Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12a 283 The language in the Fact Sheet ( p. 14) confirming that TMDL assumptions and requirements incorporated into a SWPPP are enforceable permit conditions should be included in the permit itself, as well as in the fact sheet. EPA explains that any requirement of the permit is an enforceable permit condition. 1065 12a 355 The SWPPP should identify the BMPs and any other mechanisms by which discharges from the site will be reduced so as to comply with water quality standards and any applicable TMDL wasteload allocation. Once the SWPPP has been approved by the permitting authority, its terms, including the BMPs identified in the SWPPP, should become enforceable terms of the permit. EPA clarifies that the SWPPP is required to first identify the pollutants of concern and their on site sources, and then develop BMPs to control pollutants from those sources to a level to protect water quality. EPA believes this addresses your first concern.

EPA further clarifies that EPA does not review all SWPPPs. EPA does not approve SWPPPs. EPA may review and comment on SWPPPs as a component of compliance activity. EPA may require updates and amendments to SWPPPs.

EPA also clarifies that the SWPPP, and all components, are enforceable terms of the permit. Failure to include appropriate measures in the SWPPP will not provide an operator a defense when inadequate BMPs fail to protect water quality. 1065 12a 440 The most troubling compliance issues surround the requirement to design each construction site so that 1)

water quality standards are met, and 2) the assumptions of a Total Maximum Daily Load are met.

As written, it is unclear how an engineer would design Best Management Practices to meet this requirement and how compliance would be demonstrated. EPA must revise the proposal to explain to the public how to comply with this requirement and must make compliance possible. To do so, I encourage the agency to delete this language and continue to rely on Best Professional Judgment. EPA is obligated to include effluent limitations that are consistent with 1)

attaining water quality standards, and 2) the assumptions of any available wasteload allocations Total Maximum Daily Loads, for any discharge authorized under a NPDES permit. Although the specific phrasing may differ a little from permit to permit, these requirements have been in prior general permits as well.

See response to comment 483. 1068 1 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12a 443.1 I note also that the general permit does not even clearly state that discharges that are not consistent with the wasteload allocation of a TMDL for sediment ( or a parameter that addresses sediment) are not authorized under the permit. In other words, it is not merely that the SWPPP must be certified as consistent with the TMDL. The discharges themselves must be consistent with the wasteload allocation of any applicable TMDL to be authorized under an NPDES permit. The permit should also require that the SWPPP be consistent with any implementation plan developed for a TMDL and should state that discharges that are not consistent with that implementation plan are not authorized under the permit. The language in the Fact Sheet ( p. 14)

confirming that TMDL assumptions and requirements incorporated into a SWPPP are enforceable permit conditions should be included in the permit itself, as well as in the fact sheet. See response to comment 485.

EPA believes that in some cases, individual permits may be necessary to adequately implement TMDLs and the assumptions and requirements in available wasteload allocations. However, EPA believes that for most storm water discharges the allocations of a well crafted TMDL can be easily incorporated by reference into discharge requirements under a general permit.

EPA notes that all permit requirements are enforceable. 2002 12a 443.2 Finally, while NRDC believes that an individual permit is necessary and that a general permitting mechanism is inadequate, in any case, the permitting authority would be required to confirm that the SWPPP is consistent with the TMDL and any implementation plan before the permit could legally authorize any discharges. 2002 12a 474 It is unclear to the public what it means to " certify consistency" [ referring to Limitations on Coverage,

Item 5] with the assumptions and requirements of the approved TMDL. EPA attempted to clarify this issue in the draft fact sheet, but the discussion there is also inadequate. Because TMDLs are customized for individual water bodies the solutions that are crafted to meet the water quality impairments vary widely. It is not possible,

or necessary, to anticipate in the general permit the various forms that a wasteload allocation may take. EPA has chosen permit language that is deliberately general, simply requiring " consistency" with the TMDL wasteload allocations, assumptions and requirements, in order to account for the wide variety of ways in which a TMDL may specify discharge related outcomes. EPA has provided a mechanism, via the EPA storm water website, for operators to obtain clarification from the TMDL authority on how a TMDL wasteload allocation should be interpreted for the discharge.

" Certification" refers to the existing permit requirement for signing the SWPPP and the Notice of Intent, verifying the integrity of all information contained in those documents. 2001 2 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12a 493.1 Total Maximum Daily Loads   Proposed CGP Sections Affected by this Comment: 1.3. C. 5   Fact Sheet Sections Affected by this Comment: IV. 1.3. C. 5   EPA should, therefore, modify the proposed CGP to retain the general prohibition stated in the previous CGP against discharges that the Director determines will cause or contribute to violations of water quality standards that was part of previous CGPs. If the Director determines that a construction activity is causing or contributing to water quality standards, this provision gives the Director the authority to take appropriate action. EPA explains that the language in the previous CGP referred to impaired waterbodies without TMDLs, not waterbodies for which TMDLs had already been approved. The language in the previous CGP essentially prohibits authorization for construction activities in most impaired waters for which TMDLs have not yet been established. An impaired waterbody is one for which water quality standards are not being met. Therefore any new discharge of the pollutant of concern would be contributing to a violation of a water quality standard. " Appropriate action" would likely be to either deny authorization, or set permit restrictions requiring zero discharge of the pollutant of concern. This provision could equate to a moratorium on construction activities in watersheds with impairments for sediment or a related parameter. 1061 12a 493.2 NPDES permits are to contain limitations necessary to meet water quality standards. The CGP does this. For some small subset of storm water discharges it is appropriate to deny discharge authorization, or require zero discharge of certain pollutants. However, EPA believes that setting permit conditions that would disallow coverage in many watershed across the country is not a viable option. 1061 12b 285 There seems to be an inconsistency between the proposed CGP and the proposed Fact Sheet. Section 1.3. C. 5 of the CGP states that " discharges to waters for which there is a total maximum daily load ( TMDL)

allocation for sediment or a parameter that addresses sediment ( such as total suspended solids, turbidity, or siltation) are not eligible for coverage under this permit unless you develop and certify a SWPPP that is consistent with the assumptions and requirements in the approved TMDL." This limitation seems to mean that a CGP applicant has to review only water bodies that are impaired by sediment and have a TMDL requiring a waste load allocation for sediment, or some parameter that addresses sediment. By implication,

therefore, this provision seems not to apply to discharges to waters that might have a TMDL for some other pollutant. EPA should clarify that the proposed eligibility requirement applies only to TMDLs for sediment or some parameter that addresses sediment ( such as total suspended solids, turbidity, or siltation). EPA agrees that you have identified an inconsistency. EPA has changed the language in Part 1.3. C. 5 to read " You are not eligible for coverage under this permit for discharges of pollutants of concern to waters for which there is a total maximum daily load ( TMDL) established or approved by EPA unless you develop and certify a SWPPP that is consistent with the assumptions and requirements of such TMDL." 1061 3 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12b 430 Sections 1.3. C. 4, " Attainment of Water Quality Standards" and 1.3. C. 5, " TMDL's."  require that permits must " ensure" compliance with applicable water quality requirements and TMDL load allocations.

Construction activities typically impact soil erosion,

sediment and turbidity parameters involved with soil disturbance. In contrast, the majority of water quality standards, or conditions that result in impairment of water bodies, are related to heavy metals and other pollutants that pose health or ecological risks ( e. g.,

acute toxicity, chronic toxicity), either directly or through their potential to bio accumulate in the system.

These standards have little, if anything, to do with the construction activities regulated under the CGP. Many waters in the U. S. are impaired for sediment, or a related parameter.

Where this is the case, construction site operators are expected to take the necessary measures to ensure that the discharge is consistent with the TMDL allocation.

Where TMDL or 303( d) pollutants of concern are not those associated with construction activities, and/ or where the TMDL has made no allocation to construction activities, the operator need not implement any measures beyond the standard requirements stipulated in the construction general permit. 1004 12b 437 Turbidity should not be included as a parameter that addresses sediment.   ( p. 12, Draft Permit) It is well known that turbidity is caused by a combination of suspended solids and nutrient inputs. As a result,

storm water dischargers should not be concerned with TMDLs for turbidity unless a clear relationship between suspended solids and turbidity has been established by statistical regression or other method.

NAHB urges EPA to make this distinction in the fact sheet so that storm water dischargers are not restricted in those situations in which turbidity is caused by nutrient enrichment, not suspended solids. EPA agrees that other conditions and pollutants contribute to turbidity.

However, EPA is not using the term in this context to automatically confer any additional discharge restrictions. Turbidity is sometimes used as a measure of suspended solids, including sediment. Storm water dischargers, when determining eligibility and developing a SWPPP, must consider any impairment to which their discharge has the potential to contribute. The Fact Sheet language is only providing guidance on potential impairment pollutants or indicators that the operator should use to trigger a little additional investigation to find out if there are impairments or TMDLs relevant to the proposed discharge.

The individual 303( d) listing or TMDL should clarify whether turbidity or any other pollutant of concern, as used in that specific situation, is relevant to construction activities or not. 1057 4 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12b 439 For example, this section [ referring to Fact Sheet Sec.

3.15] says " If EPA has approved or established a sediment or sediment related TMDL for the receiving water segment, the operator must determine and document whether the operator's discharge is identified, either specifically or generally, in the TMDL."

