industry. We encourage EPA to reevaluate this guidance and allow industrial activities to consider contiguous projects as part of " common plans" only when they occur simultaneously. EPA does not believe it is necessary to define " conceptual Phase" and " have been funded" in order to clarify when oil and gas construction activities should be considered as part of a common plan. As long as the existing well pad is " stabilized", a new well pad could be built adjacent to the old pad and not considered to be part of a common plan. EPA does not consider common plans to be limited to contiguous activities. As has been noted in the past, one common plan may take years to complete; however, permit coverage is required for the entirety of the project. An operator may file an NOT if a project ceases and final stabilization is achieved on any disturbed areas, but the operator is required to then submit a new NOI once construction activity recommences. 1002 1b 45 The final CGP must make clear that its common plan of development requirements do not apply to oil and gas E& P facility construction during the postponement period. EPA disagrees. While many small oil and gas construction sites can be treated as discrete projects, there may be some projects that are truly part of a common plan. 1005 1b 46 The proposed CGP in conjunction with page 45 of the EPA's Permit Fact Sheet   states that one NOI is sufficient to cover all activities on any " one common plan of development or sale." However, " Common plan of development or sale" is not defined. All activity on Kirtland AFB is under the command and control of a single entity. So, even though there may be projects occurring on the installation that are not necessarily " interconnected" from an operational or development standpoint, those projects are " interconnected" due to the approval authority required. The centralized process required to obtain project/ construction approval, and the facility wide master plan could easily be interpreted to be part of a " common plan." The term " common plan of development or sale" may already include this interpretation, but the proposed regulation lacks a degree of specificity. Being " under the command and control of a single entity" does not mean that projects are part of a common plan. The " plan" in a common plan of development or sale is broadly defined as any announcement or documentation or physical demarcation indicating that construction activities may occur on a specific plot. A SWPPP designed for the specific project must be developed for each site and must be prepared before submittal of an NOI. In many situations different activities on a base would require separate SWPPS and NOIs and would not be part of a common plan. 1037 7 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 47 EPA should expand the examples on page 7 of the Fact Sheet to clarify what projects must be addressed as part of a " common plan of development or sale" and what projects must considered as separate projects in terms of permit responsibilities. ... EPA should provide specific language in the permit to make it clear as to who must get a permit and how responsibilities change as land within the development is sold lot by lot to individual builders or homeowners. ... When does the responsibility of the developer for storm water pollution prevention from each lot cease and become the responsibility of the new owner? Does the new owner have to get permit coverage? If so, under what circumstances is permit coverage required? Due to the great variety in construction projects, it is impossible to provide examples in the Fact Sheet that apply to every situation. EPA has tried to clarify the responsibilities of the different parties that may be involved in a construction project. 1057 1b 48 As we understand the proposed definition of "

noncontiguous projects, two wells pads whose boundaries are closer than one quarter mile apart will automatically be considered part of a " common plan,"

regardless of whether there is an interconnecting road or pipeline " under construction at the same time." We assume, and would request EPA's confirmation, that these two unconnected well pads would have to be under the control of the same " operator" and " under construction at the same time" to be considered part of the " common plan." Both distance and time between well pads and interconnecting roads should be considered when determining if activities are part of a common plan. Two unconnected well pads closer than a quarter of a mile apart and with the same operator who is operating under a plan that includes both sites, is considered to be a common plan. If at some point, the total acreage under the common plan for which construction has not yet commenced falls below one acre, the operator is not required to obtain permit coverage for that last remaining piece of construction activity upon commencement of construction. 1061 8 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 49 Under EPA's guidance on " contingent future activities,"   the common plan would appear to include even non contiguous projects where " the physically interconnected phases will not overlap,"

since EPA's guidance allows the " conceptual phase"

to be excluded from the common plan only if the " conceptual phase has not been funded and periods of construction for the physically interconnected phases will not overlap." If a group of oil and gas projects are " funded" for a given time frame, therefore, it would appear that the " non contiguous" nature of an oil and gas activity would be irrelevant to the amount of acreage included in the " common plan."   Does noncontiguousness trump funding? Or does funding trump non contiguousness? EPA does not intend that any one consideration, such as funding, be used as the way to define what activities are part of a common plan. Distance and time should be considered when making this determination. See comment response 48. 1061 1b 50 EPA's guidance on " contingent future activities"

therefore raises the following questions:   What does EPA mean by " funding"? Does it mean paid for?

Authorized for expenditure? Budgeted? EPA does not believe there is any reason to define " funding". EPA does not intend that any one consideration, such as funding, be used as the way to define what activities are part of a common plan. Distance and time should be considered when making this determination. 1061 1b 51 EPA's guidance on " contingent future activities"

therefore raises the following questions:   How will EPA enforce the " contingent future activity" concept?

A company's exploration and production drilling and project plans and " funded" expenditures are the most confidential information developed by the company,

which are not required to be disclosed to any other governmental authority. EPA cannot reasonably expect a company to disclose this information to EPA to demonstrate whether or not the company's activities are " contingent future" activities or not. EPA will look at a combination of factors, such as time and distance, when determining if a project should have permit coverage. 1061 1b 52 Clarifying that dispersed projects that could have been interpreted as " common plan of development" should be considered separate projects would allow projects with low water quality impact concerns to be treated in a less burdensome fashion. Dispersed does not necessarily mean there is low water quality impact.

However, both distance and time should be considered when making this determining if projects are part of a common plan. 1006 9 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 74 It is essential that the question of whether and how the concept of common plan of development is to be applied to oil and gas E& P facility construction be included in the postponement of the application of the CGP to E& P facilities. EPA referenced the language in the proposed CGP in the two year postponement rule. 1005 and 1010 1b 75 EPA should issue interim guidance on the definition of " common plan" in the oil and gas industry for use during the two year deferral period that allows such common, normal oil and gas activities to be covered by the proposed deadline extension. EPA included guidance on " common plan" in both the draft and final CGP and fact sheets. 1060 1b 76 During the proposed deferral period, an operator should not be required to obtain a permit as long as the land area actively disturbed at a given time for all of the project components associated with a given well site ( for example, the road, well site, reserve pit( s),

pipeline, storage facilities) does not exceed five acres. The commenter raises the important concept  land area actively disturbed. If two well sites are located close to each other and construction is occurring at the same time, they would generally be considered part of a common plan. 1060 1b 77 We believe that the inclusion of all small construction activities under the 2003 NPDES General Permit for Storm Water Discharges form Construction Activities ( CGP) is unnecessary to protect water quality of the United States. Small parcels that are part of a larger plan of development can be captured as large construction projects. A more reasonable approach would be to only target small construction activities that are of a type where or location where direct discharges to a receiving water are present and the discharge is significant to that water body. EPA can easily develop criteria to ensure that threshold is understandable and enforceable. EPA's decision to require permit coverage for all small construction activity was part of an earlier, separate action. The comment is not relevant to this permit. 1041 10 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 78 APSC believes that other factors, not just proximity of areas of disturbance, should be used to determine if individual sites are part of a common plan of development. One criterion may be whether or not multiple sites discharge to the same receiving water or water shet. Two small parcels may discharge to completely differ waters or watersheds ( drainage areas). It would be reasonable to segregate the disturbed areas based on potential impacts. APSC believes that there should be flexibility allowed when determining if a discrete construction project is part of a larger common plan of development. Specifically,

location of storm water discharge should be a consideration when making such determinations. EPA agrees that several factors should be considered when determining if something is part of a common plan. Distance and time should be considered when making this determination. Location of discharges, by itself, should not be the only factor to consider. Due to the wide range of situations and EPA's desire to allow flexibility, individual cases may have to be discussed with the permitting authority. 1041 1b 79 The interim guidance should allow oil and gas operators to elect to define the term " common plan" on a well site by well site basis, rather than requiring them to aggregate land area disturbed over multiple wells in a field or area. EPA disagrees that construction at separate well sites should always be considered individually. If two well sites are located close to each other and construction is occurring at the same time, they should generally be considered part of a common plan. 1060 1b 80 Additionally, Sempra Energy believes that utility construction activities conducted outside of, but adjacent to, a development project ( e. g. residential subdivision, business park), should not be considered part of the overall project's common plan of development for the purposes of determining if the utility work requires a storm water permit. Sempra Energy believes that these utility projects should be considered on their own merit. EPA agrees that generally, utility projects would not be considered part of a common plan. However, due to the numerous different situations found in construction projects, the operator should check with the permitting authority if there are questions about permit requirements. 1027 1b 81 In particular, UWAG recommends that a utility's construction activities conducted outside of, or adjacent to, a construction project be exempt from inclusion in that project's ' common plan of development.' See response to comment 80 1067 1b 82 Furthermore, a utility's work outside of or adjacent to a construction project should be considered its own ' common plan of development' for purposes of determining whether its portion of the project exceeds the acreage criteria triggering the need for a permit. See response to comment 80 1067 11 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 83 Nonetheless, UWAG recognizes that there may be circumstances under which the proposed utility work   even though off site   could be covered under the developer's permit and therefore utilities should retain the option to have adjacent construction covered by the developer's permit when such joint coverage is appropriate. See response to comment 80 1067 1b 84 Only contiguous, actively disturbed areas, which have not been temporarily stabilized in a manner appropriate for the soil type, should be counted against an acreage threshold. Non contiguous areas, such as 2 drill pads, that are connected by a pipeline, or road may be counted together as a common plan if they are all under construction at the same time. 1061 1b 85 Moreover, if application of common plan of development for E& P facilities remains in the CGP, it would have the effect of making moot the postponement of the permit on E& P facilities. EPA disagrees. The CGP fact sheet provides several examples of factors to be considered as to whether construction activity should be considered part of a common plan. EPA believes the majority of oil and gas construction will be separated by sufficient distance or time so as to be treated as separate projects. 1005 1b 86 A five acre limitation over an entire " common plan"

