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Notice

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

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Information about this document as published in the Federal Register.

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This document has been published in the Federal Register. Use the PDF linked in the document sidebar for the official electronic format.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

SUMMARY:

EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 today are proposing for public comment a modification to the 2008 National Pollutant Discharge Elimination System (NPDES) general permits for stormwater discharges associated with construction activity in order to extend by one-year the expiration date of the permit. Hereinafter, these NPDES general permits will be referred to as “permit” or “2008 construction general permit” or “2008 CGP.” The 2008 CGP was originally issued for a period not to exceed two (2) years. Today, EPA proposes to modify the CGP in order to extend the 2 year term of the 2008 CGP by one year so that it expires on June 30, 2011, instead of June 30, 2010. If EPA finalizes this action, the 2008 CGP will be in effect for a period of three (3) years. By Federal law, no NPDES permit may be issued for a period that exceeds five (5) years.

DATES:

Comments on EPA's proposal, including the draft permit, must be postmarked by November 18, 2009. If finalized as proposed, EPA would be extending the expiration date of the 2008 CGP until midnight June 30, 2011.

ADDRESSES:

Comments may be submitted electronically, by mail, or through hand delivery/courier. To send comments directly to the docket for this notice, go to the Federal Docket Management System (FDMS) at http://www.Regulations.gov and enter Docket ID No. EPA-HQ-OW-2008-0238 in the Search Box under “Comment or Submission.” Comments may be sent by electronic mail (e-mail) to ow-docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-2008-0238. To send comments by mail in hard copy or via a Disk or CD/ROM, use the following address: Water Docket, Environmental Protection Agency, mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OW-2008-0238. To send comments by hand delivery or courier, deliver your comments to: Public Reading Room, Room B102, EPA West Building, 1301 Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. EPA-HQ-OW-2008-0238. Further instructions for submitting comments are provided in Section I.C.

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FOR FURTHER INFORMATION CONTACT:

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

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SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

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

CategoryExamples of affected entitiesNorth American Industry Classification System (NAICS) Code
IndustryConstruction site operators disturbing 1 or more acres of land, or less than 1 acre but part of a larger common plan of development or sale if the larger common plan will ultimately disturb 1 acre or more, and performing the following activities:
Building, Developing and General Contracting233
Heavy Construction234

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

Eligibility for coverage under the 2008 CGP is limited to operators of “new projects” or “unpermitted ongoing projects.” A “new project” is one that commences after the effective date of the 2008 CGP. An “unpermitted ongoing project” is one that commenced prior to the effective date of the 2008 CGP, yet never received authorization to discharge under the 2003 CGP or any other NPDES permit covering its construction-related stormwater discharges. This permit is effective only in those areas where EPA is the permitting authority. A list of eligible areas is included in Appendix B of the 2008 CGP.

B. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. EPA-HQ-OW-2008-0238. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20460. Although all documents in the docket are listed in an index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Publicly available docket materials are available electronically through www.regulations.gov and in hard copy at the EPA Docket Center Public Reading Room, open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744 and the telephone Start Printed Page 53495number for the Water Docket is (202) 566-2426.

2. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the Federal Register listings at http://www.epa.gov/​fedrgstr/​. Electronic versions of the final permit and fact sheet are available at EPA's stormwater Web site http://www.epa.gov/​npdes/​stormwater.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.regulations.gov/​fdmspublic/​component/​main view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search”, then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as CBI and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Section I.B.1.

Submitting CBI. Do not submit this information to EPA through regulations.gov or e-mail. Clearly mark all of the information that you claim to be CBI. For CBI information on computer disks mailed to EPA, mark the surface of the disk as CBI. Also identify electronically the specific information contained in the disk or that you claim is CBI. In addition to one complete version of the specific information claimed as CBI, you must submit a copy that does not contain the information claimed as CBI for inclusion in the public document. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

C. How and to Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. To ensure that EPA can read, understand, and therefore properly respond to comments, the Agency would prefer that commenters cite, where possible, the paragraph(s) or section in the fact sheet or permit to which each comment refers. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD-ROM you submit, and in any cover letter accompanying the disk or CD-ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD-ROM. These electronic submissions will be accepted in Microsoft Word or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By mail. Send the original and three copies of your comments.

3. By Hand Delivery or Courier. Such deliveries are only accepted during the Docket's normal hours of operation as identified in Section I.B.

D. Public Hearings

EPA has not scheduled any public hearings to receive public comment concerning the proposed permit. All persons will continue to have the right to provide written comments during the public comment period. However, interested persons may request a public hearing pursuant to 40 CFR 124.12 concerning the proposed permit. Requests for a public hearing must be sent or delivered in writing to the same address as provided above for public comments prior to the close of the comment period. Requests for a public hearing must state the nature of the issues proposed to be raised in the hearing. Pursuant to 40 CFR 124.12, EPA shall hold a public hearing if it finds, on the basis of requests, a significant degree of public interest in a public hearing on the proposed permit. If EPA decides to hold a public hearing, a public notice of the date, time and place of the hearing will be made at least 30 days prior to the hearing. Any person may provide written or oral Start Printed Page 53496statements and data pertaining to the proposed permit at the public hearing.