How in the world could the operator's discharge be identified when the operator doesn't yet have the authority to discharge? NAHB urges EPA to demonstrate that it recognizes that storm water discharges from construction sites are different from other NPDES dischargers storm water discharges from construction sites are temporal and not under the full control of the operator as in an industrial plant. This requirement could apply in at least 4 different ways:

1) Although most construction projects will be classified as " new discharges,"

not all fall into this category. For example, some ongoing construction projects have authorization under the recently expired CGP, and must apply for coverage under this one. In those situations a TMDL allocation may in fact be specifically relevant to the discharge from that site. EPA does not expect this to be a common occurrence.

2) A TMDL may make a categorical allocation, for example, to all construction activities. In this case the operator would need to ensure that the discharge was consistent with the general categorical allocation.

3) A TMDL may make an allocation for new sources. In this case the operator would need to ensure that the discharge was consistent with the allocation for new sources.

4) Coverage under the general permit may already be authorized, and a TMDL subsequently developed. In this case EPA expects the operator to implement any additional measures if stipulated in the TMDL. 1057 12b 445 It appears that previously unpermitted stormwater dischargers to 303( d) listed waters may obtain coverage under the NPDES General Permit for Discharges from Small and Large Construction Activities ( Draft), even if the discharge may be contaminated with the pollutant parameter for which the receiving waters are impaired per 40 C. F. R. § 122.4( d) and ( i). This raises a question that we have been struggling with which is whether it is permissible to authorize stormwater discharges to 303( d) listed waters if the discharge may be contaminated with the pollutant parameter for which the receiving waters are impaired, and if it is permissible, under what conditions or circumstances is it permissible? EPA agrees that this situation may present a particular conundrum for construction activities, where many applicants are " new dischargers." In some circumstances, no discharges will be allowed under the CGP. The permit does not authorize discharges that cause or contribute to an excursion above any applicable water quality standard. This does not mean, however, that discharges will always be forbidden simply because a waterbody is found on a 303( d) list. 1069 5 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12b 468 Operators should only be responsible for physical impacts caused by their earth moving or earth disturbing activities, not for water quality impacts that may be associated with heavy metals or other pollutants that occur naturally in the soils or that may be present due to air deposition. We suggest that the CGP be revised to make it clear that the permit addresses only those physical parameters ( e. g.,

sediment loading, TSS, turbidity, etc.) that are directly associated with construction activity. More specifically,

Sections C. 4 and C. 5 should revised to state that the water quality standards and TMDLs covered by these sections are limited to those relating to sediment loading, siltation and turbidity of the receiving waters. Although the most common and abundant pollutant associated with construction activities is sediment ( TSS, turbidity, etc.), other pollutants may also be present at individual sites. Lubricants, gasoline, paints, solvents, metals, preservatives,

fecal waste, trash and other pollutants are commonly used, stored or generated on construction sites. The construction site operator is obliged to take all of these into consideration, as relevant to his/ her project, when developing the Storm Water Pollution Prevention Plan ( SWPPP).

With respect to pre existing contaminants, it is also reasonable to expect a construction operator to develop controls for any on site contaminant, if it has been documented and is considered to be a threat to water quality if mobilized.

EPA generally considers standard erosion and sedimentation controls to be adequate to control background concentrations ( i. e. naturally occurring) of most other pollutants, since most are bound to soil particles. 1004 12c 352.1 Allowing EPA to render a post authorization nonattainment opinion would cause an undue burden to the regulated community. Even if a contractor/ developer manages to devise a standard for measuring the effectiveness of BMPs   [ w] hat gauge will the government use to  disagree with the contractor/ developer's BMP approach?... This " we'll know a violation when we see it" approach is unacceptable   A contractor/ developer operating under a fixed price contract would suffer a great financial loss if he were required to go back  and completely redevelop his SWPPP and/ or develop data to disprove the agency's assertion. The financial impact would be even more severe if EPA were to require the work to stop until the contractor/ developer pursued coverage under an individual permit. We recommend that EPA delete this provision from the draft CGP. Post authorization non attainment of water quality standards is common situation. Part 4.5 makes provisions for this situation when EPA discovers the non attainment. Part 4.5 is simply saying that if EPA makes this determination,

EPA will provide you such notification in writing. You will then be required to fix the problem, i. e. provide necessary maintenance, implement additional BMPs, or whatever the practical solution to a sediment laden discharge happens to be in that situation.

It is an obligation on the part of the operator to upgrade BMPs whenever they are found ( by operator or EPA inspections) to function inadequately. EPA does not believe this is an undue burden. 1079 12c 352.2 Or, at a minimum, EPA must establish the level of clear and scientifically based proof that must be presented by the government before a contractor/ develop is deemed to be in violation of state water quality standards. 1079 6 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 356 We believe that the language previously considered by EPA is superior to the language in the CGP proposal for several reasons. First, EPA seems to assign regulated entities with the responsibility to measure the effectiveness of specific BMPs relative to water quality standards. As EPA is aware, measuring such effectiveness is exceedingly difficult due to inherent uncertainties in the process. It is not clear what previous language the commenter is referencing. EPA emphasizes that for a general permitting program to work, permittees cannot rely on the permitting authority to make all of the evaluations and judgments.

EPA and State permitting authorities simply do not have the staff to be on all construction sites on a regular basis. EPA believes that construction operators are generally capable of noting if their construction activities are producing sediment laden discharges. 1064 12c 357.1 The proposed language creates a standard that is overly ambiguous. It is impossible to state clearly what measures are " adequate" and " sufficient." Who determines the adequacy and sufficiency? Who determines whether a discharge will cause or contribute to non attainment of water quality standards? Is it the responsibility of the regulated entity? Is it left to the discretion of EPA? Will the courts decide? It is precisely ambiguities of this sort that go against the interests of both the regulated community and EPA. EPA agrees that the term " adequate and sufficient" could be clearer. EPA is therefore revising this permit language to say " This permit does not authorize discharges that EPA, prior to authorization under this permit, determines will cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard."

EPA believes that it is appropriate for construction operators to consider the functionality and performance standards of the BMP technologies they are implementing, just as they would for any other aspect of their operation ( i. e.

earthmoving equipment, construction materials). Vendors generally provide information on effectiveness of their products. Engineers and other professionals can design systems to certain specifications. The National Storm Water BMP Database provides data on the effectiveness of certain types of BMPs. There are numerous guidance manuals and other materials on designing and implementing construction site BMPs. 1064 12c 357.2 EPA emphasizes that while the agency has some responsibility for evaluating effectiveness of BMPs, and making determinations regarding water quality,

construction site operators must share this responsibility. For a general permitting program to work, permittees cannot rely on the permitting authority to make all of the evaluations and judgments. EPA and State permitting authorities simply do not have the staff to be on all construction sites on a regular basis.

EPA believes that construction operators are capable of noting if their construction activities are producing sediment laden discharges. 1064 7 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 453 In the CGP proposal, EPA has not sufficiently related its current  and fully justified and defendable

position on BMPs generally to the proposed BMP standards relating to water quality standards. It is unclear from EPA's eligibility language whether it fully recognizes all that might go into a BMP/ WQS analysis. EPA has not included a BMP/ Water Quality Standards analysis requirement in the proposed CGP. The Clean Water Act requires that all NPDES permits include limits necessary to meet water quality standards. With the CGP language EPA is underscoring that it is critically important for the operator to remember that the goal of designing and implementing BMPs is to protect water quality. Far too many construction sites lack BMPs that have been designed or maintained with the particular receiving water, and the drainageways to that receiving water, in mind. 1071 12c 473 It is unclear how an engineer would design Best Management Practices to meet this requirement [ p. 9,

Draft Permit] and how compliance would be demonstrated. EPA must revise the proposal to explain to the public how to comply with this requirement and must make compliance possible. To do so, I encourage the agency to delete this language and continue to rely on Best Professional Judgment. See response to comment 440. 1063 12c 475 Regarding compliance with the assumptions of a total maximum daily load allocation,   ( p. 9, Draft Permit)

  Furthermore, we believe that it will be very difficult to get an engineer to ' certify' the performance of Best Management Practices under all site conditions, which is what EPA seems to be seeking. As a result, most builders/ developers whose construction sites are in watersheds with impaired waters will not be able to get coverage under the construction general permit, and given the difficulty with certification, it seems equally problematic to get coverage under an individual permit. The proposed CGP does not contain a requirement for certification of BMPs by a professional engineer. 1063 8 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 476 The " Limitations on Coverage" section of the Permit states that, " you must design and implement Best Management Practices ( BMPs) at your construction site that will be adequate and sufficient to meet water quality standards."' This statement goes beyond requirements in the current permit, which contains restrictions on discharges causing or contributing to violations of water quality standards? Creating a linkage between BMPs and water quality standards goes against existing EPA policy ( see Interim Permitting Approach for Water Quality Based Effluent Limitations and Storm Water Permits 61 Fed Reg.

43761 ( Aug 26, 1996) Creating a link between BMPs and water quality standards is not inconsistent with EPA policy. In fact, under the Clean Water Act, EPA is obligated to set discharge limits necessary to meet water quality standards.

EPA agrees that the term " adequate and sufficient" is not clear. EPA is therefore revising Part 1.3. C. 4 ( preauthorization) permit language to say " This permit does not authorize discharges that EPA, prior to authorization under this permit, determines will cause, have the reasonable potential to cause, or contribute to an excursion above any applicable water quality standard."