would exclude many exploratory activities and most development activities from coverage under the oil and gas exemption, and would frustrate Congress's intent in enacting section 402( l)( 2). The requirement for permit coverage for discharges from activity that is part of a " common plan" comes from an earlier and separate action. 1061 1b 87 Depending on how reasonably EPA defines when " land disturbance" or projects " under construction at the same time" begins and ends with respect to oil and gas activities,   the requirement that interconnected well pads and interconnecting roads or pipelines not be " under construction at the same time" could cause most routine oil and gas activities to exceed the fiveacre threshold, thus obviating the section 402( l)( 2)

exemption for these activities, if the exemption is to be limited to less than five acre sites. EPA disagrees that most activities will exceed the five acre threshold. However,

if construction of well pads and interconnecting roads or pipelines is occurring at the same time and the disturbed area exceeds five acres, EPA believes this should generally be considered as a common plan and be covered by EPA's permit. 1061 12 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 88 In order to reduce EPA's burden of administering the CGP, and to reduce the burden of compliance by Kirtland AFB, and similarly situated federal facilities,

we recommend that the EPA define " Common plan of development or sale," specifically including the following language: " For the purposes of this General Permit, ' Common Plan of Development or Sale'

includes federal facilities where the entity submitting the NOI exercises operational control over all construction activities occurring on that facility." EPA disagrees. See response to comment 46. 1037 1b 89 Over 30,000 wells could become subjected to the permit process   10,000 in Texas and Oklahoma alone. These facilities would increase the number of units requiring permits by 25 percent over the EPA estimates of the number of construction starts affected by the program. A third of the increase would be in EPA Region 6 where EPA manages the program. This burden would flow into the endangered species and historic site preservation and TMDL reviews and would overwhelm the capabilities of the agencies charged with these responsibilities to conduct their reviews.

The result would be unavoidable permit delays. The majority of the well construction projects will be able to take advantage of the two year permit postponement. In addition, many oil and gas construction projects occur in areas where there are no endangered species, historic properties, or TMDLs. For these projects, EPA anticipates few, if any, permit delays. 1005 1b 90 Not only would producers incur substantial permit preparation costs   whenever a common plan of development threshold was triggered   delays in drilling could unravel carefully developed projects. The first cost is straightforward; endangered species and historic site assessments would have to be funded and can be expensive, in the range of $ 10,000 per study.

The second cost arises because timing is so critical to drilling programs. Both the access to the mineral rights and the drilling rig are on schedules. A producer leases access to the mineral rights for a specified time and under specified conditions. See response to comment 89. 1005 13 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 91 We think the 1/ 4 mile ( 1320 feet) distance requirement is too great for oil and gas activities and should be greatly reduced ( at least 1/ 8 mile or lower). The ¼ mile spacing is simply one criterion for determining whether oil and gas construction activity should be treated as a common plan. For example, well pads can be closer distances as long as they are not under active ( unstabilized)

construction at the same time. 1024 and 1028 1b 92 The ¼ mile spacing is an arbitrary criteria that has no factual basis. Oil and gas sites are remote and in undeveloped areas. Sites only a few hundred feet apart with no active construction connection typically have stormwater flow paths that do not connect until after accumulative water quality impact concerns have diminished. See response to comment 91. Also, EPA notes that no permit will be necessary if there are no discharges into waters of the US. 1002 1b 93 Further, the construction area measurement methodology utilized to determine if a storm water discharge permit is required [ for oil and gas activities]

is severely flawed. ... EPA needs to re examine its area measurement method for determining project size and apply a more common sense approach. EPA assumes the commenter is referring to the ¼ mile spacing. If so, refer to comment response 91. 1011 1b 94 In the proposed Fact Sheet accompanying the proposed CGP, EPA attempts to explain the phrase ' common plan' using the oil and gas industry as an example. EPA's explanation poses numerous problems for the oil and gas industry. For example, in determining whether two non contiguous construction activities are considered a part of a common plan of development, EPA introduced a 1/ 4 mile distance criteria. Two well pads which are at least 1/ 4 mile apart are to be considered two separate construction activities if any interconnecting road, pipeline or utility is not under construction at the same time. First, many wells are developed on tracks of 20 to 160 acres ( or 1/ 32 sq. mi. to 1/ 4 sq. mi.). When multiple wells are drilled to the same reservoir, they are usually drilled less than 1/ 4 miles from each other.   Due to the distance   limitations, many non contiguous oil and gas construction activities would have to be considered as under a common plan of development,

triggering the permit requirement. The ¼ mile spacing is simply one criterion for determining whether oil and gas construction activity should be treated as a common plan. The timing of the construction activities and whether or not they have been stabilized as also mentioned in the fact sheet as factors to be considered. If two well sites are located close to each other and construction is occurring at the same time, they should generally be considered part of a common plan. 1015 14 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 95 The one fourth mile limit is inappropriate for oil and gas activities. Oil wells, at least in Texas, are usually developed on tracts containing only 20 ( 1/ 32 sq. mi.) to 160 ( 1/ 4 sq. mi.) acres. Where multiple wells are drilled to the same reservoir, they are usually drilled less than 1,320 feet ( 1/ 4 mile) from each other, often as close as 600 feet ( 1/ 8 mile). In many gas fields in Texas, such as tight gas fields and coal bed methane fields, natural gas wells are also drilled less than 1,320 feet ( 1/ 4 mile) apart. See response to comment 94. 1061 1b 96 The use of ¼ mi as a specific distance of separation should be the maximum separation distance for mandatory consideration of multiple oil and gas facilities as a common plan of development. An operator should be able to determine, based on sitespecific technical factors, that facilities separated by less than ¼ mi. are not part of a common plan of development  We recommend that the EPA incorporate the following factors into the definition of non contiguous construction activities ( 1) Recognize the unique nature of oil and gas construction activity,

and apply the acreage threshold to individual projects,

not over a " common plan" in the oil and gas industry;

( 2) Reduce the well spacing threshold to allow consistency with normal industry practice, which includes discrete well spacing and site construction on as little as 5 10 ac spacing ( 3) Allow interconnecting pipelines and roads consistent with normal industry practice; ( 4) Exclude gathering lines and flow lines from any acreage threshold.. The ¼ mile spacing is simply one criterion for determining whether oil and gas construction activity should be treated as a common plan. The timing of the construction activities and whether or not they have been stabilized as also mentioned in the fact sheet as factors to be considered. Pipelines, roads,

gathering lines, etc. are all potential contributors to sediment runoff. If their construction is occurring at the same time as the well pad construction, this would generally be considered as a common plan. If there is a time lag sufficient for stabilization to occur between construction of the different activities, they would generally be treated as not part of a common plan. 1004 15 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 97 One key element of the regulation that crystallizes these differences is the application of a " common plan of development" test to determine whether a permit is required. In principle, the idea seems to be to prevent a large project from being segmented in such a way to avoid permitting. It may be a valid concept for a subdivision that is being built over a longer period of time but is clearly designed to cover an area larger than its initial phase. However, it is a concept that does not work for oil and gas E& P facilities. It fails for several reasons. First, while an area may be ultimately developed as an oil or natural gas " field", each drilling decision is independent. While it may be based on the prior result, timing and location decisions on developing an area are separate actions. They are not part of a common plan. In the CGP fact sheet EPA has clarified that projects separated by time and/ or distance may be considered separate projects and not part of a common plan. 1005 1b 98 In defining the " common plan of development and sale," EPA is using a model that is based on conventional residential and commercial construction projects. This model is not appropriate for oil and gas activities. Selection of the sites for oil and gas exploration and production and the planning and timing of such activities are controlled by numerous other factors not accounted for in the model used by EPA.

These additional factors include, but are not limited to,

factors such as geology, spacing requirements to protect correlative rights, mineral law, and legal contracts. Sites associated with oil and gas operations are not contiguous as that term would be viewed in conventional residential and commercial construction.

These sites also are often in very remote locations. See response to comment 96 1009 1b 99 I also urge EPA to consider common oil and gas industry practice when defining what constitutes a " common plan," " non contiguous" projects, " future contingent" projects, and " stabilization" of an oil and gas site. See response to comment 96 1009 16 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 100 EPA must use models and definitions that are appropriate and specific to activities associated with oil and gas operations. In defining various terms and developing the

various requirements, EPA has used a model based on residential and commercial construction projects,

which does not account for factors that control location, spacing, planning and timing of oil and gas exploration and production activities. Any model EPA uses to evaluate oil and gas operations and define terms associated with oil and gas operations must take these factors into consideration. See response to comment 96 1007 1b 101 However, it ... ' common plan of development'   is a concept that does not work for oil and gas E& P facilities. EPA disagrees. See response to comment 96 1011 1b 102 Furthermore, the concept of ' common plan of development' as outlined in the proposed CGP does not work for the oil gas industry. The concept seems to be a logical mechanism to prevent a large development project from being piecemealed for the purpose of avoiding permits. This approach may be valid for a typical residential subdivision that is designed with a defined plan to cover a large area and built over a period of several years with its construction phases divided to cover only a small area at a time. The oil and gas exploration and development plans are created with a different approach. When an oil and gas producer begins to develop a ' field', it is unknown as to when, where and how many wells are to be eventually drilled. While the decision to drill a particular well may be based on the result of previous drilling, the timing and location decisions are independent from any other drilling in the field . It is not a part of a ' common plan of development'. See response to comment 97 1015 17 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 103 The proposed definition for " non contiguous separate projects" is too narrow to be applied to the oil and gas industry ( and may be narrower than EPA realizes when applied to oil and gas activities). The proposed definition of activities that are " contingent on future activities" is too vague to be applied effectively and would also appear to be too narrow for many common oil and gas activities. Both of the proposed definitions have the potential to obviate the oil and gas exemption in section 402( l)( 2), rendering the exemption unavailable or insignificant for a substantial number of ordinary oil and gas activities. See response to comment 87 1061 1b 104 If an acreage threshold is to be considered at all ( and we do not believe it is legally or scientifically justified),