E. Finalizing This Action

This action will not be finalized until after all significant public comments have been considered and addressed. EPA's response to public comments received will be included in the docket as part of the final action. Once the final permit becomes effective, operators of new and unpermitted ongoing construction projects may seek authorization under the new 2008 CGP prior to the midnight June 30, 2011 expiration date.

C. Who Are the EPA Regional Contacts for This Permit?

For EPA Region 1, contact Jessica Hing at tel.: (617) 918-1560 or e-mail at hing.jessica@epa.gov.

For EPA Region 2, contact Stephen Venezia at tel.: (212) 637-3856 or e-mail at venezia.stephen@epa.gov, or for Puerto Rico, contact Sergio Bosques at tel.: (787) 977-5838 or e-mail at bosques.sergio@epa.gov.

For EPA Region 3, contact Garrison Miller at tel.: (215) 814-5745 or e-mail at miller.garrison@epa.gov.

For EPA Region 5, contact Brian Bell at tel.: (312) 886-0981 or e-mail at bell.brianc@epa.gov.

For EPA Region 6, contact Brent Larsen at tel.: (214) 665-7523 or e-mail at: larsen.brent@epa.gov.

For EPA Region 7, contact Mark Matthews at tel.: (913) 551-7635 or e-mail at: matthews.mark@epa.gov.

For EPA Region 8, contact Greg Davis at tel.: (303) 312-6314 or e-mail at: davis.gregory@epa.gov.

For EPA Region 9, contact Eugene Bromley at tel.: (415) 972-3510 or e-mail at bromley.eugene@epa.gov.

For EPA Region 10, contact Dick Hetherington at tel.: (206) 553-1941 or e-mail at hetherington.dick@epa.gov.

II. Background of Permit

A. Statutory and Regulatory History

The Clean Water Act (“CWA”) establishes a comprehensive program “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. 1251(a). The CWA also includes the objective of attaining “water quality which provides for the protection and propagation of fish, shellfish and wildlife.” 33 U.S.C. 1251(a)(2)). To achieve these goals, the CWA requires EPA to control discharges through the issuance of National Pollutant Discharge Elimination System (“NPDES”) permits, which may be issued for fixed terms that may not exceed five (5) years. 33 U.S.C. 1342(b)(1)(B).

Section 405 of the Water Quality Act of 1987 (WQA) added section 402(p) of the Clean Water Act (CWA), which directed EPA to develop a phased approach to regulate stormwater discharges under the NPDES program. EPA published a final regulation in the Federal Register on the first phase of this program on November 16, 1990, establishing permit application requirements for “storm water discharges associated with industrial activity.” See 55 FR 47990. EPA defined the term “storm water discharge associated with industrial activity” in a comprehensive manner to cover a wide variety of facilities. Construction activities, including activities that are part of a larger common plan of development or sale, that ultimately disturb at least five acres of land and have point source discharges to waters of the U.S. were included in the definition of “industrial activity” pursuant to 40 CFR 122.26(b)(14)(x). Phase II of the stormwater program was published in the Federal Register on December 8, 1999, and required NPDES permits for discharges from construction sites disturbing at least one acre, but less than five acres, including sites that are part of a larger common plan of development or sale that will ultimately disturb at least one acre but less than five acres, pursuant to 40 CFR 122.26(b)(15)(i). See 64 FR 68722. EPA is proposing to extend the expiration date of the 2008 CGP under the statutory and regulatory authority cited above.

NPDES permits issued for construction stormwater discharges are required under Section 402(a)(1) of the CWA to include conditions for meeting technology-based effluent limits established under Section 301 and, where applicable, Section 306. Once an effluent limitations guideline or new source performance standard is promulgated in accordance with these sections, NPDES permits are required to incorporate limits based on such limitations and standards. See 40 CFR 122.44(a)(1). Prior to the promulgation of national effluent limitations and standards, permitting authorities incorporate technology-based effluent limitations on a best professional judgment basis. CWA section 402(a)(1)(B); 40 CFR 125.3(a)(2)(ii)(B).

B. Summary of 2008 CGP

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

The 2008 CGP permit provides coverage for discharges from construction sites that occur in areas not covered by an approved State NPDES program. EPA Regions 1, 2, 3, 5, 6, 7, 8, 9, and 10 issued the 2008 CGP to replace the expired 2003 CGP for operators of new and unpermitted ongoing construction projects. The geographic coverage and scope of the 2008 CGP is listed in Appendix B of the permit.