Part 4.5. A ( post authorization) now reads " You must select, install, implement and maintain Best Management Practices ( BMPs) at your construction site that minimize pollutants in the discharge and are as stringent as necessary to ensure that your discharges do not cause or contribute to an excursion above any applicable water quality standard." 1039 12c 478 ( p. 9, Draft Permit) It is unclear how a permittee would demonstrate compliance with the allocation. Further,

what has to be done if a wasteload allocation has not been established for storm water discharges? Rather than address this circumstance in the draft permit,

EPA simply eliminates all potential dischargers from general permit applicability and places them into the individual permit realm. This result is unnecessary and problematic, as EPA has also failed to consider fully the implications associated with the need for a subset of construction site dischargers to obtain individual permits. The CGP does not exclude discharges to water with TMDLs from authorization under the CGP. EPA established a website at www. epa. gov/ npdes/ stormwater/ cgp that includes links to state TMDL information and contacts. EPA expects that permittees can access that website and identify either ( 1) the steps needed to be consistent with the assumptions and requirements of the TMDL or ( 2) a state or regional contact for making this determination. Further, where a TMDL or TMDL authority does not provide or clarify an allocation, but has not specifically excluded these discharges,

compliance with the CGP will generally be assumed to be consistent with the approved TMDL. 1057 9 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 479 The requirement for operators to design and implement BMPs that are " adequate and sufficient to meet water quality standards" is inadequately described to assure compliance. It is unclear how an operator would demonstrate that BMPs are " adequate and sufficient to meet water quality standards." First,

where do the water quality standards have to be " met"?

What specific water quality standards? At the discharge point? In the receiving stream? If in the receiving stream, where? What does it mean to " meet water quality standards"? Is a one time exceedance all it takes to be in non compliance? See response to comment 476.

Water quality standards generally apply to the receiving stream, not the discharge. The discharge may not cause or contribute to non attainment of a water quality standard. The discharge quality need not necessarily mirror ambient water quality, although they obviously are related. Any given water body will have a number of water quality standards established by the state to protect a variety of uses. For construction activities the primary pollutant of concern is sediment. The state will have established numeric water quality standards for total suspended solids, turbidity, or some other related parameter, or may have a narrative standard related to visibility. Non attainment of a water quality standard, and a demonstration that your discharge caused or contributed to that non attainment, is a violation of the permit. 1057 12c 480 NAHB seriously doubts that professional engineers would be willing to certify the performance ( effluent quality) for specific pollutants of most types of BMPs,

if this would mean that he/ she would have to design and certify performance under all storm conditions.

Without question, this proposed requirement would lead to the exclusive use of structural BMPs, which is counterproductive to the innovative site design strategies that are being aggressively. promoted by EPA, and would significantly increase the cost of development and ultimately raise the cost of housing.

Not only would structural BMPs become the exclusive mode of controlling pollutants, it is highly likely that sites will be " over engineered" in order for certification to be possible. The proposed CGP does not contain a requirement for certification of BMPs by a professional engineer.

EPA whole heartedly concurs with your position that the exclusive use of structural BMPs would not be in the best interests of water quality, other environmental considerations, or cost effectiveness. 1057 10 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 482 Section 1.3. C. 4 essentially requires the regulated entity to measure the effectiveness of BMPs relative to water quality standards, a task that the Agency itself has been unable to do, and which is inconsistent with the Agency's overall policy with respect to BMP use and effectiveness. NMA recommends the Agency revise section 1.3. C. 4 making it consistent with Section 4.5 i. e. tying a pre certification requirement to ensure use of the " most appropriate BMPs" that will " effectively minimize" the loadings with the availability of the post certification options for addressing and water quality issues that arise. EPA concludes that the term " effectively minimize" is insufficiently clear in this context. The Clean Water Act requires that NPDES permits specify limits necessary to meet water quality standards.

EPA believes that it is appropriate for construction operators to consider the functionality and performance standards of the BMP technologies they are implementing, just as they would for any other aspect of their operation ( i. e.

earthmoving equipment, construction materials). Vendors generally provide information on effectiveness of their products. Engineers and other professionals can design systems to certain specifications. The National Storm Water BMP Database provides data on the effectiveness of certain types of BMPs. There are numerous guidance manuals and other materials on designing and implementing construction site BMPs. 1066 12c 483.1 EPA should abandon its back door effort to require contractors/ developers to predict the effectiveness of the BMPs that they properly select  we are very concerned about the water quality related conditions that EPA has attached to the use of  BMPs. [ The]

language unfairly shifts the burden of proof from the

government to the contractor/ developer   The draft permit makes no attempt to define the terms " adequate and sufficient."   While BMPs are effective tools

precisely measuring their effectiveness is something that has eluded EPA to date. Indeed, neither a contractor/ developer nor the professional engineers that assist them will be equipped with the necessary information to ensure that BMPs in the  SWPPP are " adequate and sufficient"   A BMP/ water quality standard ( WQS) analysis is nearly impossible considering the variable nature of storm water discharges, and the inherent uncertainty and subjectiveness  associated with BMP selection and implementation. What about rare storm events? See response to comment 357.

EPA believes that it is entirely appropriate for construction operators to consider the functionality and performance standards of the BMP technologies they are implementing, just as they would for any other aspect of their operation ( i. e.

earthmoving equipment, construction materials). Vendors generally provide information on effectiveness of their products. Engineers and other professionals can design systems to certain specifications. The National Storm Water BMP Database provides data on the effectiveness of certain types of BMPs. There are numerous guidance manuals and other materials on designing and implementing construction site BMPs. 1079 11 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 483.2 Or the unpredictable frequency of a five year storm?

Where would BMP effectiveness have to be measured ( e. g., at each discharge point)? Over what duration of time would WQSs have to be met ( e. g., annual or monthly average)? The result of this standard would be over engineered sites with all structural controls. This runs contrary to EPA's practice of encouraging the use of nonstructural controls  discussed in EPA's CGP Fact Sheet  In earlier versions of the CGP that were circulated for review, EPA would authorize discharges to a listed ( i. e. impaired) water where the operator's SWPPP identifies BMPs that are " most appropriate"

and are designed to " effectively minimize" the discharge of the pollutant at issue. EPA should return to using that language  1079 12c 484 It is unclear to the public what it means to ' certify consistency' [ p. 9, Draft Permit] with the assumptions and requirements of the approved TMDL. Furthermore,

we believe that it will be very difficult to get an engineer to ' certify' the performance of Best Management Practices under all site conditions, which is what EPA seems to be seeking. As a result, most builders/ developers whose construction sites are in watersheds with impaired waters will not be able to get coverage under the construction general permit, and given the difficulty with certification, it seems equally problematic to get coverage under an individual permit. See response to comment 474.

The CGP does not include a requirement that the SWPPP be certified by an engineer. However, EPA notes that it is standard engineering practice for Professional Engineers to certify, or stamp, their designs. This provision should apply to a number of structural BMPs, but is not an explicit requirement of the CGP. 1062 12 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 488.1 EPA goes on to say [ referring to Limitations on Coverage, Item 4] that it " believes that TMDLs, when established or approved, will provide operators with information as to what constitutes ` adequate and sufficient BMPs'." ( p. 9, Draft Permit) It is NAHB's experience from reading numerous TMDLs for total suspended solids and sediment that this is not the case. In fact, in most TMDLs, storm water discharges home construction sites are not even discussed.

NAHB urges EPA to clarify how eligibility is to be demonstrated. EPA agrees that there are TMDLs that do not provide clear allocations to storm water discharges from construction activities. EPA established a website at www. epa. gov/ npdes/ stormwater/ cgp that includes links to state TMDL information and contacts. EPA expects that permittees can access that website and identify either ( 1) the steps needed to be consistent with the assumptions and requirements of the TMDL or ( 2) a state or regional contact for making this determination. For a situation where an EPA approved or established TMDL has not specified a wasteload allocation for construction storm water discharges, but has not specifically excluded these discharges, compliance with the CGP will generally be assumed to be consistent with the approved TMDL. If the EPA approved or established TMDL specifically precludes such discharges,

the operator is not eligible for coverage under the CGP. 1057 12c 488.2 In selecting this approach, EPA is trying to balance the need to include permit conditions consistent with TMDLs with the need to clearly define permittee responsibilities. 1057 12c 489.1 Specifically, we are concerned with the requirement that an airport operator may have to certify that the BMPs " will be adequate and sufficient to meet water quality standards," See Section 1.3. C. 4. Previous versions of the proposed permit specified that the operator could rely on a environmental professional to certify that the BMPs in the Stormwater Pollution Prevention Plan ( SWPPP) are the " most appropriate"

and are designed to " effectively minimize" the discharge of pollutants of concern. Requiring, instead,

that the discharger design and implement BMPs " that will be adequate and sufficient to meet water quality standards, including failure to maintain and protect existing designated uses of receiving waters" will place an unreasonable burden on many airport operators and prevent the wide use of the general permit. We suggest that EPA return to the previous version of the language. EPA clarifies that storm water discharges from airport operations are covered under the Multi Sector General Permit for Storm Water Discharges from Industrial Operations. An airport would only need coverage under the CGP for construction activities.