EPA should consider the following changes, among others, to the " non contiguous" definition: ( a) Apply the acreage threshold to individual projects, not over a " common plan" in the oil and gas industry; ( b) Reduce the well spacing threshold required to show "

noncontiguousness to be consistent with normal industry practice; ( c) Allow interconnecting pipelines and roads consistent with normal industry practice; ( d) Exclude gathering lines and flow lines from any acreage threshold; and ( e) Define " land disturbed" or " area under construction" to end when the structure ( road,

pad, pipeline) is in a condition consistent with the operator's use and normal, prudent temporary stabilization measures accepted in the industry have been implemented. See response to comment 96 1061 1b 105 While EPA has tried to describe circumstances where a common plan of development would or would not exist by an example in the Fact Sheets accompanying the Federal Register notice on the CGP, the circumstances of each case are simply too different to be addressed by such an approach. EPA believes that the examples provided in the CGP fact sheet provide adequate guidance and flexibility to address the circumstances present in many different cases. 1005 18 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 106 Drilling operations, at least in Ohio, are different from general commercial construction operations. Each decision to drill, with respect to timing and location, for example, involves a separate and distinct determination that weighs a number of moving factors,

including the results of other drilling operations in the same field. Accordingly, these types of operations do not fit the models contemplated by U. S. EPA when constructing its " common plan of development''

proposal. See response to comment 105. Also, construction activity in Ohio is covered under Ohio's permit( s), not EPA's CGP. 1010 1b 107 In the proposed Fact Sheet accompanying the proposed CGP, EPA attempts to explain the phrase ' common plan' using the oil and gas industry as an example. EPA's explanation poses numerous problems for the oil and gas industry.   Two well pads which are at least 1/ 4 mile apart are to be considered two separate construction activities if any interconnecting road, pipeline or utility is not under construction at the same time.   interconnecting access roads and pipelines are often built along with well pads. If ' under construction at the same time'

means ' not finally stabilized' as defined in the proposed CGP, this limitation would be a significant problem. Due to the   ' interconnecting' limitations,

many non contiguous oil and gas construction activities would have to be considered as under a common plan of development, triggering the permit requirement. See response to comment 94 1015 1b 140 [ refers to Fact Sheet Sec. 1.3 Eligibility] NAHB urges EPA to describe who is eligible for coverage in plain language with examples that clearly illustrate the meaning of this eligibility statement. As mentioned above, it is NAHB ' s experience that this is the single most difficult issue for our members to understand regarding the NPDES permit program. 1057 19 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 142 Additionally, where a general permit is needed, it does not make sense, in many cases, for utility installation/ extension activities leading up to a site to be subject to the same rigorous storm water permitting requirements as the developer because utility construction activities off the construction site commonly occur in paved areas, with a short construction duration and reduced exposure of disturbed soil. These activities have a very limited potential for storm water impact and are already controlled through best management practices. EPA's 1998 CGP provides a lengthy discussion of the applicability of permits to utility line installation. As described therein, in certain instances, permit coverage is not required.

EPA notes that construction in paved areas often has a significant potential for impact since impervious surfaces generally have high runoff rates, and storm sewers that serve as direct conduits to surface waters. 1067 1b 290 The General Permitting procedures could be interpreted as requiring an NOI for each individual construction project under the control of a single Operator. This interpretation would be overburdensome on both the EPA and Operators of construction activities. EPA's CGP does in fact require an NOI for each individual construction project under the control of a single operator. EPA does not believe completing a twopage NOI for each construction site is overly burdensome. 1037 1b 377 EPA should also make clear, however, that an operator would not be precluded by the interim guidance from electing to aggregate the area disturbed over multiple well sites or oil and gas projects. In this case, if the total area disturbed exceeds five acres, the operator would be able to cover multiple well sites or projects under one NOI and SWPPP. EPA agrees and believes the permit and fact sheet describe that as an alternative approach to permit coverage. 1060 20 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1b 380.1 In the Fact Sheet, Page 18, in Section 2.2c, EPA clarifies when a SWPP needs to be implemented ( or doesn't) for small construction activity that was ongoing on 3/ 10/ 03. This language and concept needs to be made clearer in the Federal Register Notice in Section II. c. 3 ( 78119). We urge EPA to allow ' small construction' sites that are on going prior to 3/ 10/ 03 to reevaluate their soil disturbance area as of 3/ 10/ 03. On projects where the remaining soil disturbance ( i. e.

areas on the project where construction is not complete and final stabilization has not been achieved)

is less than one acre, the project should not be considered a ' small construction activity' and,

therefore, the project should not be required to obtain permit coverage because it no longer meets the threshold of one or more acres of soil disturbance. EPA's permit clearly describes permitting and SWPPP responsibilities for existing small construction activities. 1027 1b 380.2 The Fact Sheet, on page 42 ( under ' My Project Will Disturb Less Than One Acre, But It May Be Part of A ' Larger Common Plan of Development or Sale.' How Can I Tell and What Must I do?'), describes a situation under which construction activities can be re evaluated for the need of a storm water permit. This concept should be applied to small construction projects that are on going on 3/ 10/ 03. 1027 1c 30 We already prepare and implement Erosion and Sedimentation Plans for the drilling of our wells. Existing State required E& S plans can be used to meet the NPDES requirements. In addition, see Response to Comment Summary 1. 1013 1c 64 [ We]  request that the scope of the affected facilities be provided in the final rule. EPA has clarified those activities covered by this permit, including those activities associated with linear pipeline projects. 1003 1c 72 Clarification: Will the proposed extention also cover linear pipeline projects other than gathering and production activities? SIC code 4922. EPA has clarified those activities covered by this permit, including those activities associated with linear pipeline projects. 1001 21 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 73 Section 1.2 of the proposed CGP lists " discharges . . .

associated with oil and gas exploration, drilling,

operations, and pipelines" in various states. EPA refers in various places in the proposed Fact Sheet to oil and gas activities. EPA should make clear that permit coverage is required only for contaminated discharges from oil and gas activities, which do not include discharges from clearing, grading, and excavating activities at oil and gas activities. Section 1.2 identifies areas where permit coverage is available. Section 1.2 does not identify what types of entities are required to obtain permit coverage.

See also summary comment response 304. 1061 1c 135 ATINGP urges the EPA to review its interpretation of this exclusion and conclude upon adoption of this new construction general permit that oil and gas industry sites are excluded from its application. This comment is outside the scope of this action. See summary comment response 304. 1038 1c 144 When discussing the areas of coverage for Permit OKR15000F, EPA appropriately includes activities associated with oil and gas exploration, drilling,

operations, and pipelines. However, EPA excludes SIC Code 1321 for gas plants and SIC codes 46 and 49 associated with pipelines that are also not under the authority of the OK DEQ. These SIC codes should be added. In accordance with the state of Oklahoma's approved NPDES program, EPA retained jurisdiction over the following SIC categories relating to the oil and gas industry: Group 13  Oil and Gas Extraction; Group 46  Pipelines; and Group 492  Natural Gas Transmission. The commenter correctly points out that EPA has authority over category 46. EPA clarifies that it does not have authority over all of category 49; its authority is limited to SIC code 492. EPA has modified Section 1.2 to include the appropriate references to SIC categories 46 and 492,

and to include a broad reference to SIC Group 13 in order to encompass all related industries. 1006 1c 145 When discussing the areas of coverage for Permit OKR15000F, EPA includes activities associated with oil and gas exploration, drilling, operations, and pipelines. However, EPA excludes SIC Code 1321 for gas plants and SIC codes 46 and 49 associated with pipelines that are also not under the authority of the OK DEQ. These SIC codes should be added. See response to comment 144. 1002 1c 146 Section 1.2, EPA Region 6 permits: The SIC codes for the various pipelines need to be included, for example,

SIC 4612 ( crude oil pipelines) should be added to the list. In accordance with the state of Oklahoma's approved NPDES program, EPA retained jurisdiction over the following SIC categories relating to the oil and gas industry: Group 13  Oil and Gas Extraction; Group 46  Pipelines; and Group 492  Natural Gas Transmission. The commenter correctly points out that EPA has authority over category 46. EPA has modified Section 1.2 to include the appropriate references to SIC category 46 in order to encompass all related industries. 1024 and 1028 22 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 148 EPA appropriately includes activities associated with oil and gas exploration, drilling, operations, and pipelines. However, SIC Code 1321 for gas plants and SIC Codes 46 and 49, associated with pipelines that are not under the authority of the Oklahoma Department of Environmental Quality are excluded.

ATINGP urges EPA to include these additional SIC Codes for coverage under this permit. See response to comment 144. 1038 1c 173 The term ' processing, treatment and transmission'

includes gathering lines, flowlines and transmission lines that transport crude oil and natural gas between. .

. leaves the industry with too much uncertainly. I would propose that the term be defined as ' processing,

treatment and transmission' includes all pipelines used for the movement of crude oil and natural gas. EPA clarified the term " transmission" as part of the two year rule postponement for oil and gas related construction activity ( 68 FR 11327). Specifically, the term transmission includes gathering lines, flowlines, feeder lines, and transmission lines but does not include distribution lines. 1082 1c 174 I fully support EPA's two year postponement of the Phase II requirements of the CGP for oil and gas construction activities, including exploration,

production, processing, treatment, and transmission.