C. What Is EPA's Rationale for the Modification of the 2008 CGP for a One-Year Extension of the Expiration Date?

As stated, EPA proposes to modify the 2008 CGP by extending, by one year, the expiration date of the 2008 CGP. This proposed action is necessary due to EPA's schedule for finalizing effluent limitations guidelines (ELG) and new source performance standards (NSPS) (hereinafter, ELG) for the construction and development (C&D) point source category, and the anticipated timeframes associated with issuing a new CGP that incorporates the substantive requirements of the C&D ELG. The permit modification for the proposed one-year extension of the 2008 CGP is based on actions and initiatives the Agency is undertaking or planning to undertake and the resulting resource demands they are placing on EPA's NPDES stormwater program. The cumulative impact of these new initiatives will limit the Agency's ability to meet a current seven-month timeframe to incorporate the requirements of the C&D ELG into a new CGP before midnight June 30, 2010.

EPA is required by court order to publish and promulgate proposed ELGs and NSPSs for the C&D point source category by December 1, 2008 and publish and promulgate final ELGs for the C&D point source category by December 1, 2009. See NRDC, et al. v. U.S. EPA, No CV-0408307 (C.D. Cal.) (Permanent Injunction and Judgment, December 5, 2006). Any NPDES permit Start Printed Page 53497issued after the effective date of the C&D ELG, whether issued by EPA or an authorized state, must incorporate the substantive technology-based requirements of the ELG into the permit. The expiration of the 2008 CGP on midnight June 30, 2010, currently gives EPA approximately seven months to propose and finalize a new CGP, which incorporates the C&D ELG requirements, before midnight June 30, 2010. For a number of reasons, EPA needs more time to incorporate the C&D ELG into a new CGP and to finalize the permit by midnight June 30, 2010.

The current seven-month timeframe to propose and finalize a new permit is impracticable based on EPA's past experience in issuing stormwater general permits, in general, and with the construction general permit specifically. In the past, EPA required an estimated eighteen months to propose and finalize the 2003 CGP, and a similar amount of time for the previous construction general permits. While EPA does not believe the 2008 Multi-Sector General Permit (MSGP) for stormwater discharges associated with industrial activities is typical, that permit required almost three years to finalize. Beyond incorporating updated modifications to the permit based on changes to the technology-based and water quality-based effluent limitations into the permit, EPA is required to conduct many additional tasks that are automatically required of final Federal actions, such as conducting consultations under the Endangered Species Act and National Historic Properties Act, obtaining CWA section 401 certifications for the permit from States and Indian Country lands, providing the public with an opportunity to comment, and responding to all comments received during the public comment period. Separately, these tasks have historically required more than seven months. The combined effect of these tasks that are each necessary to issue a general permit on EPA's schedule for permit issuance is to make a seven-month permit issuance timeframe impracticable.

EPA is undertaking or planning to undertake actions that are putting new demands on the Agency's resources in the NPDES stormwater program. These new required actions and initiatives will compete for the Agency's resources needed to issue a new CGP. The Agency did not expect these additional required actions or initiatives when the 2008 CGP was issued in July 2008. For instance, in October 2008, the National Research Council (NRC) of the National Academy of Sciences released its report on EPA's national stormwater program (Urban Stormwater Management in the United States, October 2008) (available at http://www.epa.gov/​npdes/​pubs/​nrc_​stormwaterreport.pdf), which recommended a number of fundamental changes to the way in which EPA's stormwater program under the CWA is effectuated. The NRC report states that stormwater discharges from the built environment remains one of the greatest challenges of modern water pollution control, “as this source of contamination is a principal contributor to water quality impairment of waterbodies nationwide.” The NRC found that the current regulatory approach by EPA under the CWA is not adequately controlling all sources of stormwater discharge that are contributing to waterbody impairment. NRC recommended that EPA address stormwater discharges from impervious land cover and promote practices that harvest, infiltrate, and evapotranspirate stormwater to prevent it from being discharged, which is critical to reducing the volume and pollutant loading to our Nation's waters. Since the release of the NRC report, EPA has devoted significant resources to the consideration of the report's recommendations and to a determination of the best ways to strengthen controls on stormwater discharges nationwide. EPA anticipates expending significant resources in both the short and long term in addressing the NRC's recommendations. The resource demands on the Agency that are necessary to respond to the report's recommendations were not present when EPA issued the final 2008 CGP, and were not fully factored into the anticipated timeline for issuing a CGP that incorporates the C&D ELG by midnight June 30, 2010.