There seems to be a great deal of misinformation regarding proposed requirements in the CGP. There is NO proposed requirement for certification of the SWPPP or the BMPs by an engineer. The CGP likewise does not propose terms like " most appropriate" and " effectively minimize".

EPA is obligated per the Clean Water Act to set permit conditions necessary to meet water quality standards. 1070 13 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 489.2 EPA is not sure what is meant by the statement that this requirement could " prevent the widespread use of the permit". All construction activities 1 acre and larger are required by law to obtain NPDES permit coverage. The general permit and an individual permit, the only 2 options, would both require that the discharge not cause or contribute to non attainment of water quality standards.

Both would set BMP based discharge standards. Both would include provisions for enforcement based on a demonstration that the discharge was causing or contributing to non attainment of a water quality standard. The only difference would be that an individual permit likely would subject the construction operator to several additional requirements, primarily: meeting numeric effluent limits, and conducting ongoing analytical monitoring and reporting to document that those numeric effluent limits were being met. 1070 12c 490 Furthermore, we believe that it will be very difficult to get an engineer to ' certify' the performance of most types of Best management Practices under all site conditions to assure compliance with a TMDL, which is what EPA seems to be seeking. As a result, most builders/ developers whose construction sites are in watersheds with impaired waters will not be able to get coverage under the construction general permit, and given the difficulty with certification, it seems equally problematic to get coverage under an individual permit.

Thus, we urge EPA to require a TMDL analysis ONLY where the pollutants associated with storm water runoff from active construction sites are documented by current in stream data to be a major source of pollution. See response to comment 475 and 483.. 1068 14 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12c 491 While we support the use of BMPs in the CGP, we are very concerned about certain water quality related conditions that EPA has attached to the use of those BMPs. ... See Section 1.3. C. 4. The discharger would not be authorized to discharge under the permit if it will " cause or contribute to non attainment of water quality standards, including failure to maintain and protect existing designated uses of receiving waters." Id. This language places a significant burden on many site operators and potentially could unnecessarily prevent the widespread use of the permit. EPA is obligated per the Clean Water Act to set NPDES discharge limitations necessary to meet water quality standards. 1071 12c 496 Eligibility provisions for discharges threatening water quality clarified. Could EPA please clarify? This statement is provided in the introduction to the fact sheet as part of a list that summarizes the content of the fact sheet and the proposed permit. The eligibility provisions for discharges threatening water quality are those that are outlined in 1.3. C. 4 and 1.3. C. 5. 1041 12d 123 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, result in more reliance on structural Best Management Practices,

make compliance very difficult, and significantly increase the cost of development and ultimately the cost of housing. EPA does not believe that the use of the general permit will be significantly limited in impaired waters. Quite the contrary, EPA believes that for most storm water discharges the allocations of a well crafted TMDL can be easily incorporated by reference into discharge requirements under a general permit.

EPA believes that a well designed, implemented and maintained system of construction BMPs will quite adequately meet most TMDL allocations. EPA also believes that the most effective soil erosion and sedimentation BMPs are not necessarily highly engineered, structural BMPs, but rather the BMPs that minimize clearing and grading, emphasize early and often vegetative stabilization, and standard good housekeeping. EPA does not believe that there need be a significant difference in the cost of complying via a general permit between impaired and unimpaired waters. 1057 15 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 150 Understanding then, that general permits are intended to provide consistency, efficiency, and a streamlined permitting process, it follows that general permits should not exclude numerous facilities that would otherwise fall under the general permit's provisions. In order to carry out their goals, general permits should be inclusive. For the Permit to exclude large numbers of construction sites violates the principles of general permits, making the permitting process for the excluded sites, less consistent, more expensive, and more time consuming. EPA believes that the general permit approach is very appropriate for most construction activities, and does not wish to exclude large numbers of construction sites from eligibility. EPA reserves the right to require individual permit coverage, in the situations that warrant it; EPA believes that this will be a rare occurrence. 1039 12d 162 If EPA retains the TMDL eligibility requirement in anything resembling its present form, it should clarify how the TMDL waiver and TMDL eligibility requirement are intended to work together for small construction sites. The TMDL waiver is essentially a way to implement the TMDL eligibility requirements when a TMDL concludes that absolutely no controls on storm water discharges from construction activities are necessary. EPA does not envision that the waiver provision will be relevant very often. It is highly unlikely that standard construction site BMPs would be deemed unnecessary for any water body, especially one that is already exceeding water quality standards. 1061 12d 386 Storm Water Pollution Prevention Plans:   to the extent that EPA continues to try to permit discharges into impaired waterbodies through a general permit mechanism, this section of the permit would need to link up more clearly with the earlier sections on water quality standards and TMDLs. EPA believes that the necessary links exist in the CGP to ensure that the waterquality and TMDL related provisions are also required components of the SWPPP. 2002 12d 431 Our concern is that this section seems to indicate that construction projects may be held up in watersheds where MassHighway has not completed each of the TMDL proposed task and responsibilities, even if they are included in MassHighway's future plans. What recourse does MassHighway have if we do not concur with the conditions indicated in the TMDL? The requirement to be consistent with the assumptions in available TMDL allocations applies only to TMDLs that EPA has approved or developed. While it may be reasonable to try to be consistent with a TMDL under development, a proposed allocation is not incorporated as a discharge requirement under the construction general permit. The appropriate time to influence a TMDL allocation is when the TMDL is under development, or when it is open to public comment, not when applying for a permit. Once EPA has approved a TMDL,

the allocations must be considered when drafting an NPDES permits, as relevant, until such time as the TMDL is revised ( and subsequently reapproved 1034 16 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 433 We also call into question the scientific and statistical validity of TMDLs  according to the GAO, the variations among states in identifying impaired waters " leads not only to inconsistencies in the listing of impaired waters, but also to difficulties in identifying the total number of impaired waters nationwide and the total numbers of TMDLs that states say will be needed to bring such waters up to standards." See Water Quality: Inconsistent Approaches Complicate Nation ' s Efforts to Identify Its Most Polluted Waters, GAO 02

186 ( January 2002)  we believe that the number of waters impaired for sediment may be elevated EPA is currently reviewing the TMDL/ Watershed Rule, and will consider TMDL development issues in that forum.

Meanwhile, EPA is obligated to include in NPDES permits effluent limits that are consistent with any available wasteload allocation in a TMDL approved by EPA. 1079 12d 435.1 TMDLs: I generally oppose using a general permit mechanism to authorize discharges of the pollutant or pollutants causing impairment into an impaired waterbody. Since those discharges must be extremely limited so as not to cause or contribute to a water quality standards exceedance, a more tailored mechanism, such as an individual permit, is needed. In fact, since discharges from construction sites are new discharges, they are prohibited under 40 C. F. R.

122.4( i) unless there is a sufficient load allocation remaining to allow for the discharge and the existing dischargers into that water quality limited segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. A general permit mechanism, particularly one in which the permittee designs its own program for meeting water quality standards, is not suited to make such determinations. See responses to comments 123 and 455. During the wasteload allocation clarification process the TMDL authority may clarify that the TMDL provides no ( i. e. " zero") allocation to the proposed discharge. In that case the discharge could not be authorized under the CGP. However, unless the construction operator could implement " zero discharge" controls, the activity would likewise be unpermittable via an individual permit.

EPA believes that in some cases, individual permits may be necessary to adequately implement TMDL allocations. However, EPA believes that for most storm water discharges the allocations of a well crafted TMDL can be easily incorporated by reference into discharge requirements under a general permit. 2002 17 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 435.2 The Fact Sheet acknowledges the difficulties inherent in using a general permit mechanism for discharges into a waterbody for which there is a TMDL, but no specific wasteload allocation for construction storm water discharges ( p. 15). While that situation is problematic, it is merely symptomatic of a more general difficulty in NRDC's view. General permits, particularly general permits that rely on the permittee to write the terms of the permit, are not consistent with the effective implementation of a TMDL. 2002 12d 436 Although compliance with TMDLs, if applicable, is required in any event, there is concern that this wording requires unnecessary documentation.   The SWP3 would have to be continuously updated with records that demonstrate TMDL compliance, in addition to any other reporting requirements under TMDL. However, the requirements of the CGP do not effect the operator's obligations regarding many other regulations ( i. e. TMDL, water quality, SPCC, etc.).