However again confusion is introduced by the preceding term stopping at ' transmission'. I would request replacement of the term ' transmission' by ' transport of crude oil and natural gas by pipeline'. EPA clarified the term " transmission" as part of the two year rule postponement for oil and gas related construction activity ( 68 FR 11327). Specifically, the term transmission includes gathering lines, flowlines, feeder lines, and transmission lines, but does not include distribution lines, that transport crude oil and natural gas over long distances and are large diameter pipes operating at relatively high pressure. Pipelines that transport refined petroleum product and chemicals from refineries and chemical plants are not included in the term " transmission." 1082 23 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 180.1 The Definition of " Operator" at Oil and Gas Sites

Proposed CGP Sections Affected by this Comment:

Sections 2.1, 3.2, 10   Fact Sheet Sections Affected by this Comment: Sections 2.1, 3.2, 10   EPA's guidance for conventional construction projects does not translate easily to oil and gas operations, but we believe that it would be consistent with the conclusion that the lease operator or JOA operator, the drilling contractor, or the contractor the drilling contractor may hire on a " turnkey" basis, or some combination of those three entities, would be required to obtain coverage and comply with the CGP, depending on which of these three parties controls site specifications or day to day operations in a particular situation. At oil and gas sites, other persons, who might be referred to as " owners" or " operators" under oil and gas terminology, would not be defined as " operators" under the CGP terminology, because they lack the requisite control. EPA postponed permit coverage requirements for oil and gas related construction activity for two years to determine appropriate storm water controls for these activities. ( 68 FR 11327). EPA will consider the definition of the term " operator" as it applies to these activities during the two year postponement. 1061 24 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 180.2 Persons who lack the requisite control and, therefore,

should not be considered " operators" responsible for CGP compliance at O& G sites may include, among others, surface owner( s), mineral interest owner( s),

royalty interest owner( s), O& G lessee( s), and lease or JOA non operators, as well as sometimes even the lease or JOA operators, if they lack control over site specifications or day to day operations. EPA should clarify that surface owners, mineral owners, royalty owners, working interest owners, O& G lessees, and JOA non operators are not " operators" for purposes of the CGP. Generally, if CGP coverage is required, it will be required only of the lease or JOA operator, the drilling contractor, or the contractor the drilling contractor hires on a " turnkey" basis, or some combination of those 3 entities depending on the specifics of the contractual relationship between them.

If EPA fails to clarify the " operator" role for O& G operations in a reasonable way, leasing activities will be further complicated by misunderstandings and disputes over who may or may not be liable for CGP com 1061 25 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 182 By all logical assessments, clearing, grading, and excavating activities (" construction" in EPA's vernacular) are in fact an inherent part of oil and gas operations. Under EPA's current definition, when drilling begins at a site, " operation" begins and " construction" is terminated. Under EPA's current interpretation of Section 402( l)( 2), an " operating" E& P facility requires no stormwater discharge permit for uncontaminated stormwater, but clearing, grading, and excavating activities do. However, this ignores a physical and operational reality of E& P operations,

which requires a continuous drilling program and,

therefore, continuous clearing, grading, and excavating activities during the development phase of a field in order to maintain the leases and the right to operate an oil and gas field. By excluding clearing, grading, and excavating activities from the scope of the oil and gas exemption, EPA takes the exemption away from the vast majority of E& P operations. EPA acknowledges the commenters concern and references the recent two year oil and gas related construction activity coverage postponement ( 68 FR 11325) for discussion of on the 402( l)( 2) exemption. The specific comment is outside the scope of this CGP. 1061 and 1005 1c 190 Further, in light of EPA's related proposal to postpone the storm water permit deadline for oil and natural gas construction until April 30,2005, it would be more appropriate to use this same implementation date for application of the General Permit to natural gas projects. See 67 Fed. Reg. 59828 ( Dec. 30, 2002). The two year postponement applies to natural gas small construction, with the exception of distribution lines. See 68 Federal Register 11325.

1045 1c 304 The principal target of this regulatory program has been construction operations that generate substantial soil disruption that can be affected by stormwater. As a result the regulatory process tends to track those types of projects. It assumes a clear cut plan of development that involves a planning phase, an initial construction phase, and ultimately a termination of construction. The permit process is similar; it requires a Notice of Intent and a Notice of Termination. This comment was offered in the context of oil and gas construction projects.

EPA has postponed the permit application deadline for oil and gas construction activity disturbing 1 to 5 acres from March 10, 2003 until March 10, 2005. See 68 Federal Register 11325. The two year postponement will allow for time for EPA to analyze and better evaluate : the impact of the permit requirements on the oil and gas industry; the appropriate best management practices for preventing contamination of storm water runoff resulting from construction association with oil and gas exploration, production, processing, or treatment operations or transmission facilities; and the scope and effect of 33 U. S. C.

1342( l)( 2) and other storm water provisions of the CWA. 1005 26 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 305 EPA did not anticipate that oil and gas E& P facility construction projects were large enough to trigger the permitting requirements. Consequently, EPA did not devise its structure to reflect the nature of this industry. The current regulatory structure creates fundamental and irreconcilable permitting problems.

These derive from the very different objectives of a drilling operation compared to subdivision or shopping center construction. See response to comment 304. 1005 1c 307 I believe that comparing a one acre oil and gas site to a one acre housing subdivision or shopping center is like comparing apples to oranges. While both acuities may disturb one acre of land the oil and gas site does not impose a permanent impermeable foot print by creating paved roads or thousands of squire feet of roofed building which concentrate surface run off. The oil and gas site on the other hand results in a temporary disturbed site that is returned to the natural contour and revegetated with no net loss of permeable area. See response to comment 304. 1047 1c 308 Current proposed regulations do not take into account the effect of region, soil, and normal usage for fast moving, low impact construction projects such as pipeline installations. Why cannot all construction projects be defined by temporary versus permanent impact and allow te   [ rest of comment is missing from e docket] The CGP covers the installation of all " pipelines" which cause the disturbance of more than 1acre. However, if the specific pipeline of concern would qualify as a " transmission facility"; under 33 U. S. C. 1342( l)( 2), the two year permit application postponement for small construction activities related to the oil and gas industry applies. For a more detailed discussion of the types of pipelines which are considered by EPA to be transmission facilities, refer to 68 Federal Register 11327.

" The CGP does not distinguish permit coverage for pipelines on the basis of temporary versus permanent impacts. If the project meets the acreage threshold, it is covered by the permit. Construction operators can reflect in their storm water pollution prevention plans parts of a site where temporary disturbances are scheduled to occur, and, if applicable where such disturbances have terminated and all areas have been stabilized. Once stabilized and reflected in the SWPPP, no further SWPPP or inspection requirements apply to that portion of the site. 1082 1c 309 The CGP is clearly designed for construction activities such as building construction, which is far different than oil and gas well drilling. See response to comment 304. 1011 27 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 310.1 BATC requests EPA to make revisions to the draft permit so that the construction general permit, when finalized   recognizes that storm water dischargers are different from industrial discharges and cannot be controlled in the same manner. The type of pollutants discharged through storm water runoff may vary from industry to industry, and the types of BMPs or treatment technologies needed to control such pollutants should be specifically suited to the type of industrial activity. Construction is unique from other industrial activities because it involves new disturbances of land, and the transport and delivery of sedimentladen runoff to waterbodies. [ A detailed discussion of the adverse water quality impacts resulting from construction activity was included in Section I. B. 3 of the final Phase II storm water rule at 64 FR 68728.] Other regulated industrial activities, covered by the NPDES storm water regulations, are concerned more with post construction runoff from land which has already been developed.

Construction activity and the discharge associated with each project are relatively short lived, while other industrial discharges are typically indefinite in duration. 1068 1c 310.2 EPA has taken these differences into account in developing the final CGP, and has where possible tailored the permit's provisions to the characteristics of the construction industry. EPA has also attempted to provide operators with access to additional materials on appropriate BMP controls for construction activity,

including fact sheets ( see http:// cfpub. epa. gov/ npdes/ stormwater/ menuofbmps/ con_ site. cfm) and a BMP database ( see http:// www. bmpdatabase. org/), developed in cooperation with Urban Water Resources Research Council. 1068 1c 311 Many aspects of EPA's proposed NPDES general permit for stormwater discharges from construction activities ( or Construction General Permit, CGP) in Docket No. OW 2002 0055 do not work for the oil and gas projects. The problem arises from the fact that the primary target of the regulatory program addressing stormwater discharges from construction activities is the residential and commercial development and construction projects that build subdivisions and shopping centers. The nature of those development and construction projects are vastly different from the oil and gas construction projects. Understandably, the attempt to impose the regulatory program and the CGP designed for those types of construction projects on the oil and gas industry has created or will create many inherent problems. See response to comment 304. 1015 28 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 312 A residential or commercial project typically has a definite plan of development that involves a planning phase, a construction phase and termination of the construction. EPA's construction stormwater program and the CGP track the same process, requiring a Notice of Intent ( NOI) and a Notice of Termination ( NOT). The planning phase of such a project takes many months even years, allowing time for detailed planning and review for such items as endangered species and historic sites preservation. An oil and gas construction project, on the other hand, is typically on a very tight schedule and moves very quickly from planning to construction because both the access to mineral rights and the availability of drilling rigs are on schedules. Failure to meet the schedule often results in the loss of opportunity to drill which could lead to forfeiting hundreds of thousands of dollars invested in the project. The Agency does not believe it necessary to include specific language in the CGP recognizing the inherent differences between construction activity and other industrial activities. EPA notes that the Clean Water Act makes no distinction between types of industrial storm water discharges in terms of their ultimate requirement to meet applicable water quality standards. 33 U. S. C.

1342( p)( 3)( A). 1015 1c 313 If EPA creates a stormwater program and a CGP for the oil and gas industry in spite of the CWA exemption, Marathon urges EPA to tailor the program and the CGP to the unique nature of the industry.

Specifically, the program and the CGP should include a workable definition of ' common plan', and should not require the NO1 and NOT, and the review of endangered species and historic sites preservation as outlined in the proposed CGP. 1015 1c 314 EPA's scientific model is based wholly on conventional residential and commercial construction and development projects. This model does not support a need to impose a permit requirement or additional controls on oil and gas grading, clearing, and excavating activities beyond those already used at oil and gas sites. Also, see response to comment 304. 1061 29 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 315 Thus, we urge EPA to make revisions to the draft permit so that the construction general permit, when finalized, is easily understood by the public, has reasonable eligibility requirements, and recognizes that storm water dischargers are different from industrial discharges and cannot be controlled in the same manner. See comment response 310. 2001 1c 316 Congress made no mention of tract size, much less a distinction between tracts of less than five acres and greater than five acres, as has EPA. I fail to see how EPA can study the full scope of the exemption without looking at all oil and gas activities, including the construction activities that are an inherent part of oil and gas operations and regardless of acreage to be disturbed by such activities as proposed in Docket No.