In addition, on May 12, 2009, President Obama signed Executive Order (E.O.) 13508, Chesapeake Bay Protection and Restoration (available at, http://executiveorder.chesapeakebay.net/​default.aspx). The President's E.O., under section 202(a), directed EPA to define the next generation of tools and actions to restore water quality in the Chesapeake Bay and describe the changes to be made to regulations, programs, and policies to implement these actions. EPA issued a draft 202(a) Report on September 9, 2009. EPA will finalize the section 202(a) Report in November 2009 and issue a final strategy for protecting and restoring the Chesapeake Bay on May 12, 2010. The completion of these tasks and any resulting regulatory or programmatic actions that are necessary to carry out the E.O. are a high priority for the federal government, and will consume resources that will not be available to issue a new CGP by midnight June 30, 2010.

For the reasons discussed above, EPA proposes to modify the 2008 CGP in order to extend the current midnight June 30, 2010 expiration date by one year to midnight June 30, 2011. This will give EPA approximately the same time period, eighteen months, which the Agency required to issue the 2003 CGP. EPA requests comments on this proposed modification of the 2008 CGP to extend the expiration date to midnight June 30, 2011.

EPA believes it is imperative that EPA has sufficient time to incorporate the C&D ELG into the CGP and issue a new CGP prior to the existing permit's expiration date. If EPA does not issue a new CGP before expiration of the existing permit, no new construction projects may be permitted under the CGP, leaving individual NPDES permits as the only available option for permitting new projects. The sole reliance on individual permits will mean that discharge authorizations will be delayed due to the greater amount of time and Agency resources that are required for developing and issuing individual permits. In turn, construction projects that need to begin construction activity on or after midnight June 30, 2010 will be delayed for an uncertain amount of time until EPA can review their individual permit application and issue the necessary permits. Rather than risk detrimental delays to new construction projects, with no clear benefit to our nation's surface waters, EPA has decided that it is advisable to instead modify the 2008 CGP to extend the expiration date by 1 year to midnight June 30, 2011.

D. EPA's Authority To Modify NPDES Permits

EPA regulations establish when the permitting authority may make modifications to existing NPDES permits. In relevant part, EPA regulations state that “[w]hen the Director receives any information * * * he or she may determine whether or not one or more of the causes listed in paragraph (a) * * * of this section for modification * * * exist. If cause exists, the Director may modify * * * the permit accordingly, subject to the limitations of 40 CFR 124.5(c).” 40 CFR 122.62. For purposes of this Federal Register notice, the relevant cause for modification is at 40 CFR 122.62(a)(2), which states a permit may be modified when “[t]he Director has received new information” and that information was not available at the time of permit Start Printed Page 53498issuance * * * and would have justified the application of different permit conditions at the time of issuance.” Pursuant to EPA regulations, “[w]hen a permit is modified, only the conditions subject to the modification are reopened.” 40 CFR 122.62.

In the case of the 2008 CGP, a permit modification is justified based on the new information EPA has received since issuance of the 2008 CGP in July 2008, described above in Section II.C, EPA is undertaking or planning to undertake actions that are putting new demands on the Agency's resources in the NPDES stormwater program. The contents and the resulting resource demands of the NRC Report and the Chesapeake Bay E.O. were not available at the time of issuance of the 2008 CGP. Meeting these new demands while implementing new effluent guidelines and new source performance standards is not practical in a seven-month time period. If this information was available at the time of permit issuance, it would have justified EPA establishing an expiration date for the 2008 CGP later than midnight June 30, 2010. As a result, cause exists under EPA regulations to justify modification of the 2008 CGP to extend the expiration date of the permit from midnight June 30, 2010 to midnight June 30, 2011.

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

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Dated: October 9, 2009.

Ira Leighton,

Acting Regional Administrator, EPA Region 1.

Dated: October 9, 2009.

Jose C. Font,

Acting Division Director, Caribbean Environmental Protection Division, EPA Region 2.

Dated: October 8, 2009.

Kevin Bricke,

Acting Division Director, Division of Environmental Planning & Protection, EPA Region 2.

Dated: October 9, 2009.

Jon M. Capacasa,

Director, Water Protection Division, EPA Region 3.

Dated: October 9, 2009.

Tinka G. Hyde,

Director, Water Division, EPA Region 5.

Dated: October 9, 2009.

Bill Luthans,

Acting Director, Water Quality Protection Division, EPA Region 6.

Dated: October 8, 2009.

Karen A. Flournoy,

Acting Director, Wetlands and Pesticides Division, EPA Region 7.

Dated: October 8, 2009.

Stephen S. Tuber,

Assistant Regional Administrator, Office of Partnerships & Regulatory Assistance, EPA Region 8.

Dated: October 9, 2009.

Alexis Strauss,

Director, Water Division, EPA Region 9.

Dated: October 9, 2009.

Christine Psyk,

Acting Director, Office of Water and Watersheds, EPA Region 10.

End Signature End Supplemental Information

[FR Doc. E9-25123 Filed 10-16-09; 8:45 am]

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