Therefore, there is no need to require this extra documentation for any specific rule such as TMDL. It's unclear if there is specific wording you're referring to. However, with respect to documentation EPA believes that TMDL allocation provisions need not be notably different in type or scope than other SWPPP requirements. Therefore documentation need not be more notably difficult or different. There is also no CGP requirement for continuous or more frequent documentation, updates or reporting because of a TMDL. It is possible that a particular TMDL could stipulate conditions that might increase the workload in one of these areas, but the general permit will include limits based on a fairly narrow scope of TMDL provisions, i. e. relevant allocations. Implementation plan conditions, for example, are not incorporated by reference as a permit requirement. EPA believes that dischargers to impaired waters must shoulder the responsibility of documenting the controls on their discharges. However, EPA does not believe that the CGP reporting requirements for discharges to impaired waters vs unimpaired waters are notably different. 1058 18 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 441 Total Maximum Daily Loads   Proposed CGP Sections Affected by this Comment: 1.3. C. 5   Fact Sheet Sections Affected by this Comment: IV. 1.3. C. 5   The EPA recognized in its recent proposed withdrawal of revisions to the water quality planning and management regulation and associated revisions to the NPDES program that it needs additional time to determine how to revise the current TMDL regulations implementing the TMDL program [ See Withdrawal of Revisions to the Water Quality Planning and Management Regulation and Revisions to the National Pollutant Discharge Elimination System Program in Support of Revisions to the Water Quality Planning and Management Regulation, 67 Fed. Reg. 79020 ( Dec. 27, 2002)].   Despite this complex and controversial problem, EPA has sought to incorporate part of the now withdrawn rules into the proposed CGP. EPA has asserted that the requirements proposed in this permit are based on " existing regulations." This assertion is not correct. EPA believes that the proposed permit is consistent with existing rules, see 40 CFR 122.44( d)( 1)( vii)( B). Without a specific reference to what you believe is inconsistent with existing rules, we cannot comment further. 1061 12d 442.1 Overall, the draft permit, if finalized as written, will greatly limit the use of the general permit in those watersheds with impaired waters, result in more reliance on structural Best Management Practices,

make compliance very difficult, and significantly increase the cost of development and ultimately the cost of housing. Considering the minimal environmental risk from storm water discharges from residential construction sites, it is reasonable for the public to expect EPA to make the permitting process as simple and reasonable as possible, yet this is not the case here. We urge EPA to make the revisions necessary to the proposal so that coverage under the general permit is available in all watersheds, including those that are impaired. Storm water discharges from construction activities, including from residential construction activities, generally export 20 to 1,000 times more sediment per acre than storm water discharges from other types of land uses/ land use activities. Sediment is the most common pollutant causing impairment of surface waters throughout the country. EPA believes that regulation of residential construction activities is necessary to protect water quality in the United States.

EPA does not believe that the use of the general permit will be significantly limited in impaired waters. Quite the contrary, EPA believes that for most storm water discharges the allocations of a well crafted TMDL can be easily incorporated by reference into discharge requirements under a general permit.

EPA believes that a well designed, implemented and maintained system of construction BMPs will quite adequately meet most TMDL allocations. 2001 19 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 442.2 EPA also believes that the most effective soil erosion and sedimentation BMPs are not necessarily highly engineered, structural BMPs, but rather the BMPs that minimize clearing and grading, emphasize early and often vegetative stabilization, and standard good housekeeping. EPA does not believe that there need be a significant difference in the cost of complying via a general permit between impaired and unimpaired waters. 2001 12d 446 Total Maximum Daily Loads   Proposed CGP Sections Affected by this Comment: 1.3. C. 5   Fact Sheet Sections Affected by this Comment: IV. 1.3. C. 5   Section 1.3. C. 5 of the proposed CGP provides that certain discharges of storm water into receiving waters with a total maximum daily load ( TMDL) analysis are excluded from coverage under the permit. This eligibility exclusion should not be deleted from the proposed CGP. The TMDL program is too complex,

time consuming, and controversial to be incorporated into a general permit by reference. This provision turns the TMDL process from the evaluation and planning process it was intended to be into a kind of " prior appropriation" and system for discharges. EPA agrees that allocations in TMDLs do not necessarily represent rights or licenses to discharge. EPA is bound to include permit limitations necessary to meet water quality standards. EPA believes that in some cases, individual permits may be necessary to do this. However, EPA believes that for most storm water discharges the allocations of a well crafted TMDL can be easily incorporated by reference into discharge requirements under a general permit.

EPA acknowledges that many older TMDLs have not made specific allocations to storm water, and has therefore included an initial assumption to allow storm water dischargers to remain eligible for general permit coverage, while still protecting water quality. 1061 20 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 447 EPA has recognized that BMPs address and improve water quality and EPA policy states that EPA will use BMPs to provide for attainment of water quality standards. This policy reflects the fact that water quality varies depending upon several factors related to climactic conditions, storm conditions, geologic conditions, and topography. Additionally, BMPs utilized at construction sites will differ based upon size of the site, the stage of construction, and based upon the topography and other geologic and climactic conditions. Because of these distinctions, BMPs at different construction sites must be tailored to a site's particular conditions. It is clear that tying a specific slate of BMPs t o a certain " water quality" product is not feasible either generally throughout the country or specifically at any particular site. Therefore, it is improper to tie BMPs to water quality standards.

Connecting BMPs to water quality standards directly makes the Permit uninterpretable. EPA generally agrees with most of this comment. However, EPA must clarify that we are not directly linking specific BMPs to water quality standards across the board. We are simply saying that water quality standards can be met in most situation through the use of BMPs for storm water discharges. You are correct that for a given operation or location the link between BMPs and water quality standards should generally be based on site specific tailoring of a suite of BMPs. 1033 12d 448 Understanding the variability of storm water and the factors affecting construction site discharges, it is clear that tying a specific slate of BMPs to a certain " water quality" product is not feasible either generally throughout the country or specifically at any particular site. Therefore, it is improper to tie BMPs to water quality standards. Since the state of knowledge does not allow permit writers to account for all the variability involved, the linkage expressed in the Permit is improper. Connecting BMPs to water quality standards directly makes the Permit uninterpretable. EPA is obligated under the Clean Water Act to include permit limitations necessary to meet water quality standards. Having decided that BMPs will play such a critical role in this permit, it is entirely appropriate for EPA to link discharge requirements, i. e. BMPs, to water quality standards.

You are correct that a general permit cannot make site specific BMP determinations. Therefore it must be left to the permittee, using a wide variety of available tools and guidance materials, to choose the specific slate of BMPs to implement. 1039 12d 449 The linkage between the water quality standards and BMPs appearing in the first sentence of Section 1.8( C)( 4) should be removed. EPA has determined that BMPs are effective controls for storm water discharges. Having decided that BMPs will play such a critical role in this permit, it is entirely appropriate for EPA to link discharge requirements, i. e.

BMPs, to water quality standards. 1039 21 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 450 If BMPS are properly designed, installed, and maintained, the sediment load of a storm water discharge should be minimal, and thus the possibility of exceeding a TMDL minute. We believe that small construction activities should be allowed to discharge to water bodies with applicable TMDLs ( but no wasteload allocation for construction storm water)

without additional restrictions, as long as they are implementing their SWPPP and documenting such compliance. For large construction activities, such a level of effort may be appropriate if the potential to discharge large volumes of sediment, thus potentially exceeding the TMDL, exists. Some TMDLs may in fact include the determination that no additional measures need be taken by certain types of dischargers. However, because the severity of water quality impairments varies significantly from water body to water body,

and because the relative contribution of various types of discharges varies widely from water body to water body, this decision must be made in the context of individual TMDLs. This determination cannot be made in the context of a general permit. 1041 12d 455 As long as construction activities are designed and carried out to meet the DEP Stormwater Policy standards, or otherwise employ reasonable BMPs to the greatest extent practicable  they should not impair the receiving waters. How can EPA hold up construction activities for the length of time it will take DEP to revise the TMDLs, especially in light of their latest budget and staffing cutbacks? Construction activities which meet the intent of the Clean Water Act should not be delayed for the length of time it will take DEP to revise the TMDLs. EPA is bound to include effluent limits that are consistent with the assumptions and requirements in any available wasteload allocation in a TMDL approved by EPA.

EPA generally agrees that construction activities should not be delayed because the TMDL authority failed to specify all sources of loading in the TMDL. EPA is not requiring that construction activities be delayed until such time as a TMDL can be revised. EPA has utilized a framework that allows the construction site operator to obtain clarification from the TMDL authority on discharge provisions that would allow authorization under the CGP. EPA established a website at www. epa. gov/ npdes/ stormwater/ cgp that includes links to state TMDL information and contacts. EPA expects that permittees can access that website and identify either ( 1) the steps needed to be consistent with the assumptions and requirements of the TMDL or ( 2) a state or regional contact for making this determination.

As described in the permit, EPA will begin with the general assumption that where EPA has approved a TMDL that does not include a specific allocation for s 1034 22 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 456 Some of the existing sediment TMDLs and potential some of the yet to be approved TMDLs may not contain waste load allocations specifically for the construction industry. In these situations, the Permit would prohibit construction sites in these watersheds from obtaining coverage and would, instead, require individual NPDES permits. Thus, unless in a watershed where there is already an approved TMDL,

and that TMDL is of a very particular type one that addresses specifically construction site dischargesthen all construction sites in that watershed will be forced to obtain individual permits. The proposed CGP is NOT automatically requiring individual NPDES permits in watersheds with TMDLs that have not made allocations to discharges from construction activities. EPA has proposed a framework that would allow the construction site operator to obtain clarification from the TMDL authority on discharge provisions that would allow authorization under the CGP. EPA established a website at www. epa. gov/ npdes/ stormwater/ cgp that includes links to state TMDL information and contacts. EPA expects that permittees can access that website and identify either ( 1) the steps needed to be consistent with the assumptions and requirements of the TMDL or ( 2) a state or regional contact for making this determination. The CGP also allows authorization when the TMDL and the TMDL authority can not or do not provide or clarify an allocation, but do not specifically excluded these discharges, In this situation compliance with the CGP will generally be assumed to be consistent with the approved TMDL. 1039 12d 457.1 Permitting authorities should not deny contractors and developers coverage under the CGP where a TMDL fails to include a WLA. If the writer of a TMDL does not explicitly specify a WLA, contractors and developers should be able to assume that the omission was intentional and that permit coverage under the CGP is allowed. Contractors and developers should never be in a situation where they are required to ask state or EPA regions that developed the TMDL whether storm water discharges from construction activity were considered during the development of the allocations  We strongly believe that only in instances where the TMDL specifically precludes construction storm water discharges, should the permitting authority consider restricting CGP coverage. EPA is not proposing that permitting authorities should deny contractors and developers coverage under the CGP where a TMDL neglects to consider storm water sources of load.