OW 2002 0068. Large construction has been regulated as an industrial activity under CWA section 402( p)( 6) since promulgation of the Phase I storm water rule. EPA did not propose to take any action with respect to large construction activity and did not seek comment on this issue. The Agency declines to respond to these comments, as they are outside the scope of the today's action. 1009 1c 317 We strongly think that oil and gas construction activities that disturb 5 acres or greater should also be included in this action to delay permits for small oil &

gas construction activities  Large construction has been regulated as an industrial activity under CWA section 402( p)( 6) since promulgation of the Phase I storm water rule. EPA did not propose to take any action with respect to large construction activity and did not seek comment on this issue. The Agency declines to respond to these comments, as they are outside the scope of the today's action. 1028 and 1024 1c 318 If EPA determines that the scope and effect of the exemption of 33 U. S. C. § 1342( l)( 2) is to exclude construction activities at sites disturbing one to five acres, the same exemption would apply to construction sites disturbing more than five acres. See response to comment 317. 1038 1c 319 EPA has not established a scientific basis for a fiveacre threshold or any acreage threshold as applied to oil and gas activities. One of the purposes of the two year postponement of the Phase II permit application requirements for oil and gas construction activities is to develop a better understanding of the impact of the small construction requirements on such operations. EPA clarifies that the acreage thresholds for construction were established under authority of CWA section 402( p)( 6). EPA did not seek comment on either the authority or justification for these different size thresholds as they apply to the oil and gas industry during the Agency's proposal of the CGP As such, EPA declines to respond to these comments, as they are outside the scope of the today's action. 1061 30 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 320 ABARTA requests that implementation be delayed until the legality of application to the oil and gas industry can be proven and the legislation revised to correct flaws indicated by submitted comments. See responses to comments 304 and 319.

Large construction has been regulated as an industrial activity under CWA section 402( p)( 6) since promulgation of the Phase I storm water rule. EPA did not propose to take any action expanding or contracting the set of discharges for which permit coverage would be necessary with respect to large construction activity and did not seek comment on this issue. The Agency declines to respond to these comments, as they are outside the scope of the today's action. 1012 1c 321 EPA does not have the legal authority under section 402( l)( 2) to categorically exclude clearing, grading, and excavating at oil and gas activities from the scope of the oil and gas exemption. Among the aspects of the small construction activity permit requirements which will be reviewed over the course of the two year postponement is the scope and effect of CWA Section 402( l)( 2) and other storm water provisions of the Act.

See response to comment 320 1061 1c 322 Discharges from clearing, grading, and excavating activities conducted consistent with normal, prudent operating practices used in the oil and gas industry are not " contaminated" within the meaning of section 402( l)( 2). As long as the clearing, grading, and excavating activities at an oil and gas site are being conducted consistent with normal, prudent operating practices accepted in the oil and gas industry and appropriate for the type of activity and location, there is no legal basis to exclude them from coverage under the oil and gas exemption. See response to comment 321. 1061 1c 323 Any conditions placed on the availability of the oil and gas exemption, therefore, must be consistent with the normal course of and practice in exploration,

development, and production of oil and gas reserves and cannot be so limiting as to render the oil and gas exemption unavailable or insignificant for a substantial number of oil and gas activities. Otherwise,

Congress's intent in enacting section 402( l)( 2) will be frustrated. See response to comment 321. 1061 31 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 324 In order to implement Congressional intent under the oil and gas exemption in section 402( l)( 2), if an acreage threshold is legally and scientifically justified at all, the threshold must be large enough to allow clearing, grading, and excavating of roads, pads,

gathering lines, necessary to bring an operator's leases on and maintain production during all phases of exploration, development, production and decline of an oil and gas field.   it would likely have to be different for different types of oil and gas activities, in order to comply with the intent of the oil and gas exemption. See response to comment 321. 1061 1c 325 In reference to EPA announcing its intention to propose a delay to the permit authorization deadline set forth in the NPDES regulations as it may relate to oil and gas construction activity, covering construction disturbances between one and five acres of land, EPA should consider extending this delay to the electrical transmission industry. This activity, if determined by your review to cover the construction of linear gas and oil conveyance facilities, electrical transmission industry should also be included. By the nature of the electrical transmission industry, transmission line construction projects are also linear in nature having multiple isolated construction sites. EPA clarified how the two year postponement applied to " transmission facilities". EPA refers the commenter to 68 FR 11327. EPA did not extend the two year postponement relating to the oil and gas industry to the electrical transmission industry, unless these activities are part of the oil and gas exploration, production, processing, treatment and transmission of oil and gas.

EPA did not seek comment on the two year extension as part of this action, and such comments are outside the scope of this permit issuance. 1076 1c 384 The detail and scope required in typical site specific SWPPPs would be very burdensome for most oil and gas activities, which involve small, simple, remote, and widely dispersed oil and gas locations. Moreover, the location of the clearing, grading, and excavating activity will move relatively quickly from site to site,

making it impractical to keep site specific records. If a permit is required for oil and gas activities at all, EPA should not require site specific SWPPPs for such activities. The nature of implementing BMPs makes it imperative that they be designed for specifc site topography, soils, vegetation, proximity to water bodies, etc. EPA believes it is feasible for construction site operators to develop site specific SWPPPs, and keep the necessary records. EPA has already announced the decision to defer a decision on the type of storm water discharge controls necessary, if any, for small ( less than 5 acre) oil and gas construction activities for 2 years. See also responses to comments 304 and 321. 1061 32 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1c 500 COP strongly supports the proposed two year postponement, until March I O , 2005, of the Phase II requirements of the Storm Water Construction General Permit ( CGP) for oil and gas construction activities, including exploration, production,

processing, treatment, and transmission. We were very pleased to see that EPA intends to reevaluate its interpretation of the scope and effect of the 33 U. S. C.

1342 ( 1)( 2) exemption as it relates to oil and gas construction activities during the postponement. As such, COP believes that EPA should also postpone the permit authorization deadline for NPDES storm water permits for oil and gas construction activity that disturbs greater than five acres of land until EPA completes its reevaluation. See response to comment 321. 1008 1c 501 COP believes the postponement should be extended to Phase I requirements until EPA completes its reevaluation of the scope and effect of the 33 U. S. C.

1342 ( 1)( 2) exemption as it relates to oil and gas construction activities. See response to comment 320. 1008 1c 502 COP believes that the construction of roads,

equipment pads, gathering lines, flowlines and transmission lines ( Le., pipelines), associated with oil and gas exploration, production, processing,

transmission, or treatment operations, including pipelines for delivery of refined products and chemicals, is included in the scope and effect of 33 U. S. C. 5 1342( 1)( 2). Therefore, EPA should clarify that construction activities on all transmission line construction activities are also included in the two year postponement from storm water permitting extended to oil and gas operations. These construction activities are integral to oil and gas exploration and production and differ from other construction activities ( Le.,

residential and commercial) covered by the CGP. EPA clarified how the two year postponement applied to " transmission facilities". EPA refers the commenter to 68 FR 11327.

See response to comment 325. 1008 33 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1d 23.1 During development of the new Sector G MSGP,

NMA  submitted comments  requesting that EPA reconsider its proposal to establish a 5 acre limit on applicability of the MSGP on the basis that the effect of the threshold for metal mining facilities increased regulatory and permittee workload with no concomitant environmental benefits. NMA pointed out that most mining operations  exceed the proposed threshold and that EPA had not demonstrated that the MSGP was somehow ineffective for controlling storm water discharges from exploration and construction disturbances exceeding the threshold  EPA's final rule included an even smaller one acre threshold for application of the MSGP. Therefore since Oct 2000,

mining operators subject to EPA's oversight have been required to comply with two separate general permit programs for authorization of discharges from identical activities, the only distinguishing factor being the area of impact. The requirement to separately obtain permit coverage for the construction or exploration phases of mining under the CGP arose from EPA's concern that the initial clearing, grading, or excavation on a site could escape permit coverage under the MSGP for mining activities ( i. e., Sector G  Metal Mining) despite the significant pollutant discharges that may nevertheless result. Following the issuance of the Phase II regulations, which lowered the threshold of covered construction activities from five acres or more to greater than one acre, EPA included a new provision in the 2000 MSGP for Sector G operators requiring coverage under the CGP for construction or exploration related activities which disturb more than one acre. According to Subpart 6. G. 5 of the MSGP ( 65 Fed.

Reg. 64825), " clearing, grading and excavation activities being conducted as part of the exploration and construction phase of a mining operation cannot be covered under this permit if these activities will disturb one or more acre of land. 1066 1d 23.2 Moreover, despite NMA's repeated requests, EPA has not provided a reasoned explanation for creating such a bifurcated permitting system, particularly in the context of the general permitting program which is intended to be an efficient and streamlined approach. Instead, coverage for these activities must be under the latest version of EPA's General Permit for Storm Water Discharges from Construction Activities." To address the commenter's concerns regarding duplicative permit coverage for mining activities, EPA would need to modify Subpart 6. G. 5 of the MSGP. The MSGP is set to expire on October 30, 2005. As part of the next MSGP reissuance, the effectiveness and justification for addressing different mining phases in two different permits, including whether all regulable mining and mining related activities ( from exploration and construction to reclamation)

should be placed back into the MSGP will be considered. At present, however,

prior to the reissuance of the MSGP, discharges relating to the exploration and construction phases of mining operations must be covered by the CGP, while discharges from active mining activities must be covered under the MSGP.

