In response to the recent Supreme Court decision on the levels of pollutants in water discharges by entities holding a permit to make such discharges, the Environmental Protection Agency (EPA) made a “narrow modification” to its 2022 construction general permit (CGP) that clarifies the CGP requirements for projects that discharge waste water into waters located in “lands of exclusive federal jurisdiction.”

The Clean Water Act requires either a state to authorize stormwater discharges from certain construction activities into waters of the U.S., or for the EPA to issue a national pollutant discharge elimination system (NPDES) permit for stormwater discharges from construction sites.

Furthermore, NPDES permits are required for stormwater discharges from projects that cause disturbances to one or more acres of land, and for discharges from smaller parcels of land that are part of a common plan of development or sale if the discharges will ultimately disturb one or more acres of land.

Since 1992 the EPA has issued CGPs for stormwater discharges from construction activities, including permit coverage in areas where the EPA is the NPDES permitting authority with the EPA issuing its most recent CGP on Feb. 17, 2022. The CGPs issued at that time were for stormwater discharges from eligible construction projects in Massachusetts, New Hampshire, and New Mexico; for the District of Columbia; for federal facilities in Colorado, Delaware, Vermont and Washington state; for all U.S. territories except the U.S. Virgin Islands; and for all Indian country, except in Maine, and in Denali National Park and Preserve, Alaska.

Posted on the Federal Register on April 15, 2025, the document outlining the CGP changes is called “Modification to 2022 National Pollutant Discharge Elimination System (NPDES) Construction General Permit (CGP) for Stormwater Discharges from Construction Activities.”

The EPA says the modifications to the CGP are in response to the Supreme Court’s decision in the case “City and County of San Francisco v. EPA” that was argued on Oct. 16, 2024, at which the plaintiffs challenged the NPDES’s permit provisions saying EPA did not articulate what actions a permittee must take, or refrain from taking, in relation to waste-water discharges.

Furthermore, despite the EPA not providing information that would guide permit holders on water discharges, permittees were still held responsible for the quality of the water into which pollutants were released, claimed the plaintiffs. The Supreme Court’s decision was issued on March 4, 2025, and the court found in favor of the plaintiffs saying it is the EPA’s responsibility to provide NPDES permit holders with information on actions that must be taken “to ensure that water quality standards are met.”

The EPA says the modification to the CGP expands the list of areas covered by CGP rules to include construction projects in all “lands of exclusive federal jurisdiction,” which are defined as lands in the U.S. where the federal government retains exclusive jurisdiction in relevant respects. EPA says such lands are areas where the federal government has purchased the land with the state where the purchase was made consenting to federal jurisdiction; where a state choose to cede jurisdiction to the federal government; and where the federal government maintained jurisdiction over such an area at the time statehood was granted.

The document lists industrial activities that are impacted by the permit modification, including building construction, or heavy and civil engineering construction that occurs on lands of exclusive federal jurisdiction in which one acre—or more—of land is disturbed. Additionally, land that is less than one acre but part of a larger common plan of development or sale that disturbs one acre or more is subject to the permit modification, according to EPA.

In addition to expanding CGP eligibility to include all lands of exclusive federal jurisdiction, modifications to the CGP include clarifying that the requirements for projects that discharge waste water into receiving waters be held largely to the same discharge requirements in the 2022 CGP that are applicable to discharges into sensitive waters, including outstanding national resource waters, according to the agency.

EPA says the latest approach in necessary because it does not have a comprehensive map or list of lands of exclusive federal jurisdiction, therefore permitting decisions are based on the information available to the agency about the location of such lands. The EPA says its best available information indicates that lands under exclusive federal jurisdiction include areas within certain national parks identified such as Olympic and Yosemite National Parks, where construction projects are scheduled to commence in 2025, EPA says.

The modification also clarifies eligibility requirements related to endangered species making clear that construction on a project within lands of exclusive federal jurisdiction can proceed only after consultations with Endangered Species Act (ESA) compliance agencies—such as the National Park Service—are complete.

For much of the U.S., the modified CGP requirements became effective on April 8, 2025, which covers eight EPA regions; they are:

• Region 2, New Jersey, New York, Puerto Rico, the U.S. Virgin Islands, and eight tribal nations.
• Region 4, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, and six tribal nations.
• Region 5, Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin, and 35 tribal nations.
• Region 6, Arkansas, Louisiana, New Mexico, Oklahoma, Texas, and 66 tribal nations.
• Region 7, Iowa, Kansas, Missouri, Nebraska, and nine tribal nations.
• Region 8, Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming, and 28 tribal nations.
• Region 9, Arizona, California, Hawaii, Nevada, the Pacific Islands, and 148 tribal nations.
• Region 10, Alaska, Idaho, Oregon, Washington state, and 271 tribal nations.

The EPA says it will post on its website when the effective date of the final modifications is issued for Region 1, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont and 10 tribal nations; and Region 3, Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia and seven tribal nations.

Click here to read the Federal Register notice.