EPA disagrees that failure to provide an allocation to a source should be interpreted as an intentional decision that an allocation is not necessary. Based on the policies for TMDL development providing that all sources be considered,

omission would more likely imply that construction site storm water discharges were overlooked, not deliberately excluded. If a source is deliberately excluded,

that decision must be documented in the TMDL. EPA has looked into a number of TMDLs, and is confident that most TMDLs without allocations to construction site discharges simply failed to account for them, or lumped them anonymously into the load allocation. 1079 12d 457.2 EPA believes that all stakeholders in permit related activities, including permitting authorities and permittees, will need to make an extra effort to accommodate TMDLs. This includes obtaining the necessary clarification on TMDLs that are ambiguous or that have not articulated an allocation to discharges from construction activities. EPA is making every effort to ensure that a process is in place to expedite those clarifications and TMDL revisions,

and ensure that all future TMDLs provide the necessary allocations. 1079 23 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 458 EPA's options regarding the prohibition of construction site discharges to sediment impaired waters until the TMDL has been revised are unrealistic and unworkable. Under these approaches, construction and development would face significant delays and possible stoppages and the nation's economy would suffer. See responses to comments 456 and 457.

EPA believes that implementation of the CGP may require significant effort by construction site operators, but should not result in unreasonable delays or stoppages. EPA believes that protecting the natural resources of the United States will generally have positive effects on the nation's economy. 1079 12d 459 Are water quality standards violations of tribal standards e. g., a narrative provision, subsequent to noncompliance with this permit, void if the Tribe's standards are in the " under review" category that a lot of tribal water quality standards program applications are in? Water quality standards ( promulgated by Tribes and States) undergo review by EPA for several different reasons. Depending on the reason for that review, the standard under review may still be valid, or ( in the case of new standards, for example), there may be pre existing standards that apply until such time as the new standard is approved and goes into effect. Generally, there will always be some water quality standard that applies. If you are unsure about which standard is currently recognized by EPA as the applicable standard, contact the appropriate EPA Regional Office. 1040 12d 460.1 The proposed options, described in the Fact Sheet accompanying the proposed Permit, include:   We do not believe any of these options are reasonable because with limited exceptions they constitute an outright prohibition against the use of general permits where a sediment or sediment related TMDL has been established but a wasteload allocation for construction activity discharge is not specifically precluded. ... The Associations' Proposal: If the sediment or sediment related TMDL does not specify waste load allocations for construction storm water discharges, the operator must first contact the State or EPA Region that developed the TMDL to determine why. A discussion with the State or EPA Region that developed the TMDL should lead to one of the following three results: EPA has made concerted effort to retain the use of general permits in most watersheds where TMDLs have been established. To accomplish this it will be necessary in some cases for construction site operators to incorporate additional measures in their SWPPPs.

EPA generally agrees with your suggestion that the construction operator may often need to obtain clarification from the state or territorial TMDL authority on wasteload allocations. Guidance on this process is available on EPAs storm water website. See response to comment 455. EPA also agrees that individual permits may be warranted in some situations, although hastens to clarify that where an allocation to a source is deemed inappropriate, authorization under any permit, including an individual permit, may be inappropriate.

EPA appreciates that you understand the legal obligation of giving due consideration to the water quality concerns expressed in the TMDL. 1049 24 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 460.2 ( 1) If it is the case that a waste load allocation for construction storm water discharges in the TMDL was not mentioned because it was found unnecessary by the State or EPA Region, then a document to this effect should be provided to the discharger, and the discharges of storm water are authorized so long as the SWPPP is developed with due consideration for the water quality concerns expressed in the TMDL; or ( 2) If it is the case that a waste load allocation for construction storm water discharges in the TMDL was not mentioned because they were not considered by the State or EPA Region, then the discharges of storm water are authorized if an allocation for construction storm water discharges can be inferred ( because they are minor) or included within an existing TMDL allocation ( for instance, the construction storm water discharges can be offset by corresponding reductions in other types of discharge). This option is available so long as the SWPPP is developed with due consideration for the water quality concerns expressed in the TMDL; or 1049 12d 460.3 ( 3) If it is the case that a waste load allocation for construction storm water discharges in the TMDL was not mentioned because they were not considered by the State or EPA Region, and an allocation cannot be inferred or included within an existing TMDL allocation,

then EPA must notify the discharger within thirty ( 30)

days that the construction general permit is not appropriate for authorizing the storm water discharge,

and that an individual permit application is necessary,

unless the discharger maintains with the SWPPP a certification that the SWPPP is consistent with the assumptions and requirements of any available waste load allocations in the TMDL. 1049 25 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 461 The analysis that is required to determine if coverage is available for operators whose stormwater discharges are into impaired waters is unreasonable, unworkable,

and places the burden on the permittee instead of EPA. ... However, there are 3 stages in the TMDL process, and how general permits are to be handled in each of these stages is a difficult issue that must be resolved before EPA finalizes the CGP. First, it must be determined how permit coverage will be affected in the interim between the time that a water body is listed as impaired, and a TMDL is approved. Second, it must be determined how permit coverage will be affected after the TMDL has been approved but not implemented. Third, it must be determined how permit coverage will be affected when implementation of an approved TMDL has been determined and initiated.

EPA's proposal does not address all 3 of these stages. Prior to the approval/ establishment of a TMDL for an impaired waterbody, EPA has provided that construction activities be eligible for CGP coverage using the standard discharge requirements.

After a TMDL has been approved the permittee must incorporate in its SWPPP measures to ensure that discharges are consistent with the relevant allocations in that TMDL.

EPA does not believe that these requirements place an unreasonable burden on permittees. 1057 12d 463 However, we are concerned with EPA's proposal that if there is no allocation set for construction stormwater discharges then the operator would not be eligible for coverage under the general permit. We respectfully suggest that the EPA allow for a more flexible approach where an allocation is either inferred or included into an already existing framework, allowing for the continuous coverage under the general permit,

except where the TMDL specifically excludes construction stormwater discharges. See response to comment 455. 1070 26 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 464.1 However, EPA also has proposed that if there is no allocation enumerated for construction stormwater discharges ( or agricultural discharges where much of the agriculture has been sold for development), then the site operator would not be eligible for CGP coverage. The Coalition strongly opposes such an outright prohibition, for several reasons. First, loadings from existing stormwater discharges already are included in some component of the total loading calculation  most likely in the " background level"

even if they have not been specifically identified.

Therefore, there is no basis for concluding that those discharges are not authorized under the TMDL,

particularly when EPA has already identified these discharges, by virtue of covering them in a general permit, as usually small enough in terms of impacts that they do not need individual permits. See response to comment 455. 1071 12d 464.2 For these discharges, we believe that the most suitable requirements for CGP coverage would be the same as discussed above for discharges on waters where a TMDL has not yet been completed: the discharger can rely on a certified environmental professional to certify that the BMPs in its SWPPP are the " most appropriate" and are designed to " effectively minimize"

the discharge of the pollutant at issue. 1071 27 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 465 However, EPA also has proposed that if there is no allocation enumerated for construction stormwater discharges ( or agricultural discharges where much of the agriculture has been sold for development), then the site operator would not be eligible for CGP coverage. The Coalition strongly opposes such an outright prohibition, for several reasons. ... For new discharges... EPA should adopt an approach that looks closely at whether an allocation for construction stormwater discharges can be inferred or fit into the existing TMDL allocations, allowing CGP coverage.

Only where the TMDL specifically precludes construction stormwater discharges, would the permitting authority and operator know immediately that CGP coverage is not an option. See response to comment 455. 1071 12d 466.1 However, EPA also has proposed that if there is no allocation enumerated for construction stormwater discharges ( or agricultural discharges where much of the agriculture has been sold for development), then the site operator would not be eligible for CGP coverage. The Coalition strongly opposes such an outright prohibition, for several reasons. ... In the situation in which the TMDL does not specify an allocation for construction stormwater discharges, EPA should adopt the following alternatives. First, in developing the TMDL, EPA or the state may have concluded that a wasteload allocation for construction stormwater discharges was unnecessary. In such instances, the site operator would develop its SWPPP with due consideration of water quality factors,

ensuring that it is using the " most appropriate" BMPs that " effectively minimize" the pollutant loadings. Next,

if the TMDL is completely silent with regard to an allocation for construction stormwater discharges, the site operator must conduct further research. See response to comment 455. 1071 28 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 466.2 The site operator should contact EPA or the state to ask why construction stormwater discharges were not mentioned in the TMDL. If the response is that such discharges were considered to be minor, the discharger should be able to document this exchange with its permitting authority, and then certify eligibility under the CGP based on designing and implementing BMPs that are certified under the " most appropriate"

and " effectively minimize" tests. Further, if EPA or the state indicate that construction stormwater discharges were not mentioned in the TMDL because they simply were not considered, but such discharges still could be fit into the TMDL allocations ( either because they are minor or because other reductions are being or can be obtained that would balance those discharges), the discharger would be authorized to certify eligibility for the permit, using the " most appropriate" and " effectively minimize" tests as set forth above. 1071 12d 466.3 In addition, EPA or the state would reserve the right to review or revise the TMDL and amend the allocations to expressly include construction stormwater discharges. Finally, if the construction stormwater discharges cannot be fit into the TMDL allocation, the site operator would not be eligible for CGP coverage. 1071 12d 467 [ W] e believe that all requirements associated with the TMDL program should be deleted until the TMDL program is promulgated and finalized. Due to the present state of uncertainty about the TMDL program and its requirements, it seems premature to write a permit referencing that program and it's requirements until those requirements are known and understood by the states and the regulated community. The TMDL program has been an established program for many years. Although the most recently proposed rules for the TMDL program have been withdrawn,

the program itself is still an integral component of Clean Water Act programs.