In terms of the related concern that EPA's greater than one acre threshold for coverage under the CGP results in a confusing framework for regulating construction and exploration related activities for mining, EPA reiterates that any c 1066 34 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1d 24.1 EPA appears to intend mining operators engaged in exploration and construction phase activities, which includes removal of overburden and waste rock to expose mineable minerals, resulting in disturbances of more than one acre to seek authorization under the CGP. Then, once extraction activities begin, EPA recommends operators terminate the CGP, including compliance with stabilization and revegetative requirements, and seek coverage under the Sector GMSGP 65 Fed. Reg 64825. Or in the alternative, EPA suggests you may choose not to terminate the CGP in which case compliance with both permits is required.

The result is a complex, confusing and inefficient permitting maze which is based solely upon an arbitrary established disturbance threshold for which the agency has never provided a rational basis  EPA disagrees with the commenter's interpretation that the CGP essentially requires operators to terminate their CGP coverage and stabilize all disturbed areas as a prerequisite to resuming mining extraction activities under the MSGP. Nevertheless, EPA has modified the applicable section of the notice of termination (" NOT") form to further clarify how operators may terminate. Where the mining operator intends to shift from the exploration and/ or construction phase of an operation to active mining, the operator can terminate CGP coverage by indicating on the notice of termination (" NOT") that the site's storm water discharges will be covered by another NPDES permit. In the case of mining operations covered under Sector G of the MSGP, transition to the multisector permit would qualify as adequate termination of the CGP covered activities. This termination through change in permit coverage is supported by section 5.2. A. 2 of the CGP which enables the permittee to terminate by indicating that "... coverage under an alternative NPDES permit has been obtained." 1066 1d 24.2 EPA has adopted a permitting approach which has the effect of overburdening certain industries by requiring compliance with two separate storm water permitting programs without illustrating an environmentally based reason for doing so. EPA has modified the NOT form to make termination by alternative NPDES permit a distinct checkbox. See, also, response to comment 23. 1066 1d 25 Storm water discharges associated with exploration and construction activities at metal mining sites are appropriately addressed by the sector g MSGP. See response to comment 23. 1066 1d 26 It is important to recognize that mining is unique from other industrial activities because all phases of mining  are generally associated with land clearing and excavation activities. Consequently, there is no clear distinction between types of SW discharges that may be generated from the different phases of mining.

All of the phases are therefore appropriately addressed under one permit, the MSGP, which specifically recognizes and addresses the nature of mining activities under the specific Sector G requirements and the potential storm water discharge issues associated with such activities. See response to comment 23. 1066 35 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1d 119 EPA's suggestion that the CGP is somehow appropriate for construction activities associated with phase I of mining appears to be misguided and a misunderstanding by EPA of both the mining process and the 1990 SW MSGP rulemaking  EPA requires that authorization for SW discharges be pursuant to the CGP for the excavation and construction mining phase... But the coverage of CGP ends there. As such, an operator would be required to terminate the CGP and resume activities under the MSGP for industrial activities in order to move to the next phase,

extraction. However, as a prerequisite to terminating the CGP, the site must be finally stabilized  It is entirely impractical to require final stabilization of the disturbed area only to reapply for authorization under another storm water permit... Furthermore EPA suggests that mine expansion activities, activities that would essentially mimic those impacts resulting from Phase I, are appropriately covered by the MSGP. This is entirely inconsistent with EPA's decision not to allow Phase I activities under the MSGP. EPA disagrees with the commenter's interpretation that the CGP essentially requires operators to terminate CGP coverage and stabilize all disturbed areas as a prerequisite to resuming mining extraction activities under the MSGP.

Nevertheless, EPA has modified the applicable section of the notice of termination (" NOT") form to further clarify how operators may terminate. Where the mining operator intends to shift from the exploration and/ or construction phase of an operation to active mining, the operator can terminate CGP coverage by indicating on the NOT that the site's storm water discharges will be covered by another NPDES permit. In the case of mining operations covered under Sector G of the MSGP, transition to the MSGP would qualify as adequate termination of the CGP covered activities. This termination through change in permit coverage is supported by section 5.2. A. 2 of the CGP which enables the permittee to terminate by indicating that "... coverage under an alternative NPDES permit has been obtained." EPA has modified the NOT form to make termination by alternative NPDES permit a distinct checkbox. 1066 1d 306 In developing the proposed revisions to the CGP, EPA engaged in public outreach  but at no time did this outreach extend to the mining industry despite contacts from NMA staff informing EPA staff that per the 2000 revisions to the MGGP the metal mining industry would be required to obtain CGPs for certain phases of mining activities. ( Telephone conversations between Karen Bennett, NMA, and Eric Strassler and Wendy Bell, EPA) As a result of EPA's sole focus on the commercial and residential building construction industry, the permit, as proposed is inappropriate as the sole permit option for exploration and construction activities associated with mining particularly when extraction will follow such activities. Where a mining operation is required to obtain an NPDES storm water permit,

and the permit covers related construction activity of greater than 1 acre, in addition to other mining related activities ( e. g., minerals extraction, exploration),

then the permittee does not need to obtain a second permit covering construction activity already regulated by the first permit. However, if the permit did not include coverage for related construction activity, then coverage under the CGP is appropriate and required. See also response to comment 23. 1066 36 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 28 It has been ABARTA's experience that the Best Management Practices demanded by Pennsylvania's Erosion and Sedimentation Control requirements meet or exceed current Federal regulations. See Response to Comment Summary 4. 1012 1e 29 The only effect of this requirement   meet any requirements for discharges that have a Total Maximum Daily Load   appears to be the potential for additional Notices of Violation ( NOV) through double or triple indemnity. For example, if a contractor fails to meet TMDL requirements, he may be issued an NOV through TMDL regulations. The proposed CGP seems to mean that an operator could additionally be cited for failures to comply with the proposed CGP, the proposed C& D ELG   Construction and Development Effluent Limitation Guideline ( C& D ELG) of June 24,

2002  , and also either the Phase I or Phase II storm water rules, all for the same violation. This is not a legitimate reason to include a TMDL requirement in the CGP. While non compliance with different Rules presents risk of enforcement, EPA typically employs enforcement discretion regarding levying multiple NOVs for the same action. See, also, response to comment 472. 1058 1e 35 Overall, the draft permit, if finalized as written, is likely to greatly limit the use of the general permit in those watersheds with impaired waters... NAHB is concerned that if large numbers of operators are put into the individual permit realm that EPA will be overwhelmed with permit applications and would not have the manpower to issue individual permits in a timely manner, which would significantly delay construction projects. Furthermore, it is not apparent that EPA has an individual permit process in place that is in fact appropriate for storm water dischargers. EPA believes the general permit is still the best option for acquiring authorization to discharge. This comment was offered in the context of discharges to impaired water bodies. The permit does not automatically exclude from general permit coverage those operators whose discharge is to an impaired water body. The operator may still be eligible if he/ she can certify that the project's SWPPP has been adjusted to insure the discharge is consistent with the allocations,

assumptions, and requirements of any approved TMDL. 1057 1e 121 How are operators going to be informed about the new regulations? Is there a plan in place to educate operators in region 6 about these new requirements? The Storm Water Phase I and Phase II regulations have been in place since 1990 and 1999, respectively. EPA has conducted numerous outreach efforts over that time to educate stakeholders on the details of the regulations. EPA will continue to perform a variety of outreach efforts to educate operators that are eligible for coverage under the CGP. 1054 37 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 125 Most important is that the EPA's proposed Effluent Limitation Guidelines ( ELGs) and New Source Performance Standards for the Construction and Development Category ( 67 Federal Register, June 24,

2002), includes Option 2 that, if finalized, would in essence ' codify' the construction general permit. We only have to look at Minnesota's Phase II Stormwater permits for both the MS4 and Construction to see that they are likely to pattern their general permit after EPA's. Frankly, the proposed general construction permit will have an impact far beyond the States in which EPA is the permitting authority. This comment appears to be beyond the scope of this action. The comment does not suggest changes to the substance of the CGP. 1068 1e 128 While the construction general permit proposed by EPA only applies to five states and the District of Columbia, the contents of the general permit have far reaching implications for a number of reasons, the most important of which is EPA's proposed Effluent Limitation Guidelines ( ELGs) and New Source Performance Standards for the Construction and Development Category ( 67 Federal Register, June 24,

2002), which includes Option 2 that, if finalized, would in essence ' codify' the construction general permit. In addition, history shows that the States are likely to pattern their general construction permit after EPA's.

Thus, the outcome of the proposed general construction permit has an impact far beyond the States in which EPA is the permitting authority. This comment appears to be beyond the scope of this action. The comment does not suggest changes to the substance of the CGP. 2001 1e 129 When a project is on both State and Indian Country,

which entity, EPA, ADEQ or both, would have permitting authority? The operator is responsible for obtaining coverage from those entities responsible for permitting of actions specific to that construction project. If the action occurs on State and Indian land, both EPA and the State have permitting authority. In that instance, the operator must obtain permit coverage under both the EPA and State permit. However, both these NOIs could reference a single SWPPP that addresses the concerns of both permits. 1073 38 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 130 It is unclear how this is to be implemented in Indian Country. The Federal Register publication of December 20, 2002 makes it very clear what specific States and Tribal Nations fall under each EPA Region's jurisdiction, but makes no distinction as to who will have the authority to implement this permit.

The reason that this is an issue is that a State

Colorado for example, has permitting authority over non tribal lands, but not tribal lands. Are we to assume that an EPA inspector is going to show up on the reservation some day after March 10, 2003 with intentions to ensure compliance? If so, noncompliance could cause significant economic damage to ongoing projects. EPA is the NPDES permitting authority for all Tribal Nations until a Tribe submits an acceptable plan and receives authorization from EPA to administer the NPDES permitting program on those lands. Until such time, EPA is responsible for all NPDES related activities. 1040 1e 131 As with a lot of general permits that have been issued in Indian Country, it has good intentions, but can be misconstrued by Regional implementation strategies that differ from one Region to the next. One Region may be very active in enforcing it, and another may take a " hands off" approach. Will tribes have the local oversight? EPA has oversight of the NPDES program in Indian Country and as such, is responsible to ensure effective implementation and enforcement as necessary.

