Key Takeaways
- What Happened? The U.S. Environmental Protection Agency (EPA) issued a final modification to its 2022 Construction General Permit (CGP) to expand the list of areas eligible for coverage to include construction projects in Lands of Exclusive Federal Jurisdiction. This is one of EPA's first attempts to implement the holding in City and County of San Francisco v. EPA, where the Supreme Court held that EPA exceeded its authority by imposing "end-result" limitations in San Francisco's Clean Water Act (CWA) permit for its Oceanside combined wastewater treatment facility.
- Who Is Affected? In the short term, the modification will apply where EPA Regions (other than Regions 1 and 3) are the NPDES permitting authority. It will become effective where EPA Regions 1 and 3 are the NPDES permitting authority at a currently unknown later date once Regions 1 and 3 complete the CWA Section 401(a)(2) certification process. In the long term, the modification could affect operators in states that model their construction stormwater general permits after EPA's approaches in the CGP.
- Next Steps? Those who anticipate engaging in construction activities in Lands of Exclusive Federal Jurisdiction before the expiration of the 2022 CGP in 2027 should be aware that EPA's modification to the 2022 CGP may provide coverage for such activities. If a project-specific permit is preferable, permittees may seek individual permits instead. EPA will soon seek comment on the 2027 CGP, which will likely incorporate the holding in San Francisco throughout the permit, not just regarding Lands of Exclusive Federal Jurisdiction.
On April 15, 2025, EPA published its final action, narrowly modifying the 2022 CGP under the CWA. The CGP modification expands the list of areas eligible for coverage, including construction projects that discharge to receiving waters within Lands of Exclusive Federal Jurisdiction. See Beveridge & Diamond's previous alert on the topic. EPA published its proposed modification on December 13, 2024, and received two comments before the comment period closed on January 13, 2025.
This modification also attempts to implement the Supreme Court's recent decision in City and County of San Francisco v. EPA, 145 S. Ct. 704 (2025), in which a B&D team secured a major CWA victory on behalf of San Francisco. Notably, this is one of EPA's first attempts at implementing San Francisco. The permit modification and accompanying permit fact sheet can be found here.
There are three key aspects to the final 2025 CGP modification:
- Attempted implementation of City and County of San
Francisco v. EPA. EPA's proposed modification sought to include
precisely the type of "end-result" prohibition the
Supreme Court rejected in San Francisco. In the final
modification, EPA attempted to conform the CGP's new provisions
for projects in Lands of Exclusive Federal Jurisdiction to the
Supreme Court's recent decision. In San Francisco, the
Supreme Court held that the CWA does not authorize
"end-result" requirements, which "condition
permitholders' compliance on whether receiving waters meet
applicable water quality standards," 145 S. Ct. 704, 715, and
makes "a permittee that punctiliously follows every specific
requirement in its permit" liable for penalties if receiving
waters fall below the applicable standard. Id. at 710. The
Court found that these types of end-result requirements, such as
permit terms prohibiting discharges that contribute to a violation
of a water quality standard in a receiving water, are
unlawful.
The modification to the CGP reflects what will likely be EPA's broader effort to remove the sort of "end-result" prohibitions the Supreme Court found to be invalid in NPDES permits and implement compliant restrictions. The modified CGP added new permit conditions applicable to Lands of Exclusive Federal Jurisdiction, which prohibit stormwater discharges that contain i) observable deposits of solids, scum, sheen, or other substances; ii) an observable film, sheen, or discoloration from oil and grease; or iii) foam or substances that produce an observable change in color, odor, or cloudiness in the discharge. EPA maintains that these "final water quality-based limitations" are valid because they "tie compliance to the condition of the discharge (not the receiving water)." 2022 Construction General Permit (CGP) Modification – Fact Sheet, 6.
- Use of heightened water quality standards for all waters in lands of exclusive federal jurisdiction. The modified CGP employs the higher standard for discharges to sensitive waters (also referred to as Tier 3) for all projects covered by the CGP in Lands of Exclusive Federal Jurisdiction. Tier 3 waters are those of the highest quality and are identified as constituting Outstanding Natural Resource Water, such as waters of national parks, state parks, wildlife refuges, and waters of exceptional recreational or ecological significance. Water quality due to permitted discharges cannot be lowered in Tier 3 waters. If permittees will not discharge to Tier 3 waters, EPA will allow them to seek an individual permit containing permit-specific limitations instead of operating under the CGP.
- Endangered Species Act consultation. The modified CGP requires permittees to complete their Section 7 Endangered Species Act consultations before permittees are eligible to discharge to receiving waters under the CGP.
This modification impacts entities conducting construction activities in Lands of Exclusive Federal Jurisdiction, areas of land that were not eligible for coverage under the original 2022 CGP. Covered construction activities include those resulting in discharges to receiving waters from projects disturbing one or more acres of land or disturbing less than one acre, which is part of a larger common plan that ultimately disturbs one acre or more.
Areas of exclusive federal jurisdiction exist pursuant to the Constitution's Enclave Clause and are also called federal enclaves. See Construction and Application of Federal Enclave Clause, 21 A.L.R. Fed. 3d. Art. 6. EPA's rule states that EPA does not maintain a map or list of enclaves subject to the rule, but individual Federal land management agencies may keep partial maps or lists. The rule identifies 15 relevant U.S. National Park Service properties. The federal government last compiled an inventory of the jurisdictional status of federal lands in 1962, and includes several military bases, in addition to parks, and other federal facilities.
With the 2022 CGP expiring in February 2027, EPA will begin preparing the next CGP in the near future and seek comments from interested parties regarding potential changes to the water-quality based limitations and compliance with the Court's holding in San Francisco. Once available for public comment, find the next CGP on EPA's website for Stormwater Discharges from Construction Activities, and parties can electronically submit comments through Regulations.gov.
Due to the limited territorial application of the modified 2022 CGP and the 2022 CGP nearing expiration, legal challenges to the modification seem unlikely. However, challenging the modification presents the opportunity for those seeking clarity about EPA's implementation of San Francisco and may help set the stage for a future challenge of the 2027 CGP.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