The proposed CGP requires construction site operators to comply with relevant provisions of an approved or established TMDL. 1002 29 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 469 A better approach to addressing construction sites within impaired watersheds is to presume inclusion in the Permit rather than to presume such sites will require an individual NPDES permit. To this end, the Permit ( and Fact Sheet) language should be revised to indicate that sites draining to impaired waters should be consistent with any approved TMDLs, as applicable. Furthermore, to the extent that any applicable approved TMDL addresses construction discharges, then sites relevant to that TMDL should maintain consistency with the terms of the TMDL;

however, if a TMDL fails to address construction site discharges specifically, then sites in areas under that TMDL should not be dismissed from the Permit program. See response to comment 455. 1039 12d 471 The permit should include a risk based approach to construction site runoff. Construction sites that are at a higher risk to impair local waters and aquatic resources should be identified, and increased inspections and monitoring should be required. Risk might be based on a number of parameters, including:

slope of site; proximity to a sensitive stream, wetland,

or shellfish growing area; proximity to habitat of a specie listed under the Endangered Species Act; or proximity to a waterbody that is impaired for a pollutant typically found in construction runoff. A permittee who discharges to a waterbody that is impaired for a pollutant typically found in construction runoff ( e. g.,

turbidity, pH) should be required to meet water quality standards for the pollutant at the perimeter of their site. EPA agrees that these are all good criteria for the permitting authority to use in determining inspection priorities. Most permitting authorities already use a prioritization system that includes at least a few of these criteria.

As for permit terms themselves EPA is obliged to ensure that all NPDES permits it issues include limitations necessary to meet water quality standards. 1053 30 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 472 The proposed CGP requires that the Notice of Intent ( NOI) state that procedures are in place to meet any requirements for discharges that have a Total Maximum Daily Load ( TMDL), before any work is commenced.   TMDL requirements were not discussed in either the existing CGP or the proposed C& D ELG   Construction and Development Effluent Limitation Guideline ( C& D ELG) of June 24, 2002

67 Federal Register 42643 42686 ( June 24, 2002)...

As with all ELGs, it is understood that the C& D ELG will not supercede discharge requirements under other rules ( such as TMDL requirements) that may be more stringent than those in the proposed rule. Therefore,

specifically requiring the inclusion of TMDL procedures in the CGP is not necessary.   AAR recommends that discussions of TMDL requirements be eliminated from the proposed CGP. EPA disagrees that it is not necessary to address TMDL allocations in the permit. EPA regulations specifically provide that effluent limits in an NPDES permit are to be consistent with the assumptions and requirements of any available wasteload allocation approved by EPA in a TMDL ( 40 CFR 122.44( d)( 1)( vii)( B).

Comments characterizing the proposed construction and development Effluent Limitation Guidelines are generally irrelevant to this action, but EPA notes that the ELG is just proposed at this stage; it is not final. 1058 12d 477 The permit presumes that construction sites within watersheds where a sediment TMDL has been implemented are not eligible for Permit coverage until certain certifications occur and unless a specific TMDL with specific construction related allocations has been established. We believe these assumptions and limitations on Permit coverage are unreasonable and will likely prevent numerous sites from availing themselves of Permit coverage. Given that there are so many impaired watersheds in the country without approved TMDLs, the Permit would apparently prohibit construction sites in these watersheds from obtaining coverage and would, instead, require individual NPDES permits. A better approach to addressing construction sites within impaired watersheds is to presume inclusion in the Permit rather than to presume such sites will require an individual NPDES permit. The CGP does not preclude authorization for construction sites in watersheds with TMDLs without specific construction related allocations. In fact, EPA has specified provisions to accommodate the situation when a TMDL has not made a clear allocation to storm water discharges from construction activities.

Likewise, the CGP does not prevent authorization in watersheds without approved TMDLs.

Similarly, the CGP does not require that construction sites in impaired watersheds obtain coverage under individual permits. 1055 31 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 481 With regard to the Permit's current " certification"

requirement related to TMDL compliance, that provision should be modified to indicate that site operators should ensure that SWPPPs are consistent with the applicable TMDL to the extent that the TMDL contains provisions relevant to individual construction sites. This would respect the fact that the TMDL may not contain specific directives for construction sites or may not contain restrictions upon construction sites until after a given time frame or until other conditions are first met. The CGP does require that SWPPPs incorporate any provisions necessary to meet TMDL allocations and assumptions. EPA has made provisions for operators to obtain clarification on ambiguous allocations. EPA is allowing authorization under the CGP when the TMDL and the TMDL authority do not provide or clarify allocations, nor expressly prohibit construction site discharges. 1039 12d 485.1 We note also that the general permit does not even clearly state that discharges that are not consistent with the wasteload allocation of a TMDL for sediment ( or a parameter that addresses sediment) are not authorized under the permit. In other words, it is not merely that the SWPPP must be certified as consistent with the TMDL. The discharges themselves must be consistent with the wasteload allocation of any applicable TMDL to be authorized under an NPDES permit. The permit should also require that the SWPPP be consistent with any implementation plan developed for a TMDL and should state that discharges that are not consistent with that implementation plan are not authorized under the permit. EPA believes that the CGP does require that the discharges must be consistent with TMDL allocations to be eligible for coverage under this permit. " You are not eligible for coverage under this permit for discharges of pollutants of concern to waters for which there is a total maximum daily load ( TMDL) established or approved by EPA unless you develop and certify a SWPPP that is consistent with the assumptions and requirements of such TMDL. To be eligible for coverage under this general permit, you must incorporate into your SWPPP any conditions applicable to your discharges necessary for consistency with the assumptions and requirements of such TMDL. If a specific wasteload allocation has been established that would apply to your discharges, you must incorporate that allocation into your SWPPP and implement necessary steps to meet that allocation." Part 1.3( C)( 5) " You must implement the SWPPP as written from commencement of construction activity until final stabilization is complete." Part 3.1( D) 1065 12d 485.2 EPA reviews and approves all TMDLs, and is obligated to incorporate all TMDL allocations into NPDES permits, as relevant. At this time EPA does not approve implementation plans. EPA agrees that it is a good idea for dischargers to incorporate TMDL implementation plan provisions, but has not made such conditions a permit requirement. 1065 32 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 486 Boise City has developed and implemented a Construction Site Discharge Erosion and Sediment Control Program. Boise City believes that the adopted Boise City program is sufficient to meet the issued federal municipal permit construction discharge program requirements, Idaho water quality standards,

and the TMDL allocations for sediment within the Boise River.   Boise City recommends the proposed Construction General Storm Water Permit be revised to include the following " limitation on coverage" for those applicable construction activities that occur within the jurisdiction of municipalities where local programs have been established in compliance with the municipal permit requirements:

C. Limitations on Coverage x. Discharges regulated by an authorized entity under an issued municipal separate storm sewer system NPDES permit:

Discharges regulated by an authorized entity under an issued municipal separate storm sewer system NPDES permit do not require additional coverage under this general permit. EPA recognizes your desire to eliminate unecessary redundancy. However,

there are a number of state and local erosion and sediment control programs in the United States. Some arise from federal MS4 programs, some from state and local statute. Not all are effective water quality protection programs. EPA declines to provide a blanket exemption in a general permit with nation wide application on the basis of the presence of a local program; water quality in communities without good quality programs would suffer. In addition the MS4 construction site permit requirements, while over lapping, are not necessarily ( depending upon how the permitting authority has written the permit) identical to the federal construction storm water regulations. There is not a single federal MS4 storm water permit; States and EPA Regions have their own.