At this time, EPA does not have plans for tribal oversight of the permit. The NPDES regulations do provide for State 401 Certification, for which certain Tribes have authority to require additional conditions in the permit to address applicable water quality standards' concerns. 1040 1e 132 I am requesting that implementation of these regulations be suspended for the Colville Indian Reservation and other tribal lands located off of the reservation until such time as EPA/ Tribal consultation can take place. If they cannot be suspended, I request that they be adopted on an interim basis only pending such consultation. While I fully support the goal of these regulations, i. e., protecting water quality, the method in which they are being adopted is unacceptable. EPA acknowledges this comment and has worked with the Colville Indian Reservation to meet the needs of the Tribe. 1056 39 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 133 The CGP needs to provide an exclusion provision for storm water associated with construction activities at an existing site, where that storm water is collected and appropriately treated in wastewater/ storm water treatment systems operating under a NPDES permit.

The CGP does not discuss the situation where construction activities are conducted within an area covered by an existing storm water collection and treatment system operated under a NPDES permit.

Ideally, these construction activities would not require consideration for permits under Phase I or Phase II and would instead be explicitly covered by the facility's wastewater/ storm water treatment NPDES permit. The CGP generally does not specify who must obtain coverage under this permit; rather, it identifies who is eligible to obtain coverage. Construction activities covered under an existing individual or other general permit would not need to obtain coverage under this CGP, provided that those storm water discharges associated with construction activity were covered under that alternative permit. 1002 1e 134 Where the specific construction activities do require Phase I / II coverage, the CGP should include two provisions: ( 1) a new exclusion provision under section 1.4 and Addendum C; the exclusion should be automatic after documenting that the construction area is covered by the facility's wastewater collection system, that the runoff is comparable to other waters treated by the wastewater treatment plant, and that the facility is operating under a NPDES permit; and ( 2) a new section 1.5 that allows the same permit exclusion for large construction sites under the same circumstances. See response to comment 133. 1002 40 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 175.1 EPA proposes a definition of " discharge related activities" that is broadly defined to include not only soil disturbing activities that lead to storm water runoff, but also " site development" and " other surface disturbance activities". See proposed Permit Part 10. ... EPA does not have authority under the CWA to regulate activities, such as site plan development or housing densities, which do not result in discharges of storm water to jurisdictional waters. For this reason, we urge EPA to delete this definition from the final Permit.

... EPA has, unfortunately, used the concept of " discharge related activities" in Addendum A ( where it is currently undefined) to expand the scope of its jurisdiction over residential developments in Arizona to project areas outside of its authority to control under the CWA. EPA disagrees with the commenter's assertion that the permit is attempting to regulate activities such as site plan development or housing densities. EPA does have the authority to regulate storm water discharges from those construction related activities as defined. 1049 1e 175.2 For example, in Arizona EPA has interpreted its authority under the construction general permit to require developers to consult under Section 7 of the ESA, pursuant to the Addendum A procedure, in regard to the affect of construction activity on critical habitat for the endangered Cactus Ferruginous Pygmy Owl ( CFPO) even where the discharge of storm water would have no effect on the CFPO. ... In sum, the definition of " discharge related activity" should reflect the principle that the ESA does not provide EPA with an independent source of jurisdiction. American Forest & Paper Ass'n v. EPA, 137 F. 3d 291 ( 5t" Cir. 1998).

The ESA does not serve as " a font of new authority"

and EPA should not invoke the ESA " as a means of creating and imposing requirements that are not authorized by the CWA." Id. at 299. 1049 41 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 179 If EPA refuses to remove the term " discharge related activities," it should amend the definition to more closely reflect its true meaning. While on its face EPA's definition appears only to encompass those activities included in the definition of " discharge of stormwater associated with construction activity" (

soildisturbing activities), some Regions have used the " discharge related activities" concept to expand the original scope of the program. This is done by assuming broadly that all site activities are interrelated and thus are either directly or indirectly "

dischargerelated This is an inappropriate expansion of the CWA mandate to regulate only those stormwater discharges " associated with industrial activity" ( which includes soil disturbing construction activities) but not all discharges ( including, e. g., administrative areas).

EPA must state clearly that it is regulating only those activities defined under " discharge of stormwater associated with construction activity" and that ESA or NHPA eligibility certifications reflect only the eligibility analyses related to those activities. EPA acknowledges the commenter's statement but disagrees that use of this term has expanded the scope of the program. This permit, as written, regulates discharges associated with industrial activity ( for large construction) and small construction activities.

See, also, response to comment 236. 1071 1e 196 [ T] he delay in providing the states a model EPA general permit for areas over which they are the permitting authority further aggravates the difficulties in meeting the March 10, 2003 deadline. It should be made clear that states also have the authority to delay the NOI deadline for permits under their jurisdiction. States have flexibility in how they administer their permit programs for storm water discharges. There is no absolute requirement that a general permit be used. Any state may exercise its discretion to employ individual permits for any storm water discharge covered under the regulations. Generally, if a state chooses to develop a CGP, EPA believes they may model their own NOI provisions after the Agency's. 1002 1e 294 Section 2.2. E., Late Notification: Operators will not be inclined to submit a late notification if they fear receiving an enforcement action. Elimination of enforcement action for " reasonable" ( at least 30 days)

late notifications would encourage operators to comply with the regulations. Enforcement actions are at the discretion of EPA and are not mandatory for each violation. The Agency does take into account the reasonableness of a violator's action when determining an appropriate enforcement response.

However, significant discharges of sediment can occur during the initial days of a construction project, making the need to have a SWPPP in place an operational critical for the protection of water resources. 1028 and 1024 42 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 298 Notices of Intent ( NOIs) need to be sent to the storm water coordinator in every U. S. EPA regional office as well as to U. S. EPA headquarters, need to be posted immediately to a searchable public docket ( i. e., as are proposed federal regulations), and need to be noticed in some other effective way to the affected community ( such as a publication notice in a newspaper of general circulation). See response to comment 303. 1065 1e 299 Will the Environmental Protection Agency ( EPA's) and the Arizona Department of Environmental Quality ( ADEQ) Notice of Intent ( NOI) and Notice of Termination ( NOT) be the same or will ADEQ customize theirs for local conditions? This comment is not applicable to EPA's CGP. EPA did not model this CGP,

the NOI, or NOT after Arizona's permit. 1073 1e 300 Regarding the Notice of Intent, If the NOI is not complete and accurate, how long will it take for EPA to respond that the NOI is not complete and accurate?

Does this mean that construction must cease until the NOI is resubmitted again with the corrected information? ADOT's concern is that the project has been awarded to the contractor and he will be waiting to re initiate construction activities and charging time to the project. EPA processes NOIs as received at the NOI Processing Center. EPA expects the form to be complete and accurate upon submission, with coverage not commencing until such time. The simplicity of these forms, coupled with the fact that the form must be signed and certified by an authorized representative should further ensure that the form is complete and accurate upon submission.

As appropriate, construction operators may choose to submit the NOI well in advance of the actual commencement of construction to ensure that the NOI filed was in fact, complete and accurate. EPA expects to process NOIs within a few days after receipt by the Notice Processing Center. 1073 1e 302 It is recommended that the address where the NOIs to be submitted be changed to EPA Regional Office addresses. EPA disagrees with the commenters assertion that NOIs be submitted to the Regional Office addresses. EPA maintains a contractor operated NOI Processing Center that streamlines the process of reviewing and tracking NOIs for all areas for which EPA is the permitting authority. EPA Headquarters provides reports to the Regions regularly with a compilation of all NOI submissions. 1025 1e 303 Where to submit: Notices of Intent ( NOIs) need to be sent to the stormwater coordinator in every U. S. EPA regional office as well as to U. S. EPA Headquarters,

need to be posted immediately to a searchable public docket ( i. e., as are proposed federal regulations), and need to be noticed in some other effective way to the affected community ( such as a publication notice in a newspaper of general circulation). EPA disagrees with the commenters assertion that NOIs need to be sent to all Regional coordinators, posted immediately into a searchable public docket, and public noticed. NOIs are sent to EPA Headquarters, where they are processed,

entered into a database and then distributed to the Regions on a regular basis.

EPA has plans to develop an online search engine for the public to be able to review all NOI submissions but disagrees that the NOIs need to be public noticed. EPA's NPDES regulations call for the draft permit to be noticed but not individual NOIs. 2002 43 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1e 418 Will Tribes have the opportunity to obtain credentials for inspections on their own lands? Until authorized by EPA, Tribes do not have the authority to administer the NPDES Program. As such, Tribes do not have the opportunity to obtain credentials for conducting compliance inspections under the NPDES Program.

In certain instances, Tribes may have authority under Section 401 of the CWA or other authorities to require additional controls to ensure compliance with water quality standards. 1040 1e 420 We are also concerned that the Reservation will rarely see an EPA inspector because of the remoteness to EPA Region 10 Headquarters. The Tribe would like to have its employees receive training to become EPA Certified Storm Water Inspectors. EPA acknowledges the commenters concerns; however, at present, EPA has no plans to train tribal employees to become EPA Certified inspectors. This comment is outside the scope of this action. 1051 1f 117.1 First, in section 1.3. B the " allowed non storm water discharges" for construction sites are listed. Second,

section 1.3. C requires that the BMPs must be adequate to sufficiently meet water quality standards and the SWPPP must be " consistent with the assumptions and requirements in the approved TMDL". And third, section 3.5 specifies that non storm water discharges for each site " should be eliminated or reduced to the extent feasible". This regulation framework sets extremely stringent pollutant retention and removal standards for allowed non storm water discharges. And, these standards for BMPs are set regardless of whether there are established existing ( as in a TMDL allocation) or anticipated impacts for the pollutants generated. EPA disagrees with the commenter's assertion that the permit sets extremely stringent pollutant retention and removal standards for allowed non storm water discharges. EPA believes that these allowed non storm water discharges are likely to contain the same types of pollutants as allowable storm water discharges and as such, should be treated as such. EPA has included these allowable non storm water discharges in the CGP in lieu of operators having to obtain a second non storm water permit for those point source discharges of pollutants. EPA disagrees with the commenters request to add a clarifying definition for " harmful quantity." The Clean Water Act requires EPA to include limitations necessary to meet water quality standards. " Harmful quantities" is not a term with precedence. EPA believes it would be difficult to interpret and apply. Second, EPA does not agree with the commenters request to delete the phrase " Non stormwater discharges should be eliminated or reduced to the extent feasible." The Agency believes that as with all types of discharges, operators should be looking for ways to reduce or eliminate those discharges and as such, h 1052 44 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1f 117.2 ... we recommend the following changes: ( 1) Include a clarifying definition in section 10 of the general permit;

and, ( 2) Retain site specific flexibility in determining the " most appropriate BMPs" while including a specific reference to the prohibition of discharges of " harmful quantities" for allowed non storm water discharges ( see strike threw bold text below for section 3.5). ( 1)

Additional Definition ( Section 10): X. Harmful quantity.

The amount of any substance that will exceed an established TMDL wasteload allocation that applies to the discharge; or, that will cause a violation of the state water quality standards within waters in the State,

Waters of the United States. ( 2) Most appropriate BMPs to Prevent Harmful Quantities: 3.5 Non Storm Water Discharge Management: The SWPPP must identify all allowable sources of non storm water discharges listed in subpart 1.3. B of this permit that are combined with storm water discharges associated with construction activity at the site, except for flow from fire fighting activities. 1052 1f 117.3 [ stikethrough] Non stormwater discharges should be eliminated or deduced to the extent feasible. The SWPPP must identify and ensure the implementation of the most appropriate pollution prevention measures for the non storm water component( s) of the discharge [ Bold] so that harmful quantities are not delivered to waters of the United States. 1052 1f 332 Part 1.3. B: In arid and semi arid regions, it is often necessary to apply potable water to seeded areas to ensure the establishment of a vegetative cover sufficient to achieve final stabilization. Application of water for irrigation of vegetated areas should be added to the list of allowable non storm water discharges EPA agrees with the commenter and has modified the definition of allowable non storm water discharges to include landscape irrigation. 1077 45 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1f 359 Retain site specific flexibility in determining the ' most appropriate BMPs' while including a specific reference to the prohibition of discharges of ' harmful quantities'

for allowed non storm water discharges. [ suggested new text for section 3.5] The SWPPP must identify all allowable sources of non storm water discharges listed in subpart 1.3. B of this permit that are combined with storm water discharges associated with construction activity at the site, except for flow from fire fighting activities. The SWPPP must identify and ensure the implementation of the most appropriate pollution prevention measures for the non storm water component( s) of the discharge so that harmful quantities are not delivered to waters of the United States. EPA is not sure specifically what the commenter's concern is with Part 3.5 ( Non

Storm Water Discharge Management). If the commenter thinks that EPA should provide construction operators with more flexibility in choosing specific BMPs, EPA emphasizes that the CGP already provides operators with control over the design and selection of their suite of BMPs.

The Clean Water Act requires EPA to include limitations necessary to meet water quality standards. " Harmful quantities" is not a term with precedence.

EPA believes it would be difficult to interpret and apply. 1032 1g 62 EPA should also clarify in the permit that replacement of existing structures with the same structure is considered a maintenance activity if no new land is disturbed ( e. g., replacement of a six inch pipeline with a similar pipeline in the original construction right

ofway EPA disagrees with the commenters assertion. Routine maintenance activities are not considered to require permit coverage. However, that determination is not based on a comparison of existing and new uses of that land. In fact,

replacement of a pipeline is likely to require permit coverage if that activity disturbs more than one acre. 1006 1g 63 EPA should also clarify in the permit that replacement of existing structures with the same structure is considered a maintenance activity if no new land is disturbed ( e. g., replacement of a six inch pipeline with a similar pipeline in the original construction right

ofway See response to comment 62. 1002 46 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1g 65 Section 1.3 C.: In the definition of small construction activity, EPA does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The statement should be included in the definition of large construction activities. In addition,

Section IX of the fact sheet provides examples of what types of routine earth disturbing activities EPA considers part of normal day to day operations, long term use and maintenance of the site and what types of earth disturbance is a normal part of the postconstruction use of the site. EPA has clarified this issue well and we request EPA include this information in the definition of large and small constructions activities in the CGP. EPA agrees with the commenter and has modified the permit to indicate that routine maintenance and other normal day to day operations do not require permit coverage as construction activities. 1028 and 1024 1g 137 Adding a list of examples of routine maintenance to the CGP ( replacement of existing utility poles, type of landscaping, capping landfills, types of roadway reconstruction, etc.) would be most beneficial for the Applicants to determine if they need to submit an NOI. EPA has included examples of routine maintenance in the fact sheet. 1031 1g 167 Part 10, Small Construction Activities: EPA states that small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The statement should be included in the definition of large constructions activities as well. EPA has clarified that such routine maintenance for large construction is also excluded from permit coverage. 1024 and 1028 1g 169 Fact sheet Section IX, What types of constructions activities may need a storm water permit?: EPA provides examples of what types of routine earth disturbing activities that are considered part of normal day to day operations. EPA has clarified this issue well, and we request EPA include this information in the definition of large and small constructions activities. EPA agrees with the commenter that the permit should include some examples of the types of routine earth disturbing activities that are considered part of normal day to day operations. This is included in the definition of large and small construction. 1028 and 1024 47 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1g 170 Section IX, What if earth disturbance is a normal part of the post construction use of the site?: EPA provides examples of earth disturbance that is a normal part of the long term use or maintenance of the property and is not covered by the construction general permit.

Again, EPA has clarified this issue well and we request EPA include this information in the definition of large and small constructions activities. EPA provides a detailed description in the fact sheet of options for meeting the final stabilization criteria. In certain instances, such as when the intended purpose would require it to remain in a non vegetative state ( e. g., a road, or parking lot), the construction of that structure ( i. e., the road or parking lot)

suffices as meeting final stabilization. 1028 and 1024 1g 171 The definition of " Large Construction Activity" in Part 10 of the proposed General Permit ( page 38) should be revised by adding the following text at the end of the definition: " Large construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, of original purpose of the facility." EPA agrees. The permit has been revised as requested. 1045 1g 183 In the proposed Fact Sheet, EPA stated that " construction" does not include routine earth disturbing activities that are part of the normal day to day operation of a completed facility." EPA supports this distinction in the Fact Sheet and believes that it should be included in the permit language in section 10 of the proposed CGP ( definitions). EPA agrees with the commenter and has modified the permit and fact sheet to include routine maintenance in the definition of large construction. 1061 1h 120 The proposed CGP includes similar provisions for water quality, endangered species, and historic preservations that are the subject of litigation ( FWC challenge regarding MSGP). Therefore NMA recommends the agency resolve those issues

before finalizing the CGP. See response to comment 126. 1066 48 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1h 126 The Coalition has a unique interest in the CGP,

particularly as it relates to conditions that are also contained in EPA's multi sector general stormwater permit for industrial activity (" MSGP"). The Coalition challenged EPA's MSGP in federal court, as did one of the Coalition's members, the Utility Water Act Group ( UWAG). The Coalition and UWAG are currently engaged in discussions with Agency staff, in an attempt to resolve our concerns about provisions in that permit, including those related to water quality,

endangered species and historic preservation. Since those issues are also addressed in the proposed CGP, EPA should resolve all of the issues associated with the MSGP litigation before finalizing the CGP,

and it should incorporate any final resolution of those issues from the MSGP lawsuit into the final CGP, in order to maintain consistency throughout EPA's general permitting scheme. EPA acknowledges the commenters concerns and will consider those issues that overlap with the MSGP. The Agency does believe that a number of " similar" issues are in fact different enough between the CGP and MSGP that issuance of the CGP need not determine the language in the MSGP. 1071 1h 136 NRDC opposes having the authorization to discharge be effective upon the postmark date of the notice of intent ( NOI). The permit should become effective only after the NOI and SWPPP are approved by the permitting authority and the public has had an opportunity to review and, if necessary, request a hearing or an opportunity to comment upon the project proposed to be permitted. The public needs sufficient opportunity to make such a request. Some states allow 10 days for public comment. EPA's CGP is consistent with Federal regulations for general permits at 122.28.

The CGP, as written, is designed to ensure that construction activities are consistent with the Clean Water Act. Failure to comply with permit conditions are enforceable violations of the permit. EPA does not believe that the additional resource burden associated with public review, hearings, and responses to comments will further attain the goals of the Clean Water Act. These additional steps may, in fact, provide a forum for the delay of construction projects for reasons unrelated to storm water discharges associated with construction activity. EPA notes, however, that the authorization to discharge is no longer triggered upon the postmark date of the NOI. The CGP now authorizes discharges only after a seven day waiting period. The seven days begins after acknowledgment of receipt of the operator's complete NOI is posted on EPA's NPDES website. See, also, response to comment 404. 1065 and 2002 49 Coverage of General Permit Commment Response New Topic Summ. ID Summary Response Doc ID 1h 139.1 Assurances are needed that eligibility is not affected by new TMDLs, new endangered species listings, or changes in historic preservation status. NAHB urges EPA to modify the draft permit by stating that eligibility is not affected during the life of the permit if the above conditions change. Indeed permittees must be responsible for complying with the permit as it exists at the time of application and must not be expected to constantly change to hit a moving target. EPA understands the commenters concerns and has modified the permit to reflect that the operator must ensure compliance with appropriate TMDL, ESA,