EPA does support States with NPDES permitting authority who are implementing NPDES construction storm water permits to complement rather than duplicate state or local erosion and sediment control programs. In those cases, the state generally has some oversight authority for the state or local progr 1032 33 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 487 Boise City has developed and implemented a Construction Site Discharge Erosion and Sediment Control Program.   Because the EPA's proposed Construction General Storm Water Permit is also to meet these same requirements, the additional federal general permit for these same activities appears to be duplication of the requirements attained under the municipal program. Therefore, Boise City recommends the proposed Construction General Storm Water Permit be revised to include the following " limitation on coverage" for those applicable construction activities that occur within the jurisdiction of municipalities where local programs have been established in compliance with the municipal permit requirements: C. Limitations on Coverage x. Discharges regulated by an authorized entity under an issued municipal separate storm sewer system NPDES permit: Discharges regulated by an authorized entity under an issued municipal separate storm sewer system NPDES permit do not require additional coverage under this general permit. See response to comment 486. 1052 34 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 492 This process for addressing water quality issues makes sense [ referring to CGP Sec. 4.5]. However,

the provisions related to water quality standards  ,

which are in Section I. 3. C. 4 of the permit, are not consistent with this process. On the one hand, if a discharge poses water quality issues at the time of certification, the proposed CGP states that the discharger is not eligible for permit coverage at all,

irrespective of any efforts by the permittee to address the issue. On the other hand, if the water quality issue is discovered after certification, the discharger does not immediately lose eligibility, but rather has a number of options available to address the issue. The best way to address this disconnect is to modify the proposal to marry a pre certification requirement to ensure use of the " most appropriate BMPs" that will " effectively minimize" the loadings, with the post certification options that are currently contained in the proposed CGP. 40 CFR 122.4 prohibits new authorization under a NPDES permit when the discharge does not comply with the permit requirements and the Clean Water Act. Therefore, EPA will not convey permit coverage to an operation that starts out causing or contributing to a violation of water quality standards, or in other words will be in immediate violation of the permit.

EPA believes that terms like " effectively minimize" are ambiguous in this context. The Clean Water Act requires that NPDES permits specify discharge limitations necessary to meet water quality standards. 1071 12d 494 We urge EPA to modify the proposed CGP so that eligibility for permit coverage does not require the development and certification of an SWPPP that is consistent with the assumptions and requirements of the TMDL unless the state has demonstrated by current in stream data that the pollutants in storm water runoff from active construction sites are a major source of pollution for that specific waterbody. It is the responsibility of the TMDL to document sources and causes of water quality impairment. There is a national set of standards for this process that include the criterion you have noted: demonstrating that the storm water runoff from construction activities is a source of pollution for that waterbody. EPA notes that the concept of being a " major source" is relative and not absolute; the TMDL must consider ALL sources, and depending on the severity of the impairment may ( or may not) provide more restrictive allocations to any source.

EPA encourages all stakeholders, including construction site operators, to become involved in this process because the forum for influencing TMDL allocations is the TMDL development process, not the permit authorization process.

EPA is obligated to include NPDES permit discharge limitations consistent with the assumptions and requirements of any available wasteload allocation in a TMDL approved by EPA. 1079 35 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 495 EPA believes that TMDLs  will provide operators with information as to what constitutes " adequate and sufficient BMPs." We maintain that this assumption is incorrect; it places a significant burden on site operators and will prevent the widespread use of the CGP. Allocations contained in the TMDL may take one of several forms, including performance standards, or more flexible narrative standards  We are greatly concerned that contractors/ developers particularly small businesses will not possess the required resources ( i. e., manpower or money) or know how to meet the detailed TMDL analysis that would be required under the draft CGP  EPA agrees there are TMDLs that do not provide clear allocations to storm water discharges from construction activities. See response to comment 460.

Construction operators are not required to perform a TMDL analysis. A construction operator should obtain clarification from the TMDL authority on how the existing TMDL allocations apply to the discharge. EPA believes that the controls construction operators must implement to satisfy the provisions of a TMDL will generally be an extension or enhancement of standard construction BMPs, and are therefore well within the ability of most construction site operators to understand and to implement.

EPA encourages all watershed stakeholders, including construction site operators, to get involved in the development of TMDLs in your watershed( s),

and help shape the form that the allocations will take. 1079 12d 497.1 It is obvious from the 2000 Report [ National Water Quality Inventory, 2000 Report, USEPA Office of Water, Oct. 2002] that storm water runoff from construction sites is not considered by the states and tribes, who are charged with assessing the condition of their waters, to be creating major water quality problems. Thus, NAHB urges EPA to modify the proposed construction general permit so that eligibility for permit coverage does not require the development and certification of a SWPPP that is consistent with the assumptions and requirements of the TMDL unless the State has demonstrated by current instream data that the pollutants in storm water runoff from active construction sites are a major source of pollution to that specific waterbody. EPA does not agree that the 2000 National Water Quality Inventory Report supports the conclusion that States and Tribes do not consider construction activities to have an impact on water quality. Regardless, EPA has concluded that construction sites are a major source of water quality impairments. Many states' National Water Quality Inventory Reports do not identify construction sites specifically as major sources, because construction sites are not one of the report categories. Also, because many state monitoring programs take place on 5 year cycles ( evaluation of a given site only once every 5 years), and construction activities take place over shorter periods of time, states often do not have the necessary information to draw conclusions about the relative impacts of construction activities. However, urban storm water runoff is identified as a major source of impairment, and sediment is identified as a major pollutant (# 1 for rivers and streams nation wide, # 3 for lakes). 1057 12d 497.2 EPA is obligated to ensure that discharges to all bodies of water do not cause or contribute to non attainment of a water quality standard, not just discharges to those waters that are already impaired. Failure to protect good quality waters will result in many more becoming impaired. EPA is also obligated to include in the CGP limitations necessary to meet water quality standards, and to include limits that are consistent with the assumptions and requirements of any available wasteload allocation in a TMDL approved by EPA. 1057 36 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12d 498 This provision [ referring to CGP Sec. 1.3. C. 4] is inconsistent with other provisions of the permit ( discussed below), and deviates substantially from earlier versions of the permit that were circulated for review. In those versions, the CGP specified that,

where a source is discharging a pollutant for which the waterbody is listed as impaired, and a total maximum daily load (" TMDL") for that pollutant has not yet been prepared, the discharger can rely on a certified environmental professional to certify that the BMPs in its SWPPP are the " most appropriate" and are designed to " effectively minimize" the discharge of the pollutant at issue. EPA should return to using that language. The proposed CGP, published in the federal register on December 20, 2003, is the only version of this permit that has been circulated for public review. This document does not contain the language or provisions you suggest.

EPA believes that terms like " most appropriate" and " effectively minimize" are ambiguous in this context. EPA is obligated to include NPDES permit limits necessary to meet water quality standards, and to include limits that are consistent with the assumptions and requirements of any available wasteload allocation in a TMDL approved by EPA. 1071 12e 429 Even more basic to the issue of compliance, EPA fails to provide a simple process through which the public can get an answer to the most basic questions regarding TMDLs   1) What rivers and lakes in my area have TMDLs for sediment? 2) Who can I contact to find out more about these TMDLs? We urge EPA to provide up to date information in the final permit on the location of impaired waters and the status of TMDL development on county by county basis as EPA has done with endangered species. See response to comment 455. 1068 12e 432 Our other concern is with TMDLs that have not been written with a specific waste load allocation for construction storm water discharges, but have not specifically concluded that such wasteload allocations are unnecessary. The fact sheet indicates that if this is the case, the EPA is reviewing three alternatives [ Page 14  15 of the Fact Sheet]. See response to comment 455. 1034 37 Water Quality Standards, TMDLs, and Impaired Waters Comment Response New Topic Summ. ID Summary Response DocumentID 12e 434 We think it would be much more appropriate for the EPA to require DEP to review each of its approved TMDLs and post a list on their website of which ones do not include the above measures in the TMDL on their website, instead of each construction contractor trying to find out. DEP should proceed to revise the TMDLs on that list to include construction activities in their load allocation calculations. Otherwise, this would place an undue burden on MassHighway and each individual contractor to prepare an individual permit application because DEP did not include all potential land uses in its TMDL analysis. Furthermore, it seems unfair to put the burden of preparing an individual permit application on the contractor just because DEP did not include all potential land uses in its TMDL analysis. EPA agrees with the importance of establishing a process for identifying and modifying TMDLs with ambiguous allocations. See response to comment 455 for details on the process.

EPA encourages all stakeholders to take an active role in TMDL development,

so that allocations do not come as a surprise.

EPA does not believe it will be necessary for construction operators to obtain individual permit coverage in the majority of these situations. 1034 12e 444 EPA must provide the regulated community with better and more detailed information on how to determine whether the agency has approved or established a TMDL  and for what pollutants. In addition, the agency must better educate contractors/ developers on how to identify and interpret WLAs for construction site runoff. See response to comment 455. 1079 12e 451 NRDC is unclear as to the basis for the statement on p. 9 of the draft permit that ' EPA believes that TMDLs,

when established or approved, will provide operators with information as to what constitutes ' adequate and sufficient BMPs.'' That type of information is unlikely to be in the TMDL and is only slightly more likely to be in the implementation plan for the TMDL. EPA agrees that many older TMDLs may not adequately provide this type of information, not because they do not list BMPs, but because they fail to explicitly provide guidance on the desired outcome for storm water discharges. See response to comment 455 for details on the process by which operators can obtain clarification on ambiguous TMDLs/ TMDL allocations.

EPA also underscores that, while it may be desirable, it is not necessary for the TMDL to specify BMPs because:

1) often a well implemented program of standard BMPs will be adequate to meet water quality standards, and,

2) establishing an outcome ( i. e. load, concentration) does not require that the specific technology be pre determined. In fact NPDES permits with numeric effluents rarely specify the technology that must be used to meet the limit. The permittee may choose any number of ways to meet that limit. Even a narrative limit does not necessarily need to be accompanied by a list of BMPs. 1065 38